G.R. NO. 197754 FOR: SPECIAL CIVIL ACTION FOR ISSUANCE OF A WRIT OF KALIKASAN PHILIPPINE EARTH JUSTICE CENTER INC.; ALLIANCE TO SAVE THE IN- TEGRITY OF NATURE INC.; KESALUBUUKAN TU- PUSUMI ORGANIZATION OF SUBANEN PEOPLE, Mario Catanes, Wilma A. Tero, Manuela A. Pateño, Barlie Balives, Danilo O. Eranga; Sultan Maguid A. Maruhom, Timoay Lucenio M. Manda, Gualberto F. Largo, Daniel C. Castillo, Jerry S. Espinas, Bishop Jose Recare Manguiran, Fr. Sean Martin, Fr. Arsenio Marane, Felix Unabia, Ricardo Tolino, Jesus Catamco, and Paulino Alecha Sr.,
Transcript
G.R. NO. 197754 FOR: SPECIAL CIVIL ACTION FOR ISSUANCE OF A WRIT OF KALIKASAN PHILIPPINE EARTH JUSTICE CENTER INC.; ALLIANCE TO SAVE THE IN-TEGRITY OF NATURE INC.; KESALUBUUKAN TU-PUSUMI ORGANIZATION OF SUBANEN PEOPLE, Mario Catanes, Wilma A. Tero, Manuela A. Pateño, Barlie Balives, Danilo O. Eranga; Sultan Maguid A. Maruhom, Timoay Lucenio M. Manda, Gualberto F. Largo, Daniel C. Castillo, Jerry S. Espinas, Bishop Jose Recare Manguiran, Fr. Sean Martin, Fr. Arsenio Marane, Felix Unabia, Ricardo Tolino, Jesus Catamco, and Paulino Alecha Sr.,
REPUBLIC OF THE PHILIPPINESSUPREME COURT
MANILA
PHILIPPINE EARTH JUSTICE CENTER INC.; ALLIANCE TO SAVE THE INTEGRITY OF NATURE INC.; KESALUBUUKAN TUPUSUMI ORGANIZATION OF SUBANEN PEOPLE, Mario Catanes, Wilma A. Tero, Manuela A. Pateño, Barlie Balives, Danilo O. Eranga; Sultan Maguid A. Maruhom, Timoay Lucenio M. Manda, Gualberto F. Largo, Daniel C. Castillo, Jerry S. Espinas, Bishop Jose Recare Manguiran, Fr. Sean Martin, Fr. Arsenio Marane, Felix Unabia, Ricardo Tolino, Jesus Catamco, and Paulino Alecha Sr.,
Petitioners,- versus - G.R. NO. 197754
FOR: SPECIAL CIVIL ACTION FOR ISSUANCE OF A WRIT OF KALIKASAN
SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; DIRECTOR, MINES & GEOSCIENCES BUREAU; DIRECTOR, PROTECTED AREAS AND WILDLIFE MANAGEMENT BUREAU; DIRECTOR, NATIONAL COMMISSION FOR INDIGENOUS PEOPLES; X, Y & Z COMPANIES WITH MINING APPLICATIONS AND/OR MINING TENEMENTS IN THE HIGHLANDS OF THE ZAMBOANGA PENINSULA as represented by the Chamber of Mines,
PETITION FOR ISSUANCE OF A WRIT OF KALIKASANWITH PRAYER FOR TEMPORARY ENVIRONMENTAL
PROTECTION ORDER & WRIT OF CONTINUING MANDAMUS
Petitioners most respectfully intone:
PRECIS OF THIS PETITION
Gravely threatened with environmental damage of such magnitude as to
prejudice the life, health or property of the inhabitants in three provinces and at
least three chartered cities due to the unconscionable issuances of mining
tenements is the mineral resource-rich region of Zamboanga Peninsula. It lies
between the Moro Gulf, part of the Celebes Sea, and the Sulu Sea and
geologically connected to the main island of Mindanao through an isthmus
situated between Panguil Bay and Pagadian Bay. (See Figure 1)
We borrow environmental capital from future generations with no intention or prospect of repaying. They may damn us for our spendthrift ways, but they can never collect on our debt to them. We act as we do because we can get away with it: future generations do not vote; they have no political or financial power; they cannot challenge our decisions. [World Commission on Environment and Development, 1987]
Zamboanga
Peninsula is endowed
with rich mineral
resources. Its sub-
surface is known to
contain huge deposits
of, among others,
metallic minerals like
gold, chromite, coal,
iron, silver, lead, and
manganese. It must be
for this reason that it
has long become a natural magnet to mining companies.
The peninsula’s
mineral richness may be
traced back to its long
geological history. It
appeared as an island on
this part of the Pacific still
attached to the islands of
Samar and North Luzon
about fifty million years
ago (See Figure 2).1
It rested and
became more or less
stationary at its
present location
about 35 million years
ago and connected
with the main part of
the Mindanao island
just about 2 million
years ago (See Figure
3).2
1 See Robert Hall, Cenozoic Tectonics of SE Asia and Australasia, SE Asia Research Group, University of London, http://searg.rhul.ac.uk/current_research/plate_tectonics/sea_2001_svga.mov2 Ibid
2
Figure 1. The present Geographic map of the Zamboanga Peninsula
50
Figure 2. Animation by Robert Hall, SE Research Group
2Figure 3. Animation by Robert Hall, SE Research Group
Figure 4. The mineral map of Zamboanga Peninsula (Region IX), showing the extent of mining tenements issued or applied for constituting more than 50% of its land area. This map posted in the webpage of respondent MGB is prepared by its Mines Management Division with a caveat that it is not valid for litigation.
building local capacities for environmental protection and promote sustainability
and protection of human rights. It is represented in this suit by its Executive
Director and Trustee, Atty. Gloria Estenzo-Ramos pursuant to a resolution of its
Board, copy of which is attached as Annex A.
2. Petitioner Alliance to Save the Integrity of Nature, Inc. (ASIN) is a non-
government organization duly registered under the laws of the Republic of the
Philippines. Its principal office address is at San Jose Parish, Midsalip, Zamboanga
del Sur where it be served with legal processes. It is primarily established to
promote environmental awareness in the community and protect the people’s
human rights and their right to ecology. It is represented in this suit by its
Chairman, Felix B. Unabia pursuant to a Board resolution which copy is attached
as Annex B.
3. Petitioner Kesalubuukan Tupusumi Organization is an association duly
organized under the laws of the Republic of the Philippines with its principal
office at Poblacion, Midsalip, Zamboanga del Sur. It is an organization of
Subanen people, an Indigenous Cultural Community in Zambonga Peninsula,
represented in this suit by its President Ricardo Tolino pursuant to a resolution of its
Board attached as Annex C.
4. All other individual petitioners whose names and personal
circumstances are found in the verification and certification hereof are residents
in Zamboanga Peninusula. They all are suing on their behalf and on behalf of the
minor Filipinos and of generations of Filipinos yet unborn.
5. For procedural convenience and practical reasons, all of the herein
named individual petitioners may be collectively served with summons and other
legal processes issued from this Apex Court at the PECJ Office, University of
Cebu- College of Law, Banilad Campus, 6000 Cebu City.
