5. Introduction
This booklet is a compilation of position papers, and
critiques on the new mining policy, also known as Executive
Order No. 79 s. 2012 “Institutionalizing and Implementing
Reforms in the Philippine Mining Sector Providing Policies
and Guidelines to Ensure Environmental Protection
and Responsible Mining in the Utilization of Mineral
Resources”, signed July 6, 2012.
Upon release of the document, several reactions were
gathered. Some positive gains were identified, yet the
groups and communities continue to ask, Ganun Na Lang
Ba ‘Yun? The EO responded to
environmental and economic
safeguards but never mentioned
communities. We ask the
Aquino administration, how
about human rights violations,
disrespected and dishonored
indigenous peoples’ and
communities’ rights, Ganun Na
Lang Ba ‘Yun?
Consequently, Alyansa Tigil
Mina continues to call on the
government to repeal Executive
Order 270-A s. 2004 that
revitalizes the mining industry
and the Mining Act of 1995, and
enact the Alternative Minerals
Management Bill.
Alyansa Tigil Mina
1
6. ATM Position Paper
on Executive Order 79, s. 2012
A long way from solving the mining issue, and is far from the meaningful reforms
in the mining industry that we were expecting.
Passage of a new minerals management law is the necessary path, and the right thing
to prioritize.
The
EO
has
failed
to
address
the
substantial
issues:
1) Shifting the policy from “earning profits from mining” to a “rational management
of our mineral resources”;
2) Ensuring that mining complies with sustainable development, human rights,
poverty-eradication and the full human potential; and
3) Give a reprieve to communities and the natural resources they live off, from the
real threats of destructive mining.
We are cautious, and mildly optimistic that pressing issues and concerns will have
temporary remedies. Some small steps in the right direction.
ATM will engage the relevant government agencies to ensure that communities and
the people are rightfully consulted and benefiting from mining, if they have decided
to accept mining.
On indigenous cultural communities (ICCs/IPs), the initial reaction from our
members is that of uneasiness. Mining projects are only temporarily checked, as
existing contracts and permits are still considered binding. We take comfort that
there is an attempt to find out if social acceptance and free, prior and informed
consent (FPIC) is strictly complied with.
We will maintain our vigilance in ensuring that the new guidelines on FPIC are
strictly enforced in mining projects. We will also monitor how the government and
the mining companies will deal with the IPs, as we are cautious of the “details” that
will be contained in the Implementing Rules and Regulations of this EO.
2
ATM
7. We will sustain our partnership with local government units (LGUs) who have
decided to reject or oppose mining. We believe that they have the Constitutional
mandate, the legal authority and the moral ascendancy to determine the mode, type
and pace of local development in their areas. As such, their stance on accepting or
rejecting mining as part of their local development should be given premium.
Some of our members are heavily involved in transparency and accountability work in
extractives. We will encourage them to intensify and upscale their engagement with
government and the industry to push forward the agenda of greater transparency in
the mining industry, including the proposed commitment by the President to enroll
in the Extractive Industries Transparency Initiative (EITI).
We
recognize
the
value
of
the
following
new
policies:
1. Review of mining contracts and mining operations
2. No Go Zones
3. Working for legislations to increase government share
from proceeds of mining
4. EITI
5. Recognizing local autonomy
6. A moratorium on new mining applications
7. Cost-Benefit Analysis and an improved Environmental
Impact Assessment System (EIA)
8. Using the various maps of government and other
stakeholders as a reference for decision to mine or not.
BUT we believe that the above-mentioned sections are
misleading, where provisions for social and environmental safeguards are watered
down because of the compromise and nuances in the language of the document.
We reiterate our disagreement, discomfort and doubt with the following sections/
provisions on EO 79:
Sec. 1. Areas Closed to Mining
There is a catch-all phrase that provides an explicit “way-out” for the mining industry
and the government to turn a blind eye to the current problematic mining projects.
“Mining contract, agreements and concessions approved before the
effectivity of this Order shall continue to be valid, binding, and enforceable
so long as they strictly comply with existing laws, rules, and regulations and
the terms and conditions of the grant thereof. For this purpose, review and
monitoring of such compliance shall be undertaken periodically.”
Alyansa Tigil Mina
3
8. This section practically absolves all mining companies and projects of any
responsibility from complying with the “reforms” being initiated in EO 79. It is also
unclear when, who and how the “review and monitoring” of these current mining
projects will be undertaken.
We recommend that ALL current mining projects be subjected to this review and
monitoring exercise, to be done within 90 days of the effectivity of EO 79. The
communities, especially the affected IPs, and civil society must be given clear roles
and responsibilities as part of these “review and monitoring” teams. Should there be
evidence that these mining contracts, agreements and concessions are not compliant,
then revocation or rescinding of these agreements, contracts should be done as soon
as possible.
We specifically recommend that all identified and mapped Key Biodiversity Areas
(KBAs) should be part of the No Go Zones for mining. Critical watersheds should
also be closed for mining, whether they are declared by legislation or not. The
eco-system function and service of a watershed does not cease to be whether it is
legislated, proclaimed by an authority or otherwise.
Sec. 2: Full Enforcement of Environmental Standards in Mining
The provision is an excellent policy IN PAPER. However, previous experience and
current reality lends doubt to the capacity of the Department of Environment and
Natural Resources (DENR) to actually perform its regulatory function. DENR lacks
the people, expertise and equipment to effectively perform its job. DENR is also
not immune to graft and corruption, especially at the regional and local levels, which
prevents the efficient and effective regulation of the mining industry.
We recommend that all mining projects be specifically subjected to a detailed
evaluation of their compliance to their Environmental Impact Statement and
established environmental standards. Aside from LGUs, communities and civil
society must be involved in the enforcement of environmental standards.
Sec. 3: Review of the Performance of Existing Mining Operations and Cleansing of
Non-Moving Mining Rights Holders
We recommend that the multi-stakeholder team for this review must have a Co-Chair
or Co-Convenor from the local government unit and civil society that is affected or
impacted by the mining project.
Sec. 4: Grant of Mineral Agreements Pending New Legislation
The passage of a new legislation rationalizing revenue sharing schemes and
mechanisms is a complex and complicated matter. To date, we are not aware of any
conscious effort from the government to study and propose a new revenue sharing
scheme.
4
ATM
9. We are greatly disturbed with the phrase in this section “possible renegotiation of
terms and conditions (of existing mining contracts and agreements, which shall
in all cases be MUTUALLY ACCEPTABLE to the government and the mining
contractor”. Once again, the communities are glaringly left out in this equation.
Sec. 5: Establishment of Mineral Reservations
A clear timetable for the completion and production of the National Industrialization
Plan (NIP) is not established.
Again, this section provides an “excuse clause” - “This shall be without prejudice
to the agreements, contracts, rights and obligations previously entered into by and
between the government and mining contractors and operators”.
Sec. 9: The Mining Industry Coordinating Council (MICC)
There is no space for the participation or involvement of affected communities or
civil society organizations to this policy-making and implementing body.
