Brumadinho Dam Disaster

Briefing paper: The true cost of mining 25 January 2021

The true cost of mining Ensuring justice for people and communities affected by the Brumadinho dam disaster

What needs to change Introduction • Families of the people killed by the Brumadinho The second anniversary of mining company dam disaster need to be fully compensated by Vale’s rights abuses in Brumadinho is 25 Vale and responsible state actors. January 2021. Christian Aid and MAB • Compensation to people who have lost their (Movimento dos Atingidos por Barragens or livelihoods through contamination of waterways, Movement of People Affected by Dams) lands and water should be provided using a fair, together commemorate the 270 victims1 who consultative and transparent process. died and stand in solidarity with their families • People and communities displaced by further and communities. unsafe dams need adequate compensation, and support for their livelihoods A tailings dam2 in Vale’s3 iron ore mine • Mining companies with tailings dams in every collapsed in Brazil’s state of Minas Gerais, near country need to be subject to mandatory the city of Brumadinho, on 25 January 2019. disclosure of risks. Initiatives such as the Investor This released 11.7 million cubic metres of toxic Mining and Tailings Safety Initiative are important waste and mud,4 contaminating the Paraopeba initial steps but should be made mandatory. River and nearby water systems and lands, • A gender impact assessment of the human rights affecting the livelihoods of an estimated abuses and reparations should be conducted, 944,000 people.5 These people are still trying to according to nationally approved legislation and get their lives back on track. following guidance issued by the UN Working Group on Business and Human Rights. The UN Special Rapporteur on the implications • Extraterritorial responsibility of multinational for human rights of the environmentally sound companies headquartered abroad should be management and disposal of hazardous ensured through duty of vigilance and mandatory substances and wastes said ‘the Brumadinho human rights due diligence laws. disaster was technically caused by structural • A UN Binding Treaty on Business and Human instability and liquefaction, the real cause lies Rights should be agreed, providing robust access to with a remarkable lack of Government remedy for human rights violations by multinational oversight and criminally reckless conduct by companies, including for individual victims, Vale.’6 Court rulings, individual lawsuits and a communities and to address gendered impacts. remedy agreement for families who lost loved • Robust implementation of human rights and ones have been achieved. Yet the process of environmental protection legislation should be comprehensive redress to all affected ensured, with community participation. Modern communities, including for lost livelihoods and mining generates huge volumes of waste; effective ecosystems in the region, is ongoing. tailings management is crucial to reduce waste and protect communities and the environment. This The disaster must remain on the agendas of requires mandatory legislation. decision makers and those responsible. The response so far has been inadequate and has

