MAC: Mines and Communities

Position Paper on the Revocation of the Notice of Cancellation of Aglubang MPSA by the Office of the

Published by MAC on 2001-07-16

Position Paper on the Revocation of the Notice of Cancellation of Aglubang MPSA by the Office of the President

Despite this the company recently announced that its right to mine had been restored.

WE, the Chief Executives of the local government units in Oriental Mindoro - the Provincial Governor, the Mayors of the stakeholder Municipalities of Victoria, Pinamalayan, Naujan and Socorro,

WE, the ALYANSA LABAN SA MINA (ALAMIN), a coalition of Civil Society Organizations, Churches, Indigenous Peoples Alliance, Civic and Environmentalists Groups, Peoples' and Sectoral Organizations and Non-Government Organizations in Oriental Mindoro,

WE, the Clergy of the Apostolic Vicariate of Calapan, headed by our Apostolic Vicar, Bishop Warlito I. Cajandig,

express our indignation and protest over the decision of the Office of the President to revoke and set aside the Notice of Termination/Cancellation earlier issued against the MPSA (Mineral Production Sharing Agreement) of Aglubang Mining Corporation. The said mining project for nickel-laterite deposit was explored by Crew Minerals Philippines, a wholly-owned subsidiary of Crew Minerals AS based in Canada.

The cancellation of Aglubang's MPSA on July 16, 2001 was explained by then DENR Secretary Alvarez as being based on the the need to protect critical watersheds, to protect the food security of Mindoreños, and to respect the social unacceptability of the project. He explicitly states in a published interview: "The Mindoro Nickel Project is one case where sustainability is bound to failŠ President Macapagal is fully aware of the situation. Her administration is committed to create wealth without sacrificing the integrity and vitality of Mindoro's natural systemsŠwhat does it gain the nation to be shortsighted and merely think of money, when an irreparable damage to the environment will cost human lives, health, and livelihood capacity of our farmers and fisherfolk, endangering the food security of our people."

What explains the sudden turn-around of government policy?

Crew Gold Corporation, represented by its President and CEO, Jan A. Vestrum, has jubilantly proclaimed the Resolution coming from the Office of the President as signaling the revival of the Mindoro Nickel Project (MNP) and "the change in attitude of the Government of the Philippines towards mining, from that of tolerance to active promotion..."

Ironically, the decision promoting mining, applauded by the foreign transnational corporation has caused indignation and anguish among our people.

The extent of ownership and control of Crew Minerals over the mining area, with Aglubang as its subsidiary, should be subjected to scrutiny. The more recent decision of the Supreme Court declared as unconstitutional arrangements that allow priority to foreign owned corporations in the exploration, development and utilization of mineral resources as being contrary to Article XII of the Philippine Constitution. Though referring to the FTAA, the Supreme Court decision (SC En Banc G.R. No. 127882) clearly points out that "the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate."

The MNP had been rejected overwhelmingly by the people of Mindoro and even by all the local government units. This strong opposition of the people had been one of the decisive factors in the DENR's decision to cancel the MPSA. Now, it is quite surprising that the Office of the President will reverse its decision long after the people's victory had been won.

We maintain that the MPSA issued to Crew Minerals through its affiliate, Aglubang Mining Corporation is null and void ab initio, for the project does not have social acceptability. Long before the cancellation of Aglubang's MPSA, the people of Oriental Mindoro had already spoken. Through the broadest coalition ever assembled in the province's history, ALAMIN (Alyansa Laban sa Mina) was able to staged series of peaceful protest actions attended by a total of 40,000 people to show our strong opposition to the proposed Mindoro Nickel Project. Sixty-five thousand signatures rejecting the MNP had been collected. Dozens of resolutions expressing resistance to the mining project had been submitted to the DENR from different institutions, organizations, churches, sectoral organizationsŠ All the local government units had expressed their unequivocal opposition to the project. The Mangyan Indigenous Peoples organization of SANAMA and KAMTI, whose ancestral domain falls within the mining concession, had also expressed their written opposition.

Our unified stand against the Mindoro Nickel Project and our opposition to the entry of any mining operation in the province are clearly articulated in the Ordinance promulgated by the Provincial Council of Oriental Mindoro declaring a mining moratorium in the province. The Sangguniang Panlalawigan Ordinance, passed on January 28, 2002, explicitly forbids all forms of mining in the province, stating that "it shall be unlawful for any person or business entity to engage in land clearing, prospecting, exploration, drilling, excavation, mining, transport of mineral ores and such other activities in furtherance of and/or preparatory to all forms of mining operations for a period of twenty-five (25) years." Exempted from the moratorium is the excavation of ordinary stones, sand, gravel earth and other materials, which are operated by small-scale miners.

