Who gets final say on Whakaari?
Nanaia Mahuta, the minister in charge of the probe into December’s fatal eruption on Whakaari/White Island, has no planning jurisdiction over the island. Benn Bathgate investigates who will make the call on the island’s tourism future.
The Government will have no say on whether tourists are ever allowed to set foot on Whakaari again, and any move to restrict access could jeopardise the country’s entire tourism sector.
These are two of the findings from a Stuff investigation looking at whether, in the wake of the December 9 eruption that has claimed 21 lives so far, the popular tourism draw will ever be open for visitors again.
Two glaring questions remain after the eruption: will tourists ever set foot on Whakaari again, and who would make that decision?
But where the final say lies is less clear than the volcanic island puffing away off the Bay of Plenty coast.
At the direction of Whakata¯ ne Mayor Judy Turner’s office, questions were put to WorkSafe, the country’s primary workplace safety regulator and one of several agencies involved in investigating the tragedy.
The regulator’s reply revealed the limits of its authorisation over Whakaari.
‘‘WorkSafe is not in control of access to the island,’’ said a spokesperson.
‘‘WorkSafe understands that commercial access to the island is controlled by arrangements between the owners of the island and the operators. The decision to recommence land tours of the island will be up to those operating as Persons
Conducting a Business or Undertakings (PCBUs) and who wish to run these operations.’’
WorkSafe said its remit extended only to acting if the regulator believed operators were not appropriately managing the risks on the island as set out in the Health and Safety at Work Act 2015 (HSWA).
The limits of WorkSafe’s role were also raised by Workplace Relations and Safety Minister Iain Lees-Galloway.
‘‘There are serious questions that need to be answered and some may be broader than WorkSafe’s remit,’’ he said.
‘‘The Government is considering whether a broader investigation will be required.’’
Lees-Galloway also confirmed what WorkSafe told Stuff, saying ‘‘we don’t have any jurisdiction at all over White Island access’’.
At the top of the ministerial tree in relation to Whakaari sits Local Government Minister Nanaia Mahuta, the lead for the ministerial taskforce on the investigation.
The limits of her powers over island access were also made clear by a Government spokesperson who fielded Stuff’s questions to the Minister.
‘‘Minister Mahuta is responsible for offshore islands, even though Whakaari is privately owned and undeveloped, and she has no real planning jurisdiction,’’ they said.
Mahuta told Stuff that given the island’s privately owned status – it is owned by the Buttle family via Whakaari Management Ltd – ‘‘the owners’ permission is needed before anyone can visit’’.
She said at present, as well as WorkSafe, a coronial inquiry was under way into the deaths resulting from the eruption, and that the Government is ‘‘still considering what, if any, further issues require consideration in the wake of the Whakaari event’’.
Mahuta declined to answer whether consideration was being given to either a tweak to existing law, or new laws entirely, to enable a body such as WorkSafe to prohibit access to Whakaari.
A Pandora’s box
One reason for the ministerial
silence on access issues was offered by McGuinness Employment Law principal Charles McGuinness.
‘‘Suggesting White Island become a ‘no-go’ area would raise the question of why people are allowed to go anywhere that could be unsafe; glaciers, mountains, rivers, beaches,’’ he said.
‘‘I cannot imagine Parliament legislating for one case, when there could be any number of equally dangerous cases.’’
McGuinness said that while WorkSafe has a mandate to regulate ‘‘workplaces’’, there exist any number of workplaces that have risks, including within the tourism sector.
‘‘People would be horrified if it was suggested that no-one could do anything risky any more,’’ he said.
‘‘The collapse of New Zealand tourism.’’
McGuinness also revealed that a legal ‘‘overlap’’ exists between Whakaari’s owners and the tour companies, as regards their obligations under the Health and Safety at Work Act 2015, itself implemented after workplace deaths, in this case the Pike River mine explosion.
This overlap, in McGuinness’ view, appears to shift the onus for safety on Whakaari away from the tour companies and squarely on to the island owners.
‘‘More than one Person Conducting a Business or Undertaking could have obligations regarding keeping workers and other people safe,’’ he said.
‘‘For instance, here the entity owning White Island, and the tour operators, have overlapping obligations regarding health and safety. The HSWA requires them to, so far as reasonably practicable, consult, co-operate with and co-ordinate activities between themselves. ‘‘Because the owner of the island ultimately controls this ‘workplace’ it should ensure, so far as reasonably practicable, that the tour operators are health and safety compliant, before allowing them on to its property.’’
There is one area of law that could be utilised to prevent Whakaari access, but as McGuinness pointed out, it’s solely down to tour guide staff themselves.
‘‘The workers themselves could refuse to undertake the work,’’ he said.
‘‘They could use the process at Section 83 of the HSWA to ‘cease, or refuse to carry out, work if the worker believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard’.’’ While political hands appear to be largely tied on the issue of Whakaari access, two of the people who will likely act as decision-makers are keeping mum.
‘‘I think it’s too early to go there. We will take the advice of the authorities,’’ Peter Buttle, director of Whakaari Management Ltd, told Stuff.
Buttle’s remarks were echoed by a spokesperson from White Island Tours. ‘‘While the relevant authorities are investigating, it is not appropriate for us to answer questions on the events of 9 December 2019 or our operations,’’ they said.
Tough times without tours
For a political view closer to Whakata¯ ne than Wellington, Waiariki MP Tamati Coffey said he believed any decision on whether tours to Whakaari should resume should be left to White Island Tours. ‘‘Being iwiowned, I have no doubt they will take cultural considerations into account,’’ he said.
Turner declined to answer when asked directly whether she would like to see tours resumed, though she was clear about the importance of the island, describing Whakaari as the defining feature of Whaka¯ tane’s landscape, and ‘‘economically as the linchpin of our international visitor offering’’.
‘‘The island will continue to be important to our community, regardless of the decision around tours,’’ she said. ‘‘We continue even now to have manuhiri come to our district wanting to see the island, even if they are unable to land.’’
Turner was also clear about the continuing impact of the December 9 eruption.
‘‘A number of businesses, businesspeople and their staff and families have been profoundly affected by this event . . . we expect that a second surge of economic impact from this event will hit the business community when the busy summer holiday season ends, so we are braced for a tough year ahead.’’
She was not without some optimism too, however.
‘‘The shining light in all this is the amazing way our community, and particularly Nga¯ ti Awa, continues to respond to the crisis. We are resilient and resourceful and will get through this, but it will take a lot of hard work and we’ll need some help along the way.’’