Legal

Over the weekend, the Peruvian Government’s Vice-Minister for Interculturality, Iván Lanegra confirmed that he would resign after he appeared to lose an argument over who is considered “indigenous” and thus protected by a new law in Peru implementing the right to prior consultation.

The dispute emerged over the creation and dissemination of a database (base de datos) which will list all the indigenous communities in Peru covered by the consultation law. The Vice-Minister for Interculturality is the government official responsible for the elaboration of this document.

The Vice-Minister and the entire executive branch have already faced criticism for delays in the publication of the database, for the lack of participation of indigenous communities in the preparation of the document, and for imposing overly-restrictive criteria for what constitutes being “indigenous.”

In retrospect, however, such criticism represents mere brush stroke errors compared to the bucket of paint that the President of the Republic and the Minister for Energy and Mines have just dumped onto the canvas.

According to a recent Reuters article, President Ollanta Humala has adopted the position put forward by Jorge Merino, leader of the Ministry for Energy and Mines, that the only indigenous communities covered by the consultation law should be Amazonian ones, excluding entirely the campesino communities of the Andes. This decision is a thinly veiled effort to facilitate the implementation of resource extraction projects throughout the Andean region, home to vast mineral deposits, without having to go through the inconvenience of consulting the communities whose lives will undoubtedly be hugely affected in the process. Indeed, the Ministry of Energy and Mines has already indicated that 14 projects will be moving forward without prior consultation.

In an attempt to justify this remarkable position, Merino has argued that the Quechua-speaking Andean campesinos should not be considered indigenous because . . .

In all the flurry surrounding last month’s decision in Kiobel v. Royal Dutch Petroleum, perhaps the clearest takeaway has been that the lower courts have their work cut out for them in applying the Supreme Court’s rule to actual cases where people have suffered abuses like torture, war crimes, and crimes against humanity.  The majority opinion, authored by Chief Justice Roberts, created a new presumption that claims arising out of human rights abuses that occurred abroad are not actionable under the Alien Tort Statute – a presumption that can be overcome in cases that “touch and concern the territory of the United States . . . with sufficient force.” 

We know that “mere corporate presence” of a foreign multinational company in the United States is not sufficient to overcome the new Kiobel presumption, but we also know that only Justices Alito and Thomas believed that all the conduct giving rise to a cause of action must take place on U.S. soil.  There is a broad spectrum of scenarios between the two extremes, and many of them are teed up for briefings in the coming weeks and months.

For example, this Friday, a judge in Virginia will hear arguments on how the Kiobel presumption applies in Al Shimari v. CACI Premier Technology, a case involving torture by a U.S. government contractor at the Abu Ghraib prison in Iraq.  According to the plaintiffs:

“Unlike in Kiobel, Plaintiffs’ claims arose out of conduct that occurred in a U.S. occupied territory and detention facility over which the United States had total authority; unlike in Kiobel, Plaintiffs’ claims challenge conduct undertaken by U.S. citizen employees of a U.S. corporation (domiciled in Virginia) in conspiracy with U.S. military personnel in carrying out (unlawfully) interrogations for the United States government and in violation of fundamental U.S. military and legislative prohibitions against torture and

. . .

That’s what Judge Kaplan in New York told Chevron today when he refused to allow the company to serve another subpoena on Amazon Watch. The original subpoenas relate to Chevron’s lawsuit in New York against the Ecuadorian plaintiffs and their counsel who won a $19 billion judgment against the oil company in Ecuador in 2011.   

Earlier this month, a judge in California had quashed two sweeping subpoenas issued by Chevron to Amazon Watch, concluding they were “egregiously overbroad” and sought “the heart of Amazon Watch’s expressive activity.” ERI had argued that the subpoenas were a violation of Amazon Watch’s First Amendment rights and an obvious effort by Chevron to harass and intimidate one of its most vocal critics. Although Chevron had urged the court to make a finding that Amazon Watch had engaged in fraudulent conduct, the court found that “all evidence before this Court suggests otherwise[.]”  Rather, “[a]ll that Chevron has shown … is that Amazon Watch has been very critical of Chevron’s operations in Ecuador.”  

Unsatisfied, Chevron went back to Judge Kaplan seeking another bite at the apple. But he wasn’t buying it either. “The essence of Chevron’s problem is of its own making,” he wrote in his order. The law was clear when Chevron served the first subpoena, Judge Kaplan said, and “by framing the subpoena as broadly as it did, it took its chances” that the court would throw out the subpoenas. “Nor did [Chevron] seek to modify its first subpoena … despite the approach and then expiration of the deadline for the service of documents requests in this action and despite earlier litigation in this Court concerning the timeliness of the service of the first subpoena on Amazon Watch.” 

Chevron has played dirty, manipulating the discovery . . .