Philippines Mining: Damning Conclusions

Published by MAC on 2012-10-08
Source: Statements, Dow Jones, Rappler, Business World

Statement of Timuay Locenio Manda

4 October 2012

"After the Death of my son, I call for justice, peace and unity in Bayog most especially within our ancestral domain."

(This is the authorized English translation of my statement originally drafted in the Visayan language.)

Exactly a month after I and my son were ambushed by unknown gunmen on September 4, 2012, a murder and frustrated murder cases were filed in court and further investigation is going on to determine the mastermind and motive of the ambush.

After the death of my son, I call for justice, peace and unity in Bayog most especially within our ancestral domain. I vow to continue my efforts for the recognition and respect of the rights of my Subanen tribe in spite the fact that this might block the interest of some groups who may want to eliminate me.

Since the day of the ambush, this is my first written statement, aside from the two text messages that I sent to trusted friends where I expressed my sentiments after the ambush. The first text messages stated:

"In my effort to assert our rights and to protect our people and ancestral domain, my beloved son was sacrificed. It is very painful and I thirst for justice."

The second text message was my answer to the message of condolences that I received from my friends which was:

"I vow to continue my struggle in order not to make my son's death in vain. I need your support in this most trying time of my life as a father and a leader."

A number of people asked questions by calling and texting me, but I only managed to answer a few questions because I was not yet ready to answer and give comments as I was at the peak of my anger and rage for the killing of my son. It was not even clear to me if they were media people or from whatever agency they came from.

Few days after the ambush, I was informed that newspapers and online news (internet news) reported a statement purportedly coming from me. I would like to make it clear to everyone that I did not issue any official statement since the incident and I am wondering why some people volunteered to issue a statement on my behalf when in fact, I instructed nobody. I wonder more why the signature in the statement was exactly the same as mine.

Since the ambush, I only signed three (3) documents. First, my statements taken by the investigators from the CIDG; second, my affidavit prepared by my lawyer; and third, the Barangay Certificate of the death of my son, where I was assisted (in making the certificate) by my former Barangay Administrator who is now working for a big mining company which entered in our ancestral domain without our consent.

I have read the said statement and a number of wrong information were contained in the statement. Even the school where my son was studying is not correct. My son was studying at Bubuan Elementary School and not in Datagan Elementary School as stated in the statement. Even if I was frightened by the incident, it was very clear to me where my son attended school, and I would never say it incorrectly.

The statement said that I am only against illegal mining. It is true that I am against all illegal activities, including mining. I believe that mining is illegal if it did not follow the process set by our laws. Our laws on mining and the Indigenous Peoples Rights Act (IPRA) clearly state that our consent as indigenous peoples is required in all projects that will affect us and our ancestral domains. So this means that all those who entered our ancestral territories without our consent are all illegal, even if they have sacks of papers to show that they are legal.

I strongly oppose the entry of people and companies who want to exploit the natural resources in our ancestral territories who do not respect our traditional laws and processes. If because of this assertion I am viewed as an anti-mining leader, so be it. But I want to make it clear that the issue I am struggling for is not about mining, but our rights as Indigenous Peoples. My efforts, together with my fellow leaders are to protect our ancestral domains for our children like Jordan. It is just very sad that our children have to die because of these efforts. Aside from Jordan, a number of children are orphaned and are suffering because their fathers have died defending their rights.

The ambush directed to me and my son is a blatant violation of our human rights and it created a very big damage to my family and the community. I ask all responsible agencies of the government to do everything they can to give justice to my son and to all victims of various crimes that occurred in Bayog.

I call on PNP-CIDG (Philippine National Police Criminal Investigation and Detection Group) to continue the investigation until all those who planned and who executed the ambush are arrested, tried and punished.

I am appealing to the NCIP (National Commission for Indigenous Peoples) to help our community in resolving the conflict among tribal leaders to prevent further chaos, and to fast track the issuance of the title of our ancestral domain. In relation to this, I also ask the national government to provide NCIP an adequate budget so that it can fast track the processing of our certificate of ancestral domain title and once and for all determine the rightful persons to decide on matters within the domain. Through this we can ensure the future of our children and avoid similar incident that killed Jordan. As long as conflicting claims remain, and as long as outsiders add up and fuel the conflict, more innocent children will suffer the same fate as Jordan.

I am calling on the mining companies and the small scale miners to temporarily stop operating and withdraw your armed groups to give peace a chance in our community, to lessen the fear of our women and children because of your intimidating firearms, and so that conflict between tribal leaders inside our community will be resolved.

My appeal to you does not necessarily mean that I oppose your mining activities but I am only asking some time so that we can process the titling of our ancestral domain until we are given the Certificate of Ancestral Domain Title (CADT), our Indigenous Political Structure (IPS) is confirmed, and our Ancestral Domain Sustainable Development and Protection Plan (ADSDPP) is crafted. Whatever be our plan, I'm hoping that you will fully recognize and respect it.

For hundreds of years the minerals remained beneath our ancestral lands and we did not touch them because we do not have the capacity to exploit them. We assure you that in the period that you will temporarily leave, the same minerals that you want to extract will still remain. It is not our culture to be greedy on things that come from Magbabaya (Almighty God) like the minerals. We can always share them according to our customs and according to the plan and process agreed by our tribe. If it is true that you have the legal papers, you should not worry if we call for a temporary stop or a moratorium of your mining operations.

The tribal council of our ancestral domain and I believe that it is not only mining which will give us development. A major portion of our vast and fertile land is also suited for agriculture. Our forest is still wide enough and can be a source of livelihood. Our land is fertile for agriculture and agro-forestry only that we lack the appropriate technology. We need help to develop all these resources while at the same time conserving it and protecting our environment.

I also appeal to you, my fellow Subanen who worked in mining companies, to respect the processes within our community and help explain to company owners and foreign investors on how to secure consent based on our culture and traditions. I also appeal to you to help resolve the conflict between the tribal leaders instead of taking only the side of the leaders who favour your intentions. Favoring them especially if they are the minority, only fuels additional conflict in our community.

I call on the Mines and Geosciences Bureau (MGB) to seriously enforce mining laws and prevent entry of people and companies to our lands without securing our consent that adheres to the process set by the guidelines on Free and Prior Informed Consent (FPIC). I vigorously call on the MGB to seriously investigate the companies and groups of people who are conducting mining within our ancestral domain.

I was informed that the Congress and the Senate have planned to conduct investigations about the ambush. I am happy about such moves, and I am asking that not only the mining issue shall be investigated, but other issues as well that happen inside our ancestral domain. We are the ones whose rights are violated, and whose lands are exploited, thus, we believe that we shall be the ones to be given importance in whatever investigations that will be conducted.

I thank the LGU (Local Government Unit) of the Municipality of Bayog, Zamboanga del Sur, and all other groups for extending support to me and my family.

Lastly, I thank the local, national and international NGOs that strongly demanded justice for me, my son Jordan, and all other Indigenous Peoples who were victims of human rights violations. I also thank their continuing support to all our efforts, especially during the time that we grieve for the death of our beloved son. I greatly hope that your support will continue especially in my effort to seek justice and to have a peaceful solution to the crimes and human rights violations happening to me and my people.

I also request all responsible agencies of the government like the Commission on Human Rights (CHR), the DILG and the DENR (Department of Natural Resources) as well as concerned NGO's that we will work together to solve the crimes and human rights violations that happened in the municipality of Bayog, most especially those that victimized my Subanen People.

Above all, I cannot forget, and would like to thank, the Council of Pigsalabukan Guhom de Bayog for grieving with us and for helping us seek justice for the death of Jordan and the ambush directed to me. I am asking the NGOs to support the actions and plans of the Pigsalabukan Guhom de Bayog Council so that peace and development will find its way in our community.

To affirm the veracity of this statement, I am affixing my signature and thumb-marks on this 4th day of October, 2012 at Conacon, Bayog, Zamboanga del Sur.

Timuay Locenio M. Manda
Gonotan, Pigsalabukan Guhom de Bayog
Chairman, Barangay Conacon, Bayog, Zamboanga del Sur

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Philex must pay for all damages of Padcal Mines disaster

Kalikasan PNE Press Release

5 October 2012

The Kalikasan-People's Network for the Environment (Kalikasan PNE) joined various groups in a protest action at the Philex's main office in Ortigas to hold accountable what they called "the worst mining disaster in the past two decades," and demanded Philex to pay for all immediate and long-term environmental and social costs they incurred.

Salient findings of an independent fact-finding mission on the recent series of tailings dam failures in Philex Mining Corporation's Padcal Mines revealed indications of massive siltation and probable toxic contamination in the Balog Creek and other tributaries down to the Agno River. 20.6 million metric tons of mine waste was released into the water ways, or 1,300 percent higher than the amount spilled during the Marcopper mining disaster back in 1996.

"An independent investigation has finally exposed the deceit of supposed experts from Philex, the Mines and Geosciences Bureau (MGB) and other institutions that support the claim that the mine-affected waters are safe. This massive amount of siltation definitely disrupted the functions of the affected aquatic ecosystems," said Clemente Bautista, national coordinator of Kalikasan PNE.

"There's no skirting the fact that Philex is entirely responsible, and must not only pay for the full ecological restoration of the affected environment, but also the indemnification of the affected communities. Philex must pay for the daily cost of living of every affected peasant, fisherfolk and miners' family for every day that they are unable to work due to the immediate and possible long-term effects of the mine wastes on their livelihood," Bautista noted.

Testimonies gathered by Cordillera People's Alliance (CPA) revealed that the Padcal Mine's workers, who have been redirected to the full-time emergency rehabilitation of the dam failures' impacts, have been exposed to hazardous and abusive working conditions.

"Philex's workers have been suffering for the irresponsibility and bungled response of the management, subjected to physically and mentally strenuous working conditions. River cleanup crews have no early warning system for subsequent tailings surges from the dam. Some are forced to work for 24-48 hours for lack of relievers. They should duly and promptly pay for the occupational health and safety of their workers, as well as their overtime pay and night differentials," asserted Bautista.

