Nevsun Resources Ltd. Appellant v. Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle, 2020 SCC 5

SUPREME COURT OF CANADA Citation: Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166 Appeal Heard: January 23, 2019 Judgment Rendered: February 28, 2020 Docket: 37919 Between: Nevsun Resources Ltd.

Appellant and Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle Respondents - and - International Human Rights Program, University of Toronto Faculty of Law, EarthRights International, Global Justice Clinic at New York University School of Law, Amnesty International Canada, International Commission of Jurists, Mining Association of Canada and MiningWatch Canada Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 133) Joint Reasons Dissenting in Part: (paras. 134 to 266) Dissenting Reasons: (paras. 267 to 313) Abella J. (Wagner C.J. and Karakatsanis, Gascon and Martin JJ. concurring) Brown and Rowe JJ. Côté J. (Moldaver J. concurring)

Nevsun Resources Ltd. Appellant v. Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle Respondents and International Human Rights Program, University of Toronto Faculty of Law, EarthRights International, Global Justice Clinic at New York University School of Law, Amnesty International Canada, International Commission of Jurists, Mining Association of Canada and MiningWatch Canada Interveners Indexed as: Nevsun Resources Ltd. v. Araya 2020 SCC 5 File No.: 37919. 2019: January 23; 2020: February 28.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for british columbia Public international law — Human rights — Act of state doctrine — Customary international law — Jus cogens — Peremptory norms — Doctrine of adoption — Direct remedy for breach of customary international law — Eritrean workers commencing action against Canadian corporation in British Columbia — Workers alleging they were forced to work at mine owned by Canadian corporation in Eritrea and subjected to violent, cruel, inhuman and degrading treatment and seeking damages for breaches of customary international law prohibitions and of domestic torts — Corporation bringing motion to strike pleadings on basis of act of state doctrine and on basis that claims based on customary international law have no reasonable prospect of success — Whether act of state doctrine forms part of Canadian common law — Whether customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment and crimes against humanity can ground claim for damages under Canadian law — Whether claims should be struck.

Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. The Eritrean workers started proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.

They also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and negligence. Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine, which precludes domestic courts from assessing the sovereign acts of a foreign government. Nevsun also took the position that the claims based on customary international law should be struck because they have no reasonable prospect of success. The chambers judge dismissed Nevsun’s motion to strike, and the Court of Appeal agreed.

Held ( Brown and Rowe JJ. dissenting in part and Moldaver and Côté JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ.: The act of state doctrine and its underlying principles as developed in Canadian jurisprudence are not a bar to the Eritrean workers’ claims. The act of state doctrine has played no role in Canadian law and is not part of Canadian common law.

Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and judicial restraint. Both principles have developed separately in Canadian jurisprudence rather than as elements of an all-encompassing act of state doctrine. As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this

jurisprudence. Canadian courts determine questions dealing with the enforcement of foreign laws according to ordinary private international law principles which generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are contrary to public policy, including respect for public international law. Nor has Nevsun satisfied the test for striking the pleadings dealing with customary international law. Namely it has not established that it is “plain and obvious” that the customary international law claims have no reasonable likelihood of success.

Modern international human rights law is the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed. While states were historically the main subjects of international law, it has long-since evolved from this state-centric template.

The past 70 years have seen a proliferation of human rights law that transformed international law and made the individual an integral part of this legal domain, reflected in the creation of a complex network of conventions and normative instruments intended to protect human rights and ensure compliance with those rights. The rapid emergence of human rights signified a revolutionary shift in international law to a human-centric conception of global order.

The result of these developments is that international law now works not only to maintain peace between states, but to protect the lives of individuals, their liberty, their health, and their education. The context in which international human rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors. It is therefore not plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal norms of international law.

Customary international law is the common law of the international legal system, constantly and incrementally evolving based on changing practice and acceptance. Canadian courts, like all courts, play an important role in its ongoing development . There are two requirements for a norm of customary international law to be recognized as such: general but not necessarily universal practice, and opinio juris , namely the belief that such practice amounts to a legal right or obligation.

When international practice develops from being intermittent into being widely accepted and believed to be obligatory, it becomes a norm of customary international law. Within customary international law, there is a subset of norms known as jus cogens , or peremptory norms, from which no derogation is permitted. The workers claim breaches not only of norms of customary international law, but of norms accepted to be of such fundamental importance as to be characterized as jus cogens . Crimes against humanity have been described as among the least controversial examples of violations of jus cogens .

Compelling authority confirms that the prohibitions against slavery, forced labour and cruel, inhuman and degrading treatment have attained the status of jus cogens . Refusing to acknowledge the differences between existing domestic torts and forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, may undermine the court’s ability to adequately address the heinous nature of the harm caused by this conduct.

Canada has long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption, making it part of the law of Canada. Therefore, customary international law is automatically adopted into domestic law without any need for legislative action. The fact that customary international law is part of our common law means that it must be treated with the same respect as any other law.

