Amnesty to appear before the Supreme Court of Canada in historic corporate accountability case
Amnesty International, joined by the International Commission of Jurists, will intervene before the Supreme Court in a precedent-setting corporate accountability case on January 23, 2019. Vancouver-based mining company, Nevsun Resources, is being sued by Eritrean plaintiffs who allege that they suffered gross human rights abuses, including forced labour and torture, at a mine owned by the company in Eritrea. The zinc and copper mine in Bisha, Eritrea, is 60% owned by Nevsun and 40% by the Eritrean government.
This marks the first time that a corporate accountability case of this kind has made it to the Supreme Court of Canada.
“In the past, attempts to hold Canadian corporations accountable for human rights abuses abroad have frequently failed on procedural questions of jurisdiction or due to a legal doctrine that allows these cases to be sent back to the country where the violations have been alleged to occur,” Tara Scurr, Amnesty International Canada’s Business and Human Rights Campaigner, said. “This will be a historic opportunity for the Court to make it clear to Canadian corporations that they cannot hide behind procedural manoeuvres to avoid being held accountable in Canada for human rights abuses.”
Nevsun has argued that the plaintiffs should seek redress for their alleged harms in Eritrea. However, the UN Commission of Inquiry found there to be no independent or impartial Eritrean judiciary, and the government to be engaged in widespread crimes against humanity. Considering whether access to justice is possible in Eritrea, both the BC Supreme Court and the BC Court of Appeal held that Canada is, in fact, the right forum for this lawsuit.
The Supreme Court will decide whether the plaintiffs should be permitted to sue Nevsun for breach of customary international law. Nevsun is accused of using labour supplied by the Eritrean government’s National Service Program at the mine, through which 18-year old men are conscripted into the military. Amnesty International has documented abuses through the National Service Program in Eritrea, calling the use of labour through conscription “forced labour” – a gross human rights violation, and a violation of international law.
In addition, the Court will also decide whether the act of state doctrine applies in Canada. The principle, in its most basic form, prevents courts of one country from sitting in judgement of the actions of another. Nevsun will argue that Eritrea’s National Service program is an act of the State of Eritrea, and therefore the State is the source of the alleged harm. They will argue that for Canadian courts to sit in judgement of it would be contrary to the act of state doctrine, even though this principle has not previously been recognized in Canadian law.
“Unlike Nevsun, Amnesty International’s arguments are focused on the right to remedy for individuals who have suffered human rights abuses,” Alex Neve, Secretary General of Amnesty International Canada, said. “Access to remedy is a foundational cornerstone of any human rights framework, and is certainly essential to ensuring companies are held accountable when their operations lead to human rights abuse,” Neve said.
Amnesty will submit that allowing victims of Canadian corporate activity to sue in Canadian courts for harms suffered through breaches of customary international law is consistent with the constitutionally and internationally protected right to remedy. Amnesty will also submit that if the Court chooses to import the act of state doctrine into Canadian law, that it must do so in a manner that guarantees that the right to remedy will be protected.
“The outcome of this case could have far-reaching consequences for corporations who have been complicit in human rights violations and have acted with impunity,” Neve said.
Amnesty International will be represented on a pro bono basis by Paul Champ, Jennifer Klinck, Penelope Simons and Francois Larocque.