REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

PHILIPPINE EARTH JUSTICE CENTER INC.; ALLIANCE TO SAVE THE INTEGRITY OF NATURE INC.; KESALUBUUKAN TUPUSUMI ORGANIZATION OF SUBANEN PEOPLE, Mario Catanes, Wilma A. Tero, Manuela A. Pateo, Barlie Balives, Danilo O. Eranga; Sultan Maguid A. Maruhom, Timoay Lucenio M. Manda, Gualberto F. Largo, Daniel C. Castillo, Jerry S. Espinas, Bishop Jose Recare Manguiran, Fr. Sean Martin, Fr. Arsenio Marane, Felix Unabia, Ricardo Tolino, Jesus Catamco, and Paulino Alecha Sr.,

Petitioners,- versus - G.R. NO. 197754

FOR: SPECIAL CIVIL ACTION FOR ISSUANCE OF A WRIT OF KALIKASAN

SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; DIRECTOR, MINES & GEOSCIENCES BUREAU; DIRECTOR, PROTECTED AREAS AND WILDLIFE MANAGEMENT BUREAU; DIRECTOR, NATIONAL COMMISSION FOR INDIGENOUS PEOPLES; X, Y & Z COMPANIES WITH MINING APPLICATIONS AND/OR MINING TENEMENTS IN THE HIGHLANDS OF THE ZAMBOANGA PENINSULA as represented by the Chamber of Mines,

Respondents.x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -/

PETITION FOR ISSUANCE OF A WRIT OF KALIKASANWITH PRAYER FOR TEMPORARY ENVIRONMENTAL

PROTECTION ORDER & WRIT OF CONTINUING MANDAMUS

Petitioners most respectfully intone:

PRECIS OF THIS PETITION

Gravely threatened with environmental damage of such magnitude as to

prejudice the life, health or property of the inhabitants in three provinces and at

least three chartered cities due to the unconscionable issuances of mining

tenements is the mineral resource-rich region of Zamboanga Peninsula. It lies

between the Moro Gulf, part of the Celebes Sea, and the Sulu Sea and

geologically connected to the main island of Mindanao through an isthmus

situated between Panguil Bay and Pagadian Bay. (See Figure 1)

We borrow environmental capital from future generations with no intention or prospect of repaying. They may damn us for our spendthrift ways, but they can never collect on our debt to them. We act as we do because we can get away with it: future generations do not vote; they have no political or financial power; they cannot challenge our decisions. [World Commission on Environment and Development, 1987]

Zamboanga

Peninsula is endowed

with rich mineral

resources. Its sub-

surface is known to

contain huge deposits

of, among others,

metallic minerals like

gold, chromite, coal,

iron, silver, lead, and

manganese. It must be

for this reason that it

has long become a natural magnet to mining companies.

The peninsulas

mineral richness may be

traced back to its long

geological history. It

appeared as an island on

this part of the Pacific still

attached to the islands of

Samar and North Luzon

about fifty million years

ago (See Figure 2).1

It rested and

became more or less

stationary at its

present location

about 35 million years

ago and connected

with the main part of

the Mindanao island

just about 2 million

years ago (See Figure

3).2

1 See Robert Hall, Cenozoic Tectonics of SE Asia and Australasia, SE Asia Research Group, University of London, http://searg.rhul.ac.uk/current_research/plate_tectonics/sea_2001_svga.mov2 Ibid

2

Figure 1. The present Geographic map of the Zamboanga Peninsula

50

Figure 2. Animation by Robert Hall, SE Research Group

2Figure 3. Animation by Robert Hall, SE Research Group

The main political subdivisions of the Zamboanga peninsula are the

provinces of Zamboanga del Norte, Zamboanga del Sur and Zamboanga-

Sibugay. It cradles the cities of Dipolog and Dapitan of Zamboanga del Norte

and Pagadian City of Zamboanga del Sur.

The Zamboanga Peninsula has a land area of 1,413,754 hectares, 54

percent of which is classified as forest land. This portion is retained as part of

public domain mainly for ecological reasons. On the other hand, 46 percent

have been released as alienable and disposable to accommodate needs for

food production, settlement, infrastructure and other purposes.3

The region is generally hilly and mountainous. In Zamboanga del Norte

alone, 66 percent of its land area have slopes ranging from 18 percent to 50

percent. Both Zamboanga del Sur and Zamboanga Sibugay have their

mountainous regions running along their northern boundaries with Zamboanga

del Norte, then level out into wide flat lands extending to the coastal plains of

Baganian Peninsula in Zamboanga del Sur in the southeast and the Sibugay Bay

Area in Zamboanga Sibugay in the southwest.4

But the peninsulas 50-million-year geological and ecological history is

being threatened by public respondents. They have brazenly redrawn its map by

allowing senseless and indiscriminate mineral extraction over its entire mountains

and uplands. (See Figure 4)

Based on the 2008

data for Region IX from

public respondent MGB,

the total MPSA applied

for and approved for

the region already

totaled fifty two (52)

tenements involving a

total land area of

222,074.29 hectares. On

the other hand, the

FTAAs applied for in 2008

totaled four (4)

tenements involving an aggregate area of 78,975 hectares while exploration

3 NEDA, Regional Development Agenda Zamboanga Peninsula (Region IX) http://www.neda9.net/attachments/article/61/Regional%20Development%20Agenda%201.pdf4 Ibid

3

Figure 4. The mineral map of Zamboanga Peninsula (Region IX), showing the extent of mining tenements issued or applied for constituting more than 50% of its land area. This map posted in the webpage of respondent MGB is prepared by its Mines Management Division with a caveat that it is not valid for litigation.

permits applied for and approved numbered eighty one (81) tenements

involving a total land area of 402,546.04 hectares.

Figure 5.Number of Approved MPSA in Zamboanga Peninsula: 15Total Area Covered: 48,031.62 hectaresAs of March 2011 Source: MGB website

Thus as of 2008, the total land area subject to and opened for mining in

Zamboanga Peninsula was 703,595.33 hectares, accounting for 45.25% of its

total land area.

4

Figure 6. Number of MPSA Applications in Zamboanga Peninsula: 38Total area covered: 184,393.34 hectaresAs of March 2011 Source: MGB website

But as of March 2011, the total MPSAs has drastically increased with the

number of approved tenements at 15 while MPSA applications at 38 bringing a

total of 53 MPSA tenements and involving a total land area of 232,424.96

hectares (See Figures 5 & 6). As to FTAAs, the current number of applications

remained at four (4) involving a slightly increased area of 80,819.5 hectares. In

respect to Exploration Permits, the current number of applications and approved

tenements increased to 113 covering a total land area of 495,024.63 hectares.5

In summary, the total land area subject to and made open for mining in

Zamboanga Peninsula as of March 2011 rose significantly to one hundred

seventy (170) tenements affecting a total land area of 808,269.09 hectares or

about 51% of the regions total land mass.

By the foregoing backdrop petitioners ask: How would public respondents

be able to protect the peninsulares right to ecology with such a large area

suffered for mineral extraction?

Petitioners seek leniency from this Honorable Supreme Court for going

straight to it. The environmental issues raised in this Special Civil Action for Writ of

Kalikasan under Rule 7 of A.M. No. 09-6-8-SC are rather novel, such as on how to

effectuate the statutory definition of carrying capacity of our ecosystems and

whether public respondents mindless issuances of mining tenements in

biologically diverse Zamboanga peninsula have violated the principle of non

regression.

Lower courts, tribunals and the bar need guidance from this Apex Court

upon these matters. And they need it quick before the last of the peninsulas

remaining forests will be cut off and its verdant mountains flattened or made

hollow underneath.

