In reply therewith, please be advised as follows:
- FTAA proposals/applications filed and accepted by MGB are closed to subsequent mineral rights applications notwithstanding the the fact that the MGB has not furnished a copy thereof to concerned DENR Regional Office within 72 hours. We feel that the inclusion of said period is not a mandatory provision but merely intended to facilitate the processing of FTAA applications; and
- While it appears that there is no obligation on the part of the FTAA applicant to furnish said copy to concerned DENR Regional Office, yet, we likewise feel that said applicant is not precluded from doing so for the same reason abovementioned, that is, to facilitate the processing of the FTAA application. x x x
x x x Upon thorough study, we believe that when the regulations at that time (DENR Administrative Order No. 63) requires that a copy of the FTAA proposal be furnished to the DENR Regional Office concerned within 72 hours from filing thereof, it is mandatory, notwithstanding our previous opinion on the matter, the purpose being is to notify the said regional office of the existence of said application and therefore they should no longer accept other applications that are in conflict therewith. We cannot blame the Regional Office concerned in accepting applications for MPSA and other applications because the FTAA proponent failed to furnish them a copy of its FTAA proposal within the prescribed hours. x x x
IN LIGHT OF THE FOREGOING PREMISES, THE PANEL WEIGHED BOTH ALLEGATIONS AND ARGUMENTS AND CONSIDERED THE EVIDENCE AND FOUND THE SAME STRONGLY IN FAVOR OF THE PROTESTANT, DDCP (Diamond Drilling). NPI (Newmont) is hereby ordered to limit its area to 81,000 has. per province and amend its technical description and plan to exclude the area of DDCP. MPSA No. 48 is hereby declared valid, granting to DDCP the preferential right over the area covered by its MPSA.
SO ORDERED.24
WHEREFORE, the foregoing premises considered, the appealed decision dated October 22, 1997 of the Panel of Arbitrators, DENR-CAR is hereby REVERSED and SET ASIDE and NPI's FTAA application is hereby SUSTAINED.
SO ORDERED.27
SEC. 8. Acceptance and Evaluation of FTAA. - All FTAA proposals shall be filed with and accepted by the Central Office Technical Secretariat (MGB) after payment of the requisite fees to the Mines and Geosciences Bureau, copy furnished the Regional Office concerned within 72 hours. The Regional Office shall verify the area and declare the availability of the area for FTAA and shall submit its recommendations within thirty (30) days from receipt. In the event that there are two or more applicants over the same area, priority shall be given to the applicant who first filed his application. In any case, the Undersecretaries for Planning, Policy and Natural Resources Management; Legal Services, Legislative, Liaison and Management of FASPO; Field Operations and Environment and Research, or its equivalent, shall be given ten (10) days from receipt of FTAA proposal within which to submit their comments/recommendations and the Regional Office, in the preparation of its recommendation shall consider the financial and technical capabilities of the applicant, in addition to the proposed Government share. Within five (5) working days from receipt of said recommendations, the Technical Secretariat shall consolidate all comments and recommendations thus received and shall forward the same to the members of the FTAA Negotiating Panel for evaluation at least within thirty (30) working days. (Emphasis supplied)
x x x We rule that the requirement of DAO No. 63 that the MGB Regional Office concerned be furnished a copy of the FTAA application is merely directory in character. The word "shall," which seems to give the provision a mandatory character, precedes the filing of an FTAA application and not the furnishing of a copy of the same to the Regional office; hence to interpret the word "shall" as giving the latter a mandatory character is far-fetched. A fortiori, the purpose of said requirement is to notify the Regional Office concerned that an application for FTAA was filed with the Central Office Technical Secretariat (COTS) of the MGB so that the Regional Office may verify the area covered by the application and submit its recommendation concerning its availability. It must be stressed that the Regional Office concerned only has the authority to recommend; hence, its findings are not conclusive with COTS-MGB. It only performs an allied function to aid the COTS-MGB in arriving at the decision to grant or deny the application for FTAA. The power to grant or deny FTAA applications remain in the hands of the COTS-MGB. Accordingly, the "72-hour requirement" must be construed as directory and not mandatory in nature.
In any case, Newmont satisfied the "72-hour requirement." The MGB Regional Office of CAR found - as confirmed by the Board - that on 21 December 1994, its Regional Technical Director Office received a facsimile copy of the letter of Newmont with the latter's FTAA application attached thereto. Based on this finding, the Board ruled that Newmont satisfied the "72-hour requirement." The Board explains:"A fax machine copy of an application showing therein the essential information, specially the dates of filing and registration, and technical description is a valid document. Thus, NPI has shown to have complied with the required copy of furnishing MGDS/DENR-CAR within 72 hours."
Indeed, the facsimile copy of Newmont's covering letter and FTAA application satisfy the requirement of DAO No. 63, for said order did not specify the mode of service and the kind of copy that must be furnished to the MGB Regional Office. The order simply stated that the MGB Regional Office be furnished a copy of an an applicant's FTAA proposal. The order did not require personal service or service via mail; neither did the order require that an original or a certified true copy be furnished the Regional Office. Consistent with our ruling above, this is so, because the Regional Office only performs an allied function, the result of which is only recommendatory and conclusive with the COTS-MGB. In view of this, Newmont's manner of furnishing the MGB-CAR Regional Office of a copy of its FTAA application - through facsimile - cannot be validly questioned as improper. And, in as much as MGB-CAR Regional Office received the copy of Newmont's FTAA application on 21 December 1994, or approximately 24 hours from the day the same was filed in COTS-MGB, Section 8 of DAO No. 63 was satisfied. x x x32
WHEREFORE, the petition is DISMISSED. The assailed Decision and Resolution of the Mines Adjudication Board giving preferential right to Newmont Philippines, Inc. over the area covered by its application for Financial or Technical Assistance Agreement, and excluding the Mineral Production Sharing Agreement of Diamond Drilling Corporation of the Philippines over the same area, is AFFIRMED.33
Endnotes:
1 Under Rule 45 of the 1997 Revised Rules of Civil Procedure.
2 Rollo, pp. 10-17. Penned by Justice Marlene Gonzales-Sison with Justices Juan Q. Enriquez, Jr. and Vicente S.E. Veloso, concurring.
