G.R. NO. 197754 FOR: SPECIAL CIVIL ACTION FOR ISSUANCE OF A WRIT OF KALIKASAN
G.R. NO. 197754FOR: SPECIAL CIVIL ACTIONFOR ISSUANCE OF A WRITOF KALIKASANPHILIPPINE EARTH JUSTICECENTER INC.;ALLIANCE TO SAVE THE IN-TEGRITY OF NATUREINC.; KESALUBUUKAN TU-PUSUMI ORGANIZATIONOF SUBANEN PEOPLE, MarioCatanes, Wilma A.Tero, Manuela A. Pateño, BarlieBalives, DaniloO. Eranga; Sultan Maguid A.Maruhom, TimoayLucenio M. Manda, GualbertoF. Largo, DanielC. Castillo, Jerry S. Espinas,Bishop Jose RecareManguiran, Fr. Sean Martin, Fr.Arsenio Marane,Felix Unabia, Ricardo Tolino,Jesus Catamco,and Paulino Alecha Sr.,
REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILAPHILIPPINE EARTH JUSTICE CENTER INC.;ALLIANCE TO SAVE THE INTEGRITY OF NATUREINC.; KESALUBUUKAN TUPUSUMI ORGANIZATIONOF SUBANEN PEOPLE, Mario Catanes, Wilma A.Tero, Manuela A. Pateño, Barlie Balives, DaniloO. Eranga; Sultan Maguid A. Maruhom, TimoayLucenio M. Manda, Gualberto F. Largo, DanielC. Castillo, Jerry S. Espinas, Bishop Jose RecareManguiran, 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 KALIKASANSECRETARY, DEPARTMENT OF ENVIRONMENTAND NATURAL RESOURCES; DIRECTOR, MINES &GEOSCIENCES BUREAU; DIRECTOR, PROTECTEDAREAS AND WILDLIFE MANAGEMENT BUREAU;DIRECTOR, NATIONAL COMMISSION FORINDIGENOUS PEOPLES; X, Y & Z COMPANIESWITH MINING APPLICATIONS AND/OR MININGTENEMENTS IN THE HIGHLANDS OF THEZAMBOANGA PENINSULA as represented bythe Chamber of Mines, Respondents.x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -/ PETITION FOR ISSUANCE OF A WRIT OF KALIKASAN WITH PRAYER FOR TEMPORARY ENVIRONMENTAL PROTECTION ORDER & WRIT OF CONTINUING MANDAMUS 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] Petitioners most respectfully intone: PRECIS OF THIS PETITION Gravely threatened with environmental damage of such magnitude as toprejudice the life, health or property of the inhabitants in three provinces and atleast three chartered cities due to the unconscionable issuances of miningtenements is the mineral resource-rich region of Zamboanga Peninsula. It liesbetween the Moro Gulf, part of the Celebes Sea, and the Sulu Sea andgeologically connected to the main island of Mindanao through an isthmussituated between Panguil Bay and Pagadian Bay. (See Figure 1)
2 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 Figure 1. The present Geographic map of the Zamboanga Peninsula has long become a natural magnet to mining companies. The peninsula’s 50 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).1Figure 2. Animation by Robert Hall, SE Research Group It rested and became more or less Figure 3. Animation by Robert Hall, SE Research Group stationary at its present location 2 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.mov 2 Ibid
3 The main political subdivisions of the Zamboanga peninsula are the provinces of Zamboanga del Norte, Zamboanga del Sur and Zamboanga- Sibugay. It cradles the cities of Dipolog and Dapitan of Zamboanga del Norte and Pagadian City of Zamboanga del Sur. The Zamboanga Peninsula has a land area of 1,413,754 hectares, 54 percent of which is classified as forest land. This portion is retained as part of public domain mainly for ecological reasons. On the other hand, 46 percent have been released as alienable and disposable to accommodate needs for food production, settlement, infrastructure and other purposes.3 The region is generally hilly and mountainous. In Zamboanga del Norte alone, 66 percent of its land area have slopes ranging from 18 percent to 50 percent. Both Zamboanga del Sur and Zamboanga Sibugay have their mountainous regions running along their northern boundaries with Zamboanga del Norte, then level out into wide flat lands extending to the coastal plains of Baganian Peninsula in Zamboanga del Sur in the southeast and the Sibugay Bay Area in Zamboanga Sibugay in the southwest.4 But the peninsula’s 50-million-year geological and ecological history is being threatened by public respondents. They have brazenly redrawn its map by allowing senseless and indiscriminate mineral extraction over its entire mountains and uplands. (See Figure 4) Based on the 2008 data for Region IX from public respondent MGB, the total MPSA applied for and approved for the region already totaled fifty two (52) tenements involving a total land area of 222,074.29 hectares. OnFigure 4. The mineral map of Zamboanga Peninsula (Region IX), showing the other hand, thethe extent of mining tenements issued or applied for constituting more than50% of its land area. This map posted in the webpage of respondent MGB is FTAAs applied for in 2008prepared by its Mines Management Division with a caveat that it is not validfor litigation. totaled four (4) tenements involving an aggregate area of 78,975 hectares while exploration 3 NEDA, Regional Development Agenda – Zamboanga Peninsula (Region IX) http://www.neda9.net/attachments/article/61/Regional%20Development%20Agenda%201.pdf 4 Ibid
4permits applied for and approved numbered eighty one (81) tenementsinvolving a total land area of 402,546.04 hectares.Figure 5.Number of Approved MPSA in Zamboanga Peninsula: 15Total Area Covered: 48,031.62 hectaresAs of March 2011 Source: MGB websiteFigure 6. Number of MPSA Applications in Zamboanga Peninsula: 38Total area covered: 184,393.34 hectaresAs of March 2011 Source: MGB website Thus as of 2008, the total land area subject to and opened for mining inZamboanga Peninsula was 703,595.33 hectares, accounting for 45.25% of itstotal land area.
