The environmental law case against mining giant BHP ‘does not go anywhere’ the High Court has heard during closing submissions in the London trial over a 2015 Brazilian dam collapse.
The trial of Município de Mariana and others v BHP Group (UK) Ltd and BHP Group Ltd, which started in October last year, 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. The disaster killed 19 people and caused massive pollution to water sources.
Shaheed Fatima KC, for BHP, told Mrs Justice O’Farrell: ‘We submit indirect polluter liability requires a specific breach of duty of safety. [There was] no specific duty of safety in this case, let alone a breach. We say that is a matter of law. BHP were not a direct polluter, they were not an indirect polluter and that is the end of the claimant’s environmental claim.’
She added: ‘The claimants do not get close to showing that an act of omission of BHP caused the collapse.’
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Fatima added: ‘As I have said on our case, it is not necessary to go into the facts at all. BHP were not direct polluters, they were not an operator of the polluting activity, the mining or storage of the tailings, the operator was Samarco [Mineração, a joint venture between BHP and Brazil-based miner Vale]. BHP were not indirect polluters plus they owe no duty of safety.
‘There is no dispute about what the relevant activity is. It is important in my submission, on the facts, we have a reminder of that. In the claimants’ skeleton…they explain that the relevant activity in this case was activity of mining generally and storage of tailings behind the dam more particularly.’
In written submissions, she said that it was not suggested in cross-examination that ‘anyone at BHP had known that dam safety was compromised’. She added: ‘On the contrary, as the evidence shows, they were repeatedly assured by external geotechnical engineers that the dam was safe. Nor did [the claimants] suggest to any witness that BHP had prioritised profit over safety.’
Fatima, in written submissions, said BHP’s cross-examination during the trial ‘exposed the extreme and novel interpretation advanced by [the claimants’] Brazilian law experts’.
BHP’s closing submissions will continue until Wednesday with a day expected for the claimants’ reply. The trial, which is expected to finish on Thursday, continues.
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