Week of 2 March 2020
The Supreme Court of Canada finds for the first time in Canadian legal history that a mining company (Nevsun Resources) can be sued for breaches of customary international law (including modern slavery) in its majority-owned joint venture overseas; decision paves the way for other lawsuits in common law countries
Three workers claim they were forced to work in harsh and dangerous working conditions at an Eritrean copper, gold, silver and zinc mine (the Bisha mine). This was part of the Eritrean ‘National Service Program’, whereby Eritreans are compelled to work on a non-voluntary basis for military projects. The mine they worked at was owned by Bisha Mining Share Company, which in turn was 60% owned by Canadian company Nevsun Resources Ltd and 40% owned by the Eritrean National Mining Corporation (ENAMCO). These three workers sued Nevsun Resources in Canada for violations of customary international law (including forced labour as well as cruel, unusual, or degrading treatment).
On February 28, the Supreme Court of Canada decided that the lawsuit against mining company Nevsun Resources for violations of customary international law (including modern slavery) in its majority-owned joint venture in Eritrea can go forward in Canadian courts.
The majority of judges at the Supreme Court of Canada decided that the ‘act of state doctrine’ (which would have prevented Canadian courts from ruling on what happened in Eritrea because it was a sovereign act of a foreign government) does not apply in Canadian law. They agreed with the plaintiffs that customary international law is part of Canadian law, and that companies can be sued in court based on breaches of this law. For the non-lawyers here, customary international law is based on established international practice and applies to States, even if it is not written down or provided for under treaty.
This is the first time in Canadian legal history that the Supreme Court of Canada has found that customary international law is part of Canadian common law, and that companies can be sued on that basis. While it is unclear whether Nevsun Resources will be deemed to have breached customary international law, the significance of the ruling lies in the jurisdiction (Canada) and applicable law (customary international law). A number of legal commentators remark on the important precedent this sets for companies being sued in common law countries for incidents taking place overseas.