One for the environment (Rio Tuba)

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

One for the environment
Sunday, 03 23, 2003

In the hinterlands of Barangay Rio Tuba, Bataraza, Palawan, is rising a hydrometallurgical processing plant, its construction sanctioned by Environmental Clearance Certificate 0201-021-313 issued by Environment Secretary Heherson Alvarez on July 10, 2002. Senators Ed Angara and Robert Jaworski have taken the cudgels for the residents of Bataraza, who are opposed to the operation of the plant by the Rio Tuba Nickel Mining Corp. Angara and Jaworski were convinced by the residents of Bataraza, led by the Palawan NGO Network, Inc., to take up their plight with the Department of Environment and Natural Resources.

Earlier, the residents of Bataraza brought a class suit, now pending in the Court of Appeals (CA), questioning the Alvarez-issued ECC. Knowing the slow pace of the judicial system, the residents have all but given up as lost their crusade, considering that the mining company has already proceeded to construct its processing plant.

But the residents have found a new anchor for their cause, in the person of Alvarez’s successor, newly-confirmed DENR Secretary Elisea Gozun.

Angara extracted a commitment from Gozun during the hearings last Tuesday before the Commission on Appointments committee headed by Jaworski, that she will undertake a thorough review of the ECC issued by her predecessor, and recall the same should the evidence warrant.

Pressed by Jaworski as to what the extent is her commitment to review, Gozun explained that the records, once brought to her desk and should there be proof that the ECC was issued in violation of the Indigenous People’s Rights Act, the Toxic Substances and Hazardous Nuclear Wastes Control Act, the Strategic Environmental Plan for Palawan Act, and the Clean Air Act, she will not hesitate to recall the ECC, the pending case in the CA notwithstanding.

The commitment of Gozun, made as a condition for her confirmation as DENR secretary, is a welcome development to the residents, all of them belonging to indigenous cultural communities, who stand to be adversely affected by the continued nickel mining operations. Gozun was confirmed by the Commission on Appointments last Wednesday. We expect her then to move forward, and act swiftly on the complaints of the Bataraza residents.

The processing plant has been described as extremely harmful to the health and livelihood of the residents of Palawan, as well as destructive of the environment on account of the laterite dust and water pollutants resulting from nickel mining. The wildlife in the area of operations is threatened, as well as the viability of the underground caves in the vicinity which will absorb the impact of blasting activities in quarrying operations.

The administrative review process to be undertaken by Gozun, toward a possible recall of the ECC, is an exercise by the DENR secretary of her power and duty outlined in the case of Oposa vs. Factoran, 224 SCRA 792 (1993). This case, a landmark for its guarantees on “inter-generational responsibility” and "inter-generational justice,” was a trailblazing decision for the environment, bearing upon every citizen’s right to a balanced and healthy ecology. It recognizes the right of the State, without violating the non-impairment clause of the Constitution, to exercise its police power. A license (like an ECC) is not a contract, property or a property right protected by the due process clause. It can be cancelled, administratively, should there be a compelling reason that impacts on the duty to refrain from impairing the environment.

Administrative process can proceed independently of the court case. Thus, a quick but thorough review by Gozun could lead to an early recall of the ECC, given the evidence that the oppositors to the operation of Rio Tuba Nickel Mining Corp. will present not later than next week, which to them are overwhelming proof of violations committed in the issuance of ECC 0201-021-313.

The issuance of ECCs by the DENR secretary, as required under Presidential Decree 1151, should be closely looked into. In the case of the ECC for the hydrometallurgical processing plant, there appears to be serious lapses in the evaluation of the application, where major points justifying non-issuance were glossed over, and the consequences to the residents of Bataraza simply disregarded.

While the issue certainly is now with the CA, there is no impediment to a parallel exercise by Gozun of her power to review, and her duty, if circumstances warrant, to recall the ECC. The residents of Bataraza are hopeful – as they eloquently stated in their petition – that if there is a risk that the potential harm from the activity will be serious or irreversible, then Gozun should err on the side of caution and either refuse to allow the activity to proceed or assure that environmental harm will be avoided.



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