Rio Tinto lawsuit (re Papua New Guinea)

Rio Tinto Rally PNG By: PNG Mine Watch Residents of the island of Bougainville in Papua New Guinea (PNG) filed suit against Rio Tinto under the Alien Tort Claims Act in US federal court in 2000.  The plaintiffs allege that:

  • Rio Tinto was complicit in war crimes and crimes against humanity committed by the PNG army during a secessionist conflict on Bougainville;
  • environmental impacts from Rio Tinto’s Panguna mine on Bougainville harmed their health in violation of international law; and
  • Rio Tinto engaged in racial discrimination against its black workers at Panguna. 

Specifically, the plaintiffs allege that improperly dumped waste rock and tailings from the Panguna mining operations harmed the island’s environment and the health of its residents.  They allege that Rio Tinto engaged in racially discriminatory labour practices at the mine by paying local black workers lower wages than white workers and by housing black workers in poor conditions.  In 1988, residents from the Panguna region began protesting Rio Tinto’s labour and hiring practices as well as the environmental harm caused by the mine; eventually these protests escalated and some became violent.  The PNG Government responded to this uprising with an attack against civilians.  A decade-long civil war followed (1989-99), in which Bougainville sought independence from PNG and during which the plaintiffs allege that Rio Tinto was complicit in war crimes and crimes against humanity by the PNG army.  

Rio Tinto sought dismissal of the case, which the district court granted in 2002. Rio Tinto argued to the trial court that the case raised questions that are “nonjusticiable” (not appropriate for resolution by a US court) because they involve acts of state and political questions, and because ruling on them would breach standards of international comity.  (More information on these three doctrines is available here.)   The trial court agreed, relying in part on a letter from the US State Department favouring dismissal.  The plaintiffs subsequently appealed.  In August of 2006, the US Court of Appeals overturned the dismissal; a three-judge panel of the US Court of Appeals rehearing the case confirmed the reversal of the lower court’s dismissal in April 2007.  The US Court of Appeals, in August of 2007, granted Rio Tinto a rehearing en banc with a full panel of 11 judges.  In December 2008, the Court of Appeals decided to remand the case back to the district court for the lower court to determine whether the plaintiffs were required to exhaust the remedies in their home country prior to filing the lawsuit in the US.  After another rehearing en banc before the court of appeals, on 26 October 2010 the court referred the case to another judge to explore the possibility of mediation.  One appeals court judge dissented from this order arguing that it was inappropriate to for the court to consider mediation before it determines whether it has jurisdiction over the case.  On 25 October 2011, the Court of Appeals reversed the lower court's dismissal of the case.  The court upheld the dismissal of the claims regarding racial discrimination and crimes against humanity, but it reversed on the plaintiffs' claims regarding genocide and war crimes.  The case was supposed to return to the district court for further proceedings on the genocide and war crimes claims.  However, following the US Supreme Court's ruling in the Kiobel v. Shell case, the Supreme Court vacated the October 2011 appeals court ruling, and ordered the appeals court to reconsider the case light of the Kiobel decision.   On 28 June 2013 the appeals court upheld the dismissal of the case, citing the Supreme Court's reasoning against the extraterritorial application of the Alien Tort Claims Act.

- "Rio Tinto wins end to human rights abuse lawsuit in U.S.", Jonathan Stempel, Reuters, 29 Jun 2013
- "Court reinforces multi-national decision", UPI, 22 Apr 2013
- "U.S. court revives human rights case vs Rio Tinto", Jonathan Stempel, Reuters, 25 Oct 2011
- "9th Circuit Orders Mediation in Rio Tinto Alien Tort Case", Ginny LaRoe, Recorder [USA], 28 Oct 2010
- "US court hears suit over Rio Tinto Papua NG mine", Dan Levine, Reuters, 21 Sep 2010
- “Rio Tinto Wins Review of Ruling on Papua New Guinea Claims”, Karen Gullo, Bloomberg.com, 20 Aug 2007
- “Islanders Win Appeal in Claim Against Rio Tinto”, Steve James, Reuters, 7 Aug 2006
- “Rio Tinto Court Case”, Unrepresented Nations and Peoples Organization, 30 Jul 2002
- “Australia Tries to Thwart Bougainville Class Action”, Greg Roberts, Sydney Morning Herald, 23 Mar 2002
- “Islanders Sue in US Over Impact of Rio Tinto Mine”, David Pallister, Guardian [UK], 8 Sep 2000