THE PARTIES

Petitioners:

1. Petitioner Philippine Earth Justice Center Inc. (PEJC) is a non-profit non-

stock corporation duly registered under the laws of the Republic of the

Philippines. Its principal office address is located at Room M-8, University of Cebu,

College of Law, Banilad, Cebu City where it may be served with legal processes.

It is established to provide legal assistance for victims of environmental injustice,

conduct policy research on the environment, advocate policy reforms, assist in

5 See www.mgb.gov.ph

5

building local capacities for environmental protection and promote sustainability

and protection of human rights. It is represented in this suit by its Executive

Director and Trustee, Atty. Gloria Estenzo-Ramos pursuant to a resolution of its

Board, copy of which is attached as Annex A.

2. Petitioner Alliance to Save the Integrity of Nature, Inc. (ASIN) is a non-

government organization duly registered under the laws of the Republic of the

Philippines. Its principal office address is at San Jose Parish, Midsalip, Zamboanga

del Sur where it be served with legal processes. It is primarily established to

promote environmental awareness in the community and protect the peoples

human rights and their right to ecology. It is represented in this suit by its

Chairman, Felix B. Unabia pursuant to a Board resolution which copy is attached

as Annex B.

3. Petitioner Kesalubuukan Tupusumi Organization is an association duly

organized under the laws of the Republic of the Philippines with its principal

office at Poblacion, Midsalip, Zamboanga del Sur. It is an organization of

Subanen people, an Indigenous Cultural Community in Zambonga Peninsula,

represented in this suit by its President Ricardo Tolino pursuant to a resolution of its

Board attached as Annex C.

4. All other individual petitioners whose names and personal

circumstances are found in the verification and certification hereof are residents

in Zamboanga Peninusula. They all are suing on their behalf and on behalf of the

minor Filipinos and of generations of Filipinos yet unborn.

5. For procedural convenience and practical reasons, all of the herein

named individual petitioners may be collectively served with summons and other

legal processes issued from this Apex Court at the PECJ Office, University of

Cebu- College of Law, Banilad Campus, 6000 Cebu City.

Respondents:

6. Respondent Secretary Ramon Paje is the head of the Department of

Environment and Natural Resources (DENR), a government agency created by

virtue of Executive Order No. 192, dated June 10, 1987. It is primarily mandated

for the conservation, management, development, and proper use of the

countrys environment and natural resources. It may be served with summons,

papers and other legal processes at DENR Building, Visayas Avenue, Diliman,

1110 Quezon City, Philippines.

6

7. Respondent Mines and Geosciences Bureau (MGB) was elevated into a

line bureau of public respondent DENR pursuant to Republic Act No. 7942. Its

office is located at MGB Compound, North Ave., Diliman, 1110 Quezon City

where it may be served with summons and other legal processes. Its declared

mission is to be the steward of the country's mineral resources committing itself to

the promotion of sustainable mineral resources development, and being aware

of its contribution to national economic growth and countryside community

development. It is represented in this suit by its Acting Director, Engr. Leo L.

Jasareno.

8. Respondent Protected Areas and Wildlife Bureau (PAWB) is likewise a

line agency of DENR. It is established pursuant to Republic Act No. 7586 or the

National Integrated Protected Areas Systems (NIPAS) and invested with a primary

mandate of protecting the countrys wildlife. Its office is located at the Ninoy

Aquino Parks and Wildlife Center, 1100 Diliman, Quezon City where it may be

served with summons and other legal processes. It is represented in this suit by its

Director, Theresa Mundita S. Lim.

9. Respondent National Commission on Indigenous Peoples (NCIP) is a

government agency created pursuant to Republic Act No. 8371. Its mandate is

to protect and promote the interest and well-being of ICCs/IPs with utmost

regard to their beliefs, customs and institutions. Its office is located at 2nd Floor N.

de la Merced Bldg., Cor. West and Quezon Avenues, Quezon City where it may

be served with this Courts summons. It is represented in this suit by its Executive

Director, Basilio A. Wandag

10. Respondents mining companies and entities with stakes in Zamboanga

Peninsula are impleaded in this suit under their assumed appellations owing to

their number which, as of last count is already 170 and still growing. They may,

however be properly represented in this suit by their association, the Chamber of

Mines of the Philippines with its office at Room 809, Ortigas Bldg., Ortigas Ave.,

1605 Pasig City or by public respondent MGB itself that issues permits or contracts

them with mining tenements.

ENVIRONMENTAL LAWS/PRINCIPLES TRANSGRESSED

I. Sec. 16, Art. II of the Philippine Constitution;

II. Sec. 19 (f) of Republic Act No. 7942;

III. Sec. 20 (f) of Republic Act No. 7586;

IV. Section 27 [c][iii] of Republic Act 9147;

7

V. Principle of Prior, Free and Informed Consent as required under Sec.

16 of Republic Act No. 7942, Sec. 7 (b) and Sec. 57 of Republic Act

8371;

VI. Principle of Carrying Capacity of Ecosystems as defined under Sec.

3 (d) of Republic Act No. 7942; and

VII. Principle of stand-still or non regression.

ACTS OR OMISSIONS COMPLAINED OF

I. Respondents violated or threaten to violate Petitioners Right to Ecology

11. Mining entails moving earth. By quarrying or digging tons and tons of

overburden just to reach and extract the ores containing the desired minerals,

physical landscape is necessarily altered or destroyed along with the foliage

atop. With forests gone, habitats of flora and fauna follow and watersheds run

dry.6

12. When ores are reached, segregative process will be applied wherein

relative amounts of valued substances is isolated from much large mass of less

valuable materials. As for example in copper mining, almost 95.5% of materials

mined are rejected comprising the so-called mine wastes.7

13. These wastes coming from mining activities may result into land

degradation, ecosystem disruption, acid mine drainage, chemical leakages,

slope failures, toxic dusts, among others (See Figure 5).8

6 See Gavin Bridge, Dept. of Geography Syracuse University, Contested Terrain: Mining and the Environment, Annual Review Environmental Resources, 20047 Ibid8 Ibid

8

Figure 5. Potential Environmental and Social Impact of Mining (World Resources Institute).

14. These potential hazards are perennial in every single active mining

area. But where, as in the case of Zamboanga Peninsula there are presently

one hundred and seventy (170) mining tenements already entertained or

otherwise approved involving a total of 808,269.09 hectares, which is about 51%

of peninsulas land mass, the threat to the environment has become very real

rather than merely apparent.

15. Section 16 of Article II of the 1987 Philippine Constitution declares that

the State shall protect and advance the peoples right to a balanced ecology in

rhythm and harmony of nature. As a constitutionally guaranteed right of every

Filipino, it carries with it the correlative duty of non-impairment. 9

16. This is but in consonance with the declared policy of the state to

protect and promote the right to health of the people and instill health

consciousness among them. It is to be borne in mind that the Philippines is a

party to the Universal Declaration of Human Right and the Alma Conference

Declaration of 1978 which recognize health as a fundamental human right.10

17. By allowing mineral extraction in almost all the upland areas of

Zamboanga peninsula, respondents have callously impaired or threatened to

impair petitioners right to ecology. Because of their wholesale mining grants,

mountaintops will definitely be ultimately scraped or bored hollow, valleys will be

filled with quarried earth and raised, rivers and creeks that supply water into

downhill communities for their domestic, agricultural and industrial uses will be

polluted or will run dry.

18. Public respondents may argue that all environmental protective

measures are anyway in place in each and every tenement they issue and will

be strictly enforced during every mining operation. But this is better said than

done.

19. With the vastness of the area being opened and subjected to mining,

it would be a no brainer that these regulatory conditions will not at all be

observed nor complied with.

