MAC/20: Mines and Communities

Bougainville case against Rio Tinto set for US hearing

Published by MAC on 2006-08-09


Bougainville case against Rio Tinto set for US hearing

9th August 2006

Postcourier

BOUGAINVILLE'S multi-million kina landmark case against mining giant Rio Tinto has been re-instated and may be heard in the United States. The Ninth Circuit Court of Appeals case accusing the London-based mining concern of genocide and environmental damage was withdrawn by Judge Margaret Morrow in California in 2003. Hagens Berman re-argued and re-submitted the case in San Francisco in June 2005 and this week Steve Berman of Hagens Berman and Sobol Shapiro lawyer representing the Bougainvilleans filed again before Circuit Judges Raymond Fisher and Jay Bybee and District Judge James Mahan.

A three-judge panel, ruling 2-1, said on Monday it was "leaving it to Congress or the Supreme Court, to take the next step, if warranted." But Mr Berman told the Post-Courier from Seattle, Washington the case will return to the district court in 30 days, which is September 16. He said in San Francisco on Monday he first filed in 2000 representing Bougainvilleans exposed to toxins resulting from the Panguna copper mine, people who lost property due to environmental contamination, and people injured or killed during the Bougainville conflict between 1989 and 1999.

The suit claims London-based Rio Tinto conspired with the Government of Papua New Guinea to quell civil resistance to an environmentally devastating copper mining operation, actions that led to the deaths of thousands. "We will return to the district court where we will begin taking evidence in 30 days time," Mr Berman told the Post-Courier. " I am deeply gratified the Court had seen fit to allow the people of Bougainville their day in court in the United States."

But Rio Tinto may try to appeal to the US Supreme Court. Rio Tinto told the Post-Courier the company was reviewing the decision and considering its options. "If the matter ever gets to trial, Rio Tinto will show that the accusations against it are untrue. Rio Tinto expects that if it ever does get to trial it will be many years before the case is finally heard," Rio Tinto said. The matter has no connection with the United States and it should be heard in Papua New Guinea.

The U.S State Department had previously taken the position that the case would risk affecting U.S foreign policy interests, but the Court of Appeals decided not to defer to that position.


Bougainville: Islanders Win Court Appeal

By Steve James, NEW YORK, (Reuters)

7th August 2006

A U.S. appeals court on Monday reinstated a human rights claim brought by Bougainville islanders in Papua New Guinea against international mining giant Rio Tinto Plc.

The Ninth Circuit Court of Appeals in San Francisco ruled the case may be heard in the United States. A U.S. District Court had dismissed the suit, siding with the State Department that the case could not be heard in U.S. courts.

There was no immediate comment from Rio Tinto and a State Department official said it had no comment until it looked into the ruling.

The suit claims that London-based Rio Tinto conspired with the government of Papua New Guinea to quell civil resistance to an environmentally devastating copper mining operation, actions that led to the deaths of thousands.

The State Department argued the case could interfere with the peace process on Bougainville, which is the largest of the North Solomon islands and is part of Papua New Guinea, off the northeast coast of Australia.

The ruling remands the case to U.S. District Court in San Francisco, and says Rio Tinto could be held liable for actions by the PNG government if the company's involvement is proven.

The suit was filed in 2000 and seeks to represent Bougainvilleans exposed to toxins resulting from the Panguna copper mine, people who lost property due to environmental contamination, and people injured or killed during the Bougainville conflict between 1989 and 1999.

Under the Alien Tort Claims Act, foreign nationals can bring suit in the United States against companies that violate international law. Rio Tinto's subsidiary, U.S. Borax Inc., has headquarters in Los Angeles.

The Panguna mine and the political events that erupted since the mine was established are at the core of the case. Between 1969 and 1972, the Australian Colonial Administration leased land on the island to Bougainville Copper Limited (BCL), a subsidiary of Rio Tinto. The suit claims that landowners unsuccessfully resisted intrusion onto their land, and many Bougainvilleans were forced to move or flee the island.

According to the suit, Rio Tinto destroyed villages, razed the rain forest, sliced off a hillside and established the world's largest open-pit mine. The mine excavated 300,000 tons of ore and water every day between 1972 and 1988.

The suit alleges that Rio Tinto improperly dumped waste rock and tailings, emitting chemical and air pollutants. The waste destroyed local fish stock, it alleges.

The Bougainville people -- especially children -- began dying more frequently from upper respiratory infections, asthma and tuberculosis, the suit states.

According to the complaint, in 1990 * villagers started an uprising which closed the mine, and in response, Rio Tinto and the Papua New Guinea government brought troops in to reopen it. The complaint alleges that Rio Tinto provided transport for the troops and played a role in instituting a military blockade of the island that lasted for almost 10 years.

[* editorial note: it was in fact in 1989 that the mine was closed by Rio Tinto.]


Ninth Defies State Department, Allows New Guinea Tort Suit to Proceed

7th August 2006

The Alien Tort Claims Act gives the federal courts jurisdiction over certain torts committed in other countries. Here, the plaintiffs are current and former residents of Papua New Guinea, who allege that the British-based Rio Tinto Mining Company polluted their land, discriminated against their people, and then pressured their government to engage in a violent repression that led to ten years of civil war.

After the plaintiffs filed suit, the U.S. State Department urged the district court to dismiss the action, claiming that it could have a "very grave" effect on international relations. The district court obliged, but a divided Ninth Circuit panel reverses. In a lengthy opinion, the majority addresses and rejects several arguments against justiciability. The majority also rejects the defendants' argument that the plaintiffs must first attempt to exhaust their claims in New Guinea. The ATCA does not contain an exhaustion requirement, so it is up to Congress or the Supreme Court to create one. Judge Bybee dissents, arguing that the ATCA requires exhaustion.

http://appellatedecisions.blogspot.com/2006/08/ninth-defies-state-department-allows.html#links

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