MAC/20: Mines and Communities

New Philippine mining rules, but will anything change?

Published by MAC on 2012-09-18
Source: Statements, Malaya, Manila Bulletin, Mindanews

The Philippine Government has issued its new rules to implement the President's Executive Order No. 79 on mining (see Philippines: The President finally publishes, but arguments continue...).

Despite assertions that these will settle the issue of Xstrata's Tampakan project being blocked by the local government, it seems they won't. Nor is the law retroactive.

However, the first place chosen to "sell" the new rules is Australia where Xstrata's copper division (which would operate this project) is based.

While all this fiddling goes on, Rome is burning - or rather the tailings dam is leaking; as there have been further spills at Philex's Padcal mine since the first leak in early-August (see: Philippines: A flood of mining problems). The concerns, and the potential fines, are escalating. It is now thought that the Padcal mine may not reopen as a result.

Elsewhere, in Palawan and Surigao, Friends of the Earth (FoE) Japan has found water sources have been contaminated with Hexavalent Chromium in mines and a processing plant operated by Nickel Asia Corp. The research studies can be read at:-

One of the mines in question was attacked by the NPA, allegedly for its role in polluting the local environment (see: Large-scale mining operations in the Philippines attacked).

Goldfields continues still has to wait for FPIC before it can push ahead with its joint operation with Lepanto Consolidated.

Finally, Time Magazine has published an article on the struggle of the US mining company St Augustine, to build an open pit mine in a gold rush area full of small-scale miners, situated in the Compostella Valley, Mindanao.

This presents a microcosm of many of the problems associated with mining in the Philippines, which it seems highly unlikely the Government will do anything worthwhile to address.

DENR issues rules to implement EO 79

Department of Environment and Natural Resources (DENR) statement

12 September 2012

The Department of Environment and Natural Resources (DENR) has issued the implementing rules and regulations (IRR) for Executive Order No. 79 institutionalizing mining reforms in the country.

DENR Secretary Ramon J. P. Paje said the IRR, contained in DENR Administrative Order No. 2012-07, was issued in accordance with the deadline prescribed by Malacanang, and will take effect 15 days after its publication in a newspaper of general circulation.

Paje said the IRR seeks to achieve the six-point agenda adopted by the Climate Change Adaptation and Mitigation and the Economic Development Cabinet Clusters, such as ensuring the mining industry's contribution to the country's sustainable development, adoption of international best practices and promote good governance and integrity in the sector, and ensure the protection of the environment by adopting technically and scientifically sound methods as well as indigenous best practices.

The rules are also seen to ensure the consistency of local issuances with the Constitution and national laws, including a fair, adequate and equitable shared economic benefit for the country and the people, and deliver efficient and effective management of the mining sector.

"We assure the public that the IRR is a transparent guideline, which has gone through a series of consultations with civil society, the industry, local government units, indigenous peoples, and other stakeholders within the two months given by President Aquino," Paje said.

EO 79 was issued on July 6, 2012 by President Aquino to institutionalize reforms in the mining industry, with focus on ensuring environmental protection and responsible mining in the utilization of the country's mineral resources.

Under the IRR, the areas banned from mining have been expanded to include tourism development areas identified not only in the National Tourism Development Plan but also in local development plans.

Other areas where mining are not allowed include those that have been expressly provided for in Republic Act No. 7942 (Philippine Mining Act); protected areas established under the RA 7586 (National Integrated Protected Areas System); prime agricultural lands, lands covered by RA 6657 (Comprehensive Agrarian Reform Law as amended), plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Department of Agriculture; and other critical areas, island ecosystems and impact areas of mining that the DENR may identify pursuant to existing laws, rules and regulations.

Relative to this, the National Mapping and Resource Information Authority (NAMRIA) has been tasked to create within four months from the effectivity of the IRR, an integrated maps system that will include the areas closed to mining.

Paje said that mining contracts, agreements and concessions approved before the effectivity of the EO shall continue to be valid provided that they strictly comply with existing laws, rules and regulations. He stressed, however, that all pending mining applications situated in areas that are closed to mining are "deemed denied" under the IRR.

He further said that pending the passage of a legislation rationalizing existing revenue sharing schemes and mechanisms, the DENR will not grant any new mineral agreement although it may opt to issue exploration permits and other forms of mining permits such as mineral processing permit, government seabed quarry permit, special minerals extraction permit, industrial sand and gravel permits.

As for small-scale mining, Paje said that this shall be governed by RA 7076 or the People's Small-Scale Mining Act of 1991. Small-scale mining activities shall also be conducted only in areas declared as Minahang Bayan by the DENR.

All mining permits for review


12 September 2012

Government will start reviewing within six months all existing mining contracts as part of the plan to weed out inactive ones as well as check on their compliance to environment standards.

The Department of Environment and Natural Resources (DENR) yesterday issued the the implementing rules and regulations (IRR) that makes the Philippine mining policy or Executive Order No. 79 operational.

The IRR details areas where mining is banned, provides for the review of existing mining operations and the purging of inactive ones and reiterates the moratorium on new mineral agreements pending legislation on revenue-sharing.

The government would also expand mineral reservations - or those potential and future mining areas with known strategic mineral reserves and resources -- and tie these to the development of industries.

There is also tighter guarding on small scale miners to ensure that they keep the environment safe.

The IRR also provide that mining rights and mining tenements with known and verified mineral resources would be granted through competitive bidding.

The IRR identifies the areas closed to mining (table)

A list and the corresponding maps with technical descriptions of the areas closed to mining are supposed to be submitted to the National Mapping and Resource Information Authority (NAMRIA).

The IRR said mining contracts, agreements and concessions approved before the effectivity of the EO shall continue to be valid, binding and enforceable, provided they strictly comply with existing laws.

The IRR also ensures full enforcement of environmental standards such that any violation of the provisions of RA 7942 will require the mining firm to undertake the necessary remediation measures for the affected areas and the suspend the operations until the danger is removed.

As the government would no longer enter into new mineral agreements until revenue-sharing is resolved through legislation, the DENR would still continue to grant and issue exploration permits and other forms of mining permits except for national government- owned mining assets.

The IRR said potential and future mining areas with known strategic mineral reserves and resources shall be declared as mineral reservations for the development of strategic industries identified in the Philippine Development Plan and a National Industrialization Plan.

This would entail intensified mineral exploration, and research and development program for the delineation of mineral resources and reserves of the entire country.

In its effort to develop downstream industries and generate value-adding activities in mining, a multistakeholder committee shall formulate within a period of six months a national program and roadmap, based on the Philippine Development Plan and a National Industrialization Plan, for the development of value-adding activities and downstream industries for strategic metallic ores.

The IRR also addresses disposition of abandoned ores and valuable metals in Mine wastes and mill tailings by previous and defunct mining operations which would be developed and utilized through competitive public bidding.

In the case of existing mining operations, all valuable metals in mine wastes and/or mill tailings shall automatically belong to the state.

The IRR also identifies measures to improve small-scale mining by making them fully comply with RA No. 7076, or the People's Small-Scale Mining Act of 1991.

On the issue of consistency of local ordinances with the Constitution and national laws, the IRR directed the Department of the Interior and Local Government (DILG) and the LGUs to ensure that the exercise of the lattter's 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 State's mineral resources.

"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," the IRR said.

The DENR shall establish an inter-agency one-stop shop for all mining related applications and processes within six months from the effectivity of the EO. The DENR shall issue authority to verify mineral deposits only for areas open to mining, as defined in the EO.

Australia Mining Info Drive Set

By Bernie Cahiles-Magkilat

Manila Bulletin

10 September 2012

MANILA, Philippines - Government economic managers will explain to the Australian mining sector the Aquino's administration's new mining policy to allay fears that the Philippines is no longer interested in mining investments.

