Mindex and social acceptability: What’s the real score?

By Rev. Fr. Edwin A. Gariguez
Alyansa Laban sa Mina (ALAMIN)

(Note: Mindex Resources Development, Inc. has since changed its name to Intex Resources ASA)

Mindex and Mindoro Nickel Project

On March 14, 1997, MINDEX Resources Development, Inc. was issued exploration permit by Mines and Geo-Sciences Bureau of DENR Region IV, awarding control to a 9,720-hectars concession in Sablayan, Occidental Mindoro for nickel/cobalt deposits. The mining site is bounded more proximately to the municipality of Victoria, Oriental Mindoro, along the watersheds of Ibulo, Aglubang and Buraboy, river tributaries to Mag-asawang Tubig.

MINDEX ASA is a public Norwegian company engaged in exploration and development of mineral resources with ongoing activities in Norway, Greenland, Ghana, Vietnam and the Philippines. The company, listed at the Oslo Stock Exchange, claim to have a present market value of around USD60 million. Their other active exploration projects in the Philippines include Lubang Island, Negros and Palawan.

The Mindoro Nickel Project is their most advanced project. The project involves not only mining but also ore processing in Pili, Pinamalayan, using High Pressure Acid Leach (HPAL) and for its disposal, the Deep Sea Tailing Displacement (DSTP) in Tablas Strait. MINDEX estimates that the mine site would produce 40,000 tons of nickel and 3,000 tons of cobalt per year. In addition, during the mineral leaching process, 130,000 metric tons of ammonium sulfate is expected to be produced.

Presently, the company, through its consulting firm, DAMES & MOORE, is in the process of securing the Environmental Compliance Certificate (ECC) in view of its application for actual production and mining operation.

MINDEX asserts in their report that in its own evaluation: “there are no social, environmental or technical challenges that can stop the project. The local population welcomes this project.” (Press Release from MINDEX ASA, 19 August 1998).The social acceptability of the project is a crucial issue considering that it is one of the necessary requirements before the mining operation could proceed and before the ECC could be issued.

‘Social acceptability in the Philippine legal framework

1. PRIOR CONSULTATION AND CLEARANCE FROM THE LOCAL GOVERNMENT UNITS BEFOREPROJECT IMPLEMENTATION .

The initial exploration activities had already been completed by MINDEX without consultation from the local government and the affected communities. Both Governor Rodolfo G. Valencia and Vice Governor Bartolome Marasigan of Oriental Mindoro assailed the exploration of MINDEX without prior clearance from the local government units. The municipal government of Victoria, where the mining exploration is located, has been by-passed and was only informed only when the exploration was nearly completed.

From the foregoing, MINDEX violated the law, which explicitly prescribes that “No exploration permit shall be issued unless the posting/publication requirement under this Section has been complied with and all issues raised by any party opposing the exploration is dealt with in writing by the Director” (cf. Chapter VII, Section 28 of the Implementing Rules and Regulations of Republic Act 7942, otherwise known as the ‘Philippine Mining Act of 1995).

Moreover, the Local Government Code of 1991 categorically states that as a policy of the State, no project or program shall be implemented without prior consultation with the local government units and affected communities and without corresponding approval of the respective sanggunian, i.e. Provincial or Municipal Councils (cf. Republic Act No. 7160, Section 2c and Section 27).

The local government councils of affected municipalities, including the provincial council, have made clear their unequivocal opposition to the MINDEX mining project in their respective resolutions:

