 So, hi, my name is Mary Link and I'm a producer with CBC Ideas. And if you have cell phones, if you could just turn them off, not off, just on the silence, I would appreciate that. So this program is going to air for an hour on CBC Ideas, probably in April or May. I actually was, I had brought a few years ago back, Gareth Pierce here to speak, and she's a really well-known, renowned human rights lawyer in England. And she represented the Birmingham Six, and she was depicted by Emma Thompson in the name of the father, and she's a really fascinating woman. She used to represent the Irish, and now she says the new Irish are the Muslims, so she's doing a lot of representation of that over in England. But Ann-Julie Assange as well. But she called me, reached out to me not too long ago, looking for a lawyer for connection to one of her big cases that's happening right now in Britain that has a Canadian connection, and was looking for a specific lawyer, and I called Richard Devlin here at the law school, and he introduced, he said, try James, and I reached out to James Yapp, and he got her connected with Gareth. She wrote me a long thank you note for getting him connected to her, and he was just such a fascinating man, and to hear about all his groundbreaking work, that's my pun, you know, in the mining industry. But it was so fascinating, and so engaging, and what a great mind. So that's how we asked him to be this year's Sir Graham Day. So Sarah Sekt, professor at Shulik Law School, is going to introduce James now. Good evening everyone, and welcome to the 2023 Sir Graham Day lecture in Ethics, Morality, and the Law. My name is Sarah Sekt, and I am the Yogis and Kitty Chair in Human Rights Law here at the Shulik School of Law. I'll begin by acknowledging that Dalhousie University is located in Magmaughey, the ancestral and unceded territory of the Magmaughey. We are all treaty people, and we also recognize African Nova Scotians are a distinct people whose histories, legacies, and contributions have enriched that part of Magmaughey known as Nova Scotia for over 400 years. We have many excellent lecture series here at the Shulik School of Law, and of all those special lectures, this is one of the premier events. The Sir Graham Day lecture was founded by a former Chancellor of Dalhousie University, 1994 to 2001, and a proud graduate of the Dalhousie Law School, a class of 1956. Sir Graham was the Chairman and CEO of British Shipbuilders from 1983 to 1986, Chairman and CEO of the Rover Group from 1986 to 1991, and Chairman of Cadbury Schweps from 1989 to 1993. He was knighted in 1989 by Queen Elizabeth II and was inducted into the Canadian Business Hall of Fame in 2006. He is a member of the Order of Nova Scotia and an Officer of the Order of Canada. I am delighted to introduce our speaker this evening. James Yapp is a Toronto-based lawyer specializing in international human rights and transnational corporate accountability. He represents plaintiffs in all kinds of human rights and social justice claims, with a focus on cases that raise novel and or complex issues of transnational justice. In the course of his work, he has acted as a plaintiff's counsel in some of the key Canadian precedents on this topic, such as Neveson Resources and Araya and Toussaint and Canada. He has advised numerous NGOs and international organizations, including Amnesty International, FIFA, Earth Rights International, the American Bar Association, the Justice and Corporate Accountability Project, and above ground. And he has presented a various venues in Canada and around the world, including Harvard University, the Université de Montréal, the United Nations, and even the House of Lords. And James has published several scholarly articles on topics relating to international human rights and transnational corporate accountability, some of which I definitely have cited myself. He is president of the Canadian Lawyers for International Human Rights and sits on the board of directors of the Canadian Council for International Law. He also teaches international human rights law at Osgoode Hall Law School at York University. James holds a Juris Doctorate from Osgoode Hall Law School, where he graduated with various class prizes and the silver medal and a Master of Laws from Yale Law School. After completing his JD, he clerked at the Supreme Court of Canada for Justice Ian Binney, and James also holds a BSc in Computer Science and Cognitive Science from McGill University. Welcome, James. Great. Thanks so much, Sarah, for that wonderful introduction. Good evening, everyone. It's wonderful to be here in Halifax. It's such a pleasure. I'd like to thank my gracious host at the CBC in Dalhousie Law School for the honor of being here tonight to give the Sergrim Day lecture on law, ethics, and morality. So I'm a lawyer in Toronto, and my specialty is international human rights law. Now, that's basically a fancy way of saying I have a ton of work and make no money. Now, I am exaggerating, of course. It's just a joke. And when I said that, you knew automatically from the context that it must be a joke. That's why you laughed, or some of you did at least. Thanks for that, by the way. I much obliged. Actually, CBC production folks, if you want to go ahead and add a laugh track to that later on, just a booming wave of laughter filling the room, just go right ahead. I won't object. But the reason I want to start with that was because it's just my way of highlighting that there are people for whom working very hard with little or no pay is not a joke. It's their reality, and they have no choice in the matter. I'm talking, of course, about slavery, which is one of the themes I want to talk to you about today. Specifically, I'm going to talk about slavery in the context of human rights abuses committed by Canadian mining and extractive companies doing business overseas. Now, Canada's not the biggest country on the international stage. When it comes to mining, Canada is a global superpower. It's estimated that 60% of the world's mining companies are headquartered in Canada. The activity of ripping minerals and other resources from the earth has three notable features. First, it is a highly complex and labor-intensive endeavor. Second, it causes a massive disruption to the earth and those living on it. Finally, it's capable of generating enormous wealth for those who stand to profit. For all these reasons, mining projects by their very nature are prone to cause bitterly and highly contentious disputes that can result in allegations of serious human rights abuses. Now, when mining takes place in Canada, serious disputes and controversies definitely arise. And I want to acknowledge that mining has also caused a lot of human rights and environmental harms right here in Canada and that Indigenous peoples have borne the brunt of this. But relatively speaking, Canada does have strong laws and institutions that are reasonably effective at preventing at least the very worst kinds of abuses imaginable. However, mining companies operate wherever the mineral deposits they find are located and much of the time that's not in Canada. Sometimes it's in countries where there are much weaker laws. In some places, mining companies may have to work with a brutal or oppressive government or navigate a violent conflict zone in order to operate a mine. In such cases, mining companies are at a high risk of getting involved in some of the most severe human rights abuses out there. This may include killings, rapes, torture, war crimes or atrocities of similar gravity. Now, Canadian mining companies operate in all corners of the globe and regrettably they've acquired a particularly bad reputation globally for causing serious human rights abuses. To make matters worse, in many of these places, it can be very hard if not impossible to hold a powerful multinational company accountable so such companies escape justice. However, efforts have been gaining momentum in recent