Justice Delayed is Justice Denied
Exactly one year ago today an article entitled “A Perfect Day”1 appeared on this website. The text of that feature detailed events which took place on August 31, 2012 at Brazil’s Supreme Court. On that day and in that place, international experts provided evidence on the nature of asbestos; that testimony was provided to assist the Court to act on a highly controversial legal challenge regarding the unconstitutionality of the “controlled use of asbestos” in the world’s 3rd largest asbestos-producing country.
One year on, no verdict has been handed down and it remains business as usual for Brazil’s profiteers: the asbestos mining companies, manufacturers, exporters and industry stakeholders.2 As asbestos blood money continues to buy this toxic industry friends and influence, Brazilian workers and non-workers continue to be diagnosed with asbestos-related respiratory diseases and cancers. Based on the most recent available data, in the twelve months since the hearings, 306,000+ tonnes of chrysotile asbestos have been mined, ~138,000 tonnes exported and ~168,000 tonnes consumed in Brazil.
A breakthrough may, however, be on the horizon. On September 2, 2013, it was announced that a new rapporteur, Judge Rosa Maria Weber Candiota da Rosa, had been appointed to oversee litigation before the Supreme Court which challenges the Brazilian law that allows the “controlled use of asbestos”. The former rapporteur, Supreme Court Chief Justice Carlos Ayres Britto, retired in November 2012. To take over his role in this litigation, the Court nominated Luís Carlos Barroso; when he declined due to a possible conflict of interest, Judge Weber was appointed. Judge Weber is a progressive jurist who is familiar with labor issues due to extensive experience in Labor Courts. Sixty-four year old Weber is one of two female Supreme Court Judges;3 she was appointed in 2011 by President Dilma Rousseff.
Speaking on behalf of the Brazilian Association of the Asbestos-Exposed (ABREA), President Eliezer João de Souza applauded the substitution of Barroso by Weber:
The appointment of Judge Rosa Maria Weber Candiota da Rosa is an important development. We had serious concerns about the suitability of Judge Barriso as the rapporteur for ADI 4066/20084 due to his declared support for the ‘controlled use of asbestos’ policy. A controversial document he had signed, which was presented during the 2012 trial proceedings by asbestos industry lawyers, upheld the current status quo.
When ABREA learned of his nomination as rapporteur, we highlighted the potential conflict of interest and journalists reported our criticism in the newspapers. ABREA is closely monitoring the progress at the Supreme Court of all the constitutional challenges to state asbestos bans5 as well as developments regarding ADI 4066. It is this case that will decide if the controlled use of asbestos is constitutional or not. In our role as public watchdog we feel that our organization has played and continues to play a vital role in ending the impunity of the criminal asbestos industry and its lobby in Brazil.
Brazilian asbestos victims have waited patiently to see justice done; many of them have died during the long wait. One can only hope that the appointment of Judge Weber is a favourable omen. Perhaps by September 3, 2014, Brazil will have joined 54 other countries that have banned the mining, use, processing and sale of asbestos. Watch this space!
2 Kazan-Allen L. Impressions of a Judicial Impasse. November 3, 2012.
3 Currently, there are a total of 11 Supreme Court Judges.
4 ADI= Ação Direta de Inconstitucionalidade [Direct Action on Unconstitutionality]. An ADI is a type of action adjudicated by the Supreme Court; ADI 4066/2008 alleges that Brazil’s law (9055/95) which enshrines the “so-called” controlled use of asbestos policy, is unconstitutional.
5 Five Brazilian States – São Paulo, Rio de Janeiro, Rio Grande do Sul, Pernambuco and Mato Grosso – have banned asbestos.
Eternit Brazil in the Dock
News released on August 18, 2013 that Brazil’s Labor Public Ministry has filed a massive civil lawsuit against Eternit, S.A. is reverberating around the globe. The accusations relate to deadly exposures experienced over a fifty year period by workers at the Eternit asbestos-cement factory in Osasco, Sao Paulo. This, the largest lawsuit for punitive damages ever filed by the Ministry, is a remarkable development in a country which continues to mine, sell and export asbestos. If the exposures at this plant result in the R$1 billion penalty (estimated at around US$418m), the prosecutors are asking for, it is likely that other asbestos stakeholders may find themselves similarly indicted.