Respondents:
6. Respondent Secretary Ramon Paje is the head of the Department of
Environment and Natural Resources (DENR), a government agency created by
virtue of Executive Order No. 192, dated June 10, 1987. It is primarily mandated
for the conservation, management, development, and proper use of the
country’s environment and natural resources. It may be served with summons,
papers and other legal processes at DENR Building, Visayas Avenue, Diliman,
1110 Quezon City, Philippines.
6
7. Respondent Mines and Geosciences Bureau (MGB) was elevated into a
line bureau of public respondent DENR pursuant to Republic Act No. 7942. Its
office is located at MGB Compound, North Ave., Diliman, 1110 Quezon City
where it may be served with summons and other legal processes. Its declared
mission is to be the steward of the country's mineral resources committing itself to
the promotion of sustainable mineral resources development, and being aware
of its contribution to national economic growth and countryside community
development. It is represented in this suit by its Acting Director, Engr. Leo L.
Jasareno.
8. Respondent Protected Areas and Wildlife Bureau (PAWB) is likewise a
line agency of DENR. It is established pursuant to Republic Act No. 7586 or the
National Integrated Protected Areas Systems (NIPAS) and invested with a primary
mandate of protecting the country’s wildlife. Its office is located at the Ninoy
Aquino Parks and Wildlife Center, 1100 Diliman, Quezon City where it may be
served with summons and other legal processes. It is represented in this suit by its
Director, Theresa Mundita S. Lim.
9. Respondent National Commission on Indigenous Peoples (NCIP) is a
government agency created pursuant to Republic Act No. 8371. Its mandate is
to protect and promote the interest and well-being of ICCs/IPs with utmost
regard to their beliefs, customs and institutions. Its office is located at 2nd Floor N.
de la Merced Bldg., Cor. West and Quezon Avenues, Quezon City where it may
be served with this Court’s summons. It is represented in this suit by its Executive
Director, Basilio A. Wandag
10. Respondents mining companies and entities with stakes in Zamboanga
Peninsula are impleaded in this suit under their assumed appellations owing to
their number which, as of last count is already 170 and still growing. They may,
however be properly represented in this suit by their association, the Chamber of
Mines of the Philippines with its office at Room 809, Ortigas Bldg., Ortigas Ave.,
1605 Pasig City or by public respondent MGB itself that issues permits or contracts
them with mining tenements.
ENVIRONMENTAL LAWS/PRINCIPLES TRANSGRESSED
I. Sec. 16, Art. II of the Philippine Constitution;
II. Sec. 19 (f) of Republic Act No. 7942;
III. Sec. 20 (f) of Republic Act No. 7586;
IV. Section 27 [c][iii] of Republic Act 9147;
7
V. Principle of Prior, Free and Informed Consent as required under Sec.
16 of Republic Act No. 7942, Sec. 7 (b) and Sec. 57 of Republic Act
8371;
VI. Principle of Carrying Capacity of Ecosystems as defined under Sec.
3 (d) of Republic Act No. 7942; and
VII. Principle of stand-still or ‘non regression’.
ACTS OR OMISSIONS COMPLAINED OF
I. Respondents violated or threaten to violate Petitioners Right to Ecology
11. Mining entails moving earth. By quarrying or digging tons and tons of
overburden just to reach and extract the ores containing the desired minerals,
physical landscape is necessarily altered or destroyed along with the foliage
atop. With forests gone, habitats of flora and fauna follow and watersheds run
dry.6
12. When ores are reached, segregative process will be applied wherein
relative amounts of valued substances is isolated from much large mass of less
valuable materials. As for example in copper mining, almost 95.5% of materials
mined are rejected comprising the so-called mine wastes.7
13. These wastes coming from mining activities may result into land
degradation, ecosystem disruption, acid mine drainage, chemical leakages,
slope failures, toxic dusts, among others (See Figure 5).8
6 See Gavin Bridge, Dept. of Geography Syracuse University, “Contested Terrain: Mining and the Environment”, Annual Review Environmental Resources, 20047 Ibid8 Ibid
8
Figure 5. Potential Environmental and Social Impact of Mining (World Resources Institute).
14. These potential hazards are perennial in every single active mining
area. But where, as in the case of Zamboanga Peninsula there are presently
one hundred and seventy (170) mining tenements already entertained or
otherwise approved involving a total of 808,269.09 hectares, which is about 51%
of peninsula’s land mass, the threat to the environment has become very real
rather than merely apparent.
15. Section 16 of Article II of the 1987 Philippine Constitution declares that
the State shall protect and advance the people’s right to a balanced ecology in
rhythm and harmony of nature. As a constitutionally guaranteed right of every
Filipino, it carries with it the correlative duty of non-impairment. 9
16. This is but in consonance with the declared policy of the state “to
protect and promote the right to health of the people and instill health
consciousness among them. It is to be borne in mind that the Philippines is a
party to the Universal Declaration of Human Right and the Alma Conference
Declaration of 1978 which recognize health as a fundamental human right.10
17. By allowing mineral extraction in almost all the upland areas of
Zamboanga peninsula, respondents have callously impaired or threatened to
impair petitioners’ right to ecology. Because of their wholesale mining grants,
mountaintops will definitely be ultimately scraped or bored hollow, valleys will be
filled with quarried earth and raised, rivers and creeks that supply water into
downhill communities for their domestic, agricultural and industrial uses will be
polluted or will run dry.
18. Public respondents may argue that all environmental protective
measures are anyway in place in each and every tenement they issue and will
be strictly enforced during every mining operation. But this is better said than
done.
19. With the vastness of the area being opened and subjected to mining,
it would be a no brainer that these regulatory conditions will not at all be
observed nor complied with.
20. Track record of public respondents DENR and MGB speaks of itself.
Marinduque’s Boac River is now biologically dead after Marcopper’s mine
tailings spilled into it in 1996. Because of that environmental disaster, marine life in
9 Minors Oposa v. Factoran10 Laguna Lake Development Authority v. CA, et al., G.R. No. 1101020, March 16, 1994
9
S em irara
O nly wh en the last tree has b een cu t do w n,O n ly w he n th e last river h as bee n po is on ed ,
O n ly w he n th e last fish h as b een caug h t,O nly t he n w il l yo u find th at m o ney can n ot b e eaten .
— C r e e Ind ia n P r op he c y
the 26-kilometer waterway vanished, with farmlands and villages flooded. More
than fifteen years after the said mine disaster, the province is still coping with
millions of cubic meters of toxic mine wastes.
21. Yet, what have these public respondents done to restore Boac river?
How about the environmental catastrophes in Rapu-rapu and Semirara (See
Figure 6) islands which are directly caused by irresponsible operations of mining
companies permitted by public respondent MGB in these areas? Have public
respondents cleaned up the ‘dirty seven’?11
22. Research shows that in order to better monitor compliance to
environmental regulations in mining, the ideal area assigned per technical
inspector is 30 hectares. With more than 800,000 hectares now opened to mining
in Zamboanga Peninsula, public respondent MGB necessarily needs more than
20,000 personnel to effectively manage the subject area. But with less than a
thousand staff manning its regional office, most likely public respondent MGB will
just rely on unsubstantiated reports submitted by mining companies and most
likely these reports may not at all be verified on the ground.