Kalikasan PNE along with other people's organizations are planning to conduct a follow-up scientific environmental investigation to confirm the effects of the siltation on the feeding and nesting grounds of fisheries, check the bio-indicators in the affected areas for toxicity, assess the mine's facility integrity and the health situation of affected workers and communities.###

Reference: Clemente Bautista | National Coordinator, Kalikasan PNE | 0922 844 9787

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CSOs release results of independent investigation on Philex's tailings spill

NASSA & CCCP press release

2 October 2012

On September 16-17, 2012, a fact-finding mission team, lead by the National Secretariat for Social Action of the Catholic Bishops Conference of the Philippines (CBCP-NASSA) and the Climate Change Congress of the Philippines (CCCP) together with representatives from Philippine-Misereor Partnership and its Northern Luzon Cluster, Caritas Baguio, Cordillera People's Alliance, Peace Foundation, Pambansang Kaisahan ng mga Magbubukid ng Pilipinas, Katribu Indigenous Peoples' Partylist, and Community Volunteer Missioners, conducted an independent investigation on the reported mining tailings leakage of Philex's Padcal Mine in Benguet.

The first leakage incident happened on August 1, 2012, and was immediately followed by three succeeding leakages within the same month after the mining corporation's failed attempt to plug the hole in Tailings Pond Number 3 (the only operational tailings dam in the mining site) that had been causing the spills. On August 2, 2012, the Department of Environment and Natural Resources (DENR) through its Mines and Geosciences Bureau (MGB), had suspended the mining operations of Philex Mining Corp. at Brgy. Padcal in Tuba, Benguet until the safety of its dam has been assured. DENR Secretary Ramon J. P. Paje confirmed that the suspension order remains in effect as of today.

Although Philex, the country's largest mining corporation, is already facing penalty charges amounting to 1B Pesos for violating the Clean Water Act and its own Environmental Compliance Certificate (ECC) and losing 30M per day from its suspension, the direct impact of the mining tailings to its immediate surroundings had not been given significant media attention.

Philex Chief Operating Officer Engineer Eulaio Austin Jr. assured during the first leak that "the water and sediments that have been discharged from the tailings pond are safe and non-toxic." However, the FFM team were able to interview Chairman Amuasen, a three-term elected barangay official in Benguet, a member of the Mine Rehabilitation Fund Committee (MRFC), and chairperson of the Barangay Disaster Risk Reduction Management Council (BDRRMC). Chairman Amuasen said that around 30 families in three sitios - Sitios Calaguian, Tayum and Pangbasan - are affected by the mining leak. He alleged that toxic wastes can be seen in the dried and poisoned plants, trees and branches where the discharges from the dam flowed. Mutant tilapias were also found in the pond. They looked different, with big heads and small bodies, which the workers eat. He said that mining wastes include sand and minerals.

Chairman Amuasen added that the mining leak had negatively affected the livelihood of the local communities who mainly depend on fishing and gold panning in the river. Fisher folks have stopped fishing since August 2, 2012 because they cannot catch anything at all, at the outlet of the Balog River. They also cannot opt to fish in farther areas because it is beyond their fishing boundary.

The barangay had already distributed relief goods to the Pangbasan residents, and they learned that Philex did the same, for a couple of times.

The FFM team went to Hon. Nestor D. Domenden, CESO V, Regional Director, BFAR Region 1 in San Fernando, La Union to inquire about the fish samples in San Roque Dam. According to Domenden, the first testing done on fish samples after the mine tailings leak was on August 6, 2012. Fish samples for Tilapia and Carp were taken from a depth of 50 meters in the 3 stations of San Roque Dam; Spillway, middle part, and headwaters. The tests made were for presence five heavy metals: Lead, Arsenic, Copper, Cadmium and mercury. Results showed that traces of heavy metals were found in the fish samples, but "level of toxicity is not harmful for human consumption hence, is allowable." The findings had lifted the fishing ban after it was implemented when the first report of leakage had surfaced. However, only pelagic fishes such as the Tilapia and Carp were tested. There was no testing done on other fish species in the dam such as gurami, catfish, dojo and shrimps. No sample was taken from the deepest part of the dam which is at 130 meters. San Roque Dam is 280 meters above sea .

When the FFM team asked if laboratory tests were made on the mutant tilapia existing in some ponds inside the Philex mining compound which indicates effect of longer exposure to chemicals from heavy metals, Domenden admitted being unaware of any report about it. They do not know that there are mutant tilapias inside the Philex Mines.

There are around 45 families living near the merging point of Balog and Agno River. The area is populated by Indigenous Peoples (IP) community in Sitio Pangbasan, part of Barangay Dalupirip in the Municipality of Itogon, Benguet. Alipio Lictag, head of the Pangbasan Goldpanners and Fisherfolks Livelihood Association served as representative of the community. According to Lictag, the IPs are not aware of the status of the tailings, its volume nor its impacts. The water level is still very high and the smell of the water is unusual, particularly during the leak.

The IP community relies on fishing as livelihood. The average fish catch is 25 kilos every 2 days for tilapia and 75 kilos /week for eel. Since the leak, fish catch decreased significantly. Tilapia catch is now down to 6 kilos every two days, while in areas near the mouth of Balog river, they cannot catch any fish anymore. This resulted in deprivation of livelihood opportunities particularly for this community near the mouth of creek where the tailing spill was concentrated.

Philex delivered relief goods to the community right after the incident. The local government of Itogon did the same. However, since their livelihood base is not yet rehabilitated, they are still unable to sustain the basic needs of their families. NASSA, as part Church ministry for emergency response, had arranged to supplement the delivery of relief goods for the affected families.

The community had already submitted a list of their damaged properties to Philex due to the tailings spill. The mining company's representatives claimed that compensation to damages are being processed and will be ready to be granted to them in due time.

For more information and detailed report on the Fact-Finding Mission, kindly refer to the paper entitled, THE PHILEX MINE TAILINGS LEAK OF 2012: AN INDEPENDENT FACT-FINDING MISSION REPORT by The Catholic Bishops Conference of the Philippines - National Secretariat for Social Action, Justice and Peace (CBCP-NASSA) * Climate Change Congress of the Philippines (CCCP)* Philippine Miserior Partnership Inc. (PMPI) and its Northern Luzon Cluster * Peace Foundation, Inc, * Pambansang Kaisahan ng mga Magbubukid ng Pilipinas (PKMP) * Katribu Indigenous Peoples' Partylist * Cordillera Peoples Alliance (CPA) * Caritas Baguio and Community Volunteers Missioners (CVM).

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Factfinding Conclusions and Recommendations

Based on the outcomes of focus group discussions, key informant interviews and technical assessment of FFM scientists, the following major conclusions were drawn:

1. The integrity and safety of the TP3 structure is questionable. Engineer Virgilio Aniceto noted that the Tailings Pond 3 was commissioned in 1992. With a lifespan of 18-20 years, it should have been decommissioned as early as 2010, especially because the dam crest went beyond the permitted elevation of 600 meters above sea level.

2. The Philex Mining area of operation is also criss-crossed by fault lines. The most notable of the fault lines are the Albian and Sta. Fe faults. Thus, it is not surprising for Philex gold and/or copper production to be associated with geo-hazard risks vis-à-vis volcanic or earthquake activity. This already occurred during the Philex mining accident in 1992, when the foundation of the TP2 collapsed and reportedly discharged 80,000 metric tons of mine wastes, affecting large tracts of prime agricultural lands in Pangasinan. This led to the payment of damages to the provincial treasury of Pangasinan and the consequent construction of TP3. The 2012 Philex Mine Tailings Spill is Massive. Dr. Esteban C. Godilano, CCCP resident scientist declared that the Philex Mines Tailing spillage is massive. The MGB estimate was 20.6M metric tons, which is 1,300% higher than the Marcopper accident in Boac, Marinduque of 1.6M metric tons. After 10 years of the accident, the Boac River is still dead. Recent studies showed that coastal sediments near the river outflow contains high amount of copper, manganese, lead and zinc.

3. Claim of Biodegradable Mine tailings is questioned. In a six-page report dated August 8, Reynold Yabes, Philex Mill Division chief, stressed that the chemicals used in processing of ore were biodegradable, saying that the amount of the reagents carried with the tailings during actual operations were "extremely small or negligible." Yabes also noted in his report that Philex uses a collector or sodium isobutyl xanthate (SIBX) at concentration of 0.002 percent weight, dowfroth and/or nasfroth frothers at 0.000535 percent wt., and the natural chemical lime at 0.0682 percent wt. as regulators of pH, which tells of the acidity level in water, in its flotation process.1

Negligible? The question is, "How much kg of the reagents are used for every ton of ore they are processing?" Thus this is very critical. Philex reported tonnage mined in 2011 totalled 9.49 million tonnes, and 9.36 million tonnes in 2012.2 With the DENR estimate of 163 M metric tonnes of tailings in TP3, this figure can be multiplied to the amount of reagents to get the approximate reagents loadings in TP3, the resulting figure will not anymore be negligible.

Aside from the reagents used, Philex or DENR need to disclose the associated heavy metals in the Padcal production. This is very important. If they do not, it is assumed the other heavy metal effluents include lead, arsenic, cadium, mercury, sulphur, etc.

Engineer Aniceto and Dr. Godilano raised the issue of toxicity and hazards posed by the Philex mine tailings. The question is reinforced in the Material Safety Data Sheet of Sodium isobutyl Xanthate solution that follows

• Hazards identification. Classified as Hazardous, according to ASCC Criteria Risk Phrases. Contact with acids liberates toxic gas. It is harmful, there is danger of serious damage to health by prolonged exposure through inhalation.
• Toxicological Information. Health Hazard Toxic - irritant. This product has the potential to cause adverse health effects.
• Ecological Information. Environment-Xanthates hydrolyse (react with water) readily. If discharged to waterways, xanthates may persist for several days, slowly in the neutral environment. Bioaccumulation is unlikely. Highly toxic to aquatic life. May form complexes with heavy metals, increasing their uptake, i.e. fish may accumulate heavy metals more readily.
• Disposal Considerations. Waste Disposal for small amounts, absorb with sand, vermiculite or similar and dispose of to an approved landfill site. For larger amounts, contact the manufacturer for additional information. Prevent contamination of drains or waterways as aquatic life may be threatened and environmental damage may result.
  In fact, an FFM photo of TPI that was decommissioned in 1981 and declared a forested area reveals negligible vegetation and the area remaining to be unproductive and a wasteland.

