New Zealand skeptics of man-made global warming score historic legal victory as discredited government climate scientists perform U-turn and refuse to allow a third party peer-review report of official temperature adjustments to be shown in court. Skeptic lawyers will consider a move for sanctions that should prove fatal to government’s case.
New Zealand’s National Institute of Water and Atmospheric Research (NIWA) are reeling after what may prove a fatally embarrassing admission that it is breaking a solemn undertaking given to parliament. NIWA had assured ministers that it would disclose a third party peer-reviewed report of its science for courtroom verification as part of its defense against a petition in the case of NZ Skeptics-v-NIWA.
NIWA’s decision renders an almighty self-inflicted wound to the government agency’s already dire credibility. But worse, the move will be regarded as contempt of court and thus permits the court to grant the plaintiff’s motions for punitive sanctions, including summary judgment. As such, this would bring a swift victory for skeptics with profound legal ramifications around the world. In the sparsely-measured southern hemisphere the New Zealand climate data is critical to claims about a verified global temperature record.
At a stroke this case may affirm that up to one quarter of our planet’s climate records have been fraudulently audited. As such this provides compelling legal ammunition to other pending/ongoing lawsuits that have arisen in the aftermath of the Climategate scandal. Immediate ramifications will be felt in Canada where popular skeptic climatologist Dr. Tim Ball is defending two vexatious libel suits against IPCC climatologists. Of those cases the one most likely to be impacted is that of Andrew Weaver-v-Tim Ball currently underway in the British Columbia Supreme Court. Weaver was lead author of a chapter on Global Climate Projections in the Intergovernmental Panel on Climate Change‘s report Climate Change 2007: The Physical Science Basis . Weaver took exception to Ball’s widely-published denouncements of cherry-picking models.
Last year NIWA gave an undertaking to the Kiwi Parliament that it would permit external peer-review by scientists from Australia’s Bureau of Meteorology (BoM). This evidence was to be presented to the court to help resolve a drawn out legal battle to prove whether or not NIWA had cooked the country’s climate books. Lawyers for the jubilant skeptics now can motion for an adverse inference against the defendants on the grounds that they intentionally have “spoliated” the evidence (spoliation is the withholding/destroying of evidence).
As with the Kiwi case, over in Canada Tim Ball is having a hard time getting his court adversaries to be forthcoming in releasing their hidden data and records. As in any common law jurisdiction, when a litigant refuses to comply with the opposing party’s motions for disclosure then spoliation doctrine comes into play. Persistent refusal by any party in a lawsuit to hand over evidence on request renders them liable to severe sanctions. As with his Kiwi counterparts Ball will be hoping to win the adverse inference. If granted in these cases the jury will be directed to rule that the party withholding the evidence has done so “from a consciousness of guilt.” In other words, the juries will be directed to rule that climatologists refused to disclose the evidence because to do so would prove they intentionally falsified the climate records to get a predetermined outcome.
A jubilant Richard Treadgold, one of the skeptics involved in the case writes: ”This boils down to a confession to the Court that NIWA has no evidence to show that the BoM approves of NIWA’s review. NIWA does not even bother to present the ineffectual BoM covering letter at page 15 of the Review, for it expresses no approval of the report – though NIWA claims it does.”
But why is this victory in New Zealand so important in the world context?
Well, alarmists in the UN’s IPCC have touted the NIWA record, known widely as the Seven Station Series (7SS), Eleven Station Series (11SS), and NZTR, as proof of antipodean man-made climate warming. These number sets, along with the discredited Australian (BOM) records, represent the cornerstone of Australasia/South Pacific (Oceania) warming. That’s an area that constitutes two of our planet’s eight terrestrial ecozones; or, one quarter of the world’s ‘official’ climate record. In effect, this is a monumental blow to the legal validity of 25 percent of all the world’s climate records. Richard Treadgold has more of the details in ‘Affidavits are for ever’ (August 1, 2012)
Back Story to Kiwi Skeptic Glory
In August 2010 by deft use of the court system Kiwi skeptics scored their first major victory over NIWA – a pro-green government agency – when the government abandoned any claim the nation had an “official” climate record.
At the time, Bryan Leyland, spokesman for the skeptics said, “The New Zealand Met Service record shows no warming during the last century, but NIWA has adopted a series of invariably downward adjustments in the period prior to World War 2.” He then explained that by fiddling the old temperatures down NIWA fabricated “a huge bounce-back of over 1°C in the first half of the century.”