II. The capricious issuances of Mining Tenements violated Sec. 19 (f) of R.A. 7942
11 Major abandoned mine collectively known as ‘The Dirty Seven’: 1) Bagacay Mines of Philippine Pyrite Corp. at Bagacay, Hinabangan, Western Samar; 2) Tagburos Mines of Palawan Quick Silver Mines at Tagburos, Puerto Princesa City; 3) Basay Mines of Basay Mining Corp.at Malinao, Basay, Negros Oriental; 4) Mogpog Mines of Consolidated Mines Inc. at Mogpog, Marinduque; 5) Benguet Mines of Black Mountain Mines Corp. at Tuba, Benguet; 6) Benguet Exploration of Thanksgiving Mine Inc. at Tuba, Benguet; and 7) Atok Mines of Western Minolco Inc. at Atok, Benguet.
10
Figure 6. Bird’s eye view of the ecological wasteland that is Semirara island taken by Lorenzo Tan of WWF-Philippines
23. By entertaining or otherwise issuing a total of one hundred seventy
(170) mining tenements covering practically the entire mountainous area of the
Zamboanga Peninsula, public respondents unabashedly assumed that the entire
peninsula must be open to this extractive industry.
24. In so doing, public respondents transgressed the disallowance written
in Sec. 19 (f) of the Mining Law against accepting mining applications in areas of
old growth or virgin forests, proclaimed watershed forest reserves AND in areas
expressly prohibited under NIPAS and other laws.12
25. The preceding law is clear. Where there is present old growth or virgin
forests in an area applied for mineral agreement or FTAA, or such an applied for
area is otherwise proclaimed watershed, public respondent MGB is duty-bound
not to accept such mining application, even if this area is not covered by NIPAS.
26. By NEDA’s own account, fifty four (54%) percent of Zamboanga
Peninsula’s total land area is classified as forest land while proclaimed as
watershed areas in Zamboanga del Norte reached 1,156 hectares, in
Zamboanga Sibugay 577 hectares, and in Zamboanga City 17,414 hectare.13
27. While mere classification of an area may not prove conclusive the
existence therein of old growth or virgin forest, it nevertheless constitutes prima
facie the subsistence of these vital ecosystems.
28. But by opening practically all of the mountain areas in the peninsula
for mineral extraction, public respondent MGB has wrongly presumed that the
entire mountainous area of the peninsula is denuded and without watersheds.
29. A clear example to this blatant abuse of discretion is MGB’s grant and
approval of Geotechnicques and Mines Inc. (GAMI) MPSA No. 288-2009-IX on
August 5, 2009 covering an area of Five Hundred Sixty Seven (567) hectares
inside the mountain ranges of three (3) Barangays in Midsalip, namely: Sigapod,
Guinabot and Cumaron. This was done notwithstanding the fact that these
barangays are actually part and the heart of the Mount Sugarloaf Complex,
12 Section 19. Areas Closed to Mining Applications. Mineral agreement or financial or technical assistanceagreement applications shall not be allowed: x - x – x – x f. Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws.13 NEDA, Regional Development Agenda – Zamboanga Peninsula (Region IX), supra
11
located in the central portion of Zamboanga Peninsula and which was declared
a forest reserve or protected watershed on August 9, 1966 under Proclamation
Order No. LC-2487, a copy of the certification issued by public respondent PAWB
is attached as Annex D.
30. As further proof that these three barangays of Midsalip are indeed
watershed or forest reserve area, a Midsalip Watershed Management Unit
Project was implemented by its local government unit on December 28, 1992
with a total cost of Php41,157,589.00, copy of its Project Profile is attached as
Annex E.
31. This invalidly issued MPSA to GAMI is currently the subject of a
questionable assignment of rights in favor a certain MSSON Mining and
Exploration Corporation. The said assignment is patently defective since it did not
carry the approval from public respondent DENR Secretary as required by Sec.
30 of Republic Act 7942.
32. When this MSSON mining tried entering into the prohibited area in
October 2010, petitioner ASIN’s members peacefully picketed along the ingress
toward the overlap mining area. Due to their resistance, this MSSON Mining
thereafter filed in November 2011 two criminal cases at the Zamboanga del Sur
Provincial Prosecutor’s Office for alleged violations by the members of Petitioner
ASIN of Sec. 107, Republic Act. 7942.14 These pending twin criminal cases are
docketed as I.S. Case No. IX-09-INV-10F-00352 and I.S. Case No. IX-09-INV-10F-
00356.
33. Not contented with the criminal actions it earlier filed, this MSSON
Mining also filed on December 8, 2010 an Injunction case and damages with
prayer for TRO and Preliminary Injunction at the Regional Trial Court Branch 30,
Aurora, Zamboanga del Sur against the same respondents in the aforesaid
criminal complaints, members of Petitioner ASIN. This MSSON Mining’s injunction
case is docketed as Civil Case No. AZ-30,549 (Aurora case, for brevity).
34. Weird spin-off of the Aurora case then ensued. The RTC Branch 30 of
Aurora under Judge Ernesto Laurel immediately treated this MSSON Mining’s
injunction case as an environmental case to be governed by the Rules of
Procedure for Environmental Cases, apparently taking cue from Rule 2 of A.M.
09-6-8-SC.
14 Sec. 107, R.A. 7942: Any person who, without justifiable cause, prevents or obstructs the holder of any permit, agreement or lease from undertaking his mining operations shall be punished, upon conviction by the appropriate court, by a fine not exceeding Five thousand pesos (P5,000.00) or imprisonment not exceeding one (1) year, or both, at the discretion of the court.
12
35. Thereafter, RTC Aurora issued its first bizarre order of the day on
December 9, 2010 ruling that the same injunction case should be converted into
a petition for issuance of a continuing mandamus under Rule 8 of the
Environmental Rules and thereby ordered defendants therein, who are members
of petitioner ASIN, to file their comment, a copy of Judge Laurel’s order is
attached as Annex F.
36. When petitioner-members of ASIN objected to the improper
conversion of said injunction case in their motion for reconsideration in view of
the fact that they do not even belong to any government agency, much less
being officers thereof, the same RTC Aurora court on January 26, 2011 denied
their motion albeit ruling that the case ought to be tried under Section 2, Rule 22
of the Environmental Rules, a copy of its order is attached as Annex G.
37. Meanwhile, defendants in that Aurora case and co-petitioners in this
extant filed their answer on December 20, 2010 and thereby raised SLAPP as their
affirmative defense. But their SLAPP defense was too brushed aside by Judge
Laurel of RTC Aurora through an Order dated March 14, 2011, a copy of which is
attached as Annex H.
38. After the denial of their SLAPP defense and despite their pending
incident of a motion for consideration, what followed thereafter was a well-
orchestrated zarzuela perpetrated by this MSSON Mining and the RTC 30 of
Aurora.
39. By cleverly using the principle of speedy disposition of environmental
cases as provided under Section 1, Rule 3 in the Environmental Rules as a
smokescreen, the same RTC Aurora conducted marathon pre-trial conference,
mediation, pre-trial proper of the injunction case in less than a month.
40. Thereafter, the same RTC Aurora issued a pre-trial Order on May 6,
2011 and setting marathon trial dates of May 30, May 31, June 1, June 2, June 6,
June 7, June 9, June 13, June 14, June 15, June 16 and June 17, 2011, a copy of
the Pre-Trial Order is attached as Annex I.
41. On May 31, 2011, this MSSON Mining as plaintiff in the aforementioned
injunction case before the RTC Aurora, Zamboanga del Sur. commenced
presentation of its first witness, a copy of the TSN on May 31, 2011 is attached as
Annex J.
