Tag Archives: High Court

Flogging a dead horse – anti-fluoridationists lose in court again

flooging-horse-certificate

This certificate should be awarded to New Health NZ, the NZ Health Trust and the anti-fluoridation movement for not knowing when to give up on the “fluoridation is medicine” myth.

The NZ Court of Appeal has rejected the latest legal attempt by New Zealand anti-fluoridation campaigners to hinder community water fluoridation. You can read a summary of the ruling in the Court’s press release – New Health v South Taranaki District Council. The full Court of Appeal ruling can also be downloaded.

Of course, you might find it boring – it is full of legalese. The appeals (there were three and all were rejected) themselves were  about details – the definition of a medicine and the right of governments to make regulations. But readers might want to reflect on who took the legal action and who paid for it.

follow-the-money

New Health NZ took the High Court actions and appeals. It is an incorporated society set up in 2005 by the The New Zealand Health Trust. This Trust is the lobby group for the “natural”/alternative health industry in New Zealand and is financed by that industry. So, in effect, this legal action was taken by the alternative health industry – and paid for by this industry – which is big business.

We can get some idea of the costs involved from the financial statements of the NZ Health Trust (strangely registered as a charity) and New Health NZ (statements available on the society’s register). Unfortunately, the latest statements only provide information for the 2014 and 2015 financial years – but the legal action is several years old so you can get an idea of the money flows involved.

The NZ health Trust appears to receive grants in the hundreds of thousands per year from the alternative health industry($250,000 in 2014 and $190,000 in 2015). In its turn, it distributed “grants & donations” in the hundreds of thousands (125,000 in 2014 and $130,000 in 2015).

nz-health-trust

New Health NZ received grants of around $100,000 per year ($100,00 in 2014 and $95,000 in 2015). It paid out similar amounts in “Professional and Consultancy Fees” ($95,156 in 2014 and $95,124 in 2015).

new-health-nz

These amounts are of the order required for the legal actions taken by this group.

So here we see a money flow from the “natural”/alternative health industry, through the New Zealand Health Trust to New Health NZ to pay for legal attempts to halt community water fluoridation.

At least, this time, New Health NZ was ordered to pay costs – a sure sign that the court believes their legal actions no longer have any community value.

A sign that they should stop promoting their myth that community water fluoridation is a medicine – they should stop flogging that dead horse.

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Another legal defeat for NZ anti-fluoridation activists

The NZ High Court has thrown out the appeal from an anti-fluoride group against the decision rejecting their request for a decision against community water fluoridation. The original case claimed that fluoridation violated human rights legislation and was beyond the legal power of councils. The rejected appeal claimed that fluoridation was prevented by the medicines act.

Latest in string of defeats

Justice Collin’s decision is just the latest in a string of defeats for the anti-fluoridation movement in New Zealand.

Earlier this year the Hamilton City Council reversed its previous decision to stop fluoridation. This came after a referendum held alongside the 2013 local body elections decisively supported fluoridation. Similar referenda in Hastings and Whakatane also supported fluoridation. The local bodies national conference this year resolved to ask that the fluoridation issue be taken out of councils’ hands and handed over to central government departments. This was also a recommendation from the Parliamentary Health Committee last year.

This current high court junction resulted from an appeal against the High Court 2013 rejection of action by the “natural health” industrial lobby group New Health NZ to prevent fluoridation In South Taranaki. And in August the Royal Society of NZ and the office of the Prime Minister’s Chief Science Advisor released a review of the scientific issues around fluoridation which supported its efficacy and safety. This review was partly commissioned by local bodies and will no doubt strengthen their resolve to resist future pressure from anti-fluoride activists.

All this means that the anti-fluoride organisations had lost much of their credibility with local body councils they formerly had. Serious moves to remove the issue from council consideration also weakens the activist strategy.

Fluoridated water not a medicine

In the current decision Justice Collin’s pointed out that in the Medicine Regulations 1984 “every reference to a medicine in this Schedule applies … only if the concentration of the medicine is greater than 10 milligrams per litre …”.  But, “when fluoride is added to domestic water supplies within the maximum allowable concentration of 1.5 mg/l the concentration of fluoride in domestic water supplies will be well below the concentration threshold required for fluoride to be a medicine in Schedule 1 of the Regulations.”

