RE MINING EO

This new mining policy is only more of the same deceptive, destructive, wanton and plunderous mining
industry that we now have. Katribu partylist By MARYA SALAMAT Bulatlat.com MANILA Mining is not just about the revenues that the Philippine government stands to immediately earn, said an environmentalist partylist as President Benigno Noynoy Aquino III prepares to sign a new executive order touted to raise the governments revenue share from mining operations. So far, the government is getting only 1-percent of mining revenues, which some analysts said is perhaps even smaller because total mining revenues seem underreported. Despite this, the mining industry players are reportedly lobbying against the Aquino governments proposed increase in mining tax, fees or royalties. But the patent injustice in revenue sharing is just one of the many criticisms lodged against the mining industry in the Philippines. One of the major complaints, which had also prompted 40 provinces to issue local laws restricting specific mining practices in their areas, is the destructiveness of mining operations. Studies have shown that rivers die and forests recede as a consequence of mining operations. Dwindling forest and dying rivers, in turn, result in loss of livelihood and housing, loss of established cultural practices, sources of food and water, and ultimately, loss even of lives. Experts said typhoons, rains and earthquakes become even more destructive with the continued reduction of protective forest cover and quick drainage that previously un-silted rivers provide. Because of the sorry environmental record of mining operations, opposition has mounted despite the Aquino governments increased deployment of troops in mining-affected communities. With some 40 provinces restricting mining activities today, growing opposition from communities that also put pressure on their local government, plus the threat from armed revolutionary groups that they would continue to punish large-scale mining corporations found to destroy the environment and the peoples sources of livelihood, mining operations in the Philippines have slowed down. From the P31.40-billion ($739 million) value of metallic mineral production, this years first quarter production went down to P19.61-billion ($461 million). The Mines and Geosciences Bureau (MGB) director Leo Jasareno has blamed the anti-mining advocacy for bringing down the mining industry and hurting the country. Mining EO to please mining corporations, appease anti-mining advocates To arrest the downward trend in mining, a new mining EO is expected to be signed by Aquino since February this year. The Chamber of Mines and representatives of large mining corporations have reportedly been questioning the local governments restriction of mining operations in courts. They are lobbying strongly for the Aquino government to control those provincial governors opposed to mining.

The said EO would reportedly allow the national government to override local ordinances that restrict or prohibit large scale mining. Governors and local government executives are currently bracing themselves to launch a court battle in case Aquino signed an EO seeking to invalidate the mining-restrictive local ordinances.

That executive order will not make our ordinances disappear because they are articulations of democratic
aspirations, Albay Gov. Joey Salceda has been quoted as saying. Their constituents reasons for driving the mining companies away are obvious, that even MGB director Leo Jasareno who blames anti-mining sentiments also admits that (T)he mining industry was at fault(F)or years they have abandoned mines and flouted environmental laws in the Philippines. According to critics, all these dangers brought upon the country by mining are not the worst facet yet of the Philippine governments mining thrust. Based on statements of Kalikasan Partylist and Katribu Partylist, two groups whose membership of environmentalists and indigenous peoples comprise some of the most disadvantaged by mining operations, and are thus, the most vocal in anti-mining advocacy, the problem with the governments mining thrust lies in its being export-oriented and generally cut off from any plan or design to develop the Philippine local industries. According to Kakay Tolentino, Secretary General of the Katribu Partylist, Any mining policy that sustains the current liberalized and foreign-dominated mining industry will not serve the interests of the indigenous peoples and the Filipino nation as a whole. She said the Aquino administration and the DENR entirely miss the point raised by critics of liberalization of the mining industry. The issue here, she said, is more than the increase of payments of fees and royalties to be paid by the large foreign mining companies and bigger revenue for government, but the protection of our countrys national patrimony, sovereignty and real economic development over the interest of big foreign business. Theres life in mining only if coupled with nationalist industrialization

After minerals are extracted from our lands, they are mostly shipped off overseas for processing with little
value added, said Frances Quimpo, secretary-general of Kalikasan Partylist. Kalikasan Partylist is batting for a reorientation of the countrys mining thrust, to make it supportive of developing the countrys national industries by building downstream processing. The group said that in the long run, if mining is selectively done according to a sound industrialization plan, where a big chunk of what are to be mined would be used to develop local industries, the benefits from mining would be even bigger than any proposed increase in tax or royalties today. As example, Quimpo cited the gains to be had if we build downstream processing of ores instead of just exporting massive amounts of ore as cheap raw materials to other countries.

Contrary to how MGB director Jasareno has called anti-mining advocates, the latter are not opposed to mining per se, but only to the liberalized, export-oriented mining currently being pushed by Mining Act of 1995. This would not be changed by Aquinos upcoming executive order.

The new mining policy that is anchored on increasing government revenues does not change the system of
the countrys mining industry that is dominated by the large foreign companies who plunder our rich natural resources and leave a ravaged environment and an impoverished people, Tolentino of Katribu Partylist said in a statement.