years to try and hold these companies accountable at home in Canadian courts, suing companies right here where their headquarters are for human rights abuses that take place overseas. But these lawsuits are enormously challenging, not least due to procedural avoidance tactics by companies because when faced with the prospect of having their human rights records examined by impartial independent Canadian courts, most Canadian mining companies run like dogs from a vacuum cleaner. Canadian courts themselves have been in the past been skeptical about hearing claims by foreign plaintiffs alleging human rights abuses against Canadian companies. However, despite a series of failed initial attempts, some of these claims have begun to have some modest success. But even when successful, human rights claims against Canadian companies are extremely complicated and consume years of hard work. I know because one of them swallowed up a good chunk of my early career as a lawyer. It involved a Canadian mining company called Nefsan based in BC and allegations of the use of slave labour at its Beesha Goldmine in Eritrea. Today, I want to tell you the story of how a small group of Eritrean refugees went up against a multi-billion dollar mining company in Canadian courts for complicity in modern-day slavery in Eritrea. I hope it will be a good story, but I also hope it will illustrate some of the challenges in trying to make sure that Canadian companies respect human rights overseas and what can be done about the problem. Now, the story begins in a small country called Eritrea, which is in the Horn of Africa on the east of the continent on the Red Sea next to Sudan in Ethiopia. Now, the first thing to tell you about Eritrea is that it's an astonishingly beautiful country. I've never been myself for reasons that will soon become clear, but I've seen pictures and I've spoken to many Eritreans all over the world and I'm always struck by the profound love they uniformly share for their homeland. But sadly, currently, it languishes under the rule of a despotic government that has desecrated the land and its people. It's often referred to as the North Korea of Africa, and this is a convenient if somewhat simplified way of thinking about it. It's a closed and repressive regime with a pariah status internationally. Formerly part of Ethiopia, it gained independence in 1991 following a long civil war, and at the time, the birth of a new country gave rise to a certain hope and promise and optimism that has since degenerated into bitter disillusionment. In its 32-year history, it has not held a single election, but instead has become one of the most repressive regimes in the world. It has no Constitution, no Legislature, no political opposition, and no independent press. Credible human rights organizations have recently accused its military of committing horrific war crimes and crimes against humanity when it intervened in the civil war across the border in Ethiopia. A 2015 United Nations report on human rights in Eritrea notes that it is governed not through the rule of law, but by what it calls the rule of fear. The regime's secret police oversees an extensive network of spies and informants and arbitrarily arrest people based on the supposed facts it gathers this way. When someone is arrested, they simply disappear one day. There's no trial. Their relatives can't communicate with them to find out how they are or if they're alive. There's no indication of when they might be released. And critically, there's no explanation of why they were arrested. As a result, no one has any idea what might get them arrested or locked up. And so they're too frightened to do anything that might provoke the ire of the authorities. Now I want everyone in this room to imagine that you live in a society where everyone's sitting around you. In fact, everyone in your lives, even your closest friends and family, could be a government spy or informant. And one bad word from them could result in you being arrested and disappearing without even being told what you did or given a chance to defend yourself. This is the climate of fear that Eritreans live under constantly. But the most draconian and frankly bizarre aspect of this brutal regime is its system of universal forced labor. Everyone in this room and in our society has the right to freely choose their own job and profession. Now imagine that we don't have this freedom. And instead, our government tells us what to do for work and where. This is how it is for Eritreans. Every Eritrean upon reaching the age of 18 is conscripted into what's euphemistically known as the National Service Program. After six months of military training, they are either assigned to a job or are sent for further educational training and then assigned to a job. They have no choice in what work they do and there is no fixed end date. They must work there until assigned elsewhere. I emphasize again that this system is universal. It applies to all able-bodied Eritreans once they reach the age of 18. Also, when we talk about forced labor, we usually think of manual labor like like farm or factory work. But in Eritrea, this system applies to all professions. Doctors, lawyers, engineers, even judges. Everyone in society is subject to this program of forced labor. The United Nations has recognized that this system constitutes slavery and a crime against humanity under international law. Now, I want to say a word to clarify what I mean when I talk about slavery here. Under international law, slavery is not limited to the familiar historical concept known as chattel slavery, where a human being is legally considered the property of another. Now, in the spirit of acknowledging black history, I'd like to briefly pause and acknowledge that Nova Scotia has a long history with this kind of slavery. There were slaves in Nova Scotia, but also there were freed slaves who were liberated by the British from slaveholders in the U.S. during the American War of Independence and were brought here to Nova Scotia by the British as free people after the war. It's a historical community with deep roots that's been an integral part of Nova Scotian society and has made great contributions despite the severe discrimination it's faced. So, this chattel slavery is the kind that's most easily recognized for movies like Spartacus and 12 years of slave, but international law recognizes that slavery can take many other forms. For instance, there's also the kind of slavery depicted in the movie Schindler's List, if you've seen that, because during World War II, the Nazis used labor forcibly extracted from Jewish and other workers to bolster military production in factories and advance their war effort. This qualified to slavery under international law. Oscar Schindler owned a factory that produced supplies for the Nazi military. He used Jewish workers who were provided by the Nazis as essentially slave labor and this is how he was able to ultimately rescue them. Similarly, the Japanese during World War II forced many women into sexual slavery as so-called comfort women. This too was considered slavery under international law. And non-chattel slavery still exists in many places today. In recent years, for example, there have been major concerns about slavery in places such as fishing vessels in Thailand, cotton from Uzbekistan, and tomatoes and other goods from Xinjiang and China, even in the United States. Now, it's a common misconception out there, this narrative that the United States abolished slavery with a passage of the 13th Amendment in 1865 after the Civil War. But actually, if you read the text of the 13th Amendment, it abolishes slavery except as a punishment for a crime. So if someone is convicted of a crime, it is constitutional for them to be enslaved. So slavery is actually still perfectly legal in the United States and in many states, inmates are indeed forced to work for for-profit enterprises under conditions that many argue