This “leads to the conclusion that the concentration threshold for fluoride in Schedule 1 of the  Regulations is so vastly higher than the maximum allowable concentration of fluoride in domestic water supplies that, when fluoride is added to domestic water at the authorised levels, it falls outside of the definition of “medicine” in the Act.” However, “fluoride would be a medicine under the Act if it was added to domestic water supplies in concentrations of 10 mg/l or more.”

Corporate backers of anti-fluoride movement lose in NZ High Court.

HC-water

Image Credit: 3 News NZ

New Zealand anti-fluoride activists (and their industry backers) suffered a signficant blow with the release of a High Court Judgement on Friday. This Judgement found that all the arguments used by New Health NZ attempting to prevent fluoridation  of the water supplies in Patea and Waverly had failed.

Readers can download this 43 page judgement – I have included the Summary and Conclusions at the end of this post.

Not about the science

Commenters can easily slip into arguments this is a judgement on the scientific merits or problems of fluoridation. It isn’t.  Justice Rodney Hansen says:

[5] It is important to make it clear at the outset that this judgment is not required to pronounce on the merits of fluoridation. The issues I am required to address concern the power of a local body to fluoridate drinking water supply. That is a legal question which does not require me to canvass or express a view on the arguments for and against fluoridation.

The failed arguments put forward by New Health NZ did not relate to the science but to legal issues. Specifically they argued councils do not have the legal right to make decisions on fluoridation, or if they do this is a breach of the NZ Bill of Rights Act (NZBORA).

Justice Hansen’s judgment that councils do in fact have the right to make decisions on fluoridation is quite detailed – and well beyond my legal ability so I will not comment on it.

Medicine and the right to refuse

Justice Hansen’s  judgments on the NZBORA are clear to the layperson. Inclusion of medical treatment in the NZBORA “was a specific response to the atrocities of the Nazi concentration camps.” However:

[80] In my view, fluoridation cannot be relevantly distinguished from the addition of chlorine or any other substance for the purpose of disinfecting drinking water, a process which itself may lead to the addition of contaminants as the water standards themselves assume. Both processes involve adding a chemical compound to the water. Both are undertaken for the prevention of disease. It is not material that one works by adding something to the water while the other achieves its purpose by taking unwanted organisms out.

[81] The addition of iodine to salt, folic acid to bread and the pasteurisation of milk are, in my view, equivalent interventions made to achieve public health benefits by means which could not be achieved nearly as effectively by medicating the populace individually. . . . All are intended to improve the health of the populace. But they do not, in my view, constitute medical treatment for the purpose of s 11″ [the relevant section of the NZBORA].

Even if the “medication argument” was relevant the “right to refuse” is irrelevant for fluoridation:

“Provided it does not have consequences for public health a person has the right to make even the poorest decisions in respect of their own health. But where the state, either directly or through local government, employs public health interventions, the right is not engaged. Were it otherwise, the individual’s right to refuse would become the individual’s right to decide outcomes for others. It would give any person a right of veto over public health measures which it is not only the right but often the responsibility of local authorities to deliver.”

Appeal – the fly in the ointment?

In principle this should remove any legal or judicial questions that may have concerned councils. They should now be able to go ahead with fluoridation. The Hamilton City Council,  got itself into a mess last year by deciding to stop fluoridation and was then forced into allowing a referendum which showed almost 70% support for fluoridation. The Council delayed putting the referendum result into effect citing the High Court case. They should now have no excuse to ignore the referendum result.

Unfortunately, New Health NZ will appeal the judgment – and this give wriggle-room to anti-fluoridation councillors, and councillors worried they may still yet face costly legal action, to argue that fluoridation remain suspended.

And that is most probably their intention with the appeal. New Health NZ must realise that the thorough judgment really gives them no room to pursue their arguments. But tactically this appeal could continue the hiatus situation faced by Hamilton and other councils. A decision on the appeal could be delayed for another year or so – meanwhile a number of New Zealand cities could be denied the advantages of a well proven and safe social health measure.

That likely motive is politically cynical and I hope the appeal decision will award costs against New Health NZ for that reason. Mind you, a simple analysis of the links of New Health to the corporate interests of the “natural” health industry shows cost is not a problem for them.

The deep pockets of the anti-fluoridationists

A while back I described the links between New Health NZ and the “natural” health industry – see  Who is funding anti-fluoridation High Court action? Specifically, New Health NZ is a creation of the New Zealand Health Trust – a political lobby group financed by the “natural” health industry.

