The Whittall prosecution

December 13th, 2013 at 11:00 am by David Farrar

Stuff reports:

West-Coast Tasman MP Damien O’Connor also said the settlement looked like a “stitch-up”.

“The families have said they want justice more than money and this tragedy will have no end until justice is seen to be done,” he said.

Bridges denied yesterday’s announcement left New Zealand’s justice system a “laughing stock”.

“I disagree with that. It was a decision based on legal principles, and determined by the Ministry after clear legal advice from the crown solicitor and the solicitor general.”

He said he was advised of the decision only this week, after the decision had already been made. 

“I had no involvement in it, and that’s as it should be. I think politicians shouldn’t be involved in deciding whether or not to prosecute individuals.”

The decision was made after assessing the level of evidence available and whether or not it was in the public interest, Bridges said.

“In terms of the evidential test, the factors taken into account there included witnesses not being prepared to make themselves available, [and] contest between experts and other pre-trial issues. 

“And then in terms of the public interest, the assessment was that it wasn’t in the public interest to continue with a long, costly trial, with a low probability of success.”

One can sympathise with the families that they wanted to see a conviction in court. But if a trial had a low probability of a conviction, I’m not sure they’d be much happier having to sit through a five month trial, and have Whittall almost certainly found not guilty.

It is worth noting also that the charges Whittall faced could not have resulted in imprisonment. The only thing that could have happened was a fine and the stigma of conviction.

Whether or not he has a formal conviction, I doubt Whittall will ever be employed in the mining industry again.  In fact he may never again be employed by anyone. The stigma of a conviction would not change his employment prospects.

Whittall was hailed as a hero (including by me) for the way he fronted up and openly communicated during the immediate post-explosion stage. But I said at the time:

But he would know, that admiration for his post-explosion performance, will not protect him if it transpires that  Coal has some culpability for what happened. Admiration for fronting up does not remove accountability and responsibility.

The Royal Commission clearly found that there were numerous failings by Pike River, and Whittall. Note however he was mine manager, not CEO, for most of the time. If a prosecution of Whittall had a reasonable chance of success, then it should have continued. But it is very clear from what MBIE have said that their prosecution would have failed. The Judge all but said so herself.

The Herald notes:

Judge Jane Farish was doubtless on the mark when she said yesterday that the likelihood of a prosecution of Peter Whittall was “extremely low” and the case may never have reached trial. As such, it was right for the Ministry of Business, Innovation and Employment to drop the 12 health and safety charges against the former Pike River Coal chief executive. 

Cunliffe says he would force Pike shareholders to pay compo

November 20th, 2013 at 1:00 pm by David Farrar

Stuff reports:

Labour leader David Cunliffe has marked the third anniversary of the Pike River mine disaster with a promise to pay the full court-ordered compensation to the families.

“Under the Labour Government I lead, the Government will pay the full $3.4 million court-ordered compensation to the families of the dead miners,” he said today.

There are two things to note here.

The first is that we have ACC which Labour introduced as a no faults compensation system. All families have received large amounts of money from ACC.

The $3.4 million court order is for unlawful acts by Pike River Coal. It was Pike River Coal that was charged and found guilty. It was not the Government.

Now of course the Government can agree to pay fines on behalf of private companies. But should it? If there is a bus crash killing 20 people and an inquiry finds the Ministry of Transport needs better regulations on bus safety, would you want the Government paying the fine on behalf of the bus owner?

Cunliffe said he would be surprised if legal avenues were needed, but he left open that option as well as a legislative change as a last resort to force payment.

“The companies’ shareholders and directors have two choices. One is the easy way, the other is the hard way.”

As prime minister he would use the authority of the office, including perhaps a private dinner with the chairs of the relevant companies “where they see good sense and decide to take something back to their boards or a range of other tools at the prime minister’s disposal”.

That is quite extra-ordinary. It is close to blackmail. Pay the Government some money or else we will legislate to take it from you.  The precedent is beyond terrible.

It is not as if Pike River shareholders have got off with paying nothing. Basically every shareholder in Pike River has lost 100% of their investment. There were many small share-holders in Pike River. They lost every cent.  Now of course their financial loss is nothing compared to the tragedy of loss of life, but reporting often glosses over this fact – some readers may think Pike shareholders have got off with losing nothing. They lost every cent invested. And some like NZOG put in an extra $25 million off memory on a voluntary basis.

NZOG and Pike River

July 13th, 2013 at 4:00 pm by David Farrar

Trans-Tasman has a useful item on NZOG and Pike River:

NZOG has been named in last week’s Greymouth District Court decision of Judge Jane Farish as a party capable of contributing to the orders for $3.4m in fines and reparation, since Pike River Coal’s husk, in receivership, has nothing like enough in kitty to pay its fines.