constitute slavery under international law. So in summary, the concept of slavery is far broader than just chatteled slavery. And in 2016, the United Nations released a report on human rights in Eritrea concluding that Eritrea's national service program constitutes slavery under international law. Okay, so the program also has a couple notable consequences that I want to mention. The first is that Eritreans flee the country in staggering numbers due to the conditions created by the system. To give you an idea, Eritrea has a population of just six million people, but according to UN figures, it is the 10th largest refugee source country in the world and 12.4 percent of the population has fled the country as refugees. That's approximately one in eight. Here in Canada, Eritrea was the top source country for privately sponsored refugees in 2019. The second consequence I want to mention is economic. Turns out universal slavery is not a successful model for organizing a national economy. Because of this and other disastrous economic policies, the government's finances are in ruinous shape. So desperate is the regime for cash that it extorts money from the Eritrean diaspora overseas. Specifically, it purports to levy a two percent income tax on Eritreans all over the world. In 2013, Canada actually expelled an Eritrean diplomat for this illegal activity. Such desperate measures demonstrate how the brutal and repressive Eritrean regime is struggling for its financial survival. And this is where Canadian mining companies come in. Because Eritrea is poor financially, but it has abundant natural mineral resources, particularly gold. But it lacks the expertise to build and operate a modern mine to efficiently exploit these resources. So it brought in a Canadian mining company, Neveson, to build and operate a gold mine for it. Neveson's Beesha mine in the Gash Barkha region of Eritrea was the first modern mine in the country. Construction began in 2008 and the mine went operational in 2010. Over its life, it has generated billions of dollars in revenue and truly provided a financial lifeline that's rescued this ailing despotic regime. For instance, in 2011, the mine produced 614 million U.S. dollars worth of gold. In the same year, Eritrea's total GDP was 2.6 billion U.S. dollars. So gold from the mine alone accounted for 24 percent of the entire country's GDP. But apart from merely financing atrocities, there have been allegations that the mine has actually been involved with committing atrocities. In January 2013, Human Rights Watch released a report containing allegations that the Beesha mine had been constructed with the use of slave labor from the Eritrean government's national service program. The report alleged that in order to build the mine, Neveson had hired a state-owned construction company called Sagan. According to the report, Sagan had used a workforce consisting primarily of national service conscripts to do its construction work on the mine between 2008 and 2011. The report cited a number of Eritreans who claimed to have worked at the mine themselves. They claimed that conscripts were forced to work 12-hour days and not allowed to leave the mine site. They described conscripts being underfed and emaciated with poor housing conditions too. If they tried to escape, they were arrested and punished. Now at the time this report came out, I was a young lawyer recently returned from studies abroad looking for adventure. A colleague brought the issue to my attention. I read the report and it struck me that the use of slave labor is something that a Canadian company should not be involved with in the 21st century. And if the allegations were true, they really ought to be a way to hold this company accountable in Canada. There certainly was no recourse possible in Eritrea since it was the Eritrean government itself that supplied the slave labor. So if the company couldn't be held liable in Canada, they'd get away with it. I figured this had to be a compelling argument in court. But others I spoke to at the time were skeptical. At the time, no Canadian company had ever successfully been held accountable for human rights abuses occurring in other countries. There have been many attempts, but Canadian companies had consistently been able to convince Canadian courts to not even hear the case. Many thought it was just impossible to bring such cases in Canada. Thing is, Canadian courts have a discretion not to hear a lawsuit if there is another country that's clearly more appropriate to hear the dispute. In human rights claims arising from the overseas business activities of Canadian mining companies, many of the plaintiffs and witnesses, as well as much of the evidence, are often going to be found in the country where the mine is located. And a lot of the pertinent events occurred there. A defendant company can point to all this and argue that the case should be heard there instead, and a Canadian judge has the discretion to rule that the case would indeed better be heard elsewhere. This is a legal rule known as the Doctrine of Forum Non-Conveniens, a Latin term. And at the time, no transnational human rights claim against a Canadian company had ever survived such a challenge. However, this was a country that's known as the North Korea of Africa. Because Eritrea is such an extremely authoritarian country, I figured it would be hard to convince a Canadian judge that it would be a better forum for a human rights claim involving a state sanctioned program of universal slavery. But this fact itself brought other challenges with it. To pursue a lawsuit, you need more than a report about slave labor in your hand. First of all, there needs to be a plaintiff who's been directly affected by the wrongful acts. Then you need to show up in court with things like witnesses and evidence to prove the facts you're alleging. For this case, all these things were most likely to be found in Eritrea. But because it's such a closed and repressive country, it would be impossible to actually visit and talk to people and gather the needed information about what happened at the mine. So how can you start a lawsuit if you can't even access the country where the alleged entry occurred? Well, as I said earlier, roughly one in eight Eritreans have fled and live outside the country as refugees. That's over half a million people. So it stood to reason that a good number of these half a million people must know something about the use of forced labor at this Canadian-owned mine and be willing to talk about it. So my colleagues and I decided to take the novel approach of attempting a lawsuit working entirely with plaintiffs and witnesses living outside Eritrea. It all began in Ethiopia, where in 2013 I first met the men who would become our lead plaintiffs. Their names are Giuse, Meherta Ab, and Kasita, and this is their story. At the time I met them, they were living in refugee camps in Northern Ethiopia near the border with Eritrea. To meet them, I flew from Toronto to Addis Ababa, the capital of Ethiopia, where an amazing and dedicated London-based air train human rights activist named Elsa Chirum met me at the airport. Elsa had arranged in advance for the men to come down from the refugee camp to Addis so that we could meet them there. They told us that they had been conscripted into the national service as youths and forced to work at various jobs around the country for a decade or more before being assigned to work at the Beesha Mine. They said that the Beesha Mine was their toughest assignment yet. They described how they were forced to work six 12-hour days a week, plus one half day, doing hard manual labor in the burning desert sun, in hot temperatures up to 47 degrees. They described being transported to work in the back of dump trucks. They would receive one 80-gram piece of bread for breakfast and two more with some lentil soup for each of lunch and dinner. If they or the fellow labourers were caught trying to run away