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Lawsuit

15 Sep 2017

Newmont Mining lawsuit (re indigenous rights in Peru, filed in USA)

Status: ONGOING

Date lawsuit was filed
15 Sep 2017
Unknown
Location of Filing: United States of America
Location of Incident: Peru

Companies

Sources

Snapshot: In October 2017, Máxima Acuña de Chaupe and her indigenous farming family filed a complaint against Newmont Mining in the US. The plaintiffs allege that security forces of Minera Yanacocha (in which Newmont has a majority stake) have harassed, assaulted, and threatened to evict them over a land dispute in Peru since 2011. The company has argued that the case should be heard in Peru and US courts agreed that Peru was the convenient forum. The case, Máxima Acuña-Atalaya, et al. v. Newmont Mining Corporation, et al., is ongoing.

Factual background

Minera Yanacocha, is a gold mining company, that is majority owned by Newmont Mining, an American company incorporated in the state of Delaware (in joint venture with the Peruvian Compañía de Minas Buenaventura). The Chaupe family, led by matriarch Máxima Acuña-Atalaya (the plaintiff), are indigenous subsistence farmers in the rural region of Sorochuco, Cajamarca, Peru. Since 2011, the company and Chaupe family have been in conflict over land use. The Chaupes allege that Newmont plans to construct the Conga mine project expansion on their land, known as Tragadero Grande and that they never gave consent to sell their plot of land, and will not move from their land . According to yhe family Yanacocha has sent security and police forces to systematically threaten, intimidate, and physically attack them, and has destroyed their property and possessions. Yanacocha asserts that they purchased Tragadero Grande as part of a package deal with a large portion of land from the Sorochuco community in 1994, and that their removal actions are a peaceful defence of their land possession. maintain

Since 2011 the parties have engaged in a series of lawsuits and publicised disputes between the two parties. In 2011, Yanacocha sued Acuña-Atalaya and her family for aggravated encroachment on company land. In 2017, the Supreme Court of Justice of Peru acquitted Acuña-Atalaya and others of the criminal charges. In 2011, Yanacocha filed two civil claims regarding ownership of the disputed land in Peruvian courts that are still pending resolution. In 2014, the Chaupes became beneficiaries of precautionary measures granted by the Inter-American Commission on Human Rights (IACHR); however, the Peruvian State has yet to take protective actions in accordance with this ruling. In 2016, Máxima Acuña-Atalaya received the Goldman Prize for “defending her right to live peacefully on her property.”

In 2017, Acuña-Atalaya brought the dispute to the US, filing a civil petition with the District Court for the District of Delaware (which is the focus of this Lawsuit Profile).

A detailed timeline of various legal proceedings and related events, is available here.

Legal argument

In September 2017, Máxima Acuña-Atalaya and her family sued Newmont Mining in the US for damages and equitable relief, to stop the alleged harassment and physical and psychological abuse they have suffered by the security personnel hired by Newmont. They allege that Newmont (which has a majority stake in Minera Yanacocha), has intimidated and harassed them in an effort to forcibly remove the family from their land. The plaintiff argues that for corruption related reason a fair trial is not possible in Peru and the lawsuit therefore needs to be filed in the US . She also asserts that Newmont has influence over the Peruvian Government and its judiciary, citing evidence of past attempts by the company to corrupt the courts.

In response, Newmont used the legal doctrine of forum non conveniens. This doctrine asserts that even when the venue and jurisdiction of a case is correct, federal courts may decline cases because an alternative forum is better-suited or more convenient for trying the case. Newmont argues that Peru is more convenient for taking witness statements and collecting evidence, and has recently enacted judicial anti-corruption reforms, which make the location sufficiently “adequate” under forum non conveniens requirements. Finally, the company points to Acuña-Atalaya’s successes in Peruvian court against Yanacocha in the past, arguing that this undercuts the claim that the family would be unable to receive a fair trial in Peru.

Legal proceeding

On 15 September 2017, the plaintffs represented by EarthRights International, filed a complaint against Newmont Mining in the US District Court for the District of Delaware. On 16 October 2017, Newmont filed a Motion to Dismiss on the Grounds of Forum Non Conveniens. On 10 March 2020, the Federal District Court granted Newmont’s motion, thus dismissing the case, and ruling that it should be heard in Peru. However, the court has stipulated certain conditions: a Peruvian court must accept jurisdiction over the case, and the company must show that the judicial system in Peru is adequate to apply “Delaware’s standards for the recognition of foreign-country judgments”.

