Business and human rights lawyer Camila Manfredini de Abreu represented the victims of the Fundão Disaster in a case against BHP, the Anglo-Australian mining company that operates in Brazil through the contractor Samarco. On 5 November 2015, the Fundão tailings dam collapsed in Minas Gerais, Brazil, unleashing approximately 60 million cubic metres of toxic waste, the nation’s most devastating environmental disaster. John Knox, former UN Special Rapporteur on human rights and the environment (2012-2018), condemned the role of the multinationals in the disaster, saying that “the scale of the environmental damage is the equivalent of 20,000 Olympic swimming pools of toxic mud waste contaminating the soil, rivers and water system of an area covering over 850 kilometers”. A case against BHP was brought in a British court by 200,000 plaintiffs, including Brazilians, Brazilian municipalities, Krenak Indigenous communities, and the Catholic Church, all of whom suffered loss as a result of the dam failure. In 2020, Andrew Hickman, researcher and member the LMN Brazil Working Group, commented:
Local communities continue to await justice for the environmental and social destruction that has been inflicted on their lives by BHP Billiton and Vale. Five years on, despite repeated assurances from the company, it seems clear these communities are still not able to return to their homes or resume their normal lives.
In November 2020, an English High Court judge nevertheless declined to adjudicate on the claim, striking out the case as an abuse of the process of the court. The impunity of multinational companies prevailed. This, as elucidated by Camila, exemplifies the multitude of legal and practical obstacles that business and human rights lawyers are faced with when holding a corporation accountable for environmental and human rights abuses. Legal challenges are complicated by the diffusion of responsibility among members of the same corporate group, which can aid the avoidance of accountability. Further, human rights violations are commonly committed by a subsidiary and not by a parent company. This is coupled with the denial of justice that claimants are faced with in the host state, the state in which the abuse has occurred, as they are prevented from accessing the necessary court system.
Fundamentally, vulnerable groups, such as Indigenous communities, migrants, and women, are excluded from the same level of legal protection of their human rights. The disparity is further aggravated by a claimant’s difficulty in establishing the requisite burden of proof—a legal standard that requires litigating parties to demonstrate that a claim is either valid or invalid based on facts and evidence—and they therefore cannot prove a corporation’s direct responsibility for abuse. John Knox, former UN Special Rapporteur on human rights and the environment, and Baskut Tuncak, former UN Special Rapporteur on human rights and toxins, both of whom were serving when the disaster took place, warned that “there may never be an effective remedy for victims whose loved ones and livelihoods may now lie beneath the remains of a tidal wave of toxic tailing waste, nor for the environment which has suffered irreparable harm”.
A DISPROPORTIONATE IMPACT ON INDIGENOUS COMMUNITIES
In 2011, the Guiding Principles on Business and Human Rights (“UNGPs”) were endorsed by the Human Rights Council. The foundation of the framework lies upon the “protect,” “respect,” and “remedy” framework pillars; states must protect, companies must respect, and those who are harmed must have judicial redress. Under the UNGPs, a state must, firstly, apply the precautionary principle and, secondly, carry out comprehensive environmental, social, and human rights impact assessments that examine existing natural resources in the area, cumulative impacts of projects, and socioeconomic linkages to environmental issues. Special consideration should be given to the rights of Indigenous peoples. However, justice has not been struck in the case of victims such as the Indigenous tribes impacted by the Fundão Disaster. “It is sad, the disaster destroyed an area equivalent to Portugal territory and none of the victims, agricultures, fishermen, workers, or indigenous people received full compensation,” said Brazilian federal prosecutor Silmara Goulart. In total, 3,400 Indigenous people were affected by the disaster.
The present Brazilian government has violated the rights of Indigenous peoples. The failure to unconditionally protect human rights under the UNGPs was further crystallised by the Brazilian state’s involvement in the Fundão Disaster. Regarding the “protect” pillar, Brazil failed to enforce environmental regulations by granting mining licenses to Samarco to operate in Mariana and in the downstream municipality. As a developing country, Brazil is trapped by “its need for development and investment to create wealth and jobs, which often leads to slack regulation and oversight”. Therefore, as explained by Dante Pesce, member of the UN Working Group on Business and Human Rights, the government approves mining in poverty-stricken, under-developed areas, as surveillance is lax. It is, however, Brazil’s duty to enact laws for mining that are consistent with the standards of international human rights.
The Brazilian government similarly did not engage Indigenous communities in “Free, Prior, Informed Consent” (FPIC) proceedings, as explained by Camila. FPIC is a specific right that pertains to Indigenous peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), under which these communities may either grant or withhold consent to a project that has the potential of affecting them or their territories. Moreover, with regard to the corporate responsibility to “respect,” the second pillar of the UNGPs, there was no due diligence performed in the mining operations in Mariana.
AN (IN)COMPARABLE SITUATION
In SERAC v. Nigeria, the African Commission on Human and People’s Rights found that Nigeria had failed to protect Indigenous peoples in Ogoniland from harmful actions by an oil consortium, which breached the peoples’ rights to health, property, housing, food, and freedom from forced deprivation of wealth and resources; however, no such remedies have been awarded to the Fundão victims as injustice permeates their case. With regard to the duty to ensure that the victims have access to effective remedy, no such measures have been granted in the post-environmental disaster phase, disproportionately impacting Indigenous communities.
An example is the Indigenous Krenak people, a community that was most affected by the disaster, who heavily depend on and have deep cultural and religious connections to the Rio Doce (the Doce River). Prior to the disaster, the Krenak would undertake all of their essential activities in the Rio Doce. Their rituals were performed in the water and their livelihoods were contingent on fishing in the river. However, the sacred waters of the “Watu,” as the Rio Doce is known in the Krenak language, continue to be polluted by the toxic mud and mineral waste flowing out of the Fundão Dam. Fundamentally, “the death of the Watu has caused the Krenak to lose their identity”. No effective remedy has been provided to them. They received financial aid, but this fails to repair the cultural and economic losses that they have suffered.
A FAILURE OF THE BRAZILIAN STATE
The environmental tragedy of the Fundão dam and the injustice that ensued is an example of the failure of the Brazilian state and related corporations to adequately conduct due diligence to prevent human rights abuses. In light of these shortcomings, Camila argues that “legally enforceable laws are needed. Companies have tremendous economic power and influence; therefore, it is important to regulate their conduct. This is particularly imperative given that corporations have the potential to abuse human rights and perform environmental degradation”.
The potential solutions are complex. “Environmental law does not impose direct obligations on companies; however, it is more than clear that voluntary initiatives are not enough, as corporations can just ignore them without legal repercussion. Soft-law is not achieving its potential in ensuring that justice is awarded to victims. This gap has to be filled by regulating international corporations with binding obligations which would, in my view, promote human rights and environmental preservation,” Camila stated.
Close to six years after the largest tailings dam burst in modern history, the catastrophic effects to the environment have largely clouded the discussion of social justice and human rights. The Fundão dam disaster continues to have devastating implications for marginalised communities, as it amplifies pre-existing vulnerabilities and forces a great number of people into poverty. It is therefore vital to analyse environmental tragedies through the lens of socio-economic justice, magnifying the need to hold corporations and nation states accountable for their breaches of environmental and human rights.
Keila is the Co-founder of E&U For the Climate and an LL.M candidate in Public International Law. She is passionate about human rights and justice in all of its forms. She coordinates legal research projects at Road of Hope, an Amsterdam-based organisation that is committed to protecting the human rights of forcibly displaced migrants. Her research rotates around the impact of climate change on human rights, environmentally-induced migration, environmental justice and minority rights.