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Primer on Local Environmental Governance Abridged Handbook on Local Environmental Governance Benjie Zabala Mariquit Melgar

A companion piece for A Handbook on Local Environmental Governance by Dante B. Gatmaytan


Philippine Copyright Š 2014 by Bantay Kita, Inc., Benjie Zabala and Mariquit Melgar.

No part of this book may be reproduced in any form, or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the author and the publisher, except by a reviewer who may quote brief passages in a review.

Published by Bantay Kita, Inc. 1402 West Trade Center, 132 West Avenue, Brgy. Phil-Am, Quezon City


Table of Contents

1

CHAPTER 1 THE LEGAL FRAMEWORK OF EXTRACTIVE INDUSTRIES

3

THE IMPORTANCE OF THE LEGAL FRAMEWORK IN EXTRACTIVE INDUSTRIES

3

Mining and Development

4

Impact of Mining

5

CHAPTER 2 THE LEGAL FRAMEWORK FOR NATURAL RESOURCES

7

RULES THAT GOVERN THE MANAGEMENT OF NATURAL RESOURCES

7

What is the Regalian Doctrine?

10

What is the Cariño Doctrine?

12

CHAPTER 3 LOCAL AUTONOMY

21

CHAPTER 4 THE HIERARCHY OF ENVIRONMENTAL LAWS

23

LAWS USED IN ADDRESSING ENVIRONMENTAL CONCERNS

26

THE CONSTITUTION, NATIONAL, AND ENVIRONMENTAL LAWS APPLICABLE TO MINING

30

INTERNATIONAL ENVIRONMENTAL LAWS

33

CHAPTER 5 LAWS THAT IMPLICATE MINING

35

THE MINING ACT OF 1995

60

EXECUTIVE ORDER NO. 79

65

THE EXTRACTIVE INDUSTRIES TRANSPARENCY INITIATIVE

66

THE INDIGENOUS PEOPLES’ RIGHTS ACT (IPRA)

71

PEOPLE’S SMALL-SCALE MINING ACT


74

THE LOCAL GOVERNMENT CODE

82

OTHER PROVISIONS IN THE LGC ADDRESSING ENVIRONMENTAL AND SOCIAL TRAUMA CAUSED BY MINING

88

OTHER LAWS

93

CHAPTER 6 REMEDIES UNDER OTHER ENVIRONMENTAL LAWS

98

CHAPTER 7 HIGHLIGHTS OF THE CONCLUSIONS ON THE HANDBOOK ON LOCAL ENVIRONMENTAL GOVERNANCE

100

CHAPTER 8 NOTES ON RECENT JURISPRUDENCE


Chapter 1 THE LEGAL FRAMEWORK OF EXTRACTIVE INDUSTRIES


The Philippines’ untapped mineral is estimated to be worth 840 billion U.S. dollars. Photo courtesy of Beverly Besmanos.

2 Primer on Local Environmental Governance: Abridged Handbook


THE IMPORTANCE OF THE LEGAL FRAMEWORK IN EXTRACTIVE INDUSTRIES Why is it important for us, especially those engaged in local governance, to know more about the legal framework covering extractive industries like mining?

The Philippines’ untapped mineral is estimated to be worth 840 billion U.S. dollars. Our metallic and non-metallic mineral reserves estimates include: ◉◉

◉◉

◉◉

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7 billion metric tons metallic reserves •

Copper (72%)

Nickel (16%)

Others (12%)

50 billion metric tons non-metallic reserves •

Limestone (39%)

Marble (29%)

Others (32%)

Other minerals found in the Philippines: gold, chromate, silver, coal, sulfur, clay, limestone, silica, phosphate, others.

Mining and Development •

While this may be the case, from 20% share of the country’s total exports in the 1980s, the mining sector share has recently slid down to 5%.

In order to revive the mining industry, the Philippine Congress enacted The Mining Act of 1995 providing generous terms for claim ownership by foreign investment companies in the Philippines and improving certaintay and predictability in the permitting process necessary to attract foreign investment.

This drive however ran into problems with the enactment of the Indigenous Peoples’ Right Act, which recognizes the indigenous peoples’ ownership of their ancestral domains and prevented the Philippine government from awarding mining claims to foreign mining companies within the ancestral domains. The Legal Framework of Extractive Industries 3


2

Impact of Mining •

Mining is not a mere industry in the Philippines, it generates jobs and income for the country but is also at the center of long standing conflict between the extractive industry and the communities who either occupy the lands or depend on the minerals themselves. This has led to, as in the past, losses, diseases, and in several cases, death.

Some significant and recent mining-related cases include:

◉◉

2 million metric tons of waste dumped by the Marcopper mine into the Boac River in Marinduque, considered the worst mining disaster in terms of toxicity (1996)

◉◉

Anti-Mining Radio Commentator Shot Dead in Palawan (2011)

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Anti-Mining Activist, Kin Killed in Nueva Vizcaya (2012)

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Wife and 2 Children of Tribal Anti-Mining Activist Killed by Government Forces (2012)

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20 million metric tons of sediments spilt into water channels from the Philex Mine in Itogon, Benguet, the biggest mining disaster in the Philippines (2012)

◉◉

Open pit mine operated by Semirara Mining Corporation in Antique collapsed after a landslide leaving 4 people dead and 6 remained missing (2013)

Given these, to minimize conflict and to protect human life and the environment, stakeholders – indigenous peoples, community members, national and local government officials, mining companies need to negotiate laws that apply to the mining industry.

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Chapter 2 THE LEGAL FRAMEWORK OF EXTRACTIVE INDUSTRIES


Forested section of a mining site. Photo courtesy of Beverly Besmanos.

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Rules that Govern the Management of Natural Resources 1. The Regalian Doctrine All natural resources, as a rule, are owned by the State 2. Of these, only public agricultural lands may be owned by individuals 3. If land registration applicants can show that they have been in possession of the land since time immemorial, they can have it registered. The land was never public land. This is also known as the Cariño Doctrine.

1

What is the Regalian Doctrine? •

The Regalian Doctrine provides for the State ownership of natural resources.

The basis of the Regalian Doctrine is found in the 1937 and 1973 Constitutions and the 1987 Constitution, which adopted that “all lands of the public domain as well as natural resources enumerated in the Philippine Constitution belong to the State.”

1.1 Under the Regalian Doctrine can a person own mineral resources? •

The State owns the mineral resources of the country.

No person can own the mineral resources.

Mining companies cannot own these resources.

However, mining companies can enter into agreement with the government to provide service in extracting these resources and get a share therefrom as payment for their service.

The Legal Framework for Natural Resources 7


1.2 Is the Regalian Doctrine absolute? •

The Regalian Doctrine is not absolute. It does not mean that there can be no private rights over land.

It provides that public lands, which are not reclassified or released as alienable agricultural land or alienated to a private person by the State, remain part of the inalienable public domain. Inversely stated, public lands must be reclassified or released as alienable land or alienated to a private person by the State for it not to be a part of the inalienable public domain.

1.3 Are there limitations for this? Yes. •

Applicants for land registration must establish that the land is alienable or disposable.

Only agricultural lands may be alienated or owned.

All lands not appearing to be private are presumed to belong to the State – public lands not shown to have been reclassified, or released as alienable agricultural land or alienated to a private person by the State, remain part of the inalienable public domain.

Mineral and forest lands are not subject to private ownership unless they are first reclassified as agricultural lands and so released for alienation. Without such classification, the land remains as unclassified land until released and rendered open to disposition.

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1.4 What are the policies governing the country’s natural resources? Who is mandated to implement the same? •

The Administrative Code of 1987 provides that, ■■

The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (Section 1,1)

■■

The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. (Section 1,2)

The implementation of the above policies over natural resources is given to the Department of Environment and Natural Resources. By virtue of the Administrative Code of 1987, the DENR is mandated to be, ■■

Primarily responsible for the implementation of the foregoing policy. (Section 2,1)

■■

Subject to law and higher authority, be in charge of carrying out the State’s constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country’s natural resources. (Section 2,2)

However, the 1987 Constitution in an attempt to address the marginalization of the indigenous peoples provided for the rights of IPs as over their Ancestral Domain.

The Legal Framework for Natural Resources

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2

The Constitution provides that, ■■

The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. (Article XII, Section V)

■■

The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. (Article XII, Section VI)

What is the Cariño Doctrine? •

Cariño Doctrine is based on the decision made by the US Supreme Court exercising appellate jurisdiction over the Philippine Supreme Court during the American Period, which recognized private ownership of land in Benguet based on “time immemorial possession” by the claimant Cariño who is an Igorot.

The common misconception that with the adoption of Regalian Doctrine in the Constitution there can be no recognition of ancestral domain of ancestral domain rights under Philippine law. This misconception arise from the misunderstanding that ancestral domains are part of the public domain.

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2.1 Are Ancestral Domains part of the Public Domain? •

In the Cariño Case, the US Supreme Court concluded that ancestral domains are not part of public domains.

The United States could not have meant to regard as “public land” what the Igorots, “by native custom and by long association—one of the profoundest factors in human thought—regarded as their own.” The land, therefore, was private and Cariño was well within his rights to have it registered in his name.

As such, under Philippine law, ancestral domains are private lands.

2.2 Effects of the Cariño Doctrine •

The Cariño Doctrine was adopted by the Indigenous People’s Rights Act (IPRA) and upheld by the Supreme Court.

With the recognition of private rights over ancestral domains or lands held since time immemorial, large-scale displacement, whether by force or under some legal pretext, can be addressed.

In the same way, there is no legal impediment to recognizing alternative modes or enacting new laws that can restore these rights to those who were displaced, i.e. in the case of negotiating peace with the MILF.

The Legal Framework for Natural Resources 11


Chapter 3 LOCAL AUTONOMY


A teenager involved in local mining activities at an early age. Photo courtesy of Beverly Besmanos.

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1

What is the State policy with regard to local autonomy?

The Constitution of the Philippines recognizes the importance of local governments. It provides as a policy that “the State shall guarantee and promote the autonomy of the local government units -- especially the barangays -- to ensure their fullest development as self-reliant communities.”

2

What is local autonomy?

Local autonomy is the means by which local governments become self-reliant partners in the attainment of national goals. The State will ensure local autonomy by establishing a local government structure that provides more power, authority, responsibility, and resources to local government units.

Local governments are territorial and political subdivisions created by law – provinces, cities, municipalities, barangays and autonomous regions and exercises local autonomy.

Local government units have the power to generate and use resources: ◉◉

Establish an organization that shall be responsible for the efficient and effective implementation of their development plans, programs, objectives and priorities

◉◉

To create their own sources of revenue

◉◉

To levy taxes, fees and charges which shall accrue exclusively to their own use and disposition and which shall be retained by them

◉◉

To have a just share in the national taxes which shall be automatically and directly released to them without need of any further action

◉◉

To have an equitable share in the proceeds from the utilization and development of the national wealth and resources with their respective territorial jurisdictions

◉◉

The creation, division, abolition and merger of local government units are established on the basis of population, income, and land area.

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3

What are the limitations of local autonomy? •

4

Local autonomy does not make local government units sovereign. Exercise of local autonomy remains subject to a) general supervision by the President; and b) power of control by Congress.

What are Autonomous Regions? •

The Constitution sought the creation of autonomous region in areas (Muslim Mindanao and in the Cordilleras) sharing common and distinctive historical and cultural heritage, economic and social structures.

These autonomous regions were granted such powers by the Constitution as follows; ◉◉

◉◉

The legislative powers of the autonomous regions include: ■■

Administrative organization;

■■

Creation of sources of revenues;

■■

Ancestral domain and natural resources;

■■

Personal, family, and property relations;

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Regional, urban and rural planning development;

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Economic, social, and tourism development;

■■

Educational policies;

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Preservation and development of the cultural heritage, and;

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Such other matters as may be authorized by law for the promotion of the general welfare of the people in the region.

The preservation of peace and order in the autonomous regions shall be the responsibility of the local police agencies, which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.

Local Autonomy 15


5

What are the principles behind local autonomy? •

6

The principle of local autonomy and decentralization under the Local Government Code is simply decentralization.

What is decentralization? •

Decentralization is the transfer of authority and responsibility and the allocation of powers and functions from the center or top level of government to regional bodies or special purpose authorities, or from the national to the sub national levels of government.

Decentralization is a strategy used by the government towards democratizing the political system and accelerating the attainment of sustainable development. The National Government assumes that through decentralization, development would be more responsive to the needs of the people and would create opportunities in the regions, promote employment and economic activities, as well as strengthen people’s participation in the affairs of the government.

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8

What are the forms of decentralization? •

Decentralization comes in two forms—deconcentration and devolution.

Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. This is also referred to as administrative decentralization.

Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units. Devolution is indispensable to decentralization. Devolution is a prominent feature of the Code and is premised on the theory that local governments may assess and provide the needs of their constituents better than the national government can. Section 5 of the Code provides in part that “any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit.

What are some of the key manifestations of local autonomy in terms of resources? 8.1 Consultations •

The Local Government Code emphasized the importance of consultation mechanisms in governance as stated in Sec. 2 Declaration of Policy: (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.

Local Autonomy 17


(b) It is also the policy of the State to ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative, and referendum. (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

8.2 Prior Consultation and Prior Approval •

The Local Government Code emphasizes the duty of every national government agency involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, non-governmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

•

The Local Government also Code establishes the duties of national government agencies in the maintenance of ecological balance, and requires them to secure prior public consultation and approval of local government units for the projects that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of nonrenewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented.

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Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal.

