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Court of Appeal Judgment Will Make Miners Listen

It may not have registered with the average man in the street but the British High Court’s ruling last week on Friday 13th October 2017, rang bells throughout Africa and farther afield too.

The headline in the Lusaka Times was ‘Zambian villagers win right to sue Vedanta in English Courts’. What those villagers (1826 of them) were fighting for was the right to have the case that their livelihoods had been destroyed by pollution heard – not in Lusaka, but in London.

Vedanta says, of course, that it will challenge the ruling and take its case to the Supreme Court. They have little choice, because the judgment, and precedent it sets, will require every boardroom in the mining industry to consider back of fag-packet calculations as to their liabilities.

At the heart of the matter is the issue of jurisdiction. Mining companies have long resisted claims from locals in the countries in which they mine, knowing that the wheels of African justice grind slow. Those in African countries who complain of the effects of pollution in their daily lives are often said to feel ambivalent, knowing that the company who might be poisoning them is also the same entity giving much needed jobs. Lack of experience and knowledge of prevailing higher standards elsewhere holds the locals back from excessive complaints. A sometimes unhealthy relationship between leaders in such countries and mining companies (who are sometimes more powerful than sovereign states) does not help either.

From my experience of visiting Zambia frequently, the communities describe the mining houses domiciled outside African countries as investors. The investors, until now, have generally been shielded from over-exposure to local pressure by leaders ever so grateful to have their presence and experience in their country, vying with each other to have the friendliest mining code, so as not to put off activity. Objectors are called resource nationalists, a term that betrays a prejudice in favour of the miner over the country in which activity is taking place. When things get too hot, such as those who fought back in Bougainville in the 1980s against the pollution of their rivers and the end of fishing, they are called rebels. Resource nationalists and rebels don’t usually get far against the might of multi-national miners. But from now on villagers and ordinary people, subject to provably attributable health and pollution claims, will be heard.

The ruling breaks the barrier that has been welling for some time. Mining companies hitherto have been able to come to London at will to launch IPOs and list, receiving the benefit of capital raising without a commensurate attention to abide by the same standards of practice in Africa that we would expect of a similar mining operation were it to be carried out in the UK. For those who think that such aspirations are Utopian, I ask you to observe the performance of the new Drakelands tungsten mine in Devon where mining is taking place on the doorstep of the City of Plymouth and is so carefully managed environmentally that the local council is ready to raise statues to the owners.

We know that mining standards vary across the world according to the strength or otherwise of the local regime. That is what will now change according to the London ruling if it remains upheld. While some multi-nationals, and seemingly Vedanta is one of them, regard the threat of cases as a threat to their existence, good mining companies listed in London will see this as an opportunity to create clearer, bluer water, between themselves and other countries and companies operating in Africa with even less care – Chinese for example. I also tend to think that health and safety and environmental sustainability can actually also be equated with efficiency as well as pride in the organization in question.

I write this article having just said goodbye to a teacher from a school in Mufulira who has been over to the UK on a teacher exchange. In his school yard in sight of the smelter that has lowered over the town for 83 years, the ground in the school yard is a combination of what looks like clinker, and smells of petroleum; and where the vain attempts to grow groundnuts, bananas or avocados are stymied. Until recently, the school received almost daily doses of sulphurous gases emitted from the smelter operation, which have now lessened greatly following advocacy with, and investment by, Glencore.  Having acquired the complex in 2000, it is hardly possible to suggest, therefore, that all the ills of pollution may be laid at Glencore’s door. The preceding owners, Roan Consolidated and then Zambian Consolidated Copper Mines after Independence in 1964, had done almost nothing to alleviate emissions. In this context Glencore’s ownership and listing, and its need to be conscious of its environmental performance away from its listing domicile in London, must be seen as a positive.

But, let us be clear, whether many cases will be brought to London or not, and whether the cases will be upheld or not, this judgment will change attitudes. Henceforth mining houses listed in London, and working in a developing country, will aspire to remove the worst effects of by-product pollution caused by their production processes, so as not to allow room for cases to be brought against them here.

The ire I have seen on Zambian social media is directed at the Zambian Government in sadness that it took the UK courts to rule in their favour, while their own government slept. One way or another the outcome of this case changes the landscape for local populations in Africa and other developing countries whose voices have been all too rarely heard or, if heard, dismissed. Airborne pollution from smelting, heavy metals leaching into rivers and out of tailings dams, sulphuric acid trucks parked outside people’s homes on the public highway and many preventable side-effects of mining, will have to be improved.

Either that, or the companies in question will have to seek listings away from London.

Published October 18th 2017 on www.lord-copper.com