‘They do not respect our land. They do not respect our people’. Brazil’s traditional people take on BHP in one of the world’s biggest class actions

Australian mining giant BHP is at the centre of one of the world’s largest class actions, the trial for which started this week in London.

The Fundão Dam in Mariana, Brazil, co-owned by BHP, collapsed in 2015 spilling a gigantic wave of toxic mud across 700 kilometres of land. Nineteen people were killed, villages and livestock wiped out, vast areas of land rendered uninhabitable and rivers and water supplies contaminated.

Corporate accountability

The class action has renewed questions about the responsibilities multibillion-dollar corporations have to local communities.

Leaders of the traditional people groups impacted by the disaster visited Australia with their lawyer Tom Goodhead from international legal firm Pogust Goodhead to raise awareness of the case two weeks ago.

Goodhead told a public forum at Macquarie University this was a case of corporate negligence and putting profit before safety. He said the operators were warned of the risk of dam collapse and continued to push operations beyond what was safe.

The class action is brought on behalf of more than 600,000 claimants. The trial is expected to run for 12 weeks and will be heard in the UK, because this is where BHP was headquartered at the time of the disaster.

The UK courts will apply the Brazilian laws, which say environmental polluters must pay for the damage they cause.

Can BHP fix this?

The claimants’ lawyers say the case is valued at more than A$68.8 billion. The figure is based on an estimation of the impact of the disaster on land, culture and sacred places, as well as some form of recompense for the lost lives.

Maycon Krenak, one of the Krenak chiefs, explained:

[the] river has always been there for us to guarantee our livelihoods. It is a sacred space for us. The river is where we carry out our sacred practices. That’s where we sing, where we dance, where we gather. The new leaders, [our] children, have to learn how to swim in a water tank of a thousand litres.

BHP is reported as saying its Renova Foundation, established in 2016, has spent more than A$11.5 billion to compensate victims and remediate the environment.

But Thatiele Monic, president of the Vila Santa Efigênia and Adjacências Quilombola Association said the victims don’t trust the foundation.

In the same way that the mining company invades our land, the Renova Foundation also is invading our space and our territories. They do not respect our land. They do not respect our people, and they are creating more and more conflict. So that people are essentially giving up pursuing this.

Poor human rights record

Australian corporations operating overseas have a poor record on human rights.

Two weeks ago, a preliminary report of the Panguna Mine Legacy Impact Assessment uncovered human rights violations, including risks to life, at Rio Tinto’s abandoned Panguna mine in Bougainville, Papua New Guinea.

The gold and copper mine triggered a brutal civil war between 1988 and 1998. Despite decades passing since the mine was decommissioned, the recent report confirms the mine continues to pose risks to life and safety due to the collapsing mine and ongoing contamination down rivers and into new areas.

Australian mining corporations have also been linked to death and destruction in their operations in Africa.

Corporate activities within Australia have impacted our own Aboriginal and Torres Strait Islander Peoples. For example, Rio Tinto’s explosion at Juukan Gorge destroyed sites of cultural significance dating more than 46,000 years.

Where Australia stands

The Australian government has endorsed the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises both of which outline corporations’ human rights obligations.

The UNGPs say states should set out clearly the expectation that corporations in their jurisdiction respect human rights in all their operations – even those occurring overseas.

The Human Rights Law Centre found in a 2018 report on this topic that the Australian government was not doing enough to hold corporations to account.

It found Australian corporations operating overseas did so with impunity. Efforts to seek justice locally is often thwarted by corruption, lack of resources or ineffective legal process. At the same time, attempts by overseas communities to take legal action in Australian courts face enormous hurdles and rarely succeed.

This is why cases like the class action for claimants in Mariana are crucial for corporate accountability.

In my 2023 report with colleagues Surya Deva and Justine Nolan, we found this kind of litigation can raise awareness, facilitate broader industry developments and shape laws and policy.

Our report also found litigation needs to be supported by strong regulatory responses from governments, and complementary advocacy like shareholder or consumer engagement.

Cost of litigation

Litigation comes with significant risks to victims and their allies.

In a controversial development for corporate accountability in Australia, oil and gas giant Santos is using legal processes to challenge environmental groups who supported traditional owners opposing their Barossa gas project. Santos’ tactics, if allowed to continue, could limit public interest litigation in the future.

Thatiele Monic ended her speech at the Macquarie University event with a question worth repeating

This has happened in Brazil, but it has happened in many other places, and if we don’t do anything about it, and we don’t talk about it, it will continue to happen in many more other places. This is not the future I want for myself and for my people. I’d like to know. What future do you want for yourselves?

Ebony Birchall is affiliated with Macquarie University's B&HR Access to Justice Lab.