8.3 Share In The National Wealth •

Aside from the internal revenue allotment (IRA), local government units shall have an equitable share in the proceeds derived from the utilization and development of the national wealth within their respective areas, including sharing the same with the inhabitants by way of direct benefits.

Forty percent (40%) of the gross collection derived by the national government from the preceding fiscal year from mining taxes, royalties, forestry and fishery charges, and such other taxes, fees, or charges, including related surcharges, interests, or fines, and from its share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth within their territorial jurisdiction.

LGUs are also entitled a share on the proceeds derived by a government agency or government-owned or controlled corporation engaged in the utilization and development of the national wealth. The LGU’s share shall be 1 percent of the gross sales or receipts of the preceding calendar year or 40 percent of the mining taxes, royalties, forestry and fishery charges and such other taxes, fees or charges, including related surcharges, interests, or fines the government agency or GOCC would have paid if it were not otherwise exempt, whichever is higher. The allocation for such shares of the LGUs is determined as such: 20 percent for province, 45 percent for component city/municipality, and 35 percent for barangays.

8.4 Muslim Autonomy •

The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of our government to their aspirations.

Local Autonomy 19


The creation of the Autonomous Regions was meant to accommodate the demands of Muslims for meaningful autonomy in the governance of their affairs. A similar remedy is available for the Cordillera Region where similar sentiments for autonomy exist but previous attempts to ratify the creation of an autonomous region in that region failed.

The Muslim’s struggle for self-determination dates as far back as the Spanish conquest in the Philippines.

Muslim resentment turned into organized resistance after it was discovered that the military had killed dozens of Muslim trainees who were being prepared for an invasion of Sabah, Malaysia. Muslims began to take up arms and the Moro National Liberation Front was formed to establish a Muslim state. The escalating hostilities were even used by Ferdinand Marcos as one of the reasons in imposing martial law in 1972.

The Tripoli Agreement of 1976 is the very first concrete and tangible attempt of the Government of the Philippines to bring peace in Mindanao after the armed conflict therein escalated in the 1970’s. However, this Agreement did not take into effect and was condemned by the Moro National Liberation Front (MNLF) led by Nur Misuari.

From late 70s to early 80s, a split in the MNLF ensued giving birth to the Moro Islamic Liberation Front (MILF) led by Hashim Salamat.

Pursuant to the mandate of the 1987 Constitution, Congress subsequently passed Republic Act 6734, An Act Providing For An Organic Act For The Autonomous Region In Muslim Mindanao in 1989 and Republic Act 9054 (amending RA 6734) in 2001 as part of the terms of Final Peace Agreement (FPA) signed between the MNLF and the Ramos Administration in 1996, these proved erroneous illusory. The government strategy of granting regional autonomy fared badly – it has not been inclusive enough, and has inadequate financial support.

In 2001, the GRP-MILF conducted exploratory talks facilitated by Malaysia focusing on security, rehabilitation, and ancestral domain. In 2008, the Memorandum of Agreement on Ancestral Domain (MOAAD) was initiated. It was declared unconstitutional by the Supreme Court on the same year as questioned by local governments.

Recently, the Government has signed the Comprehensive Agreement on the Bangsamoro with the MILF, which has in its annexes provisions on revenue generation, wealth sharing, Bangsamoro waters, among others. These agreements shall become the basis of the Bangsamoro Basic Law, which shall govern the Bangsamoro.

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Chapter 4 THE HIERARCHY OF ENVIRONMENTAL LAWS


Trucks at an active mine, in spite of a suspension order over activities at the site. Photo courtesy of Chito Trillanes.

22 Primer on Local Environmental Governance: Abridged Handbook


I. Laws Used in Addressing Environmental Concerns 1

What are these laws that govern environmental concerns? 1.1 The Constitution •

The Constitution is the supreme and fundamental law to which all other laws must conform.

1.2 Statutes enacted by Congress (now called Republic Acts) •

It is the power of the Congress to enact laws but the “courts have the inherent authority to determine whether a statute enacted by the legislature [exceeds] the limit[s] [provided] by the fundamental law – the Constitution. [In such cases,] courts will strike down such laws as unconstitutional.

1.3 Implementing Rules and Regulations promulgated by Administrative Agencies •

Rules and regulations issued by administrative agencies like the DENR are laws.

A “rule or regulation” is the part of the administrative process that resembles a legislature’s enactment of a statute. In the Philippines, administrative authorities are vested with the power to promulgate rules and regulations to implement a given statute and to effectuate its policies and when promulgated, such administrative rules or regulations become laws.

1.4 Local Government Ordinances •

Under the Local Government Code of 1991, local governments may enact ordinances to protect the environment.

The power of local government units to legislate and enact ordinances and resolutions is delegated by Congress, subject to the limitation that ordinances cannot contravene a statute Congress has enacted.

The Hierarchy of Environmental Laws 23


2

What does the hierarchy of environmental laws means?

2.1 The Constitution and the Laws Enacted by Congress Governs Rules and Regulations

Statutory provisions or provisions of the governing law, control the rules and regulations that may be issued pursuant thereto. Such rules and regulations must be consistent with and must not defeat the purpose of the governing law.

In the hierarchy of laws, and regulations cannot be inconsistent with either the Constitution or the enactments of Congress. Administrative regulations are intended to supplement the law and cannot prevail over the law itself.

The administrative agency, in exercising the power to promulgate implementing regulations, cannot contradict the law from which the regulations derive their very existence. The courts, for their part, interpret the administrative regulations in harmony with the law that authorized them in the first place and avoid as much as possible any construction that would annul them as an invalid exercise of legislative power.

2.2 In Case of Discrepancy Between the Law and the Rules, The Law Prevails

Rules and regulations cannot supersede statutes, not only in what they command but also in what they omit. In legal norms, rules and standards definitely occupy an inferior status. Administrative regulations must be in harmony with the provisions of the law. In case of discrepancy between the basic law and an implementing rule or regulation, the former prevails.

If an implementing rule or regulation has a provision that was not expressly stated or contained in the statute, it does not necessarily contradict the statute. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law.

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2.3 The Courts Interpret Administrative Regulations •

3

Implementing rules are not of the same caliber as an enactment of Congress. While rules and regulation have the force and effect of law and are entitled to great respect, it is the courts that interpret administrative regulations.

What is the role of the Supreme Court in the hierarchy of environmental laws? •

The judiciary settles controversies arising from the implementation of these laws. It exercises judicial power, which is defined as "the right to determine actual controversies arising between adverse litigants. "

Courts merely interpret the laws; they do not enact them. Its sole function is to apply or interpret the laws, particularly where there are gaps or ambiguities.

4

What becomes of the SC decisions? •

Supreme Court decisions also become part of the law of the land. By express provision of law, "[j]udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

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II. The Constitution, National, and Environmental Laws Applicable to Mining 1

What national laws govern matters with regard to the environment? 1.1 Promulgated During Marcos Era •

PD 1151 or the Philippine Environment Policy laid the foundation of environment legislation. It is the national blueprint for environmental protection.

Philippine Environment Code implemented during this period contains general principles dealing with the major environmental and natural resource concerns of the Philippines.

As these laws are very broad and contain few substantive provisions, at best, they established the basic framework for laws on the environment in the Philippines.

PD 1151 required Environmental Impact Statement (EIS), which was expanded by Presidential Decree No. 1586, or the Environmental Impact Statement System (EISS), is almost a complete reproduction of the U.S. National Environmental Policy Act.

The system authorizes the President of the Philippines to proclaim certain projects or areas environmentally critical, and prohibits these projects, or operations in such areas, without the prior issuance of an Environmental Compliance Certificate (ECC) from the President or his authorized representative.

The current implementing rules and regulations for the EISS is found in DAO 2003-30.

Environmentally critical projects and areas are currently listed under Proclamation No. 2146, Series of 1981 and Presidential Proclamation No. 803, Series of 1996.

During his time, Marcos also promulgated the Revised Forestry Code of 1975 and the Pollution Control Decree of 1976, among other statutes.

1.2 Promulgated During the Presidency of Corazon Aquino •

The Administrative Code of 1987 that laid out a blueprint for the exploitation of resources.

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The Code mandated the development of the country’s resources for the Filipino people. It also mandated the judicious use of these resources so that they would be accessible to all segments of present and future generations.

In part, the Code provides that

“[t]he State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.” (Sec.1,1)

During this period, the framers of the 1987 Constitution incorporated environmental provisions which provides that “[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

1.3 Enacted During the Ramos Presidency •

R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, is the primary law which now governs mining.

It was a response to the problems of the struggling mining industry in the 70s through the early 90s, creating a more favorable climate for investments (e.g., by increasing the mode of entry options, enhanced incentives, etc.). It sought to boost an industry seen as a potential driver of economic growth and development.

Although not bereft of weaknesses and gaps, the Mining Act is a far cry from P.D. No. 463, the national mining policy that preceded it. The quantity and quality of the Act’s environment-related provisions shows an effort, at least on paper, to substantially address the harmful impacts of mining operations. The Hierarchy of Environmental Laws 27


2

3

Together with its recently issued Consolidated Implementing Rules and Regulations, DENR Administrative Order (DAO) No. 2010-21, the Act provides concrete measures to address the negative environmental effects of mining from the inception of operations and even past its termination.

The Act and the IRR also require that mining activities be conducted within the purview of a comprehensive environmental plan.

What is the Mining Act of 1995? •

A crucial point in understanding these provisions is that they must be implemented with a consideration of all the environmental impacts of mining operations.

The application of any provision on its own, detached from a broader view of how it ties in with other measures designed to prevent, minimize, or alleviate environmental degradation that may result from mining, is akin to paying attention only to individual components of an ecosystem in danger of degradation. Attention to any one component may achieve specific positive results, but failure to consider the ecosystem as a whole will eventually lead to its collapse.

The requirements of the Mining Act must be taken in the context of the entire environmental legal system.

Implementation of the Act alone, especially if done for mere compliance, is likely to produce other environmental problems in the long term. A narrow view of the law cannot become a foundation for sustainable mining.

This is why it is important for mining practitioners and advocates, to gain an understanding of environmental laws, particularly those directed at natural resource protection and pollution control. These are the policies that primarily address the “environmental externalities” of mining activities, and may find application at the same time as the Mining Act, or when the Act falls short of the needs of environmental protection.

What is the Current (Aquino) Administration’s Policy on Mining? •

The current mining policy is embodied in Executive Order No. 79 (EO 79).

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3.1 What are some of the concerns raised against EO 79? •

It is viewed as a tool through which the national government can access natural resources of local governments over the latter’s objections.

Its language is not about environment but revenues and sharing.

The Indigenous Peoples are sidelined in EO 79.

EO 79 also provides that the moratorium does not include the grant of Exploration Permits for mining companies and small-scale mining applications.

It is at the same time riddled with constitutional issues; ◉◉

The President’s policy amounts to control, and not mere supervision, of local governments and, therefore, violates Constitution’s provision which provides that “[t] he President of the Philippines shall exercise general super-vision over local governments.”

◉◉

The President’s Order usurps legislative functions as well. It is amending national laws by making certain types of ordinances—those that hamper the mining industry— illegal. It directs local governments to abide by every decision or policy made by the national government. This amounts to legislation because there simply is no law that requires local governments to follow the national government blindly on mining.

◉◉

The President, through the Executive Order, also usurps judicial functions—particularly the power to decide the constitutionality of laws. This violates the provision of the Constitution which gives the Supreme Court the power to “[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts” in all cases in which the constitutionality or validity of any ordinance is in question.

◉◉

Altogether, the Order violates the state policy mandating that the State shall ensure the autonomy of local governments.

The Hierarchy of Environmental Laws 29


III. International Environmental Laws

1

2

3

How are international environmental laws applied in the Philippines? •

International agreements to which the Philippines is a party are part of the law of the land.

They are thus subject to implementation with the same force and effect as domestic laws, and the Philippines is bound to perform the obligations imposed by these treaties.

Are there international laws that govern mining? •

Mining has been the subject of few international standards.

Like energy, mining is regulated by international law only to the extent that it is incidentally addressed by environmental impact assessments and rules that address the protection of flora and fauna, the disposal of waste, and air pollution.

What are some international agreements which may find application in the Philippines? The following international instruments, to which the Philippines has adhered, may have particular application to the mining industry: •

The Stockholm Declaration is the product of the United Nations (UN) Conference on the Human Environment held on June 5-16, 1972. It was the first UN conference held specifically to consider problems in the environment, adopting a Declaration and Action Plan.

The Rio Declaration is one of the outputs of the UN Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, to elaborate strategies and measures to halt and reverse the effects of environmental degradation in the context of strengthened national and international efforts to promote sustainable and environmentally sound development in all countries.

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◉◉

It comprises 27 principles that set out the basis on which states and people are to cooperate and further develop international law in the field of sustainable development. The Rio Declaration provides a benchmark to measure future developments, provides a basis for defining sustainable development and its application, and provides a framework for development of environmental law at the national and international level to guide decision-making.

The UN Framework Convention on Climate Change (UNFCCC) establishes a framework for elaborating measures to address the causes of climate change. It is an important example of the principles of common but differentiated responsibilities and precautionary action under the Rio Declaration, of the special needs and circumstances of developing countries, and of sustainable development and international trade.

The Kyoto Protocol was adopted in December, 1997 after it was established that States’ commitments under the UNFCCC were not adequate, and is regarded as a tool for the implementation and enforcement of concrete goals in accordance with the aspirational objectives set forth in the UNFCCC. ◉◉

The major achievement of the Protocol was the commitment of developed countries to achieve quantified emissions reduction targets within a timetable. It also proposed to allow developed countries, otherwise referred to as Annex 1 states, to meet their commitments by purchasing or acquiring credits representing greenhouse gas reductions in other countries. The Clean Development Mechanism further established a means for Annex 1 parties to gain emission reductions credits to assist them in achieving compliance with their quantified emissions limitation and reduction commitments.

