Vedanta can no longer hide from Zambian villagers' fury

Published by MAC on 2019-04-12
Source: Leigh Day, Foil Vedanta, BBC, Guardian

Company privatised in 2018 but Court judgment makes UK hearing inevitable

Supreme Court rules Zambian villagers' case against Vedanta to be heard in English courts

The Supreme Court has ruled today that a case brought by almost 2,000 Zambian villagers against Konkola Copper Mines (KCM) and its parent company Vedanta Resources Plc can be heard by the English courts. KCM is a Zambian company which is a subsidiary of UK-based Vedanta. Martyn Day speaking to Zambian villagers

Leigh Day official statement

10 April 2019

The claimants allege that as a result of the toxic effluent discharge from the Nchanga Copper Mine which is run by KCM they have suffered loss of livelihoods through damage to the land and waterways and health problems through having to consume and use polluted water. Now that jurisdiction has been determined their claims will be heard in the High Court at a date to be determined.

As part of the judgment today the Supreme Court also ruled that companies can be held to account for the commitments they make publicly regarding their subsidiaries and their commitments to the communities they serve.

The claimants, represented by law firm Leigh Day, have been fighting for four years to have their case heard in the English courts. They argued that they would not be able to achieve justice in the Zambian courts due to the lack of funding available for claimants in such claims and the lack of legal representatives with the necessary qualifications and experience to properly bring the case. The Supreme Court agreed with these arguments. The court also determined that there is a triable issue between the claimants and Vedanta, as well as KCM, and that Vedanta arguably owes a duty of care to the claimants as the parent company of KCM.

The court heard that Vedanta has published material claiming to have control and responsibility over KCM and material in which it asserted its responsibility for the establishment of appropriate group-wide environmental control and sustainability standards, for their implementation throughout the group by training, and for their monitoring and enforcement. The Supreme Court ruled that Vedanta must be held accountable for these publicly made statements and it therefore has a duty of care towards the claimants.

This ruling could have wider implications for companies who make public commitments relating to their responsibilities to communities and the environment and then fail to put these into practice.

Oliver Holland, solicitor at law firm Leigh Day representing the Zambians, said:

“After four years fighting for this case to be heard by the English courts we are delighted that our clients’ case can now go ahead in the UK where there is a real opportunity for justice.

“Our clients argued that as the UK-based parent company of KCM, Vedanta also had a duty of care towards them and should be held responsible for the damage they allege has been caused by the mine. Indeed in Vedanta’s own published materials the company claims to have control over the mine and to have responsibility for the proper standards of environmental control across its subsidiaries. The court has ruled today that Vedanta cannot merely pay lip service to these statements and must be held accountable for them.”

Martyn Day, senior partner at Leigh Day, added:

“I hope this judgment will send a strong message to other large multinationals that their CSR policies should not just be seen as a polish for their reputation but as important commitments that they must put into action.”

Background

The Zambians first issued their claim against KCM and Vedanta in the High Court in August 2015. They allege that as a result of the toxic effluent discharge from the Nchanga Copper Mine (run by KCM) they have suffered loss of income through damage to the land and waterways on which they rely. They further contend that many are suffering from personal injuries as a result of having to consume and use polluted water. They are seeking damages, remediation and cessation to the alleged continual pollution that they say is gravely impacting their lives.

In order to bring the claims against Vedanta and KCM for damages relating to the alleged damage caused to their environment, livestock and health the issue of jurisdiction needed to be determined to decide which country should hear the case.

Following service of proceedings in August 2015 both KCM and Vedanta challenged the jurisdiction of the English Courts, filing applications which sought, among other things, a declaration that the court does not have jurisdiction to try the claims. In April 2016 the Technology and Construction Court heard submissions and evidence from all parties during a three day hearing. In May 2016 Coulson J found in favour of England as the most appropriate forum for the resolution of the claims allowing the claims to proceed against both Defendants.

