Tinigil na ng Barrick ang sumemplang na negosasyon sa Nevada case; hiniling na ituloy ang naudlot na pagdinig sa kaso

June 30, 2014 naghain ang Barrick Gold sa Supreme Court of Nevada ng status report at kahilingang ihinto na ang negosasyon, na ayon sa mga lokal na pamahalaan ng Marinduque ay isang kasunduan na hindi nila kayang lunukin. Sa kabila ng mga pananalitang binibitiwan ng ilang mga miyembro ng Sangguniang Panlalawigan ng Marinduque na ang kasunduan ay "isinuka na" noon pang Oktubre 2013, nanatiling aktibo ang ilang kinauukulan sa pamahalaang panlalawigan ng Marinduque, maging ilang mga tanggapang nasyunal at mga abogado ng pamahalaan upang maisulong pa rin ang nasabing kasunduan sa gitna ng mga protesta.

Ayon sa nabanggit na binitiwang kahilingan ng Barrick sa Korte ng Nevada, "bagamat ang mga partido ay nakipagnegosasyon ng walang masamang hangarin sa loob ng nakalipas na dalawang at kalahating mga taon, hindi nila nagawang makarating sa isang kasunduan tungkol sa settlement". ("although the parties have negotiated in good faith over the past two and one-half years, they have been unable to reach agreement on settlement.")

Dahil dito hiniling ng Barrick sa Korte na iwanan na ang proseso ng pansamantalang paghihinto sa kaso na naging daan para makapag-usap ang mga partido, at ituloy na ang pagdidinig sa kaso.("For this reason, the respondents request the Court to vacate the stay, restore this appeal to the Court’s active calendar, and schedule the
completion of briefing so that this appeal may proceed to conclusion."

Sumusunod ang pahayag ni Konsehal Myke Magalang hinggil sa pinakahuling balitang ito:

IPAGDIWANG ANG TAGUMPAY @NEVADA CASE SETTLEMENT NEGO FAILED!

Updated 11 hours ago

Sa pinakahuling pagsusumite ng Lalawigan ng Marinduque ng Status Report sa Korte Suprema ng Nevada kaugnay sa negosasyon nito sa Barrick Gold kaugnay sa settlement agreement, sinabi nito na hindi na sila hihingi pa ng palugit para sa pagpapatuloy ng negosasyon. Sa katulad namang dokumentong isinumite ng Barrick Gold, hiniling nitong tapusin na ang negosasyon sapagka't hindi nito nakamit ang anumang kasunduan. Hinihintay na lamang natin ang pinal na desisiyon ng Korte upang tuluyan nang ipinid ang pinto ng negosasyon.

Ang magiging implikasyon nito, haharapin ng Lalawigan ang apela nito hinggil sa pag-dismiss sa kasong isinampa laban sa Barrick Gold na dinisisyunan noong Pebrero 2011 at ganito ang sinasabi ng Korte:

1. Barrick’s Motion to Dismiss on the Ground of Forum Non Conveniens is hereby GRANTED. As forum non conveniens is an equitable remedy, and to insure that equality is done, the dismissal of the case is conditioned on Defendant’s performance of certain acts that Defendants represented they would undertake. These conditions are as follows:

a. Defendant’s consent to jurisdiction in either British Columbia or Ontario on claims that arise out of same general facts as the instant suit;
b. Defendant’s waiver of any statute of limitations defense that may be available to them in either British Colombia or Ontario that did not exist on the filing date of this lawsuit;
c. Defendant’s agreement not to raise any forum non conveniens issues or defenses in either the British Columbia or Ontario courts; and
d. Defendant’s stipulation that both damages and injunctive relief are available in the courts of British Colombia and Ontario;

2. The Province’s Cross-Motion for Conditioned Dismissal in Favor of a Philippine Forum is DENIED.
3. Barrick’s Motion for Stay is DENIED AS MOOT.
4. The Province’s Motion for Rule 16 Conference is DENIED AS MOOT.
5. The Province’s Third Amended complaint is DISMISSED WITHOUT PREJUDICE in its entirety.

Anumang kahinatnan ng apela, paghahandaan naman ang susunod na yugto ng kaso upang ipagpatuloy ito para kamtin ang katarungan para sa lalawigan, mamamayan at kalikasan. Pag-uusapan kung saan ito didinggin: Pilipinas ba o Canada?

Ang nakaraang karanasan sa settlement negotiation ay isang hamon sa lahat na maging bukas ang mga konsultasyon at diskusyon upang kasabay ang mamamayan sa anumang desisyon ng pamahalaan.

