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Republic of the Philippines

OFFICE OF THE PRESIDENT


NATIONAL COMMISSION ON INDIGENOUS PEOPLES
Cordillera Administrative Region
REGIONAL HEARING OFFICE
nd
2 Floor Lyman Ogilby Centrum (Annex), EDNCP Compound
358 Magsaysay Avenue, Baguio City
RODOLFO ANTOLINO, REMENDER
AQUIAPAO, ROMUALDO MARTIN,
BEN BILLY, SALVADOR AQUIAPAO
SR., ROLDAM AQUIAPAO, BENJIE
CAMADO, MARCELO AGSAWAL,
RALPH DUMAGUING, ORLANDO
DELAMN, CONSTANCIO PINGI
JULIAN CAMADO, MARCIAL
BINAY-AN, MARIO CARINO, RAFFY
AQUIAPAO, HILARIO OLSINA
ERIC QUINDAO, ROMMEL CAMADO,
PAUL PINGI, JOSEPH DOMIRES,
BERNARDO MALOBAN, PAULINO DE
CASTRO, JR., ALBERT PINGI, GIDEON
SIFIATA, DANDY PAGNAS, ROGEL
CABUTOTAN, VERNON LAGAN, RODEL
ALAMBRA, REYNANTE BERNABE,
EFRAINE GLENN KELLY, TYRON LAGAN,
TYSON APILADO, ABELLA BUGNAY,
EDWARD AMAGEN, JRY BUGNAY, FRANK
APILADO, DELBERT DIWAS,TAGANI DONES,
ARIES TIPAYNO, HENRY MARTIN, LESTER
ANTOLINO, ALEJANDRO DOMERIS, WILLY
LICUDO, DARIO AGSAWA, CRISPIN CHAGMAN
And LARRY SAPUL,
Petitioners,

CASE NO. CAR-14-15


For:
Violation of Free and Prior
Informed Consent Requirement
Injunction, Preliminary
Injunction, Temporary
Restraining Order with
Damages

-versusMILAN MINING EXPLORATION also known as


DATEM MINERAL RESOURCES CORPORATION,
Owned and represented by JUAN CARLOS S.
MILAN and JOSE CARLO S. MILAN,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

ANSWER AD CAUTELUM
Respondents Milan Mining Exploration and DATEM Mineral
Resources Corporation, through counsel, in response to the Summons
issued by this Honorable Office on June 10, 2015, copy of which was
received last June 11, 2015, and within the period prayed for the extension
of time to file Answer, respectfully state:
1

I
QUALIFIED ADMISSIONS
1.
Subject to the affirmative allegations and defenses set forth
hereunder, respondents admit the allegations in the following paragraphs of
the Petition:
1.1. Paragraph 2 of the Petition insofar only as to the fact that
Jose Carlo M. Milan was issued a Small Scale Mining Permit No.
SSMP 09-20121, and that Jose Carlo M. Milan Small Scale Mining
Group was issued a Temporary Small Scale Mining Contract No.:
SSMC 009-20142, while Juan Carlo S. Milan Small Scale Mining
Group was also issued a Temporary Small Scale Mining Contract
No.: SSMC 008-2014. Respondents clarify, however, that Jose Carlo
M. Milan Small Scale Mining Group or Juan Carlo S. Milan Small
Scale Mining Group is not one and the same entity with DATEM
MINERAL RESOURCES CORPORATION (Datem) which, as of
now, is the applicant-of-record for the Mineral Production Sharing
Agreement application denominated as APSA 087. Juan Carlo S.
Milan and Jose Carlo M. Milan are not owners of Datem.
1.2. It was Jose Carlo M. Milan who was granted an
Environmental Compliance Certificate 3 for his Mineral Processing
Plant located at Virac, Itogon, Benguet by the Department of
Environment and Natural Resouces (DENR), through the
Environmental Management Bureau-Cordillera Administrative Region
(EMB-CAR) on 26 December 2013.
II
LACK OF KNOWLEDGE
2.
For lack of knowledge or information sufficient to form a belief as to
the truth thereof and subject to the special and affirmative allegations and
defenses set forth hereunder, respondents specifically deny:
2.1. Paragraph 1 of the Petition insofar as petitioners are all
members of the Indigenous Cultural Communities, belonging mostly
to the Ibaloi Tribe of Virac, Benguet;
2.2. Paragraph 2 insofar as petitioners allege that since time
immemorial, petitioners and their ancestors have been conducting
gold panning and other traditional small mining activities in certain
parts of Virac, Itogon, Benguet;
2.3 Paragraph 4 insofar as the allegations of petitioners that
they continue to conduct small scale mining activities within the area;
1

Small Scale Mining Permit No.: SSMP 09-2012.