A compelling argument can therefore be made that since customary international law is part of Canadian common law, a breach by a Canadian company can theoretically be directly remedied. Since the workers’ claims are based on norms that already form part of our common law, it is not “plain and obvious” that our domestic common law cannot recognize a direct remedy for their breach.

Appropriately remedying the violations of jus cogens and norms of customary international law requires different and stronger responses than typical tort claims, given the public nature and importance of the violated rights involved, the gravity of their breach, the impact on the domestic and global rights objectives, and the need to deter subsequent breaches. Nevsun has not demonstrated that the Eritrean workers’ claim based on breaches of customary international law should be struck at this preliminary stage.

The Court is not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law. It is enough to conclude that the breaches of customary international law, or jus cogens , relied on by the Eritrean workers may well apply to Nevsun. Since the customary international law norms raised by the Eritrean workers form part of the Canadian common law, and since Nevsun is a company bound by Canadian law, the claims of the Eritrean workers for breaches of customary international law should be allowed to proceed.

Per Brown and Rowe JJ. (dissenting in part): The appeal should be allowed in part. There is agreement with the majority that the dismissal of Nevsun’s application to strike the pleadings should be upheld as it regards the foreign act of state doctrine . However, there is disagreement on the matter of the use of customary international law. The workers’ claims for damages based on breach of customary international law disclose no reasonable cause of action and are bound to fail. Two separate theories have been advanced upon which the pleadings of the Eritrean workers could be upheld.

The majority’s theory is that the workers seek to have Canadian courts recognize a cause of action for breach of customary international law and to prosecute a claim thereunder. The second theory is that the workers seek to have Canadian courts recognize four new nominate torts inspired by customary international law: use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. The latter theory is more consistent with the pleadings and with how the workers framed their claims before the Court. Regardless, the workers’ claims are bound to fail on either theory.

The claims are bound to fail on the first theory. On this theory, the workers’ pleading is viable only if international law is given a role that exceeds the limits placed upon it by Canadian law. For this pleading to succeed, then, Canadian law must change. Such a change would require

an act of a competent legislature, as it does not fall within the competence of the courts. Without change, the pleading is doomed to fail. Substantively, the content of customary international law is established by the actions of states on the international plane. A rule of customary international law exists when state practice evidences a custom and the practicing states accept that custom as law.

These two requirements are called state practice and opinio juris . The high bar established by the twin requirements of state practice and opinio juris reflects the extraordinary nature of customary international law: it leads courts to adopt a role otherwise left to legislatures; and, unless a state persistently objects, its recognition binds states to rules to which they have not affirmatively consented. Once a norm of customary international law has been established, it can become a source of Canadian domestic law unless it is inconsistent with extant statutory law.

The primacy given to contrary legislation preserves the legislature’s ability to control the effects of international laws in the domestic legal system. If the legislature passes a law contravening a prohibitive norm of international law, that law is not subject to review by the courts. Similarly, if the legislature does not pass a law in contravention of a mandatory norm of international law, the courts cannot construct that law for them, unless doing so is otherwise within the courts’ power.

Courts may presume the intent of the legislature is to comply with customary international law norms, but that presumption is rebuttable: customary international law has interpretive force, but it does not formally constrain the legislature. Canada and the provinces have the ability, should they choose to exercise it, to violate norms of customary international law. But that is a choice that only Parliament or the provincial legislatures can make; the federal and provincial governments cannot do so without the authorization of those legislative bodies.

To determine whether a statute prevents amending the common law, courts must precisely identify the norm, determine how the norm would best be given effect and then determine whether any legislation prevents the court from changing the common law to create that effect. If no legislation does, courts should implement that change to the common law. If any legislation does, the courts should respect that legislative choice, and refrain from changing the common law.

Procedurally, the content of customary international law is established in Canada by the court first finding the facts of state practice and opinio juris . When there is or can be no dispute about the existence of a norm of customary international law, it is appropriate for the courts to take judicial notice. Courts will also be called on to evaluate both whether there exists a custom generally among states that is applied uniformly , and whether the practicing states respect the custom out of the belief that doing so is necessary in order to fulfil their obligations under customary international law.

Once the facts of state practice and opinio juris are found, the second step is to identify which, if any, norms of customary international law must be recognized to best explain these facts. This is a question of law. The final step is to apply the norms, as recognized, to the facts of the case at bar. This is a question of mixed fact and law.

Applying this structure to the majority’s theory, there is agreement with the majority that: there are prohibitions at international law against crimes against humanity, slavery, the use of forced labour, and cruel, inhuman, and degrading treatment; these prohibitions have the status of jus cogens ; individuals and states both must obey some customary international law prohibitions, and it is a question for the trial judge whether they must obey these specific prohibitions; and individuals are beneficiaries of these prohibitions.