Sa panig ng Sangguniang Bayan ng Boac, maraming salamat po sa mga kasamang Sanggunian ng bayan ng Buenavista, Gasan at Mogpog sa inyong ibayong suporta sa aming inisyatibang Resolusyon; gayundin sa mga Liga ng mga Barangay ng Boac, sa direkta at hayagang suportang ipinagkaloob sa aming paninindigan nina Bokal Tet at Bokal Mark, sa kalipunang sibil at mga kaibigang NGOs sa Kamaynilaan, sa pagsasapubliko ng aming paninindigan sa pamamagitan ni Eli Obligacion, at sa lahat ng mamamayang Boakenyo na nagtiwala't nagpalakas sa aming paninindigan upang labanan ang hindi makatarungang mga termino at kundisyon ng settlement agreement ng Barrick Gold.

Salamat din po sa Pamahalang Lalawigan ng Marinduque at sa Sangguniang Panlalawigan sa inyong matamang pakikinig sa aming tinig. Mabuhay ang nagkakaisang tining ng Marindukenyo.

Nasa ibaba naman po ang aming pinakahuling Resolusyon na aming pinagtibay noong Hunyo 17, 2014:

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RESOLUTION NO. 2014-081: RESOLUTION URGING THE PROVINCIAL GOVERNMENT OF MARINDUQUE AND THE SANGGUNIANG PANLALAWIGAN OF MARINDUQUE TO TERMINATE THE NEGOTIATIONS WITH BARRICK GOLD CORPORATION AND PLACER DOME, INC. IN RELATION TO THE PROPOSED SETTLEMENT AGREEMENT ON THE NEVADA CASE, EXPLORE OTHER FORUMS OR VENUES TO PURSUE JUSTICE AND OBTAIN REMEDIES THAT ARE ADVANTAGEOUS TO THE PEOPLE AND THAT WOULD FOCUS ON THE HEALTH AND LIVELIHOOD CONCERNS OF THE PEOPLE AND THE REMEDIATION AND/OR REHABILITATION OF THE MINING-IMPACTED ECOSYSTEMS OF MARINDUQUE, AND FOR OTHER RELATED PURPOSES

PRINCIPAL AUTHOR: HON. MIGUEL R. MAGALANG
Chairperson: Committee on Good Government
CO-AUTHORS: Hon. Sonny L. Paglinawan, Hon. Benjamin M. Solomon I,
Hon. Luisito S. Laylay, Hon. Aurelio J. Leva III, Hon. Rolando M. Larracas
Hon. Carlos M. Palomares, Hon. Bernadine E. Opis-Mercado

WHEREAS, the municipality of Boac through this august Body, as a primary stakeholder to the ‘parens patriae’ civil case or damage suit filed by the province of Marinduque against Placer Dome, Inc. and Barrick Gold Corporation in Nevada, U.S.A., has officially manifested its collective position on the proposed settlement agreement related to the case as can be gleaned from the below-listed Resolutions, and that this official position was strongly supported by the sixty-one (61) barangays of the municipality, the Sangguniang Bayan of the municipalities of Buenavista, Gasan, and Mogpog as well as by civil society organizations, as we hereby strongly reiterate the letters and intent of the said Resolutions:

RESOLUTION NO. 2013-100 – RESOLUTION EARNESTLY REQUESTING THE SANGGUNIANG PANLALAWIGAN OF MARINDUQUE TO RENEGOTIATE THE TERMS AND CONDITIONS OF THE PROPOSED NEVADA CASE SETTLEMENT AGREEMENT OFFERED BY BARRICK GOLD IN RELATION TO CASE NO. CV-S-05-1299-BES-RJJ PER THIRD AMENDED COMPLAINT LODGED AT THE UNITED STATES DISTRICT COURT, DISTRICT OF NEVADA, UNITED STATES OF AMERICA AND ENSURE THAT SAID TERMS AND CONDITIONS ARE ADVANTAGEOUS TO THE PROVINCE AND THE PRESENT AND FUTURE GENERATIONS OF MARINDUQUEÑOS, dated December 18, 2013;

RESOLUTION NO. 2014-023 – RESOLUTION AMPLIFYING THE OFFICIAL POSITION OF THE EIGHTH SANGGUNIANG BAYAN OF BOAC IN RELATION TO THE PROPOSED NEVADA CASE SETTLEMENT AGREEMENT OFFERED BY BARRICK GOLD CORPORATION TO THE PROVINCE OF MARINDUQUE, REITERATING THE RECOMMENDATIONS CONTAINED IN RESOLUTION NO. 2013-100 DATED DECEMBER 18, 2013 AND FOR OTHER RELATED PURPOSES dated February 24, 2014; and,

