Biodiversity liability risk
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The Supreme Court found that Nevsun had effective and operational control of BMSC because it controlled the majority of BMSC’s board with Nevsun’s CEO as chairperson. Accordingly, Nevsun was held responsible for BMSC’s breach of customary international law, considered part of Canadian law.
Further, the plaintiffs want Casino to regularly update the plan taking into account best practices in the beef sector and available data on the exposure of suppliers throughout the supply chain, and also specifying the subsidiaries, establishments and suppliers concerned and their exposure to these risks. The intention is to compel Casino to take appropriate actions to prevent serious harms and exclude any supply of beef from farms that have contributed to deforestation or conversion of ecosystems, resorted to forced labour or degrading working conditions, or other violations of the rights of indigenous populations. The plaintiffs say a failure to put in such a remedied vigilance plan should attract a fine of EUR 50,000 per day of delay, as per the Vigilance Law penalty. In the meantime, they have asked the Court to impose a moratorium on Casino’s distribution of beef from the Amazon and Cerrado and over EUR 3.5m in damages for loss of a chance and “moral prejudice” to indigenous organisations and NGOs.
mHREDD litigation for biodiversity harms
Due diligence legislation will bring biodiversity loss to bear on corporations’ bottom lines through fines, civil liability and other sanctions. The first cases are already being brought under more advanced regimes. Most notably in France, under its established mandatory due diligence requirements, a number of cases have been brought linking France-based corporate actors to extraterritorial human rights abuses and environmental harms. The Casino case in particular gives an indication of the type of biodiversity-related supply chain due diligence cases to come in European jurisdictions which have implemented mHREDD legislation.
The Casino case
Biodiversity-specific litigation
On 2 March 2021, an international coalition of eleven NGOs brought a claim under the French Vigilance Law against the French supermarket chain Casino. The plaintiffs allege environmental and human rights harms stemming from the company’s involvement in cattle industry-caused deforestation in Brazil and Colombia. The plaintiffs argue that Casino’s Brazilian subsidiary Grupo Pão de Açúcar is supplied with cattle from deforested areas or from farms established with cattle on indigenous territories. The pleadings trace specific human rights abuses and deforestation to a number of cattle farms in the Amazon and Cerrado, then to local abattoirs, and from there to Casino’s subsidiaries. The plaintiffs allege that the yearly vigilance plans released by Casino since 2018 lack substance and/or applicability, are vague, superficial and not proportionate to the harms committed to the Amazon and its Indigenous Peoples. 268 They point to the fact that the plans published by Casino were almost identical from 2017 to 2019 and so did not reflect the worsening situation in the Amazon as regards the abuse of the human rights of Indigenous Peoples, deforestation, forest fires and loss of biodiversity. 269 The plaintiffs demand that the Court order Casino to establish, implement and publish a detailed compliant vigilance plan which at a minimum analyses the risks of damage from supply of beef to Casino from its subsidiaries in South America, especially in Brazil and Colombia.
Increasingly it will be understood and justiciable that there is a legal duty to actively protect biodiversity – to act in advance to observe and enhance biodiversity protections, rather than narrowly to avoid harm to specific species or permit specific pollutants to enter the environment. There are already cases of biodiversity- specific litigation aimed at protection of entire ecosystems. These cases are different from previous environmental cases in that they strategically focus on a particular species that either provides an essential ecosystem service (pollination or water/air purification) or preserves the functioning of the entire ecosystem (such as keystone species do via trophic cascades). Harmonised biodiversity protections under the current generation of biodiversity laws will give litigants scope to bring actions for a freestanding failure to protect biodiversity. These laws may place biodiversity litigation on a similar trajectory to climate cases, where first nation states and now corporates have been held to specific Paris Agreement targets for decarbonisation. For example, in 2020 the Dutch Supreme Court found that the Netherlands had a legal obligation to reduce its GHG emissions by at least 25% by the end of 2020 (compared to 1990 levels). Building on that precedent, in 2021 a Dutch court ruled that the Royal Dutch Shell had to reduce its CO2 emissions by 45% by 2030. In Germany, BMW, Daimler and Volkswagen have been sued by activist claimants who allege that the firms’ emission-reductions pathways are insufficient. In the future, states and corporates may be held to their biodiversity targets, such as the target to protect 30% of land and 30% of sea by 2030 (the so-called “30x30 target”) which is already part of the EU’s Biodiversity Strategy and expected to be a key outcome from CBD COP15 in Kunming.
268 Climate Case Chart, Climate Change Litigation Databases, Sabin Centre for Climate Change Law, 2022. 269 Climate Case Chart, Climate Change Litigation Databases, Sabin Centre for Climate Change Law, 2022.
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