Ontario Superior Court Justice Edward Morgan on Wednesday dismissed a lawsuit accusing Canadian company Barrick Gold of committing human rights abuses against Tanzanian mine workers.
Justice Morgan granted Barrick Gold’s application for forum non conveniens (inconvenient forum), agreeing that Tanzanian courts would be better suited to handle the case. The justice rejected the plaintiff’s submission that the Tanzanian judicial system was deficient and that no deference should be offered to foreign jurisdictions in cases where there are “clear violations of international law and fundamental human rights.” He categorized the plaintiff’s application in the Canadian jurisdiction as “a springboard for the Plaintiffs to launch an attack at large on the Tanzanian justice system.” Justice Morgan also rejected the plaintiff’s argument that they would be financially incapable of finding counsel in Tanzania, noting that “there are dozens of legal aid centres and clinics in Tanzania whose function it is to bring cases to court on behalf of indigent persons.”
The substantive matter of the claim against Barrick Gold was not considered by Justice Morgan. In the statement of claims, the plaintiffs alleged that Barrick Gold and affiliated local security were involved in the deaths of at least five people and the beating of others near the North Mara Mine in Tanzania since 2019. The plaintiffs further claimed that the Tanzanian police were corrupt and colluded with Barrick Gold in committing these violations. The applicant sought damages against Barrick Gold, arguing that the firm had a duty of care to the villagers on the basis that Barrick controlled the mine and that it had in place a number of ESG policies.
The defendant argued that the court should dismiss the claims on the grounds of a lack of jurisdiction or the inconvenient forum doctrine. Under the inconvenient forum doctrine, a court recognizes that there is a more appropriate venue for the case to be heard.
In Nevsun Resources Ltd v Araya, the Supreme Court of Canada upheld a lower court’s decision to allow Eritrean miners to bring an inconvenient forum argument against Canadian company Nevsun. The miners alleged that Nevsun subjected them to “violent, cruel, inhuman and degrading treatment,” seeking damages for breaches of customary international law and domestic tort law. Justice Morgan distinguished the two cases, stating that Eritrea was described as “a ‘rogue state’ with no functioning legal system” while Tanzania’s legal system seemed “as well equipped as Canada’s legal system” to hear the Barrick Gold case.
