One of the more startling aspects of Andrew Weaver’s libel case was Weaver’s claim that it was defamatory in Canada to say, even in an opinion column, that Weaver had called for Pachauri’s resignation or even a change in leadership at IPCC. It was even more startling that novice judge Emily Burke found in Weaver’s favour on this point. Given the controversies surrounding Pachauri in 2010, one might ask of Weaver: if you didn’t call for Pachauri’s resignation, why didn’t you? The absurdity of Weaver’s libel claim on this point became particularly stark when Pachauri was charged in India with sexual harassment and finally resigned as IPCC chairman.

J Burke’s absurd acceptance of Weaver’s claim arose, in my opinion, from multiple legal errors, which I’ll summarize in the conclusions. To get there, I’ll briefly discuss the background of the Himalaya glacier controversy, which proves to be considerably more complicated than a single factoid error in an enormous report. Although today’s post is long, the material, closely examined, goes in many directions and is voluminous and the post in no way covers all the potential issues.

Himalaya Glaciers

In January 2010, at the time of the National Post opinion column referring to a change in IPCC leadership, there had been considerable publicity about IPCC errors about Himalaya glaciers – an interesting topic that warrants a lengthy re-examination. Although Pachauri and IPCC adherents have minimized the controversy as merely a single error in a very large report, the recession of Himalayan glaciers and, especially, their impact on riverflow and agriculture in the Ganges and other rivers had been a signature AR4 issue. While most of the subsequent publicity pertained to the 2035 prediction, arguably a more substantial – and uncorrected error – was IPCC’s attribution of significant portions of annual river flow to glacier diminution and its dire warnings that the Ganges and other rivers would become merely “seasonal rivers” in the future with serious consequences on the food supply of the subcontinent.

Prior to these claims being adopted by IPCC, these false claims, mostly originating with Syed Iqbal Hasnain, had been convincingly challenged by Gwyn Rees and others as early as 2004. See Richard North in January 2010 for the back history.

The false claims, in their IPCC AR4 incarnation, had been convincingly challenged as early as February 2009 by Alford and Armstrong in a paper for the World Bank Water Week 2009, entitled “The role of glaciers in stream flow from the Nepal Himalaya”, (later published in 2010 here). They began as follows:

The view that a significant volume of the annual flow of the Ganges River, and its principal tributaries in the Indian and Nepal portions of the Himalaya, may be derived from the melting of the glaciers of these mountains appears to be widespread.

They observed that most of the annual volume of the Ganges came from annual precipitation rather than diminished size of the glaciers, the latter contribution to total streamflow being inconsequential. They minced no words in their conclusion, stating that even the “complete disappearance” of the glaciers would “most probably be undetectable” at hydrometric stations:

At the scale of the Ganges Basin, the complete disappearance of the glaciers would most probably be undetectable from measurement of the annual streamflow at current hydrometric stations, and would have little, if any, impact on current water use practices or for existing water resources planning or management procedures.

Nonetheless, dire warnings of both glacier recession and water shortfalls, already present in 2008 (e.g. glaciologist Geoffrey Boulton here), continued unabated through 2009. In April 2009, the New York Times published predictions of a 75% loss by 2035. In May 2009, the European Union announced a major study program on the issue, with Pachauri’s TERI turning out to be one of the major beneficiaries. Subsequently, the EU dryly conceded that the original rationale for the program was not “only alarmist but downright wrong” but do not appear to have withdrawn any grants, even to TERI:

But by the time it began in May 2009, the original extreme urgency of the HighNoon project had ‘melted’ so to speak. Indeed, this EU funded project focuses on assessing the effect of Himalayan glaciers retreat on water distribution in Northern India, as it may create droughts. It also studies the possible consequences on the famous Indian summer monsoon. The urgency to study Himalayan glaciers stemmed from a 2007 International Panel on Climate Change (IPCC) report—later proven not only alarmist, but downright wrong—claiming that they would have disappeared by 2035.

Over time, there has been a certain amount of turnover in IPCC Working Group 2’s spotlighting of issues: Himalayan glaciers and their impact on water supply were definitely issues de jour following AR4 and in the lead-up to Copenhagen 2009. For example,on November 3, 2009, in his presentation to UNFCCC entitled “Policy-relevance of the Working Group II Contribution to IPCC AR4”, IPCC vice-chair van Ypersele’s leading examples of adverse impacts were glacier recession in the Himalayas and Andes. (Subsequently, van Ypersele expunged the section on the Himalayas from the online version but the Himalaya section remains in the archive.org version.)

The issue more or less disappeared without a trace in AR5, which focused on other causes for alarm. The AR5 chapter on the cryosphere did not even mention the controversial error in AR4. Nor did it cite Alford and Armstrong 2010 (or Raina 2009 – see below). AR5 estimates of glacier area and volume for South Asia (Table 4.2: 14- West and 15-East from Arendt et al 2012) bore little to no relationship to the AR4 figures that had occasioned so much alarm. Whereas AR4 had reported Himalaya glacier area and volume at 500,000 km2 and 12,000 km3 respectively, the corresponding AR5 totals for South Asia were 55,665 km2 and 4,096-5,067 km3 – about 10% and 37% respectively of the values in the earlier report. A more recent estimate (Frey et al 2014) lowers the Himalaya estimates even further: to an area of 40,775 km2 and a volume of 2,955-4,737 km3. By way of comparison, the total volume of the Great Lakes is 22,671 km3, nearly 6 times greater than the most recent estimates of ice volume in Himalaya glaciers (area – 244,106 km2).

And whereas AR4 had darkly projected the Ganges and Brahmaputra as merely “seasonal rivers” in the future, AR5 quietly postulated an “increase in [Ganges] river runoff” due to a projected large increase in average rainfall: In the Ganges, an increase in river runoff could offset the large increases in water demand due to population growth in a +4ºC world GCMs), due to a projected large increase in average rainfall, although high uncertainties remain at the seasonal scale (Fung et al., 2011).

Pachauri vs the Indian Ministry of the Environment

On November 9, 2009, Jaimar Ramesh, minister of the environment, released a report by V.K. Raina, a senior Indian geologist, described as a comprehensive “start-of-the-art” review. It flatly contradicted the IPCC line on Himalaya glaciers, adopting a view more or less identical to that Alford and Armstrong. Raina said that “as long as we have monsoons we will have glaciers” and that he was prepared to take on “the doomsday scenarios of Al Gore and the IPCC”.

Although Pachauri would later say that he could not be expected to be familiar with every detail of the large IPCC report, at the time, Pachauri immediately opposed Raina’s findings in an extraordinary public outburst. In an interview with the compliant Guardian, Pachauri described the Raina report as “unsubstantiated research”. In contrast to the supposed excellence of IPCC procedures, Pachauri stated that Raina’s report was not “peer reviewed” and had few “scientific citations”. Pachauri said that Raina’s statements were reminiscent of “climate change deniers and school boy science” and, in a follow-up interview with the BBC on December 5, as “voodoo science”. Pachauri sneered at the competence of both Raina and minister Ramesh, saying: “With the greatest of respect this guy retired years ago and I find it totally baffling that he comes out and throws out everything that has been established years ago.” This is not the sort of language typically used by managers who do not have personal familiarity with the detail.