This trust is also registered as a charity – which means we are all subsidising their campaigns via their tax exempt status. (Their charitable status really needs challenging).

However, the financial returns available on the NZ Charities Register shows large grants to the trust which in effect pay for their legal expenses (see figure below for year ended 31 March 2013).

One report estimated the cost to the South Taranaki District Council of this High Court action was about $200,000. Relatively small change for the corporate funders of the NZ health Trust/New Health NZ – but certainly large enough to scare individual councillors.

The government should recognise that such a David vs Goliath situation gives an unfair advantage to these corporate interests. This, together with a highly motivated and organised group of anti-fluoride activists enables individual councils to be picked off one by one by a combination of political and financial pressure.

Most councils would prefer the responsibility of decisions on fluoridation be handed over to central government. The find the continual re-litigation of the issue by anti-fluoride activists frustrating, time-consuming and expensive. So far the current government has resisted these call. Perhaps, though, a useful interim step would be for central government to indemnify local bodies on the fluoridation issue.

This would remove the financial pressure of the sort used by the NZ Health Trust/New Health NZ on cash-strapped local councils.  The anti-fluoride movement would then be forced to deal with central bodies which have more substantial financial backing and better legal and scientific resources.


Judgement summary and conclusions

[116] New Health has challenged the Council’s decision to fluoridate the drinking water of Patea and Waverley on the grounds that:

(a) There was no legal power to do so.
(b) If there was power, its exercise by the Council was a breach of the right to refuse medical treatment in s 11 of NZBORA.
(c) In making the decision, the Council failed to take into account relevant considerations.

[117] I have rejected all grounds of challenge. I have concluded that there is implied power to fluoridate in the LGA [Local Government Act] 2002, as there had been in the antecedent legislation, the Municipal Corporations Act 1954 and the LGA 1974. The Health Act confirms that fluoride may be added to drinking water in accordance with drinking water standards issued under that Act. The power to fluoridate drinking water is not a regulatory function; it does not require express authority. Nor does a decision to fluoridate require the consent of the Minister of Health under the Medicines Act as water is not a food for the purpose of that Act.

[118] I have concluded that the fluoridation of water is not medical treatment for the purpose of s 11 of NZBORA [NZ Bill of Rights Act]. While I accept that fluoridation has a therapeutic purpose, I conclude that the means by which the purpose is effected does not constitute medical treatment. I am of the view that medical treatment is confined to direct interference with the body or state of mind of an individual and does not extend to public health interventions delivered to the inhabitants of a particular locality or the population at large. I see no material distinction between fluoridation and other established public health measures such as chlorination of water or the addition of iodine to salt.

[119] In the event that, contrary to my view, fluoridation does engage the right to refuse medical treatment, I discuss whether in terms of s 5 of NZBORA the power to fluoridate is a justified curtailment of the right to refuse medical treatment. I conclude that it is. The evidence relied on by the Council shows that the advantages of fluoridation significantly outweigh the mild fluorosis which is an accepted outcome of fluoridation.

[120] Finally, I examine whether the Council failed to take into account relevant considerations in reaching its decision. I am of the view that the Council was not required to take into account the controversial factual issues relied on by New Health. There is, nevertheless, a plenitude of evidence to show that the Council carefully considered the detailed submissions presented and reached its decision after anxious consideration of the evidence and careful deliberation.

Result

[121] New Health’s application to review the Council’s decision fails.

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Who is funding anti-fluoridation High Court action?

I strongly suspect a number of organisations listed in the register of New Zealand charities just shouldn’t be there.  The Department of Internal Affairs provides facilities to search the charities register – it is worth doing if you have your suspicions.

Why is this important? Well, registration as a charity provides tax-free status to an organisation. In effect this means all taxpayers are subsidising their activities. While most of us are probably happy to subsidise genuine charities it goes against the grain when they are not genuine.

Here I will look at just one suspicious organisation – the New Zealand Health Trust.

The New Zealand Health Trust

This trust is in the news lately because last November it took a High Court case against  the South Taranaki District Council aiming for a judicial review over a decision to fluoridate water supplies in Patea and Waverley (see Chch group tests fluoridation push and Taranaki fluoride ruling ends up in court). [See Update below.] Such legal action is not cheap yet the New Zealand Health Trust is a registered charity so tax exempt. We are affectively subsidising the legal action – like it or not.

