- Communities awaiting compensation from the worst environmental disaster in Brazilian history say they’re being stymied by a convoluted legal process that favors those responsible.
- Compensation for the 2015 Mariana tailings dam disaster, which killed 19 people and polluted a river basin the size of Portugal, is being administered by a foundation set up by the mining companies.
- State and federal prosecutors and public defenders allege collusion between the foundation and the judge overseeing the process; they also call the compensation being offered “ridiculously low.”
- In a recording of a meeting this past January, a lawyer for the foundation can be heard berating community members and demanding that they apologize for staging a peaceful protest, or risk the payments being stopped.
“I’m the one who called the meeting; I’m going to set the tone,” says Viviane Aguiar, a lawyer representing the Renova Foundation, interrupting Valeriana Gomes de Souza, a cattle farmer from the municipality of Naque, in the state of Minas Gerais, Brazil.
Gomes de Souza is one of the atingidos — the people affected by the failure of the Fundão mine tailings dam in November 2015 near the city of Mariana in Minas Gerais. The disaster killed 19 people, destroyed entire communities and polluted the Doce River basin, an area roughly the size of Portugal. It’s considered the worst environmental disaster in Brazilian history.
The Renova Foundation was established in 2016 in an agreement signed between Samarco, the mine operator; its parent companies, Vale and BHP Billiton; the Brazilian federal government; the state governments of Minas Gerais and Espírito Santo; and other government agencies. Its mission was to oversee reparations for the damages, but the atingidos have complained repeatedly of a conflict of interest, given that it was set up by the same companies responsible for the tragedy.
Agência Pública had exclusive access to the recording of that meeting, which took place on Jan. 21 this year. Aguiar, who coordinates Renova’s legal department, took a threatening and aggressive tone when addressing representatives of the Naque commission of atingidos, who had organized a demonstration four days beforehand.
Throughout the meeting, Aguiar claimed to speak on behalf of Mário de Paula Franco Júnior, the judge overseeing the cases relating to the Mariana disaster that are being heard at the Federal Court of Justice in Belo Horizonte, the state capital of Minas Gerais.
“I’m going to make one thing very clear: if there are protests, where you put people at risk, where you block the railway, where you close … in short, any kind of protest that isn’t peaceful, then this will stop,” Aguiar can be heard saying, referring to the victims’ access to processes of compensation.
“Don’t any of you think for a moment that it’s because of the demonstration that things are moving. It’s just the opposite; it’s because of the protest that things will stop.”
And that was not all. “This isn’t me talking, it’s the judge in charge of the case. If there are demonstrations, the compensation will stop,” she added.
“Pretend this is a boat out at sea with everyone on board — the judge, the Renova Foundation, all the lawyers and all the atingidos. Then, all of a sudden, someone decides to mutiny and sink the boat. We’ve only got two options, don’t you think? Either we throw them overboard or they jump before they’re pushed.”
Simplifying compensation, or letting the companies off the hook?
The meeting was called in a hurry after nearly 50 atingidos blocked a railway line used by Vale to protest about problems in the newly introduced Simplified Indemnity System.
This system was set up in July 2020 by Judge de Paula Franco Júnior, following an agreement between commissions of the affected from Baixo Guandu in Espírito Santo, Naque in Minas Gerais, the mining companies and the Renova Foundation. The aim was to facilitate compensation for informal workers who had difficulties proving damages resulting from the disaster, such as washerwomen, artisans, sand miners, carters, small-scale miners, and subsistence fishers.
Despite the new system having been touted as an alternative for these groups, the atingidos say Renova has been making it difficult for them to access it. They are also demanding immediate payment of compensation that has been approved by the courts.
According to Patrícia Alves Barreto, from the Naque commission of atingidos, these payments are taking as long as seven months. “If the Renova Foundation had dealt with things properly, there would have been no need for this protest,” she said.
Gomes de Souza also points out that Renova is putting pressure on people who don’t have any difficulty proving their damages to sign up for the new system.
“This ruling applies to those who don’t have any documentation. But Renova isn’t bothered about that. They’re ringing up all the atingidos, trying to force them to sign up for the new system,” she said.
