Grassroots activist group Foil Vedanta recently facilitated a demonstration outside the UK Supreme Court, during the case of Dominic Liswaniso Lungowe and others v Vedanta Resources PLC and Konkola Copper Mines. 

Campaigners provided information to the public outside the courts throughout the hearing in solidarity with Zambian and the estimated 38,274 others directly affected by the poisoning of the 990 mile long Kafue River.

The hearing came after a 13-year struggle to decide whether the case as a legal right to be heard in the UK. 

Copper colonialism 

Konkola Copper Mines, or KCM, are the largest copper producers in Zambia, with Vedanta Resources holding a controlling 79.4 percent share.

Prior to the construction of KCM’s smelter in Chingola on the Copperbelt, residents of 1st street, which runs directly parallel to the smelter, report being assured that this was a “modern” construction and the waste would have little effect.

Foil Vedanta’s extensive Copper Colonialism report prompted an audit which found levels of arsenic, cobalt, copper and lead all well above international limits. 

The effect of the pollution are numerous: residents are suffering from ill-health, tin roofs are eroding at alarming rates, while farming and fishing yields are dwindling alongside the disappearance of hippos at the famous Hippo Pool. 

This hearing will not determine how the pollution should be addressed or whether there is to be compensation for the claimants. Given the barriers to justice within the Zambian legal system, the UK is the ‘natural forum’ to hear the case.

Barriers to justice

Vedanta Resources PLC was delisted from the London Stock Exchange amidst accusations of human rights abuses in October of last year, but the UK-domicied company is still headquartered in London. 

Vedanta denies a ‘duty of care’ to those the operations of its foreign subsidiary KCM. This looks to be a landmark case in the future of UK-domiciled multinationals and their level of legal responsibility regarding foreign subsidiaries.

Opponents argue that taking the case to the UK is damaging and patronising to the Zambian court system. We must acknowledge that many of the barriers to justice within Zambia are a symptom of historical systematic exploitation.

Evidence of prior knowledge of potential damages and the mutually beneficial relationship between mining companies and the Crown are in disclosed in part in documents from the 1930’s held at the National Archives:

“In the event of any such legal proceedings being taken or threatened against the Mining Company it will forthwith make every practicable endeavour to eliminate the cause of the damage complained of and in the event of it being decided after consultation between the Crown and the Mining Company to defend the legal proceedings the Mining Company will render every assistance in its power to the Crown in the defence and generally will act under the direction of the Crown in the conduct of the proceedings.”

Neo-colonial extractive industries continue a legacy. In March 2014, Foil Vedanta released a clip of executive chairman Anil Agarwal bragging about Vedanta’s deception of Zambian government and great profits from KCM. The video garnered thousands of views and reached headlines in Zambia and Liberia. 

Duty of care

Judges Lady Justice Black, Lord Justice Briggs, Lady Justice Hale, Lord Justice Hodge, and Lord Justice Wilson heard the appeal at the Supreme Court and will hand down a judgement in the forthcoming months. 

The claimants were represented Richard Hermer QC, instructed by Leigh Day, who previously acted on behalf of the Bodo community of Nigeria in the pollution case against Shell.

Hermer argued that lack of funding to support a fairly represented case presented a major barrier to justice within Zambia. Further than that, one of the twelve claimants who won the right to compensation in the Zambia courts has yet to be informed.

Hermer noted that while relationships between parent companies and subsidiaries will differ, Vedanta’s own documents state: “[we] measure our sustainability framework at an operational level”.

Gibson, representing appellant Vedanta, continued to argue that there is “no conceivable basis on which the law can ascribe responsibility” stating that Vedanta lacks the necessary proximity and level of control. 

Recent precedents 

In 2011 in the case of Nyasulu v Konkola Copper Mines Plc, Zambian High Court Justice Musonda not only sided with claimants, for damage to health and livelihood, but drew attention to the that fact KCM “had been shielded from criminal prosecution by political connections and financial influence, which put them beyond the pale of criminal justice.” 

Despite this, when the case moved to the Zambian Supereme Court not one person was able to actually claim compensation, due to a lack of medical records. 

In October 2017 at the UK Court of Appeal, Vedanta Resources’ lawyer Charles Gibson QC of Henderson Chambers – who has represented multinationals such as BP and Unilever, argued that this is not a social justice issue to be paraded, but that the focus should be legislation. Gibson claimed that Vedanta resources simply did not have a ‘duty of care’.

The name of the court in which Gibson argued seemed to be lost only on him as the three judges took the side of the claimants, supporting the decision of Justice Musonda and upholding the verdict that had come from the UK’s High Court in April 2016.

A swell in media attention around the anthropocene and climate tipping points seem to have given UK audiences a new-found yet crucial sense environmental urgency. Cases such as this demonstrate that for many this urgency is a daily reality.

Extractive industries

Climate justice is racial justice and multinationals such as Vedanta are a neo-colonial Hydra.

As expressed by Aboriginal activists group, Queensland, in the 1970s: “If you have come here to help me, you are wasting your time. But if you have come because your liberation is bound up with mine, then let us work together.” This is often credited to Lilla Watson, Aboriginal elder and activist, but she attributes it to a collective process.

Extractive industries must transform if we are to have a future and we must collectively address this reality taking lead from those directly persecuted and resisting in the presentmoment.

Dominic Liswaniso Lungowe and the other 1,825 claimants demands are as follows:

• Stop polluting the rivers immediately. Close down the plant until pollution control measures are replaced andupgraded.
• Provide clean water to the villages immediately, by tankers orpipes.
• De-silt the Mushishima stream and Kafue River and remove contaminated waste.
• Remediate the entire polluted area to make it safe to live, farm and fish thereagain.
• Compensate the affected people for loss of health and livelihood. All medical costs should be paid by KCM/Vedanta infuture.

 

This Author

Laurèl Jayde is a member of Foil Vedanta, a grassroots organisation focused primarily on mining giant Vedanta Resources and working in solidarity and collaboration with struggles against corporate take-over, resource racism and neo-colonialism, as part of an ever widening global movement.

Image: Foil Vedanta.