Friday, January 23, 2015

What again is going on? PGM vs. Barrick Gold: Oral arguments February 3 in Nevada


Four years ago, consultations started between Marinduque provincial government officials and the legal counsels both from the US and the Philippines who represented Marinduque in the 2005 case filed in Nevada. It was to seek environmental justice for the damages wrought by decades of irresponsible mining to the people and environment of the island. 

The legal counsels were to get the acceptance of the province to a proposed compromise agreement reached between Barrick and the province. Provincial officials, particularly, members of the Sangguniang Panlalawigan were, however, virtually kept in the dark on the details of the agreement that was only disclosed 
two years later, and only after pressure from municipal LGUs, civil society groups led by Marinduque Council for Environmental Concerns (MACEC) and social media.


After disclosure of conditions imposed by the mining company, all of which were found to be onerous and unacceptable, a period of protests ensued both in Marinduque and in Manila where mining and environmental concern advocates joined in rejecting the compromise agreement. 

The protests culminated in the 18th annniversary of the Boac River tailing spillage where thousands of protesters from the province’s six municipalities rallied in the capital town.

The provincial government, through members of the provincial board assured their constituents that they could 'go back to sleep peacefully' because the proposed agreement would be completely rejected by the provincial government.

Yet, for unknown reason, no formal action through a valid resolution was released by the Marinduque government - until seven months later.

In August, Dr. Catherine Coumans, research coordinator of MiningWatch Canada who, as resource person has been involved for decades in getting the attention of the world on the environmental destruction of Marinduque, came to the province upon the invitation of the Sangguniang Panlalawigan ng Marinduque, the Municipal Government of Boac, the Marinduque Council for Environmental Concerns (MACEC), and the Marinduque First Saturday Movers (Marinduque Movers). She facilitated discussion of options available to stakeholders.

At the SP and in the presence of the US legal counsel, Coumans laid down four possibilities that could be pursued, namely:
1. The Supreme Court of Nevada will uphold the lower court ruling on the case, and the Province will have to bring a new lawsuit in Canada, if it chooses and is able to;
2. The Supreme Court of Nevada will reverse its earlier ruling on the case, and the case will proceed in Nevada;
3. The Supreme Court of Nevada will reverse and dismiss in favor of the Philippines, and the Provine 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.

The Municipal Government of Boac which earlier conducted consultative meetings with local government functionaries and has, in connection with the compromise agreement and together with the municipalities of Gasan, Buenavista and Mogpog made appropriate recommendations, also met with Coumans and local stakeholders.

They focused, among others, in finding out the pros and cons of pursuing the case in Canada and exploring the possibility of engaging pro bono lawyers from Canada.

Finally, in August last year, again in the presence of legal counsel Walter Scott and Dr. Catherine Coumans, the Sangguniang Panlalawigan unanimously approved a pending resolution declaring unacceptable the proposed settlement agreement being offered by Barrick Gold.

August 2014. SP members, Scott and Coumans.
Commitment to work together to explore options for legal representation in Canada.
Legal options in Canada

After months of active resistance by the people of Marinduque to an apparent attempt by the legal team to get the deal done inspite of protests, the SP members, Atty. Scott and Dr. Coumans after the meeting at the Capitol's session hall ion what seemed to have resulted in a happy outcome, committed to working together. They were to explore options for legal representation in Canada as well as to consider possible financial arrangements that will meet the Province's needs, thus the necessity of continued close communication. 

A question now would be whether the SP made any move in support of the said commitment?

We learn, however, that within the same month of August, court records show that the legal counsel, instead, filed an appeal of the District Court of Nevada’s decision in February 2011 dismissing the case on the ground of Forum non Conveniens in favor of re-filing in Canada with conditions favorable to the province. The appeal argued for the case staying in Nevada, or be dismissed for re-filing in the Philippines with conditions favorable to the Province.

An unexpected twist, but apparently consistent with a false declaration made by an expert witness for the province during a consultative meeting that Canadian jurisprudence would no longer allow the case to be moved to Canada, a claim that had no legal basis, it drew strong response from Canadian watchers.


February 3 Oral Arguments


Now, based on the Appellant’s Reply Brief oral arguments have been scheduled by the District Court this coming February 3, 2015 in Las Vegas. 

Will the Superior Court uphold the lower court’s decision and dismiss the case in favor of Canada as the proper forum?  

If this happens, and the SP should know and should have acted promptly, the Province would, of course, need legal representation in Canada, a process that should have been explored as agreed upon months ago so that the Province is not left hanging if the case is moved to said venue. 

None of these moves appear to have transpired in what appears to be another repeat of very significant commitments being utterly ignored by some of the parties concerned.

Curiously, the SP resolution declaring unacceptable the proposed settlement agreement, was only released/signed two months after August 14, 2014, the date of the SP-Coumans meeting and the date retained in the said document.

What unknown dark conclusion is being pursued this time by some parties involved in this case, is something for the concerned Marinduque folk to ponder upon once again. Once again.    

Also read:

Belated Marinduque resolution declares Barrick offer unacceptable in its substance, amount, form, structure and disadvantageous to the people

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