On Feb. 24, the Prosecution Service of Minas Gerais (MPMG) filed a request for the abolition of the Renova Foundation, alleging inefficiency and deviation from its objective. For the prosecutors, “the foundation has acted far more as a means to limit the responsibility of its parent companies [Vale and BHP Billiton] than as an agent of effective human, social and environmental reparation.”
For the Federal Prosecution Service (MPF), the new simplified system is the fruit of “collusion” between the mining companies; the lawyer representing the commissions of the atingidos, Richardeny Luiza Lemke Ott; and Judge de Paula Franco Júnior, with the aim of reducing liabilities for the companies.
This is the view expressed in an injunction filed by prosecutors last October against the “repeated abusive conduct” of the judge. The injunction is still awaiting a ruling.
In a statement, BHP Billiton said it “vehemently refutes the serious allegations made by prosecutors from the Federal Prosecution Service.”
“BHP would like to state that it has always respected and complies fully with the decisions of the Brazilian courts and respects the independence of the commissions of the affected and their lawyers, which will be proven in court.”
Samarco declined to comment.
Vale said that “the lawyer Richardeny Luiza Lemke Ott has never provided any kind of service” to the company, but made no comment on the injunction.
Agência Pública attempted to contact Lemke Ott several times via telephone, WhatsApp and email, but did not receive any response before publication.
“Renova has always tried to provide definitive responses for the affected people as quickly as possible in the process of reparation for the damage caused by the Fundão dam failure,” the foundation said in a statement.
The commissions of atingidos in Naque and Baixo Guandu were the first two commissions to sign up for the Simplified Indemnity System. Both are represented by Lemke Ott.
Although Judge de Paula Franco Júnior praised Lemke Ott and the atingidos for having found “a new means of granting access to compensation” for those who have difficulties proving damages, the idea came from the Renova Foundation. This was confirmed to Agência Pública by Lucilene Angélica Soares, coordinator of the Baixo Guandu commission.
“Renova had meetings with us and said, ‘You’re only going to prove that you’ve been affected after formalizing the commission, choosing a lawyer to represent you to the court and creating a damages matrix,’” she said.
In an interview with the newspaper Folha de S. Paulo on Nov. 4 last year, André de Freitas, the president of Renova, confirmed that the new system had been proposed by the foundation. Freitas said they had studied “other disasters around the world.”
By Feb. 19 this year, 16 municipalities had signed up for the new system: nine in Espírito Santo and seven in Minas Gerais. According to Renova, more than 5,000 people have been compensated under the new system to a value of more than 435 million reais ($78.1 million), from the first payment in September 2020 to January this year.
The values established by the courts vary between 23,000 and 567,000 reais ($4,130 to $101,800). Once an atingido accepts the value and the judge approves the agreement, Renova pays out once only and is released from any further financial obligation to the atingido. However, it is up to the atingido whether to accept the offer.
Values are ‘ridiculously low’
But for André Sperling, a prosecutor at the Federal Prosecution Service (MPF), the sums being offered as compensation are “ridiculously low, they absolutely don’t constitute full reparation.” He was speaking at a press conference last October ahead of the fifth anniversary of the tragedy.
The atingidos have also questioned the numbers.
“He gave a ruling on payment for all damages. But we don’t even know what the damages are,” says fisherman Walkimar Fioreti from Espírito Santo. “No studies have been done. The true value of our damages could be different to the value given by the judge.”
“Not all members of the commission know what’s really happening,” says fisherwoman Patrícia Barreto of the Naque commission. “This lack of information means they end up losing out.”
She also says many people are signing up for the system without realizing that any payment they accept releases Renova from further obligations.
“It’s ridiculous, in my opinion. Why would we agree to a release clause? The environment will never be the same. The raw materials the farmers, the fishers, the washerwomen, the sand miners, and the others all depend on — it’ll never be the same,” Barreto said.
Harassment from lawyers
The system that was put in place in Baixo Guandu has become a model for other municipalities and has changed the existing legal precedents relating to the Mariana disaster.
An agreement between the mining companies and public prosecutors, public defenders and state attorneys for the states of Espírito Santo and Minas Gerais in August 2018, ratified by Judge de Paula Franco Júnior, obliged the companies to hire groups of independent technical advisers to support communities affected by the tailings dam failure.
