Will Tampakan operator file case vs S. Cotabato ban?

MANILA, Philippines – Sagittarius Mines Inc. (SMI), the local partner of Swiss mining firm Xstrata in the Tampakan copper-gold project, may opt to file a case invalidating the open-pit mining ban imposed by the South Cotabato provincial board, Business Mirror reported.

This after the DOJ issued an opinion that said the ban was essentially in conflict with national laws.

On November 29, the DOJ issued Mermorandum Circular 2012-181 that states “the power of local government units to pass ordinances and resolutions is merely a delegated power coming from Congress and that ordinances should not contravene an existing statue enacted by Congress.”

The Philippine Mining Act of 1995 allows open-pit mining, which the South Cotabato board, in turn, disallowed in the province. However, the Mining Act also allows local governments to pass its own ordinances, an issue which the mining policy enacted by the Aquino administration tries to address.

DOJ issued the opinion upon the request of the Department of the Interior and Local Government (DILG).

DILG, as stipulated in Section 12 of Executive Order 79 or the mining policy, is the government agency assigned to ensure consistency between national and local laws.

Business Mirror quoted two senior members of the South Cotabato board, Agustin Dema-ala and Ernesto Catedral, as saying they respect the DOJ opinion.

“We respect the opinion of the DOJ and we will support the actions of the governor in response to this opinion,” Dema-ala said in the report.

Catedral further added that incumbent South Cotabato Governor Arthur Pingoy will “respect the law and will not implement the ordinance if it has been deemed invalid.”

Option to file a case

The circular released by DOJ allows DILG or SMI to go to court and file a case to invalidate the mining ban.

Catedral, chairman of the committee on environment and legal concerns, acknowledged this and said the court should decide.

“We will let the courts decide once a case is filed against the province,” Catedral was quoted as saying by the Business Mirror report.

The ban, instituted by the South Cotabato board, halted the operations of the $5.9-billion Tampakan copper-gold mining project in Mindanao, dubbed as the biggest, single foreign investment in the country once operation starts.

Rappler is still waiting for SMI’s comment regarding the DOJ opinion, as well as the probability of the company filing a case to invalidate the provincial ban.

ECC, indigenous people, new revenue scheme

Despite this glimmer of hope, SMI still needs to hurdle a lot more obstacles before full operation of the mine site can commence.

Earlier this year, Department of Environment and Natural Resources – Mines and Geosciences Bureau (DENR-MGB) denied the company’s application twice for an Environmental Clearance Certificate (ECC). DENR-MGB cited the provincial mining ban as the reason for the rejection of SMI’s application.

An ECC is required for mining operations to commence.

SMI also needs to reaffirm its stand regarding local community issues involving indigenous peoples (IPs). This is following the recent killing reported in the mining site that saw several members of the B’laan tribe killed.

Another issue that SMI needs to address is its fiscal regime involving taxation. The company insists on implementing a windfall tax for the mining project that is inconsistent with the new mining law.

This Mining Industry Coordinating Council is proposing options in the revenue-sharing scheme. It will conduct consultations with different stakeholders including mining companies, business community and environment groups before finalizing the scheme. – Rappler.com