atm position papers on eo 79, s. 2012_august 2012

7/31/2019 ATM Position Papers on EO 79, s. 2012_August 2012

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Alyansa Tigil Mina

Position Paperson

Executive Order 79, s. 2012

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Tableofcontents

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Alyansa Tigil Mina 1

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 theAquino 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 thegovernment 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.


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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).

Werecognizethevalueofthefollowingnewpolicies:

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 enforceableso 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.


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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 andmonitoring 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 shouldalso 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 ofNon-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 anyconscious effort from the government to study and propose a new revenue sharing

scheme.


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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 enforcethe 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

LawsWe 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 andapplications in their respective localities.


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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 decentralizationand 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 frommining 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 miningsite, 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.


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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 noserious 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.

AlyansaTigilMina11July2012


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Statement on EO 79 andAlternative Minerals Management Bill

1\S`

The long wait is over.

The much awaited mining policy of Pres. Benigno Noynoy Aquinos administration,

which was supposed to resolve the many issues and problems hounding the countrysmining 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 countrys 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 provisionsthat 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 countrys mining policy, and the new mining EO greatly

fails to address these issues. In fact it perpetuates the same situation with its businessas usual framework.

Secondly, most of the provisions in EO 79 are misleading.


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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 countrys

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 madethis 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--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


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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 Blaans 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 countrys 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 ourFilipino 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.

ANeedforaNewMineralsManagementFramework

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 introducedpositive 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.


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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 flaw 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

peopleand making a stand for mining-affected communities, indigenous peoples,

the environment, and for the present and future generations of our country!

EO79isNotWhatisNeeded,

ItstheAlternativeMineralsManagementBill(AMMB)!

PasstheAMMBNOW!

SOS-YamangBayanNetwork

*** The SOS-Yamang Bayan Network is a national, multi-sectoral movement composed ofindividual advocates, mining-affected communities, national peoples alliances, environmentalorganizations 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 MiningAct of 1995 and the enactment of a new minerals management bill.


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A Call for the Passage of theAlternative 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 governments 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 indigenousbrothers 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

governments 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 governments 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


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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 governments 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 fromtheir right to sources of food and livelihood. Allowing the interests of big mining

corporations to prevail over peoples right to these sources amounts to violating

their right to life. Furthermore, mining threatens peoples 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 beyondthe 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 countrys natural resources.

Recognizing, however, the long duration of legislative procedures, the Church joinsthe 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 basisof 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 thatChristians, 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).


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Legal Notes of Rep. Kaka J. Bag-ao*

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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 AlternativeLegal Group, a network of NGOs providing legal support to marginalized communities. Shewas the legal counsel of the Sumilao farmers.


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I. GENERALOBSERVATIONSTOEXECUTIVEORDER79, SERIESOF2012

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. SPECIFICCONCERNS

A.No-GoMiningZonesEO 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;


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(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 assuch 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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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 MiningZones. The mining banwhich is purportedly the center-piece of the EOonly

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 Palawanthe 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 areabut 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.


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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 theeffectivity 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 Landsare 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 arebanned 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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B.MoratoriumonMiningApplications

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 miningapplications, 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 prevalentproblem, 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 forthe 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


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revenue-sharing issues between the national government and the LGUs. Enactment

of a National Land Use Policy becomes an imperative.

C.PrimacyofNationalPolicyoverLocalLegislation

Section 12 of EO 79 directs the local government units to exercise their powers consistentwith 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, Romblonissued 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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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 ofProvince 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 peoples

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, andpreserve 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.

D. IPRightsareonceagainsidelinedinEO79

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


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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/ICCs

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 countrys

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/ICCs 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 mayors permit and

sanggunian resolutions of the respective municipality and province should be

included as mandatory requirements for approval of mining applications.

E.OthercontroversialprovisionsoftheExecutiveOrder791. 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


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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 councils 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 ofminerals 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.


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III. ALTERNATIVEMINERALSMANAGEMENTBILL

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 immediatelylegislated.

Akbayan Partys 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 countrys 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 ofthe 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 theirancestral 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; keybiodiversity 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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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 Billrequires 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 companys 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.


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EO 79: No go meansMaybe.PostedonJuly26,2012byJoelTabora,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 theenvironment 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-valuesignatures 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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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;

c) Prime agricultural lands, in addition to lands covered by RA No. 6657, or


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 DevelopmentPlan (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 administrations policy on mining. Notable is the explicit mention of suchas 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;


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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 expresslyprohibited 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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EO 79 and Social Justice andMiningPostedonJuly18,2012byJoelTabora,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 ofthose 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 enforceresponsible 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.

TheCalloftheCommonGood

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 beings fulfillment of personal and family needs, private property


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is encumbered by a social mortgage and must contribute to the common good

(Laborem exercens, 14). Short of this the legitimacy of private property is lost: The

right to private property is subordinated to the right to common use, to the fact that

goods are means for everyone (ibid). This is a powerful doctrine inviting reflection

on the manner in which property in society in general is handled. It is embedded

in a principle called the universal destination of all created goods (Sollicitudo Rei

Socialis, #42) the doctrine that all goods created by God are for the good of all.