We strongly recommend that community or CSO representation be ensured in the
MICC.
Sec. 11: Measures to Improve Small-Scale Mining Activities
This section merely reiterates already existing provisions of laws and policies. There
is no value-added in terms of mechanisms, procedures and systems that will enforce
the intent to have small-scale mining comply with RA 7076 or the Small-Scale
Mining Act.
We recommend that DENR, in close coordination with concerned LGUs,
immediately close all illegal small-scale mines throughout the country. In parallel,
alternative livelihood to these displaced small-scale miners should be introduced.
Section 12: Consistency of Local Ordinances with the Constitution and National
Laws
We welcome the shift of perspectives on this section. However, ATM maintains that
LGUs clearly have the Constitutional mandate, the legal authority and the moral
ascendancy to accept or reject mining applications and operations. Sec. 16 and 17
of the Local Government Code (Mandates and General Welfare provisions) are very
clear on this.
In addition, DENR (and other national government agencies) must recognize and
respect the existing ordinances, resolutions and local orders of LGUs that reject,
resist, oppose or impose strict and reasonable limits to mining operations and
applications in their respective localities.
Alyansa Tigil Mina
5
10. Sec. 13: Creating One-stop Shop for all Mining Applications and Procedures.
This One-stop Shop will impact on the independence and objectivity of the National
Commission on Indigenous Peoples (NCIP). Securing the FPIC for mining
applications and operations must not be subjected to this “fast-tracking” tactic.
The One-stop Shop approach also runs contrary to the principle of decentralization
and de-concentration, as embedded in the Local Government Code.
This procedure also increases the probability for graft and corruption, especially
without a strong regulatory check-and-balance system in place.
Sec. 14: Improving Transparency in the Industry and Joining the EITI
We fully support the government on this initiative. However, EITI is only concerned
and focused on transparency on i) the payment of taxes by mining companies to
the government and ii) the allocation of government of these proceeds/gains from
mining to development programs and projects to the communities.
ATM recommends that transparency in the whole value-chain of mining must be
implemented. For this to happen, transparency must include i) disclosure of mining
contracts and all related mining documents, PRIOR to signing or granting of mining
agreements; ii) in decision-making whether a specific mining project is a “go or
no-go”; and iii) clear definition and blueprint of the roles of minerals in natural
resource management of the country.
Sec. 15: Centralized Database for the Mining Industry
Only data from the industry and government agencies and instrumentalities are to
be included in this database. This is biased and not an objective procedure of data
gathering, archiving and collation.
Pertinent information such as documented human rights violations, customary and
traditional social systems, legal cases or track record of mining companies in other
counties or other in-country mining projects, may not be necessarily available from
the government or willfully disclosed by the mining company.
We recommend that the MICC ensure that all inputs from all stakeholders be
considered and incorporated in this database.
While Full Cost-Benefit Analysis (CBA) is mentioned in this section, it is unclear
whether CBA is going to be made as a requirement for each mining application.
The recommendation of ATM is to ensure that CBA must be done for each of the
mining application and existing mining projects and operations.
We recommend that resource valuation must also be done in each of the mining
site, whether the mine project is in application or operation stage already. In turn,
these resource valuations should be incorporated or factored in to the Cost-Benefit
Analysis exercises.
6
ATM
11. Sec. 16: Integrated Map System to Include Mining Related Maps
Only maps and date from government agencies and instrumentalities are to be
included in the database. This is a very limited policy. Academe and some civil
society organizations sometimes, have better and updated maps than government,
and these must be also considered and incorporated in the database.
The government must ensure that all available maps from academe and civil society
must be considered and incorporated into this mapping system.
Sec. 17: Use of the Programmatic Environment Impact Assessment
This section is aspirational. It lacks concrete basis, as there is no existing clear policy
definition of what PEIA is, and how to implement it.
This section also calls for amendments of rules and regulations of the EIA system.
This has been a decades-long call and demand from environmental groups, and no
serious effort has been invested in this. We do not see any compelling reason why
this EO or this time-period should be any different.
We do not see a clear timetable for the instruction to DENR-Environmental
Management Bureau (DENR-EMB) “to study the use and implementation of the
PEIA”.
At best, this section is a clear example of giving a “false-sense” of security that
necessary and urgent reforms are being put in place, while in truth, it is not the case.
We recommend that DENR-EMB revise the EIA protocols, and institute a more
transparent manner in the conduct, review and issuance of Environmental
Compliance Certificates (ECCs).
Sec. 19: Implementing Rules and Regulations (IRRs)
Since there is no space for participation of communities or CSOs in the MICC, we
strongly demand that community representatives or CSOs representatives must be
involved in the crafting and issuance of the IRR for this EO.
Sec. 21: Repealing Clause
EO 79 failed to explicitly repeal EO 270-A. To avoid
any misconceptions or misinterpretations of the
mining policy, EO 270-A and its resulting National
Minerals Action Plan (NMAP) in 2006, must be clearly
rejected and set aside.
Alyansa
Tigil
Mina
11
July
2012
Alyansa Tigil Mina
7
12. Statement on EO 79 and
Alternative Minerals Management Bill
The long wait is over.
The much awaited mining policy of Pres. Benigno “Noynoy” Aquino’s administration,
which was supposed to resolve the many issues and problems hounding the country’s
mining industryhasnow been made public.
And for us it has failed many expectations.
EO79fails to address the necessary changes that have been raised to the Aquino
Administration in order to make the country’s mining industry truly responsible.
It failed because of the following reasons:
Firstly, it ignored mining-affected communities.
EO 79 does not address the long list of violations committed against communities,
farmers and indigenous peoples, as well as issues raised by advocates and experts
against the operations of the mining industry in the country and the criticisms
against the policies governingthis industry.
As the new mining EO upheld that all “mining contracts, agreements and concessions
approved before the effectivity of this Order shall be valid, binding and enforceable…”
on the pretext of non-impairment of contracts clause, it does not provide provisions
that will ensure and hasten the action and response to communities’ complaints for
various violations. What will happen to the injustices inflicted upon the indigenous
peoples and rural communities of Nueva Vizcaya down to the outskirts of South
Cotabato? Justice that they have long been seeking and fighting for.
It is these violations committed to our indigenous brothers and sisters, farmers and
rural communities, and the destruction of our ecosystems that form the basis for the
clamor for a change in the country’s mining policy, and the new mining EO greatly
fails to address these issues. In fact it perpetuates the same situation with its business
as usual framework.
Secondly, most of the provisions in EO 79 are misleading.
8
ATM
13. While the Mining EO places a moratorium on new mining contracts and permits,
it allows exploration permits which are actually also, in experience, invasive and
violative of the rights and welfare of mining-affected communities. Violations on
FPIC of indigenous peoples, consent processes in mining exploration projects are
well documented.
The EO calls for a moratorium on new mining contracts butwill only be dependent
on a new legislation rationalizing existing revenue sharing schemes.Revenue sharing
only forms part of the bigger picture in resolving the many problems in the country’s
mining industry. This also shows that the framework used in utilizing our mineral
resources, is motivated mainly by ‘profits out of mining’ instead of a ‘rational, needs-
based approach in mineral management and utilization’ which communities and
advocates have long been clamoring.