5 But as of March 2011, the total MPSAs has drastically increased with thenumber of approved tenements at 15 while MPSA applications at 38 bringing atotal of 53 MPSA tenements and involving a total land area of 232,424.96hectares (See Figures 5 & 6). As to FTAAs, the current number of applicationsremained at four (4) involving a slightly increased area of 80,819.5 hectares. Inrespect to Exploration Permits, the current number of applications and approvedtenements increased to 113 covering a total land area of 495,024.63 hectares.5 In summary, the total land area subject to and made open for mining inZamboanga Peninsula as of March 2011 rose significantly to one hundredseventy (170) tenements affecting a total land area of 808,269.09 hectares orabout 51% of the region’s total land mass. By the foregoing backdrop petitioners ask: How would public respondentsbe able to protect the peninsulares’ right to ecology with such a large areasuffered for mineral extraction? Petitioners seek leniency from this Honorable Supreme Court for goingstraight to it. The environmental issues raised in this Special Civil Action for Writ ofKalikasan under Rule 7 of A.M. No. 09-6-8-SC are rather novel, such as on how toeffectuate the statutory definition of carrying capacity of our ecosystems andwhether public respondents’ mindless issuances of mining tenements inbiologically diverse Zamboanga peninsula have violated the principle of nonregression. Lower courts, tribunals and the bar need guidance from this Apex Courtupon these matters. And they need it quick before the last of the peninsula’sremaining forests will be cut off and its verdant mountains flattened or madehollow underneath. THE PARTIESPetitioners: 1. Petitioner Philippine Earth Justice Center Inc. (PEJC) is a non-profit non-stock corporation duly registered under the laws of the Republic of thePhilippines. Its principal office address is located at Room M-8, University of Cebu,College of Law, Banilad, Cebu City where it may be served with legal processes.It is established to provide legal assistance for victims of environmental injustice,conduct policy research on the environment, advocate policy reforms, assist in5 See www.mgb.gov.ph
6building local capacities for environmental protection and promote sustainabilityand protection of human rights. It is represented in this suit by its ExecutiveDirector and Trustee, Atty. Gloria Estenzo-Ramos pursuant to a resolution of itsBoard, 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 thePhilippines. Its principal office address is at San Jose Parish, Midsalip, Zamboangadel Sur where it be served with legal processes. It is primarily established topromote environmental awareness in the community and protect the people’shuman rights and their right to ecology. It is represented in this suit by itsChairman, Felix B. Unabia pursuant to a Board resolution which copy is attachedas Annex B. 3. Petitioner Kesalubuukan Tupusumi Organization is an association dulyorganized under the laws of the Republic of the Philippines with its principaloffice at Poblacion, Midsalip, Zamboanga del Sur. It is an organization ofSubanen people, an Indigenous Cultural Community in Zambonga Peninsula,represented in this suit by its President Ricardo Tolino pursuant to a resolution of itsBoard attached as Annex C. 4. All other individual petitioners whose names and personalcircumstances are found in the verification and certification hereof are residentsin Zamboanga Peninusula. They all are suing on their behalf and on behalf of theminor Filipinos and of generations of Filipinos yet unborn. 5. For procedural convenience and practical reasons, all of the hereinnamed individual petitioners may be collectively served with summons and otherlegal processes issued from this Apex Court at the PECJ Office, University ofCebu- College of Law, Banilad Campus, 6000 Cebu City.Respondents: 6. Respondent Secretary Ramon Paje is the head of the Department ofEnvironment and Natural Resources (DENR), a government agency created byvirtue of Executive Order No. 192, dated June 10, 1987. It is primarily mandatedfor the conservation, management, development, and proper use of thecountry’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.
7 7. Respondent Mines and Geosciences Bureau (MGB) was elevated into aline bureau of public respondent DENR pursuant to Republic Act No. 7942. Itsoffice is located at MGB Compound, North Ave., Diliman, 1110 Quezon Citywhere it may be served with summons and other legal processes. Its declaredmission is to be the steward of the countrys mineral resources committing itself tothe promotion of sustainable mineral resources development, and being awareof its contribution to national economic growth and countryside communitydevelopment. It is represented in this suit by its Acting Director, Engr. Leo L.Jasareno. 8. Respondent Protected Areas and Wildlife Bureau (PAWB) is likewise aline agency of DENR. It is established pursuant to Republic Act No. 7586 or theNational Integrated Protected Areas Systems (NIPAS) and invested with a primarymandate of protecting the country’s wildlife. Its office is located at the NinoyAquino Parks and Wildlife Center, 1100 Diliman, Quezon City where it may beserved with summons and other legal processes. It is represented in this suit by itsDirector, Theresa Mundita S. Lim. 9. Respondent National Commission on Indigenous Peoples (NCIP) is agovernment agency created pursuant to Republic Act No. 8371. Its mandate isto protect and promote the interest and well-being of ICCs/IPs with utmostregard to their beliefs, customs and institutions. Its office is located at 2 nd Floor N.de la Merced Bldg., Cor. West and Quezon Avenues, Quezon City where it maybe served with this Court’s summons. It is represented in this suit by its ExecutiveDirector, Basilio A. Wandag 10. Respondents mining companies and entities with stakes in ZamboangaPeninsula are impleaded in this suit under their assumed appellations owing totheir 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 ofMines 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 contractsthem 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;