4. Loss of Fishing and Mining Grounds and the consequent loss of incomes and safe source of food and water. Residents of barangay Pangbasan, Dalupirip reported damages caused by an overflow in TP3. The barangay council and the MDRRMC reported damages to property that includes fish traps, water pumps and panning equipment. Lost livestock includes goats while crop damage includes damaged trees and root crops.

The MGB declared that anything discharged through Agno River goes to San Roque Dam in San Manuel, Pangasinan. The Balog and Agno River are heavily polluted. Fishers and residents complain of lost fishing and mining grounds, of foregone earnings and the loss of safe food and water source.

There is also the concern over the safety of the fishcatch in the SRD. Only pelagic fishes such as the Tilapia and Carp were tested safe for human consumption during the first spill. No testing was done on other fish species in the dam. FFM members learned that different fish species caught in the SRD are being sold to nearby market and communities.

5. Exposure to health and weather and toxic hazards of mine workers and community residents doing the clean-up operations. Having to handle toxic chemicals and mine tailings during the rainy season, workers and community volunteers for the clean-up are exposed to health, weather and toxic hazards. Philex clean-up of the environment is premised on non-toxic contaminants.

6. Non-payment of taxes to the LGU.

Mayor Camantiles also repeatedly asked Philex Mining Corporation to pay accumulated business taxes balance since 20024. For 2011 alone, Php148,134,354.82 in business tax balance including surcharge has been issued5, while Php158,138,210.44 is the estimated balance for mayor's permit fee on copper/ silver/ gold mining operation6. The company has refused to pay the municipality citing the settlement of boundary disputes between the municipalities of Itogon and Tuba as a requisite for payment of taxes.

Mayor Camantiles said the boundary disputes issue is not a substantive reason for Philex not to pay its taxes because the company's operation is not affected by the boundary dispute. He also cited a Memorandum of Agreement (MOA) with Tuba town agreeing to share equally on the taxes to be paid by Philex.

The Philex Mining Corporation proceeded with their constructions (e.g. are TP1, 2 and 3) after being issued with the ECC, without securing the necessary building and safety permits and the payment of accumulated taxes to the LGUs.

7. SRD becoming a TP4 for Philex Mine Tailings and threatening downstream farming and fishing communities. According to Sec Paje, discoloration from Balog Creek leads to Agno River, then to San Roque Dam becomes less severe from the point of origin. This is due to the dam's dead storage. All the silts and mine tailings will go there.

The SRD virtually becomes a TP4 for Philex Mining Corporation. The heavy siltation will have its toll on the lifespan of the SRD and to its major functions.

Also, dams have the potential to create an environment within the impounded waters that may increase dissolved concentrations of chemicals known to be highly metal-laden. Mine effluents in the SRD released to the Agno River drains to Lingayen Gulf, Agno River is 290 kilometers from Mount Data in Benguet and Mountain Province down to the river delta in Lingayen, Pangasinan. One of its branches goes to Tarlac province. Pangasinan and Tarlac are major rice and fish producing provinces. The SRD will have to be dredged and cleaned to restore its capacities and environment safety.

8. Weak technical capabilities and coordination among LGUs and agencies to undertake effective monitoring of mining operations and to address mining accidents. Laboratory tests, technical personnel and budget support need to be increased.

Major Recommendations:

1. There is a need for an immediate and impartial investigation on the impacts of the spill to the watershed, the people and the impact communities:
a. Technical assessment on the structural safety of the TP3 given its terminal life span and vulnerabilities to climate change and geo-hazards. The status of TP1 and TP2 should also be reviewed for strong compliance to rehabilitation of its environment;
b. Regular and continuing laboratory testing for water, fish and environment quality and for heavy metals contamination of the TP3, Balog River, Agno River and the SRD. Bathymetric survey on the collapsed TP3 and the SRD needs to be immediately undertaken; and
c. Conduct impact studies on rice farms, irrigation system and the downstream communities where the mine tailings flow from San Roque Dam to Agno River and to the provinces of Pangasinan and Tarlac.

2. Provide immediate relief, livelihood assistance and compensation to affected families for damage to properties, crops, livestock, animals and foregone incomes. Ensure easy access, safety and coordination of affected communities to the government and CSO. Organize fishers and affected communities to participate in assessment and planning for relief and rehabilitation work.

3. Need to further enhance capabilities of local communities, LGUs and local agencies to undertake monitoring and technical assessment of mining operations and to address mining accidents in the areas. There should be strong inter-agency and CSO coordination. There should also be capacity building on community disaster preparedness and management.

4. Need to ensure compliance with environment standards and to local government clearances and payment of due taxes to Itogon and Tuba municipalities.

5. Undertake clean up and rehabilitation of the entire impact and watershed area. Ensure massive information dissemination and safety measures for persons and volunteers who will engage in the clean-up, reforestation and rehabilitation of the areas.

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Decommission Philex TP3 and Justly Compensate, Rehabilitate Affected Communities

Cordillera Peoples Alliance (CPA) press release

28 September 2012

BAGUIO CITY-In a media briefing today the Cordillera Peoples Alliance and Amianan Salakniban called for the immediate decommissioning of Philex's Tailings Pond 3, and for rehabilitation and just compensation be urgently carried out for affected communities like Itogon, Tuba, and communities downstream of the Agno River, such as Pangasinan, which hosts the San Roque Dam.

"These are our urgent demands. We are also challenging Philex to cooperate, be transparent and immediately open its mining compound and allow concerned organizations like CPA, including the media, to conduct independent fact finding and environmental investigation. With its own disclosure of 20 million metric tons (MMT) of mine tailings released from TP3 since the breach was first reported, the DENR should immediately conduct tests and analyse the samples it obtained, disclose the process and publicise the chemicals present," said CPA deputy secretary general Santos Mero. DENR earlier disclosed it chemical testing was not done because its machine broke down, but this is not an excuse.

Mero explained that unless TP3 is decommissioned, the San Roque Dam downstream of the Agno River will become the catch basin and this poses serious threat. "Imagine all the mine tailings and sediments that will accumulate at SRD," he said. As early as August 3, a NAPOCOR hydrologist observed the discoloration of water coming out of the turbines of San Roque Dam when his team inspected the dam. "It was like muck (burak), a dirty grayish material that did not seem to mix well with water," he said.

In the media briefing, geologist Ric Saturday Jr. of AGHAM clarified that contrary to Philex's description, the materials discharged from TP3 resulting from the dam failure are not simply "sediments" but mine tailings, and that the events are not simply "sediments discharge incidents." Saturday added that as per MGB report, the 20 million MT mine tailings released since August roughly translates to 400,000 metric tons/day, assuming 50 days since the first leak on August 1. "Philex tailings spill is 47 times the garbage generated in Metro Manila (at 8,500 metric tons/day) and 12.5 times larger than the Marcopper tragedy in 1993 in Marinduque. MGB itself disclosed that the Marcopper tailings spill is 1.6 million metric tons." He explained further that the 20 M metric tons mine tailings is 14 times the average milling rate of Philex (at 27, 500 metric tons/day), which would translate to 16, 667 mt/hour, or, imagine 1,667 dump truck loads (at 10 mt each) of mine tailings every hour!Saturay further explained that 20 million metric tons is equivalent to 20 billion kilograms, and, if one was to dump all these in one hectare of land or open space, the mine tailings would be 800 meters thick.

"If structural and foundation failure caused the breach in the penstock, these could have been prevented through periodic monitoring and maintenance, ground monitoring and treatment-and Philex actually affords to do all these," Saturday explained.

Also present during the briefing was Engr. Vergel Aniceto, Fourth Nominee of KATRIBU Indigenous Peoples Partylist. He reiterated that Philex must pay its dues and taxes to Tuba and Itogon municipalities, where its operations are. In fact, Tailings Dam 1, 2 and 3 are all located in Itogon.

Itogon Mayor Oscar Camantiles said the TP3 tailings leaks has affected the livelihood of more than 34 families living downstream of the Agno river in sitios Pangbasan, Pao and Daynet.

"While Philex started operations in 1958, it was only in 1967 that its Tailings Dam 1 operated. DENR records say that its useful life is only 10 years but it took 14 years before Philex decommissioned TP1 in 1981. The Tailings Pond 2 was commissioned in the same year. In January 1992, the dam walls of Philex TP2 collapsed because of foundation failure, resulting to the release of 80 million metric tons of tailings," explained Aniceto.

While Philex boasts of being an international model of responsible mining,being awarded an International Standard Organization (ISO) 14001 certification, the TP3 dam failure, is a clear account of Philex's negligence and unsafe practices. In fact, it shatters the myth of safe and responsible mining harped by large mining companies.

References:
Santos Mero
CPA (0915-2054262)

Ric Saturay Jr.
AGHAM (0922-8412065)

Engr. Vergel Aniceto
KATRIBU Indigenous Peoples Partylist (0920-3968707)

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Philex, not ‘Force Majeure,' responsible for mine disaster

Kalikasan PNE Press Release

27 September 2012

The Kalikasan People's Network for the Environment (Kalikasan PNE) disputed claims of Philex Mining Corporation that the recent dam failure incidents in its Padcal Mine in Benguet was a Force Majeure, stating that the company failed to erect proper structures to ensure safe mining operations.

Philex recently released a statement blaming the spill incident on the heavy rains and absolving itself of responsibility in the major mining disaster that released 80 million metric tons of mine tailings or wastes.

"Philex has arrogantly resorted to blaming God for the negligence of its Padcal operations that resulted in the massive pollution of Balog River and other connected water bodies. It clearly did not ensure the integrity of its tailings pond in its pursuit to maximize its operations, and must therefore be punished for its crimes to the people and the environment," said Clemente Bautista, national coordinator of Kalikasan PNE.

A breach in the lower portion of the Padcal Mine's Tailings Pond 3 (TP3) resulted in at least 5 major spillings from August 1 to September 13. TP3 was commissioned in 1992 with the Department of Environment and Natural Resources estimating its life span to be from 18-20 years.

