It’s a first! The ruling could set a precedent and reverse the balance of power between local populations who have to suffer from pollution generated by African subsidiaries of mining companies headquartered in England. Chancia Plaine, a jurist specialized in environmental law at Huglo Lepage Avocats, recalls here the grounds on which the British Supreme Court recognized its jurisdiction in the Lungowe v. case. Vedanta in terms of duty of care. She agreed with the 1,800 villagers living near the vast Nchanga copper mine. Without departing from the respect due to the independence and competence of the Zambian judiciary.
In a recent judgement delivered on April 10th, 2019 (Vedanta Resources PLC and another v. Lungowe and others, UKSC 20),the United Kingdom Supreme Court recognized its jurisdiction in the case of Lungowe v. Vedantaaffecting populations in villages in Zambia.
This case has been tried twice, in 2016 and 2017, in the British courts. It follows environmental damage of mining pollution caused by the Zambian subsidiary Konkola Copper Mines Plc (KCM) owned by the British parent company Vedanta Resources Plc.
In several countries, such as France, the legislator has adopted regulations on the duty of due diligence, in line with the global trend to make companies, specifically any parent company (multinational), responsible for human rights and environmental violations committed by its foreign subsidiary.
In the present case, in 2015, the Zambian claimants brought a legal action against the English parent company and its Zambian subsidiary, claiming physical and material damage due to environmental pollution caused by the discharges from the Nchanga copper mine.
It is worth recalling that the case is ongoing. It is now time for the court to identify the forum in which the case can be properly judged in the interests of the parties and to rule on access to British justice for the Zambian applicants.
On jurisdictional competence
Is England the appropriate place to bring a complaint against the parent company, Vedanta, for failing to exercise due diligence with regard to the actions of its Zambian subsidiary, Konkola Copper Mines (KCM)? The British judge replied in the affirmative, considering that:
“That is a fair description of the judge’s reasoning in the present case. Having found that, looking at the matter as between the claimants and KCM, all the connecting factors pointed towards Zambia, the judge concluded that, factoring in the closely related claim against Vedanta, which he found as a matter of fact that the claimants were likely to pursue in England in any event, the risk of irreconcilable judgements arising from separate proceedingsin different jurisdictions against each defendant was decisive in identifying England as the proper place” (§ 71, judgement of 10 April 2019).
“[…] But it does lead to this consequence, namely that the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgements is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants. […]”(§. 75).
On access to justice
The judge considered that the right to substantial justice should be understood as the possibility of access to justice for victims, and not as a question of the independence or competence of the Zambian legal system. Moreover, this access to justice cannot be available in Zambia due to several factors: the financial cost of the proceedings, the absence of a legal team and experienced experts, which would make it possible to pursue the action against the subsidiary KMC effectively. The judge therefore decided that:
“The judge acknowledged that in the large amount of evidence and lengthy argument presented on this issue there was material going both ways, giving rise to factual issues some of which he had to resolve, but others of which he could not resolve without a full trial. Nonetheless he concluded not merely that there was a real risk but a probability that the claimants would not obtain access to justice so that, in his view, and notwithstanding the need for caution and cogent evidence, this reason for preferring the English to the Zambian jurisdiction was established by a substantial margin beyond the real risk which the law requires”(§. 89).
“Finally, he acknowledged that there was some evidence of group environmental litigation of a similar kind being conducted before the Zambian courts, but he considered, upon the basis of detailed evidence about those cases that they supported, rather than detracted from, a view that the Zambian legal profession lacked the resources and experience with which to conduct such litigation successfully”(§. 91).
These various questions on jurisdiction and access to justice having been definitively resolved by the British judge, the Lungowe v. Vedanta, which involves the application of the duty of care of the British company Vendetta towards its Zambian subsidiary KMC, can now proceed on the merits before the British courts.
By Chancia PLAINE,
jurist specialized in environmental law
Huglo Lepage Avocats
@ChanciaPlaine (Twitter) – @DroitEnvAfrique (Twitter)
Note dated 21 March 2019 – The case of Lungowe v. Vedanta in Zambia: towards a possible application of duty of care and extraterritorial civil liability by a British court?