or committed other acts of received insulin or disobedience, the punishments they described were horrific. One called a helicopter involved being tied by the hands and feet and being left in the hot sun with skin exposed for a day or more. Another involved being made to roll in the hot sand while being beaten with sticks. They laughed bitterly when they remarked to them that where I come from, you would go to prison for treating a dog the same way. Now, it was very upsetting for me to hear these stories and I can only imagine how much more upsetting it was for these men to tell them and relive these experiences. At one point, Elsa suggested we take a break because I was visibly shaken. I remember having two thoughts. The first was that I'd worked with the refugees and heard people tell me similarly awful personal stories before, but unlike those times, these stories had a connection to Canada and a Canadian actor. I found this disturbing to think about, but my second thought was that also unlike all those other stories, the Canadian connection here meant that as a Canadian lawyer, there might be something I could do about it. And that thought was more uplifting. I returned home to Canada and discussed with my colleagues. And at this point, I'd like to acknowledge the remarkable team of lawyers that made all this possible, including Dimitri Lascaris, Joe Furante, Radar Mogherman, Jennifer Winstanley, and many others who joined the team later. We filed a lawsuit against Nefsson on behalf of the plaintiffs in November 2014 in Vancouver, where the company was based. In the lawsuit, we claimed that Nefsson was civilly liable to the plaintiffs for complicity and violations of international law rules that prohibit slavery, torture, forced labor, and crimes against humanity. So where did the lawsuit spread? More Eritreans contacted us to say that they knew about or had themselves been subjected to forced labor at the Bichamai. Over the next few years, we traveled around the globe gathering first-hand accounts from more Eritreans like these about what they witnessed and experienced at the Bichamai. This took us to a lot of different countries. To give you some idea, when Eritreans flee the country, they typically start by transiting through border countries like Ethiopia and Sudan. Some have then made their way over land through the Sinai Desert in Egypt into Israel. More recently, refugees fleeing Eritrea have typically paid human traffickers to take them through the Sahara Desert and then across the Mediterranean by boat to Europe. This journey is fraught with danger. Rickety boats often capsize and many refugees don't make it. If they do, they seek to end up in safe European countries like Germany, Switzerland, the Netherlands, Norway, and Sweden. My colleagues and I visited all these places and more. Bit by bit, we meticulously built up a case by piecing together all the information we received, and we were appalled at the treatment these people alleged they received at a Canadian-owned mine. As an example, listen to a couple passages from evidence that was filed in court. One plaintiff described the fall of experience after staying out too late in a nearby town on a Sunday evening. He says, My hands and feet were tied and I was carried to and put into the box of a military pickup truck. I was taken back to the second camp where I was carried to a spot on the ground immediately beside a wood heap next to an outdoor cooking area. There, my arms were pulled behind my back and my legs from my feet were pulled up behind me. My arms and legs were then tied together. In this position, I could only really move my head from a face down position to either side. I stayed this way until later on the Monday morning when I was untied and told to eat quickly and relieve myself. I did so at gunpoint and I was then retied in the same position and on the ground. In the heat of the day on Tuesday, I attempted to move myself into the shade of the wood pile, but this was noticed by Abba Kibdu. He ordered others to move me to the full sun, which they did. I was given breaks from being tied up like this also at lunch and dinner, and I took those opportunities to eat, drink water, and relieve myself. This cycle of being tied up without being able to effectively move anything about my head, and being permitted short breaks to eat, drink, and relieve myself was repeated day and night until the following Saturday. In the heat, I continuously asked for water and was denied it. I was tied up this way each day and night from the early hours of Monday morning until Saturday morning. It was only at mealtimes that I was untied, and I estimate that each break lasted no more than 10 minutes. Another plaintiff described his experience at the Beesha Mine as follows, and again, I'm just reading from court documents here. He says, I was often punished severely by my superiors for minor acts of perceived insubordination or just disobedience at the Beesha Mine site, like looking at superiors when they were talking to me, or being unable to carry out an assigned task because I was busy carrying out a task assigned to me by another superior. Most commonly, I would be tied in the auto or eighth position. The auto position is lying down with the arms tied behind the back at the elbows and tied together with the feet. Sometimes I would be tied this way all night at the camp, after which I would be made to go to work at the Beesha Mine site in the morning. Other times, I was tied at the camp at lunch and untied when it was time to go back to work at the Beesha Mine site at 2. On still other occasions, I was tied up at the camp at lunch and left tied until the evening. I found myself being punished in this way more than others, but I also saw others being punished in this way commonly as well. So it's appalling to think stories such as these could happen under the direction of a Canadian company, and there are stories that cry out for justice. But Nev Sun responded to this lawsuit with a strategy that can be summarized in two words, deny and avoid. First, Nev Sun denied everything. They initially denied that the plaintiffs were subjected to forced labor at the Beesha Mine. They denied that forced labor was the use of the mine at all. They denied that the plaintiffs were even never at the mine. And yet in 2019, the CBC's Fifth Estate reported extensively on internal company documents filed in court that show that Nev Sun actually had extensive knowledge of the issue of forced labor at the Beesha Mine and knew that the National Service Program, and this is a quote, permeates the whole country with nearly everyone in some way associated with the program. This brings us to the second pillar of Nev Sun's strategy, avoid. Specifically, avoid letting this case get anywhere near a fair and partial Canadian judge. Because our attitude was, if they want to deny everything, fine. Let's bring it to a Canadian court, get all the evidence in front of a Canadian judge, and let them decide. That's what they're there for. They'll sort it all out. We were asking for nothing more than a fair trial, and we figured we'd get one in a Canadian court. But Nev Sun wanted no part of this, and fought vigorously to keep this case from getting to trial in the Canadian court. First, they argued that the B.C. court should dismiss the case and send it to Eritrea for the courts there to decide the foreign non-convenience principle I mentioned earlier. But the plaintiffs were recognized refugees, which meant that they had fled Eritrea and could not return for fear of detention, torture, or worse. Nev Sun was essentially arguing that they should risk their lives and return to Eritrea, show up in a courtroom, and ask an Eritrean judge to rule that the government's national service program is a form of slavery. As if all that's needed to bring an end to the regime's repressive practices is for someone to show up at a court and challenge them. In response to this argument, we