An Endless Crime: BHP Billiton and Vale's Sludge Still Harming Brazil

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This article was published by Amigos da Terra Brasil, Arthur Viana -Photo Provide by MAB

Half past four. The kettle on the stove screams with hot water for my coffee. It´s too late: it´s now boiling; at some point it always boils. I open the window and I see the sludge.

Almost two years after the largest environmental crime in the history of Brazil, Samarco the joint-venture of BHP Billiton and Vale, is planning to resume activities.

The story of the collapse of the Fundão dam, in Bento Rodrigues town, Mariana municipality, in the Brazilian state of Minas Gerais, didn´t start here or now. For the sludge to come, the dam had to collapse, and a dam doesn´t collapse that easily, or at least it shouldn´t.

Looking out the window, this is what I see, and please try to picture it: 62 million cubic meters of sludge with mining waste, the amount that flowed out from Samarco´s collapsed deposits coming towards me, towards my house, my animals, my city. I must say it scares me. Better to run, but where to?

First, it is necessary to identify the actors in this story. When we say Samarco SA we are actually speaking of BHP Billiton, an Anglo-Australian company and Vale SA, a Brazilian company privatized during Fernando Henrique Cardoso´s administration in 1997. These companies share Samarco´s assets through a joint-venture, 50% each.

The Anglo-Australian giant landed in Brazil in 1984 and in addition to operating through Samarco, it also has operations in the aluminum sector, 14.8% control of the bauxite mining company MRN (Mineração Rio do Norte) and shares in Alumar company (Consórcio de Alumínio do Maranhão). According to a 2017 ranking by PwC consulting, BHP Billiton is the largest mining company in the world and Vale is the fifth. In 2014, a year before the dam collapsed, BHP Billiton´s turnover amounted to $13.8 billion US dollars (only in the first semester of the year); and Vale´s amounted to almost $1 billion Brazilian reais, with a 729% increase in relation to 2013. Yet, despite their sizes and profits, they failed in what was crucial and exposed their crimes: they didn´t listen to their safety engineer Joaquim. Let me explain myself:

This is the year 2014, and the Fundão dam is still there, covering all waste sludge that would soon be spilled on the cities and would end up destroying the basin of an entire river. The death of Rio Doce, back then, was not even imaginable. During an inspection of Samarco´s facilities, engineer Joaquim Pimenta de Ávila – who was the person that planned the dam years before and was now offering consultancy services- detected cracks, real openings in the works that modified the left lateral wall of Fundão dam.

In compliance with his task at hand, Joaquim referred to this in his report. Despite this, the warning was not a cause for much concern among the company´s directors, who a year later, did not inform the new consultancy firm, VogBR, about the fact that cracks had been detected on the dam the previous year. Samarco (BHP Billiton and Vale) considered this information was dispensable.

It was no coincidence, then, that it was precisely this section of the dam that broke up on November 5th. It took approximately ten minutes after the collapse for the waste to arrive to Bento Rodrigues municipality. With no sirens ringing to warn the population during situations of emergency, not even the kindness of a forewarning was respected and the city was taken by surprise.

If I had known back then, I wouldn´t have waited for the coffee. I would have said, listen to Joaquim. But I doubt that CEOs, the important men in suits, hear any other voices beyond that of investors; if they ignored the engineer´s voice, they will certainly not listen to the voices of the people affected by their mistakes.

Even before Joaquim´s warning, other concerns and alerts were ignored as well: in 2009, RTI company developed an action plan for emergency cases, but the plan was never adopted because it implied excessive costs. The year before, in 2008, the net revenue accumulated by Samarco was more than $4 billion reais.

Warnings had been issued, indeed, but they were systematically silenced by BHP and Vale After the fact the Public Ministry released internal Samarco documents showing that the risks were known by the company’s high executives: on April 2015, they talked about the possibility of up to 20 deaths, serious environmental damage and the suspension of business activities for up to two years in case the dam collapsed.

The risk was known. And the predictions were not so wrong: the collapse of Fundão killed 19 people and spread mining waste mud down 663 kilometers of rivers, resulting in the destruction of 1469 hectares of vegetation, including Permanent Conservation Areas. This was no surprise, not an unexpected event, and it is frightening that they are trying to categorize this as an accident, when it was clearly a horrible crime.