The UNFCCC and the Kyoto Protocol have a particular implication on mining because of the potential contribution of mineral activities to climate change. The International Council of Mining and Metals has identified climate change and the impact of greenhouse gases (GHG) “as ‘the most important [environmental] issue, without a doubt’ to face the mining industry.” The mining industry faces such climate-related challenges as “compliance with local regulatory regimes restricting carbon emissions . . . supply chain risks (higher costs due to the activities of suppliers); product and technology risks (being left behind by The Hierarchy of Environmental Laws 31


changing technology standards); reputational risks related to sustainability concerns; physical risks to operations due to extreme weather and litigation risks.”

Thus, the Philippines’ commitments under the UNFCCC and the Kyoto Protocol, now embodied in the Republic Act No. 9729, must be considered integral components of the national policy on mining and their objectives incorporated in the environmental programs of mining contractors and permit holders.

The Convention on Biological Diversity (CBD) aims at the conservation and sustainable use of biological diversity, the fair and equitable sharing of benefits from its use, and the regulation of biotechnology. ◉◉

A significant provision of the CBD which relates to the mining industry is found in Article 3 on Principle which calls on member States, such as the Philippines, to ensure that use and exploitation of natural resources carries with it a responsibility to ensure the protection of the environment and the preservation of biological diversity.

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Chapter 5 LAWS THAT IMPLICATE MINING


Overhead view of the Panian coal mine at Semirara Island, Antique Province. Public domain photo courtesy of NASA. Extracted from Wikimedia Commons.

34 Primer on Local Environmental Governance: Abridged Handbook


I. National Laws that Implicate Mining: The Mining Act of 1995

The Mining Act of 1995 is not purely a revenue raising measure. It contains provisions that address environmental and social issues implicated by mining.

It reiterates the Constitutional policies on State ownership of resources, to wit; “All mineral resources in public and private lands within the territory and exclusive economic zone of the Republic of the Philippines are owned by the State. It shall be the responsibility of the State to promote their rational exploration, development, utilization and conservation through the combined efforts of government and the private sector in order to enhance national growth in a way that effectively safeguards the environment and protect the rights of affected communities.”

It recognizes that the State does not always have the capacity to develop and utilize these minerals, and it may undertake exploration, development, utilization, and processing on its own or by entering into mineral agreements with contractors in the form of Financial and Technical Assistance Agreements (FTAAs), Mineral Production Sharing Agreements (MPSAs), or Joint Venture Agreements (JVAs), among others.

Laws that Implicate Mining 35


1

Who are the lead agencies under the Mining Act? What are their powers and mandate? Matrix of Agencies/Bodies and their Powers and Mandate under the Mining Act of 1995 and Related Laws Agency

Department of Environment and Natural Resources (DENR)

Mines Regional Office

Powers and Mandate

o

The DENR has the prime responsibility of insuring that ‘mining permits, agreements and leases be managed responsibly, so as to promote the general welfare and sustainable development objectives and responsibilities.’

o

The Mines Regional Office is within the DENR, its Director is given the exclusive jurisdiction over safety inspection of all mining operations. To enforce compliance with any safety and anti – pollution law and regulation, the Mines Regional Office Director may issue such orders in consultation with the Environmental Management Bureau (EMB) and/or the Environmental Management and Protected Areas Services (EMPAS) of the DENR. The Director of Mines Regional Office has the authority to summarily suspend operations if the prohibited practice poses imminent danger to life or property, without need of a hearing or the filing of a bond.

o

o

o Panel of Arbitrators under the Mines and Geosciences Bureau (MGB)

Pollution Adjudication Board (PAB)

o

o o

The Panel is given the exclusive and original jurisdiction to resolve disputes involving rights to mining areas, mineral agreements, surface owners, occupants and claimholders/concessionaires. Any decision or order of the Panel may be appealed within fifteen days from receipt of the decision to the Mines Adjudication Board, which must be decided upon within thirty days from submission. Should no appeal be made, the Chairman of the Panel shall issue a writ of execution. Although the findings of fact of the Board shall be conclusive and binding on the parties, a petition for review by certiorari may be filed with the Supreme Court within thirty (30) days from the receipt of the order or decision of the Board.

Under the Reorganization Act of the DENR, the PAB has the “broad powers to adjudicate pollution cases in general.” PAB assumed the adjudicatory functions of the National Pollution Control Commission enumerated in the National Pollution Control Decree of 1976.

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o o o

o o Local Government Units

o

Recognizing that the DENR cannot possibly regulate and monitor all mining operations on its own, the participation of the local government units (LGUs) is greatly needed and is ensured by the law. The Local Government Code (LGC) emphasizes the importance of the role of the LGUs. The LGC requires that national government agencies and government –owned or –controlled corporations (GOCCs) to consult with the LGUs concerned and explain its objectives, impacts on the community in terms of ecological balance, and measures to prevent or minimize its adverse effects when the project or program may cause ◉◉ pollution, ◉◉ climatic change, ◉◉ depletion of non-renewable resources, ◉◉ loss of crop land, rangeland, or forest cover, and ◉◉ extinction of animal or plant species Such project or program may not be implemented without prior consultation with the LGU and the community, and the prior approval of the concerned sanggunian. LGUs also have the authority to grant mining permits to small-scale miners and quarry operators, with the attendant duty to monitor their operations. The specific roles of LGUs in mining projects within their jurisdiction are as follows: ◉◉ Ensure public consultation and participation; ◉◉ Approve applications for small-scale mining in coordination with Bureau/Regional Office(s); ◉◉ Receive shares from the wealth generated by mineral resources; ◉◉ Facilitate community decision-making on social acceptability of the project; ◉◉ Participate as a member of the Multipartite Monitoring Team; ◉◉ Participate as a member of the Mine Rehabilitation Fund (MRF) Committee; ◉◉ Receive social infrastructure and community development projects for the host and neighboring communities; ◉◉ Mediate between ICCs and Contractor(s) as may be requested; ◉◉ Coordinate with the Department and Bureau in implementing the Act and IRR, except that in areas covered by the Southern Philippines Council for Peace and Development, Autonomous Region of Muslim Mindanao and future similar units, their appropriate offices shall coordinate with the Department and Bureau; and ◉◉ Perform other powers and functions under applicable laws, rules, and regulations.

Laws that Implicate Mining 37


2

What are the General Environmental Requirements provided in the Mining Act? • • •

Chapter XI of the Act is dedicated to “Safety and Environmental Protection.” It generally refers to safe and sanitary working conditions in mining areas, and to “waste-free and efficient mine development”. It is the declared policy of the DENR that mining permits, agreements and leases be managed responsibly, so as to promote the general welfare and sustainable development objectives and responsibilities. These include the required plans, programs, funds, and governance structures, among others.

2.1 What are DENR’s general welfare and sustainable development objectives relative to mining? • • • • • 3

Sustainable environmental conditions at every stage of mining operations; Progressive rehabilitation of all areas and sites affected by mining operations; Preservation of freshwater and seawater quality and natural marine habitats; Prevention of air and noise pollution; and Respect for sustainable management practices of ICCs and other communities

What mining rights and permits are issued? Who issues them? What are the requirements? How long will they be valid? In reading the following matrices, the following definition of terms should be noted: a. Bureau - Mines and Geosciences Bureau under the Department of Environment and Natural Resources b. Department - Department of Environment and Natural Resource c. Qualified Persons - any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake mineral resources development and duly registered in accordance with law at least sixty per cent of the capital of which is owned by citizens of the Philippines: Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit. d. Secretary - Secretary of the Department of Environment and Natural Resources

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Mining Rights and Permits Issued By the Government • • • •

Exploration Permit

• •

• • •

Mineral Agreements

The right to conduct exploration for all minerals in specified areas. The Bureau grants it to a qualified person. It shall only be for a period of two years, subject to annual review and relinquishment or renewal upon the recommendation of the Director of the Bureau. The permittee, as well as his heirs or successors–in–interest, shall be granted the right to enter, occupy and explore the area. However, if private or other parties are affected, there shall first be a discussion on the extent of the exercise of such right. Should there be a disagreement, a panel of arbitrators shall resolve the conflict. The permit may also be transferred or assigned to a qualified person subject to the approval of the Secretary upon the recommendation of the Director of the Bureau. The holder of a permit may file with the Bureau a declaration of mining project feasibility within the term of the permit which, if approved, shall entitle the holder to an exclusive right to undertake an exploration work to a mineral production sharing agreement or other mineral agreements or financial or technical assistance agreement on the area specified by its permit based on an approved work program The permittee must undertake an exploration work on the area specified by its permit based on an approved work program. Any expenditure in excess of the yearly budget of the approved work program may be carried forward and credited to the succeeding years covering the duration of the permit. Mineral agreement grants the contractor the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area. There are three different mineral agreements being granted by the Government. The rights and obligations under any mineral agreement may also be transferred or assigned subject to the prior approval of the Secretary. Such assignment or transfer shall be deemed automatically approved if not acted upon by the Secretary within thirty working days from official receipt thereof, unless patently unconstitutional or illegal Mineral agreements shall have a term not exceeding twenty-five years to start from the date of execution thereof, and renewable for another term not exceeding twenty-five years under the same terms and conditions thereof, without prejudice to charges mutually agreed upon by the parties. All these proposed mineral agreements shall be filed in the region where the areas of interest are located, except in mineral reservations which shall be filed with the Bureau.

Laws that Implicate Mining 39


• • Mineral Agreements

• •

• • Financial or Technical Assistance Agreement

Quarry Permits •

The proposed mineral agreement will be approved by the Secretary and copies submitted to the President. The contractor may be allowed to convert his agreement into any of the modes of mineral agreements or financial or technical assistance agreement covering the remaining period of the original agreement subject to the approval of the Secretary The contractors may also apply for the cancellation of the mineral agreement due to causes which, in the opinion of the contractor, make continued mining operations no longer feasible or viable. In case the applicant has been in the mining industry for any length of time, he should possess a satisfactory environmental track record as determined by the Bureau and in consultation with the EMB of the DENR.

A financial or technical assistance agreement shall have a term not exceeding twenty-five years to start from the execution thereof, renewable for not more than twenty-five years under such terms and conditions as may be provided by law. These financial or technical assistance agreement proposals shall be filed with the Bureau. It shall be negotiated by the DENR and executed and approved by the President upon recommendation of the Secretary. The agreement may be assigned or transferred, in whole or in part, to a qualified person subject to the prior approval of the President. The contractor is given the option to convert the financial or technical assistance agreement to a mineral agreement during the term of the agreement, if the economic viability of the contract area is found to be inadequate to justify large-scale mining operations upon approval of the Secretary of the DENR. However, the mineral agreement shall only be for the remaining period of the original agreement. The contractor can also withdraw from the agreement. Should he wish to do so, the contractor shall manifest his intention in writing to the Secretary, if in his judgment the mining project is no longer economically feasible after he has exerted reasonable diligence to remedy the cause or the situation. The Secretary may accept the withdrawal. Quarry permit is granted to allow any qualified person to extract materials (for building and construction materials such as marble, basalt, andesite, conglomerate, tuff, adobe, granite, gabbro, serpentine, inset filing materials, clay for ceramic tiles and building bricks, pumice, perlite and other similar materials) from privately-owned or public lands by quarrying from the ground. No quarry permit shall be granted on any area covered by a mineral agreement, or financial or technical assistance agreement.

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• • Quarry Permits

• • • •

Transport, Sale and Processing of Minerals Permits Auxiliary Mining Rights and Duties

4

It shall have a term of five years, renewable for five years but not to exceed a total term of twenty-five years. The application for a quarry permit is filed with the provincial/city mining regulatory board. The provincial governor shall grant the permit. The governor may also cancel the permit for violations of any terms and conditions, after the holder is given an opportunity to be heard in an investigation conducted for such purpose. For the application to be approved, the permittee has to pay quarry fee and excise taxes. There are several types of quarry permits issued by the Government.

Permits are issued for transport, sale, and processing of minerals.

Opportunity granted by the Act to enable the efficient operation of the permittees and contractors

What are the Different Mineral Agreements Granted by the Government?

Three Different Mineral Agreements Mineral Production Sharing Agreement

• Grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. • The contractor shall provide the financing, technology, management and personnel necessary for the implementation of this agreement.

Co-Production Agreement

• Agreement between the Government and the contractor wherein Government shall provide inputs to the mining operations other than the mineral resource

Joint Venture Agreement

• Agreement where a joint-venture company is organized by the Government and the contractor with both parties having equity shares. Aside from earnings in equity, the Government shall be entitled to a share in the gross output

Laws that Implicate Mining 41


5

What are the Types of Quarry Permits Issued by the Government? Types of Quarry Permits Commercial Sand and Gravel Permit

A permit granted by the provincial governor to extract and remove sand and gravel or other loose or unconsolidated materials which are used in their natural state.

Industrial Sand and Gravel Permit

A permit granted by the Bureau to extract and remove sand and gravel or other loose or unconsolidated materials which necessitate the use of mechanical processing.

Exclusive Sand and Gravel Permit

A permit granted by the provincial governor to to quarry and utilize sand and gravel or other loose or unconsolidated materials from public lands for his own use with no commercial disposition.

