Mining Company Asks Supreme Court To Hear Its Challenge To Allegations Of Human Rights Abuses In Eritrea

Nevsun Resources, a British Columbia mining company, has asked the Supreme Court to hear its appeal from a recent B.C. ruling that would send the human rights claims of a group of Eritrean plaintiffs towards trial.

The plaintiffs allege that the company was complicit in torture, slavery, forced labour, and other human rights abuses at its Bisha mine in Eritrea. The company strongly denies liability for the claims. This is the latest instance of foreign litigants seizing on a fast-evolving area of law that seeks to hold transnational businesses liable for abuses of human rights committed abroad.

In late November 2017, the B.C. Court of Appeal issued lengthy reasons that allowed the plaintiffs to proceed toward trial of their claim in the British Columbia courts. The company has just filed an application for permission to appeal to the Supreme Court of Canada.

Emerging "Transnational" Legal Principles

Araya v. Nevsun Resources Ltd., 2017 BCCA 401 [Nevsun]1 is one of several Canadian lawsuits grounded on the emerging area of "transnational" law. Transnational law concerns the legal standards that apply to events or conduct that transcend international borders. In some cases, transnational law seeks to leverage public international law principles, or "norms", to establish liability in one state's courts flowing from violations of public international law (such as human rights abuses) that occur in another state.

In Nevsun, for example, the Eritrean plaintiffs seek remedies against Canadian defendants, in Canadian courts, for alleged human rights violations that occurred in Eritrea. Repugnant practices such as torture and slavery are illegal under public international law and under treaties to which Eritrea and Canada are both parties.

The plaintiffs allege that the company was complicit in the illegal conduct committed by the Eritrean government or its entities. The issue of a Canadian courts' jurisdiction to sit in judgment on another state's actions was debated at length in the B.C. courts.

The B.C. Court of Appeal Decision

The plaintiffs' claim arose out of allegations of torture, slavery, forced labour, and other human rights violations at Nevsun's Bisha mine in Eritrea. The plaintiffs allege that the acts were committed by the military, corporations controlled by the military and the Eritrea's ruling (and only) political party, with whom Nevsun partnered to build the mine.

After filing its defence, Nevsun brought preliminary motions...