RESIDENTS of Bgy. Didipio in Kasibu, Nueva Vizcaya have availed themselves of one final pleading to urge the Supreme Court to reconsider its March 30, 2006 decision dismissing their petition to declare the Mining Act of 1995 unconstitutional and the Financial and Technical Assistance Agreement (FTAA) awarded to Climax-Arimco Mining Corp. (CAMC), recently renamed Australasian Philippines Mining Inc., illegal.

Filing a motion for reconsideration yesterday, the Didipio Earth-Savers’ Multi-purpose Association (Desama), whose members are directly affected by the area of operations of the Australian mining firm’s FTAA, contended that the SC ruling erred in delegating the power of eminent domain — the power of the State to forcibly acquire private property for public use — to mining operators.

Desama argued that only the State exercises eminent domain powers except when a private entity is authorized to operate a public utility.

“How could Climax Arimco be given such power when it is a foreign mining corporation whose primary interest is for private gain and not for public benefit?” asked Peter Duyapat Sr. The Desama leader, a member of its board of directors, also criticized the SC ruling for depriving them of their right to decide on what will benefit them the most and at the same time will best sustain the environment.

Desama counsel, Atty. Melizel Asuncion of the Legal Rights and Natural Resources Center (LRC), also pointed out that the power of eminent domain has restrictive exceptions. Under Section 9, Article III of the Constitution, the valid exercise of the said power, she said, requires the (1) taking of a private property whose purpose must be for (2) public use which should be made (3) upon payment of just compensation.

“The Court’s ruling implies that private property can be taken without just compensation and for private gain,” she said.

In its March 28 decision penned by Associate Justice Minita Chico-Nazario, and promulgated two days later, the Court’s First Division acknowledged that Section 67 of Republic Act No. 7942, or the Mining Act, is a “taking” provision but that its review of mining laws, particularly Presidential Decree No. 512 passed into law on July 19, 1974 to achieve full and accelerated mineral resources development, showed that such a grant of authority to exercise eminent domain to mining operators is deemed already incorporated in the Mining Act.

The Court also justified that the taking in the case of mining operators is valid because of its public-use character. “Mining is an industry which is of public benefit,” the Court declared, seeing its pivotal role in the economic development of the country as expressed in Presidential Decree No. 463:

WHEREAS, mineral production is a major support o the national economy, and therefore the intensified discovery, exploration, development and wise utilization of the country’s mineral resources are urgently needed for national develoment.

Section 76 states that:

Entry into private lands and concession areas — Subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein: Provided, That any damage done to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated as may be provided for in the implementing rules and regulations: Provided, further, That to guarantee such compensation, the person authorized to conduct mining operation shall, prior thereto, post a bond with the regional director based on the type of properties, the prevailing prices in and around the area where the mining operations are to be conducted, with surety or sureties satisfactory to the regional director.

Desama however is contesting such claim that mining operations will be for the public benefit, noting that the Mining Act “obliges the Philippine government to ensure that mining contractors do not come out of the mining venture poorer thatn when they came in.”

“The law does not provide for the government’s equitable share of the mining contractors’ profit,” argued Asuncion. On top of this, she said, mining contractors enjoy incentives as corporate tax and duty holidays from the Board of Investments. Those holding FTAAs like Climax-Arimco, are allowed to recover their pre-operating and property expenses before giving the government its share in the net revenue, which Asuncion said, are “nothing but levies — taxes, duties and other fees that are not part of the investment return.”

Aside from the “dubious” public benefit, Desama also questioned the lack of a just compensation provision in the mining law to comply with the requirement of the legal exerise of eminent domain. Desama claimed that the SC ruling erred in equating damage compensation to just compensation.

The Court said the Section 76 of the Mining Act and Section 107 of Department Adminstrative Order (DAO) No. 96-40 issued by the Department of Environment and Natural Resources provide for the payment of just compensation.

But what the law and its implementing rules and regulations provide are only damage compensation in actual mining operations and/or the installation of machineries and other mining facilities, said Asuncion. “Just compensation pertains to the full payment of a property taken away from the owner based on its fair market value.”