20. Track record of public respondents DENR and MGB speaks of itself.

Marinduques Boac River is now biologically dead after Marcoppers mine

tailings spilled into it in 1996. Because of that environmental disaster, marine life in

9 Minors Oposa v. Factoran10 Laguna Lake Development Authority v. CA, et al., G.R. No. 1101020, March 16, 1994

9

S em irara

O nly wh en the last tree has b een cu t do w n,O n ly w he n th e last river h as bee n po is on ed ,

O n ly w he n th e last fish h as b een caug h t,O nly t he n w il l yo u find th at m o ney can n ot b e eaten .

C r e e Ind ia n P r op he c y

the 26-kilometer waterway vanished, with farmlands and villages flooded. More

than fifteen years after the said mine disaster, the province is still coping with

millions of cubic meters of toxic mine wastes.

21. Yet, what have these public respondents done to restore Boac river?

How about the environmental catastrophes in Rapu-rapu and Semirara (See

Figure 6) islands which are directly caused by irresponsible operations of mining

companies permitted by public respondent MGB in these areas? Have public

respondents cleaned up the dirty seven?11

22. Research shows that in order to better monitor compliance to

environmental regulations in mining, the ideal area assigned per technical

inspector is 30 hectares. With more than 800,000 hectares now opened to mining

in Zamboanga Peninsula, public respondent MGB necessarily needs more than

20,000 personnel to effectively manage the subject area. But with less than a

thousand staff manning its regional office, most likely public respondent MGB will

just rely on unsubstantiated reports submitted by mining companies and most

likely these reports may not at all be verified on the ground.

II. The capricious issuances of Mining Tenements violated Sec. 19 (f) of R.A. 7942

11 Major abandoned mine collectively known as The Dirty Seven: 1) Bagacay Mines of Philippine Pyrite Corp. at Bagacay, Hinabangan, Western Samar; 2) Tagburos Mines of Palawan Quick Silver Mines at Tagburos, Puerto Princesa City; 3) Basay Mines of Basay Mining Corp.at Malinao, Basay, Negros Oriental; 4) Mogpog Mines of Consolidated Mines Inc. at Mogpog, Marinduque; 5) Benguet Mines of Black Mountain Mines Corp. at Tuba, Benguet; 6) Benguet Exploration of Thanksgiving Mine Inc. at Tuba, Benguet; and 7) Atok Mines of Western Minolco Inc. at Atok, Benguet.

10

Figure 6. Birds eye view of the ecological wasteland that is Semirara island taken by Lorenzo Tan of WWF-Philippines

23. By entertaining or otherwise issuing a total of one hundred seventy

(170) mining tenements covering practically the entire mountainous area of the

Zamboanga Peninsula, public respondents unabashedly assumed that the entire

peninsula must be open to this extractive industry.

24. In so doing, public respondents transgressed the disallowance written

in Sec. 19 (f) of the Mining Law against accepting mining applications in areas of

old growth or virgin forests, proclaimed watershed forest reserves AND in areas

expressly prohibited under NIPAS and other laws.12

25. The preceding law is clear. Where there is present old growth or virgin

forests in an area applied for mineral agreement or FTAA, or such an applied for

area is otherwise proclaimed watershed, public respondent MGB is duty-bound

not to accept such mining application, even if this area is not covered by NIPAS.

26. By NEDAs own account, fifty four (54%) percent of Zamboanga

Peninsulas total land area is classified as forest land while proclaimed as

watershed areas in Zamboanga del Norte reached 1,156 hectares, in

Zamboanga Sibugay 577 hectares, and in Zamboanga City 17,414 hectare.13

27. While mere classification of an area may not prove conclusive the

existence therein of old growth or virgin forest, it nevertheless constitutes prima

facie the subsistence of these vital ecosystems.

28. But by opening practically all of the mountain areas in the peninsula

for mineral extraction, public respondent MGB has wrongly presumed that the

entire mountainous area of the peninsula is denuded and without watersheds.

29. A clear example to this blatant abuse of discretion is MGBs grant and

approval of Geotechnicques and Mines Inc. (GAMI) MPSA No. 288-2009-IX on

August 5, 2009 covering an area of Five Hundred Sixty Seven (567) hectares

inside the mountain ranges of three (3) Barangays in Midsalip, namely: Sigapod,

Guinabot and Cumaron. This was done notwithstanding the fact that these

barangays are actually part and the heart of the Mount Sugarloaf Complex,

12 Section 19. Areas Closed to Mining Applications. Mineral agreement or financial or technical assistanceagreement applications shall not be allowed: x - x x x f. Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws.13 NEDA, Regional Development Agenda Zamboanga Peninsula (Region IX), supra

11

located in the central portion of Zamboanga Peninsula and which was declared

a forest reserve or protected watershed on August 9, 1966 under Proclamation

Order No. LC-2487, a copy of the certification issued by public respondent PAWB

is attached as Annex D.

30. As further proof that these three barangays of Midsalip are indeed

watershed or forest reserve area, a Midsalip Watershed Management Unit

Project was implemented by its local government unit on December 28, 1992

with a total cost of Php41,157,589.00, copy of its Project Profile is attached as

Annex E.

31. This invalidly issued MPSA to GAMI is currently the subject of a

questionable assignment of rights in favor a certain MSSON Mining and

Exploration Corporation. The said assignment is patently defective since it did not

carry the approval from public respondent DENR Secretary as required by Sec.

30 of Republic Act 7942.

32. When this MSSON mining tried entering into the prohibited area in

October 2010, petitioner ASINs members peacefully picketed along the ingress

toward the overlap mining area. Due to their resistance, this MSSON Mining

thereafter filed in November 2011 two criminal cases at the Zamboanga del Sur

Provincial Prosecutors Office for alleged violations by the members of Petitioner

ASIN of Sec. 107, Republic Act. 7942.14 These pending twin criminal cases are

docketed as I.S. Case No. IX-09-INV-10F-00352 and I.S. Case No. IX-09-INV-10F-

00356.

33. Not contented with the criminal actions it earlier filed, this MSSON

Mining also filed on December 8, 2010 an Injunction case and damages with

prayer for TRO and Preliminary Injunction at the Regional Trial Court Branch 30,

Aurora, Zamboanga del Sur against the same respondents in the aforesaid

criminal complaints, members of Petitioner ASIN. This MSSON Minings injunction

case is docketed as Civil Case No. AZ-30,549 (Aurora case, for brevity).

34. Weird spin-off of the Aurora case then ensued. The RTC Branch 30 of

Aurora under Judge Ernesto Laurel immediately treated this MSSON Minings

injunction case as an environmental case to be governed by the Rules of

Procedure for Environmental Cases, apparently taking cue from Rule 2 of A.M.

09-6-8-SC.

14 Sec. 107, R.A. 7942: Any person who, without justifiable cause, prevents or obstructs the holder of any permit, agreement or lease from undertaking his mining operations shall be punished, upon conviction by the appropriate court, by a fine not exceeding Five thousand pesos (P5,000.00) or imprisonment not exceeding one (1) year, or both, at the discretion of the court.

12

35. Thereafter, RTC Aurora issued its first bizarre order of the day on

December 9, 2010 ruling that the same injunction case should be converted into

a petition for issuance of a continuing mandamus under Rule 8 of the

Environmental Rules and thereby ordered defendants therein, who are members

of petitioner ASIN, to file their comment, a copy of Judge Laurels order is

attached as Annex F.

36. When petitioner-members of ASIN objected to the improper

conversion of said injunction case in their motion for reconsideration in view of

the fact that they do not even belong to any government agency, much less

being officers thereof, the same RTC Aurora court on January 26, 2011 denied

their motion albeit ruling that the case ought to be tried under Section 2, Rule 22

of the Environmental Rules, a copy of its order is attached as Annex G.

