Canada Supreme Court hearing on jurisdiction in case against Nevsun over allegations of forced labour at mine in Eritrea

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15 April 2019

Canadian courts wrestle with questions of cross-border accountability for human rights abuses

Author: Whitney Eulich & Sara Miller Llana, The Christian Science Monitor

"When mining companies work abroad, should justice follow them home?" 9 April 2019

Canadian mining firms account for 40 percent of large mining operations in Latin America, and there have long been accusations of abuse at their operations on the ground... A decade ago, Canadian courts were reluctant to try these cases domestically, says Ian Binnie, a former Canadian Supreme Court justice... “I think that the judges are becoming more sensitive to the fact that if they refuse jurisdiction in Canada, assuming the head office is here, that these people won’t have any redress and will be left without a remedy..."

... Proceedings against three Canadian companies have been breaking new legal ground... Hudbay Minerals faces three distinct cases... Another case alleges that security personnel at Tahoe Resources, in... Guatemala, opened fire on demonstrations in 2013. The British Columbia Court of Appeal ruled that the case could proceed in Canada, and it is now before the trial court there... A third case involves Nevsun Resources Ltd., which has been sued for alleged complicity in a government subcontractor’s use of forced labor at a mine in Eritrea, worked by conscripts in the repressive country’s national service system. The Supreme Court of Canada is weighing whether Canadian courts should recognize civil claims based on breaches of customary international law, and whether the case can proceed...The Canadian government has responded to pressure for better business conduct abroad by creating a new ombudsman position last January... Many are concerned that the office does not have a sufficient mandate to investigate abuses. “They want what they call joint investigation, so the company has to agree to the investigations,” says Professor Imai, from York University, of mining companies. 

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24 January 2019

Commentary: MiningWatch Canada asserts case against Nevsun Resources for allegations of forced labour in Eritrea should be heard in Canadian courts

Author: Jamie Kneen, MiningWatch Canada

"Can slave labour charges against Canadian company be heard in Canada? Supreme Court of Canada hears arguments today," 23 Jan 2019

[T]he Supreme Court of Canada is hearing an appeal by Nevsun Resources Limited... of lower court rulings that accusations against it regarding the use of forced labour at its Bisha mine in Eritrea should be heard in British Columbia, not Eritrea... The plaintiffs, who are Eritrean refugees, allege that as military conscripts, they were forced to work for an Eritrean military contractor at Nevsun’s Bisha gold-copper mine, in violation of international laws against forced labour, slavery, and torture, and that Nevsun was complicit in their treatment... Nevsun also claims that since the Eritrean government is accused of carrying out the actual alleged abuses, the “act of state” doctrine in the common law, which protects the sovereign rights of governments over their internal affairs (in this case, Eritrea’s treatment of its own citizens), means that this should be a diplomatic case, not a legal one.

MiningWatch Canada... think[s] that though this case does implicate foreign state conduct, it is a private civil dispute and does not engage the Canadian government’s conduct of foreign affairs. We also argue that this view acknowledges the need to provide access to justice, and complements Canadian policies for promoting corporate accountability. In addition, if the act of state doctrine is applied, it must be in a manner that accounts for the difficulties that foreign victims may face in bringing civil claims.

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Author: Timothé Matte-Bergeron, Radio Canada

« Travail forcé en Érythrée : une minière canadienne devant la Cour suprême du Canada », 23 janvier 2019

La Cour suprême du Canada tient des audiences mercredi dans une cause concernant une compagnie minière dont le siège est à Vancouver, Nevsun Resources, et des réfugiés érythréens qui exigent réparation pour la violation alléguée de leurs droits fondamentaux par la compagnie.

L'affaire pourrait créer un précédent important en matière d'imputabilité des compagnies minières canadiennes à l'étranger...

Dans une poursuite déposée en 2014 devant la Cour suprême de la Colombie-Britannique, trois réfugiés érythréens affirment avoir été forcés de travailler à la construction de la mine Bisha en Érythrée, détenue à 60 % par Nevsun Resources. Ils allèguent que leurs droits fondamentaux ont été violés par la compagnie et qu’en plus de les forcer au travail, on les a battus et torturés.

Des documents...suggèrent que de hauts dirigeants de Nevsun Resources étaient au courant que certains travailleurs de la mine ont été recrutés de force...

Nevsun Resources nie ces allégations, et conteste depuis le début des procédures la compétence qu’ont les tribunaux canadiens d’entendre la cause, plaidant qu’elle doit être entendue en Érythrée...

C’est sur la question de la compétence des cours canadiennes que se prononcera la Cour suprême du Canada...

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24 January 2019

Top court weighs precedent-setting case of human rights breaches at Canadian mine in Eritrea

Author: Kathleen Harris, CBC News

The Supreme Court of Canada heard arguments today in what could be a precedent-setting case for Canadian companies that do business abroad... B.C.-based mining company Nevsun Resources Ltd. is being sued for its alleged complicity in the forced labour, slavery and torture of workers at the Bisha gold, zinc and copper mine in Eritrea... Nevsun lawyer Mark Andrews said today it is "beyond debate" that the fundamental complaint is about the conduct of Eritrea, and warned of the dangers of having a Canadian court pass judgment on the acts of a foreign state.

... Last year, the Liberal government announced new initiatives to strengthen Canada's approach to responsible business conduct for Canadian companies operating abroad, including a new office of the Canadian Ombudsperson for Responsible Enterprise. A year later, the position remains vacant... NDP MP Peter Julian has proposed a private member's bill that would give the Federal Court authority to hear civil cases involving alleged human rights abuses involving Canadian companies operating abroad.

