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Brazil: Mariana disaster victims get their day in court

Tailings dam victims are 'bringing the law back home'



In April this year, a delegation of representatives from mining-affected communities in Minas Gerais, Brazil came to London, on a mission to raise awareness of abuses committed by transnational mining companies – including two with connections to the UK.

The delegates came to accompany an Everest-sized lawsuit filed against the Anglo-Australian mining giant BHP by the law firm PGMBM, on behalf of over 200,000 Brazilian plaintiffs affected by a tailings dam disaster in 2015. Nineteen people died when the Fundão dam failed at an iron ore complex run by Samarco, a joint venture between BHP and the Brazilian company Vale. Forty million cubic metres of toxic mining waste went flooding into the local river system, eventually reaching the Rio Doce. The tailings then travelled 650 km as far as the Atlantic Ocean, devastating the entire river basin – an area the size of Portugal. It remains Brazil’s worst-ever environmental disaster.

The delegation to London also included people affected by a second tailings dam failure in January 2019, at the Córrego do Feijão iron ore complex near Brumadinho – in this case, owned and operated solely by Vale. The death toll here was much larger: 270 people were killed, mostly workers at the mine, with the disaster also polluting the nearby Rio Paraopeba and related ecosystems.

Finally, representatives of communities affected by the vast Minas-Rio iron ore complex and pipeline – owned by the British multinational Anglo American – also made the trip to London. The mine, 160km north of Belo Horizonte in Minas Gerais, produces more than 20 megatonnes of iron ore which is crushed, mixed with water, and pumped through a huge slurry pipe 500km to Porto Açu on the Atlantic Coast. Production had to be drastically cut in 2018 due to leaks in the pipeline.

Focus on the victims

Though in 2020 BHP dismissed the class action lawsuit as ‘pointless’ and ‘wasteful’, the most recent hearing, in July this year, was a successful appeal that secured jurisdiction for the plaintiffs in England. This is a victory for mining-affected communities around the world, and should serve as a warning to other companies which operate with impunity, traverse a tightrope of operational negligence, and do the bare minimum to repair the damage when things go wrong. The plaintiffs are seeking £5 billion in damages.

Following the failure of the Fundão dam, Samarco, its parent companies, the Brazilian federal government, and the governments of the two states affected – Minas Gerais and Espírito Santo – established the Renova Foundation, a non-profit organization, to oversee a process of ‘Recovering the water basin, resettling residents, and compensating the families who suffered direct losses’, according to Vale.

For Rafaela Guerrize Conte, a legal Associate at law firm PGMBM, it’s a flawed system: the mining companies hold all the cards, and Renova prevents affected parties from accessing justice through more formal routes. Indeed, BHP has pointed to the establishment of Renova and the money that it has spent in Brazil as an argument against allowing the lawsuit brought in England to proceed.

‘Many of the affected people are small-scale producers who had no paperwork for their property they lost, no records of how many fish they caught, how many cows they owned,’ explains Letícia Aleixo of Cáritas, a Catholic aid agency which has been assisting people displaced by the disaster. ‘They had no means of proving their losses.’

In late 2020, with many of these informal workers yet to receive anything, the courts established a new, ‘simplified’ system of compensation. Over the following 10 months, it made payments to over 50,000 people. However, critics – including prosecutors at Brazil’s Federal Prosecution Service (MPF) – argue this new system is abusive. The process of calculating damages is opaque and the values it has generated are artificially low when set against the loss of entire livelihoods. Moreover, the system has a built-in release mechanism, meaning anyone who accepts a payment frees Renova from any future liability.

Unsurprisingly, it has caused division within the communities between those who have signed up for the new system, and those who are still fighting for justice. The problem is particularly acute in communities which depended on the river for subsistence, given that the new system does not take long-term ecological factors into account. For example, the river has yet to recover: during the rainy season pollutants are washed from the riverbanks into the water, killing whole schools of fish. Agricultural production also remains affected.

‘The people who are organized say, “You shouldn’t sign that, because you’re not going to be able to resume your normal production,”’ says Aleixo.

She argues that what has been missing from the reparations process is a focus on the victims, given that only those affected by these disasters can say the damage they have suffered.

