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Republic of the Philippines SUPREME COURT OF THE PHILIPPINES Manila

Alyansa Tigil Mina (ATM), Manny A. Guinto, Brandy Baldovino, Daniel Craig Batonghinog; Madrid A. Maruya, TimoteoLuderia M. Moody, Gulliver F. Larga, Davidson C. Romarico, Jennylin S. Aspiras, Pastor Matadeo R. Malabiran, Fr. Peter Northern, Fr. Marky Marx, Fely Unabia, Richie Tolino, Jerby Catamco, and Potee Aletsa, Petitioners,

- versus SC-G.R. SP. NO. _________ (Petition for Writ of Kalikasan with Prayer for the issuance of a Temporary Environmental Protection Order [TEPO] and the Cancellation of the ECC issued by the DENR) Secretary of the Department of Environment and Natural Resources (DENR), Sagittarius Mining Inc. (SMI), Xstrata Copper Inc., Indophil Resources NL., Respondents. x ------------------------------------------------------------------------------------------x

COMMENT / OPPOSITION (TO THE PETITION FOR WRIT OF KALIKASAN WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION ORDER)

RESPONDENTS, through the undersigned counsel, and unto this Honorable Court, most respectfully alleges that:

1. On 05 December 2012, Respondents received the Petition for Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order. Petitioner is of the view that:
xxxxx WHEREFORE, it is respectfully prayed of the Honorable Court that: 1. Immediately upon the filing of this petition, a Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan be issued, ordering Respondents and any person acting on their behalf, to cease and desist; 2. After a summary hearing, issue a Resolution, extending the effectivity of the TEPO until the termination of this case; and 3. After due proceedings, a Decision be rendered a. Restraining the private respondent from proceeding with the construction and operations of the Copper-Gold Mine; b. Nullifying issued ECC allowing the construction and operations of the Copper-Gold Mine; c. Restraining public respondent DENR Secretary and other Deciding Authorities from allowing further issuing to SMI ECCs allowing the construction and operation of the Gold-Copper Mine; d. Ordering SMI to cease and desist from proceeding with the construction and operation of the Copper-Gold Mine ; e. Directing the respondents to undertake measures to rehabilitate the areas affected by exploration and mining operations, such as providing geological intervention, marine wildlife rehabilitation, residential relocation, and other similar, just and equitable environmental rehabilitation measures; xxxxx

2.

With all due respect, the contentions deserve no consideration from this

Honorable Court.

DISCUSSION

THE

ISSUANCE

OF

THE

ENVIRONMENTAL CERTIFICATE PETITIONERS AND WELL

COMPLIANCE THE

VIOLATES TO A

CONSTITUTIONAL RIGHT OF THE BALANCED AS

HEALTHFUL AS

ECOLOGY

ESTABLISHED LAWS, RULES

ENVIRONMENTAL AND REGULATIONS:

Article II, Section 16 of the 1987 Constitution is explicit that the right to a balanced and healthful ecology should be recognized and provided for by the State. This provision alone, being self-executory, may be utilized by some environmental activists in raising their claims1. However, reliance on this right alone would be foolish and impractical. Further evidence should be presented in order to enhance its position.2 As will be discussed, there is insufficient evidence to prove that Respondents have placed the environment at a disadvantage, and have prejudiced the community by the issuance of the Environmental Compliance Certificate (ECC). As determined through years of extensive studies, open-pit mining is the only viable option for the Tampakan Project. Safety of workers and environmental concerns were among those taken into consideration.3

THE

ISSUANCE

OF

THE

ENVIRONMENTAL

COMPLIANCE

CERTIFICATE IS IN CONTRAVENTION OF THE OPEN PIT MINING BAN OF SOUTH COTABATO; We disagree.

