CA voids N. Vizcaya gov’s order vs mine firm
BAYOMBONG, Nueva Vizcaya–The Court of Appeals has nullified an order issued by Gov. Luisa Cuaresma stopping the operations of a foreign firm, saying this was issued with “grave abuse of discretion”.
In a 16-page decision, the CA’s fifth division upheld the petition filed by OceanaGold Philippines Inc. to enjoin Cuaresma from further enforcing the cease-and-desist order (CDO) on the firm’s operations in Didipio village in Kasibu town, site of its US$117-million gold-copper project.
The appellate court likewise voided the tax assessment issued by Perfecto Martinez Jr., provincial treasurer, collecting more than P27 million in sand and gravel fees from the company.
“The assailed CDO and assessments were issued without basis as the activities of OceanaGold which are sought to be enjoined and taxed by (Cuaresma and Martinez) do not fall squarely within the coverage of the law,” said Justice Remedios Salazar-Fernando, the CA’s fifth division chair.
Cuaresma issued the CDO in May after OceanaGold, an Australian firm, refused to pay quarry taxes, claiming that it has been granted tax exemption as a national project, and that it was not extracting sand and gravel for commercial purposes.
The conflict escalated in May, when Cuaresma, along with provincial officials and armed policemen and security guards, barricaded the roads in Didipio after OceanaGold officials ignored the governor’s stoppage order and went on with their operations.
OceanaGold eventually stopped its construction work at the site in June, with officials citing the company’s financial losses, purportedly due to delays in the construction work.
The CA said the company cannot be taxed for quarrying activities at the site because the sand and gravel it has been extracting were not being used “for its value”, as provided for by the province’s tax ordinance.
“(The provincial officials’) persistence in enforcing the assailed CDO and assessments, despite the patent inapplicability of the taxing ordinance to (OceanaGold) amounts to nothing less than a whimsical or arbitrary exercise of judgment,” the CA added.
Lawyer Desiderio Perez Jr., provincial legal officer, on Monday said they will file a motion for reconsideration with the CA.
“In fact, we even look at the (CA decision) as something positive because the court impliedly recognized (the provincial government’s) power to collect taxes. The only issue is whether or not (OceanaGold’s) quarrying activities are subject to tax,” he said.
“We are ready to fight it out even up to the Supreme Court,” Perez added.
The court noted that in December 2007, Cuaresma issued an earlier CDO against the company, but only to allow it to resume operations on her condition that the contract to extract sand and gravel be awarded to another firm.
“Without lifting the CDO, Cuaresma permitted (the company) to resume operations on condition that it replaces its contractor (winning bidder Delta Earthmoving Corp.) with another contractor,” the CA said.
This was confirmed earlier by Environment Secretary Jose “Lito” Atienza, who slammed Cuaresma’s CDO, saying it was issued “capriciously”.
“It is not right that the governor, after initially expressing support, now turns her back on this project and issues the (CDO) when she is fully aware that the root of all these is a contract that somebody did not get,” he then said.
In an earlier interview, OceanaGold officials said they cannot yield to Cuaresma’s condition because Delta fairly won the contract, having tendered the lowest bid.