PostScriptum: Barrick Gold in the Canadian Court, the Jurisdictional Veil and What Lies Ahead
This post has been written by Ekaterina Aristova, Leverhulme Trust Early Career Fellow, Bonavero Institute of Human Rights, Faculty of Law, University of Oxford. It is the sixth and final post in the EAPIL blog on-line symposium on Ekaterina Aristova, Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024). The others contributions, by Ekaterina Aristova, Peter Muchlinski, Geert Van Calster, Mukarrum Ahmed and Dalia Palombo can be found here, here, here here and here respectively. Readers are encouraged to participate in the discussion by commenting on the posts.
On 26 November 2024, the Ontario Superior Court, under Justice Morgan, dismissed a civil case against Barrick Gold Corporation (Barrick) on jurisdictional grounds (Judgment). The case involved allegations of gross human rights abuses in Tanzania. The Judgment came out while I was reading insightful blogs by Professor Peter Muchlinski, Professor Geert Van Calster, Dr Mukarrum Ahmed and Dr Dalia Palombo. I want to thank the contributors again for their generous assessment of my book and thoughtful critique. The Judgment provides an excellent opportunity to reflect on the role of jurisdictional rules in business and human rights litigation, as well as the broader arguments raised in this symposium.
The case against Barrick drew on the precedent set in Nevsun Resources Ltd v Araya, where the Canadian Supreme Court ruled that Canadian companies may be held liable under Canadian law for breaches of customary international law committed in foreign jurisdictions. While the Nevsun case was ultimately settled, it raised hopes that the claims against Barrick might further clarify the scope of corporate liability. Unfortunately, those hopes have not materialised. Once again, the rules of jurisdiction under private international law proved to be a significant barrier for claimants pursuing justice in business and human rights litigation.
Discussion of the Judgment
The case against Barrick was launched by Tanzanian citizens who claimed that they or their family members had been injured or killed at a mining site in Tanzania. The mine is owned by North Mara Gold Mine Limited (NMGML), a local company. Barrick, a Canadian parent company, is the majority shareholder of NMGML alongside the Tanzanian government. The ‘violent incidents’, as referred to in the Judgment, were carried out by armed members of the Tanzanian police, who provide security at the mine. These police officers work alongside unarmed private security guards contracted by NMGML and Twiga Minerals Corporation (Twiga), a Tanzanian company that provides management services to the mine. Twiga itself is also jointly owned by Barrick and the Tanzanian government. The involvement of the Tanzanian police is governed by Memorandums of Understanding (MoUs) signed with NMGML. Under these agreements, NMGML provides funding and certain equipment to support police operations at the mine. However, the Tanzanian police remain an independent unit of the sovereign state.
There is no dispute between the parties that the killings and severe injuries were perpetrated by the Tanzanian police [12]. The claimants’ case against Barrick relies on the management and oversight exercised by the parent company over the mine. The claimants argue that Barrick undertook responsibility for ensuring human rights standards at its mining operations worldwide and facilitated specific training programs for the Tanzanian police. Additionally, the claimants point to the fact that the MoUs were signed by NMGML officers and directors who were appointed by Barrick [12]. To further substantiate their case, the claimants rely on internal corporate documents, which – they assert – demonstrate that Barrick is ‘ultimately the source of wrongdoing at the mine’ [14]-[15].
In sum, the framing of the case closely resembles foreign direct liability claims (FDL Claims) brought against transnational corporations in other jurisdictions. The claimants are directly targeting a powerful parent company in its home jurisdiction, alleging that its own acts or omissions at the place of domicile resulted in a breach of the duty of care owed to them.
Like many other corporate defendants facing FDL claims, Barrick sought to have the case dismissed or permanently stayed for lack of jurisdiction or, alternatively, on the forum non conveniens grounds [1]. Justice Morgan agreed, concluding that the subject matter of the litigation was located in Tanzania [142]. He found the evidence compelling that the incidents occurred in Tanzania, the mine was neither operated nor overseen from Ontario, and, ultimately, the alleged human rights violations did not take place in Ontario [148].
