Solid Energy runs huge legal risk re-entering Pike River mine

21 December 2016

Pike River families have protested at the closed coal mine and at Parliament. They want professionals to re-enter the mine to retrieve the remains of their deceased loved ones.

What are the merits of their plea and what impact may health and safety laws have had on the decision not to re-enter?

On November 16, 2010, a violent explosion ripped through the mine on the West Coast and killed 29 men.

Their bodies have remained in the mine ever since. Few things could be more painful than losing a family member in such a horrible tragedy and then being unable to retrieve the remains.

There is a very deep human instinct to decently bury your deceased loved ones and be able to say your farewells.

Last month Environment Minister Nick Smith tabled in Parliament a re-entry feasibility study commissioned by the mine's owner, Solid Energy. It showed that re-entry was not feasible.

The Pike River protesters say they have engaged experts who say there is a safe way to search the mine. They want to present this new plan for re-entry to the prime minster.

Protesters went to lengths to blockade the access road to the mine to prevent Solid Energy from permanently sealing it with 20 metres of concrete.

Those who studied what happened in the Pike River mine may have been horrified at the dangerous environment the men were placed in and the failure of the directors to take responsibility for health and safety.

Former Pike River chief executive Peter Whittall faced 12 charges after the disaster, but they were all dropped. Despite the loss of 29 lives, there was no successful prosecution for what occurred.

An Independent Task Force on Health and Safety and a Royal Commission were set up to investigate. One of the positive consequences of the disaster was the new Health and Safety at Work Act, which was the first significant reform of health and safety law in more than 20 years.

There is a terrible irony for the Pike River families that the new legislation which came about as a result of the tragedy is now preventing the re-entry to the mine they are pushing for.

In deciding not to allow re-entry to the mine, Solid Energy will be concerned about breaching the Act.

Unlike previous legislation the Act carries hefty penalties, and by allowing people into the mine when they know it to be dangerous, Solid Energy could face severe sanctions.

The Act has a wide scope, placing duties to ensure safety in the workplace, so far as reasonably practicable, on any person conducting a business or undertaking. Now individuals involved with the management of businesses can face penalties personality.

Conduct that is reckless as to the risk of death, serious injury, or serious illness (and certainly knowing the risk places Solid Energy in that category) carries a fine of up to $3 million, or for an individual, a $600,000 fine and/or five years imprisonment.

So if Solid Energy has a report from experts telling them it is not safe to re-enter the mine, they would be taking a huge risk to ignore that advice.

Under the Act it is not necessary for someone to actually be killed or injured in the workplace for sanctions to be imposed. Failure to comply with a duty to ensure health and safety, which exposes persons to the risk of death, serious injury or illness, carries a fine of up to $1.5m or $300,000 for individuals.

Even if no one is exposed to the risk of death, serious injury or serious illness, but a duty within the Act is not complied with, you can be fined up to $500,000, or $100,000 for individuals.

Solid Energy would face huge liability if the mine was re-entered, not to mention how disastrous it would be if harm to more people occurred in Pike River.

The prime minister has said the issue is not a political one, it is a health and safety one, and he is most certainly right.

In any event, the protest to stop the sealing has now largely ended as the blockade and protesters on the access road have been removed, on threat of arrest.

The lesson from Pike River must surely be to err on the side of safety.