Sasha Borissenko: White Island - Who will be bearing the legal brunt in a liability sense?

A week on from the White Island eruption, we seem to have moved rather quickly on to the manhunt. Photo / File

COMMENT:

It's been a week since the tragic Whakaari eruption. We've followed the mayhem, then the masterminds, or experts trying to explain what has happened, and now with such sadness and loss, we seem to have moved rather quickly on to the manhunt.

There's a variety of players: the Local Government Minister, the Whakatane District Council, Bay of Plenty Regional Council, Ovation of the Seas, and GNS.

A case of spreading the load, or passing the buck comes to mind.

But based on what I've been told by legal experts, White Island Tours will be bearing the legal brunt in a liability sense. I find it particularly sad for Ngati Awa Holdings Ltd - owned and operated by Ngati Awa - seeing as they provided work for their community, they're behind some great public health initiatives, and they took hold of the company - or some might say took back what was rightfully theirs - just two years ago.

It should be noted that the iwi tried and failed to secure property rights over the island. The island passed into European hands in the late 1830, and was officially recognised in 1867 via the Native Land Court.

According to Ngati Awa leader and Whakatane District Council senior cultural adviser Pouroto Ngaropo, it's time for Whakaari to be returned to her people. "She is part of our cultural estate. The Buttles have the legal title, but the spiritual and cultural title belongs to us."

Whakaari had had enough as it was never her intention to be used primarily as a tourism vehicle, he said.

It's not about tourism in Māoridom, but rather walking in the footprints of their ancestors. "We are merely guardians of the land, ensuring that it's in the best condition for future generations."

The rhetoric reminds me of the destruction of the pink and white terraces as a result of the 1887 Tarawera eruption, which brought me to tears as a 10-year-old. Along with the "eighth wonder of the world," around 120 people died in the tragedy.

On the issue of owning an active volcano and safety regulations: Otago university Andrew Geddis said there's nothing in New Zealand law that says you can't own a volcano, and "what sort of safety regulations would be appropriate to visit a live volcano, where the very attraction is that it is active (and so, could explode)?

White Island Tours will be bearing the legal brunt in a liability sense. according to legal experts. Photo / AP

At the heart of the legal situation is the Health & Safety at Work Act 2015, which came into effect on 4 April 2016. Under section 30 and section 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. Under section 47, if you fail to do this, you could get a fine of up to $3 million and/or five years in jail.

We've seen no jail sentences in New Zealand yet, but since the Act's introduction there's been significant case law. In the 2018 case of Marris Couper Logging Limited a victim struck with the wire rope, pinning him to a hill. He survived but suffered fracture of the lateral tibia plateau to the left leg. The company was fined $384,000 - the highest fine to date - for failing to provide a safe system of work, failing to supervise workers, and failing to provide the necessary information to workers.

Carter Holt Harvey Limited was fined $371,250 in 2018 and Avon Industries Limited was fined $371,250 that same year. Both of these cases involved accidents relating to the logging and construction industry.

There are also cases relating adventure businesses. The 2018 case of Bounce & Beyond NZ Limited concerned an accident on an inflatable indoor playground. A four-year-old child sustained rope burns and significant bruising after using a rope to climb to the top of a slide, where he was in the rope by his neck. The company went into liquidation and was not in a position to continue with the proceedings.

Pre Act cases include the 2014 case concerning Tree Adventures Limited, a high ropes activity business. A participant incorrectly attached his pulley to a wire and fell 13 metres to his death. The company was found guilty and fined $24,500. In Cathedral Cove Dive Limited the victim was not adequately supervised while wearing inadequate scuba equipment in the water. They drowned as a result. The company was found guilty, but no fine was imposed. New Zealand School of Outdoor Studies Limited also concerned a diving accident that resulted in death. The company was fined $53,625.

It seems that a situation such as this is unprecedented. According to Geddis, White Island Tours may be liable under Health and Safety legislation, meaning WorkSafe could bring a case before the District Court.

And - according to Auckland University law professor Bill Hodge, then the question is whether WorkSafe could prosecute the Buttle Family Trust as occupier of the land, which was a workplace for the guides. The Trust - in theory - could be a person conducting a business or enterprise, to the extent that the licensing of tours was an undertaking.

But for now, the investigation continues and it's just so horribly sad for everyone.