How a Volcanic Eruption Led to a Criminal Trial

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In 2019, a volcano erupted off the coast of New Zealand, 22 people who were visiting the volcano, died. Emily Clark covered what happened next. She's a journalist on the foreign desk for the Australian Broadcasting Corporation. Emily?

Thanks for being here. Thanks for having me.

“Tell me a little bit about Fakari, which is also known as White Island, it's off the northern”

coast of New Zealand, just talk about this volcano a little bit. Yeah, it's really unique in that, when we say volcano, I don't want you to picture this kind of peak, which lava coming down the side. It's not that kind of volcano, it's crater is a ball, and when it erupts, it doesn't have lava that spills out of the top, it is gas, toxic gas, debris rocks, with immense pressure

that has built inside, and actually that crater is the peak, and the rest of the volcano is underneath the ocean. Now if you think about the part of the volcano that tourists and guides were able to access that day, it was the very, very top of it, so it's a little bit different in terms of the classic vision you might have of volcano and an eruption, a very, very dangerous.

This volcano, this island, which has this volcano on it, it's somewhat unique because it's a privately owned island. How did that happen? States back two generations, the bottle family, their grandfather, thought it might be nice to own an island.

He was a broker in Auckland, and it became available, and he bought it, and it was passed down through the generations, and it's still privately held by three, the three bottle brothers, but the brothers have held it, and didn't necessarily make a lot of money off it for a long time.

They were attempts to mine it, but ultimately that was kind of unsuccessful and too dangerous,

and there were attempts at other kinds of tourism, but it's absolutely wilderness. It's so difficult to do anything there. It's difficult to even get big boats, very close to its coastline, so if you think about the infrastructure that's required to really do something at scale, even though it's this novel place, it's just really difficult and really expensive, but they had come to

an arrangement with some two companies to run these small group tours into the crater, and those were offered on cruise ships that would pull up nearby. It was a really kind of interesting arrangement where it's not, there was a lease, almost like a lease fee paid, but then also almost like a commission paid for every tourist that was on the island, the private owners would get a fee.

So it's a little bit of a strange structure, not a typical kind of landlord tenant situation, but they sort of did have this regular tour operation on the island that the owners

Before 2019, how dangerous was this volcano thought to be?

I mean, there were tour groups, there were cruise ships pulling up to the island. Very dangerous. I mean, this was a volcano that was actively monitored by New Zealand's volcano monitor, and they had raised the level to a level two, which is one step before a full-scale eruption, this week's before. It's sold as one of New Zealand's most dangerous and most active volcanoes.

That's in the brochure that tourists kind of can look through before taking the tour. So that's, as I sort of say, like the culture in New Zealand around what you can do there,

the tourism there, you can jump off cliffs, you can go on volcanoes,

you can speed around, a sound and a jet boat, that's part of the cell, and it's so, yes, it's a dangerous and active volcano that was monitored from a scientific and a regulatory perspective, but also sold from a tourism perspective.

“And did those tourists who were going to visit, had planned their trips?”

Were they made aware that the level, that the threat had been raised, you know, level two, level three, that it was now more dangerous? Yeah, that was kind of the big question going into the trial, and I guess what was most

profound and moving to me was hearing from survivors and hearing from families of people who didn't

survive, but what came up time and again was the refrain. I was in New Zealand, I thought I would be safe. I'm almost everybody said it, once they were on the stand, but we heard a lot of detail around when they were made aware of the level of activity that this volcano was at and it was when they were standing on it. So not necessarily in the crater, but they're off the cruise ship, they've taken the bus to Fakotani, so that's the journey, they've taken the smaller boat

to the area around the island, they've taken a number of smaller boats to get up to its coast, they've climbed this kind of old ladder that leads up to the jetty, they're standing on the island, they've been given gas marks, and they're told that it's one level below a full-scale eruption.

“Let's talk about December 9, 2019. How many people were on the island that day?”

It just tell me who was on the island and who were they? There were 47 people on the island. That's a mix of two guides, helicopter pilots, and tourists, mostly tourists, but lots of Australians, they're also tourists from the United States, which we heard from in the trial, Germany, there were some New Zealanders as well, people from China and other countries. So, a real mix, but I guess the people that we heard from in the trial, that's where I got

the most sense of who they were, there are a lot of people that were nervous about, you know, hadn't done something like this before, and you know, one woman from America said, "You know, I really had to be talked into it. I was so nervous. I just, I'm a warrior." I remember her saying, and I saw myself in her, I just thought, "I don't like volatile things," and I could tell that she didn't either, and so, you know, I wouldn't characterize,

“I think it's hard to characterize the whole group, but I wouldn't say that they were dead devils,”

or anything like that. It was just kind of normal people on holiday, they'd been on a cruise, they were looking to relax and decided to go on an excursion. And then tell me what happened. At about just past two o'clock in the afternoon, while two two groups were on the island, one that's kind of referred to as the deep crater group, the right down in the center of the crater, and one that was more on the rim,

the volcano moved to a full-scale eruption, so hit that level three. And we've heard from people that did survive, and we've seen video that they were literally taking at the time, capturing a moment. We've seen photos that were taken in the seconds after, and they're running for their lives, and some people managed to survive, I mean, they were horrifically burnt, and will be in rehabilitation for the rest of their lives, but by hiding behind a series of rocks.

