Comment Opposition Writ of Kalikasan

7/30/2019 Comment Opposition Writ of Kalikasan

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Republic of the Philippines

SUPREME COURT OF THE PHILIPPINES

Manila

Alyansa Tigil Mina (ATM), Manny A. Guinto,

Brandy Baldovino, Daniel Craig Batonghinog;

Madrid A. Maruya, TimoteoLuderia M. Moody,

Gulliver F. Larga, Davidson C. Romarico,

Jennylin S. Aspiras, Pastor Matadeo R. Malabiran,

Fr. Peter Northern, Fr. Marky Marx, Fely Unabia,

Richie Tolino, Jerby Catamco, and Potee Aletsa,

Petitioners,

- versus -SC-G.R. SP. NO. _________

(Petition for Writ of Kalikasanwith Prayer for the issuance of

a Temporary Environmental

Protection Order [TEPO] and

the Cancellation of the ECCissued by the DENR)

Secretary of the Department ofEnvironment and Natural

Resources (DENR), Sagittarius

Mining Inc. (SMI), Xstrata Copper

Inc., Indophil Resources NL.,

Respondents.

x ------------------------------------------------------------------------------------------x

COMMENT / OPPOSITION

(TO THE PETITION FOR WRIT OF KALIKASAN WITH PRAYER FOR

THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION

ORDER)

RESPONDENTS, through the undersigned counsel, and unto this Honorable

Court, most respectfully alleges that:


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1. On 05 December 2012, Respondents received the Petition for Writ ofKalikasan with Prayer for the Issuance of a Temporary Environmental Protection

Order. Petitioner is of the view that:

x x x x x

WHEREFORE, it is respectfully prayed of the Honorable Court that:

1. Immediately upon the filing of this petition, a Temporary EnvironmentalProtection Order (TEPO) and/or a Writ of Kalikasan be issued, ordering

Respondents and any person acting on their behalf, to cease and desist;

2. After a summary hearing, issue a Resolution, extending the effectivity of theTEPO until the termination of this case; and

3. After due proceedings, a Decision be rendereda. Restraining the private respondent from proceeding with the construction and

operations of the Copper-Gold Mine;

b. Nullifying issued ECC allowing the construction and operations of theCopper-Gold Mine;

c. Restraining public respondent DENR Secretary and other DecidingAuthorities from allowing further issuing to SMI ECCs allowing the

construction and operation of the Gold-Copper Mine;

d. Ordering SMI to cease and desist from proceeding with the construction andoperation of the Copper-Gold Mine ;

e. Directing the respondents to undertake measures to rehabilitate the areasaffected by exploration and mining operations, such as providing geological

intervention, marine wildlife rehabilitation, residential relocation, and other

similar, just and equitable environmental rehabilitation measures;

x x x x x

2. With all due respect, the contentions deserve no consideration from thisHonorable Court.

DISCUSSION


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THE ISSUANCE OF THE

ENVIRONMENTAL COMPLIANCE

CERTIFICATE VIOLATES THE

CONSTITUTIONAL RIGHT OF THE

PETITIONERS TO A BALANCED

AND HEALTHFUL ECOLOGY AS

WELL AS ESTABLISHED

ENVIRONMENTAL LAWS, RULES

AND REGULATIONS:

Article II, Section 16 of the 1987 Constitution is explicit that the right to a

balanced and healthful ecology should be recognized and provided for by the State.

This provision alone, being self-executory, may be utilized by some environmental

activists in raising their claims1. However, reliance on this right alone would be

foolish and impractical. Further evidence should be presented in order to enhance its

position.2

As will be discussed, there is insufficient evidence to prove that

Respondents have placed the environment at a disadvantage, and have

prejudiced the community by the issuance of the Environmental Compliance

Certificate (ECC).

As determined through years of extensive studies, open-pit mining is the only

viable option for the Tampakan Project. Safety of workers and environmental

concerns were among those taken into consideration.3

THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE IS IN CONTRAVENTION OF THE OPEN PIT MINING BAN

OF SOUTH COTABATO;

We disagree.

