Mariana disaster: will justice finally be served?

. Jul 22, 2020
Houses destroyed by the mud of the Samarco dam in Bento Rodrigues, a district of Mariana. Photo: A.M. Teixeira/Shutterstock Houses destroyed by the mud of the Samarco dam in Bento Rodrigues, a district of Mariana. Photo: A.M. Teixeira/Shutterstock

Five years after the collapse of a tailings dam operated by mining company Samarco caused untold environmental damage to the town of Mariana in the state of Minas Gerais, a case filed by international law firm PGMBM against miner BHP will be opened in Manchester, England today. The plaintiffs request GBP 5 billion (USD 6.36 billion) in compensation for the losses caused by the tragedy in 2015, which resulted in 19 deaths and widespread environmental devastation caused by the spill of toxic sludge.

The collective complaint includes 240,000 individuals, 24 municipalities, 11,000 businesses, and the Krenak indigenous community. In addition to the deaths and the total destruction of Bento Rodrigues, a small village 35 kilometers from Mariana, some 39 million cubic meters of tailings were released into the surrounding area, reaching the Rio Doce basin and causing the biggest environmental disaster in Brazil’s history. Even now, there is no telling exactly how many people were affected by the dam collapse, provoking serious damage along the 700 km Rio Doce.

</p> <p>Based in Liverpool, the firm is suing BHP in England and Wales as the Anglo-Australian mining company controls Samarco, alongside major Brazilian miner Vale, which was blamed for a <a href="">subsequent dam collapse in Brumadinho</a> in 2019, killing almost 300 people.</p> <p>The trial begins today and is expected to last for a week, deciding whether the courts of England and Wales have the jurisdiction to rule on the matter, as even though the incident occurred in Brazil, the local justice system has yet to satisfactorily guarantee compensation, reparations and responses to all those affected. BHP&#8217;s attorneys claim that hearing the case in Manchester would duplicate the already existing lawsuits, which are dragging on in Brazilian courts.</p> <h2>Samarco ignored warnings in Mariana</h2> <p>In the case to be analyzed in England and Wales, the over 200,000 claimants state that BHP ignored the warnings about the capacity of the Fundão dam in Bento Rodrigues. According to the lawyers, the Anglo-Australian miner was &#8216;ultimately&#8217; responsible for the structure’s collapse.</p> <p>In a statement, PGMBM said it has assembled a &#8220;wide range of documents claiming that it is legitimate for the clients to bring an case before the courts of England and Wales.&#8221; This documentation includes legal opinions, statements from victims and Brazilian lawyers working on behalf of those affected, and populations affected by the dam collapse.</p> <p>In November 2018, <strong>The Brazilian Report</strong> showed that the disaster could have been avoided if Samarco, the mining company responsible for the dam, had spent a mere <a href="">USD 1.5 million in safety measures</a>. In 2009, the company refused to implement an emergency plan to monitor safety at the Fundão Dam. The money would have used to install a telemetric system to identify structural risks, and would have allowed the company to develop a contingency plan to rescue neighboring communities in case of an accident. That’s what Randal Fonseca, owner of RTI Consulting, told reporter Karla Mendes (Mr. Fonseca is also the author of an emergency plan that Samarco declined to implement).</p> <p>The claimants are unable to attend the hearings in Manchester, due to the closure of European borders to Brazilians as a result of the Covid-19 pandemic.</p> <p>The Mayor of Mariana, Duarte Júnior, traveled to England to closely follow the case and represent the interests of the municipality. &#8220;We are very confident,” he said. He noted that he said the city has not received any compensation to date. The only compensatory action, he said, was the construction of a mental health treatment unit. The city hall demands BRL 1.2 million (USD 1.2 million) in reparatory and compensatory damages in the case.</p> <figure class="wp-block-image size-large"><img loading="lazy" width="1000" height="667" src="" alt="Mariana: 19 people killed and entire towns buried under an avalanche of mud" class="wp-image-44959" srcset=" 1000w, 300w, 768w, 610w" sizes="(max-width: 1000px) 100vw, 1000px" /><figcaption>Mariana: 19 people killed and entire towns buried under an avalanche of mud. Photo: Renan Martelli da Rosa/Shutterstock</figcaption></figure> <h2>Brazilian court orders payment of damages</h2> <p>Meanwhile, in Brazil, a federal court has ordered Samarco to pay compensation to those affected by the Fundão dam collapse. The decision was taken by the 12th federal court of Minas Gerais, in sentences rendered on July 1 and 9 and published on Tuesday.&nbsp;</p> <p>The amounts of compensation vary between BRL 23,980 and BRL 94,585. Fishermen, artisans, farmers and washerwomen — who were demonstrably dependent on the Rio Doce — and residents of the cities of Naque and Baixo Guandu, along the river’s course, will be entitled to payments.</p> <p>The sentences also ordered that the Renova Foundation, Samarco, Vale, and BHP pay out lost profits and financial and emergency aid to those affected. The <a href="" target="_blank" aria-label="undefined (opens in a new tab)" rel="noreferrer noopener">Renova Foundation</a> must develop a specific online platform for the registration of beneficiaries in order to comply with the decision.</p> <p>Other professions, such as fish traders, sand and clay sellers, hotels, inns, restaurants and bars, farmers, and rural producers are still awaiting similar decisions.</p> <h2>Murder charges dropped</h2> <p>Four companies and 22 people became defendants in Brazilian courts in 2016 as a result of the Mariana tragedy. Twenty-one of them were accused of murder and bodily injury, among other crimes. Thirteen were excluded by court orders and will not be held liable for any crimes, according to the Federal Prosecution Service.</p> <p>In April 2019, the charges of murder and bodily injury were dropped from the criminal case. As a result, the defendants will no longer was a public jury for the 19 deaths caused by the incident, as jury trials in Brazil are reserved for homicide cases alone. Instead they will only answer charges of “aggravated flooding,” as the dam collapse resulted in deaths, landslides, and 12 environmental crimes.</p> <p>Samarco, Vale and BHP have been charged with the same 12 environmental crimes. Meanwhile, civil engineering company VogBr is held liable for issuing false or misleading reports. The crime of flooding holds a penalty of six to 12 years in prison when it is aggravated, as in the case of resulting in death.</p> <p>In a statement, BHP &#8220;reaffirms its position that the case is not within the jurisdiction of the British courts.” According to the company, the Brazilian justice system and the Renova Foundation (created to assist those affected by the tragedy) &#8220;are in a better position to deal with requests that arise from events that have occurred in Brazil and are subject to Brazilian law, and already have considerable experience in dealing with these requests.&#8221;</p> <p>Furthermore, the statement says BHP is &#8220;fully committed to the reparation actions related to the rupture of the Fundão dam, through the remediation programs executed by the Renova Foundation which, until May 31, 2020, has paid BRL 2.7 billion in damages and financial aid to those affected. In addition, BHP also supports Samarco in its process of resuming operations.&#8221;

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Renato Alves

Renato Alves is a Brazilian journalist who has worked for Correio Braziliense and Crusoé.

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