Fortunately, registration means that some information about the organisation and its finances must be provided and documents are available on the register. The New Zealand Health Trust registration details claim its purpose is education, training and research. It provides advice, information and advocacy with the main beneficiaries being the “general public.”

The trust deed (available on the register – rules.pdf) gives more detail – but still expressed in a very general way (I guess organisations like this want to keep their options open). Besides talk of promoting education and well-being, research, relief of poverty and the promotion of “other charitable objectives” the document declares some more relevant goals:

“5(e): encourage and provide opportunities for persons and corporate bodies within New Zealand to take an active interest in complementary health care products, devices, practices and services and general health research for prevention, diagnosis and treatment;”

And

“5(j): lobby decision making bodies on issues affecting the charitable purposes with a view to furthering the charitable purposes, and use such media campaigns and promotions as may assist;”

If you want to put 2 + 2 together, have a look at their web page. It soon becomes obvious the trust is a political lobbying organisation working to promote the interests of the industry selling “natural health products” and “health care products, devices, practices and services within New Zealand.”

So, New Zealand taxpayers are subsiding an industry lobby group, with commercial interests and aims. Inclusion of words like “health,” “natural” and “alternative” does not make it any different to any industry lobby group with commercial interests.

Have another look at the website and you will see this group has political as well as commercial aims. As well as working hard on fighting parliamentary consideration of  treating  natural health products as drugs (the ANZTPA Debate) it is also active in the following issues:

Yes – as taxpayers we are subsidising political activity on chemtrials, way-out medical procedures and a lot else. We are subsiding opposition to vaccines, genetic modification and aspartine.

We are also subsidising their expensive legal action to fight fluoridation.

Some finances

Registration as a charity requires annual financial returns and these are available on the register – from 2008 – 2013 for the New Zealand Health Trust. I  don’t have the financial literacy to understand these returns completely but details of their main sources of income and main expenses for each year are interesting. Here is a page from their 2013 return.

NZHT

Their main income was not from donations (sort of expect that with a charity) but from undefined “grants.” And their main expense was not the education, research or relief of poverty talked about in their deed document but “consultancy and legal expenses.” Nowhere in any of the returns could I see any expenses related to research, education or relief of poverty.

The plot below shows a lot of variability year to year in the size of the “grants” received and in their “consultancy and legal expenses” – completely consistent with their main purpose of lobbying on specific political issues and, for 2013 (and presumably 2014) the High Court case in South Taranaki.

NZHT-2

Where’s the money coming from

Unfortunately the financial returns don’t show that detail but the round numbers of 2011 and 2013 suggest single sources – and wealthy ones. (There was also a grant in 2010 of $534,521 which appeared to largely wipe out loans from a single person, P. D. Sloan, in earlier years.) Call me cynical but these “grants” look very much like payments from corporate companies for supporting their own commercial interests.

The Charities Register lists the sole officer of the trust as “New Zealand Health Limited” and the  Charitable Deed Trust lists the parties as:

“1. PATRICK DAVID SLOAN of Christchurch, Company Director (“the Settlor”)
2. NEW ZEALAND HEALTH LIMITED, a duly incorporated company having its Registered Office at Christchurch (“the Trustee”).”

Patrick David Sloan is listed as a director of several companies, including My Health Limited and NZ Essential Limited. A brief internet search showed Mr Sloan is director of a number of natural or alternative health companies. He has also been active in the anti-fluoridation movement – making a submission (all the way from Christchurch) to the Hamilton City Council fluoridation hearings (see Submission No: 1650 – Hamilton City Council).

My conclusion is that the trust is being financed by levys or contributions from the industry as a whole or individual companies in the alternative health industry. From the complex web of links between the directors and companies that I looked at briefly it could be that grants are made from just one or a few larger companies in behalf of the industry.

Incidentally, my interaction with anti-fluoridation activists and spokespersons also suggests a high proportion of people who work in this industry. Especially alternative health practitioners.

The NZ charities register

In recent years the Charities Commission and the Department of Internal Affairs have taken steps to clean up the register. A number of “charities” have been removed because they do not satisfy the criteria. I suggest that the New Zealand Health Trust should also be considered for removal.

I am sure that this Trust is not the only organisation getting tax exemption unfairly. Any organisation doing this should be exposed. This is not a judgment on an organisations aims – just that they should not have their work subsidised by the taxpayer if their aims are not genuinely charitable.

