New Courtroom Strategy for Kiwigate Climate Data Skeptics

Government climatologists in New Zealand (NZ) last week won a major courtroom victory against skeptic plaintiffs when a high court judge declined to order scientists to release their data. But fresh legal analysis points to a new courtroom strategy to circumvent the kiwi government’s failure to honor a promise to release hotly contested global warming evidence.

‘Kiwigate’ is the three-year ongoing controversy about the New Zealand government’s national temperature reconstructions. This fresh analysis is less about the biting assessments of skeptical experts but  – of far greater probative significance –  about the (now unlawfully hidden) findings of an independent international climate science agency of comparable standing  that assessed the work of NZ government climatologists.

This analysis exposes glaring omissions in Justice Venning’s Judgment. It can be shown that the court failed to address critical issues pointing to bad faith by a government chief scientist who may have lied and/or intentionally misled the court in a sworn affidavit with  claims over the public interest immunity defense.  An omission by the presiding judge to weigh such assertions and their veracity within a key witness’s sworn testimony, plus other failings identified below, constitute new evidence supportive of plaintiff’s pleas in any putative mandamus hearing on grounds that government officers did not perform their duties.

Last Friday the New Zealand Climate Science Education Trust  (hereinafter referred to as ‘the Trust’) was defeated in their legal challenge to compel government scientists to reveal anomalies in their nation’s unofficial “official” climate record. Because a court permitted the National Institute of Water and Atmospheric Research of New Zealand (NIWA) to break a promise to reveal key evidence the judge was able to rule that the Trust had failed to prove their case.

The man-made global warming skeptics of the Trust had initiated this judicial review after they saw that their nation’s climatologists had inexplicably grafted a warming trend onto the country’s raw temperatures using  dubious statistical techniques. For over three years the controversy grew and NZ’s National Institute for Water and Atmospheric Research (NIWA) resorted to hiding/destroying data. In 2010 – to ameliorate the controversy – NIWA was compelled to approach the Australian Bureau of Meteorology (BoM) to undertake an independent  and open external peer review. Thereby, under ministerial order the government anticipated that the methodology and documentation of the disputed ‘Seven-station Temperature Series’ (7SS) data file would be vindicated and the full Aussie review would be put on show. But last Friday, because NIWA (and the National Party government) had belatedly reneged on their promise, the judicial review found their was insufficient evidence to sustain the skeptics’ courtroom claims.

As the dust settles at the Auckland High Court and the climate alarmists gloat the Trust has yet to announce how it will respond. But legal analysts have seen a way forward to resolve the stalemate after NIWA’s refusal to come clean about their disputed SS7. Readers can contrast and compare the SS7 (adjusted) temperatures with the actual (raw) temperatures in the graphs below. Skeptics remain insistent that NIWA used a discredited, non-standard method to create an unjustified warming trend that fitted a political agenda.

Despite Justice Venning’s adverse decision the Trust still achieved something of a moral victory. In this three-year dispute NIWA has been forced to disavow it’s own National Temperature Records. NIWA chose to lose the “official” tag for its temperature series as a ploy to evade coming clean about its secretive number-crunching  methods. Thereafter NIWA asserted such data was “special” i.e. only for internal use by climatologists. On September 10, 2012, the Monday after their defeat  the Trust’s  lawyer, Barry Brill issued a public statement:

“NIWA asserts that it is not required to justify its methods. It claims the exclusive and untrammelled right to select any statistical technique it thinks appropriate. However, it publicly undertook to have its methods tested by both a BoM review and the independent peer-review of a scientific journal. It has now elected to neither disclose nor rely upon BoM’s work and it has not submitted to a journal review.”

NIWA had altered its position at the eleventh hour, as signaled by a hasty revision of NIWA chief climatologist, Dr David Wratt’s affidavit. Astonishingly, at paragraph 306 Wratt now claimed, “NIWA and BOM regard the process of peer review and the interchanges between them as confidential, privileged, and subject to public interest immunity.”

The fresh claim for public interest immunity is baffling and disingenuous in light of the fact that the minister responsible for NIWA, Hon. Dr Wayne Mapp, promised that the BoM review would be independent and more transparent. NIWA’s last-minute U-turn is a betrayal of the trust petitioners and NZ taxpayers placed in Mapp’s mealy-mouthed assurances; it gives the clearest signal yet that the Australian climatologists’ review probably pinpointed shenanigans that Mapp’s ministerial colleagues felt compelled to suppress despite his high-sounding promises. In effect, NIWA – the accused in this “crime” – had manipulated behind the scenes to ensure that the “prosecutors”  of the case (NZCSET) were barred from examining critical evidence provided by NIWA’s own “expert witness” (BoM).

