Araya v. Nevsun Resources Ltd.

2017 BCCA 402 Araya v. Nevsun Resources Ltd.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Araya v. Nevsun Resources Ltd., 2017 BCCA 402 Date: 20171121 Docket: CA44025 Between: Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle Respondents (Plaintiffs) And Nevsun Resources Ltd. Appellant (Defendant) And EarthRights International Intervenor Before: The Honourable Madam Justice Dickson (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated October 6, 2016 (Araya v. Nevsun Resources Ltd., 2016 BCSC 1856, Vancouver Docket S148932). Counsel for the Appellant: A.I. Nathanson G. Cameron A. Mitretodis Counsel for the Respondents: R. Mogerman J. Winstanley Counsel for the Intervenor: A. Latimer Place and Date of Hearing: Vancouver, British Columbia April 13 and May 5, 2017 Place and Date of Judgment: Vancouver, British Columbia May 5, 2017 Place and Date of Reasons: Vancouver, British Columbia November 21, 2017 Summary: The applicant, EarthRights International, applied for an order that it be granted leave to intervene in the within appeal. Held: application allowed on terms. Reasons for Judgment of the Honourable Madam Justice Dickson: [1] On May 5, 2017 I granted EarthRights International leave to intervene in this appeal brought by the defendant, Nevsun Resources Ltd., from the order of Justice Abrioux dismissing its applications to dismiss, stay or strike out the plaintiffs'

claims. These are the reasons for which leave to intervene was granted. The Claim [2] The plaintiffs are refugees from Eritrea, an East African country that they characterize as a "rogue state". Nevsun is a publicly-held British Columbia corporation. [3] In the Notice of Civil Claim, the plaintiffs summarize their claim against Nevsun as follows: In October 2007, Vancouver based Nevsun Resources Ltd. entered into a commercial venture with the rogue state of Eritrea to develop the Bisha gold mine in Eritrea. The mine was built using forced labour, a form of slavery, obtained from the plaintiffs and others coercively and under threat of torture by the Eritrean government and its contracting arms. The plaintiffs bring this action for damages against Nevsun under customary international law as incorporated into the law of Canada and domestic British Columbia law, on their own behalf and as a representative action on behalf of all Eritrean nationals who were forced to work at the Bisha mine from September 2008 to the present. [4] Nevsun denies the plaintiffs' claims. Decision under Appeal [5] Nevsun brought several preliminary applications to have the plaintiffs' claims dismissed, stayed or struck out, including two applications brought pursuant to Rules 21-8(1) and 9-5 of the Supreme Court Civil Rules to stay or strike out the claims on the basis that they are not justiciable or

disclose no reasonable cause of action as they are i) barred by the act of state doctrine and ii) based on alleged breaches of customary international law. [6] Justice Abrioux dismissed both applications. In doing so, he reviewed the act of state doctrine by referring to U.S. and U.K. authorities as the doctrine has not yet been applied in Canada. Quoting from R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, he described the act of state doctrine as " a subject matter immunity [which prevents] the official and governmental acts of one state from being called into question in proceedings before the courts of another ". He also noted the doctrine's many limitations. Although he considered it part of Canadian common law, he found the act of state doctrine is of uncertain scope and application and, on this basis, dismissed Nevsun's preliminary application. [7] As to customary international law, Justice Abrioux found the current state of the law regarding its content, place in Canadian law and applicability to corporations is unsettled. In these circumstances, assuming the facts pleaded to be true, he was not satisfied that the plaintiffs' customary international law claims have no reasonable likelihood of success. [8] On appeal, Nevsun seeks to set aside Justice Abrioux's orders. The issues engaged on the appeal

that are relevant to the intervention application are substantially the same as those addressed by Justice Abrioux, namely the scope and application of the act of state doctrine and customary international law to the plaintiffs' claims against Nevsun. Application to Intervene Legal Framework [9] Rule 36(1) of the Court of Appeal Rules, B.C. Reg. 297/2001 provides that any person interested in an appeal may apply for leave to intervene on terms and conditions the justice may determine. A single justice in chambers has jurisdiction to grant intervenor status as an order incidental to the appeal: Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 10(2)(a). [10] An applicant seeking leave to intervene must show that it has a direct interest in the outcome of the proceeding or that it represents a public interest in a public law issue to which it can bring a different and useful perspective concerning that issue: EGALE Canada Inc. v. Canada (Attorney General), 2002 BCCA 396 at para. 7; Vincent v. Roche-Vincent, 2013 BCCA 136 at para. 4 (Neilson J.A. in Chambers). The nature of the proposed intervenor and the nature of the issue are also relevant factors for consideration on an intervention application: Bazely v. Children's Foundation et. al. (1996), 75 B.C.A.C. 177 at 180 (Goldie J.A. in Chambers). [11] In R. v. Watson and Spratt, 2006 BCCA 234 (Chambers), Justice Newbury outlined the