37. Meanwhile, defendants in that Aurora case and co-petitioners in this

extant filed their answer on December 20, 2010 and thereby raised SLAPP as their

affirmative defense. But their SLAPP defense was too brushed aside by Judge

Laurel of RTC Aurora through an Order dated March 14, 2011, a copy of which is

attached as Annex H.

38. After the denial of their SLAPP defense and despite their pending

incident of a motion for consideration, what followed thereafter was a well-

orchestrated zarzuela perpetrated by this MSSON Mining and the RTC 30 of

Aurora.

39. By cleverly using the principle of speedy disposition of environmental

cases as provided under Section 1, Rule 3 in the Environmental Rules as a

smokescreen, the same RTC Aurora conducted marathon pre-trial conference,

mediation, pre-trial proper of the injunction case in less than a month.

40. Thereafter, the same RTC Aurora issued a pre-trial Order on May 6,

2011 and setting marathon trial dates of May 30, May 31, June 1, June 2, June 6,

June 7, June 9, June 13, June 14, June 15, June 16 and June 17, 2011, a copy of

the Pre-Trial Order is attached as Annex I.

41. On May 31, 2011, this MSSON Mining as plaintiff in the aforementioned

injunction case before the RTC Aurora, Zamboanga del Sur. commenced

presentation of its first witness, a copy of the TSN on May 31, 2011 is attached as

Annex J.

13

42. Evidence of plaintiff MSSON Mining in the said Aurora case continued

on June 6 and 7, 2011 after which the same RTC Aurora required the defendants

therein, petitioner ASIN members to submit their demurrer within 7 days.

43. But just a day after this MSSON Mining rested its case, it filed a motion

reviving its application for a TRO. So that defendants in said injunction case was

forced to incorporate in their Demurrer their opposition to this MSSON Minings

application for TRO or Preliminary Injunction and asked finally for Judge Laurels

recusal of the case because of his manifest bias, a copy of their demurrer is

attached as Annex K.

44. But even before their demurrer, opposition and motion to inhibit were

even heard and ruled, the same RTC Judge of Aurora granted on June 16, 2011

a 72-hour TRO, a copy of its Order is attached as Annex L.

45. And even before the TROs expiry, the same RTC Aurora smoothly

granted a 20-day TRO on June 17, 2011 and finally a writ of preliminary injunction

on July 6, 2011 in favor of this MSSON Mining, copies of these Orders are

attached as Annexes M and N. It must be noted that all of these rulings were

hastily done notwithstanding the pendency of the incidents aforementioned.

46. As such, in spite of the inherent legal defects of its mining tenement,

this MSSON mining was able to enter and start mining exploration into the

prohibited areas in Barangays Sigapod, Guinabot and Cumaron with the help of

military and police units securing their ingress into the protected area.

47. By the foregoing manifestation, it is desired that a separate

administrative investigation on the highly irregular conduct of RTC Branch 30,

Aurora, Zamboanga del Sur shall be done by this Honorable Courts Office of the

Court Administrator.

III. Respondents transgressed the prohibition in Sec. 20 (f) of the NIPAS Law

48. According to NEDA, eleven (11) sites inside Zamboanga Peninsula

have been declared as protected areas under the NIPAS Act. The cities of

Zamboanga and Dapitan lead other areas in terms of proportion of land area

declared as protected at 14.0 percent and 13.0 percent, respectively.15

49. Culled from public respondent PAWBs statistics are the following

declared/proclaimed protected landscapes in Zamboanga Peninsula:15 Ibid

14

a. Great & Great & Little Sta. Cruz Islands Protected Landscape & Seascape

in Zamboanga City and Zamboanga del Sur;

b. Jose Rizal Memorial Protected Landscape in Dapitan City;

c. Aliguay Island Protected Landscape and Seascape in Dapitan City;

d. Dumanquilas Protected Malangas, Buug, Kumalarang, Lapuyan,

Margosatubig, Vencenso Sagun, all in Zamboanga del Sur;

e. Selinog Island Protected Landscape and Seascape in Dapitan City;

f. Murcielagos Island Protected Landscape and Seascape in Labason,

Zamboanga del Norte;

g. Mt. Timolan Protected Landscape in San Miguel, Guipos & Tigbao,

Zamboanga del Sur;

h. Buug Natural Biotic Park in Buug, Zamboanga del Sur; and

i. Siocon Resource Reserve in Siocon, Zamboanga del Norte.

50. In addition to the above list, public respondent DENRs provincial

office in Zamboanga del Sur also certified that Mt. Sugarloaf complex which is

nestled at the heart of Zamboanga Peninsula had been declared a forest

reserve pursuant to Proclamation No. LC-2487 dated August 9, 1966, a certified

true copy of Pages 7897-7898 of the Official Gazettel, Vol. 62 No. 43 is attached

as Annex O.

51. The Mount Sugarloaf Key Biodiversity Area (KBA 155) has a total land

area of 34,349 hectares. It covers the municipalities of Midsalip, Bayog,

Lakewood, Tigbao, City of Pagadian, all of Zamboanga del Sur and the

municipalities of Bacungan, Godod, all of Zamboanga del Norte. The complex

includes Mt. Buracan, Mt. Tandasa, Mt. Mediau (Sugarloaf), Mt. Pinukis, Mt.

Maragang, Mt. Bulahan and Mt. Linugen.16

52. In sum, the land area of these proclaimed and declared protected

landscapes and seascapes in the Zamboanga del Sur Peninsula reach

95,423.944 hectares. Where the total mountainous area of the peninsula is about

54% of its total land area of 1,413,754 hectares or around 763,427 hectares, these

protected areas declared and proclaimed must have accounted to about 12%

of the peninsulas highlands.

53. By the foregoing data, it is therefore safe to assume that out of the

total land area of 808,269.09 hectares involving 170 tenements being opened by

16 See Philippines: Mining or Food? Case Study 1: Iron Ore & Other Minerals, Midsalip, Zamboanga del Sur Mindanao Island, by Robert Goodland and Clive Wicks 2008; see also Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002

15

public respondents for mining, more than 11% of these subjected to extractive

industry must be protected or proclaimed areas.

54. The preceding data does not even include those areas inside

Zamboanga Peninsula which are declared as Conservation Priority Areas (CPAs)

by public respondent PAWB and which are by the way protected by the

Convention of Biological Diversity of 1992.17

55. The peninsulas Mt. Sugarloaf forest reserve and Mt. Timolan protected

landscape in Zamboanga del Sur, and Mt. Lituban-Quipit watershed of

Zamboanga del Norte are likewise considered as Conservation Priority Areas

(CPAs). In terms of terrestrial and inland waters conservation, these are

considered as Extremely High Urgent level of priority.18

Figure 7. Map showing major portions of the Zamboanga Peninsula of High Ecological Value being threatened by mining. (Source: Mining and Critical Ecosystems: Mapping the Risks, Nov. 2003 by Marta Miranda, et al., published by World Resources Institute)

17 Convention on Biological Diversity, Sec. 1.The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.

18 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 27

16

56. By indiscriminately issuing mineral agreements or other tenements in

the subject area without taking into serious consideration the existence of

protected areas or conservation priority areas in the Zambaonga Peninsula, all

respondents have contravened Section 20 (f) of Republic Act 7586 which

prohibits squatting, MINERAL LOCATING, or otherwise occupying protected

areas.

57. In his treatise A preliminary Analysis of the Philippine Protected Areas

Systems: Gaps and Recommendations, author John Mackinnon laments that

the most bio-rich islands of Mindanao and Luzon are highly under-represented in

the Protected Areas (PA) system despite having quite a lot of remaining natural

habitat. He recommended, among others, that the PA system should be

enlarged and redesigned with strong biological basis and all remaining natural

habitat should be gazetted into the NIPAS system.19

58. Public respondent PAWB should assert its mandate because its

omission or acquiescence has unpalatably resulted into these ultra vires and

illegal acts of public respondent MGB. It would appear in this dissertation that

public respondent DENRs right hand, the MGB, may not have even known what

its left hand, the PAWB, is doing or vice versa.