1 La Vina (1994). The Right to a Balanced and Healthful Ecology; The Odyssey of a Constitutional Policy.2 Ibid.3 Tampakan Copper-gold Project Open-pit Mining, Xtrata Tampakan Technical Factsheet Vol.9


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Section 12 of Executive Order No. 794, Institutionalizing and Implementing

Reforms in the Philippine Mining Sector Providing Policies and Guidelines to Ensure

Environmental Protection and Responsible Mining in the Utilization of Mineral

Resources, provides to wit:

x x x x x

SECTION 12. Consistency of Local Ordinances with the Constitution and National

Laws/LGU Cooperation. The Department of the Interior and Local Government (DILG)

and the LGUs are hereby directed to ensure that the exercise of the latters powers and

functions is consistent with and conform to the regulations, decisions, and policies

already promulgated and taken by the National Government relating to the conservation,

management, development, and proper utilization of the States mineral resources,

particularly RA No. 7942 and its implementing rules and regulations, while recognizing

the need for social acceptance of proposed mining projects and activities.

LGUs shall confine themselves only to the imposition of reasonable limitations on

mining activities conducted within their respective territorial jurisdictions that are

consistent with national laws and regulations. (emphasis ours)

x x x x x

The law that currently regulates and governs the mining industry is Republic

Act No. 7942, otherwise known as thePhilippine Mining Act of 1995. This act allows

the method of open pit mining. Section 3 defines miningoperation, to wit:

x x x x x

af. Mining operation means mining activities involving exploration, feasibility,

development, utilization, and processing.

x x x x x

Therefore, the ordinance is against the mining law, and has no leg to

stand on.

Even the power vested on local government units is not a basis for the

ordinance.5 On 8 November 2012, the Department of Interior and the Local

4 This was signed by President Aquino on 6 July 2012.5As stated by the late DILG Secretary Robredo, The DILG (Department of the Interior and Local Government)

adheres to and respect the principle of local autonomy as enshrined in and zealously protected under the

Constitution. But a local government ordinance that is inconsistent with the Constitution must be struck down.

DILG: South Cotabato Governor Cannot Ban Open Pit Mining, DILG Central News, 9 December 2010.


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Government (DILG) issued Memorandum Circular No. 2012-81,Directive to Comply

with Section 12 of Executive Order No. 79, S. 2012 (EO No. 79) . Notably, important

points from a case decided by the Honorable Supreme Court6 were discussed, to wit:

x x x x x

1.The Power of the Local Government Units to legislate and enact ordinances and

resolutions is merely a DELEGATED POWER coming from Congress;

2. Ordinances should not contravene an existing statute enacted by Congress;

3. Municipal governments are only agents of the national government. The delegate

cannot be superior to the principal or exercise powers higher than those of the latter;

4. The principle of local autonomy under the 1987 Constitution simply means

decentralization. It does not make local governments sovereign within the state or an

imperium in imperio. (emphasis ours)

x x x x x

And pursuant to Opinion 87, S. 20127 by the Department of Justice (DOJ),

Local government units banning open pit mining can now be sanctioned. The DILG is

now empowered to file cases against local government officials who will enact

ordinances in violation of Section 12 of EO 79, on the grounds of grave abuse of

authority and gravemisconduct.

THE OPERATION OF THE COPPER-GOLD MINE IS IN

CONTRAVENTION TO R.A. 9729 PART V, RULE 20, SECTION 1;

Republic Act 9729 isAn Act Mainstreaming Climate Change into Government

Policy Formulations, establishing the Framework Strategy and Program on Climate

Change, Creating for this Purpose the Climate Change Commission and for Other

Purposes.8

This does not mention anything about mining.

6Lina vs. Pao, GR No. 129093, 30 August 2001.

7South Cotabato Dads Say Open-Pit Ban Contrary to Law,Business Mirror, 02 December 2012; The legal opinion

is not yet available in the DOJ website.8President Arroyo signed RA 9729 into law on 23 October 2009.


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In the latter part of the pleading, it becomes clear that Petitioners werereferring tothe Rules of Procedure for Environmental Cases. Rule 20 of this law

provides, to wit:

x x x x x

PRECAUTIONARY PRINCIPLE

Section 1.Applicability- When there is a lack of full scientific certainty in establishing a

causal link between human activity and environmental effect, the court shall apply the

precautionary principle in resolving the case before it. The constitutional right of the

people to a balanced and healthful ecology shall be given the benefit of the doubt.9

x x x x x

We fail to see exactly what Petitioners are trying to say.