Justice Morgan also made obiter comments regarding the forum non conveniens challenge. Again, he sided with the defendant, holding that Tanzania was clearly a more appropriate forum for adjudicating the case. In his view, several factors strongly favoured Tanzania, including the likely application of Tanzanian law, the convenience and cost-effectiveness of litigating in Tanzania and the presence of most witnesses in that jurisdiction [149]-[168].
Comparative Jurisprudence
Undoubtedly, the Judgment is deeply disappointing for victims of business-related human rights abuses affected by the overseas activities of Canadian corporations who seek justice in Canadian courts. It is interesting to assess how the Judgment aligns with broader debates on corporate accountability for human rights violations and comparative jurisprudence.
One particularly striking aspect of the Judgment is Barrick’s characterization of the case and Justice Morgan’s apparent agreement with this framing. Barrick argued that ‘by suing the geographically distant majority shareholder of NMGML in a jurisdiction detached from the events giving rise to the claim, the Plaintiffs will be able to emphasize generic pronouncements about corporate responsibility rather than focus on rights and wrongs on the ground during the violent incidents at issue’ [13]. Justice Morgan echoed this perspective, cautioning – through a reference to a different case – against Ontario becoming an ‘international hosting court’ for disputes with no ‘real or substantial’ connection to the jurisdiction [147].
This approach underscores a critique I raised in my introductory blog: the lack of recognition, for jurisdictional purposes, of the underlying nature of FDL Claims. The Judgment views the case solely through the lens of events that occurred in Tanzania. But they are only one aspect of the whole story. The case brought in the Canadian court fundamentally concerns the role of the Canadian company in managing and overseeing its global business operations. FDL Claims ought to be assessed by the courts in their entirety with due consideration of both the local and foreign aspects of the parent company’s activities. It is problematic to suggest that the case relates solely to the subsidiary’s or third party’s misconduct in a host state. Such an approach simply does not match the organizational structure and economic reality of transnational corporations. I explore this argument in much greater detail in my book.
The stance taken to undermine the parent company liability aspect of the case in the Judgment seems at odds with the broader international direction of travel, particularly in the context of mandatory human rights due diligence. While EU Member States are actively preparing to transpose the Corporate Sustainability Due Diligence Directive (CSDDD) into their national laws, there is also a debate about the appropriate regulatory framework in Canada itself, including the potential of Canada’s recent modern slavery legislation. Moreover, Canada has become, over the last decades, a jurisdiction with a significant number of FDL Claims, which, one might argue, should have better prepared domestic courts for the complexities of such disputes. Two prominent examples are the Nevsun case mentioned earlier and Choc v Hudbay, which was recently settled. I must also acknowledge the valuable contributions of Canadian scholars in addressing the governance gap surrounding the operations of Canadian multinationals, as well as the growing emphasis on home state regulation (see, e.g., work by Penelope Simons and Audrey Macklin and Sara Seck).
How does the Judgment compare to English jurisprudence, which is the focus of the book? On one hand, there is a clear similarity in the difficulty of litigating cases of corporate complicity, particularly where parent companies or their subsidiaries are involved in the commission of abuses by third parties, such as police or private security companies. These abuses may occur through activities like providing goods and services, purchasing raw materials, hiring or training security services, or financing harmful behaviour. When considering the parent company’s duty of care in Kalma v African Minerals (cited by Justice Morgan), the English Court of Appeal acknowledged that ‘this was not a situation which easily fitted into the established authorities in this area’ [111].
However, there are also apparent differences in judicial reasoning. The first concerns the legal weight given to corporate human rights policies. Many readers of this blog will be familiar with the English cases of Lungowe v Vedanta and Okpabi v Shell, in which the UK Supreme Court expanded the scope of the parent company’s duty of care. It was held that, under appropriate circumstances, parent companies could be held liable for providing defective advice to subsidiaries, promulgating defective group-wide policies that the subsidiary implemented, making representations about exercising a certain degree of supervision and then failing to act accordingly. In contrast, Justice Morgan described Barrick’s global sustainability policies as ‘analogous to the marketing efforts of an international hotel chain […]’ [144]. This approach, once again, overlooks the efforts of many home states, including Canada, to strengthen corporate transparency and accountability for human rights commitments. Let’s not forget the growing importance of greenwashing litigation and the willingness of domestic courts and state competition authorities to challenge unsubstantiated corporate net zero commitments or sustainability claims.
