tag:theconversation.com,2011:/es/topics/damages-25736/articlesdamages – The Conversation2020-09-02T05:01:27Ztag:theconversation.com,2011:article/1450982020-09-02T05:01:27Z2020-09-02T05:01:27ZHow Clive Palmer could challenge the act designed to stop him getting $30 billion<figure><img src="https://images.theconversation.com/files/355982/original/file-20200902-18-2k7n52.jpg?ixlib=rb-1.1.0&rect=21%2C25%2C2842%2C1850&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dan Peled/AAP</span></span></figcaption></figure><p>The West Australian government recently took the extraordinary step of <a href="https://theconversation.com/the-wa-government-legislated-itself-a-win-in-its-dispute-with-clive-palmer-and-put-itself-above-the-law-144360">passing legislation</a> to try to stop mining magnate Clive Palmer from collecting about $30 billion in damages from the state. </p>
<p>As Premier Mark McGowan argues, such a hefty bill <a href="https://www.watoday.com.au/politics/western-australia/liberals-line-up-to-blast-mcgowan-s-claim-palmer-lawsuit-would-close-hospitals-schools-20200814-p55lqv.html">risks bankrupting WA</a>. </p>
<p>While the so-called “<a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43095.htm/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Amendment%20Act%202020%20-%20%5B00-00-00%5D.html?OpenElement">Mineralogy Act</a>” passed state parliament in <a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">just two days</a>, it is far from straightforward. </p>
<p>It raises a host of questions that are likely to be tested in courts in the months - and possibly years - ahead. </p>
<h2>What is this dispute about?</h2>
<p>Palmer is <a href="https://www.smh.com.au/national/what-are-the-disputes-involving-clive-palmer-and-the-wa-government-about-20200819-p55ndk.html">no stranger to litigation</a>. Recently, he has also been fighting the WA government over <a href="https://theconversation.com/federal-court-finds-border-closures-safest-way-to-protect-public-health-in-clive-palmer-case-145038">COVID border closures</a>. </p>
<p>But this particular dispute dates back to 2012 and concerns an iron ore project in the Pilbara. </p>
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Read more:
<a href="https://theconversation.com/federal-court-finds-border-closures-safest-way-to-protect-public-health-in-clive-palmer-case-145038">Federal Court finds border closures safest way to protect public health in Clive Palmer case</a>
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<p>Palmer has argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government, under former premier Colin Barnett. He is reportedly seeking about <a href="https://www.abc.net.au/news/2020-08-18/clive-palmer-seeking-tens-of-billions-documents-reveal/12570338">$30 billion</a> in damages.</p>
<h2>The Mineralogy Act</h2>
<p>In mid-August, the state government <a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">passed the Mineralogy Act</a> to terminate the damages claims against it.</p>
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<img alt="WA Premier Mark McGowan" src="https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=482&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=482&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355943/original/file-20200902-18-wgjv5u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=482&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The McGowan government says the legislation is needed to protect the ‘interests’ of WA.</span>
<span class="attribution"><span class="source">Richard Wainwright/AAP</span></span>
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<p>Before this, Palmer and his companies, including Mineralogy, had been pursuing these claims through arbitration - a dispute resolution process that happens outside the courts. This arbitration was about whether the WA government properly dealt with proposals Palmer’s companies made under a <a href="http://classic.austlii.edu.au/au/legis/wa/consol_act/iopplaa2002502/sch1.html">2002 agreement</a>. </p>
<p>Last week, after the act passed, Palmer declared he would sue McGowan and Attorney-General John Quigley for “<a href="https://www.abc.net.au/news/2020-08-26/clive-palmer-suing-mark-mcgowan-john-quigley-in-new-legal-action/12596538">contempt of the High Court of Australia</a>”.</p>
<p>This is likely to be one of many salvos in a protracted legal battle.</p>
<h2>Does Palmer have a claim for contempt of court?</h2>
<p>Contempt of court means acts that interfere with or undermine the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/3.html?context=1;query=witham%20v%20holloway;mask_path=">authority, performance or dignity</a> of the courts.</p>
<p>The Mineralogy Act seeks to terminate the arbitration for the reported $30 billion claims. </p>
<p>It also invalidates existing arbitral awards, which are decisions determining parties’ rights and liabilities. Given that arbitrations are not court proceedings, these aspects of the act do not establish contempt of court.</p>
<p>However, where a party does not comply with an arbitration award, the award can be registered with the courts and then enforced as if it were a court judgment. </p>
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<img alt="Dumper truck in the Pilbara." src="https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355945/original/file-20200902-14-hmw42n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">This dispute is over an iron ore project in the Pilbara.</span>