1 Briefing paper: The true cost of mining 25 January 2021

also brought to light a broader and urgent millions of people. Our lives should be a concern. According to the Brazilian National great adventure on this planet, not Mining Agency (ANM), there were 47 dams at risk suffering and sacrifice.’ in Brazil as of 31 March 2020,7 of which 37 were in the state of Minas Gerais and 26 owned by Vale This was part of the ‘March of People’s Affected’, according to MAB. Of the Vale-owned dams at which ended in Brumadinho on 25 January. The risk, 18 were in Minas Gerais. Communities living march travelled 300 kilometres across the state to near these dams now face displacement and denounce the conduct of Vale following the temporary housing, leading to further loss of collapse of the Mariana (2015) and Brumadinho income and livelihoods.8 While the responsibility (2019) dams. for ongoing inspection lies with the federal government through the National Mining Agency, Boff highlighted how social movements in Brazil after the disaster, multiple responsibilities due to are resisting, bringing together marginalised loss of life, of people’s livelihoods and of housing people including women, peasant farmers, Afro- fall under the competence of different state Brazilians and other affected peoples to discuss actors. today’s unsustainable development model. This model is underpinned by social inequalities13 and Tailings storage facilities disasters rarely occur environmental injustice. because of an isolated technical cause but are normally attributed to failures such as the Covid-19 restrictions mean that no similar disregard of good engineering practices, commemorative events can take place to mark management or poor governance frameworks.9 this second anniversary of the disaster on 25 The Brumadinho disaster reflects the attitudes in January 2021. However, virtual events have been a sector where tailings storage facilities taking place since 8 December, continuing to 30 management is seen as peripheral and given low January, with the main event to commemorate priority; this is symptomatic of a broken economic victims being held on 25 January.14 A series of model that puts people and the planet at risk in community-led initiatives are happening online to the pursuit of profit.10 It is an injustice, not just for highlight the plight of the affected communities individuals and families directly affected, but also and their demands, and make sure that similar for whole communities and future generations. disasters never happen again. This is because contamination of productive resources such as soils and water courses puts Investor and industry response rights to adequate food and nutrition as well as to Following the Brumadinho disaster, a coalition of food sovereignty11 at risk. It also violates the investors launched the Investor Mining and principles of sustainable development, including Tailings Safety Initiative – an investor-led that meeting today’s needs should not reduce the engagement governed through a Steering ability of future generations to meet theirs. Committee chaired by the Church of England Pensions Board and the Swedish National People mobilising for justice Pensions Funds Council on Ethics. This has On the eve of the first anniversary of the convened institutional investors (representing Brumadinho dam disaster, at an event organised more than $14 trillion assets under management) by MAB12 in Betim, Minas Gerais, human rights active in extractive industries including major defender and theologian Leonardo Boff warned: asset owners and asset managers. ‘The main crisis of humanity is inequality: the lack of sympathy with other people’s The industry responded with a Global Tailings suffering… Either we take care of our Review15 co-convened by the International common home, without relying on easy Council on Mining and Metals (ICMM), the UN fixes, or we will witness the death of Principles for Responsible Investment network caid.org.uk

Christian Aid is a key member of ACT Alliance. Eng and Wales charity no. 1105851 Scot charity no. SC039150 Company no. 5171525 Christian Aid Ireland: NI charity no. NIC101631 Company no. NI059154 and ROI charity no. 20014162 Company no. 426928. The Christian Aid name and logo are trademarks of Christian Aid. © Christian Aid September 2020

Briefing paper: The true cost of mining 25 January 2021

and the UN Environment Programme. The review achieved in Minas Gerais the approval of a focused on the development and promotion of a state policy to uphold rights of people new voluntary safety standard on tailing dam affected by the disaster. It is a victory, but safety. this law does not have all the points the affected want and need. We will continue In August 2019, the ICMM launched its new Global the struggle. Industry Standard on Tailings Management. Its accompanying report16 is designed to improve MAB reports21 that where Vale is engaging on operational control of the existing mine tailings matters relating to access to remedy and management process and so reduce the reparations, it generally tries to limit these claims consequences of another catastrophic failure.17 to people who have lost their lives and provides The Principles for Responsible Investment only very limited support to those who have lost network worked with the ICMM on the Standard homes or livelihoods. MAB argues that self- and is developing a set of ‘investor expectations’18 regulation is not adequate, and oversight is vitally to support mining companies in implementing it. needed from governments, international investors, civil society and international bodies The UN Environment Programme has said it will such as UN regional economic commissions and support governments wishing to build on and the UN Human Rights Council. incorporate the Standard into national or state legislation and policies. This is an opportunity for The Investor Mining and Tailings Safety Initiative the Government of Brazil to review and is considering, for example, the establishment of strengthen inadequate legislation. an independent institute with oversight of the ICMM Standard (and which is free from industry National Policy for Dam Safety , law number interference) as the essential next step. This must 12334/2010,19 passed in Brazil in September 2020 include the interests of affected communities and to tighten dam safety regulation along with the environmental watchdog groups to make it National Policy on the Rights of People Affected inclusive of all interests. Tchenna Maso, by Dams (PNAB) (which is pending approval in the representing MAB, says that: Brazilian Congress), which could advance human rights standards for people affected by dams. “One of the great problems we have These may be positive steps, as they prohibit new today, in Brumadinho's case, is that the tailings facilities close to communities and communities are not allowed to state by demand the decommissioning of upstream dams themselves their interests, even if they are of the type which caused the Brumadinho organised in collectives for that purpose. disaster.20 However, they will fail to uphold The state says what the interests of the people’s rights if, as MAB reports, companies community are without any kind of seek to avoid applying the new rules and instead consultation. I think it is fundamental to of decommissioning dams that pose a risk to emphasise that the interests of the nearby communities, force those communities to communities are the ones they present by move away from the dams Letícia Oliveira, themselves, respecting the right to prior, representing MAB, says that: free and informed consultation as a “Disclosure initiatives are important, but human right, and thus guarantee a we are arguing for clearer policies on the greater effectiveness to any reparatory rights of people to their land and homes. process.” MAB are pressing for a new law in this regard in Brazil at both federal and state The investor and industry responses thus far are levels. Almost two years after the not in themselves enough, however. A group of Brumadinho dam broke, we have now more than 500 NGOs signed up to Safety First caid.org.uk

