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Narra Nickel Mining Vs Redmont
Narra Nickel Mining Vs Redmont
FACTS: Sometime in Dec 2006, resp Redmont Consolidated Mines Corp. (Redmont), a domestic
corporation organized and existing under Phil laws, took interest in mining and exploring certain areas of
the province of Palawan.
After inquiring with the DENR, it learned that the areas where it wanted to undertake exploration and mining
activities where already covered by Mineral Production Sharing Agreement (MPSA) applications of pets
Narra, Tesoro and McArthur.
Pet McArthur, through its predecessor-in-interest Sara Marie Mining, Inc. (SMMI), filed an application for
an MPSA and Exploration Permit (EP) with the Mines and Geo-Sciences Bureau (MGB), Office of the
DENR.
Subsequently, SMMI was issued MPSA-AMA-IVB-153 covering an area of over 1,782 hectares in the Province of
Palawan and EPA-IVB-44 which includes an area of 3,720 hectares also in Palawan.
The MPSA and EP were then transferred to Madridejos Mining Corporation (MMC) and, on November 6, 2006,
assigned to petitioner McArthur.
Pet Narra acquired its MPSA from Alpha Resources and Dev Corp & Patricia Louise Mining & Dev Corp (PLMDC)
which previously filed an application for an MPSA with the MGB - DENR on Jan 6, 1992.
Through the said application, the DENR issued MPSA-IV-1-12 covering an area of 3.277 hectares in barangays
Calategas and San Isidro, Municipality of Narra, Palawan.
Subsequently, PLMDC conveyed, transferred and/or assigned its rights and interests over the MPSA application in
favor of Narra.
Another MPSA application of SMMI was filed with the DENR Region IV-B, labeled as MPSA-AMA-IVB-154 (formerly
EPA-IVB-47) over 3,402 hectares in Barangays Malinao and Princesa Urduja, Municipality of Narra, Province of
Palawan.
SMMI subsequently conveyed, transferred and assigned its rights and interest over the said MPSA application to
Tesoro.
On Jan 2, 2007, Redmont filed before the Panel of Arbitrators (POA) of the DENR 3 separate petitions for
the denial of petitioners applications for MPSA designated as AMA-IVB-153, AMA-IVB-154 and MPSA IV-
1-12.
In the petitions, Redmont alleged that at least 60% of the capital stock of McArthur, Tesoro and Narra are
owned and controlled by MBMI Resources, Inc. (MBMI), a 100% Canadian corporation.
Redmont reasoned that since MBMI is a considerable stockholder of pets, it was the driving force behind
petitioners filing of the MPSAs over the areas covered by applications since it knows that it can only
participate in mining activities through corporations which are deemed Filipino citizens.
Redmont argued that given that petitioners capital stocks were mostly owned by MBMI, they were likewise
disqualified from engaging in mining activities through MPSAs, which are reserved only for Filipino citizens.
In their Answers, petitioners averred that they were qualified persons under Sec 3 of RA 7942 or the Phil
Mining Act of 1995 which provided:
Definition of Terms. As used in and for purposes of this Act, the following terms, whether in singular or plural,
shall mean:
xxxx
"Qualified person" means any citizen of the Phil with capacity to contract, or a corporation, . . . organized or
authorized for the purpose of engaging in mining, with technical and financial capability to undertake mineral
resources development and duly registered in accordance with law at least 60% of the capital of which is
owned by citizens of the Phil: Provided, That a legally organized foreign-owned corporation shall be deemed
a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement
or mineral processing permit.
Additionally, they stated that their nationality as applicants is immaterial because they also applied for
Financial or Technical Assistance Agreements (FTAA) denominated as AFTA-IVB-09 for McArthur, AFTA-
IVB-08 for Tesoro and AFTA-IVB-07 for Narra, which are granted to foreign-owned corporations.
Nevertheless, they claimed that the issue on nationality should not be raised since McArthur, Tesoro and
Narra are in fact Philippine Nationals as 60% of their capital is owned by citizens of the Philippines.
POA (Panel of Arbitration): On Dec 14, 2007, it issued a Resolution disqualifying petitioners from gaining
MPSAs.
DISQUALIFIED for being considered as Foreign Corpos. Their Mineral Production Sharing
Agreement (MPSA) are hereby x x x DECLARED NULL AND VOID.
The POA considered petitioners as foreign corporations being "effectively controlled" by MBMI, a
100% Canadian company and declared their MPSAs null and void.
In the same Resolution, it gave due course to Redmonts EPAs. Thereafter, on Feb 7, 2008, the
POA issued an Order denying the MR filed by petitioners.