<span class="attribution"><span class="source">Kim Christian/AAP</span></span>
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<p>Before the act was passed, Palmer had registered <a href="https://www.theguardian.com/australia-news/2020/aug/13/clive-palmer-says-queensland-court-action-makes-wa-move-to-avoid-damages-unconstitutional">two arbitration awards</a> in the Queensland Supreme Court. The act seeks to remove the basis for these claims. There is <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicSC/1995/510.html?context=1;query=Dagi;mask_path=">precedent</a> that this may constitute contempt of the Queensland court (although contrary to Palmer’s assertions, not the High Court). </p>
<p>However, even if Palmer establishes contempt of the Queensland court, that would not invalidate the Mineralogy Act. Any penalty imposed by the court would also be modest in comparison to the $30 billion damages claim.</p>
<h2>Can the WA parliament pass a law that takes away rights without compensation?</h2>
<p>Apart from the contempt issue, Palmer may argue the WA parliament cannot pass a law that takes away individual rights without compensation. </p>
<p>In this regard, state laws that take away rights are unusual, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/7.html?context=1;query=durham%20holdings;mask_path=">but not new</a>. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-wa-government-legislated-itself-a-win-in-its-dispute-with-clive-palmer-and-put-itself-above-the-law-144360">The WA government legislated itself a win in its dispute with Clive Palmer — and put itself above the law</a>
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<p>The <a href="https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2015/hca-13-2015-04-15.pdf">High Court</a> and <a href="https://www.queenslandjudgments.com.au/case/id/501587">Queensland</a> and <a href="https://insidestory.org.au/the-ghost-of-lang-hancock/">WA supreme courts</a> have previously treated state laws that remove rights of particular persons without just compensation as valid. </p>
<p>While the WA parliament has not previously amended a state agreement with a mining company without consent, this was found to be valid in <a href="https://www.queenslandjudgments.com.au/case/id/501587">Queensland</a>. This approach is consistent with the principle that the present parliament can generally amend existing laws.</p>
<p>As a political, rather than legal matter, politicians have found that laws targeting mining rights <a href="https://www.theguardian.com/australia-news/2017/mar/14/wa-nationals-leader-brendon-grylls-loses-seat-to-labor-after-attack-from-mining-lobby">can be hazardous</a>. </p>
<p>Whether public opinion will ultimately support the Mineralogy Act remains to be seen. But the <a href="https://www.watoday.com.au/national/western-australia/mark-mcgowan-for-pm-wa-punters-might-want-it-but-does-labor-20200805-p55ix6.html">current popularity</a> of the WA government over its handling of COVID-19 and the <a href="https://www.watoday.com.au/politics/western-australia/wa-premier-s-populism-makes-palmer-a-legal-pariah-but-why-20200812-p55l51.html">potential popularity</a> of “saving” the state’s finances will undoubtedly influence perspectives. </p>
<h2>Are parts of the Mineralogy Act unconstitutional?</h2>
<p>Palmer may also argue parts of the Mineralogy Act are unconstitutional.</p>
<p>Parliaments can pass laws about matters involved in ongoing legal disputes. They can even target particular cases or parties. But based on Chapter III of the <a href="https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/%7E/link.aspx?_id=1A4B10F0E0C645D68D16DC6953E7CE52&_z=z">Constitution</a>, they can’t compromise the court’s integrity by telling a court how to decide. This constitutional line is often tricky to draw. </p>
<figure class="align-center ">
<img alt="Clive Palmer at a press conference on the Gold Coast." src="https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/355921/original/file-20200902-14-1l88z79.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Clive Palmer says he will sue the WA government over the Mineralogy Act.</span>
<span class="attribution"><span class="source">Dan Paled/AAP</span></span>
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<p>The act does not entirely remove the court’s power to examine the legality of government actions. But it does try to stop courts from giving remedies that are unfavourable to WA.</p>
<p>So, it doesn’t quite tell courts how to decide, but it does restrict what they can do, which is getting into uncertain constitutional territory. </p>
<p>The WA government <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">has described</a> the Mineralogy Act as “unprecedented,” containing a number of measures that are “not usual”. </p>
<blockquote>
<p>but Mineralogy and Mr Palmer are not normal and these measures are needed to best protect the interests of the state and the community.</p>
</blockquote>
<p>However, even necessary laws must be constitutional.</p>
<h2>Does Palmer really stand to gain $30 billion in damages anyway?</h2>
<p>Palmer has said the widely reported $30 billion price tag is “<a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">bullshit</a>”. But Quigley <a href="https://www.abc.net.au/news/2020-08-18/clive-palmer-seeking-tens-of-billions-documents-reveal/12570338">tabled details </a>in parliament last month showing the total damages sought by Palmer and his companies in relation to the iron ore project was at least $27.75 billion.</p>
