The BC Court of Appeal has dismissed Nevsun’s applications to have an action alleging human rights abuse blocked.
Eritrean refugees filed a Notice of Civil Claim in November 2014, alleging Nevsun was complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment and crimes against humanity at a gold mine in Eritrea. They also allege private torts consisting of conversion, battery, unlawful confinement, and intentional infliction of mental distress through corporations controlled by Nevsun; negligence; unlawful conspiracy with other corporations and the Eritrean military; and unjust enrichment. Nevsun has a 60% indirect interest in the mine, while Eritrean state companies own the remaining 40%.
Nevsun denies almost all the allegations, including that it engaged the Eritrean military to build the mine and that the plaintiffs were subjected to forced labour, abused or mistreated. It pleads that its subsidiary required that no forced labour be used and that it had various policies in place to guard against abuses.
Nevsun is a BC company, however it contended that Eritrea would be a more appropriate place for the litigation. It also applied to have the action dismissed on the basis of the doctrine of act of state, which precludes courts from adjudicating the legality of a foreign state’s conduct. Finally, it applied to have the causes of action based on Customary International Law struck out on the basis that there is no right in Canada to a civil remedy for acts of torture committed outside Canada. These applications were filed in August 2015 and were dismissed by the chambers judge in October 2016. Nevsun appealed to the BC Court of Appeal.
The appeal was dismissed. Madam Justice Newbury found that the chambers judge had not erred in finding a real risk of corruption and unfairness in the Eritrean legal system or in dismissing the application to have the claims tried in Eritrea. The chambers judge had also not erred in dismissing the Act of State Application, as the act of state doctrine was not applicable to the case. Finally, the chambers judge did not err in finding that the Customary International Law claims were not bound to fail or in declining to strike out the related causes of action.
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.