(London, 21 November, 2017) British Columbia’s Court of Appeal today dismissed an appeal by Nevsun Resources Ltd., that sought to block a case brought against the company by three Eritrean refugees for the alleged used of forced labour at its Bisha mine in Eritrea.
The three plaintiffs allege they were national service conscripts and that their labour was provided to Nevsun and its operating subsidiary, Bisha Mining Share Company, through two Eritrean companies related to Eritrea’s ruling party and its military. They allege those Eritrean companies are documented slavers and the plaintiffs’ labour was extracted under threat of torture, arbitrary detention, imprisonment in inhumane conditions and reprisals against family members.
Writing for a unanimous Court, Justice Newbury expressed particular concern about the lack of adequate alternative recourse in Eritrea, the plaintiffs’ country of origin. In reviewing the evidence on Eritrea’s judicial system, Justice Newbury agreed with the grim assessment of the court below, noting that the plaintiffs faced the prospect of “no trial at all” in Eritrea, or a trial “presided over by a functionary with no real independence from the state (which is implicated in this case) and in a legal system that would appear to be actuated largely by the wishes of the President and his military supporters.”
In arriving at her ruling, Justice Newbury also noted that the Eritrean government’s practices of institutionalized forced labour through its so-called ‘National Service’ program were “not contemplated by any legislation” – but that in any event, the acts alleged were so grave that they “could not be justified by legislation or official policy.”
The ruling affirms that the plaintiffs can prosecute a civil case in Canada for Nevsun’s alleged complicity in crimes against humanity, slavery, forced labour and torture at the Bisha mine. The Court found that international law is “in flux” and that transnational law, which regulates “actions or events that transcend national frontiers” is developing, especially in connection with human rights violations that are not effectively addressed by traditional “international mechanisms.
Joe Fiorante, Q.C., of Camp Fiorante Matthews Mogerman LLP, lead counsel for the plaintiffs said that “This is a very important win for the claimants. Nevsun will now have to answer these allegations of grave human right abuses on the merits in a Canadian court of law.”
For several years, Human Rights Concern – Eritrea (HRCE) has drawn attention to the use of National Service conscripts as slave labour by Nevsun and other international companies in Eritrea. Commenting on the Canadian court’s ruling, HRCE’s Director, Ms. Elsa Chyrum, described it as “a significant milestone in holding perpetrators of gross human rights violations in Eritrea to account”. Ms. Chyrum added: “The Canadian court judgement is a huge step forward in the struggle for accountability for human rights abuses. If the plaintiffs go on to win this case, it will have major implications for other potential cases against international companies and their operations in Eritrea. It is hoped that, when this case finally comes to judgement, that it will become clear to all international companies working in Eritrea that they will be held responsible for the treatment of the workforce provided by the Eritrean government in their industrial operations. We will continue our efforts to bring an end to modern day slavery and to seek accountability for other human rights violations that are being committed against people in Eritrea.”
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