<p>Palmer’s <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">damages claims</a> focus on the loss of opportunities to develop and sell the project to Chinese state-owned enterprises. </p>
<p>But core principles for assessing damages for breach of contract - which in this case is a <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43096.htm/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Act%202002%20-%20%5B00-c0-01%5D.html?OpenElement">2002 agreement</a> between Mineralogy and the state government - may stand in the way.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
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<p>The state’s improper delay in approving the project must have caused the loss - but it is <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">not clear</a> this is the case. There may have been other reasons for the losses, including the <a href="https://www.ft.com/content/b33b2fc8-cd8d-11e4-9144-00144feab7de">post-GFC mining slump</a>.</p>
<p>Also, the value of what Palmer has lost needs to reflect the likelihood the project would have occurred without the delay, and so is likely to be much lower than $30 billion. </p>
<p>Palmer must also have taken reasonable steps to minimise his loss. This might mean following the standard industry practice of <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/FDACB99A1DDAB100482585D100069AC5/$FILE/A40%20S1%2020200811%20p4594b-4599a.pdf">amending the development</a> proposals to meet state government conditions, noting the Mineralogy Act still leaves this possibility open.</p>
<h2>What happens now?</h2>
<p>Palmer has a potential claim that the passage of the Mineralogy Act constitutes contempt of the Queensland Supreme Court. It is also possible parts of the act, such as those that restrict the remedies available to courts, are unconstitutional. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mineral-wealth-clive-palmer-and-the-corruption-of-australian-politics-117248">Mineral wealth, Clive Palmer, and the corruption of Australian politics</a>
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<p>However, even if Palmer succeeds in these claims, it is not clear how much he will actually gain financially, or if his claim is really worth $30 billion.</p>
<p>The Mineralogy Act is so unusual, it would be foolish to predict outcomes to these complex legal questions. Over the coming months, we will start seeing answers to these questions as Palmer brings lawsuits and proceedings work their way through the courts. </p>
<p>The answers will provide profound insights into the decision-making powers of states.</p><img src="https://counter.theconversation.com/content/145098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson has previously received funding from the International Mining for Development Centre (IM4DC).</span></em></p><p class="fine-print"><em><span>Ian Murray has previously received funding from Rio Tinto, BHP Billiton and the Minerals Council of Australia for research relating to Indigenous benefits management structures.
Ian is also on a working group with the Minerals Council of Australia and the National Native Title Council focussed on Indigenous economic development. </span></em></p><p class="fine-print"><em><span>John Southalan has previously worked with a land council, assisting clients in proceedings against Mineralogy companies. Nothing from that work has informed, nor is relied on, in this article.</span></em></p><p class="fine-print"><em><span>Dr Natalie Brown has received funding from National Centre for Groundwater Research and Training, Centre for Mining Energy and Natural Resources Law (UWA) for PhD research. </span></em></p><p class="fine-print"><em><span>Sarah Murray has received funding from the Australian Institute of Criminology and the WA Public Purposes Trust.</span></em></p><p class="fine-print"><em><span>Julie Falck does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The legislation designed to stop Palmer claiming huge damages against WA raises a host of questions.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaIan Murray, Associate Professor, The University of Western AustraliaJohn Southalan, Global Faculty (Centre of Energy, Petroleum and Mineral Law & Policy), University of DundeeJulie Falck, Lecturer, The University of Western AustraliaNatalie Brown, Lecturer in Administrative and Property Law; PhD in WA iron ore State agreements, The University of Western AustraliaSarah Murray, Professor specialising in public law and less-adversarial justice, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235562019-10-15T11:23:39Z2019-10-15T11:23:39ZEquifax breach victims can pick their compensation – why choice may mean cheaper and better settlements<figure><img src="https://images.theconversation.com/files/296541/original/file-20191010-188802-h9llyd.jpg?ixlib=rb-1.1.0&rect=5294%2C471%2C3435%2C1630&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How much is harm worth?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/scale-justice-symbol-icons-fair-unfair-1499809514?src=h9PYLU4xnZ-M2-POnlUx_A-1-20">Chan2545/Shutterstock.com</a></span></figcaption></figure><p>If you are among the approximately 147 million people affected by the Equifax data breach, you may be looking forward to your cut of the <a href="https://www.nytimes.com/2019/09/16/opinion/equifax-settlement.html">US$700 million legal settlement</a>. </p>