  1. Resolution No. 259-99 of the Provincial Council of Oriental Mindoro strongly opposing the application of MINDEX Resource Development, Inc. for Mindoro Nickel Project on the ground that it has been the subject of series of strong and uncompromising protests from the different concerned sectors in the province, among other important objections.
  2. Resolution of League of Municipalities unanimously signed by all of the 14 Mayors in all of the 14 municipalities of Oriental Mindoro, “expressing strong opposition to the proposed mining operation of MINDEX Resource Development, Inc. in the province of Oriental Mindoro.”
  3. Resolution No. 112 of the Municipal Council of Victoria, expressing strong objection to the proposed mining operation of MINDEX Resource Development, Inc. in the Mindoro Nickel-Cobalt Project in Sablayan-Victoria due to the environmental risk, irreversible damages and adverse effect that the said mining operation will cause in the municipality.
  4. Resolution No. 616 of the Municipal Council of Naujan expressing vehement objection to the mining exploration/operation on MINDEX in the Sablayan Nickel-Cobalt Project due to the risks and hazards it brings to the environmental population of the island of Mindoro specifically to the municipalities of Naujan, Baco, Victoria and Socorro.
  5. Resolution No. 88 of the Municipal Council of Socorro expressing opposition to the mining operation of MINDEX in Sablayan Nickel-Cobalt Project

Governor Rodolfo G. Valencia, in his speech before the anti-mining rallyists in Pinamalayan on September 21, 1999, sounded aghast and exasperated over MINDEX insistence on continuing the project despite the categorical protestation of the provincial and municipal government units.

2. SOCIAL ACCEPTABILITY AS MANDATORY REQUIREMENT

One of the primary requisites for the approval of the ECC is the social acceptability of the project. Without this component, the project cannot proceed and is doomed to fail. In the primer on the Revised Implementing Rules and Regulations or DAO 96-40 of the Philippine Mining Act of 1995, published by the Mines and Geo-Sciences Bureau of the Department of Environment and Natural Resources (DENR), it is clearly articulated that: “In the process of taking the EIA (Environmental Impact Assessment) and securing the ECC, it is mandatory that the social acceptability issue is resolved. If the mining project is not acceptable to the community, and therefore the proponent cannot obtain an ECC, then the project has to be shelved.”

The statement in MINDEX press release that “the local population welcomes this project,” is meant to downplay the mounting opposition which was then in its incipient stage during that time, when the exploration was going on clandestinely unknown to the public, even to government local officials.

The presumption of social acceptability by MINDEX even before the conduct of scoping or consultations among the stakeholders was preemptive an unfounded. A series of consultations or scoping were undertaken by Dames and Moore, MINDEX consulting firm, sometime in May 1999. It was only when the people got to know the pending mining application that the reaction reached its peak, negatively opposing the mining application, even the conduct od scoping by Dames and Moore, which was perceived to be biased and ultimately endorsing the mining operation of MINDEX.

It was during the consultation and scoping period that the opposition against MINDEX has become more pronounced in forms of protest actions, rallies, symposium and public meetings, media campaign and other expressions of resistance. Formal positions and manifestos were signed, which includes, among others the following:

