Facts Nevsun Resources Ltd (Nevsun)—later acquired by
Zijin Mining—was a mining firm incorporated under
British Columbia law and headquartered in Vancouver, British Columbia. It held a 60 percent
stake in Bisha Mining Share Company (BMSC). BMSC was the operating company of Bisha Mine, located in
Eritrea. As the majority owner of BMSC, Nevsun was the parent company of BMSC and BMSC was Nevsun's
subsidiary. Several former labourers at the Bisha Mine came to Canada as
refugees. In November 2014, they brought a
class action against Nevsun in the
Supreme Court of British Columbia claiming
damages in
tort and for breach of
customary international law. The action was the first Canadian lawsuit alleging violations of customary international law to reach the trial stage. In their
complaint, the labourers alleged that they and other members of the proposed
class had been subjected to various
human rights violations, including "the use of
forced labour; torture; slavery; cruel,
inhuman or degrading treatment; and
crimes against humanity" while working at the mine from 2008 to 2012. The workers alleged that they had been engaged by sub-contractors of the mine's operating company under a policy of military conscription in Eritrea known as the National Service Program. In addition to requiring military service, the Program also requires conscripts to work on certain infrastructure projects. Abuses similar to those alleged by the
Nevsun plaintiffs have been independently reported by human rights groups including
Human Rights Watch. The United Nations has alleged that significant human rights violations have occurred in Eritrea since 1991.
Procedural history At trial, Nevsun brought a
motion to strike the labourers' claim. It made three arguments. First, it argued that Eritrea was the more appropriate forum to hear the claim, based on the doctrine of
forum non conveniens. Alternatively, it argued that the
act of state doctrine—a
doctrine of
subject-matter jurisdiction similar to
state immunity that has been adopted in a number of
common law countries—prevented the trial court from considering the plaintiffs' claim. In the words of one legal scholar, the act of state doctrine "extends deference to the
executive branch in the conduct of foreign affairs by discouraging, if not outright precluding, courts from adjudicating the legitimacy of a foreign act." Thus, Nevsun submitted, the government of Eritrea—and not Nevsun—was ultimately responsible for the acts giving rise to the plaintiffs' claims. The trial court rejected all three arguments. In particular, it held that the act of state doctrine—although, in the trial court's view, it was part of Canadian common law—was not engaged in the case.
Reasons of the Court Nevsun further appealed to the Supreme Court of Canada. The Supreme Court granted Nevsun leave to appeal on June 14, 2018 and heard oral argument on January 23, 2019. Nevsun appealed only on the act of state doctrine and customary international law issues, and not the
forum non conveniens point. The court divided on both issues. Seven of nine judges held that the act of state doctrine was not part of Canadian law. Five held that the plaintiffs' claims based on customary international law could proceed. Justice Abella further held that the plaintiffs' claims based on customary international law could, in principle, ground a
private law cause of action in Canadian courts, for several reasons. First, the claims were based on legal principles against forced labour that constitute
jus cogens—broadly recognized principles of customary international law. Second, Canadian domestic law
incorporates international law, via the common law doctrine of adoption, unless the relevant international law norm has been
abrogated by statute. And third, customary international law can bind corporations, and not states alone.In conclusion, Justice Abella wrote that: Customary international law is part of Canadian law. Nevsun is a company bound by Canadian law. It is not “plain and obvious” to me that the Eritrean workers’ claims against Nevsun based on breaches of customary international law cannot succeed. Those claims should therefore be allowed to proceed. arguing that corporations cannot be held liable in a civil suit for alleged breaches of international legal norms While they generally agreed with the analysis of Justices Brown and Rowe with respect to the customary international law issue, they would have held that the act of state doctrine did bar the plaintiffs' claims. They noted that "[the majority] cites no cases where a corporation has been held civilly liable for breaches of customary international law anywhere in the world, and we do not know of any." == Commentary ==