WorkSafe prosecutor Kristy McDonald KC on the first day of the Whakaari/White Island trial in the High Court at Auckland. Photo / Lawrence Smith
WorkSafe prosecutor Kristy McDonald KC on the first day of the Whakaari/White Island trial in the High Court at Auckland. Photo / Lawrence Smith
OPINION
It’s not every day you get a call from the New York Times. Forty-five minutes later an Uber to the airport would see me hiring a rental car and driving to my hometown of Tauranga.
There, I’d see the harrowing effects of a tragedy where families of victims ofthe Whakaari White Island eruption were escorted back to their berthed cruise ship - Ovation of the Seas. Strangely, a year earlier I was on that same cruise ship with my mother and sister.
Growing up so close to Whakaari, fears of the eruption would haunt me as a child. At 2.11pm on 9 December 2019, the volcano erupted, killing 22 people and injuring 25 more. The active volcano had 42 eruptive periods between 1826 and 2019.
When I arrived in Whakatāne the next morning the air was eerily calm and clear, there were few signs that something so terrible had happened the previous day. The contrast was jarring.
A year later in November 2020, WorkSafe laid charges against 10 organisations and three individuals. Fast forward to last week and the trial against 10 organisations and three individuals started in the Auckland High Court. Expected to continue for at least three months, it’s arguably the biggest case brought by WorkSafe to date.
At the heart of the legal situation is the Health & Safety at Work Act 2015, which came into effect on April 4, 2016.
Under sections 30 and 36, a “person conducting a business undertaking” - which could be a business or individual - must manage risk, and do what is “reasonably practicable” in the circumstances to ensure the safety of persons in or around the workplace. Failing to do so could lead to a fine of up to $3 million and/or five years in jail.
Whakaari Management Limited and its directors - Andrew, James and Peter Buttle - own and control the island.
Iwi tried and failed to secure property rights over the island. The island passed into European hands in the late 1830s, and was officially recognised in 1867 via the Native Land Court.
The island was a workplace for the guides and thus would fall within the Health and Safety at Work Act. Judge Evangelos Thomas dismissed the Buttles’ application to have their charges thrown out in May.
Companies ID Tours New Zealand Limited, and Tauranga Tourism Services Limited, are also among those defending charges in the WorkSafe judge-alone trial. They marketed tours to cruise ship passengers.
Other charges were also laid against National Emergency Management Agency (NEMA), and Crown Research Institute GNS Science - the country’s lead agency for monitoring volcanoes.
To recap, weeks prior to the eruption, the volcanic activity level had increased to level two. GNS monitors volcanoes via its GeoNet programme. GNS Science pleaded guilty in May to charges relating to multiple trips GNS’ staff took to the island in the lead-up to the eruption.
An aerial view of Whakaari/White Island after it erupted on December 9, 2019. Photo / George Novak
NEMA had its charges dismissed in May after successfully arguing the application of the Health and Safety at Work Act would lead to absurd outcomes.
“NEMA did not carry out any work physically on Whakaari, it did not send workers to Whakaari, it never placed any person on Whakaari,” Judge Evangelos Thomas said.
“Today’s hearing is not about whether NEMA did its job properly – it may have, it may not have – it is only about whether WorkSafe can use this particular law to prosecute NEMA.”
It was awarded costs of $40,000.
White Island Tours Limited was also charged, which operated tours via boats. This is a sad one. Ngāti Awa paid $9 million to buy the company in 2017, and to develop work opportunities for iwi members. It has also provided a number of health initiatives for the community. As an aside, The iwi settled its Treaty of Waitangi claim with the Crown in 2005 in cash and Crown-owned land, fisheries quota, and forests, for example.
The company pleaded guilty to two charges in June and will be sentenced following the four-month trial. GNS will also be sentenced following the trial.
Inflite Charters pleaded guilty and was sentenced in March last year. Judge Thomas said the company had failed to monitor and review known hazards following the GNS alert, failed to implement an adequate risk assessment, and “failed to ensure risk information was available to clients”.
The company was fined $227,500 and prosecution costs of $40,000.
Commercial helicopter tour operators Aerius Ltd, Kahu NZ Ltd, and Volcanic Air Safaris Ltd also pleaded guilty.
For context, Kahu’s chief executive officer Mark Law, together with pilots Tom Storey, Jason Hill, Tim Barrow, Graeme Hopcroft, Callum Mill, and Sam Jones received New Zealand Bravery Decorations last year for helping in the recovery efforts following the disaster.
Dispatch orders from the national air ambulance service deemed landing on the island too dangerous, but the pilots went anyway.
I remember feeling for the pilots at the time, a case of damned if you or damned if you don’t. There was a sense of public outcry and desperation to retrieve those who’d suffered such a tragedy, but I feared there’d be WorkSafe consequences.
Interestingly, WorkSafe specified the charges did not relate to events on the day of the eruption or the rescue efforts. It could be seen as a small, bitter-sweet win, for such a huge role in what was a hideous tragedy for so many.
