London’s Court of Appeal has made a U-turn by agreeing to reopen a 5 billion pound ($9.4 billion) lawsuit by 200,000 claimants against Anglo-Australian mining giant BHP, reviving a case over a dam rupture behind Brazil’s worst environmental disaster.
The 2015 collapse of a dam jointly owned by BHP and Vale resulted in a torrent of mining waste that flattened villages and killed 19 people
The lawsuit is the latest battle to establish whether multinationals can be held liable for the conduct of overseas subsidiaries on their home turf
The appeal is likely to be heard next year
Lawyers for one of the largest group claims in English legal history have been pushing to resurrect the lawsuit against BHP since a lower court struck it out as an abuse of process last year — and a Court of Appeal judge upheld that decision in March.
But in a highly unusual move, three Appeal Court judges reversed course and granted permission for appeal, saying they believed it had a “real prospect of success”.
The collapse in 2015 of the Fundao dam, owned by the Samarco venture between BHP and Brazilian iron ore mining giant Vale, killed 19 people and obliterated villages as a torrent of more than 40 million cubic metres of mining waste swept into the Doce River and Atlantic Ocean over 650 kilometres away.
Tom Goodhead, a managing partner of law firm PGMBM who is bringing the claim on behalf of Brazilian individuals, businesses, churches, organisations, municipalities and Indigenous people, called it a “monumental judgement”.
Frederico de Assis Faria, Attorney-General of Brazil’s hard-hit district of Mariana, said victims now had “an opportunity for real justice” six years after the disaster.
BHP, the world’s largest mining company by market value, has labelled the case pointless and wasteful, saying it duplicates proceedings in Brazil and the work of the Renova Foundation, an entity created by the company and its Brazilian partners to manage reparations and repairs.
“BHP’s position remains that the proceedings do not belong in the UK,” it said in a statement.
‘Good day for justice’
The case was revived after PGMBM in April applied for an oral Court of Appeal hearing — reserved only for exceptional cases — and argued the appeal judge had not properly grappled with arguments about why the case should proceed.
Martyn Day, a lawyer for firm Leigh Day who has taken on miner Vedanta and oil giant Shell in English courts on behalf of villagers over alleged pollution in Zambia and oil spills in the Niger delta respectively, welcomed the ruling.
“It is highly unusual for the Court of Appeal to use this mechanism [of an oral hearing] for reviewing a decision of a fellow member of the court,” he said.
“A good day for justice.”
Claimant lawyers have argued that most of their clients have not brought proceedings in Brazil, that they are entitled to sue BHP in England and that Brazilian litigation is so lengthy that it cannot provide full redress in a realistic timeframe.
The lawsuit is the latest battle to establish whether multinationals can be held liable for the conduct of overseas subsidiaries on their home turf.
The appeal is expected to be heard next year and any ruling is likely to be further appealed to the Supreme Court in London.