The proposed Barrick Gold settlement could be a real test to the direly ignored cultural, political and environmental significance of Marinduque to the rest of the country.
The municipal government of Boac, with official support of the municipalities of Gasan and Buenavista, is up in arms against the terms and conditions contained in the proposed settlement that has not been officially made public.
In a new Resolution, the Municipal government of Boac has urged the Sangguniang Panlalawigan to reject the proposed settlement agreement in its entirety. The resolution decried the stipulations as 'unacceptable or unconscionable', and called for a "genuine, participatory, free and informed consultative processes among stakeholders".
The Sangguniang Panlalawigan has apparently opted not to respond to all related resolutions adopted by the said municipal governments.
What exactly are those tightly guarded stipulations that the Provincial Government is apparently bent on pushing? In the public interest, they are reproduced below:
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| A portion of the document. |
As contained in Appendix "A" of the proposed settlement agreement entitled "STATEMENT OF STIPULATED FACTS" (Annex "D" in the Boac Resolution) they are as follows, confirming previously reported "conditions" that have been described as "legal fictions" never belied by the authorities concerned, i.e. Placer Dome never did business in the Philippines, PDI and Barrick Gold are not subject to jurisdiction of Philippine Courts, continued operation of Marcopper and disposal of mine tailings in the Calancan Bay was in the public interest, that the weight of scientific evidence has not posed any unacceptable risk/impact to human health and environment, and other 'facts':
APPENDIX "A"
STATEMENT OF STIPULATED FACTS
TO: BARRICK GOLD CORPORATION
In the interest of resolving protracted litigation by way of a settlement the Provincial Government of Marinduque has determined to be in the best interest of its people, and in order to facilitate the Province in moving forward, the undersigned stipulates to and admits the following facts:
(i) Placer Dome Inc. ("PDI") did not at any time or in any manner conduct or transact business in the Republic of the Philippines;
(ii) Marcopper Mining Corporation ("Marcopper") and PDI were at all times entirely separate and completely independent legal entities and at no time was Marcopper an alter ego or instrumentality of PDI;
(iii) Barrick Gold Corporation has not at any time or in any manner conducted business in the Republic of the Philippines;
(iv) PDI and Barrick Gold Corporation are not subject to the jurisdiction of the Courts of the Republic of the Philippines;
(v) Marcopper's disposal of mine tailings into the Calancan Bay was at all relevant times conducted pursuant to and in accordance with government permits;
(vi) Marcopper complied with the Pollution Adjudication Board's April 11, 1988 cease and desist order while it was in effect;
(vii) Marcopper fully complied with the requirements of the May 13, 1988 Order of the Office of the President;
(viii) the May 13, 1988 Order of the Office of the President includes express findings by the National Government that the continued operation of the Marcopper Mine and disposal of mine tailings into Calancan Bay was in the public interest;
(ix) the weight of scientific evidence demonstrates that the mine tailings present in the Province's waterways do not currently pose and have not posed an unacceptable risk to human health;
(x) the weight of scientific evidence demonstates that the mine tailings present in the Province's waterways do not currently and have not had an unacceptable impact on the environment;
(xi) the Maguila-guila Dam was constructed and operated by Marcopper in accordance with government permits and approvals and conformed to government approved plans and specifications;
(xii) the principal cause of flooding of the village of Mogpog in December, 1993 was typhoon Monang;
(xiii) the breach of the Maguila-guila dam was the result of force-majeure and not the result of any act, omission or breach of obligation by either Marcopper or PDI;
(xiv) following the March 24, 1996, Marcopper Mine tailings spill (the "1996 tailings spill"), PDI made voluntary commitments to the then-President of the Philippines, Fidel V. Ramos, to ensure that Marcopper had the technical and financial resources available to mitigate the effects of the tailings spill and to compensate those who had been adversely impacted by the tailings spill. PDI did so on a purely voluntary basis and without admitting or accepting any legal liability for the 1996 tailings spill or otherwise in connection with Marcopper's mining activities;
(xv) these voluntary commitments of PDI did not give rise to obligations with any legal force and, in any event, they were fully satisfied;
(xvi) the prescription periods for all possible causes of action against PDI and Barrick Gold Corporation relating to the Calancan Bay tailings disposal (1976 to 1991), the Maguila-guila Dam breach (December 1993), and the Boac River tailings spill (March 1996) have expired; and
(xvii) for all legal purposes, the consideration provided to the Province of Marinduque by PDI and Barrick Gold Corporation under the terms of this Settlement Agreement is adequate and reasonable.