"The tailings dam was used beyond its lifespan estimated to be only until mid-2012, but was pushed by Philex to be until 2014 when it discovered an increase in proven reserves. It is this greed by the country's foremost so-called responsible miner that resulted in the tailings dam's structural compromise, not Force Majeure," Bautista pointed out.

PAGASA reported as early as June this year that the Pacific Ocean is trending towards a monsoon-influenced El Niño condition that would result in above normal rainfall conditions. Yet, "despite warnings about increased rainfall and typhoons, Philex did not disaster-proof its facilities," added Bautista.

According to the Defend Patrimony Alliance against Mining Liberalization, downstream communities are suffering from the massive siltation triggered by the spill. Siltation in the affected rivers drove away the fishes, and increased water levels that prevented small-scale miners from panning.

"There is a need for an independent environmental investigation to immediately assess the situation at the Padcal Mines and the necessary redresses, but this is being prevented by the Philex management. The company has prohibited investigations on the dam failure by outside groups, and instead disseminated its own unacceptable explanations for the incident," the Defend Patrimony said in a statement.

Kalikasan PNE and Defend Patrimony reiterated that Philex must be fined and its Padcal Mine be permanently closed as its present state will surely threaten the environment and the people in nearby areas. The groups also pointed out that company's track record of environmental crimes since 1992 is enough basis to cancel other Philex projects, including its new $1.2-billion Silangan Project. ###

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Philex to Contest Imposition of Fine Over Mine Tailing Leaks

Dow Jones Newswires

27 September 2012

Philex Mining Corp. said Thursday that it will contest the government's imposition of a 1.03 billion Philippine peso ($24.6 million) fine on the company following a series of mine tailing leaks at its Padcal copper-gold mine in northern Philippines.

Following a month-long investigation on the spill that began late July, the Mines and Geosciences Bureau said Philex should pay the fine, citing a provision in the Mining Act of 1995.

The agency, however, absolved the company of any fault in the leaks.

The imposition of the fine could weigh further on Philex's finances, with the company projecting a net profit this year of only around 1.5 billion to 1.7 billion pesos following the spills, compared with a previous forecast of 4 billion pesos.

The company's operations have been suspended since early August and could remain suspended until the end of the year.

"A fine would connote negligence or a violation when there was none. That's why we have to contest the fine," Philex spokesman Mike Toledo said in an interview.

Mr. Toledo said Philex would exhaust all administrative remedies to contest the imposition of the fine.

"But if for some reason that's not possible, the alternative would be to seek relief from the courts," he said.

In a statement to the stock exchange, Mr. Toledo said "it's grossly unfair to penalize Philex and impose a huge fine on it when the government agency imposing the fine itself has confirmed that the company is just a victim of a force majeure event over which it has no control."

According to Mr. Toledo, "one of the most basic principles of fairness and of law is that no party should be held responsible or be penalized for events over which it has no control."

Still, the company is prepared to fully finance the rehabilitation of areas and waterways affected by the leaks.

Mines and Geosciences Bureau chief Leo Jasareno said the total weight of discharged solids from Padcal's tailings pond has been estimated at 20.69 million metric tons.

Based on a tailings fine of 50 pesos/ton as provided by the Mining Act of 1995, Philex will have to pay a fine of 1.034 billion pesos, Mr. Jasareno said.

"Under the Mining Act, your tailings must be fully contained within the pond. From a technical point of view, Philex wasn't able to do that and therefore must pay," Mr. Jasareno told reporters.

According Mr. Jasareno, there's no provision in the Mining Act qualifying that the tailings fine could be waived in cases where the leak is caused by force majeure.

"Just for dirtying the environment with those sediments that spilled, that's what the fine is for," he added.

Write to Rhea Sandique-Carlos at rhea.sandique-carlos@dowjones.com

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No to Philex mining operations in Surigao, no to another Padcal, say Surigaonons

KLRC-KsK Press Release

24 September 2012

Surigao del Norte - Residents of barangay Anislagan, Placer municipality, Surigao del Norte denounce the plan of Philex Mining Corporation to have its Silangan Mindanao Projects fully operational by 2017.

The Department of Environment and Natural Resources very recently ordered the closure of Philex's Padcal mine in Benguet when its tailings pond broke down at least twice, and unleashed mining waste causing damage to property, livestock and crops, among others, reports from community and residents say. Based on data from the Mines and Geosciences Bureau, Philex holds Mineral Production Sharing Agreement (MPSA) No. 148-99-XIII from Silangan, and Silangan holds MPSA No. 149-99-XIII from Philex, covering 5000 hectares in Surigao City, and the three towns of Mainit, Sison and Placer, all in Surigao del Norte.

Anislagan Bantay Kalikasan Task Force Inc. (ABAKATAF) president and barangay councilor Ronnie Ormega said that mining companies that cause repeated environmental damage and that have a bad track record should not be given the privilege to extract finite mineral resources. "What kind of future that a company like Philex promises to bring to our country, our province and our community? Padcal is an undeniable example that it cannot contain its wastes, and it causes damage to people's livelihood," Ormega adds. ABAKATAF is a people's organization whose members are mostly farmers, who in 2010 challenged the mining exploration permits issued to Silangan Mindanao along with two other mining companies, and was the first group in the Philippines to be awarded a Temporary Environmental Protection Order by the court.

Lower Anislagan Farmers-Irrigators' Association, Inc. (LAFIA) president Daniel T. Gonzales adds that Barangay Anislagan is primarily agricultural, and has an existing irrigation system constructed by their organization in partnership with the National Irrigation Authority (NIA). "No mining permits, including exploration permit, should be given that will cover or affect our barangay given its agricultural character. It is clear in the new mining executive order (Executive Order No. 79) issued by the President that agricultural lands cannot be mined," says Gonzales.

Barangay Anasligan was also proclaimed a watershed by the Sanggunian Bayan of Placer as it supplies potable water to the whole municipality of Placer and another neighboring town.

Carl Cesar C. Rebyta of the Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth Philippines - a legal research and policy advocacy non-government organization that works to defend and protect the rights of indigenous peoples and rural poor communities in relation to land and natural resources - says, "Even the Mining Act of 1995 provides that proclaimed watersheds are closed to mining. We urge the government not to issue permits, or renew mining exploration permits that encroach into watersheds." Based on official records, the DENR renewed for the second time Silangan Mindanao's Exploration Permit No. XIII-013 on 30 September 2009, which is up for another renewal in 2013.

Contact:

Val De Guzman
val.deguzman@lrcksk.org
02-441-0858

or

Carl Cesar C. Rebuta
Cocoy.rebuta@lrcksk.org
09053272676

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Bullying the state

Dante Gatmaytan and Cielo Magno

Business World

30 September 2012

THE CHAMBER of Mines is relentlessly campaigning against the implementing rules of the Aquino administration's mining policy embodied in Executive Order No. 79. Their statement singled out Section 9 of the implementing rules as "patently illegal."

The Chamber cites section 32 of the Mining Act of 1995, as the basis of its complaint which provides in part that:

SECTION 32. Terms. -- Mineral agreements shall have a term not exceeding twenty-five (25) years to start from the date of execution thereof, and renewable for another term not exceeding twenty-five (25) years under the same terms and conditions thereof, without prejudice to changes mutually agreed upon by the parties...

The Chamber claims that under this section the terms of the agreements cannot be changed. Neither can the length of the agreement be reduced to less than 50 years. The Chamber is under the impression that it is entitled to a renewal of their agreements under the same terms for the same length of time.

The Chamber's position is incorrect. There is nothing in the law that unconditionally preserves the original terms and conditions of a mineral agreement. Section 32 suggests the possibility of changing the terms of the agreement. The renewal will be under the same terms and conditions "without prejudice to changes mutually agreed upon by the parties." This clause alone implies that the renewal presupposes a reexamination of the terms, not a mechanical approval of the old terms.

If the government believes that the terms of the original agreement should be altered, then it has every right to negotiate the changes. If the parties cannot agree on the new terms, then no new agreement will be signed. This is the way contracts are written-they ought to be mutually agreed upon by the parties.

There is no guarantee either that the renewed terms will be for another 25 years. The law speaks of a maximum number of years. Logically, a renewal may be for a shorter period of time.

Philex Mining senior vice president Mike Toledo claims that mineral agreements could be automatically renewed for another 25 years and revised only if mutually agreed upon by the parties. Toledo claims, that the rules still reduce the length of the agreements and are allegedly inconsistent with the Mining Act and purportedly in clear violation of the Constitution.

Again, the flaw in this argument is that it incorrectly places the mining industry in a superior position in the negotiations for access to resources. It assumes that the review or renegotiation of the agreements can happen only if the mining industry agrees to it. This is a misrepresentation of the law.

The exploitation of our natural resources is within the discretion of the State. It has the power to determine who will be allowed to exploit resources and how it is to be done. It makes no guarantee that these agreements will be automatically renewed for the same length of time. It is not for the mining companies to say whether they wish to review or renegotiate the terms of the agreement.

Furthermore, mining contracts are not ordinary contracts. They have potential social and environmental impacts and are imbued with public interest. They should be subject to constant review by the government. Permits, agreements, or contracts regarding the exploitation of natural resources are not impervious.

Mining exploration permits do not grant any permanent or irrevocable rights within the purview of the non-impairment of contract and due process clauses of the Constitution, since the State, may alter, modify or amend the same, in accordance with the demands of the general welfare (G.R. No. 135190, April 3, 2002). The State may pursue the constitutional policy of full control and supervision of the exploration, development and utilization of the country's natural mineral resources, by either directly undertaking the same or by entering into agreements with qualified entities. The State may not be precluded from considering a direct takeover of the mines, if it is the only plausible remedy generated by a gold rush. The State need be guided only by the demands of public interest in settling for this option, as well as its material and logistic feasibility (Id.).

In fact, the DENR (Department of Environment and Natural Resources) Secretary has the express power to approve mineral agreements or contracts and the implied power to cancel said agreements (G.R. No. 169080, December 19, 2007) for violations of the terms thereof.

Even the Financial or Technical Assistance Agreements do not involve mere contractual rights. They are impressed with public interest, and as such, the contractual provisions and stipulations must yield to the common good and the national interest (G.R. No. 127882, December 1, 2004).

