Final day of hearing
Richard Treadgold | July 21, 2012My apologies for my tardiness. I’ve been taking care of business, family and self. Now I can at last post a brief description of the final day of the hearing.
But first, please join me in a round of bashful giggling aimed at me. Why? I never knew that Wednesday, the day before this last day, had been scheduled as a rest day, and nobody turned up. Which renders my apology for not turning up quite redundant, I think. Well, let’s move on.
On this Thursday morning Justin Smith, counsel for the defendant, NIWA, presented their defence to the Coalition’s statement of claim. When I arrived after lunch he was presenting legal authorities concerning crown bodies, or state-owned enterprises. He spoke in a remarkably soft voice and, as I was seated behind him, that meant I failed to pick up a good three-quarters of what he said.
He must have been responding to our charge that NIWA did not perform its statutory duty. He said: “They’re not duties, they’re not called duties, they’re called operating principles.” This seemed to come from the current legislation, or recent decisions.
Our culture is steeped in the idea of duty. It occurred to me that one way to sidestep the traditional notion of duty is to redefine them in the modern language of business studies. It’s difficult to claim with detectable gravitas that someone did not perform “according to their operating principles.” One would hardly be taken seriously. Then again, if one had been brought up according to operating principles perhaps such a charge would be considered serious.
Mr Smith listed authorities describing the responsibilities of crown entities. He said the question of which methodology is right is science. Remember that both sides accept that the court will not rule on matters of science. The defendant seemed anxious to craft many things as scientific so as to sequester them from the judicial review we seek.
He submitted that NIWA had answered every allegation made by the plaintiff and repeated that the court is not situated to decide matters of climate science. In briefly considering the implications of being found in breach of their duty, he observed that no human rights were at risk. I gave a wry grin; a frequent cry against western industrialised countries is that in causing global warming they seriously breach human rights in developing nations.
There was nothing, he said, to justify a more intense standard of review and a appropriate level of review is nothing more than… did he say “common sense”? I don’t know. Probably.
Trenberth in his affidavit said there’s no one correct method of adjusting for inhomogeneities. My Smith argued that NIWA must follow the consensus by adjusting temperatures.
On Bob Dedekind’s evidence, Smith said his statistical expertise was unquestioned, but suggested his evidence was flawed by inadequate climate knowledge, meaning he failed to see the significance of a short period of comparison (K=2). They say he’s not a climate expert and there are “significant issues” with his evidence.
Terry Sissons then had the opportunity to answer some of the points raised by Smith and not specifically covered in the plaintiff’s earlier presentation.
He said they’d concentrated on whether RS93 was used. The Met Service work in 1992 cited in Salinger 1992 has never been published. The description of the modern Hokitika adjustments published on NIWA’s web site in February 2010 describes the methodology for all stations in the seven station series (7SS), although from 1992 to 2010 the 7SS was unchanged.
The answers to parliamentary questions said the Hokitika analysis was done to show the methodology and all seven were subject to a standard treatment, whatever it was. It’s unknown where the adjustments came from and no evidence of the adjustments made to the original 7SS. There’s a lack of scientific consensus for whatever method was used.
Dr Wratt’s opinion reduces to this: NIWA was entitled to use the methodology used.
There was some more discussion of contradictions in NIWA’s adjustments, such as that 90% of pre-1975 adjustments favour warming.
NEXT: a short overview of our case.
[...] from the defense: He must have been responding to our charge that NIWA did not perform its statutory duty. He said: [...]
Again thanks for taking the time to give us the run down RT (and re Wednesday. In Simpsons vernacular, Hah Hah).
It’s odd that both sides agree that the court will not rule on questions of science but here’s Smith saying in respect to Bob D’s evidence (in your words):-
Apparently then, three professional statisticians failed to do so as well. The reasons for the supposed failure Smith gives as:-
It’s a statistical question within the scope of science and not of the scientific discipline. Judges have some guidance in that. I came across this:-
Reference Manual on Scientific Evidence
Second Edition
Federal Judicial Center 2000
http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/sciman00.pdf
From the Reference Guide on Statistics in regard to Bob D’s expertise:-
Sounds like Bob D to me. In addition to that there’s the added expertise of three professional statistician reviewers. Given that, I think the judge WILL rule (one way or the other) on the question of the statistical merit of the ‘Statistical Audit of the NIWA 7-Station Review’
Apparently a legal principle of long standing. No doubt springing from a long, rancorous, insurmountable rivalry.
