Friday, January 15, 2016

Case vs Barrick Gold: Where to next, Canada or Philippines?

So, whatever happened to the Sangguniang Panlalawigan of Marinduque's "final decision" to junk the unacceptable proposed settlement agreement between PGM and Barrick Gold? 

It seems that to the very end and up to this day, the august SP appeared too scared to run against the wishes of their 'real bosses' to adopt a Resolution - in black and white - truly rejecting the deal, such that they were overtaken by the real final decision from the Supreme Court of Nevada dismissing the case that has been characterized by a series of unending request for negotiations to continue, one that saw Marinduquenos being "pushed to the wall".



'Agreement'. But nothing formal issued by SP that it was overtaken by events in Nevada?

In June 2015, the Nevada court imposed conditions of dismissal, including the waiver of a time-limit on the claim to ensure that another forum could be found to hear the caseThe next step is to re-file the case in another venue to therein argue its merits. 

The procedural question alone has taken 10 years, the case having been filed in October 2005, in Nevada.


Philippines or Canada?


Where to next? Philippines or Canada? Whether it's the Philippines or Canada, discussions should now indeed focus on the merits of re-filing the case in any of the two countries.



It would be best for those directly connected with this case to avoid, especially at this point, when this matter is being carefully considered now, (hopefully not unceremoniously rushed or hushed), raising false claims such as those so thoughtlessly propagated by certain counsels of the provincial government and other persons in authority on the idea of re-filing the case in Canada or the Philippines. Read here and here and here.
Cases already filed in the Philippines against Placer Dome and Barrick Gold  by some individuals that were apparently held in abeyance pending the outcome of the now failed settlement negotiations, should probably be revisited to protect the interest of the parties concerned.

USGS Scoffed
The Nevada lawsuit was supposedly more encompassing for it not only covers the Boac environmental disaster but included damages to Mogpog and Calancan as well. Environmental damages and remediation based on the USGS independent study in 2004, and it may not help if the PGM legal counsel himself scoffs at this study. Read here
One of our earlier blogs that was critical of keeping people in the dark and outright deception is an article reposted below. Elections do seem to play a part, and we are just a few months away from the next one:

Thursday, September 5, 2013


Universal settlement framework on Marcopper case cannot be disclosed?


There are other complaints for damages filed against Placer Dome and Barrick Gold Inc. by some private individuals that are expected to be quashed based on a 'universal settlement framework', the contents of which have never been disclosed to stakeholders in Marinduque - purportedly because of a 'gag order' from the Supreme Court of Nevada as claimed by US lawyer Walter Scott representing the Province of Marinduque in the Nevada case.

But what 'gag order' from courts that Scott says "tells us that we can't disclose things"? In a meeting in January this year before members of the Sangguniang Panlalawigan Atty. Walter (Skip) Scott declared as follows:

"...We operate under a certain gag order, a gag order that tells us that we can't disclose things. I know that there are some members of the press here with national means, and that gag order becomes all that much tighter. And these are not necessarily self-imposed, they come from Courts. A judge says thou shall not speak and, backed up by agreements that you have to enter into and agree and promise that you shall not speak..." - W. Scott


Supreme Court of Nevada case records actually show that on November 14, 2011, the Provincial Government of Marinduque and Placer Dome-Barrick Gold Corporation filed a stipulated motion for a stay to allow the parties time to pursue settlement.  The parties informed the Court that they engaged in settlement discussions that may lead to a resolution of the case, and requested the Court to approve the parties’ stipulation, entering a 90-day stay on the appeal. The parties believe that a stay (extended 90 or 60 days since then up to the present), to focus on settlement discussions without the burden of continuing litigation and without the distraction of drafting a brief and preparing for oral argument.

On June 10, 2013, the parties submitted a status report to the Court stating that settlement discussions are still going on in this “extraordinarily complex case, and the Parties have made significant progress, but settlement discussions have taken longer than the Parties anticipated.” 

The parties informed the Court that the discussions “have been slowed by the current election season in the Philippines.” The parties also informed the Court that “Elections occurred in mid-May 2013, and new officials will assume their positions on June 30, 2013” and that “the Province believes the most fruitful dialogue will be had after the Province’s period of transition is completed, to allow additional new officials to more fully participate in settlement discussions.”

Maybe such additional new officials and stakeholders like municipal officials who have been excluded from local discussions should really ask questions now, demand straight answers, insist not to be "kept in the dark" and not choose to be tight-lipped on this case where carrots are dangled - a multi-billion peso damage claim that could put pork barrels to shame.

***

Other cases filed in the Philippines against Placer Dome/Barrick Gold Inc.


Perilla Complaint
(Source: Barrick Gold Corp. 2012 Annual Report)

In 2009, Barrick Gold Inc. and Placer Dome Inc. were purportedly served in Ontario with a complaint filed in November 2008 in the Regional Trial Court of Boac, on the Philippine island of Marinduque, on behalf of two named individuals and purportedly on behalf of the approximately 200,000 residents of Marinduque. The complaint alleges injury to the economy and the ecology of Marinduque as a result of the discharge of mine tailings from the Marcopper mine into Calancan Bay, the Boac River, and the Mogpog River.

The plaintiffs are claiming for abatement of a public nuisance allegedly caused by the tailings discharge and for nominal damages for an alleged violation of their constitutional right to a balanced and healthful ecology. 

In June 2010, Barrick Gold Inc. and Placer Dome Inc. filed a motion to have the Court resolve their unresolved motions to dismiss before considering the plaintiffs’ motion to admit an amended complaint and also filed an opposition to the plaintiffs’ motion to admit on the same basis. It is not known when these motions or the outstanding motions to dismiss will be decided by the Court. The Company intends to defend the action vigorously

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