Briefing paper: The true cost of mining 25 January 2021

guidelines coordinated by Earthworks.22 Signatories argued that the new Global Industry While disclosure alone does not prevent a Standards for Tailings Management would not disaster, it can indeed lead to political processes prevent the failure at Brumadinho happening at national, regional and intergovernmental level again or any other mine tailings containment to accomplish this. It is therefore important to failures happening. consider the role that tailing dam safety disclosure plays in the overall picture. Increasing disclosure of tailings facilities In addition to pressing the industry into The need for international legislation and developing a new Standard, the Investor Mining commitments for effective regulation and Tailings Safety Initiative also requested We also note that international legislation is detailed disclosure on tailings storage facilities. lacking. The UN Economic Commission for Latin Although not mandatory, the initiative is a America and the Caribbean has recently advanced positive move. It coordinated an investor guidelines for including human rights impact approach to mining companies via a joint letter assessment as part of environmental impact requesting details of the safety of tailing dams in assessment.24 But there is no binding all countries. It has sought inputs from some of international agreement or commitment on the community representatives (however not tailing dam safety, or on protection of human MAB) impacted by the recent disaster – rights in the mining sector more generally. environmental experts, government representatives, international technical advisers – A wide commitment on human rights due as well as company representatives. diligence and access to remedy would encompass actions governments can take to ensure mining The group of investors in 2019 wrote to sector practices are coherent with the UN Guiding 726 extractive companies responsible for an Principles on Business and Human Rights estimated 18,000 tailings storage facilities (including access to remedy) and broader human worldwide, of which around 3,500 are active. rights commitments, as well as actions to The request sought to establish greater disclosure enhance transparency and accountability. They on the management of tailings storage facilities as also include a commitment to transparency and of 30 April 2020, with these results:23 social accountability in implementation, and approaches such as gender responsive due • 340 companies responded (47% of those diligence,25 which we have analysed to be lacking contacted); 386 did not respond (53%). in most impact assessments of mining sector • 187 confirmed they did not have tailings activities.26 This has led to calls for a binding facilities (26%); 153 confirmed international legal instrument, in the shape of the they did have tailings facilities (21%). UN Binding Treaty on Business and Human • 42 responding companies (6%) have not Rights, to be agreed at the UN Human Rights yet published their disclosure on a Council. This would ensure such legal website or have asked for extra time to commitments, including from a gender complete their disclosure. responsive due diligence and access to remedy perspective, are provided in all cases of corporate This disclosure shows that there are significant abuses. risks associated with tailing storage facilities in the countries selected for this sample. Meanwhile International cooperation to ensure human rights mining companies who disclosed data in the in business practice is still weak because most of survey also refer to separate safety standards in the guiding frameworks are voluntary and seek to cases where a national standard is yet to be foster business growth over community rights. developed, such as Brazil. caid.org.uk