- Rio Tinto: [PDF] Human Rights Guidance, Oct 2003
- Hagens Berman Sobol Shapiro LLP (plaintiffs’ counsel):
    - Rio Tinto Litigation 
    - Plaintiffs Celebrate as Rio Tinto Loses Important Battle in Human Rights Case, 3 Aug 2009
    - U.S. Court of Appeals Again Sides with Plaintiffs in Rio Tinto Alien Tort Claims Case, 16 Apr 2007  

- US Court of Appeals for the Ninth Circuit: [PDF] Sarei, et al. v. Rio Tinto plc - Order, 28 Jun 2013
- US Court of Appeals for the Ninth Circuit: [PDF] Sarei, et al. v. Rio Tinto plc - Opinion, 25 Oct 2011
- US Court of Appeals for the Ninth Circuit: [PDF] Sarei v. Rio Tinto, 26 Oct 2010 [order referring case to judge to explore possibility of mediation]
- US District Court for the Central District of California: [PDF] Sarei v. Rio Tinto - Order Re Prudential Exhaustion, 31 Jul 2009
- US Court of Appeals for the Ninth Circuit: [PDF] Sarei v. Rio Tinto, 16 Dec 2008 [remanding to district court on exhaustion issue]
- US Court of Appeals for the Ninth Circuit: [PDF] Sarei v. Rio Tinto, 12 Apr 2007 [rehearing]
- US Court of Appeals for the Ninth Circuit: [PDF] Sarei v. Rio Tinto, 8 Aug 2006
- US District Court for the Central District of California:[PDF] Amended Order Granting Defendants' Motion to Dismiss, 09 Jul 2002 

- US State Department: [PDF] Letter re Sarei v. Rio Tinto, 31 Oct 2001 
- Govt. of Papua New Guinea: [PDF] Statement on Class Action Lawsuit by Some Bougainvilleans Against Rio Tinto, 18 Oct 2001

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Article
2 February 2012

Will Alien Tort Case be the Next Citizens United? [USA]

Author: Marcia Coyle, Corporate Counsel [USA]

The next Citizens United…may have nothing to do with campaign finance or the First Amendment…Kiobel v. Royal Dutch Petroleum..., involves the Alien Tort Statute (ATS)…Katherine Gallagher of the Center for Constitutional Rights...[said], "Citizens United recognized rights of corporations. It's important in this case that we're also discussing obligations of corporations..."...In Kiobel…[2nd Circuit] judges concluded that “although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation”...Gallagher...[said,] “The question of whether the ATS…give some kind of safe harbor or immunity to corporations is at play here. Why is it that they would possibly be immune when Sosa [v. Alvarez-Machain] clearly set out that the...[ATS] grants jurisdiction over this small class of egregious conduct? This is a moment in the post-Sosa era that we’ve all known is coming and here it is.”[also refers to Rio Tinto]

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Article
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Author: Francisco Javier Zamora Cabot, Universidad Jaume I de Castellón

