Philippine court dismisses OceanaGold’s bid to keep mining on expired permit

Canadian-Australian mining company OceanaGold Philippines Inc was challenging a provincial directive encouraging residents to block the operations of the mining giant after the 20 June 2019 expiration.

OceanaGold’s gold and copper mine in  Didipio, Philippines
OceanaGold’s gold and copper mine in Didipio, Philippines. Image: OceanaGold Philippines

A Philippine court has thrown out an appeal by a mining company seeking to continue operations despite its permit having expired last year.

The decision by the Philippine Court of Appeals against OceanaGold Philippines Inc. (OGPI) marks the latest legal victory for the Indigenous community in the Didipio region, some 270 kilometers (170 miles) northeast of Manila, who for a quarter of a century have fought against the destruction of their environment.

The ruling was handed down on June 30 but only made public by parties in the case on July 11. In a statement, OceanaGold said it wasn’t aware of the decision and only learned of the ruling through social media.

“The Company [OGPI] has not received any formal order from the Court of Appeals and is seeking confirmation,” OceanaGold said in a statement issued July 13. “If the denial of the injunction is in fact accurate, the Company will continue to defend its right to operate the Didipio Mine in the interim whilst it completes the [permit] renewal process.”

The 37,000-hectare (91,400-acre) Didipio gold and copper mine (limited to 10,266 hectares, or 25,368 acres, in 2018) straddles the border between the provinces of Nueva Vizcaya and Quirino. It was covered under a mining permit known as a Financial and Technical Assistance Agreement (FTAA).

Such agreements are valid for 25 years, with a possibility for renewal for another 25 years. In the case of Didipio, the initial validity expired on June 20, 2019, making OceanaGold’s mining permit the first to expire under the Philippines’ Mining Act of 1995.

Without a precedent to refer to, developments in the post-expiration phase have been marked by legal wrangling and conflicting stances by the authorities. The Mines and Geosciences Bureau (MGB), under the national government’s Department of the Environment and Natural Resources (DENR), issued a letter which OGPI claimed gave them the go-ahead to continue operating pending its FTAA renewal application. The site is believed to hold 1.41 million ounces of gold and 169,400 tonnes of copper.

But the provincial government of Nueva Vizcaya issued a directive on the same day the FTAA expired, calling on locals to “restrain any operations” by OceanaGold. Residents, mostly members of the Indigenous Ifugao-Tuwali tribe, erected two blockades. They worked in shifts, barricading the entrance to the mine site to prevent service vehicles from going in.

The blockade prompted OGPI to file five legal cases against the provincial administration of Governor Carlos Padilla last year, including an injunction against the barricade. Last year, the regional court rejected OGPI’s request for an injunction, forcing the Canadian-Australian mining giant to take the ruling to the country’s Court of Appeals.

But the higher court has dismissed the petition on the same grounds. “Since the initial term of the FTAA already expired without it being renewed yet, there is no prevailing agreement on which the petitioner can anchor its right to continue its mining operations,” the court said in the ruling seen by Mongabay.

The appellate court also said no Philippine law grants OGPI any right to conduct mining operations after the end of its mining agreement or while in the process of applying to renew its mining permit.

The court said the injunction OGPI was seeking “must be granted only in the face of injury to actual and existing substantial rights” and that it “cannot be a remedy to protect or enforce contingent, absolute or future rights.”

Groups opposed to the mine have welcomed this latest ruling. “With this, the Duterte government should immediately reject the pending renewal of Oceanagold’s FTAA,” said Leon Dulce, national coordinator of the environmental group Kalikasan People’s Network for the Environment. “It is crucial and urgent to immediately close the mine and expedite the rehabilitation of the mine site to mitigate the multiple risks it poses on the Covid-19 pandemic situation faced by the host communities in Vizcaya.”

OGPI says it will take the case to the Supreme Court of the Philippines, if necessary. Prior to the petition for an injunction, the company had an existing case challenging the legality of Governor Padilla’s blockade order. “Due to delays caused by the Covid-19 pandemic, the parties are still undergoing pre-trial conference,” OGPI said in a statement.

The company says the authority over the Didipio mine rests with the national government, and that local government units cannot restrain any operation entered into by the national government. OGPI’s renewal process has already been endorsed by the MGB to the president’s office and is awaiting the signature of President Rodrigo Duterte.

The renewal of the FTAA is a separate and independent process which the Philippine National Government has authority over,” OceanaGold said. “In this regard, the status of the FTAA renewal has not changed, and it remains with the Office of the President of the Philippines.”

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