Photo: Bento Rodrigues town, in Mariana municipality (MG), after the sludge flooding from the Fundão dam. Photo Guilherme Weimann/Movimento dos Atingidos por Barragem (MAB)

The advance of the sludge into the Rio Doce basin killed 11 tons of fish. The Brazilian Environment and Renewable Natural Resources Institute (IBAMA) estimates that out of over 80 species that were characterized as native before the crime, 11 were considered endangered and 12 barely exist in the affected region.

The water polluted by the mining waste affected the "Central Atlantic Forest Corridor", a conservation area for various fauna and flora species stretching through Bahia, Espirito Santo and part of Minas Gerais states. Moreover, the Rio Doce water basin covers 230 municipalities in Minas Gerais and Espirito Santo states, many of which supply their populations --3.5 million people in total-- with drinking water taken from the river.

Access to water, a fundamental human right, was violated by the actions of BHP Billiton and Vale. Furthermore, thousands of fisherfolk lost their livelihoods: 1249 fisherfolk were registered in the region, and one can imagine that the number is even higher if those that were not registered are added.

The Comboios Biological Reserve, in the northern part of Espirito Santo state and 500 kilometers away from Bento Rodrigues, was also affected by the sludge. Comboios is the only regular spawning site of the leatherback turtle in the Brazilian coast. The scale of the destruction caused by Samarco was huge, beyond what is measurable, and the damage will be felt for many years on. Nothing could be saved in the path of the sludge, except the companies, which still haven´t paid for their crimes.

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Photo: Girl in Mariana (MG) during water distribution. Many communities continue to have their rights violated every day, with restricted access to drinking water. Photo Leandro Taques/Movimento dos Atingidos por Barragem (MAB)

 Life and the planet endured a deadly attack, and unfortunately, it was not the first time: BHP Billiton has many deaths on its record. In 1979, the explosion of a coal mine killed 14 people; in 1986, in a similar case, 12 people died; in 1994, 11 people died.

 In 2015, a BHP book registered the death of 180 steel workers from the company between 1926 and 1964. The BHP Olympic Dam  is one of the largest uranium mines in the world, generates harmful radioactive waste and uses excessive amounts of water. But the damage caused by the company is not only felt in Australia: in Chile, there have been complaints related to copper waste spills.

Of all their crimes, there is one that stands out: a BHP Billiton mine in Papua New Guinea released, over a decade, millions of tons of waste from copper exploitation in the Ok Tedi and Fly river basins. This affected 50 thousand people and devastated the environment. After the scandal was made public, the company abandoned the business: it wasn´t good for its image to be associated to the deliberate destruction of nature. BHP is now adopting the same attitude in relation to the crime at the Fundão dam: it is hiding behind Vale, which in turn is hiding behind Samarco, which in turn is hiding behind Fundación Renova, which claims to be completely independent from all of them.

In addition to the deaths and destruction of an entire ecosystem, the actions of mining companies also destroyed livelihoods. Fisherfolk communities lost their fish. The sea of mud buried hectares and hectares of productive lands, rendering agriculture impossible. Communities that were used to go to the market only to buy maybe a package of salt, because they obtained everything else from their own lands, are now uprooted from their historical and cultural references, and pushed to refuges, to urban life, towards abandonment. Some things cannot be remedied: how do you measure the damage caused by a death, loss of culture or favourite family swimming hole?

The Krenak people, a traditional indigenous community along Rio Doce, was also irreparably affected and witnessed the profane violation of their sacred waters. The white man knows how to destroy nature. Along the same lines, he is unable to understand that he does not have the power to bring it back to life: his money and carbon credits are absolutely ineffective, given the goals they have embedded in their souls. Rio Doce is dead. The CEOs murdered it.

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Photo: Indigenous person observes the trail of destruction in Gualaxo do Norte River, a tributary of Rio Doce, the first water spring affected by the Samarco sludge. Photo by Lidyane Ponciano/Sind-Ute Mg/CUT-MG

The attack against Rio Doce is also a case of environmental racism: 84.5% of the people killed by the collapse of the dam were black. With money, companies try to silence the pain of those affected. But not so much: effective remediation actions are permanently postponed, with judicial delays and trials that come and go and come back again. Most families are still living in temporary housing. New locations are being considered, but none of them are suitable for the lifestyle the population used to have. In the end, among the choices offered, they have nothing else but to choose the "least worst" option. After receiving "emergency aid" there is no definition about final compensation sums. Of the 68 fines imposed to Samarco, only one of them was partially paid (the first in 59 installments). This represents 1 per cent of the total, which amounts to $552 million reais.