1 2

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

Section 12 of Executive Order No. 794, Institutionalizing and Implementing Reforms in the Philippine Mining Sector Providing Policies and Guidelines to Ensure Environmental Protection and Responsible Mining in the Utilization of Mineral Resources, provides to wit: xxxxx
SECTION 12. Consistency of Local Ordinances with the Constitution and National Laws/LGU Cooperation. The Department of the Interior and Local Government (DILG) and the LGUs are hereby directed to ensure that the exercise of the latters powers and functions is consistent with and conform to the regulations, decisions, and policies already promulgated and taken by the National Government relating to the conservation, management, development, and proper utilization of the States mineral resources, particularly RA No. 7942 and its implementing rules and regulations, while recognizing the need for social acceptance of proposed mining projects and activities. LGUs shall confine themselves only to the imposition of reasonable limitations on mining activities conducted within their respective territorial jurisdictions that are consistent with national laws and regulations. (emphasis ours) xxxxx

The law that currently regulates and governs the mining industry is Republic Act No. 7942, otherwise known as the Philippine Mining Act of 1995. This act allows the method of open pit mining. Section 3 defines mining operation, to wit:
xxxxx af. Mining operation means mining activities involving exploration, feasibility, development, utilization, and processing. xxxxx

Therefore, the ordinance is against the mining law, and has no leg to stand on. Even the power vested on local government units is not a basis for the ordinance.5 On 8 November 2012, the Department of Interior and the Local
4

This was signed by President Aquino on 6 July 2012. As stated by the late DILG Secretary Robredo, The DILG (Department of the Interior and Local Government) adheres to and respect the principle of local autonomy as enshrined in and zealously protected under the Constitution. But a local government ordinance that is inconsistent with the C onstitution must be struck down. DILG: South Cotabato Governor Cannot Ban Open Pit Mining, DILG Central News, 9 December 2010.
5

Government (DILG) issued Memorandum Circular No. 2012-81, Directive to Comply with Section 12 of Executive Order No. 79, S. 2012 (EO No. 79). Notably, important points from a case decided by the Honorable Supreme Court6 were discussed, to wit:
xxxxx 1. The Power of the Local Government Units to legislate and enact ordinances and resolutions is merely a DELEGATED POWER coming from Congress; 2. Ordinances should not contravene an existing statute enacted by Congress; 3. Municipal governments are only agents of the national government. The delegate cannot be superior to the principal or exercise powers higher than those of the latter; 4. The principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make local governments sovereign within the state or an imperium in imperio. (emphasis ours) xxxxx And pursuant to Opinion 87, S. 20127 by the Department of Justice (DOJ),

Local government units banning open pit mining can now be sanctioned. The DILG is now empowered to file cases against local government officials who will enact ordinances in violation of Section 12 of EO 79, on the grounds of grave abuse of authority and grave misconduct.

THE

OPERATION

OF

THE

COPPER-GOLD

MINE

IS

IN

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


Republic Act 9729 is An Act Mainstreaming Climate Change into Government Policy Formulations, establishing the Framework Strategy and Program on Climate Change, Creating for this Purpose the Climate Change Commission and for Other Purposes.8 This does not mention anything about mining.

6 7

Lina vs. Pao, GR No. 129093, 30 August 2001. South Cotabato Dads Say Open-Pit Ban Contrary to Law, Business Mirror, 02 December 2012; The legal opinion is not yet available in the DOJ website. 8 President Arroyo signed RA 9729 into law on 23 October 2009.

In the latter part of the pleading, it becomes clear that Petitioners were referring to the Rules of Procedure for Environmental Cases. Rule 20 of this law provides, to wit:
xxxxx PRECAUTIONARY PRINCIPLE Section 1. Applicability- When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.9 xxxxx

