Mining giant BHP loses bid to appeal over deadly dam collapse that caused Brazil’s worst environmental disaster

Mining giant BHP has lost its bid to appeal a Supreme Court ruling that could hold it responsible for a deadly dam collapse in Brazil. This decision paves the way for a landmark trial in London, scheduled to begin in October 2024.

Hundreds of thousands of Brazilians filed lawsuits against BHP Group following the Fundao dam collapse in November 2015.

This disaster, which occurred in the southeastern Brazilian state of Minas Gerais, killed 19 people and sent more than 40 million cubic meters of toxic waste into the Doce River, making it Brazil’s worst environmental disaster.

Lawyers representing individuals, businesses, municipal governments, indigenous groups and faith-based organizations claim BHP is liable for damages resulting from the collapse.

The dam was owned and operated by Samarco, a joint venture between Brazilian iron ore miner Vale and BHP’s Brazilian subsidiary.

In her ruling last November, Mrs Justice O’Farrell found that the risk of the dam failure was “foreseeable” and that BHP could be held liable under Brazilian law.

At a hearing in March, BHP made a motion to the Court of Appeal to appeal the High Court judge’s liability decision.

But in a decision handed down on Wednesday, two appeal judges rejected the appeal.

Judge Fraser said in the 32-page judgment: “On none of the grounds sought to be advanced by BHP can it be said that the decision on appeal was beyond the reach of, or not fully open to, any reasonable judge.

“Furthermore, there are no independent points of principle that the judge arguably got wrong.”

The judge later said the argument that the High Court had not properly considered BHP’s views on whether the cases were brought too late was “unfounded”.

Justice Fraser, sitting with Justice Lewison, continued: “There was no impropriety, serious or otherwise, and allegations that the judge was ‘disinterested’ in these three areas of Brazilian limitation law are unfounded.”

BHP was previously given the green light to appeal over the level of interest payable on legal costs, with the claimants’ costs exceeding £213 million as of January.

Lord Justice Fraser ruled that this fight needed to be accelerated and could now take place in October.

A new Supreme Court case is expected in 2027, which will address unresolved issues, including the amount of any damages.

Jonathan Wheeler, lead partner in the Mariana case at Pogust Goodhead, called Wednesday’s decision “an emphatic and clear conclusion.”

He continued: “BHP remains responsible for the worst environmental disaster in Brazilian history and will not be given another bite.

“Our clients have waited for more than a decade for justice… We are focused on getting the compensation that hundreds of thousands of Brazilians have been owed for too long.”

A spokesman for BHP said it supported Samarco “in providing full and fair compensation” and that a nearly $32 billion settlement in Brazil provided compensation to more than 625,000 people and was “the fastest and most effective solution to compensate those affected by the failure of the Samarco dam.”

The spokesman added: “Claimants’ lawyers accepted that the claims of the UK claimants, who had received compensation and full release, should be stayed.

“We believe that approximately 240,000 individual claimants in the UK class action (approximately 40% of the total) are covered, which will significantly reduce the size and value of claims in the UK class action.

“This underlines the importance of the work done in Brazil over the last 10 years.”