This lawsuit is the culmination of years of grassroots lobbying by Brazilian asbestos victims, led by the umbrella group ABREA (The Brazilian Association of the Asbestos-Exposed), and its supporters. Since its formation, ABREA has challenged the dictates of the powerful Brazilian asbestos lobby in the courts, in the streets and in the media. The remarkable transformation of the Brazilian debate on asbestos resulted in bans being adopted in the states of São Paulo, Rio de Janeiro, Rio Grande do Sul, Pernambuco and Mato Grosso. And even now, the Supreme Court is considering whether or not there are constitutional grounds for outlawing the country’s asbestos industry.
For more than a decade, I have been acquainted with ABREA and its members. I have witnessed first-hand the nearly impossible task victims face in their battle to have their diseases recognized and compensated. Although this is a civil case, should Eternit lose, the company could be faced with unprecedented penalties. For Brazil’s asbestos victims, this would be both a victory and a vindication.
Let us hope that the 9th Labor Court in São Paulo upholds a citizen's right to the dignity of labor, a right so clearly denied by a company which knowingly and ruthlessly exposed its workforce to a known carcinogen.
Dr. Audrey Finnegan 1963-2013
Today is my birthday. You will forgive me for not disclosing how old I am but, suffice to say, I am considerably older than Dr. Audrey Finnegan was when she died of mesothelioma in March this year. She was just 50 years old. Dr. Finnegan’s death was brought to my notice by a piece published in the British Medical Journal on July 31, 2013.1 She was exposed to a horrendous level of asbestos in 1986 at the Belvidere Hospital in Glasgow. In her own words, she described the on call accommodation for doctors in the Victorian building at this prestigious teaching hospital where asbestos removal was being carried out during renovation work:
It was like a building site. There were thick sheets of plastic hanging from the ceilings which you had to push through to enter the stairwell. Ceiling tiles were absent and stacked against the walls and there were electrical wires and cables protruding from everywhere. It was very dusty and I remember my footprints leaving their imprint on the flooring as I was accompanied to my room on the first floor. I was only there for a month but it was enough.2
All her life, she had wanted to be a doctor and even in the throes of a brutal an incapacitating treatment regime, she communicated her experience in medical terms detailing drugs used, dosages and symptoms. She described the surgical procedures, chemotherapy and radiotherapy treatments she endured, expressing her shock when she first saw her X-ray and the absence of my R (right) lung. Every day I miss having two lungs and can sometimes feel quite compromised by my respiratory reserve. I do not have the same stamina as before but I would rather be here, in some reduced capacity, than not at all. I try not to allow the condition to haunt me or paralyse me with fear as it did in the beginning.
On my birthday, I find myself reflecting on the many birthdays that Dr. Finnegan will miss and the years of love and care that her family have lost. The same is true for so many other people in countries all over the world. Our commitment to end the use of asbestos for all humankind must not waver. There is no excuse that can justify the continued consumption of this cancer-causing killer.
2 Mesothelioma by Dr. Audrey Finnegan. http://www.clydesideactiononasbestos.org.uk/wp-content/uploads/2013/03/Audreys-Story.pdf
Kicking the Asbestos Habit
In company towns the world over, the reluctance to criticise the local employer has been a fact of life. In asbestos towns like Belgium’s Kapelle-op-den Bois, Canada’s Asbestos, Brazil’s Minaçu and Russia’s Asbest, a vow of silence has persisted regarding the human consequences of asbestos exposures. When Belgium asbestos victim Eric Jonckheere made his pilgrimage to Quebec’s asbestos heartland, the local priest refused to meet him.1 Commenting on this atypical behaviour of a man of God, Jonckheere wrote: “Omerta had, I guess, even affected the man in black!”
In recent years, Russian asbestos lobbyists have ratcheted up their efforts to mobilize community support for the asbestos industry. They have millions of reasons to do so; annual sales of Russian asbestos are worth $540 million. It has been estimated that in the town of Asbest, 17% of the residents work for the industry. Articles by municipal dignitaries from Asbest featured in industry propaganda distributed at the May 2013 meeting of the Rotterdam Convention. Texts included were written by:
Each of the articles kept to the party line, highlighting the importance of the asbestos industry, the good life it provides to local people and the longevity and well-being of the town’s population. The arguments of asbestos industry salesmen were clearly being parroted by asbestos industry beneficiaries. There is no question about the complete dominance asbestos vested interests exert on municipal debates and decisions. Reflecting the influence of the industry, in 2002 the Asbest City Council adopted a new flag.
The white lines symbolize asbestos fibers which pass through a ring of fire.
