In August, I was invited to travel to Marinduque Island in the
Philippines to meet with civil society organizations, municipal
elected officials, and the elected Provincial Board. The topic
on people’s minds was a long-running lawsuit pitting the
Provincial Board against Canadian mining giant Barrick Gold.
The case, filed in the state of Nevada in 2005, is at a
crossroads and it may be re-filed in Canada. Marinduqueños
sought my assistance in considering their options.
I participated in four separate meetings with in total some 140
people. The meetings were facilitated by a handout (attached)
that sets out the basic background of the case and the four
options facing the Province.
The case was filed with the District Court in Nevada in October
2005, on behalf of the Provincial Government of the Island of
Marinduque, Philippines, against Canadian mining company Placer
Dome Inc. In 2006, Canadian mining company Barrick Gold Corp.
acquired Placer Dome and became a party to the lawsuit. The
Province brought the case in its sovereign capacity and as
parens patriae (protector) to all Marinduqueños. The
Province asserted that Placer Dome is responsible for serious
environmental degradation to Marinduque caused by nearly three
decades of mining, with consequent economic damages and impacts
to the health of people living in the vicinity of the mine and
its waste. The Marcopper mine was partly owned, and operated,
by Placer Dome. The Province sought an unspecified amount of
damages (including exemplary damages, interest and attorneys’
fees) and orders from the District Court requiring PDI to
complete an environmental clean-up of the affected lands and
water systems (including the reintroduction of harmed species
into the restored environment), repair the deteriorating
Marcopper mine structures, and create and fund environmental
and medical monitoring.
In February 2011, the Nevada district court judge dismissed the
case on the basis of Forum non Conveniens (that the US
is the wrong jurisdiction to hear the case), arguing that
Canada is a more appropriate forum (Barrick is headquartered in
Toronto). The judge noted that if the Province re-filed the
case in Canada, he would impose conditions favourable to the
Province including that: 1) Barrick cannot ask for dismissal of
the case from Canada based on Forum non Conveniens; 2)
Barrick has to agree not to seek dismissal on the basis of
statutes of limitations post October 4, 2005, when the case was
originally filed; 3) Barrick must admit that the Canadian legal
system permits monetary damages, as well as equitable relief.
At this juncture the parties agreed to stay proceedings and
attempt mediation to seek a settlement on which they could
agree. Between 2011 and 2014 mediated settlement negotiations
took place. In 2013, Barrick presented the Province a
settlement offer that raised serious concerns expressed
publicly in joint resolutions and petitions by many
Marinduqueños, including elected officials and provincial board
members. Concerns included a settlement offer that fell
far below the amount needed to clean up decades of
environmental damage, and restrictions on the use of funds,
including a prohibition on using the funds to clean up
ecosystems contaminated by mine waste.
Barrick did not address concerns of the Province. After
numerous deadlines were extended without a settlement, the
Nevada Supreme Court lifted the “stay” on the court proceedings
in July of 2014. The Province’s appeal is now proceeding before
the Nevada Supreme Court. The Province is arguing that the case
remain in Nevada, or, if it is dismissed, that it be dismissed
to the Philippines with conditions similar to those imposed on
Barrick by the district court of Nevada in 2011.
If the Supreme Court of Nevada upholds the lower court ruling,
the Province will have the opportunity to re-file the lawsuit
in Canada. While in Marinduque, Catherine was asked at her
meeting with the Provincial Board to assist the Province in
seeking legal representation in Canada in case suit is
dismissed in Nevada in favour of Canada.