Richard Poplak is a Canadian author and journalist based in Johannesburg. He is currently working on a book about the Canadian mining industry and is co-director of the forthcoming documentary, Influence.
When they hear the word “slavery,” most Canadians are likely reminded of the antebellum American South. But slavery – or, more accurately, the trafficking and selling of living human beings – is a 21st-century recession-proof growth industry. Across the world, organized syndicates and shady governments benefit from the unprecedented movement of people within and across borders.
Take, for instance, the secretive African redoubt of Eritrea, one of the major contributors to the Mediterranean migrant industrial complex. Among other things, its people are fleeing a non-existent economy compounded by compulsory military service that pays conscripts next to nothing, overseen by the continent’s most determinedly dour regime. According to figures provided by the United Nations High Commissioner for Refugees, almost 10 per cent of Eritrea’s 5.7 million people are on the run, and an astonishing 50,000 sought asylum abroad in 2017 alone. The country ranks behind China, and just ahead of North Korea, in terms of press freedom, while its per capita GDP is the third-worst in the world. As a result, Eritrea is entirely absent of the rule of law or humane governance.
Obviously, no Canadian company would want anything to do with such a place.
Where’s the eye-rolling emoji when you most need it? It’s worth pointing out that the list of Canadian corporations is a lengthy one, with a few rogues regularly making the news: Bombardier for alleged corruption in Azerbaijan and South Africa, for instance, or Barrick Gold for alleged gang rapes committed by security guards at the company’s Papua New Guinea mine. But the mining company Nevsun Resources Ltd. holds a special place in the heart of human-rights violation connoisseurs. The Vancouver-based miner isn’t Canadian-owned any longer – it was purchased by the Chinese outfit Zijin Mining in 2018 for $1.9-billion. But back when it was a local success story, it was infamous for operating the Bisha copper-gold mine in the Eritrean hinterlands.
Exploiting cheap (or free) local labour is the abiding innovation of colonial-style capitalism – it’s how business is conducted out there in the real world. Still, even judged by the lowest standards, the Bisha mine represented something special: a foreign multinational allegedly colluding with a repressive regime in order to mine precious metals with slave labour. Nevsun’s primary partner is the state itself, which owns 40 per cent of the operations and has earned more than US$1-billion in taxes and revenues from the mine since 2011.
Segen Construction, an Eritrean outfit known to use conscripted labour, worked with Nevsun. According to Human Rights Watch, when the allegations first surfaced in 2013, “Nevsun did not acknowledge that Segen had used conscript labourers at Bisha, but neither did it rule out the possibility.” In a statement to The Globe and Mail from that time, Nevsun said: “The company expresses regret if certain employees of Segen were conscripts four years ago.” Meanwhile, the state-owned trucking company Transhorn Trucking, which has allegedly killed at least four people in a variety of road accidents, was another example of why perhaps the partnership was a bad idea.
Some questions. First, how is it that a Canadian company was willing and able to operate in a proto-socialist one-party prison state almost entirely closed to international oversight, with no rule of law and no human-rights protections? Second, how was Nevsun (even if it didn’t know about it) allowed to benefit from the use of forcibly conscripted Eritrean soldiers who were press-ganged into industrial service? Unsurprisingly, the United Nations has described such practices as “enslavement,” and it is this matter that has dragged Nevsun before the courts. The eventual outcome of the case against the miner may forever change how Canadian corporate behaviour is tolerated abroad.
In 2014, three former Eritrean military conscripts filed a case, claiming that they were seconded to Bisha during its development, and were forced to work 60-hour weeks in 50-degree heat for little or no recompense. They argued that this treatment represented “a breach of customary international law," a set of legal norms more fully developed after the Second World War to try and mitigate the worst effects of human savagery. Critically, they insisted that customary international law was a part of Canadian law, and that the case should therefore be heard in Canadian courts.
Mining companies tend to steer clear of developed world courtrooms at all costs, and Nevsun was no exception. While conceding that military conscripts may have been used to construct the mine, Nevsun nonetheless deployed a legal gambit that had never been encountered in a Canadian courtroom before. It asked the court to apply something called an “act of state doctrine,” which claims that courts in one country aren’t allowed to rule on what another country does. (Remember, Nevsun worked with and for the Eritrean government.) The act, the company’s lawyers insisted, effectively gave it blanket immunity in international courts for the behaviour in Eritrea.
As such, Nevsun argued that the case should be heard in the Eritrean judicial system, where the courts are the plaything of the ruling dictator, Isaias Afwerki. Unfortunately for Nevsun, it lost in the B.C. lower courts and the company’s appeal wound its way up to the Supreme Court of Canada. In a precedent-setting ruling handed down on Feb. 28, the appeal was dismissed. The case will be heard in the Supreme Court of British Columbia in September, 2021.
What does all of this mean? For one thing, Canada is home to almost half the world’s publicly listed mining and exploration companies, and so the ultimate legal resolution will have a global ripple effect. (At the present moment, Canadian mining companies operate in more than 100 countries, according to the government’s own statistics.) More important, the Supreme Court of Canada has now set a precedent in Commonwealth law for applying customary international law against companies operating in legal black-holes abroad. It means that the immunity that Nevsun assumed pertained to its partnership with the Eritrean state – an argument used in various guises by multinationals all the time – does not stand. It means that Canadian mining companies will be compelled to behave with less impunity and more oversight. And it may even mean that they have to take their human-rights auditors and corporate social-responsibility departments a little more seriously.
The allegations against Nevsun have yet to be tested in court. But next year, the company’s legal team will stand before the Canadian judicial system facing accusations so appalling that they deserve to change the country’s conception of itself.
As far as the discourse is concerned, slavery is about to make a comeback. In truth, it was here all along.
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