This is a translation of an article which appeared in Estado de Minas Gerais on 9 November 2020
The judgement in this case can be read here. LMN is dismayed by this further barrier to justice for the huge number of people affected by the Samarco disaster, a disaster which our partners in Brazil do not hesitate to call a crime. You can read all our coverage of the Samarco disaster here.
Five years after the disaster, Judge Sir Mark Turner of the Manchester civil court considered that it would be an abuse for those affected by the collapse of the Fundão Dam in Mariana to seek redress in the United Kingdom against the English company. The decision is subject to appeal.
“This is an abuse and an insult to those affected. We will appeal immediately,” said Tom Goodhead, the coordinating lawyer at the PGMBM office, who represented affected people. BHP Billiton said that the decision reinforces the reparatory actions underway in Brazil. According to the Federal Public Ministry (MPF), the rejection of this case was a bucket of cold water on the attempt to achieve justice, because in the half decade since the greatest socio-environmental disaster in Brazil less than 10% of affected people had received any compensation in the country itself.
The affected people who are said to be abusing the UK legal system are artisanal fishermen, farmers, artisanal miners, shellfish collectors, artisans, washerwomen, Indians and quilombolas who survived (before the dam collapse) on an average monthly income of R $ 1,026 and the families of low income with R $ 657. After the disaster, general earnings fell to R $ 525 (-49%) and those on low income to R $ 178 (-73%), according to information from consultancy Ramboll (which assists the MPF).
Requests for damages from 200,000 riverside dwellers, quilombolas, indigenous and affected Brazilians who had their lives and properties devastated by the collapse of the Fundão Dam five years ago in Mariana were considered “abusive” by the UK courts on Monday.
In the decision published on Monday (9th November 2020), Judge Sir Mark Turner, of the Civil Justice Centre in Manchester (in the North West of England) considered abusive the claim for compensation of those affected, based on the duplication of cases Brazil and the United Kingdom and creating turmoil in the justice system in the country where the mining company is based.
“Actions involving several groups constitute a great burden for the courts”, says the sentence, in agreement with the defence lawyers of BHP Billiton. It takes into account that those affected “claim that achieving justice in Brazil is practically impossible”, but still consider the claim to be abusive.
The decision says:- “If my conclusion of abuse is correct, but my decision to eliminate (the claim) is wrong, I would maintain the claims (of the affected people) and leave open the possibility for the claimants, or some of them, to seek suspension in the future (of the action not having been admitted in England), but without pre-determining the timing of such an application or the circumstances in which such an application would be likely to succeed “.
Judge Turner considered clause 34 of the Brussels regulation of European Union international law, which deals with the overlapping of cases in different countries. However, in his decision, the English judge stated that Brazilians are represented in a public civil action of the MPF, which is collective and has been pending since 2018, with no outcome. This process requires R $ 155 billion in repairs and has been moved again this year due to the lack of compensation for the damages to affected people.
The judge also agreed with BHP on the allegation that those affected by the disaster are covered by the Governance Conduct Transactional Adjustment Term (TTAC-Gov), signed by the companies causing the devastation and the public authorities, but which led to the reopening of a public civil action by the MPF for its non-compliance.
The allegation of duplication of indemnity claims caused surprise precisely because at least 58 people, companies and local authorities are not represented in any Brazilian lawsuit against the mining companies and are thus not involved in duplication of cases.
Since 2018, the victims and their Brazilian and British lawyers from PGMBM have pursued indemnity proceedings against BHP Billiton in the United Kingdom.
On July 22, the office took requests for justice for 200,000 people affected by the breach to the Manchester Civil Justice Center, in North West England, for compensation from BHP Billiton. The Anglo-Australian company is the largest mining company in the world and alongside Vale it controls Samarco, the company responsible for the dam collapse in Mariana that killed 19 people, destroyed the Rio Doce River Basin and polluted the coast, in Minas Gerais and Espírito Santo on 5th November 2020. This is the UK’s largest lawsuit in value, reaching 5 billion pounds (about R $ 35 billion) and the action with the largest number of Brazilians represented.
201,897 people are represented by PGMBM, 517 small companies, 13 large companies, 145 Krenak Indians, 25 municipalities in 96% of the affected area, 154 churches and five businesses. In this international legal battle, more than 30 thousand pages of documents have been generated and were consulted by 127 authorities and distilled into about 500 pages. The legal documents of the defenders and claimants were about 200 pages each.
It was agreed that, if the case were accepted in the UK court, all claims and procedures would be based on Brazilian justice, as well as requests for moral and material damages, water supply disruption, business loss of profits, losses on public properties and expenditures of city halls to meet the needs of the calamity and subsequent loss of taxes and rates.
The indemnity proceedings decided by federal judge Mário de Paula Franco Júnior, of the 12th Federal and Agrarian Court of the State of Minas Gerais, in Baixo Guandu (ES) and in 12 other counties may have influenced the decision of the English judge Sir Mark Turner, in the opinion of PGMBM.
The sentences that provide for compensation from R $ 23 thousand to R $ 93 thousand were considered abusive and can be suspended by a writ of mandamus from the Federal Public Ministry (MPF), under consideration since the 26th by the judge Daniele Maranhão Costa, president of the Court Federal Regional Office of the 1st Region. According to the warrant, the legal processes and the damage formulae for the harm to affected people and the environment, benefit the Renova Foundation and its owners Samarco, Vale and BHP Billiton. So far there is no provision for a decision by the judge.
PGMBM managing partner Tom Goodhead said he was disappointed by the judge’s decision, but said an appeal would be inevitable. “Even if the judge had given us the case, we would have an appeal. So this is a normal course of proceedings. What amazed us was how the judge let himself be confused by the artifices of BHP Billiton lawyers. this is due to the decisions that occurred in Baixo Guandu and criticized by the public prosecutors “, said the English lawyer.
“It was a very flawed process, which undermines 30 years of jurisprudence and practice in the English courts, and contradicts binding decisions of the English and European Supreme Court,” says Goodhead.
His astonishment, according to the lawyer, has become a motivation to continue defending those affected by the disaster. “We will appeal immediately. This has more than motivated us to continue this fight. We will sue them (BHP) until the end of the world. A decision like this did not even cross our minds. An abuse against 200 thousand people and an insult to whom was the victim of an environmental crime that has gone unpunished for 5 years, ” he said.
According to BHP Billiton, the decision of the Manchester Superior Court was clear and agrees with BHP’s position about the lawsuit filed against the company in England. “BHP has always understood that the process in the United Kingdom was unnecessary for duplicating issues covered by the Renova Foundation’s ongoing work and which are, or have been, the subject of ongoing legal proceedings in Brazil,” said the company.
For the company, the decision also reinforces the point that the compensation and remediation programmes in Brazil conducted by Renova are the most appropriate means for people and communities affected by the Fundão collapse to seek redress. BHP also said that it has always been and remains fully committed to the reparatory actions and to the work carried out by the Renova Foundation in advancing the programs under its responsibility.
“It is important to highlight that until September this year, Renova has already disbursed R $ 10.1 billion in the remediation and compensation programs”, highlights the company. Among the actions, it transferred more than R $ 830 million for investments in education, health and infrastructure in cities in the Rio Doce basin and also paid, until August 2020, about R $ 2.6 billion in indemnities and emergency financial aid to more than 321 thousand people. “Even informal workers, struggling to prove how they were affected, started to be paid: since August this year, more than 500 workers in these categories have received their compensation and almost 6,000 informal workers have registered to have their demands analysed by the Foundation”.