Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited

Court	United States Court Of Appeals For The Ninth Circuit, United States
Case number	02-56256/02-56390
Decision title	Appeal from the United States District Court for the Central District of California
Decision date	16 December 2008
Parties	Alexis Holyweek Sarei Paul E. Nerau Thomas Tamuasi Phillip Miriori Gregory Kopa Methodius Nesiko Aloysius Moses Raphael Niniku Gabriel Tareasi Linus Takinu Leo Wuis Michael Akope Benedict Pisi Thomas Kobuko Norman Mouvo John Osani Ben Korus Namira Kawona Joanne Bosco John Pigolo Magdelene Pigolo Rio Tinto plc Rio Tinto Limited
Categories	Crimes against humanity, Human rights violations, War crimes
Keywords	crimes against humanity, war crimes, corporate responsibility, environmental harm, racial discrimination
Links	Appeal from the United States District Court for the Central District of California

Summary

After the civil war in Papua New Guinea, which led to Bougainville obtaining a more autonomous position, several inhabitants of that island sued the mining company Rio Tinto, basically for its role in the war and the process leading up to it. The plaintiffs claimed that Rio Tinto’s mining activities had harmed their health and the environment, and that they had helped the Papua New Guinea government in, among other things, setting up a blockade with disastrous results for the population. They relied on the Alien Tort Claims Act, a US Act which permits aliens to present a claim in a US Court when, allegedly, the law of nations has been breached. Before the District Court ruled on this case en banc, two previous panels had ruled on this case, thereby mostly focussing on the question whether or not the case should be dismissed as it touched upon questions of US foreign policy, questions which should only be addressed by the Executive Branch of the government. The Court of Appeals en banc took a different route and stated that the District Court should assess in depth whether the fact that the islanders had not exhausted local remedies should lead to dismissal of the case. To this end the Court of Appeals established a framework of applying the ‘exhaustion principle’ and referred the case back to the District Court.

Procedural history

The plaintiffs, current and former residents of the island of Bougainville in Papua New Guinea (PNG), filed a putative class action against the defendants under the Alien Tort Claims Act (ATCA), 28 U.S.C. para. 1350. The plaintiffs alleged that Rio Tinto’s mining operations on Bougainville ‘destroyed the island’s environment, harmed the health of its people and incited a ten-year civil war, during which thousands of civilians died or were injured’. Therefore, the plaintiffs alleged, defendants were guilty of war crimes and crimes against humanity, as well as racial discrimination and environmental harm that violates international law. Defendants moved to dismiss the complaint, arguing that the court lacks subject matter jurisdiction and arguing that plaintiffs have failed to state a claim upon which relief can be granted. Alternatively, the defendants contended that the action should be dismissed on the ground of forum non conveniens because it raised questions that are nonjusticiable under the act of state or political question doctrines and because the court should abstain under the doctrine of international comity.

The US Court of Appeals overturned the District Court’s 2002 dismissal of the case on 7 August 2006, a reversal which was confirmed by a three-judge panel of the US Court of Appeals on 12 April 2007.

Related developments

On 26 October 2010, the Court of Appeals referred the case to another judge to explore the possibility of mediation. After another ruling from the Court of Appeals on 25 October 2011, in which claims regarding genocide and war crimes were upheld, the case was supposed to return to the District Court for further proceedings on the claims. However, the Appeals Court ruled on 28 June 2013 that the case should be dismissed, citing the recent Supreme Court ruling in the Kiobel v. Shell case.

Legally relevant facts

The Rio Tinto Group, of which Rio Tinto plc and Rio Tinto Limited are part, has operated on Bougainville, Papua New Guinea (PNG), since the 1960s, in close corporation with the government. The plaintiffs claim that Rio Tinto forced villagers of their lands, destroyed huge portions of the rain forest and polluted the environment. Also, they allege that islanders who worked for Rio Tinto, all of whom were black, were paid lower wagers than the white workers recruited off island. They also claim that when the inhabitants of Bougainville forcefully protested against the mining operations, the company warned the PNG government that Rio Tinto might close the mine if the protests were to continue. According to the plaintiffs, Rio Tinto knew that this would lead the government to violently repress the uprising, which it started to do in early 1989. Plaintiffs contend that the PNG army attack on 14 February 1990 led to the ‘struggle for independence’, that continued until 1999. During the war, according to the plaintiffs, Rio Tinto committed human rights abuses and war crimes while, for example, conspiring with and encouraging the PNG government to impose a blockade (pp. 16446-16447).

Core legal questions

Both the District Court and the Court of Appeals’ three-judge panel had rejected the defendant’s argument that the ATCA contained a requirement of exhaustion of local remedies. The previous panels had put emphasis on, most importantly, the question whether the claims were justiciable under the political question doctrine. In this opinion, however, the matter of the requirement of exhaustion of local remedies played a central role. The Court stated that the case raised ‘an important question of the role of exhaustion under the ATS.

Specific legal rules and provisions

US Alien Tort Claims Act.

Court's holding and analysis

The Court referred to the Sosa case, in which the Supreme Court had directed that ‘exhaustion of local remedies should “certainly” be considered in the “appropriate case” for claims brought under the ATCA’. The Court considered this case to be appropriate for such consideration under both domestic prudential standards and core principles of international law (p. 16449).The Court considered the rules regarding exhaustion of remedies under international law. It held that although these rules do not directly apply to domestic legislation, more specifically the ATCA, one could consider exhaustion of local remedies as a principle related to (though not part of) the ATCA (pp. 16454-16455). In this case a principle of prudential exhaustion should be applied, according to the Court, because there is no significant connection between the United States and the plaintiffs allegations. Overall, the Court held that ‘simply because universal jurisdiction might be available, does not mean that we should exercise it’ (pp. 16456-16457). It set out a framework for evaluating exhaustion and referred the case back to the District Court, which was requested to apply this framework to the underlying case (pp. 16457-19460).

Further analysis

C. Donefer, ‘Sarei v. Rio Tinto and the Possibility of Reading anExhaustion Requirement into the Alien TortClaims Act’, Northwestern Journal of International Human Rights, 2008, Vol. 6, pp. 155-175.
R. Waugh, ‘Exhaustion of Remedies and the Alien Tort Statute’, Berkeley Journal of International Law, 2010, Vol. 28, pp. 555-570.
C. Cortemeglia, ‘Sarei v. Rio Tinto: How an Exhaustion Requirement for the Alien Tort Statute Will Further Exhaust Remedies for Environmental Injuries’ Maryland Journal of International Law, 2011, Vol. 26, pp. 193-238.
J. S. Goldberg, ‘Exhaustion: A Solution to the Chief ConcernsPosed by Alien Tort Statute Litigation’, Seton Hall Law eRepository, 1 May 2013.

Instruments cited

US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.

Related cases

US District Court for the Central District of California, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case No. CV 00-11696 MM M (MANx), Order re: Prudential exhaustion, 31 July 2009.
US Court of Appeals for the Ninth Circuit, Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, Case Nos. 02-56256, 02-56390 and 09-56381, Appeal from the United States District Court for the Central District of California, 25 October 2011.