Finance Secretary Cesar V. Purisima will head the economic managers in conducting a one-day information campaign on Wednesday, September 12, before Australia's mining investors. The economic managers mass briefing is also part of the activities for President Aquino's official visit to Australia-New Zealand on October 22 to 26.

"The economic managers will explain to the Australian mining businessmen the Aquino government's new mining policy under EO 79 and this new policy benefits them," a DTI official said.

Earlier, Trade and Industry undersecretary Cristino L. Panlilio said that Australian mining investors were also interested in meeting with President Aquino that the country's economic managers decided to conduct an information campaign ahead of the President's visit.

Australia is the Philippines's largest mining investor. Australian mining firms with existing investments in the country include Indophil Resources and Xtrata Copper, investor in Tampakan Copper-Gold project and Oceana Gold; Oceana Gold; BHP Billiton; and Rio Tinto.

Oceana Gold, investor in Didipio Copper Gold, and CGA Mining Ltd., investor in Masbate gold mine.

BHP Billiton and Rio Tinto, two largest company by revenues in Australia. BHP Billiton is also active in petroleum service contract or PSC holders in the country in west Balabac, southwest Palawan.

Australian mining firms are facing cost pressures from low world commodity prices and have become cost sensitive. Said firms are delaying slash/copper/gold projects in Australia.

Australian visit advance party to talk on mining


11 September 2012

Economic managers will explain the new mining policy to prospective investors in Australia ahead of the official visit of President Aquino next month.

An official privy to the event said Finance Secretary Cesar Purisima and Trade Secretary Gregory Domingo will lead the economic briefing for investors on the mining policy "and how it benefits them" at a roadshow that starts tomorrow September 12.

The officials would to meet separately with mining officials in Australia to correct misconceptions and clarify ambiguous issues on Executive Order issues by President Aquino last July.

"The group would relay the correct version from the horse's mouth because investors hear a lot of things about the mining policy," the official said.

President Aquino on October 22 to 28 would hold a six-day official visit to two of the world's mineral-rich countries Australia and New Zealand these two countries to seek both business-to-business and government-to-government deals, in mining, infrastructure especially under the public-private partnership, shipbuilding, energy and even fishing.

The delegation would include members of the Chamber of Mines of the Philippines.

Some of the mining companies being targeted for meetings and deals in Australia are BHP Billiton and Rio Tinto, two largest companies in Australia; Indophil Resources and Xtrata Copper, investor in Tampakan copper-gold; Oceana Gold, investor in Didipio copper gold; CGA Mining Ltd., investor in Masbate gold mine.

Earlier, Trade Undersecretary Cristino Panlilio indicated the possibility of sealing deals with some of these companies.

Other possible investors that the Philippine delegation would meet include Leighton Holdings of Australia, a mining contractor and is engaged in infrastructure and; Serco Group Asia Pacific, also of Australia in infrastructure.

In shipbuilding, four of Australia's biggest shipbuilding firms are being being eyed: BAE Systems Australia Holdings Ltd., Austal Ltd., ASC Pty Ltd. and Thales Australia HoldingS Pty Ltd.

On energy, Australian firms may be tapped for LNG terminals in the country Alliance Select, leading canned tuna manufacturer in the Philippines, is interested in fishing in New Zealand, bring the fish by reefer to the Philippines to augment supply here.

Joining the delegation are Bangko Sentral ng Pilipinas Assistant Governor Ma. Cyd Tuaño-Amador, National Treasurer Roberto Tan, and Cosette Canilao of the Public Private Partnership Center.

Investigate Philex dam collapse - indigenous peoples

Joint statement

13 September 2012

BAGUIO CITY -- Indigenous peoples and environment watchdogs in the Cordillera today urged an independent environmental investigation mission (EIM) saying that Philex Mining Company's tailings pond 3 (TP3) collapsed, not just leaked, as company earlier alleged.

Katribu Indigenous People's Partylist, Cordillera Peoples Alliance (CPA) and Amianan Salakniban in a press conference said the EIM on Philex TP3 would evaluate the damages that the collapse of dam crest has caused from August 1-30 and should come up with recommendations that would best address the issue.

In earlier pronouncements, both the Philex management and the Mines and Geosciences Bureau of the Department of Environment and Natural Resources (MGB-DENR) dismissed the mine accidents as mere leakage and spillage.

Residents' testimonies, however, belie the company's claims that the spillage did not contaminate waterways as it claims that the mine effluents were non-toxic owing to the biodegradable chemicals used in ore extraction.

A resident of Ampucao, Tarcela Colas, in her 40's, said residents downstream from the Balog River, where mine tailings from TP3 cascaded, could no longer use water from creeks because this tasted differently after the dam collapse.

"Sabsabali ti raman diay danum," (Water tasted abnormally) Colas told Bagu‭io-based media in the same press conference. She added that rice terraces and homelots have been destroyed further.

Earlier in the early 90's the construction of the San Roque dam inundated several tracts of indigenous rice paddies.

Charles Fomeg-as, former mineworker also said mineworkers assigned to carry the tailings back for backfilling of a 30-hectare crater formed at TP3 might be facing health issues because they are handling highly toxic materials from the collapsed mine structure.

While MGB aptly ordered a halt in company operations, mineworkers on obliged to go on a single shift to do clean-up operations. They reportedly do not get paid for extra hours going to and from the Balog River before and after their official working shift, which is approximately almost two hours more daily.

According to CPA Chairperson Windel Bolinget, Philex's attempt to repair the breakage is inutile as TP3 has already gone beyond its lifespan of 18 to 20 years. In 1992, it TP2 collapsed with some 80,000 metric tons of minewastes destroying 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.

Engineer Vergel Aniceto, a resident of Itogon and former chief boss at Benguet Corporation's Acupan Mines, said no amount of repair will save Tailings Pond 3.

"Tailings Pond 3 was commissioned in 1992. With a lifespan of 18-20 years, it should have been decommissioned as early as 2010, especially that the dam crest went beyond the permitted elevation of 600 meters above sea level," said Aniceto, who is also the fourth nominee of Katribu Indigenous Peoples Partylist.

Fomeg-as, retired Philex worker, holds Philex accountable for the damages brought about by the collapse of the TP3.

"Philex allowed the disastrous mine spills to happen. A thorough investigation of the incidents has to be carried out," he said.

CPA said at least 9.9 million tons of toxic wastes went into the waterways from August 1-9 at the height of the monsoon rains. This covered a stretch of 2.5 kilometers, 15 meters wide and more than one meter thick of the Balog river in Itogon. This volume may have doubled during the fourth spill on August 30. Philex temporarily halted its Padcal mines operations to seal the breakage and conduct clean-up and rehabilitation drive, Aniceto said a much bigger disaster is waiting to happen with the imminent cascading of more mine tailings into the giant dam.

Mine effluents could contaminate a wider area down to the Lingayen Gulf, where the Agno River naturally drains.

Agno River is about 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.

Bolinget acknowledged that Pangasinan, as well as Tarlac, is an important source of food supply for the mountain provinces, especially rice and fish.

As he called for a halt in Philex's operations, he also called for the immediate holding of the EIM that would recommend the decommissioning of the collapsed dam.

He also urged the people's support for the passage of an alternative mining law that would eventually nationalize the mining industry at the same challenged the administration of Pres. Benigno Simeon C. Aquino III to withdraw its Executive Order 79 or the New Mineral Polcy.

Bolinget also iterated the Cordillera indigenous peoples' clamour for a mining moratorium.

Aniceto, meanwhile, explained that the mine effluents contained lime and probably cyanide, arsenic,lead and carbon. These can be very slimy and soapy that cascade fast downstream. # Lyn V. Ramo

Civil Society groups conduct Fact-Finding Mission on Philex Mines' tailings pond leaks

Press Release

18 September 2012

Baguio City -– The series of reported tailings leaks in Philex's Mining Corporation's Tailings Pond 3 (TP3) from August 1-30, had prompted a third party independent fact-finding mission from September 16-17, 2012 in the town of Benguet where the operations of Philex Mining Corporation is located.