While the Mining EO expands the areas closed to mining, it has practically made
this section inutile as it upheld all existing mining contracts and permits given before
the Order. Data shows that almost fifty percent of key biodiversity areas (KBAs) and
two-thirds of claimed and titled ancestral domains are impacted by these very same
mining projects.
While the Mining EO has used ‘consistency’ instead of ‘primacy’ in the section
pertaining to local ordinances vis-à-vis the Constitution and national laws, which
was the word used in its earlier draft, it has actually sent a warning to all LGUs
who have stood up against the effects of large scale mining in their territories,
and also those who wishes to follow them. By asserting that ‘LGUs shall confine
themselves only to the reasonable limitations of mining activities’ the EO have put
local governance and autonomy open for interpretation. Mining companies, and to
some extent government institutions, can now assert that banning open-pit mining
is unreasonable, as experience have shown in relation to the South Cotabato open-
pit mining ban.
Thirdly, contrary to its assertion, EO 79 does not promote and/or embody the
concept of ‘responsible mining’.
How can this EO promote responsible mining when it upholds all existing mining
contracts, agreements and permits? The very mining projects that have been tainted
with abuses, environmental destructions, and human rights violations and even the
blood of martyred community leaders, environmentalist and advocates. We can
never forget the likes of Fr. Pops and Dr. Gerry Ortega.
Contracts such as the OceanGold Gold and Copper FTAA in Nueva Vizcaya, a
mining project that the Commission of Human Rights (CHR), anindependent
constitutional body, have found guilty of gross human rights violations, thus calling
for its revocation in January of 2010. Or the SMI-Xtrata-Indophil Tampakan Gold
Alyansa Tigil Mina
9
14. and Copper project in the four provinces of Southern Mindanao, which would cut
800 (?) hectares of primary forest, will divert and pollute billions of ounces of water
resources that 80,000 farmers in one province are dependent on, and will displace
hundreds of indigenous Bla’ans who have not given their consent and resisted the
project, to name a few.
Born out of a flawed and irresponsible law and framework – the Mining Act of
1995, we cannot expect more out of the current Mining EO. It only mirrors the
same irresponsible framework perpetuated by the Mining Act of 1995, a law that
promotes profits over ecosystems and communities, extracting our mineral resources
mainly to feed big multinational mining corporations and global corporate demand
for raw materials, instead of ensuring the country’s present and future needs.
This law have systematically perpetuated a system that has been used to sabotage
local government efforts to protect health, environment and livelihoods of our
Filipino brothers and sisters; corrupted the Free, Prior and Informed Consent (FPIC)
processes of indigenous peoples communities; rendered inutile the Environmental
Impact Assessment System; and has brought about a long string of human rights
violations and extra-judicial killings against communities and individuals resisting
mining.
A
Need
for
a
New
Minerals
Management
Framework
Thus, we call on to President Benigno “Noynoy” Aquino, his administration, and
policy makers to go beyond EO 79 and the Mining Act of 1995. What our country
needs is a new law that will address the issues and concerns that mining-affected
communities have long been raising, and the devastation of our rich but fragile
ecosystems.
While we say that the new mining EO is not enough and not what is needed, because
it has ignored issues raised by communities, it misleads us, and it does not represent
genuine responsible mining, we also believe that new mining EO has introduced
positive provisions that show a way forward:
1. Public bidding process;
2. National Industrialization Plan, value-adding activity and downstream industry;
3. Extractive Industry Transparency Initiative;
4. Expansion of ‘no-go zones’ of mining in prime agricultural lands and eco-
tourism areas.
All of which are, indirectly or directly, already in the Alternative Minerals
Management Bill.
10
ATM
15. The Alternative Minerals Management Bill (Philippine Mineral Resources Act of
2012) seeks to resolve the many problems faced by communities and local government
units, and our country in general, due to the gaps and f law framework in the current
Mining Act of 1995.
What the AMMB represents is the rational, needs-based, rights-based, domestic-
oriented utilization, developement and management of our mineral resources.
By supporting AMMB and making it a priority bill, we are making a stand with the
people—and making a stand for mining-affected communities, indigenous peoples,
the environment, and for the present and future generations of our country!
EO
79
is
Not
What
is
Needed,
It’s
the
Alternative
Minerals
Management
Bill
(AMMB)!
Pass
the
AMMB
NOW!
—
SOS-Yamang
Bayan
Network
*** The SOS-Yamang Bayan Network is a national, multi-sectoral movement composed of
individual advocates, mining-affected communities, national peoples’ alliances, environmental
organizations and networks, church-based organizations, human rights organizations,
national NGOs, sectoral organizations from the indigenous peoples, youth, women, farmers,
congressional representatives, leaders and personalities advocating for the repeal of the Mining
Act of 1995 and the enactment of a new minerals management bill.
Alyansa Tigil Mina
11
16. A Call for the Passage of the
Alternative Minerals
Management Bill (AMMB)
Mining or extractive industry, more often than not, as experienced in the
Philippines, can be destructive to communities and the environment. The scale
of mining operation normally involves large tracks of land, mostly located in the
environmentally fragile forest-ecosystems. With the government’s policy direction
of liberalizing the mining industry, applications of the transnational corporations
came pouring in, targeting mineral rich area mostly located in the mountainous
part of the country inhabited by the indigenous communities. Even the agricultural,
tourism, biodiversity, and watershed areas are not spared.
The Catholic Bishops’ Conference of the Philippines took the position that “the
promised economic benefits of mining by these transnational corporations are
outweighed by the dislocation of communities especially among our indigenous
brothers and sisters, the risks to health and livelihood and massive environmental
damage.” (CBCP, A Statement on Mining Issues and Concerns, January 29, 2006).
The country faces more and more environmental problems because of the
government’s liberal policies on extractive operations - “The government mining
policy is offering our lands to foreigners with liberal conditions while our people
continue to grow in poverty. We stated that the adverse social impact on the
affected communities far outweigh the gains promised by mining Trans-National
Corporations (TNCs)” (CBCP, A Statement on Mining Issues and Concerns, January 29,
2006).
The Mining Act of 1995, which lays down the policy for the government’s near-
fanatical campaign to attract foreign investors to invest in mining distorts the goal of
genuine development. By single-mindedly pursuing the entry of foreign investments,
it failed to weigh the greater consideration in the equation - the human and ecosystems
well-being, the human rights of the indigenous peoples and the local communities,
food security, local autonomy and the ecological integrity of our country.
Together with experts and other civil society organizations, the Church recognized
that the flaw is in the government policy framework which regards the natural
resources as something to be exploited unlimitedly rather than a crucial reserve to be
12
ATM
17. sustained and protected in order to sustain the ecological balance and sustainability
for all.
