In recent years, Canadian human rights lawyers and advocates have filed cases against mining companies accused of serious abuses overseas. While few of those cases have proceeded in court, victims of abuse just obtained one of their most significant legal victories ever.
Last week, the Supreme Court of British Columbia ruled that Eritrean refugees who allege they were subjected to forced labor and torture at Nevsun Resources’ Bisha Mine can have their day in court.
This is a monumental decision, as it is only the second time a Canadian court is allowing a case against a Canadian mining corporation for overseas human rights abuses to proceed to trial (the other decision is Choc v. Hudbay). It is also the first case against a corporation proceeding on claims based on customary international law.
The plaintiffs sued Nevsun in November 2014, alleging that through the Eritrean National Service Program they were forced to work at the Bisha Mine. The Mine was jointly developed by Nevsun and the repressive Eritrean government. The plaintiffs allege that they worked in inhumane conditions: they were forced to work long hours, suffered from malnutrition, were confined in small spaces and received little pay under the constant threat of physical punishment, torture and imprisonment.
In its preliminary motions, Nevsun Resources tried to get the case thrown out, using several arguments that are similar to those that have been used by companies in U.S. courts – arguing that Eritrea was a more appropriate place to hear the case; that the case involves foreign governmental acts that Canadian courts cannot challenge; and that claims based on international law cannot proceed.
The upshot is that this is a major victory for the plaintiffs, for the lawyers who worked to bring this case – including Joe Fiorante of Camp Fiorante Matthews Mogerman, James Yap, Nick Baker of Siskinds LLP, and the Canadian Centre for International Justice – and for corporate accountability in Canada. If you’re interested in the legal details, read on for an analysis of some of the highlights of the 161-page decision.
British Columbia is the appropriate forum for this lawsuit
The court found that “there is a real risk of an unfair trial occurring in Eritrea,” and hearing the case in British Columbia “would promote the fair and efficient working of the Canadian legal system.” This is the first decision in British Columbia finding that the province is an appropriate place for a case involving transnational corporate human rights abuses. Last year, a case brought against mining company Tahoe Resources by Guatemalan plaintiffs who were allegedly shot and injured by security personnel was dismissed on the basis that Guatemala was clearly the more appropriate place for the trial (this decision is on appeal).
The Court’s findings on forum highlight the reality that many victims of corporate human rights abuse face – Canada may be their only realistic possibility for justice.
Nevsun, however, persisted, even though it should have been obvious that the case could not be brought in Eritrea. The Plaintiffs are refugees. As the court found, they would face “real consequences” if they returned to Eritrea, especially if they returned “to commence legal proceedings in which they make the most unpatriotic allegations against the State and its military, and call into question the actions of a commercial enterprise which is the primary economic generator in one of the poorest countries in the world.” Not only would the Plaintiffs face a real risk in bringing this case in Eritrea, the Court found, “any judge hearing the case [in Eritrea] and who ruled in their favour would place his or her career and personal safety in jeopardy.”
In fact, in 2015 the U.N. Human Rights Council found that “systematic, widespread and gross human rights violations have been and are being committed by the Government of Eritrea and that there is no accountability for them. The enjoyment of rights and freedoms are severely curtailed in an overall context of a total lack of rule of law.” No human rights lawsuit could proceed in Eritrean courts.
Customary international law
This case is one of the first cases in Canada to directly plead, and proceed to trial, on violations of customary international law: slavery, forced labor, cruel inhuman or degrading treatment, torture and crimes against humanity. In trying to dismiss these claims, Nevsun argued, among other things, that customary international law cannot form the basis of court claims in Canada and, in any event, these prohibitions apply to states, not corporations. They also argued that plaintiffs cannot file a civil lawsuit based on breaches of international criminal law. None of these issued have been decided in Canada. They will need to be determined at trial.
But the court recognized that there is a “reasonable chance of success” that customary international law may be directly actionable in Canada “based on the common law as it currently stands or [as] a ‘reasonable development’ of the common law.” Moreover, significantly, the court found that “while crime and tort are not the same, commission of a crime can often result in subsequent civil liability.”
Another significant aspect of this decision is the court’s recognition that the so-called “act of state doctrine,” which “has yet to form the basis of a decision by any court in Canada” is part of Canadian common law. This doctrine prevents courts from adjudicating the legality of the acts of a foreign government in their territory, and has arisen in cases in the U.S. under the Alien Tort Statute. While the court recognized the doctrine, it also found that its contours are “uncertain” and whether it applies in this case must be determined at trial.
But other parts of the decision seem to suggest that the doctrine is inapplicable in this case. The court disagreed with Nevsun that this action requires a determination of the legal validity of Eritrea’s system of justice, Labour Code Proclamation or the national service program. And, significantly, the decision does seem to support the proposition that the act of state doctrine should not apply in cases of allegations of “grave infringements of human rights.” Such a position is “reflective of universal norms” and “after all, this is British Columbia, Canada; and it is 2016.”
The plaintiffs tried to bring the case as a representative action – similar to a U.S. class action – on behalf of all Eritreans conscripted into the national service program who’ve worked at the Bisha mine since 2008. Unfortunately, the judge did not allow the case to proceed as a representative action - instead, individuals will need to each file their own claim that can then be joined together.
This aspect of the decision is worrisome because the Court seemed to agree with Nevsun that the representative action rule does not apply to actions where the plaintiffs are all non-residents, which essentially makes this rule inaccessible to victims of transnational corporate human rights abuse. In any event, the Court also found that the requirements for a representative action are not satisfied, finding that there are too many individual issues of fact and law that would need to be decided for each proposed individual. For instance, Nevsun is contesting whether the plaintiffs were even present at the Bisha mine, and the Court found this requires an individual examination for each plaintiff.
This decision will likely be appealed, and many issues remain to be decided at trial. But, this decision marks a significant step forward in victims’ fight for access to justice against Canadian corporations involved in human rights abuses outside of Canada.