Didipio villagers appeal SC ruling on Mining Act

Alecks Pabico
Philippine Center for Investigative Journalism
April 25, 2006

http://www.pcij.org/blog/?p=861

RESIDENTS of Bgy. Didipio in Kasibu, Nueva Vizcaya have availed themselves of one final pleading to urge the Supreme Court to reconsider its March 30, 2006 decision dismissing their petition to declare the Mining Act of 1995 unconstitutional and the Financial and Technical Assistance Agreement (FTAA) awarded to Climax-Arimco Mining Corp. (CAMC), recently renamed Australasian Philippines Mining Inc., illegal.

Filing a motion for reconsideration yesterday, the Didipio Earth-Savers’ Multi-purpose Association (Desama), whose members are directly affected by the area of operations of the Australian mining firm’s FTAA, contended that the SC ruling erred in delegating the power of eminent domain — the power of the State to forcibly acquire private property for public use — to mining operators.

Desama argued that only the State exercises eminent domain powers except when a private entity is authorized to operate a public utility.

“How could Climax Arimco be given such power when it is a foreign mining corporation whose primary interest is for private gain and not for public benefit?” asked Peter Duyapat Sr. The Desama leader, a member of its board of directors, also criticized the SC ruling for depriving them of their right to decide on what will benefit them the most and at the same time will best sustain the environment.

Desama counsel, Atty. Melizel Asuncion of the Legal Rights and Natural Resources Center (LRC), also pointed out that the power of eminent domain has restrictive exceptions. Under Section 9, Article III of the Constitution, the valid exercise of the said power, she said, requires the (1) taking of a private property whose purpose must be for (2) public use which should be made (3) upon payment of just compensation.

“The Court’s ruling implies that private property can be taken without just compensation and for private gain,” she said.

In its March 28 decision penned by Associate Justice Minita Chico-Nazario, and promulgated two days later, the Court’s First Division acknowledged that Section 67 of Republic Act No. 7942, or the Mining Act, is a “taking” provision but that its review of mining laws, particularly Presidential Decree No. 512 passed into law on July 19, 1974 to achieve full and accelerated mineral resources development, showed that such a grant of authority to exercise eminent domain to mining operators is deemed already incorporated in the Mining Act.

The Court also justified that the taking in the case of mining operators is valid because of its public-use character. “Mining is an industry which is of public benefit,” the Court declared, seeing its pivotal role in the economic development of the country as expressed in Presidential Decree No. 463:

WHEREAS, mineral production is a major support o the national economy, and therefore the intensified discovery, exploration, development and wise utilization of the country’s mineral resources are urgently needed for national develoment.
Section 76 states that:

Entry into private lands and concession areas — Subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein:
Provided, That any damage done to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated as may be provided for in the implementing rules and regulations:
Provided, further, That to guarantee such compensation, the person authorized to conduct mining operation shall, prior thereto, post a bond with the regional director based on the type of properties, the prevailing prices in and around the area where the mining operations are to be conducted, with surety or sureties satisfactory to the regional director.

Desama however is contesting such claim that mining operations will be for the public benefit, noting that the Mining Act “obliges the Philippine government to ensure that mining contractors do not come out of the mining venture poorer thatn when they came in.”

“The law does not provide for the government’s equitable share of the mining contractors’ profit,” argued Asuncion. On top of this, she said, mining contractors enjoy incentives as corporate tax and duty holidays from the Board of Investments. Those holding FTAAs like Climax-Arimco, are allowed to recover their pre-operating and property expenses before giving the government its share in the net revenue, which Asuncion said, are “nothing but levies — taxes, duties and other fees that are not part of the investment return.”

Aside from the “dubious” public benefit, Desama also questioned the lack of a just compensation provision in the mining law to comply with the requirement of the legal exerise of eminent domain. Desama claimed that the SC ruling erred in equating damage compensation to just compensation.

The Court said the Section 76 of the Mining Act and Section 107 of Department Adminstrative Order (DAO) No. 96-40 issued by the Department of Environment and Natural Resources provide for the payment of just compensation.

But what the law and its implementing rules and regulations provide are only damage compensation in actual mining operations and/or the installation of machineries and other mining facilities, said Asuncion. “Just compensation pertains to the full payment of a property taken away from the owner based on its fair market value.”

Desama’s motion likewise questioned why the Supreme Court en banc did not decide on its earlier petition, arguing that Section 4(2), Article VIII of the Constitution provides that an en banc ruling is mandatory in cases where the constitutionality of a law is being challenged.

