Tag

Simons

The Nevsun case is heard before the Supreme Court of Canada

By | News, Press Releases

January 2019 – On 23 January 2019, co-researchers of the Canadian Partnership for International Justice intervened before the Supreme Court of Canada during the hearing of the Nevsun case. This groundbreaking case has great potential significance for human rights and corporate accountability in Canada as it is the first lawsuit whose claims are based directly on violations of international law.

The case questions whether a Canadian mining company should be held accountable for human rights violations perpetrated abroad. The British Columbia mining company Nevsun Resources Ltd. faces charges of forced labour, a form of slavery, related to the construction of the Canadian owned Bisha gold mine in Eritrea. Plaintiffs are former mine workers who have been granted the refugee status in Canada.

Jennifer Klinck, Paul Champ and Penelope Simons at the hearing. (Photo: Twitter)

In appeal before the Supreme Court of Canada, Nevsun sought immunity for its conduct based on the common law doctrine of act of state. The respondents pleaded the absence of a doctrine of corporate immunity in international law and claimed that jus cogens norms of customary international law should serve as a source for development of the Canadian common law.

CPIJ is proud that its co-researchers Penelope Simons and François Larocque intervened, together with Jennifer Klinck and Paul Champ, as representatives of Amnesty International and the International Commission of Jurists. Co-researcher Amanda Ghahremani and the Canadian Center for International Justice (CCIJ), a CPIJ partner organization, were also part of the legal team for the respondents.

The webcast of the hearing is available here, and the parties’ factums on appeal can be accessed here. Further documentation is available on CCIJ’s website.

What did Canadian mining executives know about possible human rights violations in Eritrea?

By | CPIJ in the Media

Scott Anderson | CBC News

Executives at Vancouver-based mining firm Nevsun Resources have denied direct knowledge of human rights violations at their gold and copper mine in the Bisha mining district in northern Eritrea, adjacent to Sudan. (CBC)

For years, Vancouver-based mining firm Nevsun Resources has dismissed allegations that forced labour was used to build its mine in the repressive east African country of Eritrea.

Nevsun executives have denied direct knowledge of human rights violations at their Bisha mine site in a CBC interview and during an appearance before a parliamentary committee.

But company documents filed in the Supreme Court of British Columbia last November and reviewed by CBC’s The Fifth Estate show executives at the highest level appear to have been informed of issues of forced labour at their mine site a decade ago.

Former Bisha mine workers are suing Nevsun in B.C. for alleged human rights violations — including forced labour, slavery and torture.

The company denies the allegations and has appealed the matter of whether the case can be heard in B.C. to the Supreme Court of Canada. Nevsun argues that the case should be adjudicated in Eritrea. The Supreme Court is scheduled to hear the matter on Wednesday.

The court’s decision could have a far-reaching impact on Canadian corporations operating abroad.

“The Supreme Court of Canada will be asked to rule on whether in fact it is possible in our legal system to hold a corporate citizen of Canada to account for decisions made in Canada, by a Canadian corporation, in how it will engage in business in Eritrea,” said law professor Audrey Macklin, counsel for the University of Toronto’s International Human Rights Program, which has intervener status in the Supreme Court matter.

Mass exodus

In recent years, there has been a mass exodus of hundreds of thousands of people from Eritrea, a small country of six million in the Horn of Africa. They have fled in part because of the country’s controversial national service program, which the United Nations and human rights groups have charged involves lengthy military conscription and forced labour.

“Eritrea is a human rights pariah and the use of indeterminate conscription and forced labour has been widely reported,” said Macklin. “The question would be what kind of due diligence did Nevsun do prior to its foray into Eritrea?”

Nevsun is partners with the government of Eritrea through the Bisha Mining Share Company (BMSC). The mine is 40 per cent owned by the Eritrean National Mining Corporation (ENAMCO).

The Bisha mine opened in 2011 and has produced hundreds of millions of dollars’ worth of gold, copper and zinc. For years, the mine was the only major source of revenue for the regime of President Isaias Afwerki.

But back in 2009, Nevsun was seeking financing during the construction phase of the mine when the issue of forced labour in Eritrea was raised by potential lenders.

One email filed in court, dated March 4, 2009, and written by then Nevsun CEO Cliff Davis, is headlined “Private and Confidential due to Sensitivity.”

