Appeal to Norwegian ambassador to the Philippines

7 October 2009

The Norwegian Ambassador to the Philippines
The Royal Norwegian Embassy
21st Floor, Petron Mega Plaza Building,
358 Senator Gil Puyat Avenue 1209
Makati City, Metro Manila

Mr. Ambassador,

First of all, we express our sincere appreciation for the emergency relief assistance provided by your country for the victims of devastating natural disasters that wreaked havoc to our country. Your embassy website reported the assistance worth 20 NOK million pledged by the Minister of the Environment and International Development, Erik Solheim, to the calamity victims of our country and Indonesia.

With much apprehension, we would like to bring to your attention the threat of ecological devastation in our island of Mindoro that will result to similar flooding incident due to the destruction of our critical watershed. We refer to the mining operation of Intex Resources, a Norwegian company, determined to pursue their mining operation for Mindoro Nickel Project.

The undersigned, together with our NGO partners in Oslo and London, had filed a complaint before the OECD National Contact Point of Norway regarding this matter. We have been informed that this issue was referred to your office for investigation and appropriate action.

In connection with our OECD complaint, please allow me to submit documents, both from the local government units and the civil society organizations, including the Church, articulating our evaluation of the mining project of Intex Resources. It is our position that the adverse environmental and social threats and impacts of the project violate the OECD Guidelines on several grounds, and therefore, the company should be made accountable and should not continue to take advantage of our country’s weak regulatory environment.

This submission is made in concurrence with the Office of the Governor of Oriental Mindoro.

At the outset, we would like to manifest the united stand of our people, both in Oriental and Occidental Mindoro in expressing our firm and strong opposition to the proposed Mindoro Nickel Project of Intex Resources as articulated in the Position Paper of the participants in the Local Government Units and Civil Society Organizations Conference on Mining Moratorium held on September 16-17, 2009 at the Provincial Capitol Square, Calapan City. The signatories, led by the Provincial Governors of both provinces, were joined by other officials of the local government units and coalition of civil society organizations, including the Church, people’s organizations, among other sectors.i

Hereunder are our positions and submissions, which are not exhaustive of other issues and concerns. For your consideration and evaluation:
1. The OECD Guidelines Chapter V prescribes that “Enterprises should, within the framework of laws, regulations and administrative practices in the countries in which they operate, and in consideration of relevant international agreements, principles, objectives and standards, take due account of the need to protect the environment, public health and safety, and generally to conduct their activities in a manner contributing to the wider goal of sustainable development.”

Mindoro is a fragile island ecosystem. The rate of degradation of the forest in the island of Mindoro is alarming. From the 967,400 hectares of forest in the 1950s, the remaining forest cover at present is only about 50,000 hectares. The significant forest lost of 95% contributed to the instability of the environment both in the upland and lowland areas.

But instead of restoring the balance, the forest ecosystems are now even more in danger of being denuded due to the threats posed by more than 92 mining applications all over the island of Mindoro.

At a more advanced stage is the Mindoro Nickel Project of Intex Resources and Aglubang Mining Corporation, covering more than 10,000 hectare-concession. Intex Resources is a subsidiary of a Norwegian Company, Intex Resources ASA.

The Mindoro Nickel Project threatens the food security and ecological integrity of Oriental Mindoro since the mining concession covers one of the province’s actual watershed areas as duly declared and identified in its Provincial Physical Framework Plan. The mining site encroaches on the Mag-asawang Tubig Watershed, which is the largest source of irrigation water for the 40,000 hectares collective rice land in the city of Calapan, Municipalities of Naujan, Baco and Victoria, Oriental Mindoro. The threatened municipalities and the City of Calapan have a combined rice production of 169,608 metric tons in 2006, which is 51% of the total provincial production, enough to feed 782,805 people for a year.  In 2000, the estimated agricultural productivity of Oriental Mindoro at farm-gate price is PhP 11,414,553,000.000. Assuming that mining will adversely affect only 30% of the total productivity, the total loss of the province would be PhP 4.027 Billion!ii

The company should have observed the requirement the obligation to consider the need to protect the environment and not to pursue mining operation which will damage the already fragile eco-systems of the area. It is a well-established fact that the mining concession of Intex is within the critical watershed of Oriental Mindoro. In fact, the Norwegian Agency for Development Cooperation (NORAD), in cooperation with Norwegian Water Resources and Energy Directorate (NVE) funded the project of the Provincial Government of Oriental Mindoro in drafting the Flood Control Master Plan for Bucayao and Mag-asawang Tubig Rivers. The mining concession of Intex Resources is undeniably located within the catchment of the said watershed area.iii

The NORAD and NVE Draft Report admitted that the “catchment and environmental degradation has been regarded as one of the most important problems . . ., thus catchment management measures to cater for  this is important for the flood control plan.” In the same report, it identifies the causes of degradation as: destruction of the forest in the upstream catchment, disturbance of soil formation, and destruction of riverbanks. And to protect the watershed, the catchment management measures should be adopted including forest planting, vegetation cover maintenance, bio-diversity, water and soil conservation, among others.iv

Certainly, the proposed mining operation of Intex Resources within the catchment area will certainly negate and render futile all the recommendations and management measures provided in the Norwegian-funded study conducted to save our critically threatened watershed.