The issue more or less remained under wraps during the Copenhagen conference in December 2009 but was a central topic at an expert workshop on December 28-29, 2009.

In early January, primarily through the interest of the UK press, it was conclusively established that it was the IPCC statement that was not only incorrect, but based on flimsy and unreliable sources. On January 20, 2010, the IPCC issued a grudging acknowledgement of an error in relation to the date of disappearance, while ignoring the more fundamental issue that diminution of glaciers played an inconsequential, rather than “crucial” role in the volume of large monsoon rivers, stating as follows:

The Synthesis Report, the concluding document of the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (page 49) stated: “Climate change is expected to exacerbate current stresses on water resources from population growth and economic and land-use change, including urbanisation. On a regional scale, mountain snow pack, glaciers and small ice caps play a crucial role in freshwater availability. Widespread mass losses from glaciers and reductions in snow cover over recent decades are projected to accelerate throughout the 21st century, reducing water availability, hydropower potential, and changing seasonality of flows in regions supplied by meltwater from major mountain ranges (e. g. Hindu-Kush, Himalaya, Andes), where more than one-sixth of the world population currently lives.” This conclusion is robust, appropriate, and entirely consistent with the underlying science and the broader IPCC assessment. It has, however, recently come to our attention that a paragraph in the 938-page Working Group II contribution to the underlying assessment refers to poorly substantiated estimates of rate of recession and date for the disappearance of Himalayan glaciers. In drafting the paragraph in question, the clear and well-established standards of evidence, required by the IPCC procedures, were not applied properly

However, this correction was far short of the required correction, as Alford and Armstrong sharply pointed out as follows:

What has not yet been corrected is a statement in this same section of the IPCC report that, as a result of this retreat, the Ganga, Indus, Brahmaputra and other rivers that criss-cross the northern Indian plain could likely become seasonal rivers in the near future.

Despite considerable pressure, Pachauri refused to apologize for the error on the basis that he could not be held “personally responsible” for every word:

t would be hypocritical to apologise for the false claim that ­Himalayan glaciers could melt away by 2035, because he was not personally responsible for that part of the report. “You can’t expect me to be personally responsible for every word in a 3,000 page report,” he said.

While I entirely agree that Pachauri cannot reasonably be held “personally responsible” for every word of the IPCC report, it had been Pachauri who had personally attacked the Indian minister of the environment and geologist Raina, both of whom were owed apologies.

Glaciers and Return to Almora

In addition, out of all the issues in the IPCC report, Himalaya glaciers were uniquely personal to Pachauri himself. Pachauri had been born in Nainital in the foothills of the Himalayas – as also “Sanjay Nath”, the protagonist of Pachauri’s “Semi-autobiographical” Return to Almora. Almora itself is in the foothills of the Himalayas and a staging point for treks to Gangotri glacier, the classic source of the Ganges – prominently featured in the EU grant.

While the “scientific” interests of Sanjay Nath are mainly things like “transcranial magnetic stimulators” , Nath was also interested in Himalaya glaciers:

Sanjay had brought four bottles of good California wine, which he gave Pooja. They drank the first of these, a smooth merlot, that evening. While Pooja prepared a Chinese meal, he read a frightening report on the retreat of the Himalaya glaciers as a result of global warming and climate change.

Nath’s investigations into transcranial magnetic stimulators took him to Svalbard, where yet another beautiful young woman with”generous breasts” threw herself at his feet:

He found it a strange sensation to have this beautiful young woman hugging his legs while her generous breasts pressed against his body… For a brief instant, he was sexually aroused…. As she rose, she looked at Sanjay with her blue eyes, which he could see were full of worship of him. She was exquisitely beautiful with the most expressive eyes he had ever seen… Perhaps she harboured a feeling of reverence for him, bordering on worship… She bent and touched his feet, while wishing him goodnight.

Should Andrew Weaver and the climate community have later been surprised when Pachauri was later exposed, so to speak, as expecting the right to grope young female employees?

The “climax” of Return to Almora was Nath’s visit to a swami at Gangotri glacier – this glacier also being the highlight of the TERI glacier application. The swami, like the beautiful young Otelia in the prior scene, professed his reverence for Nath:

He bent low but Swami Chidananda lifted him up before he could touch his feet.. Sanjay felt the swami’s powerful arms around him as he stood up raising Sanjay to his full height and embracing him. “I should be touching your feet” he said softly. You are a great soul. So many all over the world revere you, just as I do.”

The swami turned out to be up-to-date on glacier retreat, “particularly in the Himalayas”:

Sanjay was amazed at the swami’s knowledge and command over a variety of subjects. He was particularly concerned about the impact of climate change on the ecology of mountains across the globe and the retreat of glaciers everywhere, but particularly in the Himalayas. “I’m amazed and saddened at the insensitivity and indifference of the United States to the problem of global warming, for which they are responsible to a large extent., he said. It will cost them dearly. They don’t realize that America’s dependence on fossil fuels will doom their prosperity, Any society that loses its sense of fairness and pursues an agenda that is narrow and selfish will reap the harvest of its moral degradation in the end. History teaches us this very clearly, but a society drunk on its own power, has no time or respect for the profound lessons of history.”

It seems off that the swami in the cave was supposedly more up-to-date on scientific literature on Himalayan glaciers than the chairman of IPCC. Or maybe not.

The Der Spiegel Editorial

Back to the Weaver chronology. One of the more extraordinary aspects of the Pachauri controversies at the time was the almost total solidarity of the climate community. While IPCC-ists like William Connolly now pretend that Pachauri was never one of them and George Bush’s fault, when Pachauri was challenged in January 2010, no one in the IPCC community broke ranks: that’s one of the reasons why Weaver’s apparent call for a change in IPCC leadership attracted attention.

There were, of course, a number of calls for Pachauri’s resignation in January 2010 (before the IAC panel) and later in September 2010 (after the IAC report and before the October 2010 IPCC meeting in Busan), but most of these calls were from environmental journalists (e.g. Geoffrey Lean, Charles Clover and later Fred Pearce) or “moderate” scientists (e.g. Hans von Storch, Roger Pielke Jr and Richard Tol in a prominent Der Spiegel editorial (January 25, 2010) unequivocally calling for Pachauri’s resignation. One of the very few NGO activisits to do so was John Sauven of Greenpeace UK, but he just as quickly backed off – see below.

The Der Speigel editorial is central to the Weaver libel case, as it was under discussion at the time of the Foot article and Weaver told Foot that “in the case of Pachauri, I agree with what is being said in Der Spiegel”. The sub-headline of the Der Spiegel editorial stated:

In the following editorial, climate researchers Richard Tol, Roger Pielke and Hans von Storch call for a reform of the IPCC and the resignation of its chairman, Rajendra Pachauri.

The Der Spiegel editorial summarized many of the contemporary complaints about Pachauri. They challenged Pachauri’s “overt political advocacy” – something that Weaver later termed “crossing the line”:

In recent months, Pachauri has participated in overt political advocacy, such as by calling on people to eat less meat and on the United States government to pass a certain climate policy. He has endorsed 350 parts per million as the right target for the atmospheric concentration of greenhouse gases, despite the IPCC offering no recommendation on such a target. Being a scientific advisor sometimes means recusing yourself from engaging in the political processes that you are advising.