Desama’s motion likewise questioned why the Supreme Court en banc did not decide on its earlier petition, arguing that Section 4(2), Article VIII of the Constitution provides that an en banc ruling is mandatory in cases where the constitutionality of a law is being challenged.

The Court said there was no need for the Court en banc to to tackle Desama’s case since the First Division did not declare any law or regulation unconstitutional and merely adopted its decision in the La Bugal B’laan v Ramos case reversing its earlier ruling declaring the Mining Act unconstitutional. (Download the SC decision here.)

Despite being the last pending case before the Supreme Court, the LRC does not deem the motion for reconsideration as a culmination of the Didipio people’s struggle against mining. “The legal avenue is only one of the available paths in support of the struggle not only of the people of Didipio but of thousands of indigenous peoples and their communities throughout the country who are losing their ancestral lands in the face of the government’s aggressive push for mining,” said Jocelyn Villanueva, LRC executive director.

Assailing the government’s assertions of the promised economic benefits from the mining industry, Villanueva claimed that this is just a “myth.” “The Mining Act will only enrich mining operators at the expense of the Filipino people.”

Villanueva added that the LRC supports the call of the Catholic bishops to repeal the Mining Act and is drafting an alternative mining bill as part of its legislative agenda.

The Didipio people’s battle against mining interests in their area has been ongoing since then Pres. Fidel v. Ramos, on behalf of the government, entered into an FTAA with then Arimco Mining Corp (AMC) in June 1994 to mine about 37,000 hectares of land in Nueva Vizcaya and Quirino provinces. A 100-percent Australian-owned mining company at the time the FTAA was signed, AMC subsequently consolidated with Climax Mining Ltd., another Australian mining firm, to form CMAC.

Less than a year later, on March 3, 1995, Ramos signed into law RA 7942 (the Philippine Mining Act).

In September 2001, the villagers filed a demand letter with then DENR Sec. Heherson Alvarez to cancel CAMC’s FTAA. A second demand letter was sent to Gloria MAcapagal Arroyo in June 2002.

On May 6, 2003, Desama filed a petition for prohibition and mandamus, with prayer for a temporary restraining order, before the Supreme Court. The SC en banc resolved to return the case to the First Division, which dismissed Desama’s petition and upheld the constitutionality of the mining law.

Desama has also filed a petition for mandamus before the regional trial Court in Bambang, Nueva Vizcaya to compel the DENR to cancel CAMC’s environmental compliance certificate (ECC) on the grounds that it did not comply with the mandatory requirement of the mining law and the Local Government Code regarding the prior acquisition of consent from local governments concerned.

Both the Sangguniang Barangay (barangay council) of Didipio and Sangguniang Bayan (municipal council) of Kasibu did not endorse CAMC’s mining activities. Only the Sangguniang Panlalawigan (provincial council) has given its endorsement. CAMC has also gotten the approval of the local Sangguniang Kabataan, though it is not recognized as a local government unit.

The Regional Development Council (RDC) likewise rejected CAMC’s ECC application for a certification in October 2000, a decision sustained in a February 2001 special meeting, as the proposed project is located within a critical watershed area.

Download Desama’s motion here.

16 Responses to Didipio villagers appeal SC ruling on Mining Act

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Juan Makabayan

April 25th, 2006 at 11:27 am

The Death Penalty Law and the Mining Act are both deadly.Both must be repealed.

The Death Penalty Law is debated on ethical, moral, philosophical and other grounds but the Mining Act’s deadly and devastating effects on communities for generations are very real and actual — a whole-sale death sentence on Filipinoss that is carried out each day theses mines operate.

Repeal the Mining Act! Ban the openning of new mining sites! Stop the pillage of our patrimony!

Save the lives of Filipinos, save the children, save our future from traitors and predators !!! Ibasura ang Mining Act !! Now Na!!

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lc

April 25th, 2006 at 11:50 am

Stopping Cha Cha is one other way to stop mining predators (who care only about private profits without regard to our native tribes and the environment). One purpose of Cha Cha is to loosen up the provisions re our land and natural resources.

