Canada Opens its Courts to Overseas Human Rights Abuses.

• Author: Bowal, Peter
• Position: FAMOUS CASES

On February 28, 2020, the Supreme Court of Canada refused to strike damages claims for international human rights abuses and Canadian torts by three former workers at a Canadian majority-owned mining company in Eritrea. In the five-to-four majority decision in Nevsun Resources Ltd v Araya, the court signalled that Canadian courts are open to hear claims under Canadian law for wrongs committed outside Canada.

Background

The ruling Eritrean regime has an abysmal track record of human rights abuses against its people. In 2018, Forbes magazine called Eritrea the "North Korea of Africa." For example, Eritrea's National Service Program conscripts civilians into mandatory, indefinite military service. This includes for work on public projects in the "national interest", with subsistence wages.

Nevsun's gold, copper and zinc mining operation is one such national interest project. The Eritrean government owned a 40% stake in the mine.

Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle were the named plaintiffs in a class action on behalf of more than 1,000 individuals compelled to work at the Nevsun-owned Bisha mine between 2008 and 2012. They claimed they had to work in dangerous conditions and suffered shocking abuses and punishments. Their employer did not allow them to leave the premises without authorization on their days off. If they did so without permission, they faced severe fines and possible retaliatory acts on their family members.

In 2014, they brought a civil suit against their Vancouver-based employer in a British Columbia court seeking damages for breaches of customary international law (the common law of the international legal system): crimes against humanity, slavery, forced imprisonment and torture. They also sued for conversion, battery, unlawful confinement, conspiracy and negligence in Canadian tort law. Nevsun is a publicly held company incorporated under British Columbia legislation. It moved to strike the claim under the act of state doctrine (which precludes domestic courts from judging acts of sovereign foreign governments) as well as on the basis that the customary international law claims had no reasonable prospect of success.

Supreme Court of Canada Decision

In its decision released more than thirteen months after oral argument, Canada's top court readily embraced (para 1):

" ... the application of modern international human rights law, the phoenix that rose from the ashes of World War II and declared...