Hagens Berman represented then-current and former residents of Bougainville, Papua New Guinea in a decade-long class-action lawsuit accusing one of the world’s largest mining companies, Rio Tinto, of egregious abuse of human rights and the environment. After reaching the U.S. Supreme Court, the firm’s steadfast fight ended in a dismissal.
WHAT’S THE ISSUE?
This environmental and human rights class-action lawsuit was filed Nov. 2, 2000, by a California resident who lived in Bougainville, Papua New Guinea (PNG) between 1973 and 1987, and 21 other individuals who continued to reside therein or elsewhere in PNG, seeking to represent Bougainvilleans who continued to be exposed to toxins resulting from the Panguna mine, individuals who lost property due to ongoing environmental contamination, and people injured or killed during the Bougainville conflict between 1989 and 1999. The lawsuit claimed London-based Rio Tinto, one of the world’s largest mining companies, engaged in a joint venture with the PNG government to maintain a copper mine on the island, which resulted in international environmental violations and crimes against humanity stemming from a military blockade motivated by civilian resistance to the mine.
LEGAL CLAIMS AGAINST RIO TINTO
Under the Alien Tort Claims Act, foreign nationals can bring suit in the United States against companies that violate international law. Plaintiffs sought damages for massive environmental destruction, human rights violations and for racial discrimination against the islanders.
The action alleged that Rio Tinto's conduct violated customary international law, including prohibitions against injury to life and health, and prohibitions against racial discrimination and war crimes. Rio Tinto's conduct allegedly violated the settled standards for the protection of human rights and the environment recognized by customary international law and United States legal precedent.
ABOUT RIO TINTO’S PAPUA NEW GUINEA MINE
Once Rio Tinto set foot on their land in 1960, the villagers witnessed almost an immediate sense of loss. Their health, environmental resources and livelihood were forsaken for corporate gain.
To build the mine, the lawsuit alleged Rio Tinto chemically defoliated, bulldozed and sliced off an entire mountainside of rainforest. During the years of the mine's operations, billions of tons of toxic mine waste was generated and dumped onto the land and into pristine waters, filling major rivers with tailings, polluting a major bay dozens of miles away, and the Pacific Ocean as well. The lawsuit stated that as a result of its flagrant disregard for the environment and the people of Bougainville, Rio Tinto dispossessed the people of Bougainville from their land, destroyed their culture and polluted their environment and lifestyle.
Rio Tinto allegedly destroyed previously pristine rivers and land that provided substance and a way of life for the native people and went to the heart of their local culture. The pollution is so extensive that plaintiffs and members of the class have been improperly exposed to toxic chemicals. In certain villages, the chemicals still remaining have caused the death and/or illness of residents.
BOUGAINVILLEANS REVOLT
Rio Tinto's actions on Bougainville were so egregious that they sparked an uprising designed to close the mine. When the uprising succeeded, Rio and the Papua New Guinea government brought troops in to reopen the mine. Rio Tinto provided transport for these troops.
After initial unsuccessful efforts, the PNG government, as the agent of or co-venturer of Rio Tinto and with the support and encouragement of Rio Tinto, instituted a military blockade of the island that lasted for almost ten years. The purpose of the military blockade was to coerce the Bougainville people into surrender so that the mine could be reopened. Both Rio Tinto and PNG made enormous profits from the mine and were eager for it to operate, notwithstanding the resistance of the island's people.
The blockade prevented medicine, clothing and other essential items from reaching the people of Bougainville. Hospitals were forced to close, women died needlessly in childbirth and young children died from easily preventable diseases. Rio Tinto's top manager on Bougainville encouraged continuation of the blockade for the purpose of "starving the bastards" out.
According to the Red Cross, the blockade killed more than 2,000 children in its first two years of operation. By the time the war ended in 1999, 10% of the population of Bougainville, approximately 15,000 civilians, were killed.
THE BOUGAINVILLE PEOPLE
Me’ekamui, the ‘Sacred Island’ of Bougainville is seen by its people as a natural, God-given inheritance to be willfully preserved from generation to generation. These indigenous people flourished here for thousands of years — thriving on the island’s rich resources of rain forested land and teeming rivers. Generations of Bougainvilleans built their culture into a productive self-sufficient economy.
Since time immemorial, land on Bougainville has been owned on a clan basis, being passed down from mother to daughter. Land boundaries are well known, and have been respected for thousands of years. According to custom, clans hold the rights to the land, the sky above and the earth below. Disrespecting this longtime custom, corporate greed bloodied the heart and soul of Bougainville with the construction of the Panguana mine.
HAGENS BERMAN’S DETERMINATION
Not every case succeeds despite the commitment of plaintiffs and counsel. In Sarei v. Rio Tinto, at the suggestion of Pacific War veterans, Hagens Berman represented citizens of Bougainville, Papua New Guinea under the Alien Tort Claims Act. The Bush Administration, as amicus, opposed the firm’s filing through two Ninth Circuit appeals, including two en banc arguments.
For more than a decade, the firm’s steadfast human rights attorneys prevailed. Then, in April 2013, the U.S. Supreme Court issued Kiobel v. Royal Dutch Petroleum Co., which largely closed the doors of American justice for plaintiffs alleging atrocities by foreign corporations abroad.