The mining industry is asking the State to be allowed to exploit resources. It cannot make demands. Whatever concessions the State gives them should always be subject to the public interest.

That the government immediately relented and agreed to rewrite the rules to change Section 9 as well as two other provisions suggests that private interests can bully the State and public interest.

--

Dante Gatmaytan is an Associate Professor at the University of the Philippines College of Law.

Cielo Magno is a fellow of Action for Economic Reforms, Coordinator of Bantay Kita, a coalition for transparency and accountability in the extractive industry, and a member of the global steering committee of Publish What You Pay (PWYP).

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Aquino: Revised mining IRR published next week

by Rappler.com

26 September 2012

MANILA, Philippines - President Aquino said the revised implementing rules and regulations (IRR) of the mining policy will be published in a couple of days.

In a press briefing on Wednesday, September 26, President Aquino said, "We have to publish the amended form by next week," referring to the changes recently announced on the mining rules following a claim by the Chamber of Mines of the Philippines that certain provisions of the rules were "patently illegal."

"We clarified [the rules]...so it's consistent with [Executive Order 79 or] EO 79 and consistent with the Republic Act that governs [the] mining industry (Mining Act of 1995)," he said.

The changed provisions in the IRR pertained to the number of years of the mining contract and the permits for the adjacent areas current players are already mining.

"I convened the MICC (Mining Industry Coordinating Council) this week (September 24). With the MICC's economic cluster and the environmental cluster, we refined the language [of the IRR provisions]. It still have to see the final draft," he said.

Provisions no. 3, 7 and 9 were revised following the September 19 threat from the chamber that it would sue the government.

The industry players contested the initial IRR released last September 11 and published last September 14 in broadsheets.

They said it was illegal since Section 9 cut their maximum mining contract from 50 years to 25 years. They explained this will immediately impact their cash-flow and the value of their assets.

They also questioned the provision in the original IRR on the no-go areas or those that could be banned from any mining activities.

Previously, Environment Secretary Ramon Paje explained that the no-go areas will cover those that could be used for tourism activities or are environmentally fragile.

Aside from these issues, the Aquino government will also have to push for the mining reform bill, which will address the concern of the government on the higher share it wants from mining.

The EO 79 mandates that Congress will take on the soon-to-be proposed revisions in the revenue sharing scheme. - Rappler.com

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Aquino gov't agrees to revise mining IRR

by Rappler.com

24 September 2012

MANILA, Philippines - The government caved in to the mining industry's call to change legally and financially contentious provisions in the recently issued mining rules.

The announcement on the revision in 3 provisions of the mining rules on Monday, September 24, comes after President Aquino called a Malacañang meeting with members of a council responsible for issuing the rules, which the Chamber of Mines said are illegal.

At the mining industry conference on September 19, the industry threatened to sue the Aquino government for the "patently illegal" provisions in the Implementing Rules and Regulations (IRR) of its mining policy.

These revisions would be made just weeks after the Mining Industry Coordinating Council (MICC) released the IRR last September 11 to enforce the Aquino government's policy via Executive Order 79.

Presidential Communications Development and Strategic Planning Office Secretary Ricky Carandang said in a press briefing on September 24 that the revisions would be submitted to President Aquino for comment and approval.

"We believe that these revisions will clarify some of the things that were not clear with the industry," said Carandang, who was at the meeting.

"They raised some concerns, we examined whether those concerns are valid, we thought that some of them might be valid, and, therefore, we decided to revise based on reactions not just of the mining industry but of others," he said.

Carandang also said the MICC "felt, after further examination, that it would be easier to revise rather than to risk some sort of litigation."

He said the MICC agreed to revise Sections 3, 7 and 9 of the IRR. These pertain to the term of the mining contract and new contracts of existing players.

The revisions are as follows:

Section 3. Definition of Terms

"Expired mining tenements" refer to mining contract/agreements whose 25- or 50-year term has lapsed: Provided, that in the case of the initial 25-year term, the mining contract/agreement shall be considered expired if the parties concerned fail to agree on the terms of the renewal pursuant to Sections 32 and 38 of R.A. No. 7942, the Philippine Mining Act of 1995, and other pertinent laws.

Section 7. Grant of Mineral Agreements Pending New Legislation

No new mineral agreements shall be entered into until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect: Provided, that in the case of expansion of existing contract areas, the same shall be subject to existing laws: Provided, further, that the National Government-Owned Mining Assets may be subject to the Financial or Technical Assistance Agreement (FTAA) in accordance with Section 9 of these implementing rules and regulations.

Section 9. Opening of Areas for Mining through Competitive Public Bidding

Section 2, Article 12 of the Constitution provides that the exploration, development and utilization of natural resources shall be under the full control of the state. Thus, the grant of mining rights and mining tenements over areas with known and verified mineral resources and reserves, including those owned by the government and all expired tenements, shall be undertaken through competitive public bidding.

The mining contract/agreement that may be renewed shall be subject to existing laws, rules, and regulations at the time of renewal. Provided, further, that mining contractors whose tenements are expiring from Sept. 1 to April 30, 2013, shall be given 30 calendar days from the effectivity of these implementing rules and regulations to file renewal applications: Provided, finally, that those mining contractors whose tenements expire after April 30, 2013, shall file their renewal applications not later than six months prior to the expiry of their mining contracts/agreements.

Mining contract term

The members of the mining chamber focused on Section 9, which they said "pushed them to the wall."

Industry leaders also said this provision was inserted in the IRR at the last minute and without proper consideration of its alleged legal flaws.

Under the original IRR, Section 9 stated the government could renegotiate the terms of mining contracts after the first 25 years. This effectively shortens the project period from the current maximum of 50 years.

They said this immediately had an impact on the cashflow and the value of their mining assets.

This was the originally issued IRR: Mining EO implementing rules and regulations [http://www.scribd.com/doc/105690547/Mining-EO-implementing-rules-and-regulations?secret_password=28yk4kuvfdroez021x1e]

Carandang said the revisions were unanimously agreed upon by the members of the MICC present, including himself, Executive Secretary Paquito Ochoa Jr., Finance Secretary Cesar Purisima, Trade and Industry Secretary Gregory Domingo, Environment and Natural Resources Secretary Ramon Paje, Energy Secretary Rene Almendras, Socioeconomic Planning Secretary Arsenio Balisacan, Presidential Assistant for Climate Change Elisea Gozon and representatives of the Department of Justice and the Office of the Solicitor General. - Rappler.com

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Aquino OKs revised mining-policy rules

By Mia M. Gonzalez, BusinessMirror - http://www.abs-cbnnews.com/business/10/04/12/aquino-oks-revised-mining-policy-rules

5 October 2012

MANILA, Philippines - President Aquino has approved the revised implementing rules of Executive Order (EO) 79 earlier submitted by the Mining Industry Coordinating Council (MICC) in response to concerns raised by stakeholders on the original regulations issued by the Department of Environment and Natural Resources (DENR).

"The President has approved the revised IRR," said Secretary Ramon Carandang of the Presidential Communications Development and Strategic Planning Office (PCDSPO) in an interview, referring to what bureaucrats call "implementing rules and regulations."

Carandang, a member of the MICC, added that Mr. Aquino approved EO 79's revised implementing rules after meeting with MICC members that day.

He said the President sought further clarification on the revised version of the rules' Section 7 on the Grant of Mineral Agreements Pending New Legislation, which Mr. Aquino had "reworded" by the MICC to "give comfort to the cement companies" and avert any shortage in cement supply or higher cement prices in the country.

"The cement companies were concerned that they might not be allowed to expand the area where they're quarrying and we wanted to make an exception in that particular area. What we're saying is, in cases where an inability to expand their area could potentially cause economic dislocation, then we would allow the area to be extended," according to Carandang.

He said the clarification was "meant to allow the cement companies to continue to operate because it would have been open to interpretation." "So it's reworded to make it more explicit, because that could have led to a shortage or an increase in prices and we did not want that to happen," Carandang added.

He said this should not be interpreted as a "blanket allowance."

Carandang added that the revised rules were expected to provide the clarification sought by the Chamber of Mines of the Philippines (COMP) and the cement industry.

"I think we've provided them the clarity that they sought. So therefore I don't anticipate that they would contemplate any more legal action.... They were seeking clarity, we have provided it and we think that whether they agree to it, it's clearer now," he said.

Carandang added that the government remained "on track" on its plans for the mining sector, despite the slight delay in the issuance of the implementing rules of EO 79.

"Mining has been confused for so long and we are providing clearer direction to it. I think we'd rather make sure that this was [done] in a deliberate manner rather than sort of rush things. I think we're on track. And I think the industry generally understands that," he said.

Carandang added that the President approved the earlier proposed MICC revisions in Sections 3 and 9 of the implementing rules.

In Section 3, the definition of "expired mining tenements" was revised to respond to the questions raised by mining firms.

Amended, it read, "'Expired mining tenements' refer to mining contract/agreements whose 25- or 50-year term has lapsed: Provided, that in the case of the initial 25-year term, the mining contract/agreement shall be considered expired if the parties concerned fail to agree on the terms of the renewal pursuant to Sections 32 and 38 of [Republic Act] 7942, the Philippine Mining Act of 1995, and other pertinent laws."

The revised Section 9 includes a transitory provision that says, "Mining contractors whose tenements are expiring between September 1, 2012, and April 30, 2013, shall be given 30 calendar days from the effectivity of these implementing rules and regulations to file renewal applications."

This is to provide a window for companies with expiring 25-year contracts to renew within 30 days from the effectivity of the rules, rather than six months prior the expiration of their contract under the original implementing rules.

The revised Section 9 also reiterates Section 2, Article 12, of the Constitution that "provides that the exploration, development and utilization of natural-resources shall be under the full control of the state."

The revised rules would be effective 15 days after publication.

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Paje slams mining industry's 'pressure,' stands by govt rules

by Rappler.com

19 September 2012

MANILA, Philippines - After the mining industry blasted the Aquino government's newly released mining rule reducing the term of their existing contracts by 25 years, a government official slammed back.

In a statement on Wednesday afternoon, September 19, Department of Environment and Natural Resources (DENR) Secretary Ramon Paje stood by the implementing rules and regulations (IRR) on the Executive Order (EO) No. 79 that, mining firms said hours before, has a provision they consider "patently illegal."