3 Id. at 19-22.
4 Id. at 514-524.
5 Authorizing the Secretary of Environment and Natural Resources to Negotiate and Conclude Joint Venture, Co-Production, or Production-Sharing Agreements for the Exploration, Development and Utilization of Mineral Resources, and Prescribing the Guidelines for Such Agreements and Those Agreements Involving Technical or Financial Assistance by Foreign-Owned Corporations for Large-Scale Exploration, Development and Utilization of Minerals; issued on 25 July 1987.
6 Guidelines for the Acceptance, Consideration and Evaluation of Financial or Technical Assistance Agreement Proposals; signed on 12 December 1991.
7 Section 1.a of DENR Department Administrative Order No. 63, series of 1991:
Section 1. Definition of Terms. - As used in and for the purposes of this Order, the following words and terms, whether in singular or plural, shall have the following respective meanings:
1.a Contract Area means the area originally awarded under FTAA without reference to region or province. x x x (Emphasis supplied)
8 Section 6.a of DENR Department Administrative Order No. 63, series of 1991:
Section 6. Maximum Contract and Project Areas Allowed. -
x x x
The maximum contract area shall be:
6.a 1,235 meridional blocks or 100,000 hectares onshore.
6.b 16,000 meridional blocks or 1,296,000 hectares offshore reckoned from the 100 meters from the shore waterlines at mean low tide extending seaward.
6.c Combination of a & b provided that it shall not exceed the maximum limits for onshore and offshore areas. (Emphasis supplied)
9 As evidenced by Official Receipt No. 9299562 V dated 20 December 1994; rollo, p. 525.
10 Id. at 526.
11 Guidelines on Mineral Production Sharing Agreement under Executive Order No. 279; signed on 23 June 1989.
12 Section 3.5, Article 3 of DENR Administrative Order No. 57, series of 1989:
Section 3.5. Award of Production Sharing Agreement
x x x
Minimum Requirements
Regardless of whether the Agreement shall be awarded by bidding or negotiation, the following minimum requirements shall be submitted by prospective bidders and proponents:
x x x
b. For Corporations, Partnerships, Associations
i. Certified photocopy of Certificate of Registration issued by the Securities and Exchange Commission (SEC) or the concerned authorized government agency;
ii. Certified photocopy of the Articles of Incorporation, Partnership/Association and By-Laws;
iii. Personal data sheets of the current directors and officers, including their nationalities, bio-data, and relevant experiences or annual report;
iv. Audited Financial Statements for the three (3) immediately preceding years, if applicable;
v. Proof of sufficiency of capital and credit lines;
vi. Authorizations to the Secretary or his representative to verify submitted information.
13 As evidenced by Official Receipt No. 8263500 A dated 22 December 1994.
14 Designated as MPSA No. 048; rollo, pp. 91-92.
15 Id. at 548; copy of a map showing the conflict area between Newmont's FTAA applications and Diamond Drilling's MPSA application.
16 An Act Instituting a New System of Mineral Resources Exploration, Development, Utilization, and Conservation.
17 Rollo, p. 545.
18 CA rollo, pp. 348-349.
19 Docketed as MAC No. MGB-010.
20 Section 34 of Republic Act No. 7942:
Section 34. Maximum Contract Area. - The maximum contract area that may be granted per qualified person, subject to relinquishment shall be:
a. 1,000 meridional blocks onshore (approximately 81,000 hectares);
b. 4,000 meridional blocks offshore; or
c. Combinations of a and b provided that it shall not exceed the maximum limits for onshore and offshore areas. (Emphasis and underscoring supplied)
21 Rollo, pp. 536-542.
22 Section 272. Non-Impairment of Existing Mining/Quarrying Rights. - All valid and existing mining lease contracts, permits/licenses, leases pending renewal, Mineral Production Sharing Agreements, FTAA granted under Executive Order No. 279, at the date of the Act shall remain valid, shall not be impaired and shall be recognized by the Government x x x All pending applications for MPSA/FTAA covering forest land and Government Reservations shall not be required to re-apply for Exploration Permit: Provided, That where the grant of such FTAA applications/proposals would exceed the maximum contract area restrictions contained in Section 34 of the Act, the applicant/proponent shall be given an extension of one (1) year, reckoned from September 13, 1996, to divest or relinquish pursuant to Department Administrative Order No. 96-25 in favor of the Government, areas in excess of the maximum area allowance provided under the Act. x x x Provided, finally, That this provision is applicable only to all FTAA/MPSA applications filed under Department Administrative Order No. 63 prior to the effectivity of the Act and these implementing rules and regulations. (Emphasis supplied)
23 Rollo, pp. 71-80.
24 Id. at 80.
25 Docketed as MAB Case No. 022-97.
26 Rollo, pp. 81-86.
27 Id. at 86.
28 Id. at 87-90.
29 Docketed as CA-G.R. SP No. 96093.
30 Supra note 2.
31 Supra note 3.
32 Rollo, pp. 13-16.
33 Id. at 16.