Perhaps more seriously, the presence of such commercial and political organisations on the New Zealand Charities Register brings the area of charities into disrepute.


Update: These articles refer to  “New Health New Zealand” as taking the legal action. To clarify – New Health New Zealand was created by the New Zealand Health Trust. See their note:

“New Health NZ Incorporated has been formed by the NZ Health Trust because our supporters can’t become members of a Trust.  New Health allows you to join up and show your support for the work of the NZ Health Trust in a way that costs you nothing, and imposes no obligation on you.

New Health acts alongside the NZ Health Trust as the voice for all NZ Consumers and the more members it has the more influence it will have.”

You can find details of this body on the Register of Incorporated Societies at the Companies Office. Their recent financial returns show no income and a net debt – they will obviously not be financing any legal action.

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Climate change denier’s false “deep distress” fools no-one

Recently I commented on the High Court rejection of the climate change deniers/contrarians/sceptics arguments against NIWA’s New Zealand temperature record. I said that those attacking NIWA were “getting all falsely indignant because others have pointed out that in effect they were charging that NIWA had acted fraudulently and this had been rejected (see “Leading climate scientists” make false allegation).”

I argued that, in fact, these groups have for several years have accused NIWA scientists of fraud, even if the specific F word had not been used. It is disingenuous of these people to now claim “We never said it was fraud” and limit themselves to the literal words used in the High Court submissions.

The writer of that blog post, the well-known local climate change denier Richard Treadgold, indignantly claimed:

“the Trust did not claim fraud in its Statement of Claim to the High Court, which nowhere uses any derivative of the word fraud. The Coalition never accused NIWA of fraud.”

Come on Richard – enough of the porkies. You are just relying on reader’s ignorance of the statement. (While at the same time avoiding the long history of aggressive accusations of scientific fraud your organisations have made against NIWA scientists).

Someone from NIWA who participated in the High Court case, and therefore is familiar with the statements, sent me these comments:

“here are some accusations in the NZCSET’s statements of claim:

Paragraph 20 in NZCSET’s First Statement of Claim (July 2010), repeated in First Amended Statement of Claim (July 2011):

20.  In making the 1999 decision NIWA was influenced by the expectation that significant NZTR warming would encourage funding for additional climate change research.

If this isn’t accusing us of fraud, I don’t know what is.

Also, from NZCSET’s First Amended Statement of Claim (July 2011):

45. Given the differences in data and calculations utilised by NIWA in producing the 7SS and the NZT7 there is no known scientific basis upon which it could have arrived at the coincidence between the results of the two series. The defendant must therefore have been affected by bias or actuated by some ulterior and/or irrelevant purpose, including:

(a) The advantages of finding a warming trend broadly consistent with the advice on climate matters that NIWA has been offering to judicial, administrative and

legislative bodies during the past decade;

(b) The avoidance of political embarrassment, or reduction in public confidence in NIWA’s scientific advice on climate matters, which might arise if the NZT7 failed to align with the warming trend shown in the 7SS.

Again, this is surely accusing us of fraud, by any other name. The explicit use of the ‘F’ word is not necessary.

Treadgold pretends “deep distress” at Dr Renwick’s comment referring to “the claim by the New Zealand Climate Science Education Trust (CSET, a small group of climate change “sceptics”) that NIWA had acted fraudulently in putting together its ‘7-station’ temperature series.” Treadgold goes as far as to pretend “to those devoted to the even-handed, practical pursuit of truth this accusation is deeply distressing.” (sic). And he calls for Dr Renwick to “man up and admit their mistake, apologise and withdraw the press statement.”

What hypocrisy!

Given the long history of the unfounded attacks by Treadgold and his mates on NIWA’s scientists, that again and again their claims have been exposed as unfounded and NIWA’s position vindicated, and now finally the rejection of these denier claims by the High Court, let me repeat my suggest from 2 years ago in Painted into a corner?

Isn’t it long past the time that Treadgold and his mates “man up”, apologise and withdraw their claims?

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High Court ruled on integrity – not science

There is a lot of local internet debate about the High Court decision on the Judicial Review of NIWA’s New Zealand temperature record. Some of it is poorly informed as it assumes that the Judge ruled on the correctness of the science. That the ruling confirmed that the scientific consensus on global warming is “legally” correct. This would be silly and deplorable, if true, because it’s hardly the place for the High Court to decide scientific truth.