<p>Under the settlement agreement with the Federal Trade Commission, Equifax hacking victims get a choice: free credit monitoring for 10 years or $125 in cash.</p>
<p>Most experts recommended taking <a href="https://www.consumer.ftc.gov/blog/2019/07/equifax-data-breach-pick-free-credit-monitoring">the credit monitoring</a>, which is valued at thousands of dollars.</p>
<p>Choices in compensation are relatively rare in the law. But <a href="https://academic.oup.com/aler/article/20/2/460/5090189/">my research on legal remedies</a> suggests they shouldn’t be.</p>
<p>Giving plaintiffs choices allows judges to offer different types of compensation to different types of plaintiffs. Doing so actually increases the accuracy of compensation, helping justice be served.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/296547/original/file-20191010-188819-xrhi7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">California Attorney General Xavier Becerra explaining the terms of Equifax’s settlement with the Federal Trade Commission, July 22, 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Equifax-Fine/b77b728c9c8b49da9c4bc19822efce74/3/0">AP Photo/Rich Pedroncelli</a></span>
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<h2>Peevyhouse v. Garland Coal & Mining Co.</h2>
<p>One of the most famous contract breach cases of all time, <a href="https://www.courtlistener.com/opinion/2606767/peevyhouse-v-garland-coal-mining-company/">Peevyhouse v. Garland Coal & Mining Co.</a>, demonstrates the potential benefits of choice in legal compensation.</p>
<p>In 1954, an Oklahoma couple named Lucille and Willie Peevyhouse leased their land to a coal company. The agreement was for the company to strip mine the land in exchange for payment. At the Peevyhouses’ request, the contract also required that company perform restorative work. </p>
<p>The company mined the land and, in 1957, paid the Peevyhouses royalties of $2,500 – which would be $24,000 today.</p>
<p>But the land was never restored. </p>
<p>Lucille and Willie Peevyhouse were left with a farm marred by an open mining pit and massive piles of upturned earth. They sued the company. At trial, the company admitted that it had not performed the restorative work. </p>
<p>The Peevyhouses asked for $25,000 in compensation, which reflected their perceived loss. </p>
<p>The coal company had a different view. Restoring the Peevyhouses’ land would cost $29,000, according to an expert witness, but only increase its value by $300. The company said it was happy to make the Peevyhouses whole by paying the $300. </p>
<h2>The judge’s dilemma</h2>
<p>Every fall, thousands of first year law students read the Peevyhouse case. Asked to consider what it means to “compensate” someone for harm done to them, the students learn that there are two types of harms: objective and subjective.</p>
<p>In the Peevyhouses’ case, the objective harm of $300 was straightforward. If they were to sell their land, it would now sell for $300 less than if it had been restored.</p>
<p>But the Peevyhouses didn’t care about what others were willing to pay. <a href="https://heinonline.org/HOL/Page?handle=hein.journals/illlr89&id=1361&collection=journals&index=">It was their land</a>. The farm had previously belonged to Lucille’s parents, and Lucille and Willie now were raising their own family there. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/296546/original/file-20191010-188829-l9gmny.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/judge-gavel-icon-symbol-vector-1063047296?src=u6_T3lbF7WtuvTsJ_QXevA-1-5">Agus Mul/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>They had suffered the objective harm of $300 as well as another, more personal harm – one of unknowable value. A restored farm was worth way more to the Peevyhouses than $300. Subjectively, they felt $25,000 in pain.</p>
<p>Was $25,000 really how much subjective harm the Peevyhouses had suffered? Or were they trying to make a profit? </p>
<p>The problem here – <a href="https://academic.oup.com/aler/article/20/2/460/5090189/">as in many damage lawsuits</a> – is that judges cannot confirm someone’s subjective valuation. It differs from person to person. And, of course, people lie. </p>
<p>If the judge in such cases awards too little, the plaintiffs are undercompensated. If the judge awards too much, the plaintiffs make a profit and defendants pay too much.</p>
<p>Since plaintiffs generally cannot prove the cost of their subjective harm, judges often resort to compensating them for only their objective loss. </p>
<p>In the end, Lucille and Willie Peevyhouse received $300. Four decades later, they still lived on the land. Half of it remained unusable and unsafe.</p>
<h2>Benefits of choice</h2>
<p>It didn’t have to turn out this way.</p>
<p><a href="https://academic.oup.com/aler/article/20/2/460/5090189/">My research</a> on how to appropriately compensate plaintiffs for subjective harms indicates that judges should offer plaintiffs in breach of contract suits a choice: accept an intermediate award of damages that sits somewhere between the objective and subjective harms, or order the defendant to perform on the contract.</p>
<p>Suppose that the judge in the Peevyhouse case had offered Lucille and Willie the choice between $5,000 or a court order forcing the company to restore their land.</p>
