Lawyers for the Canadian firm Nevsun Resources Ltd., Sutts, Strosberg LLP, Groia Groia & Company LLP and Andrew Morganti, are preparing the final case they will present to British Columbia’s Supreme Court. The court will soon rule on a complaint filed in November, 2014 by three former Eritrean national service conscripts.
However, the Judge will have to first decide whether it is competent to handle the case that involves a Vancouver-based mining company and African employees.
More than 75 percent of the world’s mining and exploration companies are based in Canada, according to a McCarthy Tétrault report on mining and the courts. Should the court decide the claim can be heard in Canada, it could have wider implications for Canadian mining companies operating in countries with poor environmental and human rights records.
In their notice of civil claim, the three were initially hired by way of military National Service in Eritrea and they were unable to leave the Service once training was complete, and that instead they were “forced” to work on behalf of Segen Construction at the Bisha Mine, operated 60% by Nevsun and 40% by the Eritrean National Mining Corp (ENAMCO), between 2008 and 2012.
In its defence, Nevsun is trying to prevent their case from being heard in Canada, primarily arguing it should be heard in Eritrea and that a Canadian court is an inappropriate venue to hear accusations involving a foreign state.
University of Ottawa Law professor and human rights specialist Penelope Simons once said it’s always a challenge to get allegations like these heard here in a Canadian court.
“The act itself happened in a foreign country, the plaintiffs are foreign and the subsidiary of the Canadian company is established under the laws of the host state. So you have to show that somehow there is a real and substantial tie to Canada.”
Simons says in most lawsuits, the Canadian mining company argues its subsidiaries are the ones to hold to account over what happens on foreign territory.
Therefore, it is expected for Nevsun first to cite a ruling in a similar suit against the Canadian firm Tahoe Resources relating to a situation in Guatemala. Last December, this same British Colombia Supreme Court decided it was incompetent and that the case had to be judged in the country where the facts took place.
However, the NGO Canadian Centre for International Justice (CCIJ), which assisted the three conscripts in the case, are determined to prove the judicial system in Eritrea is controlled by the government and rule-of-law doesn’t exist there.
As reflected in their statement of claim, CCIJ tried to present a number of politically induced reports from the UN and other right groups as evidence to prove rule-of-law doesn’t exist in Eritrea. Since none of the said reports have been compiled from inside Eritrea, their veracity is questionable and expecting the court to consider it as evidence is simply a non-starter.
Instead, CCIJ should prove to the court first if two of the three plaintiffs, Kesete Tekle Fshazion and Mihretab Yemane Tekle have ever been employed or worked at the mine in the first place. A thorough search of comprehensive payroll and visitor records shows they were none.
For CCIJ, it is like chasing after the wind.