Baru Gold Corp V.BARU

RE:RE:Baru Gold failed a 4th time to get their drill rig in place

[goldnerd]

Save Sangihe Island posted a reply to David Webb's proxy response on the open letter to Baru Gold by MiningWatch Canada. NoMiningonSangihe Save Sangihe Island - NoMiningonSangihe

SAVE SANGIHE ISLAND (SSI)

 
 
 

 
Your open letter in response to miningWatch.Ca letter to Baru Gold CEO Terry Filbert
 
 
Mr. “Webb”,
 
Your “review” dated June 20^th or - let’s say - comments on the open letter directed to Baru Gold CEO, Terry Filbert, by miningWatch Canada on June 15^th came to our attention as You published them over a variety of public discussion platforms[ii]. You didn’t address a copy of Your letter to SSI, but as SSI and its members are being defamed in Your letter as “scammers” and “hypocrites” following mean monetary interest, as You allege, we decided to respond to Your letter.
First, let’s put this very clear, we doubt your identity, Mr. “Webb”. You pretend to be a “knowledgeable shareholder”, but your engaged and emotional contributions in several forums like Yahoo Finance[iii], CEO.CA[iv] and others that exceed pure shareholder concern expose details which, as a shareholder, you wouldn’t have, even if you have done due diligent research on the mining project, as You say.
Your main accusation which you repeat over and over, is that “SSI membership is composed, funded and supported by illegal miners” and “These illegal miners (which form the membership and logical\financial support of SSI) have a vested interest in keeping their operations going and continue to employ tactics to protect their own interests at the cost of the environment and the well-being of local residents”.
 That is an allegation made up by You and can easily be turned down when one looks at the composition of and broad support for our civic movement, Save Sangihe Island.
The civil resistance movement SAVE SANGIHE ISLAND (SSI) is supported officially by the major church congregations on the island, the Board of Indigenous Peoples, Non-Government Organizations (local, regional, and national), students’ organizations, Sangihese communities in Jakarta and the diaspora, as well as various community leaders in the area. SSI represents the interests of the majority of Sangihese people on the island, and also Sangihese people in other parts of Indonesia and even in the diaspora, e.g. USA, Canada, Europe. SSI enjoys the support of major peoples’ organisations on Sangihe, such as:  Sangihe Protestant Church Congregation (GMIST) Sangihe and Jakarta, Sangihe Traditions Board (Badan Adat Sangihe), Kesatuan Pemuda Pegiat Budaya Sangihe, Kesatuan Kapitalaung (Kepala Desa) Menolak Tambang Sangihe, Polytechnical University Nusa Utara Civitas akademika Politeknik Nusa Utara, Alumni SMP 201 and SMA 1 Tahuna, Sanggar Seriwang Sangihe, Komunitas Seni Visual Secret, Perkumpulan Sampiri Sangihe, Sangihe Divers Club, KNTI – Sangihe, Kopitu Sangihe, AMAN Sangihe, GAMKI Sangihe, Pemuda GMPU, GP Ansor Sangihe, Gapoktan Organic Sangihe, AMPS, MPA Anemon, Mangasa Ngalipaeng, KPA Spink. SSI is also supported by national NGOs such as: JATAM, change.org and Greenpeace Indonesia, Walhi, Kontras, Econusa, Lokataru, Jaringnusa, Burung Indonesia, Aliansi Bhineka Tunggal Ika. On the provincial level SSI is supported by Yayasan Suara Nurani Minaesa, WALHI Sulut, YLBHI-LBH Manado, Amalta, IMM – Sulut, and LMND Sulut. All in all 36 organisations, not a greedy minority as You and TMS company officials claim who scornfully translate SSI into “Screwing up Sangihe Island”.[v]
Underlining your false allegations, you distort media footage as You are arbitrarily shortening and citing out of context, e.g. source 1 of Your footnotes: https://manado.tribunnews.com/2022/03/29/jull-takaliuang-akui-ada-pihak-dari-tambang-rakyat-yang-tergabung-dalam-ssi. You summarize: “Jull has admitted in a national newspaper that SSI’s membership, funding and logistical support come from “Community” or People’s Miners.” That must be taken as a willingly false characterization of the SSI founder, Jull Takaliuang. What she says in that article is that SSI is an open civic movement, and she can’t deny that there might be one or the other supporter who works in the illegal mining. In that newspaper article that You cite as proof that SSI is an organization that advocates illegal mining and is made up of illegal miners, Jull is cited as follows (translated from Indonesian language): ” Jull also said that SSI  had made an agreement with the mining community that SSI did not support them. "We will not defend anything related to environmental destruction. They say it doesn't matter if the people's mine is closed, the important thing is that PT TMS leaves," added Jull.” Of course this paints a completely different picture.
You also personally insult and humiliate Jull as an environmental hypocrite. You need to know Jull’s personal background to immediately expose Your allegations as false and entirely made up to discredit her as a person benefitting from people’s mining. Explicitly since 2003 she’s been active in the women’s and children welfare commission. Since 2005 she has been acting as CEO of the provincial commission for the protection of children. In 2015 she was awarded the N-Peace Award by the UNDP – PBB[vi]. She successfully advocated people in their struggle against PT. Newmont mine, PT. MSM mine, PT. MMP mine and now against PT. TMS on Sangihe. Jull is Sangihe born from Menggawa village. She has been dedicating her whole life for the struggle for the environment, social justice, and peoples’ rights.
You also claim that Alfred Pontolondo “vocally supports illegal mining.” You quote from Alfred’s facebook account (https://www.facebook.com/alfred.pontolondo/posts/2129788263888075 ) to support Your assertion that Afred stated “ illegal gold miners should be doing the mining themselves because we can keep more of the money.” In no part of the source you quote did he say such a thing. Alfred is Sangihe born and works as a civil servant in the tourism office. He is not involved in small scale mining whatsoever, nor does he benefit from it. He joint SSI because he anticipated the threat mining is for his home island and he feels responsible to do his part to protect the island from the huge environmental disaster PT. TMS will cause if allowed to operate open pit mining. Alfred until recently has been leading SSI but passed on his duty due to his professional obligations. However, he is still dedicated and active in SSI.
Elbi Piter is a simple village woman who maintains her family life. In the past her husband had worked on various jobs outside the village, among others crushing rocks in small scale mining. But since Elbi is active in SSI her husband returned to work in the village as a farmer who cultivates their agricultural gardens. Together they cultivate crops e.g., coconuts, cloves, nutmeg, which are harvested regularly and are more than sufficient to support their family, even to finance their children’s study at university. Elbi is very concerned about the environment in which she lives, in Bowone village, because according to the PT.TMS website the entire Bowone village is allocated to the PT.TMS processing plant. Elbi does not want to move from her village. Doesn't want to sell their land. She wants to continue her peaceful life with their children and grandchildren in Bowone village. And she doesn't want her village to be destroyed just because of PT. TMS. Elbi stepped forward as a pioneer woman who dared to raise the awareness of women in her village to fight together against PT. TMS which has great potential to destroy their living space. So Elbi Piter chose to fight for the truth and join SSI.
 
