UNB Law researchers cited in Supreme Court’s Nevsun Resources Ltd. v. Araya

Author: Ed Bowes

Posted on Mar 5, 2020

Category: Research

On February 28, 2020, the Supreme Court of Canada ruled that an action could proceed against Nevsun Resources Ltd., a Canadian mining company operating in Eritrea, for breaches of customary international law because, unlike treaty law, customary international law is automatically part of Canadian law.

In this case, three Eritrean workers now living in Canada allege that they were forced to work at a mine owned by the Canadian corporation, and were allegedly subjected to violent, cruel, inhuman and degrading treatment. The workers are seeking damages for breaches of customary international law prohibitions and of domestic torts.

The decision in Nevsun Resources Ltd. v. Araya addresses the question of domestic reception of international law and in particular whether:

  1. the act-of-state doctrine operates to prevent an action in Canada proceeding against a mining corporation for abuses of human rights in Eritrea; and
  2. the doctrine of jus cogens, which prohibits slavery and torture as being contrary to fundamental norms of international law, is expansive enough to encompass a civil action so as to allow the Eritrean workers to sue the mining corporation.

The majority of the Court held that the act-of-state doctrine was not part of the law of Canada and that the lawsuit can move forward to trial. In the decision, the Court cites comments from Stephen Toope’s 2001 Rand Memorial Lecture on domestic implementation as well as Justice LeBel’s 2013 Viscount Bennett Memorial Lecture on the same subject. Both of these lectures were published in the University of New Brunswick Law Journal.

The Court also cites the 2006 text, The Globalized Rule of Law: Relationships between International and Domestic Law, a book which UNB Law’s Professor Anne La Forest was heavily involved in organizing, writing, and editing, during her time with the Department of Justice as Scholar in Residence. Justice Abella specifically cites Professor La Forest’s entry, Evidence and International and Comparative Law. The Globalized Rule of Law also includes a contribution written by former UNB Law professor Don Fleming and recently retired UNB Law professor, John McEvoy.

“It is rewarding to see your past work come back and be useful in helping a vulnerable group of people,” said Prof. La Forest. “I think the majority took the right approach, particularly on the first issue. In this specific case, my view is that any limitations on the plaintiffs’ right to pursue their action should be found in private rather than public international law.”

The full decision is available through the Supreme Court of Canada.