SCC Grants Leave to Intervene in Nevsun v Araya

The Supreme Court of Canada has today granted leave to intervene to EarthRights International (ERI) and the Global Justice Clinic at New York University School of Law (GJC) (jointly), in an appeal from this decision Araya v. Nevsun Resources Ltd., 2017 BCCA 401 .

This appeal raises important matters of public law. The ability of individuals to obtain an effective remedy in Canada when harmed by the participation of a Canadian corporation in gross violations of universally recognized human rights implicates Canada’s international obligations.

Also intervening in the appeal are the International Human Rights Program, University of Toronto Faculty of Law; Amnesty International Canada and the International Commission of Jurists (jointly); MiningWatch Canada; and the Mining Association of Canada.

ERI and GJC are represented by Alison Latimer and Tamara Morgenthau.

Private Law Claims Based on Violations of Customary International Law Not Bound to Fail

Today the Court of Appeal dismissed an appeal in which a BC Corporation applied to have an action stayed in B.C. on the basis that Eritrea was the forum conveniens. The Court accepted that there was a “real risk” of corruption and unfairness in the Eritrean legal system. 

The Court also dismissed an appeal from an order refusing to strike the claim that was sought by the BC Corporation based on the doctrine of act of state, which precludes a domestic court from adjudicating on the legality or validity of legislation of a foreign state or acts done by officials of a foreign state. The Court held that the doctrine was not applicable, and in any event the public policy limitation to the doctrine applied in light of the grave nature of the wrongs asserted by the plaintiffs which included forced labour, slavery and torture.

Finally, the Court dismissed the he BC Corporation's application to have causes of action based on customary international law struck out. The BC Corporation argued that even though Canada is a party to the Convention Against Torture, there is no right in Canada to a civil remedy for acts of torture committed outside Canada. Although prior Canadian decisions against foreign states have declined to recognize private causes of action for breaches of peremptory international norms, this case involves a claim against a private party and was not bound to fail. Developments in transnational law leave open the possibility that an incremental development in the law reflecting customary international law norms in private law remedies might be appropriate.

Alison M. Latimer and Tamara Morgenthau acted for the Intervenor, EarthRights International.

To read the full decision, click here.

EarthRights International Granted Leave to Intervene

The British Columbia Court of Appeal has today granted leave to intervene to EarthRights International in an appeal from this decision Araya v. Nevsun Resources Ltd., 2016 BCSC 1856.

The proceeding raises issues of transnational law being the term used for the convergence of customary international law and private claims for human rights redresses and which include: (a)  whether claims for damages arising out of the alleged breach of jus cogens or peremptory norms of customary international law such as forced labour and torture may form the basis of a civil proceeding in British Columbia; (b) the potential corporate liability for alleged breaches of both private and customary international law. This in turn raises issues of corporate immunity and whether the act of state doctrine raises a complete defence to the plaintiffs’ claims.

EarthRights International has been granted leave to make submissions on the Act of State doctrine and norms of customary international law.

EarthRights International is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment. To read more about their essential work, click here. 

EarthRights International is represented by Alison Latimer and Tamara Morgenthau.