Palace told: Review cases of mining firm backing LP

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THE Supreme Court (SC) has given the Office of the President (OP) the power to review cases involving exploration and small-scale mining operations of a corporation owned by a campaign contributor of President Benigno Aquino 3rd and former Interior Secretary Manuel Roxas 2nd.

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In a ruling penned by Associate Justice Bienvenido Reyes and concurred in by Associate Justices Presbitero Velasco Jr., Diosdado Peralta, Jose Portugal Perez and Francis Jardeleza, the SC’s Third Division denied a petition filed by Basiana Mining Exploration Corp. (BMEC), Basiana Minerals Development Corp. and its president Rodney Basiana against SR Metals Inc. (SRMI) and instead elevated the case to Malacanang.

SRMI was given a permit to extract Nickel and Cobalt (Ni-Co) in a 20- hectare mining site in Sitio Bugnang, Barangay La Fraternidad, Tubay, Agusan del Norte.

It was classified as a small-scale mining company allowed to extract 1.8 million metric tons of nickel ore from August 2006 to September 2007, but it was ordered to pay P7 million for over-extraction since the law allows small-scale miners to extract 50,000 MT of ore annually.

SRMI is owned by Caloocan City (Metro Manila) Rep. Edgar Erice and trader Eric Gutierrez, the campaign financier of Aquino and Roxas.

Davao City Mayor Rodrigo Duterte even accused Roxas of using the private helicopter of Gutierrez allegedly in exchange for protection of the mining activities of the businessman.

The SC ruling dated March 7, 2016, which was released to the media just recently, also affirmed an amended decision dated June 18, 2009 of the Court of Appeals (CA).

Basiana assailed the ruling, which granted motions for reconsideration dated January 21, 20093 and December 23, 20084 of the secretary of the Department of Environment and Natural Resources (DENR) and SRMI, respectively, reversed and set aside the CA’s decision dated December 10, 2008 and dismissed the petition for review filed by the petitioners, among others.

Petitioner BMEC, headed by Basiana, applied on July 31, 1997 for a Mineral Production Sharing Agreement (MPSA) with the DENR for the extraction of nickel and other minerals covering an area of 6,642 hectares in Tubay and Jabonga, Agusan del Norte.

On November 24, 2006, the DENR secretary issued a cease and desist order against the mining operations because of excess in annual production, maximum capitalization and labor cost to equipment utilization.

Basiana then filed a complaint before the Regional Trial Court of Butuan City on May 15, 2007 for rescission of contract, abuse of rights and damages against SRMI.

BMEC, then already known as BMDC, also filed a complaint for breach of trust, accounting and conveyance of proceeds, judicial confirmation of declaration of partial nullity of contract and termination of trust and abuse of rights with damages against SRMI, San R, Galeo, et al.

Subsequently, the director of the Mines and Geosciences Bureau (MGB), on January 10, 2008, recommended approval of APSA-000014-XIII filed by SRMI.

Thus, BMEC and Basiana filed with the MGB Panel of Arbitrators (MGB-POA) a petition to deny the application for MPSA and/or cancellation, revocation and termination of MPSA.

Pending resolution of the protest before the MGB-POA, the government, represented by the DENR secretary entered into another MPSA with SRMI for the development and commercial utilization of nickel, cobalt, iron and other associated mineral deposits in the area.

The petitioners then filed a petition for review with the CA assailing the issuance of the same.

The appellate court initially granted the petition and declared the MPSA null and void, ruling that it should be stricken down because the DENR secretary has no authority and jurisdiction to approve SRMI’s application.

It also found that the petitioners adopted the wrong mode of appeal when the filed a petition for review before it.

Nevertheless, the CA resolved to treat the petition as one for certiorari since it alleged grave abuse of discretion on the part of the DENR secretary in approving the application despite pendency of the petitioners’ protest.

SRMI filed a motion for reconsideration of the CA decision, which the court granted.

The CA found the petitioners to have committed forum shopping as the petition for review was filed despite the pendency of the protest with the MGB-POA, prompting Basiana to elevate the case before the SC.

In its March 7, 2016 decision, which was released just recently, the SC held that “a premature invocation of a court’s intervention renders the complaint without cause of action and dismissible.”

“The DENR secretary, no doubt, is under the control of the President; thus, his decision is subject to review of the latter. Consequently, the petitioners should have appealed its case to the Office of the President… instead of directly seeking review by the court,” it pointed out.

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