RESOLUTION NO. 2014-028 – RESOLUTION FURTHER CONSOLIDATING AND GALVANIZING THE OFFICIAL POSITION OF THE EIGHTH SANGGUNIANG BAYAN OF BOAC IN RELATION TO THE PROPOSED NEVADA CASE SETTLEMENT AGREEMENT OFFERED BY BARRICK GOLD CORPORATION TO THE PROVINCE OF MARINDUQUE IN THE LIGHT OF NEW DEVELOPMENTS AND AMENDMENTS OFFERED BY BARRICK GOLD, REITERATING THE RECOMMENDATIONS CONTAINED IN THIS BODY’S RESOLUTION NO. 2013-100 DATED DECEMBER 18, 2013 AND RESOLUTION NO. 2014-023 DATED FEBRUARY 24, 2014 AND FOR OTHER RELATED PURPOSES, dated March 10, 2014.

WHEREAS, this august Body as well as the people of Boac have not been informed by the Province of Marinduque and the Sangguniang Panlalawigan of Marinduque, to date, on the development of the negotiations on the proposed settlement agreement even if the most recent Nevada Supreme Court Order of May 29, 2014 for the extension of the stay of the appeal for an additional 30 days will expire on June 30, 2014 within which period both Parties to the case are supposed to file their stipulated status report on the negotiations discussions;

WHEREAS, this august Body hereby reiterates the people’s feeling of being betrayed by the legal team, both foreign and local, which represent the Province in the said case for not giving due consideration to our official stance and recommendations as we await official answers to our Resolutions which we officially submitted to the Sangguniang Panlalawigan and the Office of the Provincial Governor;

WHEREAS, we also reiterate hereof that the terms and conditions of the proposed settlement agreement is unjust, unacceptable and unconscionable to the people of Boac and the amount of $20 Million offered by Barrick Gold is not comparable to the damages inflicted to the people and environment of the municipality and the province, and is far below the amount of $75 Million environmental clean-up fund Barrick has invested in its Pueblo Viejo mine which it acquired in the Dominican Republic and posted in its own website: (http://www.barrick.com/files/pueblo-viejo/Pueblo-Viejo-Environment-Water-Fact-Sheet.pdf) which provides the following information:

“At the Pueblo Viejo mine in the Dominican Republic, Barrick is remediating significant environmental damage left behind by a previous mining operation at the site, which closed in 1999 with no proper environmental reclamation.

“Before Barrick’s arrival, highly acidic, untreated water was seeping from the old mine site into local rivers. Today, all water from our operations is safely treated at a water treatment plant on site before being discharged into the Margajita River. Water processed on site is treated in accordance with Dominican government mining standards and International Finance Corporation (IFC) guidelines. The treatment process is closely monitored and controlled, and has already resulted in a vast improvement in the condition of the Margajita River. The river is returning to its natural color after flowing dark red for decades due to acid rock drainage (ARD) that was not properly treated by the mine’s previous operator. Sampling shows a marked decrease in the acidity of the river and there are early signs that aquatic life is returning to the river.
xxx
“Barrick acquired a majority interest in Pueblo Viejo in 2006 and manages operations at the mine through Pueblo Viejo Dominicana Corporation (PVDC), a joint venture in which Barrick holds a 60 percent interest, with Goldcorp holding the remaining 40 percent.
xxx
“Since acquiring control of Pueblo Viejo, PVDC has re-vegetated 3,500 hectares of land, built a large water treatment plant to treat water on site before discharging it into the Margajita River and, acting as an agent of the government, removed 180,000 cubic meters of contaminated soil left from prior operations.

“PVDC also agreed to provide $75 million to fund the clean-up of historical liabilities that are the responsibility of the Dominican government. The management plan for the clean-up phase is currently awaiting government approval.”

WHEREAS, on May 29, 2014, the House Committee on Natural Resources convened a Committee Meeting which included on its agenda the hearing on the Marcopper Disaster Update, which based on its official website: http://www.congress.gov.ph/commsched/schedule.php?d=28&m=05&y=2014 gave the following data:

“House Resolution No. 4: Urging the Department of Environment and Natural Resources (DENR) to immediately: (1) file a class suit against Placer Dome, Inc. and Marcopper Mining Corporation for the extensive damage it has caused to the Province of Marinduque and to the country's ecosystems; (2) enlist the support of U.N. agencies and environmentalist groups/NGOs to help them in successfully prosecuting this case; (3) issue an order to withhold Marcopper's operation or participation in the mining industry, if any, in the Philippines until said companies complete their rehabilitation of Marinduque; (4) disqualify Placer Dome, Inc., its affiliates and any company where Placer Dome, Inc. has an interest in, from any future participation in the mining operations by foreign mining companies in the Philippines pending the satisfaction of claims by the suit's petitioners and by the Philippine Government (Rep. Regina Ongsiako Reyes)

