Mother Earth and Resource Extraction: Women Defending Land and Water

Cases in Canadian Courts



Leer la versión en español de este contenido: Casos Legales en las Cortes Canadienses.

Claims in Canadian Courts

As of August 2019, there have been eight claims filed in Canadian courts alleging environmental or human rights abuses related to overseas operations of Canadian extractive companies. See Above Ground's research for a full summary. Below is a review of the most legally significant cases.
  1. Recherches Internationales Quebec v Cambior Inc.
In 1995, there was a failure at a tailings dam at the Omai gold mine in Guyana. This spill caused billions of litres of contaminated mine waste to pollute the Omai and Essequibo rivers. In 1997, a group of Indigenous Guyanese brought a claim against the majority owner of the mine, Cambior Inc, at the Quebec Superior Court.

The plaintiffs were suing for negligence. The case never went to trial because the Quebec court determined that Guyanese courts were more appropriate via forum non-conveniens. This decision was made despite expert testimony showing the bias in the court system of Guyana. The Quebec court dismissed the claim and ordered the plaintiffs to pay Cambior’s legal expenses. The case in Guyana was also dismissed.
  1. Choc v Hudbay; Chub v Hudbay; Caal v Hudbay
These three separate cases all involve Guatemalan plaintiffs launching cases in the Ontario Superior Court against Hudbay Minerals Inc. The lawsuits refer to a series of events between 2007– 2009 where plaintiffs allege security personnel hired by the subsidiary company CGN at the Fenix nickel mine in El Estor, Guatemala killed a community leader, shot and paralyzed another, and gang raped eleven women. Personnel on the security team were known war criminals. Hudbay Minerals tried to have the court strike the plaintiffs’ claims, arguing that there was no viable cause of action. In 2013 the court denied Hudbay’s motion to strike, allowing the cases to proceed.

These cases are still ongoing. These lawsuits aren’t trying to hold HudBay vicarious liable for the acts of its subsidiary. Instead they are trying to demonstrate that HudBay had a duty of care and that, through its acts and omissions, is directly liable for the harm. This is the first case in Canada proceeding to a trial where foreign plaintiffs are alleging harm caused by a Canadian company’s overseas operations.
  1. Araya v Nevsun Resources LTD
Three Eritrean plaintiffs began proceedings against Nevsun Resources in the British Columbia Supreme Court in 2014. The plaintiffs alleged that Nevsun made widespread use of forced labour through its subsidiary and an Eritrean government-controlled contractor at the Bisha mine near Asmara, Eritrea. The plaintiffs sued for conversion, battery, unlawful confinement, negligence, conspiracy, and negligent infliction of mental distress. This was in addition to claims based on international law provisions against forced labour, torture, slavery, cruel and inhuman treatment, and crimes against humanity.

Nevsun is seeking dismissal based on forum non-conveniens and the ‘act-of-state' doctrine which stops Canadian courts from ruling on the acts of foreign states. Nevsun’s attorneys argued that the international law claims cannot apply because they govern states, not companies.

The Supreme Court of British Columbia denied Nevsun’s motions to dismiss the case and in 2017 the decision was upheld at appeal. This is the first instance that a Canadian appeal court recognized that a corporation can be sued for alleged violations of international human rights law. In January 2019, Nevsun challenged the appeal court’s decision to the Supreme Court of Canada and the plaintiffs use of international law. As of October 2019, the decision is pending.

This case brings up interesting questions regarding the state-centric concepts underlying international law. There is a differentiation between subjects and objects of law. This means there is a difference between actors that have ‘standing’ (subjects of law) and actors that are beneficiaries, or on the receiving end of laws (objects of law). As subjects of international law, states are considered entities that have rights and duties on the international level. The implication is that subjects of international law are the entities making the rules that are then imposed on the other actors, who are objects of the law. Historically there has been a reluctance in international law to include non-state actors as subjects of international law. The reluctance can be traced back to the roots of international law that are based on legal legitimacy sourced from sovereignty and consent. However, the reality today is that there are a multitude of non-state entities that engage in behaviour normally reserved for states as the ’official subjects’. Non-state actors have tangible influence over the international legal order as can be seen with mining MNCs. See discussion on an International Business Human Rights Treaty for more detail.

 

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