Where the Constitution states that minerals belong to all, and the Church teaches

that even minerals are numbered among created goods with a universal destination

the good of all the search for a rational policy on mining cannot exclude the

good of all, i.e., the common good. In fact, the Philippine Constitutions acclaimed

centerpiece, its Article XIII on Social Justice, states: The Congress shall give

highest priority to the enactment of measures that protect and enhance the right of

all the people to human dignity, reduce social, economic and political inequalities,

and remove cultural inequities by equitably diffusing wealth and political power

for the common good (Art. XIII. Sec 1). This is an ongoing mandate. It enacts

laws in pursuit of the common good. It repeals, amends, and perpetually improves

laws towards the greater pursuit of the common good. This greater pursuit of the

common good is the pursuit of social justice.

No laws are perfect. Agreements and activities undertaken under laws are often

imperfect and harmful to the common good, even if they are legal. The pursuit ofsocial justice warrants the repeal and ongoing reform of laws, just as the pursuit

of social justice warrants the cancellation of agreements that militate against the

common good. If a law were to be enacted that would cause harm to all women and

children in a male chauvinistic society, it is ultimately in pursuit of social justice (and

not just political advantage) that that law should be repealed. If a contract would

deprive large numbers of babies from necessary nourishment, it is in pursuit of

social justice that that contract should be voided. Social justice provides the ultimate

rationality for a law, or the compelling warrant for its repeal. Commutative justice,

which compels the fulfillment of contracts, and distributive justice, which distributesbenefits and burdens in the maintenance of society, find their legitimacy in social

justice and are subordinated to it. When they harm social justice, in social justice

they are to be overcome.

Law,Rationality,andSocialJustice

The rationality of laws must be anchored in social justice. If a law is not socially

just, activities and agreements under that law become socially unjust, and so cannever be legitimated simply because they comply with law. What is legal is not

necessarily socially just, and therefore not necessarily moral. Human beings who


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take responsibility for society must be sensitive to this. Existing laws may advance

the common good, or advance the common good merely partially, or may militate

against the common good. Who makes this call? It is the people, yourselves and

myself, weighing the various forces and constraints which affect us in our current

society, asserting a certain shared wisdom achieved by and for the whole of society

in history, who make this call.

For instance, if a law were to give a group of people a monopoly over fresh air in

exchange for large taxes paid to the State, but this law were to deprive poor people

of the air they need to breath, no matter how legitimately enacted, the people could

declare this law socially unjust and act towards its repeal. Until it is repealed, in

social justice, they could act to undermine it. Of course, enforcers of the law could

defend the unjust law. But because it is defended does not mean it is just, and the

stuff of heroism and martyrdom is when people undermine existing social structures

in the pursuit of social justice.

Where our intention is to search for what responsible mining especially in the light

of the perceived sins against social justice under the laws currently governing mining

policy, it is thoroughly unsatisfying if it is argued that responsible mining is achieved

when the current laws governing mining are complied with. Where especially

RA 7942, first, notoriously allows a fiscal regime which does not give the Filipino

people, who are the owners of the minerals, a fair share of the product and, second,

fails today to effectively protect the environment, especially in the light of expected

climate change impacts, a claim to responsible mining because of compliance to

this law dodges the issues raised in social justice.

This is what I tried to point out in an earlier article. If responsible mining is to be

based on a certain rationality, what is rational for the investor is quite irrational

for the environmentalist; what is rational for the Blaan or the Tivoli peoples

is irrational for the military; what is rational and necessary for Government is

irrational for the free private sector. In the end, rationality must be decided on by

the autonomous people in a given historical moment defining what is socially just.

MiningunderRA7942whichNeedsRepeal

In a Powerpoint presentation entitled To Mine or Not to Mine: the case of the

Tampacan Copper Gold Project: Mindanao, Philippines presented by Dr. Esteban

C. Godilano, PhD, of UP, with contributions by Atty. Christian Monsod (referred

to hereafter as: G.M.), they speak of four conditions for allowing mining in the

Philippines. I believe it is their position on what responsible mining is. These

conditions are:

WKHHQYLURQPHQWDOHFRQRPLFDQGVRFLDOFRVWVDUHDFFRXQWHGIRULQHYDOXDWLQJ

mining projects;


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32 ATMWWK

WKHFRXQWU\JHWVDIXOODQGIDLUVKDUHRIWKHYDOXHVRIH[WUDFWHGUHVRXUFHV

WKHLQVWLWXWLRQDOFDSDELOLWLHVRIWKHJRYHUQPHQWWRHYDOXDWHDQGUHJXODWHPLQLQJ

activities are put in place; and

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specifically used to create new capital such as more developed human resourcesand infrastructure, particularly in the rural areas (G.M., slide 22)

Where under the Philippine Mining Act of 1995 (RA 7942) and EO 270-A, providing

for the aggressive development of Philippine mining, we still do not have the tools

and disciplines to account for the full costs of mining projects, where we admit

the people are not getting their full and fair share of mineral products, where the

institutional capabilities of government to evaluate and regulate mining activities are

not in place, where we have not devised a scheme to exploit the benefits of extracting

these non-renewable resources in new capital and infrastructure projects, we havewarrant for stating that mining continues to be irresponsible and socially unjust.

