Monday, August 18, 2014

SP Marinduque rejects Barrick offer with finality; moves forward with litigation options!


So, what is the meaning of this?

Above photo shows Dr. Catherine Coumans of MiningWatch Canada, Atty. Skip Scott the U.S. legal counsel of Marinduque in the Nevada case against Barrick, and members of the Sangguniang Panlalawigan of Marinduque with Vice-Governor Romulo A. Bacorro all smiles in a group hug after SP members rejected with finality the onerous settlement offer. This transpired at the SP last Thursday, August 14, 2014. Agreeing to consider all options and proceed with the litigation, there was stark realization among the members that Marinduque needed both Coumans and Scott to agree to continue to help the province.

Scott was reported to have said during the said meeting that "part of him was glad the Province had made a decision and had rejected it" also saying that as their lawyer had not been able to recommend that.

Coumans, Research Coordinator of MiningWatch Canada for the Asia-Pacific Region was a recent Marinduque visitor (August 13-16, 2014), upon the invitation of the Marinduque Council for Environmental Concerns (MaCec), the Sangguniang Bayan of Boac, the Sangguniang Panlalawigan of Marinduque, and the Marinduque First Saturday Movers (Marinduque Movers) for separate discussions on options for Marinduquenos on the Marinduque vs Barrick Gold case filed in Nevada.

Copy of a handout prepared by Coumans to facilitate discussion of options in said venues is reproduced below.


Marinduque vs Barrick Gold
The Province at a crossroads
Handout to facilitate discussion of options. 
Catherine CoumansMiningWatch Canada. August 13-16, 2014


1996—The Cessation of Marcopper Mining 
  • Last in a series of environmental disasters related to the almost 30-year operation of Marcopper Mining Corporation (Marcopper”) occurs on Marinduque 

2005 – Marinduque’s “Nevada” Case
  • On October 4, 2005, the Provincial Government of the Island of Marinduque, Philippines (" the Province"), filed a law suit against Canadian mining company Placer Dome Inc. “PDI” with the District Court in Clark County, Nevada. In 2006, Canadian mining company Barrick Gold Corp.”Barrick” acquired PDI and became a party to the law suit. The Province brought the case in its sovereign capacity and as parens patriae to all Marinduquenos.
  • The Province asserted that PDI is responsible for serious environmental degradation to Marinduque caused by nearly three decades of mining with consequent economic damages and impacts to the health of people living in the vicinity of the mine and its waste. The Marcopper mine was partly owned by PDI and operated by Placer Dome.
  • The Province sought an unspecified amount of damages (including exemplary damages, interest and attorneys' fees) and orders from the District Court requiring PDI to complete an environmental clean-up of the impacted lands and water systems (including the reintroduction of harmed species into the restored environment), repair the deteriorating Marcopper mine structures and create and fund environmental and medical monitoring funds.
2011 -  Nevada court dismisses the case, favours re-filing in Canada, settlement talks start
  • In 2010 Barrick submitted a motion to dismiss the case before the Nevada court on the basis of Forum non Conveniens (that the US is the wrong Forum or location for the case) arguing that Canada is the appropriate Forum for this case (Barrick is headquartered in the Province of Ontario).
  • In February 2011, the Nevada district court judge granted Barrick's motion to dismiss the case and said that if the Province would re-file the case in Canada the judge would impose the very important conditions including that1) Barrick cannot ask for dismissal of the case from Canada based on Forum non Conveniens; 2) Barrick has to agree not to seek dismissal on the basis of statutes of limitations post October 4, 2005, when the case was originally filed; 3) Barrick must admit that the Canadian legal system permits monetary damages, as well as equitable relief.
  • The judge also noted that the Province could re-file the case in the Philippines, and states that the Philippines “may be the most desirable forum.” But she noted that Barrick had refused to accept this forumShe also noted that “the court lacks the authority to mandate that the defendants subject themselves to a forum in the Philippines.”  The judge would not impose the same important conditions on Barrick if the case is re-filed in the Philippines, as she would impose if the case were to be re-filed in Canada. 
  • The Province was granted an appeal to the Nevada Supreme Court; however at that point the parties agreed to stay proceedings and attempt mediation to seek a settlement on which they could agree.
  • Between 2011 and 2014 mediated settlement negotiations took place.

2013 - Barrick makes unacceptable settlement offer
  • Mid-2013 Barrick presented the Province a settlement offer that has raised serious concerns expressed publicly by many Marinduquenos individually, including provincial board members, as well as in joint resolutions and petitions.
  • These publicly reported concerns include:
  • Unacceptably low amount of settlement the amount Barrick is offering the Province, reportedly $20 million, is not commensurate with the harm caused in Calancan Bay, Mogpog and Boac and will not be enough to address the ongoing risk to the environment and human health and safety posed by the mine waste affecting Calancan Bay, the Mogpog River and the Boac River. Addressing this harm was the very point of filing the suit in the first place. After lawyer’s fees and administration fees have been paid the Province would be left with between 12-13 million dollars to be paid out in installments, subject to conditions, over a five-year period.
  • Unacceptable conditions - Barrick’s reported conditions related to this settlement include: 
  • Restrictions on the use of funds Barrick’s conditions related to this settlement include restrictions on the use of the funds that would not allow their use to rehabilitate the damaged eco-systems, Calancan Bay, Mogpog River, Boac River. Rehabilitating these ecosystems was a core aspect of the law suit.
  • Denying the history of mining-related harm - the settlement includes a condition that the Province stipulate that there are no unacceptable environmental or health impacts related to the mining by Marcopper on Marinduque over almost 30 years.
  • An indemnity clause  the settlement includes a clause that would hold Marinduque financially liable for Barrick’s costs as a result of any future litigation against Barrick on the issues of the current case. 

2014  Province refuses Barrick settlement offer – case goes back to court
The Province has refused Barrick’s settlement offer. Barrick has not addressed concerns of the Province. After numerous deadlines were extended without a settlement, the Nevada Supreme Court lifted the “stay” on the court proceedings in July of 2014. The Province’s appeal is now proceeding before the Nevada Supreme Court. The Province is arguing that the case remain in Nevada, or, if it is dismissed, that it be dismissed to the Philippines with conditions similar to those imposed on Barrick by the district court of Nevada in 2011.

What are the options for Marinduquenos now? What are the pros and cons of each? Let’s discuss!
  • There are now four main possibilities;
1) The Supreme Court will uphold the lower court ruling, and the Province will have to bring a new lawsuit, if it chooses and is able to, in Canada;
2) The Supreme Court will reverse the ruling, and the case will proceed in Nevada;
3) The Supreme Court will reverse, and dismiss in favor of the Philippines, and the Province will have to bring a new lawsuit, if it chooses and is able to, in the Philippines;
4) The Province will still settle with Barrick

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