Yes, and NIWA agreed (concerning statistical skills).
Yes, and there must be countless areas of overlap where the matter might be drawn in terms of the substantive science or not.
General principles of operation – Finnish police
The Police Act requires that the police discharge their duties in an appropriate and impartial manner and seek to promote a conciliatory spirit. The actions of the police must not cause any more damage or inconvenience than is necessary to carry out the duty at hand. Measures taken must be justifiable in relation to the importance and urgency of the duty and the other factors affecting overall assessment of the situation.
The Police Act also requires that the police endeavour to maintain public order and security primarily through issuing advice, requests and orders. The police are not entitled to infringe on people’s rights any more than is necessary to carry out their duties.
https://www.poliisi.fi/poliisi/home.nsf/0/09FAAB9198D854BCC2256BB8003FF23E?opendocument
You certainly “come across” some interesting material, RC. This is good and shows some possibility of “operating principles” and “duty” cohabiting, or at least occupying the same paragraph. Though it pleases the Finns, I suspect the authority it might carry with a Kiwi court would be small.
“I’m suspect the authority it might carry with a Kiwi court would be small”
Yes that’s a wider issue too RT, what overseas legal precedents, rulings, opinions etc can the judge bind his judgment to (if that’s how to put it)? I think there may be limitations and it would be good for someone who really does know to chip in.
For example, I don’t think a precedent from one US State is binding in another US State but I could be wrong.
BTW, I wasn’t advancing the Finnish Police example as something that the judge would consider legally but just to show that you don’t have to look very far (first try) to find something contrary to Smith’s reasoning in that regard
It might turn out that Justice Venning establishes legal precedent in this case.
That would put the cat among the GISS, NCDC, CRU, BOM pigeons.
Fair enough. There were many remarks from both learned counsel clearly aimed “off stage” as it were, into a part of the debating chamber visible only to the judge and the QCs. I don’t know how important this little battle might have been in the overall conflict.
It would also be interesting to know how liberal we (or I, as the nominal publisher) can be with our public comments on a matter which is obviously sub judice. I’m pretty sure the judge indicated he wasn’t a fan of the climate discussion one way or the other, so he won’t be visiting here and we’re not likely to influence his opinion. But there might be other considerations. Anyone?
BOM made “weather dependent” adjustments in ACORN – SAT.
I’m sure that will get an airing in court one day and a NZCSET v NIWA precedent would have bearing on that.
“…a part of the debating chamber visible only to the judge and the QCs”
Who was there? Leads me to think that the judge may have enlisted observers e.g. retired or practicing QCs or Judges, maybe legal researchers with whom to consult and provide assistance.
The High Court is (among other things) set up to deal with complexity and the above arrangement would be one way to deal with it. Having only one judge is asking a great deal IMO. For example the US EPA case (not necessarily more complex, possibly less so) was presided over by three judges of which one was Chief Judge and the other two were District Court judges.
It’s possible too that Justice Venning was Chief Judge and as in the EPA case, there were two other High/District Court judges presiding in some secondary way..
Sorry, don’t take it literally, RC. Justice Venning was sitting alone (although who knows which insiders might be taking an interest in perusing the transcripts behind the scenes). No, I meant the invisible intellectual debating chamber within the court, where numerous highly interesting legal topics are indicated by key words and phrases and the main concern is the development of the law, high above the issue of the moment.
Sciblogs have a podcast on this case, or at least part of the Podcast is about it.
You may find the show notes links interesting
http://sciblogs.co.nz/tosp/2012/07/20/podcast-science-on-trial/
James Renwick’s Victoria lecture’s a hoot
“At least 4 C warming looking likely this century”
It better get a move on, we haven’t had any yet.
Presumably this SciBlogs podcast is a taxpayer funded entity via the SMC
I asked Peter Griffin in comments why he didn’t interview anyone from the coalition and he responded thus
Sigh. Although it could be worse – he could have asked Nick to sum up the issues.
[...] from the defense: He must have been responding to our charge that NIWA did not perform its statutory duty. He said: [...]