Temporary Small Scale Mining Contract No.: SSMC 009-2014.
3
Environmental Compliance Certificate issued to Jose Carlo M. Milan.
2

III
SPECIFIC DENIALS
3.
For the reasons stated in this Answer and subject to the special and
affirmative allegations and defenses set forth hereunder, respondents
specifically deny the allegations in the following paragraphs of the Petition:
3.1. In so far as the Complaint is captioned, the truth of the matter is
that Milan Mining Exploration is not also known as Datem Mineral
Resources Corporation. These are two entities separate and distinct
from one another. The agreement between the concerned
complainant-contractors is only between Jose Carlo M. Milan and
Juan Carlo S. Milan, Holders of Small Scale Mining Permits. Jose
Carlo M. Milan and Juan Carlo S. Milan do not represent Datem
Mineral Resources Corporation. And, likewise, the names should
JOSE CARLO M. MILAN and JUAN CARLO S. MILAN and not Juan
Carlos S. Milan and Jose Carlo S. Milan.
3.2. Paragraph 1 of the Petition, except for their bare allegations,
petitioners have provided no proof that each and every one of them
are members of the Indigenous Cultural Communities coming mostly
from the Ibaloi Tribe at Virac Itogon, Benguet.
3.3. Paragraph 2 of the Petition insofar as Juan Carlo S. Milan and
Jose Carlo M. Milan representing Datem. The truth of the matter is
that Datem and Juan Carlo S. Milan together with Jose Carlo M.
Milan are separate and distinct from one another. Datem having
merely granted the Milans the right to mine in the area and only
aiding the Milans in the processing of ore. The areas covered by
Jose Carlo M. Milan's and Juan Carlo S. Milan's respective SSMP are
within the limits of Datem's APSA 087 which is why Datem allowed
the Milans to conduct small-scale mining in the said areas .
Datem has not entered into any contract with any of the complainants
herein.
3.4. Paragraph 4 of the Petition the truth of the matter being that
petitioners have not been allowed to mine within the mining area of
the respondents since early 2015. Their admission that they continue
to mine within the area is a clear and admitted violation of R.A. No.
7076. None of the petitioners have given proof that they are
registered as small scale miners, a requirement with said Act.
3.5. Paragraph 5, for being erroneous the truth of the matter is that
respondent Milan through Jose Carlo M. Milan was issued a
Processor Permit with No. MPP 01-2014 effective July 25, 2013 to
July 2015. Jose Carlo M. Milans legal basis to operate and conduct
mining at Virac Itogon, Benguet is by virtue of its Small Scale Mining
Permit with No. SSMP 09-2012 issued by the Office of the Provincial
Governor, Province of Benguet.
.

3.6. Paragraphs 6, for being misleading, the truth of the matter is


as stated in respondents affirmative allegations hereunder.
3.7. Paragraphs 8, 9, 10,11, 12, 12.a. 12.b. 12.c. 12.d., 13, 14, 16,
and 17, the truth of the matter is as stated in their affirmative
allegations hereunder.
IV
SPECIAL AFFIRMATIVE ALLEGATIONS
4.
Respondents replead by reference the foregoing allegations as
integral part hereof, and further aver
4.1. The attached Verification and Certification of Non-Forum
Shopping is defective. It does not conform with the 2004 Rules of
Notarial Practice (A.M. No. 02-8-13-Sc) which requires that the
identities of the affiant(s) must be determined by competent evidence
of their identity and must be indicated therein. The failure to indicate
their Government issued ID in the verification is as if the complaint is
not verified and thus must be dismissed.
4.2. The complainants herein are guilty of forum shopping. They
have filed cases before the National Labor Relations Commission
(NLRC) on alleged non-payment of employee benefits as well as
other complaints before other government agencies. The acts of the
petitioners constitute harassment and should be restrained.
4.3. Petitioners claim to be members of the Indigenous Cultural
Communities, mostly of the Ibaloi Tribe in Virac, Itogon, Benguet.
Except for their bare allegations they have not provided proof of their
membership in said indigenous cultural community.
4.4. The respondent in this case is not Milan Mining Exploration or
Datem. The permits issued were in the separate names of either Jose
Carlo M. Milan or Juan Carlo S. Milan. As alleged earlier Jose Carlo
M. Milan, was issued by the Office of the Provincial Governor of
Benguet a Processor Permit No. MPP 01-2014 4 for a period of two
years from July 25, 2013 to July 24, 2015.
4.5. Jose Carlo M. Milan, was also issued a Small Scale Mining
Permit with No. SSMP 09-20125. On October 24, 2014, Juan Carlo S.
Milan Small Scale Mining Group was issued a Temporary Small Scale
Mining Contract No.: SSMC 008-20146; while Jose Carlo M. Milan
Small Scale Mining Group was issued also a Temporary Small Scale
Mining Contract No.: SSMC 009-20147. Prior to the expiration of their
Temporary Small Scale Mining Contract, Jose Carlo M. Milan Small
4

