Abstract
Braga Da Silva conducts a comparative legal analysis of the agreements that resulted from the mining tailings dam failures in Mariana and Brumadinho, Brazil. In the case of Mariana, the companies involved (BHP Billiton and Vale S/A) created the Renova Foundation seeking dialogic, reparative, and participative ways of dealing with the aftermath of the disaster. In Brumadinho, the legal settlement took place under the guidance of a special conciliation team from the State Court of Justice, complying with consensual resolutions until achieving integral reparation. By scrutinising the legal discourse and legal documents, this chapter investigates the ways in which the judicial stakeholders handled the cases and the role they assigned to the position of the victims in the process. Departing from a comparison between the two cases, Braga Da Silva suggests that innovative references to legal frameworks, both substantial and procedural, have contributed towards the institutionalisation of an Environmental Restorative Justice (ERJ) approach at a macro level.
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Notes
- 1.
Labonne (2016) argues that the mining industry’s resistance to change hinders the implementation of efficient disaster protection. Government agencies still lack the capacity to enforce increasingly complex environmental legislation. The result is that the industry engages in self-monitoring, which leads to it cutting corners when confronted with economic downturn.
- 2.
See Llewellyn and Morrison (2018, p. 343), who want to advance and expand thinking, research, and practice of a restorative approach at the level of institutions and social systems.
- 3.
Fajardo and Fuentes (2014) analysed environmental crimes related to mining activities and the effectiveness of environmental criminal law and European Union liability regimes to prevent and resolve these problems in two Member States. They studied significant cases in Spain and Hungary: the mining accidents in Aznalcollar/ES and Kolontar/HU that brought criminal charges against operators and administrations with different results in both cases. When the authors wrote their article, the criminal charges in Spain had been dismissed, whereas, in Hungary, civil and criminal cases were still ongoing in their courts.
- 4.
A study about the burst in Mount Polley identified four significant effects on First Nation People’s health conditions: environmental dispossession, emotional stress, altered dietary patterns, and changes in physical activity (Shandro et al., 2017).
- 5.
See the concept of ecocide available at: https://newint.org/features/2016/05/01/make-ecocide-a-crime/ (last accessed 10 July 2021).
- 6.
See Espíndola and Guimarães (2019): ‘The Vale disaster in Brumadinho, Minas Gerais, had tremendous repercussions in the press, both nationally and internationally. From the day of the incident, January 25, 2019, until February 25, several spaces were occupied in the media, whether through news, special reports, opinion articles, chronicles, cartoons, interviews, readers’ words, among others. The raising of issues by the press was carried out from a broad spectrum of perspectives and had strong shocks, mainly due to the deaths and disappearances. In that first month, The New York Times had 16 publications about the Vale disaster; the French newspaper Le Monde published 11 articles; in England, the British Broadcasting Corporation—BBC published 24 stories; and the newspaper El País published, in Spain, 16 articles about the disaster at Vale. In Brazil, the BBC published 60 and El País, 61 articles’ (translated from original).
- 7.
See https://www.tjmg.jus.br/portal-tjmg/noticias/caso-brumadinho/ (last accessed 07 November 2021).
- 8.
See https://www.cnj.jus.br/observatorio/objetivos-meio-ambiente/ (last accessed 25 December 2020).
- 9.
See Preston et al. (2018, p. 35): ‘International agreements, developed through political processes often generate proposed governance principles or proposed laws that may become national laws through local adoption and legislation. Many putative principles of “international law”, “customary law” or “soft law” that are advanced through scholarship and by political processes however do not become binding laws, though they may have political force. Even when principles are adopted by states, their translation into national law can sometimes emasculate the proposed legal principle; further, safeguards of the integrity of the translation of legal principles from international discourse into practice vary in their effectiveness’.
- 10.
See Braithwaite (2002, p. 13): ‘I have said that fundamental human rights should set legal limits on what restorative processes are allowed to do. But I also suspect that UN human rights instruments can give quite good guidance on the values restorative justice processes ought to observe. Integrating the rights-constraining and values-guiding requirements for restorative justice under the banner of UN human rights instruments might make for simplicity. It also might make for decent and practical global social movement politics for the movement for restorative justice. This is because while no one thinks these UN rights are perfect, they are the distillation of decades of deliberation in which all nations have participated to build a consensual foundation’.
- 11.
Available at: https://www.decadeonrestoration.org/about-un-decade (last accessed 22 December 2020).
- 12.
The ‘repair’ reports and how they were carried out, including the programmes adopted, are available on Renova Foundation’s website: https://www.fundacaorenova.org/en/ (last accessed 23 January 2022).
- 13.
See http://www.vale.com/brasil/EN/aboutvale/reports/atualizacoes_brumadinho/Pages/default.aspx (last accessed 22 January 2022).
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Braga Da Silva, C.F. (2022). Comparing Institutional Responses to the Mining Tailings Dams Collapses in Mariana and Brumadinho (Brazil) from an Environmental Restorative Justice Perspective. In: Pali, B., Forsyth, M., Tepper, F. (eds) The Palgrave Handbook of Environmental Restorative Justice. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-04223-2_24
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