<p>If the Peevyhouses valued the restored land at more than $5,000, they could have chosen the court order. But if they valued the restored land at less than $5,000, they could have taken the money. </p>
<p>In either case, the Peevyhouses would be more accurately compensated for their subjective value.</p>
<p>By giving plaintiffs choices, judges can separate them into two groups and compensate them differentially. Those with high subjective values opt for the court order and are compensated in a costly manner. And those with low subjective values choose cash and are compensated relatively inexpensively. </p>
<p>The choice fully compensates all plaintiffs. And, on average, the costs are lower for the company being sued than they would be if the subjective compensation was awarded without choice.</p>
<h2>More complicated still</h2>
<p>Equifax would appear to be a good example of the compensation choice that my research endorses.</p>
<p>The choice between $125 or free credit monitoring should allow those of us affected by the breach to be compensated based on our differing subjective values. </p>
<p>An <a href="https://www.ftc.gov/news-events/press-releases/2019/07/equifax-pay-575-million-part-settlement-ftc-cfpb-states-related">overwhelming number of people</a>, it turns out, prefer the $125 – perhaps because they already have “free” credit monitoring from <a href="https://yahoodatabreachsettlement.com/en">previous data breaches</a>. Or maybe angry victims just want this rich company to pay – financially – for the harms it caused.</p>
<p>But <a href="https://www.ftc.gov/news-events/press-releases/2019/07/equifax-pay-575-million-part-settlement-ftc-cfpb-states-related">only $31 million was set aside to pay plaintiffs</a>. That works out to only 21 cents per person if everyone opts for the cash.</p>
<p>Choice in compensation only works if the settlement is big enough to give plaintiffs what they’re promised.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/123556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nathan Atkinson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How much is your suffering worth in court? Often, it depends on the judge. But justice may be better served by letting victims choose between monetary compensation and a more restorative remedy.Nathan Atkinson, Postdoctoral Researcher in Law and Economics, Swiss Federal Institute of Technology ZurichLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/732142017-02-28T14:53:07Z2017-02-28T14:53:07ZHow South Africa’s mining industry can change its ways<figure><img src="https://images.theconversation.com/files/158519/original/image-20170227-26322-rkwkuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Workers walk past a Lonmin Marikana platinum mine, a site that represents industrial strife in South Africa. </span> <span class="attribution"><span class="source">Reuters/Skyler Reid </span></span></figcaption></figure><p>South Africa’s mining industry is increasingly cited as one of the key sectors that must yield “<a href="http://www.ujuh.co.za/zuma-what-do-we-mean-by-radical-socio-economic-transformation/">radical economic transformation</a>” and help the country heal a deeply divided and unequal society. </p>
<p>President Jacob Zuma set out what he meant by radical economic transformation in his 2017 <a href="http://www.gov.za/SONA2017">state of the nation address</a>, describing it as:</p>
<blockquote>
<p>a fundamental change in the structure, systems, institutions and patterns of ownership, management and control of the economy in favour of all South Africans, especially the poor, the majority of whom are African and female…</p>
</blockquote>
<p>The country’s finance minister Pravin Gordhan also touched on the subject in his recent <a href="http://www.treasury.gov.za/documents/national%20budget/2017/default.aspx">budget speech</a>.</p>
<p>So what can the mining industry bring to the party? The <a href="http://altminingindaba.co.za">Alternative Mining Indaba</a> recently provided some answers to this question. It’s a dialogue that runs parallel to the annual private sector convened <a href="https://www.miningindaba.com/ehome/index.php?eventid=174097&">Mining Indaba</a> in Cape Town. The 350 organisations attending the civil society indaba reached some critical conclusions.</p>
<p>The unanimous view was that the trajectory of South Africa’s mining industry is unsustainable and that a radical shift is needed if the country is going to maximise the benefits of resource extraction – for communities and for the country.</p>
<p>The way in which mining is carried out has caused immeasurable socio-economic and environmental <a href="http://cer.org.za/news/harvard-report-highlights-human-rights-costs-of-south-african-gold-mining">destruction</a>. But this needn’t be so. Two critical interventions could make a dramatic difference: meaningful community participation and private sector accountability. </p>
<p>If South Africa acted to put these in place it would be in line with the principle of free, prior and informed consent as widely recognised in various international experiences and <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/mandela-institute/documents/research-publications/Public%20Regulation%20and%20Corporate%20Practices%20in%20the%20Extractive%20Industry,%20a%20Mandela%20Institute%20report.pdf">adopted</a> by a number of Latin American countries. </p>
<h2>Opportune moment</h2>