We fail to see exactly what Petitioners are trying to say. This provision simply lays out the application of the procedure for environmental cases. This law does not say anything about prohibiting mining because the constitutional right of the people to a balance and healthful ecology shall be sustained. This law merely talks about procedure (arrest, pre-trial trial, et al.). For the sake of argument, if we were to strictly follow this precautionary principle, the Philippines would lose the opportunity of becoming a source of a globally competitive mining industry, which could be provided by the Tampakan mining project. The application of the Precautionary Principle in different fields has been criticized internationally. It is emphasized that should all countries be bound by this lowest standard of health and environmental protection, they would be placed in a very undesirable situation since to a lot of factors, such as culture and risk averseness affect its general application10. This principle is comparable to a better be safe than sorry ideology. Accordingly, the precautionary principle may be accepted as an aspirational policy but not a legal rule because of its vagueness11. The concept is based only on the idea of prevention and not on any definite standards. Since the principle is
9

A.M. No. 09-6-9-SC Lyons, et. al., An Environmentalists Vision of Operationalizing the Precautionary Principle in the Management of Chemicals, International journal of occupational and environmental health , Oct-Dec 2000. 11 Marchant, G. E., From general policy to legal rule: aspirations and limitations of the precautionary principle. Environmental Health Perspecitives, 2003.
10

indefinite, it opens an avenue for capriciousness in the decision-making of both governmental agencies and courts12. This principle, being ambiguous, cannot justify the denial of the Tampakan project.

DENR DOES NOT SUPPORT MINING OPERATIONS OVER 1,000 METERS ABOVE SEA LEVEL
Petitioners have no basis for this allegation. Notably, Lepanto Consolidated Mining, with its mining site at Mankayan, Province of Benguet, operates in elevations of 600 to 1,500 meters above sea level.13 And nothing in the Philippine Mining Act prohibits mining in area higher than 1,000 meters above sea level.

THE

ENVIRONMENTAL

DAMAGE

THAT WILL BE CAUSED BY THE CONSTRUCTION AND OPERATION OF THE GOLD-COPPER MINE

SHALL ADVERSELY AFFECT THE RESIDENTS OF THE PROVINCES OF DAVAO del SUR, SULTAN KUDARAT, SOUTH COTABATO AND

SARANGANI, PARTICULARLY THE MUNICIPALITIES COLUMBIO, MALUNGON, OF KIBLAWAN, AND FRAIL

TAMPAKAN AND THE

ECOLOGICAL BALANCE OF THE AREA; There is no dispute that SMIs project involves a coal -fire powered station. But the operations will not cause environmental damage to such
12 13

Ibid at 11. From the Lepanto Consolidated Mining website, Far Southeast, Location and Accessibility.

extent as Petitioners discussed it. The environment has always been taken into consideration by SMI.
The EIS (Environment Impact Statement) has been prepared by Filipino specialists and international experts and identified the potential environmental and social impacts of the proposed mining operation and detailed SMIs comprehensive mitigation strategies.14 SMI is also fully aware of the mandatory process in the Philippine Mining Act, under Section 35 of Chapter VI on Financial and Technical Assistance Agreement, and is committed to abide by it, to wit:
xxxxx k. Requiring the proponent to effectively use appropriate anti-pollution technology and facilities to protect the environment and to restore or rehabilitate mined out areas and other areas affected by mine tailings and other forms of pollution or destruction. xxxxx

AIR POLLUTION As stated by SMI in their Sustainability Report for Tampakan, for the year
2011:
xxxxx We are committed to measuring, controlling and reducing harmful air emissions. This not only helps protect air quality and the environment, but also helps us maintain good relationships with local communities, and therefore protect our license to operate.15

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


x x x x x A detailed air quality modeling assessment was undertaken for the Project involving 120 model scenarios. It addressed representative development stages over the

14

Xstrata Copper: SMI consults stakeholders on its proposed Tampakan copper-gold mining operation, from the Xstrata webside, 14 June 2011.
15

Tampakan Copper-Gold Project, Sustainability Report 2011.

life of the Project and included all relevant air emissions including particulate matter, metals, sulphur dioxide, nitrous oxides and volatile organic compounds.