There is, however, disagreement that the majority’s reasons provide a viable path to showing that a corporation may be civilly liable in Canada for a breach of customary international law norms. It is plain and obvious that corporations are excluded from direct liability at customary international law. Corporate liability for human rights violations has not been recognized under customary international law; at most, the proposition that such liability has been recognized is equivocal. Customary international law is not binding if it is equivocal.

Absent a binding norm, the workers’ cause of action is clearly doomed to fail. It is unclear how the majority deduces the potential existence of a liability rule from an uncontroversial statement of a prohibition. Perhaps it sees a prohibition of customary international law as requiring Canada to provide domestic liability rules; perhaps it sees the prohibition as itself containing a liability rule; or perhaps it sees the doctrine of adoption as producing a liability rule in response to a prohibition. None of these options provide an

interpretation of the majority’s theory of the case that makes the claims viable. The workers did not plead the necessary facts of state practice and opinio juris to support the proposition that a prohibition of customary international law requires states to provide domestic civil liability rules. Indeed, states are typically free to meet their international obligations according to their own domestic institutional arrangements and preferences. A civil liability rule is but one possibility. A prohibition could also be effected through, for example, the criminal law or through administrative penalties.

The workers also did not plead the necessary facts to support the proposition that a prohibition of customary international law itself contains a liability rule. An essay that states it would not make sense to argue that international law may impose criminal liability on corporations, but not civil liability does not constitute state practice or opinio juris . State practice is the difference between civil liability and criminal liability at customary international law. Outside the sphere of criminal law, there is no corresponding acceptance-of-liability rule regarding individuals.

For a customary international law prohibition to create a civil liability rule would require there to be widespread state practice that does not exist today. Nor can the doctrine of adoption play the role of converting a general prohibition upon states and criminal prohibitions upon individuals into a civil liability rule.

Applying the three-step process for determining whether to amend private common law rules in response to the recognition of a mandatory norm of customary international law, the relevant norms here are that Canada must prohibit and prevent slavery by third parties, mutatis mutandis for each of the claims. Although such norms may exist, they are appropriately given effect through, and only through the criminal law. The criminal law does not provide private law causes of action.

Moreover, adopting the norms as crimes cannot be done because Parliament has, in s. 9 of the Criminal Code , clearly prohibited courts from creating criminal laws via the common law. The majority’s theory is no more tenable if a step back is taken and it is considered more conceptually. Essentially, the majority’s theory amounts to saying that the doctrine of adoption has what jurists in Europe would call horizontal effect. It would be astonishing were customary international law to have horizontal effect where the Canadian Charter of Rights and Freedoms does not.

The majority’s approach also amounts to recognizing a private law cause of action for simple breach of customary international public law. This would be similarly astonishing, since there is no private law cause of action for simple breach of statutory Canadian public law. Nor does the presence of international criminal liability rules make necessary the creation of domestic torts, at least outside the American context. In that country, the hoary and historically unique Alien Tort Statute requires courts to treat international law as

creating civil liabilities. Essentially, the majority’s approach would amount to Americanizing the Canadian doctrine of adoption. Canadian courts cannot adopt a U.S. statute when Parliament and the legislatures have not. While there is agreement that where there is a right, there must be a remedy, the right to a remedy does not necessarily mean a right to a particular form, or kind of remedy. Further , a difference merely of damages or the extent of harm will not suffice to ground a new tort. Canadian law, as is, furnishes an appropriate cause of action.

When there is a breach of rights that is more grave or that needs to be deterred, increased damages are available under existing tort law. Punitive damages have as a goal the denunciation of misconduct. Moreover, a court can express its condemnation of wrongful conduct through its reasons, by stating in them that a party committed human rights abuses, even if the ultimate legal conclusion is that they committed assault, battery or other wrongs. Other states also recognize that such ordinary private law actions provide mechanisms to address the harm arising out of a grave breach of international criminal law.

Even were this part of Nevsun’s motion to strike to be granted, the workers could pursue in Canada the same relief they could obtain in most other states. The only remaining way to support the majority’s theory of the case is for the doctrine of adoption to change so that it provides a civil liability rule for breaches of prohibitions at customary international law. The Court cannot make such a change. Although, it is open to Parliament and the legislatures to make such a change, absent statutory intervention, the ability of the courts to shape the law is, as a matter of common-law methodology, constrained.

Courts develop the law incrementally. For a change to be incremental, it cannot have complex and uncertain ramifications. To alter the doctrine of adoption would set the law on an unknown course whose ramifications cannot be accurately gauged. It is thus for Parliament to decide whether to change the doctrine of adoption to provide courts the power to convert prohibitive rules of international law into free-standing torts. Parliament has not done so.

The claims are also bound to fail on the second theory that the workers sought to have the court recognize four new nominate torts inspired by international law: use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. Three clear rules for when the courts will not recognize a new nominate tort have emerged: where there are adequate alternative remedies; where it does not reflect and address a wrong visited by one person upon another; and where the change wrought upon the legal system would be indeterminate or substantial.