You accuse the key figures of SSI to “have either publicly expressed support, are closely connected and/or directly supported by the profits of illegal miners”, but You failed to prove your allegations. Therefore, SSI asks You to refrain from making false allegations either towards SSI or its leaders. Otherwise You might face criminal charges as provided under Indonesian Law (Article 310 KUHP).
 
As relates to some other misinterpretations of the legal aspect of PT. TMS we just comment those here for Your understanding.

1. You stated: “the passing of the 2020 “Job Creation Law (RUU Cipta Kerja, commonly known as the “Omnibus Law“), explicitly removed the requirement of a valid environmental permit (which was the one challenged in the Manado Courts) with the validity of the Business or Operations permit. In other words, the revocation or postponement of the letter in the Manado’s court does not affect any of the Operations or Business permits of PT TMS.”

You need to know that the so called Omnibus Law (UU 11/2020) was conditionally cancelled by rule no. 91/PUU-XVIII/2020 by Mahkamah Konstitusi RI, the State Constitutional Court on November 25^th 2021. This means that UU 11/2020 will be dormant for revision until November 2023 and can’t be used on any legal product until further notice. Besides that, as the (now revoked) Environmental Permit was issued in September 2020, the Omnibus Law can’t be applied to it, as it was issued in November 2020 (ex tunc).

2. You stated: “Despite the repeated and tired allegations made by SSI and MiningWatch Canada, the dismissal of the court case is an explicit acknowledgement of the validity of CoW.” And, “Regardless, these set of regulations do not apply to PT TMS because the CoW was agreed to and signed before the passage of these rules. You should be very aware of this legal reality.”