The probe was spearheaded by the Philippines National Secretariat for Social Action (CBCP NASSA) and the Climate Change Congress of the Philippines (CCCP) joined by representatives of Philippine-Misereor Partnership and its Northern Luzon Cluster, Social Action Center of Baguio, Cordillera People’s Alliance, Peace Foundation, Pambansang Kaisahan ng mga Magbubukid ng Pilipinas, and Katribu Indigenous Peoples' Partylist.

First in its itinerary for field –based investigation is an ocular inspection in the site of the tailings dam and outlaying affected communities located inside the Philex Mines compound which can only be accessed through the main gate located at Barangay Ampucao , Benguet. Although prior communicated to the mining company and different government line agencies, the FFM team was vehemently denied entry by the security personnel of Philex’s outpost. All forms of vehicles and passengers and mining compound residents going in and out of the heavily guarded premises are subjected to tight security inspections. Members of the fact-finding team were also told that cameras and video equipments are strictly prohibited inside the compound.

To gather first hand information on the impact of the mine leaks, and to help identify major problems, concerns and recommendations to address the situation, the fact-finding team proceeded to conduct interviews with local government officials in Itogon, Benguet; San Roque Power Corporation, National Power Corporation, the Cordillera regional offices of Mines and Geo-sciences Bureau (MGB) and Environment Management Bureau (EMB), and the Bureau of Fisheries and Aquatic Resources (BFAR)-Region 1 office.

The Mines and Geosciences Bureau (MGB) has earlier reported that on August 1, 2012, TP3 suffered a tailings spill where the tailings breached the lower portion of Penstock A and discharged tailings into the Balog River, a tributary of the Agno River. This was followed by three more major occurrences of tailings leaks up to August 30. The Environmental Management Bureau (EMB)-CAR estimated the volume of tailings discharged from August 1-14 at 6 million metric tons. To date, neither Philex mines nor the Mines and Geosciences Bureau have come out with an updated estimate on the total volume of the tailings that has already been discharged from TP3.

EMB-CAR's results of laboratory analysis of water samples gathered on August 3 from the TP3 reveal that the Total Suspended Solids (TSS) from water sample from Penstock A is 89,710 miligrams per liter and 4,704 mg/L from Penstock B. According to Professor Alex Luis, Chief of the EMB-CAR Pollution Control Division, "the figures are way beyond the 50 mg/L per day maximum TSS level allowed for Philex's operations." This has prompted EMB-CAR to issue a Notice of Violation to Philex Mining Corp. for violating R.A. 9275 or the Philippine Clean Water Act of 2004 and its Implementing Rules and Regulations, which in turn was the basis of MGB's suspension of Philex Mining Corp.'s operations.

According to Itogoon Mayor Oscar Maingpes Camantiles, the tailings leaks has affected the livelihood of more than 34 families living downstream of the Agno river in sitios Pangbasan, Pao and Daynet. Through interviews with Mayor Camantiles and some of the affected families, the fact finding group has learned that the residents of the said villages could no longer catch fish from the Agno River and the San Roque Dam since the fishes have "left" their fishing grounds due to murky waters. They also confirmed earlier reports of trees and plants destroyed by the surge of tailings from TP3. Mayor Camantiles added that " For over a month now, the people could not continue with their gold panning activities until the water level goes down."

Throughout the interviews with local government officials, affected residents, and the EMB, the fact finding mission was told that "The breach in Philex mines’ Tailings Pond 3 has not been resolved up to this day. Thus, tailings from TP3 continue to flow to the Balog and Agno rivers leading to the San Roque Dam that serves as catch basin for the tailings from TP3."

While the extent of the breach in Philex Mining Corp.'s TP3 structure is not yet known, Eddie Amuasen, barangay captain of Ampucao, Itogon, described the hole being plugged by the company to be really huge and that the company attempted to plug the leak using bulldozers and other heavy equipment but even this did not work. "The heavy equipment went through the hole and were found in Balog River," said Amuasen.

The fact finding group has also learned that Philex mines has not complied with safety standards for the building and operations of its TP3. On June 19, 2012, Itogon's Municipal Engineer Charlie Gayasco issued a Notice of Illegal Construction to Philex Mining Corp. through Mr. Libby Ricafort, Resident Manager stating that the Philex Mining Corp. has made an "Illegal Construction/ Excavation of Spillways at Dams 2 and 3 in violation of Section 301 of the National Building Code and is thereby advised to stop immediately all illegal structure/s activities."

Mayor Camantiles also said "Philex Mining Corp. has been issued an ECC and has been operating even without completing the requirements of the local government and business permit from Itogon municipality."

"Philex Mining Corp. has not yet paid its accumulated tax obligations for Business Tax and Mayor's Permit Fee which, for the year 2011, amounts to 158,138,210.44 Pesos," added Camantiles.

Results of the fact finding mission with recommendations on how to address the problem will soon be released and presented to stakeholders, including Philex Mining Corp. and concerned government agencies for proper action.

Fr. Edwin Gariguez

Philex unable to ensure safety of its mines in Benguet, must be shut down

Defend Patrimony Press Release

4 September 2012

Another discharge of mine tailings from Tailings Pond No. 3 (TP3) of Philex Mining Corporation's Padcal Mines was hit today by the Defend Patrimony Alliance as a living testament of the inability of mining transnational corporations to ensure the highest environmental safety standards.

Following an earlier breach in the tailings dam caused by enhanced monsoon rains last month, Philex Mining remains unable to stem the outflow of sediments from this latest leak in their facilities.

"If Philex, one of the top so-called responsible miners in the country, continues to experience engineering failures that release chemical wastes into the Balog Creek and Agno River, what about the rest of the industry? These are the same mining projects that were revalidated by Pres. Benigno Aquino III's new mining executive order," said Clemente Bautista, president of Kalikasan Partylist and convener of Defend Patrimony.

Aquino's new Executive Order 79 (EO 79) on mining validated all 32 existing mining projects and 659 approved mining applications and exploration permits. This includes all projects with track records of environmental crimes.

In particular,The Philex Mining Corporation has a history of tailings dam failures, including the overflowing of the silt dam in their Sibutad gold project in Sibutad, Zamboanga del Norte in 1998, a leak in the decant tower of a tailings pond in their Bulawan gold mine in Sipalay, Negros Occidental in 1995, and the collapse of a dam wall also in the Padcal mines way back in 1992.

"Philex must permanently shut down its mining operations in Benguet as it has exhibited all talk with no walk in complying with the highest environmental standards. It cannot cover up the fact that TP3 was the lone mine tailings dam operating in the mines and cannot have been clean from heavy metals and other toxic chemicals. Hydrologists in the San Roque Dam also witnessed muckish spilling in the dam turbines' outflow, further corroborating the contamination of the downstream rivers with mine wastes," said Bautista.

Defend Patrimony also reiterated the need to revoke EO 79, pointing out that these erring mining operations clearly did not subscribe to environmental standards mandated by law, but was nevertheless still permitted by EO 79.###

The Kalikasan People's Network for the Environment is a convener organization of the Defend Patrimony Alliance, a national network opposed to mining liberalization and plunder.

P325-M Fine For Mining Firm May Triple - DENR

By Ellayn B. de Vera

Manila Bulletin

11 September 2012

MANILA, Philippines - Philex Mining Corp. in Benguet could pay double or triple its earlier computed penalty of P325 million on the impact of leakage of the mining firm's tailings pond, the Department of Environment and Natural Resources (DENR) said on Tuesday.

