Nevsun Resources Ltd. v. Gize Yebeyo Araya, et al.
(British Columbia) (Civil) (By Leave)
Public international law - Public International Law - State Immunity - Applicability of the act of state doctrine and its exceptions - Does the act of state doctrine preclude a British Columbia court from judging the legality of the sovereign acts of a foreign state within its own territory - Should Canadian common law recognise a cause of action for damages based on alleged breaches of norms of customary international law.
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The respondents are Eritrean refugees who sought to bring a representative claim against the appellant, a publicly-held B.C. corporation. They allege that through a chain of subsidiaries, the appellant entered into a commercial venture with Eritrea for the development of a gold, copper and zinc mine in Eritrea. The appellant allegedly engaged the Eritrean military and military controlled corporations and was complicit in the use of forced labour at the mine, conscripted under Eritrea’s National Service Program. The respondents claim to have fallen victim to forced labour, slavery, torture, cruel, inhumane or degrading treatment and crimes against humanity. They bring claims of private law torts as well as breaches of peremptory principles of international law for which they seek damages at customary international law. The appellant denied that the respondents were subjected to forced labour or mistreatment and argued that the military and its personnel were not subject to the control, direction or supervision of the appellant or of the mining company in which the appellant has a 60% indirect interest.
The Supreme Court of British Columbia granted the appellant’s motion to deny the proceeding status as a common law representative action but dismissed the appellant’s motions to stay, dismiss or strike aspects of the respondents’ claims on the basis that either Eritrea is the forum conveniens, or that the claims are precluded by or have no reasonable chance of success due to the act of state doctrine or the inapplicability of customary international law. The Court also held that certain secondary evidence filed by the respondents was admissible for the limited purpose of providing social and historical facts for context. The Court of Appeal for British Columbia dismissed the appellant’s appeal.
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