Legal quagmire: The battle over the Mariana mining dam disaster

The Brazilian mining sector's biggest-ever litigation case over the deadly Mariana tailings dam collapse in 2015 could be coming to a head, but there will likely be some more twists and turns before it is concluded.

The Minas Gerais state dam operated by Samarco Mineração, a joint venture between mining giants Vale and BHP, suffered a catastrophic failure, releasing an estimated 40 million cubic meters of toxic sludge that destroyed villages in its path, killing 19 people and causing serious environmental damage, poisoning rivers in Minas Gerais and Espírito Santo states.

The attorney general’s office (AGU) and representatives of the two states are negotiating with companies over a compensation agreement that could reach some 140 billion reais (US$26bn), which would make it the largest settlement on record in Brazil.

Although the companies are optimistic that an agreement can be reached in the short term, the municipalities affected by the disaster want more time to assess the deal. 

In parallel with the legal talks taking place in Brazil, lawsuits have been filed in both the UK and the Netherlands on behalf of dozens of municipalities in the area, representing some 700,000 people affected.  

But mining association Ibram recently filed a petition before the supreme court to declare unconstitutional any municipality's attempt to collect money in courts overseas.

BNamericas caught up with José Roberto Gariff Guimarães, mayor of Minas Gerais city São José do Goiabal and president of Coridoce, a group of 51 city halls in the two states, to talk about the complicated case.

BNamericas: What is your view of Ibram's approach to the supreme court to try to prevent municipalities from going through foreign courts?

Guimarães: I believe that Ibram’s stance is inappropriate.

Just as we think we're getting closer to a solution to this case, whether through the Brazilian justice system or even through a decision by the UK court, we see Ibram doing this. We also petitioned the federal supreme court to retain our rights as plaintiffs abroad.

This lawsuit in the UK has been going on for some time, with around 700,000 people and 55 municipalities affected. It's not reasonable to consider that all these stakeholders are wrong and the mining companies are right, which is why there's a lawsuit in both the UK and the Netherlands as well.

BNamericas: Is the voice of the municipalities being heard in the current negotiations?

Guimarães: Coridoce currently has 51 municipalities affected, including cities in both Minas Gerais and Espírito Santo states.

It's curious that the parties don't care much about listening to the municipalities affected. It was only three years ago, through the intervention of the federal senate, that we were able to sit at the negotiating table, but we're not a direct part of the action that's taking place currently between AGU, the states and the mining companies. 

In fact, this negotiation itself doesn't interest us that much because the discussions at the federal and state level are more associated with environmental impact issues, more general matters, while we municipalities are interested in everyday issues.

BNamericas: What are the demands of the affected municipalities?

Guimarães: Our proposal is that 11% of the resources agreed upon in the renegotiation be directed solely and exclusively to the affected municipalities. 

We want this amount to be allocated directly to the mayors and not for this money to have mandatory uses. We do not want these resources to have a set destination, but to allow city halls to have freedom to use them.

BNamericas: If a renegotiation agreement is reached sooner in Brazil than in the UK courts will the municipalities be included in this agreement and give up the foreign lawsuits?

Guimarães: Once an agreement is defined here in Brazil between AGU, the states and the mining companies, the municipalities have 120 days to decide whether they want to be part of this agreement.

I'm asking for a longer period. I'm asking for 180 days so that the municipalities can assess whether it's worth joining the agreement in Brazil or continuing as a party in the process in the British court.

BNamericas: What's the schedule for the legal dispute in the British court?

Guimarães: The trial in the British court begins in October this year and the ruling is expected for January 2025.

BNamericas: Representatives of the mining companies recently said that a definitive agreement could be reached this month. What is your estimate?

Guimarães: This estimate is just an exercise in guesswork. Even if some parties reach an agreement, there are lots of details to be analyzed of what was actually agreed and whether they're fair or not, which is why we want that period to be extended to 180 days to assess whether or not we accept being part of the agreement.

BNamericas: What are the perceived impacts on daily life in the localities affected by the collapse of the Mariana tailings dam?

Guimarães: After the incident, we saw a huge increase in people seeking psychological treatment, and this happened over the years.

On the environmental side, nature is reestablishing itself over time, and there are areas in the risk zone where it's now possible to fish.