The Mining EO: A mixed bag

'It doesn’t please everyone. It didn’t try to. But I wish I were less disappointed than I am. And that environmentalists I know were less disillusioned.'

Fr. Joel Tabora, SJ
Published 7:38 PM, July 12, 2012
Updated 5:56 PM, September 19, 2012

Fr Joel Tabora, SJ

Fr Joel Tabora, SJ

Tony La Viña of the Ateneo de Manila University’s School of Government said that the long-awaited, oft postponed Executive Order on Mining would be a disappointment for everyone. He was incorrect. The miners are applauding.

The EO is a mixed bag. It doesn’t please everyone. It didn’t try to. But I wish I were less disappointed than I am. And that environmentalists I know were less disillusioned.

Of course, there are items in the EO that should make me happy. And I would be lying were I to say I am not happy for them. Already the title provides hope: “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.”

The intention was right. So much promise: To ensure environmental protection, to ensure responsible mining, even in the use of mineral resources.

In this context, the EO reiterates that mining should not be undertaken where it should not be undertaken, e.g., near cemeteries, archeological sites, waterways, reservoirs, old growth forests, protected areas, and prime agricultural lands. It even refers to 78 tourist sites. That’s the law. But law is empty verbiage when mining is undertaken where it should not be undertaken.

In the face of huge investments, it is easier to re-zone protected areas than to re-zone mining interests. It is easier to shut your eyes to the reservoirs close by, or to the sacred archeological sites that some consider just ugly mountains. Nothing in the EO convinces that mining will be kept out of areas where it should not be.

Of course I should be happy that the message that the Filipino people is being shortchanged by the policies that govern the mining industry has reached the President.

That is why in his EO he has stated that, “No new mineral agreements shall be entered into until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect” (Section 4).

“Rationalizing” here is a wildcard whose meaning depends on the logical system within which one is “rationating” or reasoning. What is reasonable to the mining investor may be totally unreasonable to the community affected by mining; what is reasonable to a government primarily interested in a growth economy is unreasonable to a government interested the preservation of indigenous cultures.

Where the Constitution says that minerals are “owned by the State” (Article 12), what is rational to the foreign businessman may be completely irrational to the Filipino development planner. If part of the rationality of the legislation is truly poverty alleviation for the Filipino people, demanding 30% of the minerals product may be completely rational, but totally irrational to a profit-maximizing investor.

Cause for unhappiness

I am unhappy that despite the verbiage, there is no further clarification of the rational legislation that the administration seeks. It cedes its leadership responsibility totally to the legislature.

Another reason why I’m unhappy? The EO demands new legislation to improve the take of government in the fruits of mining, but it does not demand new legislation to better protect the environment. Instead it relies on the Philippine Mining Act of 1995 (RA 7942) as its legal foundation.

I am unhappy that despite the beating the Philippine environment has taken or may continue to take at the hands of miners under this law, the EO shows no sensitivity for its flaws and no honest effort relative to government’s ability to properly implement it. It instead seems to canonize it.

Considering that forests once covered the Philippines but were depleted to its current sorry state by “rational” people, the EO shows no sensitivity to the need to conserve minerals for generations beyond our own against the consuming rapaciousness of a minerals-ravenous globe. After all, don’t we all use cellphones?

Despite the cozy collaboration between the Economic Cluster and the Climate Change Adaptation and Mitigation Cluster in the Mining Industry Coordinating Council (Section 8), the EO does not solve the hopelessly conflicted situation of the Department of Environment and Natural Resources (DENR) which is simultaneously the conserver of the environment and the exploiter of its natural resources.

There is no better example of this than in the manner in which the DENR has conducted itself in handling the contentious Sagittarius Mining Inc (SMI)/Xstrata mining application for environmental clearance in South Cotabato.

On the one hand, it has already twice denied environmental clearance to SMI/Xstrata for the Tampakan project because of the alleged conflict between the national law that does not prohibit open pit mining and the local ordinance which prohibits it.

When DENR Secretary Ramon Paje was asked how the EO would affect the SMI/Xstrata application, he actually stated that the EO addressed the problem, referring to its Section 12, “Consistency of Local Ordinance with the Constitution and National Laws/LGU Cooperation.”

He said that the Department of Interior and Local Government (DILG) was directed by the EO “to ensure that the exercise of the latter’s powers and functions is consistent with and conforms to the regulations, decision, and policies already promulgated and taken by the National Government relating to the conservation, management, development and proper utilization of the State’s mineral resources, particularly RA 7942 and its IRR…”

I think he meant that the DILG could now solve the problem between the local ordinance and the law, wanting finally that SMI/Xstrata be allowed its clearance. At the same time, he himself stated that the local ordinances are valid until they are proven invalid.

I think this means that DILG would have the burden of proving that there is an inconsistency between the local ordinance, which always has the presumption of constitutionality, and the national law. Here, Secretary Paje’s open support for SMI/Xstrata as DENR’s promoter of national resources is checked by his own statement that the ordinance is valid.

I am therefore happy that South Cotabato’s Sangguniang Panlalawigan said on Wednesday, July 11, that it had no reason to take up the EO since its ordinance is valid.

In fact, when the EO states that “LGUs shall confine themselves only to the imposition of reasonable limitations on mining activities conducted within their respective territorial jurisdictions that are consistent with national laws and regulations,” the protection of the environment from the adverse effects of a 500-hectare large, 800-meter deep open pit, just 12 kilometers away from an active volcano and close to an existing reservoir has to be accepted as “rational.”

I guess SMI/Xstrata is unhappy that the EO doesn’t give it an environmental clearance, as I am unhappy that the EO doesn’t show enough political will on the part of the Aquino administration to reject the project not merely on legal grounds but on environmental grounds as well.

Because of forests, waterways, endemic species, and agricultural value, the Tampakan project should be rejected. For that, a new EO was not needed, only a commitment to responsible mining.

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