factors for consideration on an intervention application when an applicant does not have a direct interest in the litigation: [3] [W]here the applicant does not have a "direct" interest in the litigation, the court must consider the nature of the issue before the court (particularly whether it is a 'public' law issue); whether the case has a dimension that legitimately engages the interests of the would-be intervenor; the representativeness of the applicant of a particular point of view or "perspective" that may be of assistance to the court; and whether that viewpoint will assist the court in the resolution of the issues or whether, as noted in Ward v. Clark, the proposed intervenor is likely to "take the litigation away from those directly affected by it". (Para. 6.) Thus in Ward v. Clark, it was held that the application of the Civil Liberties Association for intervenor status had been properly dismissed, given its proposal to "change the focus" of the argument to something different than that proposed by the parties themselves. [12] An intervenor's role is to make principled submissions on pertinent points of law, not to support the position of a party. While its submissions may support one party's position, that is not their purpose: Friedmann v. MacGarvie, 2012 BCCA 109 at para. 28. [13] An applicant will not be permitted to intervene in an appeal if it would create a

significant burden on the parties. When an intervention application is granted, the submissions of the intervenor should not widen the lis between the parties: Ward v. Clark, 2001 BCCA 264 at paras. 6-11; Hirt v. College of Physicians and Surgeons of British Columbia (1985), 60 B.C.L.R. 131 at 134 (C.A.). [14] In Garcia v. Tahoe Resources Inc., 2016 BCCA 320, Justice Savage granted leave to intervene to Amnesty International, an international, non-governmental human rights organization. Amnesty International proposed to make submissions on the relevance of international human rights law and norms to the determination of jurisdiction where claims are made against Canadian corporations operating abroad. In allowing the application, Justice Savage limited the scope of the intervention by imposing terms that permitted Amnesty International to address a matter of public interest but not to "hijack the appeal". In particular, he permitted Amnesty International to file a factum of up to 15 pages and to make submissions on issues of foreign and international norms and standards concerning forum non conveniens which would not duplicate arguments made by the appellant. EarthRights International's Intervention Application [15] EarthRights International is a non-profit, non-governmental human rights organisation that advocates on behalf of communities and individuals facing human rights

and environmental abuses perpetrated by corporations. Founded in 1995, it has offices in the United States, Peru, Thailand and Myanmar. EarthRights International advances its objectives by, among other things, engaging in litigation on behalf of those harmed by corporate activity, providing input on legislation and promoting corporate accountability. It participates in a number of coalitions and has a nine-member volunteer board of directors comprised of international and American lawyers, law professors and non-lawyers. Although it has not previously been granted intervenor status in Canada, it has acted as counsel for plaintiffs and amicus curiae in court in the United States. [16] EarthRights International sought leave to intervene with respect to the issues on appeal relating to the act of state doctrine and customary international law, areas in which it says it has a unique perspective and considerable expertise. On the act of state doctrine, it proposed to make submissions on how U.S. courts have developed and applied the doctrine and its limitations. On customary international law, it proposed to make submissions on U.S. jurisprudence under the U.S. Alien Tort Statute; corporate liability for violations of customary international law; whether international law must provide a private right of action; and whether prohibitions in international law that are crimes can also

be torts. Discussion [17] Nevsun opposed EarthRights International's application, arguing that its involvement in the appeal would duplicate the plaintiffs' arguments and expand the issues raised by the parties. It also challenged EarthRights International's ability to fulfill the limited role of an intervenor, given its mandate to litigate on behalf of individuals, its alignment with the plaintiffs' objectives and positions, and its connection with the Canadian Centre for International Justice, whose legal director is part of the plaintiffs' legal team. Emphasizing the private nature of the dispute, Nevsun contended that the proposed intervention would impose an unduly onerous burden on the parties and that, given the experience of plaintiffs' counsel, it is unnecessary. However, if leave to intervene was granted, Nevsun argued that it should be limited to a brief, non-duplicative explication of U.S. Alien Tort Statute jurisprudence. [18] Like Justice Savage in Garcia, I accept that the concerns raised in opposition to the proposed intervention are valid. However, as he did, I believe they are best addressed by the terms of a clear limiting order, not by dismissing the intervention application. In my view, the issues raised on appeal regarding the act of state doctrine and customary international law concern broad social and international law questions of a public law nature

that take the dispute beyond the realm of the purely private. Given the complexity and developing nature of these issues and EarthRights International's mandate and expertise, I was satisfied that, with appropriate limits, it could bring a unique perspective that may assist the court in their resolution. I was also satisfied that no injustice to either party would result from granting it intervenor status. [19] Taking into account the foregoing, I granted intervenor status to EarthRights International on the following terms: 1. The style of cause will be amended to include EarthRights International as intervenor; 2. Earthrights International may file a factum of no more than 15 pages on or before May 26, 2017; 3. Earthrights International's factum shall not duplicate arguments made by the Plaintiffs/Respondents and shall be strictly limited to making principled submissions on legal issues raised on the appeal relating to the act of state doctrine and norms of customary international law; 4. Nevsun is entitled to file a combined reply to the Plaintiff/Respondent's factum up to five pages and response to EarthRights International's factum up to 15 pages on or before June 26, 2017; 5. The right of Earthrights International to make oral submissions at the hearing of the appeal, and the allocation of time for such submissions, will be determined by the division hearing the appeal; 6. Costs for or against Earthrights International will be in the discretion of the division of the Court hearing the appeal. "The Honourable Madam Justice Dickson"