As in its previous pastoral statement, we appeal to change the government’s mining
policy and we reiterate the call for the repeal of Mining Act of 1995 on the premise
that: “the Mining Act destroys life. The right to life of people is inseparable from
their right to sources of food and livelihood. Allowing the interests of big mining
corporations to prevail over people’s right to these sources amounts to violating
their right to life. Furthermore, mining threatens people’s health and environmental
safety through the wanton dumping of waste and tailings in rivers and seas” (CBCP,
A Statement on Mining Issues and Concerns, January 29, 2006).
The Church, together with the civil society advocates and mining affected
communities, call for the repeal of the Mining Act of 1995 and the enactment of an
alternative law on mining and environment protection. We see the need to go beyond
the micro-policy initiatives and torecommend for a promulgation of national law
that prioritizes ecological protection and promotes environmental justice, principles
of stewardship and of the common good.
The Church supports the call for the passage of the Alternative Minerals Management
Bill (AMMB), which offers a far more sustainable approach to utilization and
protection of our country’s natural resources.
Recognizing, however, the long duration of legislative procedures, the Church joins
the local communities and the civil society in calling for a mining moratorium
to put a stop to the destructive plunder of our natural resources by the mining
corporations. The large- scale mining operations, under the guise of development,
promise to bring the much-needed foreign investment to the detriment of the
environment and the welfare of our people.
We believe that environment should never be sacrificed - that “an economy
respectful of the environment will not have the maximization of profit as its only
objective, because environmental protection cannot be assured solely on the basis
of financial calculations . . . The environment is one of those goods that cannot be
adequately safeguarded or promoted by market forces.”(John Paul II, Encyclical Letter
CentesimusAnnus, 40: AAS 83 (1991), 843).
We pursue our advocacy for a sustainable ecology because it is part of our Christian
responsibility. With the late Pope John Paul II, we believe that “Christians, in
particular, realize that their responsibility within creation and their duty towards
nature and the Creator are an essential part of their faith”
(The Ecological Crisis No. 15, Message of His Holiness Pope John Paul II for the celebration
of the World Day of Peace).
Alyansa Tigil Mina
13
18. Legal Notes of Rep. Kaka J. Bag-ao*
Akbayan
Party-list
Extracting Good Policy From Bad Legislation?
A Review of Executive Order 79, Series of 2012
Are all critical areas in “No-Go Mining Zones” actually mine-free? Does the
moratorium on mining prohibit the operations of mining within the protected
areas? Are LGUs deprived of their Rule-Making Power when it comes to mining?
On 6 July 2012, President Benigno Aquino issued Executive Order (EO) 79, series
of 2012 entitled, “Institutionalizing And Implementing Reforms In The Philippine Mining
Sector Providing Policies And Guidelines To Ensure Environmental Protection And Responsible
Mining In The Utilization Of Mineral Resources”. Several pros and cons have been
deliberated on a very important matter concerning mining issues in the Philippines.
This is my humble opinion on the matter which is based on the following premises:
1. There is no substitute to having an enacted Alternative Minerals Management
Bill coupled with a National Land Use Policy;
2. Environmental protection and food security are of paramount priority over
other concerns including economic benefits;
3. Players in the mining industry has not yet shown a model site for “responsible
mining” where local communities have developed because of the entry of
mining;
4. IP/ICCs ownership of minerals found inside their Ancestral Domain should be
recognized.
* A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative
Legal Group, a network of NGOs providing legal support to marginalized communities. She
was the legal counsel of the Sumilao farmers.
14
ATM
19. I.
GENERAL
OBSERVATIONS
TO
EXECUTIVE
ORDER
79,
SERIES
OF
2012
First, EO 79 was entirely based on Republic Act 7942 (Philippine Mining Act of
1995) wherein the focus is to fully utilize the mineral resources of the country at
whatever cost. This is irresponsive to the concerns raised by segments critical to
RA 7942 owing to its defective provisions resulting to unabated environmental
destruction, human rights violations of the communities, exploitation of IP rights,
food insecurity, militarization, among others, caused by mining operations. These
very same problems are not addressed by the present mining law rendering it
fully defective. Hence, any executive issuances based on Republic Act 7942 are
necessarily defective as the very law itself has been defective since its enactment.
Second, the language is not about environment but revenues and sharing. This
frame limits the discussion between mining contractor and government for the
revenue, and between national government and local government for sharing,
thereby virtually depriving the communities and stakeholders from participating in
the process. Third, the IPs area again sidelined in EO 79.
Fourth, the EO 79 takes on a “business-as-usual” attitude as if the bureaucracy runs
following the “matuwid na daan”. The national government failed to realize, or
choose not to reach to such realization, that part of the problem, if not the main, is
the government agency tasked to regulate mining itself – the DENR. There will be
no serious mining reforms without serious reforms in the DENR bureaucracy.
II.
SPECIFIC
CONCERNS
A.
No-Go
Mining
Zones
EO 79 was brave enough to expressly declare areas which should not be included in
mining operations. This includes the 78 tourism sites, farmlands, marine sanctuaries
and island ecosystems in response to the public clamour to protect the environment.
EO 79 expanded the list of “No-Go Mining Zones” to include the following:
SECTION 1. Areas Closed to Mining Applications. Applications for mineral
contracts, concessions, and agreements shall not be allowed in the following:
a) Areas expressly enumerated under Section 19 of RA No. 7942, to wit:
(a) In military and other government reservations, except upon prior
written clearance by the government agency concerned;
(b) Near or under public or private buildings, cemeteries, archaeological
and historic sites, bridges, highways, waterways, railroads, reservoirs,
dams or other infrastructure projects, public or private works including
plantations or valuable crops, except upon written consent of the
government agency or private entity concerned;
Alyansa Tigil Mina
15
20. (c) In areas covered by valid and existing mining rights;
(d) In areas expressly prohibited by law;
(e) In areas covered by small-scale miners as defined by law unless with
prior consent of the small-scale miners, in which case a royalty payment
upon the utilization of minerals shall be agreed upon by the parties,
said royalty forming a trust fund for the socioeconomic development of
the community concerned; and
(f) Old growth or virgin forests, proclaimed watershed forest reserves,
wilderness areas, mangrove forests, mossy forests, national parks,
provincial/municipal forests, parks, greenbelts, game refuge and bird
sanctuaries as defined by law in areas expressly prohibited under the
National Integrated Protected areas System (NIPAS) under Republic
Act No. 7586, Department Administrative Order No. 25, series of 1992
and other laws.
b) Protected areas categorized and established under the National Integrated
Protected Areas System (NIPAS) under RA No. 7586;
c) Prime agricultural lands, in addition to lands covered by RA No. 6657, or
the Comprehensive Agrarian Reform Law of 1988, as amended, including
plantations and areas devoted to valuable crops, and strategic agriculture
and fisheries development zones and fish refuge and sanctuaries declared as
such by the Secretary of the Department of Agriculture (DA);
d) Tourism development areas, as identified in the National Tourism
Development Plan (NTDP); and,
e) Other critical areas, island ecosystems, and impact areas of mining as
determined by current and existing mapping technologies, that the DENR
may hereafter identify pursuant to existing laws, rules, and regulations, such
as, but not limited to, the NIPAS Act.