Intentional Withholding of Evidence Specifically Obtained to Establish Defendant’s Credibility

As the lawyer for the plaintiffs, Barry Brill explains, “Both NIWA and BoM (at NIWA’s request) declined freedom-of-information requests for copies of the BoM report. Early last year, appeals were lodged to the respective authorities in New Zealand and Australia. NIWA advised the Ombudsman that the BoM report was relied upon for the litigation – and then advised the Court that it did not rely upon any aspect of the BoM review.”

Mapp’s retirement in late 2011 was likely timed to minimize his public embarrassment.  There is little doubt that this disgraceful decision will be condemned – not only in NZ – but around the world as  gross bad faith.  This was no exculpation for the climatologists – it was a breach of due process – a blatant  withholding of evidence. But NIWA’s treachery need not go unpunished. In law there are remedies to punish those who subvert the search for truth in legal proceedings –  it is the doctrine of spoliation, as explained below.

Using the Spoliation Doctrine to Compel NIWA to Disclose

Withholding of  key evidence during legal proceedings is covered by the spoliation doctrine. In New Zealand the spoliation doctrine – as a tool for compelling defendants to be completely forthcoming with their evidence – remains less advanced than in other common law nations. But the Ministry of Justice aspires to bring it’s spoliation rules more closely in line with those of the U.K. and U.S. Even better news is that the Law Commission will make recommendations on this issue before the end of 2012 (that’s if there are no further flies in the political ointment!).  As such, if the Ministry of Justice are true to their word (unlike NIWA!), I expect their recommendation to provide good reading for the Trust. A taste of what may be to come is found in their consultation document entitled ‘Supplementary Legal Consultation Issue Adverse Inference from Defendant’s Failure to Give Evidence.’

But until such time as the Evidence Act (2006) is beefed up, for the moment skeptics will be well advised to seek to apply the ‘Trompert Principle’  which has been re-affirmed by the Court of Appeal since the enactment of NZBORA. Applying Trompert the Court of Appeal endorsed Adams J statement of the law in Purdie v Maxwell which extended to an accused’s failure to give by his own evidence “or otherwise” an explanation that might be expected of an innocent person.” [2.] While in R v Butler it was noted that the law “certainly allows an inference adverse to an accused to be drawn if he remains silent at a trial in the face of evidence pointing to his guilt.” [3.]

This makes it reasonable for any court to infer that NIWA’s bad faith serves to deny taxpayers their right to robustly test the Trust’s claims that NIWA’s numbers are dodgy. If BoM’s assessment supports the Trust’s position then it is proven that NIWA failed in the stated public duty of this Crown Research Institute (CRI) to “pursue excellence, abide by ethical standards and recognise social responsibility.” (More on NIWA’s public duties below).

NIWA temp adjustment versus raw NZ temps

Indeed, as Barrister Brill noted: “No policymaker should be asked to rely upon data which has been manipulated by unprecedented DIY techniques – especially when those methods have failed to pass peer review.”

The Trust ‘s attempt to get relief for the suppression of NIWA’s homogenized climate data and BoM’s review of that evidence failed because the court omitted to apply the negative inference against NIWA. As it stood, with no such negative inference attached to the hidden BoM evidence Justice Venning may have reasonably adjudged that those experts the Trust relied upon were of insufficiently high standing for the court to accept as rebuttal witnesses. Justifying that position,Venning opined that it is not the job of a judicial review to weigh the merits of opposing scientific arguments. Absent the negative inference for the missing/withheld evidence, this is not an unreasonable position to hold.

As such, Venning has now made it a matter of record that only scientists of recognized high standing can guide such legal pronouncements. In this regard the court has affirmed the true significance NIWA’s withholding of the BoM review – by judicial decree the BoM evidence (or an adverse inference for its deliberate omission) goes to the heart of determining the entire case.

Getting the Legal Benefit of the Hidden BoM Peer Review

By any reading of Venning’s judgment it is clear there can be no dispute that BoM’s evidence would meets Venning’s high bar criteria as “expert” testimony. New Zealand’s Law Commission may be about the come to rescue if it decides later this year that NZ should come into step with other common law nations to be bound by the principle that “it is not contrary to a defendant’s rights for a fact finder to draw a logical inference from a defendant’s failure to provide evidence in circumstances where he or she would be expected to do so. “ [4.]