8 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 OFI. Respondents violated or threaten to violate Petitioners Right to Ecology 11. Mining entails moving earth. By quarrying or digging tons and tons ofoverburden just to reach and extract the ores containing the desired minerals,physical landscape is necessarily altered or destroyed along with the foliageatop. With forests gone, habitats of flora and fauna follow and watersheds rundry.6 12. When ores are reached, segregative process will be applied whereinrelative amounts of valued substances is isolated from much large mass of lessvaluable materials. As for example in copper mining, almost 95.5% of materialsmined are rejected comprising the so-called mine wastes.7 13. These wastes coming from mining activities may result into landdegradation, ecosystem disruption, acid mine drainage, chemical leakages,slope failures, toxic dusts, among others (See Figure 5).8 Figure 5. Potential Environmental and Social Impact of Mining (World Resources Institute).6 See Gavin Bridge, Dept. of Geography Syracuse University, “Contested Terrain: Mining and theEnvironment”, Annual Review Environmental Resources, 20047 Ibid8 Ibid
9 14. These potential hazards are perennial in every single active miningarea. But where, as in the case of Zamboanga Peninsula there are presentlyone hundred and seventy (170) mining tenements already entertained orotherwise 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 realrather than merely apparent. 15. Section 16 of Article II of the 1987 Philippine Constitution declares thatthe State shall protect and advance the people’s right to a balanced ecology inrhythm and harmony of nature. As a constitutionally guaranteed right of everyFilipino, it carries with it the correlative duty of non-impairment. 9 16. This is but in consonance with the declared policy of the state “toprotect and promote the right to health of the people and instill healthconsciousness among them. It is to be borne in mind that the Philippines is aparty to the Universal Declaration of Human Right and the Alma ConferenceDeclaration of 1978 which recognize health as a fundamental human right.10 17. By allowing mineral extraction in almost all the upland areas ofZamboanga peninsula, respondents have callously impaired or threatened toimpair petitioners’ right to ecology. Because of their wholesale mining grants,mountaintops will definitely be ultimately scraped or bored hollow, valleys will befilled with quarried earth and raised, rivers and creeks that supply water intodownhill communities for their domestic, agricultural and industrial uses will bepolluted or will run dry. 18. Public respondents may argue that all environmental protectivemeasures are anyway in place in each and every tenement they issue and willbe strictly enforced during every mining operation. But this is better said thandone. 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 beobserved 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 minetailings spilled into it in 1996. Because of that environmental disaster, marine life in9 Minors Oposa v. Factoran10 Laguna Lake Development Authority v. CA, et al., G.R. No. 1101020, March 16, 1994
10the 26-kilometer waterway vanished, with farmlands and villages flooded. Morethan fifteen years after the said mine disaster, the province is still coping withmillions 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 (SeeFigure 6) islands which are directly caused by irresponsible operations of miningcompanies permitted by public respondent MGB in these areas? Have publicrespondents cleaned up the ‘dirty seven’?11Figure 6. Bird’s eye view of the ecological wasteland that is Semirara island taken by Lorenzo Tan ofWWF-Philippines O nly wh en the last tree ha s b e en cu t do w n, O n ly w he n th e las t riv er h as bee n po is on ed , O n ly w he n th e las t fish h as b ee n ca ug h t, O nly t he n w ill yo u find th at m o ney ca n n ot b e eaten . — C r e e Ind ia n P r op he c y S e m ira ra 22. Research shows that in order to better monitor compliance toenvironmental regulations in mining, the ideal area assigned per technicalinspector is 30 hectares. With more than 800,000 hectares now opened to miningin Zamboanga Peninsula, public respondent MGB necessarily needs more than20,000 personnel to effectively manage the subject area. But with less than athousand staff manning its regional office, most likely public respondent MGB willjust rely on unsubstantiated reports submitted by mining companies and mostlikely 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. 794211 Major abandoned mine collectively known as ‘The Dirty Seven’: 1) Bagacay Mines of Philippine PyriteCorp. at Bagacay, Hinabangan, Western Samar; 2) Tagburos Mines of Palawan Quick Silver Mines atTagburos, Puerto Princesa City; 3) Basay Mines of Basay Mining Corp.at Malinao, Basay, NegrosOriental; 4) Mogpog Mines of Consolidated Mines Inc. at Mogpog, Marinduque; 5) Benguet Mines ofBlack Mountain Mines Corp. at Tuba, Benguet; 6) Benguet Exploration of Thanksgiving Mine Inc. atTuba, Benguet; and 7) Atok Mines of Western Minolco Inc. at Atok, Benguet.
11 23. By entertaining or otherwise issuing a total of one hundred seventy(170) mining tenements covering practically the entire mountainous area of theZamboanga Peninsula, public respondents unabashedly assumed that the entirepeninsula must be open to this extractive industry. 24. In so doing, public respondents transgressed the disallowance writtenin Sec. 19 (f) of the Mining Law against accepting mining applications in areas ofold growth or virgin forests, proclaimed watershed forest reserves AND in areasexpressly prohibited under NIPAS and other laws.12 25. The preceding law is clear. Where there is present old growth or virginforests in an area applied for mineral agreement or FTAA, or such an applied forarea is otherwise proclaimed watershed, public respondent MGB is duty-boundnot 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 ZamboangaPeninsula’s total land area is classified as forest land while proclaimed aswatershed areas in Zamboanga del Norte reached 1,156 hectares, inZamboanga Sibugay 577 hectares, and in Zamboanga City 17,414 hectare.13 27. While mere classification of an area may not prove conclusive theexistence therein of old growth or virgin forest, it nevertheless constitutes primafacie the subsistence of these vital ecosystems. 28. But by opening practically all of the mountain areas in the peninsulafor mineral extraction, public respondent MGB has wrongly presumed that theentire mountainous area of the peninsula is denuded and without watersheds. 29. A clear example to this blatant abuse of discretion is MGB’s grant andapproval of Geotechnicques and Mines Inc. (GAMI) MPSA No. 288-2009-IX onAugust 5, 2009 covering an area of Five Hundred Sixty Seven (567) hectaresinside the mountain ranges of three (3) Barangays in Midsalip, namely: Sigapod,Guinabot and Cumaron. This was done notwithstanding the fact that thesebarangays 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–xf. 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 birdsanctuaries as defined by law and in areas expressly prohibited under the National Integrated ProtectedAreas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of1992 and other laws.13 NEDA, Regional Development Agenda – Zamboanga Peninsula (Region IX), supra