<p>The time is opportune to reconsider the direction of the country’s mining industry. The Mining Charter is currently <a href="http://www.politicsweb.co.za/documents/how-the-mines-must-racially-transform--mining-char">under review</a>. This is the regulatory framework designed to guide the sector’s transformation. The aim of the review is to make the industry representative of the country’s demographics and follow sustainable practices. </p>
<p>The Minerals and Petroleum Resources Development Amendment Bill is also <a href="http://www.miningweekly.com/article/mprda-amendment-bill-in-limbo-but-processes-crucial-2017-02-03">under review</a>. There’s also been progress in getting a <a href="http://citizen.co.za/business/1423588/government-continues-pursue-state-owned-mining-company-zuma/">state owned mining company</a> off the ground.</p>
<p><a href="http://www.bench-marks.org.za">Debates</a> about the benefits and harmful consequences of mining are common across the world. At the heart of the contestation are concerns about the irreversible damage that mining causes to the environment as well as the <a href="http://www.ujuh.co.za/communities-lose-confidence-in-mining-industry/">destabilisation</a> it causes to host communities.</p>
<p>Mining continues to be associated with harm all over the world. Over the past 60 years, 40% of <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/mandela-institute/documents/research-publications/Public%20Regulation%20and%20Corporate%20Practices%20in%20the%20Extractive%20Industry,%20a%20Mandela%20Institute%20report.pdf">civil wars</a> can be associated with natural resources. The reason for this includes lack of equitable sharing of benefits and costs of extraction, lack of engagement with communities, and the diversion of revenue to financing conflicts. </p>
<p>South Africa’s mining industry is no exception. For more than a century it has produced <a href="https://www.wits.ac.za/media/news-migration/files/Platinum%20Report%20.pdf">obscene profits</a> for the few – mainly investors and captains of industry – while leaving a trail of socio-economic and environmental <a href="http://www.ujuh.co.za/communities-lose-confidence-in-mining-industry/">disasters</a> across the country.</p>
<p>One report that captures <a href="http://cer.org.za/wp-content/uploads/2016/10/Cost-of-Gold-South-Africa-Report-Exec-Summary-Oct-2016.pdf">the cost of gold</a> found that:</p>
<blockquote>
<p>contaminated dust and soil from omnipresent hills of mine waste have interfered with the enjoyment of the rights to health, a healthy environment, and housing. </p>
</blockquote>
<p>The report identified more than 200 waste dumps in the Johannesburg area, which contain concentrations of heavy metals and radioactive uranium. These have led to complaints of asthma and other breathing difficulties. </p>
<h2>The future must be inclusive</h2>
<p>One important way of promoting the sustainability of mining is through community engagement. More often than not this is ignored. For example, the President in his recent <a href="http://www.gov.za/SONA2017">comments</a> only emphasised the importance of discussions between government and business on the new mining charter. This is symptomatic of the country’s failure to give marginalised communities a meaningful voice.</p>
<p>A <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/programmes/environment/resources/Social%20and%20Labour%20Plans%20First%20Report%20Trends%20and%20Analysis%2030%20March%202016.pdf">report</a> by the Centre for Applied Legal Studies highlights this. It notes that there is no:</p>
<blockquote>
<p>legislative clarity regarding the role of communities in the implementation, compliance monitoring and amendment of social and labour plans. Communities have no role in the decommissioning, downscaling and closure of mines.</p>
</blockquote>
<p>This gap can only be closed if trust and partnership become the hallmark of relations between government, communities and business. But to be meaningful community engagement must <a href="https://www.wits.ac.za/media/wits-university/faculties-and-schools/commerce-law-and-management/research-entities/mandela-institute/documents/research-publications/Public%20Regulation%20and%20Corporate%20Practices%20in%20the%20Extractive%20Industry,%20a%20Mandela%20Institute%20report.pdf">involve</a>: </p>
<ul>
<li><p>the building of sustained relationship between communities, the state and extractive companies </p></li>
<li><p>the cultivation of a long-term relationship that develops mutual trust and respect </p></li>
<li><p>adequate representation on the part of communities </p></li>
<li><p>informed participation in the decision-making process</p></li>
<li><p>easy access to timely, relevant and complete information, and</p></li>
<li><p>communities must have access to a mechanism that adopts rule of law principles when they have grievances.</p></li>
</ul>
<h2>Holding miners accountable</h2>
<p>Another important piece of the puzzle is transparency. Mining companies must be required to provide proper financial disclosure. Just as important is that they must be required to comprehensively list the beneficiaries of mining project - what’s known as <a href="http://www.osf.org.za/wp-content/uploads/2017/01/OSF-Extractives-Working-Paper_Beneficial-Ownership-and-Tax-Benefit-Disclosures.pdf">beneficial ownership transparency</a>. Many investors who make money from harmful mining by hiding behind complicated financial and legal structures. It then becomes impossible to hold them accountable. </p>