In 2019, the Court of Appeals for the Third Circuit requested the District Court to re-evaluate whether Peru is an adequate alternative forum in light of an ongoing judicial corruption crisis in the country. On 20 March 2020, the District Court found that Peru was an adequate alternative forum. On 15 June 2020, the plaintiff appealed to the Court of Appeals for the Third Circuit.

On 11 December 2020, the Court of Appeals for the Third Circuit affirmed the lower’s court dismissal of the case and that it should be heard in Peru, which makes it an appropriate forum due to ongoing corruption reforms.

On 8 July 2021, the plaintiff petitioned the US Supreme Court to hear the case.

On 8 November 2021, the US Supreme Court denied the plaintiff”s petition to hear the case. However, the original District Court dismissal is without prejudice, meaning that it is possible for the case to still be heard in the US if Peruvian courts do not fairly try the case or Newmont does not follow the conditions of the dismissal (see above).

News Items

Peruvian Supreme Court acquits Máxima Acuña in case brought by mining company Yanacocha, Mongabay News, 8 May 2017

Case History: Máxima Acuña de Chaupe, Front Line Defenders, May 2017

Tragadero Grande: Land, human rights, and international standards in the conflict between the Chaupe family and Minera Yanacocha Report of the Independent Fact Finding Mission, Resolve, 4 October 2016

Newmont Responds to Independent Report on Land Dispute in Peru, Newmont, 4 October 2016

Yanacocha Independent Fact Finding Mission, Resolve, 4 October 2016

Peru: Independent fact-finding mission’s report on Newmont’s Yanacocha conflict with Chaupe family asks the company to provide steps to reach agreement, Business and Human Rights Resource Center, 4 October 2016

Peruvian farmer wins David-and-Goliath battle against US mining giant, The Guardian, 21 April 2016

Introducing the 2016 Goldman Prize Winners, Goldman Environmental Foundation, 17 April 2016

Key Company Documents

Chaupe Family Land Dispute, Newmont (Newmont’s dedicated page about the case)

Chaupe Land Dispute Information Update: July 2021, Newmont, 14 July 2021

Chaupe Land Dispute Information Update: February 2021, Newmont, 2 February 2021

Celendín Prosecutor’s Resolution Regarding Alleged Gun Shots, Newmont, 11 July 2016

Police Report Regarding Alleged Gun Shots, Newmont, 2 May 2016

Chaupe Family Dispute Fact Sheet, Newmont, 2015

Response to Business and Human Rights Resource Center, Newmont, 25 May 2015

Company Video on Chaupe Family Dispute, Newmont, 9 January 2015

Earth Rights International (Counsel for the plaintiffs)

Scotus Denies Maxima Acuña Atalaya and Family’s Petition to Hear their Case, 12 November 2021

Peruvian Environmental Defenders Take their Fight to the U.S. Supreme Court, 9 July 2021

Maxima Acuña-Atalaya v. Newmont Mining Corp. Case Summary and Timeline, 2020

US Federal Appeals Court rules that Maxima Acuña Atalay’s case against Newmont Mining Corporation should be heard in Peru, 14 Dec 2020

Key Court Documents

Petition Denied (U.S. Supreme Court), 8 November 2021

Brief of Respondents Newmont Mining Corporation (U.S. Supreme Court), 1 October 2021

Petition for writ of certiorari (U.S. Supreme Court), 8 July 2021

Opinion Affirming District Court’s Order Dismissing Plaintiff’s Complaint (3rd Circuit Court of Appeals), 11 December 2020

Brief for Defendant/Appellees (3rd Circuit Court of Appeals), 29 July 2020

Opening Brief for Plaintiffs/Appellants (3rd Circuit Court of Appeals), 15 June 2020

Order Granting Motion to Dismiss on Grounds of Forum Non Conveniens (District Court of Delaware), 10 March 2020

Defendant’s Brief in Support of Their Motion to Dismiss on the Grounds of Forum Non Conveniens (District Court of Delaware), 16 October 2017

Complaint for Damages and Equitable Relief (District Court of Delaware), 15 September 2017

Demanda de inconstitucionalidad interpuesta por el Fiscal de la Nación contra la Ordenanza Regional de Cajamarca que declara inviable la ejecución del Proyecto Minero Conga, 17 April 2012

Timeline