The operations of Philex Mining Corp. in Pacdal, Tuba, Benguet, was suspended last August 2 due to a leak from one of its tailings pond. It has leaked six times since August 1.

The affected tailings pond is the only active pond being used as the two other ponds have been decommissioned and rehabilitated as forest areas.

"We can't guarantee a time period when they can operate. They have to convince the government that the leakage is 100 percent plugged. Then we can finalize the computation of penalty," DENR Secretary Ramon Paje said.

"We are quite certain that the amount of penalty is now more than double. We are still computing the penalty but I can say that it is much higher than the P325 million already issued based on the first (leakage) incident. With the recent figure that we have, it could easily double or triple," he explained.

The penalty is based under the Philippine Mining Act.

Likewise, Paje said there is an ongoing penalty under Clean Water Act, where a fine of P200,000 per day is in effect since August 1.

He noted that the monitoring of an unmanned aerial vehicle (UAV) provided a clearer view of the tailings pond from the Balog Creek, Agno River, and San Roque Dam - which measured 10 kilometers.

It provided the assessment of the situation, including the impact of the water and sediment discharge to the river system in the surrounding areas.

Paje assured that the mine spill has not affected nearby communities.

The San Roque Dam in Pangasinan is situated about 30 kilometers downstream of Agno River from its convergence with Balog River. The drain tunnels of Philex discharge their water load into the Balog River that, in turn, runs for about 2.5 kilometers to converge with Agno River.

The DENR chief reported that Philex Mines has completed the target drilling in the main dike. "They are just awaiting the water to subside from the tunnel before they can put the quick-setting cement to plug or stop the leakage," he said.

"We expect that once they poured in the quick-setting cement and put it in place, the leakage will already be plugged," he added.

"Irrespective of the value of investment of the company, we will not compromise the environment," he said.

Philex Mining May Not Be Allowed to Reopen Padcal Mine - Government

By Rhea Sandique-Carlos

Dow Jones Commodities News

11 September 2012

MANILA--Philex Mining Corp. (PX.PH) may no longer be allowed to resume its mining operations at its Padcal copper-gold mine in northern Philippines, a senior government official said Tuesday.

"Choosing between the environment and copper and gold, the choice of the government is very clear: we have to protect the environment," Environment Secretary Ramon Paje told reporters. He said a permanent shutdown of the Padcal mine was "not a closed possibility."

The environment department, which supervises the mining industry, is currently conducting an investigation into a series of waste leaks from Padcal's tailings pond that began early August amid heavy rainfall. The mine is located in Itogon, in Benguet province, around 300 kilometers north of Manila.

Mr. Paje said the company's fines as a result of the leaks could double or even triple from the initial estimate of 325 million pesos ($7.8 million). This doesn't include fines of PHP200,000 a day under the country's Clear Water Act.

He added that the operations in Padcal will remain suspended until Philex has completely addressed the leakage.

"We cannot guarantee [when they will reopen.] They have to convince the government that this leak is 100% solved," Mr. Paje said.

Write to Rhea Sandique-Carlos at

Philex confirms 4 mine leaks in Padcal tailings pond in August


4 September 2012

MANILA, Philippines - Gold and copper producer Philex Mining Corp said "unfavorable weather conditions" at its Padcal mine site in Benguet province have caused its tailings facility to leak 4 times in the month of August.

"We confirm that this discharge has been the fourth reported since the first incident that occurred on August 1, 2012," Philex told the exchange on Tuesday, September 4, in response to a report that cites a local official of the Department of Environment and Natural Resources (DENR).

The latest reported wastage spillage at its only operating tailings pond at the mine site was last Thursday, August 30.

"We confirm that the discharge of tailings from one of the two underground tunnels of the penstock in the tailings pond of the Padcal mine recurred at 2:40 am of August 30, 2012, Thursday, and that this was contained at about 6:30 am on the same day," Philex added in the disclosure.

The other two mine leaks were minor, according to a Philex official.

The recent incidents at Padcal occured at a time the Philippine government is drafting rules and regulations on Executive Order 79, which sets the Aquino government's policy on the mining industry. Anti-mining groups have claimed that mining is inherently destructive to the environment, and have questioned claims of industry players that mining can be responsibly pursued.

P325-million fine

Philex also told the exchange on Tuesday that it has yet to receive official copy of the reported initial P325 million fine that the environment department and mines bureau has imposed on them based on finding on the first tailings leak on August 1.

The P325 million fine was based on violation of the Mining Act, which imposes a penalty of P50 per ton of sediments spilled from tailings facilities. This still excludes the other fines that may be imposed on the firm for violations of the Clean Water Act and the ECC (Environmental Compliance Certificate) contract.

"We cannot comment on the alleged P326 million fine for the discharging of up to 6.5 million tons of tailings on August 1, 2012 from the Padcal tailings pond as we have not received any official communication from the government on this matter," it said.

"As of this time, because of the continuing unfavorable weather conditions at the mine site, we cannot as yet determine the volume of tailings discharged from the pond," it explained.

Several weather disturbances have been bringing record amount of rainfall in various parts of the country during the month.

The tailings pond facility is located above various water systems in north Luzon.

It is about 30 kilometers downstream of Agno River from its convergence with Balog River. The drain tunnels of Philex discharge their water load into the Balog River, which, in turn, runs for about 2.5km to converge with Agno River.

Philex has 3 tailings pond but only tailings pond no. 3 is actively used. The two other ponds have been decommissioned and rehabilitated as forest areas.

Plugging the leaks

Philex's Padcal mine operations remain suspended as corporate and government officials work on the tailings leaks.

"Our current focus is towards the remediation and rehabilitation of the concerned penstock tunnel for which we have retained domestic and foreign third party consultants to provide assistance, particularly towards assuring the safety and integrity of the tailings pond for the resumption of the mine's operations," it added.

In a statement on Monday, September 3, Philex said it has stepped up its efforts to plug the sinkhole in the tailings pond following the "accidental discharge."

"Despite the bad weather, we have been working 24/7 on long-term solutions to ensure no further outflows of sediment occur," Philex Mining President and COO Eulalio Austin, Jr. said. "This is ongoing while our employee-volunteers are continuously working on the cleanup and rehabilitation of Balog and the convergence to Agno."

He said Philex is creating more access trails to the rugged terrain leading to the Balog Creek to enable volunteers to have easy access to the waterway for rehabilitation.

Philex said the incident was reported immediately to the Mines and Geosciences Bureau (MGB) and the Environmental Management Bureau (EMB) and was contained on the same day.

MGB director Leo Jasareno said the leakage was controlled within a few hours.

"Our team in Padcal reported that the plugged tailings pond leaked last Thursday but this was plugged again in a few hours," Jasareno said.

Millions of loses

It will cost Philex P220 million a month to maintain the indefinite suspension the mine while rehabilitation plans are put in place. Lost revenues, meanwhile, was placed at P30 million to P40 million per day.

Pangilinan, earlier said, however, that the company has sufficient resources to undertake the cleanup and rehabilitation of the mine site.

Philex also said that it has provided immediate assistance to families living near the Padcal mine who were affected by the spillage.

The company said it has prepared the Integrated River Basin Management (IRBM) program, which focuses on aquatic, terrestrial, and water resources management for the cleanup and restoration of the Agno River and Balog Creeks.

"The program also has a social component, which promises to bring households affected by the spillage back to, if not better than, their previous status," said Austin.

Padcal mine ending

The Padcal mine, which has been operating nonstop since the 1950s, is expected to last only until December 2020.

Philex has been scouting for new mines to sustain profitability ahead of the end of Padcal's mine life.

Philex has an ongoing $1-billion investment in its Silangan project in northern Mindanao. The company wants to put the mine on stream by 2016.