Even former Secretary (Minister) Heherson Alvarez of the Department (Ministry) of Environment and Natural Resources (DENR), described his findings on the location of the mining concession: “The project site forms part of the recharge area of watershed where the headwaters of Mag-asawang Tubig emanates. The extraction of the Nickel ore deposits by strip mining method . . . will aggravate risk of reducing recharge capability and increasing siltation, even with Best Mining Practice . . . Downstream of the Mag-asawang Tubig lies vast irrigated ricelands from where thousands of Mindorenos are dependent for their food security. No amount of mitigating measures can take away the risks faced by these areas.”v

In July of 2001 the Department (Ministry) of Environment and Natural Resources (DENR) revoked the mining concession on environmental and social impact grounds. Then DENR Secretary (Minister) Alvarez explained his decision and that of President Arroyo as being based on the need to protect critical watersheds, to protect the food security of the Mindorenos (local communities), and to respect the social unacceptability of the project. “The Mindoro Nickel Project is one case where sustainability is bound to fail . . . President Arroyo is fully aware of the situation . . . what does it gain the nation to be short sighted and merely think of money, when an irreparable damage to the environment will cost human lives, health and livelihood capacity of our farmers and fisherfolks endangering the food security of our people.”vi

In the recently conducted study by prominent environmental consultants on Mindoro island, the proposed mining project of Intex is deemed to be unacceptable because of its socio-environmental impacts: “Mining is likely to damage the island’s (Mindoro’s) important food production capacity, its fisheries and its eco-tourism potential and is clearly inconsistent with its sustainable development plan. In the light of other factors, including seismic and climatic conditions, the proposed Intex Nickel project has the potential to cause massive damage for the water catchment area, impacting up to 40,000 hectares of rice producing lands and exasperating flooding of towns and villages.”vii

Supposedly, the established principle of “responsible mining” requires that mining companies should not encroach on watershed areas where social and environmental impacts are very high. The so called “NO GO ZONES” for mining include areas considered as conservation priorities, zones of social conflict, ancestral domains of the indigenous peoples, biodiversity areas, typhoon and earthquake prone areas, among others.viii Mindoro has all of the above features making it truly a critically threatened island ecosystem.

The Provincial Council’s Resolution No. 259-99 unequivocally stated that: the “Mindoro Nickel Project is incompatible with the sustainable development agenda of the Provincial Government which is anchored on food security, eco-tourism and agro-industrial development, much less, the development of mining industry is logically being ruled out in the Physical Framework Plan of Oriental Mindoro which stresses more on the environment-related strategies for sustainable land use.”

The proposed mining of Intex Resources also threatens the rich bio-diversity of the area. The 2002 Final Report on Philippine Biodiversity Conservation identified Mindoro and particularly the mining site as extremely high conservation priority areas for plants and birds and terrestrial animals. In terms of importance level, the area belongs to extremely high terrestrial and inland water areas of biological importance. Moreover, the area under the Mindoro Nickel Project is at the heart of a once proposed   Mangyan Heritage Park which is inhabited by exotic species of flora and fauna many of which are considered endemic.

As mining causes loss of habitat and disturbance of wildlife, local extinction may occur either through emigration or death. Emigration to other habitats means an increase in competition within these habitats. Migrating animals driven out of their former habitats will now compete with the local population for the resources, which were once solely utilized by them. For the more sensitive species, or for those that are not able to compete, death is imminent. Similarly, those populations which cannot emigrate from the primary impact area may also disappear, or otherwise decrease in number. Either way, the gene pool will be reduced, decreasing the level of biodiversity.
2. The OECD Guidelines Chapter II also requires that “Enterprises should take fully into account policies in the countries in which they operate, and consider the views of other stakeholders. In this regard, enterprises should . . . develop and apply effective self-regulatory practices and management systems that foster a relationship of confidence and mutual trust between enterprises and the societies in which they operate.”

To protect the critical ecosystem of the island province in view of the national government’s near-fanatical campaign to revitalize mining industry, even at the expense of the island’s fragile ecology, the province of Oriental Mindoro and the Municipality of Sablayan, Occidental Mindoro temporarily sought a moratorium on mining operation.ix

Oriental Mindoro Provincial Ordinance No. 001-2002 declares that “it shall be unlawful for any person or business entity to engage in land clearing, prospecting, exploration, drilling, excavation, mining, transport of mineral ores and such other activities in furtherance of and/or preparatory to all forms of mining operations for a period of twenty-five (25) years.” (emphasis supplied).  The provincial ordinance is not only a local legislation but it is actually implementing Sections 16, 26 and 27, and 447 of the Local Government Code of 1991.