Although the list of the “No-Go Zones” seems to be a long enumeration, only three
areas were added, to wit, (1) tourism sites, (2) prime agricultural lands, and (3) other
critical areas, island ecosystems and impact areas were added to the list of areas where
mining is banned. The rest are already covered by RA 7942 (Philippine Mining Act),
RA 7586 (NIPAS), and RA 6657 (CARL).
Not in the list are Key Bio-diversity Areas (KBAs) and Critical Watersheds which
should have also been included to the list of areas that are closed to mining
operations regardless of whether or not the same has been legislated/proclaimed
by the President. The Implementing Rules and Regulations (IRR) of EO 79 should
also clearly define what is meant by “Island Eco-systems”.
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21. 1. Non-Impairment of Existing Mining Contracts
What happens to areas identified as “No-Go Mining Zones” but with existing mining
contracts? Unfortunately, EO 79 includes a “catch-all” proviso which absolves
mining operations already existing within the banned areas, to wit:
“Mining contracts, agreements and concessions approved before the effectivity
of this Order shall continue to be valid, binding, and enforceable so long as
they strictly comply with existing laws, rules, and regulations and the terms and
conditions of the grant thereof. For this purpose, review and monitoring of such
compliance shall be undertaken periodically.”
Hence, existing mining contracts within the “No-Go Mining Zones” continue to be
valid and effective as the provision only applies to future mining applications. The
obvious conclusion is that mining may still be allowed within “No-Go Mining
Zones”. The mining ban—which is purportedly the center-piece of the EO—only
means that no future mining applications shall be entertained because of the
supposedly ecological uniqueness and the need to protect the remaining flora and
fauna, marine sanctuaries, farmlands, among others, of certain critical areas but at
the same time expressly declares that mining contractors existing therein prior to EO
79 are allowed to exploit the same until the contract expires. Mining contracts have
a 25-year term, renewable for another 25 years. Sadly, most of those areas included
in the “No-Go Mining Zones” already have several existing mining operations.
A case in point is Palawan—the whole island being declared as a Mangrove Swamp
Forest Reserve by Presidential Proclamation 2152 as early as 1981 and with at least 17
Key Bio-diversity Areas (KBAs) and 8 declared protected areas in the island making
it a part of the NIPAS protected area—but has at least 13 existing mining companies
(Rio Tuba, MacroAsia, etc.) operating on 38,202 hectares within the protected areas.
Despite the declaration that the whole island of Palawan is part of the 78 tourism
zones, mining will continue rampage of destruction in what is considered as the last
frontier of the Philippines.
While Section 3 of EO 79 mandates a review of the performance of existing mining
contracts, this will, however, not result in their invalidation because EO 79 expressly
states that it does not affect the validity of prior mining contracts. In fact, the last
paragraph of Section 4 of EO 79 states that the review of existing contracts for
renegotiation shall in all cases be acceptable to the mining contractor, to wit:
“The DENR shall likewise undertake a review of existing mining contracts
and agreements for possible renegotiation of the terms and conditions of the
same, which shall in all cases be mutually acceptable to the government and the
mining contractor.”
Alyansa Tigil Mina
17
22. Hence, even if the review of the existing mining contracts shows that there are
violations on the grant thereof, the same remains to be valid if the mining contractor
does not allow its renegotiation.
Previous violations should not be tolerated by EO 79. Thus, it is recommended
that all existing mining projects be reviewed and monitored within 90 days from the
effectivity of EO 79. Mining operations situated inside “No-Go Mining Zones”, or
if there is an allegation of an overlap, should discontinue their activities pending the
determination of the truthfulness of the allegation. Lastly, the jurisdiction of mining
administrative cases (MPSA cancellation, etc.) should be immediately transferred to
the inter-agency Mining Regulatory Board rather than just in the single-agency of
the DENR.
2. Prime Agricultural Lands and Fishery Zones
EO 79 is laudable in that it includes Prime Agricultural Lands, in addition to areas
covered by CARP, as part of the banned areas for mining. The principle behind
protecting such lands was to protect the gains of agrarian reform and to attain food
security for the country. However, a question remains as to the areas critical to
or surrounding the Prime Agricultural Lands—are they also closed to mining
applications? This has particular importance because of the nature of agricultural
lands wherein any extractive activities in nearby areas would severely affect, if not
completely damage, plantations and crops in the area. The same situation applies to
fishery zones and marine sanctuaries where mining operations are usually conducted
in upland areas but has adverse effects in the coastal areas.
A case in point is the mining activities in Cantilan, Surigao del Sur wherein a
4,799-hectare area within the watersheds are presently being mined by Marcventures
Mining and Development Corporation. The watersheds are vital main sources of
water for the NIA-assisted irrigation systems and potable water sources in the three
Municipalities of Cantilan, Carrascal, and Madrid, all in the Province of Surigao
del Sur. However, the mining operation in the watersheds has severely damaged
the river systems and irrigation facilities and affecting more than 3,300 hectares of
ricelands, as well as the marine sanctuaries, in the coastal areas of Surigao.
Hence, the exclusion of prime agricultural lands and marine sanctuaries do not
fully protect them from the hazards and ill-effects of mining operations. The actual
operation may not be on the said sites but may have adverse effects to the said
areas. Mining operation may contaminate irrigation canals, rivers and coastal and
aquatic resources. Areas close to mining should therefore include head waters and
river systems affecting farmlands and coastal areas. Even if mining activities are
banned in agricultural lands, if the surrounding areas critical to the improvement
and development of the farmlands are not protected from extractive activities, then
the goals of agrarian reform and food security are weakened.
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23. B.
Moratorium
on
Mining
Applications
The provision on moratorium on mining applications is commendable but there
are still important concerns which are not addressed by EO 79 which provides the
following:
SECTION 4. Grant of Mineral Agreements Pending New Legislation.No new
mineral agreements shall be entered into until a legislation rationalizing existing revenue
sharing schemes and mechanisms shall have taken effect. The DENR may continue
to grant and issue Exploration Permits under existing laws, rules, and guidelines. The
grantees of such permits shall have the rights under the said laws, rules, and guidelines
over the approved exploration area and shall be given the right of first option to develop
and utilize the minerals in their respective exploration area upon the approval of the
declaration of mining project feasibility and the effectivity of the said legislation.
As stated above, existing mining operations continue despite the moratorium since
what is deferred is only the grant of new mining applications regardless of whether
the mining applications are located within “No-Go Mining Zones”. To address
environmental concerns, the Moratorium should also be imposed on existing mining
contracts pending compliance with Section 3 of EO 79 that requires a review of existing
mining contracts.
Ironically, despite the declaration of a moratorium on the grant of mining
applications, EO 79 provides for a “One-stop Shop” for all mining applications in
Section 13 aimed at fast-tracking the processes for the grant thereof. This is a clear
manifestation that the moratorium is merely a “temporary suspension” and not
exactly a moratorium.