They criticized Pachauri for his “vicious” attacks on scientists who had done nothing more than correct an IPCC error:

When the latest IPCC report said glaciers could disappear from the Himalayas by 2035, with major ramifications for the water supply in South Asia, it generated headlines around the world. That prediction proved to be grossly in error. It revealed a serious breach of the organization’s own standards of review.When the error was initially publicized, Pachauri declared that the IPCC does not make mistakes and viciously attacked people who disagreed

They also drew attention to financial involvement of Pachauri’s TERI in the error and IPCC’s lack of conflict of interest policies:

The whole situation became more bizarre when it emerged from the investigations of Richard North that Pachauri’s Energy and Resources Institute (TERI) has built a large research effort on Himalayan glaciers on the back of the error in the IPCC report. TERI is also the beneficiary of considerable sums from companies with a financial interest in climate policy, resulting from payments for Pachauri’s advice or authority. Astoundingly, it appears that Pachauri has not broken any rules for the simple reason that there is no code of conduct governing conflicts of interest for IPCC participants and leaders.

The Daily Mail and Murari Lal

At the time, the UK press was fascinated by the question of who knew what and when in respect of the false glacier claim. On January 23, an article in the Daily Mail alleged that the IPCC lead author of the controversial section, Murari Lal, knew that the glacier claim did not rest on peer reviewed literature but included it to put pressure on world leaders:

The scientist [lead author Murari Lal] behind the bogus claim in a Nobel Prize-winning UN report that Himalayan glaciers will have melted by 2035 last night admitted it was included purely to put political pressure on world leaders. Dr Murari Lal also said he was well aware the statement, in the 2007 report by the Intergovernmental Panel on Climate Change (IPCC), did not rest on peer-reviewed scientific research. In an interview with The Mail on Sunday, Dr Lal, the co-ordinating lead author of the report’s chapter on Asia, said: ‘It related to several countries in this region and their water sources. We thought that if we can highlight it, it will impact policy-makers and politicians and encourage them to take some concrete action. It had importance for the region, so we thought we should put it in.’

Lal’s comments were distributed even more widely by Science News (here) on January 24. In an article entitled “IPCC’s Himalayan glacier ‘mistake’ not an accident: Newspaper reports that unsubstantiated numbers were used intentionally”, reporter Janet Roloff stated:

A London newspaper reports today that the unsubstantiated Himalayan-glacier melt figures contained in a supposedly authoritative 2007 report on climate warming were used intentionally, despite the report’s lead author knowing there were no data to back them up.

Until now, the organization that published the report – the Nobel Prize-winning Intergovernmental Panel on Climate Change – had argued the exaggerated figures in that report were an accident: due to insufficient fact checking of the source material. Uh, no. It now appears the incident wasn’t quite that innocent. The Sunday Mail’s David Rose reached Murari Lal, the coordinating lead author of the 2007 IPCC report’s chapter on Asia. Lal told Rose that he knew there were no solid data to support the report’s claim that Himalayan glaciers – the source of drinking and irrigation water for downstream areas throughout Asia – could dry up by 2035. Said Lal: “We thought that if we can highlight it, it will impact policy makers and politicians and encourage them to take some concrete action.” In other words, Rose says, Lal “last night admitted [the scary figure] was included purely to put political pressure on world leaders.” A noble motive, perhaps, but totally inexcusable.

The Science News article was further distributed by U.S. News and World Report here.

This incident was referred to soon afterwards in both Foot’s news article and the disputed National Post opinion columns.

Richard Foot’s Article

On January 24, Richard Foot, an experienced reporter for Canwest (National Post’s parent), was assigned to write about the growing IPCC controversy. On January 24 and 25, 2010, Foot conducted two long interviews with Andrew Weaver. Before the second interview, Weaver sent Foot a copy of the Der Spiegel editorial, which had called for Pachauri’s resignation, and told Foot:

in the case of Pachauri, I agree with what is being said in Der Spiegel [which had called for Pachauri’s resignation]

During the interview, Weaver had also told Foot that he did not think that Pachauri should have been re-elected and that it was time for Pachauri to “move on”:

“I would have argued he was the wrong appointments to begin with and I think he has crossed the line, and I would agree it’s time to move on. So let’s have them move on, not because of the latest Himalayan thing, because he should have moved on two years ago after last IPCC report was done. With too much power at helm for too long there is a danger you start to believe you’re invincible. But I agree he should move on…. Some might argue we need a change in some of the upper leadership of the IPCC, who are perceived as becoming advocates. I think that is a very legitimate question.

The re-appointment “two years ago” alluded to by Weaver here was Pachauri’s appointment to a second term as IPCC chair – an appointment which was effective until the delivery of the fifth assessment report, then anticipated to be complete by 2014 (now 2015).

These statements later became integral to J Burke’s decision and will be discussed further below. Relying on Weaver’s statement that “in the case of Pachauri, I agree with what is being said in Der Spiegel” (which had unequivocally called for Pachauri’s resignation) and Weaver’s explicit call for Pachauri to “move on”, Foot reported in an article of January 26, 2010 that Weaver had called for Pachauri’s resignation:

A senior Canadian climate scientist says the United Nations’ panel on global warming has become tainted by political advocacy, that its chairman should resign, and that its approach to science should be overhauled. Andrew Weaver, a climatologist at the University of Victoria, says the leadership of the Intergovernmental Panel on Climate Change (IPCC) has allowed it to advocate for action on global warming, rather than serve simply as a neutral science advisory body. “There’s been some dangerous crossing of that line,” said Weaver on Tuesday, echoing the published sentiments of other top climate scientists in the U.S. and Europe this week. “Some might argue we need a change in some of the upper leadership of the IPCC, who are perceived as becoming advocates,” he told Canwest News Service. “I think that is a very legitimate question.”

Later in the article, Foot continued:

Weaver says Pachauri, the panel’s chairman, should resign, not only for his recent failings but because he was a poor choice to lead the IPCC to begin with.

Weaver says the vast majority of the science in the IPCC reports is valid, and that the glacier revelations —”one small thing,” in a 3,000 word document, as he calls it — shouldn’t be used to discredit other parts of the report. “There is not a global conspiracy to drum up false evidence of global warming,” he says. But Weaver admits the IPCC needs to change, for the sake of climate science, and for its own credibility. He also says the IPCC must stop producing huge, all-encompassing reports on every aspect of climate science and instead re-organize itself into a series of small, highly-focused groups, each tasked with examining a single specific scientific question and none required to publish their conclusions on quick deadlines. And he says IPCC officials must cease being “over enthusiastic” in pushing for policy changes. “Nobody should be using particular pieces of information to advance an agenda,” says Weaver. “The IPCC cannot be an advocate, because it’s not tasked to do that.”

