MAC: Mines and Communities

U.S. Court is prepared to hear Bougainville genocide case against Rio Tinto

Published by MAC on 2011-10-31
Source: Reuters, Bloomberg, Radio Australia (2011-10-25)

Will it happen - or won't it?

That's a question, raised several times over the last decade, as Papua New Guinean landowners seek to bring Rio Tinto to account for its alleged human rights abuses on Bougainville during the island's horrendous "civil" war.

The case has been in and out of US courts since 2000. See: Wikileaks expose US & PNG position on Bougainville case against Rio Tinto

Now, a US federal appeals court has elected to hear allegations against the mining giant of its being complicit in genocide and commission of war crimes.

But whether the case will eventually be heard is still open to doubt - and not only because Rio Tinto will marshall the best (or at least the best-paid) possible defence.

In September 2010 (when we last reported on the Rio Tinto suit) we pointed out that:

"Last week the 2nd Circuit U.S. Court of Appeals in New York ruled that liability under the law should only apply to individuals, not corporations. Its decision dealt a blow to litigation against Royal Dutch Shell Plc arising from the company's Nigerian operations in the 1990s."

The Alien Tort Statute Act (ATSA), under which the claims have been admitted, is increasingly under threat of being thrown out, although it's up to the US Supreme Court to make a final judgment on the matter.

See also: Rio Tinto asks US appeals court to dismiss Papua New Guinea human rights lawsuit 

ESPAÑOL

U.S. court revives human rights case versus Rio Tinto

Jonathan Stempel

Reuters

25 October 2011

A U.S. federal appeals court has revived a lawsuit seeking to hold Rio Tinto Plc responsible for human rights violations and thousands of deaths linked to a Papua New Guinea copper and gold mine it once ran.

A divided 9th U.S. Circuit Court of Appeals in San Francisco reversed a lower court's dismissal of claims against the mining giant for genocide and war crimes, while upholding the dismissal of claims for racial discrimination and crimes against humanity.

"The complaint alleges purposeful conduct undertaken by Rio Tinto with the intent to assist in the commission of violence, injury, and death, to the degree necessary to keep its mines open," Judge Mary Schroeder wrote.

Some dissenting judges protested against allowing a lawsuit to proceed in federal courts brought by non-U.S. residents against a non-U.S. companies such as Rio Tinto, which has corporate offices in London and in Melbourne, Australia.

The 6-5 decision on Tuesday revives an 11-year-old lawsuit on behalf of about 10,000 current and former residents of the South Pacific island Bougainville, where a late 1980s uprising led to the use of military force and many deaths.

Tony Shaffer, a Rio Tinto spokesman, said, "We intend to defend ourselves vigorously against these improper claims."

Rio Tinto is one of the world's largest mining companies, with a market value exceeding US$100 billion, Reuters data show.

The case is one of several in which non-U.S. residents seek to hold companies responsible in U.S. courts for alleged human rights violations on foreign soil, under a 1789 U.S. law known as the Alien Tort Statute.

Last week, the U.S. Supreme Court agreed to consider in its current term the reach of that statute, in a lawsuit accusing Royal Dutch Shell Plc of helping Nigeria violently suppress protests in the 1990s.

A federal appeals court in New York had ruled that Shell was not liable under the statute. It is unclear how the pendency of that case will affect the Rio Tinto proceedings.

Steve Berman, a lawyer for the Rio Tinto plaintiffs, said: "My clients believe Rio has been covering up its complicity in war crimes and genocide. We're pleased to be able to return to the district court and begin proving our case."

"Expendable"

The Bougainville residents claimed that Rio Tinto's Panguna mine operations polluted the island and that the company forced native workers to live in "slave like" conditions.

They also contended that after workers began to sabotage the mine in 1988, Rio Tinto goaded the government into exacting retribution and conspired to impose a blockade that resulted in the deaths of some 10,000 civilians by 1997.

Rio Tinto shut the mine in 1989.

Writing for the 9th Circuit, Schroeder said the complaint's allegation that Rio Tinto's "worldwide modus operandi" was to treat indigenous non-Caucasians as "expendable" justified restoring the genocide claim to the case.

She also said the allegation that Rio Tinto acted for its own private ends in inducing Papua New Guinea's military to murder civilians justified restoring the war crimes claim.

The appeals court returned the case to U.S. District Judge Margaret Morrow in Los Angeles for further proceedings.

In a dissent, Judge Sandra Ikuta wrote that the Alien Tort Statute gave the court no authority to hear a case between the non-U.S. plaintiffs and Rio Tinto over non-U.S. activity.

"The majority sees fit to brush past these limitations and give itself unlimited authority to adjudicate suits between aliens for torts arising anywhere in the world," she wrote.

Another dissenting judge, Andrew Kleinfeld, wrote: "This case calls for judicial humility. Instead, we arrogate to ourselves imperial authority over the whole world."

Berman is a partner at Hagens Berman in Seattle. Rio Tinto's defence has been handled by O'Melveny & Myers and, until recently, been overseen by Sri Srinivasan, a partner who in August was appointed deputy U.S. solicitor general.

The case is Sarei et al v. Rio Tinto Plc et al, 9th U.S. Circuit Court of Appeals, No. 02-56256.

(Reporting by Jonathan Stempel in New York; additional reporting by Dan Levine in San Francisco; editing by Dave Zimmerman and Andre Grenon)


Rio Tinto Genocide Claims Reinstated by U.S. Appeals Court

Karen Gullo

Bloomberg

25 October 2011

Rio Tinto Group, the world's second- largest mining company, lost a bid to throw out genocide and war crimes claims in a U.S. lawsuit filed by Papua New Guinea landowners accusing the company of human rights abuses and environmental damage.