12located in the central portion of Zamboanga Peninsula and which was declareda forest reserve or protected watershed on August 9, 1966 under ProclamationOrder No. LC-2487, a copy of the certification issued by public respondent PAWBis attached as Annex D. 30. As further proof that these three barangays of Midsalip are indeedwatershed or forest reserve area, a Midsalip Watershed Management UnitProject was implemented by its local government unit on December 28, 1992with a total cost of Php41,157,589.00, copy of its Project Profile is attached asAnnex E. 31. This invalidly issued MPSA to GAMI is currently the subject of aquestionable assignment of rights in favor a certain MSSON Mining andExploration Corporation. The said assignment is patently defective since it did notcarry 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 inOctober 2010, petitioner ASIN’s members peacefully picketed along the ingresstoward the overlap mining area. Due to their resistance, this MSSON Miningthereafter filed in November 2011 two criminal cases at the Zamboanga del SurProvincial Prosecutor’s Office for alleged violations by the members of PetitionerASIN of Sec. 107, Republic Act. 7942.14 These pending twin criminal cases aredocketed 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 MSSONMining also filed on December 8, 2010 an Injunction case and damages withprayer for TRO and Preliminary Injunction at the Regional Trial Court Branch 30,Aurora, Zamboanga del Sur against the same respondents in the aforesaidcriminal complaints, members of Petitioner ASIN. This MSSON Mining’s injunctioncase 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 ofAurora under Judge Ernesto Laurel immediately treated this MSSON Mining’sinjunction case as an environmental case to be governed by the Rules ofProcedure 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 anypermit, agreement or lease from undertaking his mining operations shall be punished, upon conviction bythe appropriate court, by a fine not exceeding Five thousand pesos (P5,000.00) or imprisonment notexceeding one (1) year, or both, at the discretion of the court.
13 35. Thereafter, RTC Aurora issued its first bizarre order of the day onDecember 9, 2010 ruling that the same injunction case should be converted intoa petition for issuance of a continuing mandamus under Rule 8 of theEnvironmental Rules and thereby ordered defendants therein, who are membersof petitioner ASIN, to file their comment, a copy of Judge Laurel’s order isattached as Annex F. 36. When petitioner-members of ASIN objected to the improperconversion of said injunction case in their motion for reconsideration in view ofthe fact that they do not even belong to any government agency, much lessbeing officers thereof, the same RTC Aurora court on January 26, 2011 deniedtheir motion albeit ruling that the case ought to be tried under Section 2, Rule 22of the Environmental Rules, a copy of its order is attached as Annex G. 37. Meanwhile, defendants in that Aurora case and co-petitioners in thisextant filed their answer on December 20, 2010 and thereby raised SLAPP as theiraffirmative defense. But their SLAPP defense was too brushed aside by JudgeLaurel of RTC Aurora through an Order dated March 14, 2011, a copy of which isattached as Annex H. 38. After the denial of their SLAPP defense and despite their pendingincident of a motion for consideration, what followed thereafter was a well-orchestrated zarzuela perpetrated by this MSSON Mining and the RTC 30 ofAurora. 39. By cleverly using the principle of speedy disposition of environmentalcases as provided under Section 1, Rule 3 in the Environmental Rules as asmokescreen, 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 ofthe Pre-Trial Order is attached as Annex I. 41. On May 31, 2011, this MSSON Mining as plaintiff in the aforementionedinjunction case before the RTC Aurora, Zamboanga del Sur. commencedpresentation of its first witness, a copy of the TSN on May 31, 2011 is attached asAnnex J.
14 42. Evidence of plaintiff MSSON Mining in the said Aurora case continuedon June 6 and 7, 2011 after which the same RTC Aurora required the defendantstherein, 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 motionreviving its application for a TRO. So that defendants in said injunction case wasforced to incorporate in their Demurrer their opposition to this MSSON Mining’sapplication for TRO or Preliminary Injunction and asked finally for Judge Laurel’srecusal of the case because of his manifest bias, a copy of their demurrer isattached as Annex K. 44. But even before their demurrer, opposition and motion to inhibit wereeven heard and ruled, the same RTC Judge of Aurora granted on June 16, 2011a 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 smoothlygranted a 20-day TRO on June 17, 2011 and finally a writ of preliminary injunctionon July 6, 2011 in favor of this MSSON Mining, copies of these Orders areattached as Annexes M and N. It must be noted that all of these rulings werehastily 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 theprohibited areas in Barangays Sigapod, Guinabot and Cumaron with the help ofmilitary and police units securing their ingress into the protected area. 47. By the foregoing manifestation, it is desired that a separateadministrative investigation on the highly irregular conduct of RTC Branch 30,Aurora, Zamboanga del Sur shall be done by this Honorable Court’s Office of theCourt Administrator.III. Respondents transgressed the prohibition in Sec. 20 (f) of the NIPAS Law 48. According to NEDA, eleven (11) sites inside Zamboanga Peninsulahave been declared as protected areas under the NIPAS Act. The cities ofZamboanga and Dapitan lead other areas in terms of proportion of land areadeclared as protected at 14.0 percent and 13.0 percent, respectively.15 49. Culled from public respondent PAWB’s statistics are the followingdeclared/proclaimed protected landscapes in Zamboanga Peninsula:15 Ibid
