Nevsun puts Canada's Corporate Decision Makers in the Human Rights Zone

A manager’s job is to make decisions. With Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (Nevsun), the Supreme Court of Canada has changed the way that senior business decisionmakers must think about the human rights impacts of their decisions on people abroad. They must now grapple more directly and systematically with issues such as forced labour in the supply chain, abhorrent and dangerous working conditions, cruel and degrading punishment, as well as concerns over due process rights and freedom of association. This is a tall order, yet a necessary one. At the same time, the Court’s decision has widened the realm of uncertainty for business decision makers, since the legal risks that have been created are not yet clearly defined. The details will be worked out over many more years of litigation, unless the government sees fit to pass legislation that endorses or negates the direction given by the court. In this essay, I argue that Nevsun puts the multinational corporate decision-maker in an uncertain yet also demanding human rights decisionmaking ‘zone’. This ‘zone’ is not a physical place; rather, it is a thinking space where business leaders must make judgments among and between the distinct concerns of human dignity and economic profit. Decisions made in the corporate human rights zone concern processes, ethical values and broad consequences for people inside and outside the corporation over the short term and long term. This is a delicate yet positive change for businesses and for the communities that they have impacts on, as we shall see below.