Legal and Policy Debrief: 01 May – 14 May

Updates:

BHP has been refused permission to appeal High Court’s liability judgement in the Mariana dam disaster case. 

The decision by the Court of Appeal of England and Wales paves the way for a trial to decide over damages to be paid to victims of the collapse of the Fundão tailings dam in in 2015 in Mariana, Brazil. The disaster killed 19 and unleashed over 40 million cubic metres of toxic waste into the Rio Doce, causing what is considered the most damaging environmental catastrophe in Brazil.  

The company had applied for permission to appeal on the grounds that it contested the High Court’s findings that BHP was a polluter, that it had knowledge of the of the risks associated with the dam before the collapse and that the claimants hadn’t brought their claims in time. The Court of Appeal found these grounds to have no real prospect of success and denied the appeal to be heard. This will move the trial to determine the causation, loss and damage which will commence in 2027.     

Yindjibarndi people awarded compensation in Australia after mines built on their land without their permission. 

The Federal Court in Australia has awarded AUD 150.1 million (approx. US$108.6 million) to the Yindjibarndi Ngurra Aboriginal Corporation, in the North of the Western Australia state after an almost two decades-long legal procedure. Four large open-pit iron ore mines had been built with the approval of the state’s government by the Fortescue mining company on the traditional owners’ lands without their agreement. 

The judge found that significant damage had been done to hundreds of cultural sites while others had been destroyed completely and that the Yindjibarndi had suffered both tangible and intangible losses. While the damages, Fortescue is ordered to pay are the largest native title payout ever awarded in Australia, community leaders were disappointed with what for them amounted to “peanuts” for the company and fell short of the AUD 1.8 billion in damages they had sought. Commentators have questioned the payout formula, saying the amount is too little and urged the Yindjibarndi to appeal the decision. 

Notes/Further Reading:

The Danish Institute for Human Rights has published extensive guidance for effective transposition and implementation of the CSDDD for policymakers, companies and civil society actors. In it, the Institute underlines the need to accurately capture different concepts in the transposition, for transposition and implementation to be closely guided by the UNGPs, to clarify and maintain a risk-based approach and prioritisation as well as the centrality of stakeholder engagement, monitoring and complaints mechanisms designed according to the UNGPs, among others. 

A report published by researchers with the Migrant Justice Institute has found systematic exploitation of migrant workers in Australia, revealing a system of underpayment, insecure employment structures and noncompliant employer practices. The survey among 10,000 migrant workers found that two thirds of migrant workers were paid less than they were owed under Australian law and that employers systematically use insecure employment structures to exploit workers, with the vast majority working in precarious contracting arrangements. 

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Deforestation Legislation

Updates:

The EU Commission has concluded its Simplification Review of the EUDR, updating and publishing a variety of instruments.

The Commission provided a simplification report about the measures introduced, updated its guidance document and the FAQs - a central tool to inform implementation - and published a draft Delegated Act to adjust the product scope of the Regulation. In addition, there will be a forthcoming implementing act on the Information System. 

While the text of the EUDR will not be reopened, important changes have been made to the scope of products included in the Regulation. Crucially, the draft Delegated Act foresees the exclusion of raw hides and leather as products in scope, a decision that has drawn criticism from various actors. This exclusion comes in the wake of the Commission’s recognition that cattle farming is the single largest driver of deforestation globally, a conclusion supported by the numerous investigations and studies directly linking the leather industry to deforestation. The Commission has also added other products such as soluble coffee and palm oil-based goods. The draft Delegated Act is now open for consultation until the beginning of June. 

The FAQs further clarified that downstream traders and operators do not need to conduct due diligence but instead collect information from suppliers (under Section 3 of the FAQs). Previously unclear aspects have also been addressed, for instance, that the EUDR also applies in the context of online sales and other distance sales (FAQ 3.17 and 3.18). 

The timeline of the Regulation remains unchanged and will be applicable from 30 December 2026 for large and medium operators and from 30 June 2027 for micro and small operators.  

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Forced Labour Legislation 

Updates:

Brazilian prosecutors have filed lawsuits against five companies over labour abuses, including “slavery-like conditions”. 

The lawsuits include public civil actions against JBS and Cargill as part of a wider nationwide investigation termed “reação em cadeia” (chain reaction) to uncover modern slavery in the country’s supply chains. The Prosecutor’s office has linked supply chains of 50 large companies to working conditions that are analogous to slavery. 

In the case against JBS, prosecutors are asking ⁠the court to order JBS to pay BRL 119 million (US$23.78 million) in damages of Pará, linked to the rescue of 53 workers from “slavery-like” conditions from JBS suppliers between 2014 and 2025. At the same time, prosecutors filed a lawsuit against Cargill in the state of Rondônia over grave human rights violations in its soy supply chain in the state. Seven other organisations and two municipalities have signed agreements to adjust their conduct after slave-like labour had been identified in their supply chains. 

Commentators have applauded the continuous process of the US trade Section 301 investigations. 

As hearings with different actors have been conducted at the end of April, civil society actors argue that while it can be seen as a move purely to reimpose tariffs, it represents an important step towards strengthening legislative frameworks. The head of the forced labour programme at Global Rights Compliance, Samir Goswami, argued that if the impact is stopping products made with forced labour from entering the country, it would be a positive step.