The future of the Canadian resource industry hangs in the balance as the Supreme Court of Canada prepares to hear a high-profile case accusing Canadian miner Nevsun Resources Ltd. of human rights abuses in Eritrea.
At the heart of the hearing, set for Jan. 23, is whether customary international law (CIL) — a fairly undefined and shifting body of law that has, to date, only been applied to sovereign states — will now apply to Canadian companies. Traditionally, Canadian courts have been loath to deal with violations of international law that have occurred abroad.
The Nevsun case could change that — an unappealing outcome for Canadian multinationals, especially resource-extraction companies who must often enter into arrangements with foreign governments regarding their exploration and development initiatives.
“The prospect of customary international law applying to Canadian businesses, and particularly the mining sector, creates unpredictability that will compromise our competitiveness if not properly thought out,” said Ben Chalmers, the Ottawa-based senior vice-president of the Mining Association of Canada, to which the SCC has granted intervenor status in the Nevsun case.
Driving the case are Eritrean refugees who allege that the company, through a chain of subsidiaries, joined with Eritrea in developing a gold, copper and zinc mine in the country. The refugees claim that they endured slavery, torture and other inhumane treatment at the hands of the Eritrean military and military-controlled corporations after being forced to work at the mine under Eritrea’s National Service Program.