As we have seen in most English-speaking nations, an eco- fascist element within government has sought to impose upon their nation a tax regime premised on adjusted (cherry-picked) climate data. In every instance, when challenged under freedom of information laws to justify their numbers government scientists have not complied. Each time suspicion that climate data has been manipulated is confirmed when the evidence is unethically kept locked out of public view. Extraordinarily, on each occasion these “civil servants” insist their fiddled climate numbers are more reliable than all past records and actual thermometer readings that invariably show no evidence whatsoever of any human signal in climate.
In 2009 skeptics of the Climate Conversation Group (CCG) really got the ball rolling when they published their landmark review ‘Are we feeling warmer yet’ to demonstrate tha NIWA had fiddled the raw temperatures in a series of “adjustments” that created a fake warming trend of 1°C. When CCG tried to get NIWA to release the official (taxpayer-funded) data they hit a bureaucratic brick wall.
At the time barrister for CCG, Barry Brill, characterized NIWA’s approach to freedom of information requests as “defensive and obstructive.” Protracted legal wrangling then ensued resulting in NIWA disowning any such “official” climate record insisting the data was unofficial and used only for internal purposes. That’s despite the fact there is an official acronym for it and government literature acknowledges that the IPCC used such data to trumpet its own bogus claims.
But since 1999 NIWA had been putting out a temperature record for NZ whenever it was asked to justify what evidence it had to prove that temperatures in NZ had been rising in accord with claims about man-made global warming.
Of course, when you’re career and political goals depends on creating narrative of warming it doesn’t help your case when skeptics can demonstrate that you’ve dishonestly manufactured a warming trend in your “homogenized” presentation that is a corruption of actual temperatures that prove a cooling trend.
The skeptics took their case to court and the protracted proceedings culminated in a compromise whereby NIWA agreed to allow only scientists from Australia’s Bureau of Meteorology (BoM) to “peer-review” their data in secret. CCG agreed to abide by the BOM findings and have them put before the court.
But the courtroom farce deepened last month (July, 2012) when, at the eleventh hour, NIWA desperately opposed the admissibility of the BOM review they had asked for. Lawyers for the plaintiffs (CCG) responded:
“NIWA now goes so far as to claim that climate science exchanges between public agencies (both subject to Freedom of Information statutes) are too secret to be seen by this Court. This claim has no credibility, and I invite the Court to draw an adverse inference from NIWA’s obstructive behaviour. The obvious inference is that the BOM found NIWA’s unprecedented methodology to be fatally flawed. As the defects remain undisclosed, it would be dangerous for this Court to accept NIWA’s unsupported opinions on any of the scientific matters in dispute.”
Not only would BOM not back NIWA in this farcical case but one of the world’s most zealous global warming climatologists, Kevin Trenberth wouldn’t back them either! So now NIWA has got itself into an impossible legal corner where the only likely due process outcome is the award of the adverse inference the skeptic lawyers have motioned for – and as stated above we all know what that means.
For a lay person’s guide to what “adverse inference” means see here.
Updated (August 3, 2012):
Richard Treadgold has come back to point out one or two apparent presumptions in my piece. Treadgold expresses his fears, “We run a distinct risk of contempt of court if we appear to endorse the wild claims about the state of the case. ” However, Treadgold is incorrect because sub judice restrictions do not apply to public policy civil proceedings where the respondent is a government agency. Moreover, I have sought no input from Treadgold or anyone involved in the case.
I would like to reiterate that my assessment of the facts is correct and my analysis of the doctrine of spoliation stands. Perhaps the doctrine is not yet fully understood and applied in Auckland as it now is in the US and UK. But the courts in NZ will surely come up to speed on this.
The inescapable facts in this case are that six weeks after CCG’s petition for judicial review NIWA sent its data to BoM so that scientists from the Australian Bureau of Meteorology (BoM) would serve as a third party auditor. This was instigated upon the February 2010 direction of NIWA’s minister (the Hon. Dr Wayne Mapp). Mapp gave undertakings that BoM would independently audit NIWA’s numbers and the confidence levels of the adjustments would be calculated and disclosed.
If Mapp (and NIWA) now reneges on this undertaking then the court cannot make any other finding than NIWA (and Mapp) are withholding the BoM audit from “a consciousness of guilt.” As such, NIWA (under Mapp’s instruction) is perpetrating a willful spoliation after Mapp (and NIWA) have staked their credibility on the BoM review. This goes to the heart of determining whether malfeasance has been committed. The duty of the court is to now punish the spoliator.
Perhaps the spoliation doctrine is slightly more advanced in its application in the U.S. where I have most experience of it. But an international scandal will befall the NZ government if the court does not accept that an adverse inference determination must be the logical outcome of this corrupt government U-turn. I hope Richard Treadgold and his bold New Zealand skeptic counterparts seize their opportunity for victory and go all out to compel the court to apply the spoliation doctrine to the fullest extent of the law.