In March 2016, the federal government, the states of Minas Gerais and Espirito Santo and the guilty companies -BHP Billiton, Vale and Samarco- signed the Terms of Transaction and Conduct Adjustment (TTAC). Based on these terms, the so-called “acordão” (big agreement), mitigation measures were defined and three months later Fundación Renova was created, through which the companies themselves would manage the compensation programs of the damage caused by the crimes of which they themselves are responsible. Unbelievable if it wasn´t tragic. This episode could also be titled "The fantastic case of criminals defining and managing their own sentences".

 This "agreement" cannot even be considered, since the most essential piece in the story has not been involved in its design: the people affected by the sludge from the companies´ profiteering and the State’s collusion did not have their voices heard when deciding about how to remediate the damage caused by the companies. It is a fact that the entire planet suffered with the biggest socio environmental crime in the history of Brazil. However, a few people were left without a home, without an income, without any goods, nothing. It is crucial to listen to them before signing any agreement. With the absence of the people affected, the Federal Public Ministry (FPM) -which was also left out of the negotiations for the "agreement- had no choice but to reject the terms, and refused to ratify it.

The fine according to the TTAC ‘agreement’ amounted to $20 billion reais. In May this year, the Public Ministry finally acted more resolutely: it sued the three companies for $155 billion reais, something considered enough for the "comprehensive restoration" of nature and the people affected (as if this was possible). Two days after the Minister of Public Finance legal action, a judge at the Federal Regional Tribunal (TRF) ratified the "agreement", which was still in dispute, and gave way to an "atypical" situation from the procedural point of view. That is why the ratification was immediately reversed by the Federal Regional Tribunal. Despite these legal maneuvers the TTAC agreement is the one companies are following, on the sidelines of the law.

The judicial coming and going and the silencing of people affected is a proof of the difficulty of national institutions, the federal and state governments, public bodies, the Judiciary (let alone companies) in finding solutions for the largest socio-environmental crime in the history of Brazil, even though the country holds one of the most advanced laws in relation to environmental crimes, which establishes direct obligations and sanctions to companies. Palliative care is not enough.

Fundación Renova, managed by those who murdered a river and 19 people, will never have the authority to repair the damage that was caused by itself. In fact, Renova´s program Chair, Galib Chaim, had a long professional trajectory in Vale, where he was executive director of capital projects until July of this year. Wilson Brumer, chair of the Board of Trustees of the Foundation, had been executive president of Vale and of BHP Billiton. They only had to change their business cards, but they are still on the same side.

International Binding Rules on Transnational Corporations

Transnational corporations now concentrate profits that run higher than the GDP of many countries. How do we combat their development logics that put profits above any human rights or environmental concerns? And what legal instruments can we use to fight  companies so powerful and whose operations and violations know no borders like the case of BHP Billiton and Vale?

Here lies the importance of a new international treaty that holds companies accountable for the crimes committed anywhere in the world. If cases were analyzed on a one-by-one basis, the problems caused by these companies could seem a local or national matter. But their actions are very similar in many countries and thus what is local becomes global; and therefore, the solution should have the same scope.

Today, the difficulty to obtain a sentence against the companies with headquarters outside the territories where they act and violate rights is a huge problem. But even greater is the difficulty to make convictions effective in countries where the company operates and concentrates huge political and economic power, in an asymmetric way in relation to the States and in a brutal way in terms of affected communities.

A new binding treaty on human rights violations that subverts the logic imposed by capital and establishes legal instruments for implementation, such as an International Tribunal on Human Rights and Transnational Corporation is crucial. The struggle and resistance on the territory can be connected at international level, overcoming borders and joining forces when confronting big transnational corporations.

There is a clear and systematic pattern in terms of the actions of these huge corporations around the globe, and especially in the South that violate and  commit  human and socio-environmental rights everywhere they act. Yet currently they are ensured impunity: Samarco, the holder of many corporate social responsibility awards, is trying to resume its activities soon and its new environmental license requests are already underway.

Life that goes on, while others’ can´t go on, simply because there is no way for them to go on. Whether because there are no more fish, or fishing nets; or no more land, unless you own it; whether because the livelihoods of affected people were destroyed, together with their memories and traditions, or just because, when the coffee water boiled, I opened the window and the sludge came in.