BY MAX WATTS
For 10 years the Bougainvilleans have fought, with bullets and guns, against the world's second largest mining multinational: Rio Tinto.
Rio Tinto hid behind multiple veils. The war was — the media told us — a civil war between Bougainvilleans, or a war between Bougainville "secessionists" and Papua New Guinea, and only — when those first two veils had been removed — a war against Australia.
In reality, of course, it was a war against capitalism. The Bougainvilleans had imagined that because the Panguna gold and copper mine was in the middle of their island, their country, polluting their land and rivers, they could close it, take it away from its "legal" owners, Rio Tinto.
But this is totally against capitalist law, and Rio Tinto fought a dirty 10-year war using PNG troops and Australian pilots to get its property, its mine, back. The war, and a total blockade of the island, killed, in one way or another, 15,000 Bougainvilleans, 10% of the population.
Normally, reasonably, the Bougainvilleans should have been defeated and the Panguna mine restored to Rio Tinto, its "rightful" owner. But quite unexpectedly the plans for a rapid reconquest — hatched in Port Moresby, Canberra and London — didn't work out.
The Bougainvilleans won the war, and have kept the Panguna mine, "stolen" from Rio Tinto, closed.
Now these Bougainvilleans — cheeky buggers! — are even suing Rio Tinto in a US court for damages and reparations for the deaths and devastation they suffered in the 10-year war.
The Bougainvilleans found a Seattle lawyer, Steve Berman, famous for having beaten American tobacco companies in major legal battles, to take their case to the Federal Court in California.
The venue was chosen because Alexis Sarei, chief plaintiff, once a Bougainvillean provincial prime minister, lives there and because defendant Rio Tinto has major installations, mines and refineries in that state. In the far-off United States, the Bougainvilleans hoped to find a less prejudiced, more neutral, court than in Papua New Guinea or Australia.
The Bougainvilleans have accused Rio Tinto of more than a dozen crimes, ranging from genocide, murder, environmental destruction down to being a public and even a private nuisance.
The first, probably principal, legal problem for the Bougainvillean plaintiffs was to have jurisdiction accepted in the US court. Rio Tinto, clearly worried, has fought strenuously to have the law suit thrown out or moved to PNG or Australia.
Los Angeles judge Margaret Morrow has seemed ready to let the case, at least its international and human rights aspects, proceed in her court.
Attorney Berman and the plaintiffs in Bougainville were initially optimistic. Bougainville leader Francis Ona said "Although we have won the war, we have had enough fighting, we want to decide this matter peacefully, before a neutral court".
Rio Tinto, however, had other ideas, and — perhaps at the cost of tearing off another veil hiding "reality" — other means.
In early October Rio's lawyers visited PNG Prime Minister Mekere Morauta. Soon thereafter, on October 17, Robert Igara, the government's chief secretary, wrote to US Ambassador Susan Jacobs, explaining over seven pages how the continuation of the trial would "seriously undermine" the relations between Papua New Guinea and the United States and would gravely endanger the ongoing peace process between Papua New Guinea and Bougainville.
Above all, the letter stated, it would seriously damage PNG's "ability to secure foreign investments". What Igara did not mention is that Rio Tinto is still the country's largest foreign investor.
Port Moresby lawyers have since pointed out that the letter contains several pages of technical details about US case law precedents which Igara would never have heard of. Said one on reading it, "Rio's lawyers simply wrote [the letter] for him, [and] didn't even bother to change their typeface".
Igara also stated that the legal opinions previously expressed by PNG ambassador to the UN Peter Donigi and Attorney-General Frances Daman, declaring that the case would be best heard before a "neutral" US court, were "withdrawn".
Opposition leader Sir Michael Somare has questioned the government's interference but Morauta on December 4 decided to go onto the attack in parliament.
The prime minister named and threatened to sue 21 of the plaintiffs under the Compensation (Prohibition of Foreign Proceedings) Act 1995 for offences which carry up to five years' imprisonment. The act was designed to protect another mining giant — Australia's BHP — from being sued outside the country for the destruction caused by the Ok Tedi mine in western PNG.
Morauta and Igara kept their involvement in an ongoing legal process of intervening for a foreign mining company against their own citizens secret as long as possible.
The Bougainvilleans and their lawyers only learned about it three weeks later, when the US departments of state and justice sent Igara's letter and their — supportive — statements to Judge Morrow.
State Department legal adviser William H. Taft IV didn't dispute the accusations against defendant Rio Tinto, including "the commission of various atrocities ... mining operations ... [which] destroyed the island's river system and fish supply and polluted the atmosphere ... war crimes ... blockade preventing medical supplies from reaching the island resulting in many civilian deaths ... PNG defence forces committed acts of torture, killing, bombing, rape and pillage."
But, wrote Taft, this was not the issue. Rather, "the continued adjucation" of the case against Rio Tinto would risk "a potentially serious adverse impact" on the peace process in Bougainville, and thus on "the conduct of our [US] foreign policy".
Whether Judge Morrow can, or will wish to, resist such "advice" will become clear in the coming weeks. If she does dismiss the case, the Bougainvilleans will probably appeal.
The Bougainvilleans have rejected any claims that the peace process is endangered by this law suit. The guns are silent on Bougainville above all because the Bougainvilleans have won their war and closed the Panguna mine. For them this law suit has become an alternative, peaceful, means of continuing to press their claims for justice.
Bougainville leader Francis Ona warned that if Rio Tinto succeeds in having the case thrown out, this will mean the imposition of a renewed blockade on Bougainville. "The consequences — of blocking our peaceful action — can be very, very grave."
From Green Left Weekly, December 12, 2001.
Visit the Green Left Weekly home page.