Rights of communities to bring legal challenges in UK courts
15 April 2019
Over the years the PSG has noted cases where problems in the Peruvian mining industry associated with relations with communities have finished up in the UK courts. In particular, Glencore and the previous owner Xstrata have had problems with the Coroccohuayco extension to the Tintaya mine. The London-based legal firm Leigh Day was also involved in litigation on the Rio Blanco mine in Piura.
The UK Supreme Court has just issued its decision on the admissibility of bringing an action in the UK courts by Zambian villagers with regard to alleged pollution at the Nchanga copper mine, owned by Vedanta through its Zambian subsidiary KCM. Vedanta is an Indian-registered company which delisted from London a year ago. It maintains a legal office in London. The case may be of relevance to legal claims in Peru.
The decision is a procedural one on admissibility, not on the substance of the case. It has thus been decided that the case can be heard in the UK courts and it would appear to be setting a precedent, so more such cases could be heard. It is not in doubt that Zambia has independent judges, courts and civil procedures which would ensure a just trial of large environmental group claims like this one.
The issues are twofold. First, the practicable impossibility of funding such group claims where the claimants are all in extreme poverty, because they could not obtain legal aid and because conditional fee agreements ‘no-win, no-fee litigations’ are unlawful in Zambia.
Secondly, Zambia lacks sufficiently substantial and suitably experienced legal teams to enable effective litigation of this size and complexity, in particular against a well-resourced opponent like KCM. Further, the Supreme Court had much to say on the duty of care of the parent company (Vedanta) to third parties (the villagers). Such duty of care existed if in published materials it holds itself out as exercising a sufficient degree of supervision.
Leigh Day, who brought the case in the UK courts, has said that “the ruling will send a strong message to other multinationals on corporate and social responsibility policies”. According to Reuters, Leigh Day is also involved in a number of other such cases, including ones against Royal Dutch Shell in Nigeria and Unilever in Kenya.