BHP ‘cynically and doggedly’ tried to avoid responsibility for dam collapse, court hears

The operator of the tailings dam which collapsed causing one of Brazil's worst environmental disasters had a board of directors made up of representatives of international mining companies, the High Court heard in the largest mass lawsuit ever to come before it.

Representatives of some 620,000 claimants argued yesterday that international mining giant BHP has ‘cynically and doggedly’ tried to avoid liability in relation to the 2015 dam collapse in Minas Gerais. The Australia-based company argues it is a separate legal entity from Samarco Mineração, the dam’s operator, which is a joint venture between BHP and Brazil-based miner Vale.

For the claimants, Alain Choo Choy KC said: ‘Samarco’s board of directors was made up entirely of BHP and Vale representatives. It did not have any independent number of the executive board as one of its own members hence its decisions could only be made by the joint agreement of the BHP and Vale shared representatives.’

In court documents, the claimants said the earth dam, built up to store byproducts from an iron ore mine, was around 110m high and ‘had reached a “precarious state of stability”.’

The claimants' written opening submissions said: ‘This meant that, as the dam increased in height, any liquefaction trigger could set off a catastrophic flow slide.

‘But-for BHP’s approval of the P4P Project [the opening of a fourth pellet plant], the volume of tailings stored behind the dam would not have kept substantially increasing and the height of the dam would not have been raised at the unsafe rate and in the unsafe conditions that it was, such that the collapse would not have happened.’

It added: ‘The dam continued to rise without satisfactory drainage being put in place.’

The 12-week hearing, before Mrs Justice O’Farrell, will assess whether BHP, which was formerly listed on the London Stock Exchange, was responsible for the disaster, which killed 19 people and caused massive pollution to water sources.

BHP denies the claims brought in the UK. It has previously said the case in the English court duplicated issues covered by ongoing legal proceedings in Brazil.

The hearing continues. BHP’s opening oral submissions are expected to begin tomorrow (Wednesday).