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

Court	United States District Court Central District of California, United States
Case number	CV 00-11695 MMM (MANx)
Decision title	Order re: Prudential exhaustion
Decision date	31 July 2009
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, universal jurisdiction
Links	Order re: Prudential exhaustion

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.

In this instance, the District Court had to rule whether referring the plaintiffs back to the Papua New Guinean legal system should be considered. The District Court held that this would be inappropriate with regard to the plaintiffs’ claims of war crimes, crimes against humanity and racial discrimination, as these claims are of ‘universal concern’. However, regarding other claims (of environmental harm, of cruel, inhuman and degrading punishment and of consistent pattern of gross violations of human rights) the Court held that it could be assessed whether the plaintiffs should first exhaust legal remedies in Papua New Guinea. Therefore, it gave the plaintiffs one month to decide whether they wished to pursue these claims.

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.

The US Court of Appeals overturned the District Court’s 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. On 16 December 2008, the Court of Appeals referred the case back to the District Court, after having established a framework for determining whether the plaintiffs should first exhaust local remedies before turning to a US court for relief. It stated that the District Court should apply this framework to the underlying case.

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.

Core legal questions

The central question posed to the District Court by the Court of Appeals was whether the prudential exhaustion requirement should be applied to this case. In other to determine whether this requirement should be applied, the Court of Appeals had stated that two matters should be taken into consideration: firstly, it had to be determined whether there was a nexus between the US and the plaintiffs and their claims. Also, the universality of the concerns underlying the plaintiffs’ claims had to be assessed. A strong nexus and claims of universal concerns would lead to the conclusion that the exhaustion requirement should not be applied, while a weak nexus and limited universal importance of the claim would lead to the opposite result.

Specific legal rules and provisions

US Alien Tort Claims Act.

Court's holding and analysis

The District Court agreed with the Court of Appeals’ assessment that the nexus between the US and the plaintiffs’ claims is weak (pp. 21-22).

The Court stated that the claims of torture, genocide, war crimes, racial discrimination implicated matters of universal concern (pp. 25-27 and 31-34). Regarding the environmental tort claims, the Court stated that this is not a ‘matter of universal concern in the same manner that jus cogens such as genocide, torture or crimes against humanity are’ (p. 31). Regarding the claims of cruel, inhuman and degrading punishment, as well as the claim of consistent pattern of gross violations of human rights, the Court stated that these claims were too widely defined to consider the claim as a whole as involving matters of universal concern (pp. 35-37). In balancing these conclusions, the Court determined that it would be inappropriate to impose a prudential exhaustion requirement with respect to claims for crimes against humanity, war crimes and racial discrimination. Regarding the other claims, the Court concluded that if the plaintiffs would wish to pursue their these claims, the Court would conduct an ‘exhaustion’ analysis. It granted plaintiffs one month to decide whether to pursue the latter claims (pp. 39-40).

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 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.