Manado court rejects Newmont request

Manado court rejects Newmont request

Jongker Rumteh, The Jakarta Post, Manado

A Manado court rejected a request from a local subsidiary of
U.S.-based Newmont Mining Corp and its American president
director to drop the controversial pollution case on Tuesday.

The court, presided over by judge Ridwan Damanik, ruled that
PT Newmont Minahasa Raya and Richard Ness had failed to prevent
the dumping of toxic waste into a bay near a now-defunct gold
mine.

"The first defendant (Newmont) has violated Law 23//1997 on
the environment," Ridwan stated while reading the prosecutor's
indictment. "The prosecutor also finds that the second defendant
(Ness) did not prevent the occurrence of pollution in Buyat Bay,"
he added.

In criminal trials, the courts make a decision on whether to
proceed once both sides have presented initial arguments. It is
rare for cases to be thrown out.

During a hearing on Aug. 19, lawyers representing the company
urged the court to dismiss the case, saying the police
investigation was flawed. However, prosecutors told the court on
Sept. 6 they had a strong pollution case and would prove the
company's local unit and American chief had violated
environmental laws.

The charges relate to the company's tailings disposal
processes, which allegedly involved dumping mercury and arsenic
into Buyat Bay, causing health problems for villagers.

Newmont has denied the charges in a case that foreign
investors mostly view as evidence of the legal uncertainty that
exists in the country, while environmentalists see it as a test
case for the government, which has been accused of being lax in
enforcing environmental laws, especially toward multinational
companies due to its need of foreign investment.

During Tuesday's hearing, which was held at Manado municipal
hall, the defendants' legal team expressed objections toward the
indictment, which they argued was legally flawed. The lawyers
also found the prosecutors failed to provide details on the
second defendant's crime.

But the court turned down the objections. "The court finds the
objections expressed by the first and second defendants' legal
team are part of the case materials so we reject it and order the
proceedings to go on," Ridwan said.

The defendants' team of lawyers, represented by Luhut
Pangariabuan and Palmer Situmorang, said they would appeal the
decision or take it to a higher court.

Despite the plan to appeal, the five-judge panel adjourned the
hearing until Oct. 7, 2005 where the prosecutors will present
their first witnesses.

The argument arose when the defendants' legal team wanted the
prosecutors to reveal the names of the witnesses but it was
rejected.

"This court proceeding is an open one and in the name of
justice, everything should be in the open," Palmer insisted.

The judge finally agreed and asked prosecutors to mention the
witnesses' names before the next hearing.

Ness said after the hearing he did not yet see evidence or any
indication of heavy metal pollution in Buyat Bay and was not sure
what he was charged with. He said he was planning to take the
case to international arbitration.

"We're seriously considering taking this case to international
arbitration and we're currently discussing it with our legal
team," said Ness.

Ness could face a jail sentence of up to 10 years and be fined
around US$68,000 if convicted. Newmont also faces a $133 million
civil case over the alleged pollution.