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Spotlight on corporate manslaughter Hugh de Lacy The absence of a corporate manslaughter charge for New Zealand prosecutors to use in the wake of industrial accidents is again coming under the spotlight. Following the Pike River Mine disaster, the lack of such a judicial option has been unwittingly highlighted by the appointment of Scotsman Tony Forster as chief executive Extractives of Worksafe NZ’s High Hazards Unit. Forster was appointed last year to oversee the implementation of changes to the Health and Safety in Employment Act in the wake of the Pike River tragedy, in which 29 miners died in November 2010. Before taking up his new role in February last year, Forster was Her Majesty’s Principal Inspector of Mines for the United Kingdom and Northern Ireland, and as such had a lead investigatory role alongside the British police into the Gleision Colliery accident in Wales that occurred just ten months after Pike River. Four miners died in the Gleision accident in September 2011 when the mineshaft they were working in flooded after explosives were detonated. It was the worst mining accident in Wales in 30 years. Forster’s role in the investigation contributed to the laying of four corporate manslaughter charges against MNS Mining Ltd, and for of manslaughter by gross negligence against mine manager Malcolm Fyfield.
Their trials began late last month and are expected to last eight weeks. Forster was due to give evidence some time around Easter. The British response to Gleision contrasts with the New Zealand response to Pike River, where the company, its mine manager and the Department of Labour (now part of the Ministry of Business Innovation and Employment, MBIE) appear to have got off scot free despite a Royal Commission of Inquiry detailing long-running major health and safety mismanagement. Asked if the failure to hold anyone accountable for the Pike River deaths was because New Zealand lacks a corporate manslaughter law, Forster declined to comment, in part because the Gleision matter is sub judice, but also because as a non-New Zealander and a recent arrival in this country he said it was not his place to tell New Zealand lawmakers what laws they should b making. Mining company Pike River Coal was charged and convicted on health and safety failings, but was unable to pay the $760,000 fine or $3.41 million in reparations levied against it because it was in receivership. Charges were also lodged against Pike River’s mine manager, Peter Whittall, but were withdrawn in a courtroom deal that saw Whittall’s insurer pay the victims’ families the $3.41m in reparations. The only other party successfully charged over Pike River tragedy was an Australian company, Valley Longwall International Drilling Pty, which lost three employees in the accident, and was fined $46,800 for health and safety failings.
Forster a man on a mission Hugh de Lacy
Tony Forster
The High Hazards Unit (HHU), to which Forster was appointed as Chief Inspector Extractives, was formed by the MBIE after the Pike River disaster to manage low possibility/high consequence health and safety issues, and has been retained since the passage of the commission of inquiry’s recommendations into law as the Health and Safety in Employment (Pike River Recommendations) Act. Quarrying and alluvial mining regulations under the Act are expected to be written between 2015 and 2017.
Pike families hopeful of re-entry soon Jo Bailey
“It hasn’t been easy, but is going
Pike River families’ spokesperson Bernie Monk believes re-entry of the mine could happen within the next few weeks. “There is no set date. However we’ve been aiming for the end of April and I haven’t heard anything to the contrary. Hopefully it won’t be too far from that date.” Bad weather during early summer put the plan back two or three weeks, but it’s on schedule again now, he says. “I can’t express enough how hard the guys from Solid Energy have worked, and the amount of effort various government departments have put in behind the scenes to make this happen. “It hasn’t been easy but is going according to plan now. The families really appreciate it and have taken a step back to let them get on with it.” Monk and two or three other representatives from the families of the 29 men who remain entombed in the mine, meet every second week with the government and Solid Energy to update progress. The project to re-enter the mine’s main tunnel began last September, when government approved conditional funding of a staged plan to re-enter and explore the drift up to a rock fall about 2.3km from the mine entrance.
according to plan now. The families really appreciate it and have taken a step back to let Bernie Monk
them get on with it.”
The bodies of the 29 men are believed to be beyond the rock fall. Work got underway in October, with help from the New Zealand Defence Force which removed 20 tonnes of machinery and equipment from the mine’s entry. Monk says several bore holes have been drilled with cameras put down to check for damage underground, which hasn’t been as bad as first thought. “There appears to be no major damage where they are going to put a wall in which is positive, although more camera work still needs to be done.”
He says the families’ current priority is getting down the drift. However they are also working “frantically” on stage two - the recovery of their men. “We are having conversations behind closed doors with our own experts. “Hopefully once stage one is completed, we can come together with government and Solid Energy and talk about stage two.” Getting into the mine will answer a lot of questions for the victims’ families, he says. “It will hopefully give us some clues as to what happened, with our ultimate goal always to bring our men home.”
“Rogues and cowboys” be warned: Tony Forster, the new Chief Inspector Extractives for Worksafe NZ’s High Hazards Unit is out to get you. Forster, who grew up in Scottish coalcountry under the shadow of the mine deaths of his grandfather and an uncle, says he is not looking for a fight but if rogues and cowboys continue killing people in New Zealand’s mines and quarries, he’ll be after them. While New Zealand struggles to come to terms with the loss of 29 lives in the 2010 Pike River catastrophe, Forster himself has always seen mine safety from a highly personal perspective. His mother, Bridget Forster, never knew her father, Patrick Murphy, because he died following a pit accident in a Scottish mine when she was only six months old. And then her uncle, Michael Murphy, was killed outright in another accident, his body trucked home on an open cart. “People have got to get it into their heads that [a mining accident] is not just a statistic: it’s a life-changing tragedy,” Forster says. Beginning his mining career on the end of a shovel in a Scottish mine, Forster rose to become a colliery manager and then deputyhead of industrial relations for the British Coal Corporation, before switching his focus to health and safety by joining the UK Health and Safety Executive. Before coming to New Zealand last year he was Her Majesty’s Principal Inspector of Mines for the United Kingdom and Ireland, and in that role was able to offer the head of New Zealand’s Mine Rescue Service, Trevor Watts, any help he needed in the aftermath of Pike River. It turned out there was nothing that could be done, and only now is there an operation under way to try to retrieve the 29 bodies still entombed in the mine. Forster’s jurisdiction covers not only mines but quarries, and by 2017 he’ll have prepared codes of compliance for them even though they have for the time being opted out of regulations already being drafted for mines. He’s not expecting resistance to the codes from the quarrying industry, but he says he’ll be gunning for those operators who think they can put workers on machines, “point them in a general direction of a hole and tell them to start digging.”
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mining.cat@goughcat.co.nz Autumn 2014 » Mining NZ 7