It seems You misunderstand the so-called Mining Law UU 4/2009. The Contract of Work held by PT. TMS has been practiced as a Mining Business Permit (IUPK) which is not in accordance with Law 4/2009. The Contract of Work (CoW) from the Indonesian Government that is held by PT TMS was signed on April 28^th, 1997. The contract was not activated from April 1997 to August 30, 2009. PT TMS failed to apply for a mining business license (IUP) as is made mandatory by Constitution law UU no. 4/2009, article 169 letters a and b. Failure to do so is considered a mining crime, article 158. The law requires the adjustment of existing CoWs to current legislation within a year which never happened. PT TMS failed to comply to the law, because its CoW (which hadn’t been active for 12 years) was never adjusted to the laws and regulations that came up in the meanwhile, i.e. regional autonomy, Law no. 27 of 2007 concerning Management of Coastal and Small Islands, and Law no. 32 of 2009 concerning Environmental Protection and Management, among others.
 In December 2010, the Minister for Energy and Mineral Resources issued a Decree granting  the CoW Exploration Activity Stage as well as reducing the CoW Area with Decree No. 514.K/30/DJB/2010. This decree must be considered unlawful as the requirements by law no 4/2009 were neglected. Instead, the CoW was unlawfully equated with an exploration permit. Later, the CoW held by PT. TMS was suspended several times by the Ministry for Energy and Minerals between September 2016 and November 2019. However, all of a sudden on January 29, 2021, the Minister for Energy and Mineral Resources issued DECISION OF THE MINISTER OF ESDM RI Number: 163.K/MB.04/DJB/2021 dated January 29, 2021 concerning Approval for Increasing the Stage of Exploration to Production Operation Activities. According to Law 4/2009 a CoW that had been revoked cannot be used as an upgraded mining business license. This means that all gold mining business activities of PT Tambang Mas Sangihe in the disputed area are mining activities without a permit (PETI) or illegal mining that meet the elements of mining crime as stipulated in the provisions Article 158 of Law 4/2009. In that way PT. TMS that You praise as a legal operation doesn’t differ from other illegal mining operations on Sangihe.
Furthermore, Baru Gold doesn’t hold a permit by the Minister for Oceans and Fishery to utilize small islands less than 2000 km2 in size as is mandatory for foreign companies by Constitution Law UU 1/2014, chapter 26 (a). Ch. 26 (a.3) requires that the Ministerial permit must be grounded on the recommendation of the Regent (of Sangihe). However, Chapter 35(k) of Constitution Law UU 27/2007 relating to small islands and coastal management and later amended by UU 1/2014 state clearly: “no one is allowed to exploit minerals on small islands”. Therefore PT. TMS was refused the spatial suitability recommendation by the Regent of Sangihe.
Accordingly, SSI considers PT Tambang Mas Sangihe as much an illegal mining operation as the small scall miners. It is obvious that the CoW that is employed as a mining business license was acquired unlawfully and is meant to be used unlawfully.

3. You stated: “In reference to the lawsuit in Manado SSI has filed against the Provincial Government, you have listed all claims against the Provincial Government and reported that the “court found in favour” of the plaintiffs. In fact, this is misleading as only 1 of 3 claims was found in favour of the plaintiffs. Although the Letter that was challenged was postponed, the reasons for doing so were largely administrative and there was no serious regulatory violations as you allege.”

To shed light on and elucidate the court rule we hold it necessary to get into more detail.
DETAILS of the Court decision[vii]
 
 
The principle of community involvement has been violated
 
Chapter II Procedures for Community Participation in the Amdal Process Letter A Page 4 Appendix
Regulation of the State Minister for the Environment of the Republic of Indonesia Number 17 of 2012 concerning Community Involvement in the Process of Environmental Impact Analysis and Environmental Permits prescribes as follows:
Community Participation in the Environmental Impact assessment (EIA/Amdal) Process consists of:
1. affected communities; 2. environmentalists; and 3. communities affected by all forms of decisions in the Environmental Permit to be granted
- Community participation is carried out through announcements, business plans and/or activities as well as public consultations carried out prior to the preparation of the EIA document. Through the announcement process and public consultation, the community can provide suggestions, opinions and
responses submitted in writing to the initiator and Minister, governor, or regent/mayor in accordance with thir authority in the EIA document assessment.
- In addition, the affected community, through their representatives, is obliged to be involved in the process of assessing the EIA  documents through the EIA Assessment Commission Meeting. Representatives of the affected communities have to be members of the EIA Assessment Commission.
 