Paje maintained that he cannot go against EO 79 itself.

In fact, he said he will continue the ongoing moratorium on the grant of new mining contracts -- a provision of the EO 79 that, according to industry players, makes investing in mining in the Philippines uncertain.

"One fundamental intention of EO No. 79 (new mining policy) is to protect the State and the future generation from the menace of a one-sided approach to mineral resources development, considering the long 50-year terms of mining contracts," said Paje.

Paje and other members of the mining council are currently drafting a reform bill that will seek to increase the government's share in the mining revenues.

"There has to be new terms and conditions in order to optimize revenues from mining. In fact, the International Monetary Fund has just disclosed its report on the current fiscal regime of mining in the country and it is recommending that a 7% flat sharing scheme be adopted and that the existing incentives for mining projects be removed," he added.

On Wednesday morning, Chamber of Mines of the Philippines Benjamin Philip Romualdez focused not on the EO but a provision of the Implementing Rules and Regulations (IRR) of the EO 79 that they said is illegal.

Romualdez cited Section 9 of the IRR that calls for a renogotiation of the succeeding 25-year term of mining contracts' maximum 50 years.

The chamber members said the renegotiation of mining contracts, which the government itself has agreed to, creates instability. They said the 50-year maximum term is allowed in the Mining Act, and that changes imposed by the IRR has "pushed the industry to the wall" -- far more than the no-new-contract scheme did.

Paje, however, defended Section 9 of the IRR. He said this would enable the government to obtain a larger share through the establishment of mineral reservations.

The DENR called the existing 50-year maximum term "one-sided," thus Paje said this should be part of the upcoming efforts in Congress to increase revenues the government get from mining.

"There has to be new terms and conditions in order to optimize revenues from mining," Paje said, emphasizing that "the International Monetary Fund's report that the current fiscal regime of mining in the country and it is recommending that a 7% flat sharing scheme be adopted and that the existing incentives for mining projects be removed."

Thus, Paje said he cannot "go against the provisions of Executive Order (EO) No. 79," which seeks higher revenues through an amendment to the Mining Act.

"Incidentally, by establishing such areas as mineral reservations, the mining contractors shall be paying to Government a royalty in the amount equivalent to 5% of the gross sales," DENR said.

Paje, however, insists that the present 2% sharing scheme is disadvantageous to the Government. "It is not even enough to pay for the environmental impacts of mining." - Rappler.com

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Groups storm mining confab with calls to halt Tampakan Mining Project

ATM Press Release

18 September 2012

Pasay, Philippines - Tampakan mining project of Sagittarius Mines Inc. (SMI) received another blow from environmental groups who picketed in front of Sofitel Hotel in Pasay City in time with the opening of the International Mining Conference organized by the Chamber of Mines.

While mining executives were discussing the future of their business in the country, about 500 protesters from various environmental organizations and human rights advocates asserted that the government should never issue the Environmental Compliance Certificate (ECC) for the Tampakan mining project.

SMI and Xstrata, owners of the Tampakan Mining Project, had appealed to the president last July after the Department of Environment Natural Resources (DENR) denied their ECC application. DENR cited the ban on open-pit mining in South Cotabato contained in a provincial environment ordinance.

Disaster in the making

"It is a disaster waiting to happen," said Jaybee Garganera, national coordinator of Alyansa Tigil Mina, referring to the possibility of a dam failure for the mining project. "We have said this many times before, the waste tailings pond for the Tampakan mining project lies above a number of fault lines. That alone is enough to reject this project given the risks to communities and indigenous peoples."
Garganera also added that an international study already pointed out that the project is one of the most dangerous in the world. "It is estimated to produce 2.7 billion tons of mine waste, to be placed on top of a mountain just ten kilometers away from an active volcano. The president should not act insane; he should not approve this project."

Climate change impact

Philippine Movement for Climate Justice (PMCJ), one of the supporters of the action, expressed alarmed that the government is still accepting dialogues with SMI. "Critical actions require us to mitigate the impact of climate change, and this includes reducing our vulnerability to disasters by protecting our remaining forests and safeguard our ecosystem," said Khevin Yu, campaign officer of PMCJ.
Meanwhile, Gerry Arances from LRC-KsK, added that the country cannot afford another mining tragedy. "We had Marcopper tragedy in the past that destroyed a biodiversity-rich river in Marinduque and we are still assessing right now the impact of the Padcal mine spill in Benguet and here we are again, chasing another one?"

IP resistance

Meanwhile, protesters also pointed out that the Tampakan mining project has not secured a legitimate Free Prior Informed Consent (FPIC) from the all the Indigenous communities that will be affected by the project.

Ka Badong Dimain, tribal chieftain of Maporac Aeta Organization (MAO) and leader from the national IP federation, reinded the President to respect the decision of the IP communities. "Ang mga katutubo sa kabundukan ng South Cotabato, ang unang maapektuhan ng proyekto; sila ang mawawalan ng tahanan, pagkakakitaan at iba pang mahalagang bagay tulad ng tubig at pagkain." (The IPs in Tampakan are the first one who will be affected by the project; they are the ones who will lose their homes, livelihood and other important things like water and food).

In a separate statement, Bishop Dinualdo Gutierrez of the Marbel Diocese in Sultan Kudurat also called on to the president to deny the Tampakan project since it has created divisions within and among the IPsand even intensified conflicts with the authorities.

"The project, which is still only it its early exploration, is already destroying our communities. How can we engage in a business that does not care about our people, understand our culture and accept the reality that they did not get the support for this project?" Bp. Gutierrez said.

More to go

The groups said that the protest is just part of their one week actions to condemn mining in the country that according to them had put our future in bad shape. (30)

For more information:
Jaybee Garganera - 09277617602
Farah Sevilla - 09235122374
Gerry Arances - 09228307758
Edel S. Garingan - ATM media and communication officer, 09228918972

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Anti-large-scale mining activists disrupts Chamber of Mines Conference; says ‘responsible mining' is just a joke in the Philippines

Kalikasan PNE Philippines Mining

19 September 2012

Hundreds of environmental activists, indigenous peoples and church workers stormed the Mining Philippines 2012 Conference of the Chamber of Mines of the Philippines (CoMP) today in Pasay City. The protesters led by Defend Patrimony Alliance blocked the entrances, held a noise barrage and burned effigies of mining liberalization perpetrators in front of the conference venue.

"The Chamber of Mines' conference is a confab of mining companies with a long record of environmental violations and crimes in the country. We will only witness the farce of these so-called "responsible mining" companies like Philex Mining and Rio Tuba Mining corporations presenting their so-called state-of-the-art technologies and hazard-proof mining operations," said Clemente Bautista, convener of Defend Patrimony.

Philex has a long record of mine accidents since 1980's. Recently, Philex's Padcal gold mining project caused at least 4 mine spills in Benguet province. According to the Mines and Geoscience Bureau (MGB), the spills released an estimated 20 million metric tons of mine wastes into nearby river systems. Meanwhile, the Rio Tuba's nickel mining operation recently caused heavy metal contamination in the Togupon River in Palawan.

"These kinds of mining companies are being supported by the Aquino administration. The Mining Executive Order of Pres. Aquino continued to allow these companies to further deplete our resources and still get away with their violations," added Bautista.

The Mining Philippines 2012 Conference is an annual event organized by CoMP in coordination with the Mines and Geosciences Bureau to showcase ‘responsible mining' projects and serves as a venue to lobby the government for ‘favorable' policies towards mining investments in the country.

"The government's mining policy remains flawed, and even its own economic experts admitted that mining's revenue and economic contributions are negligible. Yet in EO 79, the government wants to fast track existing large-scale mining projects with the same unfavorable contracts and agreements with mining companies," Bautista pointed out.

The protest action was first of a series of activities by the People's Caucus on the Mining Executive Order, a broad gathering of groups and individuals coordinating various initiatives towards the revocation of EO 79 and the passage of a pro-people and pro-environment mining policy. Forty organizations and prominent leaders convened the caucus, including Sorsogon Bishop Arturo Bastes, Panalipdan! Mindanao secretary general Sr. Stella Matutina and Justice for Dr. Gerry Ortega Movement leader Michaela Ortega.

"This conference, like the EO 79 it will most likely exhort, does not give voice to the people's long-standing demands for the reorientation of mining towards domestic development, environmental protection and people's welfare. The various formations convening the People's Caucus on the Mining EO will see to it that the people's voice be heard over the conference's din of greenwashing and empty promises of economic development," ended Bautista.###

Reference: Clemente Bautista | Convener, Defend Patrimony Alliance - 0922 844 9787

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Clear-cut policy on mining needed

Jonathan L. Mayuga

Business Mirror

22 September 2012

THE Mining Philippines 2012: Conference and Exhibition concluded on Thursday with industry players pitching calls for a policy environment conducive to the growth and development of the country's mining industry.

While hailing the signing of Executive Order (EO) 79, which spells out the government's new mining policy, the Chamber of Mines of the Philippines (COMP) said it opposes the mining moratorium imposed by the government, which, it said, is not helping the industry flourish; it is, in fact, preventing foreign direct investments from flowing in.

The conference, which gathered some of the top executives of the big players in the mining industry, highlighted the country's rich mineral resources and its potential to boost the economy.

It also paved the way for the sharing of knowledge and experiences, as well as outlook on the future of mining in the Philippines by various resource persons, including local and foreign experts in minerals development.

Focused group discussions during the first day covered topics on the indigenous peoples' (IPs) rights under Republic Act 8371, or the Indigenous Peoples Rights Act (Ipra); the free, prior and informed consent required of mining companies before mining the ancestral lands of IPs; the Extractive Industry Transparency Initiative (Eiti); national and local mining policies; and mining corporate social responsibility.

Also, plenary sessions highlighted developments and prospects in gold, and trends and development in copper, with selected companies giving updates on ongoing projects in the Philippines. Discussions on mining in a changing landscape, as well as governance issues and concerns, ranging from geohazard mapping and climate-change adaptation, transparency and poverty-reduction initiative, environmental rules of procedure and mining-taxation policy reforms, were also held.

