Our 2019 article Rights Holders’ Participation and Access to Remedies: Lessons Learned from the Doce River Dam Disaster analyses remediation efforts that followed the collapse of the Fundão mining tailings dam in 2015 in Brazil which caused severe environmental, social, and economic losses. Two years after its publication in the Business and Human Rights Journal, some of the concerns expressed in that piece have proven to be true.

Firstly, the article analyses four settlement agreements between Brazilian authorities and the three mining companies involved in the case – Samarco, Vale, and BHP – creating a complex mechanism to remedy the disaster. An important part of that the establishment of an entity that had a direct mandate to develop and implement the remedial measures. Among other things, the agreements provided for independent technical support that would facilitate rights holders’ access to information and the participation of rights holders’ representatives in the Renova Foundation’s Board of Trustees – the body with decision-making power within the newly established entity. We observed that, although good on paper, no action had been taken to implement these provisions. Today, only five out of 44 territories receive technical support, and there are no affected communities’ representatives participating in that body.

Secondly, the article considered the challenges of remedying a large-scale disaster. The affected areas spanned over 600 kilometers through two different Brazilian states, affecting 41 municipalities and three indigenous territories. The article therefore recommended the implementation of local spheres of decision making to allow affected people to take part in the mechanism and to ensure that the specifics of each community were taken into account. A recent judicial decision led to the creation of an online platform through which rights holders could opt-in to receive financial compensation for the losses they suffered. However, regardless of the diversity of contexts between affected territories, the platform awards similar amounts as damages for people in different situations.

Affected people who use the platform are also required to waive any right to a future claim, including in foreign countries. This is relevant given that approximately 200,000 affected people are participating in a class action that seeks to hold BHP accountable in the UK for damages caused by the disaster. A couple of days after of the disaster’s 5th anniversary, a High Court judge in Manchester held that the case was an abuse of process of the court. The decision is still subject to appeal and may have significant impacts on extraterritorial cases against British corporations.

Finally, the failure on the part of the Brazilian State and the mining sector to implement guarantees of non-repetition are worth mentioning. In January 2019, another mining tailings dam collapsed only 120 km away from the Fundão dam, leaving 283 deceased in addition to other social, environmental, and economic losses. According to data from the National Mining Agency, Brazil still has 45 dams banned for lack of stability. The adoption of regulations focused on preventing adverse human rights impacts, including mandatory human rights due diligence laws, is critical in reducing the risks of future disasters related to the mining industry.

The article Rights Holders’ Participation and Access to Remedies: Lessons Learned from the Doce River Dam Disaster was awarded the prize for Best Developments in the Field Article for 2019 by the Business and Human Rights Journal. You can read the full article here.

Joana Nabuco is a Researcher at the Business and Human Rights Centre at Fundação Getulio Vargas, Brazil. Leticia Aleixo is a Supervising Attorney at the Human Rights Clinic of the Federal University of Minas Gerais, Brazil.