Justice Venning saw no reason to review the science – he found the appellant’s arguments inadequate or false.

In fact the ruling was not on the science – but on the scientific integrity of NIWA scientists who produced the science. The appellants (the NZ Climate Education Trust) could not prove their effective claim that NIWA’s scientists were guilty of fraud. That the methods used to get the temperature record were faulty or jerry rigged. That being the case the request for a judicial review of the science was rejected.

Justice Venning did decide that “in principle, the remedy of judicial review is potentially available” to the appellants. But:

“Unless the decision maker has followed a clearly improper process, the Court will be reluctant to adjudicate on matters of science and substitute its own inexpert view of the science if there is a tenable expert opinion.” And “unless the Trust can point to some defect in NIWA’s decision-making process or show that the decision was clearly wrong in principle or in law, this Court will not intervene. This Court should not seek to determine or resolve scientific questions demanding the evaluation of contentious expert opinion.”

(Quotes are from Justice Venning’s Judgement).

Clearly the trust were unable to give any acceptable or convincing evidence of defects in NIWA’s work. Therefore the “application for judicial review is dismissed and judgment entered for the defendant.” And he awarded costs to NIWA.

NIWA’s reaction

NIWA also clearly interpret the judgement as endorsing their integrity. Their official comment (see Endorsement of NIWA’s science welcome) states “High Court Judge Justice Venning was unequivocal in his findings, reinforcing NIWA’s professionalism and credibility in this important area. “ And “NIWA Chairman, Chris Mace, said, “High Court Judge, Justice Venning’s ruling is a comprehensive reinforcement of the professionalism and credibility of NIWA’s science and scientists.”

The emotions of loss

Of course, those in denial are now trying to claim victory because no ruling was made on the temperature record itself (it wasn’t considered so couldn’t be ruled on) and getting all falsely indignant because others have pointed out that in effect they were charging that NIWA had acted fraudulently and this had been rejected (see “Leading climate scientists” make false allegation).

I can appreciate these local climate change deniers are a bit emotional at the moment. They have fallen to arguing amongst themselves.  They are busy smearing Judge Justice Venning (which I would think has its own legal dangers) and blaming everyone else for their defeat. But a simple glance at the history of this dispute shows that they have, in effect, been accusing NIWA scientists of fraud and justifying that accusation with untenable claims, which, in the end, were not seen as credible by the High Court.

A brief history

The Judgement illustrates the start of this sorry saga with:

[118] On 26 November 2009 members of the Coalition published on their website a paper entitled “Are We Feeling Warmer Yet”? The paper claimed that “New Zealand’s temperature had been remarkably stable for a century and a half” and that the Coalition had “discovered that the warming in New Zealand over the past 156 years was indeed manmade, but had nothing to do with the emissions of CO2 – it was created by manmade adjustments of the temperature. It’s a disgrace.” The Coalition advanced the theory that the trend shown by the 7SS disagreed with historical temperature measurements recorded in NIWA’s climate data base.

Avoiding the F word but dog whistling fraud.

This is the only real reference to that document and the quote is significant as it illustrates that these groups were really accusing the NIWA scientists of manipulating adjustments to obtain a warming trend (see New Zealand’s denier-gate). In this document they also claimed that scientists:

“created a warming effect where none existed.” . . . “the shocking truth is that the oldest readings were cranked way down and later readings artificially lifted to give a false impression of warming.” (My emphasis).

Although they have been careful to avoid the word “fraud” in their public pronouncements, their claims and charges have really just been dog whistling the same message. As has the tone of their supporters in on-line discussions.

Subsequently the authors of this document changed their story. This came after NIWA reviewed the work, carried out an independent analysis and produced a temperature record basically the same as the previous one (see Painted into a corner?). Without in any way acknowledging the incorrectness of their claim that no adjustments were necessary for site changes of the weather stations the climate change deniers/contrarians/sceptics then started to argue about the nature of these adjustments. And they later produced another analysis where they did use adjustments.

This is a weird situation – they still stand by both reports yet they are effectively saying two different things – (a) no site adjustments are necessary and (b) site adjustments are necessary but NIWA is doing it wrong! No wonder Justice Venning concluded they had no expertise in the subject.

