Alt+left-arrow to return from a link

 

Full-text: April 22 2002
with Attachments 1, 2, 3

United States District Court for the District of Columbia

	)
Olivier Bancoult, et al.,	)
Plaintiffs,	)
)
v.	)
)
Robert S. Mcnamara, et al.,	)
Defendants.	)
	)

Plaintiffs’ Request for Permission to Supplement Plaintiffs’ Consolidated Opposition to Individual Federal Defendants’ Motion to Dismiss and Cross-Motion to Strike Certification of Scope of Employment

Plaintiffs hereby request leave to supplement Plaintiffs’ Consolidated Opposition to Individual Federal Defendants’ Motions to Dismiss and Cross-Motion to Strike Certification of Scope of Employment with responsive attachments, appended hereto, per Local Rule 65.1(c). Plaintiffs request leave to include additional information because Plaintiffs respond to new matter discussed and cited in Defendants’ Motion to Dismiss.

Respectfully submitted,

 

{Signature}

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016

Bar Identification # 103762

Dated: April 22, 2002

 

{Full-text, Attachment-1}:

SECRET

Mr. D.A. Scott  {Signature} /2.2
Sir L Monson
Mr. Kerby  (received 4th February)

British Indian Ocean Territory
Resettlement of the Inhabitants of the Chagos Archipelago

Problem

1   The time has come to implement arrangements agreed in principle by the previous Administration by which, in view of the construction of an American naval communication facility on Diego Garcia in the British Indian Ocean Territory (BIOT), we should resettle the population of the Chagos Archipelago, of which Diego Garcia forms part, partly in Seychelles and partly, subject to negotiations with Mauritius Government, in Mauritius.

2   It is also desirable to reaffirm our refusal to issue licences for oil and other mineral exploration within BIOT.

Recommendations

3   I recommend that officials be authorised now to implement the policies described in paragraphs 1 and 2 above; and that we open negotiations with the Mauritius Government about resettlement there, ad referendum to Ministers.

Background and Argument

4   A map of BIOT is at A and a Background Note on Diego Garcia prepared for the British delegation to the Commonwealth Conference is at B.

Position of the United States

5   The United States Government have recently confirmed that their security arrangements at Diego Garcia will require the removal of the entire population of the atoll by July if possible. This is no surprise. {p.2} We have known since 1965 that if a defence facility were established we should have to resettle elsewhere the contract copra workers who live there. It is desirable moreover, to arrange for the total evacuation from the Chagos Archipelago of the present population, who are essentially migrant workers. If BIOT is to fulfil the defence purposes for which it was created, there should be no permanent or even semi-permanent population in respect of which we might in time incur, under Chapter XI of the UN Charter, a variety of obligations including the “sacred trust ... to develop self-government.”

6   In April 1969 the then Secretary of State obtained the concurrence of the then Prime Minister for the resettlement of the inhabitants of the Chagos Archipelago on the lines now recommended. This was done in the expectation that the US authorities were about to go ahead with their facility. Congress however rejected the proposal, and further action on resettlement was necessarily deferred until American intentions became clear. When the proposal was again submitted to Congress, no approach was made to the Mauritian authorities about resettlement plans in deference to representations by the United States authorities that no overt action should be taken which might prejudice the outcome of Congressional hearings. Now, Congressional approval has been obtained, and the US Government are anxious to begin work.

The Problems of Resettlement

7   There are now about 829 people in the Chagos Archipelago, of whom about 359 live on Diego Garcia itself and the remainder on the two other inhabited atolls of Peros Banhos and Salomon. Of the total, 386 are dual citizens of the United Kingdom and Colonies and of Mauritius (they are known as Ilois). As far as we know, neither the Ilois themselves nor the Mauritius authorities are aware of their dual nationality. There are {p.3} also 35 citizens of Mauritius, and 408 citizens of the UK and Colonies from Seychelles (“Seychellois”). A population chart is at C.

8   There will be no difficulty in returning the Seychellois to Seychelles, but there would be strong political objections in Seychelles to attempting to settle the Mauritians or Ilois there.

9   In December 1965, a question in the Mauritius Legislative Assembly asked for confirmation that certain obligations in respect of BIOT had been definitely undertaken by the British Government, including, whether all Mauritians then living in Diego Garcia would be resettled in Mauritius; whether the costs of repatriation would be met from the British Exchequer; whether all costs of rehousing them would be met by the British; and finally whether work would be found for them by the British Government. With the approval of the Colonial Office, the Mauritius Government spokesman gave the following answer:

The reply did not refer to the place of resettlement; nor does it ever seem to have been specifically established between the UK and Mauritius Governments that this resettlement would be in Mauritius. But that has been the implication and understanding on our side, and we do not expect the Mauritius Government to dispute it in principle.

