Miner BHP Group Ltd is ‘cynically and doggedly’ trying to avoid responsibility after a deadly dam collapse in Brazil, the High Court has been told in one of the largest cases in English legal history.
More than 600,000 Brazilians are bringing a multibillion-pound legal action against BHP Group following the collapse of the Fundao dam in November 2015, with a 12-week trial starting on Monday.
The failure of the dam, which held waste from an iron ore mine in Minas Gerais state in south-eastern Brazil, killed 19 people and sent more than 40 million cubic metres of toxic waste into the Doce River in what has been dubbed Brazil’s worst environmental disaster.
Lawyers representing hundreds of thousands of individuals – as well as businesses, municipal governments, indigenous groups and faith-based organisations – claim BHP is liable to pay compensation for losses resulting from the collapse of the dam, which was owned and operated by Samarco, a joint venture between Brazilian iron ore miner Vale SA and BHP’s Brazilian subsidiary.
Poghust Goodhead, representing the individuals and groups seeking damages, previously said the claims are worth around £36 billion. BHP has said it will not comment on the figure at this stage.
The miner is defending the claim, arguing that the case ‘rests on incorrectly eliding the distinctions between BHP, BHP Brazil and Samarco’ and that the legal action duplicates remediation works in Brazil.
At the start of the trial at the High Court in London, Alain Choo Choy, representing the Brazilians, said in written submissions: ‘The claimants respectfully submit that BHP’s liability to compensate them for their losses is, at the end of the day, straightforward and obvious.
‘BHP is a polluter and must therefore pay.’
The barrister said BHP was ‘quick to acknowledge its responsibility’ at the time of the collapse, but that ‘there is a chasm between what BHP regards as ’acceptable’ and the compensation to which the claimants consider themselves legally and morally entitled’.
Choo Choy told the court BHP has ‘devoted very substantial resources to placing obstacles in the way of the claimants’ English claims’.
He continued: ‘This is not BHP facing up to its responsibilities but cynically and doggedly trying to avoid them.’
The barrister later claimed that BHP ‘exercised far greater control and influence over Samarco than it is now prepared to accept’.
However, Shaheed Fatima, for BHP, said in written submissions that the claim has ‘no basis’.
She also said BHP did not own or operate the dam and was not the owner of Samarco, adding that BHP ‘had limited knowledge of the dam, and no knowledge that its stability was compromised’.
The barrister continued: ‘In the dozens of class actions brought by the most powerful institutions in Brazil, such as the federal government and the public prosecutor, BHP have never even been sued, let alone found liable – despite the fact that Brazil would take jurisdiction over any such action as of right.
‘No doubt this is also why the claimants have been driven to adopt what BHP would suggest are often extreme, expansive and novel interpretations of Brazilian law and why their case rests, in large part, on far-fetched and untenable inferences.’
Ahead of the trial, a BHP spokesman said the dam failure was a ‘tragedy’ and that BHP Brazil is supporting the ‘ongoing remediation and compensation process in Brazil’ where more than $7.9 billion has been spent.
The spokesman continued: ‘BHP Brazil is working collectively with the Brazilian authorities and others to seek solutions to finalise full compensation and rehabilitation process that would keep funds in Brazil for the Brazilian people and environment affected including impacted traditional and indigenous communities.’
The trial before Justice O’Farrell is due to conclude in March 2025, with a decision expected in writing at a later date.
By Jess Glass, PA Law Editor
source: PA
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