The second significant difference between the Judgment and the rulings of English courts in FDL Claims concerns the assessment of the likelihood of a fair trial in a foreign state. English courts have frequently resolved jurisdictional issues on forum non conveniens grounds. Without delving into extensive detail, the test essentially requires a nuanced assessment, avoiding abstract statements about the legal system and judiciary of another sovereign state. The focus is on whether, in this specific case, the claimants would be denied substantial justice in the foreign forum. In contrast, the Judgment largely focuses on a general assessment of the independence of the Tanzanian judiciary, the peculiarities of the Tanzanian legal system and the availability of activist lawyers in Tanzania. However, there is a lack of a more specific evaluation regarding whether the claimants would receive a fair trial in Tanzania in a case about the liability of a Canadian company, where the Tanzanian police are the primary perpetrators of human rights violations, and the Tanzanian government is involved in joint ventures with the said Canadian company. To be fair, Justice Morgan did note the lack of evidence from the claimants that could have strengthened their case. It would be interesting to see more research on the differences between the forum non conveniens test under Canadian and English law and its implications for business and human rights litigation.
Future Imperfect
There is a certain irony in the fact that the Judgment was released on 26 November 2024, coinciding with the second day of the 13th UN Forum on Business and Human Rights in Geneva. This annual event gathers over 2,000 participants to discuss advancing corporate accountability frameworks. One might expect Canada to demonstrate leadership in this area; however, the Judgment serves as yet another example of a parent company sheltering behind a jurisdictional veil, thereby contributing to the corporate immunity gap.
How does the Judgment align with the narratives discussed in this symposium? Dr Ahmed has forcefully advocated revisiting the application of the forum non conveniens test by English courts – a reform that could be equally relevant for Canada. In the absence of judicial progress, legislative action may provide a solution. Professor Muchlinski has compellingly argued for the introduction of a statutory duty of care, enforceable through damages – a model embraced by the EU in its CSDDD. However, as the enforcement of the French Duty of Vigilance Law illustrates, creating a cause of action to sue a parent company in its home state is only a partial solution. Procedural barriers to justice must also be addressed. Civil society organizations have emphasized that transposing the CSDDD into domestic law will require significant attention to litigation costs, the availability of representative actions, burden of proof requirements, jurisdiction over non-EU defendants and choice of law issues.
At the same time, debates over the scope of extraterritorial action by home states – whether through legislative measures or judicial interventions – risk distracting from the elephant in the room: the historical roots of injustice. Dr Palombo insightfully highlights how the international legal system often privileges transnational corporations at the expense of people and the planet. Many of these inherent power dynamics lie beyond the reach of private international law, drawing us instead into the political realm.
The book under discussion at this symposium began as my PhD thesis. During the viva, I was challenged by my knowledgeable examiners, Professors Richard Fentiman and Robert McCorquodale, on whether courts should accept jurisdiction over all human rights cases brought by foreign citizens against local companies without imposing any tests of jurisdictional reasonableness. My answer then – and as articulated in the book – remains that while domestic courts cannot transform into global courts for human rights, private international law holds significant potential to contribute to corporate accountability debates. However, this potential can only be realized if adjustments are made to bridge the mismatch between the transnational nature of business and the territorial nature of jurisdiction. Without such reforms, private international law risks remaining, in the powerful words of Professor Horatia Muir-Watt, ‘closeted’.
Professor Van Calster questioned whether my perspective on the current state of business and human rights litigation is overly optimistic. The Judgment undeniably feels like another drop in a glass half-empty. In England, we are also awaiting the outcome of the appeal in Limbu v Dyson, which, like this one, was dismissed at first instance on forum non conveniens grounds. For now, and until the Court of Appeal judgment in Dyson is published, I choose to remain hopeful. However, the future of business and human rights litigation depends more than ever on the willingness of courts to recognize the underlying nature of FDL Claims and to engage with their transnational dimensions.