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GENERAL PRINCIPLES - Sources of international law - Custom - Application - Of international law in Canada

Friday, February 28, 2020 @ 3:03 PM  


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Appeal by Nevsun Resources Ltd. (Nevsun) from a judgment of the British Columbia Court of Appeal affirming the dismissal of its motion to strike claims filed by the plaintiffs, who were refugees and former Eritrean nationals, alleging breaches of domestic torts and breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment and crimes against humanity. The plaintiffs commenced proceedings in British Columbia as a class action against Nevsun on behalf of more than 1,000 individuals who claimed to have been compelled to work at the Bisha mine between 2008 and 2012. The Bisha mine produced gold, copper and zinc, and was one of the largest sources of revenue for the Eritrean economy. It was owned and operated by an Eritrean corporation, the Bisha Mining Share Company, which was 40 per cent owned by the Eritrean National Mining Corporation and, through subsidiaries, 60 per cent owned by Nevsun, a publicly held B.C. corporation. The Bisha mine procured labour through the National Service Program, which required all Eritreans over 18 to complete military training followed by a period of “military development service.” Conscripts were forced to provide labour at subsistence wages for various companies owned by senior Eritrean military or party officials. For those conscripted to the Bisha mine, the tenure was indefinite. The workers claimed they were forced to provide labour in harsh and dangerous conditions for years and that, as a means of ensuring the obedience of conscripts at the mine, a variety of punishments were used, including torture. Nevsun filed several applications seeking: an order denying the proceeding the status of a representative action; a stay of the proceedings on the basis that Eritrea was a more appropriate forum (forum non conveniens); an order striking portions of the evidence filed by the Eritrean workers; an order dismissing or striking the pleadings on the grounds that British Columbia courts lacked subject matter jurisdiction as a result of the operation of the act of state doctrine; and an order striking the pleadings based on customary international law as unnecessary and disclosing no reasonable cause of action. The chambers judge granted Nevsun’s application to deny the proceeding the status of a representative action, meaning that the plaintiffs could not make claims on behalf of other individuals, but denied all of Nevsun’s other applications. The Court of Appeal upheld the decision in first instance. 

HELD: Appeal dismissed. Nevsun’s appeal focused on two issues: whether the act of state doctrine formed part of Canadian common law; and whether customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity could ground a claim for damages under Canadian law. The act of state doctrine was an unwieldy collection of principles, limitations and exceptions developed in English law that had been described as “a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state.” The Canadian common law had grown from the same roots. However, whereas English jurisprudence continually reaffirmed and reconstructed the foreign act of state doctrine, Canadian law had developed its own approach to addressing the twin principles of conflict of laws and judicial restraint underlying the doctrine, rather than relying on them as elements of an all-encompassing “act of state doctrine.” While the English common law, including some of the cases recognized as forming the basis of the act of state doctrine, was generally received into Canadian law at various times in our legal history, Canadian jurisprudence had addressed the principles underlying the doctrine within our conflict of laws and judicial restraint jurisprudence, with no attempt to have them united as a single doctrine. The act of state doctrine in Canada had been completely absorbed by this jurisprudence. To now import the English act of state doctrine and jurisprudence into Canadian law would be to overlook the development that its underlying principles had received through considered analysis by Canadian courts. The doctrine was not part of Canadian common law, and neither it nor its underlying principles as developed in Canadian jurisprudence were a bar to the Eritrean workers’ claims. Concerning international customary law, the court was not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law, but simply whether the claims should be struck at a preliminary stage as having no reasonable prospect of success. The analysis required a determination of whether the prohibitions on forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, were part of Canadian law, and, if so, whether their breaches could be remedied. While some areas of international law, like treaties, required legislative action to become part of domestic law, customary international law was automatically adopted into domestic law without any need for legislative action. Canada had long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption, making it part of the common law of Canada in the absence of conflicting legislation. Unlike foreign law in conflict of laws jurisprudence, which was a question of fact requiring proof, established norms of customary international law were law, to be judicially noticed. In this case, taking judicial notice was appropriate since the workers claimed breaches not simply of established norms of customary international law, but of norms accepted to be of such fundamental importance as to be characterized as jus cogens, or peremptory norms. There was no longer any tenable basis for restricting the application of customary international law to relations between states. It was not “plain and obvious” that corporations today enjoyed a blanket exclusion under customary international law from direct liability for violations of “obligatory, definable, and universal norms of international law”, or indirect liability for “complicity offenses”. Similarly, it was not “plain and obvious” that Canadian courts could not develop a civil remedy in domestic law for the violations at issue. The Eritrean workers’ claims against Nevsun were allowed to proceed.

Nevsun Resources Ltd. v. Araya, [2020] S.C.J. No. 5, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., February 28, 2020. Digest No. TLD-February242020011- SCC