The proposed new mining policy of the DENR merely reinforces the liberalized and destructive character
of mining in our country allowed by the Philippine Mining Act of 1995. This new mining policy is only more of the same deceptive, destructive, wanton and plunderous mining industry that we now have, Tolentino added. Instead of pursuing a liberalized, export-oriented mining that a growing number of Filipinos are now opposing, the Aquino government is urged to promote a selective, regulated mining that is also focused on the countrys industrialization needs. Coupling the countrys mining thrust to a sound domestic industrialization plan, according to progressive groups, can also help correct the perceived wantonness of current mining operations.

Mining should be regulated in relation to what the Filipino people really need, in order to significantly
lessen its ecological impact, Quimpo of Kalikasan Partylist said. Their proposal stands in stark contrast to current liberalized mining policy, which opens a big part of the Philippines, sometimes entire islands and populated villages, to exploration and diggings of mining companies.

Worse, large-scale mining is being promoted despite the opposition of local governments and
communities, Quimpo said. Aquinos proposed EO does not change the fact that the indigenous people and mining-affected communities are always at the losing end, said Kakay Tolentino of Katribu Partylist. She belied government claims that the indigenous people will benefit from the new mining policy. She recalled how liberalized mining devastated our sacred lands, sown division and disunity among our tribes and worsened our poverty. For Katribu, Aquinos new EO is just a poor attempt to pacify and deceive the growing anti-mining sentiments of various sectors and the indigenous peoples asserting their priority right over their ancestral lands. Tolentino reiterated that what is needed is a new mining policy that will re-orient and nationalize of the current mining industry. Instead of pushing for an EO that only tries to patch up some of the problems brought by Mining Act of 1995, Pres. Aquino should certify as urgent House Bill (HB) 4315 or the Peoples Mining Bill which tackles the issues of environmental protection, domestic industrialization and development for the people in a coherent way, Quimpo said.

HB 4315, filed in Congress last March 2011 by Reps. Teddy Casino, Raymond Palatino, and other legislators, had been consolidated with other mining bills. It is currently being discussed at the House Committee on Natural Resources.

InterAksyon.com The online news portal of TV5 Environment and Natural Resources Secretary Ramon Paje recently commented on the new mining executive order expected to be signed by President Aquino. In a statement to the press, Paje said that the new policy would reiterate the "primacy of national law" over anti-mining ordinances. Paje added that the ordinances would remain until rendered illegal by a "national government agency." Paje's statements echo those made by DILG Secretary Jesse Robredo, which were made in 2010. Robredo made similar statements in response to South Cotabato's resistance to mining. He opined that the province did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method. In a Memorandum Circular dated November 9, 2010, Robredo directed the provincial government of South Cotabato to review its Environmental Code. According to the Memorandum Circular, "[i]n view thereof, you are hereby enjoined to cause the immediate suspension of the implementation of said ordinance pending its review." Secretaries Paje and Robredo make statements that are arguably inconsistent with law. There is no law that prevents local governments from imposing additional strictures to safeguard the environment so long as it does not contradict an express provision of law. The Mining Act of 1995 does not prevent local governments from banning open-pit mining or from adopting measures that protect the environment. The efforts of South Cotabato to ban open-pit mining may be justified as police power measures under the Local Government Code. It is true that local ordinances must be consistent with the Constitution and national laws, but if a course of action is not prohibited by a national law it can certainly be adopted by an ordinance. Local governments are allowed to add requirements before businesses otherwise satisfying national laws can operate at the local level. InNewsound Broadcasting Network Inc. v. Dy (G.R. Nos. 170270 & 179411, April 2, 2009.), the Supreme Court held that: Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses. In another case, the Supreme Court recognized the power of local government units to prevent the operation of drug stores authorized by the Food and Drug Administration to operate. In that case (Gordon v. Verdiano II, G.R. No. L55230, November 8, 1988.), the Court held that (then) Mayor Richard Gordon could not disallow the operation of a drugstore after it was allowed to operate by the FDA. "However," the Court continued, "it was competent for the petitioner (Gordon) to suspend Mayor's Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit." In other words, while the applicant has complied with the pertinent national laws and policies,

this fact alone will not signify compliance with the particular conditions laid down by the local authorities like zoning, building, health, sanitation, and safety regulations, and other municipal ordinances enacted under the general welfare clause. This compliance still has to be ascertained by the mayor if the permit is to be issued by his office. Should he find that the local requirements have not been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to grant the permit sought. What is more curious is that both Cabinet secretaries refer to the executive power to declare these ordinances illegal. The President does not have the power of control over local government officials, only the power of supervision. Supervision means overseeing the power or authority of an officer to see that subordinate officers perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.). The President's authority is limited to seeing to it that rules are followed and laws are faithfully executed. "The President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules." (The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010). Robredo's actions and Paje's statement suggest that the President has the power to declare ordinances unconstitutional. The President cannot declare ordinances as unconstitutional as that power is reserved by the Constitution to the courts. If Paje's statements are accurate, the new mining policy may face serious challenges in our courts.