Judge rejects Union’s submission in HD case, but review moving forward

Trent Ernst, Editor

A judge has ruled that information about mining techniques used in the HD Mining bulk sample is “based on hearsay and stale-dated information.”

The ruling came down February 27 in response to the revelation that the initial plans for the bulk sample were to use room-and-pillar mining techniques. Documents obtained by the two unions embroiled in a court challenge over the process that approved foreign workers for the project refer to a bulk sampling program that would be carried out with a “well-proven underground method (room and pillar).”

“Mining will be by the room and pillar method,” states one document, a letter dated June 30, 2011, and filed as part of a notice-of-work application for the Murray River project.

Justice Michael D. Manson ordered the applicants motion “dismissed without costs.” His reasons are primarily procedural: “There is no provision in the Federal Court Immigration and Refugee Protection Rules for reply evidence,” he writes. “The proper procedure for a party seeking to add new evidence is to make an application for an extension of time to file a new applicant’s record, and it is not proper to try and circumvent that requirement.”

However, he also writes that “while the reasons above are sufficient to deny the applicants’ motion, the affidavit of Michael Xiao…show that the documents referred to in the Musura affidavits … are outdated and do not reflect the supplemental information in respect to HD Mining’s operations provided to the Ministry of Energy, Mines and Natural Gas.”

In his submission to the court, Xiao says that HD Mining was incorporated in June 2011. On June 30 of that month, the newly formed company submitted a Notice of Work application for the Murray River 100,000 tonne bulk sample, based on the work of Dehua and Norwest Corporation but because the major stakeholder in HD, Huiyong Holdings, does longwall mining they began to investigate the possibility of not doing the bulk sample as a separate and distinct piece, but instead the bulk samples should be collected “as part of the in-seam roadways to be developed to facilitate the creation of the working phase for longwall mining,” says Xiao, and in November the company met with the Ministry to discuss their new plans, and in January of 2012, they submitted a supplement to the Notice of Work Application, including the updated plans.

On March 15, 2012, HD Mining received their Bulk Sample permit, based on the new plan to do the bulk sample as part of building the in-seam roadways.

However, while HD Mining appears to have won this battle, they still need to fight the war as the Federal Court granted the International Union of Operating Engineers, Local 115, and the Construction and Specialized Worker Union (Labourers), Local 1611, leave to pursue a judicial review of decisions made by federal officials earlier this spring, which authorized the mine’s use of temporary foreign workers for a two-year period.

“This litigation has been ongoing for quite some time, and we are pleased to finally move into the final stage,” said Penggui Yan, Chair of HD Mining in a release. “We are confident that government officials did nothing wrong in issuing these authorizations, and we believe the federal court will ultimately reject the unions’ claims.”

The review will investigate how and why the Human Resources and Services Development Canada (HRSDC) granted HD Mining permission bring over 200 temporary foreign workers for their 100,000 tonne bulk sample at the $300 million Murray River coal mine, near Tumbler Ridge, B.C, and determine if HRSDC made errors issuing LMOs to HD Mining.

The unions say that HRSDC failed to ensure that there weren’t Canadians qualified to do the jobs. Last month, it was revealed that some applicants for the position had many years of underground mining experience. However, HD Mining argue that these workers did not have experience in longwall mining, a mining technique that has not been practiced in Canada for nearly forty years. The case is expected to be heard next month.