This provision simply lays out the application of the procedurefor

environmental cases. This law does not say anything about prohibiting mining

because the constitutional right of the people to a balance and healthful ecology

shall be sustained. This law merely talks about procedure (arrest, pre-trial trial, et

al.).

For the sake of argument, if we were to strictly follow this precautionary

principle, the Philippines would lose the opportunity of becoming a source of a

globally competitive mining industry, which could be provided by the Tampakan

mining project.

The application of the Precautionary Principle in different fields has been

criticized internationally. It is emphasized that should all countries be bound by this

lowest standard of health and environmental protection, they would be placed in a

very undesirable situation since to a lot of factors, such as culture and risk averseness

affect its general application10.

This principle is comparable to a better be safe than sorry ideology.

Accordingly, the precautionary principle may be accepted as an aspirational

policy but not a legal rule because of its vagueness11. The concept is based only on

the idea of prevention and not on any definite standards. Since the principle is

9 A.M. No. 09-6-9-SC10 Lyons, et. al., An Environmentalists Vision of Operationalizing the Precautionary Principle in the Management

of Chemicals,International journal of occupational and environmental health , Oct-Dec 2000.11 Marchant, G. E., From general policy to legal rule: aspirations and limitations of the precautionary

principle.Environmental Health Perspecitives, 2003.


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indefinite, it opens an avenue for capriciousness in the decision-making of both

governmental agencies and courts12. This principle, being ambiguous, cannot

justify the denial of the Tampakan project.

DENR DOES NOT SUPPORT MINING OPERATIONS OVER 1,000

METERS ABOVE SEA LEVEL

Petitioners have no basis for this allegation.

Notably, Lepanto Consolidated Mining, with its mining site at Mankayan,

Province of Benguet, operates in elevations of 600 to 1,500 meters above sea level.13

And nothing in the Phili ppine M ini ng Actprohibits mining in area higher

than 1,000 meters above sea level.

THE ENVIRONMENTAL DAMAGE

THAT WILL BE CAUSED BY THE

CONSTRUCTION AND OPERATION

OF THE GOLD-COPPER MINE

SHALL ADVERSELY AFFECT THE

RESIDENTS OF THE PROVINCES OF

DAVAO del SUR, SULTAN KUDARAT,

SOUTH COTABATO AND

SARANGANI, PARTICULARLY THE

MUNICIPALITIES OF KIBLAWAN,

COLUMBIO, TAMPAKAN AND

MALUNGON, AND THE FRAIL

ECOLOGICAL BALANCE OF THE

AREA;

There is no dispute that SMIs project involves a coal-fire powered

station. But the operations will not cause environmental damage to such

12 Ibid at 11.13From the Lepanto Consolidated Mining website, Far Southeast, Location and Accessibility.


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extent as Petitioners discussed it. The environment has always been taken into

consideration by SMI.

The EIS (Environment Impact Statement) has been prepared by Filipino

specialists and international experts and identified the potential environmental and

social impacts of the proposed mining operation and detailed SMIs comprehensive

mitigation strategies.14

SMI is also fully aware of the mandatory process in the Philippine Mining

Act, under Section 35 of Chapter VI on Financial and Technical Assistance

Agreement, and is committed to abide by it, to wit:

x x x x x

k. Requiring the proponent to effectively use appropriate anti-pollution technology and

facilities to protect the environment and to restore or rehabilitate mined out areas and

other areas affected by mine tailings and other forms of pollution or destruction.

x x x x x

AIR POLLUTION

As stated by SMI in their Sustainability Report for Tampakan, for the year

2011:

x x x x x

We are committed to measuring, controlling and reducing harmful air emissions. This

not only helps protect air quality and the environment, but also helps us maintain good

relationships with local communities, and therefore protect our license to operate.15

As stated by SMI in their EIA about air quality, to wit:

x x x x xA detailed air quality modeling assessment was undertaken for the Project

involving 120 model scenarios.It addressed representative development stages over the

14 Xstrata Copper: SMI consults stakeholders on its proposed Tampakan copper-gold mining operation, from the

Xstrata webside, 14 June 2011.

15Tampakan Copper-Gold Project, Sustainability Report 2011.


