Siskinds LLP, together with the Vancouver law firm Camp Fiorante Matthews Mogerman LLP, are co-counsel for a number of Eritrean refugees who have commenced proceedings in the Supreme Court of British Columbia (“Court”) against Nevsun Resources Ltd., a Vancouver-headquartered mining company incorporated in British Columbia (“Nevsun”). The gravamen of the claims against Nevsun is in forced labour and slavery.
The plaintiffs allege, among other things, that Nevsun’s Bisha mine in Eritrea was developed, in part, using forced labour obtained from the plaintiffs and others coercively and under the threat of torture by the Eritrean government, the military, and its contracting arms. The plaintiffs assert rights of action against Nevsun in traditional common law torts, such as negligence. They also claim that Nevsun has civil liability for complicity in forced labour, slavery, torture, cruel, inhuman or degrading treatment and crimes against humanity, all breaches of the highest order norms of customary international law.
In 2016, the Court heard several preliminary applications to have the plaintiffs’ claims dismissed, stayed or struck. Amongst other things, Nevsun sought to 1) stay the proceeding on the basis that British Columbia is forum non conveniens; and 2) stay or strike the claims on the basis that they are (a) contrary to the act of state doctrine, a common law rule holding that courts cannot adjudicate the lawfulness of the acts of a foreign stated committed within that state’s borders; (b) not actionable against a company, in the case of the alleged breaches of jus cogens norms. The Court dismissed all applications, except for Nevsun’s application for an order preventing the plaintiffs’ claim from proceeding as a representative action [see: Araya v. Nevsun Resources Ltd., 2016 BCSC 1856]. Nevsun appealed the decision of the Court.
In November 2017, the British Columbia Court of Appeal (“Court of Appeal”) dismissed Nevsun’s appeal. The Court of Appeal upheld the lower Court’s findings. [see: Araya v. Nevsun Resources Ltd., 2017 BCCA 401]. This decision was significant as it was the first time an appellate court in Canada had permitted a mass tort claim for modern slavery.
In January 2018, Nevsun sought leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada (“Supreme Court”). The Supreme Court granted leave. [see: Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al., 2018 CanLII 53456]. Nevsun’s appeal was heard on January 23, 2019. No decision has been rendered yet.
None of the plaintiffs’ allegations have been proven. Nevsun has denied the allegations, and the merits of plaintiffs’ claims remain to be determined at trial. A trial of one or more plaintiff’s claims has been scheduled for April 2020.
Siskinds LLP and Camp Fiorante Matthews Mogerman LLP are grateful for the assistance of local counsel in many countries throughout the world, and specifically wish to recognize the assistance of Human Rights Concern Eritrea (UK) and the Hotline for Refugees and Migrants (Israel).