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
5 December 2014

Access to justice for victims of human rights abuses needs to be strengthened

Author: Sif Thorgeirsson, Manager, Corporate Legal Accountability Project, Business & Human Rights Resource Centre

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts.  Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto,  Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

Read the full post here

Company response
9 April 2014

Rio Tinto's response

Author: Rio Tinto

On June 28 2013 the 9th US Circuit Court of Appeals dismissed the 13-year-old US class action against Rio Tinto. Rio Tinto always maintained the allegations were without foundation and welcomed the…decision. Rio Tinto’s dialogue with the UK Government on this issue was not focused on the merits of the claims…Rio Tinto is supportive of the UK’s implementation of the UN Guiding Principles on Business and Human Rights (UNGPs)…

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Article
8 April 2014

Documents reveal extent of Shell and Rio Tinto lobbying in human rights case [UK]

Author: Owen Bowcott, Guardian (UK)

The extent of lobbying conducted by Shell and Rio Tinto in seeking legal support from the UK government to dismiss allegations of human rights abuses has been revealed…The documents relate to two…court cases against the firms at the US supreme court over alleged complicity in mistreatment of protesters and people who lived near extraction operations…Shell and Rio Tinto approached the Foreign Office…seeking UK government backing…The FCO initially intervened at the US supreme court with a legal brief supporting Shell…The FCO then added a second, neutral brief…Responding to the claims, the FCO said: "The UK intervened in this case to clarify our position on the proper limits of the extraterritorial application of US law….”…A Shell spokesman said: "Shell companies have the right and the responsibility to  make our position known to governments on any matters which affect us…”… Rio Tinto declined to comment on the documents.

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Company response
7 April 2014

Shell’s response to UK Foreign Office documents revealing Shell & Rio Tinto sought support from UK Govt. in US lawsuits alleging human rights abuses

Author: Shell

Shell companies have the right and the responsibility to make our position known to governments on any matters which affect us.

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Article
6 April 2014

Documents reveal extent of Shell and Rio Tinto lobbying in human rights case [UK]

Author: Owen Bowcott, Guardian (UK)

The extent of lobbying conducted by Shell and Rio Tinto in seeking legal support from the UK government to dismiss allegations of human rights abuses has been revealed…The documents relate to two…court cases against the firms at the US supreme court over alleged complicity in mistreatment of protesters and people who lived near extraction operations…Shell and Rio Tinto approached the Foreign Office…seeking UK government backing…The FCO initially intervened at the US supreme court with a legal brief supporting Shell…The FCO then added a second, neutral brief…Responding to the claims, the FCO said: "The UK intervened in this case to clarify our position on the proper limits of the extraterritorial application of US law….”…A Shell spokesman said: "Shell companies have the right and the responsibility to make our position known to governments on any matters which affect us…”… Rio Tinto declined to comment on the documents.

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Lawsuit
18 February 2014

Rio Tinto lawsuit (re Papua New Guinea)

Author: Business & Human Rights Resource Centre

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

Article
1 October 2013

[PDF] Out of Bounds - Accountability for Corporate Human Rights Abuse After Kiobel

Author: EarthRights International

This report presents a summary of the history, jurisprudence and politics of the [Alien Tort Statute (ATS)], explaining how this obscure law became one of the most important and hotly contested tools in the area of business and human rights and the target of attack by the corporate lobby, the Bush Administration, and eventually even the Obama Administration. We track the rise of the ATS through its highs, including the Supreme Court’s 2004 decision in Sosa v. Alvarez Machain, to its recent holding in Kiobel v. Royal Dutch Petroleum (Shell). We consider the future of ATS claims and other avenues for human rights litigation more broadly in light of the holding, and conclude that new tools are needed to fulfill U.S. obligations to hold corporations accountable. [Also refers to Arab Bank, CACI, Chevron, Chiquita, Cisco, ExxonMobil, Pfizer, Rio Tinto, Total, Unocal (part of Chevron).]

Read the full post here

Article
19 September 2013

[PDF] Corporate Legal Accountability Quarterly Bulletin – Issue 10, Sep 2013

Author: Business & Human Rights Resource Centre

Welcome to the 10th issue of the Corporate Legal Accountability Quarterly Bulletin. To assist all those following corporate legal accountability issues, we send this bulletin to highlight key developments, new cases profiled on our site, updates to existing profiles, and other news. Our Corporate Legal Accountability Portal is an online information hub providing resources for non-lawyers as well as lawyers – including victims, advocates, NGOs, businesspeople, lawyers bringing lawsuits against companies and lawyers defending companies. The portal provides impartial, concise information about lawsuits against companies in which human rights abuses are alleged – its aim is to demystify these lawsuits. Each case profile includes materials from both the plaintiffs and defendants, to the extent they are available…This bulletin is now available in Spanish and French. [Refers to African Barrick Gold, Alstom, BP, CACI, Chevron, Coca-Cola, COMILOG (part of ERAMET), Daimler, Danzer, Dow Chemical, Drummond, ERAMET, Ford, HudBay Minerals, IBM, KBR, Ledesma, Mercedes-Benz (part of Daimler), Monterrico Metals, Nestlé, PA Child Care, Qosmos, Rio Tinto, Shell, Sinter Metal, SNCF, Texaco (part of Chevron), Thomson Safaris, Total, Union Carbide (part of Dow), Vedanta Resources, Veolia (part of Veolia Environnement), Veolia Environnement, Walmart]

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Article
10 September 2013

Post-Kiobel roundup: Apartheid case is not dismissed, but may soon be; some positive decisions from other courts [USA]

Author: Marco Simons, Earth Rights International

The first wave of decisions interpreting the Supreme Court’s ruling in Kiobel continues to come down, and it’s a mixed bag. Perhaps most important is a terrible opinion by the Second Circuit Court of Appeals, the court that issued the original Kiobel ruling, in the apartheid litigation. Two other decisions, however, give some hope that many human rights cases under the Alien Tort Statute (ATS) may continue after Kiobel…[Earth Rights International] is also proceeding with our ATS case against Chiquita for funding paramilitary death squads in Colombia. In that case, the Eleventh Circuit Court of Appeals is now considering the effect of the Kiobel decision on the case. If the court follows the reasoning of the judges in the SMUG v. Lively and Ahmed v. Magan cases, our ATS claims against Chiquita should continue – and Chiquita won’t be the last corporation we sue for human rights abuses.

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Article
10 July 2013

Corporate liability for violating international law under The Alien Tort Statute: The corporation through the lens of globalization and privatization

Author: Joel Slawotsky, in International Review of Law

The article addresses the question of whether the changing roles of “public actor” states and “private actor” corporations should impact the legal liability of corporations in international law…The objection to corporate liability under the ATS [Alien Tort Statute] stems from the dichotomy between public state and private actors…Rather than comparing corporations to private individuals, this Article argues that global corporations can and should be compared to public actor states. Several developments militate strongly in favor of corporate liability…Large global corporations now have the ability to cause widespread damage, a power traditionally held only by states…Two, the line of demarcation between states and corporations has been greatly reduced in recent years as the role and functions of states and private actors have become interchangeable…If large global corporations can be treated as actors similar to sovereigns, corporations should have similar duties and responsibilities towards the public as a state government.[Refers to Bridgestone, ExxonMobil, Bridgestone-Firestone (part of Bridgestone), Rio Tinto, Shell]

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