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life of the Project and included all relevant air emissions including particulate matter,

metals, sulphur dioxide, nitrous oxides and volatile organic compounds.

Ambient air quality was predicted in the area surrounding the Mine Project site

including at 47 of the closest neighboring villages and towns. The predicted air quality

levels are compliant with the adopted Project air quality guidelines at all of these

villages and towns. There are some small areas outside the Project site boundary where

the predicted air quality for some parameters is above the adopted Project air quality

guidelines. These areas are predominantly in the vicinity of the open-pit. However, there

are no residential villages or other sensitive receptors currently located within these

areas.

A real time air quality monitoring program is proposed in order to confirm the actual air

quality in neighboring areas during construction and operations.16

x x x x x

(emphasis ours)

They also have this to say about air quality, to wit:

x x x x x

A number of leading air quality guidelines were considered for this Project. We have

adopted air quality guidelines for the Project that are primarily based on the

Philippine Clean Air Act. Where no standard was available for a particular emission, we

used the following international guidelines (in descending priority order):

United States Environmental Protection Agency (USEPA) Standards

World Health Organisation (WHO) Air Quality Guidelines

European Union (EU) Guidelines

New South Wales (Australia) Guidelines.17

x x x x x

As also stated by SMI in their EIA, but this time, on greenhouse emissions, to

wit:

16 Tampakan Copper-Gold Project, Environmental Impact Assessment (EIA), Overview Document.17 Tampakan Copper-Gold Project, Air Quality and Greenhouse Gases.


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x x x x x The assessment concluded that the peak annual greenhouse gas emissions

from the Project (in year 15 of operations) are expected to contribute less than 0.4%

to Philippine national emissions.

Greenhouse gas emissions will be managed through a range of measures including

preparation of annual greenhouse emissions inventories, regular forums to evaluate

energy use and efficiency opportunities and public reporting of greenhouse initiatives.18

x x x x x (emphasis ours)

WATER POLLUTION

Respondents have decided to consolidate all water-related issued stated by

Petitioners.

Petitioners mentioned under Environmental Damage V, to wit:

x x x x x

If compared to Philex mining, Philex milled 311 million metric tons of ore between

1955 to 2006. Today, it will mill 54 million metric tons in six years or around 9 million

metric tons per annum. Tampakan mining will mill 2.2 billion metric tons in 25 years

implying 88 million metric tons per annum or more than 10 times of Philex mining from

1955 to 2008. This means that Tampakan is unprecedented and more than 10 times the

environmental impact and risks of Philex mining. It will require not only the area for ore

mining, but also land for space for the mined ore, milling, tailing ponds, company

facilities, public relations facilities and dams.

19

(emphasis ours)

x x x x x

Respondents do not see the relevance and materiality of comparing Philex

Mining with SMI in its Tampakan Project.

Reports and investigations say that the Philex Benguet mine leakage, which

resulted in spilling of mine wastage into river systems, was due to the companys

negligence. The Mines and Geosciences Bureau (MGB) opined that the company had

been negligent for failure [sic] to exercise the necessary diligence required by the

safety standard and regulations for the care and maintenance of the mine structures

18 Ibid at 16.19 Mining in the Municipality of Tampakan: risks and alternatives by Arturo Boquiren


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and facilities.20 Conversely, the tragedy would not have taken place had there been

no failure to execute such duty.

SMI explained how it can manage water, to wit:

x x x x x

We understand water quality and security is important for our stakeholders. It is

their basic right to have access to clean and safe water.

We recognize it is critical we demonstrate our competence and capability to manage

water resources, to ensure we provide our communities and stakeholders with

confidence in our proposed management strategies and in the Tampakan Project.

