Forced labour lawsuit against Vancouver mining company can proceed

The B.C. Supreme Court has given the go-ahead to three refugees to proceed with a civil lawsuit against a Vancouver-based company they accuse of using forced labour in the construction of an East African mine.

The lawsuit filed by three former Eritrean conscripts in B.C.'s Supreme Court accuse Nevsun Resources of being "an accomplice to the use of forced labour, crimes against humanity and other human rights abuses at the Bisha mine."

The Vancouver-based miner had argued that the case should be dismissed and that any lawsuit should be heard in Eritrea, not Canada.

• the fifth estate: Nevsun in Eritrea — Dealing With a Dictator

But Justice Patrice Abrioux rejected that argument, concluding "there is a real risk that the plaintiffs could not be provided with justice in Eritrea."

Lawyers representing the workers say it's the first lawsuit against a Canadian company over allegations of human rights abuses that happened abroad that has been allowed to proceed in B.C.

"Yesterday was a big step forward for our client. The B.C. Supreme Court refused to dismiss the case at a preliminary jurisdictional stage," said lawyer Joe Fiorante.

"Historically that has been where claims brought against Canadian companies for conduct abroad have been dismissed."

Fiorante said the ruling will allow them to gather more evidence for their case directly from the company.

"We now intend to use the court's discovery processes to conduct an exhaustive investigation into the truth of what Nevsun really knew about the human rights situation at the mine."

Company denies allegations

The lawsuit includes allegations of beatings, torture and cruel and inhuman treatment of workers at the hands of the Eritrean government that have not yet been tested in court.

If Nevsun loses at trial, the company could be forced to pay compensation for "severe physical and mental pain and suffering."

But Nevsun, which owns a controlling interest in the Bisha gold mine, denies the allegations and it is defending its operations overseas.

Nevsun says its mine is a model development  and the Eritrean military never provided labor to the mine. Even if it did, the company argues, Nevsun was not directly responsible for employing the workers.

In a statement the company noted "the case raises novel and complex legal questions, including on international law,  which have never before been considered in Canada."

Nevsun said it is studying the ruling and considering an appeal of the decision that the action can proceed at all.

Taking on justice overseas

The case is one of several now before Canadian courts against companies accused of responsibility for severe human rights abuses overseas, according to Matt Eisenbrandt, the legal director of the Canadian Centre for International Justice and a member of the Eritrean's legal team.

In Ontario three lawsuits alleging that Hudbay Minerals is liable for killing and gang rapes in Guatemala are also moving toward trial, he notes.

"Canadian courts appear to be increasingly open to survivors of abuses linked to the operations of mining companies abroad," said Eisenbrandt.

"Survivors want Canadian companies held accountable in Canada, and today's judgment is an important step toward making that a reality."

Cases to proceed separately

But as part of the ruling, the judge granted an application by Nevsun asking the court to find that the case could not continue as a representative action, similar to a class action, noting that the workers named in the case made slightly different allegations.

Instead, the Eritreans will need to file separate lawsuits, which could make the case more complex and expensive.

Fiorante said he wasn't concerned about that part of the decision.

"We're reviewing that aspect of the decision but the case will certainly go forward," he said. "This is a big win for us."