Even though NZOG was in the process of quitting its unfortunate experiment in underground coal mining when the Nov 2010 blasts occurred, and even though Pike had already chewed through half of a $25m credit facility from NZOG by then, the Wellington-based oil and gas explorer gave the destroyed company access to the balance of those funds to tide it over. It also contributed $1m to a crisis fund and, perhaps most tellingly, allowed unsecured creditors – an array of third party, often West Coast contractors who faced potential ruin – access to $7m in claims NZOG might legitimately have had first dibs on. Pike River’s bank, the BNZ, took no such generous action.

This is a point worth making. NZOG have already gone well beyond what they legally had to do in helping families, suppliers and the wider community.

NZOG received an insurance payout of $42m on its losses from holding a 29% share of the illfated venture in which 29 miners died. One could even argue the company should treat the remaining $110,000 compensation per family as chump change, cheap at the price to preserve NZOG’s social licence to operate and to prevent more mud more sticking to the politically contentious oil and gas industry. NZOG may yet decide this is it’s best bet. Yet the company has every right to feel aggrieved by Judge Farish’s as yet unpublished decision. NZOG was neither a party to nor a called witness at the Pike River prosecution. The company was not named in the findings of the Royal Commission of Inquiry into the disaster as a culpable party.

Again a key point.

Now, with the written judgment not due for another week or so, NZOG is in a no-win holding pattern of saying it can’t respond without seeing the judgment. It’s not even clear there’s a right of appeal for NZOG. Another question arises – why just single out NZOG? Some 13.1% of Pike was in the hands of two Indian coal companies, Saurashtra Fuels an Gujarat NRE Coke, both attached to billionaire families, neither of whom has uttered so much as a public word of condolence to the Pike families. If NZOG is judged in the court of public opinion to owe the Pike families more, then why not every other out-of-pocket shareholder?

A fair point.

Pike River sold

March 9th, 2012 at 4:00 pm by David Farrar

Stuff reports:

 Pike River Coal has been sold to state-owned enterprise Solid Energy under a conditional agreement, receivers for the mine said today.

The receivers said they have reached agreement with Solid Energy New Zealand for the sale of the assets of Pike River Coal. …

”We, as the receivers, are pleased with this agreement as we consider it the best way forward for all parties. As part of the agreement, negotiations will continue with the Crown to establish a trust that will help oversee efforts to enter the main area of the mine and facilitate body recovery – if it is safe and technically feasible.

”In the meantime, work on the tunnel reclamation is continuing. We will provide further updates as appropriate,” Fisk added.

I suspect the families of the dead miners will be pleased with this sale, as Solid Energy has publicly committed to doing what it can to recover the bodies. The Government had said it would make recovery of the bodies a condition of transferring the mining licence, so this may be why other parties did not bid for the mine in the end.

An update needed

February 20th, 2012 at 7:15 pm by David Farrar

From the Forest & Bird website:

Coal is the dirtiest fuel – burning coal is the single largest global source of greenhouse gases, which are causing climate change. Burning coal also causes air pollution which has a direct effect on people’s health.

As well as the carbon released when coal is burnt, trapped methane (another greenhouse gas) is also released when coal is mined. For example Pike River Coal’s planned coal mining over the next 20 years will release trapped methane equivalent to more than all the dairy cows on the West Coast.

Maybe Forest & Bird want to now use a different example.

Solid Energy bidding for Pike River

March 14th, 2011 at 2:24 pm by David Farrar

Hayden Donnell in the NZ Herald reports:

State owned mining company Solid Energy has revealed it wants to buy the Pike River Coal mine, pay off its unsecured creditors and recover the bodies of 29 men still trapped inside. …

Solid Energy, which operates several West Coast mines including the nearby Spring Creek Coal Mine, today announced it was one of those looking to buy the rights to extract the $6 billion of coal still at Pike River through a mixture of opencast and underground mining.

Chief executive Don Elder said recovering the 29 bodies still inside the mine would be a priority in that proposal.

It was committed to addressing the “many challenges” of making the mine economically viable while respecting the wishes of the families of the dead, he said. …

“As a non-negotiable part of that, the wishes of the families have to be a priority in considering all options including potential recovery, if feasible, of the 29 miners’ bodies. The same applies to the unsecured creditors on the West Coast; any solution to invest in and work the mine needs to address that issue as a top priority.”

That’s possibly the best news the Coast has had, since the explosion.

Elder said the company’s plan would include opencasting parts of the mine.

Somehow I suspect the usual suspects won’t oppose this mine being opencasted.

Unions attacking Whittall

December 6th, 2010 at 6:08 am by David Farrar

Fresh from the PR triumph of attacking Sir Peter Jackson, the CTU continues its strategy of winning over the public by targeting Peter Whittall.

