Late last week, the Supreme Court of British Columbia approved a representative lawsuit for damages for slavery and crimes against humanity filed by three refugees from Eritea against Nevsun Resources Ltd., a BC incorporated mining company (“Nevsun”).
The Reasons for Judgment are not the most clear, in part because the litigation involved an attempt to create new law in Canada. Be that as it may, the facts of the case are that three refugees from Eritea allege that they were forced to work at the Bisha Gold Mine in Eritea by the Government of Eritea from 2008 to the present date under the threat of torture. The Bisha Gold Mine is being mined by Nevsun.
The refugees claim that Nevsun, through third parties, contracted with the Eritean military, Segen Construction Company and Mereb Construction Company, the latter two allegedly controlled by government officials of Eritea, to construct the mine and that those three groups forced them to work at the mine under conditions that involved torture, slavery and crimes against humanity. They are suing Nevsun for negligence arising from the alleged commission of these crimes against them.
There are some unusual aspects to the litigation and below, I highlight only those parts that strike me as odd.
According to the Reasons for Judgment, the refugees are traitors although the Reasons do not explain why they have been found to be traitors and by whom, and are unable to return to Eritea.
According to the Reasons for Judgment, none of the refugees are Canadian permanent residents, refugees to Canada or reside in Canada. Its unclear how the CJPTA applies to plaintiffs with no ties to British Columbia. We do not learn where they are, which is very unusual since the country in which they are currently chilling as refugees may be the ideal place to litigate, as opposed to Canada. The parties argued one aspect of the CJPTA (forum non conveniens) but not that part of the legislation that is related to jurisdiction over a person.
In a table of allegations set out in the Reasons for Judgment, the refugees appear to admit that they were not employed by Nevsun but rather were “employees” of the third party; presumably as “employees”, they were paid with wages and benefits, as opposed to forced to provide unpaid slave labour which would not make them “employees.” Only one of the three alleges he was tortured; the other two say they saw torture happening to others. The Reasons for Judgment did not articulate the alleged acts of slavery or the crimes against humanity. Both these terms have specific meanings in international law.
As to the whereabouts of the refugees, they may be in the EU. Eritea is an East African nation of 6 million people. It is frequently in the news because it is one of the biggest sources of migrants who pay illegal human smuggling rings, often controlled by or with ties to, terrorist groups such as Islamic State, to move them into the Sudan and across to Libya before sailing to Italy with false identity documents. How the refugees migrated from Eritea to wherever they may be was not part of the Reasons for Judgment.
The law in Canada as it relates to allegations of crimes against humanity, slavery and torture arises under the Crimes Against Humanity and War Crimes Act. That legislation creates criminal offenses for crimes committed against victims who are Canadian (but not non-Canadian) and does not give a private right of action for those crimes and does not permit a claim of negligence as is being advanced in this litigation.
Moreover, there is no jurisdiction under that statute for these plaintiffs even if it did. According to the Reasons for Judgment, the refugees are neither in Canada nor Canadian citizens and therefore they have no jurisdiction under the Crimes Against Humanity and War Crimes Act. Even assuming there was jurisdiction, the most the plaintiffs could be entitled to would be compensation from a compensation fund.
The Court held that because Canada enacted the Justice of Victims of Terrorism Act, which is legislation for victims with ties to Canada of acts of terrorism, and has not enacted legislation for private rights of action against companies for alleged crimes against humanity in a similar vein, does not mean that the government expressly intended not to do so. In other words, the Court appears to have held that just because there is no law yet on the books does not mean that Parliament expressly did not want there to be such a law. The Court seemed to be suggesting that the Justice of Victims of Terrorism Act can be combined with the Crimes Against Humanity and War Crimes Act to create a new common law right of action based on negligence that is a mix of both statutes.
In the end result, the representative action was allowed to proceed for, inter alia, slavery and crimes against humanity as against Nevsun, although it is merely at the preliminary phase.
None of the parties, surprisingly, touched upon the obvious financial crime and money laundering aspects that could arise for both sides.
I suspect that Nevsun may appeal on numerous ground and given the novel aspects, the appeal will likely go all the way to the Supreme Court of Canada and will not be heard before another five years.