Bougainville Vs Rio Tinto in Court: A Dramatic Development in the "Reparations" Trial. HasPublished by MAC on 2001-11-30
Bougainville Vs Rio Tinto in Court: A Dramatic Development in the "Reparations" Trial. Has Rio Tinto Bought Not Only The PNG Government but America's Justice System as well?
An edited (and heavily shortened) version of this article by Max Watts can be accessed online at Green Left Weekly's website: www.greenleft.org.au
The tearing veil
Marxists are often accused of dogmatism, or at least exaggeration by "liberals" when we say that Capital rules in Capitalist Democracies. After all, we are told we can all vote for our constitutions, our governments, making our laws. There are courts, independent judges, who apply them.
And normally Capitalists are careful not to show their hand - or is it cloven foot? - too openly. But sometimes - when the stakes are high enough - they themselves tear apart the veils, which hide reality. Expose themselves. As Rio Tinto now has done, accused in a lawsuit by Bougainvilleans in the USA.
Bougainville: From Victory to Lawsuit
For ten years Bougainvilleans fought, with bullets, guns, against today's second largest mining multi: Rio Tinto.
Officially of course Rio hid behind multiple veils: The war was - the establishment media told us - a civil war between Bougainvilleans, or a war between Bougainville "secessionists" and Papua New Guinea, and only - when those first two veils had been removed - a war against Australia. As Francis Ona, the leader of the revolt, once said: "Papua New Guinea we can beat in a week. Australia will take a little longer."
In reality, of course, it was a war against capitalism. The Bougainvilleans had imagined that because the BCL Panguna copper and gold mine was in the middle of THEIR island, THEIR country, polluting THEIR land and rivers, they could close it, take it away from its "legal" owners, Rio Tinto. This is totally against capitalist laws, and Rio Tinto fought (using poor bugger PNG soldiers, Australian mercenary Helicopter pilots, even Australian officers "seconded" to Bougainville) for ten years to get ITS property, ITS mine, back. Imposed a total blockade, to keep medicines from getting in, news from getting out. Killed, one way or another, 15,000 Bougainvilleans, ten percent of the population. Devastated the island.
Normally, reasonably, the Bougainvilleans should have been defeated, Law and Order quickly reestablished, the Panguna mine restored to Rio Tinto, its - according to capitalist law - rightful owner. But quite unexpectedly the plans for a rapid reconquest, for the "destruction of the BRA" - hatched in Port Moresby, Canberra and London, didn't work out. The Bougainvilleans - and this is the essential - won the war. And have kept the Panguna mine. Kept it closed, stolen from Rio Tinto.
Now these Bougainvilleans - cheeky buggers! - are even suing Rio Tinto for damages, reparations for the deaths and devastation they suffered in the ten year war - 1988 to 1998 - mining giant Rio war to recover its Panguna mine.
The Bougainvilleans found a "big" Seattle lawyer, Steve Berman, famous for having beaten American tobacco companies in major legal battles, to take their case. In an American, Federal Court, in California, Los Angeles. In Los Angeles, because Alexis Sarei, chief "plaintiff", accuser, once a Bougainvillean provincial prime minister, lives there. In California, because defendant Rio Tinto has major installations, mines, refineries, in that state. And in far-off America, because the Bougainvilleans hoped that there they could find a less prejudiced, more neutral, court there than in Papua or Australia, where the establishments fought the war on Rio Tinto's side.
Bougainvilleans accused Rio of over a dozen crimes, ranging from genocide, murder, environmental destruction down to being a public and even a private nuisance. The first, probably principal, legal problem for the Bougainvillean plaintiffs was to have jurisdiction accepted - in the American court. Rio Tinto, which has begun to worry seriously, has been fighting strenuously to have the lawsuit thrown out, to have it tried, if at all, in Papua New Guinea or at least in Australia. The mining multi fears that if a Los Angeles jury - nowadays including workers, Blacks - were to hear about its practices, its war against Bougainville - they might award very hefty damages, perhaps Billions of American Dollars, for the plaintiffs.
Los Angeles judge Margaret Morrow seemed ready to let the case, at least its international and human rights aspects, proceed in her court. Many legal experts, Americans but also leading lawyers from Papua New Guinea, including PNG's Ambassador to the United Nations Peter Donigi and PNG's Attorney General Frances Daman, declared that this case could be better tried before a "neutral" American court rather than before PNG judges.
Attorney Berman, the plaintiffs in Bougainville, were optimistic. Bougainville leader Francis Ona: "Although we have won the war, we have had enough fighting, we want to decide this matter peacefully, before a neutral court."
Rio Tinto, however, had other ideas, and - perhaps at the cost of tearing off another veil hiding "reality" - other means.
The Accused Writes the Law
In early October Rio's lawyers visited Port Moresby, PNG's Prime Minister "Sir" Mekere Morauta. Soon thereafter, on 17 October, a Mr. Robert Igara, "Chief Secretary to the Government" (that is to Prime Minister Morauta), wrote to the American Ambassador Ms Susan Jacobs in Port Moresby.
Over seven pages Secretary Igara explained that the continuation of this trial in America would "seriously undermine" the relations between Papua New Guinea and the United States. Furthermore it would gravely endanger the ongoing Peace Process between Papua New Guinea and Bougainville.
Above all, it would seriously damage PNG's "ability to secure foreign investments".