  1. Position Paper of Alyansa Laban sa MINDEX (ALAMIN), or The Alliance Against MINDEX Mining, submitted to DENR Secretary Antonio Cerilles on June 4, 1999. The document comes with an initial number of signatures of 23,832 in the affected municipalities and an additional of 5,481 in the municipality of Victoria expressing unequivocal opposition to the mining project.
  2. Pastoral Statement on Mining Issue, a position taken by the Catholic Church in the Apostolic Vicariate, reflecting the official position of the Catholic Bishops’ Conference of the Philippines (CBCP), denouncing the Philippine Mining Act and the ecological destruction caused by mining operations.
  3. Sulat Petisyon No. 1 of Samahan ng Nagkakaisang Mangyan Alangan, Inc. (SANAMA) or Organization of United Mangyan-Alangans, expressing their opposition to MINDEX while stating that: “Ang ginawang konsultasyon sa mga pamayanang apektado ay hindi tama at maling pagpapaliwanag at pagbibigay ng suhol kapalit ng kanilang lagda.”
  4. Position Paper of Kapulungan Para sa Lupaing Ninuno (KPLN) or Coalition for Ancestral Lands, an alliance of organizations of Mangyan indigenous communities, expressing unconditional opposition to the project due to the lack of information of the Mangyans on the mining operation; lack of free, informed and prior consent as prescribed in Section 38 of Indigenous Peoples’ Rights Act; disregard of their cultural belief in the sacredness of their domain, among others.
  5. Position Letter of Samahang Pantribu ng mga Mangyan sa Mindoro (SPMM) or Tribal Organizations of Mangyans in Mindoro, another federation of Mangyan tribes, denouncing the plunder of our natural resources by foreign mining companies and pinpointing expanded areas prone to environmental destruction.
  6. Resolution No. 2-99 of Panlalawigang Samahan Lakas Magasasaka (SALAKMA) or Provincial Federation of Peasant Sactor, addressing the destractive effect of mining operation of Mindex in agricultural land and among peasant sector.<o:p></o:p>
  7. Barangay Resolutions of canaan, Malabo and Poblacion III of the Municipality of Victoria, expressing opposition to Mindex mining.<o:p></o:p>
  8. Resolution of the Federation of Senior Citizens of Victoria, expressing opposition to Mindex mining, in defense of the welfare of the future generation.
  9. Position Paper of Angelito A. Bacudo, Ph.D, representing Mindoro State College of Agriculture and Technology (MinSCAT) enumerating the specific environmental impact of mining activities.
  10. Declaration of unified stand against mining, adopted by 4th National Mining Conference, wherein Mindoro was represented by Mangyans belonging to Kalipunan para sa Lupaing Ninuno (KPLN).
  11. Manifesto expressing opposition to MINDEX’ Sablayan Nickel-Cobalt Project signed by officers and members of Victoria Municipal Employees Association (VICMEA).
  12. Position Paper of Victory Balikatan, Inc., a cooperative sector in Brgys. Bethel, Canaan, San Gelacio, Poblacion 3, in Victoria, Oriental Mindoro expressing their strong opposition to the mining project.
  13. Resolution of Oriental Mindoro Medical Society opposing the proposed mining activity of MINDEX due to its ill effects on the environment and ultimately on the health of the people.
  14. Position Paper of Oriental Mindoro Diocesan Clergy against MINDEX mining, unanimously signed by 37 priests enumerating issues and moral position in their opposition to the project.

Clearly, the people have spoken. A significant number of the silent but opposing majority is still to be heard. But the company is selectively closing its doors to the oppositors while deceptively projecting the exaggerated support a single, misguided organization called the Samahang Liham, which has been lured to believe in the promised material benefits, while blindly turning its back to moral responsibility and the social cost and risk of environmental destruction.

3. FREE, PRIOR AND INFORMED CONSENT OF THE MANGYAN INDIGENOUS PEOPLE

With regards to the Indigenous Mangyan communities, the recently approved Republic Act No. 8371 or the Indigenous People Rights Act (IPRA) of 1997 provides that the mining project proponent has to undertake consultations with the indigenous community to secure their free, prior and informed consent and eventually enter into an agreement

IPRA protects the rights of the indigenous people over the ancestral domain. Any mining application cannot proceed without their explicit consent and the certification that the mining area does not overlap with the IPs ancestral domain claim (R.A. 8371,Sections 57-59). This is also prescribed in the Philippine Mining Act of 1995.

MINDEX, in order to comply with the above-mentioned provision of the law sought the certification of National Commission on the Indigenous Peoples (NCIP), namely, Director-designate DATU DEOGRACIAS T. RAIZ and Regional Director-designate VELMA CHOLLIPAS. However, the certifications issued, beside from being erroneously deceptive, are disadvantageous to the interest of the IPs.

Director Raiz issued a certification dated November 19, 1998, relative to the mining application of MINDEX Resources Development, Inc. (MINDEX) located within Oriental and Occidental Mindoro, that the applied mining areas “ aer located outside Ancestral Domains claims or CADC No. R4, CADC-002 awarded to the Mangyans of Mindoro.”

