When sulphuric acid and other toxic chemicals were detected in the water of four Zambian farming communities in 2005, it was impossible to imagine that any of the affected villagers would be able to do anything about it. The villagers believed the contamination was coming from the vast, nearby mining complex at Nchanga. But Nchanga’s pits are owned by the influential Konkola Copper Mines, Zambia’s single largest employer. Konkola Copper Mines is a subsidiary of the international mining giant Vedanta Resources PLC. Vedanta, controlled by Indian businessman Anil Agarwal, is headquartered in London.
Now, a recent court judgment has offered a way forward for the farmers and families whose fields and livestock have allegedly been contaminated. On April 10, the UK Supreme Court ruled that the 1,826 Zambian claimants had the right to sue Vedanta in the UK. In doing so, it dismissed an appeal by a Zambian court arguing that the case be tried locally.
The court order, Vedanta Resources PLC and another v Lungowe and others, opens the door for the Zambian complaints to seek redress and compensation for lost livelihoods and other damages, along with remediation to clean up the contaminated waters.
But full redress seems out of reach. Since the case began wending its way through the courts four years ago, toxic chemicals reportedly continue to contaminate the land. Nothing will stop it until the new claim is resolved. That may take years.
Watson Senkala, a complainant in the original Zambian case, told the BBC’s Focus on Africa program that “the place is permanently flooded... There’s permanent loss of land. That can’t be recovered".
In a statement, James Nyasulu, the lead claimant in the UK case, said, “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.”
The assertion of UK jurisdiction is an almost unimaginable feat for the claimants, whom the original Zambian judge found to be “at the poorer end of the poverty scale in one of the poorest countries in the world.”
Paradoxically, and in contrast to most tort claims of this kind, the legal victory was won in large part because of, rather than despite, the claimants’ poverty.
At the heart of the judges’ ruling was concern for the farmers’ access to justice. (Whether or not Vedanta or Konkola Copper Mines can be shown to have poisoned the water remains to be proven in the courts.) The Zambian judge and court of appeal had found that “there was a real risk that the claimiants would not obtain substantial justice in the Zambian jurisdiction,” and the British court held that “substantial justice would be unavailable in Zambia.” This was not because the government could not assure fair civil procedure or a competent judiciary. Rather, it was because the farmers would be unable to pay for a proper suit due to their extreme poverty. Relatedly, according to the Supreme Court ruling, Zambia lacked “suitably experienced legal teams to enable litigation of this size and complexity to be prosecuted effectively.”
In London, however, the powerhouse pro bono law firm Leigh Day was ready to take the farmers’ case for free. Leigh Day convinced the court that England—where Vedanta is domiciled—is the appropriate jurisdiction in which to bring the claim.
“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,” said Oliver Holland, a solicitor at Leigh Day, in a statement.
Several recent public relations debacles around environmental protests have already tarnished Vedanta’s reputation. In 2009, to prevent its excavation, local residents in India formed a human chain around a hill where Vedanta was planning to mine bauxite. In 2018, thirteen people protesting contamination at its copper smelting plant in the southern Indian state of Tamil Nadu were shot and killed by police. The company is invested in mounting a vigorous defense—one that, in the court’s view, could have overwhelmed the farmers’ capacity to bring suit against it.
This David and Goliath judgment sets an important precedent for corporate responsibility advocates around the world: providing a potential avenue to hold parent companies responsible for the abuses of their subsidiaries, in situations where local justice systems are unable to provide adequate justice to claimants.
As such, it joins a series of UK rulings since 2012 (Chandler v Cape Plc) that have established and defined the scope of a parent company’s legal liability for the actions of its foreign subsidiaries.
Holding the parent company as well as the local corporations legally responsible expands the scope of liability and raises the pressure for good corporate governance. It also advances the doctrine of corporate social responsibility, which thanks to international advocacy has become the touchstone of corporate accountability around the world.
The Vedanta ruling is an important step forwards for the Zambian famers involved. It may also influence future cases, not just in England, but before courts in other countries, including industrial behemoths such as Germany and the Netherlands, that follow principles of tort established in English law.
Note: updated with statements from the claimants and their lawyer on May 15, 2019.