A permit granted to any government entity or instrumentality may be granted a gratuitous permit by the provincial governor to extract sand and gravel, quarry or loose unconsolidated materials needed in the construction of building and/or infrastructure for public use or other purposes

A permit granted by the provincial governor to any owner of land.

A permit granted by the provincial governor to extract and utilize loose unconsolidated guano and other organic fertilizer materials in any portion of a municipality where he has established domicile

A permit granted by the provincial governor to gather loose stones useful as gemstones in rivers and other locations

Government Gratuitous Permit Private Gratuitous Permit

Guano Permit

Gemstone Gathering Permit

6

What permits are granted relative to transport, sale, and processing of minerals?

Permits issued for transport, sale, and processing of minerals •

The permit specifies the origin and quantity of non-processes mineral ores or minerals to be transported.

Issued by the mines regional director who has jurisdiction over the area where the ores were extracted.

Mineral Processing Permit

Necessary to be able to process minerals.

Issued by the Secretary.

Trading of these mineral products

Register with the Department of Trade and Industry and be listed under the Mineral Trading Registration

Ore Transport Permit

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7

What are the auxiliary mining rights granted by the government? Auxiliary Mining Rights •

Granted to a contractor to enable him cut trees or timber within his mining area as may be necessary for his mining operations subject to forestry laws, rules and regulations.

The licensing requirements to be complied with may be found in P.D. No. 705 (Revised Forestry Code).

The Code provides that proper notice to the licensee and prior approval by the Forest Management Bureau (FMB) Director is needed for any location, prospecting, exploration, utilization or exploitation of mineral resources inside forest concessions.

Mineral reservations which are not the subject of mining operations or where operations have been suspended for more than five years shall be placed under forest management by the Bureau.

Mineral reservations where mining operations have been terminated due to the exhaustion of its minerals shall revert to the category of forest land, unless otherwise reserved for other purposes.

Land already covered by existing timber concessions, the volume and the manner of cutting and removing the timber shall be determined by the mines regional director upon consultation with the contractor, timber concessionaire/permittee and the Forest Management Bureau of the Department.

Should there be a disagreement between the contractor and timber concessionaire, the Secretary shall resolve it and his decision shall be final.

Granted upon approval of application with the appropriate government agency in accordance with existing water laws, rules and regulations.

Application must be submitted and approved in compliance with P.D. No. 1067 (Water Code). The permit is granted by the National Water Resources Board (NWRB).

The Code provides that prior permission from the NWRB and recommendation from the EMB is necessary before tailings from mining operations and sediments from placer mining shall be dumped into rivers and waterways

The right to possess and use explosives within a contractor/ permittee’s area as may be necessary for his mining operations shall be granted upon approval of an application with the appropriate government agency in accordance with existing laws, rules and regulations promulgated

Timber Rights

Water Rights

Right to Possess Explosives

Laws that Implicate Mining 43


Granted when mining areas are so situated that it is necessary to build, construct or install on the mining areas or lands owned, occupied or leased by other persons such infrastructure (as roads, railroads, mills, waste dump sites, tailings ponds, warehouses, staging or storage areas and port facilities, tramways, runways, airports, electric transmission, telephone or telegraph lines, dams and their normal flood and catchment areas, sites for water wells, ditches, canals, new river beds, pipelines, flumes, cuts, shafts, tunnels, or mills).

The contractor, upon payment of just compensation, shall be entitled to enter and occupy said mining areas or lands.

Holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein.

This is subject to the condition that there was prior notification and that such owner, occupant, or concessionaire as a consequence of and damage due to such operations shall be properly compensated which is guaranteed by posting a bond with the regional director based on the type of properties, the prevailing prices in and around the area where the mining operations are to be conducted, with surety or sureties satisfactory to the regional director.

Easement Rights

Entry into Private Lands and Concession Areas

8

What are the plans and programs required from mining operators? •

Mining considered as environmentally critical projects under P.P. No. 2146, therefore mining operators must undergo an Environmental Impact Assessment (EIA).

The system aims to ensure a rational balance between socio-economic development and environmental protection for the benefit of present and future generations.

This process involves evaluating and predicting the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressed to protect the environment and the community’s welfare.

The issuance of the Environmental Compliance Certificate (ECC) is based on this EIA.

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9

The ECC shall only be issued upon a satisfactory review by the DENR Secretary or concerned Regional Executive Director of the Environmental Impact Statement (EIS) submitted by the project proponent.

The ECC is required before any mineral activities are conducted beyond the explorations stage.

Contractor/permit holder must undertake before conducting its mining operations, under the Act and the IRR, must comply with the programs provided for, namely, the Environmental Work Program (EWP), the Environmental Protection and Enhancement Program (EPEP) and the Annual Environmental Protection and Enhancement Program (AEPEP).

How do you secure an environmental compliance certificate (ECC) for mining projects? Process of Securing ECC for Mining Projects Step 1

Step 2

The proponent consults with the Environmental Management Bureau (EMB)

EMB determines whether or not the proposed mine is an ECP or is located in an Environmentally Critical Area (ECA)

Not Situated in ECA The concerned DENR Regional Office facilitates the EIA

Step 3

Situated in ECA The main EMB Office facilitates the EIA

• EMB creates an Environmental Impact Assessment Review Committee (EIARC) to conduct a scoping exercise, including public hearings, to determine probable environmental impacts. •

Proponent prepares and submits its EIS to the EMB.

EMB is given one hundred twenty (120) days to review the EIS, during which it can conduct more public hearings. o EMB may make up to two (2) written requests to the project proponent for additional information during the first ninety (90) days of the 120-day period.

Step 4

o If the project proponent cannot comply with the request for information, the EMB or Regional Office makes a decision based on the information available. Step 5

Unless expressly rejected by the EMB or Regional Office, the EIS is deemed approved and the ECC is issued.

Laws that Implicate Mining 45


10

What are the programs required from contractor/permit holder prior to undertaking mining activities? Programs Required from Contractors/Permit Holders  The comprehensive and strategic environmental management plan to achieve the environmental management objective, criteria and commitments.  Required for those applying for explorations permits, mineral agreements and FTAAs with exploration activities.

Environmental Work Program (EWP)

 The EWP should provide a description of the expected and acceptable impacts as well as the environmental protection and enhancement strategies such applicant will practice in their management.  It should also include implementation schedules, system of environmental compliance guarantees, monitoring, reporting and cost provisions.  It must also provide for a statement of post – exploration land use potential for various types of disturbed land.  The EWP must be submitted to the Sangguniang Panlalawigan and a status report of such shall be submitted to the Bureau/ Regional Office within thirty (30) days from the end of six (6) months after the approval of the EWP and every six months (6) thereafter.  The comprehensive and strategic environmental management plan for the life of the mining project on which AEPEPs are based and implemented to achieve the environmental management objectives, criteria and commitments.  The scope and requirements of the EPEP makes it one of the key environmental provisions of the Mining Act.

Environmental Protection and Enhancement Program (EPEP)

 The EPEPs are required from mineral agreements or FTAA contractors and other permit holders.  This is the ‘operational link’ between environmental programs provided under the act and those provided for in the Environmental Compliance Certificate (ECC) under Presidential Decree No. 1586.  It is meant as a complement to the ECC, and not as a substitute.  Its submission and approval are mandatory for the ECC to be issued.  It shall be submitted within thirty (30) days upon the contractor’s receipt of the ECC, subject to approval of the Mine Rehabilitation Fund (MRF) and Contingent Liability and Rehabilitation Fund (CLRF) Steering Committees.

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Environmental Protection and Enhancement Program (EPEP)

 The plan is subject to review and/or revision two (2) years from its approval and every two (2) years thereafter, or whenever it is warranted by changes in mining activities. The review and/ or revision may be done “on the Contractor’s/Permit Holder’s initiative or at the request of the Director/Regional Director concerned.”  A copy of the approved program must then be provided the concerned LGU at least thirty (30) days prior to the intended commencement date of operation.  The AEPEP is based on the approval of the EPEP

Annual Environmental Protection and Enhancement Program (AEPEP)

11

 It shall include exploration, development, utilization, rehabilitation, regeneration, revegetation and reforestation of mineralized areas, slope stabilization of mined-out areas, waste dumps, tailings-covered areas, aquaculture, watershed development and water conservation, and socioeconomic development.  It shall be submitted to the Bureau/Regional Office at least thirty (30) days prior to the beginning of every calendar year. Such program shall be implemented during the same year for which it was submitted.

What are the environmental funds required to be set-up under the mining act? What are its purposes? Who has control over these funds? Funds which are created to prevent, alleviate and compensate the adverse environment side effects of mining operations  MGB institutionalized environmental guarantee fund mechanism  Under the administration of the CLRF Steering Committee and is composed of the Mine Rehabilitation Fund (MRF), the Mine Waste and Tailing Fees (MWTF), and the Final Mine Rehabilitation and Decommissioning Fund (FMRDF). Contingent Liability and Rehabilitation Fund (CLRF)

 The CLRF Steering Committee is composed of Directors of the MGB, the Environmental Management Bureau, the Lands Management Bureau, the Forest Management Bureau, the Bureau of Soils and Water Management, the Bureau of Plant Industry, the Bureau of Fisheries and Aquatic Resources, the Administrator of the National Irrigation Administration, and the Assistant Director of the MGB.  The Committee implements guidelines, rules, and regulations.  It gives policy recommendations and submits annual reports to the DENR Secretary.

Laws that Implicate Mining 47


 It evaluates and approves or disapproves the submitted Environmental Protection and Enhancement Program (EPEP) Contingent Liability and Rehabilitation Fund (CLRF)

 The Committee evaluates and decides on all applications for compensation for damages and awards compensation from other funds.  To assist the Committee in its investigation and assessment of the claims, there is created the Regional Investigation and Assessment Teams (RIATs). There is also a Technical Working Group to assist the CLRF Committee as its technical staff.  Established by each operating contractor/permit holder as an environmental deposit to ensure the availability of funds for the satisfactory compliance with the EPEP and AEPEP (Annual EPEP)  It is to be deposited as a Trust Fund in a Government depository bank to be used for rehabilitation in areas affected by the mining activities and for its research.  An MRF Committee shall be created in each region where active mining operations exist.  The Committee manages, operates, monitors, and looks after the safety of the MRFs.  The Committee shall also report and perform functions as required by the Secretary.  The Committee ensures that the approved EPEP and AEPEP are strictly complied with by the contractor/permit holder.

Mine Rehabilitation Fund (MRF)

 It is also authorized to deputize a Multipartite Monitoring Team to serve as its monitoring arm with the Regional office.  2 Forms of MRF  Monitoring Trust Fund (MTF)  Shall be in cash and in an amount determined by the MRF Committee which shall not be less that PhP 150,000.00 to cover the maintenance and other operating budget incurred by the monitoring team.  Disbursements from the MTF shall only be given by the designated representative of both the MRF Committee and the contract/permit holder. However, its replenishment must be done quarterly.  Rehabilitation Cash Fund (RCF)  Equivalent to ten percent (10%) of the total amount needed to implement the EPEP of PhP 5,000,000.00, whichever is lower.

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 A request for its withdrawal shall be based on the EPEP/ AEPEP and shall be submitted to the MRF Committee for approval. The contractor/permit holder must be replenished annually to maintain the minimum required amount. Mine Rehabilitation Fund (MR

 Withdrawal from the MRF shall be made by the contractor/ permit holder only with written instruction to the bank issued by the MRF Committees authorizing the contractor/ permit holder to withdraw the amount, which shall be in accordance with the AEPEP and approved by the MRF Committee.  Established by each operating contractor/permit holder to ensure that the full cost of the approved FMR/DP is accrued before the end of the operating life of the mine.

Final Mine Rehabilitation/  Annual cash provisions shall be made to the fund, which may Decommissioning Fund be increased or decreased in conjunction with the review or (FMR/DP) revision of the FMR/DP.  Withdrawal from the FMRDF shall be approved by the CLRF Committee upon recommendation by the MRFC.

12

Who monitors compliance with EPEP and AEPEP? 12.1 Compliance with EPEP and AEPEP •

Shall be monitored by the Multipartite Monitoring Team (MMT), which is deputized by the MRF Committee.

It is composed of a representative from the MGB Regional Office, who shall head the MMT, and as members, representatives from the Department Regional Office, the EMB Regional Office, the Contractor/ Permit Holder, the affected communities, the affected ICCs, if any, and an environmental NGO.

The MMT may seek technical assistance from the MRF Committee, to whom the MMT shall submit a report on the status or results of its monitoring activities at least five (5) working days from the Committee’s regular meetings.

The CLRF Steering Committee shall be furnished a copy of the report.

Laws that Implicate Mining 49


12.2 Certificate of Final Relinquishment CFR is also issued upon approval of the Financial Rehabilitation Report with a third party Environmental Audit (FRR with EA).

13

This FRR with EA is to be submitted by the contractor/permit holder, reporting its rehabilitation activities, which must comply with the Final Mine Rehabilitation and/or Decommissioning Plan (FMR/DP).

It is to be pre-evaluated by the MRF Committee and approved by the CLRF Committee.

The Committees may require the contractor or permit holder to submit a Site Management Plan to cover the areas that still need rehabilitation.

Although the remaining amounts from the Final Mine Rehabilitation and Decommissioning Fund (FMRDF) and Mining Waste and Tailings Fee (MWTF) payments shall be returned, the contractor or permit holder shall remain liable for any budgetary shortfall in order to achieve mine closure objectives and to implement the Site Management Plan.