Vinculándose con diversas iniciativas de las Naciones Unidas respecto de las empresas multinacionales y los DD.HH…[el Informe…Guiding Principles on Business and Human Rights]…enfatiza la obligación de…proveer el acceso a…reparación…haciéndose patente cómo los avances en los derechos internos deben acompasarse...de…mecanismos de investigación, sanción y reparación…[L]os EE.UU.…parecen encontrarse ante un punto de inflexión a este respecto…El ATCA…se aplicaba sin suscitar excesivos rechazos, hasta que empezaron a caer bajo su dominio las empresas multinacionales…[E]l caso Kiobel…podría ser...un verdadero paso atrás que debería ser corregido…[P]aso ya a presentar algunos de los casos de violaciones de los Derechos Humanos imputados a las empresas del sector y País citados…[Se refiere a Anvil Mining, Barrick Gold, Chiquita, Drummond, Hudbay Minerals, Infinito Gold, Jeppensen (part of Boeing), Pacific Rim Mining, Pfizer, Porgera (joint venture Barrick Gold, Emperor Gold Mines, Mineral Resources Enga), Rio Tinto, Shell, Talisman, Texaco (part of Chevron)]

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Article
31 December 2011

[PDF] Corporate Liability of Energy/Natural Resources Companies at National Law for Breach of International Human Rights Norms

Author: Oliver Salas

While there are established rules to invoke the liability of States for their breach of international law obligations, there is no equivalent to hold corporations liable for violating human rights norms...[T]he lack of obvious international remedies for human rights abuse committed by corporations, means that corporate activities remain largely governed by national law...The lack of specific fora to bring human rights claims against corporations also means that liability for breach of international human rights norms is essentially a matter for national courts to deal with...This paper evaluates the challenges posed to domestic judicial mechanisms to address corporate liability of NRCs for their alleged violation of international human rights norms. [refers to BP, Chevron, Dow Chemical, Occidental Petroleum, Rio Tinto, Talisman, Trafigura Beheer, Union Carbide, Unocal]

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Article
31 December 2011

[PDF] Final report: Intl. civil litigation for human rights violations

Author: Intl. Civil Litigation and the Interest of the Public, Intl. Law Association

The draft resolution proposed by the Committee for adoption by the full house of the International Law Association is aimed at proposing Guidelines or best practices to address the private international law issues which often face national courts when they are confronted with international civil litigation for human rights violations...ongoing discussions in the context of the UN on concrete steps to implement the UN Guiding Principles in international cases, may certainly benefit from the Guidelines presently proposed by this Committee...State courts are merely encouraged to take into consideration the Guidelines whenever they are seized of a matter dealing with civil actions arising out of the violation of human rights, and to interpret their national law in conformity with the Guidelines, as far as possible. State legislators are also encouraged, whenever possible, to ensure that existing national rules are consistent with the Guidelines. [refers to Daimler, Shell, Goodyear Dunlop Tires, Anvil Mining (part of China Minmetals)]

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Article
19 November 2011

Mining and American Indians Still Don’t Mix

Author: Raúl M. Grijalva, Indian Country

Resolution Copper has proposed to exchange 4,500 acres of land in northern Arizona for the 3,000 federally owned acres it wants to mine. The land the company wants includes not only Oak Flat Campground, a protected site since 1955, but the nearby Apache Leap area sacred to the San Carlos Apache Tribe. Once you take a good look, it’s not even a good deal on paper. Current mining law says the public would receive no royalties on the estimated 1.6 billion tons of copper the company would extract and sell...In reality, it’s all about profits for a handful of uranium mining companies that don’t hire local labor, don’t keep their profits in the state (or in some cases the country) and don’t sell their product domestically...[W]hich is why I introduced the RESPECT Act in this Congress to ensure that we require nation-to-nation consultation and signoff prior to any land trade impacting Native American nations or filing a bill in Congress to process those trades...Tribes should be an integral part of the decision-making process whenever federal activities could affect tribal life...[also refers to Denison Mines, Rio Tinto, BHP Billiton]

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Article
24 October 2011

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

Author: Jonathan Stempel, Reuters

A U.S. federal appeals court has revived a lawsuit accusing Rio Tinto Plc of human rights violations related to Papua New Guinea, where it once ran one of the world's largest copper and gold mines. A divided 9th U.S. Circuit Court of Appeals…reversed on Tuesday 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…case was brought on behalf of about 10,000 current and former residents of the island of Bougainville, arising from Rio Tinto's operations and an uprising in the late 1980s that led to the use of military force and many deaths…Tony Shaffer, a Rio Tinto spokesman, declined to comment.

