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A lawsuit against Nevsun Resources Ltd., a Canadian mining company, was brought before the British Columbia Courts by Eritrean refugees. They allege that Nevsun, in collaboration with the Eritrean military forces, engaged in forced labour, enslavement, torture, cruel, inhumane or degrading treatment and crimes against humanity through conscription under Eritrea’s National Service Program.
Nevsun asked for the action to be dismissed on the basis of the “act of state” doctrine which, it argued, precludes domestic courts from assessing the acts of a foreign government. On February 28th, 2020, the Supreme Court of Canada dismissing this argument, finding that the “act of state” doctrine does not form part of Canadian law. The case will thus be heard on its merits.
TJL represented the intervening party MiningWatch Canada before the Supreme Court, acting on a pro bono basis. TJL’s intervention pertained to the importance of transnational lawsuits like this one in complementing Canadian policies for promoting corporate accountability and providing access to remedy. Furthermore, TJL’s intervention emphasized the negative consequences of a decision, such as was requested by Nevsun, finding that litigation of this nature should not be heard in Canadian courts. You can read Mining Watch Canada’s submissions here.
The judgment of the Supreme Court is of historical importance: it confirms the possibility for foreigners to bring a legal action against Canadian compagnies before Canadian courts for alleged violations of the international public law committed abroad.