Day 6

'A resounding win for human rights': Canadian companies can now be sued at home for labour abuses abroad

Until now, it's been extremely difficult to sue Canadian companies for alleged labour abuses committed internationally. A new Supreme Court of Canada ruling changes that, says lawyer Joe Fiorante.

Indefinite national service in Eritrea 'something akin to modern slavery,' says lawyer Joe Fiorante

Until now, it's been extremely difficult to sue Canadian companies for alleged labour abuses committed internationally. A new Supreme Court of Canada ruling changes that, says lawyer Joe Fiorante. (Sean Kilpatrick/The Canadian Press)

Lawyer Joe Fiorante's clients have yet to prove in court that a Canadian mining company has abused their labour at an Eritrean mine. But Fiorante is celebrating that they're finally able to make their case at all.

Until a precedent-setting decision in late February from Canada's highest court, it was "extremely difficult" to hold Canadian companies accountable in Canadian courts for labour abuses committed abroad, Fiorante said. 

"There are a number of barriers that any foreigner has to overcome to bring a case in the courts of Canada. But we've had some success in knocking those barriers down," he told Day 6 host Brent Bambury.

Fiorante represents a group of Eritrean workers who allege that Nevsun Resources, a B.C. mining company, used forced labour in its operations in the East African country. 

"Forced labour is a huge issue in the global market...it's something that affects millions of workers throughout the world," he said.

A general view shows the sag mill and ball mill within the processing plant at the Bisha Mining Share Company (BMSC) in Eritrea, operated by Canadian company Nevsun Resources, on Feb. 18, 2016. (Thomas Mukoya/Reuters)

Fiorante says the Eritrean workers Nevsun employs at its mine have been conscripted into an indefinite national service.

"In 2003, the dictator of Eritrea decreed that national service would be of indefinite length, and that converts it from a program that other countries might have to something akin to modern slavery," he explained.

None of the allegations against Nevsun have been proven in court. 

The court made it very clear that international human rights standards are real and they're to be abided by and Canadian courts have a real interest in enforcing them.- Joe Fiorante,  Partner at CFM LLP

In a statement to Day 6, Nevsun said that its Eritrean subsidiary, Bisha Mining Share Company, will continue operating "according to high standards of governance, workplace conditions, health, safety and proper protection of human rights."

"There are contractual commitments in place that strictly prohibit the use of national service employees by BMSC's contractors and subcontractors," it continued.

In its ruling, the Supreme Court of Canada rejected what's known as "an act of state" defence.

"Basically that defence is that Nevsun could never be held liable for complicity in human rights abuses because those abuses were committed by the state of Eritrea, which has a form of state immunity," Fiorante explained.

Nevsun Resources's gold and copper mine in the Bisha mining district in northern Eritrea, adjacent to Sudan. (CBC)

The court also upheld that customary international laws — such as the prohibition on slavery and forced labour — can be enforced in Canadian courts.

"This is the first time, to our knowledge, that a court anywhere in the Commonwealth has decided that standards of customary international law can be used for a claim in forced labour by the victims," said Fiorante.

"The court made it very clear that international human rights standards are real and they're to be abided by and Canadian courts have a real interest in enforcing them," he added.

Bombardier cited in a different report 

A week after the Supreme Court's ruling, a report from the Australian Strategic Policy Institute listed numerous Western companies, including Canada's Bombardier, whose Chinese operations may be benefiting from the use of forced labour.

In an email to Day 6, a spokesperson for Bombardier said the company has investigated claims that its Chinese contractor, KTK Group, effectively used forced labour from Uighur communities in China. 

"Following our request for clarification, with reference to the allegation contained in the ASPI report, Bombardier Transportation is satisfied with the responses received from KTK," said Francoise Granda-Desjardins.

"We consider this matter closed and will not comment any further." 

Fiorante says the Supreme Court decision could mean more cases coming to Canadian courts with similar allegations to the matter at Nevsun.

"We hope that Canadian companies take the appropriate steps to ensure that they're not using forced labour," he said.

"But yes, if cases like this come to light, they will be brought forward in the courts of Canada."


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