EO 79 also provides that the moratorium does not include the grant of Exploration
Permits for mining companies and small-scale mining applications. In actual practice,
however, the issuance of the Exploration Permits to mining companies signals the
commencement of actual mining operations in the area. This has been a prevalent
problem, especially in areas where indigenous communities are present, and which
the DENR has not fully addressed. On the other hand, small-scale mining remains
to be unregulated by the DENR for so many years.
It is thus recommended that the moratorium should include the grant of Exploration
Permits and small-scale mining applications. Furthermore, the moratorium should
be lifted not upon the enactment of a new legislation on revenue-sharing scheme
but only after an Integrated Map System is finalized and available. The map should
cover all areas and shall include declaration of “No-Go Zones Areas”. The call for
the cessation of mining operations is due to environmental, health, and livelihood
concerns of the people in the affected communities and not merely because of the
Alyansa Tigil Mina
19
24. revenue-sharing issues between the national government and the LGUs. Enactment
of a National Land Use Policy becomes an imperative.
C.
Primacy
of
National
Policy
over
Local
Legislation
Section 12 of EO 79 directs the local government units to exercise their powers consistent
with the policies and decisions undertaken by the national government. This may have
put limitations on the powers of LGUs granted by the Constitution and Republic Act
7160 (Local Government Code). There is a need to clarify the role of the national
government over mining operations because a potential conflict is brewing between the
national government and the local governments. The national government is clearly
imposing its general supervision powers over the autonomous Local Government Units
thereby disturbing the principle of devolution of powers to local governments.
As of now, several provinces, cities and municipalities have passed legislations
disallowing mining operations within their jurisdictions including Albay, South
Cotabato, Bukidnon, Romblon, Samar, Marinduque, La Union, Capiz, Romblon,
Antique, ZamboangaSibugay, Bohol, Zamboanga del Norte, and Negros Occidental,
while in the process of banning mining are the areas of Eastern Samar, Nueva
Vizcaya, Cagayan de Oro, Catanduanes, Sorsogon, Southern Leyte, and Davao City.
A case in point is the Province of Romblon where the three Municipalities of
Magdiwang, San Fernando and Cajidiocan, all in the island of Sibuyan, Romblon
issued Joint Resolution No. 01-10 banning mining in Sibuyan Island. The whole
island of Sibuyan has been previously declared as a Mangrove Swamp Forest Reserve
by Presidential Proclamation 2152 in 1981 and therefore part of the NIPAS protected
areas.This was supported by the Governor Eduardo Firmalo of Romblon who issued
Executive Order 1, Series of 2011 declaring a moratorium in the whole Province of
Romblon, as well as the Provincial Council of Romblon which issued Sanggunian
Resolution No. 01-2011-23. In view of the new EO 79 issued by the President, what
happens to the LGUs which have existing legislations strongly opposing mining
operations within their jurisdictions?
It is to be noted that Congress recognized the role of the local government units
in development as stated in the Constitution, and enacted the Local Government
Code of 1991 which provides the policy that the LGUs shall enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development as
self-reliant communities and make them effective partners in the attainment of
national goals instituted through a system of decentralization whereby LGUs shall
be given more powers, authority, responsibilities, and resources. Towards that end,
Section 16 (General Welfare Clause) of the LGC provides that:
“SEC. 16. General Welfare. - Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
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25. necessary, appropriate, or incidental for its efficient and effective governance,
and those which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture,
promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-
reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants.”
In the case of Province of Rizal versus Executive Secretary,1the Supreme Court provides
an exhaustive discussion that the LGC gives to local government units all the
necessary powers to promote the general welfare of their inhabitants, particularly
citing Section 2 (c) of RA 7160, to wit:
“It is likewise the policy of the State to require all national agencies and offices to conduct
consultations with appropriate local government units, nongovernmental and people’s
organizations, and other concerned sectors of the community before any project or program
is implemented in their respective jurisdictions.”
It is clear from the mandate of the general welfare that the primary consideration is
to ensure and support activities that enhance the right of the people to a balanced
ecology, including promoting health and safety, maintain peace and order, and
preserve the comfort and convenience of their inhabitants, among others. With
this primary consideration in mind, the LGUs have the right to reject or accept any
projects within its jurisdiction. Definitely an executive issuance cannot limit the
mandate provided by Congress to the LGUs in accordance to the Local Government
Code. Needless to say, in case of doubt of the grant such power, the LGC provides
that “any question thereon shall be resolved in favor of devolution of powers and of the lower
local government unit.”
IP
Rights
are
once
again
sidelined
in
EO
79
D.
The rights of the Indigenous Peoples and/or Indigenous Cultural Communities
(IP/ICCs) are once again sidelinedin EO 79. Though the EO made mention
about the need of having Free, Prior and Informed Consent (FPIC) prior to the
approval of mining agreement, it is silent on the mining privileges previously issued
by the DENR. It should be noted that based on actual experience by the IP, FPIC
is facilitated not as a recognition of IP rights but as a mere requirement of mining
application. This means that IP consent should be obtained in whatever way to
get an approval of the mining application. Maneuverings and deceit oftentimes
1 G.R. No. 129546, December 13, 2005
Alyansa Tigil Mina
21
26. go with it. With the existing framework being followed by EO 79 of identifying
and enumerating the areas closed to mining, the implication is that all the rest
not enumerated is open to mining. This scenario pose serious threats to IP/ICC’s
Ancestral Domains, since not all of the IP territories are inside the areas identified as
closed to mining. MGB estimated around nine million hectares out of the country’s
thirty million hectares as geologically prospective for metallic minerals as cited in the
Philippine Development Plan (PDP) 2010-2016. It is highly probable that most of
the IP territories overlapped with the 9 million-hectare area.
In addition, the NCIP failed grossly in ensuring the IP/ICC’s rights are recognized
and protected. In the Joint DAR-DENR-LRA-NCIP Administrative Order No. 1
series of 2012, the NCIP virtually surrendered its mandate over Ancestral Domains.
While IPRA recognize areas with entitlements as prior vested rights, the said JAO
expanded the vested rights to include Resource Use Instruments (RUIs). These
RUIs may include logging, mining and grazing privileges.
NCIP is mandated to issue Certificate of Non-Overlap (CNO) before any development
project shall commence, but projects like mining started and continue without
certification. The NCIP is also mandated to notify agencies holding jurisdiction
over IP areas, such notification will automatically transfer jurisdiction to the IP
(Section 52.i of IPRA). The Commission, however, seemed powerless to perform its
mandate. The government should first compel NCIP to perform its mandate before
any mining operation shall commence.
For non-IP areas, community consultation should likewise be mandatory. In all
cases, the approval of the LGU concerned shall be necessary in the whole process
from application to actual mining operation. The required mayor’s permit and
sanggunian resolutions of the respective municipality and province should be
included as mandatory requirements for approval of mining applications.
E.
Other
controversial
provisions
of
the
Executive
Order
79
1. Full Enforcement of Environmental Standards in Mining (Section 2)
This is nothing new as regulations, rules and standards on the subject matter already
exist. The problem lies on the non-implementation or non-compliance of the same
agency that issued these rules. DENR and MGB do not have the reputation of strictly
and effectively implementing environmental laws. Enforcement mechanism should
not be limited solely to these agencies but should expand and include independent
groups and personalities.