Ambient air quality was predicted in the area surrounding the Mine Project site including at 47 of the closest neighboring villages and towns. The predicted air quality levels are compliant with the adopted Project air quality guidelines at all of these villages and towns. There are some small areas outside the Project site boundary where the predicted air quality for some parameters is above the adopted Project air quality guidelines. These areas are predominantly in the vicinity of the open-pit. However, there are no residential villages or other sensitive receptors currently located within these areas. A real time air quality monitoring program is proposed in order to confirm the actual air quality in neighboring areas during construction and operations.16 x x x x x (emphasis ours)

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

xxxxx A number of leading air quality guidelines were considered for this Project. We have adopted air quality guidelines for the Project that are primarily based on the Philippine Clean Air Act. Where no standard was available for a particular emission, we used the following international guidelines (in descending priority order): United States Environmental Protection Agency (USEPA) Standards World Health Organisation (WHO) Air Quality Guidelines European Union (EU) Guidelines New South Wales (Australia) Guidelines.17 xxxxx

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

16 17

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

x x x x x The assessment concluded that the peak annual greenhouse gas emissions from the Project (in year 15 of operations) are expected to contribute less than 0.4% to Philippine national emissions.

Greenhouse gas emissions will be managed through a range of measures including preparation of annual greenhouse emissions inventories, regular forums to evaluate energy use and efficiency opportunities and public reporting of greenhouse initiatives. 18 x x x x x (emphasis ours)

WATER POLLUTION Respondents have decided to consolidate all water-related issued stated by Petitioners. Petitioners mentioned under Environmental Damage V, to wit: xxxxx
If compared to Philex mining, Philex milled 311 million metric tons of ore between 1955 to 2006. Today, it will mill 54 million metric tons in six years or around 9 million metric tons per annum. Tampakan mining will mill 2.2 billion metric tons in 25 years implying 88 million metric tons per annum or more than 10 times of Philex mining from 1955 to 2008. This means that Tampakan is unprecedented and more than 10 times the environmental impact and risks of Philex mining. It will require not only the area for ore mining, but also land for space for the mined ore, milling, tailing ponds, company facilities, public relations facilities and dams.19 (emphasis ours) xxxxx

Respondents do not see the relevance and materiality of comparing Philex Mining with SMI in its Tampakan Project. Reports and investigations say that the Philex Benguet mine leakage, which resulted in spilling of mine wastage into river systems, was due to the companys negligence. The Mines and Geosciences Bureau (MGB) opined that the company had been negligent for failure [sic] to exercise the necessary diligence required by the safety standard and regulations for the care and maintenance of the mine structures
18 19

Ibid at 16. Mining in the Municipality of Tampakan: risks and alternatives by Arturo Boquiren

and facilities.20 Conversely, the tragedy would not have taken place had there been no failure to execute such duty. SMI explained how it can manage water, to wit: xxxxx
We understand water quality and security is important for our stakeholders. It is their basic right to have access to clean and safe water. We recognize it is critical we demonstrate our competence and capability to manage water resources, to ensure we provide our communities and stakeholders with confidence in our proposed management strategies and in the Tampakan Project. SMI has invested significant resources in conducting extensive technical studies to establish baseline water resources data in the region, together with carefully studying the proposed mines potential impact. 21(emphasis ours) xxxxx

SMI also mentioned the strategies it will use for water management:
xxxxx Using leading, international standard water conservation and recycling methods to reduce water usage approximately 70% of the Tampakan Projects water needs would be met by recycling water SMI is designing the mine so it can operate without significantly impacting the amount of water currently used by the local community in the Taplan catchment by fully compensating Taplan River flows that may be affected by the open-pit Constructing containment facilities such as seepage collection dams and international standard water treatment facilities to ensure any water discharged from site is suitable for all current uses Monitoring of surface and groundwater in collaboration with community and government groups to validate the integrity of our numerous impact mitigation measures

20 21

The Government rejects Philex Mining appeal, Business World Online, 22 November 2012. Ibid at 15.

