Global warming skeptics lose key Kiwi courtroom battle. Ruling permits government climatologists to opt out of complying with freedom of information laws concerning their country’s cooked climate books. But the judge involved holds a substantial carbon trading interest which supports accusations of a conflict of interest precluding his participation.
Auckland High Court Justice Geoffrey J. Venning has triggered a fresh climate scandal after it was revealed he owns a forest company (Tahakopa) that is registered under the Emission Trading Scheme to sell carbon credits for profit. The judge had just given a shock ruling that “the methodology applied by NIWA was in accordance with internationally recognised and credible scientific methodology.”
With his track record in controversy Venning is no stranger to scandal having already been subjected to investigation by the country’s Judicial Conduct Commissioner on conflict of interest charges. Ordinarily, any self-respecting judge would recuse himself from such a watershed judicial review of his nation’s disputed climate record to ensure justice is not only served, but is seen to be served. That won’t happen here. Instead Justice Venning boldly orchestrated more of a tragic comedy than a confluence of impartial judicial wisdom. One well-placed barrister is less than complimentary: “He [Venning] hasn’t met a law yet that he couldn’t breach with a smile on his face.”
This ruling is especially inflammatory because it gives judicial authority for Venning’s government employers to keep secret the methods used by (government) climatologists to tack on an unsubstantiated and additional 0.5C of warming onto the nation’s temperature record. Plaintiffs in the case, the New Zealand Climate Science Education Trust (NZCET) have yet to announce how they will respond.
NZCET have been arguing since 2009 that their own experts’ examination of the climate records indicated that NIWA had used statistical tricks. These seem to have been developed in an unpublished and unverified student thesis from 1981 to massage the raw numbers to fit a political agenda as indicated in the graphs below.
Earlier in the battle NZCET had scored what seemed a decisive victory when NIWA was forced to disavow it’s own National Temperature Records after compelling evidence suggested shenanigans by James (now Dr.) Salinger, the student author of the missing thesis. Salinger moved to New Zealand from England after working at the University of East Anglia (UEA). The UEA was discredited after it’s chief climatologist admitted misconduct in the Climategate scandal.
Thereafter, Kiwigate showed an eerily similar pattern to Climategate as more government climatologists were exposed for using dubious statistical techniques and hiding/destroying data. As the controversy grew NZ’s National Institute for Water and Atmospheric Research (NIWA) was compelled to approach the Australian Bureau of Meteorology (BoM) to undertake an independent external peer review of the methodology and documentation of the Seven Station Temperature Series (7SS) data file. But then BoM were made to appear as if they had fudged their task when there was no publication of findings or NZ governmental confirmation that there had been a full and formal ratification of NIWA’s numbers beyond one short and ambiguous letter.
The (still) unanswered question posed in this mockery of a judicial review is whether NIWA had based its now officially “unofficial” temperature record (using the 7SS Temperature Series) on hidden methods proposed in an unverified student’s thesis or rather by the more credible and verifiable process known as RS93. Voters have a right to know because the NZ government has used the 7SS Temperature Series to guide national policy on climate.
The plaintiffs had petitioned for this judicial review alleging NIWA failed to apply the best methodology in compiling data for the 7SS record. But NIWA disagreed and largely upon the testimony of two NIWA government employees Justice Venning threw out the Trust’s case.
Venning’s Judgment Under the Microscope
So let’s take a closer look at the decision handed down by the High Court of New Zealand (September 7, 2012). From  to  the court adopts an eerily similar approach as was adopted in the U.S. Supreme Court (June 26, 2012) when it likewise confessed to bias in choosing to defer to the opinion of fellow government authorities. In  &  Justice Venning spells it out – the court would give greatest weight to evidence provided by government climatologists. Venning leaves the reader in no doubt he had drawn a clear line between the credibility of “experts” (government climatologists) and “unqualified” analysts (skeptical taxpayers).
The elephant in the room is the crucial third party evidence from Australia’s BoM. Aussie government climatologists became involved after direct Kiwi ministerial intervention. Certainly, since Climategate no one could be left in any doubt that there is often the smell of “pal review” in what passes for peer review in government climatology so it seems incongruous that BoM failed to deliver a shining endorsement of NIWA.
As leading Aussie skeptic blogger Jo Nova noted, “This decision is all the more preposterous given that even the highly questionable Australian BOM obviously didn’t endorse the NIWA methods and after asking for an Australian BOM review, NIWA went to extraordinary lengths to hide that review. Did they hide that review, because it would have lent support to the very evidence the so-called “non-experts” put forward?”
Indeed, Venning’s ruling appears less assured on this aspect and the high court judge mischaracterizes the significance of what is in BoM’s peculiar letter. This raises more questions than it answered and leaves taxpayers no clearer as to what precisely their ministerially-sanctioned “peer review” had ascertained.
Nova adds “What’s unnerving about this is that if “authority” is determined not by behavior, logic or quality of reasoning, but simply by government decree, then the court becomes a de facto arm of the government — because only people who are funded by the government (all “climate scientists” are funded by government) can give evidence that the court recognizes. Who can criticize and hold government or statutory authorities to proper standards? Not the citizens, for they are not “qualified.””
On the plus side at  the court did accept there is no controversy that NIWA’s temperature is unofficial i.e. it has not to be relied upon as it carries no authority.