What are the taxes and fees required from mining operators or permit holders? REQUISITE TAXES AND FEES FOR OPERATORS AND PERMIT HOLDERS

Income Tax

Income Withholding Tax

Excise Tax

Mining Act provides that mining contractors shall be liable to pay income tax after the income tax holiday provided in the Omnibus Investments Code. The National Internal Revenue Code (NIRC) also imposes an income withholding tax rate on dividends and may be reduced depending on the presence of certain conditions. Mining contractors are also liable to pay excise tax on minerals, mineral products and quarry resources. The NIRC provides for the following tax consequences: o On coal and coke

o On all non-metallic minerals and quarry resources, locally extracted or produced or the case of importation

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Excise Tax

o On all metallic minerals, locally extracted or produced or the case of importation o On indigenous petroleum on the first taxable sale, barter, exchange or such similar transaction.

The Act also provides for a Semi-Annual Fee to be imposed on the mining companies to be used exclusively to pay for damages to: Semi-Annual Fee for Damages

o Lives and personal safety;

o Lands, agricultural crops and forest products, marine life and aquatic resources, cultural resources; and o Infrastructure and the revegetation and rehabilitation of silted farm lands and other areas devoted to agriculture and fishing caused by mining pollution

Imposed on the following: o For exploration permit - Five pesos (P5.00) per hectare or fraction thereof per annum; Annual Occupation Fee

o For mineral agreements and financial or technical assistance agreements - Fifty pesos (P50.00) per hectare or fraction thereof per annum; and o For mineral reservation - One hundred pesos (P100.00) per hectare or fraction thereof per annum.

Under the IRR of the Act, operating contractor/lessee/permit holder must pay Mine Waste and Tailing Fees (MWTIF) semi-annually based on the amounts of mine waste and mill tailings it generated for the period.

Mineral Waste Tailing Fees

o It shall accrue to the Mine Waste and Tailings (MWT) Reserve Fund to compensate for the damages caused by the mining operations and is to be used for research projects duly approved by the Contingent Liability and Rehabilitation Fund (CLRF) Steering Committee. o The basic fee that will accrue to the MWT Reserve Fund is PhP 0.05/MT of mine waste produced and PhP 0.10/MT of mill tailings generated from the mining operations. o The Secretary may increase the prescribed MWT fee upon the Director’s recommendation when national interest and public welfare so require.

Laws that Implicate Mining 51


Exemption from the payment of MWTIF may be had if such mine waste and mill tailings were utilized by the mining companies for: ◉◉

Filling materials for underground mine openings;

◉◉

Filling materials for surface mine openings, that do not affect natural drainage systems;

◉◉

Filling materials for engineered tailings dams, roads and housing areas that do not affect natural drainage systems. Operators with tailings impoundment or disposal systems found to have discharged and/or to be discharging solid fractions of tailings into areas other than the approved tailings disposal area shall pay PhP 50.00/MT, without prejudice to other penalties and liabilities under other existing laws, rules and regulations. This additional fee shall accrue to the MWT Reserve Fund;

◉◉

Concreting and manufacture of concrete products; or

◉◉

Mine waste impounded for future use, to be utilized for its beneficial use within a period of two (2) years. For this purpose, the contractor, lessee, or permittee shall submit a two-year work program on the utilization of the materials together with the semi-annual report. Mine waste materials not utilized within the two-year period shall be charged PhP 0.05/MT, and non-submission of the work program shall disqualify the contractor, lessee, or permittee from the MWT fee exemption.

The contractor/permit holder is mandated to allocate certain funds for their expenditures. Under the IRR, the contractor should appropriate ten percent (10%) of the total capital/project cost, or other amount depending on the conditions, nature, or scale of operations and technology employed, for the contractor or permittee’s initial environmentrelated capital expenditures.

Also, the contractor/permit holder shall also allocate a minimum of approximately three to five percent (3%-5%) of its direct mining and milling costs depending on the environment/geologic condition, nature and scale of operations and technology employed for its annual environment-related expenses.

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14

What are the incentives granted to operators or permit holders? •

15

Allowable deductions for mining companies under the Mining Act ◉◉

Income Tax-Carry Forward of Losses

◉◉

Income Tax-Acceleration Depreciation

◉◉

Guarantees recognized by the government:

◉◉

Repatriation of investments

◉◉

Remittance of earnings

◉◉

Foreign loans and contracts

◉◉

Freedom from expropriation

◉◉

Requisition of investment

◉◉

Confidentiality

Pollution control devices that they acquire, construct or install on their lands and buildings are exempted from real property and other taxes or assessments

Mining companies may be exempt from paying the MWT fee if they utilize engineered and well-maintained MWT disposal systems, with zero-discharge of materials and effluent, and/or wastewater treatment plants that consistently meet DENR standards

Deserving mineral companies may also be given a Presidential Mineral Industry Environmental Award

What are “No-Go” Areas? •

The general rule is that “all mineral resources shall be open to mineral agreements or financial or technical assistance agreement applications.”

However, there are “no-go areas.”

It is crucial to identify and set aside these areas when the risks posed by mineral development are too high compared with the environmental or socio-cultural value of the area.

Other critical areas where mining may have to be prohibited are those with high seismicity and geohazard zones or those prone to landslides and floods.

Laws that Implicate Mining 53


“No-Go� Areas Areas wherein such operations are disallowed or are allowed subject to certain conditions are as follows; (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, archeological 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; (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 area, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Area System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws.

This list is not exhaustive because under the IRR, the Secretary may exclude areas according to his assessment of the environmental impacts and implications on sustainable land uses, in coordination with the appropriate Sanggunian ordinance delineating the area. There are also restrictions of mineral operations in declared Environmentally Critical Areas (ECA) unless such operations have been issued an Environmental Compliance Certificate (ECC). Furthermore, there are other laws which expressly prohibited certain areas from mining applications.

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Some of express prohibitions can also be found in the National Integrated Protected Areas System (NIPAS) Act of 1992, the Wildlife Resources Conservation and Protection Act, the National Caves and Cave Resources Management and Protection Act, and the Strategic Environmental Plan for Palawan. National Integrated Protected Areas System (NIPAS) Act of 1992 •

The NIPAS, enacted in 1991, is the classification and administration of all designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible.

The NIPAS is under the administration of the Protected Areas and Wildlife Bureau (PAWB).

It establishes protected areas which may be classified as: (a) strict nature reserve, (b) natural park, (c) natural monument, (d) wildlife sanctuary, (e) protected landscape and seascape, (f) resource reserve, (g) natural biotic area, or (h) other category established by law, convention, or international agreement.

These protected areas are established either through a proclamation, designation by law, presidential decree, presidential proclamation or executive order.

Once designated, they are managed with the goal of enhancing biodiversity and protecting it from destructive human behavior.

Buffer zones are also identified around the protected area, and these shall be subject to special development control to minimize harm to the protected area.

Acts prohibited within the protected areas (a) Hunting, destroying, or mere possession of my plants or animals or products derived there from without a permit from the Management Board;

Laws that Implicate Mining 55


(b) Dumping of any waste products detriment to the protected area, or to the plants and animals or inhabitants therein; (c) Use of any motorized equipment without a permit from the Management Board; (d) Mutilating, defacing or destroying objects of natural beauty, or objects of interest to cultural communities (of scenic value); (e) Damaging and leaving roads and trails in a damaged condition; (f) Squatting, mineral locating, or otherwise occupying any land; (g) Constructing or maintaining any kind of structure, fence or enclosure, conducting any business enterprise without a permit; (h) Leaving in exposed or unsanitary conditions refuse or debris, or depositing in ground or in bodies of water, and (i) Altering, removing destroying or defacing boundary marks or signs.

The Wildlife Resources Conservation and Protection Act •

The law enacted in 2001, hopes to conserve the country’s wildlife resources and their habitats by protecting the country’s resources from environmentally degrading activities such as mining.

Under the Act, DENR is given jurisdiction over all terrestrial plant and animal species, all turtles and tortoises and wetland species, including but not limited to crocodiles, waterbirds and all amphibians and dugong.

The Department of Agriculture (DA) is given jurisdiction over all declared aquatic critical habitats, all aquatic resources including but not limited to all fishes, aquatic plants, invertebrates and all marine mammals, except dugong.

Both departments are given the power to review, revise and regularly update the list of species under their respective jurisdictions.

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Only the DENR Secretary or his authorized representative may issue permits to effectively implement this Act.

The Secretary is given the authority to establish critical habitats outside the NIPAS protected areas where threatened species are found. These critical habitats shall be protected from any form of exploitation or destruction, which may be detrimental to the survival of the threatened species dependent therein.

The Act provides for illegal acts, which states that it shall be unlawful for any person to willfully and knowingly exploit wildlife resources and their habitats. Specific to mining are the following acts: (a) Dumping waste products detrimental to wildlife; (b) Occupying any portion of the critical habitat; (c) Exploring for or extracting minerals; (d) Burning and logging; and (e) Quarrying.

National Caves and Cave Resource Management and Protection Act • •

The act passed in 2001, is aimed at conserving, protecting, and managing caves and cave resources as part of the country’s national wealth. The DENR is the lead agency tasked to implement the Act. Such implementation is done in coordination with the Department of Tourism (DOT), the National Museum, the National Historical Institute and concerned local government units (LGUs) for specific caves. The Act also provides for certain prohibited activities include; (a) Gathering, (b) Collecting, (c) Possessing, (d) Consuming, (e) Selling, (f) Bartering or Exchanging or Offering for Sale without authority any cave resource, which necessarily includes minerals found therein.

Laws that Implicate Mining 57


16

What are the remedies/penalties that may be sought for violations of the provisions of the mining act and its IRR? Section

Violation

Relief/Penalty

PHILIPPINE MINING ACT OF 1995 Failure of permittee or contractor to comply with any of the requirements in the Act or IRR, without a valid reason

Suspension of any permit or agreement provided under the Act

Violation of terms and conditions of permits or agreements

Cancellation of permit or agreement

Failure to pay taxes and fees due the Government for two (2) consecutive years

98

Failure to abide by terms and conditions of tax incentive and credits

Suspension or cancellation of tax incentive and credit

99

False statements in EP, MA, and FTAA which may alter, change or affect substantially the facts set forth therein

Revocation and termination of permit or agreement

108

Violation of terms and conditions of ECC, which causes environmental damage through pollution

Any other violation of the Act and IRR

Fine not exceeding PhP 5,000.00

95

96

97

110

Cancellation of EP, MA, FTAA, and other agreements, and Re-opening of area to new applicants

Imprisonment of six (6) months to six (6) years, or a fine of PhP 50,000.00 to PhP 200,000.00, or both, at discretion of the court

DENR AO 2010-12 172

Operation of mining project without an approved EPEP/revised EPEP •

179

Operation of mining project without an ECC, or willful violation and gross neglect to abide by the terms and conditions of the ECC

Penalty prescribed in penal provisions of the Act Penalty prescribed in the penal provisions of the Act and other pertinent environmental laws

188

Failure to establish an MRF and FMRDF

Suspension or cancellation of mineral operations

190 (c)

Tailings impoundment/disposal system found to have discharged and/or to be discharging solid fractions of tailings into areas other than the approved tailings disposal area

Payment of PhP 50.00/MT, without prejudice to other penalties and liabilities under other existing laws, rules and regulations

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192

Non-submission of semi-annual reports on the non-generation of mine wastes and mill tailings Failure to pay MWT fees

Disqualification from availing of MWT fee exemption, and

PhP 5,000.00 penalty

10% surcharge on the principal MWT Fee for every month of delay

Damages caused by any mining operation on:

199

230

231 (a) (1) & (2)

Lives and personal safety

Lands, agricultural crops and forest products

Marine life and aquatic resources

Cultural and human resources

Infrastructure

Re-vegetation and rehabilitation of silted farm lands and other areas devoted to agriculture and fishing

Falsehood or omission of facts in the application for EP, MA, FTAA, or other permits which may alter, change or affect substantially the facts set forth therein

Non-payment of taxes and fees due the Government for two (2) consecutive years

Failure to perform all other obligations under the permits or agreements

Violation of the terms and conditions of the Permits or Agreements, and/or

Violation of existing laws, policies, and rules and regulations

Any violation of the Act, IRR, or the terms and conditions in the MA or FTAA

Any material misrepresentation or false statements made to the Bureau at any time before or after the approval/conclusion of its MA or FTAA

Payment of compensatory damages (See Sec. 200 on evaluating the amounts of damages)

Cancellation, revocation and termination of permit or agreement

Whole or partial cancellation or suspension of any incentive granted under the rules and regulations

Laws that Implicate Mining 59


ii. National Laws that Implicate Mining: Executive Order No. 79 Institutionalizing and Implementing Reforms in the Philippine Mining Sector, Providing Policies and Guidelines to ensure Environmental Protections and Responsible Mining in the Utilization of Mineral Resources 1

Who are the Implementing and Governing bodies under EO 79?

 An inter-agency forum constituted by the Climate Change Adaptation and Mitigation and Economic Development Cabinet Cluster Mining Industry Coordinating Council (MICC)

 Co-chaired by the two clusters and shall have the following additional members: the Secretary of the Department of Justice, the Chairperson of the National Commission on Indigenous Peoples, and the President of the Union Local Authorities.  The EO provide for the powers and functions of the Council, one of which is to promulgate, together with the DENR, rules and regulations implementing the Order.  Directed to establish an inter-agency one-stop shop for all mining related applications and processes, and to create a centralized database of all mining related information. An integrated map system for the common and uniform use of all government agencies is also being created for better planning and decision-making processes.