gathered evidence from former Eritrean judges who had escaped the country and were living as refugees in various places around the world. They gave the opinion that Eritrean courts are not fair and impartial, but are essentially controlled by the government. They recounted how they and their colleagues could be subjected to detention, torture, or worse if they defied the government. They noted that some judges in Eritrea are even part of the national service program and are forced labor conscripts themselves. One former judge, who my colleagues and I met in Geneva, described how a colleague of his was threatened by a general and a group of soldiers with AK-47s and another was arrested for no given reason at the courthouse right in front of his eyes, never to be seen again. Another former judge, who was living in Birmingham, the United Kingdom, and had been a national service conscript at the same time as he was a judge, gave the following harrowing account of what happened to him when he tried to escape the national service program by fleeing the country. He says, I attempted to flee across the border into Ethiopia, but I was caught. I was detained and tortured for three weeks. For instance, I was tied naked in the auto position for three days straight in very cold weather in a place in the mountains called Mbassulira. Every night, they would pour cold water on me until I was freezing. I was also beaten every day. Meanwhile, another judge, who was living in exile in Manchester, gave the following testimony to illustrate how the Eritrean court system worked when powerful state or military actors were involved. He says, in 2004, I was the judge in a case involving a husband who accused his wife of adultery with an ex-boyfriend who admitted to the affair. On the date he was to testify, the ex-boyfriend appeared and announced that he was repudiating his prior admission. When I put his prior statement to him, he burst into tears. He took his clothes off, revealing very severe injuries on his back, and explained that the wife was a relative of Major General Teklai Haptasilasi. He explained that Major General Haptasilasi had ordered him arrested and tortured because he had given testimony about the affair. This was a difficult experience for me as I realized this was a very serious situation. I knew my duty as a judge was to order the alleged perpetrators of the torture arrested and investigated. However, I could not do this because I feared greatly for my life if I did so. Therefore, I adjourned the hearing and set a new hearing date very far in the future, hoping that the ex-boyfriend would flee the country in the meantime, or that something similar would happen to make the case just disappear. I do not know what ultimately happened to the case, but I never had to deal with it again. So, presented with all these accounts and more, the court in BC rejected Nefsson's argument that the case should be dismissed and referred to Eritrean courts. Nefsson filed an appeal of this decision that was also rejected. But then Nefsson further argued that even if Eritrea was not a suitable alter in a forum, the BC court should still not hear the case anyway. They argued that this lawsuit was fundamentally a challenge to Eritrea's national service program, which was an act of a foreign state, and that as a matter of law, it was improper for Canadian courts to sit in judgment on the sovereign acts of foreign states. Nefsson argued this so-called act of state doctrine all the way to the Supreme Court of Canada, which ruled in 2020 that there was no such principle under Canadian law to bar the lawsuit from going ahead, rejecting Nefsson's argument. Finally, Nefsson argued that you cannot have civil liability for violations of international law in Canadian courts. They claim that Canadian courts cannot apply rules from international law to create civil liability under domestic Canadian law. They further argued that corporations cannot even be liable for violations of international law, only states and individuals can. They also took this argument all the way to the Supreme Court of Canada, and again in 2020, in a landmark decision, the Supreme Court rejected this argument and ruled for the first time ever that a corporation may be held civilly liable for violations of international law such as slavery in a Canadian court. A few months after the Supreme Court decision was released, the case was settled out of court. I can't say anything about the settlement agreement, other than we were satisfied with the outcome and what we achieved for the plaintiffs. But the Nefsson lawsuit was a major victory for justice in many other ways, too. It's set in important legal precedent in terms of holding Canadian multinational companies liable for complicit human rights abuses that violate international law. In this respect, it's actually become pretty well known not just in Canada, but around the world, too. And I'm told that Canadian mining companies have paid very close attention to the case and what it means for their potential liability for complicity in human rights violations, which I'm glad to hear. It was also very meaningful personally for the plaintiffs just to have that validation at public occasions like the hearing at the Supreme Court of Canada, seeing that so many people were gathered in one room to listen to their story and take it seriously. And I also hope that the lawsuits capture the imagination of the next generation of young social justice lawyers who are just entering a profession that can be dreary and stale in its thinking and inspire them to think about the limits of what can be possible with the law with just a little bit of creativity, vision, and determination. Last but not least, throughout the entire process, I was always deeply touched by the overwhelming support and affection shown to us by Eritrean people around the world and how much they appreciated what the lawsuit did to raise awareness about the terrible things that are happening in that country. But I'd be lying if I said there weren't major sources of frustration and disappointment in the aftermath of the lawsuit, too. Those of you who know the Greek mythology or the philosophy of Albert Camus will be familiar with the myth of Sisyphus, the legendary king of Corinth, who was punished by the gods to spend eternity rolling a large boulder up a hill, only to have it roll all the way back down again as he reached the very top. One can imagine Sisyphus, nearly the completion of a long, hard task, that sense of accomplishment he must have felt, only to look back down and see that the boulder was actually at the bottom of the hill again. I couldn't help but think of how Sisyphus must have felt at that moment when, not long after the Neftan lawsuit was settled, I saw news that another Canadian-listed mining exploration company named Alpha Exploration was exploring for gold at another site in Eritrea and was hoping to develop it into a mining opportunity. I can only imagine that this company knew, as Neftan did according to the internal documents that the CBC reported on, that slave labor quote permeates the whole country and it's virtually impossible to conduct any kind of business, let alone build a sophisticated modern mining operation without benefiting from the use of slave labor. I can only imagine that they also knew about the Neftan lawsuit and that they could potentially be held civilly liable from complicity and slavery, and yet here they were, doing it anyway. The reality is, a gold mine can generate multi-billion dollar revenues. That's an awful lot of money and the lawsuit in Canada is the mere cost of doing business when that kind of money is involved. Part of the problem is that there's nothing stopping anyone from buying gold from Eritrea that's tainted by the use of slave labor. I'll give you an example. In the United States, there's a law that requires publicly listed companies to investigate and publicly disclose their