13
42. Evidence of plaintiff MSSON Mining in the said Aurora case continued
on June 6 and 7, 2011 after which the same RTC Aurora required the defendants
therein, petitioner ASIN members to submit their demurrer within 7 days.
43. But just a day after this MSSON Mining rested its case, it filed a motion
reviving its application for a TRO. So that defendants in said injunction case was
forced to incorporate in their Demurrer their opposition to this MSSON Mining’s
application for TRO or Preliminary Injunction and asked finally for Judge Laurel’s
recusal of the case because of his manifest bias, a copy of their demurrer is
attached as Annex K.
44. But even before their demurrer, opposition and motion to inhibit were
even heard and ruled, the same RTC Judge of Aurora granted on June 16, 2011
a 72-hour TRO, a copy of its Order is attached as Annex L.
45. And even before the TRO’s expiry, the same RTC Aurora smoothly
granted a 20-day TRO on June 17, 2011 and finally a writ of preliminary injunction
on July 6, 2011 in favor of this MSSON Mining, copies of these Orders are
attached as Annexes M and N. It must be noted that all of these rulings were
hastily done notwithstanding the pendency of the incidents aforementioned.
46. As such, in spite of the inherent legal defects of its mining tenement,
this MSSON mining was able to enter and start mining exploration into the
prohibited areas in Barangays Sigapod, Guinabot and Cumaron with the help of
military and police units securing their ingress into the protected area.
47. By the foregoing manifestation, it is desired that a separate
administrative investigation on the highly irregular conduct of RTC Branch 30,
Aurora, Zamboanga del Sur shall be done by this Honorable Court’s Office of the
Court Administrator.
III. Respondents transgressed the prohibition in Sec. 20 (f) of the NIPAS Law
48. According to NEDA, eleven (11) sites inside Zamboanga Peninsula
have been declared as protected areas under the NIPAS Act. The cities of
Zamboanga and Dapitan lead other areas in terms of proportion of land area
declared as protected at 14.0 percent and 13.0 percent, respectively.15
49. Culled from public respondent PAWB’s statistics are the following
declared/proclaimed protected landscapes in Zamboanga Peninsula:15 Ibid
14
a. Great & Great & Little Sta. Cruz Islands Protected Landscape & Seascape
in Zamboanga City and Zamboanga del Sur;
b. Jose Rizal Memorial Protected Landscape in Dapitan City;
c. Aliguay Island Protected Landscape and Seascape in Dapitan City;
d. Dumanquilas Protected Malangas, Buug, Kumalarang, Lapuyan,
Margosatubig, Vencenso Sagun, all in Zamboanga del Sur;
e. Selinog Island Protected Landscape and Seascape in Dapitan City;
f. Murcielagos Island Protected Landscape and Seascape in Labason,
Zamboanga del Norte;
g. Mt. Timolan Protected Landscape in San Miguel, Guipos & Tigbao,
Zamboanga del Sur;
h. Buug Natural Biotic Park in Buug, Zamboanga del Sur; and
i. Siocon Resource Reserve in Siocon, Zamboanga del Norte.
50. In addition to the above list, public respondent DENR’s provincial
office in Zamboanga del Sur also certified that Mt. Sugarloaf complex which is
nestled at the heart of Zamboanga Peninsula had been declared a forest
reserve pursuant to Proclamation No. LC-2487 dated August 9, 1966, a certified
true copy of Pages 7897-7898 of the Official Gazettel, Vol. 62 No. 43 is attached
as Annex O.
51. The Mount Sugarloaf Key Biodiversity Area (KBA 155) has a total land
area of 34,349 hectares. It covers the municipalities of Midsalip, Bayog,
Lakewood, Tigbao, City of Pagadian, all of Zamboanga del Sur and the
municipalities of Bacungan, Godod, all of Zamboanga del Norte. The complex
52. In sum, the land area of these proclaimed and declared protected
landscapes and seascapes in the Zamboanga del Sur Peninsula reach
95,423.944 hectares. Where the total mountainous area of the peninsula is about
54% of its total land area of 1,413,754 hectares or around 763,427 hectares, these
protected areas declared and proclaimed must have accounted to about 12%
of the peninsula’s highlands.
53. By the foregoing data, it is therefore safe to assume that out of the
total land area of 808,269.09 hectares involving 170 tenements being opened by
16 See “Philippines: Mining or Food? Case Study 1: Iron Ore & Other Minerals, Midsalip, Zamboanga del Sur – Mindanao Island, by Robert Goodland and Clive Wicks 2008; see also Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002
15
public respondents for mining, more than 11% of these subjected to extractive
industry must be protected or proclaimed areas.
54. The preceding data does not even include those areas inside
Zamboanga Peninsula which are declared as Conservation Priority Areas (CPAs)
by public respondent PAWB and which are by the way protected by the
Convention of Biological Diversity of 1992.17
55. The peninsula’s Mt. Sugarloaf forest reserve and Mt. Timolan protected
landscape in Zamboanga del Sur, and Mt. Lituban-Quipit watershed of
Zamboanga del Norte are likewise considered as Conservation Priority Areas
(CPAs). In terms of terrestrial and inland waters conservation, these are
considered as Extremely High Urgent level of priority.18
Figure 7. Map showing major portions of the Zamboanga Peninsula of High Ecological Value being threatened by mining. (Source: Mining and Critical Ecosystems: Mapping the Risks, Nov. 2003 by Marta Miranda, et al., published by World Resources Institute)
17 Convention on Biological Diversity, Sec. 1.The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.
18 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 27
16
56. By indiscriminately issuing mineral agreements or other tenements in
the subject area without taking into serious consideration the existence of
protected areas or conservation priority areas in the Zambaonga Peninsula, all
respondents have contravened Section 20 (f) of Republic Act 7586 which
prohibits squatting, MINERAL LOCATING, or otherwise occupying protected
areas.
57. In his treatise “A preliminary Analysis of the Philippine Protected Areas
Systems: Gaps and Recommendations”, author John Mackinnon laments that
the most bio-rich islands of Mindanao and Luzon are highly under-represented in
the Protected Areas (PA) system despite having quite a lot of remaining ‘natural’
habitat. He recommended, among others, that the PA system should be
enlarged and redesigned with strong biological basis and all remaining ‘natural
habitat should be gazetted into the NIPAS system.19
58. Public respondent PAWB should assert its mandate because its
omission or acquiescence has unpalatably resulted into these ultra vires and
illegal acts of public respondent MGB. It would appear in this dissertation that
public respondent DENR’s right hand, the MGB, may not have even known what
its left hand, the PAWB, is doing or vice versa.
IV. Respondents’ acts contravened Section 27 [c] of Republic Act 9147
59. Most obvious impact to biodiversity from mining is the removal of
vegetation, which in turn alters the availability of food and shelter for wildlife. At
a broader scale, mining may impact biodiversity by changing species
composition and structure.20
60. The Earth is presently experiencing changes to its natural environments
that are unprecedented in historic times. Destruction and degradation of natural
habitats are widespread and profound and their implications for the
conservation of biological diversity and the sustainability of natural resources are
of global significance. Humankind is responsible for an episode of species’
decline, endangerment and extinction of enormous proportions, and
widespread deterioration in the quality of air, water and soils – the basic
resources on which all of life depends. Such degradation of the natural
environment is not a new phenomenon, but it is the rapidity and global scale at
19 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 6220 World Resources Institute, Mining Literature
17
which change is now taking place that causes great alarm (Brown 1981; Myers
1986; Lunney 1991; Houghton 1994).21
61. The role of wildlife cannot be taken lightly. It is an integral part of a
functioning ecosystems, their interaction sustains its life-giving attributes (See
Figure 8).
