Rio Tinto Human-Rights|Case Referred to Mediator

     (CN) – Over the objections of two judges, the 9th Circuit on Tuesday asked a judge to “explore the possibility of mediation” for a lawsuit accusing mining company Rio Tinto of inciting a 10-year civil war on the island of Bougainville, Papua New Guinea.

     An 11-judge panel in San Francisco sent the human-rights case to 9th Circuit Judge Edward Leavy for possible mediation. The panel gave him 28 days to decide if mediation should proceed or if the case should return to the full court.
     Bougainville residents accused Rio Tinto’s branches in London and Melbourne of damaging their environment and sparking a bitter civil war. The corporation has mined copper in the village of Panguna in Bougainville since 1972.
     Judges Andrew Kleinfeld and Consuelo Callahan disagreed with the majority’s decision to send the case to a mediator.
     “We have not yet decided whether we have jurisdiction over this dispute,” Kleinfeld wrote. “I very much doubt that we do. I suspect that we lack jurisdiction both because the case involves a political question and because we lack subject matter jurisdiction on account of extraterritoriality.”
     The Papua New Guinea government allegedly blockaded the island, causing thousands of deaths and the violent civil war, which ended in 1999. Rio Tinto is also accused of participating with the Papua New Guinea government in war crimes.
     “We are told that New Zealand mediated a peace agreement, under which Bougainville now enjoys some form of autonomy from the Papua New Guinea government as the ‘Autonomous Region of Bougainville,'” Kleinfeld wrote.
     Named plaintiffs include Alexis Sarei, who lived in California when the complaint was filed but now lives in Bougainville as a member of its parliament. Sarei said he and other Bougainville residents were victimized by Rio Tinto and the government through violence and threats of violence, and by pollution from Rio Tinto’s mine in Bougainville.
     “The claims are by Papua New Guineans against a British-Australian company for wrongs committed in Papua New Guinea,” Kleinfeld wrote. “Although Rio Tinto has operations in many countries, including the United States, and Sarei lived in the United States as a resident alien when the complaint was filed, nothing done by Americans or in America, is at issue.”
     Judge Stephen Reinhardt responded to the dissenting opinions by writing, “If the mediation succeeds, we will simply have helped to resolve a complex legal dispute of great importance to the various litigants by means of a peaceful settlement rather than through extended litigation.”
     The 9th Circuit has already ruled, in December 2008, that U.S. courts might not be the right venue for the dispute.
Judge Callahan, like Kleinfeld, questioned whether referring the case to mediation “is appropriate at this juncture.”

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