Nevsun Resources, (TSX: NSU / NYSE MKT: NSU) will face charges of forced labour in the Canadian courts, even though the allegations of slavery by its Bisha Mining Share Company subsidiary occurred in Eritrea. However, the three Eritrean men will have to pursue their cases individually rather than as a class action as they had planned.
The Supreme Court of British Columbia rejected the arguments by the Vancouver-based company that the case should be dismissed in Canada and instead heard in Eritrea. The Canadian Centre for International Justice (CCIJ), which is supporting the men’s legal case said this marked the first time that a mass tort claim for modern slavery will go forward in a Canadian court, and the first time a case against a mining company for alleged abuses in overseas operations has been allowed to proceed in British Columbia. The Eritrean men allege they were forced to work at Nevsun’s Bisha Mine.
Justice Abrioux ruled, “There is sufficient cogent evidence from which I can conclude that there is a real risk that the plaintiffs could not be provided with justice in Eritrea.” Justice Abrioux continued, “This is particularly the case if they then chose to commence legal proceedings in which they … call into question the actions of a commercial enterprise which is the primary economic generator in one of the poorest countries in the world.”
In what the CCIJ called a groundbreaking decision, Justice Abrioux determined that claims of crimes against humanity, slavery, forced labour and torture can go forward against Nevsun. It is the first time that a Canadian court has recognised that a corporation can be taken to trial for alleged violations of customary international law, the pressure group said.
“Today’s historic judgment allows the case to move forward to a trial on the merits,” said Joe Fiorante, Q.C., of Camp Fiorante Matthews Mogerman, lead counsel for the plaintiffs. “We now intend to use the court’s discovery processes to conduct an exhaustive investigation into the truth of what Nevsun really knew about the human rights situation at the mine.”
The lawsuit filed in November 2014 alleges 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”.
In the judgment, Justice Abrioux cited to the conclusions of a recent United Nations Commission of Inquiry into the human rights situation in Eritrea. In June 2016, the commission found that the Eritrean government has been responsible for crimes against humanity, including its nationwide system of indefinite conscription, for twenty-five years. The commission concluded that the government of Eritrea employs “totalitarian practices” and that “[e]nslavement has been committed on an on-going, large-scale and methodical basis.”
Matt Eisenbrandt, legal director of the CCIJ and a member of the plaintiffs’ legal team, said, “Canadian courts appear to be increasingly open to survivors of abuses linked to the operations of mining companies abroad,” said . “Survivors want Canadian companies held accountable in Canada, and today’s judgement is an important step toward making that a reality.”
The claimants are supported in Canada by a legal team comprised of Vancouver law firm Camp Fiorante Matthews Mogerman, Ontario law firm Siskinds, Toronto lawyer James Yap; and the CCIJ .
Commenting on the Court ruling Nevsun noted that the court had refused to permit a claim against Nevsun to proceed as a common law class action. The company also said that the court decision addressed only preliminary legal challenges to the action raised by Nevsun.
Nevsun stated, “The judgement makes no findings with respect to the plaintiffs’ allegations, including whether any of them were in fact at the Bisha Mine. The judge also emphasised that the case raises novel and complex legal questions, including on international law, which have never before been considered in Canada.
“Nevsun is studying the court’s decision and considering an appeal of the decision that the action can proceed at all.”
The company said it remained confident that its indirect 60%-owned Eritrean subsidiary, Bisha Mining Share Company operated the Bisha Mine according to international standards of governance, workplace conditions, health, safety and human rights and was committed to managing the Bisha Mine in a safe and responsible manner that respects the interests of local communities, workers, stakeholders and the natural environment. In 2015 a human rights audit was carried out at the Bisha Mine, Nevsun said .