Nevsun Resources Ltd. advises that the British Columbia Supreme Court has refused to permit a claim against Nevsun to proceed as a common law class action. The court did permit the lawsuit by the three named plaintiffs to continue.
Today’s court decision addresses only preliminary legal challenges to the action raised by Nevsun. The judgment makes no findings with respect to the plaintiffs’ allegations, including whether any of them were in fact at the Bisha Mine. The judge also emphasized that the case raises novel and complex legal questions, including on international law, which have never before been considered in Canada.
Nevsun is studying the court’s decision and considering an appeal of the decision that the action can proceed at all.
Nevsun remains confident that its indirect 60%-owned Eritrean subsidiary, Bisha Mining Share Company (“BMSC”) operates the Bisha Mine according to international standards of governance, workplace conditions, health, safety and human rights. There are contractual commitments in place that strictly prohibit the use of national service employees by BMSC’s contractors and subcontractors.
BMSC is committed to managing the Bisha Mine in a safe and responsible manner that respects the interests of local communities, workers, stakeholders and the natural environment. Nevsun’s and BMSC’s commitment to corporate social responsibility is detailed in Nevsun’s 2015 Corporate Social Responsibility report.
Nevsun and its partner, Eritrean National Mining Corporation, also commissioned a 2015 human rights audit of the Bisha Mine.
Nevsun is a leading mid-tier base metals company. Nevsun operates the high-grade Bisha open pit copper-zinc mine and is developing the Timok copper-gold project. With a strong balance sheet and future cash flow Nevsun is positioned to for growth while paying a strong dividend.
In November 2014, with the help of the NGO Canadian Centre for International Justice (CCIJ), three ‘Eritreans’, namely Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle, filed a lawsuit against Nevsun Resources in Vancouver, British Columbia, Canada.
In their notice of civil claim, the plaintiffs allege Nevsun was complicit in the use of “forced labour” by its local sub-contractor, Segen Construction (owned by Eritrea’s ruling party), at the Bisha mine in Eritrea.
They claim that they worked at the Bisha mine against their will and were subject to “cruel, inhuman and degrading treatment”. They allege that they were forced to work long hours and lived in constant fear of threats of torture and intimidation, between 2008 and 2012.
Nevsun has rejected the allegations as “unfounded” and declared that “the Bisha Mine has adhered at all times to international standards of governance, workplace conditions, and health and safety”.
With todays ruling, it appears that the NGO Canadian Centre for International Justice (CCIJ), have succeeded in convincing the court that the judicial system in Eritrea is controlled by the government and the plaintiffs won’t get a fair trial should the court rejects to hear the case in Canada.
This lawsuit is, therefore, the first in Canada where claims are based directly on violations of international law.
More than 75 percent of the world’s mining and exploration companies are based in Canada and today’s decision would have wider implications for Canadian mining companies operating in countries with poor environmental and human rights records.
The biggest challenge for CCIJ after this decision will be to prove that if two of the three plaintiffs, Kesete Tekle Fshazion and Mihretab Yemane Tekle have ever been employed or worked at the mine because thorough a search of comprehensive payroll and visitor records in the development of the Bisha mine shows they were NONE.
If this same Court was incompetent before and decided a similar case to be judged in the country where the facts took place, as in the case of the Canadian firm Tahoe Resources relating to a situation in Guatemala, then the Court has to show somehow that Nevsun’s case has a real and substantial ties to Canada to warrant a hearing in Canada since the the alleged acts happened in Eritrea, the plaintiffs are Eritreans and the subsidiary company Bisha Mining Share Company is established under the laws of Eritrea.
That is exactly why Nevsun is considering an appeal on today’s ruling.