McArthur and Tesoro filed a joint Notice of Appeal and Memorandum of Appeal with the Mines Adjudication
Board (MAB) while Narra separately filed its Notice of Appeal and Memorandum of Appeal.
Pending the resolution of the appeal filed by petitioners with the MAB, Redmont filed a Complaint with the
SEC, seeking the revocation of the certificates for registration of pets on the ground that they are foreign-
owned or controlled corporations engaged in mining in violation of Phil laws.
Thereafter, Redmont filed on Sept 1, 2008 a Manifestation and Motion to Suspend Proceeding before the
MAB praying for the suspension of the proceedings on the appeals filed by McArthur, Tesoro and Narra.
Subsequently, on Sept 8, 2008, Redmont filed before the RTC of QC a Complaint for injunction with
application for issuance of a TRO and/or writ of preliminary injunction, docketed as Civil Case No. 08-
63379. Redmont prayed for the deferral of the MAB proceedings pending the resolution of the Complaint
before the SEC.
MAB: But before the RTC can resolve Redmonts Complaint and applications for injunctive reliefs, the MAB
issued an Order on Sept 10, 2008, finding the appeal meritorious.
It held:
WHEREFORE, in view of the foregoing, the Mines Adjudication Board hereby REVERSES and
SETS ASIDE the Resolution dated Dec 14 2007 of the in POA-DENR Case Nos. 2001-01, 2007-
02 and 2007-03, and its Order dated 07 Feb 2008 denying the MRs of the Appellants. T
he Petition filed by Redmont Consolidated Mines Corporation on 02 January 2007 is hereby
ordered DISMISSED.17
RTC: Belatedly, on Sept 16, 2008, the issued an Order granting Redmonts application for a TRO and
setting the case for hearing the prayer for the issuance of a writ of preliminary injunction on Sept 19, 2008.
CA: The findings of the POAs of the DENR that resps McArthur, Tesoro and Narra are foreign corporations
is upheld and, therefore, the rejection of their applications for MPSA should be recommended to the Sec of
the DENR.
With respect to the applications of respondents McArthur, Tesoro and Narra for Financial or Technical
Assistance Agreement (FTAA) or conversion of their MPSA applications to FTAA, the matter for its rejection
or approval is left for determination by the Sec of the DENR and the Pres of the Phil.
CA found that there was doubt as to the nationality of petitioners when it realized that pets had a common
major investor, MBMI, a corporation composed of 100% Canadians.
The CA used the "grandfather rule" to determine the nationality of pets which provides:
Shares belonging to corps or partnerships at least 60% of the capital of which is owned by Filipino
citizens shall be considered as of Philippine nationality, but if the percentage of Filipino ownership
in the corporation or partnership is less than 60%, only the # of shares corresponding to such
percentage shall be counted as of Phil nationality.
Thus, if 100,000 shares are registered in the name of a corpo or partnership at least 60% of the
capital stock or capital, respectively, of which belong to Filipino citizens, all of the shares shall be
recorded as owned by Filipinos. But if less than 60%, or say, 50% of the capital stock or capital of
the corporation or partnership, respectively, belongs to Filipino citizens, only 50,000 shares shall
be recorded as belonging to aliens.
In determining the nationality of pets, the CA looked into their corporate structures and their corresponding
common shareholders. Using the grandfather rule, the CA discovered that MBMI in effect owned majority
of the common stocks of the petitioners as well as at least 60% equity interest of other majority shareholders
of pets through joint venture agreements (JVA).
The CA found that through a "web of corporate layering, it is clear that one common controlling investor in
all mining corporations involved x x x is MBMI." Thus, it concluded that petitioners McArthur, Tesoro and
Narra are also in partnership with, or privies-in-interest of, MBMI.
Furthermore, the CA viewed the conversion of the MPSA applications of petitioners into FTAA applications
suspicious in nature and, as a consequence, it recommended the rejection of petitioners MPSA
applications by the Secretary of the DENR.
While the petition was pending with the CA, Redmont filed with the Office of the Pres (OP) a petition dated
May 7, 2010 seeking the cancellation of petitioners FTAAs.
OP: On April 6, 2011, it canceled and revoked petitioners FTAAs for violating and circumventing the
"Constitution x x x[,] the Small Scale Mining Law and Environmental Compliance Certificate as well as
Sections 3 and 8 of the Foreign Investment Act and E.O. 584."
The OP, in affirming the cancellation of the issued FTAAs, agreed with Redmont stating that petitioners
committed violations against the abovementioned laws and failed to submit evidence to negate them.