Corcoran’s Opinion Column

In the evening of January 26, subsequent to Foot’s news article was published, Corcoran of National Post published an opinion column (clearly marked as an “Opinion Column”), based in part on Foot’s article, but also relying on other recent news, especially the reports from the UK that IPCC lead author Murari Lal had knowingly used sub-quality information about glaciers in order to impact policy makers:

The latest IPCC fiasco [about Himalayan glaciers] looks even more damaging [than Climategate]. In the 2007 IPCC report that Mr. Weaver said revealed climate change to be a barrage of intergalactic ballistic missiles, it turns out one of those missiles — a predicted melting of the Himalayan ice fields by 2035 — was a fraud. Not an accidental fraud, but a deliberately planted piece of science fiction. The IPCC author [Murari Lal] who planted that false Himalayan meltdown said the other day “we” did it because “we thought … it will impact policy makers and politicians and encourage them to take some concrete action.”

Undoubtedly Corcoran was dumbfounded by the apparent admission by Weaver, with whom Corcoran had long sparred, that there had been a “dangerous crossing” of the line between advocacy and science by IPCC:

For him [Weaver] to say, as he told Canwest News yesterday, that there has been some “dangerous crossing” of the line between climate advocacy and science at the IPCC is stunning in itself.

Up to that point, no IPCC insiders had broken ranks. Weaver’s reported call for Pachauri’s resignation was (or at least appeared to be) the first case of an IPCC insider breaking ranks. If even Weaver was breaking solidarity with Pachauri, Corcoran interpreted the turn of events as evidence of real “stress” at IPCC:

How hot is it getting in the scientific kitchen where they’ve been cooking the books and spicing up the stew pots? So hot, apparently, that Andrew Weaver, probably Canada’s leading climate scientist, is calling for replacement of IPCC leadership and institutional reform.

If Andrew Weaver is heading for the exits, it’s a pretty sure sign that the United Nations agency is under monumental stress…

Corcoran did not presume, state or imply that Weaver had changed his opinions on climate change:

Mr. Weaver told Canwest that the Himalayan incident is “one small thing” and not a sign of a “global conspiracy to drum up false evidence of global warming.”

In the column, Corcoran also took issue with Weaver in respect to his (alleged) belief that the fossil fuel industry had been responsible for UVic break-ins, his supposed attribution of temperature events and his participation in the Copenhagen Diagnosis, issues that arise in the Burke opinion, but which are distinguishable from the second “main area of factual disagreement” pertaining to the Pachauri resignation call. The opinion column in full is here.

Weaver’s Interview with Nature, Jan 26, 2010

In the morning of January 26, while Foot was writing his article, Weaver was contacted by Quirin Schiermeier, a reporter for Nature who was working on an article about the IPCC controversies. While these emails were not available to Foot, they shed some light on Weaver’s thinking at the time. Weaver told Schiermeier that IPCC needed “reform”, but described the required reform as “procedural” rather than “institutional” – though the distinction between the two was not spelled out:

I don’t know that I would describe the IPCC as needing “institutional reform”. Rather I think “procedural reform” is a better way of putting i[t]

Weaver also told Schiermeier that Pachauri had “crossed the line” and that “perhaps” he had failed, in which case, he should “step aside”:

In my opinion, Pachauri crossed the line with some of his statements. I also don’t think he should’ve been re-elected for a second year term … Perhaps Pachauri has failed, but then he should step aside.

On February 2, Schiermeier quoted Weaver in his article about the controversy, but left out the comment that Pachauri had “crossed the line”. Schiermeier’s quote from Weaver had far less edge:

Andrew Weaver, a climate scientist at the University of Victoria in Canada, wants more far-reaching procedural changes. Rather than carrying out “monolithic” assessments, he says, the IPCC should focus on more specific problems such as describing emissions pathways required to avoid a given temperature rise. The distinction between different working groups should also be revised, he suggests. “If you have diverse interdisciplinary teams working on specific problems, then you can have scientists, economists and engineers all looking at a particular problem through the lens of their expertise,” he says. “There is so much science out there to assess; it needs to be better focused.”

Foot and Mouth

In the late evening of the publication of the Foot article and Corcoran column, Weaver emailed Foot, contesting Foot’s characterization of his views.

J Burke placed considerable weight on Weaver’s prompt objection to Foot’s article (though she did not discuss Weaver’s failure to object promptly or at all to Megan O’Toole’s article – another issue.) However, it seems entirely possible to me that Weaver’s email rang off the hook with pressure from other activists when it seemed like he was breaking solidarity with IPCC leadership at a seemingly critical time. One need only think of the pressure put on Lennart Bengtsson in a less stressful circumstance. Be that as it may, it is also possible that Weaver didn’t want to stick his neck out as far as he had and was looking for ways to walk back his earlier comments, as apparently happened a week or so later with John Sauven of Greenpeace UK.

In Weaver’s email to Foot, Weaver said that he was “NOT call[ed] for Pachauri to resign”, now saying that Pachauri’s tenure was “something the UN should decide”:

I saw the story today and wanted to follow up. I am surprised about this first paragraph: “a senior Canadian climate scientist says the United Nations’ panel on global warming has become tainted by political advocacy, that its chairman should resign, and that its approach to science should be overhauled.” You and I both know that I specifically and pointedly stated that I am NOT calling for Pachauri to resign. That is something that the UN should decide.

All you have to do is review the tapes of the interview. Of course the quote attributed to me in the article is accurate. It is a measured statement. I stated “I think that is a very legitimate question.” To ask. The whole nature of our discussion was with respect to the IPCC leadership (not the IPCC itself) sometimes crossing the lines into advocacy which the IPCC as an organization is not tasked to do.

Although J Burke’s decision included excerpts from Megan O’Toole’s interview notes, it did not include any excerpts from Foot’s interview notes evidencing that Weaver had “specifically and pointedly stated that [Weaver] was NOT calling for Pachauri to resign” – a statement that is obviously at odds with his demonstrated statement that he agreed with the Der Spiegel editorial, which had called for Pachauri to resign.

Foot appears to have carefully considered whether he had misunderstood and misrepresented Weaver and, after such consideration, flatly rejected Weaver’s claim that Foot had misrepresented Weaver. (An exercise that arguably demonstrated that a person could honestly believe on “proved facts” that Weaver had called for Pachauri’s resignation). Foot reminded Weaver that Weaver had told Foot that “in the case of Pachauri, I agree with what is being said in Der Spiegel“, which, as Foot pointed out, clearly called for Pachauri’s resignation and that Weaver had directly said that Pachauri should “move on”:

Thanks for your email. I’m sorry to hear you feel I misrepresented you. Obviously that was not my intention. My understanding from our second interview is that you were indeed calling on Pachauri to resign – that you decided to make that statement, qualified by the fact that you felt Pachauri wasn’t right for the job to begin with. I didn’t make that nuanced point in the first paragraph – which is a summary of the story that followed – but I was careful to point it out later in the article as I went through various points. Here’s what I wrote further down the piece: “Weaver says Pachauri, the panel’s chairman, should resign, not only for his recent failings but because he was a poor choice to lead the IPCC to begin with.” I carefully reviewed my notes from our second interview before writing the story. Here’s what you said: in the case of Pachauri, I agree with what is being said in Der Spiegel. [The Der Spiegel’s piece you sent me, and endorsed, clearly called for his resignation]. “I would have argued he was the wrong appointments to begin with and I think he has crossed the line, and I would agree it’s time to move on. So let’s have them move on, not because of the latest Himalayan thing, because he should have moved on two years ago after last IPCC report was done. With too much power at helm for too long there is a danger you start to believe you’re invincible. But I agree he should move on.” Please call me today, or send me the time I can call you, if you’d like to discuss this further

Weaver then tried to wiggle out of his apparent endorsement of the Der Spiegel editorial, by saying that the “substance of the criticism” in Der Spiegel was its distinction between science advisory and advocacy, as opposed to, presumably, its call for Pachauri’s resignation in its subheadline.