The first rule, that of necessity, acknowledges at least three alternative remedies that could make recognizing a new tort unnecessary: an existing tort, an independent statutory scheme, and judicial review. A difference merely of damages or the extent of harm will not suffice. The second rule is reflected in the courts’ resistance to creating strict or absolute liability regimes. The third rule reflects the courts’ respect for legislative supremacy and the courts’ mandate to ensure that the law remains stable, predictable and accessible.

The proposed tort of cruel, inhuman or degrading treatment should not be recognized as a new nominate tort, because it is encompassed by the extant torts of battery or intentional infliction of emotional distress. The proposed tort of crimes against humanity also should not be recognized, because it is too multifarious a category to be the proper subject of a nominate tort. It is, however, possible that the proposed torts of slavery and use of forced labour would pass the test for recognizing a new nominate tort.

Nevertheless, these proposed torts should not be recognized for the first time in a proceeding based on conduct that occurred in a foreign territory. In general, tortious conduct abroad will not be governed by Canadian law, even where the wrong is litigated before Canadian courts, except when the foreign state’s law is so repugnant to the fundamental morality of the Canadian legal system as to lead the court not to apply it.

Developing Canadian law in such circumstances is inadvisable because the law that is appropriate for regulating a foreign state may not also be law that is appropriate for regulating Canada and because doing so would take courts outside the limits of their institutional competence. The domain of foreign relations is perhaps the most obvious example of where the executive is competent to act, but where courts lack the institutional competence to do so.

Setting out a novel tort in the exceptional circumstance of a foreign state’s law being held by the court to be so repugnant to Canadian morality would be an intrusion into the executive’s dominion over foreign relations. The courts’ role within Canada is, primarily, to adjudicate on disputes within Canada, and between Canadian residents. Not granting the motion to strike in this case offers this lesson: the more nebulous the pleadings and legal theory used to protect them, the more likely they are to survive a motion to strike.

The creation of a cause of action for breach of customary international law would require the courts to encroach on the roles of both the legislature (by creating a drastic change in the law and ignoring the doctrine of incrementalism), and the executive (by wading into the realm of foreign affairs). It is not up to the Court to ignore the foundations of customary international law, which prohibits certain state conduct, in order to create a cause of action against private parties. Nor is it for the courts to depart from foundational principles of judicial law-making in tort law.

The result of doing so will be instability and uncertainty. Per Moldaver and Côté JJ. (dissenting): There is agreement with Brown and Rowe JJ.’s analysis and conclusion concerning the workers’ claims inspired by customary international law. It is plain and obvious that they are bound to fail. In addition, the extension of customary international law to corporations represents a significant departure in this area of law.

The widespread, representative and consistent state practice and opinio juris required to establish a customary rule do not presently exist to support the proposition that international human rights norms have horizontal application between individuals and corporations. There is disagreement with the majority concerning the existence and applicability of the act of state doctrine. The workers’ claims here are not amenable to adjudication within Canada’s domestic legal order.

Instead, they are allocated to the plane of international affairs for resolution in accordance with the principles of public international law and diplomacy. They are therefore not justiciable and should be dismissed in their entirety. There is agreement with the majority that Canada’s choice of law jurisprudence plays a similar role to that of certain aspects of the act of state doctrine; however, the act of state doctrine includes a second branch distinct from choice of law which renders some

claims non-justiciable. This second branch of the doctrine bars the adjudication of civil actions which have their foundation in allegationsthat a foreign state has violated public international law. Whether referred to as a branch of the act of state doctrine or as a specificapplication of the more general doctrine of justiciability, these claims are not justiciable because adjudicating them would impermissiblyinterfere with the conduct by the executive of Canada’s international relations. Justiciability is rooted in a commitment to the constitutional separation of powers.

A court must conform to the separation ofpowers by showing deference for the roles of the executive and the legislature in their respective spheres so as to refrain from undulyinterfering with the legitimate institutional roles of those orders. A court has the institutional capacity to consider international lawquestions, and its doing so is legitimate, if they also implicate questions with respect to constitutional rights, the legality of anadministrative decision or the interface between international law and Canadian public institutions.

If, however, a court allows a privateclaim which impugns the lawfulness of a foreign state’s conduct under international law, it will be overstepping the limits of its properinstitutional role. The adjudication of such claims impermissibly interferes with the conduct by the executive of Canada’s internationalrelations.

Litigation between private parties founded upon allegations that a foreign state has violated public international law is not theproper subject matter of judicial resolution because questions of international law relating to internationally wrongful acts of foreignstates are not juridical claims amenable to adjudication on judicial or manageable standards. While a court may consider the legality of acts of a foreign state under municipal or international law if the issue arisesincidentally, a claim will not be justiciable if the allegation that the foreign state acted unlawfully is central to the litigation.

In the instantcase, the workers’ claims are not justiciable because the issue of the legality of Eritrea’s acts under international law is central to thoseclaims and requires a determination that Eritrea has committed an internationally wrongful act. As the workers allege that Nevsun isliable because it was complicit in the Eritrean authorities’ alleged internationally wrongful acts, Nevsun can be liable only if the acts ofthe actual alleged perpetrators — Eritrea and its agents — were unlawful as a matter of public international law.

