G.R. Nos. 152613 & 152628 APEX MINING CO., INC., vs. Southeast Mindanao Gold Mining Corp.,(SEM) et. al CASE DIGEST

G.R. Nos. 152613 & 152628 APEX MINING CO., INC., vs. Southeast Mindanao Gold Mining Corp.,(SEM) et. al 

G.R. No. 152619-20 BALITE COMMUNAL PORTAL MINING COOPERATIVE vs. southeast mindanao gold mining corp. 

G.R. No. 152870-71 THE MINES ADJUDICATION BOARD AND ITS MEMBERS, THE HON. VICTOR O. RAMOS (Chairman), UNDERSECRETARY VIRGILIO MARCELO (Member) and DIRECTOR HORACIO RAMOS (Member) vs. southeast mindanao gold mining corporation 

FACTS:

A motion for reconsideration was filed by SEM. The Assailed Decision held that the assignment of Exploration Permit (EP) 133 in favor of SEM violated one of the conditions stipulated in the permit. It also ruled that the transfer of EP 133 violated Presidential Decree No. 463, which requires that the assignment of a mining right be made with the prior approval of the Secretary of the Department of Environment and Natural Resources (DENR). Moreover, the Assailed Decision pointed out that EP 133 expired by non-renewal since it was not renewed before or after its expiration. It likewise upheld the validity of Proclamation No. 297 absent any question against its validity. In view of this, and

considering that under Section 5 of Republic Act No. 7942, otherwise known as the “Mining Act of 1995,” mining operations in mineral re

servations may be undertaken directly by the State or through a contractor, the Court deemed the issue of ownership of priority right over the contested Diwalwal Gold Rush Area as having been overtaken by the said proclamation. Thus, it was held in the Assailed Decision that it is now within the prerogative of the Executive Department to undertake directly the mining operations of the disputed area or to award the operations to private entities including petitioners Apex and Balite, subject to applicable laws, rules and regulations, and provided that these private entities are qualified. Apex, for its part, filed a Motion for Clarification of the Assailed Decision, praying that the

Court elucidate on the Decision’s pronouncement that “mining operations, are

 now, therefore within the

full control of the State through the executive branch.” Moreover, Apex asks this Court to order the

Mines and Geosciences Board (MGB) to accept its application for an exploration permit. Balite echoes the same concern as that of Apex on the actual takeover by the State of the mining industry in the disputed area to the exclusion of the private sector. In addition, Balite prays for this Court to direct MGB to accept its application for an exploration permit. CamiloBanad, et al., likewise filed a motion for reconsideration and prayed that the disputed area  be awarded to them. In the Resolution, the Court En Banc resolved to accept the instant cases.

ISSUES:

1. Whether the transfer or assignment of Exploration Permit (EP) 133 by MMC to SEM was validly made without violating any of the terms and conditions set forth in Presidential Decree  No. 463 and EP 133 itself.

2. Whether Southeast Mindanao Mining Corp. acquired a vested right over the disputed area, which constitutes a property right protected by the Constitution. 

3. Whether the assailed Decision dated 23 June 2006 of the Third Division in this case is contrary to and overturns the earlier Decision of this Court in Apex v. Garcia (G.R. No. 92605, 16 July 1991, 199 SCRA 278). 

4. Whether the issuance of Proclamation No. 297 declaring the disputed area as mineral reservation outweighs the claims of SEM, Apex Mining Co. Inc. and Balite Communal Portal Mining Cooperative over the Diwalwal Gold Rush Area. 

5. Whether the issue of the legality/constitutionality of Proclamation No. 297 was belatedly raised.

HELD:

1. The assailed Decision did not overturn the 16 July 1991 Decision in Apex Mining Co., Inc. v. Garcia. The former was decided on facts and issues that were not attendant in the latter, such as the expiration of EP 133, the violation of the condition embodied in EP 133 prohibiting its assignment, and the unauthorized and invalid assignment of EP 133 by MMC to SEM, since this assignment was effected without the approval of the Secretary of DENR; 

2. SEM did not acquire vested right over the disputed area because its supposed right was extinguished by the expiration of its exploration permit and by its violation of the condition prohibiting the assignment of EP 133 by MMC to SEM. In addition, even assuming that SEM has a valid exploration permit, such is a mere license that can be withdrawn by the State. In fact, the same has been withdrawn by the issuance of Proclamation No. 297, which places the disputed area under the full control of the State through the Executive Department;

 3. The approval requirement under Section 97 of Presidential Decree No. 463 applies to the assignment of EP 133 by MMC to SEM, since the exploration permit is an interest in a mining lease contract; 

4. The issue of the constitutionality and the legality of Proclamation No. 297 was raised belatedly, as SEM questions the same for the first time in its Motion for Reconsideration. Even if the issue were to  be entertained, the said proclamation is found to be in harmony with the Constitution and other existing statutes; 

5. The motion for reconsideration of CamiloBanad, et al. cannot be passed upon because they are not parties to the instant cases;

 6. The prayers of Apex and Balite asking the Court to direct the MGB to accept their applications for exploration permits cannot be granted, since it is the Executive Department that has the prerogative to accept such applications, if ever it decides to award the mining operations in the disputed area to a  private entity;