Workers and visitors walk within the processing plant at the Bisha Mining Share Company in Eritrea on Feb. 18, 2016. (Thomas Mukoya/Reuters)

Davis writes that the lenders “have placed another obstacle in the road to finance. They assert that the country practises involuntary labour (forced labour) and before they can lend to the project, BMSC must demonstrate that the Bisha mine will not be a benefactor in any way of such labour, either directly or via any of its contractors.”

In the same email, Davis notes “we understand there are currently some National Service people working for a key contractor working at site” and that “we are in the process of determining whether the terms of employment would constitute forced labour.” Davis suggests BMSC could hire the workers directly or offer them contracts “where they could leave on their own free will.”

But Davis goes on to say “None of these solutions are palatable to the Eritreans because: 1. another Westerner telling the Eritreans how to run their country; 2. potential disruption to the national development campaign. Politically a very sensitive topic.”

‘Permeates the whole region’

As part of its due diligence, according to the documents filed in court, Nevsun and the lenders brought in U.S. social development expert Kerry Connor to review the operation. Connor is based in Washington, D.C., and has done risk reviews for mining operations around the world.

In a March 25, 2009, email from Connor to then Nevsun vice-president Trevor Moss, she refers to a conversation she had with Stan Rogers, the manager of the mine at the time.

“Just spoke with Stan,” she writes. “He recognizes it’s forced labour and says it permeates the whole country with nearly everyone in some way associated with the “program.”

“Also says no one understands the scope of the issue viz a viz project employment of program people — so we need to concentrate on this before we can determine what can be done.”

Connor later concluded in an April 2009 report, also part of the court filing, that “the project is at risk for contravention of the prohibition on the use of forced labour, as represented by the use of NS workers.”

A truck arrives to ferry excavated gold, copper and zinc ore from the main mining pit at the Bisha Mining Share Company on Feb. 17, 2016. (Thomas Mukoya/Reuters)

The workers in question were provided by an Eritrean state-owned subcontractor called Segen.

Connor also reported that “Segen, the only project sub-contractor, indicates that its project workforce is composed primarily of longtime Segen employees, complemented by some expatriates with special skills, and that no NS workers have been employed on the project.  A rapid assessment by BMSC social staff, however, found evidence of approximately 23 NS workers employed by Segen at various times on the project.”

“[Nevsun] were not avoiding it. They were very much aware of it,” Connor said in a recent interview. “They were somewhat aware of it in the beginning and the initial question was: ‘Well, is it even possible to employ a contractor who isn’t government?’ ”

‘No corroborating claims’

While the company documents filed in court would suggest Nevsun had been informed of possible forced labour at their mine site in 2009, company officials have not disclosed this information in the past.

In a 2016 documentary about the Bisha mine by The Fifth Estate, host Mark Kelley asked Todd Romaine, then Nevsun’s vice-president of corporate social responsibility: “You don’t believe there was any conscripted labour that was ever used in the development or operation of your mine?”

“We’ve done extensive investigations to date inside Eritrea and at the Bisha mine,” Romaine said. “There’s no corroborating claims to support any of the allegations being made.”

Todd Romaine, who was vice-president of corporate social responsibility at Nevsun Resources in 2016, told The Fifth Estate at the time that the company had done extensive investigations in Eritrea and at its Bisha mine. (CBC)

Romaine, who is no longer an official at the company since China’s Zijin Mining Group made a successful bid for it in December, declined to comment for this story.

In 2012, testifying in front of the parliamentary subcommittee on international human rights in Ottawa, Davis, then the company’s CEO, was asked by Liberal MP Irwin Cotler: “So you are not aware yourself of any human rights violations in Eritrea?”

Davis responded: “I’m certainly not directly aware at all. All I have is the same access that you have with respect to the internet, and postings on the internet, and articles.”

When Cotler asked again: “So you have received no reports of any human rights violations while you have been in Eritrea?” Davis replied: “No.”

Now retired from Nevsun, Davis did not return calls for comment.

Longstanding skepticism

The Eritrean plaintiffs have made an application to the B.C. Supreme Court to join Davis personally as a defendant in the lawsuit.

Davis’s lawyer, Stephen Schachter, said “the matter is before the court and Mr. Davis will simply advise you that that’s the case. He’s not going to be commenting on a matter before the court.”

In 2013, Human Rights Watch published a report on alleged human rights violations at the Bisha mine.

In a meeting with Human Rights Watch, “Nevsun did not acknowledge that Segen had used conscript labourers at Bisha, but neither did it rule out the possibility,” the report said.