If this reasoning had been cogently applied in Venning’s court a wholly different outcome may have ensued and the Trompert Principle could come to the fore while the Justice Ministry deliberates over the Law Commission’s proposals. Already the Law Commission has taken particular interest in what the European Court of Human Rights (ECHR) has adopted on this issue. The ECHR has held that drawing a negative inference from a defendant’s silence or withholding of evidence was not unreasonable nor in breach of Section 6 of the European Convention [5.]

Defeating Defendant’s Claim on the Public Interest Immunity Test

Whether we apply Trompert (id.) or some incarnation of ECHR’s approach we will see paragraph 306 of the affidavit of NIWA’s chief climatologist Dr. Wratt in a very different light if he persists in his claim that the BoM review evidence was “confidential, privileged, and subject to public interest immunity.”  Even raising the public interest immunity defense puts Wratt in direct conflict with NIWA’s duties under the Public Records Act (2005). The record in this case clearly proves that NIWA has not applied for, or obtained a Public-interest immunity (PII) certificate from Parliament. This suggests that this gambit by Wratt is a “last-minute” ruse and appears disingenuous in light of the fact that the BoM evidence has been in the possession of NIWA for over a year. So “last minute” is Wratt’s PII gambit that it appears to have completely bypassed Venning.

This belated public interest immunity defense argument can be challenged on two fronts (a) what is the context? And (b) how is such evidence ordinarily regarded under existing applicable laws and regulations, both in NZ and other comparable common law jurisdictions (e.g. U.K).

(a) The Context of the Public Immunity Defense Claim:

A public interest immunity certificate (PII) is intended as a government gagging order to protect official secrets. In New Zealand, the relevant legislation on this is the Official Information Act 1982. The Act implemented a general policy of openness regarding official documents and replaced the Official Secrets Act. NIWA is a Crown Research Institute (CRI), in effect a private company wholly owned by Parliament with a duty to be “financially viable” and operated on commercial lines. There is nothing in and of itself inherently harmful to the public interest in climate data and records held by NIWA or BoM.

The Trust may now pursue a line of questioning to adduce why NIWA did not make the case for PII at the time BoM reported its findings. NIWA appears to have had possession of the BoM evidence for over a year. What undisclosed facts or circumstances now suddenly render it “secret”? Moreover, what level of PII classification has it/will it been given (if at any) and when was the PII certificate granted/applied for (if ever)? All such questions will tie the government in further knots if it is seeking to perpetrate a smoke screen with this  public immunity defense flannel. The Trust’s legal team may be well advised to immediately file a freedom of information (FOI) request to get to the bottom of the phantom PII claim because nowhere in Venning’s decision does the court address the public immunity interest privilege.

Absent any discussion in Venning’s decision  about this  PII ploy we do know – as from August 2011 – that the NZ government committed itself to a Declaration on Open and Transparent Government. So when does John Key’s government intend to come clean over this new NIWA subterfuge? In this regard, perhaps the Prime Minister could be pressed to explain why the minister for NIWA gave an undertaking that the BoM review was commissioned expressly for publication in a journal and thus available for public scrutiny. To prevail at trial with its new “secret science” stance NIWA will be challenged to provide compelling reasons why it ex post facto sought this bizarre defense when at the outset it did not indicate that any such climate data would be “classified.” Perhaps the Trust should also now consider putting these issues to the New Zealand Chief Ombudsman for adjudication.

(b) Freedom of Information Laws Not Intended for Climate Data

Contrast and compare this NIWA PII fiasco with the situation in Britain in 2010 during the Climategate controversy when it was established that climate records and science methodology are not state secrets. Then Professor Phil Jones of the University of East Anglia (UEA) was found to have refused to comply with freedom of information (FOI) requests and, as with NIWA, intentionally withheld and/or destroyed data. The UK’s Information Commissioner’s Office (ICO) affirmed that climate data was not protected information. They found that UEA was required to release  all such data upon FOI requests and that Jones had breached the statute. UEA’s chief climatologist only escaped criminal charges because the short (six month) statute of limitations had already expired.