Intex resolutely, time and time again, defied the mining moratorium promulgated by the Provincial Council of Oriental Mindoro putting a stop to mining operation and all mining related activities for a period of 25 years.

Intex insisted that it is not covered by the moratorium since its permit was signed earlier before the ordinance on moratorium was enacted in 2002, therefore it cannot be valid for a law cannot be retroactive in its application. But it should be noted that there is only one MPSA that was approved on December 7, 2000 (not 1997 as they erroneously claim), and that is MPSA No. 167-2000-IV, covering only an area of 2,290.6713 hectares.

Intex has other application, AMA No. IVB-97, located in Barangay Villa Cerveza, Municipality of Victoria. This is undeniably covered by the moratorium ordinance of Oriental Mindoro since it was only recently approved. Intex has other applications under the jurisdiction of Barangays Pag-asa and San Agustin, Municipality of Sablayan, Occidental Mindoro, namely, AMA No. IVB-101 and AMA No. IVB-103. These areas are also covered by the same prohibition on mining because the Municipality of Sablayan had also passed General Ordinance No. 2007-GO03B declaring a 25-year moratorium on large-scale mining activities within their municipality.

Intex outrightly dismissed the authority of the local government of Oriental Mindoro by claiming that the moratorium issued is not legally binding and they entered contract with the national government for their Mineral Production Sharing Agreement. Intex cited a number of Opinions as the basis for their statement ‘that a number of government authorities have furthermore disputed the legality of the 25 year moratorium’, that the legality of the 25 Moratorium ‘remains a political issue’ and that the national government has explicitly stated that they are in line with the relevant legal framework’. These statements are misleading.  Under the laws of the Philippines, the opinions cited by Intex in its response have no force and effect as it is only through the Courts that an ordinance be declared illegal.

In fact, in the Opinions cited by Intex, the government authorities such as the Department of Justice and the Department of the Interior and Local Government have admitted that their opinions have no force and effect. These government agencies clearly state that these Offices have ‘no power to pass upon the validity or invalidity of an ordinance as such power is properly within the domain of the court’. x
But under the Local Government Code (Section 26 and 27) the local government units (LGUs) have the right to deny approval to projects that are environmentally risky. The LGUs did not give their approval to Intex. Therefore it can be construed that Intex is operating illegally as it did not obtain this required LGU approval or indigenous peoples consent and it is proceeding with mining related activities in contravention with provincial and municipal ordinances that expressly state that mining is banned.

The Supreme Court of the Philippines, in one of its landmark decisions on this matter, in Province of Rizal vs. Executive Secretary, G.R. No. 129546 (December 13, 2005), the Court en banc acting unanimously held that the implementation of a national project affecting the environmental and ecological balance of local communities without compliance with the consultation and prior approval requirements was illegal.  It therefore put a stop to the project with finality:  “Under the Local Government Code, xxx two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian (local council).  Absent either of these mandatory requirements, the project’s implementation is illegal.”

Thus, the Provincial Government of Oriental Mindoro continues to defend its position, and in fact had issued successive orders for the company to cease and desist in conducting their mining-related activities.

On October 20, 2008, the Provincial Governor, by virtue of the moratorium ordinance, stopped the Scoping Activity being conducted by the company under the threat of arrest. The order of the Governor reads: “It is therefore our position that your Scoping Activity contradicts our existing legislation and therefore should not be continued. Otherwise, I will be construed to use whatever legal means available in my Office to enforce the mentioned Provincial Ordinance even to the extent of causing your arrest and all those involved in the said activity and the filing of corresponding criminal case in court.”xi

In support of the provincial ordinance on mining moratorium, the stakeholder municipalities of Victoria, Naujan, Socorro, the City of Calapan in Oriental Mindoro, had issued respective resolutions opposing the mining project. They are as follow:

1. Municipality of Victoria: Resolution No. 129-2008: Resolution Appealing to the Department of Environment and Natural Resources to Stop the Ongoing Exploration Being Undertaken by Crew (now Intex) Gold Corporation and Aglubang Mining Corporation in Villa Cerveza, Victoria, Oriental Mindoro.xii

2. Municiality of Naujan: Resolution No. 2007-359: Resolution Reiterating the Strong Opposition to the Mining Operation of Aglubang Mining/Crew Minerals, Phil., Inc. and Whatever Related Mining Venture of Any Company in Oriental Mindoro.xiii

3. Municipality of Socorro: Resolution No. 2005-22: Resolution Expressing Strong Opposition to the Proposed Nickel Mining in the Island of Mindoro.xiv

4. City of Calapan: Resolution No. 1099: Resolution of the Sangguniang Panlunsod Re-affirming Its Strong and Vehement Opposition to the Mindoro Project of Intex Mining Corporation and Supporting the Provincial Ordinance No. 001-2002 Also Known as “An Ordinance Declaring A 25-Year Moratorium To Large Scale Mining in the Province of Oriental Mindoro.”xv

3. OECD Guidelines Chapter III encourages transparency in terms of disclosing relevant information regarding the company’s projects, including financial transaction, accounting and audit, statements of business conduct. Corollary to this requirement, Chapter VI of the OECD Guidelines also rule out bribery in engagement with the public officials and community partners.