findings on where certain minerals they've purchased come from, including gold. In the reports they publish under this law, many companies openly acknowledge that they have bought gold that may have originated in Eritrea, gold that would certainly have been produced using slave labor. These companies include some of the world's largest, like Tesla, Apple, Ford, and IBM, among dozens of others. What's more, they have no obligation to do anything more than just report where the gold came from that they bought. They don't have to make any efforts to try and ensure that they don't buy gold that's produced using slave labor. Courts have held that they can't be held legally liable since they are just purchasers and not producers of the gold. So they're free to keep buying gold tainted with forced labor, and so the producers freely keep producing it and selling it to them. As for the Beesha mine itself, it was bought by a Chinese company and is still in operation today producing zinc. It's unknown whether forced labor is still being used there. Forced labor is certainly still used in Eritrea through the National Service Program. The need for labor at the Beesha mine would not be as high as it was during the construction phase, but described earlier, forced labor is an issue that pervades the entire country. But I hope it's abundantly clear by now that I didn't actually come here to talk about the problems of one Canadian mining company at a single mine. I came to talk about over 1500 Canadian mining companies with over 8,000 properties in over 100 countries around the world. The reality is that one lawsuit against one mining company is really just a drop in the bucket. There are Canadian mining companies operating in all corners of the globe, and in a lot of these places, there is a very high risk of becoming complicit in serious human rights abuses. And many of these companies just aren't going to let human rights stand in the way of a good profit. The Canadian mining industry itself recognizes that it's about more than just one company. The Mining Association of Canada, an industry group, intervened at the Supreme Court in the Nefson case and actually argued that its members should not be subject to civil liability for violations of international law. The reality is that stories like the Nefson case do happen time and again. There may be some variations on the theme. It may not be slavery, could be something like beatings, rapes, killings, spill of a toxic substance, but the broad strokes remain the same. The company commits a series of human rights or environmental abuses in order to get minerals out of the ground and make enormous profits, and more often than not, they get away with it. Because I'll tell you now, the long drawn-out multi-year process of a lawsuit that I just described, that's just not going to happen every time. The fundamental problem is that as the world's economy has grown more interconnected over the last several decades and the business activities of Western corporations have gone increasingly global, the institutions of governance capable of holding them accountable have not globalized at a pace to match. This has created what's known as governance gaps, the gap between the global reach of Western multinational corporations and their business activities on the one hand, and the global reach of the governance institutions that regulate their conduct on the other. What's needed to fill these governance gaps are more powerful deterrents, prevent all this happening in the first place. Hard legal rules backed by serious penalties in Western countries like Canada where these multinational corporations are based. Certain countries like France and Germany have started to enact such laws. These laws require companies to perform mandatory human rights due diligence with respecting their operations and their supply chains and take measures to avoid becoming complicit in human rights abuses. Canada sadly has lagged behind in introducing such legislation. Instead, we basically have a complaint mechanism that's entirely voluntary. It's called Canadian Ombudsperson for Responsible Enterprise or CORE. If a complaint is filed with this Ombudsperson, she can open an investigation into the company in question. The company can then decide to cooperate with the investigation or can decide not to. It's entirely up to them, whatever they feel like. This Ombudsperson, she's asked for more powers to actually compel participation from Canadian companies, but she hasn't received them yet. As I hope what I've said today is made clear, optional mechanisms such as this are entirely inadequate to address this problem. There is one bill, Bill C262, that was introduced in March 2022 that would impose mandatory human rights and environmental due diligence obligations on certain Canadian companies if passed. It would require these companies to investigate their human rights and environmental risks, report on them, and then take concrete measures to address them. It isn't backed up by fines in the event of non-compliance, but it would make legal liability to victims a far greater risk. If passed, it would be a huge step in the right direction. But sadly, it's unclear if Bill C262 or anything like it will ever be enacted into law. So for the time being, the governance gap in Canada remains largely unaddressed. I want to conclude by taking a step back and reflecting on why we do all this in the first place. That is, all these human rights abuses and environmental destruction to get this shiny yellow metal out of the ground. And what for? What's the purpose of all this? Well, roughly about 50% of gold production is used to make jewelry that we adorn ourselves with. Another roughly 40% is used for financial purposes. So it's formed into these bars and then goes right back into the ground in subterranean vaults. So the vast majority of gold is used to either display wealth or to store it. I want to read you a 2011 quote from Warren Buffett, the world's most famous investor. He says, if you took all the gold in the world, it would roughly make a cube 67 feet on the side. Now for that same cube of gold, it would be worth at today's market prices about $7 trillion. Remember, he's talking 2011. That's probably about a third of the value of all the stocks in the United States. For $7 trillion, you could have all the farmland in the United States, you could have about seven Exxon mobiles, and then you could have a trillion dollars of walking around money. And if you offered me the choice of looking at some 67 foot cube of gold and looking at it all day, call me crazy, but I'll take the farmland and the Exxon mobiles. And later on, he added, essentially from now, the 400 million acres of farmland will have produced staggering amounts of corn, wheat, cotton, and other crops, and will continue to produce that valuable bounty. The 170,000 tons of gold will be unchanged in size and still incapable of producing anything. I think it's striking to ask what benefit we get in exchange for all the human rights and environmental harms that gold mining has brought. For instance, gold mining emits more greenhouse gases annually than all the flights between European nations combined and also counts for 38% of global mercury emissions. At an exchange, we get a medal that mostly just sits around and doesn't do anything. Now, I'll acknowledge that gold actually does have some tremendously useful practical applications, but for these purposes, we could use the gold we already have, sitting in vaults in the ground or around our necks, wrists, or fingers. But I'm not trying to make people feel bad about their gold chains or watches either. At the end of the day, it doesn't matter what we use it for, because there are some minerals we do use for very important things when we pull them out of the ground. But that doesn't change the basic principle. Mining can and should be done in a way that uplifts and empowers local communities, or