Photocopy of the Processor Permit is hereto attached as ANNEX D.


Photocopy of the Small Scale Mining Permit No. SSMP 08-2014 is hereto attached as ANNEX A.
6
Photocopy of the Small Scale Mining Permit No. SSMP 09-2012 is hereto attached as ANNEX E.
7
Photocopy of the Temporary Small Scale Mining Contract No.: SSMC 009-2014 is hereto attached as
ANNEX F.
5

Scale Mining, through its contract holder Jose Carlo M. Milan, wrote
the Provincial Governor last April 1, 2015 applying for the renewal
thereof8.
4.6. As earlier allege, Jose Carlo M. Milan was issued an
Environmental Compliance Certificate (ECC) on 26 December 2013
for its Mineral Processing Plant. 9 With respect to ECC applications for
all Mining Projects, there is a moratorium until the Mining Policy has
been issued by the Office of the President pursuant to Memorandum
Order 2011-0110.
4.7. Petitioners allege that they have been conducting small scale
mining at Virac, Itogon, Benguet and that they continue to conduct
said activities to the present. The truth of the matter is that prior to
Jose Carlo M. Milan and Juan Carlo S. Milans Small Scale Mining
Groups (hereinafter referred to merely as MILANS for brevity)
conduct of small scale mining at Virac, Itogon, Benguet, petitioners
small scale mining activities were done illegally, without registering as
small scale miners, and without securing the necessary permits in
violation of R.A. No. 7076 otherwise known as An Act Creating a
Peoples Small-Scale Mining Program and for other Purposes. To
date petitioners have not shown proof that they have registered and
have been issued the permits to engage in small scale mining at
Virac, Itogon, Benguet in accordance with said Act or that they are
exempt from the coverage of the law.
4.8. When the Milans entered the mining area at Virac, Itogon,
Benguet they were fully conscious of and with the intention not to
displace holders of mining rights therein such that Jose Carlo M.
Milan entered into agreements with them whereby the latter gave the
exclusive rights to conduct mining operation and explorations over
their respective area of claims to the Milans. Among the holders of
mining rights who gave their consent to conduct exclusive mining
operations and explorations are Saturnino C. Ciano Apollo C. Ewis,
Pacita G. Dimaano, Moises G. Ventura and Virgilio Anudon.
Petitioners have not secured, in the past or present, consent from the
holders of mining rights and have in the past conducted their small
scale mining operations illegally and without consent from these
people.
4.9. Mindful also of those engaged in illegal small scale mining
within the area of the permits granted the Milans, including petitioners
herein, Jose Carlo M. Milan and Juan Carlo S. Milan entered into a
mining agreement with them for the latter to continue to mine inside
the area of Milans mining permits but for them to hire their respective
miners an agreement as to the sharing of expenses and
8

Photocopy of the Letter dated April 1, 2015 to Hon. Nestor Fongwan is hereto attached as ANNEX G.
Photocopy of the ECC is hereto attached as ANNEX C and C-1 hereof.
10
DENR Memorandum attached as ANNEX H hereof.
9