It will be recalled that US legal counsel, Skip Scott, during the initial "stakeholders meeting" held in January 2012, said this much:
"Secretary Acosta, or Secretary Paje or the President himself, none of those people will say I have kept them in the dark".
Close to the "new" deadline, March 15, 2013, (previously Dec. 31, 2013), for the Marinduque government to finally decide on the settlement, the Marinduque Council for Environmental Concerns (MACEC), has now been woefully ignored by the parties involved as an important stakeholder to the proposed settlement. An alliance of mining-affected communities has expressed serious concern about this development.
The said alliance, Alyansa Tigil Mina (ATM), maintains that it is only after determining the position and perspectives of the key stakeholders that Malacanang will have adequate information to recommend stakeholders on the best option to move forward.
Excerpt from Resolution No. 2014-023 Feb. 24, 2014 of the Municipal Government of Boac:
"(1) We hereby hold unacceptable or unconscionable any and all of the proposed stipulated facts of the settlement agreement contained in Annex “D” hereof and we strongly recommend to the Sangguniang Panlalawigan to reject the same in its entirety because they are disadvantageous to the provincial government, the people of both the present and future generations of Marinduqueños; they run counter to the principle of environmental justice and intergenerational equity. Aside from these, it will set a bad precedence to all future mining companies in the country, which, after devastating any parts of the environment will just come into settlement and go scot-free.
"(2) We also hereby reiterate our recommendations contained in our previous Resolution, herein attached as Annex “A” which stated “that reliefs prayed for in the Third Amended Complaint should be the basis of the amount of (sic) settlement agreement and the same prayers should be treated as non-negotiable terms and conditions on the part of the Province on behalf of the people of Marinduque; and, any amount to be negotiated in relation to the settlement of the Nevada Case and such other cases related to Barrick Gold in various courts in the Philippines, should be commensurate to the reliefs prayed for in the Nevada Case.
"(3) We also earnestly call on the Sangguniang Panlalawigan of Marinduque to conduct genuine, participatory, free and informed consultative processes among stakeholders to consider their interests, views and stances based on the various terms and conditions of the proposed settlement agreement in accordance with Barrick’s Defendants’ Mediation Statement on February 22-24, 2012 to the Judicial Arbitration and Mediation Services (pages 12-13) which stated that:
“Further, and with a view to enhancing the goal of finality, Barrick believes that the interests and potential role of the following parties in any potential settlement need to be considered:
(i) The Philippine National Government;(ii) The local governments (municipalities and “baranguays”);(iii) The Church or any specific Church organizations;(iv) The Marinduque Council for Environmental Concerns (MACEC), which Barrick understands to be an NGO operating in Marinduque and involved in the Kalikasan proceedings through one of the petitioner in that case; and(v) Members of the opposition at the provincial and/or National government levels.”
"(4) We also call on the Department of Environment and Natural Resources and other concerned national government agencies to take into consideration this official position of this august Body in relation to the Nevada Case proposed settlement agreement and to uphold the principles of environmental justice the constitutional tenet on balanced ecology, public interest, the general welfare, and intergenerational equity, among others.
"RESOLVED FURTHER that the above-mentioned position of the Sangguniang Bayan of Boac is hereby respectfully submitted to the Sangguniang Panlalawigan of Marinduque’s Committee on Environmental Protection and Human Ecology, and requesting thereof to strongly consider the same in the finalization of recommendations relative to the proposed settlement agreement."