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No. 2318 (QL), 2017 CarswellBC 3232 (WL Can.), affirming a decision of Abrioux J., 2016 BCSC 1856 , 408 D.L.R. (4th) 383, [2016] B.C.J. No. 2095 (QL), 2016 CarswellBC 2786 (WL Can.). Appeal dismissed, Brown and Rowe JJ. dissenting in part and Moldaver and Côté JJ. dissenting. Mark D. Andrews , Q.C. , Andrew I. Nathanson , Gavin R. Cameron and Caroline L. Senini , for the appellant. Joe Fiorante , Q.C. , Reidar M. Mogerman , Jen Winstanley , James Yap and Nicholas C. Baker , for the respondents.

Cory Wanless and Yolanda Song , for the intervener the International Human Rights Program, University of Toronto Faculty of Law. Tamara Morgenthau and Alison M. Latimer , for the interveners EarthRights International and the Global Justice Clinic at New York University School of Law. Paul Champ , Jennifer Klinck and Penelope Simons , for the interveners Amnesty International Canada and the International Commission of Jurists. Luis Sarabia and Steven Frankel , for the intervener the Mining Association of Canada. Bruce W. Johnston , Andrew E.

Cleland , Jean-Marc Lacourcière and Clara Poissant-Lespérance , for the intervener MiningWatch Canada. The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ. was delivered by [ 1 ] Abella J. — This appeal involves the application of modern international human rights law, the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities.

Conduct that undermined the norms was to be identified and addressed. [ 2 ] The process of identifying and responsively addressing breaches of international human rights law involves a variety of actors. Among them are courts, which can be asked to determine and develop the law’s scope in a particular case. This is one of those cases. [ 3 ] Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle are refugees and former Eritrean nationals.

They claim that they were indefinitely conscripted through their military service into a forced labour regime where they were required to work at the Bisha mine in Eritrea and subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. [ 4 ] The Eritrean workers started these proceedings in British Columbia as a class action against Nevsun on behalf of more than 1,000 individuals who claim to have been compelled to work at the Bisha mine between 2008 and 2012.

In their pleadings, the Eritrean workers sought damages for breaches of domestic torts including conversion, battery, “unlawful confinement” (false imprisonment), conspiracy and negligence. They also sought damages for breaches of customary international law prohibitions against forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity. [1] [ 5 ] Nevsun brought a motion to strike the pleadings on the basis of the “act of state doctrine”, which precludes domestic courts from assessing the sovereign acts of a foreign government.

This, Nevsun submits, includes Eritrea’s National Service Program. Its position was also that the claims based on customary international law should be struck because they have no reasonable prospect of success. [2] [ 6 ] Both the Chambers Judge and the Court of Appeal dismissed Nevsun’s motions to strike on these bases. For the

reasons that follow, I see no reason to disturb those conclusions. Background [ 7 ] The Bisha mine in Eritrea produces gold, copper and zinc. It is one of the largest sources of revenue for the Eritrean economy. The construction of the mine began in 2008.

It was owned and operated by an Eritrean corporation, the Bisha Mining Share Company, which is 40 percent owned by the Eritrean National Mining Corporation and, through subsidiaries, 60 percent owned by Nevsun, a publicly-held corporation incorporated under British Columbia’s Business Corporations Act , S.B.C. 2002, c. 57 . [ 8 ] The Bisha Company hired a South African company called SENET as the Engineering, Procurement and Construction Manager for the construction of the mine.

SENET entered into subcontracts on behalf of the Bisha Company with Mereb Construction Company, which was controlled by the Eritrean military, and Segen Construction Company which was owned by Eritrea’s only political party, the People’s Front for Democracy and Justice.

Mereb and Segen were among the construction companies that received conscripts from Eritrea’s National Service Program. [ 9 ] The National Service Program was established by a 1995 decree requiring all Eritreans, when they reached the age of 18, to complete 6 months of military training followed by 12 months of “military development service” ( 2016 BCSC 1856 , at para. 26 ).

Conscripts were assigned to direct military service and/or “to assist in the construction of public projects that are in the national interest”. [ 10 ] In 2002, the period of military conscription in Eritrea was extended indefinitely and conscripts were forced to provide labour at subsistence wages for various companies owned by senior Eritrean military or party officials, such as Mereb and Segen. [ 11 ] For those conscripted to the Bisha mine, the tenure was indefinite.

The workers say they were forced to provide labour in harsh and dangerous conditions for years and that, as a means of ensuring the obedience of conscripts at the mine, a variety of punishments were used.

They say these punishments included “being ordered to roll in the hot sand while being beaten with sticks until losing consciousness” and the ‘“helicopter’ which consisted of tying the workers’ arms together at the elbows behind the back, and the feet together at the ankles, and being left in the hot sun for an hour”. [ 12 ] The workers claim that those who became ill — a common occurrence at the mine — had their pay docked if they failed to return to work after five days. When not working, the Eritrean workers say they were confined to camps and not allowed to leave unless authorized to do so.

