The claimants say that Xstrata Ltd (London) and its Peruvian subsidiary, Xstrata Tintaya S.A., should be held liable for alleged human rights violations perpetrated by the Peruvian National Police (PNP) during an environmental protest at the Tintaya copper mine in May 2012.
Two of the protestors were killed and a number of them were severely injured, assaulted and unlawfully detained by the PNP during the protest. One of the Peruvians, who was shot by the PNP during the protest, will travel to the UK to attend the High Court hearing.
At the time of the protest the mine was owned by Xstrata Tintaya S.A. (since renamed Compañía Minera Antapaccay S.A.), a subsidiary of the London-based Xstrata Limited, which became part of Glencore in 2013. Glencore’s head office is in Baar, Switzerland.
The case will be determined under Peruvian law and the Court will hear evidence from Peruvian legal experts. The claimants essentially allege that Xstrata is liable because it provided significant assistance to the PNP and failed to take reasonable steps to prevent the use of excessive force by the PNP.
The Court will hear technical arguments from the defendants that the claims are time barred. Although the claims have been ongoing for four years, this argument was only raised by Xstrata in July of this year.
The claimants allege that the PNP, whose attendance at the protest was requested by the mine, used excessive force including the use of live ammunition, beat and kicked protesters, subjected them to racial abuse and made them stand for prolonged periods in stress positions in the freezing cold.
The claimants allege that Xstrata knew or ought to have known, from past history, that the PNP had a propensity for using excessive force.
There were allegations of serious human rights violations, including of torture, by the PNP, during an environmental protest at the Rio Blanco copper mine owned by UK company, Monterrico Metals Plc in August 2005. In 2011, Leigh Day successfully settled claims brought by 33 Peruvians.
Xstrata paid the PNP and provided officers with food and accommodation.
The claimants allege that Xstrata gave the PNP logistical assistance, including equipment and vehicles, encouraged the PNP to mistreat the protesters, and that Xstrata failed to take sufficient measures to prevent human rights violations.
The allegations are strenuously denied by Xstrata, which maintains that PNP protection was necessary as thousands of protesters, many armed with traditional slingshots, were marching towards the mine.
Xstrata also maintains the PNP operate independently and that Xstrata had no control over the behaviour of the police.
Whilst Xstrata claims the PNP operated independently of Xstrata and that the company cannot be held liable, the Claimants contend that documents show Xstrata controlled an intelligence-gathering network which was shared with the PNP and paid PNP intelligence officers to conduct surveillance of community members. Xstrata denies this interpretation.
Following a court hearing in July 2016, emails from an Xstrata director [Charles Sartain] to its senior South America manager [Jose Marun] were disclosed. These proposed a “direct, proactive and strong approach” be taken to confront community representatives to whom he referred as “sons of whores”.
At a hearing in 2016 the Judge, Mr Justice Foskett, concluded that the email was “clearly relevant and disclosable” and that it was “possible to see that the Claimants would have grounds for arguing that those subjected to [Mr Sartain’s] influence might be prepared to facilitate, connive in or otherwise encourage the unlawful acts of the PNP [Peruvian National Police] if such acts are established”.