The Supreme Court of Canada has rejected an effort by Vancouver-based Nevsun Resources Limited to dismiss a lawsuit filed by a group of Eritrean refugees alleging that they were subjected to forced labour at Nevsun’s Bisha Mine in Eritrea, Africa.
The ruling by the Supreme Court of Canada means that Canada’s first mass tort claim for modern slavery will now proceed to trial.
The lawsuit, filed in November 2014, alleges that Nevsun developed a gold mine in partnership with the military dictatorship of Eritrea. Central to the case are allegations that Nevsun engaged Eritrean state-run contractors and the Eritrean military to build the mine’s facilities and that the companies and military deployed forced labour under abhorrent conditions.
Nevsun had sought to immunize itself by arguing that a trial in Canada for the company’s role in severe human rights violations would constitute an impermissible intrusion on the sovereignty of the Eritrean regime. The Court rejected this position. The Court also allowed claims of slavery, forced labour, and crimes against humanity to go forward against Nevsun. In doing so, the Court recognized for the first time that a Canadian corporation may be held legally responsible for violations of international law that protect human rights.
For the Court, Madam Justice Rosalie Abella wrote, “This appeal involves the application of modern international human rights law, the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed.”
This is the third time that Nevsun has been unsuccessful in a bid to avoid a trial of this claim in Canadian courts. In a prior 2017 decision, the British Columbia Court of Appeal also rejected an argument by Nevsun that the claim should be dismissed on the grounds that the courts of Eritrea were a more appropriate forum for the litigation. In that decision, Madam Justice Mary Newbury observed that, given the evidence of human rights abuses and repression in Eritrea, sending the claim to Eritrean courts risked resulting in “no trial at all.”
“This is a huge victory for our clients in their struggle against massive odds to vindicate their rights,” said Joe Fiorante, Q.C., of Camp Fiorante Matthews Mogerman LLP, lead counsel for the plaintiffs. “With this decision, Canadian courts have now rejected all of Nevsun’s attempts to avoid facing a trial on the allegations that it was complicit in forced labour and grave human rights abuses at the Bisha mine.”
“I am overjoyed that we will have a trial in Canada,” said plaintiff Gize Araya. “The Supreme Court of Canada is giving us a voice to tell our stories about what we suffered at the mine.”
This is the latest in a recent series of rulings allowing claims to proceed in Canadian courts against Canadian mining companies for complicity in human rights abuses abroad. In 2017, the B.C. Court of Appeal permitted another case to go forward against Tahoe Resources for injuries suffered by protestors in Guatemala who were shot outside the company’s mine. A similar case is moving forward in Ontario against Hudbay Minerals.
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