The 200,000 victims of the Fundão Dam disaster in Mariana, Brazil in 2015 have decided to appeal the preliminary decision made by an English court to not take their case against the Anglo-Australian mining company BHP over their responsibility for the incident.
Photo: Cai Santo
The immediate aftermath of the disaster in the village of Gesteira.
After an initial hearing in Manchester back in July, Mr Justice Terner published a decision to refuse to accept jurisdiction on Monday, a little over five years to the day since the mining dam burst.
The torrent of toxic sludge that followed killed 19 people, destroyed communities and affected the land and contaminated waterways for hundreds of miles.
The resulting lawsuit is claiming £5 billion (€5.6 billion) in damages for people in the areas who have had their lives turned upside down by the crisis.
The suit is split between the 200,000 victims, 25 municipal governments, 530 businesses, the local Catholic archdiocese and the members of the Krenak indigenous population.
Lawyers representing the victims claim the company should face justice in the courts of their home nation.
The court's decision has forced them to take their claims to the court of appeal.
The plaintiffs argue the court case against the company in Brazil is weak, with BHP having been largely protected from consequences to date.
Local leaders say the reparations the mining giant claim to have made "only exist on paper" and the redress scheme set up by the miners - the Renova Foundation - is a failure.
Tom Goodhead, Managing Partner at PGMBM, on behalf of the claimants, said: “BHP has succeeded, once again, in delaying the provision of full redress for the victims of the worst environmental disaster in Brazilian history.
"BHP’s legal chicanery, both in England and in Brazil, has resulted in a fundamentally flawed judgment that we intend to appeal immediately. Elements of the judgement have no proper basis in both English and European law, such that we are overwhelmingly confident that it will be overturned.
“We will continue to fight ceaselessly, for however long it takes, in any court in the world to ensure that BHP is held accountable for their actions.
He added: “BHP has arrogantly and disgracefully labelled this litigation as ‘pointless and wasteful’. They have argued in court that full redress is available to the victims in Brazil when that is fundamentally not the case. The victims see that. The United Nations sees that. And we have every confidence that the Court of Appeal will see that."
Duarte Junior, the mayor of Mariana, believes it is the right of the victims for the English courts to hear the case.
Junior said: “For five long years we have been frustrated, trying to rebuild our lives and communities in the face of the companies who are responsible for the disaster. The compensation so far has been completely inadequate and every day we still live with the effects of what happened.
“This case represents the hopes and the rights of every individual in Mariana and beyond. BHP did not respect our rights in Brazil. This case in England should force them to acknowledge our rights now.”
UN Special Rapporteur Baskut Tuncat, who released a report in September alleging that those responsible for the disaster has failed to properly compensate or support victims, specifically targetting the redress managed by the miners, agrees with the mayor's sentiments.
He said that the company rushed to create the Renova Foundation to provide the affected communities with support. However, he posits that the true meaning of the foundation is to limit the liability of BHP and its partner Vale, rather than to provide an effective remedy.
Last month, Brazilian officials accused the two companies of colluding with a Brazilian judge to fix compensation for the victims and of interfering with the lawsuit against BHP in the UK.
If successful, it will be the first legal case regarding an environmental disaster in Brazil to be successful in the UK.
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