However, he failed to indicate that the mining application of Mindex overlaps with CADC No. 24 of the Alangan Mangyans and CADC No. 85 for the Tadyawan Mangyans, and with a pending CADC application of Alangans in Buraboy. Thus, Director Raiz certification is a clear violation of IPRA, section 59! Further, it is provided in the law that: “ no certification shall be issued by the NCIP without the free and prior informed consent of ICGs/IPs concerned…” The Certification of Free and Informed Consent was issued by the Regional Director-designate Chollipas two months after – on January 12, 1999! But it is his certification is also questionable.

Regional Director Chollipas issued a Certificate of Free and Informed Consent to AMC Aglubang Mining Corporation (co-owner of MINDEX) covering the same area occupied by the Mangyans. She based her position on the negotiation with a MINDEX-organized Mangyan group, the KABILOGAN NG MGA MANGYAN or LUPAING NINUNO KABILOGAN MANGYAN, INC. the KABILOGAN’s written position (“Paglalahad ng Paninindigan Tungkol sa Pagmimina”) was only signed on April 18, 1999, three months after she issued her certification!

During the NCIP’s consultation meeting held in Villa Cerveza on May 19, 1999, I question the status of the KABILOGAN on the following grounds:

  1. The identity and the credibility of the newly organized Mangyan group, KABILOGAN ng mga Mangyan, to represent the genuine sentiment of the Mangyan stakeholders are highly questionable. First, members of this organization are mostly workers of the mining company, including the elected chairman. Their stand on the mining issue is already conditioned by the short-term benefits and promises of material rewards. Secondly, the group was not organized nor initiated by the Mangyans themselves. The NCIP suggested the formation of the group, while MINDEX subsequently took the responsibility of formally organizing them. In fact, the election of the KABILOGAN officers took place inside the MINDEX compound. Clearly, this was violative of the provision of the law wherein it is prescribed that “free and prior consent” of the IPs should be free from any external manipulation, interference and coercion… (R.A. 8371, Section 3, g); and that “the consent of the ICCs/IPs should be arrived at in accordance with its customary laws…” (Section 58).
  2. The loosely organized group of KABILOGAN represents only the minority of the stakeholders. They come from communities whose members are negligibly small. They are estimated to be around 50 families – Alyanay has 5 families, Ibolo has 10, Kisluyan has 6, Maigat has 14, and Puting Bato has 15. 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 is far from being such. Moreover, it was found out that the hand-picked leaders could not genuinely reflect the sentiment of their individual members. The consent of the leaders is not to be construed as the consent of all.
  3. There is no need for another organization for the purpose of proper representation. There are already existing organizations recognized by this office – one representing the Tadyawans (KAMTI: Kapyan Agpaysarigan Mangyan Tadyawan, Inc.) and another representing the Alangans (SANAMA: Samahan ng Nagkakaisang Mangyan Alangan). Both organizations are already registered and affiliated with the Kapulungan Para sa Lupaing Ninuno (KPLN), a provincial federation of Mangyan cultural communities. More importantly, both organizations are stakeholders to the mining project, for they have existing or applied CADCs overlapping with the exploration site of MINDEX (CADC No. 24 for the Alangan and CADC No. 85 for the Tadyawan).
  4. As provided in the Indigenous Peoples’ Rights Act of 1997, the consent of the affected IPs should be “free and informed.” As can be gleaned from the foregoing instances, this requirement was not fulfilled and instead, the Mangyans were subjected to subtle manipulation and deceptive tactics for the self-serving intent of the mining company. As such, MINDEX presence in the mining site is considered “unauthorized and unlawful intrusion” (Section 10), that the ICCs/IPs have the right to stop or suspend (Section 59)

‘The local population welcomes this project’

THE CASE OF SAMAHANG LIHAM and SIGNATURES OF SUPPORT

We have made it clear from the foregoing that from the legal perspective, social acceptability of the mining project is indispensable. It is for this reason that the company is doing everything to project a status of acceptability and support from the people. A case of alleged deception and subtle manipulation in an effort to encroach on the ancestral land of the Mangyans was effected to legitimize the entry of the mining project. A pattern of direct and indirect bribery in varied forms, as reported to Harald Eraker of NorWatch, during his visit in the Philippines, was resorted in order to solicit support. By doing so, MINDEX was banking on the much-abused Filipino trait of “paying the debt of gratitude” or “utang na loob” to sway the people’s sentiment to their ends.

