A major case on the environmental and human rights of villagers in Zambia was heard in the English courts over two days this week. The appeal concerns the question of where villagers, suing over the pollution of their water via mining action, may bring their dispute. They want the case heard in the UK while Vedanta, the parent company they are targeting, says the “natural forum” for the matter would be Zambia. If the English Supreme Court gives the go-ahead for the case to be heard in the UK, it will have a major impact on many other environmental cases and be a significant step in the development of environmental law, making it easier to hold international parent companies responsible for the actions of their subsidiaries.

FOR almost 2000 villagers in Zambia’s Chingola region, this was a crucial week. A two-day hearing in the English courts could see them finally able to act against the mining outfit they claim has, since 2005, polluted their water and damaged their health, their lands and any prospect of earning a living.

The 1826 people – Dominic Liswaniso Lungowe and others – from the Copperbelt Province, are acting against Vedanta Resources Plc and Konkola Copper Mines Plc (KCM). They launched a case against both Vedanta and KCM in 2015, claiming personal injury, damage to property and loss of income, amenity and enjoyment of land, due to pollution and environmental damage allegedly caused by discharges from the Nchanga copper mine over more than a decade.

It’s a hugely significant case, not just for the villagers concerned, but also because of the wider environmental law implications and the issues it raises about jurisdiction: who should be sued and the jurisdiction where the case may be heard.

In May 2016 the English high court decided that the case could go ahead against Vedanta in the UK. But Vedanta and KCM appealed: their challenge was dismissed by the court of appeal in October 2017 with a decision that gave the villagers the go-ahead to bring their claim in the UK. The two companies again asked to appeal, and that challenge was heard at the Supreme Court over two days earlier this week.

During this week’s hearing, Vedanta submitted that the case should be heard in Zambia, and not in London as the villagers argued. What complicates matters is that Vedanta is listed in India. The company was originally also listed in London, but delisted last year although it maintains a “legal base” in the UK.

While Vedanta says Zambia is the “natural forum” for the matter to be heard, the villagers say they have a right to sue Vedanta in the English courts. Leigh Day, the law firm acting for the villagers, says that the English courts would be “the only route for (them) to achieve justice”.

In an explanatory post just before this week’s hearing, Leigh Day said at issue was the question of the responsibilities of a parent company in respect of its subsidiaries, and whether a parent company can be held responsible for the harm caused by the operations of its subsidiaries.

The villagers want to claim from Vedanta and KCM, a subsidiary of Vedanta, because their water sources and farming land have been contaminated, allegedly by the mining operations of KCM, “as subsidiary of Vedanta”. The people say they have experienced continual pollution since the mining began, and that they have become sick and their crops have failed.

They argued for their claims to be heard in the English courts “because UK-based Vedanta should bear equal legal responsibility, given its control over its mining subsidiary KCM and alleged knowledge of the pollution. They also argue that they are unlikely to be able to achieve justice in the Zambian courts.”

According to Leigh Day’s Oliver Holland, the villagers “continue to suffer the effects of the pollution both on their health and the livelihoods.” He added, “It is disappointing the Vedanta refuse to accept the judgments of the High Court and Court of Appeal and continue to fight against our clients’ case causing a delay of over three years to the progress of these claims.”

While the appeal was argued, a solidarity vigil was held outside the court to support the people seen by legal and environmental activists as “victims of ongoing pollution who have been fighting legal battles for justice in Zambia and now the UK” for many years. Their slogan was “Make Pollution Political”.

According to these activists the case could set a precedent in UK law since, “if a duty of care is found to be owed by Vedanta (to the villagers), this would be the first reported case in which a parent company would have been held to owe a duty of care to a person affected by the operations of a subsidiary who is not an employee of the subsidiary.”

British Green Party MP, Caroline Lucas, commented: “When British corporations like Vedanta cause toxic pollution overseas, it’s absolutely right that they pay for the damage. I stand in solidarity with all those whose drinking water has been poisoned and livelihoods damaged by Vedanta’s irresponsible pursuit of profit, and all those campaigning for justice.”

Among those whose input was heard by the Supreme Court was the International Commission of Jurists (ICJ) and Core, a coalition of organisations aiming to “advance the protection of human rights and the environment”. The two organisations focused on, among other issues, what they identified as a trend in international law towards parent companies having to accept responsibility for the actions of subsidiaries.

Lawyers for Vedanta told the Supreme Court that another UK firm already has 1000 further claimants waiting for the result of the appeal and that allowing the case to be heard in the UK was “inefficient”.

Five judges heard argument in this appeal, critically important for the development of environmental law. They are Lady Justice Hale, Lady Justice Black, Lord Justice Wilson, Lord Justice Briggs and Lord Justice Hodge. Their decision has been reserved to a date yet to be announced.

  • Newsletter of the Judicial Institute for Africa (Jifa), 17 January 2019