15 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 provincialoffice in Zamboanga del Sur also certified that Mt. Sugarloaf complex which isnestled at the heart of Zamboanga Peninsula had been declared a forestreserve pursuant to Proclamation No. LC-2487 dated August 9, 1966, a certifiedtrue copy of Pages 7897-7898 of the Official Gazettel, Vol. 62 No. 43 is attachedas Annex O. 51. The Mount Sugarloaf Key Biodiversity Area (KBA 155) has a total landarea of 34,349 hectares. It covers the municipalities of Midsalip, Bayog,Lakewood, Tigbao, City of Pagadian, all of Zamboanga del Sur and themunicipalities of Bacungan, Godod, all of Zamboanga del Norte. The complexincludes Mt. Buracan, Mt. Tandasa, Mt. Mediau (Sugarloaf), Mt. Pinukis, Mt.Maragang, Mt. Bulahan and Mt. Linugen.16 52. In sum, the land area of these proclaimed and declared protectedlandscapes and seascapes in the Zamboanga del Sur Peninsula reach95,423.944 hectares. Where the total mountainous area of the peninsula is about54% of its total land area of 1,413,754 hectares or around 763,427 hectares, theseprotected 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 thetotal land area of 808,269.09 hectares involving 170 tenements being opened by16 See “Philippines: Mining or Food? Case Study 1: Iron Ore & Other Minerals, Midsalip, Zamboanga delSur – Mindanao Island, by Robert Goodland and Clive Wicks 2008; see also Philippine BiodiversityConservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report2002
16public respondents for mining, more than 11% of these subjected to extractiveindustry must be protected or proclaimed areas. 54. The preceding data does not even include those areas insideZamboanga Peninsula which are declared as Conservation Priority Areas (CPAs)by public respondent PAWB and which are by the way protected by theConvention of Biological Diversity of 1992.17 55. The peninsula’s Mt. Sugarloaf forest reserve and Mt. Timolan protectedlandscape in Zamboanga del Sur, and Mt. Lituban-Quipit watershed ofZamboanga del Norte are likewise considered as Conservation Priority Areas(CPAs). In terms of terrestrial and inland waters conservation, these areconsidered as Extremely High Urgent level of priority.18Figure 7. Map showing major portions of the Zamboanga Peninsula of High Ecological Value beingthreatened by mining. (Source: Mining and Critical Ecosystems: Mapping the Risks, Nov. 2003 byMarta Miranda, et al., published by World Resources Institute)17 Convention on Biological Diversity, Sec. 1.The objectives of this Convention, to be pursued inaccordance with its relevant provisions, are the conservation of biological diversity, the sustainable use ofits components and the fair and equitable sharing of the benefits arising out of the utilization of geneticresources, including by appropriate access to genetic resources and by appropriate transfer of relevanttechnologies, taking into account all rights over those resources and to technologies, and by appropriatefunding.18 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity StrategyAction Plan, Final Report 2002, p. 27
17 56. By indiscriminately issuing mineral agreements or other tenements inthe subject area without taking into serious consideration the existence ofprotected areas or conservation priority areas in the Zambaonga Peninsula, allrespondents have contravened Section 20 (f) of Republic Act 7586 whichprohibits squatting, MINERAL LOCATING, or otherwise occupying protectedareas. 57. In his treatise “A preliminary Analysis of the Philippine Protected AreasSystems: Gaps and Recommendations”, author John Mackinnon laments thatthe most bio-rich islands of Mindanao and Luzon are highly under-represented inthe Protected Areas (PA) system despite having quite a lot of remaining ‘natural’habitat. He recommended, among others, that the PA system should beenlarged and redesigned with strong biological basis and all remaining ‘naturalhabitat should be gazetted into the NIPAS system.19 58. Public respondent PAWB should assert its mandate because itsomission or acquiescence has unpalatably resulted into these ultra vires andillegal acts of public respondent MGB. It would appear in this dissertation thatpublic respondent DENR’s right hand, the MGB, may not have even known whatits 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 ofvegetation, which in turn alters the availability of food and shelter for wildlife. Ata broader scale, mining may impact biodiversity by changing speciescomposition and structure.20 60. The Earth is presently experiencing changes to its natural environmentsthat are unprecedented in historic times. Destruction and degradation of naturalhabitats are widespread and profound and their implications for theconservation of biological diversity and the sustainability of natural resources areof global significance. Humankind is responsible for an episode of species’decline, endangerment and extinction of enormous proportions, andwidespread deterioration in the quality of air, water and soils – the basicresources on which all of life depends. Such degradation of the naturalenvironment is not a new phenomenon, but it is the rapidity and global scale at19 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity StrategyAction Plan, Final Report 2002, p. 6220 World Resources Institute, Mining Literature
18which change is now taking place that causes great alarm (Brown 1981; Myers1986; Lunney 1991; Houghton 1994).21 61. The role of wildlife cannot be taken lightly. It is an integral part of afunctioning ecosystems, their interaction sustains its life-giving attributes (SeeFigure 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 watershedof Siocon, Zamboanga del Norte have been given Extremely High Priority levelfor bird’s conservation by public respondent PAWB.22 63. In fact, sightings of Philippine Eagles (Pithecophaga jefferyi), acritically-listed species, are well documented and verified, a copy of thenarrative of Public respondent DENR’s CENRO dated April 24, 2001 is attached asAnnex P. 64. Sec. 27 (c) of Republic Act 9147 considers the following acts doneinside critical habitats of critical, endangered or vulnerable wildlife species ascriminal 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 WildlifeConservation, IUCN Forest Conservation Programme, Series 122 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity StrategyAction Plan, Final Report 2002, p. 35
