Nullify Mining Act or just the DENR order?

Purple S. Romero

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Justice Velasco says amending the department order could be the better option

 

FINAL SAY. The Supreme Court reviews the Mining Act again

BAGUIO, Philippines – Should the provisions on the profit-sharing agreement in the Mining Act of 1995 be struck down as unconstitutional or should the law’s corresponding department administrative order be amended instead?

Supreme Court justices went back and forth on this during oral arguments on Tuesday, April 16, as the High Court took up consolidated petitions seeking for the nullification of sections 80 and 81 of Republic Act 7942, or the Mining Act of 1995. 

The petitioners – former Akbayan Rep. Risa Hontiveros, Bayan Muna Rep. Teodoro Casiño , Rep. Lorenzo Tañada III and others – said the two provisions put the government at a financial disadvantage.

Sec. 80, for one, limits the share of the government in MPSA to excise taxes while Sec. 81 confines the government’s share to taxes, fees and royalties instead of letting it have full control over the exploration, development and utilization of mineral resources.

They also said the Department of Environment and Natural Resources (DENR) Order 07-12, which provided for the Revised Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance Agreements, result in the inequitable sharing of wealth.

Justice Antonio Carpio – who dissented in a December 2004 ruling that upheld the constitutionality of the Mining Act – said prescribing the terms and conditions in the profit-sharing agreement is within the discretion of the President, not the department head. The DENR secretary devised DAO 07-12, where there is a 50-50 revenue-sharing between the State and the FTAA contractor. 

“When bureau director prescribed profit-sharing formula, what do you call that? Usurpation of legislative functions,” he said. 

Carpio also mentioned the predecessor of DAO 07-12, Department Administrative Order 99-56, where the DENR secretary made the profit-sharing formula. He said that under DAO 99-56, then DENR Secretary Angelo Reyes himself admitted that the government’s share in mining revenues from foreign contractors is “from zero to nil.”

“From zero to nil. From nothing to nothing,” he said. 

Fix DENR order

Justice Presbitero Velasco Jr said, however, that if the problem is the department order, then it is better to have it amended than to nullify the provisions of the Mining Act as unconstitutional.

“Which is easier to amend, a law or a department order?” he asked lawyer and former Constitutional Commission member Christian Monsod, who argued before the SC for the petitioners. 

“It’s the department order but it depends on the what subject matter is,” Monsod answered.

Velasco said it is better to just fix the department order. “What happens after we declare Sec.81 unconstitutional? You go to Congress?” he said. 

Monsod said the profit-sharing agreement does not take into account the “negative externalities” of the mining industry, such as displacement.

Earlier, advocates of responsible mining held a protest march here to ask the justices to nullify the Mining Act of 1995 and pave the way for the passage of a new legislative measure on mining.

The Cordillera People’s Alliance and the Legal Rights and Natural Resources Center said Congress must pass the People’s Mining Bill, which prohibits “invasive exploration; prohibits mining in watershed areas and other critical habitats and open pit mining.” Rappler.com


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