A federal appeals court in San Francisco today reversed dismissal of those two claims while upholding a lower-court judge's decision to toss claims for racial discrimination and crimes against humanity. The court said claims of genocide and war crimes fall within the limited category of issues that can be considered under the Alien Tort Statute, a law allowing non- citizens to sue in the U.S. for violations of international law.

In the 2000 lawsuit, landowners claimed Rio Tinto and the Papua New Guinea government formed a joint venture to operate a Bougainville Island copper mine, once the world's largest, and were responsible for thousands of deaths related to civilian resistance to the mine.

The appeals court sent the case back to federal district court in Los Angeles for further proceedings.

An e-mail message to the media office at London-based Rio Tinto seeking comment on the ruling wasn't immediately answered.

Steve Berman, an attorney for the landowners, didn't immediately return a voice-mail message seeking comment on the ruling.

Rio Tinto's Panguna mine was shut in 1989 after attacks by the Papua New Guinea army, according to court records.

The case is Alexis Holyweek Sarei v. Rio Tinto PLC, 02- 56256, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

--Editors: Peter Blumberg, Glenn Holdcraft


US Appeal Court revives Bougainville challenge against Rio Tinto

Radio Australia

27 October 2011

A lawsuit filed by Bougainville residents against mining company, Rio Tinto is set to be revived.

A U-S federal Appeals Court has reversed a decision to throw out the lawsuit which alleges the mining company aided the PNG government in genocide and war crimes.

The lawsuit was filed in 2002, 13-years after the mining company's activities prompted a civil war in Bougainville.

Presenter: Geraldine Coutts
Speaker: Steve Berman, attorney for the Bougainville land owners

Listen: Windows Media

BERMAN: Well the ninth-circuit court of appeals agreed that the case could go forward allegedly that Rio Tinto was involved in the commission of war crimes and genocide, which are two international law recognised claims that are universal to all countries.

COUTTS: Well what will you be asking for in this suit?

BERMAN: We're going to be asking for compensation to the ten-thousand or more people who are injured or killed during the uprising.

COUTTS: How many people does that involve, how many people are you actually representing?

BERMAN: Well it's a proposed class action in the United States and in a class action you only need to name a few, the idea is you don't want to bog the courts down with thousands of claims at once. So you have a few people represent the interests of class and the class in this case we think is about ten to 14-thousand people.

COUTTS: Will you be getting testimony, because these are serious charges, genocide and all the other charges you've just listed, will you be getting personal testimony to back that up?

BERMAN: Yes we already have some, we have affidavits from the former commander in chief and from a former prime minister that they were directed by Rio Tinto to take whatever steps were necessary, including violence and killing, to re-open the mine and they gave some details on that. But now we're going to go and start getting the records and show in our view that Rio Tinto financed the helicopters and troop carriers and communications devices, and the means that the government used to try to suppress the uprising.

COUTTS: And it also includes racial discrimination and crimes against humanity all lumped in together?

BERMAN: Well the court dismissed the racial discrimination and crimes against humanity claims, but the racial discrimination claims kind of still falls within the genocide claims, so there's not really a loss there.

COUTTS: Can you just explain the point of that particular aspect of the case?

BERMAN: Well the court found that racial discrimination under American law, the alien torch [sic] statute, someone can sue for a violation of international law, and the Supreme Court recently said those violations have to be laws that every nation, every civilised nation recognises. And believe it or not the court found that not all civilised nations recognise racial discrimination as a violation of the law. So they threw out the racial discrimination claim, on the other hand they said we did allege enough to suggest that the mining company looked at the Bougainvilleans as a separate people who they had no compunction or were not worried about polluting their environment, ruining their lifestyle, ruining their property and physically maiming them, and that was enough to state a claim.

COUTTS: And some dissenting judges have protested against allowing a lawsuit to proceed in the federal courts brought by non-US residents against a non-US company. That is an interesting point?

BERMAN: Well the mining company raised an issue as had other corporations that have been sued under this law that says the US should not be adjudicating claims against foreign companies where the acts take place for example, in this case they took place in Bougainville. But other courts, and the majority in this case said statute speaks very broadly and if you can get jurisdiction over the defendant, in this case Rio in the United States, then you're entitled to bring the case here. And the historical notion we believe that underlies the law dates all the way back to piracy where a court, in that case piracy, which is what the act was passed to in part address, the idea was that someone commits a tort anywhere in the world, piracy is a universally condemned tort, if you catch that person in the United States you can sue them for that even if it occurred somewhere else, and that's what's happening here. And Rio Tinto has a huge presence in the United States, over 47 per cent of their assets or revenues are derived from North America, so the court found we had jurisdiction over them here and that's why we're sueing them in the United States.

COUTTS: And is part of the claim too, because there's been talk of mining beginning again in Bougainville, are you taking any action against that happening?

BERMAN: We're not, that's not part of the case. But I'm told by my clients that Rio is trying to re-open the mine and there's a pretty strong viewpoint, many people in the Bougainville area that Rio cannot and should not be permitted to re-open the mine until they address and redress the wrongdoing that they committed years ago.

COUTTS: I.E. this court case?

BERMAN: Right, I mean the mine is hugely valuable, copper prices have gone up and it's a scarce resource and it was the world's largest copper mine, still a lot of copper out there, it's a valuable asset and they want it, but I don't think they're going to get it unless they remedy the wrongs that they've committed.

COUTTS: When do you think you'll get this case before the courts?

BERMAN: Well now we're going to go back down to the trial court and ask for discovery taking their testimony to proceed, I suspect that Rio's going to ask the US Supreme Court to hear this case.

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