<p>Also the lack of knowledge about the ultimate beneficiaries of a global corporation means tax avoidance and illicit financial flows can thrive. This deprives countries of revenue to fund social welfare programmes.</p>
<p>Knowing who the beneficiaries are should also highlight “skewed ownership patterns”. This would be the first step to de-racialising the extractive industry to favour historically disadvantaged South Africans as intended by government.</p>
<p>It would also help detect corruption or inappropriate levels of political involvement.</p>
<p>Some progress has been made, on paper at least. The government has committed to implementing a plan based on a set of principles drawn up by the <a href="https://www.ag.gov.au/CrimeAndCorruption/AntiCorruption/Documents/G20High-LevelPrinciplesOnBeneficialOwnershipTransparency.pdf">G-20</a>. On top of this, <a href="http://probonomatters.co.za/key-provisions-financial-intelligence-centre-amendment-bill/">amendments</a> to the Financial Centre Intelligence Acts are being processed. The aim is to beef up the capability and responsibility of financial institutions to properly identify their clients and alert relevant authorities.</p>
<p>It’s <a href="http://probonomatters.co.za/south-africa-risks-becoming-a-pariah-in-financial-intelligence-scales/">important</a> that Parliament passes this Bill quickly and the government honours its commitment to greater transparency. This should also include the development of a beneficial ownership register. </p>
<p>For South Africa to derive the intended socio-economic benefits from the mining industry the government needs to take deliberate and proactive steps. Only then will communities and civil society organisations become an integral part of the oversight and monitoring of the industry’s commitments.</p><img src="https://counter.theconversation.com/content/73214/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fola Adeleke received funding from the Open Society Foundation in some of the reports that were mentioned in this article.He is currently head of research of the South African Human Rights Commission but writes in his personal capacity.</span></em></p>South Africa’s mining industry is on an unsustainable trajectory and needs to undergo fundamental transformation that emphasises transparency, equity, and community participation.Fola Adeleke, Fellow, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/561672016-03-11T17:10:46Z2016-03-11T17:10:46ZFive years after Fukushima, there are big lessons for nuclear disaster liability<p>As four reactors at the Fukushima Daiichi Nuclear Power plant suffered <a href="http://fukushimaontheglobe.com/the-earthquake-and-the-nuclear-accident/whats-happened">catastrophic cooling failures</a> and exploded in March 2011, the world watched in disbelief. For Japan, this was not just the greatest nuclear disaster since <a href="http://news.bbc.co.uk/1/shared/spl/hi/guides/456900/456957/html/nn1page1.stm">Chernobyl</a>. <a href="http://www.bbc.co.uk/news/world-asia-pacific-12726297">It was</a> “the most severe crisis … since World War II.” </p>
<p>Five years on, the nation continues to struggle with the effects. Towns <a href="http://www.meti.go.jp/english/earthquake/nuclear/roadmap/pdf/141001MapOfAreas.pdf">up to 40km</a> from the plant remain a dead-zone: desolate and uninhabited. As many as 100,000 people <a href="http://www.cbc.ca/news/world/fukushima-nahara-japan-reopens-1.3217085">still remain displaced</a>, unable to return to their homes. Workers at the <a href="http://www.tepco.co.jp/en/index-e.html">Tokyo Electric Power Company (TEPCO)</a> still don claustrophobic masks and rubber suits to venture into the Fukushima facility. Their job is to decommission the plant safely, a task that plant manager Akira Ono <a href="http://www.sciencemag.org/news/2016/03/five-years-after-meltdown-it-safe-live-near-fukushima">recently said</a> was “about 10% complete”.</p>
<p>The task is beset with setbacks and spiralling costs. In December 2011 the government estimated that managing Fukushima would cost US$50 billion. By 2014 this <a href="http://www.japantimes.co.jp/news/2014/08/27/national/fukushima-nuclear-crisis-estimated-to-cost-%C2%A511-trillion-study/#.VuINr5OLSb8">had nearly doubled</a> to include US$19 billion to decommission the Fukushima plant; US$22 billion to decontaminate the surrounding area; US$9 billion to build temporary storage facilities for nuclear waste; and US$43 billion to compensate the victims. Today even this looks <a href="http://www.theguardian.com/environment/2016/mar/11/fukushima-daiichi-nuclear-reactors-decommission-cleanup-japan-tsunami-meltdown">hopelessly optimistic</a>. </p>
<h2>Compensation</h2>
<p>Fukushima <a href="http://talks.cam.ac.uk/talk/index/50572">is now</a> the biggest civil liability case in history. More than two million people have sued TEPCO and US$50 billion has <a href="http://talks.cam.ac.uk/talk/index/50572">already been</a> paid out. This is already equivalent to 49 <a href="http://thinkprogress.org/climate/2013/07/15/2301451/25-years-after-exxon-valdez-oil-spill-company-still-hasnt-paid-for-long-term-environmental-damages/">Exxon Valdez</a> oil spill settlements, and experts <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">predict</a> the total cost of compensation could rise to US$120 billion. </p>
