In 2020, the Supreme Court of Canada released its landmark decision in Nevsun Resources Ltd. v. Araya (Nevsun), a case that reshaped how Canadian courts engage with international law in domestic litigation. The case arose from allegations that a Canadian mining company, operating abroad, was complicit in serious human rights abuses, including forced labour, at the Bisha Mine in Eritrea.
The Court was tasked with answering a foundational question: how should international law be treated in Canadian courts? Specifically, must it be proven as fact through evidence, or can it be recognized and applied as law?
The Supreme Court held that customary international law forms part of Canadian common law and should generally be treated as law, not fact. This means that well-established international norms—such as prohibitions on slavery, forced labour, and torture—do not require proof through expert evidence. Courts may take judicial notice of them and apply them directly. This marked a significant procedural shift, lowering barriers for plaintiffs seeking to advance human rights claims tied to Canadian actors operating abroad.
In this episode, the discussion explores how Nevsun reframes the role of international law in Canadian litigation. After unpacking the Court’s reasoning, with a particular focus on Justice Abella’s interpretation of customary international law, the episode contrasts the majority’s emphasis on access to justice with the dissent’s concerns about judicial overreach and institutional limits.
While Nevsun does not guarantee successful claims or transform Canadian courts into global tribunals, it signals a shift in judicial confidence. International law is no longer something courts must be persuaded exists; it is something they are entitled to recognize.
Padraigh Brady – Producer, Host, Editor
Pro Bono Radio is part of the Queen’s chapter of Pro Bono Students Canada. The ProBono Radio team are not lawyers, and this is not legal advice.
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Research Referred to in the Podcast:
Nevsun Resources Ltd v Araya, 2020 SCC 5, [2020] 1 S.C.R. 166.
R v Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.
“Transnational Canadian Corporations Can Be Liable Under Customary International Law for Human Rights Abuses: The Phoenix Flies in Nevsun v Araya,” (12 January 2021)
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