Interview conducted and written by Keila McFarland Dias
Business and Human Rights lawyer Camila Manfredini de Abreu represented the victims of the Fundão Disaster in a case against BHP, the Anglo-Australian mining company that operates in Brazil by the contractor Samarco. On 5 November 2015, the Fundão tailings dam collapsed in Minas Gerais, Brazil, unleashing approximately 60 million cubic metres of toxic waste, which became the nation’s most devastating environmental disaster.
John Knox, former Special Rapporteur on human rights and the environment (2012-2018), condemned the role of the multinationals in this disaster, as “the scale of the environmental damage is the equivalent of 20,000 Olympic swimming pools of toxic mud waste contaminating the soil, rivers and water system of an area covering over 850 kilometers”. A case against BHP was brought in English Courts by over 200,000 plaintiffs, including individuals, Brazilian municipalities, Krenak Indigenous communities, the Catholic Church, particularly the Archidiocese of Mariana, and businesses, all of whom suffered loss as a result of the dam failure. Andrew Hickman, researcher and member the LMN Brazil Working Group, said: “Local communities continue to await justice for the environmental and social destruction that has been inflicted on their lives by BHP Billiton and Vale. Despite repeated assurances from the company, it seems clear these communities are still not able to return to their homes or resume their normal lives.”
In November 2020, the English Court nevertheless declined to adjudicate on the claim, as the judge struck out the case as an abuse of the process of the court. Multinational companies’ impunity prevailed. This, as elucidated by Camila, exemplifies the multitude of legal and practical hindrances that business and human rights lawyers are faced with when holding a corporation accountable for environmental and human rights abuses. Regarding legal challenges, the way in which responsibility is attributed among members of the same corporate group facilitates the avoidance of appropriate accountability. More often than not, the human rights violations are committed by a subsidiary and not by the parent company. This is coupled with the denial of justice that claimants are faced with in the host state, the state in which the abuse has occurred, as they cannot access its courts.
Fundamentally, vulnerable groups, such as indigenous peoples, migrants, women, are excluded from the same level of legal protection of their human rights. Which is further aggravated by the burden of proof, a legal standard that requires parties to demonstrate that a claim is valid or invalid based on facts and evidence presented, as it is hard for the victims to prove the corporation’s responsibility for the abuse. John Knox and Baskut Tuncak, Former Special Rapporteur human rights and hazardous substances and wastes, both serving when the disaster took place, warned that “There may never be an effective remedy for victims whose loved ones and livelihoods may now lie beneath the remains of a tidal wave of toxic tailing waste, nor for the environment which has suffered irreparable harm”.
In 2011, the Guiding Principles on Business and Human Rights (hereinafter “UNGPs) were endorsed by the Human Rights Council. The foundation of the framework lies upon the protect, respect, and remedy framework pillars, which simply put means that: states must protect human rights, companies must respect human rights, and those who are harmed must have judicial redress. Under the UNGPs, the State must (1) apply the precautionary principle and (2) carry out comprehensive environmental, social, and human rights impact assessments that examine existing natural resources in the area, cumulative impacts of projects and socioeconomic linkages to environmental issues.
Special consideration should be given to the rights of indigenous peoples. However, justice has not been struck in the case of victims such as the indigenous tribes impacted by the Fundão Disaster. “It is sad, the disaster destroyed an area equivalent to Portugal territory and none of the victims, agricultures, fishermen, workers or indigenous people received full compensation,” said Brazilian federal prosecutor Silmara Goulart. In total, 3,400 indigenous people were affected by the disaster.
The present Brazilian government has blatantly violated the rights of indigenous peoples. The failure to unconditionally protect human rights under the UNGPs was further crystallised by the State’s involvement in the Fundão Disaster. Regarding the Protect Pillar, Brazil has failed in enforcing its environmental regulations when the State granted mining licenses to Samarco to operate in Mariana and in the downstream municipality. As a developing country, Brazil is trapped by “its need for development and investment to create wealth and jobs, which often leads to slack regulation and oversight”. Therefore, as explained by Dante Pesce, member of the UN Working Group on Business and Human Rights, this drives the government to approve mining in poverty-stricken, underdeveloped areas, as oversight of the mining projects is generally negligent.
It is however Brazil’s duty to enact laws for mining that are consistent with international human rights standards, including the right to information. Notwithstanding, there was no Free, Prior, Informed Consent((FPIC) proceedings engaging indigenous communities when the mining was carried out, as explained by Camila. FPIC is a specific right that pertains to indigenous peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), under which these communities must give or withhold consent to a project that has the potential of affecting them or their territories. Moreover, with regard to the Corporate Responsibility to Respect, the Second Pillar of the UNGPs, there was no due diligence performed in the mining operations in Mariana.
In SERAC v Nigeria, the African Commission on Human and People’s Rights found that Nigeria had failed to protect indigenous peoples in Ogoniland from harmful actions by an oil consortium, which breached the peoples’ rights to health, property, housing, food and freedom from forced deprivation of wealth and resources, however, no such remedies have been awarded to the Fundão victims as injustice permeates their case. With regard to the duty to ensure that the victims have access to effective remedy, no such measures have been granted in the post-environmental disaster phase, disproportionately impacting indigenous communities.
The Krenak peoples, the indigenous community that was most affected by the disaster, heavily depend on and have a deep cultural, religious connection with the Rio Doce (the Doce River). Prior to the disaster, the Krenak would undertake all their essential activities in the Rio Doce, for example, their rituals were carried out in the river, furthermore, their livelihoods were contingent on fishing in the river. However, the sacred waters of the “Watu”, as the Rio Doce is known in the Krenak language, continue to be polluted by the toxic mud and mineral waste flowing out of the Fundão Dam. Fundamentally, “the death of the Watu has caused the Krenak to lose their identity”. No effective remedy has been provided to them, they received financial aid, but this falls extremely short in repairing the cultural and economic losses that they have suffered.
This environmental tragedy and ensuing injustice is a clear example of the failure of the State and of corporations to adequately conduct human rights due diligence to prevent human rights abuses. In light of these shortcomings, Camila argues that “Legally enforceable laws are needed: companies have tremendous economic power and influence, therefore it is important to regulate their conduct. This is particularly imperative given that corporations have the potential to abuse human rights and perform environmental degradation”. Furthermore, the fact that corporations benefit from international human rights régime being built along state-centric lines reinforces calls for holding them accountable under international law.
“Environmental law likewise does not impose direct obligations on companies, however, it is more than clear that voluntary initiatives are not enough, as corporations can just ignore them with no legal repercussions. Soft-law is not achieving its potential in ensuring that justice is awarded to victims. This gap has to be urgently filled by regulating international corporation binding obligations, in my view, thereby promoting human rights and environmental preservation”, Camila stated.
Close to six years after the largest tailings dam burst in modern history, the catastrophic impact on the environment has largely “overshadowed” aspects related to social justice and human rights. This disaster had devastating implications for marginalised communities, as it aggravated pre-existing vulnerabilities and forced a great number of people into poverty. It is therefore vital to analyse environmental tragedies through the angles of socio-economic justice; this thereby bolsters the possibilities for holding corporations and States accountable for their breaches of environmental and human rights.
 A resident looking over the destruction in Bento Rodrigues. The village will not be rebuilt. Source: https://webdoc.france24.com/brazil-dam-mining-disaster-mariana/
 Village of Bento Rodrigues after the Fundão dam disaster, November 2015 — photo by Verônica Manevey