Figure 8. A working ecosystems showing food and energy chain
62. The aforementioned key biodiversity areas in Zamboanga Peninsula:
Mt. Sugarloaf and Mt. Timolan of Zamboanga del Sur, Lituban-Quipit watershed
of Siocon, Zamboanga del Norte have been given Extremely High Priority level
for bird’s conservation by public respondent PAWB.22
63. In fact, sightings of Philippine Eagles (Pithecophaga jefferyi), a
critically-listed species, are well documented and verified, a copy of the
narrative of Public respondent DENR’s CENRO dated April 24, 2001 is attached as
Annex P.
64. Sec. 27 (c) of Republic Act 9147 considers the following acts done
inside critical habitats of critical, endangered or vulnerable wildlife species as
criminal offenses:
a. Dumping of wastes products detrimental to wildlife;
b. Squatting or otherwise occupying any portion of the critical habitat;
c. Mineral exploration and/or extraction;
21 Andrew F. Bennett, Linkages in the Landscape: The Role of Corridors and Connectivity in Wildlife Conservation, IUCN Forest Conservation Programme, Series 122 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 35
18
d. burning;
e. logging; and
f. quarrying.
65. As a consequence of public respondent MGB’s wholesale allowance
to mineral extraction in the peninsula, respondents have committed or will
continue committing these wildlife crimes.
V. Respondents violated the Principle of Prior, Free and Informed Consent and other Environmental law principles under IPRA
66. What distinguishes indigenous peoples from members of the
mainstream society is their customs, not their costumes. If indigenous peoples
assimilate culturally into the modern world, they consequently lose their legal
identify. This is exactly what happened to other Philippine ethnic tribes like the
Ilocanos, Ilongos, Cebuanos, et sequitur who chose to adapt the ways of their
colonizers.
67. Indigenous peoples (IPs) are those which having a historical continuity
with pre-invasion and pre-colonial societies that developed on their territories,
consider themselves distinct from other sectors of societies now prevailing in
those territories, or parts of them. They form at present non-dominant sectors of
society and are determined to preserve, develop, and transmit to future
generations their ancestral territories, and their ethnic identity, as the basis of
their continued existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems.23
68. Petitioner members of Subanen tribe are indigenous peoples who
populate and dwell in the highlands of Zamboanga Peninsula. Subanen means
"a person or people of the river", more specifically "from up the river" since they
are usually differentiated from the coastal inhabitants of Zamboanga peninsula.
By this tribe’s appellation, Zamboanga peninsula must have a lot of rivers.
69. The primary element that identifies Subanen tribe as an Indigenous
Cultural Community is their link to their traditional land area known as its
ancestral domain and/or ancestral land.
70. While ordinary Filipino mortals cannot claim ownership over the
country’s natural resources, their dominion over the natural resources found in
their ancestral domain/lands is statutorily acknowledged.23 United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Indigenous communities
19
71. Ancestral domains refer to all areas generally belonging to Indigenous
Cultural Communities/Indigenous Peoples comprising lands, inland waters,
coastal areas, and natural resources therein, held under a claim of ownership,
occupied or possessed by ICCs/IPs, themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present
except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other
voluntary dealings entered into by government and private individuals,
corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral land, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies
of water, mineral and other natural resources, and lands which may no longer
be exclusively occupied by ICCs/IPs but from which their traditionally had access
to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators.24
72. Although most of these ancestral domains in Zamboanga peninsula
may yet to be formally delineated or issued title, it is however safe to take judicial
notice that vast portions of these mountain areas must have been occupied and
claimed by petitioner Subanen Indigenous People as their ancestral domain and
lands.
73. The principle of free, prior and informed consent recognizes these
inherent rights of petitioner Subanen tribe to their ancestral domain and lands
and to the natural resources found therein.
74. Free, prior and informed consent means the consensus of all members
of the ICCs/IPs to be determined in accordance with their respective customary
laws and practices, free from any external manipulation, interference and
coercion, and obtained after fully disclosing the intent and scope of the activity,
in a language an process understandable to the community.25
75. By the foregoing concept, all the consent allegedly derived from
Subanen communities by mining companies inside their ancestral domains/lands
in Zamboanga peninsula as certified by public respondent NCIP must be
considered as vitiated as these are patently obtained by manipulation lacking in
24 Sec. 3 [a] Republic Act 837125 Sec. 3 [g], Ibid
20
the required full disclosure of the consequences of mining activities to their
ancestral domain, which includes their place of worship.
76. Besides, mining as an industry is anathema to the recognized right of
Indigenous Peoples to conserve their natural resources within their territories for
future generations. The use of machines in mining industry to achieve optimum
profit for the companies violates this right of petitioner Subanen tribe.
77. Further, the indigenous concept of ownership under IPRA sustains the
view that ancestral domains and all resources found therein shall serve as the
material bases of their cultural integrity. The indigenous concept of ownership
generally holds that ancestral domains are the ICC's/IP's private but community
property which belongs to all generations and therefore cannot be sold,
disposed or destroyed.26
78. Allowing mineral tenements into their ancestral domain will, as a
necessary consequence destroy these places to the utter prejudice of future
generations of Subanens.
79. Thus, whatever consent that was given by petitioner Subanens pseudo
leaders must be deemed illegal for transgressing the preceding principle of inter-
generational equity of IPs.
80. These NCIP certifications dangled by mining companies in these
subject areas are invalid for these were issued by their pseudo leaders in direct
contravention to their responsibility to maintain the ecological balance of their
ancestral domain by protecting the flora and fauna, the watershed areas and
other reserves therein.27
VI. Respondents breached the Environmental Law Principle on Carrying Capacity
81. Sec. 3 [d] of Republic Act 7942 or the Philippine Mining Act of 1995
defines carrying capacity as the capacity of the natural and human
environments to accommodate and absorb change without experiencing
conditions of instability and attendant degradation.
82. But poring over the entire text of the Mining law, petitioners cannot
find any provision putting into effect the aforequoted statutory definition. This
omission by Congress is understandable since the latter may have relied on 26 Sec. 5, R.A. 837127 Sec. 9[a], R.A. 8371
21
public respondent DENR to supply in its rules and regulations provisions
effectuating this environmental law principle.
83. Yet to the utter shock of petitioners, public respondent DENR did not
only fail in its delegated duty to give life to this statutory limitation on mining but
worse, it altogether deleted the term carrying capacity in its DAO No. 96-40, the
Implementing Rules and Regulations of R.A. 7942 and its amendatory rules.
84. Petitioners are of the considered view that the legislature must have
defined carrying capacity in the mining law to make it as a limitation upon the
government’s exercise in issuing mining permits. Congress could have not
thought of granting public respondents DENR and MGB the unbridled power or
authority to issue mining tenements without taking due regard of the carrying
capacity of the natural and human environment. This must be the only sound
statutory construction.