On July 13, 2013, a feature – City in Russia Unable to Kick Asbestos Habit2 – was published in the New York Times which signalled the beginning of the end of the Russian industry’s monopoly of the asbestos debate. For the first time, residents of the town of Asbest spoke out. Former factory employee Boris Balobanov said: “Every normal person is trying to get out of here… People who value their lives leave. But I was born here and have no place else to go.” N.Y. Times Journalist Andrew Kramer reported that the six asbestos workers he interviewed were suffering from a “persistent cough, a symptom of exposure to what residents call ‘the white needles.’” Describing the conditions at the mine, asbestosis sufferer Valentin Zemskov said: “There was so much dust you couldn’t see a man standing next to you.” The asbestos hazard is not confined to miners and factory workers; the town lives under a blanket of pollution according to resident Nina Zubkova who said: “Of course asbestos dust covers our city… Why do you think the city is named Asbest?”
Denying the problem is not a solution. Politicians, business leaders and citizens need to engage in a wide-ranging and open debate about the problem and begin the process of transition to an economy which is not dependent on the commercial exploitation of a substance capable of causing illness and premature death.
1Jonckheere E. A Canadian Pilgrimage. October 19, 2012.
2Kramer A E. City in Russia Unable to Kick Asbestos Habit. July 13, 2013.
Working towards an Asbestos-free Future
The funeral took place today (June 1, 2013) of Belgian Baron Louis de Cartier de Marchienne, one of two defendants condemned last year in a landmark asbestos ruling handed down by the Turin criminal court. On Monday (June 3), the appeal verdict of this case will be announced. Under Italian jurisprudence, the Baron’s death ended proceedings against him and the company he represented; whether civil charges will be pursued by his victims remains to be seen. The eagerly awaited decision will have implications not only for Stephan Schmidheiny, the sole remaining defendant, but also for Eternit companies, past and present, all over the world. In fact, two of the prosecutors in this case, Sara Panelli and Gianfranco Colace, are keynote speakers at a conference in Brazil, a country where Eternit asbestos operations continue, later this month.
On June 3 and 4, Korean and Japanese asbestos victims and campaigners will meet in Pusan, formerly the center of Korean asbestos production; at the same time an asbestos workshop will take place in Plymouth during the annual meeting of the GMB trade union. Within days an announcement is expected by the UK’s Committee on Carcinogenicity regarding the vulnerability of children to asbestos exposure.
A June 14 conference on asbestos in Doncaster will update members of the British legal profession on current developments. The following week, delegates attending an Open Expert Meeting on Safety and Health in Brussels will learn about a highly innovative new project, “Detecting asbestos and taking appropriate action,” designed to help raise asbestos awareness amongst union members, the self-employed and the community. Sessions organized on June 18 and 19 by the European Federation of Building and Woodworkers will also allow time for the book launch of “The Long and Winding Road to an Asbestos Free Workplace” and discussion of a project entitled: “Asbestos Diseases in Europe.”
Despite the asbestos debacle which took place last month at the Rotterdam Convention conference, it is becoming increasingly clear that civil society will not tolerate the loss of more lives to asbestos. The commitment of asbestos victims’ groups, NGOs, trade unions remains wholehearted. An asbestos-free future is possible.
A Deadly Alliance
Reading an article sent to me this morning reminded me of the quote by Irish statesman Edmund Burke: “All that it takes for evil to triumph is for good men to do nothing.”
What is evil? Well, we know it is evil to murder another human being. Surely, whether the murder is fast or slow is irrelevant – murder is murder. On that basis, exposing someone to a substance which can harm and even kill them is evil.
This is what asbestos businessmen have done for over one hundred years. This is what they still want to do.
Next week there will be a meeting of the UN’s Rotterdam Convention. The Convention is a multilateral treaty designed to increase environmental and social justice by protecting populations in developing countries from exposure to deadly pesticides and chemicals.1
This is achieved through the introduction of a right to prior informed consent protocols. In other words, exporting countries must advise importing countries of the toxic nature of designated substances so that informed decisions might be made about whether these substances can be used without causing human poisoning or environmental damage.
Russia, the world’s biggest asbestos producer, has announced it will block action on designating chrysotile asbestos as hazardous at the upcoming Conference of the Parties to the Convention (COP6). In fact, it has become a Party to this Convention for the sole purpose of doing so.2
Zimbabwe, another asbestos producing nation, has adopted the same strategy.3 An article on Sunday (April 28) made the intentions of Zimbabwe crystal clear: the “Government is confident that the campaign (to list chrysotile) will falter as Zimbabwe, which will vote against the move, will for the first time attend the meeting…”
And what plans are there for Brazil’s participation (Brazil being the world’s 3rd biggest asbestos producer)? Well, as before, Brazil will sit it out on the sidelines and let others do its dirty work. Even though five Brazilian states have banned asbestos and the Supreme Court is currently considering the constitutionality of the government’s asbestos policy of “controlled use,” its representatives intend to remain silent.