SMI has invested significant resources in conducting extensive technical studies to

establish baseline water resources data in the region, together with carefully studying the

proposed mines potential impact.21

(emphasis ours)

x x x x x

SMI also mentioned the strategies it will use for water management:

x x x x x

Using leading, international standard water conservation and recycling methods

to reduce water usage approximately 70% of the Tampakan Projects water

needs would be met by recycling water

SMI is designing the mine so it can operate without significantly impacting

the amount of water currently used by the local community in the Taplan

catchment by fully compensating Taplan River flows that may be affected by theopen-pit

Constructing containment facilities such as seepage collection dams and

international standard water treatment facilities to ensure any water

discharged from site is suitable for all current uses

Monitoring of surface and groundwater in collaboration with community and

government groups to validate the integrity of our numerous impact mitigation

measures

20 The Government rejects Philex Mining appeal,Business World Online, 22 November 2012.21Ibid at 15.


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Locating the mine infrastructure away from the ecologically significant Lake

Buluan district.22

(emphasis ours)

x x x x x

Another proposal of SMI is best practice erosion and sediment controls which

would control the possible sedimentation of waterways during construction process.23

On the issue of negative impacts on people who rely on fishing, according to

SMI:

The loss of aquatic habitat would be mitigated through compensatory habitat

enhancement. This would be implemented through the Biodiversity Management Plan.

The Biodiversity Management Plan would also include a monitoring program for

downstream aquatic ecology.

The adopted site discharge water quality standards have been set at levels that are

specifically designed to ensure there are no significant adverse impacts on downstream

aquatic ecosystems. Best practice erosion and sediment control measures are also

proposed to be implemented on the Project site. This would ensure that downstream

waterways and associated aquatic ecology are not adversely impacted by

sedimentation.24

(emphasis ours)

SMI also mentioned that copper is beneficial to sustainable development,particularly in water, to wit:

x x x x x

Copper is used in the fish farming industry to control the growth ofbacteria in the water

x x x x x

Copper pipes help to keep drinking water clean by inhibiting the growth

22 Ibid at 15.23 Ibid at 16.24Ibid at 16.


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of bacteria25

x x x x x

2.7 BILLION TONS OF MINE WASTES WILL BE PRODUCED

Mining wastes are inevitable, but with proper management, wastes can be

reduced.

SMI plans to have mine waste storage facilities,26 and to xxx efficiently use

natural resources and implement measures to prevent pollution and reduce waste.27

SMI does not deny that mine waste materials would possibly produce acid

drainage when exposed to oxygen and/or water, but according to the company:

x x x x x

The design and operating plans for the mine waste storage facilities have been

developed to ensure geotechnical stability, appropriate management of waste

geochemistry and the potential for acid generation, and management of the surface

water runoff and seepage from the stored wastes.

The majority of the waste rock (1.35 bt) would be stored in the Waste Rock Storage

Facility (WRSF). All tailings (1.1 bt) will be stored in the Tailings Storage Facility

(TSF).28

(emphasis ours)

Waste management is highly regarded by SMI. In its report, it stated that:

x x x x x

Although we are not yet operating, the proper management and disposal or recycling of

wastes is necessary to avoid environmental impacts. We aim to reduce both the

quantity and toxicity of our waste, to find opportunities for environmentally sound

recycling or reuse of our wastes and to continue to ensure our remaining wastes are

25Ibid at 15.

26 Tampakan Copper-gold Project, The Mine EIA Process.27 Xtrata Copper Tampakan Project, Sustainability Report 2009.28 Ibid at 16.


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managed and disposed of in a safe and environmentally responsible manner.29

(emphasis ours)

x x x x x

75% OF FOREST AREAS AND 32% OF AGRICULTURAL LANDS WILL

BE AFFECTED

SMI is committed to reforest.

There is a mandatory process under thePhilippine Mining Act of 199530 called

for securing all possible liabilities of mining companies and providing for progressive

rehabilitation of sites which were used for mining, to wit:

Section 35

Terms and Conditions

x x x x x

k. Requiring the proponent to effectively use appropriate anti-pollution technology and

facilities to protect the environment and to restore or rehabilitate mined out areas

and other areas affected by mine tailings and other forms of pollution or

destruction. (emphasis ours)

x x x x x

Section 69 of the Act also provides, to wit:

x x x x x

Every contractor shall undertake an environmental protection and enhancement

program covering the period of the mineral agreement or permit. Such environmental

program shall be incorporated in the work program which the contractor or permittee

shall submit as an accompanying document to the application for a mineral agreement

or permit. The work program shall include not only plans relative to mining

operations but also to rehabilitation, regeneration, revegetation and reforestation

of mineralized areas, slope stabilization of mined-out and tailings covered areas,

29 Ibid at 15.30 Republic Act 7942


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aquaculture, watershed development and water conservation; and socioeconomic

development. (emphasis ours)

