NEVSUN RESOURCES LTD. v. ARAYA, 2020 SCC 5

Customary International Law prohibitions against forced labor are the valid grounds of claims for damages even under Canadian law.

Three workers being Eritrean employees working in Bisha Mine which is owned by Bisha Mining Share Company, in which Nevsun has 60% share, have come forward claiming about forced labour regime in which works were forced to work more than specified working hours. Such treatment has resulted in breach of customary international law containing abandonment of forced labour, slavery, cruelty, degrading treatment and crimes against humanity which makes for customary international norms. The workers also sought damages for domestic torts like battery, negligence, conversion, lawful confinement; the workers commenced their proceeding in British Columbia Supreme Court against Nevsun. Subsequently, Nevsun stepped forward to proceeding with a preliminary motion to strike out and dismiss all the pleading of workers pertaining to the fact that claims did not show recognition in Canadian Common Law and also pursuant to the rule 21-8 or alternatively rule 9-5 of the Supreme Court Civil Rules, B C reg. 168/2009. Nevsun primarily focused on “act of state doctrine” which is followed elsewhere except in Canada. Such doctrine would prevent domestic courts in Canada from evaluating the sovereign acts of a foreign government. Moreover, Nevsun went to strike the order by relying on customary International Law being unnecessary and disclosed no cause of action pertaining to the rule 9-5 Supreme Court Civil Rules. However, the doctrine of adoption sets out the framework, whereby a norm of customary international law can be recognized by Canadian court in a civil court claim. The necessities are – 1) to manifest that claim is a ‘general’ customary international law practice 2) appeared that such norm is “opinion juris”, wherein such practice deemed to include legal right or obligation. The subset of customary international law is “jus cogens”.

The majority in Supreme Court of Canada (SCC) found that claims of forced labour, slavery, cruelty had attained the status of jus cogens. The doctrine of adoption considered by the majority in the SCC was established to be applicable, giving the way to convert customary international law into domestic laws without the requirement for legislative action in the parliament. The judges held that customary international law is incorporated into and form the fundamental part of Canada Common law unless exception may apply, thus, neither the State Immunity Act RRC 1985 nor any other legislation can dismiss Eritrean pleadings. The court also relied on Art.38 (1) of the Statue of International Court of Justice which mentions primary sources of modern law including customary international law. Also, judges upheld the plaintiff’s claim that Canadians organization facing charges of breach of jus cogens and customary international law are actionable at Common Law. The court acknowledged a jus cogen which is non-derogable.

The judges also dismissed plea on Nevsun’s “form non conveins” application because Nevsun has not shown that conveins favors Eritrea in the adequate forum. Upheld the ruling in which forum and evidence applications were applied in British Columbia by virtue of Law and Equity Act 1996. The court also focused that allegations imposed by workers are to be proceeded in accordance with International treaty which provides remedy to victims of violations of those rights such as United Nations Human Rights Committee in compliance with International Covenant on Civil and Political Rights. In the light of the above, the Supreme Court of Canada upheld workers’ pleading against Canadian company for violation of customary international law.