Panel discussions that revolved around the topic "Managing the Future of Philippine Mining Industry" highlighted insights from experts to promote the country's competitiveness as a mining haven; post-mine life-rehabilitation plan and sustainable community development; financing for mining projects; and the benefits of mining on the point of view of local government units.

Organized by the COMP, the weeklong event revealed how upbeat the industry is despite the many challenges faced by the minerals sector, and the uncertainties offered by a policy change introduced by President Aquino's EO 79 and its implementing rules formulated by the Department of Environment and Natural Resources (DENR).

In his opening remarks during the kick-off ceremonies on September 17, COMP President Benjamin Philip Romualdez said the industry is faced with tough challenges, but maintained that the increased participation of exhibitors and sponsorships that exceeded last year's conference participants by 50 percent showed that the industry remains upbeat about the future of mining in the Philippines.

Romualdez, president and chief executive officer of the Benguet Corp., then appealed to Vice President Jejomar Binay during the formal opening of the conference on Wednesday to convey to the government the industry's concerns, particularly over Section 9 of the implementing rules of EO 79.

While expressing the industry's support for the new mining policy, Romualdez said Section 9, which deals with the opening of areas for mining through competitive public bidding, is "patently illegal." He revealed that some companies were planning to question its legality.

That section of the implementing rules mandates that the terms and conditions of the second 25-year term of mining contracts would be renegotiated by the government, in effect, shortening mining contracts to mere 25 years, in violation of Section 32 of Republic Act 7942, or the Philippine Mining Act of 1995, which guarantees 50 years under the same terms and conditions.

Despite the optimistic and forward-looking views on the future of mining, industry players also expressed their apprehensions, and for good reasons.

A mining law hailed by the international mining community as one of the best failed to attract investments the way other countries such as China and India did; neither was it able to douse cold water on the strong opposition to the government's mining revitalization program.

This was further aggravated by local laws passed in some provinces declaring mining moratoriums or banning large-scale mining activities, such as the open-pit method in certain areas, particularly South Cotabato, thereby jeopardizing the Tampakan Gold Project of Xtrata and its subsidiary in the Philippines, Sagittarius Mines Inc., which is potentially the biggest gold-copper project ever to be conducted in the Philippines, as it promises a 1-percent contribution to the country's gross domestic product (GDP).

Sagittarius Mines remains hopeful and confident though, that its application for an environmental clearance certificate (ECC) would be granted by Malacañang within the month. Still, conflicting national and local policies in mining remain a big stumbling block in the overall realization of the economic benefits of mining.

Romualdez also expressed concern over the failure of the DENR to address rampant illegal logging and illegal mining, and the massive smuggling out of gold from the country, which the DENR itself has been fretting about since the last quarter of 2011.

Anti-mining groups, meantime, continue to question the constitutionality of the Philippine Mining Act of 1995, which allows 100-percent foreign-owned mining companies to do business in the Philippines.

No less than Speaker Feliciano Belmonte, in his keynote address in formally opening the exhibit at the Sofitel Philippine Plaza Hotel in Pasay City, expressed disappointment and said his leadership in the House of Representatives would look into the economic provisions of the Constitution that limit growth and development.

He has proposed a long-term sustainable-development plan for the minerals sector and vowed to resolve the mining revenue-sharing issues to "enlarge the pie of benefits" for all stakeholders.

Binay said mining should advance social justice, apart from ensuring that the overall benefits would outweigh the overall costs-without compromising environmental sustainability.

But the debate over mining goes beyond the mining law, the new mining policy and the economic contribution of mining.

Against a backdrop of the worst impacts of climate change on people and the environment, the rapid natural resources depletion and biodiversity loss, the threat of natural disasters-floods, landslide and even strong earthquakes-waiting to happen, the wisdom of promoting mining as a national development strategy is being questioned by environmental groups.

Citing today's "new normal," such as intensifying typhoons, heavier than usual or excessive rainfall, these anti-mining groups insist that people in mining-affected communities have remained poor because they are not really benefiting from mining.

The Alyansa Tigil Mina (ATM), a network of civil-society organizations opposed to mining, and Defend Patrimony, another network of non-governmental organizations, maintain that the "cost" of mining, not only financially but in terms of its nefarious effects on the environment and on the health of people, outweighs its purported benefits.

The groups want the government to scrap the Tampakan Gold Project, because of the potential damage and disaster it could bring once it starts large-scale mining operations. They cited the leak in the Tailings Pond No. 3 of Philex Mining Corp.'s Padcal Mine in Tuba, Benguet, which has contaminated the Balog Creek in Benguet and the Agno River in Pangasinan, and now threatens to pollute the waters of the San Roque Dam and the Lingayen Gulf, whose waters nurture Pangasinan's P400-million bangus (milkfish) industry.

The Padcal Mine, one of the oldest in the country, has been projected by the government as the showcase of mining's best practice.

Yet even Philex's technical expertise in mining failed to prevent the leak, a reason cited by the anti-mining groups in their demand that large-scale mining be stopped.

But a senior official of Philex said the tailings-pond leak and the contamination of the bodies of water around the mine, was a result of the excessive rainfall on August 1, a force majeure, which is beyond the control of the company.

Jaybee Garganera, national coordinator of ATM, said what happened to the Padcal Mine could happen in Tampakan.

IBON Foundation, an independent research group, for its part questioned the benefits from large-scale mining.

According to IBON, the contribution of highly destructive large-scale mining is very minimal and only benefits large mining firms-an argument debunked by Prof. Bernardo Villegas of the University of Asia & the Pacific and director of Center for Research and Communications Foundation Inc. He cited the multiplier effect of mining to export, household income and jobs generation in his talk "An Enabling Environment for the Mining Industry: Making the Philippines a Competitive Investment Destination."

Villegas said focusing on the fiscal side of mining through taxes without considering other equally important factors-even by some Cabinet members-is "short sighted"; the positive impact of a mining company in the local economic development of a host municipality should also be factored in measuring its benefits, he said.

Villegas said cutting bureaucracy and red tape, rather than imposing excessive tax, should be given premium to allow investments to pour in and, like the Business Process Outsourcing, allow the industry to flourish and spur economic activities that would be beneficial to the economy.

According to IBON, among the sub-industries in the country, mining and quarrying account for the smallest share and actually are contributing the second-smallest share in the entire economy after the forestry sector.

The gross-value added (GVA) of the mining industry, which the government itself measures, registered an average of 1 percent in 2000 to 2011 at current prices-it peaked in 2007 at only 1.63 percent. IBON added that while the GVA in mining in absolute terms has been increasing on average, albeit in a very slow pace, the share of mining's GVA to the GDP is actually decreasing on average, after peaking in the 1970s, the group noted.

A closer look at the government data, IBON said, would reveal that more than 50 percent of the GVA in mining and quarrying are contributed by other sub-sectors, such as crude oil, natural gas and condensate, stone quarrying, clay and sandpits and other non-metallic mining, the group stressed.

In 2011 GVA in mining and quarrying totaled P143, 027 million, of which 53 percent is accounted for by the combined GVA of crude oil, natural gas and condensate, stone quarrying, clay and sandpits and other non-metallic mining, greater than the share of copper, gold, nickel and other metallic mining.

Besides that, IBON said the government's mining policy remained flawed and inadequate in addressing the destructive effects and miniscule benefits of large-scale mining.

Even as EO 79 imposes a mining ban on areas designated for ecotourism and a moratorium on new mining deals, IBON said the measure would not stop the controversial and greatly destructive mining projects.

IBON also said while the moratorium is in effect until Congress passes a new law that would increase the government's mining revenues, the EO still allows the explorations to continue. Based on the Mining Act of 1995, it is at this stage where most incentives are given to mining corporations.

Apparently, the government shares the optimism of the mining industry and wants a bigger share from their profits. After all, a 2-percent excise tax, according to Environment Secretary Ramon J.P. Paje is miniscule compared to the huge profits that await mining investors.

The country's rich mineral deposits remain untapped.

The Philippines is among the top 5 nations for overall mineral reserves. It is third in gold, fourth in copper, fifth in nickel and sixth in chromite. It has the greatest number of proved mineral resources in Southeast Asia.

In the second half of 2011, gross production value went up from P48.7 billion to P63.9 billion. The expected investment in the industry from 2011 to 2016 is $14 billion to $20 billion. The direct employment in the industry increased to 340,000 in 2010, while indirect employment reached 1.2 million.

Realizing the potential revenue that the government could generate from mining, the government decided to push for higher taxes and introduced reforms that it hopes would address issues and concerns through a new mining policy.

This early, however, EO 79 and what COMP describes as last-minute insertions in its implementing rules are being questioned. A number of issues such as mining revenue-sharing need to be resolved, the same way that conflicts between national and local laws need to be harmonized. The supremacy of national laws over local legislations, however, is being contested by some LGUs in imposing mining moratorium and ban on mining activities.

This issue has never been brought up before the court of law, something that mining companies would not want because of the risks of going to court that would only further delay mining projects. The DENR, on the other hand, prefers that the issue on local ordinances be settled first before issuing an ECC, just one of the many preconditions, in doing business in the Philippines, on account of a provincial ordinance that bans open-pit mining method that jeopardizes the Tampakan Gold Project. Now the burden of issuing the ECC rests on Malacañang.

Mining has enormous potentials to boost growth and development, but until such time the mining law is fully implemented and a clear-cut policy is put in place, mining's potential benefits will not be achieved.

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Groups hold indignation rally to protest Tampakan Project

Written by Alyansa Tigil Mina (ATM)

Manila Times

23 September 2012

Worried, angry and determined, about 500 anti-mining protesters trooped to Mendiola on Thursday after President Benigno Aquino 3rd remained silent on their appeal to drop the Tampakan mining project in South Cotabato province, which they referred to as the "world's most dangerous mining project."

Jaybee Garganera, national coordinator of Alyansa Tigil Mina said that the president's non-commitment to ditch the project may also mean that the government might approve the appeal of Sagittarius Mines Inc. (SMI) to acquire an Environmental Compliance Certificate for the said project.

"We cannot just let it happen especially at this time that we are witnessing how the ‘poster boy' of responsible mining, Padcal mining in Benguet province bares itself as another tragedy that the country have to face," Garganera added.