3.1 DECEPTION IN SURVEY TO PROJECT ACCEPTABILITY

Erlend Grimstad, President and CEO of Intex Resources, majority of people in Mindoro are now in favor of mining by Intex Resources. He claimed that over 55,000 signatures have been collected all favoring mining in the affected municipalities of Victoria, Socorro, San Teodoro, Pola in Oriental Mindoro and in Sta Cruz and Sablayan in Occidental Mindoro! Grimstad claims that this constitutes 54% of all registered voters in all affected municipalities, therefore more than majority of stakeholders. The data is based from the self-serving survey conducted by Intex.

However, it was later discovered that Intex survey in all areas mentioned was marred by serious irregularity and deception. It was conducted by the company itself, with corresponding payment for the enumerators – P50 for each “yes” answer that they will get, and P20 for “no”. This payment scheme was applied in the municipality of Pola, but different payment schemes were employed in other municipalities.

Many respondents came forward to execute their affidavits or sworn statement questioning the process and the deception that they were subjected to. Affidavits that we have are confidential but they can be presented in the proper forum.

For example, a 68 year-old housewife confessed of having agreed to sign for “yes” because she was told by the enumerator that mining will guarantee a sure job for his unemployed husband. And in expectation of this promise, he even signed for his husband. Similarly, a jueteng collector willingly signed for “yes” because the enumerator assured him that those who will first to sign will be the first ones to be given employment in the mining company.

There were also cases of outright falsification of signatures, as in the case of a 30 year-old daughter who stayed in the hospital to take care of his father who suffered from stroke. When she arrived back in their Barangay, she was surprised to learn that her name and his father’s were both signatories to the “yes” survey of Intex! But this is simply impossible not only because of their long absence, but also because his father was paralyzed and could not possibly sign!

The questionable survey procedure was personally brought to the attention of the President of Intex, Erlend Grimstad during our dialogue with him on February 23, 2009. I personally handed him a letter asking him to check this seemingly irregular activity of his company.xvi Part of my letter reads:

I also take this opportunity to bring to your attention a very important issue concerning reports of deception and indirect bribery being orchestrated by people connected to your company in order to gather signatures expressing support for your mining project.

On February 15, 2009, during our LGU and civil society consultation in Victoria, Oriental Mindoro, it was reported that local officials in the Barangays (villages) are being paid by your company to gather people’s signatures in favor of mining operation. It was alleged that cash incentives and “development packages” in terms of projects, or gifts and donations are being distributed covertly to those who are willing to exchange their signatures for such short-term benefits. This is not an isolated incident for we also received reports from the municipalities of San Teodoro, Baco and Pola and other communities about the same modus operandi of local people working for your company. Allegedly, reliable sources reported that local officials are likewise being enticed with “valuable gifts” to support the company in exchange for material favors.

Similar incidents of indirect bribery are also reported among Mangyan indigenous communities. Norway’s Ambassador Ståle T. Risa himself, in his investigation, reported that vast majority of the Mangyans are opposing the project, but the pro-mining groups, KABILOGAN and SADAKI, are fully supporting the mining project of Intex because of the benefits that they get.
3.2 TWO MILLION PESO BUDGET ALLOCATION TO NATIONAL COMMISSION ON INDIGENOUS PEOPLES

Reference to the P2Million allotment to the NCIP was also clearly mentioned in the investigation report of Norwegian Ambassador to the Philippines, Ståle T. Risa: “Finally, Crew informed of a process which is supposed to have been initiated to map what area the Mangyan people can claim title to. Crew is supposedly in the process of giving 2 million PHP to the national commision (sic) of indigenous people (NCIP), for them to conduct the mapping.”xvii

The P2 Million “donation” of the mining company was intended, allegedly, to do the re-surveying of the ancestral domain of the Mangyan communities.  Such amount was too much to do a minor revision, since the survey had already been completed with the Mangyan Mission assisting the IP organizations. What made the transaction more suspicious is that the conduct of re-survey was done without the required Work and Financial Plan (WFP) approved by the NCIP Commission en banc as prescribed in IPRA. This defect is admitted and never denied by the company in their reply. The need to obtain prior approval of WFP is a measure for transparency and to discourage corruption. However, this pre-requisite was taken lightly, if not outrightly disregarded by Intex in collusion with the NCIP.

