Editorial: HD on its feet after a tumble

Another chapter closed in the HD Mining International saga, with HD celebrating a win in the federal courts against two B.C. unions who had tried to thwart the junior developer’s efforts to import Chinese workers to take a bulk sample at its Murray River underground coal mine project, located southeast of Tumbler Ridge in northeastern B.C.

Once operating, the $300-million Murray River project would produce 6 million tonnes of metallurgical coal per year over 30 years, creating about 600 direct and 700 indirect jobs. HD Mining has already spent $50 million on the project.

The International Union of Operating Engineers, Local 115, and the Construction and Specialized Workers’ Union, Local 1611, had banded together to challenge the federal decision that authorized the temporary use of 201 foreign workers, but the challenge was dismissed on May 21 by the Federal Court of Canada. While the applicants do not represent any workers of HD, they were granted public interest standing and permitted to launch their challenge because they represent mining workers in B.C.

In his decision, Justice Russel Zinn noted that it was the first time a positive decision made under the federal Temporary Foreign Worker Program (TFWP) had ever been challenged, and that it “made for a hard-fought application.”

In order to win, the unions had to make a strong case that the Human Resources and Skills Development Canada (HRSDC) officer on the HD file had made an “unreasonable” decision, and a review of the 60-page judgment shows they failed to that, with the unions’ main arguments boiling down to a quibbles over process and deadlines. In particular, they failed to show that the company hadn’t made adequate efforts to recruit Canadians, were putting excessive job requirements on low-skilled positions or were offering too-low wages.

Instead, it was affirmed that Officer MacLean of the HRSDC gave his 10 key positive Labour Market Opinions (LMOs) based solely on his professional determination that it would likely result in “a neutral or positive effect on the labour market in Canada.”

One reassuring aspect of the hearings was the revelation that the federal bureaucrat in question was indeed left alone by his superiors in the ministry and others in government to make the best decision possible, as he saw fit.

On the other hand, a disappointing insight into the TFWP application process was finding out that the federal officer based his wage comparisons on the federal government’s website “Working in Canada,” which amalgamates employment ads posted on the various large job boards in Canada, and probably doesn’t accurately portray salaries and wages that are being paid for comparable jobs in comparable locations.

HD Mining said in a statement that the decision is “a complete vindication of our company, but it has come at a great cost and raised significant questions in the international investment community . . .” and added that “during these months of litigation, the unions made many allegations — both in court and in the media — which we frankly found appalling.”

Because of the uproar that HD Mining’s TFWP application created across Canada last November — which prompted the federal government to start a review of the entire TFWP — the company ended up sending 16 Chinese workers home in January and delayed importing the remaining 185 workers from China. Those 16 workers were to have carried out preparatory work at the mine site ahead of a 100,000-tonne bulk sample to be taken over two years by the larger team of foreign workers.

Despite the ruckus, HD said in January it was “committed to the community of Tumbler Ridge, and we have shown our long-term interest by investing $15 million in housing and other local initiatives.”

It also tried to reach out the unions with an open letter in February that emphasized that it would like to work together to implement better training for long-wall underground mining at Northern Lights College and lay a better groundwork for transitioning to a Canadian workforce after the bulk-sampling phase.

If anything, the judgment confirms that the TFWP controversy is foremost a political one that must be settled in the political arena, and not in the courts.