Email sent 1 day after the dam collapse is being used by the defense of those affected in proceedings in the United Kingdom
An email that appears in the legal process being processed in the United Kingdom regarding the collapse of the dam Samarco is being used by the defense of those affected to argue that the BHP Billitonshareholder of the mining company, was warned about the risks of the dam collapsing.
In the episode, which occurred in November 2015 in the city of Mariana, in Minas Gerais, an avalanche of waste was released into the environment, causing 19 deaths and generating impacts on populations in dozens of cities along the Doce River basin.
Those affected sue the British courts to hold BHP responsible. The Anglo-Australian mining company based in London is a shareholder in Samarco, along with Vale.
The content of the email was revealed on Thursday (April 18, 2024) at a hearing at the Technology and Construction Court, in the English capital. It was sent 1 day after the tragedy by Marcus Randolph, former head of division at BHP and former member of the board of directors at Samarco.
The recipients were 2 other executives from the Anglo-Australian mining company: executive director Andrew Mackenzie and iron ore director Jimmy Wilson.
“I am very sad to read about the collapse of the Samarco tailings dam. Around 3 to 4 years ago, at the request of BHP, the Samarco board made an independent report on the safety of the dam. Its results were presented at the Samarco board”starts the email.
Responsibility
The aforementioned Samarco board of directors is made up of representatives from BHP Billiton and Vale. It has a deliberative nature and is responsible for making strategic decisions for the business. Randolph, who was director of ferrous and coal at BHP between 2007 and 2013, was one of the members appointed by the Anglo-Australian mining company. When the tragedy occurred, however, he no longer served on the board.
Randolph highlights in email its activities and is available to collaborate. “We put a lot of effort into dam safety. After a visit to the site, I sent a note to Samarco that contained extensive comments about the risk of the dam. If I can help in any way, please contact me. I sent several letters to the board requesting reviews of the dam and I remember the events very well. I believe there were also some documents in the BHP risk register and our committees had discussions about the risk.”adds the text.
In the process being processed in the United Kingdom, around 700,000 people affected are represented by the firm Pogust Goodhead and are demanding compensation for moral and material damages. Losses of property and income, increased expenses, psychological impacts, impacts resulting from displacement and lack of access to water and electricity, among other losses, are listed.
In the case of indigenous people and quilombolas who also figure in the action, the effects on cultural practices and the impacts arising from the relationship with the environment are mentioned.
There are also demands from 46 municipalities, as well as companies and religious institutions. The hearings that will assess responsibility for the tragedy are scheduled for October this year.
O email came to the process through an instrument provided for in English procedural law, by which the Pogust Goodhead office was authorized to access some internal BHP Billiton documents.
Among them he found Randolph's correspondence. Lawyers for those affected maintain that the finding reinforces the understanding that BHP Billiton was alerted to the risk of the dam collapsing and rules out allegations that the mining company was not involved in the daily operation of the Samarco mine. They are now requesting access to the documents cited in the email.
Wanted by Brazil AgencyBHP Billiton highlighted, in a note, that the hearing was procedural and did not discuss the merits of the case. “Discussions about the production of evidence and documents are usual in the current phase of the English process and should not be confused with the assessment of allegations about BHP's responsibility, which will be the subject of hearings scheduled for October 2024 lasting 14 weeks”records the text.
Processing
The case began to be processed in the United Kingdom in 2018. From the beginning, BHP Billiton claimed there was duplication of trials and argued that compensation for damages should take place solely under the supervision of Brazilian courts. The action was suspended in the initial stage, when it was still being discussed whether the case could be analyzed in the country.
In 2020, without going into the merits of the matter, English judge Mark Turner accepted BHP's arguments and considered that there was abuse, among other things, because there could be irreconcilable sentences with simultaneous trials in Brazil and the United Kingdom. The defense of those affected, however, managed to reverse this decision in higher courts.
As the process progressed, BHP decided to take action to demand that Vale also be included. The Anglo-Australian mining company started to maintain that, in case of conviction, its partner should pay at least 50% of the fixed amount.
Vale also sought to question the competence of the British courts to analyze the case, but BHP Billiton's request was accepted and it was considered a defendant.
The process must still drag on. Even if the mining companies' liability is recognized in October this year, the English court's schedule indicates that the analysis of individual compensation claims may only take place at the end of 2026.
Repair in Brazil
In Brazil, the reparatory process revolves around the TTAC (Term of Transaction and Adjustment of Conduct) – signed between the 3 mining companies, the Union and the governments of Minas Gerais and Espírito Santo. Based on it, the Renova Foundation was created. She took over the management of more than 40 programs, with mining companies responsible for paying for all measures.
However, more than 8 years later, the entity's actions are the target of several legal challenges from those affected, the MPMG (Public Ministry of Minas Gerais) and the MPF (Federal Public Ministry).
There are discussions ranging from the delay in completing reconstruction works in the districts devastated in the tragedy to compensation amounts. An attempt to renegotiate the reparation process, capable of finding a solution for more than 85 thousand cases related to the tragedy, has been underway since 2022. To date, there was no success.
Given this scenario, in January of this year, the Federal Court condemned Samarco, Vale and BHP to pay R$47.6 billion to repair the collective moral damage caused by the dam collapse. The mining companies appeal the decision.
With information from Brazil Agency.
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