Philex is waiting for a permit from the government to pursue further activities at one of the two mining areas in Silangan. However, the EO-79, which one imposed a moratorium on all new contracts, put Philex's Silangan project at a standstill. -

‘Philex's unstable tailings dam shatters myth of responsible mining'


22 August 2012

Philex has reportedly been filling its tailings ponds to way over its capacity, doing only "mitigating measures" against likely spills, and ignoring the pond's ending lifespan.

MANILA - Residents of Benguet province and all communities downriver of Agno and San Roque dam continue to live in danger from the accumulated toxic wastes of Philex Mining Corporation. Although Philex has shut down since Aug. 1 its sole gold mining operations - and it tells the public the mines would remain closed until the company has attended to the reported cracks and resulting leakages from its mine tailings pond - communities living near the site said they hope Philex would just shut down its mining operations permanently.

Philex estimated the minimum time for stabilizing the dam at three months. But whatever repairs it has been doing there are only "temporary and stop-gap," said Santos Mero, deputy secretary-general of the Cordillera Peoples Alliance (CPA).

Philex's mining operations in Benguet "should be completely stopped now," said Mero of CPA. He cited the dangers continually being posed by Philex's now unstable mine tailings dam, which, he said, cannot be repaired anymore. He challenged the MGB (Mines and Geoscience Bureau) to come up with a decision sooner than later ordering Philex to stop further impoundment of mine wastes in the already unstable dam, and to stop its mining operations for good.

Mero also urged the Aquino government to order Philex to compensate those affected or damaged by its recent and past mine waste spills.

No contingency, rehabilitation plan for tailings dam

Philex's sole active tailings pond is already up for decommissioning this year, but Philex seems bent on using it beyond its expected life span, and beyond even its own projection of when the dam would have reached its limit. After the company noted an increase in proven reserves in the Padcal mine site, it has pegged its mine life up to 2014, two to four years longer than the lifespan of its tailings dam.

Sources told this much is evident in the company's presentation on TP3 (tailings pond 3) updates as of August 2008, "wherein said level limit was projected to be reached by early to mid 2012." Data from the Department of Environment and Natural Resources-Cordillera Autonomous Region (DENR-CAR) in April 2006 also revealed that TP3's life expectancy is 18-20 years. Thus, from its commissioning in 1992, the 18-20 years lifespan would have been reached by 2010 to 2012.

Philex's projection already took into account its plan of raising the dam crest from permitted elevation of 600 meters to to 623 above mean sea level.

As such, with or without the reported cracks and spillage last Aug 1, Philex should have already been shutting down its operations on account of the full capacity of the tailings dam. "Where else will it unload its mine wastes?" Mero asked.

But "No contingency plans were executed by Philex despite its continuous operations beyond 2012," Santos Mero told He noted that despite the projections for the said tailings pond being full by this time, Philex has also made little to no substantial efforts to address this.

Philex Mining Corporation has mined the area in Padcal, Tuba, Benguet for 53 years now. Since it started operations up to 2010 at least, it reported in its website that it has extracted and processed an aggregate of 350-million tonnes producing 929-million kilograms of copper, 170-million grams of gold and 186-million grams of silver.

But during those years of mining, Philex had also filled up to capacity until it stopped using its first tailings pond in 1981, and its second in 1992. The latter's dam walls, in fact, collapsed first in January 1992 due to "foundation failure" before the company stopped using it that year - slightly over the 11 years estimated lifespan of the said dam. Its wall's collapse reportedly unleashed 80 million metric tons of tailings to the environment.

This year, communities near the mine site fear more danger of mine spills, this time from the much bigger tailings pond 3, as Philex appears bent to continue mining despite the pond's ending lifespan.

In Philex's company reports, it made mention of mostly "mitigating measures" it has undertaken to prevent spills. These include annually replacing worn-out pipes of the mill tailings conveyance lines, and concreting of service roads within the dam embankment. It also started constructing an emergency open spillway and repairing the flooring of the diversion tunnel (both to be completed by next year).

But the dam's age is catching up with it despite Philex's "mitigating measures."

Although the company has shut down operations temporarily since August 1 because of a reported leak, which, it said on August 9, it had successfully plugged, it also estimated that roughly 12 operational months volume (around 9.9-million tons) of sediments were already released covering 2.5 Km long, 15 feet wide and 2-8 feet thick of Itogon's Balog River.

Kalikasan Partylist, in a statement, questioned this "early" denial of the dangers from toxic spill, given that reports from affected communities note that the spill continues. Besides, it said that the supposed investigation both by the company and the MGB are still underway.

A new leak has reportedly been discovered, too. The Cordillera Peoples' Alliance said sources from the affected communities have reported to them that parts of the company's tunnel intended for water flowing to the river system have cracks and leakages.

Prior to the reported spills, Philex had looked forward to increasing its gold output and profits this year.

But for the residents, the gains from the mining operations hardly outweigh the risks it pose to them. Even the promised jobs are in danger. Sources told that with the shutdown, the company immediately implemented cost cutting measures chiefly affecting the workers. Philex ordered a straight day shift for almost all of its workers instead of the 3-shifts per day scheme as soon as it suspended operations Aug 1.

On August 8, it suspended all probationary, contractual and casual employees "for the time being." Rumors of mass lay-off and salary/benefits being held back also reportedly quickly spread among the employees.

Mero cited also the huge waste of what used to be thickly vegetated lands that were transformed into non-productive wasteland, after it were fenced off as mine tailings dam.

Today, the first two tailings pond used and later decommissioned by Philex continue to be "unproductive and a wasteland," despite decades of disuse (as tailings pond). Experts who inspected the early stages of the construction of tailings pond 3 also noted in a report, after inspecting Philex's two closed mine wastes ponds, that "tailings pond would be unproductive for the next 40 years."

Worse, according to Mero, the toxic wastes still gathered in those ponds continue to pose risks of eventual spillage to people in the vicinity and all downriver tributaries. (


Sitting on a Gold Mine: Will Mining Make or Break the Philippines?

The Philippine government believes bolstering extractive industries will drive growth. But religious leaders and environmentalists wonder about the cost

By Catherine Traywick

Time Magazine

13 September 2012

In Compostela Valley, in the southern Philippines, a river streaked many shades of brown cuts through farmland and jungle brush to release its muck into the sea. The slurry swells around the coastline, muddying the emerald waters. The source of the blight is an eroded mountainside peppered with blue tarps and tiny shacks, a gold mine nestled among green hills. About 600 families reside on its steep slope, eking out a living by half-grams of gold.

They are, technically, squatters. An American company, St. Augustine Gold & Copper, holds the rights to this mountain and those surrounding it. In their place, the company wants to build massive pits to get at the estimated 962 million tons of precious metals beneath. They also promise to clean the river, plant trees and create jobs. It is a massive undertaking that will dramatically alter the landscape and displace the thousands of workers who have been mining in the area, and fueling the local economy, since the 1980s.

The Philippine government, for its part, is rooting for the American firm, grounded in the belief that large-scale mining can be a golden engine of economic growth. Corporate mining permits have multiplied under President Benigno Aquino III, and new mining rules filed by his administration this week will place new restrictions on where and what small-scale miners can mine. But many Filipinos, especially those from mining communities, are wary of his plans. They want an overhaul of current mining laws. They also want a bigger piece of the profit.

What's happening in the Philippines is echoing across a region where fast-growing economies are weighing the costs and benefits of extractive industries. Indonesia this year imposed a whopping 20% tax on mineral exports and, in an effort to foster domestic downstream industries, now limits shipments of raw materials. Mining companies are, naturally, critical of the turn, saying it discourages foreign investment. What good are high taxes, after all, if there are no investors to pay them? There's a flip side to that: What good are investors if there is nothing to mine?