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aus_phil

April 25th, 2006 at 9:08 pm

Interest and opposition to mining activities are being pushed quite aggressively now that a number of high grade, sustainable and profitable mining sites have been identified and about to be explored. At pre-exploration stage, people just watch with amazement what’s happening. Now some sectors say, no to foreign mining, now the environment, the effect to the indigenous people, etc. etc. In the past, when the vast rich forest have been raped by greedy loggers (who are more likely locals or Filipinos), people were helpless. The indigenous or tribes people were affected by the lost of their habitat. The deforestation of the forest was an act that was basically Filipinos (correct me if I’m wrong) and buyers likely from overseas. The argument that participation of foreigners in the mining industry is not a legitimate concern, as profit really needs to be there in order to attract investment. Both local and foreign companies could inappropriately commit devastation due to accidents or poor construction or mining practices such as in the cases of Marcopper and Rapu Rapu. There is no guarantee that there would be no accident, as this part of the risks involved in the industry. Strict mining procedures, however, need to be sustained. The cash strapped Filipino investors could not muster enough capital to indulged in an almost $100 million investment at Didipio. We’re talking of big sum of money here. Without profit, which company will even think of investing? Nothing is freely given, even in aid assistance where counterpart funding is required from recipient government. The questions of “public benefits” vis-a-vis “public doman”, etc. are not any important because the legality of the Mining Act of 1995 has been already been made into law. The Act, I pressumed, once and for all laid to rest issues such as mining claims, counter claims, access, indigenous rights, usage, eminent domain, public or private ownership, etc.

The mining industry in the Philippines has been languishing or in dormancy for at least 30 years now because no companies, especially foreign-owned would dare enter into the country because the risks involved were so huge that investment would need to be abandoned or not even considered. A number of countries which were investment-friendly, opened up their resources for exploration (some people of course would say “exploitation”) are now immensely benefitting from the heavy demands of their minerals. Dependence to mining is not the end by itself. As far as I know, Malaysia started with mining tin, abandoned the same once they have enough capital to invest in industrial endeavor or because it becomes uneconomical. A number of pressure groups are against foreign-companies but mind you other foreign companies who are of Asian origin and knows how to “silence critics or make the critics a bit happier” through various means are never in the spotlight. Foreign mining firms who will do the right thing and who will not do the way to “silence critics” would definitely be in the spotlight all the time.

The mining company at Didipio is already in the advanced stage of raising the capital to start the plant and begin the mining activities. It has already spent huge sum of money in the pre-exploration and exploration stage, been harassed and an explorer killed while surveying the area. Despite not having assurance of finality prior to the approval of the Mining Bill of 1995, has continued to spend some amount in the community development, modest this could be.

In retrospect, I think those pressure groups’ ideals would not be in vain because mining companies, especially foreign-owned would be very mindful of their operations knowing that there exist pressure groups who would ensure that, although they may have lost their desire to repeal the Mining Act, would serve as watchgroups to ensure that only right thing would be done by these entities.

I think this is democracy at its peak and should be welcomed by all. Now after the government has finally decided and made inroads in addressing most, if not all of the concerns of the Filipino people, only moving forward, with sense of expectations, calibrated response are expected so that everyone watches each others back that the interests of the Filipino people are protected.

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tongue in, anew

April 26th, 2006 at 3:50 am

The business of mining is very much the playground of large multinationals who risk their investments long term, in order to exploit the short term markets’ demand. Locals who were quite successful in mining 20-30 years ago did not have the guts to reinvest their money in new mines, and they did so mainly because of 2 reasons: first, they saw that world prices of gold and copper cannot be sustained at that level… and they were right; second, Marcos and his friends were picking on everybody’s gold everywhere, from mine ores, to central bank bars, to Yamashita buddhas… and they were afraid.

I bet a lot of our yuppies (around my age) do not recognize the names Henry Brimo or Walter Brown, who were among the few mining-based industrialists that managed to compete with big Australian miners like BHP. Despite the millions of tons of ore these guys hauled to Japanese smelters, or the number of mountains they have flattened with open-pit mining, they never made it as big as say, Henry Sy, or Lucio Tan, in terms of wealth.