I will be in Geneva next week to stand witness to the actions of representatives promoting the self-serving instructions of the Russian and Zimbabwe governments. I will be part of a delegation of civil society groups present under the umbrella of ROCA: the Rotterdam Convention Alliance.
The Brazilian policy of sitting it out is intolerable. Brazil, a country which lived under a dictatorship for more than twenty years, knows full well the consequences of collusion. It is appalling that President Dilma Rousseff, a woman who was herself tortured under the dictatorial regime, is willing to allow others to die so that Brazil can profit.
1 Kazan-Allen L. The Rotterdam Convention 2013. April 18, 2013.
3 Dark cloud hovers over asbestos, SMM revival in focus, Decision to determine future of asbestos trading. April 28, 2013.
When is a demonstration not a demonstration?
Today was the day of the first asbestos demonstration outside the Russian Embassy.1 Like many veteran ban asbestos campaigners I had long been familiar with the venue and logistics outside Canada House in Trafalgar Square, the Russian Embassy in Kensington, however, was a new location for me.
In good time, I made my way to the private road on which the Embassy stands at 6/7 Kensington Palace Gardens. Alas, when we began to assemble at this address we were told by two polite security guards that as this was a private road we were not allowed entry.
We were informed that, in any case, the front entrance of the Russian Embassy was around the corner on Bayswater, a wide London thoroughfare. However, when we moved to this locale we were informed by the police officer standing guard that it was not permitted to demonstrate on the pavement directly outside the Embassy. All protests, we were told, had to take place across the street. As this was indeed a very wide street, relocating would have undermined what we were hoping to do: to confront the Russian authorities on their home ground.
Bayswater Entrance to Russian Embassy
As various individuals tried to reason with the constable and calls were made to a police liaison officer with whom the protest had been lodged, there was some milling about and photos were taken. As no one seemed keen to move us on, we just got on with it. Masks of President Putin were distributed and photographs were taken of Putin holding up a banner saying, in English and Russian, “Russia, keep your deadly asbestos in the ground.”
Different groups assembled for more photographs and hazmat suits were put on by members of the Merseyside and Victims Asbestos Victims Group; flimsy dust protection masks were distributed to help visualize the problems of protecting workers from asbestos.
All of this went on for some time and I kept thinking we would be moved on very soon. The police however seemed content to let us to get the shots we wanted – those with the Russian flag in the background. When the level of activity had lessened once again we were asked politely to cross over to the space where the fencing had been erected for our protest. The traffic was stopped so that we could cross the street safely.
It was then that I realized what had taken place. This was a classic example of English compromise. Yes, a demonstration on the pavement outside of the Russian embassy was not permitted but what we had been engaged in was not a demonstration but a photo opportunity. As such, the officials were perfectly happy for us to do what we needed to do.
Once across the street, we were positioned outside the Guyana High Commission on a much narrower stretch of pavement than the one in front of the Russian Embassy. One cannot help wonder how many other protests this narrow section of London pavement had hosted. As the lunchtime traffic began to build up, we vacated that strip of territory which had, for a few brief moments, been ours.
Earth Day: Reflections of a Ban Asbestos Campaigner
Today, April 22, is Earth Day. People in 192 countries are taking part in activities to highlight issues such as climate change, green initiatives and environmental pollution. There is no doubt that the challenges facing our planet are enormous and that any activity which raises public awareness of the havoc being caused by humankind is well worth doing.
Myself and others in the UK are currently focused on plans for a public demonstration on April 26 to mark International Workers Memorial Day. We will be exercising our democratic right to protest the fact that asbestos stakeholders continue to profit from a trade which is killing thousands of workers. The greed and self-interest of ruthless individuals is responsible for the suffering of people all over the world.
Asbestos lobbyists, using the same rhetoric and tricks as the tobacco industry, proclaim that evidence regarding the asbestos hazard remains inconclusive; asbestos can, they say, be used safely. International agencies tasked with protecting occupational and public health disagree; all types of asbestos are, they say, carcinogenic and the only way to end the epidemic of asbestos-related deaths is to ban the use of asbestos.