... Paul Champ, a lawyer for Amnesty International Canada... said the case points to a "new problem" that has emerged in the last 20 years about corporate responsibility amid increased globalization. "Broadening activities by corporations have not been addressed thus far, and it's our submission that this is how the common law must evolve to address that problem," he said.

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23 January 2019

Webcast of the Hearing on 2019-01-23 - Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al.

Author: Supreme Court of Canada

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22 January 2019

Canada's Supreme Court papers reveal Nevsun's internal communication on use of forced labour at their Eritrean mine

Author: Scott Anderson, CBC

"What did Canadian mining executives know about possible human rights violations in Eritrea?"

For years, Vancouver-based mining firm Nevsun Resources has dismissed allegations that forced labour was used to build its mine in the repressive east African country of Eritrea. Nevsun executives have denied direct knowledge of human rights violations at their Bisha mine site in a CBC interview and during an appearance before a parliamentary committee. But company documents filed in the Supreme Court of British Columbia last November and reviewed by CBC's The Fifth Estate show executives at the highest level appear to have been informed of issues of forced labour at their mine site a decade ago. Former Bisha mine workers are suing Nevsun in B.C. for alleged human rights violations — including forced labour, slavery and torture...

But back in 2009, Nevsun was seeking financing during the construction phase of the mine when the issue of forced labour in Eritrea was raised by potential lenders. One email filed in court, dated March 4, 2009, and written by then Nevsun CEO Cliff Davis, is headlined "Private and Confidential due to Sensitivity."  Davis writes that the lenders "have placed another obstacle in the road to finance. They assert that the country practises involuntary labour (forced labour) and before they can lend to the project, BMSC must demonstrate that the Bisha mine will not be a benefactor in any way of such labour, either directly or via any of its contractors." In the same email, Davis notes "we understand there are currently some National Service people working for a key contractor working at site" and that "we are in the process of determining whether the terms of employment would constitute forced labour." Davis suggests BMSC could hire the workers directly or offer them contracts "where they could leave on their own free will."

But Davis goes on to say "None of these solutions are palatable to the Eritreans because: 1. another Westerner telling the Eritreans how to run their country; 2. potential disruption to the national development campaign. Politically a very sensitive topic."

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21 January 2019

Canada's Supreme Court decision in Nevsun case over complicity in alleged forced labour in Eritrea could eliminate barriers to access to justice, says academic

Author: Justin Ling, National Magazine (Canada)

"The sovereignty of states and multinational corporate accountability", 11 Jan 2019

...Later this month, the Supreme Court of Canada will hear Nevsun Resources v Gize Yebeyo Araya, a case that will put the Act of State Doctrine to its first test in a Canadian court.  The case will serve to gauge the extent to which international human rights law has a footing in the Canadian legal system...

The three litigants bringing the case before the Supreme Court are refugees from Eritrea — two currently living in the United States, and one a permanent resident of Canada...

“They allege that during the construction of the mine, they were forced to work in inhumane conditions and under the constant threat of physical punishment, torture, and imprisonment.”...

Should the respondents carry the day, it will represent one of the first times that a case of this nature will actually proceed to the merits.

“It would be important because it could potentially eliminate some of the obstacles in bringing some of these cases to Canada,” Simons says.

If those obstacles are to be dismantled, Nevsun argues, it should be up to Parliament to decide...

Ultimately, what the court says, and how it says it, is going to mean a lot for Canadian-based companies operating abroad.

If the court allows the case to proceed on its merits, virtually every Canadian company carrying on business in states with poor human rights records may have to significantly reassess their liability...


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31 December 2018

Canada Supreme Court to hear case against Nevsun Resources over alleged forced labour & torture at Eritrea mine in January

Author: Julius Melnitzer, Financial Post (Canada)

"Supreme Court set to hear Nevsun Resources case on Eritrea human rights abuses", 27 Dec 2018

The future of the Canadian resource industry hangs in the balance as the Supreme Court of Canada prepares to hear a high-profile case accusing Canadian miner Nevsun Resources Ltd. of human rights abuses in Eritrea.

At the heart of the hearing, set for Jan. 23, is whether customary international law (CIL)...will now apply to Canadian companies...

At the January hearing, the high court will not be tasked with determining the case on the merits. It must only decide whether the case should proceed to trial at all.

Nevsun’s argument is that it should not because, among other things, Canadian law does not recognize that breach of CIL is an actionable wrong when asserted against the private sector...

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29 December 2018

Will Nevsun Mining be Punished for Slavery Abroad?

Author: Globe and Mail (Canada)

On January 23 the Supreme Court will hear arguments in a case that will have major repercussions for Canadian companies with overseas operations.

Mining giant, Vancouver-based Nevsun Resources Ltd, is being sued by Eritrean refugees who claim the company allowed and benefitted from the use of slave labor at its zinc and copper mine in Bisha, Eritrea…

The Mining Association of Canada said this case could hurt their business abroad by creating uncertainty for Canadian companies, prompting them to withdraw from developing countries.

Joe Fiorante, a lawyer for the Eritrean refugees, said this is a landmark case in that no other human rights case against a Canadian company has made it this far through the court system.

“Every attempt prior to this case to bring a human-rights claim against a Canadian company for conduct at an overseas operation has failed to get past the first stage of the test,” he said.

“It’s been dismissed either for lack of jurisdiction, or the courts of Canada have said this is better dealt with in the foreign court. This is the real first test case. It’s gotten over both of those hurdles.”


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