2. Opening of Areas for Mining though Competitive Public Bidding (Section 6)
Government should explore possibilities of initiating mining operations rather
22
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27. than foreign investors. This is an additional assurance that the government will
observe responsible mining and guarantee accountability in cases of environmental
degradation due to mining activities.
3. Constituting the Climate Change Adaptation and Mitigation and Economic
Development Cabinet Clusters as the Mining Industry Coordinating Council
(MICC) (Section 9)
Membership in this body should be multi-sectoral. The participation of the affected
communities and the civil society organizations should be ensured in the policy-
making and implementing body such as the MICC. The one-stop shop application
for mining operation should be part of the council’s functions.The council should
also have monitoring function on the existing mining claims and operations.
4. Measures to Improve Small-Scale Mining Activities (Section 11)
This is already provided under RA 7076 but the same is not strictly implemented.
One issue is that the Provincial/City Mining Regulatory Board (P/CMRB) is
either not yet constituted or non-functional. P/CMRB is supposed to identify
and establish “Minahang Bayan”, but small scale mining thrives even without an
established “Minahang Bayan” or even without a constituted P/CMRB. Small scale
mining operations which are either outside the established “Minahang Bayan”, no
permit from the P/CMRB, or operating in areas with no duly constituted P/CMRB
should discontinue.
5. Improving Transparency in the Industry by Joining the Extractive Industries
Transparency Initiative (Section 14)
This is a commendable and wise provision but it should include the whole value
chain of mining such as (1) transparency in disclosure of mining contracts and all
related mining documents prior to the grant of mining applications by the contractor;
(2) transparency in decision-making whether a specific mining project is a “No-Go
Mining Zone” or a “Go-Zone”; and (3) clear definition and blue print of the roles of
minerals in resource management of the country.
6. Implementing Rules and Regulations (IRR) (Section 29)
There should be a representation from the civil society organizations and sectoral
groups affected by mining such as IPs, farmers, fisherfolks and women, in the
drafting and finalization of the IRR for EO 79.
7. Repealing Clause (Section 21)
EO 79 should expressly state that it repeals EO 270-Aand the National Minerals
Action Plan of 2006.
Alyansa Tigil Mina
23
28. III.
ALTERNATIVE
MINERALS
MANAGEMENT
BILL
Section 4 of EO 79 awaits for a new legislation from Congress. It is but fitting
that a new law that will outline a comprehensive national policy to increase the
government share from mining revenues and to promote an environment-friendly
and human rights-centered mining industry in the country must be immediately
legislated.
Akbayan Party’s House Bill No. 3763, also known as the Minerals Management
Bill, seeks to repeal Republic 7942 or the Philippine Mining Act of 1995. This
democratic, environment-sensitive and human rights-centered mining policy puts
premium in the ecological value of our country’s mineral resources, shifting the
land use priority towards environmental protection, food security and sustainable
development. This is a 360-degree paradigm shift from the current Philippine Mining
Act of 1995 (Republic Act 7942), which paved the way for the full liberalization of
the mining industry to foreign investments without placing safeguards against the
wanton exploitation of our natural resources and our people.
The Minerals Management Bill upholds the provision in the 1987 Constitution that
only Filipino corporations or those with at least 60% Filipino ownership shall be
allowed for the exploration, development and utilization of mineral resources in the
Philippines. This provision is a complete turnaround of the 1995 Mining Act clause
that virtually allows 100% foreign-owned companies to conduct mining operations
in the country.
A Multi-Sectoral Mining Council shall become the only agency empowered to
deliberate and approve mining applications. It is designed to democratize the process
of screening and issuing permits to mining companies to ensure that all stakeholders
will be able to air their voice on the said applications. This will be comprised of the
Mined and Geosciences Bureau (MGB), the Department of Environment and Natural
Resources (DENR), affected local government units (from the provincial to the city
or municipal levels), non-government organizations, and indigenous peoples if their
ancestral lands will be covered by the mining application. The MGB shall remain as
the primary government agency tasked to regulate existing mining operations.
The proposed measure specifically enumerates areas where mining activities shall not
be permitted. Among those declared as “no-go zones” by the Bill are the following:
head waters of watershed areas; areas with potential for acid mine drainage; critical
watersheds; critical habitats; climate disaster-prone areas; geohazard areas; cultural
sites, which may include, but not limited to, sacred sites and burial grounds; traditional
swidden farms, and hunting grounds; prime agricultural lands; community sites; key
biodiversity areas; densely populated areas; high conflict areas; and virgin forests,
watershed forest reserves, wilderness area, mangrove forests, mossy forests, national
parks, protection forests, provincial/municipal forests, parks, greenbelts, game
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29. refuge and bird sanctuaries, and their respective buffer zones as defined by law and
in areas expressly prohibited under the National Integrated Protected Area System
(NIPAS) under Republic Act 7586, Department Administrative Order 25 series of
1992, and other laws.
Finally, with regard to the revenue-sharing aspect of the proposed measure, the Bill
requires additional taxes that mining companies have to pay on top of the 2% excise
tax currently imposed under the 1995 Mining Act. The Bill also aims to increase the
share of the government in mining to 10% of the gross revenues of the company,
as well as to impose an Indigenous Cultural Communities (ICCs) equivalent to at
least 10% of the company‘s gross revenues if it operates within ancestral domains.
Community development programs shall not be considered as royal payment. The
Bill stipulates that funds must be set aside for scientific and research development,
and legal support services for those affected by the mining operations.
House Bill 3763 is currently being consolidated by a technical working group (TWG)
in the Committee on Environment and Natural Resources composed of staff
members of the authors of the different bills on responsible mining. To ensure the
eventual passage of the Bill in the 15th Congress, Akbayan continues to work with its
civil society partners under the Save Our Sovereignty – Yamang Minerales Nagsisilbi sa
Bayan (SOS-Yamang Bayan) Network.
Alyansa Tigil Mina
25
30. EO 79: “No go” means “Maybe.”
Posted
on
July
26,
2012
by
Joel
Tabora,
S.J.
It has been said that in a contest between “no go zone” and a well-heeled mining
company, it is easier to chase away the “no go zone” than to chase away the mining
firm. After all, the mining company does not operate to preserve and conserve the
environment. The mining company operates to extract minerals for profit, and the
environment is the obstacle. Where laws, rules and regulations can be complied
with, well and good, as long as in the end the minerals extraction takes place. Where
laws cannot be complied with, they need to be set aside rationally, either legally or
extra-legally, often in ways that legitimate mining companies would rather avoid.
Compliance with existing law and their implementing rules and regulations is easier,
again, not in order to preserve the environment as is the intent of the law, but to
overcome it as the obstacle to the goal of the firm. This includes dealing with the
relevant people in charge, attracting them, arguing with them, convincing them,
“motivating” them, making sure they are on board, as much as possible “within
budget,” and all within the law. Here, the spirit of the environmental law may be
sacrificed, but the spirit of the mining company is preserved.