Anonymous “science team” becomes “expert” witness

The authors of this first report were Richard Treadgold and Manfred Otto Dedekind. The latter author was originally kept anonymous (Richard Treadgold claimed they had a “scientific team” which wished to remain anonymous see my email correspondence with Richard on this) but turns up as one of the “expert” witnesses in the High Court action (see Shy climate denier in “science team” reveals himself). He claimed to be an expert in statistical analysis – yet a simple statistical analysis of the data he presented in “Are we getting warmer yet?” would have clearly shown site effects which required adjustments! (Bugger me – a simple glance at plots for the different stations would have shown that fact! – See below for Wellington).

“Are we getting warmer yet?” declared no adjustments were required in merging data from these three stations!

The judgement called attention to the “limited nature of his expertise” (as also for one of their other witnesses, Terry Dunleavy), rejected their claims of “impartiality,” and found “substantial passages” of their evidence inadmissable because their comments and opinions on “NIWA’s application of statistical techniques . . . is of little assistance to the Court.”

What were the trust’s claims?

The Trust had attempted to show “a clearly improper process,” incompetence, scientific fraud, or whatever you wish to call it, by making three accusations:

Breach of statutory duty:

“[180] The plaintiff alleges that by departing from recognised scientific opinion NIWA breached its statutory obligations, including its obligation to pursue excellence.”

Failure to consider mandatory considerations and Mistake of fact:

“[181] Next, the Trust says that NIWA failed to consider mandatory relevant considerations in departing from recognised scientific opinions.”

“[182] For the same reasons the allegation of a mistake of fact based on departure from recognised scientific opinion” or the “alternative proposition, that the decision to publish the review was based on mistaken belief it had been compiled using internationally recognised scientific methodology.”

Unreasonableness

“[183] Finally, the plaintiff alleges that in deciding to publish the review without following recognised scientific opinion and without an independent peer review NIWA acted unreasonably.”

The Climate Education Trust and its “expert” witnesses were unable to support either claim and they were all rejected.

“Recognised scientific opinion”

A lot of the appellant’s arguments relied on their interpretation of “recognised scientific opinion.” They claimed NIWA, in its review of the temperature record did not use the methodology described in a 1993 paper. NIWA agreed and countered the “recognised scientific opinion” argument with:

[80] NIWA does not accept that there is such a concept as an “officially recognised scientific opinion”. Dr Wratt accepts that the science community has well developed processes for addressing debates about scientific methods and interpretation through scientific conferences, and publications in the scientific literature. Dr Wratt does not consider however that there is one absolutely standard global methodology for calculating adjustments in temperature series to account for site shifts that is immutable. He supports that opinion by reference to Petersen et al (1998) which describes various methodologies. He says, as a matter of logic that must be so otherwise there would be no development. Dr Trenberth is also supportive of Dr Wratt’s approach. In his opinion:
There is no one ‘correct’ way to calculate the specific adjustments which need to be made. …

NIWA’s position is surely the same any  credible research scientist would hold. The Trusts claim of an infallible, for all time and all situations method, is extremely naive and opportunistic. It’s not surprising that Justice Venning concluded they did not have the expertise to be taken simply on the word as the source of a “recognised scientific opinion”. Indeed, Professor Carter, a geologist appearing as an expert witness for the trust did “not directly support the Trust’s definition of recognised scientific opinion.” In his evidence he argued that:

“Applied science in any field must take into account the current state of knowledge as attested by the peer-reviewed literature.”

It’s no wonder the Climate Education Trust lost this case. They were unable to support their arguments. In fact their arguments were extremely naive and opportunist.

The question of costs

It remains only for the costs to be calculated (surely these characters are not silly enough to seriously consider an appeal?). These will be substantial and morally legitimate considering the cost of this case, and the ongoing public attacks on the integrity of climate scientists by these people. Costs which otherwise fall on the public.

I find interesting the fact that the Climate Education Trust when it was first formed registered as a charity. The implication was that they would rely on public donations to cover their costs (the Trust was formed purely as a front group for the legal action). However, the registration seems to have been withdrawn. One can only assume that they envisage covering their costs through corporate donations, and not through public charity. Or that they wish to avoid the finial accountability that comes with charity registration.

A bit of much-needed humour

Hitler Finds Out Climate Change is Real

Yes, I know. Bit of a cheap shot and these Hitler videos are getting a bit tiresome. However, when I first saw this I thought it might illustrate the emotional bickering in the local climate change denial/contrarian/sceptic community when they lost their High Court case against NIWA.