Intex also claimed in their reply that the P2-million budget allocation was intended “for logistics needed to undertake a survey leading to the completion of and issuance of the CADT applications of the Mangyan community.” However, the Rules and Regulations Implementing IPRA (Rule X, Section 1 & 3) provides that: only the Chairman of the NCIP or his duly-designated representatives shall have the authority to receive funds for the delineation and ancestral domain development activities provided that it shall be fully documented and disseminated; and that the fund shall be subject to the usual government accounting and auditing procedures.

In gratia argumenti, the admission of Intex that “the P2-million budget allocation was never ever turned over either to the NCIP or the Mangyans.  Intex Resources had full control and management of drawdowns from this budgetary allocation.” This made the situation even more questionable for it will make the mining company de facto financier of a government agency without complying with the required government auditing procedures.

In the NCIP investigation report mentioned by Intex in their reply, the indictment for inappropriate transaction was clearly articulated: “There is clearly a blatant disregard of, and failure to observe and comply with the procedure which, as a rule, is required in cases when non-NCIP resources are used to finance NCIP mandated and related activities or projects, such as delineation and titling application activities.”xviii

It is true that the mining companies are mandated to allocate royalty payment for the indigenous peoples as provided in Section 17 of the Philippine Mining Act of 1995. Section 150 also provides for community development activities that mining companies should undertake during the mining operation, but not before! And such manner of payment or “credited expenditures” should follow certain procedures so that it will not become a convenient tool to bribe communities. Under FPIC Guidelines, Section 49, a, 3, among the prohibitive acts by the mining applicants include “bribery or promise of money, privilege, benefit or reward” other than what is presented under Section26b and 27a. The Guidelines (Section 49, a, 6) also prohibits mining applicants to donate to the community or to any of its members for the purpose of influencing the decision of the Indigenous Peoples.

3.3 THE 10 MILLION RIVER DIKE IN THE VILLAGE OF ALCATE

Chapter VI of the OECD Guidelines. The pertinent section states that: “Enterprises should not, directly or indirectly, offer, promise, give, or demand a bribe or other undue advantage to obtain or retain business or other improper advantage.”

In exchange for the favor the company had generously given, the village of Alcate had signed an Agreement with Intex. As admitted by Intex in their reply, it is explicitly stated in the Agreement that the fund will be taken from Community Development Fund – “the amount disbursed would be credited as part of future social benefits that Intex Resources would be required to undertake once the mine becomes operational.”

This Social Fund according to Philippine Mining Act of 1995 will be appropriated by the mining company supposedly once the mining is already in operation.xix And this is clearly admitted in Intex’ reply. But the timing of giving the fund before the mining begins its operation is very improper and questionable for it will constitute a form of indirect bribe or a pre-condition for mining to operate. And the offer of the so-called “development package” can determine the motivation of the community to accept the project.xx

Generous contributions and assistance of Intex in the guise of Corporate Social Responsibility, can influence or undermine the process of objective decision-making since the communities became indebted and beholden to the patronage of the mining company.xxi

It is for this reason that Warlito I. Cajandig, Bishop of Oriental Mindoro objects to such display of pseudo-altruism: “In my opinion, mining in the context of our province is irresponsible activity for it is conducted not to genuinely respond to the real and priority needs of the people. At first glance, there are visible benefits if the company builds clinics, provides job, constructs water tanks, or provides program for micro-lending. However, these activities can also be considered irresponsible because these activities make people become so constrained to make the right decisions according to their free will whether to allow mining operation or not.”xxii

4. The OECD Guidelines Chapter II also requires multinational enterprises to “respect the human rights of those affected by their activities consistent with the host government’s international obligation and commitment . . .”

The Indigenous Peoples Rights Act (IPRA), signed into law on October 29, 1997, was indeed a landmark legislation in the Philippines, enacted to recognize, protect, and promote the rights and well-being of the indigenous peoples and communities. One of the most important provisions of these rights in the context of development projects that seek to enter indigenous lands is the requirement to obtain indigenous peoples Free Prior and Informed Consent (FPIC). IPRA is unambiguous that FPIC requires that there by no undue influence, that there is full disclosure of information, that this must happen in advance of any authorization of mining permits and that consent must be based on the consensus of all members of the indigenous peoples/indigenous cultural community. IPRA also created the National Commission on Indigenous Peoples (NCIP), with the mandate to ensure the effective implementation of the law and to promote the rights of the indigenous communities.

However, the experiences of the indigenous communities in the Philippines in getting their rights respected are very disappointing.

In the recently launched book entitled “Philippines: Mining or Food” authored by two distinguished environmental consultants, Robert Goodland and Clive Wicksxxiii, the assessment of the role of NCIP in promoting IP rights is deemed deficient and ineffective. The mining concession of Intex in Victoria, Oriental Mindoro is one of the case studies presented in the research. And it was noted that “the perception among indigenous peoples, based on their experience of the FPIC process to date, is that the NCIP is failing in its mandate. Rather than protecting and promoting the rights of Indigenous Peoples, it appears that the NCIP is facilitating the entry of mining companies.”