Chapter II Procedures for Community Involvement in the Amdal Process Letter D Page 7 Attachment to Regulation of the State Minister for the Environment of the Republic of Indonesia Number 17 of 2012 concerning Community Involvement in the Process of Environmental Impact Analysis and Environmental Permits states as follows:
D. Appointment of Representatives of Affected Communities in the Amdal Assessment Commission
1. The affected community elects and appoints their own representative who will be sitting as a member of the EIA assessment commission;
2. The election and determination of community representatives are carried out simultaneously
with the implementation of public consultations;
3. Number of representatives of affected communities selected and appointed for
sitting as a member of the EIA assessment commission is determined proportionally
and represent the aspirations of the people they are elected by in environmental issues
life;
4. The results of the determination of community representatives who will sit as members of the EIA assessment commission are stated in the form of a letter of approval/power of attorney signed by the represented community ;
5. The proponent communicates the results of the determination of community representatives
referred to in number 4 to the secretariat of the EIA assessment commission in accordance with their authority;
6. Representatives of the affected community must:
a. carry out regular communication and consultation with affected communities about the impact it implicates; and
b. convey the aspirations of the affected communities that they represent in the EIA assessment committee meeting
 
 
Attachment to Ministerial Regulation State of the Environment of the Republic of Indonesia Number 17 of 2012 concerning Involvement of Communities in the Process of Environmental Impact Analysis and Permits; Environment Chapter II on Procedures for Community Involvement and Process
AMDAL Part C Implementation of Public Consultation states as follows:
 
Party Conducting Public Consultation
a. Public consultation for mandatory business and/or activity plans having an Amdal carried out by the Initiator;
b. Public consultation can be done before, at the same time or after the announcement of business and/or activity plans;
c. The public consultation as referred to in letter a shall be conducted on:
1) Communities that are affected;
2) Community environmentalists; and
3) People who are affected by all forms of decisions in the EIA process.
 
 
 
In their Reason for the decision the panel the judges referred to the above laws and regulations.
The panel of judges found that from the evidence in form of population data and participant lists in socialization meetings conducted, the number of residents who attended the socialization and public consultation was disproportionate (295/27).
 
The panel of judged further stated that they didn’t find evidence that members of the EIA Impact Analysis Committee meant to represent the aspirations of the affected people were elected according to the procedure required by law. They neither found appointment or power of attorney letters signed by the communities.
 
 
Considering, that based on the description above, the panel of judges concluded that the EIA/AMDAL
wasn’t done in accordance with the procedure.
 
 
The Panel of Judges examined the evidence and detected that the EIA document lacks relevant signatures such as the signature of the secretary of the EIA Assessment Commissio and signatures of chief analysts. The panel of judges concluded that there were procedural errors in the assessment of the terms of reference during the stage of preparing the Environmental Permit violating Article 20 Paragraph (3) Government Regulation Regarding Environmental Permits j.o Article 12 Paragraph (2) Ministerial Regulation concerning Governance, Carrying out the Assessment and Inspection of Environmental Documents as well as the Issuance of Environmental Permits.
 
The panel of judges also detected that the provisions of Article 39 of the PPLH Law j.o Article 44,
Article 45 Paragraphs (1), (2) and (3) Government Regulations concerning Environmental Permits were violated. Basically article 39 regulates:
 
Article 39
(1) The Minister, governor, or regent/mayor in accordance with their respective authorities are obliged to
announce every application and decision of environmental permit.
(2) The announcement as referred to in paragraph (1) shall be made by means of:
easily known by the public.
j.o
Article 44
After receiving the application for an Environmental Permit as referred to in
Article 43, the Minister, governor, or regent/mayor are obliged to announce
Environmental Permit application.
j.o
Article 45 Paragraph (1)
Announcement as referred to in Article 44 for Business and/or
Activities that are mandatory for EIA are carried out by the Minister, governor, or regent/mayor.
Paragraph (2)
The announcement as referred to in paragraph (1) is made through multimedia
and an announcement board at the location of the Business and/or Activity no later than 5 (five)
working days from the date the Andal and RKL-RPL documents submitted are declared
administratively complete.
Paragraph (3)
The public can provide suggestions, opinions, and responses to
announcement as referred to in paragraph (1) within a maximum period of
10 (ten) working days after the announcement.
 
