Supreme Court Of Canada Case In Depth: Nevsun Resources Ltd. v. Araya, 2020 SCC 5.

On February 28, 2020, the Supreme Court of Canada rendered its decision in Nevsun Resources Ltd. v. Araya. After a reserve of almost 13 months, the Court rendered judgment with a 5-2-2 split. The majority's reasons were delivered by Abella J., with Brown and Rowe JJ. dissenting in part, and Côté and Moldaver JJ. dissenting in full.

The case raises the following key question – can a private, non-state actor be held liable in Canada for its alleged breaches of international law abroad? According to the majority in Nevsun, the answer is yes. Not only can a private non-state actor be held liable for a breach of key customary international legal norms, these norms can also form the proper basis for novel claims in Canada. In reaching this conclusion, the majority also clarified that Canadian courts are free to decide matters relating to the actions of a foreign state as long as the foreign state is not a party to the proceedings in question.

The decision, however, features a strong dissent, with both of the minority opinions criticizing the majority for overstepping the proper institutional limits of a court. In so doing, the majority and minority reasons highlight two sides of the conceptual battle with respect to the relationship between domestic law and international law. For the majority, domestic Canadian law and international law are one and the same, each mutually reinforcing and influencing the other unless the Canadian legislature explicitly chooses to opt out. For the minority, it appears that international law is merely a source of Canadian domestic law, one that should not be assumed but rather reviewed and assessed in each circumstance. Further, in some cases, the minority seems to take the position that certain elements of international law are the exclusive jurisdiction of Canada's executive branch, and are therefore outside the purview of Canadian courts.

Facts and Background

The case arises from the experiences of three Eritrean refugees currently living in Canada, Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle (collectively the "workers"), all of whom worked in the Bisha mineral mine in Eritrea. The mine is owned and operated by an Eritrean mining company (Bisha Mining Share Company, or "BMSC"), which in turn is 40 per cent controlled by another Eritrean mining company (Eritrean National Mining Corporation) and 60 per cent controlled by the Appellant, Canadian mining company Nevsun Resources Ltd. ("Nevsun"). Nevsun is a mining company incorporated pursuant to the laws of British Columbia.

As part of its operation of the Bisha mine, BMSC hired a South African company, SENET ("SENET"), to manage construction of the mine. On BMSC's behalf, SENET entered into subcontracts with two other Eritrean construction companies – Mereb Construction Company ("Mereb"), controlled by the Eritrean military, and Segen Construction Company ("Segen"), owned by Eritrea's only political party, the People's Front for Democracy and Justice.

Since 1995, Eritrea has implemented a national conscription program that requires all Eritreans, upon reaching the age of 18, to complete military training and service. Notably, military service can include assisting in the construction of public projects that are deemed to be in the national interest. In 2002, the previous 18 months service period under the national conscription program became indefinite, forcing conscripts to provide labour at low wages for various Eritrean companies which are owned by senior Eritrean military and/or party officials for an indefinite period of time. Mereb and Segen are among those companies which received military conscripts.

The workers, who were all conscripts within the national program, were sent to work in the Bisha mine at different points between 2008 and 2010. Each claimed that they were forced to provide labour in harsh and dangerous conditions (e.g. twelve-hour work days, six to seven days a week, in close to 50 degrees Celsius weather) for many years and subject to various forms of severe punishment. They further claimed that they were paid extremely low wages, which could be docked for failure to return to work following illness. For particularly long absences, the workers claimed that they risked especially severe punishment and the threat of retribution against their families.

Having escaped Eritrea to live in Canada, the workers initiated class proceedings in British Columbia against Nevsun for the alleged atrocities the workers experienced working in the Bisha mine. Representing individuals who have been compelled to work at the Bisha mine between 2008 and 2012, the workers sought damages for the following:

Breaches of domestic torts including conversion, battery, false imprisonment, conspiracy and negligence; and Breaches of customary international law ("CIL") prohibitions against forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity. In response to the proposed class action, Nevsun brought an early motion to strike the workers' pleadings on the basis of the "act of state doctrine", which is a doctrine that denies domestic courts subject matter jurisdiction to rule on the acts of foreign governments. According to Nevsun, this prohibition includes a decision with respect to Eritrea's national conscription program.

Further, Nevsun's motion advanced the argument that the workers' claims based on CIL had no reasonable prospect of success, and therefore, should be struck as well.

The Chambers Judge Decision (2016 BCSC 1856)

Nevsun initiated a number of...