<p>One notable subplot has been compensation for cases of suicide. A court’s <a href="http://www.theguardian.com/environment/2014/aug/26/fukushima-suicide-victim-family-damages-tepco-hamako-watanabe">landmark decision</a> that TEPCO pay US$470,000 to the heirs of a 58-year-old farmer’s wife named Hamako Watanabe could prove much more costly. The Watanabe family were evacuated from the village of Yamakiya in April 2011, losing their farm and leaving them with a US$140,000 mortgage on their now uninhabitable home. Watanabe became severely depressed and during an authorised one-night visit to their home in June the same year, she burned herself to death. </p>
<p>Other bereaved families have also come forward. Two similar cases are now underway, and the Japanese government <a href="http://www.fukushimawatch.com/2015-09-01-fukushima-disaster-sparks-rise-in-suicide-and-spontaneous-abortion-rates.html">anticipates that</a> as many as 56 suicides could be tied to the disaster. And this looks conservative: the NHK broadcasting service <a href="https://www.washingtonpost.com/world/in-a-first-japanese-court-rules-that-nuclear-plant-operator-is-liable-for-suicide/2014/08/26/bc43af62-6c30-4e70-8e22-ffe1895727c1_story.html">has put</a> the number at 130. What is certain is that the number is rising. A further 19 evacuees <a href="http://ajw.asahi.com/article/0311disaster/fukushima/AJ201512280026">took their lives</a> in 2015 and there is no reason to believe 2016 will be any different. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=434&fit=crop&dpr=1 600w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=434&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=434&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=546&fit=crop&dpr=1 754w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=546&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/114839/original/image-20160311-11285-1y1p393.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=546&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-nuclear demonstration in Nagatacho, 2015.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&autocomplete_id=&searchterm=fukushima&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=284080646">TK Kurikawa</a></span>
</figcaption>
</figure>
<h2>Who pays</h2>
<p>Officially the buck for everything stops with TEPCO. Under <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">Japanese nuclear-liability law</a>, the nuclear operator is responsible for the full cost of an accident, even if it is not proven to be negligent.</p>
<p>In practice, the Japanese taxpayer <a href="http://www.ft.com/cms/s/97c88560-e05b-11e5-8d9b-e88a2a889797,Authorised=false.html?siteedition=uk&_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F97c88560-e05b-11e5-8d9b-e88a2a889797.html%3Fsiteedition%3Duk&_i_referer=&classification=conditional_standard&iab=barrier-app#axzz42otjbPkG">is bearing</a> most of the burden. TEPCO’s liability may be unlimited, but its assets are not. Despite the country’s <a href="http://www.livescience.com/30312-japan-earthquakes-top-10-110408.html">seismic history</a>, TEPCO’s private insurance policy did not cover earthquakes or tsunamis. And in accordance with <a href="http://www.oecd-nea.org/law/legislation/japan-docs/Japan-Nuclear-Damage-Compensation-Act.pdf">regulations introduced</a> in 2009, TEPCO was insured through private policies and state indemnities for up to only US$1.1 billion: about a fiftieth of the damages paid out so far. </p>
<p>The government has been forced to prevent TEPCO’s bankruptcy – over and above all of its other Fukushima-related outgoings. It <a href="http://www.economist.com/blogs/schumpeter/2012/05/tepco%E2%80%99s-nationalisation">has bought</a> a majority share and has continued to finance compensation payments through a <a href="https://www.oecd-nea.org/law/fukushima/7089-fukushima-compensation-system-pp.pdf">series of</a> indemnity agreements and loans in the form of government compensation bonds. The state <a href="http://link.springer.com/chapter/10.1007/978-3-642-39768-4_5">has also</a> enacted retroactive legal guidelines that obligate other power companies and financial institutions to contribute to the compensation effort. </p>
<p>One has to ask whether the concept of unlimited liability has any real meaning when the operator’s capacity to pay is so limited. It also raises questions for <a href="http://www.law.cam.ac.uk/press/events/2015/11/expert-workshop-fukushima-five-years-legal-fallout-japan-lessons-eu">other parts</a> of the world. In the UK, for example, nuclear liability is <a href="http://www.world-nuclear-news.org/NP_UK_consults_on_nuclear_liability.html">capped at</a> a mere US$220m, less than two hundredths of what TEPCO has already paid in compensation claims. Japan is evidently not the only country that should be taking lessons from Fukushima.</p>
<p><em>The article originally said that the TEPCO payouts to date are 400 times that of Exxon Valdez, as opposed to 49. It also said that the dead zone around the plant was 10km, but now says 40km.</em></p><img src="https://counter.theconversation.com/content/56167/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Makoto Takahashi receives funding from the ESRC. </span></em></p>The nuclear operator was nowhere near adequately covered for the disaster. And it’s not just a Japanese problem.Makoto Takahashi, Pre-doctoral researcher, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.