Locating the mine infrastructure away from the ecologically significant Lake Buluan district.22 (emphasis ours)

xxxxx

Another proposal of SMI is best practice erosion and sediment controls which would control the possible sedimentation of waterways during construction process.23

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

The loss of aquatic habitat would be mitigated through compensatory habitat enhancement. This would be implemented through the Biodiversity Management Plan. The Biodiversity Management Plan would also include a monitoring program for downstream aquatic ecology. The adopted site discharge water quality standards have been set at levels that are specifically designed to ensure there are no significant adverse impacts on downstream aquatic ecosystems. Best practice erosion and sediment control measures are also proposed to be implemented on the Project site. This would ensure that downstream waterways and associated aquatic ecology are not adversely impacted by sedimentation.24 (emphasis ours)

SMI also mentioned that copper is beneficial to sustainable development, particularly in water, to wit:
xxxxx Copper is used in the fish farming industry to control the growth of bacteria in the water xxxxx Copper pipes help to keep drinking water clean by inhibiting the growth

22 23

Ibid at 15. Ibid at 16. 24 Ibid at 16.

of bacteria25 xxxxx

2.7 BILLION TONS OF MINE WASTES WILL BE PRODUCED


Mining wastes are inevitable, but with proper management, wastes can be reduced. SMI plans to have mine waste storage facilities,26 and to xxx efficiently use natural resources and implement measures to prevent pollution and reduce waste.27

SMI does not deny that mine waste materials would possibly produce acid drainage when exposed to oxygen and/or water, but according to the company:

xxxxx

The design and operating plans for the mine waste storage facilities have been developed to ensure geotechnical stability, appropriate management of waste geochemistry and the potential for acid generation, and management of the surface water runoff and seepage from the stored wastes.

The majority of the waste rock (1.35 bt) would be stored in the Waste Rock Storage Facility (WRSF). All tailings (1.1 bt) will be stored in the Tailings Storage Facility (TSF).28 (emphasis ours)

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

xxxxx
Although we are not yet operating, the proper management and disposal or recycling of wastes is necessary to avoid environmental impacts. We aim to reduce both the quantity and toxicity of our waste, to find opportunities for environmentally sound recycling or reuse of our wastes and to continue to ensure our remaining wastes are

25 26

Ibid at 15. Tampakan Copper-gold Project, The Mine EIA Process. 27 Xtrata Copper Tampakan Project, Sustainability Report 2009. 28 Ibid at 16.

managed and disposed of in a safe and environmentally responsible manner.29 (emphasis ours) xxxxx

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


SMI is committed to reforest. There is a mandatory process under the Philippine Mining Act of 199530 called for securing all possible liabilities of mining companies and providing for progressive rehabilitation of sites which were used for mining, to wit:
Section 35 Terms and Conditions xxxxx k. Requiring the proponent to effectively use appropriate anti-pollution technology and facilities to protect the environment and to restore or rehabilitate mined out areas and other areas affected by mine tailings and other forms of pollution or destruction. (emphasis ours) xxxxx

Section 69 of the Act also provides, to wit:


xxxxx Every contractor shall undertake an environmental protection and enhancement program covering the period of the mineral agreement or permit. Such environmental program shall be incorporated in the work program which the contractor or permittee shall submit as an accompanying document to the application for a mineral agreement or permit. The work program shall include not only plans relative to mining operations but also to rehabilitation, regeneration, revegetation and reforestation of mineralized areas, slope stabilization of mined-out and tailings covered areas,
29 30

Ibid at 15. Republic Act 7942

aquaculture, watershed development and water conservation; and socioeconomic development. (emphasis ours)

Furthermore, Section 71 provides, to wit: xxxxx


Contractors and permittees shall technically and biologically rehabilitate the excavated, mined-out, tailings covered and disturbed areas to the condition of environmental safety, as may be provided in the implementing rules and regulations of this Act. A mine rehabilitation fund shall be created, based on the contractors approved work program, and shall be deposited as a trust fund in a government depository bank and used for physical and social rehabilitation of areas and communities affected by mining activities and for research on the social, technical and preventive aspects of rehabilitation. Failure to fulfill the above obligation shall mean immediate suspension or closure of the mining activities of the contractor/permittee concerned. (emphasis ours)