The Philippines, of course, has plenty to mine. Loaded with mineral wealth (worth about $840 billion), it boasts some of the largest untapped gold and copper deposits in the region. Unfortunately, it has not always been the friendliest place to do this kind of business. In Mindanao, which holds more than a third of the country's gold and houses all its insurgencies, mining operations are susceptible to attacks and extortion from rebel groups. Noncomplying companies have lost millions of dollars' worth of equipment to vandalism and arson. The government has long offered generous incentives - extremely low taxes, state-funded security, low accountability - to entice foreign investment.

With adequate taxation, big mining could indeed fuel the economic growth the country needs. But environmentalists, local leaders and even the influential Catholic Bishops' Conference of the Philippines have taken a stand against large-scale mineral extraction. Besides obvious environmental concerns, they fear that big mining will displace indigenous tribes and squelch the small-scale industry that has historically contributed the bulk of mining tax revenues. On top of that, they argue, bureaucratic inefficiencies - and likely graft and corruption - prevents what little mining revenue is collected from making its way back to communities. As a result, at least 20 governors have banned some form of large-scale mining in their provinces.

The tension unfolding around St. Augustine's Compostela Valley project underscores what's at stake nationally. Just 1½ years old, the project has received endorsements from every level of government, a requirement under the 1995 mining law. It stands to be the largest single mining operation in the country's history (if a mining ban halting the nearby Tampakan Gold-Copper Project holds up). Its executives say it's setting a new standard of socially responsible mining: hiring from the local population, planning postmine rehabilitation and promoting reforestation. It also spends about $20,000 per month on community-development efforts, according to Clyde Gillespie, the company's environmental and permitting director, who also pointed out that no law requires them to do so. "What we're doing now in the community is totally voluntary," he says. "We think it's the right thing to do."

But local leaders from affected barangays, or villages, remain skeptical. "I have 100% doubts," says Captain Ferdinand Dultra, a leader of Barangay Magnaga, which endorsed the project after the company reportedly donated 500,000 pesos to the construction of a barangay hall. (Officials say the donation did not affect their decision.) While several leaders said that they appreciate the company's investment in the community, they also point out that mining reform might secure similar community benefits while guaranteeing corporate accountability. "It is very risky for us to support large-scale mining," says Elvie Baliar, a local leader from Barangay Tambangon who also endorsed the company's exploration bid. "Six hundred households will be affected. They are in the area since 1987."

Under the 1995 law, small miners with a historical claim to an area can petition for Minahang Bayan, or "People's Mining," permits. The miners from this area began applying for such permits in the 1980s, without success. Then, in 1992, the Mines and Geosciences Bureau (MGB) granted a permit to Nationwide Development Corp., a Philippine logging company that is now partnered with St. Augustine. From that point on, every miner on the mountain has been "illegal."

Alexander Josol is one of those miners. He used to be a farmer, but now operates his own tunnel, for which he pays royalties to the local indigenous council. The work is more dangerous than farming (a mining-related landslide in January killed 40 people), but the pay is decent. With his experience, he's the sort of miner that St. Augustine might hire. But Josol says he doesn't have the mechanical skill to work in an open-pit and would also earn less as an employee than as an independent miner, as the latter pays by the gold gram rather than by the hour. He is working with about two dozen small-scale-mining leaders to oppose St. Augustine's project and secure the right to remain on the mountain. They want the government to back off of large-scale projects and instead invest in the small-scale industry, helping artisanal miners work more safely and efficiently.

Others just want better regulation of big mines. Under the 1995 mining law, foreign companies typically pay no income tax, no export tax and just 2% excise tax - which is in large part why mining takes up less than 2% of the country's GDP. That taxes are determined by self-reported production figures presents another obvious problem: underreporting of production. From 2000 to 2008, reported mineral production was between 17% and 45% lower than actual mineral exports, according to a 2010 study commissioned by Action for Economic Reforms. The lack of oversight behind such a discrepancy is a major criticism of the existing mining law. Father Edwin Gariguez, who won the 2012 Goldman Prize, a prestigious international environmental award, for his work on mining, argues that Aquino gives too much weight to the regulatory power of government agencies. He says most agencies don't have the capacity or the will to enforce the law.

The IMF, which once called for the cheap privatization of the country's natural resources, now recommends that the Philippines revise its mining tax scheme. Executives at St. Augustine acknowledge that the Philippines' liberal mining laws and low taxation are part of what attracted the company to the region, but Gillespie argues that stricter regulation and "reasonably" higher taxes wouldn't necessarily turn them off. The payoff is too huge. "If you can get in here and get established, you'll be in pretty good shape in the long term," says St. Augustine chief operating officer Tom Henderson, of the country's mineral potential.

The President, who has long promised to reform the industry, this week filed the implementing rules for his new executive order on mining. They do not include provisions on revenue sharing, protected habitats or ecotourism zones. Other stakeholders have taken matters into their own hands, introducing three alternative mining bills at the Philippine Congress (House bills 4379, 6342 and 4315), each more radical than the next in their attempt to reform the industry. These alternatives are supported by the Catholic Bishops' Conference, environmental groups and indigenous rights organizations, who feel that any one of these measures would add teeth to the President's plan.

Whether Aquino will respond favorably to the popular call, or uphold the decades-long status quo, remains to be seen. But what happens in the Philippines could set a new standard for extractive industries in other parts of the world.

Read more:

Water in Surigao, Palawan mining communities contaminated - NGO

By: Erwin Mascarinas

9 September 2012

BUTUAN CITY, Philippines - A Japanese non-government organization said the results of its study in two mines and a processing plant operated by Nickel Asia Corp. showed that water sources in the surrounding areas had been contaminated by a chemical that could cause cancer, liver damage and skin disease.

In an email message dated September 8, Hozue Hatae, Friends of the Earth Japan campaigner, said the results of the group's research conducted between April and May showed that the drinking water sources of the mining towns of Claver in Surigao del Norte and Bataraza in Palawan were contaminated by hexavalent chromium.

"We had been continuously analyzing the water quality in the communities surrounding the Coral Bay Nickel Processing Plant Project and the Rio Tuba Nickel Mining Project in the town of Bataraza, Palawan, since 2009. This year we included the town of Taganito in Surigao del Norte," said Hatae.

According to the results of the group's study, the levels of hexavalent chromium found in the Hayanggabon River and the Taganito River exceeded 0.05 milligrams per liter, which is the drinking water quality standard set by the World Health Organization.

FoE Japan said the drinking water used by the Mamanwa community near the Taganito mine likewise surpassed the WHO standard. The results of the study can be found in FoE Japan's website,

"It is very important that the contamination of hexavalent chromium has been found surrounding the Taganito nickel mining site in Claver, Surigao del Norte. For the fact could increase the possibility of the general principle that the mining exploitation working of laterite peculiar to the tropical region inevitably brings about the contamination of hexavalent chromium anywhere, not only in the area surrounding the Rio Tuba Nickel mining site and the Coral Bay nickel processing plants' site in Palawan," said Junichi Onuma, lecturer at Kinjo-gakuin University and former principal investigator of the Environmental Investigation Center in the Aichi Prefercture.

Given its findings, FoE Japan recommended that the people living in the affected areas desist from sourcing their drinking water from the contaminated rivers.

"The findings reveal beyond our eyes can see the murky water of the rivers in Taganito and Hayanggabon and siltation of Claver shoreline, the findings are proof of the environmental justice to the community, these are scientifically based. These damage are irreparable, our legacy to the generations yet unborn," said Carl Ceasar Rebuta, associate executive director for Legal Rights and Natural Resources Center - Kasama sa Kalikasan/Friends of the Earth - Philippines.

Considered the Philippines' biggest nickel mining company, Nickel Asia owns 60 percent of the Rio Tuba mine and 65 percent of the Taganito mine. The company ships bulk of its saprolite ore to Japan, particularly to Pacific Metals Co. Ltd. and Sumitomo Metal Mining Co. Ltd. Nickel Asia sells its limonite ore to Coral Bay Nickel Corp., which processes the ore into nickel-cobalt sulfide for shipment also to SMM.