Since social acceptability has to be complied with, MINDEX has to find ways to prove people’s consent, no matter how. Incidentally, it finds its most willing collaborator with Nilo Baculo who has the reputation of having large followers, called the Samahang Liham. This organization was composed of fans/listeners of Nilo Baculo when he was then a radio commentator in a local radio station. They were then writing Nilo Baculo letters or complaints, which he used to read on the air, thus Samahang Liham got its name, which literally means, “organization of letter-writers.” They joined the organization because they were promised to receive cash donations from their benefactors abroad which Nilo Baculo would assisgn them. They were even made to sign a contract providing that Nilo Baculo would get 25% of their individual shares for all the cash donations that each member would receive.

This is the Samahang Liham that MINDEX claims to be supporting the mining project. To counter the opposition, MINDEX is allegedly using Samahang Liham, through Nilo Baculo, in an attempt to establish a façade of mass supporters. Even Anders Hvide, MINDEX Managing Director in Norway, has issued statements which appeared to equate social responsibility with the support of Samahang Liham, in a number of commentaries he cited in the published interview with Harald Eraker of NorWatch.

It should be noted that not all members of the Samahang Liham are supporters of the mining project. From my interviews with members of Samahang Liham, I found out that they were being deceived and manipulated. In one particular instance, they were surprised when their meeting and convention were made to appear as an expression of support for MINDEX mining. On June 25, 1999, during the scoping activity of MINDEX, members of Samahang Liham were simultaneously invited for a convention in a nearby venue for contract signing of a document. They were later herded to the session hall where the MINDEX-Dames and Moore scoping is being held, to be later presented as supporters of the mining firm.

Disclaimers sent to this office, duly signed by senders, alleged that:

1. Brgy. Pakyas, Victoria, Oriental Mindoro

“We were enjoined by members of the Samahang Liham to sign a petition without any cover letter, just the empty spaces for the signatures. When we inquire as to the intent of the petition, we were informed that it was a petition against MINDEX mining. So, we signed right away. However, we later found out that the Samahang Liham are supporting the MINDEX mining operation. Thus, we submit this disclaimer to register their opposition to mining.”

2. Brgy. Maluanluan, Pola, Oriental Mindoro

“In the last week of June 1999, assembly of members of Samahang Liham was held in D.Y. Chu National High School, presided by their founder, Nilo Baculo, attended by 200 people more or less. The mining operation of MINDEX was discussed but only the benefits were presented, and the threat to ecological destruction was not mentioned at all. We were later informed that Mr. Nilo Baculo has submitted signatures endorsing the mining operation the mining operation. But it was “unknown” to the members who signed.”

3. Brgy. Bagsok, Socorro, Oriental Mindoro

“On June 24, 1999, we attended a meeting in the municipality of Victoria. We signed to register our attendance tot he said meeting. We were informed our signatures will be sent to our foster parents who will help our children for their studies with their $10 monthly donation… After two months, we learned that this Mr. Nilo Baculo has sent more than 100,000 signatures to Norway from the members of the Samahang Liham (endorsing mining operation of MINDEX). We write to express our objection to mining operation… We state that the signatures sent by Mr. Nilo Baculo to Norway are blatant kind of lie and deception, for his own interest and not for the members.”

The signatures gathered through fraud and deception can be construed as a kind of desperate attempt to project social acceptability for the project. One interviewee furnished me a letter addressed to Arne Isberg, country manager of MINDEX, requesting him to facilitate the procurement of good electric power supply, with corresponding spaces for signatures to be gathered. This source is now suspecting that the signatures he supplied to Baculo were used to render endorsement to the mining operation of Mindex.

