SC upholds Palace authority over Diwalwal mines

First posted 06:58am (Mla time) June 27, 2006
By Leila Salaverria
Inquirer, INQ7.net

http://news.inq7.net/archive_article/index.php?ver=1&index=1&story_id=6830

THE SUPREME COURT has ruled that the executive branch has full control of the mining operations in the Diwalwal Mineral Reservation Area.

Several mining corporations had staked a claim on the area, but the high court said these claims were rendered moot with the issuance of Proclamation 297 in 2002, which declared 8,100 hectares in Monkayo town, Compostela Valley province, as a mineral reservation and an environmentally critical area.

After the proclamation was issued, the environment secretary declared an emergency in the Diwalwal gold rush area and had mining operations stopped.

“The issue on who has priority right over the disputed area is deemed overtaken by the above subsequent developments,” the Supreme Court said in its 32-page decision authored by Associate Justice Minita Chico-Nazario. “It is now up to the executive department whether to take the first option, i.e., to undertake directly the mining operations of the Diwalwal Gold Rush Area.”

The high tribunal also said that the state could not be stopped from directly taking over the mines “if it is the only plausible remedy in sight to the gnawing complexities generated by the gold rush.”

The government could also award the mining operations to private entities, including Apex Mining Company and the Balite Communal Portal Mining Cooperative that earlier said they had rights over the area, the Supreme Court ruled. “The exercise of this prerogative lies with the Executive Department over which courts will not interfere.”

Apex said it had rights over the Diwalwal gold rush area over Marcopper Mining Corporation (MMC) or its subsidiary, Southeast Mindanao Gold Mining Corporation (SEM), since Apex was the first to record mining claims in the area.

Nevertheless, MMC had been granted an exploration permit for the area.
Balite, on the other hand, said its presence in the small-scale mining areas had entitled it to file a mineral production sharing agreement (MPSA). It added that its application for an MPSA should be given preference over that of SEM.

Meanwhile, the high tribunal partially reversed a decision of the Court of Appeals in March 13, 2002, which voided the transfer of the MMC’s Exploration Permit No. 133 in Mt. Diwalwal to SEM in February 1994.

The transfer was void because the permit was for the exclusive use of MMC or its duly authorized agents. The high court said SEM had not proven that it was MMC’s duly authorized agent.

“SEM did not claim nor submit proof that it is the designated agent of MMC to represent the latter in its business dealings or undertakings. SEM cannot, therefore, be considered as an agent of MMC which can use EP 133 and benefit from it,” the decision read.

The Supreme Court also said the exploration permit had expired on July 1994 and could not be renewed.
But the high tribunal upheld the appellate court’s finding that the Department Administrative Order (DAO) 66 issued in 1991 by former Environment Secretary Fulgencio Factoran Jr., declaring 729 hectares of the Agusan-Davao-Surigao Forest Reserve as open to small-scale mining, was illegal.

“The power to withdraw lands from forest reserves and to declare the same as an open area for mining operations resides in the President,” the Supreme Court said.

With a report from Tetch Torres, INQ7.net