19 d. burning; e. logging; and f. quarrying. 65. As a consequence of public respondent MGB’s wholesale allowanceto mineral extraction in the peninsula, respondents have committed or willcontinue 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 themainstream society is their customs, not their costumes. If indigenous peoplesassimilate culturally into the modern world, they consequently lose their legalidentify. This is exactly what happened to other Philippine ethnic tribes like theIlocanos, Ilongos, Cebuanos, et sequitur who chose to adapt the ways of theircolonizers. 67. Indigenous peoples (IPs) are those which having a historical continuitywith pre-invasion and pre-colonial societies that developed on their territories,consider themselves distinct from other sectors of societies now prevailing inthose territories, or parts of them. They form at present non-dominant sectors ofsociety and are determined to preserve, develop, and transmit to futuregenerations their ancestral territories, and their ethnic identity, as the basis oftheir continued existence as peoples, in accordance with their own culturalpatterns, social institutions and legal systems.23 68. Petitioner members of Subanen tribe are indigenous peoples whopopulate and dwell in the highlands of Zamboanga Peninsula. Subanen means"a person or people of the river", more specifically "from up the river" since theyare 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 IndigenousCultural Community is their link to their traditional land area known as itsancestral domain and/or ancestral land. 70. While ordinary Filipino mortals cannot claim ownership over thecountry’s natural resources, their dominion over the natural resources found intheir ancestral domain/lands is statutorily acknowledged.23 United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination andProtection of Minorities, Indigenous communities
20 71. Ancestral domains refer to all areas generally belonging to IndigenousCultural 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 presentexcept when interrupted by war, force majeure or displacement by force,deceit, stealth or as a consequence of government projects or any othervoluntary dealings entered into by government and private individuals,corporations, and which are necessary to ensure their economic, social andcultural welfare. It shall include ancestral land, forests, pasture, residential,agricultural, and other lands individually owned whether alienable anddisposable or otherwise, hunting grounds, burial grounds, worship areas, bodiesof water, mineral and other natural resources, and lands which may no longerbe exclusively occupied by ICCs/IPs but from which their traditionally had accessto for their subsistence and traditional activities, particularly the home ranges ofICCs/IPs who are still nomadic and/or shifting cultivators.24 72. Although most of these ancestral domains in Zamboanga peninsulamay yet to be formally delineated or issued title, it is however safe to take judicialnotice that vast portions of these mountain areas must have been occupied andclaimed by petitioner Subanen Indigenous People as their ancestral domain andlands. 73. The principle of free, prior and informed consent recognizes theseinherent rights of petitioner Subanen tribe to their ancestral domain and landsand to the natural resources found therein. 74. Free, prior and informed consent means the consensus of all membersof the ICCs/IPs to be determined in accordance with their respective customarylaws and practices, free from any external manipulation, interference andcoercion, 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 fromSubanen communities by mining companies inside their ancestral domains/landsin Zamboanga peninsula as certified by public respondent NCIP must beconsidered as vitiated as these are patently obtained by manipulation lacking in24 Sec. 3 [a] Republic Act 837125 Sec. 3 [g], Ibid
21the required full disclosure of the consequences of mining activities to theirancestral domain, which includes their place of worship. 76. Besides, mining as an industry is anathema to the recognized right ofIndigenous Peoples to conserve their natural resources within their territories forfuture generations. The use of machines in mining industry to achieve optimumprofit for the companies violates this right of petitioner Subanen tribe. 77. Further, the indigenous concept of ownership under IPRA sustains theview that ancestral domains and all resources found therein shall serve as thematerial bases of their cultural integrity. The indigenous concept of ownershipgenerally holds that ancestral domains are the ICCs/IPs private but communityproperty which belongs to all generations and therefore cannot be sold,disposed or destroyed.26 78. Allowing mineral tenements into their ancestral domain will, as anecessary consequence destroy these places to the utter prejudice of futuregenerations of Subanens. 79. Thus, whatever consent that was given by petitioner Subanens pseudoleaders must be deemed illegal for transgressing the preceding principle of inter-generational equity of IPs. 80. These NCIP certifications dangled by mining companies in thesesubject areas are invalid for these were issued by their pseudo leaders in directcontravention to their responsibility to maintain the ecological balance of theirancestral domain by protecting the flora and fauna, the watershed areas andother reserves therein.27VI. Respondents breached the Environmental Law Principle on Carrying Capacity 81. Sec. 3 [d] of Republic Act 7942 or the Philippine Mining Act of 1995defines carrying capacity as the capacity of the natural and humanenvironments to accommodate and absorb change without experiencingconditions of instability and attendant degradation. 82. But poring over the entire text of the Mining law, petitioners cannotfind any provision putting into effect the aforequoted statutory definition. Thisomission by Congress is understandable since the latter may have relied on26 Sec. 5, R.A. 837127 Sec. 9[a], R.A. 8371
22public respondent DENR to supply in its rules and regulations provisionseffectuating this environmental law principle. 83. Yet to the utter shock of petitioners, public respondent DENR did notonly fail in its delegated duty to give life to this statutory limitation on mining butworse, it altogether deleted the term carrying capacity in its DAO No. 96-40, theImplementing Rules and Regulations of R.A. 7942 and its amendatory rules. 84. Petitioners are of the considered view that the legislature must havedefined carrying capacity in the mining law to make it as a limitation upon thegovernment’s exercise in issuing mining permits. Congress could have notthought of granting public respondents DENR and MGB the unbridled power orauthority to issue mining tenements without taking due regard of the carryingcapacity of the natural and human environment. This must be the only soundstatutory construction. 85. The reason of the law is its very soul. Ratio legis est anima. A statutemust be read according to its spirit or intent, for what is within the spirit is withinthe statute although it is not within its letter, and that which is within the letter butnot within the spirit is not within the statute.28 86. In the Mining law, its avowed state policy is the promotion of rationalutilization and conservation of mineral resources in a way that would effectivelysafeguard the environment and protect the rights of the affected communities.Hence, Congress must have had in mind the principle on carrying capacity asthe only rational and sustainable way to safeguard the natural and humanenvironment from the adverse effects of mining. 87. Economic activities are sustainable only if the life-support ecosystemson 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 economiesdepend are resilient.30 88. The services of ecological systems and the natural capital stocks thatproduce them are critical to the functioning of the earth’s life support system.They contribute significantly to human welfare, both directly and indirectly, and28 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 theEnvironment”, published in SCIENCE, Vol. 268 April 199530 Ibid at www.precaution.org/lib/06/econ_growth_and_carrying_capacity.pdf
