Test case for mining liability
Who knows?
The force majeure claim is certain to test the Philippine Mining Act and the recently issued Executive Order 79 of President Aquino, which is meant to institutionalize and implement reforms in the mining sector to ensure environmental protection and responsible mining in the utilization of mineral resources.
Force majeure clauses are included in most binding contracts, whether public or private, to cover for unforeseen and extraordinary circumstances beyond all control. Toledo and Philex have a valid point. If it is the law, then we should follow it.
However, “force majeure” does not qualify under the Philippine Mining Act. Jasareno said the law is silent about the issue of force majeure. As such, force majeure circumstances have no bearing on the penalties and fines exposed.
“If there’s discharge, the law imposes fine,” he said. “We need to enforce what we are supposed to enforce. There are things that are not negotiable.”
Initial assessment made by the MGB had it that 20 million metric tons of wastewater was accidentally discharged into the Balog creek and Agno River as a result of the failure of Philex’s Tailings Pond No. 3.
Aside from the P1.034-billion fine for violation under the Philippine Mining Act of 1995, Philex is also facing a P200,000 per day fine for violation under the Clean Water Act.
The Pollution Adjudication Board ( PAB), a quasi- judicial body, headed by Environment Secretary Ramon Paje is currently assessing the damage caused by the leak. I hope this could be done quickly.
I wish to note several other points, based on the interview.
Toledo said there is really no fishing going on in Balog Creek because the water runs too fast. Besides, he said, the Bureau of Fisheries and Aquatic Resources (BFAR) declared the fish in the creek fit for human consumption.
If there is no fishing there, or if the fish is safe to eat, how come the local government of Itogon, Benguet imposed a fishing ban in Balog Creek and the waterways leading out of the Padcal mine?
Itogon Mayor Oscar Camantiles said more than 40 families depend on the town’s waterways for their livelihood.
And what of the water itself? Is it safe to drink? Because the people get their water there too. The main sources of livelihood in Itogon, which is mainly inhabited by the Ibalois, are mining, agriculture and fishing.
Toledo said the Philex spillage in the waterways is biodegradable and is not toxic. I’d like to see him drink the water in Balog Creek and other waterways that were contaminated by the leaks.
Another thing that wasn’t noted in the interview was that there wasn’t just one leak in August, but several, at least four, according to government reports.
According to a story which ran in the weekly online news magazine Bulatlat.com (“Untold story of Philex’s mine waste spill” by Marya Salamat), the DENR predicted the lifespan of Philex’s Tailings Pond No. 3 at 18 to 20 years. Hence, it should no longer be used for dumping mine waste by 2010.
It was reportedly well-known that the pond’s lifespan is only up to 2010, maximum of 2012.
If this is true, then it brings in another thing to consider in the liability issue and also makes the force majeure claims moot.
We will see what happens in the weeks to come. It is still too early to say with certainty how this issue will be finally resolved. Whatever the outcome of the case, it would be prudent for all stakeholders –the mining companies, the government, the NGOs and the citizenry to watch succeeding events more closely.
ernestboyherrera@ yahoo. com