HD Mining moves to have Application for Leave refused

Trent Ernst, Editor
HD Mining is asking the court to refuse the Application for Leave filed by the two unions in the ongoing battle over HD Mining’s plan to use temporary foreign workers for their Murray River Mine. 
The motion was filed on Friday, and says that “the Applicants failed to comply with the timelines set out in legislation for seeking Leave, and because they have failed to demonstrate a “fairly arguable case” that there are grounds for Judicial Review.”
Instead, says the Memorandum of Facts and Law of HD Mining International Ltd. and Huiyong Holdings (BC) Ltd, the unions simply “argue why they disagree with the decision of the officer.” In doing so, they have “failed to identify any fairly arguable case as it relates to grounds for judicial review.” It is not the role of the court, says the document, “to simply revisit governmental decisions that a particular party does not like or thinks is wrong.”
According to HD Mining’s Vice President, Environmental and Regulatory Affairs Jody Shimkus, Long wall mining has not been practiced in Canada for over 15 years. “The Murray River Project utilizes a long-wall mining method that is entirely automated. A mechanical process ‘shears’ the coal from the wall. The shearers are mounted on a self-advancing hydraulic ceiling support, protecting the working under it. The sheared coal falls onto a conveyor belt for removal…This method is highly efficient, productive, and increases worker safety, but requires specialized training.”
As part of the recruitment program, HD received resumes from applicants, sent out interview notices and conducted interviews in Vancouver, Edmonton and Tumbler Ridge. Contrary to reports, some Canadians were hired, “including for such positions as warehouseman, office clerk, heavy machine operator, haulage truck driver and mine electrician.
“Of the resumes that HD Mining received for underground positions, none of them had experience with long wall mining,” the Memorandum argues. “Some had experience in other types of underground mining, but there are very substantial differences between long wall coal mining and the other types of mining for coal or metals. Long wall mining is a highly mechanized and specialized type of coal mining, requiring workers skilled in this particular technique.”
HD Mining has put forward a transition plan, which included a multi-year plan for transitioning to a 100 percent Canadian worforce. “It also committed to hiring Canadians for all of the surface work.”
While much has been made of the fact that the transition plan had the mine being 100 percent Canadian in a decade, the company notes that this is due to potential labour shortages in the mining industry across Canada and worldwide (and a future topic of discussion in our Mining in the North feature). The LMOs that are approved are for only two years, says HD “so as to see what progress the Company had achieved at that point on its training and transition plan.”
Contrary to what has been stated by the Applicant Unions, says the document, “Mandarin was not a requirement for hiring Canadians or permanent residents. Most advertisements made no reference to Mandarin at all, and some noted it as being of benefit but not a requirement. It was only after the LMOs were issued that Mandarin was stated to be a requirement for the workers from China who would be coming to fill the approved underground positions.” 
The company also argues that the Labour Market Opinion Directives makes clear that officers have considerable discretion in deciding whether or not to grant an LMO. According to HD, “The officer even has the ability to allow a foreign worket to be hired over a qualified Canadian…if the employer can demonstrate that hiring this individual will result in the potential transfer of skills to Canadians, or to create jobs over the long term. HD Mining specifically proposed in its LMO application…to commit to the transfer of skills and to the creation of Canadian jobs over the long term. By contrast, the applicant unions have not been able to provide credible evidence of a single Canadian applicant that was qualified in underground long wall mining.”