85. The reason of the law is its very soul. Ratio legis est anima. A statute
must be read according to its spirit or intent, for what is within the spirit is within
the statute although it is not within its letter, and that which is within the letter but
not within the spirit is not within the statute.28
86. In the Mining law, its avowed state policy is the promotion of rational
utilization and conservation of mineral resources in a way that would effectively
safeguard the environment and protect the rights of the affected communities.
Hence, Congress must have had in mind the principle on carrying capacity as
the only rational and sustainable way to safeguard the natural and human
environment from the adverse effects of mining.
87. Economic activities are sustainable only if the life-support ecosystems
on which they depend are resilient.29 If human activities are to be sustainable,
there is a need to ensure that the ecological systems on which our economies
depend are resilient.30
88. The services of ecological systems and the natural capital stocks that
produce them are critical to the functioning of the earth’s life support system.
They contribute significantly to human welfare, both directly and indirectly, and
28 League of Cities of the Philippines vs. COMELEC, G.R. No. 176951, Dec. 21, 00929 See Kenneth Arrow, Bert Bolin, Robert Costanza, et al., “Economic Growth, Carrying Capacity, and the Environment”, published in SCIENCE, Vol. 268 April 199530 Ibid at www.precaution.org/lib/06/econ_growth_and_carrying_capacity.pdf
22
therefore represent a significant portion of the total economic value of the
planet.31
89. Because these services are not fully captured in markets or
adequately quantified in terms comparable with economic services and
manufactured capital, they are often given too little weight in policy decisions.
This neglect may ultimately compromise the sustainability of humans in the
biosphere. The economies of the earth would grind to a halt without the services
of ecological life support systems, so in one sense their total value to the
economy is infinite.32
90. Public respondent DENR’s omission in putting into effect the statutory
principle on carrying capacity in its IRR of the Mining Law has bred untrammeled
abuse in the law’s implementation. There is therefore this urgent necessity to
command it to incorporate this principle into its rules and conscientiously apply it
in its implementation of the mining law.
91. Meantime that this is not done, all mining applications and activities
must be judicially enjoined not only in Zamboanga Peninsula but the entire
country as all these tenements are issued or will be issued with grave abuse of
discretion.
VII. Respondents Ultra Vires Policies Violated the Principle of Non Regression
92. The principle of standstill or “status quo” in environmental law (known
as “non regression” in French) prevents public authorities from modifying or
abolishing existing legislations if to do so would diminish the protection of the
environment.33
93. This principle is needed today as environmental law is facing a number
of threats such as deregulation, a movement to simplify and at the same time
diminish environmental legislations perceived as too complex, and an economic
climate which favors development at the expense of the protection of the
environment.34
31 Robert Costanza, et al. “The value of the world’s ecosystem services and natural capital”, published in NATURE, Vol. 387 (15 May 1987) 32 Ibid33 De L‟urgente Nécessité De Reconnaître Le Principe De "Non Régression" En Droit De L‟Environnement by Michel Prieur, Professeur émérite à l‟Université de Limoges IUCN Academy of e-journal, issue 2011 (1)34 Ibid
23
94. There are three theoretical bases of this principle, to wit: a) the
purpose of environmental law itself which is not simply to regulate the
environment but to prevent its degradation as well as the depletion of natural
resources; b) for the sake of future generations, environmental law must be an
exception to the rule that legislators can always change the law; c) as for social,
economic and cultural rights, States must constantly strive to enhance the
protection of the right to a healthy environment.35
95. Environmental law is a set of norms that are interdependent from one
another. The concept of standstill protects this complex, fragile and fundamental
construct.36
96. The policies being pursued by public respondents DENR and MGB are
clearly regressive of the advances being already achieved in the field of
environmental protection and conservation.
97. While we have environmental regulatory and conservation laws
already in place like NIPAS, Wildlife law, Fisheries laws provision on marine
sanctuary, among others, here we have public respondents at the other end of
the spectrum rendering nugatory these laws by sanctioning indiscriminate mining
in this country.
98. While this Apex Court has already laid down rules of procedure to
address environmental injustice, here we have public respondents at the other
end of the scale trampling the people’s right to ecology.
99. If we are to effectuate the ruling in Oposa v. Factoran yoking upon this
generation the duty to conserve and pass on to the next generations in much
better condition whatever environmental dividends enjoyed today, then public
respondents must be restrained from infringing into our rich biodiversity areas just
for the sake of finding that proverbial pot of gold (and copper, iron, nickel,
chromite too).
BY WAY OF ISSUANCE OF A TEMPORARY PROTECTION ORDER
Petitioners replead, mutatis mutandis, their foregoing allegations. They
further state that:
35 Ibid36 Ibid
24
100. Public respondents are running amuck in processing and issuing left
and right mining tenements in Zamboanga peninsula and the rest of the country
without the slightest regard to the carrying capacity of the affected areas.
101. Hence, there is extreme urgency to enjoin them from continuing with
their environmentally regressive and reckless mining policies by way of issuance
of a Temporary Environmental Protection Order to be effective until such time
when well-meaning environmental safeguards against mineral extraction are
promulgated and applied realistically on the ground.
102. Allowing respondents to carry on with their environmentally reckless
policies would surely result into grave and irreparable damage to the health of
petitioners and those they represent and the integrity of the natural environment.
103. In resolving this application for TEPO, petitioners invoke the principle
of precaution. As already shown in the foregoing, respondents’ unsustainable
activities present a clear and present danger to human life or health, inequity to
the present and future generations and prejudice the environment in utter
disregard to the ecological rights of petitioners.
104. In support to this application, petitioners submit and attach their
affidavit proving grave and irreparable damage that may be caused or will likely
cause them by reason of respondents’ acts or omissions, copy is attached as
Annex Q hereof.
BY WAY OF ISSUANCE OF A WRIT OF CONTINUING MANDAMUS
Petitioners replead, mutatis mutandis, their foregoing allegations. They
further state that:
105. The present mining policies observed and implemented by public
respondents are abjectly insufficient in protecting petitioners’ right to a
balanced and healthful ecology in accord and rhythm of the harmony of
nature. Hence, there is urgent need to issue a writ of continuing mandamus.
106. For public respondent DENR to submit before this Apex Court an
acceptable draft of the amendment of its implementing rules and regulations of
Republic Act No. 7942 defining or incorporating the statutory term ‘carrying
capacity’ and providing for its effective implementation.
25
107. For public respondent PAWB to conduct a comprehensive
nationwide survey detailing the key biodiversity areas or protected areas that
are being affected by or overlapped with mining applications and tenements
and submit such report to this Apex Court.
108. For public respondent MGB to submit to this Apex Cout all the names,
addresses of all applicants or holders of mining tenements in Zamboanga
peninsula and the status thereof as well as a comprehensive report on all
environmental transgressions committed by existing and operating mining
companies in the Philippines and the corresponding sanctions or curative actions
undertaken to restore or rehabilitate the affected environment.
109. For public respondent NCIP to submit to this Apex Court: (a) all its
issued certifications on free, prior and informed consent to mining companies
and the circumstances of their allowance; (b) complete list of ancestral domains
in the Philippines, whether delineated, issued with CADT or not; and (c) the
names of ICCs in the Philippines, the areas where they populate, and their
current demography.