Since 2017, affected communities have had the right to technical advisors. According to Cáritas, which provides this support to people displaced by the dam failure now living in Mariana, the aim is ‘to ensure broad and well-informed participation in decision-making processes and to support affected communities in the struggle for full compensation for losses and damages suffered.’

The problem is that Renova has resisted implementation of this system. Currently just three areas – out of 21 – in the Rio Doce basin are receiving this support. Even where the groups of technical advisers are active, such as in Mariana, Renova tends to ignore their work on calculating the damages and make its own proposals.

Bringing the law back home

In the countries where these large mining companies operate, they often have significant influence over policymakers and even court systems, which helps the companies to evade full responsibility for environmental damages and human rights abuses. Guerrize Conte stresses that many of the Brazilians represented in the lawsuit have little faith in the Brazilian legal system and hence it was important to shift the status quo and try the crime here in the United Kingdom. This is part of a growing global trend towards holding transnational companies responsible in their home countries for abuses committed by foreign subsidiaries.

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This is part of a growing global trend towards holding transnational companies responsible in their home countries for abuses committed by foreign subsidiaries.

‘Some European countries – I think France, Holland, and Germany – have due diligence laws which allow big companies to be held responsible for damages which occur in their supply chains,’ says Aleixo. ‘For example, the French supermarket Casino is being sued in France over links to deforestation in the Amazon. It’s the same logic.’

Another example comes from Germany, where a lawsuit is currently ongoing against the technical certification company Tüv Süd, which signed a safety declaration for the tailings dam at Córrego do Feijão near Brumadinho just four months before it collapsed in January 2019. According to the Brazilian Federal Police, the company knew the dam was incompatible with good engineering practice and did not comply with safety regulations but they signed off on it anyway.

Money is not enough

While the news that the case will be heard in the UK is a welcome development, achieving justice – if this is even possible following a disaster of this magnitude – demands more than simply compensating people for damages.

‘Money doesn’t solve everything in these cases of mass violation of human rights. We need to think about reparation in a much more systemic way,’ says Aleixo. ‘But these corporate liability cases tend to focus only on the money. For example, they don’t take into account the recovery of the river, without which people aren’t going to be able to resume their normal lives.’

She also cites more symbolic measures that the companies could take, such as building memorials, establishing holidays and other activities to ensure that what happened is never forgotten, alongside implementation of more practical measures – such as training courses and better dam surveillance – to make sure it never happens again.

But above all, what’s needed is major structural change, to ensure that hazardous industries like mining adhere to the most rigorous health, safety, and environmental standards. Unfortunately, in Brazil very little progress has been made. The most obvious proof of this is the dam failure at Brumadinho in 2019, little more than three years after the collapse of the Fundão dam, with even greater loss of human life.

At the end of 2021, there were still 40 dams in a state of emergency in Minas Gerais.

At the end of 2021, there were still 40 dams in a state of emergency in Minas Gerais, according to Brazil’s National Mining Agency. Of these, three were classified as ‘Level 3’, meaning that ‘Rupture is imminent or is already happening.’ Severe flooding in Minas Gerais in January this year put locals on tenterhooks, highlighting once again the mortal danger faced by communities throughout the state.

‘Warning sirens go off and people are driven from their homes,’ says Aleixo. ‘But then the dams don’t break, and people don’t know when they will be able to return home.’

In the town of Barão de Cocais, for example, families have been displaced from their homes since 2019. Workers at these mining complexes are also at risk. Aleixo calls this ‘dam terrorism’, and some industry critics suspect that this is a way for mining companies to expand their operations into lands formerly occupied by communities.

But at the very least, thanks to the tireless work of the affected and their supporters, those who have suffered in the Rio Doce basin will finally have their day in court.

This article was based on conversations between researcher Tom Kissock, Professor Leticia Peixoto Aleixo, Rafaela Guerrize Conte of PGMBM, Tom Gatehouse of LAB, and mining-affected people from Minas Gerais. The interviews were translated from Portuguese to English by Joanna Mamede.

For more about the two dam disasters in Minas Gerais and the ongoing injustice faced by those affected, please keep an eye out for the book The Heart of Our Earth: Community resistance to mining in Latin America by Tom Gatehouse, due to be published in January 2023 by LAB and Practical Action Publishing.

Main image: edited version of photograph by Matthew Pover.