10   However, with at least 40,000 men (representing 20% of the labour force) already without work Mauritius has a formidable unemployment problem. In our High Commissioner’s view failure by the Mauritius Government to tackle the unemployment could lead to outbreaks of disorder, perhaps comparable to those which in September 1970 led to appeals for British military assistance. The High Commissioner advises that, because {p.4} of the already high level of unemployment, we must expect negotiations with the Mauritius Government about the resettlement of the people from the Chagos Archipelago to be difficult and the terms demanded high. There are already about 100 families now in Mauritius whose contracts to work in Diego Garcia have not been renewed. The Mauritius Government have been asking how we intend to fulfil our obligations to these people. An answer has been delayed pending a decision about resettlement as a whole.

11   Ideally, we ought to try to settle as many of these people as possible in British territory. There would, however, as stated above, be strong political objections in Seychelles (which has its own economic and over-population problems) to accepting back any other than its own people. The possibilities of resettling Mauritian citizens and Ilois elsewhere in the Indian Ocean area have been re-examined but without success, and it is doubtful if they would wish to go anywhere but Mauritius. However, it may be possible, subject to the concurrence of the Mauritius Government, to resettle as many as 50 Ilois or mono-Mauritian families on the Mauritian island of Agalega, to work on copra plantations run by Moulinie & Company the firm who manage the existing plantations in BIOT. Whatever the result of the proposed negotiations with the Mauritius Government, it will be necessary – if the US deadline for clearing the Diego Garcia is to be met – for the inhabitants to be moved temporarily to plantations on Peros Banhos and Salomon, which are also in the Chagos Archipelago. The Governor of Seychelles has confirmed that there will be no practical difficulties in accomplishing this, and that adequate housing and welfare facilities exist for those who are to be moved. Such a measure would, however, be only an interim one.

Costs

12   The total cost of establishing BIOT was originally estimated at £10 million, allocated to the Ministry of Defence Vote. (The US Government secretly contributed the equivalent of £5 million). Of the £10 million, £3 million was originally allocated for building an airport {p.5} in Seychelles, £3 million to Mauritius in cash, and £4 million for the purchase of islands from private owners for resettlement and for contingencies. The allocation for the Seychelles airport was notional and in order to build a viable international airport capable of taking modern jet aircraft the cost has risen to over £5 million. (An analysis of expenditure is at D). Consequently, virtually no balance now remains which could be used for resettlement purposes. It is certain that additional funds will be required for resettlement.

13   It is estimated that the cost of resettling the Seychellois in Seychelles may not exceed £10,000 (including costs of termination of contracts and passages). A preliminary figure of £55,000 has been put forward by Moulinie & Co. for the proposed scheme for settling 50 families on the Mauritian island of Agalega. The costs of resettlement in Mauritius are at this stage impossible to assess, as we do not know the sort of price the Mauritius Government may ask. The High Commissioner has recommended that a Special Adviser be appointed to examine resettlement possibilities in consultation with the Mauritius Government.

Oil & Minerals

14   Part of the price which the Mauritius Government may ask in any negotiations may be a relaxation of the policy to which we have so far adhered, that no surveying or exploration for oil or other minerals is allowed within the Chagos Archipelago, so long as the whole area is set aside for defence purposes. Mauritian interest stems from an assurance given in 1965 that the net benefit of any oil or minerals discovered in or near the Chagos Archipelago would revert to the Mauritius Government. It is not thought that there are any significant resources of oil, gas or minerals in Chagos but some foreign companies have applied for oil {p.6} exploration licences. It seems right to maintain the ban on mineral and oil exploration for the present, but we should review the need for it with US officials in case it might prove to be in Britain’s interests to allow some relaxation in the course of negotiations with Mauritius about resettlement of the Ilois.

15   So far there has been relatively little public or Parliamentary interest in BIOT; and such interest as has been shown has been mainly concerned with conservation on Aldabra (where a nature reserve is being established) . But neither we nor the Americans can conceal the fact that the creation of facilities for the US Navy in this British Colony means the evacuation and resettlement of several hundred people; and if, as seems likely, negotiations with Mauritius are prolonged, the episode may well attract publicity, and critics of our Indian Ocean strategy may be expected to make the most of it.

16   This Submission has the concurrence of Defence Department, Financial Policy and Aid Department, Finance Department, East Africa Department, UN (Policy) Department, Oil Department, the Legal Advisers and of the ODA and the Ministry of Defence. The Treasury have given their concurrence on the understanding that any necessary expenditure over and above the sum of £10 million allocated for the setting up of BIOT will be met from within existing TESC provisions, and subject also to the conditions that resettlement costs shall be kept as low as possible and shall be charged in the first instance to the unspent balance of the sum of £10 million. They also observe that the cost of any further recommendations will have to be considered very carefully, coming as they will on top of the considerable provision already made for establishing BIOT.

