In a landmark decision released on Friday, February 28, Nevsun Resources Ltd. v Araya, 2020 SCC 5, the Supreme Court of Canada ruled that a lawsuit over a mine in Eritrea could be heard in British Columbia.
The mining company, Nevsun, brought a motion to strike the plaintiffs’ pleadings on the basis that British Columbia did not have jurisdiction to hear the matter. The motion was dismissed all the way through to the Supreme Court of Canada.
The plaintiffs in the action are three Eritrean mine workers who claim they were conscripted through Eritrea’s military regime and forced to work in the mine, where they were subjected to violent, cruel, inhuman and degrading treatment treatment there.
In delivering reasons for the majority of the Court, Justice Abella stated the following:
Modern international human rights law is the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed.
Nevsun has not demonstrated that the Eritrean workers’ claim based on breaches of customary international law should be struck at this preliminary stage. The Court is not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law. It is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. Since the customary international law norms raised by the Eritrean workers form part of the Canadian common law, and since Nevsunis a company bound by Canadian law, the claims of the Eritrean workers for breaches of customary international law should be allowed to proceed.