proportionate sharing in the minerals mined. Among those who


signed that mining agreement are the following petitioners who
considered
themselves
and
termed
themselves
tunnel
owners/contractors Rodolfo Antolino, Ben Billy, Roldan Aquiapao,
Julian Camado, Marcial Binay-an, Hilario Olsina, Eric Quindao, Paul
Pingi, Paulino De Castro, Vernon Lagan, Reynante, Bernabe Effraine,
Glenn Kelly, Edward Amagen, Aries Tipayno, Alejandro Domeris,
Willy Licudo, Dario Agsawal, and Crispin Chagman. Photocopies of
the Memorandum of Agreement are hereto attached and marked as
ANNEXES M to M-16.
4.10. Since 2013 to early 2014, petitioners have been allowed to
mine within the area of the permits of the Milans pursuant to their joint
Mining Agreement. The miners of petitioners/contractors as well as
the contractors themselves, some of whom are petitioners herein,
were paid in advance accordance with the mining agreement as to
the sharing of expenses and profits.
4.11. Despite the advance in the share of expenses of the
contractors/petitioners, the latter were unable to produce much from
their mining activities and neither did they return or pay back to the
Milans what they owed them as per their mining agreement to the
prejudice and injury of the Milans.
4.12. By early 2015, because the tunnels mined by the petitioners
were not producing even any amount sufficient to cover the expenses
advanced to them or for there to be sufficient sharing of the profits,
respondent Milan decided to stop mining operations in those nonproducing tunnels which in this case included the tunnels of the
tunnel owners/petitioners and also for the reason that some of the
tunnels were found to be unsafe.
4.13. For over a year when the petitioners were being funded and
allowed to mine none of the petitioners complained nor filed any
complaints. No objections were made with respect to the permits
issued or the alleged failure to secure the Free and Prior Informed
Consent (FPIC). In fact, there were initial moves to secure the FPIC
when a meeting was called with the community, which included the
attendance of some of herein petitioners for the parties to enter into a
memorandum of agreement respecting the continued operations of
respondent Milan in the Virac, Itogon area.
4.14. Petitioners claim that the conduct of small scale mining
activities are being done with impunity and without regard to existing
mining and environmental laws such that it has caused destruction of
the environment which would be irreversible. This is vehemently
denied, the truth of the matter is the mining activities and operations
and its impact on the environment were also taken into consideration
such that there was constant monitoring of the same in order not to
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cause major damage on the environment. Among the actions


undertaken by the group of Milan in ensuring compliance with
environmental laws and safety are:
4.14.1.
They secured a Discharge Permit under Permit No.
2013-DP-L-141105-00811 issued last December 27, 2014 for
purposes of its Tailing Storage Facility (TSF) and has abided by
the terms and conditions thereof;
4.14.2.
The plant has a cyanide detoxification facility to
insure that the effluent that flows into the TSF is already safe.
This is a special feature of Milan's MPP that underscores its
commitment to protect the environment They have been
assigned License12 by the Department of Environment and
Natural Resources (DENR) with regard to the Chemical Control
Order registration requirements;
.

4.14.3.
They have engaged the services of a Pollution
Control Officer, Company Engineer, Mining Consultant and
Safety Engineer, as well as other engineers and geologist to
ensure compliance with safety and environmental protection;
4.14.4.
Tree-planting in the area has been undertaken and
there exists a plant nursery;
4.14.5.
There is the implemented slope protection/soil
erosion control measures, and includes environmental
concerns in its regular site safety meetings, collected water
samples upstream and downstream for laboratory testing &
analysis.
4.14.6.
Permits13 for the construction of the buildings in the
mining area were duly secured.
Petitioners, on the other hand, have not undertaken any like
activities when they conducted their illegal small scale mining prior to
the entry of respondents.
4.15. In the conduct of small scale mining, the Milans requested that
those to be hired by the tunnel owners/petitioner concerned must
come from the area. This was with the end in view of ensuring that
the people at Virac were given priority to be hired by the tunnel
owners/petitioners concerned.

11

Photocopy of the Discharge Permit under Permit No. 2013-DP-L-141105-008 is hereto attached as
ANNEX I.
12
Photocopy of the DENR issued Chemical Control License No. CCO-2013-003-CAR is hereto attached
and marked as ANNEX J.
13
Photocopies of the Building Permits are hereto attached and marked as ANNEX K and series.