Similarly, in a case study conducted by the Philippine Social Science Council (PSSC) in partnership with the United Nations Development Program (UNDP) in Victoria, Oriental Mindoro, where the mining site is located, the perceived weakness in the implementation of Indigenous Peoples Rights Act (IPRA), particularly when it comes in conflict with the aggressive promotion of mining is underlined. The study attests to the fact that at present, it is mining that is given priority, and the processing of mining permits is given higher priority over the issuance of the indigenous peoples’ title or claim for their ancestral domain.xxiv

The most recent experience with the FPIC process is illustrative of the above-mentioned situation. The Mangyan communities in Occidental Mindoro (within AMA No. IVB-101 and AMA No. IVB-103) are represented by its Alangan tribal organization, Samahan ng Sablayan at Sta. Cruz Mangyan Alangan (SASSAMA). It is highly irregular that only a handful of Mangyan communities in Occidental Mindoro were identified as stakeholders to the project, considering that both organizations from which Intex obtained consent, namely, SADAKI and KABILOGAN are mostly found in Oriental Mindoro, with very few member communities in Occidental side.

It can be surmised that since all of the those opposing organizations mentioned representing respective tribal communities have continuously expressed opposition to the project, they were not given recognition by the proponent, and even the NCIP of Occidental Mindoro chose to deny them due participation in the decision making process.

KABILOGAN and SADAKI, being pro-mining Mangyan organizations, organized by the company, in cahoots with the NCIP, represent only the minority of the stakeholders. The definition of “free and informed consent” requires that a pre-requisite condition of “consensus of all members of the ICCs/IPs” should be obtained. The insignificant number of KABILOGAN and SADAKI is far from being such.

Intex admits that they only entered into an agreement with a newly organized group called KABILOGAN. Intex claim that Mindex were not obliged to get the consent of the other Mangyan in the Ancestral Domain and their already existing Ancestral Domain Claim holder organizations SANAMA and KAMTI as “they did not reside in the affected area”. However, IPRA defines communal claims as referring ‘to claims on land, resources and rights thereon, belonging to the whole community within a defined territory’.xxv Therefore if any portion of this territory is impacted it has implications for the property rights and the constitutionally protected due process rights of the whole community within the territory and affects all members of the community.

In 2001 the former Secretary (Minister) of the Department of Environment and Natural Resources (DENR), Heherson Alvarez, cancelled the MPSA, which at the time belonged to Crew-Aglubang. He quoted the aforementioned Section 4 c of IPRA 1998 IRRs and stated that “Aglubang has not secured such consent”.xxvi

This same issue of only getting the consent of a small minority, while excluding the majority of the impacted Mangyan, is also at the root of the problems pertaining to the most recent FPIC process. This fact is substantiated by the 2007 investigation of the Norwegian Ambassador to the Philippines, Ståle T. Risa, on the mining project of Crew (now Intex Resources) where he observed that: ‘With regards to the Mangyan peoples, the vast majority is strongly opposed to any form of mining in their areas – and there is substantial discontent with Crew Minerals’.xxvii

Due to the failure of the justice system in the Philippines to address violations of indigenous peoples rights, complaints in relation to this distortion of the FPIC requirements under IPRA have been elevated to the UN Committee on the Elimination of all Forms of Racial Discrimination (CERD). CERD has raised this issue with the Philippine Government under its Early Warning and Urgent Action Procedure expressing its concern about the revision of the FPIC guidelines that are not “in conformity with the customs, laws and traditional practices of these communities.”xxviii In its follow up letter to the Philippine Government CERD also raised it concerns that, based on information present to it, which included information regarding the FPIC processes of the Mindoro Nickel Project, “the situation of the Subanon of Mt Canatuan [where TVI Pacific, a Canadian mining company, failed to obtain the FPIC of the Subanon people] is not an isolated one but that rather it is indicative of similar situations faced by other indigenous communities in the [country].”xxix

The seeming failure of the NCIP to truly serve the indigenous communities was also expressed in the national consultation among the indigenous peoples leaders all over the country among the network organizations of the Episcopal Commission on the Indigenous Peoples (ECIP) under the Catholic Bishops’ Conference of the Philippines (CBCP) held in May 2008.

