Nevsun lawsuit (re Bisha mine, Eritrea)
In November 2014, three Eritreans filed a lawsuit against Nevsun Resources in Vancouver, British Columbia, Canada. They allege the company was complicit in the use of forced labour by Nevsun’s local sub-contractor, Segen Construction (owned by Eritrea’s ruling party), at the Bisha mine in Eritrea. Nevsun, headquartered in Vancouver, has denied the allegations. This lawsuit is the first in Canada where claims are based directly on violations of international law.
The plaintiffs, Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle, claim that they worked at the Bisha mine against their will and were subject to “cruel, inhuman and degrading treatment”. They allege that they were forced to work long hours and lived in constant fear of threats of torture and intimidation. Nevsun has rejected the allegations as “unfounded” and declared that “the Bisha Mine has adhered at all times to international standards of governance, workplace conditions, and health and safety”.
In October 2016, the Supreme Court of British Colombia rejected Nevsun’s motion to dismiss the lawsuit and ruled that the case should proceed in British Colombia as there were doubts that the plaintiffs would get a fair trial in Eritrea. Nevsun appealed the decision.
In November 2017, the British Columbia Court of Appeal rejected Nevsun's appeal to dismiss the suit, thereby allowing the case to proceed in Canadian courts. The court also allowed claims of crimes against humanity, slavery, forced labour, and torture to go forward against Nevsun. This decision marked the first time an appellate court in Canada permitted a mass tort claim for modern slavery.
On 19 January 2018, Nevsun filed an application with the Canadian Supreme Court asking for permission to appeal the British Columbia ruling. On 14 June 2018, the Supreme Court allowed Nevsun to appeal the November 2017 decision, giving the company another chance to argue against the lawsuit going to trial on 23 January 2019.
- "Supreme Court decision on Vancouver mining company could have international human rights impact, expert says", The Star Vancouver, 25 June 2018
- "Vancouver-based mining company granted Supreme Court appeal in ‘conscripted labour’ case", The Star Vancouver, 22 June 2018
- "Nevsun appeals to Canada Supreme Court in Eritreans' forced labor lawsuit", Reuters, 26 Jan 2018
- "Court allows Eritrean mine workers to sue Nevsun", Nelson Bennett, Business in Vancouver, 6 Oct 2016
- [Video] "Nevsun in Eritrea: Dealing With a Dictator", CBC Radio-Canada, 12 Feb 2016
- [FR] «Une minière canadienne nie des allégations de travail forcé en Érythrée », Radio-Canada, 23 novembre 2014
- “Nevsun Denies Accusations of Human-Rights Abuses at Eritrea Mine”, Michael Gunn & Firat Kayakiran, Bloomberg, 21 Nov 2014
- “Nevsun Resources faces lawsuit over ‘forced labour’ in Eritrea”, Jeff Gray, Globe and Mail (Canada), 20 Nov 2014
Canadian Centre for International Justice (CCIJ):
- "Vancouver court clears way for slave labour lawsuit against Canadian mining company to go to trial", 6 Oct 2016
- “Eritreans file lawsuit against Canadian mining company for slave labour and crimes against humanity”, 20 Nov 2014
- [FR] « Des Érythréens intentent un recours contre une compagnie minière canadienne pour l'usage de main d'œuvre servile ainsi que pour des crimes contre l'humanité », 20 novembre 2014
- "Appeal court confirms slave labour lawsuit against Canadian mining company can go to trial", 21 Nov 2017
Camp Fiorante Matthews Mogerman [Counsel for the plaintiffs]
- "Plaintiffs’ Submissions on Forum Non Conveniens", 17 Dec 2015
- "Plaintiffs’ Submissions on the Representative Proceeding", 17 Dec 2015
- "Plaintiffs’ Submissions on Customary International Law", 15 Dec 2015
- "Plaintiffs’ Submissions on the Act of State Doctrine", 14 Dec 2015
- "Notice of Civil Claim", 20 Nov 2014
Siskinds [Co-counsel for the plaintiffs]
- "Siskinds co-counsel in lawsuit against Nevsun Resources", 20 Nov 2014
Fasken Martineau DuMoulin LLP [Counsel for the defendant]
- "Nevsun’s Chambers Brief on Customary International Law", 1 Dec 2015
- "Nevsun’s Chambers Brief on Forum Non Conveniens", 23 Nov 2015
- "Nevsun’s Chambers Brief on the Act of State Doctrine", 23 Nov 2015
- "Nevsun’s Chambers Brief on the Representative Proceeding", 23 Nov 2015
- "Nevsun’s Response to Civil Claim", 13 Feb 2015
- Webcast of the hearing before the Supreme Court of Canada, 23 Jan 2019
- Araya v. Nevsun Resources. Reasons for Judgment, Justice Abrioux, Supreme Court of British Columbia, 6 Oct 2016
- Araya, Gize v. Nevsun Resources Ltd.[payment required], Vancouver law courts, 20 Nov 2014.
- Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle v Nevsun Resources Ltd and Earth Rights International, Court of Appeal for British Columbia, 21 Nov 2017
All components of this story
Author: Susan Taylor, Reuters (UK)
...Canada’s top court said... that Nevsun filed an application on Jan. 19, seeking permission to appeal a British Columbia court ruling in November, which confirmed the case could proceed in the western Canadian province.
The Supreme Court can grant or deny such applications and there is no fixed time for a decision.
Nevsun confirmed its appeal, but said it would not otherwise comment.
...Nevsun said that it was inappropriate [that] British Columbia judge the legality of a sovereign state’s conduct...
...Nevsun previously argued the case should be dismissed and any lawsuit should be heard in Eritrea, not Canada.
Canada: Lawsuit against Nevsun for alleged forced labour & torture in Eritrea mine can proceed, says Appeal Court
Author: Canadian Centre for International Justice
" Appeal court confirms slave labour lawsuit against Canadian mining company can go to trial ", 21 Nov 2017
British Columbia’s highest court today rejected an appeal by Vancouver-based Nevsun Resources Limited (TSX: NSU / NYSE MKT: NSU) that sought to dismiss a lawsuit brought by Eritreans who allege they were forced to work at Nevsun’s Bisha Mine.
...The court rejected Nevsun’s position that the case should be dismissed in Canada and instead heard in Eritrea.
...The court also allowed claims of crimes against humanity, slavery, forced labour, and torture to go forward against Nevsun. It is the first time that a Canadian appellate court has recognized that a corporation can be taken to trial for alleged violations of international law norms related to human rights.
...This latest ruling by the B.C. Court of Appeal follows one earlier this year permitting a case to go forward against Tahoe Resources for injuries suffered by protestors in Guatemala who were shot outside the company’s mine.
Author: Feriel Mestiri, RTS (Suisse)
La Banque nationale suisse (BNS) et la Banque cantonale zurichoise investissent dans la société minière canadienne Nevsun Resources, empêtrée dans un scandale de travailleurs forcés en Erythrée.
Durant le premier trimestre 2017, la BNS a continué d'investir dans la société canadienne controversée, à hauteur de 492'700 actions d'une valeur de plus de 1,2 million de dollars, soit environ 0,16% de la société...
Or, Nevsun Resources, qui détient 60% de la mine d'or et de cuivre Bisha, en Erythrée, est empêtrée depuis des mois dans un scandale de travailleurs forcés présumés...
"L'intérêt de la Banque nationale [suisse] pour les investissements en actions est purement financier. La BNS ne s'immisce pas dans les affaires courantes des entreprises", a-t-elle répondu, précisant toutefois appliquer "des critères éthiques d'exclusion très clairs", pour des questions relevant notamment de "violation massive des droits humains fondamentaux"
...La Banque nationale Suisse, qui "suit une gestion indicielle", n'est pas la seule à croire en l'indice boursier Nevsun Resources. De nombreux investisseurs ont également parié sur la société canadienne. Parmi eux, la Banque cantonale de Zurich, qui avait augmenté de 12,7% ses investissements Nevsun Resources durant le premier trimestre 2017...
Commentary: Recent decisions show willingness of Canadian courts to hold companies liable for overseas abuses of intl. human rights norms
Author: Michael G. Congiu, John Kloosterman, Stefan Marculewicz, Aaron Saltzman & Lavanga Wijekoon; Littler, on JD Supra (USA)
"Advancing Human Rights Claims Based on Global Supply Chain Activities: Recent Developments in California and Canada", 15 Feb 2017
Courts in California and Canada have emerged as testing grounds for advancing claims of forced labor in global supply chains...Over the past several years, non-Canadian plaintiffs have filed multiple civil actions in Canada against multinational companies that are based or incorporated in Canada on the theory that international norms...form a standard of care that, when violated, constitutes actionable negligence...In Nevsun and Garcia, Canadian courts have signaled a willingness to permit non-Canadian plaintiffs to pursue monetary damages against Canadian-based multinational companies based on violations that allegedly occurred on foreign soil...[T]he Nevsun opinion suggests that Canadian law could allow foreign plaintiffs to pursue private rights of action against Canadian companies based on violations of customary international law...[T]he Canadian cases suggest that it is increasingly important that multinational companies monitor their supply chains, or they could face litigation at home over alleged malfeasance...Plaintiffs will likely be heartened by these developments...and rely on them to further transform “soft law” into “hard law” in support of their efforts to impose international norms...as a standard of care for multinationals operating overseas.
Commentary: Canadian court decision allowing alleged modern slavery case in Eritrean mine against Nevsun to go forward can have implications across industries
Author: Sandra Rubin, Lexpert (Canada)
"Decision to hear slavery case has implications across industries", 7 Nov 2016
A decision by the Supreme Court of British Columbia giving three Eritrean men the green light to proceed with a modern-day slavery lawsuit against Vancouver-based Nevsun Resources Ltd. in Canada rather than Eritrea has implications for hundreds of Canadian companies that do business or have suppliers based in countries with questionable human-rights records...The decision...marks the first time a Canadian court has agreed to hear a tort claim for modern slavery...Nevsun’s involvement in the policy and affairs of the mine’s operating subsidiary was in excess of the “normal role of association” between a holding company and a subsidiary...Justice Abrioux allowed the claims that Nevsun was an accomplice to crimes against humanity, slavery, forced labour and torture to go forward...Using the argument that a corporation can be sued civilly for “aiding and abetting” such crimes is believed to be a case of first impression...[T]he same argument may be used against all kinds of public companies whose supply chain extends into countries with dubious human-rights records...