As you noted below, I sent you the Der Spiegel piece as I agreed with the substance of the criticism. That is, when you are a chair of an organization tasked with informing policy you should not be prescribing policy. The example of telling people not to eat meat is a case in point raised in that article. I did state that I did not think Pachauri should have been reappointed for a second term. But I also was careful to point out that my opinions have nothing to do with the Himalayan thing. The way the first paragraph is spun without context is definitely misleading. I was concerned about Pachauri advocacy not the IPCC’s [which is an institution] reporting to the UNFCCC [that is not made clear]. (SM Note: these are Weaver’s square brackets.)

Weaver purported to distinguish between calling for Pachauri to “move on” (which he conceded that he had done) and calling for Pachauri to “resign”:

I did not call on him to resign. Me “agreeing that he should move on” is absolutely not the same as “my calling for him to resign”. In my opinion, this is the spin that was manufactured.

Foot was unconvinced by Weaver’s argument and did not respond further.

A few days later, Weaver published a statement in Canwest papers saying that Foot’s article did not “accurately reflect” Weaver’s views. Weaver stated that he had agreed that it was “legitimate to question” whether recent statements by Pachauri were “appropriate”, but said that this did not mean that he was “calling for Pachauri’s resignation”:

A recent article published on Jan. 27 in many Canwest papers suggested I believe that the UN Intergovernmental Panel on Climate Change was tainted by political advocacy, that its chairman should resign, and that its approach to science should be overhauled. These statements do not accurately reflect my views… They are not tasked with prescribing policy outcomes. As such, any policy recommendations put forward by the chair of the IPCC or any of its working groups represent their individual views, rather than the view of the IPCC itself. Some have been questioning whether certain statements by the current chair are appropriate. I agree that these are legitimate questions to ask, but that does not mean that I am calling for the chair’s resignation.

Weaver’s conclusion clearly does not square the circle of his earlier statements. Neither Foot nor Corcoran nor anyone else had extrapolated the resignation call simply from Weaver’s raising questions about whether IPCC officials should “be using particular pieces of information to advance an agenda”. They had done so because of Weaver’s explicit agreement with the Der Spiegel editorial and his equally explicit statement that it was time for Pachauri to “move on”. Weaver’s revisionist statement papered over the difference, without resolving it.

For the defence of fair comment in Canada, the matter is considerably simplified when one looks at the requirements of the WIC Radio test. A judge is not supposed to try to read Weaver’s mind as to what he actually meant – as J Burke tried to do. Instead, a judge is supposed to determine whether a person could have had an honest belief on proved facts that Weaver had called for Pachauri’s resignation – as Foot clearly did.

Perhaps Weaver made a mistake in what he said to Foot and meant to convey something different. Or maybe Weaver got cold feet. Under the circumstances, it seems to me that Foot and/or Corcoran, based on the “proved facts” of what Weaver said to Foot, could have had an honest belief on January 26 that Weaver had called for, at least, a “change in leadership” at IPCC, as Corcoran expressed it.

Greenpeace UK Resiles on Call for Pachauri Resignation

Before further analysing Weaver’s comments, I think that it is worthwhile to consider a contemporary incident in which another activist, John Sauveen of Greenpeace UK, also temporarily broke the solidarity of the climate community in respect to Pachauri. (Remarkably this is the only other such incident in winter 2010 involving an activist that I was able to locate – other calls at the time came from environmental journalists and more moderate climate scientists.)

On February 4, Sauven was reported to have called for replacement of Pachauri and review of IPCC procedures, calls that were more or less identical to those reported to have been made by Weaver a week earlier:

The IPCC needs to regain credibility. Is that going to happen with Pachauri [as chairman]? I don’t think so. We need someone held in high regard who has extremely good judgment and is seen by the global public as someone on their side. If we get a new person in with an open mind, prepared to fundamentally review how the IPCC works, we would regain confidence in the organisation.”

The next day, Greenpeace walked back from its statement, denying that it had suggested that there were fundamental issues or that it had called for Pachauri’s resignation. In its walkback statement, Greenpeace UK stated that the issue was one for IPCC itself to resolve and that it “trusted” IPCC to “manage itself” – very similar to the position in Weaver’s “clarification”:

Greenpeace is not calling for the resignation of the IPCC Chair nor do we believe that there are fundamental issues with the way the IPCC conducts its business. “Greenpeace is not calling for Pachauri’s resignation. We believe the IPCC is an open and transparent organization, and we trust it to manage itself.”

It’s interesting that the “clarifications” from both Weaver and Sauven took the position that they were not “calling for the chair’s resignation” (using very similar words) and that they trusted the institution to manage itself. I can understand why IPCC, as an institution, would prefer to wash its laundry in private. It also seems entirely possible to me – or actually probable – that both Weaver and Sauven received considerable pressure from their allies to back off their apparent public criticism for fear that such criticism would hurt the cause.

Shortly afterwards (March 10, 2010), the IPCC announced a review to be carried out by the InterAcademy Council. Announcement of this review more or less punted criticism of Pachauri down the road. The IAC report was delivered on August 30, 2010 and contained a variety of criticisms of Pachauri and IPCC processes. Pachauri’s chairmanship was not challenged at the October 2010 meeting and IPCC officials ignored or subverted the most substantial IAC recommendations (see CA discussions of Thomas Stocker’s subversions of these recommendations – Stocker now a candidate for chair.)

Errors in Burke’s Decision

1. A Gross Factual Error

Findings of fact by trial judges are notoriously hard to overturn, but, on this count, J Burke made a gross factual error on a critical matter, which can be demonstrated beyond in any cavil. Her main findings of fact in respect to the call for Pachauri’s resignation are set out in paragraph 207 below:

[206] The second area of significant factual disagreement is whether Dr. Weaver criticized the IPCC and called for a change in leadership. They maintain the accuracy of Mr. Foot’s article is confirmed in an email exchange between Dr. Weaver and Mr. Foot and Dr. Weaver’s testimony in cross-examination. The only article at issue, Climate Agency Going up in Flames, merely said Dr. Weaver was calling for change in leadership, which he clearly was doing. He was also calling for reform of the institution. [207] With respect to Climate Agency Going up in Flames, I find Dr. Weaver did not call for the resignation of Mr. Pachauri, but rather as noted indicated he should “move on”. I conclude this on the basis of the emails sent by Dr. Weaver to Nature, which said something completely different, and those immediately sent to Mr. Foot, which indicated he was surprised by this comment. Mr. Foot had the Nature article and, in my view, simply referenced that opinion when writing the article, as reflected in his email in response to Dr. Weaver’s correction.