The government is aggressively pursuing its policy of favoring the entry of extractive industries regardless of social and environmental costs, while sacrificing the indigenous peoples’ communities for quick investment gains. The government is determined to open twenty three (23) priority mining projects in the country, 16 of these cover indigenous territories in Mindanao, Palawan and Mindoro, and the Cordillera. As of June 2006 data, there were 1,953 pending mining applications all over the Philippines. And most of these concessions are located in forested areas inhabited by the indigenous peoples. xxx

Environmental experts have recognized that the potential environmental impact area of Intex’s project extends well beyond the specific area being mined.xxxi It undoubtedly poses potential risks to all the Mangyan in the Ancestral Domains. Section 4 of IPRA defines Ancestral Domains as ‘not only the physical environment but the total environment including the spiritual and cultural bonds to the area’. The Mangyan have a deep spiritual relationship with their lands and there are profound cultural impacts to all the Mangyan from such a major mining project in their domain. Furthermore, the social impacts in the entire ancestral domain are already evident. By consulting only a small minority of the Mangyan Intex has already created social tensions and divisions. It is absurd to suggest that the collective owners of these ancestral domains since time immemorial are not impacted.

5. OECD Guidelines Chapter V also prescribed that enterprises should conduct “collection and evaluation of adequate and timely information regarding the environmental, health, and safety impacts of their activities.

In line with this requirement, Intex reported that they are giving comprehensive presentation of their project, the initiatives of the company, relevant laws, monetary benefits of the project, etc . . . However, the so called “comprehensive presentation” covered the facts about nickel mining operation and the benefits that it will bring, without mention of the negative or destructive nature of extractive mining within the watershed and inside the ancestral domain forest ecosystem and the fishing grounds.

As noted by the environmental experts who visited the province of Mindoro to evaluate the mining project: “Expert or even rudimentary independent information regarding mining is not being made available to Indigenous Peoples. Rather than being informed about the potential impacts of mining, as required by IPRA, the information that they (the mining companies) are currently providing to communities appears to amount to little more than promotional material from mining companies.”xxxii

What is even more disreputable act on the part of the company is that they tried to purvey wrong information and false safety assurances on the mining project. One glaring example is how the company tried to convince people to believe that Submarine Tailing Disposal (STD) or Deep-Sea Tailing Placement (disposing mine tailings into the sea) is safe and environment-friendly.

In 2004, the Jon Petersen, Senior Vice President of Crew proposed that “Because of the tropical climate with heavy rainfalls marine Deep-Sea Tailings Placement (DSTP) will be the primary choice for waste handling. DSTP is the preferred disposal system for mining projects in tropical climate and seismic active areas located in proximity to deep sea coastline.”xxxiii And in the company presentations, it was explicitly argued that this method of tailing disposal is “a well-established method of tailings disposal for the last 30 years, proven environment friendly with very good track record, existing and accepted around the world, poses no danger in length and capacity, etc . . .xxxiv

The persistent attempt to describe STD as safe, acceptable and environment-friendly was also witnesses by Norwatch journalist who visited the mining site in the Philippines: “In their presentation, Mindex writes that STD method is recognized worldwide, and that proof has been presented that the method is environmentally sound. A list of mining projects has been appendixed to support this claim. One of the examples is the company Titania in the Jossing Fjord, Norway.”xxxv

However, later studies conducted by the NGOs revealed that STD is not environment-friendly and neither is it generally accepted around the world!

We hope all the above-given points and submissions will be given due consideration in evaluating the complaint.

Yours sincerely,

EDWIN A. GARIGUEZ
Mangyan Mission, Bishop Finnemann Center, Calero, Calapan City
e-mail: edugariguez@yahoo.com