Author: Karen McVeigh, Guardian (UK)
"Canadian firm faces new forced labour claims over Eritrean mine", 14 Oct 2016
Dozens of Eritreans are to join a groundbreaking civil action in Canada as plaintiffs in a lawsuit against Nevsun Resources...following a ruling last week. Two of them...spoke out for the first time about what they claim they experienced at the mine: forced labour, horrendous working conditions and a climate of fear and intimidation...According to his lawyers, he is one of dozens of Eritreans who will be joining a historic civil action in Canada as plaintiffs against Nevsun Resources...Their testimonies follow a ruling last week by a Canadian court, which paved the way for a lawsuit against Nevsun Resources over claims of forced labour at the Bisha mine. The ruling rejected arguments put forward by the Vancouver-based mining company that the case should be heard in Eritrea rather than Canada. The accounts offered by Kadane and Aman will be used by lawyers for the plaintiffs as evidence in the ongoing case...None of the accusations have been proven in court...In its response to the ruling on 6 October, by the supreme court of British Columbia, Nevsun said it was studying the court’s decision and is considering an appeal...
Author: Tamara Morgenthau, Earth Rights International
...Last week, the Supreme Court of British Columbia ruled that Eritrean refugees who allege they were subjected to forced labor and torture at Nevsun Resources’ Bisha Mine can have their day in court. This is a monumental decision, as it is only the second time a Canadian court is allowing a case against a Canadian mining corporation for overseas human rights abuses to proceed to trial (the other decision is Choc v. Hudbay). It is also the first case against a corporation proceeding on claims based on customary international law...This is the first decision in British Columbia finding that the province is an appropriate place for a case involving transnational corporate human rights abuses...This case is one of the first cases in Canada to directly plead, and proceed to trial, on violations of customary international law...Unfortunately, the judge did not allow the case to proceed as a representative action...This decision will likely be appealed, and many issues remain to be decided at trial. But, this decision marks a significant step forward in victims’ fight for access to justice against Canadian corporations involved in human rights abuses outside of Canada.
Author: Justice Abrioux, Supreme Court of British Columbia
The plaintiffs, who are refugees from the State of Eritrea which is located in East Africa, make allegations of the most serious nature against the defendant Nevsun...The proceeding raises issues of transnational law being the term used for the convergence of customary international law and private claims for human rights redresses and which include: (a) whether claims for damages arising out of the alleged breach of jus cogens or peremptory norms of customary international law such as forced labour and torture may form the basis of a civil proceeding in British Columbia; (b) the potential corporate liability for alleged breaches of both private and customary international law. This in turn raises issues of corporate immunity and whether the act of state doctrine raises a complete defence to the plaintiffs’ claims...Nevsun has not established that Eritrea is the appropriate forum. Accordingly the action will proceed in this Court...
Author: Nelson Bennett, Business in Vancouver
In a decision that is likely to have every Canadian mining and oil and gas company that operates in a developing country sitting up and taking notes, the BC Supreme Court today ruled that a civil action brought by three Eritrean workers against Vancouver’s Nevsun Resources...On October 6, Justice Patrice Abrioux rejected Nevsun’s move to dismiss the case...The ruling may set an important precedent for Canadian companies operating outside of Canada. More than three-quarters of the world’s mining and exploration companies are based in Canada and operate in 100 countries...“The Nevsun case is the first case of this kind against an extractive company that had been operating overseas, in this context, to go forward.”...Canadian courts have jurisdiction to try Canadian companies for alleged criminal acts that occurred in other countries, but have been reluctant to do so...In rejecting Nevsun’s motion to have the action against it dismissed, Abrioux said there was some doubt that the three Eritreans would get a fair trial in Eritrea”...Nevsun said it is studying the court’s decision and considering appealing it.
Author: La Presse Canadienne
Des travailleurs étrangers qui accusent une entreprise établie à Vancouver de crimes contre l'humanité dans une mine en Afrique pourront se faire entendre par le système judiciaire canadien.
La Cour suprême de la Colombie-Britannique a publié un jugement dans lequel elle donne son aval à la poursuite civile intentée par trois réfugiés contre Nevsun Resources Ltd., qui détient une participation majoritaire dans la mine d'or Bisha, en Érythrée…
…[Il s’agit] d'une première. Aucun ressortissant étranger n'avait encore pu intenter de poursuites contre une entreprise canadienne sur des allégations de violations des droits de la personne…
Par communiqué, Nevsun a indiqué qu'elle étudiait le jugement et envisageait la possibilité d'interjeter appel. Selon l'entreprise, le tribunal n'a pas trouvé une seule preuve relativement aux accusations des plaignants, ajoutant que ceux-ci n'ont même pas démontré qu'ils ont travaillé à la mine Bisha…