23therefore represent a significant portion of the total economic value of theplanet.31 89. Because these services are not fully captured in markets oradequately quantified in terms comparable with economic services andmanufactured capital, they are often given too little weight in policy decisions.This neglect may ultimately compromise the sustainability of humans in thebiosphere. The economies of the earth would grind to a halt without the servicesof ecological life support systems, so in one sense their total value to theeconomy is infinite.32 90. Public respondent DENR’s omission in putting into effect the statutoryprinciple on carrying capacity in its IRR of the Mining Law has bred untrammeledabuse in the law’s implementation. There is therefore this urgent necessity tocommand it to incorporate this principle into its rules and conscientiously apply itin its implementation of the mining law. 91. Meantime that this is not done, all mining applications and activitiesmust be judicially enjoined not only in Zamboanga Peninsula but the entirecountry as all these tenements are issued or will be issued with grave abuse ofdiscretion.VII. Respondents Ultra Vires Policies Violated the Principle of Non Regression 92. The principle of standstill or “status quo” in environmental law (knownas “non regression” in French) prevents public authorities from modifying orabolishing existing legislations if to do so would diminish the protection of theenvironment.33 93. This principle is needed today as environmental law is facing a numberof threats such as deregulation, a movement to simplify and at the same timediminish environmental legislations perceived as too complex, and an economicclimate which favors development at the expense of the protection of theenvironment.3431 Robert Costanza, et al. “The value of the world’s ecosystem services and natural capital”, published inNATURE, Vol. 387 (15 May 1987)32 Ibid33 De L‟urgente Nécessité De Reconnaître Le Principe De "Non Régression" En Droit De L‟Environnementby Michel Prieur, Professeur émérite à l‟Université de Limoges IUCN Academy of e-journal, issue 2011(1)34 Ibid
24 94. There are three theoretical bases of this principle, to wit: a) thepurpose of environmental law itself which is not simply to regulate theenvironment but to prevent its degradation as well as the depletion of naturalresources; b) for the sake of future generations, environmental law must be anexception to the rule that legislators can always change the law; c) as for social,economic and cultural rights, States must constantly strive to enhance theprotection of the right to a healthy environment.35 95. Environmental law is a set of norms that are interdependent from oneanother. The concept of standstill protects this complex, fragile and fundamentalconstruct.36 96. The policies being pursued by public respondents DENR and MGB areclearly regressive of the advances being already achieved in the field ofenvironmental protection and conservation. 97. While we have environmental regulatory and conservation lawsalready in place like NIPAS, Wildlife law, Fisheries laws provision on marinesanctuary, among others, here we have public respondents at the other end ofthe spectrum rendering nugatory these laws by sanctioning indiscriminate miningin this country. 98. While this Apex Court has already laid down rules of procedure toaddress environmental injustice, here we have public respondents at the otherend of the scale trampling the people’s right to ecology. 99. If we are to effectuate the ruling in Oposa v. Factoran yoking upon thisgeneration the duty to conserve and pass on to the next generations in muchbetter condition whatever environmental dividends enjoyed today, then publicrespondents must be restrained from infringing into our rich biodiversity areas justfor 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. Theyfurther state that:35 Ibid36 Ibid
25 100. Public respondents are running amuck in processing and issuing leftand right mining tenements in Zamboanga peninsula and the rest of the countrywithout the slightest regard to the carrying capacity of the affected areas. 101. Hence, there is extreme urgency to enjoin them from continuing withtheir environmentally regressive and reckless mining policies by way of issuanceof a Temporary Environmental Protection Order to be effective until such timewhen well-meaning environmental safeguards against mineral extraction arepromulgated and applied realistically on the ground. 102. Allowing respondents to carry on with their environmentally recklesspolicies would surely result into grave and irreparable damage to the health ofpetitioners and those they represent and the integrity of the natural environment. 103. In resolving this application for TEPO, petitioners invoke the principleof precaution. As already shown in the foregoing, respondents’ unsustainableactivities present a clear and present danger to human life or health, inequity tothe present and future generations and prejudice the environment in utterdisregard to the ecological rights of petitioners. 104. In support to this application, petitioners submit and attach theiraffidavit proving grave and irreparable damage that may be caused or will likelycause them by reason of respondents’ acts or omissions, copy is attached asAnnex Q hereof. BY WAY OF ISSUANCE OF A WRIT OF CONTINUING MANDAMUS Petitioners replead, mutatis mutandis, their foregoing allegations. Theyfurther state that: 105. The present mining policies observed and implemented by publicrespondents are abjectly insufficient in protecting petitioners’ right to abalanced and healthful ecology in accord and rhythm of the harmony ofnature. Hence, there is urgent need to issue a writ of continuing mandamus. 106. For public respondent DENR to submit before this Apex Court anacceptable draft of the amendment of its implementing rules and regulations ofRepublic Act No. 7942 defining or incorporating the statutory term ‘carryingcapacity’ and providing for its effective implementation.
