The Supreme Court (SC) has ordered the Department of Environment and Natural Resources (DENR) and its Mines and Geosciences Bureau (MGB) to explain why the operations of the two mining firms in Brooke’s Point in Palawan will not pose serious and irreversible harm on the environment and the residents.
In a Writ of Kalikasan, the SC also required an explanation in 10 days from the two mining firms – Ipilan Nickel Corporation (Ipilan Nickel) and Celestial Mining and Exploration Corporation (Celestial Mining).
During its full court session on Tuesday, Aug. 15, the SC granted the petition for a Writ of Kalikasan filed by the Indigenous Communities (ICC) of BICAMM Ancestral Domain in Brooke’s point. BICAMM is composed of indigenous peoples (IPs) from Barongbarong, Ipilan, Calasaguen, Aribungos, Maasin, and Mambalot in Brooke’s Point.
A Writ of Kalikasan is a legal remedy for the protection of one’s right to “a balanced and healthful ecology in accord with the rhythm and harmony of nature,” under Section 16, Article II of the Constitution.
The counting of the 10-day period to submit their explanation or comment on the petition filed by the ICC in Brooke’s Point starts from the time DENR, MGB and two firms receive the SC resolution issued by SC.
The copy of the SC resolution was not available as of posting. The SC’s public information office (PIO) issued a summary of the resolution.
The PIO said that in 1993, the government and Celestial Mining entered into a 25-year Mineral Production Sharing Agreement (MPSA) covering 2,835.06 hectares of land located in Brooke’s Point with Ipilan Nickel as the designated mining operator.
In its petition, the BICAMM ICC said the MPSA covered areas within the National Integrated Protected Areas System, specifically the area within the Mt. Mantalingahan Mountain range.
The petition stated that despite a declaration by DENR Secretary Regina Paz L. Lopez that the MPSA’s Environmental Compliance Certificate (ECC) expired in October 2015, Ipilan Nickel and Celestial Mining continued with their tree-cutting activities which have caused the deforestation of Mt. Mantalingahan.
It said that in 2018, after Ipilan Nickel failed to secure a Certificate Precondition from the National Commission on Indigenous Peoples (NCIP) for the renewal of the MPSA, the firm still continued with its mining operations.
It pointed out that on Dec. 21, 2020, then DENR Secretary Roy Cimatu issued an order reckoning the effectivity date of the MPSA to the year it was amended in 2000, and not the year it was originally executed in 1993.
Thus, it said, the MSPA was effectively extended until April 10, 2025.
The petition stated that on May 30, 2022, the DENR Community Environment and Natural Resources Office issued a cease-and-desist order directing Ipilan Nickel to halt its port construction for the lack of a valid Miscellaneous Lease Agreement approved by the DENR MIMAROPA Regional Office.
Later, it said the Sangguniang Bayan of Brooke’s Point issued a resolution requesting the MGB to investigate the mining areas claimed by Ipilan Nickel and to recall the permits pending investigation. But, the petition stated that the MGB did not act on the request.
It said that MGB’s inaction prompted the Sangguniang Bayan to issue another resolution urging President Ferdinand R. Marcos, Jr., through the DENR Secretary, to investigate Ipilan Nickel’s operation due to lack of clearance from the Protected Area Management and Certificate of Precondition from National Commission on Indigenous Peoples (NCIP) and without endorsement of the MSPA from various local government units in Brooke’s Point.
The petition also stated that on Sept. 19, 2022, the Sangguniang Bayan, in a resolution, asked the Palawan Council for Sustainable Development to recall Ipilan Nickel’s Strategic Environmental Plan Clearance System due to violations like illegal cutting of trees, absence of public consultation, unsupervised cutting of trees, use of unregistered chainsaws, and excavation and hauling of minerals that “adversely affect the life and health of Brooke’s Point’s residents.”
It said that on June 20, 2023, the NCIP ordered the suspension and deferral of the free and prior informed consent process of Ipilan Nickel and Celestial Mining due to complaints from the ICCs and reports of bribery by Ipilan Nickel to elicit support from the IPs.
In granting the petition and issuing a Writ of Kalikasan, the PIO said the SC “held that the following must be present for the grant of a writ of kalikasan: (1) Petitioner must sufficiently allege and prove the actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) The actual or threatened violation should stem from the unlawful act or omission of a public official or employee, or private individual or entity; and (3) The actual or threatened violation should be shown to lead to an environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.”
“In the case of the ICCs, the Court found that all of the requisites are present: (1) The mining operations by Ipilan Nickel and Celestial Mining may cause irreparable environmental damage to the Mt. Mantalingahan protected area and the ICCs’ ancestral domain; (2) The mining operations of Ipilan Nickel and Celestial Mining, as exacerbated by the lack of action by the DENR and MGB, place the residents of Brooke’s Point in peril; and (3) The Mt. Mantalingahan Mountain range covers several municipalities of Batarza, Brooke’s Point, Sofronio Española, Quezon, and Rizal, and the continued mining operations and excavation of nickel minerals lead to environmental damage in the said mountain ranges, as exhibited by extreme flooding and contamination of fishing areas, which continually prejudice the life, health, and property of the residents,” the PIO also said in its summary.
The PIO cited the principle laid down by the SC in its 2021 case which states: “A project proponent is required to provide evidence to dispel concerns regarding potential harmful impact of a project to the environment, shifting the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo.”
Quoting from the resolution, the PIO said:
“In the present case, the Court found that there is a possibility of serious and irreversible harm on the environment and the inhabitants of Brooke’s Point located in the Mt. Mantalingahan Mountain Range.
“Thus, with the Court’s issuance of a Writ of kalikasan, the project proponents, Ipilan Nickel and Celestial Mining, are required to provide evidence to dispel concerns regarding potential harmful impact of a project to the environment.
“The same applies to the DENR and MGB, whose inaction over the strong pleas of the residents of Brooke’s Point shows their indifference to the rights of the ICCs to a balanced and healthful ecology.”