From October 2018 to July 2019, with the help of the nonprofit organization Brazil Human Rights Fund, atingidos from 18 areas in the Doce River basin chose their technical advisers. However, they have yet to be formally contracted due to resistance from the companies. The MPF, the MPMG and public defenders have asked the judge to press ahead with recruitment, but he has yet to take a position on the issue. Brazil Human Rights Fund will now have to go back into the field for a new round of consultation with the atingidos.
Without the support of their technical advisers, and with the inauguration of the new Simplified Indemnity System, the people of the Doce River basin have reported harassment from private lawyers who have descended on these communities from outside the region.
The atingidos interviewed for this article report that lawyers have been putting pressure on local leaders to convince their communities to sign up for the new system, as well as on individual atingidos in communities that have already signed up.
The reason for this is that the courts have ruled that to access the system, the claimant must be represented by a lawyer or public defender. Only legal professionals are given access to the online platform developed by Renova.
Judge de Paula Franco Júnior also ruled that as representatives of the commissions of atingidos, the lawyers are to receive fees from the companies for each agreement signed with a given commission. This payment varies between 100,000 and 150,000 reais ($18,000 and $27,000) per agreement. On top of this, the judge has permitted private lawyers to charge up to 10% of the value of the compensation received by individual atingidos.
As many of the lawyers representing the commissions of the atingidos have subsequently been hired to pursue individual claims, it can mean a considerable windfall for them if a community decides to sign up for the new system.
“There is a flood of lawyers from other cities into Conselheiro Pena,” says Lélis Barreiro, president of the local fishers’ association. He estimates that 28 new law firms have opened up in the municipality since the new system was established.
Some atingidos have reported that lawyers have even offered 5% of the fees they receive from the companies to community leaders.
“Their aim is to corrupt them, to get them to tell the other atingidos to place their trust in the lawyers, that Renova is going to cut everything and the only way to get any compensation is by hiring a lawyer and signing up for the new system,” says another atingido, speaking anonymously.
‘Sorry, your honor’
According to lawyers representing the atingidos, after the protest in Naque, Judge de Paula Franco Júnior allegedly threatened to suspend ratification of the compensation. Using WhatsApp chat groups to circulate the information, they said the judge had told them that existing processes had been suspended because of the protest.
At the Jan. 21 meeting described at the beginning of this article, Viviane Aguiar of the Renova Foundation seconded this message.
“The judge says he’s not going to ratify any case; he doesn’t know when he’ll start again. Some of the commissions are asking him for it, but he won’t do it, he’s going to take stock, and if things carry on as they are, this whole thing is over,” she said.
“Judge de Paula Franco Júnior himself asked me to have this chat with you, so he has an idea of how we can proceed,” she added. “Let’s try and win back his trust, to see if he’ll ratify the cases that are ready in the next few days … If he won’t do it, we can’t help you. Everything will be put on hold. But I think that once he sees our position, he’ll reconsider.”
According to Gomes de Souza and Wanderson Michel, a pastor, the meeting finished with them apologizing on behalf of the Naque commission for having staged a peaceful protest. After the meeting, shaken, they uploaded videos apologizing to the atingidos across the whole Doce River basin, in Minas Gerais and Espírito Santo, as well as to Judge de Paula Franco Júnior.
“The Naque commission would like to apologize directly to all of you for having disrupted the process, though this wasn’t our intention. And today, we would also like humbly to address the Honorable Judge de Paula Franco Júnior, to apologize for all this trouble, because he really has helped us on this issue. Not all of us have the expertise of the most highly educated,” Pastor Michel said.
On March 31, the MPF, the MPMG, Federal Public Defenders and public defenders for Minas Gerais and Espírito Santo filed a request for Judge de Paula Franco Júnior’s suspension. They say the judge maintained inappropriate relations with the other parties in the creation of the Simplified Indemnity System and held extraofficial meetings with the expectation of reaching agreement on the cases.
The press secretary at the Renova Foundation would not comment, saying they did not have access to the recording of the meeting. Agência Pública also sent a request for an interview with Judge de Paula Franco Júnior to the press secretary at the Federal Courts. After not receiving a reply, Agência Pública sent questions via email. This also went unanswered by the time this article was published.