January 29, 2023

Lepanto Consolidated Mining Company has informed the Securities and Exchange Commission it will file a motion for reconsideration on a Supreme Court decision ordering the company to secure the free, prior, and informed consent (FPIC) of ancestral domain residents of Mankayan, Benguet where it currently operates.

LCMCo disclosed the SC decision in a Dec. 21, 2022 report to the SEC, stating that the order is without prejudice to its full compliance with the requirement to secure the FPIC of the Mankayan indigenous cultural communities/indigenous peoples as a condition for the renewal of its Mineral Production Sharing Agreement (MPSA) 001-90.

“Lepanto’s mining operations continue. The company is considering all its legal options in respect of the SC decision, including the filing of a motion for reconsideration,” reads the letter of Vice President and Asst. Corporate Secretary Odette Javier.

The SC en banc, in a 30-page order dated June 21, 2022 but made public only on Dec. 22, terminated an arbitral ruling exempting Lepanto and its subsidiary Far Southeast Gold Resources, Inc. from securing the FPIC of ancestral domain communities/IPs of Mankayan when it applied for the 25-year renewal of its MPSA when it lapsed in March 2015.

To recall, Lepanto, in several correspondence to concerned agencies such as the Department of Environment and Natural Resources and its attached Mines and Geosciences Bureau, stated that its MPSA 001-90 is exempt from the requirement of the Indigenous Peoples Rights Act on the FPIC and certification precondition.

It added the FPIC was not among the conditions for renewal when it secured its original MPSA in 1990. The MPSA 001-90 covers part of the ancestral domains of the Mankayan ICCs/IPs.

Controversy arose when the MGB-CAR, while informing Lepanto that it had substantially complied with the requirements for the renewal of MPSA 001-90, advised that Lepanto and its subsidiary FSGRI that their joint application for renewal would be endorsed to the National Commission on Indigenous Peoples for certification precondition.

On March 15, 2015, Lepanto and FSGRI obtained a writ of preliminary injunction from the Makati Regional Trial Court Branch 141 enjoining the government and concerned agencies from disturbing the company’s mining operation covered by MPSA 001-90 pending resolution of the dispute before the Arbitral Tribunal.

On Nov. 27, 2015, the Arbitral Tribunal issued an arbitral award favoring Lepanto and FSGRI.

The arbitral award was challenged by the government before Makati RTC Branch 141, which later on issued a decision stating the Arbitral Tribunal exceeded its authority. The RTC decision was appealed by Lepanto and FSGRI before the Court of Appeals.

Former Benguet Rep. Ronald Cosalan, who acted as a main petitioner, has filed a motion for leave to intervene on Aug. 31, 2017. 

The CA in a decision dated April 30, 2018 set aside the order of the Makati RTC Branch 141 and denied Cosalan’s motion for leave to intervene. On Jan. 14, 2019, the CA also issued a resolution denying the government’s motion for reconsideration.

But the SC decision has reversed and set aside the April 30, 2018 and Jan. 14, 2019 resolution of the CA.

The SC decision states “the non-application of the requirement contravenes a strong and compelling policy on the protection of the rights of the Mankayan ICCs/IPs to their ancestral domains.”

It also agreed with the Makati RTC decision that seeking consent of the affected ICCs/IPs as mandated by the IPRA is a matter of public policy. – Harley F. Palangchao

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