Vedanta and KCM both appealed the first instance decisions and their appeals were heard over two days by the Court of Appeal in July 2017. The Court of Appeal upheld the entirety of Coulson J’s conclusions. The Defendants appealed to the Supreme Court and the case was heard on 14-15 January 2019 before Lady Hale, Lord Wilson, Lord Hodge, Lady Black, and Lord Briggs. Judgment was handed down on Wednesday 10 April 2019 with Lord Briggs giving the leading judgment to which the other panel members all agreed.

Now that jurisdiction has been determined the substantive claims by the Zambian villagers will be heard in the High Court.

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Zambians can pursue mining pollution claim in English courts

Villagers say mine run by subsidiary of UK-based firm has caused illness and deaths

Damien Gayle

The Guardiane

10 April 2019

Two thousand Zambian villagers who say their lives have been ruined by toxic runoff from the world’s second-largest opencast mine have won the right to pursue a claim through the English courts.

In a landmark judgment, the supreme court ruled that the mining conglomerate Vedanta Resources, which is based in London, and its Zambian subsidiary Konkola Copper Mines (KCM) can be held to account by English judges, despite the companies’ arguments that they should defend themselves in Zambia.

The decision opens the doors to a range of other cases to be brought against parent companies based in the UK for the actions of their subsidiaries overseas. Oliver Holland, associate solicitor at Leigh Day, who represented the Zambians, said: “I can see companies around London looking at their policies and thinking: what’s going to happen now?”

Cases against Royal Dutch Shell, Unilever and BHP Billiton over allegations of polluting communities in developing countries have been awaiting a decision in the Vedanta case before they can proceed.

The case was brought by 1,826 residents of the Chingola region, in Zambia’s Copperbelt province, who say that effluent from the Nchanga opencast mine has polluted their water supplies.

A vast operation covering nearly 30 sq km, the copper mine and its processing plant lie close to the Kafue River and its tributaries. Local farmers and fisherman claim to have suffered continual pollution since Vedanta bought KCM in 2004, including an incident in 2006 which they say turned the Kafue bright blue with copper sulphate and acid, and poisoned water sources for 40,000 people.

Chemicals believed to be draining into the local water supply include heavy metals such as lead and cadmium, which the claimants say have led to them suffering chronic illnesses and deaths.

“The villagers live close to the river, which we say that the effluent goes into, so it’s polluting their water sources and farmland,” Holland said. “They are saying they have to drink polluted water because there is no other water source.”

James Nyasulu from Chingola, a long term campaigner in the case, said the decision will finally enable thousands of victims of pollution to seek justice. “Their livelihoods, land and health have been irreparably damaged by pollution which has rendered the River Kafue completely polluted and unable to support aquatic life.”

The claimants first issued their case in the hight court in London in 2015, claiming negligence and breach of statutory duty over the release of effluent, but before it could proceed Vedanta challenged the jurisdiction of the English courts. The supreme court’s decision on Wednesday confirmed rulings in both the high court and the court of appeal.

A key point in the case were claims in company literature published by Vedanta – a £10bn company – that it took responsibility for environmental and sustainability standards across the group. It had agreed to submit to action in the Zambian courts alongside KCM, but the supreme court justices agreed with the claimants’ argument that there was a risk they may not have access to justice in Zambia, and so allowed the case against both companies to be heard in England.

“Had it not been for the access to justice problem, this court would therefore have refused the claimants permission to serve these English proceedings out of the jurisdiction upon KCM in Zambia,” Lord Briggs told the court. “As it is, however, the non-availability of access to justice in Zambia means that the proceedings against both defendants must continue in England.”

A spokesperson for Vedanta and KCM said the judgment was a procedural one relating to the jurisdiction of the case. “It is not a judgment on the merits of the claims,” the spokesperson said. “Vedanta and KCM will defend themselves against any such claims at the appropriate time.”

The claim against Vedanta and KCM can now proceed in the high court.

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Court rules Zambians can seek compensation for pollution

BBC

10 April 2019

Nearly 2,000 Zambian villagers have won the right to sue mining giant Vedanta over alleged pollution, the UK Supreme Court has ruled.