With the irrevocable opposition of the people in Mindoro against mining, we demand respect of the sovereign will of the people and the recognition of our right to chart our own direction of development. Mining corporations should refrain from imposing their profit-driven agenda and in manipulating the national government's bureaucracy, which have become too accommodating in promoting the plunder of our environment in exchange for investments.

The present maneuvering of mining corporations to forcibly make their re-entry by taking advantage of the policy of the present administration for the revival of the mining industry is totally irreconcilable to the genuine welfare and interest of the people. The guise of going though the DENR/MGB processes is a deceptive ploy to legitimize the approval of the mining permit. But we believe, beyond all the legal gobbledygook, the people's interest should be held supreme - salus populi est supreme lex!

We uphold all the arguments profounded by then Secretary Alvarez in his decision to cancel Aglubang's MPSA.

The Office of the President should have made a diligent study of the case before favoring the side of the petitioner. We beg to defer to the Resolution of the Office of the President that the decision was executed arbitrarily without giving course to due process and fair play or without giving the other party the opportunity to explain or refute.

1. For the record, there were several hearings and investigations held in the DENR prior to the decision of cancellation in July 16, 2001. These hearings were attended both by the stakeholders in Mindoro and the proponents of the project. We have video recording of those events, but formal transcript must be available in the DENR.

2. By their own admission, Aglubang Mining Corporation, in their letter to Secretary Alvarez dated June 8, 2001, explicitly mentioned the consultative meeting that they had with the Secretary on June 6, 2001. And the same 6-page letter signed by Arne Isberg, Chairman and CEO of AMC, tackled their position on the review being undertaken on MPSA 167.

3. The Aglubang Mining Corporation, though their lawyer, Atty. Leo G. Domingez had submitted their position, dated May 7, 2001, to President Macapagal-Arroyo. The document is entitled: "Aglubang Mining Corporation's Comment (On the DENR's Secretary's Memorandum to the President Recommending the Revocation of Aglubang's MPSA with the Government)." The entire document has 21 pages, refuting the Memorandum of the DENR Secretary.

4. Aglubang's lawyers admit that on June 6, 2001, "the DENR conducted an informal meeting with Aglubang and individuals opposing the MPSA."

5. Document from Aglubang also admit that "on 8 June 2001, upon instructions of the DENR Secretary, the MGB formed a task-force to conduct inspection and to investigate and assess the allegations against the MPSA."

6. On July 13, 2001, there was another consultative meeting held in Calapan, Oriental Mindoro, wherein the MGB presented their Task-Force Report.

Clearly, there was nothing arbitrary in the decision process taken by then DENR Secretary Alvarez. The above-mentioned events proved that the positions of Aglubang were substantially considered by the DENR Secretary and the Office of the President, before the Aglubang MPSA was finally cancelled. It is preposterous for Aglubang to claim that they were not given opportunity to present their position in the proper forum. From their own account, they claim to have participated fully and existing records and documents are all available to prove this fact.

But the recent Resolution from The Office of the President, assailed then DENR Secretary Alvarez in this term:

"And without apprising Aglubang of the inculpatory allegations in the complaint and the report of the ex-parte investigation conducted thereon, then DENR Secretary Alvarez would issue the cancellation order without first confronting the former with adverse evidence, if any there be, constituting the basis of said order. The action thus taken strikes us as antithetical to the sporting idea of fair play, a concept which requires an adjudicating officer to hear the other side before making an impartial judgment based on the evidence and arguments of both parties. If the DENR believed that Aglubang violated mining laws and/or the conditions of its MPSA then it has discretion to conduct the appropriate hearing to determine guilt. It does not have to rely on the findings of Bishop Cajandig and the claim of other private groups to discharge this function" (Mahoney Textile Mills Corp. vs. Ongpin, 141 SCRA 437).

The decision to set aside or revoke the MPSA cancellation of Aglubang was definintely based on this premise - the petitioner, that Aglubang Mining Corporation, was not afforded the opportunity to be heard. But it is not clear whether the Office of the President intentionally or inadvertently disregarded the fact that there were hearings conducted. Moreover, they cannot deny that they had received the documents and written positions of Aglubang Mining Corporation before the Notice of Cancellation of Aglubang's MPSA was issued!

