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Fundão dam disaster case judge’s impartiality under scrutiny

Reconstruction efforts at Samarco’s Fundão tailings dam in 2017. (Image courtesy of BHP)

Videos of meetings held by the judge responsible for the Fundão dam disaster case and lawyers call the impartiality of Judge Mário de Paula Franco Júnior into question.

In the tapes, obtained by the Observatório da Mineração, the judge of the 12th Federal Court of Minas Gerais, Brazil, admits that many people who should not receive compensations will benefit and that many who should receive indemnities will be left out.

Brazilian federal prosecutors said there is strong evidence that the “Simplified Compensation System” – created to help victims access reparation – was designed by judge Mário de Paula in collusion with the mining companies Vale, Samarco, and BHP, responsible for the disaster, the Renova Foundation – created to repair the damage – and local lawyers.

When joining the system, the person is obliged to accept the definitive settlement of any open indemnity, including the Emergency Financial Aid, which Renova tried to cut in the middle of the pandemic. The affected person also needs to waive any legal proceedings abroad.

Prosecutors alleged “repeated abusive conduct practiced by the court of the 12th Federal Court of Minas Gerais, resulting in the proliferation of processes and decisions that are manifestly null and harmful to those affected by the Fundão dam breach.” According to public officials, lawyers also benefited from the agreements, receiving 10% of the amounts paid as fees.

Brazilian federal judge Mário de Paula Franco Júnior (Credit: Observatório da Mineração)

On November 5th, 2015, the Fundão dam, owned by Samarco – controlled by Vale and BHP – burst, releasing 39.2 million cubic meters of tailings waste in the Rio Doce Basin. It was the biggest environmental disaster ever in Brazil.

Along the way, the mud caused the death of 19 people and a series of impacts in 39 municipalities along 670 kilometres from Minas Gerais to Espirito Santo state.

The Renova Foundation said it “does not comment on specific cases.” Vale stated that adherence to the new system is completely optional. For Samarco, those who do not agree with the terms can seek other legal options.

BHP reported that “it never made any kind of agreement with local lawyers before these actions were filed in these municipalities”. The Federal Court of Minas Gerais said that the indemnity system was approved by those affected.

The Renova Foundation says that by the end of the year it will pay another R$ 2 billion ($360 million) in compensation and financial assistance to those affected by the tragedy, reaching R$5 billion ($910 million).

Of the 21 people who had been charged in 2016 by the Federal Public Ministry for the crime of qualified homicide with possible intent, five continue to respond to a lawsuit in the Federal Court.

Today, however, they are responding to flood and landslide crimes followed by death, as well as environmental crimes. The crime of homicide was removed from the process in 2019. Vale, BHP Billiton and Samarco are defendants in this process.

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