Judge James Russell said Friday in his ruling denying the injunction that any alleged loss the unions claim will be suffered by the Canadian labour market remains nebulous.
The International Union of Operating Engineers Local 115 and Local 1611 of the Construction and Specialized Workers Union wanted the injunction in place until their broader legal challenge against the mining company's foreign worker permits can be heard at a judicial review.
HD Mining International Ltd. is expecting about 60 Chinese workers to come to Canada — some as early as this weekend — to join 15 foreign miners already working at the proposed coal mine near Tumbler Ridge, B.C.
The unions alleged HD Mining's plan to hire 201 workers and pay them considerably lower wages than what Canadian miners earn for comparable work will depress the labour market, causing irreparable harm.
"Without specifics and evidence from qualified witnesses, this is conjecture," Russell said in his written ruling, adding it's not clear whether the unions' position is that they or individual members would suffer harm.
The unions have argued there are qualified Canadians who can do the work at the Murray River project in northern B.C.
"The court is provided with no direct evidence from anyone who might be interested in these jobs," Russell said. "The people who everyone is concerned about, including it seems the government of Canada, do not give evidence and there is no explanation for this."
Federal Human Resources Minister Diane Finlay has responded to the controversy by saying Canadians must always have first crack at job opportunities in Canada and that the process that led to temporary work permits being granted to the Chinese workers is under review.
"It is not clear how, practically speaking, these imminent arrivals could be stopped at this stage, and there is no doubt that the scope of the relief requested by the applicants would cause a significant disruption, not only for HD but for the workers who have qualified and are authorized to come with visas and letters of introduction," Russell said.
More temporary foreign workers are expected to enter Canada in May, and Russell said it would be a serious issue if the company brought in even more foreign workers before the judicial review process is complete.
"If HD were now to depart from its indicated scheduling to try and evade the review process that is now underway there would likely be serious consequences for the company," Russell said.
Mark Olsen, spokesman for the Construction and Specialized Workers Union, said he takes that as a partial victory although he's disappointed the judge did not grant an injunction.
HD Mining is asking the Federal Court of Appeal to throw out the case entirely and is also appealing a decision that granted the unions standing to challenge the worker permits.
Earlier this week, the unions released documents showing the Chinese-owned mining company expects it could be four years before any Canadian miners are hired and more than 14 years before all the foreign temporary workers return home.
Lawyer Alex Stojicevic, who represents HD Mining, said the unions have a political agenda that doesn't have much to do with the public interest.
"What that agenda is you'll have to ask the unions," he said.
"We're confident that they've done more than what they were required to do," he said of the mining company. Ultimately, at the end of this process it will be discovered that the decision to grant them the right to bring in these workers was a reasonable one."
Jinny Sims, federal NDP critic for Immigration, Citizenship and Multiculturalism, said that while the federal government has called for a review of the temporary foreign worker program, there's no word on what criteria will be used.
"We don't know who's doing the review, what the criteria is, what the framework is and what it is that they're reviewing," she said.
Sims said it's clear the program isn't designed to bring in temporary workers if they're in Canada for more than a decade.
"There's another side to this coin as well — where has the investment been from both the federal and provincial governments into investing in the training, in the skills area, the trades area (for Canadians?)"
B.C. Jobs Minister Pat Bell has defended HD Mining's plan to use temporary foreign workers and recently suggested the jobs linked to exploration work are slated to last up to eight months.
Meanwhile, the United Steelworkers union is calling on Premier Christy Clark to withdraw her support of HD Mining, which required workers to speak Mandarin as one of their qualifications.
Note to readers: This is a corrected story. A previous version incorrectly reported 17 workers are at the mine.
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