Briefing paper: The true cost of mining 25 January 2021

Ensuring access to remedies Next steps Huge deficits remain in access to effective remedy There is a critical need for an alternative rights- for communities impacted by mining activities – based and environmentally compliant operating as exemplified by the risk of unsafe tailing dams. model. Such a model must achieve the needs and Since the outbreak of the Covid-19 pandemic, aspirations of the people who live in and near these can be expected to have worsened. This is mining sites, as well as wider society who benefit because works to carry out safety checks or from the revenues of mining, or indeed structural reinforcements are delayed while companies and investors who profit from it resettlement activities cause more disruption and potential risk of infection for the people from The industry should not be allowed to continue to affected areas. regulate itself. Mining companies have already been accused of controlling their auditors and Christian Aid and MAB have highlighted27 the silencing dissent among their workers.30 importance of gender-sensitive human rights due Establishing and enforcing safety protocol must diligence and access to remedy. This is be done independently and established through particularly vital for women who may not multi-stakeholder processes that actively engage otherwise have direct access where remedy is workers, communities and civil society. provided to ‘heads of households’ who tend to be men. Men own more assets than women do and The UN Binding Treaty on Business and Human so are usually the subject of legal claims for lost Rights would provide a sea change in terms of the livelihoods even if women depend on those operating model, as it states the primacy of assets as much as the men do. human rights obligations of both states and companies before their profits or taxes from Access to remedy in Brazil so far mining operations as a non-negotiable value on Brazil’s new National Dams Safety Policy changes which an economy is built. Mining and mineral the rules of dam control and stipulates up to BRL resources ultimately belong to people, not to the 1 billion ($176 million) in fines for companies that mining companies, and people represented by fail to comply with safety standards.28 It also their elected representatives in government need prohibits the construction of reservoirs using the to make such a vision happen at all levels: upstream method, as used in Brumadinho, in national, regional and international. which the dam grows in steps, using the mining waste itself. This is considered by experts to be a less safe option.29 The deadline for mining companies to eliminate the dams built using this model is 25 February 2022. This is leading to people affected by dams being displaced as a quicker solution to mitigating loss of life than repairing the dams by this deadline.

MAB and wider Brazilian civil society have been key in the National Dams Safety process, showing that civil society organisations are crucial in bringing transformative change and enhancing safety at mining sites. This includes by giving voice to people and their concerns, and ultimately – where needed – in demanding remedy to corporate and state abuses. caid.org.uk

Briefing paper: The true cost of mining 25 January 2021

• Dam safety guidelines need to be Recommendations operationalised as quickly as possible when For governments they are legislated. And companies should, in Governments should implement more the absence of national guidance, use the effective mining and dam disaster-related best available dam safety guidelines for prevention and monitoring, together with clear making risk ratings (rather than the lowest provision for emergency action. standards). • Mining and dam-related risks should be • Companies should participate actively in addressed in the implementation of human rights due diligence, enabling the Sendai Framework for Disaster Risk participation of all community members, Reduction to prevent and mitigate risk including women and marginalised groups. and occurrence of disasters. They should ensure they conduct due • Monitoring of dams is vital to gather diligence to the highest standards as reliable data so that actors can established by national guidance, with respect understand the scope of the problems. to the highest international standards. All governments should ensure adequate • Companies should not try to influence human rights due diligence to support better decisions on environmental or human accountability and transparency: rights licencing or due diligence. They • Effective access to remedy for any victims should rather allow for independent bodies to of abuses should be legislated on the basis be set up with wide governance processes of human rights due diligence, incorporating a that don’t only include the company and the gender and inequality lens, to ensure all government representative body offering the victims are mapped, and environmental licence. legislation, so any abuses lead to reparations. • Companies that have caused harm should • Access to remedy and due diligence need fully participate in a process of remedy to be international and cross-border, with everyone affected, rather than try to respecting the extraterritorial obligations limit their liability without understanding of companies and states This means that for the damage caused. companies headquartered in a country other than where the abuse takes place, we would For investors consider the entire corporate group as liable • Where investors see that a company is not for remedy and human rights due diligence. abiding by the highest standards of human • Dam safety guidelines need to be rights obligations, they should engage in developed in an open and consultative way dialogue with the company, and be to achieve the ambition established by the prepared to divest to ensure that the ‘Safety First’ guidelines. All stakeholders, company complies with international human including experts, civil society, academia and rights and environmental standards. companies, must ensure that safety • Investors should engage in dialogue with guidelines and risk ratings reflect actual the affected communities. environmental and human rights risks. • Those companies that have not yet disclosed • Those profiting from failing tailing dams their tailings dam facilities should do so. should not be allowed to bid for any new Investors should engage in dialogue with mining licences, and existing licences these companies and be prepared to divest should be immediately withdrawn as soon as to push for disclosure. legally feasible. • Investors should publicly disclose their engagement with mining companies as For companies they often have preferential and better access to companies to push accountability further. caid.org.uk