With the ICO/Jones precedent established it would seem untenable for the NIWA (but more pointedly, NIWA’s owners, the NZ government) to justify any claim for privilege to withhold the BoM review as per Section 27(3) of the Crown Proceedings Act (1950) or any other statute. Moreover, in its publication, ‘The Privilege Against Self-Incrimination’  the Law Commission proposes that the privilege should not protect documents already in existence before the demand for information is made (i.e. the BoM review). We will see how the commission speaks on this finer detail once it publishes its final report. If the Law Commission recommends an approach in line with that of the ICO in England, any such documentation ought to be treated on the same basis as real evidence, which is not normally within the scope of the privilege.

Next Step: Serving NIWA with a Mandamus Petition?

To unravel this tawdry web of deception the Kiwi skeptics may now wish to consider filing what is known as a mandamus petition. A mandamus is a remarkable legal tool to force a government agency such as NIWA to comply with its own regulations. As indicated in my prior articles, a mandamus petition is a formal request for a court hearing independent of any judicial proceeding. Generally, a mandamus petition seeks an order from a court “to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.” [6.]

Justice Venning’s Failures and Omissions

In his decision [at 183] Justice Venning ruled that NIWA had vindicated its methods  as per the evidence of BoM’s short and ambiguous letter. But didn’t NIWA declare it did not intend to rely on the BoM evidence? It appears that Venning simply went along with whatever Dr. Wratt said about the BoM review – known to have comprised about 30 pages. Without examination of BoM’s evidence how could Venning rule that it was not adverse to the defendants? Venning merely opines that NIWA discharged its duty “in accordance with recognised scientific opinion.”  This is a misleading and unqualified statement and permits NIWA to have their cake and eat it, which is unjust. Venning is discredited as much for what it doesn’t say as for what it does. It does not declare that the court even made a cursory examination this supposedly “secret” evidence ex parte, in camera. Nor did Venning’s decision utter a single word on Wratt’s invoking of  the public immunity interest defense. These errors and omissions alone render this judicial review incomplete and thereby open the door for the Trust to justly pursue a mandamus challenge.

Further reasons supportive of a fresh writ include Venning’s explicit statements that he was adopting a lax approach – as affirmed when he stated, “a less intensive review can be appropriate.” As  one Australian attorney following the case, Val Majkus, points out, “The ‘less intensive review’ option was the option His Honour adopted in this case.” [7.]

To this end the court applied no test other than to take Dr Wratt’s word for it that “best practice” had been followed. In addition, the court declined to state that it had addressed the entire 30-page BoM review.  As such, it may be inferred that Venning merely examined the covering letter. At [144] Venning noted that only one climate scientist, Dr. Mullen, provided a statistical opinion for NIWA. While at [143] Venning failed to  even acknowledge the evidence of the three professional statistical reviewers of the Statistical Audit. Yet NIWA submitted that the highest of tests should apply and, likewise, the plaintiffs would not disagree.

In the light of these facts the determination of Venning [at 183] that the court rules NIWA applied “best practice” is proven to be  arbitrary and capricious being both subjective and incomplete. That the judge decided that the plaintiffs were unqualified is irrelevant to the scientific debate, which is more properly resolved with full disclosure of all the evidence. Therefore, Venning’s decision poses more questions than it answers. As such it is incomplete and should be re-visited and possibly overturned upon the conferring of a mandamus hearing (id.). The Trust has shown it has the stamina and acumen to sustain a protracted legal fight. I’m sure it will welcome all the support and encouragement fellow skeptics can offer.

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[1.] From Trompert v Police [1985] 1 NZLR 357 “…that in summary proceedings where a prima facie case has been established, the failure of the defendant to give an explanation when he might naturally be expected to do so may be taken into account in determining the weight to be given to the evidence.”

[2.]Purdie v Maxwell [1960] NZLR 599

[3.] R v Butler [1992] 2 NZLR 599.

[4.] Supplementary Legal Consultation Issue Adverse Inference from Defendant’s Failure to Give Evidence; NZ Ministry of Justice, Law Commission Report (February 19, 2012), Page 2; para: 7.

[5.] Averell v United Kingdom (2001) 31 EHRR 36. The Court held that drawing such inferences did not contravene the fair trial rights embodies in Art 6(1), or the presumption of innocence in 6(2).

[6.] Garner, B.A., Black’s Law Dictionary, p. 980, 8th Ed., St. Paul, USA, 2004.

[7.] Majkus, V., reader commentary, ‘Climate Conversation Group,’ September 10, 2012 at 6:28 pm, http://www.climateconversation.wordshine.co.nz.