In a January 2013 media release, Nevsun said that the company “expresses regret if certain employees of Segen were conscripts four years ago, in the early part of the Bisha Mine’s construction phase.”

But Human Rights Watch has always been skeptical of Nevsun’s position.

“It defies belief that Nevsun did not know that a state contractor would be using national service labour,” Felix Horne, senior researcher at Human Rights Watch, said in a recent interview.

“The Nevsun experience is an important lesson for the other international mining companies that are operating in Eritrea, that unless proper procedures are put in place from the beginning, you will likely be using national service labour for the development of your mine.”

More investigation

Nevsun has maintained that it screens for military conscripts — requiring proof that their workers are no longer in the national service program.

In response to concerns raised by the United Nations, Nevsun also conducted further investigation by another social responsibility expert.

“I am very confident that there’s no forced labour, there’s no national service used either in the direct workforce or in the Eritrean contractors that provide labour or transportation or security guards to the Bisha mine,” Montreal human rights lawyer Lloyd Lipsett told The Fifth Estate in 2016.

But according to the company documents filed in court last November, forced labour at its mine site was not the only possible human rights violation Nevsun executives became aware of early on. Eritrean officials were also arresting workers off their mine site without clear cause.

In a June 28, 2010, email under the subject line “Staff Arrests,” mine manager Stan Rogers writes to Davis: “Cliff, I think that brings the number to seven or eight!! We of course have no idea why they have been taken away.” Rogers signs off on the email: “Great Country…:-)”

A general view shows the sag mill and ball mill within the processing plant at the Bisha Mining Share Company. (Thomas Mukoya/Reuters)

An Aug. 5, 2010, memorandum from a company executive to Nevsun’s audit committee reviewed “allegations of fraud” that the Eritreans apparently provided as the reason for the arrests.

“Over the past three months, five BMSC staff have been arrested by Eritrean authorities,” the memo said. “According to BMSC senior management, the Eritrean state has alleged the employees were involved in various frauds including the theft of food and fuel inventories and kickbacks on purchasing.”

But the memo goes on to report that it “should be emphasized that no evidence of fraud has been uncovered by BMSC management or received from the Eritrean state. However, ENAMCO personnel have confirmed to BMSC management that the employees have confessed to having a role in the frauds.”

At the time of publication, Nevsun had not officially responded to a request for comment.

Source: https://www.cbc.ca/amp/1.4980530

Prof. Penelope Simons Hires 6 Research Assistants

By | News, Student News

Welcome back to Melisa Handl, Joshua Ng, Chris Plecash and Ariel Wheway who are continuing their work as research assistants for Professor Penelope Simons at the Faculty of Law at the University of Ottawa for 2018-2019. Welcome to Selena Lucien and Melissa Morton who are joining the team this Fall.

MELISA HANDL

Melissa Handl

Melisa Handl is an Argentine lawyer and a PhD student in the Faculty of Law at the University of Ottawa (Canada). Her research interests include international law, gender, development, qualitative research, and international human rights. Melisa holds a Master of Arts in International Affairs with specialization in “International Institutions and Global Governance” from the Norman Paterson School of International Affairs (Canada). Melisa also holds a Master of Laws from the University of Ottawa with a specialization in Human Rights and Social Justice. Melisa has written extensively on social policy, gendering international human rights, and human trafficking. She has also presided The University of Ottawa Graduate Students in Law Association for two consecutive years. Melisa is interested in Visual Arts and she completed her Art Instructor degree in the Fracassi Academy in Argentina. Melisa is currently investigating whether conditional cash transfers are contributing to greater gender equality in the context of Argentina, and intends to connect a top-down approach to international human rights with the experiences of actual beneficiary women on the ground. She is part of a Canada-Mexico project which involves training Mexican judges on issues related to international human rights; Melisa is in charge of the “Violence Against Women and Gender” workshop. She is working with Professor Simons on corporate accountability, gender, and the extractive industry and specifically, writing about gendering the United Nations Guiding Principles on Business and Human Rights from a socio-legal feminist methodology.

MELISSA MORTON

Melissa Morton

Melissa Morton is a third year JD student at the University of Ottawa. Before law school, Melissa had a range of jobs, from working in an accounting firm, to a social media start-up, and then in corporate immigration. She also completed a Bachelor of Arts, double majoring in Political Science and Law with a concentration in Transnational Law and Human Rights. During her free time, Melissa volunteers with a local dog rescue and enjoys experimenting with recipe-free cooking (which, admittedly, often goes awry). She also enjoys travelling, with a recent trip to Japan inspiring her to set a new goal to move to Tokyo for a year in the future. Melissa is working as a research assistant with Professor Simons on corporate accountability for human rights in the context of resource extraction.