Furthermore, Section 71 provides, to wit:

x x x x x

Contractors and permittees shall technically and biologically rehabilitate the

excavated, mined-out, tailings covered and disturbed areas to the condition of

environmental safety, as may be provided in the implementing rules and regulations of

this Act. A mine rehabilitation fund shall be created, based on the contractors

approved work program, and shall be deposited as a trust fund in a government

depository bank and used for physical and social rehabilitation of areas and

communities affected by mining activities and for research on the social, technical

and preventive aspects of rehabilitation. Failure to fulfill the above obligation shall

mean immediate suspension or closure of the mining activities of the

contractor/permittee concerned. (emphasis ours)

There have been reforestation initiatives by SMI, to wit:

x x x x x

In 2011, we supported the National Greening Program (NGP) of the Philippine

Government and adopted two Department of Environment and Natural Resources

(DENR) Community-Based Forest Management (CBFM) areas in Tampakan and

Kiblawan.

x x x x x As part of the agreement a total of 162 hectares were planted with fast

growing and high-value trees. x x x x x

We also distributed a total of 134,530 seedlings outside the Tampakan Project area to

support the tree planting activities of DENR, LGUs, various civic and private

organizations and individuals in Region XI and XII. Under this program, a total of 122

hectares were planted during 2011.

For 2012, additional CBFM areas covering 190 hectares have been identified in

Matanao, Tampakan and General Santos City as priority areas for planting. These


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areas are separated into three main reforestation categories: agroforestry,

production and protection.31

(emphasis ours)

x x x x x

Notably, 284 hectares across the project area were reforested. SMI was

recognized as an Outstanding Environmental Awardee for its reforestration

work. And another recognition was having garnered second runner up in the Best

Mining Forestry Program Award from DENR, as reported by the company in its

2011 Sustainability Report.

SMI is concerned about agriculture, particularly of the welfare of the

farmers:

x x x x x

The agroforestry farms will provide farmers with agricultural crops, rubber and

fruit trees that they can harvest to supplement their income. The production forest

will be planted with fast-growing, indigenous and exotic tree species for harvest. In the

protection forest, cutting and harvesting will be prohibited.

There are many benefits farmers can gain from CBFM program. The participating

members will be paid for their labor, receive high-quality seedlings and fertilizers, and

participate in skills development programs on tree planting and maintenance. Most

importantly, the program will provide them with a sustainable source of income and

therefore improve their standard of living.32

EIA SUBMITTED BY SMI DID NOT INCLUDE CLIMATE CHANGE

IMPACT IN THEIR ANALYSIS

As stated by Petitioners:

Overall, it appears that the ecological risks and values were either

underestimated or underplayed in the feasibility studies of SMI.

31 Ibid at 15.32Ibid at 15.


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SMI may not have included climate change impact in their EIA, but the

company was able to appropriately address this in its 2011 Sustainability Report,

which provides, to wit:

x x x x x

We recognize the future effects of climate change represent a risk for our future

operations and communities. We seek to be as energy efficient as possible to minimize

our greenhouse gas (GHG) emissions and reduce our operating costs. We also switch to

renewable or low-carbon sources where it is available and cost effective.

We believe the key to the effective management of GHG emissions takes place long

before any mining operation commences. The design of the mining and processing

operation is critical as once commissioned, this design will dictate the energy inputs

required and GHG outputs released over its lifespan. To facilitate the development of

an energy efficient operation, all Xstrata projects are required to include a

contingency cost for carbon in their financial models. This allows our project

development teams to optimize the GHG footprint of the Project.

As established in the SMI sustainable development (SD) policy, we set targets to reduce

our direct and indirect GHG emissions, and work closely with governments,

organizations and other groups to address climate change.33

(emphasis ours)

THE TAMPAKAN MINING PROJECTS SITS ON TOP OF A FAULT LINE

AND IS JUST 12 KILOMETERS AWAY FROM THE VOLCANO, MT.

MATUTUM

According to Dr. Carlos Arcilla, a geology expert at the National Institute on

Geological Sciences University of the Philippines, "You cannot just say that the

Tampakan project will cause earthquake and volcanic eruptions without

considering proper engineering and existing baseline data."34

SMI was issued a certification by the Philippine Institute of Volcanology and

Seismology (PHIVOLCS), which stated that the nearest active earthquake fault is

33Ibid at 15.