Briefing paper: The true cost of mining 25 January 2021

End notes

1 People also speak of 272 deaths in Brumadinho, as two of McCarthy, Christian Aid, 2017, the 270 deceased people were pregnant at the time of www.christianaid.org.uk/resources/about-us/scandal- death. inequality-2-english 2 Tailings dams are usually earth-filled embankment dams 14 The people affected by dams launch actions to mark two that collect mine waste, known as ‘tailings’; they are often years of Vale’s crime in Brumadinho, 2020, MAB, toxic. https://mab.org.br/2020/12/09/the-people-affected-by- 3 Vale refers to Vale SA, where SA refers to Sociedad dams-launch-actions-to-mark-two-years-of-vales-crime-in- Anonymia or Limited Company. brumadinho 4 Brazil dam collapse: 9 dead and 300 missing after 1m 15 Global Tailings Review, GlobalTailingsReview.org, tonnes of mud devastates Brazil, Thomas Mackie, Express, https://globaltailingsreview.org 2019, www.express.co.uk/news/world/1078136/brazil-dam- 16 Global Industry Standard on Tailings Management, collapse-vale-dam-Brumadinho-latest-dead-missing-mud- GlobalTailingsReview.org, 2020, brazil-news; Tailings, Earthworks, https://globaltailingsreview.org/wp- www.earthworks.org/issues/tailings; Report on the content/uploads/2020/08/global-industry-standard_EN.pdf Emergency Mission after the VALE S/A Dam Collapse in 17 Following on from significant reports into tailing dam Brumadinho (in Portuguese), Brazilian National Council of failures, Review of tailings management guidelines and Human Rights, 2019, www.gov.br/mdh/pt- recommendations for improvement, Golder Associates, br/assuntos/noticias/2019/fevereiro/missao-emergencial-do- submitted to ICMM, 2016, www.icmm.com/tailings-report; cndh-apresenta-relatorio-sobre-rompimento-de-barragem- Tailings Dams: Risk of Dangerous Occurrences. Lessons da-vale/RelatrioMissoemergencialaBrumadinho.pdf Learnt from Practical Experiences, International Commission 5 Brumadinho, six months after a crime with no remedy, on Large Dams Bulletin 121, 2001, Brasil de Fato, 2019, www.unep.fr/shared/publications/pdf/2891- www.brasildefato.com.br/especiais/brumadinho-six- TailingsDams.pdf months-after-a-crime-with-no-remedy 18 New Global Industry Standard on Tailings Management 6 Report of the UN Special Rapporteur on the implications aims to improve the safety of tailings facilities in the mining for human rights of the environmentally sound industry, ICMM, 2020, www.icmm.com/en- management and disposal of hazardous substances and gb/news/2020/new-global-industry-standard-on-tailings- wastes, Baskut Tuncak, 2020, A/HRC/45/12/Add 2, management www.ohchr.org/Documents/Issues/ToxicWaste/A_HRC_45_1 19 Human rights only with struggle and organisation, MAB, 2_Add2_AUV.docx 2020, https://mab.org.br/2020/12/10/article-human-rights- 7 ANM interdita 47 barragens por falta de declaração de only-with-struggle-and-organization estabilidade, ANM (Brazilian National Mining Agency), 2020, 20 Brazil Senate’s new bill tightens safety rules for tailing www.gov.br/anm/pt-br/assuntos/noticias/anm-interdita-47- dams in mining industry, NS Energy, 2020, barragens-por-falta-de-declaracao-de-estabilidade www.nsenergybusiness.com/news/brazil-senate-bill-safety- 8 Mining-Induced Displacement and Resettlement: