Owners of Whakaari/White Island have company's conviction quashed

Correction: This story has been amended to reflect the conviction that was quashed was against the company, Whakaari Management Limited, and not the Buttle brothers as individuals.

The owners of Whakaari/White Island have had their company's conviction over the volcano's deadly 2019 eruption, which killed 22 and seriously injured 25, quashed.

Whakaari Management Limited, owned by Brothers Andrew, James and Peter Buttle appealed the conviction, in which they were fined $1.045 million and ordered to pay $4.88m in reparation to the victims.

In a High Court judgment released on Friday, Justice Simon Moore said the brothers did not manage or control the island off the coast of Whakatāne.

Justice Moore said through the brothers' company Whakaari Management Limited (WML), they simply owned the land where licensed walking tours took place.

He concluded those walking tour operators and others, including the Institute of Geological and Nuclear Sciences (GNS), took a leading role in allowing visits.

For 11 years from 2008, WML granted licences allowing commercial tour companies to run guided walking tours on the crater floor of the island volcano.

On 9 December, 2019, when the volcano was at alert level 2 status - moderate to heightened volcanic unrest - 42 mostly international tourists and five tour guides were on the island when it blew up.

Following the disaster, WorkSafe NZ brought charges under health and safety laws against 13 parties including Whakaari Management, companies that operated guided walking tours on the island and others.

Whakaari Management was charged with failing to comply with a duty to manage or control a workplace, or a duty to ensure the health and safety of those on the island because of its business.

WorkSafe alleged that either failure exposed people to the risk of death or serious injury.

But before the case could get to trial six of the parties had their charges dismissed.

After the judge-alone trial in the Auckland District Court in 2023, Judge Evangelos Thomas found Whakaari Management guilty on one of the two charges; breaching its duty under section 37 of the Health and Safety at Work Act 2015.

But the Buttle brothers appealed to the High Court arguing their company did not have a duty because it did not manage or control the workplace where the walking tours took place.

They claimed they did not breach any duty and if there was such a breach, they did not expose individuals to death or serious injury.

Justice Moore, who retired in November and whose judgement was reserved, agreed and found WML did not have a duty to ensure the walking tour was without risk.

He found the Act imposed a duty on people with the ability to "actively" manage or control a workplace, rather than on those who had some element of control and management through ownership.

Justice Moore considered it significant the "workplace" where the walking tour happened was on bare land.

This meant there was nothing for Whakaari Management to manage or control on the tours other than granting access, which meant it did not have "active" management over the workplace.

He said while WML had some degree of management because of granting access, it was insufficient to impose a duty because Parliament had intended, when creating the law, for the duty not be imposed on landowners simply because they permitted others to carry out activities on their land.

Justice Moore also rejected that WML had a duty because it was paid for allowing the walking tours.

He said there was nothing in the licence agreements that gave WML the ability to direct and control what was happening on the island on a day-to-day basis.

Instead, his review of the evidence led to the conclusion it was the walking tour operators and others including GNS who took a leading role as to what happened on, and whether to allow visits to, the island.

WorkSafe's case was that Whakaari Management should have obtained a risk assessment in permitting walking tours, and that visitors should have been given protective clothing and an adequate means of evacuation.

But the High Court agreed with WML that their own risk assessment was not reasonably practicable, and that the company relied on operators to undertake those assessments, and on GNS to supply relevant information.

WML also argued WorkSafe approved audits of operator White Island Tours for its registration as an Adventure Activity operator, both before and after an eruption in 2016.

Justice Moore said the appeal was allowed and the conviction should be quashed.

However, he noted that had Whakaari Management been under an obligation to obtain a risk assessment from GNS, it would have appreciated the heightening risk of an eruption in the lead up to 9 December, 2019, and that this would have informed its decision-making about whether to continue to permit tours.

WorkSafe New Zealand said it acknowledged the High Court decision and was considering next steps, including on whether to seek to appeal.

A spokesperson said the convictions and sentences of the six other entities prosecuted by WorkSafe remained.

The lawyer for the Buttles, James Cairney, said the family welcomed the decision which he said showed the responsibility for the safety of visitors to the volcano remained with tour operators.

He pointed to Justice Moore's comment that it was difficult to see what more could have been expected of Whakaari Management as the landowner who was "merely permitting others to undertake their own activities on their land for a fee".

Cairney said it was important for the family to bring the appeal as it had wide ranging ramifications for landowners throughout the country.

"The family hopes this decision will bring certainty for all landowners who grant others recreational access to their land."

He said the decision also reflected that Whakaari Management's directors acted responsibly - that the directors exercised proper care.

"This decision reinforces that the charges against the directors were rightly dismissed by the District Court following the trial."

Cairney said the family hoped the decision would be the final chapter in the criminal proceedings but he said the appeal against the company's conviction and the decision "in no way diminishes the tragedy the victims have suffered".

He said the family's hearts "absolutely ached" for the victims.

One victim, through her lawyer, told RNZ in March last year they felt the Buttles need to "admit their guilt".

The Australian victim, who wanted to remain anonymous, said in a statement: "If they had not opened the island up for tourism, which was purely a money making opportunity - none of this would have happened".

WorkSafe approved audits of operator White Island Tours for its registration as an Adventure Activity operator, both before and after an eruption on the island in 2016 - which happened overnight.

The victim said they had no idea the danger the volcano imposed.

"How could anyone morally let another person on onto that island knowing there was a potential for that type of damage or injury, I will never understand.

"It's greed-driven, inhumane and completely immoral."

The appeal judgement singled out GNS Science and pointed to other tour operators such as White Island Tours and Volcanic Air Safaris, as taking a leading role in allowing visits.

In a statement, GNS Science said it presented its position and co-operated fully throughout the course of the prosecution. It said its science team continued to monitor Whakaari and shared that information widely.

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