Spoliation Doctrine Not Put to Good Use
The Trust’s defeated legal team will likely be kicking themselves that they didn’t achieve more through robust use of their nation’s freedom of information rules and adept application of spoliation doctrine. Now contrast and compare at how American attorney, Chris Horner over in the U.S. is currently using FOIA as a judicial can opener to expose his country’s mendacious alphabet soup data riggers.
Horner has just announced he has the national weather agency (NOAA) in a spin after their failure even to acknowledge his FOIA request. Under US law this may constitute constructive refusal, and Horner can now move to seek an immediate judicial remedy (including a negative inference as per spoliation doctrine). In all common law nations the spoliation doctrine is in place. It’s just that in one or two countries (like New Zealand) litigators and courts are yet to get up to speed.
So what is spoliation doctrine and how could it have made a difference down under? In legal parlance spoliation doctrine addresses the intentional/accidental withholding/destruction of evidence whereby a party in litigation is put at a disadvantage because the opposing party will not/cannot hand over evidence it had responsibility to preserve and present.
In English-speaking, common law nations the loss/destruction of key evidence is sanctionable by the court – such sanctions are mandatory upon motion and judges have no discretion as to their application. Depending on the severity and relevance of the lost evidence judges are required to mete out an appropriate remedy including a negative inference (such that the lost/destroyed evidence shall be ruled as being favorable to the party who had sought disclosure of that evidence).
NIWA appear not to have complied with it’s country’s version of FOI. In NIWA’s case – with willful refusal to hand over climate data – the plaintiff’s ought to have motioned the court for the spoliation inference upon such bad faith. This would have compelled Venning to give plaintiff relief by applying punitive sanctions against NIWA. The plaintiff’s lawyers appear not to have pressed this issue and this seems baffling to me and other legal analysts. If they had done so then, at minimum, Venning would be duty bound to rule that the missing NIWA data and BoM peer-review evidence was favorable to NZCET. Once Venning had comported with the spoliation mandate that there would be little if any hope of a judicial victory for NIWA.
Looking to the Future
The nations most advanced in the use of this superb legal tool are the U.S. and U.K While – Canada where Dr. Tim Ball is on track to defeat Michael hockey stick Mann – is fast coming up to speed. [1.] I’ve regularly commented as to how the modus operandi of government researchers in the US, UK, Australia, NZ and Canada appears to follow the same pattern of FOIA refusals and evidence loss/destruction and I fear the Trust missed a trick in not applying the spoliation doctrine to pressure Venning over NIWA’s willful withholding of evidence that could have been the key to a skeptic victory.
Kiwigate, as with Climategate, concerns obvious scientific failings in the mishandling of data needed to verify scientific conclusions about a marked warming trend unsupported by the raw temperature data. Just as with England’s Professor Phil ‘Climategate’ Jones in New Zealand Salinger had let his dog eat his data. Without the necessary metadata to hand to back up claims for a steeper warming trend taxpayers were supposed to take the word of a wagon-circling clique that western nations should compliantly adopt crippling taxes to cut carbon dioxide emissions.
But there is no definitive international standard of excellence or a set procedure for processing raw temperatures from a multitude of temperature stations at different times and various periods. Instead of ruminating as to why taxpayer funded climatologists would want to deny public access to publicly paid for science data Venning instead determined his role was to preserve a cozy climate coterie – what’s secret stays secret in Justice Venning’s court.
The Trust should take heart that the NZ government and NIWA have been forced to renounce any claims about an “official climate record. In the light of the great significance the court has placed in “expert” testimony it makes it imperative that full discovery is pursued over what is actually behind BoM’s bizarre letter (id.). I would urge the Trust to pursue further FOI requests to shame NIWA into divulging the results of the BoM’s withheld analysis. The very fact that the BoM review is as closely guarded as NIWA’s original data crunching methods suggests something huge is yet to be uncovered.
Helpfully in this regard is what is now in the court record . NIWA is affirmed as admitting that it’s data for the more recent period 1955-1994 shows a warming trend of a mere of 0.28 degrees Celsius. While the warming trend from the earlier period 1931-1954 shows 1.84 degrees based only on three or four stations. So much for those hysterical and unfounded claims about an increase in “catastrophic” man-made warming. As with the original Watergate scandal – it is the cover up of the crime that proves the criminal intent of the proponents.
Adding its own significance is NZCSET’s own Statistical Audit that Justice Venning didn’t set aside, disallow, or nullify. Thus it stands pristine and ready to be used again when required. For sure, NIWA cannot refute the NZCSET Audit for not being scientifically credible because they can’t/won’t apply their own 7SS method and prove it to be of superior scientific rigor to the NZCSET Audit. And while NIWA won’t come clean about its dodgy data no one need have any faith in any further unsubstantiated government claims about this elusive anthropogenic global warming.
All this distills neatly the greatest disservice Venning did for New Zealand taxpayers. Throughout he has been oblivious to the need for scientists to openly share their data and methods with those who paid for it. Perhaps taxpayers via grassroots political lobbying could achieve more on changing this obstructive mindset than with further litigation.
If full disclosure of the NIWA’s actual methods is not forthcoming by order of the NZ government then New Zealand should not pretend to have an honest and open government. Surely, if the world faces a genuine climate catastrophe what possible excuse can governments and climatologists have to be so reticent about sharing all the evidence if their goal is truly to convince us all that we need to cooperate over emissions cuts?
[1.] As the U.S. Court of Appeals for the Fourth Circuit explained in Silvestri v. General Motors Corp.: “[t]he policy underlying [the] inherent power of the courts [to impose sanctions for spoliation] is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.”