Amnesty International and the International Commission of Jurists were represented in this case by Paul Champ, Jennifer Klinck, François Larocque, and Penelope Simons.
WHAT IS THIS CASE ABOUT?
In November 2014, Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle filed a claim for damages at the Supreme Court of British Columbia against Nevsun Resources Ltd [“Nevsun”], which is a Canadian mining company based in Vancouver. The plaintiffs claim that through its Eritrean subsidiary, the Bisha Mine Share Company, and in complicity with the government and military of the state of Eritrea, Nevsun is liable for gross human rights violations alleged to have taken place at the mine, such as slavery and forced labour, torture and crimes against humanity.
The plaintiffs, who claim to have fallen victim to these human rights abuses, are bringing claims for damages grounded in private law torts as well as in breaches of peremptory norms of customary international law. Nevsun denies the allegations in the claim and maintains that the court should not allow the claim to proceed. Nevsun argues that its liability is secondary to the alleged illegality of the National Service Program, an act of the State of Eritrea in Eritrean territory, which forced people to work at the mine. As such, Nevsun argues that it cannot be held liable for any of the alleged abuses at the mine as the ‘act of state’ doctrine precludes the court from assessing the validity of sovereign acts of foreign states within their own territory. In addition, Nevsun submits that the Canadian courts should not recognize a cause of action for damages based on alleged breaches of norms of customary international law.
The Supreme Court case arises out of a Supreme Court of British Columbia decision to dismiss motions brought by the appellant to stay, dismiss or strike aspects of the respondents’ (plaintiffs’) claims on October 6, 2016. These motions argued that Eritrea is the forum conveniens (more appropriate forum for the lawsuit), that the claims are precluded by or have no reasonable chance of success due to the act of state doctrine, and the inapplicability of customary international law. On November 21, 2017, the Court of Appeal for British Columbia dismissed Nevsun’s appeal. The Court of Appeal rejected the application of the act of state doctrine and found that the chambers judge had not erred in declining to strike the plaintiffs’ claims founded in the customary international law.
INTERVENTION BY AMNESTY INTERNATIONAL AND THE INTERNATIONAL COMMISSION OF JURISTS
Amnesty International and the International Commission of Jurists (ICJ) intervened before the Supreme Court of Canada in the case. In our intervention, we submitted that the development of common law doctrines of judicial abstention and causes of action should be consistent with the right to an effective remedy for human rights violations, as protected under international law and as a fundamental value enshrined in the Canadian Charter of Rights and Freedoms (“Charter”). This requires a rejection of any definition of the doctrine of act of state that denies access to a remedy for serious human rights violations, and indeed, requires a cautious approach to recognizing a doctrine of act of state in Canada, if at all.
Amnesty International additionally submitted that it further requires the recognition of civil claims based on injury resulting from conduct that violates customary international human rights law. Accordingly, Amnesty and the ICJ submitted that that superior courts may develop the common law to recognize novel causes of action at common law for violations of well-established norms of customary international law.
STATUS OF THE CASE
The Supreme Court granted Nevsun’s application for leave to appeal on June 14, 2018. The hearing was held on January 23, 2019, where the Court addressed the following issues raised in the case: (i) Does the act of state doctrine operate in Canadian law and its application to this case? (ii) Should the claim for damages based on alleged breaches of peremptory norms of customary international law be allowed to proceed?
In a landmark decision released on February 28, 2020, the majority of the Supreme Court dismissed Nevsun’s appeal. They ruled that the act of state doctrine does not operate in Canadian law. Furthermore, they ruled that customary international law is automatically adopted and incorporated into Canadian law unless there is legislation to the contrary. This means that customary international law is a part of Canadian law, including the peremptory norms of customary international law breached by Nevsun’s activities in Eritrea. The Court also affirmed that customary international law does not only apply to states but to corporate actors as well. Based on their analysis, the Court held that the workers’ civil lawsuit should be allowed to proceed in Canada as part of seeking an effective remedy against violations of peremptory norms of customary international law.
“Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses” (27 December 2018)