Water in Surigao and Palawan mining areas contaminated - study

By Erwin Mascariñas


9 September 2012

BUTUAN CITY (MindaNews/08 September) - River basins and drinking water sources in the mining town of Claver in Surigao del Norte and in Bataraza town in Palawan are contaminated with Hexavalent Chromium, according to a study released by Friends of the Earth (FoE) Japan this month.

Hozue Hatae, campaigner for FoE Japan said in her email dated September 8 that the latest results were based on the research conducted in April and May this year which analyzed water quality in the communities surrounding the mining areas in Palawan and in Surigao del Norte.

"We had been continuously analyzing the water quality in the communities surrounding the Coral Bay Nickel Processing Plant Project (the CBNP) and the Rio Tuba Nickel Mining Project (the RTNMP), in the town of Bataraza, Palawan, since 2009. This year we included the town of Taganito in Surigao del Norte," said Hatae.

The FoE Japan website ( stated that they found out in the research last May in Claver that Hexavalent Chromium in the Hayanggabon River and the Taganito River exceeded the 0.05mg/L limit set by environmental standards.

The group pointed out that Hexavalent Chromium found in the drinking water which the local community has used for decades, as well as in the drinking water supplied for the Mamanwa community by the Taganito Mining Corporation also exceeded the 0.05mg/L limit as set by theJapanese Water Supply Act and the World Health Organization guidelines for drinking-water quality.

Junichi Onuma, Lecturer at Kinjo-gakuin University and former principal investigator of Environmental Investigation Center in Aichi Prefecture submitted the result of the water analysis.
"It is very important that the contamination of hexavalent chromium has been found surrounding the Taganito nickel mining site in Claver, Surigao del Norte. For the fact could increase the possibility of the general principle that the mining exploitation working of laterite peculiar to the tropical region inevitably brings about the contamination of hexavalent chromium anywhere, not only in the area surrounding the Rio Tuba Nickel mining site and the Coral Bay nickel processing plants' site in Palawan," said Onuma in a statement in the FoE Japan website.

The group recommended suspending the use of the supply as drinking and for the companies and public agencies concerned to undertake immediate and appropriate countermeasures.

Hexavalent chromium is known to be highly toxic and may cause cancer, liver damage and skin diseases.

Carl Ceasar Rebuta, associate executive director of Legal Rights and Natural Resources Center, an affiliate of FoE, said the findings revealed the true state of the "murky water of the rivers in Taganito and Hayanggabon and siltation of Claver shoreline." (Erwin Mascarinas/MindaNews)

Philippines: Obstacles concerning access to justice and protection for indigenous people

Asian Legal Resource Centre (ALRC) statement

28 August 2012

Huma Rights Council

Twenty-first session, Agenda Item 3, half-day discussion on indigenous peoples: access to Justice

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

The Asian Legal Resource Centre (ALRC) welcomes the range of reports concerning the human rights of indigenous people during the upcoming 21st session of the Human Rights Council, being held from September 10 to 28, 2012. In view of the discussion on indigenous people and access to justice, to be held by the Council on September 18, the organisation wishes to highlight some specific issues of concern relating to such access to justice in the Philippines in particular. The ALRC wishes to inform the upcoming debate by providing concrete challenges that it has documented, which mirror many other challenges to access to justice for indigenous people witnessed across the Asian region.

It is important to note that despite existing legislation, the rights of indigenous people are routinely being ignored. This is only made possible by the lack of effective institutions to receive complaints, investigate allegations of violations of rights, and provide remedies. In the Philippines, such institutions are either weak or dysfunctional to the point that members of the country's population in general rarely enjoy effective access to justice, let alone indigenous people who face even greater obstacles in this regard. The ALRC therefore hopes that such fundamental questions concerning the wider institutional failings will be included in the discussions relating to indigenous people's access to justice.

The ALRC has documented cases that speak to the systemic deprivation of due process rights and protection for indigenous people under the Philippines criminal justice system. The country's 1987 Constitution and the Indigenous Peoples Rights Act (IPRA) of 1997, contain no effective or adequate clauses with regard to providing indigenous people with the required protection within criminal justice processes.

Deprivation of due process rights: While, concerning indigenous people, Chapter V, section 21 of the IPRA, stipulates that the State has "due recognition of their distinct characteristics and identity," the equal protection and the non-discrimination clause within this law has been shown to be grossly insufficient in protecting the rights of indigenous people in criminal prosecutions.

Although section 15 of the IPRA stipulates the State's recognition of indigenous people's "right to use their own commonly accepted justice systems," in situations in which the criminal prosecution one of the parties involved chooses not to submit to the indigenous system of justice, or is denied the opportunity to do so, the State has been systemically failing to uphold the indigenous person's fundamental rights to due process, as provided for under the equal protection clause concerning "rights and privileges available to every member of the society."

Take the case of Iladio Laydan, an indigenous man belonging to the Manobo tribe. Laydan is presently detained in North Cotabato Provincial Jail, Kidapawan City, following his arrest on charges of rape and homicide on September 23, 2004. For three years, Laydan was in jail without any news as to when his trial would begin. It took three years for the Regional Trial Court (RTC) 12 in Kidapawan City to conclude he had a case to answer.

Laydan was arraigned on July 24, 2007. However, when the court began to try his case on September 27, 2007, he had to appear in court without a lawyer. For almost a year, the court could not proceed with the trial because he had no lawyer. The court finally appointed a counsel-de-officio for Laydan, supposedly for one day, although this lawyer was then tasked with defending him for his entire case. The court, however, later had to replace him because of his apparent disinterest in appearing in court.

When a lawyer from the Public Attorney's Office (PAO) was appointed in July 2008, for the following two years, Laydan complained that "his lawyer has not been adequately informing and giving him regular updates about the progress of his case." It was only after the ALRC started writing appeals in October 2010, particularly to the PAO, that some adequate attention has been given to his case.

Lack of protection: Section 5 of the 1987 Constitution clearly guarantees the protection of indigenous people's ancestral lands, to "ensure their economic, social, and cultural well-being." However, in practice, when the indigenous people take action to protect their communities and ancestral lands, they face threats, attacks and extrajudicial killings. Following such violations, there is typically no adequate complaint, investigation and protection mechanism through which indigenous people can seek effective remedies. The absence of such a mechanism has been shown to place the lives, security and livelihoods of indigenous people at increased risk.

In the recent past, leaders of indigenous tribes and members of their communities who, for example, supported campaigns against intrusions by large foreign corporations in their communities, particularly those engaged in large scale mining operations, which threaten the distinct nature of their communities, including their means of subsistence, livelihood and culture, have been subjected to various forms of human rights abuse including extra-judicial killings.

Indigenous leader Jimmy Liguyon was murdered on March 5, 2012 in San Fernando, Bukidnon. Jimmy resisted the entry of a large-scale mining operation that threatened the small-scale mining operation that is the main source of income of his community. His murder is evidence of the lack of adequate and effective protection mechanisms that operate for indigenous leaders who act to protect the rights and interests of their people. He was killed despite his having made public the threats to his life that were being made by members of a paramilitary group.

This lack of protection is also evident in the case of four indigenous villagers from the Taga-Kaulo tribe - Mylen Cambo and her husband Loreto, Arnel Cambo and Reynaldo Libay - in Malalag, Davao del Sur. The Barangay (village) Intelligence Network (BIN), which is controlled by the police, started threatening them when they began filing petitions as claimants to ancestral land in their community. The BIN members labelled them as members of a rebel group, which is often a convenient excuse used to justify attacks against persons or to deny persons with protection.