The deceptive strategy employed to create a pseudo-consent among the people has been one of the primary objections to the mining project. The position paper of the Diocesan clergy notably opposed “the seeming manipulation of Mangyans and lowlanders as well, who are being deceived by empty promises of immediate gains in a malicious ploy to get their consent and to support the mining operation. Indirect bribery disguised as gift-giving or project sponsoring had also been resorted to soften the overwhelming opposition. Even, deceptive strategies are being orchestrated to project the expression of support of some misguided sectors and unprincipled collaborators.”

Another controversy, which ensued, in connection with the deceptive strategy in securing signatures, is the alleged forging of signature of Provincial Administrator Alfonso Umali, Jr. his name and signature was appended in the Mindoro Scoping Report, for which he did not attend. In his complaint letter to Mr. Arne Isberg, dated September 9, 1999, he strongly deplore the scheme of deception:

“Such manifestation has shown the color of bad faith employed by the group in their desperate attempt to make the report binding… Pertinently, the act has created doubt in the minds of the provincial government as to Dames and Moore’s credibility and integrity in conducting the Environmental Impact Study (EIS). In our concerted study of the situation, it would be difficult to believe that they unintentionally committed a mistake in affixing my name and the corresponding signature which obviously indicated a similarity with my signature… The loss and credibility of said firm (Dames and Moore) is no longer of help in depicting the true sentiments and stand of Mindoreños on the resource-based investment of your corporation.”

Concluding appeal

Any attempt to fake social acceptability will always prove to be counter-productive, in the end.

MINDEX must accept the reality that the people of Mindoro will not let mining activities to threaten our environment in exchange for short-term financial gain or distorted development strategies.

Mining operation could not do away with the social cost of landlessness. Unless mining can be done without need for actual occupation, the already delicate tenurial rights of Mangyan communities would continue to be usurped, leading to continued landlessness. In a most recent report from the Mangyan Mission, the overlapping Certificate of Ancestral Domain Claims (CADCs) of the Mangyans and the mining application of MINDEX were plotted in a map (a copy of which is attached herewith). The result showed that MINDEX has encroached on the 1,965.12 hectares of approved CADCs for Alangan and Tadyawan Mangyans. Further, a pending CADC application of Mangyan-Alangan in Buraboy totalling to 7,264.43 hectares was also found to overlap with the mining exploration claim granted to MINDEX.

Equally important in evaluating mining operation, as noted by Legal Rights and Natural Resources Center, is the equity aspect of sustainability. Where mineral resource flow inures to the benefit of the already-rich certainly does not speak of equitable consumption.

The Provincial Council has taken the position that “Mindoro Nickel Project is incompatible with thesustainable 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 Provincial Physical Framework Plan of Oriental Mindoro (1993-2002) which stresses more on the environment-related strategies for sustainable land use.”

The opposition against MINDEX mining operation and their consulting firm, Dames and Moore has consolidated the broadest sectoral spectrum in the province – from the local government units, the farmers and fisherfolks, indigenous people, the Catholic and Protestant churches, environmental activists, schools, NGOs, cooperatives.

We stand united not to oppose development, per se. But we believe that development must not contradict the basic rights and welfare of our people. Development must be pursued in line of promoting equity, poverty alleviation, justice, integrity of creation and common good. We support and pursue the development programs for our people. However, “a true and just development must fundamentally be concerned with a passionate care of our earth and our environment (Second Plenary Council of the Philippines, Acts No. 321). The measure of genuine development in the context of mining is clarified by the Catholic Bishops’ Conference of the Philippines (CBCP) in their statement: “the adverse social impact on the affected communities specially on our indigenous brothers and sisters far outweigh the gains promised by large-scale mining operations. Our people living in the mountain and along the affected shorelines can no longer avail of the bounty of nature. Rice fields are devastated and bays rich with sea foods become health hazards.” (CBCP, A Statement of Concern on the Mining Act of 1995, February 28, 1998).

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