 

{Signature}

(I Watt) {Ian Watt}
Atlantic and Indian Ocean Department
*26 January 1971
Circulated Feb 2nd.

SECRET

 

{Full-text, Attachment-2}:

Confidential

Mr. Greenhill

British Indian Ocean Territory

The Permanent Under-Secretary has seen UKMIS New York telegram No. 1751 of 23 August and has minuted as follows:

 

{Signature}

(P. R. H. Wright)
24 August 1966

Copy to: Mr. du Boulay

{Handwritten ‘minute’}:

Unfortunately along with the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When that has been done I agree we must be very tough and a submission is being done accordingly.

 

{Signature}

DA Greenhill 24/8 {Dennis A. Greenhill}

 

1  Mr. du Boulay {initials} 24/viii
2  Mr. W{?}

Confidential

 

{Full-text, Attachment-3}:

SECRET

EMBASSY
OF THE
UNITED STATES OF AMERICA

London, England

February 3, 1969

Richard A. Sykes, Esq., C.M.G., M.C.
Defence Department
Foreign and Commonwealth Office
Whitehall, S.W.1.

Dear Richard:

We have been informed that the proposed project for a naval facility on Diego Garcia was included (without identification) in the FY 1970 Department of Defense military construction budget request presented to Congress last week. The proposal envisages construction of the 26 million dollar facility as outlined to you last July, plus 11 million dollars for procurement of communications equipment.

As we advised Robin Johnstone in October, the Diego Garcia proposal will be identified as a classified line item when the military construction budget request is presented to the House Armed Services Committee. Committee hearings, which will be in Executive Session, are not expected to be held until March or April.

We fully recognize the need to consult closely with your Government regarding the Diego Garcia project, and intend to do so in detail when our plans are firm. You will understand, of course, that we cannot undertake actual construction without Congressional approval, and some of the details of our planning will perforce remain undetermined until the House Committee has held its hearings and given its approval. For example, many of the administrative planning details will depend upon the method of {p.2} construction, i.e., whether we use a private U.S. contractor or Naval Construction Forces. If the latter are available, both the foreign exchange costs and construction time would be reduced, and our need for local unskilled labor would be minimal or non-existent. This and other key questions cannot be answered until the hearings are completed.

In the meantime, however, it may be useful to give you Washington’s present views on a number of questions of mutual concern.

1.   As indicated in my letter to Robin Johnstone of November 22 {handwritten marginal note, a file/document reference: “DP15/527/1”}, we have no plans for the use of Peros Banhos and Salomon Islands, with the proviso that the absence of current plans does not preclude consideration of using other islands in the Chagos Archipelago should this become desirable at some later time. On this understanding, we have no objection to your proposal to request Moulinie to draw up plans for expanded development of the two northern islands. We are mindful of our obligation under the BIOT Agreement to use Mauritian and Seychellois labor to the maximum extent consistent with our requirements and construction schedules. Our best present estimate is that we still desire ultimate removal of all migrant laborers from Diego Garcia after giving six month’s notice to the lessees in accord with the confidential agreed minutes to the BIOT Agreement, but no firm decision has been made at this stage. We share your view that it would be politically unwise to relocate Diego workers on Mauritius where there are serious unemployment problems, and have therefore agreed to the use of Peros Banhos and Saloman Island to relocate them and others in the archipelago who may in the future have to be moved. However, we hope that no action will be taken on the status of Diego workers until the basic decisions outlined above have been made. We will then endeavor to open meaningful discussions as soon as possible. {p.3}

On this point, we have recently had a report of a request by the BIOT Administrator to hire 50 Chagos-born laborers now living on Mauritius, and to transport them and their families to Diego Garcia. In view of our desire to transfer most or all of the copra workers elsewhere, we are somewhat concerned about the possibility of continued movement of additional workers to Diego. I wonder if you can provide us with any clarification of this report and your views on the subject.

2.   In the course of our conversations during Bob Remole’s visit here last December, you put to us a number of points concerning BIOT problems. I have been asked to give you the following responses or comments:

(a)   We are puzzled by the request of Sir Hugh Norman-Walker that future activities in BIOT should be “mounted” out of the Seychelles. Although the presence of the USAF tracking station on Mahe does give us a reliable communications point for the Indian Ocean area, we wonder whether this suggestion is intended to apply to activities which would otherwise be staged through Mauritius, or directly from east coast ports. In any event, we would prefer to await the message you expected to give us soon on the general question of communications before taking any position.