BY WAY OF REQUEST FOR A SEPARATE ADMINISTRATIVE INVESTIGATION ON THE ACTUATIONS OF JUDGE ERNESTO LAUREL OF THE
REGIONAL TRIAL COURT OF AURORA, ZAMBOANGA DEL SUR
Petitioners hereby replead their allegations in paragraphs 28 to 46 and
further state that:
110. Judges must adhere to the highest tenets of judicial conduct. They
must be the embodiment of competence, integrity and independence. Like
Caesar’s wife, a judge must not only be pure but above suspicion. The people's
confidence in the judicial system is founded not only on the magnitude of legal
knowledge and the diligence of the members of the bench, but also on the
highest standard of integrity and moral uprightness they are expected to
possess.37
111. A judge may not be legally prohibited from sitting in a litigation. But
when suggestion is made of record that he might be induced to act in favor of
one party or with bias or prejudice against a litigant arising out of circumstance
reasonably capable of inciting such a state of mind, he should conduct a
careful self-examination. He should exercise his discretion in a way that the
people’s faith in the courts of justice is not impaired. A salutary norm is that he
reflects on the probability that a losing party might nurture at the back of his
37 Avancena v. Judge Liwanag, per curiam, A.M. MTJ-01-1383, July 17, 2003
26
mind the thought that he had unmeritoriously tilted the scales of justice against
him.38
112. Respondent Presiding Judge of the Regional Trial Court Branch 30,
Aurora, Zamboanga del Sur violated the foregoing tenets and the Code of
Judicial Conduct.
113. Canon 1 of the Code mandates that a Judge should uphold the
integrity and independence of the Judiciary. He should be the embodiment of
competence, integrity and independence.
114. The conversion of an injunction case filed by MSSON Mining against
the members of Petitioner ASIN into a special civil action of writ of continuing
mandamus and the consequent denial of their motion for reconsideration
bespeak of gross incompetence and ignorance of the rules on the part of the
respondent Judge. This procedural lapse is very patent since defendants therein
are not even connected with the government.
115. Subsequent rulings handed down by respondent Judge also
demonstrate lack of knowledge, intentional or otherwise, of the Environment
Rules.
116. As for instance, his denial of the SLAPP defense by defendants in that
Aurora injunction case is inconsistent with Sec. 2 Rule 6 view that petitioner
members of ASIN had surmounted the threshold in Sec. 3 thereof by substantially
proving that their acts of picketing the ingress into the protected forest reserve is
a legitimate exercise of their right and duty to protect and preserve the subject
forested area which has been illegally opened for mineral exploration.
117. When respondent Judge issued in a frenetic pace the series of
provisional orders of TROs and Preliminary Injunction despite the doubtful claim of
MSSON Mining, he in effect blatantly disregarded the primordial objective of the
rules which is to protect and advance the constitutional right of the people to a
balanced and healthful ecology. He did all of these questionable Orders despite
the mandate in the Rules that he should apply the precautionary principle in
dealing with the issues confronting him and to be bias instead to petitioner
members of ASIN’s constitutional right to a balanced and healthful ecology by
giving such claim the benefit of the doubt.
38 Alejo, et al. v. Judge Pestano-Buted, G.R. Nos. 154150-51, Dec. 10, 2007
27
118. Respondent RTC Branch 30 Judge of Aurora, Zamboanga del Sur is
not the epitome of integrity and independence. The transcript of stenographic
notes will bear out his suspiciously too accommodating of MSSON Mining. He is
very harsh upon petitioner Paulino Alecha when the latter was unceremoniously
ejected from the Court during the June 7, 2011 hearing after the latter answered
‘Yes’ in a rather high tone of voice to a barking warning from respondent Judge.
119. Yet respondent Judge did not even lift a finger to sanction MSSON
Mining’s Manager when the latter challenged counsel and defendants therein
to a fist fight while he was in the witness stand on June 6, 2011.
120. His bias to said mining company in that Aurora case was all too
manifest where he did not even rule on the allegations of forum shopping done
by MSSON mining where the latter had filed earlier criminal cases against the
same defendants in the said injunction case.
121. Respondent Judge refused to stay his injunction case despite the rule
on the primacy of criminal cases earlier filed properly invoked by defendant
therein. Worse still, he refused to voluntarily inhibit himself from further handling
the case despite their most respectful request due to his clear favoritism to
MSSON Mining.
122. And worse still, he shamelessly ‘rewarded’ defendants’ valid requests
for suspension of that injunction case and for his voluntary recusal with whimsical
issuances of the questioned preliminary injunctive writs despite pendency of the
incidents of demurrer and of their opposition to plaintiff’s application for these
provisional writs.
123. Worst of all, respondent Judge has utilized the environmental rules
when he sees convenient for plaintiff mining company, like the rule on speedy
disposition, but like a chameleon, reverts back to the regular Rules of Court when
he deems fit to issue the questioned injunctive writs.
CONCLUDING STATEMENT
The biggest threat now to our remaining forests and terrestrial ecosystems
comes from mining. With the looming adverse impacts brought about by climate
change, the Philippines will be doubly vulnerable.
Thanks but no thanks to the turn-around ruling in La Bugal. Public
respondents shamelessly view it as a green light to promote with more impunity
28
this extractive industry destructive of the ecology. Mining companies are now
even more than emboldened to rush to every nook and cranny of this country to
get a share of this nature’s hidden wealth. Said this Court in its obiter dictum in
La Bugal:
“Whether we consider the near term or take the longer view, we cannot overemphasize the need for an appropriate balancing of interests and needs -- the need to develop our stagnating mining industry and extract what NEDA Secretary Romulo Neri estimates is some US$840 billion (approx. PhP47.04 trillion) worth of mineral wealth lying hidden in the ground, in order to jumpstart our floundering economy on the one hand, and on the other, the need to enhance our nationalistic aspirations, protect our indigenous communities, and prevent irreversible ecological damage.”
The preceding view, with due respect is waywardly misplaced. The
estimated value of Php47 trillion of these buried minerals cannot even be worth
the irreversible ecological damage that will be endured for generations to
come. The inhabitants of Easter Island believed in this economic theory five
centuries ago and their island became a wasteland?
After five years of intensive mining operations re-triggered by La Bugal, the
mining industry has contributed only 0.5% of the country’s employment and 1.3 %
of the Philippines GDP. Other industries like tourism and IT surprisingly fared much
better.
This obiter in La Bugal is very disturbing, to be polite about it. It continues to
cling on to the hackneyed dichotomy that the economy and the environment
are separate. This old mindset of the previous Court is totally opposed to the
present thinking of this Apex Court as it writes in its rationale to the Rules of
Procedure for Environmental Cases that:
“Whether based on scientific evidence or mere observation, environmental destruction has slowly gained worldwide attention. Prerogative to slow down the effect of an anthropocentric approach resulted in more ecologically-favorable approaches to environmental protection. The discipline of ecology is based on the interconnectivity and interdependence between organisms and elements of the environment. An appreciation of this link between all elements of living things and nature would naturally instill a sense of urgency to protect our ecosystems. Without such protection, the endangerment of the ecosystems would correlate to the endangerment of humankind. Conversely, its protection would benefit man and his ability to survive and sustain in the world.”
Petitioners say amen to that!