IV. Respondents acts contravened Section 27 [c] of Republic Act 9147

59. Most obvious impact to biodiversity from mining is the removal of

vegetation, which in turn alters the availability of food and shelter for wildlife. At

a broader scale, mining may impact biodiversity by changing species

composition and structure.20

60. The Earth is presently experiencing changes to its natural environments

that are unprecedented in historic times. Destruction and degradation of natural

habitats are widespread and profound and their implications for the

conservation of biological diversity and the sustainability of natural resources are

of global significance. Humankind is responsible for an episode of species

decline, endangerment and extinction of enormous proportions, and

widespread deterioration in the quality of air, water and soils the basic

resources on which all of life depends. Such degradation of the natural

environment is not a new phenomenon, but it is the rapidity and global scale at

19 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 6220 World Resources Institute, Mining Literature

17

which change is now taking place that causes great alarm (Brown 1981; Myers

1986; Lunney 1991; Houghton 1994).21

61. The role of wildlife cannot be taken lightly. It is an integral part of a

functioning ecosystems, their interaction sustains its life-giving attributes (See

Figure 8).

Figure 8. A working ecosystems showing food and energy chain

62. The aforementioned key biodiversity areas in Zamboanga Peninsula:

Mt. Sugarloaf and Mt. Timolan of Zamboanga del Sur, Lituban-Quipit watershed

of Siocon, Zamboanga del Norte have been given Extremely High Priority level

for birds conservation by public respondent PAWB.22

63. In fact, sightings of Philippine Eagles (Pithecophaga jefferyi), a

critically-listed species, are well documented and verified, a copy of the

narrative of Public respondent DENRs CENRO dated April 24, 2001 is attached as

Annex P.

64. Sec. 27 (c) of Republic Act 9147 considers the following acts done

inside critical habitats of critical, endangered or vulnerable wildlife species as

criminal offenses:

a. Dumping of wastes products detrimental to wildlife;

b. Squatting or otherwise occupying any portion of the critical habitat;

c. Mineral exploration and/or extraction;

21 Andrew F. Bennett, Linkages in the Landscape: The Role of Corridors and Connectivity in Wildlife Conservation, IUCN Forest Conservation Programme, Series 122 Philippine Biodiversity Conservation Priorities, A second iteration of the National Biodiversity Strategy Action Plan, Final Report 2002, p. 35

18

d. burning;

e. logging; and

f. quarrying.

65. As a consequence of public respondent MGBs wholesale allowance

to mineral extraction in the peninsula, respondents have committed or will

continue committing these wildlife crimes.

V. Respondents violated the Principle of Prior, Free and Informed Consent and other Environmental law principles under IPRA

66. What distinguishes indigenous peoples from members of the

mainstream society is their customs, not their costumes. If indigenous peoples

assimilate culturally into the modern world, they consequently lose their legal

identify. This is exactly what happened to other Philippine ethnic tribes like the

Ilocanos, Ilongos, Cebuanos, et sequitur who chose to adapt the ways of their

colonizers.

67. Indigenous peoples (IPs) are those which having a historical continuity

with pre-invasion and pre-colonial societies that developed on their territories,

consider themselves distinct from other sectors of societies now prevailing in

those territories, or parts of them. They form at present non-dominant sectors of

society and are determined to preserve, develop, and transmit to future

generations their ancestral territories, and their ethnic identity, as the basis of

their continued existence as peoples, in accordance with their own cultural

patterns, social institutions and legal systems.23

68. Petitioner members of Subanen tribe are indigenous peoples who

populate and dwell in the highlands of Zamboanga Peninsula. Subanen means

"a person or people of the river", more specifically "from up the river" since they

are usually differentiated from the coastal inhabitants of Zamboanga peninsula.

By this tribes appellation, Zamboanga peninsula must have a lot of rivers.

69. The primary element that identifies Subanen tribe as an Indigenous

Cultural Community is their link to their traditional land area known as its

ancestral domain and/or ancestral land.

70. While ordinary Filipino mortals cannot claim ownership over the

countrys natural resources, their dominion over the natural resources found in

their ancestral domain/lands is statutorily acknowledged.23 United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Indigenous communities

19

71. Ancestral domains refer to all areas generally belonging to Indigenous

Cultural Communities/Indigenous Peoples comprising lands, inland waters,

coastal areas, and natural resources therein, held under a claim of ownership,

occupied or possessed by ICCs/IPs, themselves or through their ancestors,

communally or individually since time immemorial, continuously to the present

except when interrupted by war, force majeure or displacement by force,

deceit, stealth or as a consequence of government projects or any other

voluntary dealings entered into by government and private individuals,

corporations, and which are necessary to ensure their economic, social and

cultural welfare. It shall include ancestral land, forests, pasture, residential,

agricultural, and other lands individually owned whether alienable and

disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies

of water, mineral and other natural resources, and lands which may no longer

be exclusively occupied by ICCs/IPs but from which their traditionally had access

to for their subsistence and traditional activities, particularly the home ranges of

ICCs/IPs who are still nomadic and/or shifting cultivators.24

72. Although most of these ancestral domains in Zamboanga peninsula

may yet to be formally delineated or issued title, it is however safe to take judicial

notice that vast portions of these mountain areas must have been occupied and

claimed by petitioner Subanen Indigenous People as their ancestral domain and

lands.

73. The principle of free, prior and informed consent recognizes these

inherent rights of petitioner Subanen tribe to their ancestral domain and lands

and to the natural resources found therein.

74. Free, prior and informed consent means the consensus of all members

of the ICCs/IPs to be determined in accordance with their respective customary

laws and practices, free from any external manipulation, interference and

coercion, and obtained after fully disclosing the intent and scope of the activity,

in a language an process understandable to the community.25

75. By the foregoing concept, all the consent allegedly derived from

Subanen communities by mining companies inside their ancestral domains/lands

in Zamboanga peninsula as certified by public respondent NCIP must be

considered as vitiated as these are patently obtained by manipulation lacking in

24 Sec. 3 [a] Republic Act 837125 Sec. 3 [g], Ibid

20

the required full disclosure of the consequences of mining activities to their

ancestral domain, which includes their place of worship.

76. Besides, mining as an industry is anathema to the recognized right of

Indigenous Peoples to conserve their natural resources within their territories for

future generations. The use of machines in mining industry to achieve optimum

profit for the companies violates this right of petitioner Subanen tribe.

77. Further, the indigenous concept of ownership under IPRA sustains the

view that ancestral domains and all resources found therein shall serve as the

material bases of their cultural integrity. The indigenous concept of ownership

generally holds that ancestral domains are the ICC's/IP's private but community

property which belongs to all generations and therefore cannot be sold,

disposed or destroyed.26

78. Allowing mineral tenements into their ancestral domain will, as a

necessary consequence destroy these places to the utter prejudice of future

generations of Subanens.

79. Thus, whatever consent that was given by petitioner Subanens pseudo

leaders must be deemed illegal for transgressing the preceding principle of inter-

generational equity of IPs.

80. These NCIP certifications dangled by mining companies in these

subject areas are invalid for these were issued by their pseudo leaders in direct

contravention to their responsibility to maintain the ecological balance of their

ancestral domain by protecting the flora and fauna, the watershed areas and

other reserves therein.27

VI. Respondents breached the Environmental Law Principle on Carrying Capacity

81. Sec. 3 [d] of Republic Act 7942 or the Philippine Mining Act of 1995

defines carrying capacity as the capacity of the natural and human

environments to accommodate and absorb change without experiencing

conditions of instability and attendant degradation.