The Decision further quoted the December 14, 2007 Order of the POA focusing on the alleged
misrepresentation and claims made by petitioners of being domestic or Filipino corporations and the
admitted continued mining operation of PMDC using their locally secured Small Scale Mining Permit inside
the area earlier applied for an MPSA application which was eventually transferred to Narra.
The MR of the Decision was denied by the OP in a Resolution dated July 6, 2011.
ISSUE:
The main issue in this case is centered on the issue of petitioners nationality, whether Filipino or foreign.
NOTE: The filing of the FTAA application is a clear admission that the resps are not capable of conducting a large
scale mining operation and that they need the financial and technical assistance of a foreign entity in their operation
that is why they sought the participation of MBMI Resources, Inc. The participation of MBMI in the corporation only
proves the fact that it is the Canadian company that will provide the finances and the resources to operate the mining
areas for the greater benefit and interest of the same and not the Fil stockholders who only have a less substantial
financial stake in the corporation.
The filing of the FTAA application on during the pendency of the case only demonstrate the violations and lack of
qualification of the resp corps to engage in mining. The filing of the FTAA application conversion which is allowed
foreign corporation of the earlier MPSA is an admission that indeed the resp is not Fil but rather of foreign nationality
who is disqualified under the laws. Corporate docs of MBMI Resources, Inc. furnished its stockholders in their head
office in Canada suggest that they are conducting operation only through their local counterparts.
Grandfather test
In their previous petitions, they had been adamant in insisting that they were Filipino corporations, until they
submitted their Manifestation and Submission dated October 19, 2012 where they stated the alleged
change of corporate ownership to reflect their Filipino ownership. Thus, there is a need to determine the
nationality of petitioner corporations.
Basically, there are two acknowledged tests in determining the nationality of a corporation: the control test
and the grandfather rule. Paragraph 7 of DOJ Opinion No. 020, Series of 2005, adopting the 1967 SEC
Rules which implemented the requirement of the Constitution and other laws pertaining to the controlling
interests in enterprises engaged in the exploitation of natural resources owned by Filipino citizens, provides:
Shares belonging to corporations or partnerships at least 60% of the capital of which is owned by
Filipino citizens shall be considered as of Philippine nationality, but if the percentage of Filipino
ownership in the corporation or partnership is less than 60%, only the number of shares
corresponding to such percentage shall be counted as of Philippine nationality.
Thus, if 100,000 shares are registered in the name of a corporation or partnership at least 60% of
the capital stock or capital, respectively, of which belong to Filipino citizens, all of the shares shall
be recorded as owned by Filipinos. But if less than 60%, or say, 50% of the capital stock or capital
of the corporation or partnership, respectively, belongs to Filipino citizens, only 50,000 shares shall
be counted as owned by Filipinos and the other 50,000 shall be recorded as belonging to aliens.
First, as a rule in statutory construction, when there is conflict between the Constitution and a statute, the
Constitution will prevail. In this instance, specifically pertaining to the provisions under Art. XII of the
Constitution on National Economy and Patrimony, Sec. 3 of the FIA will have no place of
application. Corporate layering is admittedly allowed by the FIA, but if it is used to circumvent the
Constitution and other pertinent laws, then it becomes illegal.
Second, under the SEC Rule1 and DOJ Opinion2 , the Grandfather Rule must be applied when the 60-40
Filipino-foreign equity ownership is in doubt. Doubt is present in the Filipino equity ownership of Narra,
Tesoro, and MacArthur
since their common investor, the 100% Canadian-owned corporation MBMI, funded them.
Under the Grandfather Rule, it is not enough that the corporation does have the required 60% Filipino
stockholdings at face value.
To determine the percentage of the ultimate Filipino ownership, it must first be traced to the level of the
investing corporation and added to the shares directly owned in the investee corporation.
Applying this rule, it turns out that the Canadian corporation owns more than 60% of the equity interests of
Narra, Tesoro and MacArthur.
Hence, the latter are disqualified to participate in the exploration, development and utilization of the
Philippines natural resources.
NOTE:
the Court finds that this case calls for the application of the grandfather rule since, as ruled by the POA and
affirmed by the OP, doubt prevails and persists in the corporate ownership of petitioners. Also, as found by
the CA, doubt is present in the 60-40 Filipino equity ownership of petitioners Narra, McArthur and Tesoro,
since their common investor, the 100% Canadian corporationMBMI, funded them. However, petitioners
also claim that there is "doubt" only when the stockholdings of Filipinos are less than 60%.
Obviously, the instant case presents a situation which exhibits a scheme employed by stockholders to
circumvent the law, creating a cloud of doubt in the Courts mind. To determine, therefore, the actual
participation, direct or indirect, of MBMI, the grandfather rule must be used.