The move by a British Columbia company to stop a class action on behalf of Eritreans who say they were forced to work in a mine has failed.
In Araya v. Nevsun Resources Ltd., 2017 BCCA 401, the Court of Appeal for British Columbia has nixed the move by Nevsun to have the action dismissed in British Columbia.
The plaintiffs in the class action are three Eritrean refugees who allege they were forced to work in a gold mine in the country in Northeast Africa. According to the ruling, the mine is partially owned by Nevsun and partially owned by Eritrean state companies.
“There is no doubt that in pursuing claims under [customary international law], the plaintiffs face significant legal obstacles, including states’ legitimate concerns about comity and equality and the role of the judiciary as opposed to that of the legislature. It is not necessarily the case, however, that the recognition of a [customary international law] norm against torture as the basis for some type of private law remedy in this instance would bring the entire system of international law crashing down,” said the ruling by Justice Mary Newbury, with justices Peter Willcock and Gail Dickson agreeing.
The class action is based on allegations by the former miners that “international law norms against forced labour, slavery and torture were violated during the construction of the mine,” according to the ruling. Efforts to sue the company are on behalf of more than 1,000 people who allegedly “had been conscripted into the military under the Eritrean National Service Program and deployed at the mine,” it said.
“The plaintiffs assert that Nevsun engaged the Eritrean military and corporations controlled by it and by the [People’s Front for Democracy and Justice] to build the mine and related infrastructure. For this purpose, the military deployed or provided forced labour, conscripted under Eritrea’s National Service Program,” said the ruling.
“The plaintiffs say they were among those forced to work at the mine in inhuman conditions and under the constant threat of physical punishment, torture and imprisonment, even after they had served their periods of conscription in the military.”
In the proceeding, Nevsun had applied to have an earlier decision of the Supreme Court of British Columbia overturned, Araya v. Nevsun Resources Ltd., 2016 BCSC 1856.
Nevsun applied under the Court Jurisdiction and Proceedings Transfer Act to have the action stayed, arguing that Eritrea would be the appropriate place for the dispute to be resolved.
“Most important for purposes of this appeal, Nevsun denies that the courts of this province have, or should take, jurisdiction to try the case at all. Although a British Columbia court has territorial jurisdiction by virtue of the fact that the company is “ordinarily resident” in the province. . .Nevsun submits that British Columbia is not the most appropriate forum for the determination of the plaintiffs’ claims and that the forum conveniens would be an Eritrean court or other tribunal,” said the ruling.
It also argued that the action should be stayed based on the act of state doctrine, which limits courts from adjudicating matters that involve other governments within their own respective territory. Lastly, it contended that any action based on customary international law should be quashed, over the assertion that no right to civil remedies in Canada for torture if an incident occurs in a foreign country.
However, the Court of Appeal for British Columbia stated the case could proceed.
“We have seen that international law is ‘in flux’ and that transnational law, which regulates ‘actions or events that transcend national frontiers’ is developing, especially in connection with human rights violations that are not effectively addressed by traditional ‘international mechanisms’. . .,” said the ruling.
“Other jurisdictions have been willing to hold corporate actors accountable for violations of jus cogens [compelling law]; and over time, the doctrine of act of state has been limited by public policy considerations said to be part of domestic law.”
Arlene O’Neill, partner at Gardiner Roberts LLP, says the case is important when it comes to the standards that private companies are going to be held to when they’re operating overseas.
“I think it’s quite clear that the standards are going up, and certainly, the standards is public opinion are going up,” says O’Neill, who was not involved in the case.
“Companies when they go overseas, and they go into these joint ventures, they are in the court of public opinion — in Western countries — you’re not going to be able to dip down to local, lower-level of law and say that somehow you’re exempt, from something that is well-accepted, as morally wrong.”