The owners of an island volcano in New Zealand that erupted in 2019, killing 22 people, launched an appeal on Tuesday against their criminal conviction for violating safety laws.
They argue that tour operators – rather than their company – were responsible for the safety of visitors to Whakaari, also known as White Island.
Whakaari Management, a company owned by brothers Andrew, Peter and James Buttle, was found guilty last October of a charge brought by New Zealand’s workplace safety regulator of failing to protect visitors to the island.
It was ordered to pay millions of dollars in fines and restitutions to victims of the volcanic eruption, who were tourists from a cruise ship, and their local guides.
The company in March filed an appeal. On Tuesday, lawyer Rachael Reed told the High Court in Auckland that the trial judge had erred when he ruled the volcano’s owners were the managers or controllers of a workplace under the law – and were therefore responsible for mitigating health and safety risks to anyone present.
The company only granted access to the volcano, Ms Reed said, and expected the tour operators to manage the safety of tourists there.
“Just like any landowner, it had the ability to and did grant the right of access to the land through licences. That is what it did,” she told the court, referencing the company. “It did not run the tours. It did not direct or supervise the tours.”
White Island, the tip of an undersea volcano also known by its Maori name, Whakaari, was a popular tourist destination before the eruption.
There were 47 tourists and tour guides, mostly from the US and Australia, on the island when superheated steam blew, killing some people instantly and leaving others with agonising burns.
The disaster drew attention to the natural hazards around which much of New Zealand’s adventure tourism industry operates and prompted tighter laws for tour companies after survivors of the eruption said they had not been told the active volcano was dangerous before their guided walk to the crater.
After a three-month trial last year, a judge found the company guilty of health and safety failings in the period before the eruption.
In his ruling, Judge Evangelos Thomas said Whakaari Management had failed to undertake a risk assessment despite being aware of an eruption three years earlier.
Judge Thomas said the company should have sought expert advice about the dangers and either stopped the tours entirely or put controls in place. He dismissed a second charge against the company.
Charges were brought by New Zealand’s workplace safety regulator against 13 organisations and people, including the owners’ company.
Some pleaded guilty, including three companies that operated helicopter tours, one that operated boat tours, a scenic flight operator and the New Zealand scientific agency GNS Science. Charges against others were dropped.
In the three-day appeal this week, Justice Simon Moore is expected to hear further submissions from lawyers for Whakaari Management before arguments from the regulator.
Moore told the court that any error found by the trial judge must rise to the level of a miscarriage of justice for the appeal to be successful.