Conscripts who left without permission or who failed to return from authorized leave faced severe punishment and the threat of retribution against their families. They say their wages were as low as US$30 per month. [ 13 ] Gize Yebeyo Araya says he voluntarily enlisted in the National Service Program in 1997 but instead of being released after completing his 18 months of service, was forced to continue his military service and was deployed as a labourer to various sites, including the Bisha mine in February 2010.

At the mine, he says he was required to work six days a week from 5:00 a.m. to 6:00 p.m., often outside in temperatures approaching 50 degrees Celsius. He escaped from Eritrea in 2011. [ 14 ] Kesete Tekle Fshazion says he was conscripted in 2002 and remained under the control of the Eritrean military until he escaped from Eritrea in 2013.

He says he was sent to the Bisha mine in 2008 where he worked from 6:00 a.m. to 6:00 p.m. six days a week and 6:00 a.m. to 2:00 p.m. on the seventh day. [ 15 ] Mihretab Yemane Tekle says he was conscripted in 1994 and, after completing his 18 months of service, was deployed to several positions, mainly within the Eritrean military. He says he was transported to the Bisha mine in February 2010 where he worked six days a week from 6:00 a.m. to 6:00 p.m., often outside, uncovered, in temperatures approaching 50 degrees Celsius. He escaped Eritrea in 2011.

Prior Proceedings [ 16 ] Nevsun brought a series of applications seeking: an order denying the proceeding the status of a representative action; a stay of the proceedings on the basis that Eritrea was a more appropriate forum ( forum non conveniens ); an order striking portions of the evidence — first-hand affidavit material and secondary reports — filed by the Eritrean workers; an order dismissing or striking the pleadings pursuant to rule 21-8 or, alternatively, rule 9-5 of the Supreme Court Civil Rules , B.C.

Reg. 168/2009 , on the grounds that British Columbia courts lacked subject matter jurisdiction as a result of the operation of the act of state doctrine; and an order striking that part of the pleadings based on customary international law as being unnecessary and disclosing no reasonable cause of action, pursuant to rule 9-5 of the Supreme Court Civil Rules . [ 17 ] The Chambers Judge, Abrioux J., observed that since it controlled a majority of the Board of the Bisha Company and Nevsun’s CEO was its Chair, Nevsun exercised effective control over the Bisha Company.

He also observed that there was operational control: “Through its majority representation on the board of [the Bisha Company, Nevsun] is involved in all aspects of Bisha operations, including exploration, development, extraction, processing and reclamation”. [ 18 ] He denied Nevsun’s forum non conveniens application, concluding that Nevsun had not established that convenience favours Eritrea as the appropriate forum. There was also a real risk of an unfair trial occurring in Eritrea.

Abrioux J. admitted some of the first-hand affidavit material and the secondary reports for the limited purpose of providing the required social, historical and contextual framework, but he denied the proceeding the status of a representative action, meaning the Eritrean workers were not permitted to bring claims on behalf of the other individuals, many of whom are still in Eritrea. [ 19 ] As to the act of state doctrine, Abrioux J. noted that it has never been applied in Canada, but was nonetheless of the view that it formed part of Canadian common law.

Ultimately, however, he concluded that it did not apply in this case. [ 20 ] In dealing with Nevsun’s request to strike the claims based on customary international law, Abrioux J. characterized

the issue as “whether claims for damages arising out of the alleged breach of jus cogens or peremptory norms of customary international law . . . may form the basis of a civil proceeding in British Columbia”. He said that claims should only be struck if, assuming the pleaded facts to be true, it is “plain and obvious” that the pleadings disclose no reasonable likelihood of success and are bound to fail.

He rejected Nevsun’s argument that there is no reasonable prospect at trial that the court would recognize either “claims based on breaches of [customary international law]” or claims for “new torts based on the adoption of the customary norms advanced by the [workers]”. He held that customary international law is incorporated into and forms part of Canadian common law unless there is domestic legislation to the contrary. Neither the State Immunity Act , R.S.C. 1985, c. S-18 , nor any other legislation bars the Eritrean workers’ claims.

In his view, while novel, the claims stemming from Nevsun’s breaches of customary international law should proceed to trial where they can be evaluated in their factual and legal context, particularly since the prohibitions on slavery, forced labour and crimes against humanity are jus cogens , or peremptory norms of customary international law, from which no derogation is permitted. [ 21 ] On appeal, Nevsun argued that Abrioux J. erred in refusing to decline jurisdiction on the forum non conveniens application; in admitting the Eritrean workers’ reports, even for a limited purpose; in holding that the Eritrean workers’ claims were not barred by the act of state doctrine; and in declining to strike the Eritrean workers’ claims that were based on customary international law.

