On the evening of June 1, David Russell, senior solicitor at the British law firm Towells, received an unexpected phone call. Rio Tinto, the world's largest mining corporation, wanted to surrender.
Russell was representing former Rio Tinto workers, their families and residents of the north-east English port town of Hull. On June 5, Towells had planned to report on a major investigation into Rio Tinto's operation at Capper Pass, once the world's largest tin smelters, on the north bank of the Humber River at North Ferriby near Hull.
The smelter, which Rio Tinto acquired in 1967, once proudly produced up to 15% of the capitalist world's tin — between 100,000 and 120,000 tonnes per year. Less pride was taken in the by-products discharged into the Humber River and the East Yorkshire air, including radioactive, carcinogenic and toxic substances, including arsenic. The Capper Pass tin smelter was closed in 1991, "decommissioned" until 1995 and then sold.
Rio moved on with the profits it had made from the smelter, but the workers, their families and the residents of Hull are still cursed by the legacy of Capper Pass — leukaemia, brain tumours and other cancers. Some of the victims — those who were still alive, for many had died prematurely — went to their union. Russell, as senior regional solicitor to the Transport and General Workers Union, took up their case.
The company denied that it had any legal responsibility because Capper Pass had been sold, its name had changed and it no longer had anything to do with Rio Tinto.
When this "defence" could no longer be maintained, Rio Tinto accepted responsibility for Capper Pass, but insisted that there had never been anything wrong with the health and safety aspects of its operation. Rio Tinto stated repeatedly to the lawyers, concerned parliamentarians and even its shareholders in Britain and Australia that the company had complied with all statutory regulations.
Rio Tinto was not telling the truth. In 1971, lead and arsenic was found in bullocks that grazed near Capper Pass; livestock and crops had to be condemned on several farms. The local medical officer wrote that, "the situation ... may cause public alarm should the facts become generally known". Fortunately for Rio Tinto, they didn't.
In 1985, Capper Pass management insisted that it would continue to discharge considerable quantities of arsenic into the Humber River as reducing the waste would mean cutting production — and profits. According to a confidential 1986 report, each tonne of arsenic used in the smelting process — much of it apparently ending up in the river — contributed £55,000 of "added value".
The Ministry of Agriculture, Fisheries and Food found up to six times higher arsenic levels in Humber River fish than anywhere else in Britain's estuaries. The ministry's opinion was that this was the result of discharges from Capper Pass.
By 1988, matters could no longer be hidden. A major investigation into Capper Pass was launched by a multi-disciplinary team from the British Health and Safety Executive. The HSE told Rio Tinto that it had contravened, and was continuing to contravene, multiple sections of the Health and Safety at Work Act, the Factories Act and other workplace laws.
High levels of arsenic and cadmium were found in the urine and blood of Capper Pass employees. A 43-page report condemning the company was issued in 1990. Coincidentally, a German customer using Capper Pass products found they contained radio-active substances.
The price of tin fell in 1991 and Rio Tinto had a good reason to close Capper Pass. For the next nine years, Rio Tinto "forgot" about these violation and the reports that exposed them. Time and again, management told all and sundry that Rio Tinto had always complied with environmental and health and safety regulations at Capper Pass.
Threat of litigation
Russell, on behalf of his clients in Hull, repeatedly wrote to Rio Tinto chairperson Robert Wilson, but the company long failed to answer. On Christmas eve 1999, Rio Tinto's London lawyers, Linklaters, contacted Russell to say, "In the face of the continuing threat of litigation", they had advised Rio Tinto "not to reply" other than to reiterate that all statements made by the company regarding Capper Pass were "in good faith".
However, in correspondence with MPs, including Kevin McNamara, who represents voters in Hull, Rio Tinto excused its earlier false statements by asserting that there was "no-one now at Rio Tinto who was previously employed at the Capper Pass Smelting Complex ... who has first hand knowledge of it operations".
What had happened to Wilson's memory? He had been a member of the Rio Tinto board since 1987 and took part in the decision to close the Capper Pass smelter. Yet, he could not remember the health and safety violations and the hoopla about the arsenic in the Humber.
It seems the planned publication on June 5 of the detailed investigative report — which examined about 400 cases of ill effects among former Capper Pass workers and Hull residents — caused a sudden change in Rio Tinto's position.
Rio Tinto now told Russell that it would "not contest" charges of negligence at Capper Pass, admitted it owed the claimants a "duty of care" and would not contest his clients' claims even if the were "statute barred" (meaning that they had taken place too long ago). Rio Tinto said it would pay compensation to each client, with each case's merits to be decided by a "mutually agreed procedure" determined by a tribunal.
Russell said that these were enormous, and quite unexpected, concessions. He and his clients agreed in principle to accept them. In return, the damning investigative report would not be published but would be an essential part of the cases against Rio Tinto to be presented to the tribunal.
There were still problems. Rio Tinto at first refused to pay any of the claimants legal costs. This would have made a mockery of the process as expensive expert legal and medical advice was decisive for the claimants' ability to prove their cases. Russell dug his heels in and insisted this would veto the deal. Rio Tinto's lawyers modified their position — costs will now be "discussed" during the review process.
Will the proceedings of the proposed tribunal be made public? Will the details of the suffering of the workers, their families and neighbours become known? It seems that Rio Tinto hopes it can keep publicity to a minimum.
Writing to Hull MP McNamara, Andrew Vickerman, head of Rio Tinto's "external affairs", said that the company considered a proposed parliamentary public inquiry was a bad idea. "[Such an inquiry] would probably not be in the best interests of those who feel they have claims ... Such a lengthy process would almost certainly necessitate a postponement ... of the tribunal."
The clear implication was that the company would delay the settlement of victims' claims if such an inquiry went ahead. Many claimants may be dead before compensation would be agreed to.
In other correspondence, Vickerman said that any publicity given the proposed agreement would be "wrong". The almost total silence in the British media concerning the Capper Pass case — a conflict that could see damages against Rio Tinto reaching many tens of millions of pounds — is baffling. None of my journalist and media friends in London (and elsewhere) have heard about it, even a month after this apparent surrender by Rio Tinto.
But even with very limited local reporting, more than 60 new claimants have come forward with claims relating to at least 15 deaths, multiple cases of lung cancer, respiratory disease, leukaemia, epilepsy and brain tumours.
Rio Tinto seems to think these new claims are the result of irresponsible publicity. It would be interesting to know what the company believes is responsible publicity.
BY MAX WATTS