This brings me to a key problem with EO 79. Where the Catholic Bishops

Conference of the Philippines in A Statement of Concern on the Mining Act of

1995 in 1998 called for the repeal of RA 7942, the EO continues to lean on it for

its effectivity. Of course, the Executive can only rely on existing law for any EO. But

the EO seems to show no sensitivity for the ills pointed out by the bishops wrought

by EO 7942. The adverse social impact on the affected communities, specially on

our indifenous brothers and sisters, far outweigh the gains promised by large-scalemining operations. Our people living in the mountains and along the affected

shorelines can no longer avail of the bounty of nature. Rice fields are devastated and

bays rich with sea foods become health hazards. The bishops call was reiterated in

2006: We reaffirm our stand for the repeal of the Mining Act of 1996. We believe

that the mining act destroys life. The right to life is inseparable from their right to

sources of food and livelihood. Allowing the interests of big mining corporations to

prevail over peoples right to these sources amounts to violating their right to life.

EO79onMining:AMixedBag

Leaning on RA 7942, EO 79 is a mixed bag.

Environmental consciousness and concern today is a powerful force. E0 79,

reiterating the Constitutional right of the Filipino to a balanced and healthy ecology,

certainly asserts the need to protect the environment. This is demonstrated in the

areas closed to mining applications of Sec. 1. Beyond those already articulated

in Sec. 19 of RA 7942 and in the National Integrated Protected Area System (RA

7586), it also includes:

a. Prime agricultural lands, in addition to lands covered by RA No. 6657, or



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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);

b. Tourism development areas, as identified in the National Tourism Development

Plan; andc. 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.

But the EO also states:

Mining contracts, agreements and concessions approved before the effectivity of this

Order shall continue to be valid, binding, and enforceable so long as they strictlycomply 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.

ForthePeople,ZerotoNil

Section 4, however, makes the grant of new mineral agreements contingent on new

legislation rationalizing existing revenue sharing schemes and mechanisms.

The existing revenue regime is irrational or socially unjust. This is because with RA

7942, mining investments with 100% foreign equity were now possible, overtaking

the previous policy of 60 percent Filipino and only 40 percent foreign equity. RA

7942 further limited the government share from Mineral Production Sharing

Agreements (MPSA) to two percent (2%): The total government share in a mineral

production sharing agreement shall be the excise tax of mineral products as provided

in RA No. 7729 (RA 7729, Sec. 80), while the State is the owner of the product.

The excise tax however is not a share in the product itself. The State gets Zero toNill (Justice Carpio) of the product.

On the other hand, through the Foreign Technical Assistance Agreement (FTAA),

the State enters into an agreement with a mining firm as a contractor. The States

share again consists in taxes, fees and duties, which are not a direct share in the

product. It gets an additional share only if the contractors net income after tax

amounts to more than 40% share of

gross output. Historically, however,

this is a practical impossibility. Again,therefore, in the FTAA, the States

share in the product is Zero to Nill.


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34 ATMWWK

NeedtoChallengeValidityofExistingContracts

But if the State so clearly sees that this is socially unjust, why would it not in its EO

79 more aggressively challenge the validity of existing contracts based on RA 7942

in social justice? If the provisions of the law themselves are social unjust, are not the

contracts closed under these conditions voidable? Where there is so much poverty

in the Philippines, should we allow these contracts to continue to rob the Filipino

people of their patrimony? Through these contracts under RA 7942 the State is

practically giving away the peoples minerals free! Lamentably, EO 79 declares the

contracts valid without having first worked out a program so that extracted minerals,

which are non-renewable, can better contribute the development of human capital

and infrastructure that would uplift our poor rather than the profit margins of

foreign investors and wealthy capitalists (Cf. GM).

MoreRationalEnvironmentalRegimeRequired

Furthermore, where the EO calls on Congress to enact a more rational fiscal

regime, why does it not also call on Congress to legislate a more rational regime

of environmental protection? What protects the people from repetitions of the

Marcopper Mining disaster of 1996, which Marcopper walked away from with

practical impunity? Open-pit mining is no longer allowed in developed countries

like the US and Canada. Why does the EO remain neutral to the law that allows itfor our fragile island ecosystem, oblivious to the countrys vulnerability to acid mine

drainage through open-pit mining? Why does it seem even to support open-pit mining

by its Sec 12, where it challenges the local ordinances prohibiting open-pit mining

in their jurisdiction. Sec. Ramon

atm position papers on eo 79, s. 2012_august 2012

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