The Press reports:

Council of Trade Unions president Helen Kelly told a Canterbury Workers Educational Association function in Christchurch on Friday that Whittall should have apologised for the tragedy.

“He’s now been called a national hero, but he’s the CEO of that company and he hasn’t apologised,” she said.

“Even if the company did everything right, if it was me, I’d say: `I’m the employer. This has happened and I’m really sorry. I don’t know why, but I’m going to find out why’. But he hasn’t said that.”

Questions about what happened had not been asked, Kelly said.

“This is a very serious event. That mine was open for just over a year. There are 29 miners dead. We’ve got to be more mature about who we honour, how we think about things, what we demand. If that had been public Department of Conservation [land] we would have gone after them and said what had happened.

“But because it’s a company and because the CEO gets to sit next to the Prime Minister at the memorial service, the hard questions have not been asked.”

The CTU just don’t get it. Peter Whittall would not have insisted he be on the stage and one of the speakers at the memorial service. The PM would not have decided who the speakers are. I’m bet you that it was at the request of the miners families, that Whittall was on the stage as one of the speakers.

I’ve remarked on radio how unusual it is that the CEO of the mine where 29 people died has become a national hero. This must be very frustrating for the unions. But the reality is it is the way Whittall conducted himself that has won people over.

But he would know, that admiration for his post-explosion performance, will not protect him if it transpires that Pike River Coal has some culpability for what happened. Admiration for fronting up does not remove accountability and responsibility.

But this is why we have a Royal Commission – to establish the facts. I think it is unwise for various unions to already be trying to denigrate Whittall.

They have not been alone there. Cindy Baxter of Greenpeace facebooked soon after the tragedy a list of Pike River Directors, labelling them “the people who developed the mine that just killed 29 people”. An extra-ordinary rush to judgement.

We also had a Labour MP on day one of the explosion tweet about how the company must be asked the hard questions to prevent a cover-up and how the unions are key to this. This was before we even knew if anyone was dead.

Engineering, Printing and Manufacturing Union (EPMU) national secretary Andrew Little acknowledged Whittall had not sought hero status, but said failures on the part of mine managers or “the guys underground” could have caused the disaster.

“We need to reserve judgment until we get credible answers to questions about why it all happened.

“The company has been treated as somewhat heroic and in a way I think it’s somewhat undeserving.”

Little is correct in saying we need to reserve judgement. My admiration for Whittall’s response to the explosion in no way means that Pike River Coal should not be held accountable if the facts warrant it.

I think Andrew is wrong though in saying the company has been treated as somewhat heroic. Whittall has been, but he is not the company. People have empathised with the fact he knew every single miner killed – in fact had employed them all, and so obviously grieved for them.

In yesterday’s HoS, Matt McCarten had the same theme:

under his watch, 29 men were killed and still lie entombed. Family members and friends of the dead have been robbed of a loved one. Many other workers, as a result of the explosion, will lose their livelihoods.

Unbelievably, the chief executive of this company becomes a media darling.

He did not become a “media darling” for what happened. He gained respect because he did what so many people say they want CEOs to do – he fronted up constantly, he did not spin, he did not lie, he told the truth. He was real.

If you have followed the media coverage you’d think the whole tragedy was just an unavoidable accident.

On the contrary, I think no such thing.

EPMU v Pike River Coal

December 3rd, 2010 at 3:47 pm by David Farrar

NZPA report:

The miners’ union says Pike River Coal is insisting that its lawyers sit in on official police and Department of Labour investigation interviews into the mine tragedy which claimed 29 lives.

The union said that was potentially “contaminating” the process.

However, Pike River said today it was only making employees – many of whom had no prior contact with the police – aware of their legal rights.

The Engineering, Printing and Manufacturing Union, which represents miners, said today the company’s stance was causing major conflict.

“Management is insisting on the right of company lawyers to sit in on interviews. Their lawyers are sitting in on interviews with the Department of Labour and police,” general secretary Andrew Little said.

However, Pike River Coal chairman John Dow said it was up to individual employees whether lawyers sat in on the interviews.

The company was only trying to ensure its staff got the appropriate advice on their rights, and how the process worked.

“We are trying to find out what happened, our only interest is getting to the bottom of it – what caused the explosion and making sure it won’t happen again.

“We’ve said to our employees that if they are not happy having lawyers in the room, that’s fine.”

So the EPMU is arguing that the employees should have no choice in whether or not a lawyer is present for their interviews.

A Department of Labour (DOL) spokesman said it was the employee’s choice to decide whether company lawyers or other representatives attended on DOL interviews.

“We are informing employees that they have this choice.”

As it should be.