There have been reforestation initiatives by SMI, to wit:


xxxxx In 2011, we supported the National Greening Program (NGP) of the Philippine Government and adopted two Department of Environment and Natural Resources (DENR) Community-Based Forest Management (CBFM) areas in Tampakan and Kiblawan. x x x x x As part of the agreement a total of 162 hectares were planted with fast growing and high-value trees. x x x x x We also distributed a total of 134,530 seedlings outside the Tampakan Project area to support the tree planting activities of DENR, LGUs, various civic and private organizations and individuals in Region XI and XII. Under this program, a total of 122 hectares were planted during 2011. For 2012, additional CBFM areas covering 190 hectares have been identified in Matanao, Tampakan and General Santos City as priority areas for planting. These

areas are separated into three main reforestation categories: agroforestry, production and protection. 31(emphasis ours) xxxxx

Notably, 284 hectares across the project area were reforested. SMI was recognized as an Outstanding Environmental Awardee for its reforestration work. And another recognition was having garnered second runner up in the Best Mining Forestry Program Award from DENR, as reported by the company in its 2011 Sustainability Report.

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

xxxxx The agroforestry farms will provide farmers with agricultural crops, rubber and fruit trees that they can harvest to supplement their income. The production forest will be planted with fast-growing, indigenous and exotic tree species for harvest. In the protection forest, cutting and harvesting will be prohibited.

There are many benefits farmers can gain from CBFM program. The participating members will be paid for their labor, receive high-quality seedlings and fertilizers, and participate in skills development programs on tree planting and maintenance. Most importantly, the program will provide them with a sustainable source of income and therefore improve their standard of living.32

EIA SUBMITTED BY SMI DID NOT INCLUDE CLIMATE CHANGE IMPACT IN THEIR ANALYSIS As stated by Petitioners:
Overall, it appears that the ecological risks and values were either underestimated or underplayed in the feasibility studies of SMI.

31 32

Ibid at 15. Ibid at 15.

SMI may not have included climate change impact in their EIA, but the company was able to appropriately address this in its 2011 Sustainability Report, which provides, to wit:
xxxxx

We recognize the future effects of climate change represent a risk for our future
operations and communities. We seek to be as energy efficient as possible to minimize our greenhouse gas (GHG) emissions and reduce our operating costs. We also switch to renewable or low-carbon sources where it is available and cost effective. We believe the key to the effective management of GHG emissions takes place long before any mining operation commences. The design of the mining and processing operation is critical as once commissioned, this design will dictate the energy inputs required and GHG outputs released over its lifespan. To facilitate the development of an energy efficient operation, all Xstrata projects are required to include a contingency cost for carbon in their financial models. This allows our project development teams to optimize the GHG footprint of the Project. As established in the SMI sustainable development (SD) policy, we set targets to reduce our direct and indirect GHG emissions, and work closely with governments, organizations and other groups to address climate change.33 (emphasis ours)

THE TAMPAKAN MINING PROJECTS SITS ON TOP OF A FAULT LINE AND IS JUST 12 KILOMETERS AWAY FROM THE VOLCANO, MT. MATUTUM
According to Dr. Carlos Arcilla, a geology expert at the National Institute on Geological Sciences University of the Philippines, "You cannot just say that the Tampakan project will cause earthquake and volcanic eruptions without considering proper engineering and existing baseline data."34 SMI was issued a certification by the Philippine Institute of Volcanology and Seismology (PHIVOLCS), which stated that the nearest active earthquake fault is

33 34

Ibid at 15. Tampakan Mine Can Be Sustainable geologist, Rappler.com, Updated on 19 September 2012.

approximately 10 kilometers from the project area.35 This indicated that the mining area is not within a high risk zone. Mt. Matutum is a dormant volcano according to Renato Solidium, Jr., director of PHIVOLCS. As stated by him, to wit:

x x x x x observations of fire and smoke near its summit are non -volcanic in origin based on findings of forest rangers in Barangay Maligo, Polomolok, South Cotabato after the conduct of an ocular inspection.36 xxxxx

The oculars were done at the crater area by which firsthand photographs and videos were obtained. At the volcano-seismic observatory at Mindanao State University at General Santos City, seismic records revealed no volcanic activities. More importantly, measures had been undertaken to ensure the safety and possible hazards of the area.