End Notes

i The document is attached herewith as Annex 1
ii See Resolution No. 360 of the House of Representatives adopted on March 4, 2009 as Annex 2, and House Resolution No. 25, introduced by Congressman Rodolfo G. Valencia as Annex 3
iii See Map of Aglubang Watershed and the approximate location of Intex mining site, attached as Annex 4
iv NORAD, NVE and Provincial Government of Oriental Mindoro. 2008. Flood Control Master Plan for Bucayao and Mag-asawang Tubig Rivers in Oriental Mindoro, The Philippines, Flood Protection Plan Draft Report.
v Secretary Heherson Alvarez, Philippine Star, November 13, 2001
vi Ibid.
vii Robert Goodland & Clive Wicks, Philippines: Mining or Food?, London: WGMP, 2008.
viii These criteria for “no go zones” and the requirements for “responsible mining” can be found in World Bank-commissioned study, Extractive Industry Review, contained in the report “Striking a Better Balance.” Other internationally accepted standard include: Miranda, M., et al, Framework for Responsible Mining, the World Resources Institute study, Mining and Critical Ecosystems, among other sources.
ix The Ordinance of Oriental Mindoro is attached as Annex 5, while that of Municipality of Sablayan, Occidental Mindoro is attached as Annex 6. On September 1, 2009, the Municipality of Sablayan, where the big part of mining concession is located, published an open letter to the President of the Philippines, a copy of the letter is attached as Annex 7.
x This fact is clearly stated in these , Opinions themselves. For example in the Department of the Interior and Local Government Opinion No. 39 Series 2002 it is stated ‘please be apprised that this Office has no power to pass upon the validity or invalidity of an ordinance as such power is properly within the domain of the court’ and in Department of Justice Opinion No. 8, 2005 it states ‘it is not within the province of the Secretary of Justice to declare an ordinance, other than a tax or revenue measure, as invalid. It is a judicial function that we cannot arrogate unto ourselves without violating certain legal and jurisprudential principles.’ Supporting the legitimacy of the ordinances they also respectively state that ‘An ordinance is presumed to be valid although its reasonableness may be judicially inquired into’ and ‘if the prohibition of an activity allowed by law is only for a limited period, we are of the considered view that such prohibition is still in the nature of a regulation. Hence, with respect to the subject ordinance of the Province of Oriental Mindoro, a germane causal connection has to be established between the lawful subject and the means to be employed which is 25 years moratorium.’
xi The document is attached as Annex 8 (dated October 20, 2008), while additional cease and desist orders to stop Intex mining-related activities are attached as Annexes 9, 10 and 11, dated September 28, 2007, July 10, 2008 and May 11, 2009, respectively.
xii Attached as Annex 12
xiii Attached as Annex 13
xiv Attached as Annex 14
xv Attached as Annex 15
xvi Letter to Erlend Grimstad, President and CEO of Intex is attached as Annex 16
xvii Report of Ambassador Ståle T. Risa to the Office of Secretary for Development, translated from Norwegian, September 26, 2007.
xviii NCIP Investigation Report on the Complaints filed by KPLN and Mangyan Mission on the FPIC Process Conducted by the NCIP for the Certification Precondition of Intex Resources, October 9, 2008.
xix DENR Administrative Order No. 95-936, Section 150, a-f, Credited Activities or Expenditures and Section 151,  Development of Mining and Neighboring Communities.
xx Alcate’s Agreement with Intex (No. 8) is literally translated as follows: “Because of a number of assistance given by the said company to Barangay Alcate and because of our belief that the Mindoro Nickel Project is safe for human community and the environment and it is good for the livelihood of the people in the Barangay (village) and in the Philippines, we decided to freely endorse the Mindoro Nickel Project.”
xxi The account how the company tried to bribe people in Mindoro was reported also by Harald Eraker in Norwatch Newsletter, in his article, We got watches from Mindex, May 5, 1999. This can be accessed from http://www.norwatch.no/199905151164/english/archives/-we-got-watches-from-mindex.html
xxii Public Statement of Bishop Warlito I. Cajandig, Apostolic Vicar of Calapan, January 19, 2009.
xxiii Robert Goodland is an environmental scientist who worked as adviser to World Bank from 1978 through 2001. Clive Wicks has 48 years of experience of working in engineering, agriculture and environment, specializing in the impact of extractive industries on the environment. They visited the Philippines twice for an investigative research on mining issue. Mindoro was part of their study area.
xxiv Lusterio-Rico, Ruth, et al. 2009. Promoting Peace, Development and Human Security: The Mining Act of 1995 and The Indigenous Peoples Rights Act. Quezon City: PSSC.
xxv IPRA, Section 3,e, Chapter II
xxvi DENR Secretary Heherson Alvarez, Philippine Star, November 13, 2001. In addition, a report by NCIP Legal Officer on the deceptive conduct of obtaining consent of the indigenous peoples to allow the entry of the mining company to their land is attached as Appendix 17.
xxvii Report of Ambassador Ståle T. Risa to the Office of Secretary for Development, translated from Norwegian, September 26, 2007.
xxviii CERD Early Warning Urgent Action letter to the Government of the Philippines, August 27, 2007, available at http://www.ohchr.org
xxix CERD Early Warning Urgent Action letter to the Government of the Philippines, March 7, 2008, available at http://www.ohchr.org
xxx “Mindoro Case: Indigenous Peoples, Mining and HR Issues,” Submission to the National Consultation with the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, February 2, 2007.
xxxi Robert Goodland and Clive Wicks. 2009. Philippines: Mining or Food? Case Study 5: Nickel Mining Mindoro Island, pp 142 – 171
xxxii Extract from NGO Submission to t Human Rights Council Universal Periodic Review Mechanism, UPR 1st Session, 7th – 18th April 2008.
xxxiii Jon Steen Petersen, Vice President for Exploration, “Crew Minerals AS: Mindoro Nickel Project,” March 2004. This proposal on using STD as a safe way of tailing disposal was also aggressively pursued by Arne Isberg, former Country Manager of Mindex in his letter to then DENR Secretary Heherson Alvarez dated June 19, 2001.
xxxiv The company presentation is in hard copy and in Powerpoint presentation format and is available upon request.
xxxv Harald Eraker, Go Home to Norway, Mindex! Norwatch Newsletter, No. 11, May 1999,  available at: http://www.norwatch.no/199905151163/english/archives/-go-home-to-norway-mindex.html

One Response

  1. You should have presented this in the consultations and during the public hearing, so we could hear your side.

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