By Janina C. Lim

Lopez on legal challenge by miners: ‘Do it.’

Posted on November 01, 2016

THE Department of Environment and Natural Resources (DENR) said it is unfazed by a legal battle with miners in the wake of facing its first court case that challenges the government’s nationwide crackdown on illegal mining.

“We’re following the law. You’re gonna file a case against us for following the law? Do it. We’re not gonna lose,” Environment Secretary Regina Paz L. Lopez said in an interview with reporters last week.

Ms. Lopez was responding to a question, based on an industry official’s statement, about another miner who may follow after BenguetCorp Nickel Mines, Inc. (BNMI), which went to court on the heels of the DENR order stopping its nickel project in Sta. Cruz, Zambales.

Ronald V. Recidoro, the Chamber of Mines of the Philippines’ vice-president for its Legal and Policy division, had earlier said the miner, whose identity he declined to disclose, “has confirmed” plans to file charges against the DENR in connection with its September audit findings which has been mounting up dissatisfaction among miners.

BNMI, a subsidiary of listed Benguet Corp., became the first to elevate a dispute against the agency’s mining crackdown when it filed before the Pampanga Regional Trial Court a petition for certiorari with injunction on Oct. 22 “to assail” the suspension order jointly issued by the DENR’s Central Luzon offices, the Mines and Geosciences Bureau (MGB) and the Environmental Management Bureau.

The firm said the government’s order to suspend its nickel project, which has been non-operational for four months now, was issued “with grave abuse of discretion, in an arbitrary manner, without due process.”

“We were suspended before the conduct of an audit,” Ma. Anna G. Vicedo-Montes, assistant vice-president for Corporate Communications and Special Projects of parent firm Benguet Corp., said in an e-mail interview last week.

Ms. Lopez countered that the DENR, as part of its mandate, may deem it fit, on valid grounds, to stop a miner’s operation.

“They totally killed the environment. They cut 20,000 hectares of trees without a permit. The river is red. The community is so upset with them. You should say sorry instead of filing a case,” Ms. Lopez added.

She also cited a Writ of Kalikasan with a prayer for temporary environmental protection order (TEPO) against the firm as well as Zambales Governor Amor P. Deloso’s earlier issued order mandating the immediate stoppage and moratorium on all mining operations in the province.

Ms. Vicedo-Montes, for her part, said the Writ Ms. Lopez referred to “has not been heard/tried and no TEPO has been granted before BNMI was suspended.” Mr. Deloso’s order, on the other hand, “has no jurisdiction [on] the operation of any mine” and as such is “technically” under the purview of the Mines and Geosciences Bureau, Ms. Vicedo-Montes said.

To recall, BNMI and another nickel miner in Zambales were suspended in July following complaints on the alleged environmental impacts of the miner’s operation.

The suspension remains in place until the firms resolve issues regarding tree-cutting and earth-balling, the completion of an exclusive mine haul road, and the full rehabilitation of all mined-out and open areas.

DENR Officer-in-Charge and Undersecretary for Legal Affairs Maria Paz G. Luna told BusinessWorld on Thursday their office has not received the said petition but expressed confidence that the agency’s acts during the audit have been “above-board.”

“I will check what their allegations are and I will verify. I think if we made a mistake we’re very willing to correct our mistakes,” Ms. Luna said.

This was not the first time government halted BNMI’s mine operations. To recall, MGB ordered the suspension of BNMI and other miners in Zambales in 2014. The order stemmed from the said mines’ failure to meet standards of regulatory evaluation of their operations. Residents at the time were complaining of nickel siltation in their rivers, farmlands, fishponds and seashores.

Next year, however, regional government agencies lifted the moratorium on the Zambales nickel miners which was to be reinstated when Ms. Lopez assumed office.

Ms. Lopez was among the Cabinet officials bypassed late October by the Commission on Appointments.

Through its legal action, BNMI told the stock exchange last week that it aims “to prove that despite its full compliance with remediation conditions under the previous Lifting Order dated Aug. 24, 2015, the said regional government agencies unjustifiably refused to reverse the Suspension Order.”

Despite the differences with BNMI, Ms. Lopez also cited the company’s efforts in being “very cooperative” in the rehabilitation of their mine.

BNMI sold 373,300 tons of nickel ore from its April to June operations this year with an average price of $20.27/ton versus 588,910 tons of the ore at an average price of $27.73 for the same quarter last year.

During the first half of the year, BNMI shipped 778,485 tons of nickel ore, well below the 1.28 million tons of nickel output in the first semester last year. The lower volume coupled with depressed prices of nickel during the period resulted in a net loss of P76.7 million for BNMI in the January to June period.

The DENR has sent out show-cause letters along with its audit findings report to all miners, including the 10 suspended ahead of the audit, who are expected to respond in seven days after receipt. Ms. Lopez said a final decision should be made first week of November.

The audit named 20 more mines whose operations may be halted. The 30 metal mines, either suspended or recommended for suspension, make up nearly three-fourths of the country’s 41 metal mines and accounted for 55.5% of the country’s total nickel ore production last year.