As what we averred in our Sustainability Report for Tampakan, for the year 201137, to wit:

As part of the engineering studies undertaken during the Mining Project Feasibility Study (MPFS), a site-specific hazard assessment was completed to assess the potential for and to design against, major damage to key mine infrastructure, including the Waste Rock Storage Facility (WRSF), Freshwater Dam (FWD), open-pit and Tailings Storage Facility (TSF).

35

Special Report: The Tampakan Project: battle over Southeast Asias largest gold -copper reserve, Minda News, 11 November 2012. 36 Mt. Matutum still dormant, The Mindanao Cross Global, 11 August 2012. 37 Ibid at 15.

Should a large earthquake occur, the FWD and TSF are designed such that the risk of complete failure of either structure is negligible and any deformation or damage could be repaired without compromising the future safety and stability of the facility. (emphasis ours)

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

x x x x x dams and buildings are constructed safely world-wide in a variety of environments and the analysis undertaken by our geologists and engineers is consistent with leading practice, that is to assess the risk and design the structures accordingly.38 (emphasis ours) xxxxx

RESPONDENTS VIOLATED THE PRINCIPLE OF PRIOR FREE AND INFORMED CONSENT AND OTHER ENVIRONMENTAL LAW

PRINCIPLES UNDER THE IPRA


This argument is baseless.

As can be gleamed from the petition, the petitioners merely stated, to wit:
xxxxx A fact-finding mission has uncovered further evidence that the Xstrata-operated Tampakan mine in the Philippines did not have the Free, Prior, Informed Consent of the affected B'laan communities. xxxxx

Sadly, there was hardly any discussion on how SMI actually violated the principle of the Free, Prior, Informed Consent (FPIC), and at most it is a mere speculation.
38

Ibid at 35.

According to SMI, in its EIA:

xxxxx
When engaging with IPs and other directly affected peoples, SMI promotes full respect for their dignity, human rights, aspirations, cultures and natural resourcebased livelihoods. We uphold and promote human rights within our areas of influence, respecting the cultural heritage, customs and rights of communities, including indigenous peoples. (emphasis ours) xxxxx

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

xxxxx As mandated by law, specifically the 1995 Philippine Mining Act and the Indigenous Peoples Rights Act (IPRA), we commenced the process of securing Free and Prior Informed Consent (FPIC) from our host communities. Pre-scoping and public scoping meetings, consultations, and assemblies were conducted for both the ESIA and the FPIC. A total of 94 stakeholder groups, approximately 1,500 individuals, were engaged in a series of 43 small, private consultation meetings from September to December 2009. Four public scoping meetings were held from 17 to 20 November 2009. This was a key milestone for the Tampakan Project ESIA approvals process, reaching a cross-section of sectors composed of 415 leaders in Tampakan, South Cotabato; 375 in Kiblawan, Davao del Sur; 367 in Malungon, Sarangani; and 430 in Columbio, Kudarat.39 xxxxx

And in SMIs discussion of social development:


xxxxx SMIs studies indicate that, if the Project is approved, royalty payments and direct contributions in excess of PhP39.8 billion (nominal) would be made to local communities and indigenous groups over the Projects life. xxxxx

39

Ibid at 27.

In addition, SMI would be working with indigenous communities and the National Commission on Indigenous People, to ensure that each indigenous community has an Ancestral Domain Sustainable Development and Protection Plan (ADSDPP) for the ancestral domains affected by the Project (refer box About ADSDPP).