34Tampakan Mine Can Be Sustainablegeologist,Rappler.com, Updated on 19 September 2012.


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approximately 10 kilometers from the project area.35 This indicated that the mining

area is not within a high risk zone.

Mt. Matutum is a dormant volcano according to Renato Solidium, Jr., director

of PHIVOLCS.

As stated by him, to wit:

x x x x x observations of fire and smoke near its summit are non-volcanic in origin

based on findings of forest rangers in Barangay Maligo, Polomolok, South Cotabato after

the conduct of an ocular inspection.36

x x x x x

The oculars were done at the crater area by which firsthand photographs and

videos were obtained. At the volcano-seismic observatory at Mindanao State

University at General Santos City, seismic records revealed no volcanic activities.

More importantly, measures had been undertaken to ensure the safety and

possible hazards of the area.

As what we averred in our Sustainability Report for Tampakan, for the year

201137

, to wit:

As part of the engineering studies undertaken during the Mining Project Feasibility

Study (MPFS), a site-specific hazard assessment was completed to assess the potential

for and to design against, major damage to key mine infrastructure, including the Waste

Rock Storage Facility (WRSF), Freshwater Dam (FWD), open-pit and Tailings Storage

Facility (TSF).

35Special Report: The Tampakan Project: battle over Southeast Asias largest gold-copper reserve,Minda News, 11

November 2012.36Mt. Matutum still dormant, The Mindanao Cross Global, 11 August 2012.

37Ibid at 15.


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Should a large earthquake occur, the FWD and TSF are designed such that the risk

of complete failure of either structure is negligible and any deformation or damage

could be repaired without compromising the future safety and stability of the

facility. (emphasis ours)

And as stated by John Arnaldo, spokesperson of SMI, to wit:

x x x x x dams and buildings are constructed safely world-wide in a variety of

environments and the analysis undertaken by our geologists and engineers is

consistent with leading practice, that is to assess the risk and design the structures

accordingly.38

(emphasis ours)

x x x x x

RESPONDENTS VIOLATED THE PRINCIPLE OF PRIOR FREE AND

INFORMED CONSENT AND OTHER ENVIRONMENTAL LAW

PRINCIPLES UNDER THE IPRA

This argument is baseless.

As can be gleamed from the petition, the petitioners merely stated, to wit:

x x x x x

A fact-finding mission has uncovered further evidence that the Xstrata-operated

Tampakan mine in the Philippines did not have the Free, Prior, Informed Consent of the

affected B'laan communities.

x x x x x

Sadly, there was hardly any discussion on how SMI actually violated the

principle of the Free, Prior, Informed Consent (FPIC), and at most it is a mere

speculation.

38Ibid at 35.


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According to SMI, in its EIA:

x x x x x

When engaging with IPs and other directly affected peoples, SMI promotes full

respect for their dignity, human rights, aspirations, cultures and natural resource-

based livelihoods. We uphold and promote human rights within our areas of influence,

respecting the cultural heritage, customs and rights of communities, including

indigenous peoples. (emphasis ours)

x x x x x

SMI, in 2009, reported about its FPIC with the Indigenous Peoples:

x x x x x

As mandated by law, specifically the 1995 Philippine Mining Act and the

Indigenous Peoples Rights Act (IPRA), we commenced the process of securing Free

and Prior Informed Consent (FPIC) from our host communities. Pre-scoping and

public scoping meetings, consultations, and assemblies were conducted for both the ESIA

and the FPIC. A total of 94 stakeholder groups, approximately 1,500 individuals, were

engaged in a series of 43 small, private consultation meetings from September to

December 2009. Four public scoping meetings were held from 17 to 20 November 2009.

This was a key milestone for the Tampakan Project ESIA approvals process, reaching a

cross-section of sectors composed of 415 leaders in Tampakan, South Cotabato; 375 in

Kiblawan, Davao del Sur; 367 in Malungon, Sarangani; and 430 in Columbio,

Kudarat.39

x x x x x

And in SMIs discussion of social development:

x x x x x

SMIs studies indicate that, if the Project is approved, royalty payments and direct

contributions in excess of PhP39.8 billion (nominal) would be made to local

communities and indigenous groups over the Projects life.

x x x x x

39 Ibid at 27.


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In addition, SMI would be working with indigenous communities and the National

Commission on Indigenous People, to ensure that each indigenous community has

an Ancestral Domain Sustainable Development and Protection Plan (ADSDPP) for

the ancestral domains affected by the Project (refer box About ADSDPP).