It is hard to believe that 43 years after the first Earth Day took place, two million tonnes of asbestos are still being sold every year. In most industrialized countries the conclusion has been reached – asbestos is too hazardous to be used. Unfortunately, asbestos salesmen continue to pressurize governments and consumers elsewhere to buy their toxic wares. They often do so with the full support, encouragement and political clout of their own governments.
On Earth Day, let us reaffirm our commitment to living a greener and less polluting life; a life which has no place for asbestos.
The Deadly Reach of Asbestos
Let’s call him Harry.
Harry died from asbestos cancer. Sixty years ago he began working with asbestos. He breathed it in as part of his daily routine as a lagger at a British shipyard.
Harry and I never met but in 1991 we spoke on three occasions about the conditions on board an iconic Cunard ocean liner which was being refurbished at the dockyard. He told me about mixing Newall’s asbestos pug with water and applying the mixture around pipes. Newall’s asbestos slabs, approximately 36” long x 6” wide x 2/3/4” thick were, he told me, used on pipes and turbines and were cut to size on site. They were nicknamed “Maggie slabs” as they were made of 85% Magnesia and 15% Asbestos. The slabs came in cardboard boxes marked Turner & Newall’s. “Caposite” slabs were used in the bulkheads in engine and boiler rooms. The wide variety of asbestos powder, pre-formed sections and slabs were supplied by Turner & Newall Ltd. and the Cape Asbestos Co. Ltd.
This detail was of paramount importance for a court case in the United States. Harry and others like him gave their time and memory to identify the types and brands of asbestos products used on the ship. Largely due to their input, an out of court settlement was obtained of nearly one million dollars for the family of the deceased American worker.
I had forgotten about Harry until today when out of the blue a letter arrived from a solicitor who had been instructed by Harry’s family to pursue a claim for his asbestos-related death. Unfortunately, Harry did not give a deposition during his lifetime and the details of his employment history were sketchy. In his papers was found a letter from me dated October 8, 1991 in which I had thanked Harry for his help in this case and informed him of the successful outcome achieved for the family.
The fact that Harry kept this letter for over twenty years has touched me greatly. The fact that I was able to access the files and supply his solicitor with the information he had so willingly provided to me all those years ago was, I hope, some recompense.
I wanted you to know about Harry; one more victim of a silent killer stalking us through the years.
New Zealand’s Asbestos Policy – An Exercise in Political Flim-Flam
A letter shared with me by my colleague Deidre VanGerven brings to mind the long-running British TV series: Yes, Minister!, a satirical sitcom which exposed the inner workings of the British political system.
The letter in question, which was received by Deidre on April 11, 2013, was written by Amy Adams, New Zealand’s Minister for the Environment, Communications and Information Technology and Associate Minister for Canterbury Earthquake Recovery.
This policy is one of denial rather than engagement. While New Zealand banned the import of amosite and crocidolite asbestos in 1984 and the import of chrysotile asbestos in 1999, in 2008 the ban on chrysotile fiber imports was rescinded. Although the chrysotile asbestos fiber import ban was replaced by a regulatory scheme, the import of asbestos-containing materials remains unregulated.
In the April 11, 2013 letter, Adams uses political double-speak to divert attention from the main issue – why New Zealand has not banned asbestos. Adams speaks of an “integrated approach” to the management of the asbestos hazard when what she describes in her letter is a fragmented and uncoordinated policy which leaves New Zealand citizens exposed to hazardous exposures from both asbestos-containing products in situ and new products, the import of which is not monitored.1
Adams says that the “risks to people from hazardous substances [like asbestos] are appropriately managed.” This could not be further from the truth as we have seen by the exposures which took place during the Christchurch earthquake and the remediation work currently underway. Deidre VanGerven is utterly appalled at her government’s intransigence:
“Clause F1.1 of the New Zealand Building Code Hazardous Agents on Site states that the objective of this provision ‘is to safeguard people from injury and illness caused by hazardous agents or contaminants on a site.’ In light of this, it is incomprehensible to me that anyone can believe it is okay to allow products containing asbestos to be used here in New Zealand. Honestly, it does not make sense to have a building code that says this and have the Minister of Environment say it’s okay for products containing asbestos to be used. The ‘integrated approach’ referred to by the Minister in her letter is a smokescreen behind which we find an inefficient group of people tasked with protecting New Zealanders who are literally doing nothing but ‘passing the buck’ once more.”
1 In Adams' letter of February 14, 2013, she told Ms. VanGerven: “…asbestos products can still be imported. While New Zealand does not monitor the importation of asbestos products due to the difficulties in identifying these products at the border, I note that the use and trade of asbestos products is decreasing internationally and that many are now unavailable.”