The recent renewed interest in mining in the region is basically due to the huge demand for copper and iron by China’s suppliers. We saw last year a major battle for the acquisiition of an old Australian iron mine between Australian giants BHP Billiton and Rio Tinto. A mine that probably would sell all its iron to China exclusively. And all other world players are scouting for old mining sites and exploring new ones within the Asean for the same purpose.

The Philippines cannot stay on the sidelines and watch as our neighbors fetch the highest prices for mine ores. We have a huge unemployed populace, abundant gold and copper resources, the best geologists and our archipelagic topography is best suited for transporting mine produce more efficiently.

Our clergymen and affected village groups have said their piece and that would be enough to make sure our government is aware of their concerns. Just to make sure, a congressional review of the Act is imperative to ensure the procedures are tight and free from lopholes future offenders might use to circumvent the law. We were all disgusted with the Marcopper tragedy and look, here’s Rapurapu all over again.

I can also see where aus_phil is coming from. The corrupt politicians, as usual, do not interfere in the pre-exploration and exploration activities. But just as the exploration company declares the viability of full scale operations, here come the politician’s men, village folk in tow, to oppose commercial operations and to scare off the original investor. Meanwhile, the politician is negotiating with his own financiers who helps him undertake the mining with his own company.

As a nation that aspires for economic upliftment, we cannot continue dragging our feet on this rare opportunity to wisely use our God-given resources for our own benefit. A corrupt government notwithstanding, decent business leaders should take the cudgels and this time around, make sure the industry addresses social issues and concerns that have been raised while enabling us to become a major minerals dealer for so long we have failed to be.

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Juan Makabayan

April 26th, 2006 at 2:34 pm

For centuries our land have provided for the basic human needs of generations of Filipinos and would have continued to sustain the next generations had it not been for our wanton disregard for the consequences of what is called ‘development’.

Our experience with mining should teach us not to be tempted by short term or personal gain while not considering the permanent losses ‘development’ would incur.

Mining has done more than enough damage than nature can sustain. It must be stopped, immediately, if we still have hope that, with our cooperation, nature will still recover to nurture us.

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gwaping

April 27th, 2006 at 1:21 pm

mr. jun makabayan, look around your household, look! look outside your household, look! meron ka bang nakita na hindi galing sa Mining? Have you seen anything, not made of metal, plastic and glasses? Lahat yan galing sa Mining, how can you stop mining then? Oh, siguro sabi mo ‘wag na lang si Pilipinas, sa ibang countries na lang, bayaan mo na lang na siraan ng ibang bansa ang kapaligiran nila para okay ang Pilipinas, selfishness naman yata ‘yun!

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freewheel

April 28th, 2006 at 5:55 pm

gentlemen: please forgive my ignorance to this, as to so many things;
maliban sa puno, ibon, magandang tanawin, watershed, at mga tao, ano ba meron dito sa Dipidio?

1. endangered species, meron ba?
2. anong minerals?

honest, di ko talaga alam…can somebody enlighten me, please?

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Alecks Pabico

April 28th, 2006 at 7:41 pm

Freewheel,

Climax Arimco’s FTAA in Didipio is for an open-pit gold and copper mine project. Villagers used to occasionally engage in gold panning until the arrival of the mining firm.

Didipio is a predominantly Ifugao and Ibaloi community of migrant settlers driven out of their lands by the proposed Casecnan dam project in the 1960s during the time of Marcos. The villagers depend solely on the vast agricultural lands for their sustenance.

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scud_1975

April 29th, 2006 at 11:38 pm

Mayaman ang Pilipinas sa “natural resources”, lalo na sa minerals. Binigay sa’tin ng Diyos yan, natural lang na gamitin natin yan..at gamitin ng maayos. Nagiging masama lang ang epekto nito kung mababahiran ng pulitika (na naman!) . Marami nang lumalabas na makabagong teknolohiya sa pagmimina, sayang lang dahil hindi pinapayagan ng Philippine Constitution ang “Foreign Ownership” sa kagaya ng mining na makakapagbigay sana ng trabaho sa mga Pilipino. Importante rin na maresolba muna ang mga issues na makakaapekto sa kabuhayan ng mga naninirahan sa paligid ng minahan. Isa na rito ang Canatuan Polymetallic Mining Project ng TVI Pacific, a Canadian mining company na hindi kasing kontrobersyal ng Placer Dome at Climax Arimco. Pero ang balita , inutusan ng Cnadian Government ang Canadian Embassy sa Pilipinas na ‘wag suportahan ang TVI hangga’t may mga issues na hindi nareresolba.

