Closing submissions begin in mammoth Brazil dam collapse trial

Direct polluters and indirect polluters ‘remain equivalent’ for liability purposes in environmental civil cases, the High Court heard this week in the largest mass lawsuit ever to come before it.

The hearing before Mrs Justice O’Farrell will decide whether Australia-based mining company BHP, which was formerly listed on the London Stock Exchange, was responsible for the 2015 Fundão Dam collapse in Minas Gerais, Brazil, which killed 19 people and caused massive pollution to water sources. Closing submissions in Município de Mariana and others v BHP Group (UK) Ltd and BHP Group Ltd, which started in October last year, began on Wednesday. The claimants and BHP are expected to provide three days of oral closing submissions to accompany their written submissions, each 506 pages long.

For the claimants, Alain Choo Choy KC told the court: ‘The direct or indirect polluter are only different in terms of agreeing their link, but for liability purposes they remain equivalent. That is obviously the key point.’ Choo Choy, added that because of the difficulties of identifying the precise background causation, it was ‘sufficient that environmental damage would not have happened but for the collapse’.

This is, Choo Choy said, in accordance with the ‘full risk theory’ which is ‘entirely consistent’ with Brazil’s state appellate courts and the Superior Court of Justice’s acceptance of a ‘measures application of the theory of equivalence of conditions for environmental civil liability’. No distinction is drawn between main and secondary causes or direct and indirect causes under the theory, the court was told.

BHP denies the claims brought in the UK on behalf of some 620,000 people allegedly affected by the pollution. The company has previously said the English court duplicated issues covered by ongoing legal proceedings in Brazil. It 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.

In written submissions, Choo Choy said: ‘BHP has gone to extravagant lengths, at huge cost to the parties and significantly increasing the burden upon the court, to make the claimants’ case appear more complicated than it really is.

‘The claimants submit that BHP’s liability is straightforward and obvious: BHP is a “polluter” under Brazilian law and must pay. In addition, or in the alternative, BHP caused and allowed the dam to continue to be raised, even though it ought to have been aware of the increasing risk of failure.’

The hearing continues. BHP’s closing oral submissions are expected to begin on Monday.