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.