Nevsun Resources Ltd v Araya,
| Judge | Wagner CJ,Abella,Moldaver,Karakatsanis,Gascon,Côté,Brown,Rowe,Martin JJ |
| Court | Supreme Court (Canada) |
| Date | 28 February 2020 |
Canada, Supreme Court.
(Wagner CJ; Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ)
Human rights — Modern international human rights law — Scope — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Addressing breaches of customary international law prohibitions — Role of national courts — Respondents claiming indefinite conscription through military service into forced labour in Eritrea at mine — Mine owned by Canadian company — Respondents claiming subjection to violent, cruel, inhuman and degrading treatment — Respondents bringing class action against Canadian company in Canada — Respondents seeking damages for breaches of customary international law prohibitions and domestic torts — Justiciability of claim — Whether Canadian courts lacking subject-matter jurisdiction — Act of State doctrine — Whether claims based on customary international law to be struck — Whether pleadings disclosing no reasonable claim — Whether plain and obvious claims having no reasonable prospect of success
Jurisdiction — Subject-matter jurisdiction — Whether Canadian courts having jurisdiction over respondents' claim — Respondents claiming indefinite conscription through military service into forced labour in Eritrea at mine owned by Canadian company — Respondents claiming subjection to violent, cruel, inhuman and degrading treatment — Eritrea's National Service Program — Whether respondents' claim concerning sovereign act of foreign government — Act of State doctrine — Whether part of Canadian law — Underlying principles of act of State doctrine — Conflict of laws — Judicial restraint — Whether respondents' claim barred
Relationship of international law and municipal law — Customary international law — Whether part of Canadian law — Whether conflicting Canadian legislation — Separation of powers — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Respondents relying on norms of customary international law in claim for damages against Canadian company — Role of national courts in developing international law — Evolution of customary international law — State practice — Opinio juris — Peremptory norms — Jus cogens — Whether customary international law norms applying to corporations — Right to an effective remedy — Canada's international obligation under International Covenant on Civil and Political Rights, 1966 — Whether plain and obvious Canadian courts could not develop a civil remedy in domestic law for corporate violations of customary international law norms — Whether plain and obvious respondents' claims against Canadian company could not succeed — Act of State doctrine — Whether part of Canadian law — Extent and scope
Damages — Customary international law prohibitions — Forced labour — Slavery — Cruel, inhuman or degrading treatment — Crimes against humanity — Breaches — Civil law remedies — Respondents seeking damages for breaches of customary international law prohibitions and domestic torts — Whether claim for damages for breaches of customary international law prohibitions under Canadian law possible — Whether norms different from existing domestic torts — Right to an effective remedy — Canada's international obligation under International Covenant on Civil and Political Rights, 1966 — Whether plain and obvious Canadian courts could not develop a civil remedy in domestic law for corporate violations of customary international law norms — Whether respondents' claims allowed to proceed — The law of Canada
Summary:2The facts:—The respondents, three Eritrean workers who became refugees, brought a class action in British Columbia against the appellant Canadian company, Nevsun Resources Ltd (“Nevsun”). They claimed that they had been indefinitely conscripted through their military service into forced labour in Eritrea between 2008 and 2012 at a mine owned by Nevsun, and subjected to violent, cruel, inhuman and degrading treatment. They sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity as incorporated into Canadian law, as well as for breaches of domestic torts.
Nevsun brought a motion to strike out the action since the act of State doctrine precluded the courts of British Columbia from assessing the sovereign acts of a foreign government, such as Eritrea's National Service Program. It also maintained that the claims based on customary international law should be struck out for disclosing no reasonable claim.3 The Court of Appeal of British Columbia unanimously confirmed the lower court's decision to dismiss the motion to strike, finding that those claims were not necessarily bound to fail since the law in this area was developing. Nevsun appealed. It maintained that the claim was non-justiciable due to the act of State doctrine, and that no claim for damages could be made under Canadian law for the alleged customary international law violations.
Held (by a majority, Brown and Rowe JJ dissenting in part, Côté and Moldaver JJ dissenting):—The appeal was dismissed.
Per Abella J (Wagner CJ, Karakatsanis, Gascon and Martin JJ concurring):
(1) The act of State doctrine was not part of Canadian law. Neither that doctrine, nor its underlying principles as developed in Canadian jurisprudence, barred the respondents' claims.
(a) While the act of State doctrine was known, and heavily criticized, in England and Australia, it played no role in Canadian law. Although there was no single definition, a useful starting point was that it was a rule of domestic law which held the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign State. It was distinct from, but shared some features with, State immunity. The doctrine had been diluted by qualifications and limitations. While English jurisprudence continually
reaffirmed and reconstructed the doctrine, Canadian law had developed its own approach to address its underlying principles of conflict of laws and judicial restraint (paras. 27–44).(b) With respect to foreign law enforcement, Canadian courts used private international law principles which called for deference but allowed for judicial discretion where laws were contrary to public policy, including respect for public international law. They could deal with laws or acts of a foreign State where the question arose merely incidentally; in some cases adjudication of international law questions was unavoidable. Deference accorded by comity ended where clear violations of international law and fundamental human rights began (paras. 45–55).
(c) While English common law, including some cases forming the basis of the act of State doctrine, was received into Canadian law at various times, Canadian jurisprudence had not attempted to unite the doctrine's underlying principles as a single doctrine. The act of State doctrine could not now be imported into Canadian law (paras. 56–9).
(2) Customary international law was part of Canadian law. Since Nevsun was a company bound by Canadian law, the norms relied on by the respondents potentially applied to it. As the current state of law in this area remained unsettled, it was not plain and obvious that the respondents' claims against Nevsun based on breaches of customary international law could not succeed. They were therefore allowed to proceed.
(a) Canadian courts, like all courts, played an important role in the ongoing development of international law. In understanding that role of implementing and advancing customary international law, Canadian courts could contribute meaningfully to domestic court judgments around the world, shaping the substance of that law (paras. 70–2).
(b) Since customary international law, as the common law of the international legal system, was constantly and incrementally evolving based on changing practice and acceptance, it defied precise definition. The norms alleged to have been breached by Nevsun, however, were accepted as having emerged from modern international law in response to the events of the Second World War. The authoritative sources of modern international law were found in Article 38(1) of the Statute of the International Court of Justice. Since national court decisions evidenced general practice or opinio juris, they were crucial in shaping customary international law norms. A peremptory, or jus cogens, norm was non-derogable and fundamental to the international legal order (paras. 73–84).
(c) Since customary international law was automatically incorporated into Canadian domestic law in the absence of conflicting legislation, it was also the law of Canada, to be respected like any law. It was appropriate to take judicial notice that crimes against humanity and the prohibition of slavery were peremptory norms. The prohibition against forced labour was a customary international law norm; there was compelling authority that it had attained jus cogens status. The prohibition against cruel, inhuman and degrading treatment had been described as an absolute right; this was reflected in the ratification of several treaties (paras. 85–103).
(d) It was not plain and obvious that corporations enjoyed blanket exclusion under customary international law from direct liability for violations of obligatory, definable and universal norms of international law, or indirect liability for involvement in complicity offences. International law had expanded and was no longer State-centric. Human rights law had made the individual integral to international law. While human rights were enforceable against the State, they were not defined by that relationship; these rights could be violated by private actors, which did not exclude corporations. Both States and individuals...
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