It seems a lit tle ironic that while I sat in a Wellington hotel conference room nearly all day on a Sunday in May being briefed about the new rules for health and safety, a group of four wheelers were becoming trapped by snow in Central Otago. I confess that their day was probably more exciting than mine and it appeared that they had the health and safety issues fairly well covered, apart from getting it wrong on the amount of snow that was to fall on them. It was certainly good to see that despite giving the local search and rescue crews a challenge, the four wheelers were unharmed by their enforced overnight stay and needed only transport home. There’s probably another story around the eventual recovery of the trapped vehicles once the snow recedes. The new Health and Safety at Work Act ( HSWA) rules now overlap significantly into recreation. The HSWA is aimed at making everyone’s responsibilities clear and it places duties on people who are able to contribute to the control of work health and safety risks. Everyone has a ‘ duty’. A person or persons conducting a business or undertaking is now labelled as a ‘PCBU’. However, a voluntary association has a slightly different level of PCBU responsibility and their volunteer officers can’t be prosecuted if they fail in their due diligence duty. That said, workers need to take ‘reasonable care’ to ensure their own safety and the safety of others… which means if you see something stupid about to happen, you should say something! A 4x4 trip leader would most likely be identified as the PCBU on the day and the Act identifies that you must comply with reasonable instruction and cooperate with reasonable policy. The ‘ due diligence’ clause would probably give some latitude to the trip leader in not knowing everything about the participants and their vehicles, but it might mean that some effort had been put into gaining knowledge of what risks the planned activity might pose. Again there is minimal liability for ‘volunteer’ involvement such as casual volunteers assisting with sports, things like park clean ups and fundraising activities. A volunteer ‘officer’ has a duty, but if not paid, you have duties but can’t be liable. This would probably be what 4x4 recreation would fall under, but we’ll need to behave as if we do have a full duty, as until the legislation has been tested in Court and something definitive ruled around who exactly is a volunteer, it will be a grey area. It would be expensive to be a test case in a prosecution. There is another category of ‘volunteer’ that includes people like volunteer firefighters, etc. and they too have a slightly different status, but despite that it still always comes back to the statement that ‘everyone has a duty of care’. Within that duty is to manage risk and the criteria has slightly changed to simply eliminate risk, or if ‘reasonably practical’ – minimise. ( What is, or was, reasonably able to be done to ensure health and safety, taking into account and weighing up all reasonable matters.) PCBUs must discharge their duty to the extent possible, based on ability to influence and control the matter. This Act obviously has many landowners rather spooked again, but in the case of farmers, the Act identifies that they only have a duty for a ‘work place’ and while farm buildings are such a workplace (except a farm house), areas of farm not being actively worked on are not regarded as a workplace, which considerably reduces their duty to people visiting their land for recreation. There is no duty to anyone who does not have permission to be on a property. The NZFWDA have some material on their website about the duties of landowners etc. and there is information on the Act at www.business.govt. nz/ worksafe That meeting in Wellington was in fact the NZFWDA annual meeting, which was a low key affair with many familiar faces and an increasingly higher average age. The association officers were all re-elected unopposed and the finances remain healthy. The president, Neville Dunton, made the point that over the past year his estimates suggested that over 2000 hours had been expended by the national executive as volunteers, with the HSWA lobbying and interpretation being vital to maintaining access to the land we need for our recreation. In the report presented by the national public relations officer, Roger Seymour, he decried the Environment Court action taken in the 1990s by four wheel drive clubs over the potential stopping of the Johnson Road unformed legal road ( ULR) in the lower North Island as a waste of effort. He wrote “Some people justified it as setting a precedent, but I have never seen any evidence over the years to support this”. I’m one who does regard that case as a valuable precedent, as any review of subsequent Environment Court road stopping cases will show that no cases challenged on the basis that the road has a value to recreation, have since succeeded in having that road stopped. I was directly involved with the subsequent Higham Road case in the Environment Court and the Johnson Road case was referenced by the Court as a precedent. More recently there was a ULR on the West Coast that again was denied stopping by the Court because it provided recreation access to the coast. All those cases have been as legitimate responses to proposals to eliminate public lands for private benefit and only ended up in Court after other options had been exhausted. Hopefully the strength of those precedents will mean a reduction in proposals to stop many of the ULRs that are practical for access and recreation: we will continue to need those for the future.