“House Resolution No. 525: Urging the DENR to immediately: (1) submit a progress report on the concrete actions it had taken to date pursuant to HRs 757 and 04 of the 13th and 16th Congress, respectively; (2) conduct a detailed environmental impact assessment of the Tapian Pit, San Antonio Pit and other mine structures at the Marcopper site; (3) undertake a concrete action and/or disaster risk management program to ensure the safety of Marinduque Province and Marinduqueños from further catastrophic effects in the event that a 'Yolanda' type or category typhoon hits the province; and (4) make an accounting of the reported rehabilitation fund amounting to $13 million that Placer Dome Inc. had allocated for Marinduque Province (Rep. Regina Ongsiako Reyes)”

WHEREAS, records of the Nevada case, according to the official website of the Nevada Supreme Court, reveal the following significant timelines and events or developments:

SIGNIFICANT TIMELINE
& EVENTS AND CASE DEVELOPMENT
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=26104

February 11, 2011: District Court Judge Valerie P. Adair of the District Court, Clark County, Nevada issued its “Findings of Fact and Conclusion of Law and Order” in relation to Case No A511078 – “Provincial Government of Marinduque, a political subdivision of the Republic of the Philippines, Plaintiff, vs. Placer Dome Inc, and Barrick Gold Corporation, Defendants, which among others, GRANTED Barrick’s Motion to Dismiss on the Ground of Forum Non Conveniens, and DISMISSED WITHOUT PREJUDICE in its entirety the Province’s Third Amended complaint.

March 16, 2011: The Province (Appellant) filed its Notice of Appeal in the Supreme Court of the State of Nevada

August 29, 2011: Appellant filed its Opening Brief
October 31, 2011: Respondent’s Brief was duly filed

November 15, 2011: Appellant and Respondent mutually filed a “Stipulated Motion for Stay” “to allow the Parties time to pursue settlement.” They both argued that they “are now in settlement discussions that they anticipate may lead to a resolution of [the] matter.” The Parties requested that the appeal be stayed for 90 days from the date of entry of the Court.

December 06, 2011: 90-day stay was granted by the Court ordering the Appellant to file Status Report within the same period.

March 05, 2012: Parties submitted Stipulated Status Report informing the Court that the Parties are still in settlement discussions and requested additional stay of at least 90 days.

May 25, 2012: The Court considered the status report and ordered the filing of the second status report within 90 days.

August 24, 2012: The parties filed their status report informing the Court that the settlement discussions “is an extraordinarily complex case and thus settlement negotiations have taken longer than the Parties anticipated.” The Parties requested for another additional stay of 90 days.

August 31, 2012: The Court accepted the status report and granted the request for additional 90 day stay; and ordered for the submission of the third status report within the 90-day period.

November 30, 2012: A status report was filed informing the Court that the “Parties have made significant progress, but settlement discussions have taken longer than the Parties anticipated. The Parties recently met in San Francisco for three days with a mediator. The Parties anticipate that continued settlement discussions may lead to a resolution of this matter.” An additional stay of at least 60 days was sought.

January 29, 2013: Another status report was filed by the Parties informing the Court that they “have agreed to a proposed framework but certain terms remain unresolved.” Another additional stay of at least 60 days was requested.

February 11, 2013: The Court too cognizance of the two updated stipulated status reports and granted the request for additional stay of at least 60 days.

April 11, 2013: The submitted status report argued that the “discussions, as a practical matter, have been slowed by the current election season in the Philippines, which will culminate in elections mid-May 2013.” The parties sought for another additional stay of at least 60 days.

April 29, 2013: The Court granted the request for another additional stay of 60 days.

June 10, 2013: The status report noted that “new officials will assume their positions on June 30, 2013. The Province believes the most fruitful dialogue will be had after the Province’s period of transition is completed, to allow additional new officials to more fully participate in settlement discussions.” Another additional stay of at least 60 days was sought.

July 23, 2013: The Court favorably granted another additional stay of 60 days.

September 23, 2013: The submitted status report informed the Court that “negotiations have advanced, and the Parties believe that they will be able to provide the Court with much more detail about the status of a possible resolution within two weeks. However, due to the status of settlement negotiations, the Parties are unable to provide that information with the Court today.” The Parties requested for an additional stay of at least two weeks.

October 01, 2013: The Court noted that the Parties have filed a fifth stipulated status report and ordered that the stay should remain in place for an additional two weeks.