DENR

 Mandated to participate and implement the global standards provided by the Extractive Industries Transparency Initiative (EITI) to improve transparency, accountability, and governance.  The enforcement of environmental standards in mining shall be with the government in general and the DENR in particular, in coordination with the Local Government Units (LGUs).  Tasked to work together with the DENR and the MGB, to strictly implement R.A. No. 7076, to ensure the protection of the environment, and to ensure that violators are subjected to appropriate administrative and criminal liability.

LGUs

 Confined to impose only reasonable limitations on mining activities conducted within their territorial jurisdictions that are consistent with national laws and regulations.  LGU share in the National Wealth pursuant to Section 289 of R.A. No. 7160 (Local Government Code of 1991) is directed to be timely released.

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2

3

How does EO 79 treat Existing (and Pending Applications for) Mineral Agreements? •

E.O. No. 79 provides that mining contracts, agreements and concessions approved before its effectivity shall remain valid and enforceable so long as they strictly comply with existing laws, rules and regulations and with the terms and conditions to the grant thereof.

The IRR further clarifies that ‘all pending mining applications situated within [any of the above] areas closed to mining shall be deemed denied upon the effectivity of the E.O.’

A multi-stakeholder team led by the DENR shall be created to conduct a review of the performance of existing mining operations, which shall be undertaken within six (6) months from the effectivity of the E.O. and every two (2) years thereafter. This review shall also be done to enter into possible renegotiations of the terms and conditions of the contracts, which shall be mutually acceptable to the government and the mining contractor.

What does the EO provide with regard to Grants of Mineral Agreements? •

No new mineral agreements shall be entered into until a new legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect.

The amended IRR clarified that t no expansion of existing contract areas shall be allowed by the DENR Secretary unless there is an imminent and/or threatened economic disruption, such as a shortage of critical commodities and raw materials, that could adversely affect priority government projects and/or economic activities as determined by the Economic Development Cabinet Cluster.

The DENR may still grant Exploration Permits (EPs) under existing laws and regulations. ◉◉

Though the EPs are not allowed in the National Government-Owned Mining Assets, it may be subject to the Financial or Technical Assistance Agreement (FTAA) through competitive bidding.

◉◉

An EP application must be approved or disapproved within six (6) months from the date of its acceptance by the MGB, subject to the compliance of all the pertinent requirements.

Laws that Implicate Mining 61


4

The DENR may continue to grant other forms of mining permits such as Mineral Processing Permits, Government Seabed Quarry Permits, Special Minerals Extraction Permit and Industrial Sand and Gravel Permits, as provided for in the Mining Act, subject to Section 4 of the IRR and existing laws and regulations

What are defined as Mining Areas and Areas Closed to Mining under EO 79?

Potential and future mining areas with known strategic mineral reserves and resources shall be declared as Mineral Reservations pursuant to the Mining Act after proper consultation with all concerned stakeholders.

Areas expressly enumerated under Section 19 of R.A. No. 7942;

Protected areas categorized and established under the National Integrated Protected Areas System (NIPAS);

Prime agricultural lands, in addition to lands covered by R.A. No. 6657, or the Comprehensive Agrarian Reform Law of 1988, as amended, including plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Secretary of the Department of Agriculture (DA);

Tourism development areas, as identified in the National Tourism Development Plan (NTDP); and,

Other critical areas, island ecosystems and impact areas of mining as determined by current and existing mapping technologies which the DENR may hereafter identify pursuant to existing laws, rules and regulations such as, but not limited to, the NIPAS Act.

Mineral Reservations

Areas Closed to Mining

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5

What are the requirements and procedures for the grant of mining rights and mining tenements under EO 79? •

6

What are the provisions of the EO on Value-Adding Activities and the Development of Downstream Industries for the Mineral Sector? •

7

The competitive public bidding shall be the process used to grant mining rights and mining tenements over areas with known and verified mineral resources and reserves, including those owned by the Government and all expired tenements. The Mining and Geosciences Bureau (MGB) shall prepare the necessary competitive bid packages and formulate the proper guidelines and procedures to conduct the bidding. However, all valuable metals in abandoned ores and mine wastes and/or mill tailings by previous and now defunct mining operations, as well as that of existing mining operations, shall automatically belong to the State upon the expiration of their contracts.

Within six (6) months, based on the Philippine Development Plan and the National Industrialization Plan prepared by the government agencies (DENR, DTI, DOST, DOF, NEDA and ULAP), the mining industry and other stakeholders shall be submit National Program and Road-map to the MICC for review and endorsement to the President.

What are the stipulations on the EO as regards violations of environmental standards? •

The MGB Director/Regional Director shall require the mining contractor / permittee / permit holder / operator concerned to undertake the necessary remediation measures for the affected areas and shall summarily issue pertinent suspension order/s until the danger is removed. The Environmental Management Bureau (EMB) Director/Regional Director shall issue Notice of Violation/s and Cease and Desist Order/s, and/or impose fines and penalties for violation of the ECC and/or the provisions of P.D. No. 1586, DAO No. 2003-30 and other environmental laws. All mining applicants who did not implement the required remediation measures for the affected areas under applicable laws and regulations shall be permanently disqualified from acquiring mining rights and operating mining projects. However, this shall not be required in cases where the mining applicant has no previous experience in resource use ventures.

Laws that Implicate Mining 63


8

What does the EO provide regarding Environmental Impact Assessment? •

9

The DENR and the Environmental Management Bureau (EMB) are mandated to study the adoption of the Programmatic Environmental Impact Assessment (PEIA) in the implementation of the Philippine Environmental Impact Statement System (PEISS) under P.D. No. 1586 for mining projects and related activities.

Which provisions in the EO govern Small Scale Mining? •

The Order aims to improve and address issues on small-scale mining by reiterating compliance with R.A. No. 7076 (The People’s Small-Scale Mining Act of 1991) and DAO No. 34 Series of 1992 (IRR).

Requires compliance with Environmental Impact Statement System under P.D. No. 1586 (Establishing an Environmental Impact Statement System including other Environmental Related Measures and for other Purposes) and other applicable environmental laws, rules and regulations. It also requires the submission of certain documents prior to the issuance of a Small-Scale Mining Contract (SSMC).

Operations under Small-Scale Mining Permits (SSMP) issued under P.D. No. 1899 (Establishing Small-Scale Mining as a New Dimension in Mineral Development) shall be recognized until their expiration.

The E.O. also provides that the undertaking shall be allowed only within the declared Minahang Bayan (People’s Small-Scale Mining Areas) and prohibits small-scale mining for metallic minerals except gold, silver and chromite.

Affected small-scale miners operating under SSMPs involving gold, silver and chromite and non-metallic minerals may have the option to continue small-scale mining operations thru a SSMC.

The sale of gold shall only be to the Bangko Sentral ng Pilipinas and its accredited buyers.

Holders of SSMPs with a remaining term of less than one (1) year may be given a temporary SSMC by the Governor/City Mayor upon the recommendation of the P/CMRB concerned to continue their operations within a period of six (6) months or until the area is declared as a Minahang Bayan, or whichever comes first.

Prohibits large-scale mining tenement holders from undertaking smallscale mining operations in their contract areas.

Prohibits hydraulicking, compressor mining and the use of mercury in small-scale mining. Any violation is penalized by the cancellation of the small-scale mining contract or permit.

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Directs the creation of P/CMRBs in provinces where they have not been constituted. Furthermore, training and capacity building measures for small-scale mining cooperatives and associations is to be conducted. III. National Laws that Implicate Mining: The Extractive Industries Transparency Initiative

1

2

What is the extractive industries transparency initiative? What is its legal basis? •

In November 2013, President Aquino signed Executive Order No. 147 and created the Philippine Extractive Industries Transparency Initiative (EITI).

The EITI is a multi-stakeholder organization made up of dozens of governments, resource extraction companies, and civil society groups launched by British Prime Minister Tony Blair at the 2002 World Summit on Sustainable Development in Johannesburg, South Africa.

The EITI is a global standard of transparency that requires the extractive industries to publish what they pay to the government and the government to publish what they collect from these industries.

What are its objectives and goals? •

Its objective is to “increase transparency over payments and revenues in the extractives sector in countries heavily dependent on these resources.”

The EITI does not measure corruption directly but it allows individuals and advocacy groups to monitor the flow of funds with the aim of benefitting the citizens of countries with valuable resources.

EITI exposes corporate tax payments to ensure that the recipient governments are honest with their own peoples about revenues under their control; and to expose the effect of global tax competition on revenues. ◉◉

The first goal aims at accountability in foreign state governance: the targets are unscrupulous officials who may divert payments meant for national revenues to their own private offshore accounts.

◉◉

The second is an indirect response to perceptions among various activist groups that income tax systems of rich countries are becoming increasingly generous to multinationals and elites, and in turn increasingly burdensome on the working class in societies across the globe.

Laws that Implicate Mining 65


IV. National Laws that Implicate Mining: The Indigenous Peoples’ Rights Act (IPRA)

1

Republic Act No. 8371 is the Magna Carta of indigenous peoples as it primarily corrects the historical injustice committed against indigenous peoples.

It contains four bundles of rights, which include the right to ancestral domain and lands, right to self-governance and empowerment, social justice and human rights, and right to cultural integrity.

I PRA provided for the right of indigenous peoples to determine their own development. The law states that “the State recognizes the inherent right of ICCs/IPs to self-governance and self-determination and respects the integrity of their values, practices and institutions.” Further, the State guaranteed the “right of ICCs/IPs to freely pursue their economic, social, and cultural development.”

his would mean that indigenous peoples do not only have the power T to participate in decision-making processes of the Government but more so, they themselves have the power to determine the fates of their territories and their lives.

I t was modeled after the provisions of the UN Draft Declaration on Indigenous Peoples’ Rights. It is one of the most enlightened laws recognizing the free prior and informed consent of the Indigenous Peoples with respect to projects affecting their properties and rights.

What is the Indigenous Concept of Ownership as provided in the IPRA? •

One of the major innovations brought about by the IPRA is the recognition of the indigenous concept of ownership.

Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICC’s/IP’s private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights.

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2

Can Ancestral domains be sold, disposed or destroyed?

The law provides that ancestral domains cannot be sold, disposed or destroyed. In relation to mining, the provision implies that in ancestral domains, mining cannot be sustained or allowed if it necessitates that the property in question be sold, disposed, or destroyed.

3

What are other rights included in the recognition and protection of rights of ownership and possession of ICCs/IPs to their ancestral domains? ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉ ◉◉

4

Right of ownership over land and natural resources; Right to develop lands and natural resources; Right to stay in territories; Right in case of displacement; Right to regulate the entry of migrants; Right to safe and clean air and water; Right to claim parts of reservations; Right to resolve conflicts; Right of redemption; Freedom from discrimination in labor; Freedom from conflict, and many more.

What are the rights of IPs/ICCs in case of utilization of resources in their territories? •

Under the rights of ICCs/IPs in case of utilization of natural resources in their territories, they are given the right to benefit and share from the profits, to renegotiate terms and conditions of the exploration, and to be infomed in the formulation and implementation of any project that will affect or impact upon their ancestral comain. The rights are expanded by giving the ICCs/IPs the right to effective measures by the government to prevent any interference to these rights. Thus, it can easily be seen that the statute provides for a wide discretion or control to be exercised by ICCs/IPs, in cases which include mining.

Laws that Implicate Mining 67


5

6

7

What does right to stay in the territory mean in relation to mining? •

In mining, the likelihood that ICCs/IPs will be displaced or relocated is high. Mining companies often drive out, inadvertently or not, the ICCs/IPs and other settlers in the area to clear the way for the mining operations.

The “right to stay in the territory and not to be removed therefrom” and that “no ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain is particularly relevant in addressing the “displacement” problems brought about by mining.

What do the Rights to Religious, Cultural Sites, and Ceremonies include? •

ICCs/IPs shall have the right to manifest, practice, develop teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural sites; the right to use and control of ceremonial object; and the right to the repatriation of human remains.

Burial sites shall be preserved, respected and protected. To achieve this purpose, it shall be unlawful to: ◉◉

Explore, excavate or make diggings on archaeological sites of the ICCs/IPs for the purpose of obtaining materials of cultural values without the free and prior informed consent of the community concerned; and

◉◉

Deface, remove or otherwise destroy artifacts which are of great importance to the ICCs/IPs for the preservation of their cultural heritage. Mining operations that result in defacement, removal or the destruction of significant cultural artifacts of the ICCs/ IPs is considered unlawful.

What are the rights of IPs/ICCs to engage in mining within their ancestral domains? What are its limitations? •

ICCs/IPs were given the primordial right to engage in mining within their ancestral domains. Should a non-member of the ICC/IP community desire to do so, a formal agreement must be entered into by the

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non-member and the ICC/IP concerned, which must be for a period not exceeding twenty-five (25) years. Furthermore, the statute mandates that all extractions are to be used to facilitate the development and improvement of the ancestral domains. Not all portions of ancestral domains may be developed, exploited or be harvested from (ICC/IP or not).

8

Environmental Consideration - Ancestral domains or portion thereof, which are found necessary for critical watersheds, mangroves wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by the appropriate agencies with the full participation of the ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of the government agencies. Should the ICCs/IPs decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the ICCs/ IPs should be arrived at in accordance with its customary laws without prejudice to the basic requirement of the existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the ICCs/IPs in accordance with a program for technology transfer: Provided, further, That no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent.

Ancestral domains which are determined as necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation shall be shall be kept and maintained for such purposes alone.

Mining, logging and other exploitative activities in these areas are not sanctioned.