With regard to the submission that the cancellation of Aglubang's MPSA should have passed through the arbitration proceedings as prescribed in Section 77 of RA 7942, and as stipulated in Section XIV of the MPSA 167, the Resolution of Office of the President failed to consider other specific provisions in the Mining Act (Sections 95-99) and Section XV of the assailed MPSA that prescribe sufficient grounds for suspension or termination of MPSA contract as appealed to by then Secretary Alvarez. The latter provisions do not explicitly require the creation of panel of arbitrators. And there is no reason to insist on the creation of the panel when the law does not prescribe for it, under such circumstance. As the legal saying aptly advises: Casus omisus pro omisso habendus est - a person, object or thing omitted from an enumeration must be held to have been omitted intentionally.

However, what the Agreement clearly prescribed (Aglubang's MPSA, Section XV, 15.1), is that the MPSA "may be suspended for failure of the Contractor: (a) to comply with any provision of the (Mining) Act and/or its implementing rules and regulations." Secretary Alvarez also explicitly quoted Section 96 of the Mining Act, providing that "violation of the terms of conditions of the permits or agreements shall be a sufficient ground for cancellation of the same." It was for these reasons that the DENR Secretary, in his decision to cancel Aglubang's MPSA, pointed out to several cases of violation of or non-compliance with the Mining Act and the Agreement, providing him enough basis to revoke the said MPSA.

Besides from the six grounds that Alvarez enumerated in his Memorandum to the President, he also noted that on July 14, 2000, Crew executed a Deed of Assignment in favor of Aglubang for a consideration of One Peso (P1.00), even if it had not yet been approved. This act, according to him, is a violation of of RA7942 (Section 30, to be exact) requiring for prior approval of the DENR Secretary any assignment or transfer of rights under any mineral agreement.

The issue, as it presently stands, must be resolved. Recourse to further hearing or deliberation could be an exercise in futility. And legally, the rule on estoppel will have to be applied. It is a fact that Aglubang participated in the review process and that their positions had been submitted for consideration before the Notice of Cancellation for Aglubang's MPSA was issued. All of Aglubang's arguments have been substantially expounded before the DENR and the Office of the President. As such, the decision to cancel the MPSA167 was made in good faith and should be affirmed with finality.

Premises considered, it is our position that the Resolution issued by the Office of the President is flawed and should be reconsidered. The Resolution signed by Manuel Domingo, Presidential Assistant, is not based on fact and we pray that this same Resolution be revoked and set aside in order that the Notice of Cancellation/Termination of MPSA No. 167-2000-IV be upheld.

In the Province of Oriental Mindoro, this ____day of March, 2004.

Provincial Governor

______________________________ ____________________________
Municipal Mayor, Pinamalayan Municipal Mayor, Victoria

______________________________ ____________________________
Municipal Mayor, Socorro Municipal Mayor, Naujan

Premises considered, it is our position that the Resolution issued by the Office of the President is flawed and should be reconsidered. The Resolution signed by Manuel Domingo, Presidential Assistant, is not based on fact and we pray that this same Resolution be revoked and set aside in order that the Notice of Cancellation/Termination of MPSA No. 167-2000-IV be upheld.

In the Province of Oriental Mindoro, this ____day of March, 2004.

Evelyn Cacha Fr. Edwin Gariguez

Jorge Madarang Shirley Fronda
ALAMIN-Victoria Chapter ALAMIN-Pinamalayan Chapter

Ponyong Kadyos Renan Marasigan
Kapulungan Para sa Lupaing Ninuno Mangyan Mission

Ned de Guzman Fr. Jim Ruga
MAHAL, Inc. Social Action Center

Doris Melgar Pol Sevilla
KAFCODE Peasant-Net

Jon-jon Sarmiento Nick Tumaca

Fr. RV Villavicencio Orlando Maliwanag
CEDC Save Mindoro Movement

Premises considered, it is our position that the Resolution issued by the Office of the President is flawed and should be reconsidered. The Resolution signed by Manuel Domingo, Presidential Assistant, is not based on fact and we pray that this same Resolution be revoked and set aside in order that the Notice of Cancellation/Termination of MPSA No. 167-2000-IV be upheld.

In the Province of Oriental Mindoro, this ____day of March, 2004.

Diocesan Pastoral Center, Salong, Calapan City

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