82. But poring over the entire text of the Mining law, petitioners cannot

find any provision putting into effect the aforequoted statutory definition. This

omission by Congress is understandable since the latter may have relied on 26 Sec. 5, R.A. 837127 Sec. 9[a], R.A. 8371

21

public respondent DENR to supply in its rules and regulations provisions

effectuating this environmental law principle.

83. Yet to the utter shock of petitioners, public respondent DENR did not

only fail in its delegated duty to give life to this statutory limitation on mining but

worse, it altogether deleted the term carrying capacity in its DAO No. 96-40, the

Implementing Rules and Regulations of R.A. 7942 and its amendatory rules.

84. Petitioners are of the considered view that the legislature must have

defined carrying capacity in the mining law to make it as a limitation upon the

governments exercise in issuing mining permits. Congress could have not

thought of granting public respondents DENR and MGB the unbridled power or

authority to issue mining tenements without taking due regard of the carrying

capacity of the natural and human environment. This must be the only sound

statutory construction.

85. The reason of the law is its very soul. Ratio legis est anima. A statute

must be read according to its spirit or intent, for what is within the spirit is within

the statute although it is not within its letter, and that which is within the letter but

not within the spirit is not within the statute.28

86. In the Mining law, its avowed state policy is the promotion of rational

utilization and conservation of mineral resources in a way that would effectively

safeguard the environment and protect the rights of the affected communities.

Hence, Congress must have had in mind the principle on carrying capacity as

the only rational and sustainable way to safeguard the natural and human

environment from the adverse effects of mining.

87. Economic activities are sustainable only if the life-support ecosystems

on which they depend are resilient.29 If human activities are to be sustainable,

there is a need to ensure that the ecological systems on which our economies

depend are resilient.30

88. The services of ecological systems and the natural capital stocks that

produce them are critical to the functioning of the earths life support system.

They contribute significantly to human welfare, both directly and indirectly, and

28 League of Cities of the Philippines vs. COMELEC, G.R. No. 176951, Dec. 21, 00929 See Kenneth Arrow, Bert Bolin, Robert Costanza, et al., Economic Growth, Carrying Capacity, and the Environment, published in SCIENCE, Vol. 268 April 199530 Ibid at www.precaution.org/lib/06/econ_growth_and_carrying_capacity.pdf

22

therefore represent a significant portion of the total economic value of the

planet.31

89. Because these services are not fully captured in markets or

adequately quantified in terms comparable with economic services and

manufactured capital, they are often given too little weight in policy decisions.

This neglect may ultimately compromise the sustainability of humans in the

biosphere. The economies of the earth would grind to a halt without the services

of ecological life support systems, so in one sense their total value to the

economy is infinite.32

90. Public respondent DENRs omission in putting into effect the statutory

principle on carrying capacity in its IRR of the Mining Law has bred untrammeled

abuse in the laws implementation. There is therefore this urgent necessity to

command it to incorporate this principle into its rules and conscientiously apply it

in its implementation of the mining law.

91. Meantime that this is not done, all mining applications and activities

must be judicially enjoined not only in Zamboanga Peninsula but the entire

country as all these tenements are issued or will be issued with grave abuse of

discretion.

VII. Respondents Ultra Vires Policies Violated the Principle of Non Regression

92. The principle of standstill or status quo in environmental law (known

as non regression in French) prevents public authorities from modifying or

abolishing existing legislations if to do so would diminish the protection of the

environment.33

93. This principle is needed today as environmental law is facing a number

of threats such as deregulation, a movement to simplify and at the same time

diminish environmental legislations perceived as too complex, and an economic

climate which favors development at the expense of the protection of the

environment.34

31 Robert Costanza, et al. The value of the worlds ecosystem services and natural capital, published in NATURE, Vol. 387 (15 May 1987) 32 Ibid33 De Lurgente Ncessit De Reconnatre Le Principe De "Non Rgression" En Droit De LEnvironnement by Michel Prieur, Professeur mrite lUniversit de Limoges IUCN Academy of e-journal, issue 2011 (1)34 Ibid

23

94. There are three theoretical bases of this principle, to wit: a) the

purpose of environmental law itself which is not simply to regulate the

environment but to prevent its degradation as well as the depletion of natural

resources; b) for the sake of future generations, environmental law must be an

exception to the rule that legislators can always change the law; c) as for social,

economic and cultural rights, States must constantly strive to enhance the

protection of the right to a healthy environment.35

95. Environmental law is a set of norms that are interdependent from one

another. The concept of standstill protects this complex, fragile and fundamental

construct.36

96. The policies being pursued by public respondents DENR and MGB are

clearly regressive of the advances being already achieved in the field of

environmental protection and conservation.

97. While we have environmental regulatory and conservation laws

already in place like NIPAS, Wildlife law, Fisheries laws provision on marine

sanctuary, among others, here we have public respondents at the other end of

the spectrum rendering nugatory these laws by sanctioning indiscriminate mining

in this country.

98. While this Apex Court has already laid down rules of procedure to

address environmental injustice, here we have public respondents at the other

end of the scale trampling the peoples right to ecology.

99. If we are to effectuate the ruling in Oposa v. Factoran yoking upon this

generation the duty to conserve and pass on to the next generations in much

better condition whatever environmental dividends enjoyed today, then public

respondents must be restrained from infringing into our rich biodiversity areas just

for the sake of finding that proverbial pot of gold (and copper, iron, nickel,

chromite too).

BY WAY OF ISSUANCE OF A TEMPORARY PROTECTION ORDER

Petitioners replead, mutatis mutandis, their foregoing allegations. They

further state that:

35 Ibid36 Ibid

24

100. Public respondents are running amuck in processing and issuing left

and right mining tenements in Zamboanga peninsula and the rest of the country

without the slightest regard to the carrying capacity of the affected areas.

101. Hence, there is extreme urgency to enjoin them from continuing with

their environmentally regressive and reckless mining policies by way of issuance

of a Temporary Environmental Protection Order to be effective until such time

when well-meaning environmental safeguards against mineral extraction are

promulgated and applied realistically on the ground.

102. Allowing respondents to carry on with their environmentally reckless

policies would surely result into grave and irreparable damage to the health of

petitioners and those they represent and the integrity of the natural environment.

103. In resolving this application for TEPO, petitioners invoke the principle

of precaution. As already shown in the foregoing, respondents unsustainable

activities present a clear and present danger to human life or health, inequity to

the present and future generations and prejudice the environment in utter

disregard to the ecological rights of petitioners.

104. In support to this application, petitioners submit and attach their

affidavit proving grave and irreparable damage that may be caused or will likely

cause them by reason of respondents acts or omissions, copy is attached as

Annex Q hereof.

BY WAY OF ISSUANCE OF A WRIT OF CONTINUING MANDAMUS

Petitioners replead, mutatis mutandis, their foregoing allegations. They

further state that:

105. The present mining policies observed and implemented by public

respondents are abjectly insufficient in protecting petitioners right to a

balanced and healthful ecology in accord and rhythm of the harmony of

nature. Hence, there is urgent need to issue a writ of continuing mandamus.

106. For public respondent DENR to submit before this Apex Court an

acceptable draft of the amendment of its implementing rules and regulations of

Republic Act No. 7942 defining or incorporating the statutory term carrying

capacity and providing for its effective implementation.

25

107. For public respondent PAWB to conduct a comprehensive

nationwide survey detailing the key biodiversity areas or protected areas that

are being affected by or overlapped with mining applications and tenements

and submit such report to this Apex Court.