SELENA LUCIEN

Selena Lucien

Selena Lucien is a third-year law student at the University of Ottawa. Prior to law school, Selena was awarded the Studio [Y] Innovation Fellowship at MaRS Discovery District where she founded the Small Claims Wizard to facilitate and simplify access to the Ontario Small Claims Court. Her venture was presented at Stanford Law School and incubated at the Legal Innovation Zone. During law school, Selena wrote a memorandum to the Minister of Foreign Affairs that outlines guiding principles to help construct policies to govern the ethical design and regulation of autonomous vehicles. She presented her findings at the Global Affairs Canada’s A.I and Human Rights Symposium. Currently, as a recipient of the Alex Trebek Innovation Award, Selena is building an intelligent contract analysis module. Selena is also working with Professor Simons on corporate accountability issues and specifically the Act of State doctrine, comparative fiduciary duty, and emerging transnational legal principles. Selena received her graduate degree from the London School of Economics.

JOSHUA NG

Joshua Ng

Joshua Ng is a third year law student at the University of Ottawa. During law school, Josh has worked at a community legal clinic serving clients appeal their denials of social assistance benefits. He has also gained political experience working in the office of the Minister of Justice and Attorney General of Canada. Prior to law school, Josh worked as a government relations consultant in Vancouver as well as a researcher at a think tank in Washington DC. He holds a Bachelor of Arts and a Master of Public Administration both from Queen’s University. Josh is working with Professor Penelope Simons in the area of corporate accountability, specifically in the extractive sector and with respect to violations of the human rights of women and vulnerable groups.

CHRIS PLECASH

Chris Plecash

Chris Plecash is a third year J.D. student at the University of Ottawa. Before entering law school, he reported on federal politics and government for Ottawa’s Hill Times newspaper from 2011 to 2015, and later served as a legislative assistant to a Member of Parliament. Last year, he was awarded the McCarthy Tetrault Technology Law Award for academic achievement in tech law studies. Chris majored in Political Science and Philosophy as an undergraduate at the University of Western Ontario, and holds a Master’s in Philosophy from York University, where he focused on bioethics.  He is currently working with Professor Simons on a project related to domestic criminal liability for Canadian corporations purchasing natural resources that have been extracted and sold in violation of international humanitarian law and international criminal law.

 

ARIEL WHEWAY

Ariel Wheway

Ariel Wheway is a 4th year student in the joint Juris Doctor and Master of Arts program at the University of Ottawa and Carleton University. She is the current president of the International Law Students Association at the University of Ottawa, as well as a member of the International Criminal Court moot team. Ariel also works for the United Nations Special Rapporteur on the Right to Adequate Housing and is currently conducting research on access to justice for housing-related issues. Ariel is working with Professor Simons on corporate accountability issues, specifically regarding women in mining and how the issue of gender and women’s rights are treated in the policies of resource extraction companies.

 

If you are a student working with a member of the Partnership, you could be featured on CPIJ’s website. See here for details.

CPIJ Co-Researcher Penelope Simons Receives the 2018 Walter S. Tarnopolsky Award

By | News, Press Releases

CPIJ Co-Researcher Penelope Simons

26 October 2018 – CPIJ Co-Researcher Penelope Simons is the recipient of the 2018 Walter S. Tarnopolsky Award. The International Commission of Jurists, who awards this prize, thereby highlighted her “background and commitment as an individual who has made a significant contribution to human rights.”

The Tarnopolsky Award is named after the judge and renowned scholar Walter S. Tarnopolsky, who was a pioneer in the development of human rights and civil liberties in Canada. It is awarded annually to a Canadian resident who made an outstanding contribution to human rights at a national or international level.

Renowned expert in the field of corporate responsibility, Professor Simons fights tirelessly against corporate complicity in human rights violations. She does not hesitate to question the statu quoand pursue accountability for corporations and reparation for victims at the national and international level. Her innovative publications and constant promotion of access to justice for vulnerable persons make her a strong advocate in the field of international human rights law.