at the very least, does not subject them to severe human rights abuses or environmental harm. I think most Canadians would agree with this. And I think most Canadians would be shocked to learn about the kinds of human rights violations and environmental abuses that Canadian mining companies are regularly accused of being involved in around the world. And I think there are a lot of things we could do better to try and prevent it. After all, these companies use Canadian law, and by essentially Canadian courts, stock exchanges, regulatory bodies, et cetera, for access to capital and all the other benefits that they provide. Canadians hold their company shares in our pension funds and financial portfolios. Beyond that, these companies are also our global ambassadors, representing us wherever they go. And they're giving us a bad reputation. Many times in places around the world that I've been, I've talked to people who've asked me specifically, why do I keep hearing about so many Canadian mining companies getting involved in human rights abuses all over the place? And I've heard other Canadians describe similar experiences. Six UN treaty bodies have specifically called out Canada for not doing more to ensure that its companies comply with international human rights and environmental standards. Canada can do better. Canada has to do better. If these companies represent us as Canadians on the international stage, we have to do our best to ensure they represent our values as well. Thank you for listening to what I have to say. So if anyone wants to ask a question and maybe be on ideas, you can come up here and just say your name and ask a question. That'd be great. Hi, James. This is Charlotte. Thank you very much for an engaging talk. I was wondering if you could speak to the relationship between international soft law guidelines, like the UN guiding principles on business and human rights, and the developing parental duty of care in Canada. So I know you had a hard question. I know you mentioned that there's mandatory due diligence legislation on the books, but in the interim I'm wondering how those voluntary guidelines could inform the duty of care and the standard of care. Thank you. Yeah, sure. Thanks, Charlotte. And so for by way of background who are a bit less familiar with this field, there are a set of international guidelines and principles which are not binding. They're what's known as soft law, but they're guidelines that are meant to set out some of this international standards of conduct for companies, Canadian or otherwise, when doing business anywhere in the world. The most famous one are called the UN guiding principles, but there's also others like the OECD guidelines. And as I said, these are what's called soft law. So they're not binding. The compliance with these can't be enforced. But as of right now, they haven't necessarily gained a lot of traction in courts around the world, but what you might see is and what I think you're beginning to see is a phenomenon where these soft law guidelines and principles and standards are beginning to harden into principles that are applied when courts evaluate the conduct of Canadian companies according to the standards of what a reasonable company ought to have done. So we're not there in Canada yet, as I said. So this seven year process I just described is this lawsuit. That was just to get to the point where the Canadian court said, okay, you can go ahead with the lawsuit now. We'll hear this, right? We didn't actually get to the point where we actually got the evidence in front of the Canadian court and we started presenting our arguments about what happened and who was responsible for it. But the case settled before that point. But in the future, if and when a case does get to the point where a court is tasked with deciding whether or not the company met a reasonable standard of diligence in trying to prevent these human rights harms, they may very well look at these international standards and guidelines that for now are not binding and are soft law and they may harden into actual law in that sense. Anybody else like to ask anything? Okay. Hi, I'm David. Great talk. Thanks. The question is, is there any sense of what portion of production of Canadian mining the output is tied to human rights violations? So for example, 30% of the gold that Canadian companies produce can be tied to sites or practices that violate human rights. And then also, would there be any sense from a global standpoint as well? Thanks, David. Unfortunately, I really have no idea. And this is part of the problem, which is that, A, it's very hard to figure out what mining companies are doing all over the world. It there's not that pipeline of information from these, you know, more than 100 countries in all these remote places in the world from what happened on the ground to us here. If you think about, for instance, how long it took, how long residential schools were going on in Canada and how all pervasive they were and yet how long it took for those cases to finally get to a Canadian court. And these are things that happened in Canada in our own backyard. And it took so long for them to get to court. And imagine how much more difficult it is for something that happened in a far off country on the other side of the world to get to a Canadian court. So it's very hard to find out what happens from where we are here in Canada. And all these 8,000 properties owned by these 1500 mining companies in 100 countries all over the world. And then on top of that, once minerals are pulled out of the ground and they're sold and they start, they're injected into the supply chain, they become very hard to trace. And that's another part of the problem. You can't tell if a particular gold ring, where the gold came from and what conditions it was made. So unfortunately, it's not easy to tell. Maybe there are others in the room who might have some more information on that. But I can tell you it's very difficult to answer those questions. James, you were saying before that doing this can be rewarding and then very frustrating right away. What about for the future for you? You've taken on this big successfully. You've taken on this Canadian company in Eritrea and that had some success. What's next for you in terms of your own work and hope to make a difference when it comes to Canadian mining companies practices overseas? That's a good question and that's still something to be figured out. One thing is hopefully this, the nefs on cases open the door to more cases and more Canadian mining companies being held accountable and which will hopefully lead to some measure of deterrent effect and behavior modification. But also hopefully I think some of the issues that are made clear by the nefs on case, particularly with respect to some of the difficulties and challenges with holding Canadian mining companies accountable for what they do could hopefully lead to more action perhaps on the legislative side and on the government side because the solution, lawsuits play an important part but they can't do all the work and while lawsuits have a role to play, governments and corporations themselves also need to step up. But the legislature needs to step up with strong legislation as I was talking about to really make sure that these companies can be held accountable. Okay, another question? Another David here. Thanks for a great talk. Do you see any environmental cases on the future? You mentioned a lot of human rights abuses but environmental damage cases as well around the world. We see a lot of that going on. I wonder if you might just think a little bit about what the nefs in case may mean to future environmental cases. Could it be a new environmental torts? We have an emerging right to a healthy clean environment from General Assembly recently. What are the implications of that in light of nefs in? So if you thought about that in the future of environmental law, you might say based