The National Emergency Management Agency (NEMA) is facing an anxious wait to find out if its appeal for a dismissal of charges related to the Whakaari/White Island volcanic eruption has been successful.
At a preliminary hearing in Whakatāne District Court, Judge Evangelos Thomas heard submissions regarding the motion to dismiss charges under Section 147, which NEMA initiated after charges were brought by WorkSafe following the 2019 disaster. Twenty-two people were killed in the eruption and 25 others injured, many with third-degree burns.
NEMA is accused of failing to take steps to eliminate or reduce the likelihood of exposing individuals to risk of death or serious injury from volcanic activity.
It was one of 13 organizations accused of failing to keep tourists safe on Whakaari/White Island between April 4, 2016 and December 10, 2019 – the day after the eruption.
* Whakaari/White Island trial not expected to begin until 2023
* Stricter regulations on adventure tourism could give politicians the power to shut down activities threatened by natural hazards
* Whakaari/White Island defendants all plead not guilty
The Crown agency argued, through defense barrister Victoria Casey QC, that the application of section 36(2) of the Occupational Health and Safety Act 2015 would lead to “absurd” results.
The article reads as follows: “A person who runs a business or a business (PCBU) must ensure, as far as possible, that the health and safety of other people are not endangered by the work performed in the course of conducting the business or business.”
Casey argued that WorkSafe’s view was ‘dangerous’, and citing the affidavit of former NEMA executive director Carolyn Schwalger, said it was the local Civil Defense emergency management groups (CDEM) that have operational functions, not NEMA.
“CDEM groups operate completely independently of NEMA, except in very rare circumstances,” she said.
“In the event of a national state of emergency, the director of emergency management may direct the conduct of a local CDEM group, but New Zealand has experienced two national states of emergency in its entire history – the one declared in Canterbury in relation to earthquakes (2011), and one in 2020 in relation to Covid.
“One of the areas of concern that NEMA has raised with WorkSafe is why did they tie [this] on the national body instead of the civil protection emergency management group, who actually has the operational function? »
She explained NEMA’s roles in terms of operational responsibilities – including promoting research initiatives, risk reduction strategies, and raising hazard awareness and emergency preparedness in communities and organizations.
“These are the roles and they are nothing like the roles that WorkSafe is charging NEMA in this lawsuit,” Casey said.
She acknowledged the “unusual” circumstances surrounding the NEMA Section 147 request, agreed that people “want and need answers” and said wrongdoers should be held accountable.
“NEMA is the only central government agency before the court in this lawsuit.” Casey said.
“Justice matters to my client – a small agency of around 60 staff who between them have responded to dozens of emergencies during this busy time, including earthquakes, cyclones, floods, fires, infrastructure failures and the appalling shootings of March 2019.
“The accusation that these personnel are responsible for the death and serious injuries of 47 people (in Whakaari/White Island) weighs very heavily.
“NEMA is not advocating for a narrower-than-usual attribution of health and safety law, or trying to evade liability on the basis of a technicality – on the contrary, we argue that this accusation is so totally wrong, that it is simply impossible that a conviction can be obtained at trial.It is not fair that NEMA and its staff be subjected to this trial process.
In her opening to Judge Thomas, WorkSafe prosecutor Kristy McDonald QC stressed the importance of NEMA’s role, both as New Zealand’s civil defense body and as a government agency primary accountable to the Prime Minister’s Department and Cabinet to identify and analyze life-threatening hazards.
“It is necessary to take steps to eliminate these risks if possible, and if not, to reduce the magnitude of their impact to an acceptable level,” McDonald said.
“The hazards that NEMA must identify and analyze are exactly the kind that resulted in the tragic deaths and serious injuries to tourists and workers in Whakaari on December 9, 2019.”
The prosecution went on to detail NEMA’s legislative framework and relevant strategic and operational documents, including the memorandum of understanding it had with the New Zealand Crown research institute GNS Science, in particular as regarding Whakaari.
GNS Science was also charged over health and safety issues before the eruption.
She also pointed to a statement on NEMA’s own website, which reads: “NEMA provides leadership in risk reduction, emergency preparedness, response and recovery. NEMA is leading government, building a safe and resilient Aotearoa New Zealand by empowering communities before, during and after emergencies.
“It’s not just words on a page,” McDonald said. “There is a lot of jargon and bureaucratic talk in what is contained in Ms Schwalger’s affidavit, as is the case with Wellington, but at the end of the day it all means that NEMA is involved and that it has a role in carrying out work on reducing the risks associated with volcanic hazards.
She went on to point out that this role included consulting and coordinating with the GNS on an ongoing basis to ensure that NEMA understood the level of risk posed by volcanic hazards on Whakaari and communicating that risk to the public.
“The public would expect nothing less from the lead civil protection agency,” she said.
“NEMA clearly had a duty to ensure, as far as possible, that the health and safety of tourists and Whakaari operators were not endangered by its work.
“NEMA is seeking to have this charge dismissed at this early stage, and before your honor hears evidence, on the basis that it says it owes no duty to the relevant public.
“The alleged duties are entirely consistent with the requirements that NEMA should have met as the lead agency for volcanic hazard management in New Zealand – to understand the hazard and to communicate hazard information in a meaningful way.
McDonald went on to say that there was “nothing exceptional” in what is alleged against NEMA, and that their assertion that “the floodgates will open” and a finding of obligation against it will lead to “all sorts of appalling and onerous results for other agencies is hyperbolic and wrong”.
“It is surprising that a government agency, a civil protection agency charged with responsibility for risk reduction in an emergency, as happened in Whakaari, resists the suggestion that it has a duty to reduce risk and take steps to warn tourists and tourist operators of increased volcanic activity,” she said.
Of the 13 defendants, the remaining 12 individuals and organizations have all pleaded not guilty ahead of a lengthy trial due to begin in July 2023.
The owners of Whakaari Andrew, James and Peter Buttle and Whakaari Management Ltd, the Institute of Geological and Nuclear Sciences, the National Emergency Management Agency, White Island Tours, Volcanic Air Safaris, Aerius Ltd, Kahu NZ, Inflite Charters, ID Tours New Zealand and Tauranga Tourism services were all charged after WorkSafe filed a total of 20 charges.
GNS Science reportedly failed to ensure the safety of pilots traveling to and staying on the island.
Adjourning the case, Judge Thomas acknowledged the “difficult set of issues that we all have to grapple with”. A decision is expected in May.