October 15, 2013: The parties, through a status report informed the Court that the “negotiations have advanced, and the Parties had hoped to provide the Court with much more detail about the status of a possible resolution today. However, due to status of settlement negotiations, the Parties are unable to provide that information with the Court today.” Additional stay of at least 60 days in the appeal is again requested.

November 01, 2013: The Court again granted the requested 60-day additional extension.

December 27, 2013: The submitted status report informed the Court that “the typhoon that caused major destruction in the Philippines in November has diverted attention from settlement negotiations and delayed resolution in this matter.” Another extension of 60 days for the stay was requested.

January 10, 2014: The Court ordered the stay to remain in place and extended it for another additional 60 days.

March 12, 2014: The stipulated status report informed the Court that “the Parties remain engaged in productive settlement discussions. Those negotiations are advancing, but the Parties need additional time to continue working toward a resolution.” The Parties requested again for additional stay of at least 60 days.

March 24, 2014: On the 18th Anniversary of the Infamous Boac River Mining Disaster, the Court ordered the stay to remain in place for another 60 days.
May 22, 2014 The status and noted that the “Province is currently working to address associated deliverables but requires and requests more time in light of delays due to the Lental break and subsequent Legislative recess.” Additional extension of 30 days stay was requested.

May 29, 2014: The Court ordered the stay to remain in place for an extended period of additional 30 days.

WHEREAS, after two years and seven months into the negotiations process on the Nevada Case, the terms and conditions of the proposed settlement have not been acceptable to the people, and in the event the said settlement proposal will not prosper, the Province will face the appeal proper and shall contest the February 11, 2011 Order of the District Court of Clark County in Nevada which postulates the quoted portion hereof:

1. Barrick’s Motion to Dismiss on the Ground of Forum Non Conveniens is hereby GRANTED. As forum non conveniens is an equitable remedy, and to insure that equality is done, the dismissal of the case is conditioned on Defendant’s performance of certain acts that Defendants represented they would undertake. These conditions are as follows:

a. Defendant’s consent to jurisdiction in either British Columbia or Ontario on claims that arise out of same general facts as the instant suit;

b. Defendant’s waiver of any statute of limitations defense that may be available to them in either British Colombia or Ontario that did not exist on the filing date of this lawsuit;

c. Defendant’s agreement not to raise any forum non conveniens issues or defenses in either the British Columbia or Ontario courts; and

d. Defendant’s stipulation that both damages and injunctive relief are available in the courts of British Colombia and Ontario; and

2. The Province’s Cross-Motion for Conditioned Dismissal in Favor of a Philippine Forum is DENIED.

3. Barrick’s Motion for Stay is DENIED AS MOOT.

4. The Province’s Motion for Rule 16 Conference is DENIED AS MOOT.

5. The Province’s Third Amended complaint is DISMISSED WITHOUT PREJUDICE in its entirety.

WHEREAS, despite this Order, this august Body is convinced that justice shall be pursued in order to obtain indemnity and reparation to the health and livelihood of the people of Boac and Marinduque and the damages to the environment as well as the remediation and rehabilitation of the impacted ecosystems.

WHEREFORE, on motion of HON. MIGUEL R. MAGALANG, Chairperson of Committee on Good Governance, Public Ethics and Accountability, duly seconded and unanimously approved, the 8th Sangguniang Bayan of Boac, in session assembled hereby,

RESOLVED, as it hereby resolves and urges the Provincial Government of Marinduque and the Sangguniang Panlalawigan of Marinduque to terminate the negotiations with Barrick Gold Corporation and Placer Dome, Inc. in relation to the proposed settlement agreement on the Nevada Case and explore other forums or venues to pursue justice and obtain remedies that are advantageous to the people and that would focus on the health and livelihood concerns of the people and the remediation and/or rehabilitation of the mining-impacted ecosystems of Marinduque,

RESOLVED FURTHER THAT transparent processes be ensured in all processes, enlist the participation of all stakeholders, and build on consensus before any action is undertaken.

RESOLVED FINALLY that duly certified copies of this Resolution be furnished to the Office of the Governor of Marinduque, Sangguniang Panlalawigan of Marinduque, all Sangguniang Bayan in Marinduque, the, the Office of the Presidential Adviser on the Environment, the Mining Industry Coordinating Council – Office of the President, Tthe Catholic Bishops Conference of the Philippines, the Foundation for Philippine Environment, all Sangguniang Barangays of Boac, the various media organizations, civil society organizations and other concerned organizations, institutions and entities for their information, reference and/or appropriate action.

ADOPTED on June 17, 2014.at Boac, Marinduque.

Mga larawan: Konsehal Myke Magalang