It lasted for two minutes, so what we heard, and from there it's this agonizing,

for an emergency evacuation in any way. And we heard from a young man who survived, but lost

all of his family, where he knew he was conscious, and he knew he could walk, and he was looking at his parents, and he had to make a choice about, if I stop for them, I know I won't be able to get back up again, is what he told the court, and he decided to keep walking, and just listening to him, talking through, making that decision, it was just awful,

“and you just know that his life is like altered forever. But he made it back to the journey,”

and then there was kind of this re-telling of, if you think about someone's been severely burnt,

has steam and gas burns, and they're trying to make their way down a ladder. That's probably

being in place for nearly 100 years or something. It's just one kind of challenge after another, and then we heard from a young woman who also was evacuated, but she managed to make it to the journey. She managed to get on a boat. She knew she had to get back to land, and she was laying on the deck of this boat, aware of chaos around her, but at the bottom of the wall of the boat was a hole, and she could see land, and she thinks that that view, and that sort of kept her alive,

because she was just able to see it getting just ever so closer, over the course of an hour or so,

“and that's just getting back to the mainland, but it's a very small town. Fracatana is a small town.”

Even I really got the sense that even surviving that initial blast, some of the most difficult

decisions, the trauma, the sense of really being just in such a difficult situation, where your life is on the line, but you're all of a sudden that wilderness that you kind of wanted to see is now absolutely working against you. We'll be right back. Support for criminal comms from growth therapy. You don't have to wait until you're in crisis to start therapy. For all those moments when you feel like you want more support,

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what WorkSafe New Zealand is? Yeah. WorkSafe New Zealand is basically a regulator.

“So a government agency set up to make sure that businesses, other agencies are complying”

with the obligations under the WorkSafe Health and Safety Laws in New Zealand. And WorkSafe New Zealand itself was born out of a massive disaster in New Zealand called the Park River Mind disaster where men were trapped underground. Some of them haven't been found. And there were found to be likely problems with the safety of that mine. And so it kind of led to this broken mission and

this reckoning around what needed to happen to make WorkSafe New Zealand. So if we wanted to talk about

those 13 defendants and what to kind of allegations where the crux of the case was that

“three individuals who owned the island, their company and other to nine other parties”

had breached their obligations under the WorkSafe Health and Safety Laws. And that led to a catastrophic event for mass fatalities. The owners was on WorkSafe New Zealand to prove their argument that this was a workplace that not only the people who were obviously at work like two a guides but also the people in their care tourists were protected under WorkSafe legislation and then that there had been breaches of that by all of the parties. There's something unique to New

Zealand. It's the state run no fault insurance scheme. I called the accident compensation

corporation. I had never heard of something like this before. What is this accident compensation

corporation? Yeah, so this is basically a no fault system. So a no fault personal injury cover that exists in New Zealand. So you can't sue a company in New Zealand if you're injured. There's a no fault kind of rule and that's because of the existence of the A double C. So what that means is there's not kind of a health insurance private health system there in the way that there is in other parts of the world including the US. Everyone who was injured on that island

was taken care of in New Zealand public health system for free. So there's this kind of two systems that work together where you can't sue because there's this no fault legal framework under which all businesses in New Zealand operate but if you are injured you'll be looked after and so that's where a lot of people who were injured or everyone who was injured on for carry sort of fell. They were looked after while they were in New Zealand. But when they went home

there is no way to make a civil claim. So it's these two systems that work together. There is quite a unique model but there are some scholars who believe it almost means that you can operate and not really have to really think about the risk and not really have to have an insurance company assess it at any point to say maybe we're not going to cover you for taking people into the crater of an island of an island that is actually a volcano like that that part of the process

“doesn't happen in New Zealand. There was a criminal trial held in 2023. What was that trial like?”