Considering that, the issuance of the Environmental permit was published on
September 25, 2020, while the application for the issuance of the Object of the Dispute I and technical considerations that stated that gold mining of PT. Tambang Mas Sangihe had met the requirements and was accepted, were published on the 24th
September 2020, only one day earlier. The panel decided that the issuing authority didn’t provide a reasonable period of time for the community to provide suggestions, opinions and responses to announcements made. The judges concluded that there was a procedural failure in issuing the Dispute Object I, i.e. the Environmental Permit.
 
Considering, that based on the entire description of the legal considerations in
above, because at each stage there are procedural errors the panel of judges ordered the defendant I to cancel the Environmental Permit issued to PT. TMS.
 
The Panel of Judges in a subsequent step assessed the substance of the problems in the
environmental dispute that are related to the potential for environmental pollution and irreversible damage. Based on evidence and the testimonial of an expert witness the judges especially pointed at the dangers of using cyanide and a heap leach system to extract gold.
Prof. Dr. Ir. FRANS GRUBER IJONG, M.Sc. said mining activities will cause a runout, meaning organic material called sediment will lead to beaches, mangroves and coral reefs. Mining activities, too,
will produce toxic waste that can be cadmium, arsenic, mercury etc. In addition, mining will also produce dissolved chemicals that can pollute waters, soil, rivers and their surroundings to a degree that traditional sources of food and living will be destroyed.
 
The  Panel of Judges used the In Dubio Pro Natura principle: “If in dealing with a
case there is doubt, the judge prioritizes the protection of the environment”.
The above principle refers to the principles derived from the precautionary principle which is formulated in
Rio Declaration in 1992, which, in principle, prudence holds an
important role in every aspect of human life, so that preventive steps or prevention must be taken before more fatal damage occurs without having to wait until the scientific evidence is complet. The panel of judges found it is appropriate to cancel an Environmental Permit for gold mining activities which was produced not in accordance with the substance in order to prevent possible irreversible damage to the environment.
 
Your assertion that “there was no serious regulatory violations” appears to be a very bold statement in this context. DEPRIVING PEOPLE OF THEIR LEGAL HUMAN RIGHTS is not an administrative neglect but A SERIOUS CRIME.
We will fight with all our force to reinstitute and defend the Sangihe people’s rights. We reject the operation of PT. Tambang Mas Sangihe / Baru Gold on our island.
                                                                                                         Tahuna, June 25^th 2022
SAVE SANGIHE ISLAND (SSI)
Jull Takaliuang,
Alfred Pontolondo
 

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https://miningwatch.ca/sites/default/files/letter_baru_gold_june_15_2022.pdf

[ii] https://cdn-ceo-ca.s3.amazonaws.com/1hb1458-MiningWatch_Open_Letter_AShareholderReplies.pdf

[iii] https://ca.finance.yahoo.com/quote/BARU.V/community/
 

[iv] https://ceo.ca/baru

[v]https://forum.mexicomike.ca/viewtopic.php?f=2&t=18183&start=75#p235530, by coach247 » Fri Sep 10, 2021    7:06 pm
 

[vi] https://n-peace.net/n-peace-awards-alumni/n-peace-awards-alumni-2015/
  https://www.mongabay.co.id/tag/n-peace-awards-2015/

[vii] https://miningwatch.ca/sites/default/files/salinan_putusan_57_g_lh_2021_ptun_mdo.pdf
 
Copy furnished:
Terry Filbert, CEO & Chairman Baru Gold Corp.
[e-mail] ; [e-mail]
Canadian Ambassador, Trade Commissioner, First Secretary of Political Affairs
Canadian Embassy in Jakarta
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Catherine Coumans, Asia-Pacific Program Coordinator, MiningWatch Canada, [e-mail]
Ms. Mary Lawlor, United Nations Special Rapporteur on the situation of human rights defenders
[e-mail]
Pochoy P. Labog, Southeast Asia Researcher & Representative, Business and Human Rights Resources Centre. [e-mail]
Glen Williams, Managing Director, Investor and Institutional Client Relations; Head of Corporate Communications, Sprott Inc. re: Sprott Gold Equity Fund
[e-mail]