Both the SDMP and ADSDPP seek to ensure that the affected communities are able to

benefit both immediately and in the long-term from the opportunity presented by the

Projects contribution.40

(emphasis ours)

x x x x x

Furthermore, petitioners contend that:

x x x x x x

a lot of deaths that happened in connection with the said mining

x x x x x

Philippine Armed Forces continuously launched a military campaign of terror and

harassment on civilians, mostly members of the Blaan tribe.41

x x x x x

These accusations are based on gathered news reports and a report conducted

by Center for Environmental Concerns-Philippines. The argument is baseless and

completely unpalatable. These news articles amount to hearsay evidence and are

without any evidentiary value. Petitioners must present the writers of these articles

in court to affirm its veracity.

And contrary to Petitioners claim, SMI has an extensive resettlement

procedure. SMI created a Resettlement Committee (RC) composed of 115 members

which are

elected by the community, and they represent their community and relay

community feedback to the RC. 42 The committee has the following functions:

x x x x x

Identify and communicate community concerns and ideas to SMI relating to

resettlement

40Tampakan Copper-gold Project, Benefits to the Community.

41 Petition for Writ of Kalikasan: Alyansa Tigil Mina, et al. vs. Secretary of DENR, et al.42 SMI, Resettlement, Resettlement Committee Fast Facts.


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Act as a conduit to affected communities by communicating informationregarding the status of resettlement activities and outcomes from RC meetings

Provide relevant inputs into resettlement planning and processes tabled at RC

meetings, via participation and group discussions

Develop and obtain consensus of the resettlement packages, which include,

resettlement sites, eligibility, compensation (land, crops, community buildings

and infrastructure, other structures), replacement housing, and livelihood

restoration.43

x x x x x

Aside from the RC, an additional safeguard was created by the SMI; an

Oversight Committee to ensure that resettlement procedures will not trump on the

rights of the Indigenous People as protected under the IPRA. The committee, who is

tasked to have a monthly meeting, is composed of, to wit:

x x x x x representatives from SMI, the National Commission on Indigenous Peoples

(NCIP), Mines and Geosciences Bureau (MGB), Provincial and Municipal Local

Government Units, and the Commission on Human Rights (CHR) will oversee theresettlement consultation process to ensure transparency and compliance with leading

practice and SMI's commitment to fairness and equity.44

They will also discuss community feedback and advise on the attitudes and

views of the community, government and other agencies. Ultimately, SMI assured

that it has not commenced any resettlement until

Free and Prior Informed

Consent (FPIC) is granted by indigenous peoples and a Resettlement Action Plan

(RAP) is endorsed by Project Affected Persons.45

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed before this

Honorable Court that the Petition for Writ of Kalikasan with Prayer for the issuance of

43 Ibid.44 Ibid at 42.45 SMI, Resettlement, About Resettlement.


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a Temporary Environmental Protection Order [TEPO] and the Cancellation of the

ECC issued by Respondent DENR be dismissed.

Other just and equitable relief and remedies are likewise prayed for.

Quezon City for Manila.

08 December 2012.

CHAVEZ, DE LEMOS AND DE LEON LAW OFFICESCounsel for the Respondents

5-B Kundiman St. Cor. Del Monte Ave.,

San Francisco del Monte,

Quezon City, M.M. 1100

Tel. Nos. 372-96-33

By:

MARIAN CAMILLE E. CHAVEZ

PTR NO. 6575015/ 28 March 2012/ Quezon City

IBP NO. 892488/ 02 March 2012/ Quezon City Chapter

Roll No. 60688

Admitted to the Bar on 26 March 2012

MIRRIAM ANDREA V. DE LEMOS


IBP NO. 893567/ 02 March 2012/ Quezon City Chapter

Roll No. 60758


-and-

DINO S. DE LEON


IBP NO. 891465/ 02 March 2012/ Quezon City ChapterRoll No. 60898


Documents

Comment Opposition Writ of Kalikasan