The case is being brought on behalf of more than 200,000 victims of a major flood resulting from the collapse of the Fundão tailings dam at the Germano iron ore mine near Mariana, Minas Gerais, Brazil, in November 2015.
The collapse released 44 million cubic metres of contaminated water into the Doce River, destroyed villages downstream of the dam and killed 19 people.
Three judges in the Court of Appeal have now ruled that the case should proceed through the English courts, saying that there was a realistic prospect that a trial in England would yield a “real and legitimate advantage" for the victims.
The lawsuit seeks to hold the BHP group accountable for its role in the collapse of the Mariana dam through litigation in England, where the business was based at the time of the disaster. Its subsidiary BHP Brazil, and a Brazilian mining firm, Vale, own Samarco Mineração, the joint venture company responsible for managing the dam.
During a four-day hearing in April 2022 BHP had argued that the victims of the disaster would be able to get full redress through the small claims courts in Brazil, but the judges dismissed BHP’s attempts to block the case.
In a 107-page decision signed by all three judges the court said: "Our conclusion is that the remedies available in Brazil are not so obviously adequate that it can be said to be pointless and wasteful to pursue proceedings in [England]".
"The vast majority of claimants who have recovered damages have only received very modest sums in respect of moral damages for interruption to their water supply."
BHP said it would consider an appeal to the UK Supreme Court. A spokesman for the company said: "We will continue to defend the action, which we believe remains unnecessary as it duplicates matters already covered by the existing and ongoing work of the Renova Foundation under the supervision of the Brazilian courts and legal proceedings in Brazil,"
The Renova Foundation, financed by BHP and Vale, was set up in 2016 to repair and compensate for the damages caused by the breach of the Fundão dam.
Vale also owned the Córrego do Feijão tailings dam at the Brumadinho iron ore mine at Minas Gerais which collapsed in January 2019, killing 270 people.