ERITREANS GO TO COURT
Mining suit to be heard in B.C.
Canadian companies have been put on notice by the B.C. Court of Appeal that they can be held accountable in the nation’s courts for human rights abuses committed in foreign countries.
In a ruling with wide implications, the three-justice division dismissed a B.C. firm’s attempts to block a suit by African workers who say they were forced to toil as slaves at a gold mine 60 per cent owned by Nevsun Resources Ltd. and 40 per cent owned by Eritrean state companies.
“It’s a very important win because it means the case can proceed and Nevsun will have to answer the case on the merits, meaning they are going to have to respond to the allegations they were complicit in the use of forced labour in the building of that mine,” said Joe Fiorante, a lawyer who represented the refugees.
“This decision does not in any way go into the merits of the allegations. What it says is the allegations will have to be confronted and dealt with in a proper court hearing in British Columbia, and there are a number of novel legal issues that will have to be addressed at trial based on the full evidence. But this is a major win.”
He added that the firm headquartered in Vancouver has been trying for the last three years to have the litigation thrown out for several reasons.
In its preliminary motions, for instance, Nevsun argued Eritrea was a more appropriate place to hear the case, and that the case involved foreign governmental acts that Canadian courts cannot challenge.
The province’s high court agreed in the 198-page decision that the suit raised complicated issues of international and transnational law in circumstances where the foreign court, on the Horn of Africa, is alleged to be unlikely to provide even the basic elements of a fair trial.
“Some of these issues have never been addressed directly by a Canadian court,” Justice Mary Newbury noted, supported by colleagues Peter Willcock and Gail Dickson.
“Underlying all of them are difficulties concerning the proof of assertions such as those made by the plaintiffs about the nature of the Eritrean regime and the state of its legal system.”
Nevertheless, they said the case should proceed to trial and those concerns addressed in that forum.
“Nevsun does not comment on matters that remain before the court,” the mining firm said in an email. “The Bisha Mine is committed to safe and responsible operations that respect the interests of local communities, workers, stakeholders and the natural environment. There are contractual commitments in place that strictly prohibit the use of national service employees by Bisha’s contractors and subcontractors.”
Nevsun’s Bisha Mine, not far from the Red Sea, was jointly developed with the reputedly repressive Eritrean government.
In 2014, three Eritrean refugees filed a lawsuit in B.C. Supreme Court claiming that through the Eritrean National Service Program, they were forced to work in inhumane conditions.
The men claimed they worked long hours, suffered from malnutrition, were confined in small spaces and received little pay while under the constant threat of physical punishment, torture and imprisonment. They have since been joined by some 50 others.
The plaintiffs tried to bring the case as a representative action — similar to a U.S. class action — on behalf of all Eritreans conscripted into the national service program who have worked at the Bisha Mine since 2008.
Last year, the B.C. Supreme Court ruled they could have their day in Canadian court, but not as a representative action — the individuals must each file their own claim because they need to be individually examined.
Still, Justice Patrice Abrioux concluded they would face “real consequences” if they went back to Eritrea, especially if they returned “to commence legal proceedings in which they make the most unpatriotic allegations against the state and its military, and call into question the actions of a commercial enterprise which is the primary economic generator in one of the poorest countries in the world.”
He added: “Any judge hearing the case (in Eritrea) and who ruled in their favour would place his or her career and personal safety in jeopardy.”
The decision was only the second time a court had allowed a case to proceed against a Canadian mining corporation for overseas human rights abuses, and the first based on what is called customary international law.
The company appealed, but the panel endorsed Abrioux.
The trial will focus on allegations that Nevsun engaged two Eritrean state-run contractors and the Eritrean military to build the mine’s facilities, and that the companies and military deployed forced labour under abhorrent conditions.
The lawsuit is one of the first human rights suits in Canada to assert claims based on international law prohibitions on forced labour, slavery, torture and crimes against humanity.
None of the groundbreaking claims have been proven in court.
Fiorante said the company can apply for leave to appeal Tuesday’s decision to the Supreme Court of Canada, but the high bench refused to review an earlier case based on similar legal principles.
Regardless, a trial will not occur quickly, he said. “It will be at least a couple of years.”
“Where Canadian companies are alleged to have been involved in human rights abuses overseas, they can expect that those cases will now be brought in courts in Canada, and the courts will be open to hearing them. That’s the broader implication.”