“WORRIED ABOUT CANATUAN MINING PROJECT”

The Canadian parliamentary committee, which had unanimous support from sitting MPs, including members of the ruling Liberal party, is concerned about the impact of Canadian mining and other resource companies on the economic and social well-being of employees and local residents, as well as the environment in such countries as the Philippines, Columbia, Sudan and the Democratic Republic of the Congo.

The committee also asked the Canadian embassy in the Philippines not to promote or publicly support TVI Pacific’s Canatuan mining project in Mindanao until specific allegations regarding the violation of indigenous and human rights and the environment have been fully investigated.

What happened there is not an atypical example of how Canadian mining companies have functioned in developing countries, says Catherine Coumans, research coordinator for Mining Watch Canada.

Although Philippine legislation prohibits development on land without the specific permission of indigenous peoples, the Calgary-based TVI was granted a permit by government officials to mine for gold on what is locally considered a sacred mountain in Canatuan.

Among the problems facing the indigenous Subanon and other residents in a community near the one-year-old mine is inadequate protection from the run-off of chemical comtaminants, which threaten both the fish in the local rivers and streams as well as the rice and fruit plantations, Coumans explains.

Furthermore, she adds, local residents have been turned back at various checkpoints manned by private security guards employed by TVI. The company is seeking to evict and relocate residents who are reluctant to leave their homes, she said. All of this is happening in an area where guerilla armies and bandits are operating and both ambushes and kidnapping have occurred.

“It has been pointed out by Amnesty International and others that companies should not operate in areas that require them to use military forces or excessive security in order to maintain their operations, as such conditions are prone to human rights abuses,” Coumans said.

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freewheel

April 30th, 2006 at 9:58 am

this particular issue should NOT be simply dismissed as a TIRADE on development versus environment. there is more than meets the eye. and the SC ruling further adds to the confusion rather than settle age-old problems (special emphasis on pages 28, 29 and 30 of the court ruling).

the ruling further exposes the Mining Act of 1995 to be lacking not only in foresight but appreciation of Phil. mining history problems (for sure, the authors appreciated the money), and wanting of revisions, if not altogether put into the waste basket.

here is the quick why’s: if the Mining Act pretends to be not only pro-development but covers the socio-environmental issues as well;

1. why is there a need for the high court to seek shelter in the arguments of Marcos PD’s 512 and 463? people should remember that because of these 2 decrees, local mining is transformed into one pathetic monopoly between politicians and its businessmen- friends based abroad.

2. try reading the section of RepAct 7942 that gives DENR Reg’l Directors ” EXCLUSIVE jurisdiction over safety inspection of all installations, whether surface or underground” .

and WE ALL know that these positions are mostly bestowed, based on political partisanship. besides, safety is one issue that should concern everybody, is it not?

and we continue to wonder why tragedies that claims thousands of lives happens?

go figure, to me, it is SICKENING…

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freewheel

April 30th, 2006 at 11:45 am

i could sense in aus_phil comment, what is left unsaid; business commitments are commitments and should be honored, especially if the government is involved. otherwise, we further drive down our standing (or what is, left of it) in the int’l buss. community.

and in my friend, tongue-in , guarded exhortations,”… to wisely use God-given resources for our benefit..”

i will not contest them. in fact, i agree with you completely. however, let us put the ONUS, the burden of proof in the STATE to convince us, because Climax Arimco FTAA is something of a baptism of fire- a beginning of things, which we might not be able to forgive ourselves if things go awry.

i would like to submit that skew, or slant if you will,- should be on the side of PRUDENCE, and DOUBT rather than on optimism. here are 3 reasons:

1. Climax-Arimco (the proponent) is ‘awarded’ or given a stake and exploration rights covering an area of 37,000 hectares.

the sheer size alone should send us panicking (to me, at least). in terms of hectarage, it is MORE THAN HALF the size of Singapore !! what it is precisely that this company offers us, that they deserve so much blessings from the gods?