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Article
31 August 2011

[PDF] The Alien Tort Claims Act and Trans-Boundary Corporate Environmental Abuse: A Case Study of the Gulf Oil Spill

Author: Haley St. Denis, Yale Journal of International Affairs

The Alien Tort Claims Act (ATCA) is a U.S. statute enabling aliens to sue in American civil courts for certain egregious human rights violations. It has come to be the tool wielded for most international human rights litigation against corporations. This article explores the potential ATCA liability resulting from corporate trans-boundary environmental abuse through consideration of BP and the 2010 Gulf oil spill. This hypothetical “case” demonstrates that though an ATCA claim against BP would likely fail based on the ultimate concentration of damage to U.S. territory, had the damage primarily hit foreign waters, shores and communities, the prospects of bringing an ATCA claim are real and present. Further, the symbolic repercussions of such a claim could develop both international law and industrial standards.

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Article
10 August 2011

Supreme Court May Consider Whether Companies Can Be Sued Over Human Rights [USA]

Author: Lawrence Hurley, Greenwire blog, New York Times

Recent court rulings on the question of whether oil companies and other multinationals can be sued in U.S. courts for alleged human rights violations overseas has made the issue ripe for Supreme Court intervention...Although it is notoriously tough to predict whether the high court will take a case, the chances appear reasonably high in large part because there is a split within the federal appeals court on the issue. There is also the possibility that the court could pass on Kiobel but then take up one of the other cases at a later date. "Although it's not clear which of the individual cases the court will review, it seems to be virtually certain that the justices will take up this question within the next two terms," said Supreme Court expert Tom Goldstein of the Goldstein, Howe & Russell law firm...Attorneys for the corporate defendants dispute whether the 11th Circuit has really tackled the question head-on. They also have high hopes that the D.C. Circuit will reverse itself after the en banc rehearing...

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Article
27 October 2010

9th Circuit Orders Mediation in Rio Tinto Alien Tort Case

Author: Ginny LaRoe, Recorder [USA]

Nearly a decade into a court battle involving a foreign company and its alleged role in spurring civil war in a South Pacific country, the 9th U.S. Circuit Court of Appeals is suggesting mediation…The mediation directive prompted a scorching dissent from Judge Andrew Kleinfeld, who argued the court probably doesn't have jurisdiction, that mediation may not serve justice, and that such talks could reignite violence in a region by upsetting a compromise between the Papua New Guinean government and the Region of Bougainville… The proposed class action in Sarei v. Rio Tinto, 02-56256, was filed on behalf of some 10,000 people who say they suffered from violence, threats of violence and pollution from Rio Tinto's copper mining in Bougainville.

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Article
7 October 2010

Shortening the Long Arm of the Law [USA]

Author: [opinion] John B. Bellinger III, former US State Dept. legal advisor, New York Times

For more than a decade, dozens of multinational corporations have been sued in federal courts in the United States for alleged human rights violations under the...Alien Tort Statute. Now these suits may be over. In August...[the New York-based Second Circuit Court of Appeals] ruled that corporations may not be held liable for violations of international law...If the Supreme Court upholds the decision, it will remove an effective weapon for human rights groups to force changes in the behavior of multinational corporations...[and] the impact of their activities on local populations and the environment...Even...[without] the threat of lawsuits under the Alien Tort Statute, [corporations] should ensure that their international operations...comport with accepted human rights principles. [refers to Shell, ExxonMobil, Chevron, Talisman Energy, Rio Tinto, Coca Cola, Pfizer, Caterpillar, Yahoo]

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