There are multiple problems here, but I intend to focus on the “Nature article” which Foot was supposed to have “referenced” when writing his article and in his email responding to Weaver’s complaint. The “Nature article” in question was the Schiermeier article not published until February 2, 2010, a week after the publication of Foot’s article on January 26. Foot obviously did not have the “Nature article” while writing his article on January 26 nor when he was replying to Weaver’s complaint. In his response to Weaver, Foot did indeed refer to an article, but it was the Der Spiegel editorial of January 25, 2010 – an article which had unequivocally called for Pachauri’s resignation.

While Weaver may have intended to make a distinction between calling on Pachauri to “move on” and calling on Pachauri to “resign”, it’s not J Burke’s job to try to figure out what Weaver might have meant, but whether Foot could have had an honest belief that Weaver had called on Pachauri to resign and/or whether he had called for a “change in leadership” – the phrase actually used in the Corcoran opinion column. It seems impossible to me to preclude such a possibility especially when it is undisputed that Foot was in receipt of a communication from Weaver expressing his agreement with the Der Spiegel editorial (which called for Pachauri’s resignation) – NOT the Nature article, as J Burke incorrectly found.

2. Words not capable in law of claimed inferential meaning

In his Statement of Claim, Weaver claimed (para 39) that the words listed below (there are many other claims, I’m focusing here on the Pachauri issues) were defamatory in their “literal meaning” as follows:

b. The plaintiff is not/not “calling for the replacement of IPCC leadership. ” In his interview with National Post reporter Richard Foot, the plaintiff specifically told Mr. Foot that he is not calling for the leadership to change. c. The plaintiff is not/not “calling for . .. institutional reform” of the IPCC. This statement in the Defamatory Corcoran January Expression is a fabrication.

Oddly, J Burke did not actually rule on whether these (or any other) statements were defamatory in their “literal meaning”, though this is an ordinarily an important aspect of the case. Perhaps this was because the statements were manifestly not defamatory in their literal meaning.

Secondly, Weaver claimed the following (extravagant) “inferential meaning” (the “natural and ordinary meanings to the ordinary, reasonable reader”) of the words concerning Weaver’s supposed call for Pachauri’s resignation:

40. Further, and in the alternative, the Defamatory Corcoran January Expression was understood to bear, and was intended by the defendants to bear, the following inferential meanings of and concerning the plaintiff, which are the natural and ordinary meanings to the ordinary, reasonable reader: a. The plaintiff knows or believes that the IPCC reports concerning global warming are unscientific and fraudulent and he now deviously seeks to avoid personal accountability for hype, manipulation and distortion in IPCC reports by dissociating himself from that organization and calling for replacement of its leadership and institutional reform of the IPCC;

Although a longstanding practice of judges in libel cases is to first examine whether the words are “capable in law” of bearing the defamatory meaning and, only for those capable in law, deciding whether they do so in fact. In cases decided by judges alone, the distinction is not always carefully observed, but, in complicated cases, experienced judges will commonly parse the alleged defamatory words according to the two-step procedure. It is too bad that novice judge Burke felt that she could dispense with such niceties.

With even the most minimal reflection, it ought to have been clear even to a novice judge that the words “calling for the replacement of IPCC leadership” or “calling for . .. institutional reform” of IPCC did not bear the extravagant inferential meaning imputed by Weaver. Consider the various people, other than Weaver, who had publicly called for replacement of IPCC leadership/Pachauri’s resignation and/or institutional reform, many/most of whom were strong IPCC supporters: John Sauven of Greenpeace UK, Geoffrey Lean, Charles Clover, Hans von Storch, Roger Pielke Jr, Richard Tol, V.K Raina, Fred Pearce, Timothy Yeo, Mike Hulme and even Sir Brian Hoskins who said:

But it probably would be better for the future of the IPCC if Dr Pachauri were to resign of his own accord, taking great care to ensure that there is no question of India losing face as India is such a major country for mitigation (of emissions) and adaptation (to climate change).”…

The IAC report called for institutional reform of IPCC and “most other commentators contacted by BBC News shared the view that the IAC intended Professor Pachauri to leave now rather than wait until the end of his term”.

In each and every case, it is ludicrous and impossible to say that “calling for the replacement of IPCC leadership” and/or “calling for . .. institutional reform” of IPCC bears the inferential meaning that, for example, Brian Hoskins “knows or believes that the IPCC reports concerning global warming are unscientific and fraudulent and he now deviously seeks to avoid personal accountability for hype, manipulation and distortion in IPCC reports by dissociating himself from that organization and calling for replacement of its leadership and institutional reform of the IPCC”.

It was absurd for Weaver to have made such a claim in the first place and ludicrous for novice judge Burke to have accepted Weaver’s claim.

Further, not only is the claimed inferential meaning not possible, but Corcoran clearly and explicitly precluded such an inference when he said the opposite as follows:

Mr. Weaver told Canwest that the Himalayan incident is “one small thing” and not a sign of a “global conspiracy to drum up false evidence of global warming.”

There is simply no way that Corcoran’s words imply that Weaver “now deviously seeks to avoid personal accountability for hype, manipulation and distortion in IPCC reports by dissociating himself from that organization and calling for replacement of its leadership and institutional reform of the IPCC”.

The obvious and natural interpretation of Corcoran’s words – and the impression that I obtained – was that Weaver, as a strong believer in IPCC as an institution, was somewhat dismayed by Pachauri’s conduct as an advocate and believed that Pachauri continuing as chairman would be a detriment to IPCC. Obviously Corcoran took some satisfaction in Weaver’s discomfiture with Pachauri’s conduct, but his actual words do not, in my opinion, even remotely bear the inferential meaning here claimed by Weaver.

3. Burke Flunks Fair Comment Test

In 2008, the Supreme Court (Canada) adopted the following test for fair comment, a test that had previously been a minority opinion (Cherneskey):

the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?

J Burke’s purported to dispense with the WIC Radio fair comment test as follows:

[241] I have concluded fair comment does not protect the defamatory statements about Dr. Weaver. The facts upon which they rely are not true. As such, I do not need to address whether any person could honestly express those opinions on the proven facts.

In respect to the Pachauri incident, J Burke’s assertion that the “facts upon which [the defendants] rely are not true” is itself not only untrue, but nonsensical and unsupported. Weaver did not deny making various statements to Foot in his interviews. Whether these proved statements can support honest belief is the task set out in the WIC Radio, but it is deranged for J Burke to assert that “facts” such as the following are “not true”:

I [Foot] carefully reviewed my notes from our second interview before writing the story. Here’s what you said: in the case of Pachauri, I agree with what is being said in Der Spiegel. [The Der Spiegel’s piece you sent me, and endorsed, clearly called for his resignation]. “I would have argued he was the wrong appointments to begin with and I think he has crossed the line, and I would agree it’s time to move on. So let’s have them move on, not because of the latest Himalayan thing, because he should have moved on two years ago after last IPCC report was done. With too much power at helm for too long

Now Weaver did not use the exact words “resignation” or “change in leadership”, but Der Spiegel had used the word “resignation” and Weaver had used the word “move on”. Further, although Weaver later said that directly told Foot that he was “NOT calling for Pachauri’s resignation”, no excerpts have been provided that show such statements, and, I think that it is reasonable to conclude that they don’t exist. I happen to think that a reasonable person could, from this interview in the context of contemporary events, have had an honest belief that Weaver had called for Pachauri’s resignation. Foot himself appears to have been one such reasonable person. And while Weaver subsequently claimed that he directly stated that he was “NOT calling for Pachauri’s resignation”, no document was shown in the decision that supports Weaver’s claim to have directly made such a statement.