The four villagers had to find sanctuary, with the help of non-governmental organisations helping them in their claims for ancestral land, in the absence of government-sponsored protection mechanism. Although the group made a complaint to the local police station to have the threats against them investigated, the police did nothing to investigate their complaints or provide them with any security and protection. They limited themselves to simply recording the complaint. This is an extremely important point, as it must be highlighted that when we speak about access to justice, the initial contact point that indigenous people, or indeed any other complainants regarding human rights violations, have with the authorities concerns the registering of complaints. It is often at this initial stage that access to justice is blocked, with the police either refusing to record complaints, or by not taking any credible action to investigate them. Without proper investigations, the process of accessing justice is effectively nipped in the bud.

In the above case concerning the four villagers, the absence of protection concerning threats and intimidation not only placed them at risk of abuse, but also prevented them from claiming their lands and pursuing criminal prosecutions against those who made threats against them. This illustrates how a lack of access to protection by the state and access to justice delivery mechanisms places victims at risk, enables violations to take place and participates in shielding the perpetrators.

Additionally, it should be noted that human rights defenders who support and campaign for protection in favour of indigenous people, are also being targeted and are not being afforded adequate protection by the state. In the case of Francisco Canayong, a mining activist in Salcedo, Eastern Samar, who was stabbed on May 1, 2012, even after his killing, his colleagues Nenita Lacasa and Carolyn Borja were also threatened and attacked.

On May 6, 2012 at 4pm, armed men open fired at the house of Lacasa, also in Salcedo, Eastern Samar. It is alleged that Lacasa's mother died of shock in relation to the attack. On May 23, 2012 at 11pm, armed men also shot at the house of Borja. Due to a lack of protection, Borja and her family were forced into hiding. Such attacks against those who work to assist indigenous persons in accessing justice and remedies greatly undermine indigenous people's efforts in this regard.

The ALRC therefore urges the Human Rights Council to include the issues of protection of complainants and the widespread problem of the lack of credible investigations into abuses against indigenous people in its discussions concerning this issue. The ALRC welcomes the work of the Special Rapporteur on the rights of indigenous people and his report and focus on extractive industries. It also recalls the findings in the report that resulted from a visit to the Philippines by the mandate in December 2002 (E/CN.4/2003/90/Add.3), which indentified concerns relating to the "slow pace of implementation of the provisions of IPRA," and a "loss of confidence among indigenous organizations in the ability or willingness of government agencies to proceed actively with its effective implementation. Then-Special Rapporteur also spoke of a human rights "protection gap" for indigenous peoples in paragraph 61 of the report, which remains as relevant today as it was a decade ago. Furthermore, the report expresses concern about "numerous reports of harassment of indigenous human rights defenders and their organizations, who, together with responsible government agencies, are the cornerstone for the protection, promotion and realization of the human rights of indigenous peoples," which also remains an issue of grave concern for the ALRC to date, as highlighted above.

It is of particular concern that many key recommendations made by the mandate following this country visit have still not been implemented by the government, including:

i. Paragraph 67 (c) That the Philippine judiciary fully respect the legislative intent and spirit of IPRA and ensure that maximum favour be accorded to indigenous peoples in resolving the issue of conflicts of law between IPRA and other national legislation such as the 1995 Mining Act. Moreover, special training programmes should be designed for judges, prosecutors and legal defenders regarding indigenous peoples' rights and cultures;

ii. Paragraph 67 (f) That the Government of the Philippines carry out a prompt and effective investigation of the numerous human rights violations committed against indigenous peoples, which have been documented by human rights organizations and special fact-finding missions. The Special Rapporteur further urges the Government to take all necessary measures to prevent a recurrence of human rights violations;

iii. And, paragraph 67 (i) That maximum protection be afforded to human rights defenders in carrying out their legitimate human rights work;

With this in mind, it is important to note that without effective state institutions that can register, investigate and prosecute cases of violations against indigenous people, a climate of impunity for even the gravest of violations such as extra-judicial killings, will undermine attempts to secure from large, possibly trans-national companies an approach that involves consultation and free, prior and informed consent, or the "protect, respect and remedy" framework, which is incorporated into the Guiding Principles on Business and Human Rights, as recalled in Special Rapporteur James Anaya's report to this session of the Council.

Only with sufficient deterrents in place against violations of civil and political rights, will it be realistic to expect effective protection of indigenous people's economic and cultural rights in practice. While the Philippines does have some provisions under its constitution and domestic laws that may appear to comprise such a deterrent, in reality, what is witnessed is the lack of implementation of these provisions, and the acquiescence and even complicity of state actors in violations against indigenous people. It is imperative for such elements to be included in any discussions by the Council, if these are to be relevant concerning indigenous people's access to justice and protection with regard to extractive industries and other external forces that threaten their way of life, livelihoods and rights.

# # #

About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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Mine firm still has to wait

By Ma. Elena Catajan

Sun Star Baguio

30 August 2012

A SOUTH African mining firm still has a long way to go before it can start its operations.

Department of Environment and Natural Resources-Mines and Geosciences Bureau (DILG-MGB) OIC Fay Apil said it will be the start of a long process for Gold Fields Philippines Corporation to set up shop in Mankayan town.

Apil said that after the information drive weeks ago, more meetings with the community are needed. At least four Free Prior and Informed Consent (FPIC) procedures are needed before finally operating in the Far South East site of Lepanto Consolidated Corporation.

Apil also said, "We are still in the early stages, matagal pa ito."

The company now cannot continue drilling operations with groups still in continuous protest; a court case is now in progress for the issue.

The National Commission on Indigenous Peoples cautioned Mankayan folk to resolve problems within their community and be wary of outsiders taking part in the resolution of conflict.

Drilling is essential to find out if there are minerals to be mined as well as how to go about mining operations for the company, this stage is part of the due diligence stage the firm has to undergo.

After the due diligence stage, the first FPIC must be put into place to approve exploration of the area followed by three more stages of approval from the community.

The FPIC process will be a first in the Mankayan area as per the Indigenous Peoples Rights Act law as LCMC set up, in the past did not require any with the law put into place after its operations.

Published in the Sun.Star Baguio newspaper on August 30, 2012.

Romblon municipality rejects mining deal

GMA Network

27 August 2012

The municipality of San Fernando in Sibuyan, Romblon, will not be involved in processing Fil-China Mining Development Corporation's application for a mineral production sharing agreement, Mayor Dindo C. Rios said Monday.

Fil-China submitted an application in January 1994 to the Mines Bureau for a mineral production sharing agreement to mine and develop feldspar, a mineral used for glass and ceramics manufacturing.

The said agreement gives a contractor the exclusive right to conduct mining operations within a certain area, while the government shares in the gross production earnings.

In an August 13 letter to Mines and Geosciences Bureau regional director for MIMAROPA Roland de Jesus, Rios justified San Fernando's position by citing a provision in mining Executive Order (EO) 79 that specifies protected areas must be spared from mining.

"The whole island is a protected area as a mangrove swamp forest reserve pursuant to Presidential Proclamation 2152," Rios said in a statement.

He also clarified that Sibuyan Island is a Tourism Development Area. These areas are identified as no-go zones for mining.

Alyansa Tigil Mina (ATM) hailed the Romblon LGU for "protecting their islands and recognizing that mining activities will further aggravate the susceptibility to landslide and flooding of many areas in the municipality."

"It was just disappointing that the Department of Environment pushes for projects in areas closed to mining," said Jaybee Garganera, ATM national coordinator.

"Even before the EO was released, there are already existing policies protecting Sibuyan including a local legislation opposing mining in the island," he added.

ATM is an alliance of communities in mining areas with support from non-government organizations and the civil society.

The group opposes the promotion of large-scale mining in the Philippines. It is currently pushing for a moratorium on mining, revocation of Executive Order 270-A and repeal of the Mining Act of 1995. - AL/VS, GMA News

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