2. mode of mining operation is open-pit

questions begging to be answered:

a. this means, hills and mountains will not only be levelled, most likely to happen as what others previously did- excavations, that will surely affect surface and underground water levels. tributaries and brooks forms the streams, streams forms the larger streams and rivers which in turn, the watershed.
downstream, what happens to the communities dependent of the rivers for water supply? (potable and livelihood)
b. the faunas- will not only be dislocated, they will FOREVER depart us?
c. is there a plan at all, for land rehabilitation, plan for preservation and control of matters affecting geological disasters?

3. what are the targets? GOLD (lots of it) and Copper (high-grade). it is often said, that it takes millions of years for nature to form this 2 important metals.

questions, then:

a. how many years the proponent intend to exploit what nature had given us? a decade? two? or five? these metals we must remember, are NON-replenishable
after, what is next?
b. accdg. to proponent’s estimates: there are more than 5.8 million oz. of reserve deposits of gold, not counting the copper- does the Ramos-sponsored FTAA covers the ISSUE OF CONTROL over the total quantity of reserves exploitation? if yes, who controls then?
c. in refining the gold, which of the two poisonous substance will be used? MERCURY or CYANIDE? who will oversee the proper and safe disposal of these tailings, the DENR regional director?

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baycas

May 2nd, 2006 at 7:47 am

alecks, freewheel & jr_lad:

have lots of things in my hands lately…anyway, i got these during my short break. couldn’t read voluminous reads on the topic but i hope these pdf’s help in your research…

the e.o. where the ftaa emanated: http://www.lawphil.net/executive/execord/eo1987/eo_279_1987.html

investment liberalization, mining act of 1995 and its impacts on the indigenous peoples, upland communities and rural poor, and on the environment: http://www.saprin.org/philippines/research/phi_mining.pdf

chronology of events from 1989 to 2003: http://www.oxfam.org.au/campaigns/mining/ombudsman/2003/cases/didipio/didipiofull.pdf

the The Financial or Technical Assistance Agreement (FTAA):

The FTAA grants CAMC the right to explore, exploit and manage Philippine mineral resources. The agreement declares the following:

1) the Philippine government is a direct partner of the project proponent. The Government remains the only owner of all mineral resources in the country;

2) a 25-year mining lease is granted to the contractor, renewable for another period, which cannot exceed 25 years;

3) after devoting the first five years to exploration and feasibility studies, the contractor shall make a US $50 million minimum expenditure commitment to be invested in the project;

4) upon recovery by the contractor of its pre-operating expenses, a revenue-sharing scheme shall be implemented wherein the Philippines receives 60% and the contractor 40% of the net profit;

5) obligations of the Contractor:
– to relinquish the contract area to the government after exploration, retaining a maximum 5000 hectares allowable for mining;
– to give preference to local products and services of comparative quality;
– to promote and transfer new technologies to local counterparts;
– to help develop the host community;
– to take actions to restore and protect the environment.

http://www.lnf.infn.it/~ferrer/Malabyn_Valley_diagnostic.pdf.gz

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Alecks Pabico

May 2nd, 2006 at 1:52 pm

Thanks a lot, Baycas, for your resourcefulness!

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The Alyansa Tigil Mina Blog :: The PCIJ Blog on the situation in Didipio :: May :: 2006

May 4th, 2006 at 1:45 pm

[…] Emphasis ours, article in full on the PCIJ Blog. Comments » […]

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INSIDE PCIJ: Stories behind our stories » Lawyers’ groups urge SC to reverse ruling on Mining Act’s constitutionality

May 11th, 2006 at 5:38 pm

[…] Desama, composed of residents of Bgy. Didipio in Kasibu, Nueva Vizcaya who are directly affected by the area of operations of the Australian mining firm’s FTAA, filed a motion for reconsideration last month to appeal the SC ruling. […]

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INSIDE PCIJ: Stories behind our stories » Senate to review mining act

June 6th, 2006 at 12:37 pm

[…] The petition was dismissed by the high court in March this year; the Dipidio residents have filed an appeal. […]

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