Twenty-two people died after the eruption in December 2019. Photo: Supplied/Auckland Rescue Helicopter Trust
A lawyer for the owners of Whakaari/White Island has told a court that the tour operators were responsible for safety, not the company granting access to the volcanic island.
Whakaari Management, and four other companies, were fined and ordered to pay more than $10 million in reparations for health and safety failings in the lead up to the 2019 volcanic eruption that killed 22 people.
The owners of the island, James, Andrew and Peter Buttle, are challenging the criminal conviction of their company, at an appeal hearing in the High Court at Auckland.
Their lawyer Rachael Reed KC said the appeal does not diminish the owners' sorrow at the tragedy on Whakaari.
She said they brought the appeal because Whakaari Management (WML) was granted access to the island but did not run or supervise the tours.
"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. It did not run the tours. It did not direct or supervise the tours."
Reed said the tour companies, who have pleaded guilty under the Health and Safety at Work Act (HASWA), put tourists in harm's way and were there to manage their safety.
"WML gave the right to access Whakaari and The Walking Tour site when approached by the tour operators and asked to do so. And they asked the tour operators to use that right of access responsibly. That is the extent of it."
After the deadly eruption in 2019, WorkSafe conducted an extensive investigation into health and safety and took its findings to trial - WML was fined $1m and ordered to pay $4.8m in reparations to victims and their families.
Survivors and victims' families are listening to the hearing remotely.
The case is being heard by Justice Simon Moore. Photo: RNZ / Dan Cook
Opening the hearing, Justice Simon Moore acknowledged the 22 people who died and the 25 who survived but with serious injuries.
He said most appeals came down to a reasonably narrow or fine point, and this would likely focus on whether Whakaari Management had a duty under section 37 of HASWA and if it did, did it breach that duty as WorkSafe claims it did.
"That summary is incredibly simplistic, they are just headlines, the arguments that we will hear for and against those propositions will be very much more fine grained and detailed."
Reed said the arguments heard in the hearing "may appear sterile and cold, and that is not intended in any way to be disrespectful".
She said it would require an analysis of the law in a structured and methodical manner.
In Judge Evangelos Thomas's decision following the trial last year, he said the company 's failure to get risk assessments exposed others to risk of serious injury and death.
He said WML also consequently failed to install facilities that would mitigate the risk, and failed to ensure workers and tourists were supplied with appropriate personal protective equipment.
During the trial, the court heard the court had heard that WML was earning about $1m a year from charging tour operators an annual licensing fee, as well as a fee for each individual visiting the island.
The hearing is set down for three days.