Don't be fooled - the "court challenge" to NIWA's temperature records is very little to do with the law and a lot to do with getting your attention.
It's no secret that I harbour a deep skepticism about the claims, motivations and tactics of those who would deny that anthropocentric global warming/man-made climate change is taking place. See, for instance, the (somewhat heated) comments thread to this Pundit post.
With that declaration of interest on the table, I think the legal basis for the announced court action against the National Institute of Water and Atmospheric Research is (to use a technical term) baloney. And I'm pretty sure the folks behind the claim know it too.
First up, there's the small matter of who the claim technically is being brought by. It's in the name of "", which has only been in existence for a week. Now, the only reason I can think of to set up a charitable trust and then use it as a vehicle to run a court case is to avoid liability for costs should a court decide to award them against you when you lose. In other words, it's hardly a move that screams confidence (not to mention the small ethical matter of the claimants seeking to avoid any potential liability to the taxpayer for the money that will be spent in opposing their little piece of theatre).
Second, on Radio New Zealand this morning the claimant's spokesperson stated that the legal action was being funded and run by members of the "Climate Science Coalition", as one of its members (Barry Brill, actually its chair) is a lawyer. Putting to one side the proverb "he who is his own lawyer has a fool for a client", the fact that the claimants are going up against the full legal resources of a Crown entity without bothering to engage the services of a specialist public lawyer indicates either supreme confidence in one's case or else a reluctance to waste good money on a hopeless cause.
Third, the statement of claim (or, at least the statement of claim as it is presented here) is very long on rhetoric and accusations and very short on legal analysis. It begins by alleging that:
NIWA has statutory duties to undertake climate research efficiently and effectively for the benefit of NZ, pursuing excellence and observing ethical standards, while maintaining full and accurate records.
As far as I can make out (because there are no particulars stated), this (sort of) mixes and matches the principles of operation imposed on NIWA by the Crown Research Institutes Act 1992 with obligations from the Public Records Act 2005. But given that the alleged failures complained of stretch back to 1999, it's difficult to see how the latter legislation is relevant to the failure to record decisions taken at that time. And while the former principles apply in a general sense to NIWA's activities, trying to show that any particular research programme or exercise of judgment in the course of conducting a research programme breaches them will be next to impossible. It requires a court to adjudicate upon matters of scientific expertise in which courts simply are not competent. It would be like asking the scientists at NIWA to pass judgment on whether the court's decision in Re: A.M.M. and K.J.O. was an appropriate judicial use of the interpretative provision in section 6 of the NZBORA.
Finally, there's this little comment by one of those behind the court action, Richard Treadgold:
Yes, finally [the Main Stream Media are paying attention]. It’s good, isn’t it? More people will hear of the existence of a contrary view. Of course, we must remember that this action is about the NZ temperature record (NZTR) and not anthropogenic global warming (AGW).
Still, it’s a step forward, it will give support to climate realists everywhere and we can move on to AGW itself when this little matter is settled. We can hardly discuss the facts of global warming if warming itself is not accurately established.
I'm well aware that litigation and public relations strategies often go hand in hand, and that many times court cases simply are politics by another means. Nevertheless, I still think this is pretty revelatory of the reasoning behind the decision to go to court. Those behind it have been banging on about the alleged NIWA malfeasance for months now. They have convinced various ACT MPs to raise questions in the House. They have issued numerous press releases. And yet their efforts have received scant attention in that much-maligned (but still adoringly pursued) "MSM".
The reason for that indifference seems pretty obvious to me. For one thing, the details of the wrongs that NIWA is alleged to have committed are horribly complicated. But for another, for the critics to be correct in their assertions you need to believe that not only is an entire government department involved in blatantly lying to the public so as to extort more funding for its activities, but that (at least) two National Party Ministers are complicit in covering up that fact. Exactly why they would wish to do so rather than expose massive incompetence and/or malfeasance that took place under the watch of the previous government is then difficult to explain: either they must be complete dolts who both have had the wool pulled over their eyes, or they must be fellow-travelers in the global conspiracy to enslave humanity through the AGW lie.
That's a hard line to sell. But now, with the announcement of court action, there's a new narrative: "NIWA accused of acting unlawfully". Exactly how or why it has done so, and why the Ministers in charge have ignored the matter, largely becomes irrelevant as the story is reframed as "there must be something the matter with what NIWA did or else it wouldn't be going to court."
(At least, that's how some people have chosen, with a faux-wide eyed innocence, to interpret the matter - almost as if they "obviously didn’t think to apply a critical eye to the claims of lobby groups" before cutting-and-pasting at length from a NZPA story on the matter ...)
So in a sense the legal action already is a win, irrespective of what happens when a judge takes a look at it. The fact that it made Morning Report, the pages of many of the country's newspapers and a bunch of the more prominent blog sites (as well as this pretty obscure one) is success in and of itself.
Which is, as I say, all that I think those behind the action really expect to get out of it. Because I'm pretty sure they won't find a receptive ear to their complaints on the bench.