CASE TIMELINE
Following the Supreme Court’s decision, returning the case to the Ninth Circuit, the decade-long case came to an end on June 28, 2013, when the U.S. Appeals Court upheld the dismissal of the case against Rio Tinto.
Hagens Berman managing partner Steve Berman today commented on the Supreme Court’s order vacating the Ninth Circuit’s decision in Sarei v. Rio Tinto (No. 11-649). The case will now move back to the Ninth Circuit.
“The court’s decision is disappointing and a complete reversal of well-established precedent spanning several decades. But the battle isn’t over. We will continue to advance our case on behalf of our clients as we have for more than a decade. Like all civilized nations, the United States and its courts have long recognized the universal obligation to hold accountable those who commit the most deplorable human rights violations wherever they are committed. This was true before the Supreme Court’s decision and remains true today.”
On April 22, 2013, the U.S. Supreme Court issued its judgment on the case, ordering that the petition for a writ of certiorari be granted, vacated and remanded for further consideration in light of Kiobel v. Royal Dutch Petroleum. Justice Elena Kagan recused herself.
Plaintiffs’ brief follows the motion for leave to file amici brief filed by National Foreign Trade Council, et al. responding to defendants’ motion for the case to be heard by the U.S. Supreme Court.
Following the victory for plaintiffs in October, defendants requested the case be heard by the U.S. Supereme Court.
Residents of the island of Bougainville, who allege mining company Rio Tinto worked with the Papua New Guinea government to destroy their culture and commit genocide, won a major victory today when an appeals court ruled that their case may proceed in U.S. courts.
The court also ruled that the Alien Tort Statute does not preclude the charging of corporate defendants for genocide and war crimes. Rio Tinto had claimed that only individuals could be charged under the statute.
Judge Mary M. Schroeder, writing for the plurality, argued that “the implication that an actor may avoid liability merely by incorporating is inconsistent with the universal and absolute nature of the prohibition against genocide.”
The court’s order states, “This case is referred to Judge Edward Leavy to explore the possibility of mediation. Judge Leavy is requested to report to the en banc court within twenty-eight (28) days as to whether mediation should proceed or whether this case should be returned to the en banc court.” Steve Berman, counsel for the plaintiffs, said he'd never seen a ruling like the one issued Tuesday.
"Obviously, they're having a difficult time with the case, which is understandable. There are a lot of really complex issues," Berman said, adding that he looked forward to the possibility of resolving the matter.
Judge Margaret M. Morrow for the United States Court of Appeals again rejected arguments brought by Rio Tinto late last week, in a massive human rights claim brought by South Pacific islanders claiming the world’s largest mining company conspired with the government of Papua New Guinea in crimes against humanity and racial discrimination.
The United States Court of Appeals for the Ninth Circuit issued a ruling allowing a case against mining giant Rio Tinto to move forward. The case originally filled in 2000, claims the company conspired with the government of Papua New Guinea (PNG) to savagely quell civil resistance to an environmentally devastating mining operation, actions that led to the deaths of thousands on the island of Bougainville.
The latest ruling, by an en banc panel of 11 judges of the Ninth Circuit Court, is the latest in a long litany of challenges and objections filed by the mining giant. Earlier this year, the Court of Appeals ruled against Rio Tinto, reinstating the claims against the company.
"We are extraordinarily pleased with this latest victory and that we are back in court seeking justice for our clients," said Steve Berman, attorney for the Bougainville islanders and managing partner of Hagens Berman Sobol Shapiro, based in Seattle.
The en banc panel ruled in favor of the villagers and left untouched the majority of the previous courts’ rulings and findings. It also ruled the District Court should determine whether the question of 'exhaustion'— whether the plaintiffs could or should seek judicial remedy in PNG — was fully considered.
"We are very confident that we will be able to successfully address the exhaustion issue, and begin to prepare for trial," Berman added.
Filed under the Alien Tort Claims Act, foreign nationals can bring suit in the U.S. against companies that violate international law. Rio Tinto is the parent company of subsidiary U.S. Borax Inc., headquartered in Los Angeles.
The Ninth Circuit Court of Appeals today reinstated the massive human rights claim brought by the people of the island of Bougainville against London-based Rio Tinto, one of the world’s largest mining companies.
The ruling remands the case to U.S. District Court in San Francisco and could have broad implications for other groups seeking redress from crimes committed during wartime by private companies acting in concert with local governments. It also states that Rio Tinto could be held liable for actions by the PNG government if the company’s involvement is proven.
A US District Court dismissed the suit, siding with the US State Department’s opinion that the case could not be heard in US courts, a decision that was appealed by the plaintiffs.
In today’s ruling, Court of Appeals dismissed Rio Tinto’s arguments that the case should not be heard in the U.S. Court System, and the U.S. State Department, which argued the case could interfere with the ongoing peace process on the island.
Dateline, a news show in Australia, recently featured Bougainville, the site of Rio Tinto's mining operation. The video, “Blood and Treasure,” can be viewed here.
Defendants filed a motion to dismiss, asserting that the court lacks subject matter jurisdiction because plaintiffs fail to state a cognizable claim under the Alien Torts Claim Act.