Igara's letter said nothing about the fact that the accused, Rio Tinto, is itself still the biggest foreign investor in PNG. Nor did it discuss to what extent RIO'S LAWYERS HAD, THEMSELVES, WRITTEN THIS OFFICIAL PNG GOVERNMENT DOCUMENT. Port Moresby lawyers, who eventually saw it, immediately pointed out that several pages contained American legal details, case law precedents, "which secretary Igara would never have heard of! Rio's lawyers simply wrote them for him, didn't even bother to change their typeface!"
Igara also stated that the previous legal opinions of PNG's Ambassador to the UN, Peter Donigi, and of PNG's Attorney General Frances Daman, declaring that this case be best heard before an American court, were herewith "withdrawn."
Morauta and Igara kept their intervention in an on-going legal process, intervention FOR a foreign mining corporation, AGAINST their own citizens (officially Bougainvilleans are still considered PNG citizens), secret as long as possible.
The Bougainvilleans and their lawyers only learned about it three weeks later, when the American Government, i.e. the US State and Justice Departments, sent them Igara's writes and their - supportive - statements, on their way to Los Angeles judge Margaret Morrow.
State Department Legal Adviser William H. Taft, IV (the fourth?) doesn't dispute "the accusations against defendant Rio Tinto" including 'the commission of various atrocities'.. mining operations ..(which) estroyed the island's river system and fish supply and polluted the atmosphere.. war crimes.. blockade preventing medical supplies from reaching the island resulting in many civilian deaths.. PNG defence forces committed acts of torture, killing, bombing, rape and pillage."
Indeed, Taft notes that the American State Department had previously expressed its concern over human rights abuses on Bougainville. And that it still has such concerns.
But this is not the issue. State Department's Taft: "The continued adjuration" of the case against Rio Tinto would risk "a potentially serious adverse impact" on the peace process in Bougainville, and thus on "the conduct of our (American) foreign policy".
Interestingly Legal Adviser Taft fails to mention the worries Igara has that this process would discourage foreign investment in PNG. Taft seems blissfully unaware that defendant Rio Tinto wrote at least part of the Igara letter, which has now become "advice" - almost instructions - to the court judging their case.
Taft passes the whole matter on to the Department of Justice, where Robert McCallum, Jr. - Assistant Attorney General - promptly forwards the file with an explanatory letter to Judge Morrow.
Whether this Judge can, or will wish to, resist such massive "advice" we shall only learn in the coming weeks or months. If she does dismiss the case, the Bougainvilleans will probably appeal to her decision.
But in any case there is a fair chance that the Morauta government in Port Moresby may disappear, either as a result of a no confidence vote or - in June 2002 - the upcoming election. Many PNG parliamentarians, including opposition leader Somare, are outraged at Morauta's subservience towards Rio Tinto, and the real danger that this may destabilise the delicate situation on Bougainville. The planned "disposal" of weapons (i.e their placing in locked containers) will depend on an upcoming positive parliamentary vote on the peace accords. Much here remains uncertain, to put it mildly.
The Torn Veil
However, we can already note that the vaunted independence of an American Federal Court is somewhat less than the Bougainvilleans had hoped for. And - faced with a major capitalist concern, much less than non-Marxist "democracy" advocates so often declare.
That the present Mekere Morauta PNG government acts against its own citizens on orders of Rio Tinto is - after all - hardly surprising. Morauta was installed with the open blessing and connivance of Canberra, and - of course - the mining companies.
But it is dangerously revealing to see how the "independent" American Justice system can receive "advice" amounting to orders not only from its own executive State Department, but almost directly from a defendant, when that accused is a major multi-national corporation.
When it gets down to the nitty-gritty, Capital Rules. The Australian Shearers' song said it well: "It's a rich man's country still".
Finally: Reality has little to do with Justice. It is, of course, an utter nonsense to declare that the Peace Process between Bougainville and PNG is endangered by this lawsuit. The guns are silent on Bougainville above all because the Bougainvilleans have won their war, closed the Panguna mine. For them this lawsuit has become an alternative, a peaceful means of continuing to press their claims. But - as Francis Ona, president of the Mekamui (Bougainville) National Congress - states:
"[Rio Tinto] CRA and the PNG government have joined forces.. to remove the lawsuit out of the US courts.. If they effectively influence the court's decision and the case gets thrown out of US jurisdiction it will amount to another total economic blockade of Bougainville.. Deliberately prolonging my people's suffering, increasing our plight.. will only tomorrow haunt .. PNG, in more ways than many people would like to imagine."
Opposition leader Sir Michael Somare questioned the government's interference, too, but Morauta - ironically (or hypocritically?) claiming to uphold the spirit of reconciliation - in fact decided to go on the attack in his answer in parliament last week (4th December). He named and threatened to sue 21 plaintiffs under a "Compensation (Prohibition of Foreign Proceedings) Act 1995" with imprisonment for up to 5 years, thus taking again a firm stand in favour of Rio Tinto. This act was designed to protect another mining giant - Australia's BHP - from being sued abroad (here: Victoria) for the vast destruction of life caused by their Ok Tedi mine.
Francis Ona's press release on the lawsuit "Unless we are freed, you are doomed" is now online - see Pacific Islands Report www.pidp.eastwestcenter.org/pireport/2001/November/11-29-25.htm (NB - this link no longer works).