What is Free Prior Informed Consent (FPIC)? •

The IPRA defines FPIC as, [t]he consensus of all members of the ICCs/ IPs [indigenous peoples] to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community.

Laws that Implicate Mining 69


FPIC is mentioned repeatedly in the IPRA for purposes of protecting indigenous peoples’ interests in their ancestral domains. Specifically, FPIC in the context of the IPRA refers to indigenous peoples’ right to stay in their territories; right to religious, cultural sites, and ceremonies; right to give or withhold access to their biological and genetic resources and indigenous knowledge related to the conservation, use, and enhancement of these resources; and right to redemption in cases where land/property rights have been transferred without their consent.

The National Commission on Indigenous Peoples’ AO 03-12 in its declaration of policy provides that, a. The FPIC actualizes and strengthens the exercise by ICCs/ IPs of their rights to Ancestral Domains, Social Justice and Human Rights, Self-Governance and Empowerment, and Cultural Integrity; b. The right of ICCs/IPs to the management, development, use and utilization of their land and resources within their own ancestral domains shall be given utmost regard; c. No concession, license, permit or lease, productionsharing agreement, or other undertakings affecting ancestral domains shall be granted or renewed without going through the process laid down by law and these Guidelines.

9

What is the role of the Government with regard to FPIC? •

The IPRA also stipulates a role for government in identifying and demarcating ancestral lands through the National Commission on Indigenous Peoples (NCIP). The NCIP is the government agency responsible for developing and implementing policies and programs to protect and promote indigenous peoples’ rights. The NCIP is responsible for issuing certificates of ancestral domain titles and certification as a pre-condition to the award of any permits, leases, or grants (to companies, government, or any other entity) for use of any portion of an ancestral domain. The IPRA requires that the NCIP certify that the communities gave their consent to the exploitation of natural resources in their ancestral domains as a condition of project approval

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V. National Laws that Implicate Mining: People’s Small-Scale Mining Act

1

What is the main purpose of the People’s Small-Scale Mining Act? •

2

3

The main purpose of the law is: ◉◉

To effect an orderly and systematic disposition of smallscale mining areas in the country;

◉◉

To regulate the small-scale mining industry with the view to encourage their growth and productivity; and

◉◉

To provide technical, financial and marketing assistance and efficient collection of government revenues

Through this law, the harmful effects of the classic trade-off between development and environment could be minimized if not totally avoided.

What is the definition of small-scale mining under this Act? •

Republic Act No. 7076 (1991), otherwise known as the “People’s SmallScale Mining Act” defines small-scale mining as minimum activities which rely heavily on manual labor using simple implements and methods, and which do not use explosives or heavy mining equipment.

RA 7076 allows small miners to use only simple equipment like pick and shovel in extracting gold and other precious metals in their mining areas. In the age of technology, the law makes sure that small mining should benefit the small miners and not only the big-time operators who are using the skills and sweat of small-scale miners to accumulate a fortune.

Who are the small miners? •

The law defines small miners as Filipino citizens who, individually or in tandem with others, voluntarily form a cooperative, duly licensed by the Department of Environment and Natural Resources, to engage in the extraction or removal of minerals or ore-bearing materials from the ground. Laws that Implicate Mining 71


4

What are the limitations of the Act relative to other laws? •

5

RA 7076, respects the rights of the indigenous peoples to their ancestral lands fully guaranteed under existing laws. It states that no ancestral land may be declared as a people’s small-scale mining area without the prior consent of the cultural communities concerned. It also states that the revenue derived by the government from operation of mining programs established therein shall be subject to the sharing provided under the Local Government Code.

What agencies/bodies exercise jurisdiction on the implementation of the Act? What are their powers and functions? •

The law’s IRR lays down the powers and functions of the DENR and the Provincial/City Mining Regulatory Board and in coordination with other concerned government agencies. ◉◉

◉◉

6

The DENR together with the other concerned government agencies designed to achieve an orderly, systematic and rational scheme for the small-scale development and utilization of mineral resources in certain mineral areas in order to address the social, economic, technical, and environmental connected with small-scale mining activities - is mandated to carry out the policy of the law by establishing a People’s Small-Scale Mining Program The Provincial/City Mining Regulatory Board (PCMRB) is the implementing agency of the Department of Environment and Natural Resources created under the direct supervision and control of the Secretary who is the head of the Board. Its powers and function are subject to review by the Secretary.

What are the features of the People’s Small-Scale Mining Program?

◉◉ ◉◉ ◉◉ ◉◉ ◉◉

The identification, segregation and reservation of certain mineral lands as people’s small-scale mining areas; The recognition of prior existing rights and productivity; The encouragement of the formation of cooperatives; The extension of technical and financial assistance, and other social services; The extension of assistance in processing and marketing;

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◉◉ ◉◉ ◉◉

6

The generation of ancillary livelihood activities; The regulation of the small-scale mining industry with the view to encourage growth and productivity; and The efficient collection of government revenue

What may cause cancellation of contracts under the Act? What are its penalties? Cancellation of Contracts under the People’s Small-Scale Mining Act Contracts granted under this Act may be cancelled on the following grounds: ◉◉ Non-compliance with the terms and conditions of the contract and that of existing mining laws, rules and regulations including those pertaining to mine safety, environmental protection and conservation, tree cutting, mineral processing and pollution control; ◉◉ Non-compliance with the contractor’s obligations to existing mining claim holders/private landowners as stipulated in Section 13, 17 and 18 of this Order; ◉◉ Non-payment of fees, taxes, royalties or government share in accordance with this Order and existing mining laws; ◉◉ Abandonment of mining site by the contractor; and ◉◉ Ejectment from the People’s Small-scale Mining Area of the Contractor by the government for reasons of national interest and security. Penalties and Fines •

When contracts are canceled for grounds from the abovementioned, the Secretary may impose fines of an amount not less than Twenty Thousand Pesos (P20, 000.00) but not more than One Hundred Thousand Pesos (P100, 000.00).

Non-payment of the fine imposed shall render the smallscale mining contractor ineligible for other small-scale mining contracts

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VI. National Laws that Implicate Mining: The Local Government Code What are local legislations?

1

•

2

Local legislative councils or sanggunians create laws by enacting ordinances.

What are the differences between ordinance and resolution? 1. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. 2. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. 3. The two are enacted differently — a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

3

What are the requisites for a valid ordinance?

1. A valid ordinance must be:

a.) within the corporate powers of the municipality to enact

b.) passed according to the procedure prescribed by law, and

c.) in consonance with certain well-established and basic principles of substantive nature. 2. The Supreme Court explained that these tests are divided into the formal (whether the ordinance was enacted within the corporate powers of the local government, and whether it was passed in accordance with the procedure prescribed by law), and the substantive (involving inherent merit, like the conformity of the ordinance with the limitations under the Constitution and the statutes, as well as with the requirements of fairness and reason, and its consistency with public policy).

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4

When are ordinances enacted within the corporate powers of the local government? 1. When the local government is expressly empowered to enact the challenged ordinance by the Local Government Code and other statutes 2. When the local government enacted the ordinance in a valid exercise of police power.

5

What is the rationale of behind this requirement? •

6

What constitutes the local government’s valid exercise of police power? •

7

The Supreme Court has explained that municipal governments are only agents of the national government. Local councils exercise delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal nor can it exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

The Supreme Court explained that the local government may be considered as having properly exercised its police power only if (1) the interests of the public generally, and not those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a concurrence of a lawful subject and lawful method.

What are the procedural requirements in passing a local legislation? 1. The constitutionality or legality of an ordinance should be upheld in the absence of any controverting evidence that the procedure prescribed by law was not observed in its enactment.

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2. The implementing rules of the Local Government Code provide that an ordinance or resolution passed by the sanggunian shall be valid if approved by a majority of the members present, there being a quorum. An ordinance or resolution authorizing or directing the payment of money or creating liability shall require the affirmative vote of a majority of all the sanggunian members for its passage. A majority of all the elective and appointive members of the sanggunian shall constitute a quorum to transact official business. ◉◉

Public Hearings - Public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views are not binding on the legislative body and it is not compelled by law to adopt them. The LGC mandates public hearings for enactment of local ordinances in exercise of its power to Levy Other Taxes, Fees or Charges and in the Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures

◉◉

8

Publication - Local Government Code provides a publication requirement in local newspapers for all provincial, city, and municipal tax ordinances or revenue measures. The Code also requires posting and publication of ordinances with penal sanctions

What are the substantive requirements in order for an ordinance to be valid? The Supreme Court held that in order for an ordinance to be valid, it must conform to the following substantive requirements: 1. It must not contravene the constitution or any statute. 2. It must not be unfair or oppressive. 3. It must not be partial or discriminatory. 4. It must not prohibit but may regulate trade. 5. It must be general and consistent with public policy. 6. It must not be unreasonable.

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9

What falls within the General Welfare Clause? 1. The power of a municipal council to enact ordinances and make regulations is articulated in the general welfare clause which has two branches. 2. One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. 3. The second branch is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 4. Local governments may be considered as having properly exercised their police power only if the following requisites are met: a. the interests of the public generally, as distinguished from those of a particular class, require its exercise and b. the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 5. In short, there must be a concurrence of a lawful subject and a lawful method.

A. Some Examples of Invalid Exercise of Police Power •

Viray v. Caloocan ◉◉

Caloocan City Ordinance, which required the payment of an entrance fee for burials at the La Loma cemetery, was struck down as it unjustifiably discriminates against private cemeteries, in violation of the equal protection clause of the Constitution, a defect adequate to invalidate the questioned portion of the measure.

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Balacuit v. Court of First Instance of Agusan del Norte ◉◉

An ordinance requiring theater owners to charge only half prices for children was unconstitutional as “[t]he legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.”

◉◉

A police measure for the regulation of the conduct, control and operation of a business should not encroach upon the legitimate and lawful exercise by the citizens of their property rights.

City Government of Quezon City v. Ericta ◉◉

An ordinance requiring at least six percent of the total area of cemeteries to be “set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death was struck down there was no reasonable relation between the setting aside of at least six percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people.

◉◉

The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation.

B. Some examples of Valid Exercise of Police Power •

Binay v. Domingo ◉◉

On the Makati’s Burial Assistance Program, where bereaved families of Makati whose gross family income does not exceed two thousand pesos a month qualified to receive five hundred pesos cash relief from Makati, Makati had authority to “enact such ordinances and issue

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such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein.” ◉◉

10

11

Exercise of the power is not unconstitutional merely because it incidentally benefits a limited number of persons. The care for the poor is generally recognized as a public duty and support for the poor has long been an accepted exercise of police power in the promotion of the common good.

What does Zoning As A Police Power Measure mean? •

A zoning ordinance is defined as a local city or municipal legislation, which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs.

The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality.

LGUs and the Environmental Laws •

The LGC requires local governments to promote the people’s rights to a balanced ecology.

A local government has the duty to ensure the quality of the environment, which is the very same objective of Presidential Decree No. 1586 which states that “no person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative.” As such, cannot claim exemption from complying with the environmental laws.

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12

13

Case involving Power of LGUs to Protect the Community from Pollution •

In Technology Developers, Inc. v. Court of Appeals, which involved a corporation that manufactured charcoal briquettes closed down by the acting Mayor for not having procured a permit to operate within the municipality and for alleged violation of anti-pollution laws, the Supreme Court, in one of its most poorly-reasoned decisions, as it is fraught with procedural anomalies and factual inaccuracies, and contradicted established doctrines of the Philippine judicial system, forces local governments to allow businesses to operate within the “jurisdictions” despite their failure to comply with local laws.

Thus, this decision seems to severely undermine the power of local governments to address non-compliance and the authority of the local executive to protect the community from pollution.

Power of LGUs in the Abatement of Nuisance •

The LGC in relation with the Civil Code deals with nuisance - any act, omission, establishment, business, condition or property, or anything else that: ◉◉ injures or endangers the health or safety of others; ◉◉ annoys or offends the senses; ◉◉ shocks, defies or disregards decency or morality; ◉◉ obstructs or interferes with the free passage of any public highway or street, or any body of water; or, ◉◉ hinders or impairs the use of property.

The LGC mentions the abatement of nuisance is cited.

The sangguniang bayan has the power under to regulate activities relative to the use of land, buildings and structures within the municipality in order to promote the general welfare and for said purpose shall, “declare, prevent or abate any nuisance.” The sangguniang panglungsod has a similar power.

Abatement of nuisance in various cases decided by the Supreme Court should fall within the valid exercise of police power, Tatel v. Municipality of Virac and should not contravene the requirements of due process, Estate of Gregoria Francisco v. Court of Appeals

Unless a thing is a nuisance per se, it may not be abated summarily without judicial intervention

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14

What is Local Initiative? • •

• •

15

Local initiative is the process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC as if affirmative action thereon had been made by the sanggunian and local chief executive concerned. If it fails to obtain said number of votes, the proposition is defeated. Any proposition or ordinance approved through the system of initiative and referendum shall not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the approval thereof, and may be amended, modified or repealed by the sanggunian within three (3) years thereafter by a vote of three-fourths (3/4) of all its members. In case of barangays, the period shall be eighteen (18) months after the approval thereof This power can complicate the legal terrain in local governments because initiative covers all “subjects or matters which are within the legal powers of the sanggunians to enact.” People themselves may enact laws that impose additional requirements geared towards the protection of the environment as local government efforts to protect the environment have been upheld by the Supreme Court as valid exercises of police power.

What are the limitations to the exercise of Local Initiative? •

Local initiative shall not be exercised more than once a year and will extend only to subjects or matters, which are within the legal powers of the sanggunians to enact.