The Eritrean workers did not appeal from Abrioux J.’s ruling denying the proceeding the status of a representative action. [ 22 ] Writing for a unanimous court, Newbury J.A. upheld Abrioux J.’s rulings on the forum non conveniens and evidence applications ( 2017 BCCA 401 ).

As for the act of state doctrine, Newbury J.A. noted that no Canadian court has ever directly applied the doctrine, but that it was adopted in British Columbia by virtue of what is now s. 2 of the Law and Equity Act , R.S.B.C. 1996, c. 253 , which recognizes that the common law of England as it was in 1858 is part of the law of British Columbia. She concluded, however, that the act of state doctrine did not apply in this case because the Eritrean workers’ claims were not a challenge to the legal validity of a foreign state’s laws or executive acts.

Even if the act of state doctrine did apply, it would not bar the Eritrean workers’ claims since one or more of the doctrine’s acknowledged exceptions would apply. [ 23 ] Turning to the international law issues, Newbury J.A. noted that in actions brought against foreign states, courts in both England and Canada have not recognized a private law cause of action since they involved the principle of state immunity, codified in Canada by the State Immunity Act .

But because the Eritrean workers’ customary international law claims were not brought against a foreign state, they were not barred by the State Immunity Act . [ 24 ] Finally, Newbury J.A. was alert to what she referred to as a fundamental change that has occurred in public international law, whereby domestic courts have become increasingly willing to address issues of public international law when appropriate.

With this in mind, she characterized the central issue on appeal as being “whether Canadian courts, which have thus far not grappled with the development of what is now called ‘transnational law’, might also begin to participate in the change described”.

She concluded that the fact that aspects of the Eritrean workers’ claims were actionable as private law torts, did not mean that they had no reasonable chance of success on the basis of customary international law. [ 25 ] Ultimately, Newbury J.A. held that since the law in this area is developing, it cannot be said that the Eritrean workers’ claims based on breaches of customary international law were bound to fail. Analysis [ 26 ] Nevsun’s appeal focussed on two issues:

(1) Does the act of state doctrine form part of Canadian common law?

(2) Can the customary international law prohibitions against forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity ground a claim for damages under Canadian law? Nevsun did not challenge the Court of Appeal’s decision on the admissibility of the reports or on forum non conveniens . As a result, there is no dispute that if the act of state doctrine does not bar the matter from proceeding, British Columbia courts are the appropriate forum for resolving the claims.

The Act of State Doctrine [ 27 ] Nevsun’s first argument is that the entire claim should be struck because the act of state doctrine makes it non- justiciable. [ 28 ] The act of state doctrine is a known (and heavily criticized) doctrine in England and Australia. It has, by contrast, played no role in Canadian law. Nonetheless, Nevsun asserts that these proceedings are barred by its operation.

It is helpful, then, to start by examining what the doctrine is. [ 29 ] There is no single definition that captures the unwieldly collection of principles, limitations and exceptions that have been given the name “act of state” in English law. A useful starting point, however, is Lord Millett’s description: “the act of state doctrine is a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state” ( R. v.

Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3 ), [2000] 1 A.C. 147 (H.L.), at p. 269) . [ 30 ] The act of state doctrine shares some features with state immunity, which extends personal immunity to state officials for acts done in their official capacity. But the two are distinct, as Lord Sumption explained in Belhaj v. Straw , [2017] UKSC 3 : Unlike state immunity, act of state is not a personal but a subject matter immunity. It proceeds from the same premise as state immunity, namely mutual respect for the equality of sovereign states.

But it is wholly the creation of the common law . Although international law requires states to respect the immunity of other states from their domestic jurisdiction, it does not require them to apply any particular limitation on their subject matter jurisdiction in litigation to which foreign states are not parties and in which they are not indirectly

impleaded. The foreign act of state doctrine is at best permitted by international law . [Emphasis added; para. 200.] [ 31 ] The outlines of the act of state doctrine can be traced to the early English authorities of Blad v. Bamfield (1674), 3 Swans. 604, and Duke of Brunswick v. King of Hanover (1848), 2 H.L.C. 1 (see also Yukos Capital Sarl v.

OJSC Rosneft Oil Co. (No. 2) , [2012] EWCA Civ 855, at para. 40). [ 32 ] In Blad , Bamfield and other English traders brought a claim in the English courts against a Danish trader who had been granted letters patent by the King of Denmark as ruler of Iceland “for the sole trade of Iceland” (p. 993). The trader seized Bamfield’s goods in Iceland for allegedly fishing contrary to his letters patent. Bamfield challenged the validity of the letters patent.

Lord Nottingham ruled that Bamfield’s action was barred on the grounds that “to send it to a trial at law, where either the Court must pretend to judge of the validity of the king’s letters patent in Denmark, or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd” (p. 993). [ 33 ] In the subsequent case of Duke of Brunswick , the deposed Duke sued the King of Hanover in England, alleging that, through acts done in Hanover and elsewhere abroad, he had aided in depriving the Duke of his land and title.