108. For public respondent MGB to submit to this Apex Cout all the names,

addresses of all applicants or holders of mining tenements in Zamboanga

peninsula and the status thereof as well as a comprehensive report on all

environmental transgressions committed by existing and operating mining

companies in the Philippines and the corresponding sanctions or curative actions

undertaken to restore or rehabilitate the affected environment.

109. For public respondent NCIP to submit to this Apex Court: (a) all its

issued certifications on free, prior and informed consent to mining companies

and the circumstances of their allowance; (b) complete list of ancestral domains

in the Philippines, whether delineated, issued with CADT or not; and (c) the

names of ICCs in the Philippines, the areas where they populate, and their

current demography.

BY WAY OF REQUEST FOR A SEPARATE ADMINISTRATIVE INVESTIGATION ON THE ACTUATIONS OF JUDGE ERNESTO LAUREL OF THE

REGIONAL TRIAL COURT OF AURORA, ZAMBOANGA DEL SUR

Petitioners hereby replead their allegations in paragraphs 28 to 46 and

further state that:

110. Judges must adhere to the highest tenets of judicial conduct. They

must be the embodiment of competence, integrity and independence. Like

Caesars wife, a judge must not only be pure but above suspicion. The people's

confidence in the judicial system is founded not only on the magnitude of legal

knowledge and the diligence of the members of the bench, but also on the

highest standard of integrity and moral uprightness they are expected to

possess.37

111. A judge may not be legally prohibited from sitting in a litigation. But

when suggestion is made of record that he might be induced to act in favor of

one party or with bias or prejudice against a litigant arising out of circumstance

reasonably capable of inciting such a state of mind, he should conduct a

careful self-examination. He should exercise his discretion in a way that the

peoples faith in the courts of justice is not impaired. A salutary norm is that he

reflects on the probability that a losing party might nurture at the back of his

37 Avancena v. Judge Liwanag, per curiam, A.M. MTJ-01-1383, July 17, 2003

26

mind the thought that he had unmeritoriously tilted the scales of justice against

him.38

112. Respondent Presiding Judge of the Regional Trial Court Branch 30,

Aurora, Zamboanga del Sur violated the foregoing tenets and the Code of

Judicial Conduct.

113. Canon 1 of the Code mandates that a Judge should uphold the

integrity and independence of the Judiciary. He should be the embodiment of

competence, integrity and independence.

114. The conversion of an injunction case filed by MSSON Mining against

the members of Petitioner ASIN into a special civil action of writ of continuing

mandamus and the consequent denial of their motion for reconsideration

bespeak of gross incompetence and ignorance of the rules on the part of the

respondent Judge. This procedural lapse is very patent since defendants therein

are not even connected with the government.

115. Subsequent rulings handed down by respondent Judge also

demonstrate lack of knowledge, intentional or otherwise, of the Environment

Rules.

116. As for instance, his denial of the SLAPP defense by defendants in that

Aurora injunction case is inconsistent with Sec. 2 Rule 6 view that petitioner

members of ASIN had surmounted the threshold in Sec. 3 thereof by substantially

proving that their acts of picketing the ingress into the protected forest reserve is

a legitimate exercise of their right and duty to protect and preserve the subject

forested area which has been illegally opened for mineral exploration.

117. When respondent Judge issued in a frenetic pace the series of

provisional orders of TROs and Preliminary Injunction despite the doubtful claim of

MSSON Mining, he in effect blatantly disregarded the primordial objective of the

rules which is to protect and advance the constitutional right of the people to a

balanced and healthful ecology. He did all of these questionable Orders despite

the mandate in the Rules that he should apply the precautionary principle in

dealing with the issues confronting him and to be bias instead to petitioner

members of ASINs constitutional right to a balanced and healthful ecology by

giving such claim the benefit of the doubt.

38 Alejo, et al. v. Judge Pestano-Buted, G.R. Nos. 154150-51, Dec. 10, 2007

27

118. Respondent RTC Branch 30 Judge of Aurora, Zamboanga del Sur is

not the epitome of integrity and independence. The transcript of stenographic

notes will bear out his suspiciously too accommodating of MSSON Mining. He is

very harsh upon petitioner Paulino Alecha when the latter was unceremoniously

ejected from the Court during the June 7, 2011 hearing after the latter answered

Yes in a rather high tone of voice to a barking warning from respondent Judge.

119. Yet respondent Judge did not even lift a finger to sanction MSSON

Minings Manager when the latter challenged counsel and defendants therein

to a fist fight while he was in the witness stand on June 6, 2011.

120. His bias to said mining company in that Aurora case was all too

manifest where he did not even rule on the allegations of forum shopping done

by MSSON mining where the latter had filed earlier criminal cases against the

same defendants in the said injunction case.

121. Respondent Judge refused to stay his injunction case despite the rule

on the primacy of criminal cases earlier filed properly invoked by defendant

therein. Worse still, he refused to voluntarily inhibit himself from further handling

the case despite their most respectful request due to his clear favoritism to

MSSON Mining.

122. And worse still, he shamelessly rewarded defendants valid requests

for suspension of that injunction case and for his voluntary recusal with whimsical

issuances of the questioned preliminary injunctive writs despite pendency of the

incidents of demurrer and of their opposition to plaintiffs application for these

provisional writs.

123. Worst of all, respondent Judge has utilized the environmental rules

when he sees convenient for plaintiff mining company, like the rule on speedy

disposition, but like a chameleon, reverts back to the regular Rules of Court when

he deems fit to issue the questioned injunctive writs.

CONCLUDING STATEMENT

The biggest threat now to our remaining forests and terrestrial ecosystems

comes from mining. With the looming adverse impacts brought about by climate

change, the Philippines will be doubly vulnerable.

Thanks but no thanks to the turn-around ruling in La Bugal. Public

respondents shamelessly view it as a green light to promote with more impunity

28

this extractive industry destructive of the ecology. Mining companies are now

even more than emboldened to rush to every nook and cranny of this country to

get a share of this natures hidden wealth. Said this Court in its obiter dictum in

La Bugal:

Whether we consider the near term or take the longer view, we cannot overemphasize the need for an appropriate balancing of interests and needs -- the need to develop our stagnating mining industry and extract what NEDA Secretary Romulo Neri estimates is some US$840 billion (approx. PhP47.04 trillion) worth of mineral wealth lying hidden in the ground, in order to jumpstart our floundering economy on the one hand, and on the other, the need to enhance our nationalistic aspirations, protect our indigenous communities, and prevent irreversible ecological damage.

The preceding view, with due respect is waywardly misplaced. The

estimated value of Php47 trillion of these buried minerals cannot even be worth

the irreversible ecological damage that will be endured for generations to

come. The inhabitants of Easter Island believed in this economic theory five

centuries ago and their island became a wasteland?

After five years of intensive mining operations re-triggered by La Bugal, the

mining industry has contributed only 0.5% of the countrys employment and 1.3 %

of the Philippines GDP. Other industries like tourism and IT surprisingly fared much

better.

This obiter in La Bugal is very disturbing, to be polite about it. It continues to

cling on to the hackneyed dichotomy that the economy and the environment

are separate. This old mindset of the previous Court is totally opposed to the

present thinking of this Apex Court as it writes in its rationale to the Rules of

Procedure for Environmental Cases that:

Whether based on scientific evidence or mere observation, environmental destruction has slowly gained worldwide attention. Prerogative to slow down the effect of an anthropocentric approach resulted in more ecologically-favorable approaches to environmental protection. The discipline of ecology is based on the interconnectivity and interdependence between organisms and elements of the environment. An appreciation of this link between all elements of living things and nature would naturally instill a sense of urgency to protect our ecosystems. Without such protection, the endangerment of the ecosystems would correlate to the endangerment of humankind. Conversely, its protection would benefit man and his ability to survive and sustain in the world.

Petitioners say amen to that!