4.16. When mining operations of the petitioners were ended by


reason of their insufficient production and stoppage of operation in
certain tunnels for safety reasons, respondent Milans representatives
were in conference with the tunnel owners through their supposed
representative petitioner Rodolfo Antolino and others as well as their
counsel for purposes of entering into a new mining agreement for the
continued mining of the petitioners on the area of the respondent
Milans permits and with an agreement as to their profit and expense
sharing. After several conferences, for reasons only known to them,
the representatives of the miners and contractors made no
communication.
4.17. That as of the present, Milan has undergone retrenchment
measures and has stopped its mining operations and has given
notice14 of the retrenchment of its company workers to the
Department of Labor and Employment (DOLE) as well as notices to
its workers.
4.18. Petitioners allege that they are dependent on small scale
mining as their source of livelihood and would suffer irreparable
damages from the continued small scale mining operations of
respondents if not enjoined by this Honorable Office. Petitioners are
not registered and have not secured the necessary permits from the
DENR as small scale miners or to conduct small scale mining
activities. They have not shown proof that they have secured an FPIC
as they are not exempt from securing the same. Except for their bare
allegations, they have not supported and provided even a modicum of
evidence of environmental violations the Milans or by Datem. In fact,
prior to the entry of the Milans or Datem, the necessary
environmental safeguards were not being undertaken by the
petitioners herein in the conduct of their illegal small scale mining
activities.
4.19. It is axiomatic that he who comes to court must come with
clean hands. This case should be seen for the true motive of the
petitioners. Petitioners are trying to use this office to enjoin the legal
activities of the permit holders, who have secured their proper permits
and complied with environmental safety measures, in order for
petitioners to enter into the mining area subject of this case so that
the petitioners can engage and continue in their small scale mining
activities which are illegal for failure to show any registration or permit
for their activities, or concern for environmental safety.
4.20. Other miners from the Indigenous Cultural Community, not
petitioners herein, were allowed to mine by Milan at the time of the
latters operation. To enjoin respondent Milan herein would also
adversely affect these miners and claimants in a manner that is
irreparable to them.
14

Photocopy of the Notice of Retrenchment to DOLE is hereto attached and marked as ANNEX L.

4.21. At the time Milan commenced their mining operations, when


they were granted the permits from the government agencies as
indicated above, they were of the honest belief that they had
completed all requirements. They should not be faulted for their
activities in the area when they were granted their permits and relied
thereon for their operations.
4.22. At the time petitioners were allowed to mine within the
permitted area of respondents and were financed, not a word or
whimper came from any of them. In fact they enjoyed the generosity
of the Milans in the form of advancement of expenses for their mining
operations. Petitioners received advance payments, pursuant to the
mining agreement and could for the first time conduct their mining
operations legally. When the parties could not reach a new mining
agreement, through no refusal or fault on the part of the Milans,
petitioners, as they are wont to do, filed this case(s) to continue to
harass them.
4.23. Petitioners prayer to be restored by this Honorable Office to
conducted small scale mining activities would be to sanction their
illegal acts. As earlier expounded, none of the petitioners have
secured their permits from the proper government offices nor are they
possessed of a FPIC. Petitioners cannot, and should not, be allowed
to mine illegally.
4.24. Petitioners prayer for the payment of damages for alleged
destruction is wont of even a modicum of evidence and thus should
be denied. They cannot be allowed to engage in illegal mining and if
prevent, ask for damages.
4.25. On the basis of the foregoing, there is no basis for the issuance
of a Temporary Restraining Order (TRO), a Writ of Preliminary
Injunction, and/or Injunction.
4.26. Petitioners claim for actual, moral, exemplary damages,
attorneys fees and other legal expenses are baseless, without merit
and should also be denied. Whatever expenses they may have
incurred in the filing of this case should be shouldered by them alone.
V
PRAYER
WHEREFORE, premises considered it is respectfully prayed of this
Honorable Office that the instant Complaint be DISMISSED for utter lack of
merit.
Other reliefs, just and equitable, are likewise prayed for.
9

Done this 9th day of July 2015 at Baguio City, Philippines.

THE LAW FIRM OF


TENEFRANCIA & ASSOCIATES
Counsel for Respondents
142 Dangwa St., Cresencia Village
Guisad Valley, Baguio City
Telfax No. (074) 445-6505
Email address: stefrach2005@yahoo.com
By:
STEPHANIE RACHEL TENEFRANCIA-CASTRO
Roll No. 42331; 05. 9. 97
IBP No. 0980644; 1.08. 15; Baguio City
PTR No. 2017614; 1.08.15; Baguio City
MCLE Exemption No. V-000314
April 29, 2015; Pasig City, Manila
Copy furnished
Atty. Noel G. Ngolob
Counsel for Petitioners
3rd Flr. Shopperslane, Belfranlt Bldg.
General Luna Road, Baguio City

By Registered Mail
With Registry Receipt No.
July , 2015
Baguio City

EXPLANATION FOR THE USE OF REGISTERED MAIL


A copy of the foregoing Answer is served on counsel for the petitioners by registered
mail due to the distance between the offices of counsels from one another, time constraints, and
lack of office personnel to effect personal service.

Stephanie Rachel Tenefrancia-Castro

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