Environmental groups, members of indigenous communities and anti-mining campaigners in Metro Manila took part in the rally and marched on the street of Morayta chanting that ‘Tampakan is a disaster waiting to happen.'

Last August, two bishops in Mindanao and several environmental groups in the country sent a letter to the president outlining the reasons why the Tampakan project should be discarded immediately.

"For a project as deadly as the Tampakan project, one month of waiting for its cancellation is very long already," said environmental activist and priest, Fr. Edwin Gariguez, of the social arm of the Catholic Bishops Conference of the Philippines (CBCP).

"If the president thinks that we will laud this multi-billion investment, no! The disaster it may bring to our people may cost even more than that," Gariguez argued.

Bishop Dinualdo Gutierrez, DD, bishop of the Diocese of Marbel which covers the provinces of South Cotabato, Saranagani and parts of Sultan Kudarat reaffirmed the stand of CBCP that open-pit mining, the method that will be used by SMI in the Tampakan project, should be banned in the country as it is very destructive to the environment.

Haribon Solidarity Statement
There is no life in large-scale mining. The recent Padcal incident in Benguet that spilled nearly five million cubic meters of sediments from the only operating tailings pond of Philex Mines adds to the list of evidence that includes: the Marcopper Tragedy in Marinduque in 1995; the Lafayette Mining spill in Rapu-Rapu Island, Albay in 2005, and; the Lake Bito fish kill caused by Nicua Mining in Leyte province in April and May 2012.

The gallery of exhibits on the evidence on the destructive effects of large-scale mining continues to expand.

The nearly five million cubic meters of sediments could become the "particles of death" that threatens, and hopefully, will not kill life in the river, mangrove, and marine ecosystems that it has reached.

Mining has threatened and destroyed some of the very sources of life in our country-fragile ecosystems located in an archipelago-the inner workings of which we barely understand and yet we get so much from in terms of ecological services, including water, fresh air, protection from natural hazards, and capture and storage of greenhouse gases.

The mining industry promised big in terms of economic revenues for The Philippines. But what it has done to our national economy is a wholesale plunder of our natural resources, leaving many communities affected by mining wanting for the sweet spoils it promised to the people and ravaged by the destructive activities associated with mining.

The mining industry claims that "there is life in mining." But what we have seen are the deaths of people and the environment. We do not want to add more deaths of our people and our environment simply because of this one grand claim that is illusory.

Haribon Foundation is in solidarity and expresses full support for the call to "Stop the greed, no to large-scale mining" and "Stop the destruction, increase the budget for protection."

Haribon Foundation reiterates its support for the growing clamor to repeal the Mining Act of 1995 thru the passage of an Alternative Minerals Management Bill or Philippine Mineral Resources Act of 2012.

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PH suspends blacksand mining ops in Region VIII

By Franklin Roosevelt Dimaguiba and Gerry Albert Corpuz

All Voices

28 September 2012

Manila, Philippines-The Mines and Geosciences Bureau of the Department of Environment and Natural Resources (DENR) suspended on August 17, 2012 the operations of Nicua Corporation in MacArthur, Leyte for violating several provisions of the Mineral Production Sharing Agreement (MPSA) it entered with the environmental agency.

The militant fisherfolk alliance Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) said they got a copy of the suspension order signed by MGB Acting Director Leo Jasareno ordering Nicua to suspend its magnetite extraction in Lake Bito, after the MGB office found out that Nicua allowed Chinese nationals employed by Heng Sheng Mining Corporation to work in the mining operation, which is a violation of the existing MPSA.

"The suspension of Nicua's blacksand escapade is a temproary victory. The affected farmers, fisherfolk and other residents should pursue its permanent closure to save the livelihood and the environment from further destruction," said Pamalakaya. On April this year, Anakpawis party list Rep. Rafael Mariano filed a resolution at the House of Representatives investigating the impact of magnetite mining in Lake Bito, which is near the mining site operated by Nicua.

The resolution prompted the House Committee on Natural Resources to conduct two hearings at the lower House, in which the owners of Nicua, and officials of DENR and MGB in Region 8 were summoned to explain the occurrence of fish kills and their relations to magnetite mining operations in Lake Bito.

In his letter to Frank Lubbock, president of Nicua, Jasareno said: "Please be reminded, however, that in so far as the official records of this office (MGB) are concerned, there are only two (2) private entities that have legal personalities under MPSA No. 290-2009-Mr. Vincent Tan Tiong being the MPSA contractor and Nicua being the authorized operator pursuant the Order dated October 26, 2010 of this Office.

It is clear that under the said Order that both Mr. Vincent Tan Tiong and Nicua shall be held liable for any violations of the terms and conditions of MPSA 290-2009-VII." Jasareno stressed that by failing to show the proof of legitimacy of the employment of Chinese nationals, Nicua had violated sections 140 and 141 of DENR administrative order No. 2010-21, the consolidated DENR administrative order for the implementing rules and regulations of Republic Act No. 7942 or the Philippine Mining Act of 1995 sections 11.1 (j4) and 11.2 (e) of MPSA No. 290-2009-VIII pertaining to rules on employment of foreign nationals.

"Why only suspend? The MPSA of Nicua should be permanently revoked and the mining extraction for ore should be ended for gross misrepresntation, crimes of first-rate irregularity and for sowing fiskills, livelihood destruction and environmental disaster," said Pamalakaya national chairperson Fernando Hicap in a press statement.

Hicap said the DENR-MGB should not give Nicua another chance to revive its MPSA and resume magnetite mining in Lake Bito, asserting that the operations aside from fatal to fisherfolk livelihood and environment, is also marred with triple platinum violations with the employment of Heng Sheng Mining employees, who are Chinese nationals.

The DENR-MGB told Nicua that by allowing and not preventing Heng Sheng Mining employees to work in Mr. Lubbock's blscksand firm without the authority of the environmental agency, Nicua violated Section 4 of the DENR Administrative Order No. 2004-09, which requires operators to be duly authorized by the DENR office before mining firms conduct mining operations in areas covered by mineral production agreements.

Citing the August 17 letter of MGB to Nicua president, the Pamalakaya official said Chinese employees of Heng Sheng transferred four barges of Nicua from a mining area to another mining area of Nicua's operations causing the displacement of murky water into the Mahanod Creek, and such mining practice is unacceptable.

According to 10.1 section of the MPSA, the contractor shall manage its mining operations in a technically, financially, socially, culturally and environmentally responsible manner to achieve the sustainable development objectives and responsibilities as provided for under the implementing rules and guidelines of the Act.

The DENR-MGB said Nicua mining group had effectively admitted having failed to comply to the its order dated November 12, 2010 giving the company 60 days upon receipt thereof and letter dated March 31, 2011 giving Nicua non-extendible period of fifteen days upon receipt thereof to comply with certain requirements as post-conditions to the approval of the Declaration of Mining Feasibility under MPSA No. 290-2009-VIII. It said the warning on Nicua was contained in the DENR's letter dated March 31, 2011.

The DENR-MGB said Nicua mining is ordered to suspend the blacksand mining operations, including the transport and shipment of ores, and would only be allowed to resume magnetite operations if the mining company has fully addressed the concerns as determined by the environmental agency.

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Mankayan mine firm starts FPIC process

By Ma. Elena Catajan

Sun Star

23 September, 2012

FAR SOUTHEAST Gold Resources Inc. (FSGRI) is gearing up for its Free, Prior and Informed Consent (FPIC) proceedings for the Mankayan project.

The posting of notices by the NCIP FPIC Team for the process started in town last week. The notices enjoined everyone in the eight affected barangays to participate.

The process is a first for the Mankayan area as previous companies were not required to undergo this proceeding because the Indigenous People's Rights Act crafted and approved in the 1990s.

FSGRI is eyeing the Far South East Ore Body within the Lepanto Consolidated Mining Corporation claim and needs to get the consent of the community before proceeding with plans of exploration.

FPIC is batting for conversion of the Mineral Process Sharing Agreement (MPSA) into a Financial or Technical Assistance Agreement (FTAA) so the mining firm can continue to explore.

The FTAA is needed by South African mining firm Gold Fields so it can own a majority of shares in FSGRI. Presently, 60 percent of FSGRI is owned by Lepanto while 40 percent is held by Gold Fields.

Only after the FPIC can the company be given a Certificate of Compliance issued by the National Commission of Indigenous Peoples (NCIP) attesting the applicant has complied with the requirements for securing the consent of affected indigenous peoples in the area.

The absence of this certificate is a ground for the issuance of a Writ of Injunction or a Cease and Desist Order from the NCIP.

However, if the FPIC fails for the conversion, exploration may still continue because of the MPSA issued.

In a seminar on the Indigenous People's rights as well as the mining act, the FSGRI officials assured the company is for responsible mining and it will adhere to the FPIC process.

FSGRI defined responsible mining as not necessarily perfect but constant and conscious caring for the area being utilized as well as its surrounding communities.

Marionne Ruiz, media relations officer of FSGRI, said, "Responsible mining is not exactly being perfect like not making mistakes, totally no accidents but it is more about honoring commitments, delivering what you promised that you will and standing up for the consequences of your actions - good or bad."

The seminar is a first in a series of workshops for media personnel aiming to educate practitioners in the NCIP proceedings as well as the FPIC process.

Speakers from the DENR engr. Felizardo Gacad and Alfredo Genetiano, as well as NCIP lawyers John Trey Libiran and Severino Lumiqued were present in the two-day seminar to give media an overview of mining and its process in the region.

The NCIP said there will be at least three FPIC processes before the South African Mining firm can start commercial extraction of minerals.

If all goes well, the company can expect to operate for 20 years.

Infrastructure setup and community acceptability will first be established on site, taking NCIP guidelines and the IPRA into action.

After its due diligence stage, FSGRI confirmed the presence of "significant mineralization" in the area.

However, the company has ceased to drill in one of the barangays when Mankayan groups started a picket, which has been ongoing for almost eight months. Losses due to this were set at $3,960 a day.

The NCIP has already issued an order to the picketers to let FSGRI resume drilling peacefully with a direction to FSGRI to pay P500,000 as a commitment bond to answer any adverse effect on the environment caused by the drilling in the area.

Published in the Sun.Star Baguio newspaper on September 24, 2012.