29

PRAYER FOR RELIEF

WHEREFORE, premises considered, petitioners most respectfully pray of the

Honorable Supreme Court that:

1. Upon the filing hereof, a writ of kalikasan will be issued commanding

respondents to file their respective returns and explain why they should

not be judicially sanctioned for violating or threatening to violate or

allowing the violation of the above-enumerated environmental laws

and principles or committing acts which would result into

environmental damage of such magnitude as to prejudice the life,

health or property of the inhabitants of Zamboanga Peninsula;

2. Upon the filing hereof, a Temporary Environmental Protection Order will

be issued: (a) enjoining public respondents DENR and MGB from

processing, entertaining all pending as well as new applications for

mineral agreements or FTAAs anywhere in the Philippines; and (b)

stopping all mining operations in the Zamboanga peninsula, including

the mineral exploration of MSSON Mining in Midsalips forest reserve or

watershed area until all environmental concerns raised by petitioners

are sufficiently addressed.

3. Upon the filing hereof, issue a writ of continuing mandamus

commanding:

a. DENR to submit an acceptable draft of the amendment of its

implementing rules and regulations of Republic Act No. 7942

defining or incorporating the statutory term carrying capacity

and providing for its effective implementation;

b. PAWB to conduct a comprehensive nationwide survey detailing

the key biodiversity areas or protected areas that are being

affected by or overlapped with mining applications and

tenements and submit progress reports thereon;

c. MGB to submit all the names, addresses and material particulars

of all applicants or holders of mining tenements in Zamboanga

peninsula and the status thereof and a comprehensive report

on all environmental transgressions committed by existing and

operating mining companies in the Philippines and the

corresponding sanctions or curative actions undertaken to

restore or rehabilitate the affected environment; and

d. NCIP to submit all its issued certifications on free, prior and

informed consent to mining companies and the circumstances

of their allowance; the complete list of ancestral domains in the

30

Philippines, whether delineated, issued with CADT or not; and

the names of all ICCs in the Philippines, the areas where they

populate, and their current demography.

4. After hearing, cancel all mining applications and tenements in

Zamboanga peninsula that are found to be violating the above-

mentioned environmental laws and principles, special mention the

MPSA issued to GAMI as assigned to MSSON Mining.

5. After hearing and judicial determination, order all conservation priority

areas in the Philippine to be proclaimed as protected areas and

recommend to Congress fiscal and curative legislation to effectuate

such order.

6. Other just and equitable reliefs are likewise prayed for.

Cebu City, Philippines, 21 July 2011.

BENJAMIN A. CABRIDO JR.Counsel for Petitioners

G/F Pueblo Aznar Uno Building M. J. Cuenco Ave. Cor. Maxilom Ave., 6000 Cebu CityIBP No. 823439/01-03-11/Cebu City

PTR No. 0853604/01-03-11/Cebu CityRoll of Attorneys No. 48949

Email: benzcab@gmail.com Telefax: 032-4129106

MCLE III # 0012835/ April 16, 2010

VERIFICATION & CERTIFICATION

WE:

a. Gloria Estenzo-Ramos, of legal age, married, Executive Director of Phil. Earth Justice Center Inc. and resident of Banilad, Mandaue City;

b. Felix B. Unabia, of legal age, married, Chairman of Alliance to Save the Integrity of Nature and resident of Midsalip, Zamboanga del Sur;

c. Ricardo Tolino, of legal age, married, President of Kesalubuukan Tupusumi Organization and resident of New Katipunan, Midsalip, Zamboanga del Sur;

d. Mario Catanes, of legal age, married, member of Petitioner ASIN, former President of Kesalabuukan Tupusumi Organization and resident of Sigapod, Midsalip, Zamboanga del Sur;

e. Wilma A. Tero, of legal age, single, member of Kesalabuukan Tupusumi Organization and resident of Timbaboy, Midsalip Zamboanga del Sur;

f. Manuela A. Pateo, of legal age, married, former President of Kapunungan sa mga Bakwiter sa Midsalip and resident of Guinabot, Midsalip, Zamboanga del Sur;

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g. Timoay Barlie Balives, of legal age, married, Timoay of Duelic, Midsalip, Zambaonga del Sur and resident thereof;

h. Danilo O. Eranga, of legal age, married, Program Coordinator of Sustainable Agriculture Program for Subaanen Ministry and resident of Midsalip, Zamboanga del Sur;

i. Jesus Catamco, of legal age, married and resident of Midsalip, Zamboanga del Sur;

j. Paulino Alecha Sr., of legal age, married and resident of Midsalip, Zamboanga del Sur;

k. Sultan Maguid A. Maruhom, of legal age, married, Executive Director of UMMA FI SALAM and resident of Tiguma, Pagadian City;

l. Timoay Lucenio M. Manda, of legal age, married, Barangay Captain of Conacon, Bayon, Zamboanga del Sur and resident thereof;

m. Gualberto F. Largo, of legal age, married, Coordinator of Social Action Ministry of Ipil Parish, Ipil, Zamboanga Sibugay and resident thereof;

n. Daniel C. Castillo, of legal age, married and resident of San Jose, Siay, Zamboanga Sibugay;

o. Jerry S. Espinas, of legal age, married, member of the Sangguniang Bayan of Sindangan, Sindangan, Zamboanga del Norte and resident thereof;

p. Bishop Jose Recare Manguiran, DD, of legal age, archbishop of Dipolog Diocese, Sicayab, Dipolog City, Zamboanga del Norte and resident thereof; and

q. Fr. Arsenio Marane, of legal age, parish priest of Ramon Magsaysay Parish, Ramon Magsaysay, Zamboanga del Sur and resident thereof -

all of us swearing in according to law, depose and state that:

1. I, Gloria Estenzo-Ramos is the duly authorized representative of Petitioner Phil. Earth Justice Center Inc. pursuant to the authority given me by its Board of Trustees as attached;

2. I, Felix B. Unabia is the duly authorized representative of Petitioner Alliance to Save the Integrity of Nature pursuant to a resolution of its Board of Directors as attached;

3. I, Ricardo Tolino, is the duly authorized representative of Petitioner Kesalubuukan Tupusumi Organization pursuant to a resolution of its Board of Directors as attached;

4. All the rest of us, in our personal capacities and in representation of above-named non-government organizations/entities, are the petitioners in this special civil action for a writ of kalikasan who are so numerous that it would be impracticable to have us all appear before the Honorable Supreme Court;

5. We have caused the foregoing to be prepared and filed; read all the allegations contained therein; and found them to be true and correct to our personal knowledge or based on authentic documents;

6. We have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals or any other tribunal or agency; and to the best of my knowledge, no such action or proceeding is pending in the said courts, tribunal or agency; and should we thereafter learn of such fact, we will notify the Honorable Court within five (5) days from such notice

IN WITNESS WHEREOF, We have hereunto set our hand this ____________________ at Pagadian City for Cebu City, Philippines.

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GLORIA ESTENZO-RAMOS FELIX B. UNABIA RICARDO TOLINO

MARIO CATANES WILMA A. TERO MANUELA A. PATENO

BARLIE BALIVES DANILO O. ERANGA JESUS CATAMCO

PAULINO ALECHA SR. FR. ARSENIO MARANE SULTAN MAGUID MARUHOM

TIMOAY LUCENIO M. MANDA GUALBERTO F. LARGO DANIEL CASTILLO

JERRY S. ESPINAS BISHOP JOSE RECARE MANGUIRAN, DD

SUBSCRIBED AND SWORN TO BEFORE ME, a Notary Public in the City of Cebu, this ___ day of ______________, 2011 by all the affiants who are personally known to me being my clients in this case.

Doc. No. ____Page No. ___Book No. ____Series of 2011

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