The landmark judgement means other communities in developing countries could seek similar redress in the UK against large multinationals.

Zambian villagers have been fighting for the right to seek compensation in British courts for several years.

Vedanta had argued that the case should be heard in Zambia.

The UK Supreme Court disagreed, saying that the case must proceed in the UK, due to "the problem of access to justice" in Zambia.

The case relates to allegations by villagers living near the huge Nchanga Copper mine, owned by Konkola Copper Mines (KCM), a subsidiary of UK-based Vedanta.

Vedanta said: "The judgment of the UK Supreme Court is a procedural one and relates only to the jurisdiction of the English court to hear these claims. It is not a judgment on the merits of the claims.

"Vedanta and KCM will defend themselves against any such claims at the appropriate time."

Martyn Day, senior partner at law firm Leigh Day, which is representing the Zambian villagers, said: "I hope this judgment will send a strong message to other large multinationals that their CSR [Corporate Social Responsibility]. policies should not just be seen as a polish for their reputation but as important commitments that they must put into action."
Water pollution

In 2015, Zambian villagers accused Vedanta of poisoning their water sources and destroying farmland.

Leaked documents seen by the BBC appeared to show that KCM had been spilling sulphuric acid and other toxic chemicals into the water sources.

The communities of Hippo Pool, Kakosa, Shimulala and Hellen said that the Mushishima stream and the Kafue had become rivers of acid.

They are not alone in their complaints against Vedanta. In India's Tamil Nadu state, a Vedanta-owned copper smelting plant was closed by authorities in May 2018.

Protests against the plant over its role in allegedly causing environmental damage turned deadly after police killed 13 people.

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Foil Vedanta PRESS RELEASE

10th April 2019

LANDMARK JURISDICTION CASE WON BY ZAMBIAN FARMERS AT SUPREME COURT:

Historic victory for opens the door for global claimants to seek justice against British multinationals in the UK

The Supreme Court today announced its verdict in the landmark case of the Zambian communities consistently polluted by Konkola Copper Mines (KCM), a subsidiary of British miner Vedanta Resources Plc, allowing them to have their case against the parent company and its subsidiary tried in the UK. The ruling sets a strong legal precedent which will allow people with claims against subsidiaries of British multinationals to sue the parent company in the UK.

The judgment by Chief Justice Lady Hale, and four further judges, re-affirms the rulings of the Court of Technology and Construction in 2016 and the Court of Appeal in 2017. Lady Hale refused Vedanta's pleas in appealing the former judgments stating that, contrary to the claims of Vedanta's lawyers:

* the claimants do have a bona fide claim against Vedanta

* the company does owe a duty of care to the claimants, especially in view of the existence of company wide policies on environment and health and safety.

* that the size and complexity of the case, and the lack of funding for claimants at ‘at the poorer end of the poverty scale in one of the poorest countries of the world’ means that [they] do not have substantive access to justice in Zambia.

The 1,826 claimants, represented by UK law firm Leigh Day, are from farming and fishing communities downstream of KCM's mines and plants. They claim to have suffered continual pollution since UK firm Vedanta Resources bought KCM in 2004, including a major incident in 2006 which turned the River Kafue bright blue with copper sulphate and acid, and poisoned water sources for 40,000 people(2). 2,001 claimants took KCM to court in Zambia in 2007. The courts found KCM guilty but denied the communities compensation after a nine year legal battle. As a result the victims took their case to UK lawyers.

James Nyasulu from Chingola, a long term campaigner in the case, and lead claimant in the Zambian cases, issued this statement:

“The Supreme Court judgment will finally enable justice for the thousands of victims of pollution by KCM's mining activities, who have suffered immensely since 2006 to date, in the Chingola district of Zambia. Their livelihoods, land and health have been irreparably damaged by pollution which has rendered the River Kafue completely polluted and unable to support aquatic life. Some have already died as a result.

We are very grateful to the British Supreme Court for allowing the case to be tried in the UK where we trust that justice will finally be done. As our thirteen years of legal battles have shown, we have been unable to get justice in Zambia.”