For those who believe that the environment must be preserved against the spirit and
logic of the mining industry, whose track record of environmental sensitivity in this
country and abroad is less than sterling, the laws must be such that they demand
strict compliance in favor of the environment. Once old-growth forests are destroyed
or areas of high bio-diversity are violated, they can never be restored. The high-value
signatures on legal documents, all won within the law and within budget, will not
undo the environmental damage.
“No go zones” need therefore to be “no go zones strictly,” and not just “for the
meantime” or sometimes. For environmental damage in these areas can be irreparable,
affecting future generations. The laws defining the “no go zones” and the executive
issuances like EO 79 implementing them must define them near absolutely, that
is, to a point where the spirit of mining would undermined in their violation, and
those who are compliant in their violation shall be held criminally accountable.
“No go zones” are not “no go zones” if permission can be attained relatively easily to
make them “go zones.”
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31. Based on existing laws, EO 79, Sec 1 lists five areas closed to mining applications.
“Applications for mineral contracts, concession, and agreements shall not be allowed
in the following:
“a)
Areas expressly enumerated under Section 19 of RA No. 7942;
“b)
Protected areas categorized and established under the National Integrated
Protected Areas System (NIPAS) under RA No. 7586;
Prime agricultural lands, in addition to lands covered by RA No. 6657, or
“c)
the Comprehensive Agrarian Reform Law of 1988, as amended, including
plantations and areas devoted to valuable crops, and strategic agriculture and
fisheries development zones and fish refuge and sanctuaries declared as such by
the Secretary of the Department of Agriculture (DA);
“d)
Tourism development areas, as identified in the National Tourism Development
Plan (NTDP); and,
“e)
Other critical areas, island ecosystems, and impact areas of mining as determined
by current and existing mapping technologies, that the DENR may hereafter
identify pursuant to existing laws, rules, and regulations, such as, but not limited
to, the NIPAS Act.“
First, it is no mean thing that this formulation has been made, and forms part of the
Aquino administration’s policy on mining. Notable is the explicit mention of such
as prime agricultural lands, lands under CARP, tourist development areas, and other
“critical areas” like “island ecosystems.” If the spirit of EO 79 is not just to allow
mining but also to respect the environment, as it purports to, then its officials must
stand true to the spirit of “no go zones.” Where discretion needs to be exercised over
these areas, it needs to be exercised in favor of “no go” rather than “go” – no matter
the power or violence of motivation in the other direction.
Second, let us consider in the law how “no go” “no go” is.
E0 79 refers to areas enumerated under RA 7942. These are:
“In military and other government reservations, except upon prior written clearance
by the government agency concerned;
“Near or under public or private buildings, cemeteries, archeological and historical
sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructures
projects, public or private works including plantations or valuable crops, except
upon written consent of the government agency or private entity concerned;
“In areas covered by valid or existing mining rights;
“In areas prohibited by law;
Alyansa Tigil Mina
27
32. “In areas covered by small-scale miners as defined by law unless with prior consent
of the small-scale miners, …
“Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas,
mangrove forests, mossy forests, national parks, provincial/municipal forests, parks,
greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly
prohibited under the National Integrated Protected Areas System (NIPAS) under
RA 7586, Department Administrative Order no 25 s 1992 and other laws.
Except for areas under NIPAS, “No go zones” can be undermined at the discretion
of government official or private persons. If these were obstacles to the intentions of
mining, with enough determination and logistics, they could be overcome.
It is different with areas protected under NIPAS. “Disestablishment of a protected
area” needs ultimately an act of Congress, upon recommendation of the majority
[only!] of the relevant board after an appropriate study (Cf. RA 7586, Secs. 7 and 11).
Here, the “no go zone” is more “no go” than “go,” but for the determined mining
company seeking to extract minerals for profit, it is not an insurmountable obstacle.
Back to EO 79, Sec 1 c, this important declaration against mining in agricultural
areas, CARP lands, fisheries and the like, is contingent on the declaration and the
discretion of the Secretary of Agriculture as well as of the Secretary of Agrarian
Reform. On orders of their superior or motivated by other concerns, they could
exclude agricultural lands from their list of agricultural or reformed lands.
It is similar with the Tourism Development Areas. What is included today in the
National Tourism Development Plan can be excluded tomorrow. While Palawan may
be included today, it may be excluded tomorrow. Today, the official list of “Tourist
Development Areas” includes Davao del Sur and Sultan Kudarat. That should be
interesting for the proponents of the SMI/Xstrata project in Mindanao.
Finally, EO 79, Sec 1 e, mentions under critical areas “island ecosystems.”
Environmentalist would certainly include here the small island of Rapu-Rapu in
Albay and the beautiful island of Sibuyan in Romblon. Here the consequences of
Acid Mine Drainage can be catastrophic. But Mindanao is also an island eco system
which includes its mountains, watersheds, rivers, flora, fauna and human beings
dependent on this island ecosystem. The government entity tasked to name the
island ecosystems, however, is the Department of Energy and Natural Resources,
which is according to present law hopelessly conflicted. On the one hand it is
charged to protect the environment. On the other hand, it is charged to exploit
natural resources.
“No go” zone clearer after EO 79?
Not really. “No go” means maybe.
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33. EO 79 and Social Justice and Mining
Posted
on
July
18,
2012
by
Joel
Tabora,
S.J.
[Address: Stakeholders’ Caucus on EO 79 on Mining, Ateneo de Davao University July 18, 2012]
No one really talked much about mining when I was going to school. It was one of
those activities engaged in by a relatively small number of people; its effects were not
well understood. Things have changed. While no one will contest that in the modern
world we need the products of mining for such as celfones, computers, skyscrapers
and the like, there are concerns about the costs of mining on the environment.
The desire has been to understand what “responsible mining” is. Even as some
Philippine activists’ positions have been characterized as “anti-mining,” the thrust is
less to ban mining activities absolutely from the country, but to hold it in abeyance
until a broader consensus is achieved as to what responsible mining policy might be,
and until the country clearly has the structures and competent personnel to enforce
responsible mining.
Because of the various interests involved, finding consensus on responsible mining
is elusive. I believe that the more Philippine citizens and their friends participate
in a competent discussion on mining and its effects, the better. Why? On the one
hand, the Philippine Constitution declares that minerals belong to the State. This
means that originally they do not belong to owners of land titles, nor are they the
preserve of private interest groups, whether these are foreign capitalists or indigenous
peoples. They belong to the State – to the Filipino People. Thus, the public policy
that governs the use of minerals, including EO 79 as well as RA 7942, is the concern
of all who are its owners.
The
Call
of
the
Common
Good
There is another, arguably even more fundamental reason why people should
participate in this discussion. This is a principle espoused by the social doctrine of
the Catholic Church. It teaches that there is a social mortgage on private property.
While the Church has consistently recognized the validity of private property
in the human being’s fulfillment of personal and family needs, private property
Alyansa Tigil Mina
29