A Critical tailing-dams-mining Appraisal. John Owen and Deanna Kemp. Journal of Cleaner 21 Conversations with MAB representative, 5 January 2021 Production, 2014, 87, pp478-488; Avoiding New Poverty: and 22 January 2021. Mining Induced Displacement and Resettlement. Theodore 22 Safety First: Guidelines for Responsible Mine Tailings Downing, International Institute for Environment and Management, Jamie Kneen, Ugo LaPointe, Jan Morrill and Development, 2002, https://bit.ly/2N63kvF Payal Sampat, 2020, 9 The role of institutional mining investors in driving www.earthworks.org/publications/safety-first-guidelines-for- responsible tailings management, Sally Innis and Nadja responsible-mine-tailings-management Kunz, The Extractive Industries and Society, 2020, 7(4), 23 Record of the companies contacted by the Investor Mining pp1377-1384. and Tailings Safety Initiative, the status of the company 10 Mining dam failure: Business as usual? Beatrice Labonne, responses and a link to their disclosure, Church of England, The Extractive Industries and Society, 2016, 3(3), pp651-652. 2020, www.churchofengland.org/media/18152 11 Right to adequate food and nutrition, and to food 24 Recommendations for incorporating a human rights- sovereignty, Fian International, 2020, based approach in environmental impact assessment of www.fian.org/files/files/Andrea_20201211_Papers_2_Food_V mining projects, Federación Iberoamericana del 2.pdf Ombudsman, Deutsche Gesellschaft fur̈ Internationale 12 Partners: Movement of People Affected by Dams (MAB), Zusammenarbeit and Economic Commission for Latin Grassroots International, https://grassrootsonline.org/who- America and the Caribbean, 2019, we-are/partner/movement-of-people-affected-by-dams-mab https://repositorio.cepal.org/handle/11362/45095 13 The Scandal of Inequality 2: The multiple faces of 25 Gender lens to the UNGPs, Office of the High inequality in Latin America and the Caribbean, Sophie Commissioner for Human Rights, Richmond, Gaby Drinkwater, Luisa Fulcher and Caroline www.ohchr.org/EN/Issues/Business/Pages/GenderLens.aspx caid.org.uk

Briefing paper: The true cost of mining 25 January 2021

28 Brazil Senate passes bill to limit, fine upstream mining 26 Engendering Business and Human Rights: Applying a dams, Reuters, 2020, www.reuters.com/article/uk-brazil- Gender Lens to the UN Guiding Principles on Business and dams/brazil-senate-passes-bill-to-limit-fine-upstream- Human Rights and Binding Treaty Negotiations, Marianna mining-dams-idUKKBN25U0BB?edition-redirect=uk 29 Leite and Matti Kohonen, Christian Aid, 2019, Tailings impoundment failures: are geotechnical engineers www.christianaid.org.uk/resources/about-us/engendering- listening? Michael Davies, Geotechical News, 2002, pp31-36. 30 business-and-human-rights Why Miners have failed to prevent waste dam disasters, 27 Engendering Business and Human Rights: Applying a Payal Sampat, Earthworks, 2020, Gender Lens to the UN Guiding Principles on Business and www.ft.com/content/a79f9c89-9d96-4413-97b7- Human Rights and Binding Treaty Negotiations, Marianna 6fa1e7fc4340 Leite and Matti Kohonen, Christian Aid, 2019, www.christianaid.org.uk/resources/about-us/engendering- business-and-human-rights

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