29
PRAYER FOR RELIEF
WHEREFORE, premises considered, petitioners most respectfully pray of the
Honorable Supreme Court that:
1. Upon the filing hereof, a writ of kalikasan will be issued commanding
respondents to file their respective returns and explain why they should
not be judicially sanctioned for violating or threatening to violate or
allowing the violation of the above-enumerated environmental laws
and principles or committing acts which would result into
environmental damage of such magnitude as to prejudice the life,
health or property of the inhabitants of Zamboanga Peninsula;
2. Upon the filing hereof, a Temporary Environmental Protection Order will
be issued: (a) enjoining public respondents DENR and MGB from
processing, entertaining all pending as well as new applications for
mineral agreements or FTAAs anywhere in the Philippines; and (b)
stopping all mining operations in the Zamboanga peninsula, including
the mineral exploration of MSSON Mining in Midsalip’s forest reserve or
watershed area until all environmental concerns raised by petitioners
are sufficiently addressed.
3. Upon the filing hereof, issue a writ of continuing mandamus
commanding:
a. DENR to submit an acceptable draft of the amendment of its
implementing rules and regulations of Republic Act No. 7942
defining or incorporating the statutory term ‘carrying capacity’
and providing for its effective implementation;
b. PAWB to conduct a comprehensive nationwide survey detailing
the key biodiversity areas or protected areas that are being
affected by or overlapped with mining applications and
tenements and submit progress reports thereon;
c. MGB to submit all the names, addresses and material particulars
of all applicants or holders of mining tenements in Zamboanga
peninsula and the status thereof and a comprehensive report
on all environmental transgressions committed by existing and
operating mining companies in the Philippines and the
corresponding sanctions or curative actions undertaken to
restore or rehabilitate the affected environment; and
d. NCIP to submit all its issued certifications on free, prior and
informed consent to mining companies and the circumstances
of their allowance; the complete list of ancestral domains in the
30
Philippines, whether delineated, issued with CADT or not; and
the names of all ICCs in the Philippines, the areas where they
populate, and their current demography.
4. After hearing, cancel all mining applications and tenements in
Zamboanga peninsula that are found to be violating the above-
mentioned environmental laws and principles, special mention the
MPSA issued to GAMI as assigned to MSSON Mining.
5. After hearing and judicial determination, order all conservation priority
areas in the Philippine to be proclaimed as protected areas and
recommend to Congress fiscal and curative legislation to effectuate
such order.
6. Other just and equitable reliefs are likewise prayed for.
Cebu City, Philippines, 21 July 2011.
BENJAMIN A. CABRIDO JR.Counsel for Petitioners
G/F Pueblo Aznar Uno Building M. J. Cuenco Ave. Cor. Maxilom Ave., 6000 Cebu CityIBP No. 823439/01-03-11/Cebu City
PTR No. 0853604/01-03-11/Cebu CityRoll of Attorneys No. 48949
a. Gloria Estenzo-Ramos, of legal age, married, Executive Director of Phil. Earth Justice Center Inc. and resident of Banilad, Mandaue City;
b. Felix B. Unabia, of legal age, married, Chairman of Alliance to Save the Integrity of Nature and resident of Midsalip, Zamboanga del Sur;
c. Ricardo Tolino, of legal age, married, President of Kesalubuukan Tupusumi Organization and resident of New Katipunan, Midsalip, Zamboanga del Sur;
d. Mario Catanes, of legal age, married, member of Petitioner ASIN, former President of Kesalabuukan Tupusumi Organization and resident of Sigapod, Midsalip, Zamboanga del Sur;
e. Wilma A. Tero, of legal age, single, member of Kesalabuukan Tupusumi Organization and resident of Timbaboy, Midsalip Zamboanga del Sur;
f. Manuela A. Pateño, of legal age, married, former President of Kapunungan sa mga Bakwiter sa Midsalip and resident of Guinabot, Midsalip, Zamboanga del Sur;
31
g. Timoay Barlie Balives, of legal age, married, Timoay of Duelic, Midsalip, Zambaonga del Sur and resident thereof;
h. Danilo O. Eranga, of legal age, married, Program Coordinator of Sustainable Agriculture Program for Subaanen Ministry and resident of Midsalip, Zamboanga del Sur;
i. Jesus Catamco, of legal age, married and resident of Midsalip, Zamboanga del Sur;
j. Paulino Alecha Sr., of legal age, married and resident of Midsalip, Zamboanga del Sur;
k. Sultan Maguid A. Maruhom, of legal age, married, Executive Director of UMMA FI SALAM and resident of Tiguma, Pagadian City;
l. Timoay Lucenio M. Manda, of legal age, married, Barangay Captain of Conacon, Bayon, Zamboanga del Sur and resident thereof;
m. Gualberto F. Largo, of legal age, married, Coordinator of Social Action Ministry of Ipil Parish, Ipil, Zamboanga Sibugay and resident thereof;
n. Daniel C. Castillo, of legal age, married and resident of San Jose, Siay, Zamboanga Sibugay;
o. Jerry S. Espinas, of legal age, married, member of the Sangguniang Bayan of Sindangan, Sindangan, Zamboanga del Norte and resident thereof;
p. Bishop Jose Recare Manguiran, DD, of legal age, archbishop of Dipolog Diocese, Sicayab, Dipolog City, Zamboanga del Norte and resident thereof; and
q. Fr. Arsenio Marane, of legal age, parish priest of Ramon Magsaysay Parish, Ramon Magsaysay, Zamboanga del Sur and resident thereof -
all of us swearing in according to law, depose and state that:
1. I, Gloria Estenzo-Ramos is the duly authorized representative of Petitioner Phil. Earth Justice Center Inc. pursuant to the authority given me by its Board of Trustees as attached;
2. I, Felix B. Unabia is the duly authorized representative of Petitioner Alliance to Save the Integrity of Nature pursuant to a resolution of its Board of Directors as attached;
3. I, Ricardo Tolino, is the duly authorized representative of Petitioner Kesalubuukan Tupusumi Organization pursuant to a resolution of its Board of Directors as attached;
4. All the rest of us, in our personal capacities and in representation of above-named non-government organizations/entities, are the petitioners in this special civil action for a writ of kalikasan who are so numerous that it would be impracticable to have us all appear before the Honorable Supreme Court;
5. We have caused the foregoing to be prepared and filed; read all the allegations contained therein; and found them to be true and correct to our personal knowledge or based on authentic documents;
6. We have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals or any other tribunal or agency; and to the best of my knowledge, no such action or proceeding is pending in the said courts, tribunal or agency; and should we thereafter learn of such fact, we will notify the Honorable Court within five (5) days from such notice
IN WITNESS WHEREOF, We have hereunto set our hand this ____________________ at Pagadian City for Cebu City, Philippines.
32
GLORIA ESTENZO-RAMOS FELIX B. UNABIA RICARDO TOLINO
MARIO CATANES WILMA A. TERO MANUELA A. PATENO
BARLIE BALIVES DANILO O. ERANGA JESUS CATAMCO
PAULINO ALECHA SR. FR. ARSENIO MARANE SULTAN MAGUID MARUHOM
TIMOAY LUCENIO M. MANDA GUALBERTO F. LARGO DANIEL CASTILLO
JERRY S. ESPINAS BISHOP JOSE RECARE MANGUIRAN, DD
SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public in the City of Cebu, this ___ day of ______________, 2011 by all the affiants who are personally known to me being my clients in this case.
Doc. No. ____Page No. ___Book No. ____Series of 2011