The award will be presented to Professor Simons at the conference “70 Years On… Is Humanity Ready for a World Court of Human Rights?” hosted at the Human Rights Research and Education Centre (HRREC) on October 31st. It is possible to register online for the event by sending an email to HRREC@uOttawa.ca.

Penelope Simons contributed to the OHCHR’s Accountability and Remedy Project

By | News | No Comments

June 2018 – CPIJ Researcher Penelope Simons led the Canadian research contribution to the second phase of the UN High Commissioner for Human Right’s Accountability and Remedy Project. This project surveyed State-based non-judicial mechanisms (NJMs) that provide redress for human rights complaints against businesses. Prof. Simons and student researcher Christopher Plecash assessed 22 different national and provincial public bodies responsible for receiving, investigating, and mediating grievances against companies. The purpose of the three-part project is to improve accountability and access to remedies involving business-related human rights abuses. The second phase looks at how NJMs are incorporated into the wider legal systems of different countries, and assesses the capacity for NJMs to work across borders on human rights issues. The final report for Project II will be submitted and presented at the Human Rights Council’s thirty-eighth session in June 2018.

Members of the Partnership will intervene as Amici Curiae before the International Criminal Court concerning the Rohingya situation

By | News, Press Releases | No Comments

May 31, 2018– Members of the Canadian Partnership for International Justice (CPIJ) were granted leave by Pre-Trial Chamber I of the International Criminal Court (ICC) to submit observations as Amici Curiae on important legal issues with respect to the situation of the Rohingyas in Myanmar and Bangladesh.

Context

On 9 April 2018, the ICC Prosecutor submitted a request for a ruling under Article 19(3) on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The complexity of the jurisdictional issues arise from the fact that the Rohingya are being deported from the territory of a State which is not a party to the ICC Statute (Myanmar) directly into the territory of a State which is a party to the Statute (Bangladesh). Given that it is the first time that the Prosecutor submits such a request based on Article 19(3), Pre-Trial Chamber I will be considering a number of novel and important legal issues.

Members of CPIJ submitted a request for leave to intervene as Amici Curiae on 25 May 2018. The Chamber granted leave on 29 May 2018 pursuant to Rule 103 of the ICC Rules of Procedure and Evidence. In the decision, the Chamber recognised CPIJ and its members’ extensive experience in the field of international criminal law, human rights law, refugee law, migration and humanitarian law, as well as in intervening as Amici Curiae before both domestic and international courts. It took the view that the proposed submissions are “desirable for the proper determination of the Prosecutor’s Request”.

Issues at stake

The Partnership’s members acting as Amici Curiae will support the Prosecution’s position with complementary legal observations and will assist the Chamber in the determination of issues that have never been fully litigated before the ICC. In particular, the members of CPIJ will address the three following issues:

  1. Whether Article 19(3) of the Rome Statute allows the Office of the Prosecutor to request a ruling on jurisdiction;
  2. The scope of territorial jurisdiction under Article 12(2); and
  3. The nature and definition of the crime of deportation under Article 7(1)(d).

The Amici Curiae observations will be submitted before 18 June 2018 by 17 members of the Partnership, namely: Jennifer Bond, Robert J. Currie, Amanda Ghahremani, Julia Grignon, Mark Kersten, Fannie Lafontaine, François Larocque, Frédéric Mégret, Valerie Oosterveld, Frederick John Packer, Pascal Paradis, Darryl Robinson, Penelope Simons, Érick Sullivan, Alain-Guy Tachou Sipowo, Mirja Trilsch and Jo-Anne Wemmers.

UN Working Group on Business and Human Rights Consultation on Gender and the UN Guiding Principles on Business and Human Rights

By | News, Uncategorized | No Comments

November 2017 – CPIJ Researcher Penelope Simons (Faculty of Law, University of Ottawa) presented at a multi-stakeholder consultation on “The Gender Lens to the UN Guiding Principles on Business and Human Rights” on November 30, 2017, at the Palais des Nations in Geneva Switzerland. The consultation was convened by the UN Working Group on Business and Human Rights (UNWGBH). It brought together business and human rights scholars, representatives from non-governmental organizations, members of the UNWGBHR and OHCHR staff for a full day of discussions on how to bring considerations of gender to the implementation of the UN Guiding Principles on Business and Human Rights by businesses and States. Business activities can have differentiated impacts on the human rights of women and women often encounter discrimination and other obstacles in gaining access to effective remedies for business-related human rights abuses. The document related to this consultation and pictures of this day are available.