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The story behind the High Court action

Some readers may be unaware that New Zealand SciBlogs produces a weekly podcast (usually available Friday afternoon). It’s worth listening to as it provides a Kiwi angle on current science news.

The latest podcast (Episode 37 – Science on trial) will interest everyone concerned about climate change, and particularly the recent High court case taken by a climate change denial group against NIWA. There is a long interview with Gareth Renowden, a SciBlogger who writes for Hot Topic. Gareth has published a book on climate change (Hot Topic) and is a mine of information on the science and politics of the issue. He provides an in-depth analysis of the High Court case and the people behind it. Well worth catching up with.

Also on this last podcast is an interview with James Renwick, a climate scientist working at School of Geography, Environment and Earth Sciences, Victoria University. He comments on the current scientific and political situation regarding climate change.

via The Sciblogs Podcast.


And if you have the time why not go back and listen to previous SciBlogs podcasts. For instance Episode 34: Digital Earth 2.0 includes an interview with yours truly discussing my blog post on the changing face of Australia’s religious affiliations.

Defeat for imposed prayer

Bideford - Devon

Non-consensual religious ceremony has always offended me so I am pleased to see this victory for human rights  – unfortunately, in the UK, not NZ. But the case is relevant. The UK National Secular Society (NSS) challenged prayers in local council meetings in December 2010. The case in the High Court was taken against the Bideford Town council – Mr Clive Bone, a former councillor who objected to these imposed prayers was also a claimant. (See British Humanists welcome High Court ruling against council prayers).

Although this was a limited case the ruling will apply to the formal meetings of all councils in England and Wales, the majority of which are thought to conduct prayers as part of their meetings. Furthermore, the Judge recognised that there could be even wider implications and for this reason granted the defendants right of appeal.

No disadvantage to religious belief

The NSS welcomed the verdict –  executive director Keith Porteous Wood said prayers had been “the cause of tension in a number of local councils”. He added:

“This judgment is an important victory for everyone who wants a secular society, one that neither advantages nor disadvantages people because of their religion or lack of it.”

And:

“The NSS is not seeking to deprive those who wish to pray the opportunity to do so; indeed, we fight to retain freedom of religion and belief. The judgement clearly states that religious freedoms are not hindered, as councillors who wish to do so are free to say prayers before council meetings.”

The judge made the same point. But once the meeting had become official one group could not impose its ceremonies on all:

“I do not think the 1972 Act […] should be interpreted as permitting the religious views of one group of councillors, however sincere or large in number, to exclude, or even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected councillors”.

He compared the imposition of prayers to bringing a  “potentially divisive ceremony, such as the singing of a political party’s song into a meeting.”

Whining by the privileged

On the other hand former Archbishop of Canterbury Lord Carey interpreted the result as “the gradual marginalisation of the Christian faith, being pushed to the outskirts.”

He said religious freedom no longer seemed to be a priority: “Equalities seem to trump all other kinds of freedom. This is a time for Christians to stand up and be counted.”

And:

“These legal rulings may also mean army chaplains could no longer serve, and that the Coronation Oath, in which the King or Queen pledges to maintain the laws of God and the lessons contained in the Gospels, would need to be abolished.

“This is a truly terrifying prospect.”

Critics of the ruling are painting themselves out as the victims. One blogger claimed : “here is a concentrated drive by progressive secularists to drive Christianity from the public square, and especially the body politic.”

This is the same attitude as the expressed by conservative religionists who have been opposing anti-discrimination laws. They see them as a violation of religious freedom because it prevents them from discriminating in the business and jobs on religious grounds.

So, the snuggle for human rights in a pluralist society continues.

Whanganui City Council

The Bideford situation closely parallels the local situation where the Whanganui City Council has rejected Councillor Clive Solomon’s complaint about imposed prayers at Council meetings.

Perhaps local secular organisations should consider taking similar action against the Whanganui City Councillor. After all one cannot over-ride legal human rights by a majority vote within a group. As Mr Justice Ouseley said in the Bideford case such votes by a council “does not give it power to do what it has no power to do.”

On the way to theocracy?

I really loved this section of the High Court ruling because it does sum up the situation we face with such imposed religious ceremonies. It’s a quote from a previous judgement and says:

“The precepts of any one religion, and belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of another. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection for such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime.”

 

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