Date: Tuesday, 26 June 2018
VANCOUVER — An upcoming decision from Canada’s top court on whether allegations of human rights abuses filed against a Vancouver mining company will go to trial in Canada could set a groundbreaking precedent, according to a human rights watchdog.
Nevsun has wholly denied all allegations of human rights abuses at the Bisha gold mine, and argued Eritrean courts would be the appropriate place — known in legal terms as a “forum conveniens” — for the case to be heard.
The Supreme Court’s decision could have a significant impact on how Canadian companies operate overseas, said Karyn Keenan, director of Above Ground, a group that works to ensure that companies based in Canada or supported by the Canadian state respect human rights wherever they operate.
“It could be hugely precedent-setting,” Keenan said in an interview, adding, “or it could be not.”
Because the alleged violations occurred abroad, said Keenan, a decision in favour of the plaintiffs could go two ways.
The SCOC could decide that international plaintiffs can hold Canadian companies accountable in Canadian courts only when violations occur in countries where plaintiffs have little or no access to justice because of corruption or violence.
Or it could decide Canadian companies should be accountable to the Canadian justice system regardless of the situation in the country where its operation is located.
“It opens the window a little bit, or it opens it a lot,” she said, adding the fundamental question is “is it a legitimate thing to (bring suit against a company) to the courts in a country where the parent company is based?”
Canadian companies, like Nevsun, she said, raise capital in Canada and are incorporated under Canadian law. But they set up corporate structures through subsidiaries in other countries, which allows them to avoid legal responsibility in Canada, since subsidiaries are separate legal entities.
“It’s been very difficult legally and practically to bring things back to Canada where the parent company is,” she said. “Since (Canada) really is where the centre of corporate activity, responsibility and decision-making is, it seems appropriate for people who are harmed by that whole corporate body … to bring it back to Canada.”
Nevsun did not respond to a request for interview.
Eritrea’s National Policy Proclamation obliges Eritrean citizens to serve 18 months of compulsory military or government service. And while the Eritrean government denies this conscription is the same as forced labour, a report from Amnesty International found “use of conscript labour in mining and construction plants owned by private companies, as well as the indefinite nature of national service, amounts to forced labour.”
And according to the United Nations Commission of Inquiry on Eritrea, many national service conscripts lack adequate food, water, hygienic facilities, accommodation and medical services.
Keenan said companies often argue laws governing the ability of Canadian courts to weigh in on the international conduct of national companies might open the door for what is known as “forum shopping.” This is when plaintiffs from foreign countries shop around for a judiciary in a country they feel offers them the best hope of winning their case.
But in situations where human rights are at stake, she said, forum shopping actually makes a lot of sense.
“If you’re taking on a multinational corporation and you’re suing them, and you’re willing to assume all the emotional and the practical and the financial risks and costs that go with that, you’ve thought this out,” she said.
“So, of course you’re assessing where you have the best chance of succeeding, and of course you’re assessing what kinds of repercussions there will be for you depending on the forum.”
Looking at the question from a different angle, said Keenan, one might ask: Is it legitimate for non-Canadians who claim to have been harmed by a Canadian corporate entity to want access to a process to hold that entity accountable?
“I think the answer for me, overwhelmingly is yes,” she said. “In the vast majority of these cases, the (human) risks are foreseeable. … You knew what you were doing. You’re responsible. You went in with your eyes open. And you should be held to account.”
With files from Alex McKeen.