J Burke seems to have gone astray in her reasoning by apparently trying to read Weaver’s mind as to what he “really” meant, rather than applying the WIC Radio test which focuses on what Foot (and/or Corcoran) could honestly believe. I do not agree with J Burke’s deductions on what Weaver “really” meant, but believe that the larger error is her attempt to do this at all. Burke purported to justify her departure from the WIC Radio test by appealing to older and other authorities, which either do not accomplish what she claims or which have been superceded or over-ruled by WIC Radio. For example, she says:

[196] The defence of fair comment is only available for fair comment made upon true facts. It is not available if it is based on facts which are untrue or misstated. As noted in WIC Radio, “if the factual foundation is unstated, unknown, or turns out to be false, the fair comment defence is not available”: at para. 31. Where the defendant cannot prove the truth of the facts upon which the comment is made, the defence of fair comment will not be available: Lawson at para. 44. [Lawson v. Baines, 2012 BCCA 117]

The quotation from WIC Radio above is not from the final test, but from the first paragraph of a section providing an exposition of the requirement of a “factual foundation”, referring to a doctrine in Price v Chicoutimi Pulp, 1915

If the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available (Chicoutimi Pulp, at p. 194)

Since Price v Chicoutimi Pulp, there have been many developments and modifications in Canadian libel law. The correct interpretation of WIC Radio is surely the explicit test set out in the summary and headnotes, rather than its characterization of a 1915 case in exposition of “Factual Foundation”. Nor does J Burke’s other citation shed any light on her intention. Lawson v Baines, 2012 (B.C. C.A.) nowhere considers the defence of fair comment and paragraph 44, in particular, deals with an entirely different topic. Nor is the defence of fair comment discussed in the preceding trial court decision Lawson v. Baines, 2011 BCSC 326. So, on this point, as so many others, it’s impossible to tell what is actually on J Burke’s mind.

Excursus: Trying to Read Weaver’s Mind

While I do not agree that there is any judicial purpose for the libel case in trying to read Weaver’s mind about what he “really” meant, the topic is not without interest for readers who have encountered Weaver in other context.

I can envisage two different possibilities as to what “really” happened (and do not believe that we can ever know for sure):

first, that, when Weaver said that he agreed with the Der Spiegel editorial (which had called for Pachauri’s resignation) and when he said that it was time for Weaver to “move on”, he really did agree with the Der Spiegel call for Pachauri’s resignation (this was hardly an unreasonable thing to do. Pachauri had become an embarrassment to IPCC and von Storch et al had already broken the ice by calling for Pachauri’s resignation and a number of other prominent people would later do so as well), but later got cold feet, perhaps on his own or perhaps due to pressure from other activists to lay off Pachauri to avoid hurting the cause. From this perspective, Weaver’s subsequent emails to Foot and “clarification” shed no light on his state of mind at the time of the original interview.

second, that Weaver “really” meant only to dog-whistle, i.e., he meant to call for a leadership review by IPCC, not the election of a new leader (this seems to be his “clarified” position). The implication of this is that he mistakenly told Foot that he agreed with the Der Spiegel editorial and mistakenly told Foot that he thought that it was time for Pachauri to “move on”. There is no clear explanation of these documents in J Burke’s decision, but I see no other way to square the circle. (Perhaps readers will have other views.)

Ironically, if Weaver only meant to dog-whistle, his argument seems comparable to that of Rand Simberg and CEI, who said that they had merely asked a rhetorical question about academic misconduct as a question:

We saw what the university administration was willing to do to cover up heinous crimes, and even let them continue, rather than expose them. Should we suppose, in light of what we now know, they would do any less to hide academic and scientific misconduct, with so much at stake?

In that case, Mann vehemently argued that an accusation was implied by the rhetorical question just as much as a direct statement, citing several U.S. precedents (on a point that is unlikely to differ much between jurisdictions.) Mann’s position contradicts Weaver’s.

Or was Weaver trying to be over-cute, like Greg Laden in an online petition seeking that Willie Soon be fired. One of his readers opposed Laden, saying “I do not think that it is a good idea to try to get scientists fired that one does not like. That would be a severe attack on the freedom of science.” In response, Laden tried a tactic seemingly similar to Weaver’s “clarification”, saying: “note that I did not suggest signing it, I suggested looking at it.” Laden’s protestations were too much even for Willard, a frequent online ClimateBaller, who (reasonably) said:

Come on, Greg. You promote the petition. Your title contains a question that presumes the petition will get signed. You have not disapproved the peitition. Now you’re invoking plausible de[n]iability. This is dog whistling. Please own your schtick.

A comment that ought to have been to Weaver long ago: please own your schtick.

4. Public Sphere Comments

National Post also argued that the words were not defamatory in law because they were “statements about his public actions and words, not his character” – a defence accepted in B.C. in Lund v Black Press, a case in which Weaver’s lawyer represented the defendants. In addition to the comments about Pachauri’s resignation, this argument applies to various other items in the Corcoran opinion column, including, for example, whether Weaver had made television appearances “linking current weather and temperature events with global warming, painting sensational pictures and dramatic links”. J Burke acknowledged this argument as follows:

[138] The defendants say there is a live issue as to whether any of the words are defamatory. The defendants maintain the statements are about Dr. Weaver’s public actions and words and, even if false, do not impugn his character. The defendants argue, indicating Dr. Weaver resigned from the IPCC, even if false, is not defamatory. It does not go to his character as there is no moral fault or turpitude that flows from that statement. There is also nothing in the nature of an attack on a person’s character when Dr. Weaver is said to have blamed the fossil fuel industry for attempts to breach security; that he criticized the IPCC and its chairman; that he wrote an article which fails to address key arguments and made some dodgy ones; or that he has distracted from the Climategate issues by focusing on the hackers. These are statements about his public actions and words, not his character.

J Burke purported to distinguish by saying that the allegations in the opinion columns were about character, as, for example:

[143] The impression created by Climate Agency Going up in Flames, the third article at issue, was that Dr. Weaver knew or believed the IPCC reports concerning global warming were unscientific and fraudulent and sought to avoid personal responsibility by disassociating himself from that organization.

However, as noted above, this was unequivocally not the literal meaning of the opinion column, but only an extravagant and unjustified inferential meaning fantasized by Weaver and accepted by J Burke: many other commentators, as noted above, had also called for Pachauri’s resignation precisely because they were concerned that Pachauri controversy would adversely impact their message about global warming. The above statement by J Burke should be firmly rejected.