26 107. For public respondent PAWB to conduct a comprehensivenationwide survey detailing the key biodiversity areas or protected areas thatare being affected by or overlapped with mining applications and tenementsand 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 Zamboangapeninsula and the status thereof as well as a comprehensive report on allenvironmental transgressions committed by existing and operating miningcompanies in the Philippines and the corresponding sanctions or curative actionsundertaken to restore or rehabilitate the affected environment. 109. For public respondent NCIP to submit to this Apex Court: (a) all itsissued certifications on free, prior and informed consent to mining companiesand the circumstances of their allowance; (b) complete list of ancestral domainsin the Philippines, whether delineated, issued with CADT or not; and (c) thenames of ICCs in the Philippines, the areas where they populate, and theircurrent 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 andfurther state that: 110. Judges must adhere to the highest tenets of judicial conduct. Theymust be the embodiment of competence, integrity and independence. LikeCaesar’s wife, a judge must not only be pure but above suspicion. The peoplesconfidence in the judicial system is founded not only on the magnitude of legalknowledge and the diligence of the members of the bench, but also on thehighest standard of integrity and moral uprightness they are expected topossess.37 111. A judge may not be legally prohibited from sitting in a litigation. Butwhen suggestion is made of record that he might be induced to act in favor ofone party or with bias or prejudice against a litigant arising out of circumstancereasonably capable of inciting such a state of mind, he should conduct acareful self-examination. He should exercise his discretion in a way that thepeople’s faith in the courts of justice is not impaired. A salutary norm is that hereflects on the probability that a losing party might nurture at the back of his37 Avancena v. Judge Liwanag, per curiam, A.M. MTJ-01-1383, July 17, 2003
27mind the thought that he had unmeritoriously tilted the scales of justice againsthim.38 112. Respondent Presiding Judge of the Regional Trial Court Branch 30,Aurora, Zamboanga del Sur violated the foregoing tenets and the Code ofJudicial Conduct. 113. Canon 1 of the Code mandates that a Judge should uphold theintegrity and independence of the Judiciary. He should be the embodiment ofcompetence, integrity and independence. 114. The conversion of an injunction case filed by MSSON Mining againstthe members of Petitioner ASIN into a special civil action of writ of continuingmandamus and the consequent denial of their motion for reconsiderationbespeak of gross incompetence and ignorance of the rules on the part of therespondent Judge. This procedural lapse is very patent since defendants thereinare not even connected with the government. 115. Subsequent rulings handed down by respondent Judge alsodemonstrate lack of knowledge, intentional or otherwise, of the EnvironmentRules. 116. As for instance, his denial of the SLAPP defense by defendants in thatAurora injunction case is inconsistent with Sec. 2 Rule 6 view that petitionermembers of ASIN had surmounted the threshold in Sec. 3 thereof by substantiallyproving that their acts of picketing the ingress into the protected forest reserve isa legitimate exercise of their right and duty to protect and preserve the subjectforested area which has been illegally opened for mineral exploration. 117. When respondent Judge issued in a frenetic pace the series ofprovisional orders of TROs and Preliminary Injunction despite the doubtful claim ofMSSON Mining, he in effect blatantly disregarded the primordial objective of therules which is to protect and advance the constitutional right of the people to abalanced and healthful ecology. He did all of these questionable Orders despitethe mandate in the Rules that he should apply the precautionary principle indealing with the issues confronting him and to be bias instead to petitionermembers of ASIN’s constitutional right to a balanced and healthful ecology bygiving such claim the benefit of the doubt.38 Alejo, et al. v. Judge Pestano-Buted, G.R. Nos. 154150-51, Dec. 10, 2007
28 118. Respondent RTC Branch 30 Judge of Aurora, Zamboanga del Sur isnot the epitome of integrity and independence. The transcript of stenographicnotes will bear out his suspiciously too accommodating of MSSON Mining. He isvery harsh upon petitioner Paulino Alecha when the latter was unceremoniouslyejected 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 MSSONMining’s Manager when the latter challenged counsel and defendants thereinto 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 toomanifest where he did not even rule on the allegations of forum shopping doneby MSSON mining where the latter had filed earlier criminal cases against thesame defendants in the said injunction case. 121. Respondent Judge refused to stay his injunction case despite the ruleon the primacy of criminal cases earlier filed properly invoked by defendanttherein. Worse still, he refused to voluntarily inhibit himself from further handlingthe case despite their most respectful request due to his clear favoritism toMSSON Mining. 122. And worse still, he shamelessly ‘rewarded’ defendants’ valid requestsfor suspension of that injunction case and for his voluntary recusal with whimsicalissuances of the questioned preliminary injunctive writs despite pendency of theincidents of demurrer and of their opposition to plaintiff’s application for theseprovisional writs. 123. Worst of all, respondent Judge has utilized the environmental ruleswhen he sees convenient for plaintiff mining company, like the rule on speedydisposition, but like a chameleon, reverts back to the regular Rules of Court whenhe deems fit to issue the questioned injunctive writs. CONCLUDING STATEMENT The biggest threat now to our remaining forests and terrestrial ecosystemscomes from mining. With the looming adverse impacts brought about by climatechange, the Philippines will be doubly vulnerable. Thanks but no thanks to the turn-around ruling in La Bugal. Publicrespondents shamelessly view it as a green light to promote with more impunity
29this extractive industry destructive of the ecology. Mining companies are noweven more than emboldened to rush to every nook and cranny of this country toget a share of this nature’s hidden wealth. Said this Court in its obiter dictum inLa 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. Theestimated value of Php47 trillion of these buried minerals cannot even be worththe irreversible ecological damage that will be endured for generations tocome. The inhabitants of Easter Island believed in this economic theory fivecenturies ago and their island became a wasteland? After five years of intensive mining operations re-triggered by La Bugal, themining 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 muchbetter. This obiter in La Bugal is very disturbing, to be polite about it. It continues tocling on to the hackneyed dichotomy that the economy and the environmentare separate. This old mindset of the previous Court is totally opposed to thepresent thinking of this Apex Court as it writes in its rationale to the Rules ofProcedure 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!
30 PRAYER FOR RELIEF WHEREFORE, premises considered, petitioners most respectfully pray of theHonorable 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
31 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 City IBP No. 823439/01-03-11/Cebu City PTR No. 0853604/01-03-11/Cebu City Roll of Attorneys No. 48949 Email: firstname.lastname@example.org Telefax: 032-4129106 MCLE III # 0012835/ April 16, 2010 VERIFICATION & CERTIFICATIONWE: 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;
32 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.
33GLORIA ESTENZO-RAMOS FELIX B. UNABIA RICARDO TOLINOMARIO CATANES WILMA A. TERO MANUELA A. PATENOBARLIE BALIVES DANILO O. ERANGA JESUS CATAMCOPAULINO ALECHA SR. FR. ARSENIO MARANE SULTAN MAGUID MARUHOMTIMOAY 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 ofCebu, this ___ day of ______________, 2011 by all the affiants who are personallyknown to me being my clients in this case.Doc. No. ____Page No. ___Book No. ____Series of 2011