It was fascinating. It was six hours a day for 10 weeks a live stream made available. We heard at the start from survivors, family members of people who didn't survive, colleagues of people who didn't survive. So really harrowing testimony at the start where you really got a sense of how desperate and hopeless that day was and that rescue effort was. And then it moved into really technical aspects like legal technologies learning a lot about volcanoes and how difficult they

are to monitor. And right down to the closing that people were wearing and that they should have

kind of the worst thing that you can be wearing. But if you're in like loose cotton,

“the burns were less severe so like we were getting into so much detail about fabrics and warnings”

and you know that the safety equipment was just a gas mask and a hard heart and not anything else that you might wear when you go into a highly toxic potentially combustible environment. So it was a wide-ranging trial and not all of those 13 defendants made it to trial. Some did plead guilty before the day. The three brothers, their company and then two other kind of two

accompanies made it to trial. Before the trial was over, the three individuals, the three brothers

and the two two accompanies had had their charges dismissed and it was the company that the brothers owned that technically holds the island for carry management limited that was found guilty at trial but has since challenged that, appealed that and had the conviction overturned in the high court. So it's really everything that we went through at trial really didn't produce anything. It was only the parties that had plead guilty beforehand or had charges downgraded and then

“plead guilty beforehand that register convictions. I mean what were the sentences?”

They're fines. So yeah, fines and then orders to pay pay damages, as you said. I think that there's something that the judge said during this sentence in the tour companies and he said that they used an active volcano to make money. That was kind of the overarching theme here's you knew what could happen. They was literally in the brochure and that was a bit argument of the prosecution where X-rays lawyers all the way through and sort of part of their argument as

to why the brothers were according to them liable as well because it wasn't just a traditional landlord tenant arrangement. So the brothers, the bulk owner's defendant's lawyer would say, well you know, am I as a landlord responsible for the operations and the workplace safety that my tenant, a commercial business is conducting or not conducting and can't you logically think about that and you're like, well, no, that would be really unusual. But this is an active volcano

now. So it is an unusual situation and it was established early on in the trial that the brothers and their holding company were receiving almost a commission for each tourist that visited the island, which is also not a typical landlord tenant situation. So very messy and even though the trial judge believed that Fakari management limited that the brothers company was obligated to meet those workplace health and safety standards and didn't, there was a different school

of thought at the high court and that they ruled that that's not a workplace and that the

“owners is not on them. So it's thrown out. Yeah, it's dismissed. I think those brothers”

should have to pay a little money. I can't think the trial judge agreed with you. I mean that that's a written, I mean, you have, yeah, it's like a responsibility to humanity. You know, we see a risk, let's shut it down, but that's just my opinion. I wasn't, I wasn't, I'm not making the decisions, but I would say those, you know, that's a problem, I would say. Yeah, I got the sense that it might have been different if this was a different legal approach, but because this was

through the lens of it being a workplace, they were able to say well it's not our workplace and be successful in that argument. There's still a corner's inquest going on in New Zealand

related to the eruption. What does that mean in New Zealand? Basically, this is where there's

being deaths that need to be investigated at a kind of court level. So a coroner can be appointed to say, okay, there might, there haven't necessarily been charges or there may have been, but

looked at again and it's a commission of inquiry that's held in a court setting and we have

“them in Australia as well. A lot of the time it's pressure builds from families or survivors or”

something and it's another level of inquiry. Witnesses can be called testimonies heard, sometimes it's open hearing, sometimes it's not and it's kind of a forensic look and seem to be much more transparent than maybe a police investigation or something like that. Can any new charges be brought after this you know, coronal inquiry when new information, when it ought more information is put out there more testimonies, is there that possibility? Yes, it's a possibility, absolutely. The inquiry

itself doesn't do that, but it might make a recommendation and it might be that it's something like Pike River where they recommend a different regulatory environment where that gets changed again that actually this private volcano is slipped through and we need to make a change. So the recommendations

might not always be charges, it might be something structural to prevent it happening again.

Since the eruption is for current open to tourists, can you still go to the island? No, I don't believe you can. I think it was shut down immediately after and it's been very active since then. We saw it get back to a level two multiple times. I think even last year it went to a level two. I am not aware that it's been open and I would be very surprised if that was to happen particularly with an inquiry still ongoing. The appeal and the high court, you know, only finished

“up last year. It's a very active place and I think the worst thing has happened and it's changed forever.”

It has this inquiry, the disaster, has it impacted the way that tourism operates in New Zealand? Have you seen? Has anyone seen any more stringent safety protocols for other volcanoes for river rafting? I mean, are people more wary now? I'm too sure. I mean, I think in the certainly in 2023, when this was in the news every day, yes, there was a sense that there was almost, I guess, some reputational work to be done. You know, this is tourism and

extreme tourism and getting to do things that you can't do anywhere else is a big part of the cell of New Zealand and that sort of needed to be restored and, you know, Fakari erupted in the December before the pandemic began. So there's this real moment where there was kind of business as usual in New Zealand tourism and then a massive disaster that people all around the world were affected by and then the pandemic announced kind of the after-time. So definitely a period of recovery

for the industry generally. Well, thank you very much Emily. Thank you. That's Emily Clark from the Australian Broadcasting Corporation. We're trying something new and sharing videos of these Tuesday conversations on YouTube. If you'd like to watch, you can find all of our videos at youtube.com/criminalpodcast or just click the link in our show notes. I'm Phoebe Judge. Thanks for listening.

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