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Peru - Xstrata

In May 2012 a number of Peruvian citizens were allegedly severely injured and unlawfully detained by the Peruvian National Police (PNP) during an environmental protest at the Tintaya copper mine in the Espinar Province, Peru. Two Peruvians were shot and killed by the PNP. 
Leigh Day client
Leigh Day client

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. In May 2013, a number of those injured, and the families of the men killed, instructed Leigh Day to file civil claims for compensation against Xstrata Limited and its Peruvian subsidiary in the High Court in London. 

The Claimants allege that the PNP, whose attendance at the protest was requested by the mine, employed excessive force against the protestors, used 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. A number of the Claimants were detained by the PNP in buildings within the mine complex.

The Claimants allege that Xstrata knew or ought to have known, from past history, that the PNP had a propensity for using excessive force. Xstrata paid the PNP and provided officers with food and accommodation. The Claimants also 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.

Initially, Xstrata’s Peruvian subsidiary challenged the jurisdiction of the High Court and in 2014, the Defendants sought to have the case struck out summarily; however, these applications were subsequently withdrawn. Throughout 2015 and 2016 the parties were engaged in a series of disputes regarding the scope of the Defendants’ disclosure obligations. 

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”.

The case is listed for a full trial on liability only in June 2018.

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