At the time of Corcoran’s opinion column, there was enormous controversy over the Murari Lal controversy (Daily Mail), reported by Science News as follows:

A London newspaper reports today that the unsubstantiated Himalayan-glacier melt figures contained in a supposedly authoritative 2007 report on climate warming were used intentionally, despite the report’s lead author knowing there were no data to back them up. .. Said Lal: “We thought that if we can highlight it, it will impact policy makers and politicians and encourage them to take some concrete action.” In other words, Rose says, Lal “last night admitted [the scary figure] was included purely to put political pressure on world leaders.” A noble motive, perhaps, but totally inexcusable.

Corcoran directly referred to this controversy as “the latest IPCC fiasco”, directly quoting from the Lal interview with the Daily Mail, seguing immediately to a statement in which Weaver clearly disassociated the controversy from the overall picture:

it turns out one of those missiles — a predicted melting of the Himalayan ice fields by 2035 — was a fraud. Not an accidental fraud, but a deliberately planted piece of science fiction. The IPCC author [Murari Lal] who planted that false Himalayan meltdown said the other day “we” did it because “we thought … it will impact policy makers and politicians and encourage them to take some concrete action.” Mr. Weaver told Canwest that the Himalayan incident is “one small thing” and not a sign of a “global conspiracy to drum up false evidence of global warming.”

This incident is previewed in the lead to the Corcoran opinion column as the IPCC “cooking the books and spicing up the stew pots”, the “spicing of the stew pots” presaging the distinctly Indian aspect of the controversy:

A catastrophic heat wave appears to be closing in on the Intergovernmental Panel on Climate Change. How hot is it getting in the scientific kitchen where they’ve been cooking the books and spicing up the stew pots? So hot, apparently, that Andrew Weaver, probably Canada’s leading climate scientist, is calling for replacement of IPCC leadership and institutional reform.

The “latest fiasco” was Murari Lal’s statements about using information about Indian glaciers without backup to influence policy makers – an incident in which Weaver had no involvement whatever. Nor, in my opinion, would any reader of the article draw such a conclusion. As written, Weaver is represented as objecting to unethical practices in India, rather than endorsing them. The sting of Corcoran’s opinion column was not that Weaver was complicit in the Indian glacier and Climategate controversies, but that these incidents had caused even an activist like Weaver to call for changes in IPCC leadership. Needless to say, Corcoran took some pleasure in the apparent discomfiture of his long-time sparring partner.

But despite arguments from the defence that the allegations of “cooking the books and spicing the stew pots” – allegations that in context clearly refer to the Indian glacier controversy – had nothing to do with Weaver, the judge found that they had a “clear impact” on Weaver’s character. J Burke’s later reasoning on this topic is as disorganized and incoherent as her reasoning on pretty much everything else. I’ll try to return to the topic on another occasion. For now, I simply want to note that Burke’s denial of the public sphere comments argument is based on flimsy reasoning.

Conclusions

J Burke’s absurd acceptance of Weaver’s claim arose, in my opinion, from (at least) four substantial errors in respect to the libel count involving the Pachauri resignation (alone):

(1) Burke did not consider whether the words in their “literal meaning” were defamatory (presumably because they obviously were not). Burke skipped the standard step of determining whether the words involving the Pachauri resignation were capable in law of bearing the (extravagant) “inferential” meaning claimed by Weaver. Had she done so properly, she ought to have found that the words were not in law capable of bearing the inferential meaning claimed by Weaver.

(2) while deference is owed to trial judges on matters of fact, Burke got so completely (and provably) mixed up on an important factual issue that this particular finding of fact must be overturned. Burke found that, on January 26, 2010, Canwest reporter Foot was in possession of a Nature article that was not published until February 2 and relied on his possession of the Nature article to interpret Foot’s comments. In fact, the article in question in Foot’s possession was the Der Spiegel op ed of January 25 that unequivocally advocated Pachauri’s resignation, not the Nature news article of Feb 2,2010, which didn’t. Her gross error on this point contaminates her analysis.

(3) Burke did not properly consider whether the words concerning the Pachauri resignation were made by Weaver in a public capacity. Had she done so, she ought to have found that the words pertained to matters entirely within the public sphere and were not defamatory in law in British Columbia.

(4) Burke failed to carry out the WIC Radio test to see whether a person could have honestly believed that Weaver had called for Pachauri’s resignation and/or a change in IPCC leadership on the “proved facts”, which included Weaver’s statements to Foot, including his indicated agreement with the Der Spiegel editorial. Burke falsely stated that all the “facts” were “not true”, but this assertion was self-evidently untrue in respect to the Pachauri call, since Weaver did not contest Foot’s interview notes nor did J Burke find Foot’s notes to have been “not true”.

Aftermath

In Weaver’s interview with Foot, Weaver had expressed concern that Pachauri would start to feel “invincible”, but then Weaver and others shrank from challenging Pachauri. Five years later, Pachauri finally fell. Not because of acts of courage from tenured academic climate scientists, but from an oppressed young woman at Pachauri’s fiefdom in India. Pachauri’s emails quickly caused universal derision.

In September 2013, while policy makers and the public around the world was waiting for WG1 to address the growing discrepancy between models and observations, IPCC chair Pachauri was mooning over the uninterested young woman, sending her absurd love poems and texting her while he was supposed to be chairing IPCC meetings.

Just as Weaver could split hairs between “move on” and “resign”, Pachauri purported to be able to distinguish between “reverential” groping of a young female employee based on the degree of fondling:

And you have hurt me so often by being inconsistently cold on so many occasions. Not letting me touch you, even though I have always treated your body with reverence and as sacred. Perhaps, you regard a physical relationship as a matter of expediency and convenience. Well I don’t, and certainly not with your body which I worship, as you should have found out by not. Even when I “grabbed you body” I had my left hand over your right breast. Did I make even the slightest attempt to hold it in my hand or fondle you there?

Pachauri wondered why a young woman might be repulsed by advances of an elderly man who looked like the villain in a Disney movie:

But is a little show of tenderness so difficult for you? At the end of a long day is it so alien to your nature to sit on the sofa next to me and hold my hand, and possibly even give me a hug? Or do you want to confirm to me that you are bereft of any emotion…You are either deliberately behaving in a manner that prevents you from getting closer to me…or you are truly a cold individual, whose emotions are only aroused by a nice looking young guy who you can take to bed with you. [p. 10, line 367+]

As Donna Laframboise observed, how is a young employee supposed to react when a leering boss texts:

I dreamt last night that I did the preliminaries of making love to you, but woke up at the critical moment.

When the desperate young woman tried to evade Pachauri, the vain Pachauri demanded an apology from her:

you should reflect on the massive insult you heaped on me by indicating that I was so toxic that you would prefer not to sit next to me on the plane. If that be the case there is no room for any interaction between us…To me that act of yours represented the ultimate in haughtiness, arrogance and insulting behaviour. If you had any human sensitivity you would have realised what you have done, and possibly apologised.

While the Pachauri emails were somewhat unexpected, anyone who had read Return to Almora could hardly say that they were completely taken by surprise. The Almora protagonist expected “reverence” from young women with voluptuous and heaving breasts. Pachauri’s subsequent conduct doesn’t seem like a very big step from the Almora manifesto.

Weaver said that it was defamatory to Weaver to have said that he had called for Pachauri’s resignation. But surely Weaver’s greater shame is that he didn’t call for Pachauri’s resignation or that he shrank from the opportunity.