The House of Lords refused to judge the acts of a sovereign in his own country. In the words of the Lord Chancellor: ... a foreign Sovereign, coming into this country, cannot be made responsible here for

an act done in his sovereign character in his own country; whether it be

an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon

an act of a Sovereign, effected by virtue of his Sovereign authority abroad,

an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as Sovereign. [pp. 998-99] [ 34 ] Since then, the English act of state doctrine has developed a number of qualifications and limitations, and it no longer includes the sweeping proposition that domestic courts cannot adjudicate the lawfulness of foreign state acts. This became clear in the case of Oppenheimer v.

Cattermole , [1976] A.C. 249 , where the House of Lords refused to recognize and apply a Nazi decree depriving Jews of their German citizenship and leading to the confiscation of all their property on which the state could “lay its hands” (p. 278). Lord Cross held that such a discriminatory law “constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”, noting that it is “part of the public policy of this country that our courts should give effect to clearly established rules of international law” (p. 278).

The House of Lords elaborated on this principle in Kuwait Airways Corpn. v. Iraqi Airways Co. (Nos. 4 and 5) , [2002] UKHL 19 , where Lord Nicholls held that foreign laws “may be fundamentally unacceptable for reasons other than human rights violations” (para. 18). [ 35 ] There has also been a proliferation of limitations on, and exceptions to, the act of state doctrine in England, reflecting an attempt to respond to the difficulties of applying a single doctrine to a heterogeneous collection of issues.

This challenge was identified by Lord Wilberforce in his influential account of the English act of state doctrine in Buttes Gas and Oil Co. v. Hammer (No. 3) , [1982] A.C. 888 (H.L.) , a defamation action that arose in the context of two conflicting oil concessions granted by neighbouring states in the Arabian Gulf. He referred to the act of state doctrine as “a generally confused topic”, adding that “[n]ot the least of its difficulty has lain in the indiscriminating use of ‘act of state’ to cover situations which are quite distinct, and different in law” (p. 930).

He explained that, though often referred to using the general terminology of “act of state”, English law differentiates between Crown acts of state (concerning the acts of officers of the Crown committed abroad) and foreign acts of state (concerning the justiciability in domestic courts of actions of foreign states).

He went on to observe that within the foreign act of state doctrine, the cases support the existence of two separate principles: a more specific principle guiding courts to consider the choice of law in cases involving whether and when a domestic court will give effect in its law to a rule of foreign law; and the more general principle that courts refrain from adjudicating the transactions of foreign states. [ 36 ] And in the 2012 Yukos case, Rix L.J., writing for the Court of Appeal of England and Wales, modernized the description of the doctrine : It would seem that, generally speaking, the doctrine is confined to acts of state within the territory of the sovereign, but in special and perhaps exceptional circumstances . . . may even go beyond territorial boundaries and for that very reason give rise to issues which have to be recognised as non-justiciable.

The various formulations of the paradigm principle are apparently wide, and prevent adjudication on the validity, legality, lawfulness, acceptability or motives of state actors . It is a form of immunity ratione materiae, closely connected with analogous doctrines of sovereign immunity and, although a domestic doctrine of English (and American) law, is founded on analogous concepts of international law, both public and private, and of the comity of nations.

It has been applied in a wide variety of situations, but often arises by way of defence or riposte: as where a dispossessed owner sues in respect of his property, the defendant relies on a foreign act of state as altering title to that property, and the claimant is prevented from calling into question the effectiveness of that act of state. [para. 66] [ 37 ] Rix L.J. noted the numerous limitations or exceptions to the doctrine which he grouped into five categories . First, the impugned act must occur within the territory of the foreign state for the doctrine to apply.

Second, “the doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights” (para. 69). Third, judicial acts are not “acts of state” for the purposes of the doctrine. Fourth, the doctrine will not apply to the conduct of a state that is of a commercial (rather than sovereign) character.

Fifth, the doctrine does not apply where the only issue is whether certain acts have occurred, not the legal effectiveness of those acts. [ 38 ] The effect of all these limitations, as he noted, was to dilute the doctrine substantially: The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.

That after all would explain why it has become wholly commonplace to adjudicate upon or call into question the acts of a foreign state in relation to matters of international convention, whether it is the persecution of applicant asylum refugees, or the application of the Rome Statute with regard to international criminal responsibility or other matters . . . . That is also perhaps an element in the naturalness with which our courts have been prepared, in the face of cogent evidence, to adjudicate upon allegations relating to the availability of substantive

justice in foreign courts. It also has to be remembered that the doctrine was first developed in an era which predated the existence ofmodern international human rights law. The idea that the rights of a state might be curtailed by its obligations in the field of humanrights would have seemed somewhat strange in that era. That is perhaps why our courts have sometimes struggled, albeit ultimatelysuccessfully, to give effective support to their abhorrence of the persecutions of the Nazi era [as in Oppenheimer]. [Emphasis ad

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