US Appeal Court revives Bougainville challenge against Rio Tinto

27 10 2011

Updated October 27, 2011 09:19:53

A lawsuit filed by Bougainville residents against mining company, Rio Tinto is set to be revived.

A U-S federal Appeals Court has reversed a decision to throw out the lawsuit which alleges the mining company aided the PNG government in genocide and war crimes.

The lawsuit was filed in 2002, 13-years after the mining company’s activities prompted a civil war in Bougainville.

Presenter:Geraldine Coutts
Speaker:Steve Berman, attorney for the Bougainville land owners

BERMAN: Well the ninth-circuit court of appeals agreed that the case could go forward allegedly that Rio Tinto was involved in the commission of war crimes and genocide, which are two international law recognised claims that are universal to all countries.

COUTTS: Well what will you be asking for in this suit?

BERMAN: We’re going to be asking for compensation to the ten-thousand or more people who are injured or killed during the uprising.

COUTTS: How many people does that involve, how many people are you actually representing?

BERMAN: Well it’s a proposed class action in the United States and in a class action you only need to name a few, the idea is you don’t want to bog the courts down with thousands of claims at once. So you have a few people represent the interests of class and the class in this case we think is about ten to 14-thousand people.

COUTTS: Will you be getting testimony, because these are serious charges, genocide and all the other charges you’ve just listed, will you be getting personal testimony to back that up?

BERMAN: Yes we already have some, we have affidavits from the former commander in chief and from a former prime minister that they were directed by Rio Tinto to take whatever steps were necessary, including violence and killing, to re-open the mine and they gave some details on that. But now we’re going to go and start getting the records and show in our view that Rio Tinto financed the helicopters and troop carriers and communications devices, and the means that the government used to try to suppress the uprising.

COUTTS: And it also includes racial discimination and crimes against humanity all lumped in together?

BERMAN: Well the court dismissed the racial discrimination and crimes against humanity claims, but the racial discimination claims kind of still falls within the genocide claims, so there’s not really a loss there.

COUTTS: Can you just explain the point of that particular aspect of the case?

BERMAN: Well the court found that racial discrimination under American law, the alien torch statute, someone can sue for a violation of international law, and the Supreme Court recently said those violations have to be laws that every nation, every civilised nation recognises. And believe it or not the court found that not all civilised nations recognise racial discrimination as a violation of the law. So they threw out the racial discrimination claim, on the other hand they said we did allege enough to suggest that the mining company looked at the Bougainvilleans as a separate people who they had no compunction or were not worried about polluting their environment, ruining their lifestyle, ruining their property and physically maiming them, and that was enough to state a claim.

COUTTS: And some dissenting judges have protested against allowing a lawsuit to proceed in the federal courts brought by non-US residents against a non-US company. That is an interesting point?

BERMAN: Well the mining company raised an issue as had other corporations that have been sued under this law that says the US should not be adjudicating claims against foreign companies where the acts take place for example, in this case they took place in Bougainville. But other courts, and the majority in this case said statute speaks very broadly and if you can get jurisdiction over the defendant, in this case Rio in the United States, then you’re entitled to bring the case here. And the historical notion we believe that underlies the law dates all the way back to piracy where a court, in that case piracy, which is what the act was passed to in part address, the idea was that someone commits a tort anywhere in the world, piracy is a universally condemned tort, if you catch that person in the United States you can sue them for that even if it occurred somewhere else, and that’s what’s happening here. And Rio Tinto has a huge presence in the United States, over 47 per cent of their assets or revenues are derived from North America, so the court found we had jurisdiction over them here and that’s why we’re sueing them in the United States.

COUTTS: And is part of the claim too, because there’s been talk of mining beginning again in Bougainville, are you taking any action against that happening?

BERMAN: We’re not, that’s not part of the case. But I’m told by my clients that Rio is trying to re-open the mine and there’s a pretty strong viewpoint, many people in the Bougainville area that Rio cannot and should not be permitted to re-open the mine until they address and redress the wrongdoing that they committed years ago.

COUTTS: I.E. this court case?

BERMAN: Right, I mean the mine is hugely valuable, copper prices have gone up and it’s a scarce resource and it was the world’s largest copper mine, still a lot of copper out there, it’s a valuable asset and they want it, but I don’t think they’re going to get it unless they remedy the wrongs that they’ve committed.

COUTTS: When do you think you’ll get this case before the courts?

BERMAN: Well now we’re going to go back down to the trial court and ask for discovery taking their testimony to proceed, I suspect that Rio’s going to ask the US Supreme Court to hear this case.

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