Both the SDMP and ADSDPP seek to ensure that the affected communities are able to benefit both immediately and in the long-term from the opportunity presented by the Projects contribution.40 (emphasis ours) xxxxx

Furthermore, petitioners contend that:

xxxxxx
a lot of deaths that happened in connection with the said mining xxxxx Philippine Armed Forces continuously launched a military campaign of terror and harassment on civilians, mostly members of the Blaan tribe.41

xxxxx

These accusations are based on gathered news reports and a report conducted by Center for Environmental Concerns-Philippines. The argument is baseless and completely unpalatable. These news articles amount to hearsay evidence and are without any evidentiary value. Petitioners must present the writers of these articles in court to affirm its veracity. And contrary to Petitioners claim, SMI has an extensive resettlement procedure. SMI created a Resettlement Committee (RC) composed of 115 members which are elected by the community, and they represent their community and relay community feedback to the RC. 42 The committee has the following functions:

xxxxx Identify and communicate community concerns and ideas to SMI relating to resettlement

40 41

Tampakan Copper-gold Project, Benefits to the Community. Petition for Writ of Kalikasan: Alyansa Tigil Mina, et al. vs. Secretary of DENR, et al. 42 SMI, Resettlement, Resettlement Committee Fast Facts.

Act as a conduit to affected communities by communicating information regarding the status of resettlement activities and outcomes from RC meetings Provide relevant inputs into resettlement planning and processes tabled at RC meetings, via participation and group discussions Develop and obtain consensus of the resettlement packages, which include, resettlement sites, eligibility, compensation (land, crops, community buildings and infrastructure, other structures), replacement housing, and livelihood restoration.43 xxxxx

Aside from the RC, an additional safeguard was created by the SMI; an Oversight Committee to ensure that resettlement procedures will not trump on the rights of the Indigenous People as protected under the IPRA. The committee, who is tasked to have a monthly meeting, is composed of, to wit:
x x x x x representatives from SMI, the National Commission on Indigenous Peoples (NCIP), Mines and Geosciences Bureau (MGB), Provincial and Municipal Local Government Units, and the Commission on Human Rights (CHR) will oversee the resettlement consultation process to ensure transparency and compliance with leading practice and SMI's commitment to fairness and equity.44

They will also discuss community feedback and advise on the attitudes and views of the community, government and other agencies. Ultimately, SMI assured that it has not commenced any resettlement until Free and Prior Informed Consent (FPIC) is granted by indigenous peoples and a Resettlement Action Plan (RAP) is endorsed by Project Affected Persons.45

PRAYER WHEREFORE, premises considered, it is most respectfully prayed before this Honorable Court that the Petition for Writ of Kalikasan with Prayer for the issuance of

43 44

Ibid. Ibid at 42. 45 SMI, Resettlement, About Resettlement.

a Temporary Environmental Protection Order [TEPO] and the Cancellation of the ECC issued by Respondent DENR be dismissed. Other just and equitable relief and remedies are likewise prayed for. Quezon City for Manila.

08 December 2012. CHAVEZ, DE LEMOS AND DE LEON LAW OFFICES Counsel for the Respondents 5-B Kundiman St. Cor. Del Monte Ave., San Francisco del Monte, Quezon City, M.M. 1100 Tel. Nos. 372-96-33

By:

MARIAN CAMILLE E. CHAVEZ PTR NO. 6575015/ 28 March 2012/ Quezon City IBP NO. 892488/ 02 March 2012/ Quezon City Chapter Roll No. 60688 Admitted to the Bar on 26 March 2012

MIRRIAM ANDREA V. DE LEMOS PTR NO. 6575016/ 28 March 2012/ Quezon City IBP NO. 893567/ 02 March 2012/ Quezon City Chapter Roll No. 60758 Admitted to the Bar on 26 March 2012 -andDINO S. DE LEON PTR NO. 6575017/ 28 March 2012/ Quezon City IBP NO. 891465/ 02 March 2012/ Quezon City Chapter Roll No. 60898 Admitted to the Bar on 26 March 2012

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