Monday, February 18, 2013

The claim for damages to the people of Marinduque and ecosystems of Boac and Mogpog Rivers, Calancan Bay and coastal areas

It's the Marcopper minesite, folks!
And so it goes. On June 24, 2005, the Sangguniang Panlalawigan of Marinduque passed Resolution No. 264 s. 2005, authorizing Governor Carmencita O. Reyes to enter into a Special Outside Appointment and Engagement Contract with legal counsel Walter J. Scott on the lawsuit against Placer Dome, Inc. to be filed in a country where jurisdiction can be had for the damage it caused to the people of Marinduque and the province’s ecosystems, “specifically the Boac and Mogpog Rivers, Calancan Bay and the surrounding coastal areas.”


The authorization was subject to the following conditions:

1  " Pursuant to the authority conferred by this resolution the provincial Governor shall forthwith cause the appointment and sign the contract of engagement of the services of outside counsel, in the person of Atty. Walter J. Scott and to exercise such powers and perform such acts as are incidental and necessary for the accomplishment of the objectives and purposes for which this authority is intended;

2.  The appointment and engagement of the services of the herein outside counsel for the remuneration of his services shall be dependent upon successful litigation of the case or recoveries as defined in the contract of engagement, subject to the following percentage sharing:

a)      1st $15 Million             - 10% plus reimbursement of not more than $500,000.00
b)      Next $35 Million       - 40% plus reimbursement of not more than $ 1,000,000.00
c)       $50 Million and above – 33% plus reimbursement of not more than $ 1,500,000.00;

3. The Office of the Provincial Governor shall upon signing by the parties of the appointment and engagement contract of special outside counsel referred to above, submit the same to the Sangguniang Panlalawigan for legislative concurrence.
    
  4.  Any amendment or modifications of the terms and conditions of the signed agreement shall only be affected by mutual agreement of the parties thereto, subject to the ratification of the Sangguniang Panlalawigan."

From 2007 to 2010.

The case against Placer Dome filed in 2005, was removed to U.S. District Court at the request of Placer Dome. Then U.S. District Judge Brian Sandoval dismissed the case in June 2007, citing an improper choice of forum or court. Read

In late September 2009, the U.S. Court of Appeals for the Ninth Circuit reversed the District Court decision dismissing the case in favor of Canada on forum non conveniens grounds. The defendants moved for a reconsideration of that ruling by the judicial panel that had decided it and the request for reconsideration was denied.  The case was returned to the Nevada state court where it was originally filed. Read

In 2010 the Sangguniang Panlalawigan passed Resolution No. 775 series 2010 – Resolution of consent to the continued representation of the Province of Marinduque by the Diamond McCarthy LLP, Suell & Wilmer LLP and Zambrano & Gruba Law Office in the case filed by the province against Barrick Gold Corporation and Placer Dome, Inc. in the Nevada State Court. In relation to this, then provincial administrator, J. Roberto Abling, sent a formal letter, May 20, 2010, to the Sangguniang Panlalawigan with the following queries, to wit:

Query from Carrion administration ignored?
1.   "1.  Is there an original contract/agreement between the Provincial Government and Diamond-McCarthy LLP, Snell & Wilmer LLP and Zambrano & Gruba Law Office covering the proposed legal services?

2.   "2.  If there is such a contract, who were the signatories? Better yet, can the Office of the Governor be furnished a certified copy of such a contract/agreement?

3.   "3.  What are the obligations of the Provincial Government financially and otherwise if we were to extend their service?

4.   "4.  Is there an SP resolution authorizing/creating the SP Liaison Committee as mentioned in the fax letter of Mr. James D. McCarthy? If so, can the Office of the Governor be furnished a certified copy?"

Questions that apparently remained unanswered by the SP during the term of Gov. Bong Carrion, probably all in the name of ‘confidentiality’. So was Carrion also kept in the dark? But the so-called SP Liaison Committee stated in No. 4, above may never have been authorized or created by the SP to act as such in the first place. 

For why would certain board members who’ve assumed that liaison role feel strongly that they are not compelled to inform the Sangguniang Panlalawigan as a legislative body on matters about the Nevada case that are of critical importance to the people of Marinduque. 

Board Member Mel Go and Vice-Governor Antonio Uy, Jr. 
So it goes. There appears to be wailing, gnashing of teeth and shooting of arrows among them, some Marcopper stakeholders now. A board member (Mel Go), declared in a recent Barrick Gold open forum in Marinduque: "We have been kept in the dark!"

We may yet also uncover the probability, given the manner by which the Marcopper Mining Disaster has been handled all these years, that the signed Agreement between the Provincial Government of Marinduque and the lawyers concerned may never have been ratified by the SP, as expressly stated in Resolution No. 264 s. 2005 authorizing the governor to enter into that agreement. That's in view of the seeming inability of the SP or Secretariat to respond to official letters as stated above.

See previous post: Keeping Marinduquenos in the dark

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