on international law and norms coming into domestic law. Thank you. Yeah, so that's an interesting question. Thanks, David. Particularly in light of what I said about nefs and being a landmark decision in terms of the application of international law in domestic Canadian law, nefs and really represents the idea that actors in Canada can be held liable in domestic courts for violations of international law. And now international law can include rules with respect to human rights. Or as David pointed out, it can include there's a lot of large body of international law, excuse me, relating to the environment. So nefs and certainly does lead to some intriguing possibilities with respect to environmental lawsuits to try and incorporate rules from international law into arguments in domestic courts. It's a little trickier. Part of the difficulty is that a lot of environmental laws don't, a lot of them don't have a clear person, identifiable person that the duties are owed to, right? So for instance, with the international rule against torture, when it's violated, there is a clear victim whose rights have, whose own rights haven't violated and who has the capacity to show up in a court and say, and assert their own rights. And a lot of environmental rules are little murkier than that. There's no specific identifiable beneficiary of a lot of these rules. At the same time, I know that there is a large body of lawsuits around the world right now pertaining to the effect of climate change. And a lot of these lawsuits attempt to piggyback claims pertaining to climate change basically into international human rights law. So things like the right to life or the right to health, the right to the clean environment that you mentioned, healthy environment that you mentioned under international law. So there are perhaps some opportunities to try and advance climate or other environmental claims through, framed through human rights claims. Like who do you sue for climate change? Because that's... Well, this is another problem, right? And people have tried a bunch of strategies. They've tried suing governments. They've tried suing companies. And there's a lot of issues with respect to climate change. There's no one identifiable actor that is responsible for climate change. And this is a barrier in those lawsuits, as I'm sure you and many others know. But again, creativity, right? There's a lot of clever lawyers all around the world that are working together and coming up with these clever strategies and clever arguments to try and find a way to argue that a certain government or a certain corporation may be responsible for certain effects in some way. And they make these arguments in courts. Many of them lose. Some of them actually get some traction. And then everyone, all these lawyers and advocates around the world learn from each other, learn from what works, learn from what doesn't, and go from there. It's possible that the nefs on case might have, the nefs on decision might have some kind of role to play in all of that or might influence or inspire some other argument that builds on that either in Canada or somewhere else and takes it a step further. And that's how the law progresses. Thank you. Is anybody else have any questions? Oh, no. Hi, my name is Agha and thank you for the talk. I just wanted to know to what extent do you think refugee law has offered a recourse for people that have been affected by human rights abuses by mining companies abroad, like Canadian mining companies? And is there anything more in that area that could be done to offer that kind of recourse? The extent to which refugee law has been a recourse for who? For those affected by human rights abuses by mining companies abroad. Okay. That's a good question. Refugee law, which is another form of international law, has very specific conditions about who and who isn't considered a refugee. And it's this body of law that emerged in response to a very specific situation at a very specific time and place that was Europe post World War II and has been developed sort of in response to that particular situation and doesn't necessarily fit well or is not necessarily a good fit in terms of responding to a lot of the situations, the humanitarian situations that we see today. Refugee law, for instance, typically requires some kind of state persecution. In order for one to be qualified as a refugee. So for instance, some kind of generalized violence like famously some kind of like gang violence does not qualify as persecution that would make one qualify as a refugee. This has been a major issue in terms of climate change because a lot of climate change has displaced and threatens to displace even more people around the world. And again, they're not considered refugees because it's not their state that's really causing them to flee their country, right? Similarly, right now, with Ukrainians who are fleeing the war there from the invasion of Russia, it's not their state that's persecuting them. So actually technically they're not considered refugees either. So refugee law can be helpful to the extent that human rights abuses, whether Canadian mining companies are involved or not, have some kind of nexus with some kind of state action. And by state, I mean the state, the country of origin of the refugees. But beyond that, refugee law has some severe limitations that really make it difficult for it to respond to some of the modern challenges that we face in the world today. Okay, we'll do one last question. Do you want to ask Captain Kim? Hi, this is Josh. As you were speaking, it made me think of some of my own work with respect to law in relation to bodies, as I was talking to you about before earlier. Do you have any sense of how these corporations justify their practices? For example, when I look at early case law in the 17th and 18th century English courts, if they're not saying outright that individuals were slaves, they were saying that the common law in England having reference to natural justice could not countenance slavery in their land. But if positive law, human created law in the colonies, legalized slavery, that they couldn't do anything about it. So is there any kind of principle of it's okay over there to that justifies it to these companies? Yeah, that's a really good question. And I think the comparison to the 18th century English cases on slavery is a fascinating one. First of all, the human capacity for justification is limitless. It really knows no bounds, because I don't think these mining executives are sitting in their offices actually thinking, let's go and slave people. And we don't care because we'll make a lot of money. I mean, maybe they are. But I think to a large extent, they have a capacity to tell themselves that they're doing something good. Or one of the things, or maybe the things that they're doing aren't that bad, or they would happen anyway. Or if they didn't do them, some Chinese company would come and do the same thing. They have all kinds of justifications like this. It's really fascinating. And you even see things like, oh, who are we to impose our standards on these countries? This is just neocolonialism, right? Which happens to align with their enormous pecuniary interests. So I don't know if it actually takes the form of, oh, it's okay over there. But perhaps more the form of something like, well, who are we to judge what they do in other countries? I'm not sure. I'm not in the mind of these mining executives myself. I've often thought about it, to be honest. And I thought it would be fascinating to see just what they're thinking when they get involved in these kinds of abuses, just to get some metal out of the ground. But yeah, would love to have more insight into that. Well, thank you very much, James. That was just a brilliant lecture. And I look forward to it being on ideas. And thank you, everybody, for coming tonight and Shluck School of Law and Instagram date. Thank you. Thanks, everyone.