The Court said there was no need for the Court en banc to to tackle Desama’s case since the First Division did not declare any law or regulation unconstitutional and merely adopted its decision in the La Bugal B’laan v Ramos case reversing its earlier ruling declaring the Mining Act unconstitutional.

Despite being the last pending case before the Supreme Court, the LRC does not deem the motion for reconsideration as a culmination of the Didipio people’s struggle against mining. “The legal avenue is only one of the available paths in support of the struggle not only of the people of Didipio but of thousands of indigenous peoples and their communities throughout the country who are losing their ancestral lands in the face of the government’s aggressive push for mining,” said Jocelyn Villanueva, LRC executive director.

Assailing the government’s assertions of the promised economic benefits from the mining industry, Villanueva claimed that this is just a “myth.” “The Mining Act will only enrich mining operators at the expense of the Filipino people.”

Villanueva added that the LRC supports the call of the Catholic bishops to repeal the Mining Act and is drafting an alternative mining bill as part of its legislative agenda.

The Didipio people’s battle against mining interests in their area has been ongoing since then Pres. Fidel v. Ramos, on behalf of the government, entered into an FTAA with then Arimco Mining Corp (AMC) in June 1994 to mine about 37,000 hectares of land in Nueva Vizcaya and Quirino provinces. A 100-percent Australian-owned mining company at the time the FTAA was signed, AMC subsequently consolidated with Climax Mining Ltd., another Australian mining firm, to form CMAC.

Less than a year later, on March 3, 1995, Ramos signed into law RA 7942 (the Philippine Mining Act).

In September 2001, the villagers filed a demand letter with then DENR Sec. Heherson Alvarez to cancel CAMC’s FTAA. A second demand letter was sent to Gloria MAcapagal Arroyo in June 2002.
On May 6, 2003, Desama filed a petition for prohibition and mandamus, with prayer for a temporary restraining order, before the Supreme Court. The SC en banc resolved to return the case to the First Division, which dismissed Desama’s petition and upheld the constitutionality of the mining law.

Desama has also filed a petition for mandamus before the regional trial Court in Bambang, Nueva Vizcaya to compel the DENR to cancel CAMC’s environmental compliance certificate (ECC) on the grounds that it did not comply with the mandatory requirement of the mining law and the Local Government Code regarding the prior acquisition of consent from local governments concerned.

Both the Sangguniang Barangay (barangay council) of Didipio and Sangguniang Bayan (municipal council) of Kasibu did not endorse CAMC’s mining activities. Only the Sangguniang Panlalawigan (provincial council) has given its endorsement. CAMC has also gotten the approval of the local Sangguniang Kabataan, though it is not recognized as a local government unit.

The Regional Development Council (RDC) likewise rejected CAMC’s ECC application for a certification in October 2000, a decision sustained in a February 2001 special meeting, as the proposed project is located within a critical watershed area.

Philippines Supreme Court upholds legality of foreign mining project

03 April 2006

http://www.channelnewsasia.com/stories
/afp_asiapacific_business/view/201275/1/.html

MANILA : Australia's Climax Mining has won a major legal challenge which has held up a copper-gold mining project in the Philippines for more than 12 years, court officials say.

The high court dismissed a suit by a non-government organisation (NGO) seeking to stop Climax-Arimco Mining Corp. and the environment and natural resources department from proceeding with the Didipio project, according to the court ruling released to the press on Monday.

The NGO, called the Didipio-Earth Savers' Multi-Purpose Association Inc. had asked the court to compel the government to repeal the 1995 Mining Act and declare the department's financial and technical assistance agreement (FTAA) with Arimco illegal.

The court instead ruled there was no basis for the contention that the mining law failed to provide just compensation for privately-owned properties encompassed by the 23,895-hectare project site in the northern province of Nueva Vizcaya.

It said the authority of the government to enter into FTAA agreements with foreign companies which would then manage the mine was already established by a prior Supreme Court ruling in 1997 that upheld the constitutionality of the Mining Law.

The Didipio project was first launched in 1994 but it has not gone past the exploration stage due to the legal challenges.

President Gloria Arroyo earlier this year sought to reassure nervous businessmen in the Philippines that their investments in the resources sector were safe amid an anti-mining campaign by Roman Catholic church leaders.

Arroyo is pinning her hopes on the recent revival of the industry, which expects 2006 turnover of about five billion dollars after being in the doldrums for two decades, to bring jobs and make a dent in widespread poverty.

The government is aiming for 1.5 billion dollars in new mining investments this year and 6.5 billion dollars over the next five years.