Pigeon or Phoenix? The SCC, Nevsun v Araya & the Status of INT Law in CND Courts - Rachel Lauder
Pigeon or Phoenix? The Supreme Court Decides: Nevsun Resources Ltd v Araya and the Status of International Law in Canadian Courts
By Rachel Lauder*
Over the past few decades, the Supreme Court of Canada (SCC) has increasingly addressed legal issues that refer to various international legal instruments such as treaties, conventions, and declarations. In Nevsun Resources Ltd v Araya, the SCC clarified a longstanding evidentiary and procedural issue surrounding its status in domestic courts and delivered a ground-breaking decision ruling that customary international law (CIL) is a part of the common law in Canada. This decision addressed the neglected evidentiary issue regarding the characterization of CIL as law rather than fact for evidentiary and procedural purposes. This is a critical distinction. The former allows courts to take judicial notice of CIL, an exception to the evidence requirement that parties produce formal proof to support facts. Judicial notice permits reliance on subject matter absent court records since it ties to the duty of the judiciary to know the “law of the land”, thus it is expected that nothing further is needed. However, if CIL is the latter, courts require proof, and in the context of international law this often involves expert evidence. Nevsun takes the formal evidence requirement out of the equation for CIL.
Leading a 5-2-2 majority, Abella J declared international law a “phoenix that rose from the ashes of World War II and declared global war on human rights abuses”. In doing so, the SCC greenlit three refugees and former mine workers to bring tort claims before Canadian courts against Nevsun Resources Ltd. (Nevsun Ltd.) who were seeking damages for breaches of CIL, which Abella J refers to as the “common law of the international legal system”. International customs are widespread practices taken as a legal obligation. The Canadian mining corporation was accused of slavery, forced labour, crimes against humanity, and cruel, inhuman or degrading treatment, which are all widely accepted violations of customary international norms. Allegations detailed wicked labour practices, including unliveable monthly wages and forced uncovered labour outside for over 12 hours in 50 degrees Celsius seven days a week. Additionally, “obedience” techniques such as commands to “roll in the hot sand while being beaten with sticks until losing consciousness” occurred frequently. The claimants sought to pursue the case in Canada rather than Eritrea, a small East African country, due to the high risk of corruption. Nevsun Ltd.’s appeal to the SCC involved two legal questions: whether the act of state doctrine applies in Canada, and whether claims and damages sought in Canada can be grounded in CIL, such as prohibitions against slavery and forced labour.
In reaching the majority’s decision, Abella J highlights that CIL has been automatically adopted judicially in Canada for centuries. As a result, customary international norms, such as those at issue in Nevsun, “are fully integrated into, and form part of, Canadian domestic common law”, which she states require identical treatment to any other area of law. The SCC declares that taking judicial notice of international law is thus “appropriate and an inevitable implication” of this doctrine of adoption. Therefore, the incorporation of CIL in domestic cases does not require the formal evidence that it would had it been ruled to be fact instead.
Scholars such as Gib van Ert and Anne Warner La Forest have led the discussions that guided the SCC to its decision in Nevsun, which cites both on several occasions. Van Ert, for instance, argued that Canada’s international responsibilities resemble those of other countries that treat international law as the law, therefore judicial notice ought to apply to all international law, not just customs. Further, van Ert’s arguments on the topic extend to the notion that all expert evidence should be inadmissible. In her work, La Forest acknowledges expert evidence may sometimes be necessary, particularly with the emergence of new customary norms, but that this does not discredit CIL as law. However, she cautions expert evidence can often be inappropriate because if judicial notice ties to the knowledge judges have of the law, admitting expert evidence becomes “dangerously close” to allowing witnesses to decide the case. Notably, the SCC majority does not address the extent of expert evidence permitted for judicial notice of CIL.
Although Nevsun takes a prominent step in the right direction regarding the approach to evidentiary considerations of CIL, several uncertainties remain. For instance, the SCC does not clarify what the trial process concerning international allegations looks like aside from how customary norms are classified. Moreover, if CIL is the “law of the land”, will lawyers and judges require international legal training if judicial notice is to be given? How, if at all, will legal areas such as evidence and civil procedure transform? In the immediate aftermath of Nevsun, arguably very little will change. However, in the long-term, the SCC’s decision holds that international law is no longer a separate entity from the Canadian judiciary. Nevsun encourages increased attention be paid to developing CIL, signaling the “phoenix” continues to rise with its influence domestically only growing stronger.
Endnotes * Juris Doctor Candidate at the University of New Brunswick.  See R v Keegstra  3 SCR 697, 114 AR 81, R v Hape, 2007 SCC 26,  2 SCR 292, & Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62,  3 SCR 176.  Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 1 [Nevsun].  Gib van Ert, “International Law Evidence After Nevsun”, November 2020, online: <https://gibvanert.com/> [van Ert].  Ibid.  John H Wigmore, A Treatise on the System of Evidence in Trials at Common Law (Toronto: Canada Law Book and Boston: Little, Brown and Company, 1905).  Anne Warner La Forest, “Evidence and International and Comparative Law”, in Oonagh E Fitzgerald, ed, The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law, 2006) [La Forest].  Van Ert, supra note 3.  Ibid; La Forest, supra note 6.  Supra note 2 at para 1.  Ibid at para 74.  Ibid at para 77.  Ibid at paras 3-4.  Ibid at paras 12-15.  Ibid at para 11.  Ibid at para 18; See also Garcia v Tahoe Resources Inc, 2017 BCCA 39, which held that Canadian courts could assess a plaintiff’s “real risk” of injustice in their home courts as a result of general corruption or bias within the judiciary.  Supra note 2 at para 62.  Ibid at para 87.  Supra note 2 at para 94.  Ibid at para 95.  Ibid at para 98; La Forest, supra note 6.  La Forest, supra note 6.  Supra note 2 at para 96; Gib van Ert, “The Reception of International Law in Canada: Three Ways We Might Go Wrong”, in Centre for International Governance Innovation, Canada in International Law at 150 and Beyond, Paper No 2 (2018); See also Gib van Ert, Using International Law in Canadian Courts 2nd ed (Toronto: Irwin Law, 2008).  La Forest, supra note 6.  Ibid.  Ibid; Supra note 2 at para 98; Following Nevsun, van Ert cautiously adopts this view expressed by La Forest, see van Ert, supra note 3.  Ibid La Forest.  James Yap, “Nevsun Resources Ltd v Araya: What the Canadian Supreme Court decision means in holding Canadian companies accountable for human rights abuses abroad” Business & Human Rights Resource Centre, online: < https://www.business-humanrights.org/es/blog/nevsun-resources-ltd-v-araya-what-the-canadian-supreme-court-decision-means-in-holding-canadian-companies-accountable-for-human-rights-abuses-abroad/>.  Ibid.