Mining firm may appeal SC ruling on Benguet IP consent

ANOTHER DAY AT WORK Mine workers, in this photo taken in August 2018, are seen at the mouth of a mine tunnel of Lepanto Consolidated Mining Co., one of the country’s pioneer mines operating in Mankayan, Benguet. Lepanto faces a legal setback after the Supreme Court voided the 2015 arbitral ruling that exempted the company from securing the consent of the Mankayan indigenous communities. —EV ESPIRITU

BAGUIO CITY—Top gold miner Lepanto Consolidated Mining Co. may still ask the Supreme Court to reconsider its decision voiding a 2015 arbitral ruling that exempted the 86-year-old mine from securing the consent of indigenous communities at its mine site in Benguet province.

In a Dec. 21 disclosure notice to the Securities and Exchange Commission that was obtained by the Inquirer on Friday, Lepanto said its mining operations would continue.

“The company is considering all its legal options in respect of the SC decision, including the filing of a motion for reconsideration,” it said in the notice.

Lepanto had asked for arbitration in 2015 after it questioned the need for the informed consent of ancestral domain dwellers in Benguet’s mining town of Mankayan to renew its mineral production sharing agreement (MPSA), which has been in effect for 25 years.

The ad hoc arbitration tribunal favored Lepanto’s position in the same year, despite the argument from the Department of Environment and Natural Resources (DENR) and the Mines and Geosciences Bureau (MGB) that sparing Lepanto from the requirement “effectively disenfranchised” Mankayan’s indigenous Filipinos.

Unanimous decision

But in a unanimous en banc decision promulgated last June but made public at its online portal on Dec. 22, the high court ruled that the consent of Mankayan’s residents “cannot be undermined, worse disregarded,” as protecting indigenous Filipino rights is a constitutional mandate and is “clearly, categorically, and positively reflected in the Ipra (the Indigenous Peoples Rights Act of 1997 or Republic Act No. 8371).”

Lepanto, which started in 1936, generated P1.16 billion worth of gold from January to September 2021.

The disclosure report did not reveal Lepanto’s other options. But in a Wednesday interview, MGB Cordillera director Fay Apil said the company has requested from her office an endorsement to the National Commission on Indigenous Peoples (NCIP) so it could proceed with the free, prior and informed consent (FPIC) process with the Mankayan Indigenous Cultural Communities so it could renew its MPSA.

‘Very discouraging’

The mining industry has found the FPIC process “very discouraging” because arriving at a consensus takes months or even years, according to MGB sources, who asked not to be named because they were not authorized to discuss NCIP issues.

In some cases, the mines have been asked to shoulder the cost of assembling the communities because NCIP, which is under the Office of the President, remains underfunded and understaffed, the sources claimed. Worse, some mining applicants have to wait their turn until the designated FPIC team completes the process for mines that are first in line, they said.

But a 2013 policy study indicated that “indigenous communities have been shortchanged, if not deceived, by many FPIC applicants,” which required an overhaul of the process at the time.

The study was conducted by the DENR and the German-Development Cooperation-Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH.

Among its recommendations were for the NCIP to be “provided with sufficient funding to insulate it from undue influence from vested interests” and for the FPIC process to seek consent also from “areas that will be affected by the project, such as upstream and downstream communities.”

The study also recommended that the ancestral domain be “the primary unit for consideration in FPIC, not the political boundaries.” —VINCENT CABREZA INQ

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