(b)   We will henceforth be particularly careful to keep the U.S. Commander of the Mahe tracking station fully informed regarding all activities undertaken in the BIOT. We fully agree that this is desirable; I am sure it is understood that he is not a diplomat and does not represent the U.S. Government.

(c)   Regarding the general question of advance notice, we will of course give you as much notice as possible of our intentions in BIOT, consistent with the sometimes difficult problems inherent in reaching timely internal decisions. {p.4}

(d)   With regard to the physical layout of the proposed Diego installation, our plans are based on the 1967 survey report. We have not received details of Sir Hugh Norman-Walker’s reservations concerning the layout, but would be happy to consider any additional information he may have submitted that might be useful to us.

(e)   Our requirement (if any) for local labor in the construction of the facility, as explained above, will not be known until after the House Armed Services Committee hearings.

(f)   We would suggest that copra production on Diego Garcia be continued until we are in a position, later this Spring, to establish a construction timetable.

(g)   J/PM (formerly G/PM) in the Department of State is now the primary point of contact for BIOT matters, and coordinates with other interested bureaus within the State and Defense Departments.

3.   When and if a facility on Diego Garcia comes into operation, the current Mauritian meteorological service now being provided from Diego would apparently become redundant, since a comparable service could be furnished to the Mauritian Government by the U.S. Navy. Alternatively, the present meteorological station could possibly be moved elsewhere in the archipelago and continue to furnish the same kind of weather information.

4.   We concur with your rejection of applications from private firms for mineral exploration of Diego Garcia. We would have no objection to such exploration in other islands of the archipelago on the clear understanding that all such activity would be halted immediately if a future US/UK decision were made to use the islands in question for defense purposes under the 1966 agreement. In this connection, we would appreciate any information on the current status of the question of exploration and exploitation {p.5} of mineral rights. Has there been any recent clarification of this question, and are there any outstanding differences between your Government and the Government of Mauritius regarding mineral rights?

5.   We will, of course, consult with you regarding notification to other interested Governments in the area, but we do not wish to take such a step at this time. We believe it would be most appropriate to do so in connection with the Department of Defense presentation to the House Armed Services Committee.

6.   Notwithstanding our desires, we recognize there is a danger of premature leakage before the Committee hearings are held. To preserve our general credibility, we believe that any public statement we find it necessary to make at this time should take into account the facts previously given out, and, to the extent that security permits, prepare the ground for an eventual announcement of the decision to proceed with facilities in the BIOT. In the event that a public statement becomes unavoidable, therefore, we propose using the following:

(The U.S. representative in the United Nations Committee of 24 made a statement on July 19, 1967, acknowledging that the U.S. and U.K. had an agreement permitting the establishment of “refueling and communications facilities” in the BIOT, but disclaiming plans to build a “military base”.)

Please let me know if this press guidance is acceptable to your Government. {p.6}

7.   Finally, if asked about the Geodetic Satellite teams now in Diego Garcia, we would respond with the form of words agreed last August (beginning “The UK has authorized the US to place a temporary NGSP station on Diego Garcia ...”), as amended in November with an additional paragraph on the composition and schedules of the three teams. I would appreciate it if you will confirm that this agreed line continues to be acceptable.

Yours sincerely,

 

{Signature}

Gerald G. Oplinger

Politico-Military Affairs

SECRET

 

Certificate of Service

I hereby certify that on April 22, 2002 I served a true copy of the forgoing Request to Supplement Plaintiffs’ Consolidated Opposition to Individual Federal Defendants’ Motion to Dismiss and Cross-Motion to Strike Certification of Scope of Employment:

By facsimile and by first class mail, postage pre-paid, addressed to Defendants’ counsel as follows:

Richard Montague
Department of Justice
Civil Division
1425 New York Ave., N.W.
Suite 8122
Washington, DC 20005

By first class mail, postage pre-paid, addressed to Defendant’s counsel as follows:

Elaine Lacy
Torts Branch
Civil Division
U.S. DOJ
P.O. Box 888
Washington, DC 20044

By first class mail, postage pre-paid, addressed to Halliburton’s counsel as follows:

Harry Reasoner
Vinson & Elkins
1001 Fannin Street
Suite 2300
Houston, Texas 77002-6760

By first class mail, postage pre-paid, addressed to DCDM counsel as follows:

Cynthia Andreason
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. N.W.
Suite 1200
Washington, DC 20009

 

{Signature}

Virginia Sadler

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Dec. 12 2002. Updated May 16 2008.

http://homepage.ntlworld.com/jksonc/docs/bancoult-d30.html