If at any time before the initiative is held, the sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be canceled.

The courts are not precluded from declaring void any proposition approved pursuant to an initiative for violation of the Constitution or want of capacity of the sanggunian to enact the said measure.

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VII. Other Provisions in the LGC Addressing Environmental and Social Trauma Caused By Mining The LGC mandates the Local Government as a Municipal Corporation, its Departments, and Officers and grants them such powers and functions for them to properly respond to calamities, disturbances, and situations including those related to mining, as follows: Financial Powers

Idle Lands Exempt from Tax

Changes in the Annual Budget

A province or city or a municipality within the Metropolitan Manila Area may exempt idle lands from the additional levy by reason of force majeure, civil disturbance, natural calamity or any cause or circumstance which physically or legally prevents the owner of the property or person having legal interest therein from improving, utilizing or cultivating the same. A supplemental budget may also be enacted in times of public calamity by way of budgetary realignment to set aside appropriations for the purchase of supplies and materials or the payment of services which are exceptionally urgent or absolutely indispensable to prevent imminent danger to, or loss of, life or property, in the jurisdiction of the local government unit or in other areas declared by the President in a state of calamity. Such ordinance shall clearly indicate the sources of funds available for appropriations, as certified under oath by the local treasurer and local accountant and attested by the local chief executive, and the various items of appropriations affected and the reasons for the change. Financial Source

In case of a general failure of crops or substantial decrease in the price of agricultural or agri-based products, or calamity in any province, city Condonation or or municipality, the sanggunian concerned, by ordinance passed prior Reduction of Real to the first (1st) day of January of any year and upon recommendation Property Tax and of the Local Disaster Coordinating Council, may condone or reduce, Interest wholly or partially, the taxes and interest thereon for the succeeding year or years in the city or municipality affected by the calamity.

Budgetary Requirements (5% Calamity Fund)

The budgets of local government units for any fiscal year shall comply with the following requirements: xxx (d) Five percent (5%) of the estimated revenue from regular sources shall be set aside as an annual lump sum appropriation for unforeseen expenditures arising from the occurrence of calamities: Provided, however, That such appropriation shall be used only in the area, or a portion thereof, of the local government unit or other areas declared by the President in a state of calamity.

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Financial Restrictions

Restriction Upon Limit of Disbursements

In case of emergency arising from a typhoon, earthquake, or any other calamity, the sanggunian concerned may authorize the local treasurer to continue making disbursements from any local fund in his possession in excess of the limitations herein provided, but only for such purposes and amounts included in the approved annual budgets. Executive Powers

Chief Executive: Powers, Duties, and Functions. (Punong Barangay)

(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall: xxx (3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions; xxx (6) Organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order or on occasions of emergency or calamity within the barangay; xxx

The Chief Executive:

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

Powers, Duties, Functions and Compensation.Â

(1) Exercise general supervision and control over all programs, projects, services, and activities of the municipal government, and in this connection, shall: xxx

(Municipal Mayor)

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and calamities; xxx

The Chief Executive: Powers, Duties, Functions, and Compensation. (Governor)

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall: Exercise general supervision and control over all programs, projects, services, and activities of the provincial government, and in this connection, shall: xxx (vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and calamities; xxx

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(b) The environment and natural resources management officer shall take charge of the office on environment and natural resources and shall: (1) Formulate measures for the consideration of the sanggunian and provide technical assistance and support to the governor or mayor, as the case may be, in carrying out measures to ensure the delivery of basic services and provision of adequate facilities relative to environment and natural resources services as provided for under Section 17 of this Code; (2) Develop plans and strategies and upon approval thereof, by the governor or mayor, as the case may be, implement the same, particularly those which have to do with environment and natural Qualifications, resources programs and projects which the governor or mayor is Powers empowered to implement and which the sanggunian is empowered to and Duties. (Environment and provide for under this Code; Natural Resources Management (3) In addition to the foregoing duties and functions, the environment Officer) and natural resources officer shall: (i) Establish, maintain, protect and preserve communal forests, watersheds, tree parks, mangroves, greenbelts and similar forest projects and commercial forest, like industrial tree farms and agroforestry projects; xxx (vi) Coordinate with government agencies and non-governmental organizations in the implementation of measures to prevent and control land, air and water pollution with the assistance of the Department of Environment and Natural Resources; (4) Be in the frontline of the delivery of services concerning the environment and natural resources, particularly in the renewal and rehabilitation of the environment during and in the aftermath of manmade and natural calamities and disasters; xxx

Qualifications, Powers and Duties. (Health Officer)

Qualifications, Terms, Powers and Duties. (Administrator)

(b) The health officer shall take charge of the office on health and shall: xxx (5) Be in the frontline of health services, delivery, particularly during and in the aftermath of man-made and natural disasters and calamities; and xxx (b) The administrator shall take charge of the office of the administrator and shall: xxx (3) Be in the frontline of the delivery of administrative support services, particularly those related to the situations during and in the aftermath of man-made and natural disasters and calamities;

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(b) The legal officer, the chief legal counsel of the local government unit, shall take charge of the office of legal services and shall: xxx Qualifications, Terms, Powers and Duties. (Legal (4) Be in the frontline of protecting human rights and prosecuting any Officer) violations thereof, particularly those which occur during and in the aftermath of man-made or natural disasters or calamities; and xxx (b) The Architect shall take charge of the office on architectural planning and design and shall: xxx (3) In addition to foregoing duties and functions, the architect shall: xxx (iii) Coordinate with government and non-government entities and Qualifications, individuals involved in the aesthetics and the maximum utilization of Powers and Duties. (Architect) the land and water within the jurisdiction of the local government unit, compatible with environmental integrity and ecology balance; (4) Be in the frontline of the delivery of services involving architectural planning and design, particularly those related to the redesigning of spatial distribution of basic facilities and physical structures during and in the aftermath of man-made and natural calamities and disasters; xxx (b) The agriculturist shall take charge of the office for agricultural services, and shall: xxx (1) Formulate measures for the approval of the sanggunian and provide technical assistance and support to the governor or mayor, as the case may be, in carrying out said measures to ensure the delivery of basic services and provisions of adequate facilities relative to agricultural services as provided for under Section 17 of this Code;

Qualifications, Powers and Duties. (Agriculturist)

(2) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same, particularly those which have to do with agricultural programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code; (3) In addition to the foregoing duties and functions, the agriculturist shall: (i) Ensure that maximum assistance and access to resources in the production, processing and marketing of agricultural and aqua-cultural and marine products are extended to farmers, fishermen and local entrepreneurs; xxx (4) Be in the frontline of delivery of basic agricultural services, particularly those needed for the survival of the inhabitants during and in the aftermath of man-made and natural disasters;

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Legislative Powers (b) Such basic services and facilities include, but are not limited to, the following: xxx (3) For a Province: Basic Services and Facilities.

Powers, Duties, Functions and Compensation. (Municipal Council)

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydroelectric projects for local purposes; xxx (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective municipal government, and in this connection shall: xxx (iv) Adopt measures to protect the inhabitants of the municipality from the harmful effects of man-made or natural disasters and calamities and to provide relief services and assistance for victims during and in the aftermath of said disasters or calamities and their return to productive livelihood following said events; xxx

Powers, Duties, Functions and Compensation. (City Council)

(a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx (iv) Adopt measures to protect the inhabitants of the city from the harmful effects of man-made or natural disasters and calamities, and to provide relief services and assistance for victims during and in the aftermath of said disasters or calamities and their return to productive livelihood following said events; xxx

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Powers, Duties, Functions and Compensation. (Provincial Council)

(a) The sangguniang panlalawigan, as the legislative body of the province, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the province and its inhabitants pursuant to Section 16 of this Code in the proper exercise of the corporate powers of the province as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective provincial government and, in this connection, shall: (iv) Adopt measures to protect the inhabitants of the province from harmful effects of man-made or natural disasters and calamities, and to provide relief services and assistance for victims during and in the aftermath of said disasters and calamities and their return to productive livelihood following said events Other Powers

Direct National Supervision and Control by the Secretary of Health

In cases of epidemics, pestilence, and other widespread public health dangers, the Secretary of Health may, upon the direction of the President and in consultation with the local government unit concerned, temporarily assume direct supervision and control over health operations in any local government unit for the duration of the emergency, but in no case exceeding a cumulative period of six (6) months. With the concurrence of the government unit concerned, the period for such direct national control and supervision may be further extended.

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VIII. Other Laws 1

What is the National Integrated Protected Areas System (NIPAS)? •

Republic Act No. 7586 provided for the establishment and management of the National Integrated Protected Areas System (NIPAS) which shall encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as “protected areas”.1 These protected areas are managed with the end in view of enhancing biological diversity and affording protection against destructive human exploitation.2

Mining activities may not be undertaken in the protected areas if the mineral operations result into or fall under any of the following prohibited acts3: 1. Hunting, destroying, disturbing, or mere possession of any plants or animals or products derived therefrom without a permit from the Management Board; 2. Dumping of any waste products detrimental to the protected area, or to the plants and animals or inhabitants therein; 3. Use of any motorized equipment without a permit from the Management Board; 4. Mutilating, defacing or destroying objects of natural beauty, or objects of interest to cultural communities (of scenic value); 5. Damaging and leaving roads and trails in a damaged condition; 6. Squatting, mineral locating, or otherwise occupying any land; 7. Constructing or maintaining any kind of structure, fence or enclosures, conducting any business enterprise without a permit; 8. Leaving in exposed or unsanitary conditions refuse or debris, or depositing in ground or in bodies of water; and 9. Altering, removing destroying or defacing boundary marks or signs.

1 2 3

Republic Act No. 7586, §2. Republic Act No. 7586, §4(b). Republic Act No. 7586, §20.

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2

What is the Water Code of the Philippines? •

3

To ensure the protection of our environment, industrial and mineral operations are allowed to utilize water only after a water permit has been procured from the government.4 Moreover, any person must secure permission from the National Water Resources Board (NWRB) before he may dump “tailings from mining operations and sediments from placer minings” into rivers and waterways.5 Nonobservance of these prescribed measures might lead to biodiversity loss, diversion of surface or groundwater, reduced stream flow or groundwater depletion, acid rock drainage and contamination of soil and water, surface and groundwater pollution, reduced fish spawning area and damage to aquatic life.6 Thus, mineral operations which fail to comply with any of the terms or conditions in a water permit or a water rights grant, or which include dumping mine tailings and sediments into rivers of waterways without permission are penalized by law. 7

What is the Disaster Risk Reduction and Management Act or the Climate Change Act? •

4 5 6 7 8 9

In view of the policy of the State to uphold the people’s constitutional rights to life and property, Republic Act No. 10121 aims to address the root causes of vulnerabilities to disasters, strengthen the country’s institutional capacity for disaster risk reduction and management and build the resilience of local communities to disasters.8 Indubitably, one of the root causes of vulnerabilities to disasters is mining exploration which inevitably results into innumerable risk and perils, i.e., disruption, if not loss of natural habitats, forest land conversion/loss, erosion, sedimentation, reduced slope stability or higher risk of landslides, reduced or erratic stream flows and clogged stream channels.9 Hence, mineral operations which have potential adverse impacts that make a community vulnerable to the damaging effects of a hazard must be strictly regulated, if not prohibited.

Presidential Decree No. 1067, §13. Presidential Decree No. 1067, §77. Antonio G.M. La Vina, Alaya M. de Leon & Gregorio Rafael P. Bueta, Legal Responses to the Environmental Impact of Mining, 86 Phil. L.J. 284 (2012).   Presidential Decree No. 1067, §90-91. Republic Act No. 10121, §2. Supra, at note 11. Laws that Implicate Mining 89


4

Closely related to disaster risk reduction is climate change which refers to a change in climate that can be identified by changes in the mean and/or variability of its properties and that persists for an extended period typically decades or longer.10 Since this phenomenon arises not only from natural variability but also from human activity such as mining,11 climate change adaptive capacity may be advanced through effective disaster risk reduction12, which as stated, may be attained by ensuring that mineral operations are safe and risk-free.

What is the Indigenous Peoples Rights Act (IPRA)?

Republic Act No. 8371 seeks to recognize, protect and promote the rights of Indigenous Cultural Communities (ICCs) / Indigenous Peoples (IPs), one of which is the right to their ancestral domains.

Ancestral Domains refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs since time immemorial, continuously to the present and which are necessary to ensure their economic, social and cultural welfare.13 It shall include mineral and other natural resources, among others.14 ICCs and IPs are given the right to stay in their territories15 and to develop, control, use, manage and conserve their resources.16 Any unauthorized or unlawful intrusion upon, or use of any portion of the ancestral domain is punishable under the law.17 These provisions are of utmost importance since a considerable number of mining projects in the Philippines are located on ancestral domains. Hence, these provisions may find application in the context of mineral operations, if the latter qualify as unlawful or unauthorized intrusion upon the ancestral domain of the ICCs/IPs.

10 Republic Act No. 9729, §3(d). 11 Republic Act No. 9729, §2. 12 Id. 13 Republic Act No. 8371, §3(a). 14 Id. 15 Republic Act No. 8371, §7(c). 16 Republic Act No. 8371, §7(b). 17 Republic Act No. 8371, §10. 90 Primer on Local Environmental Governance: Abridged Handbook


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What is the Agriculture and Fisheries Modernization Act (AFMA) or Comprehensive Agrarian Reform Program Extension with Reforms (CARPER) •

6

Under the Agriculture and Fisheries Modernization Act, the State is mandated to promote development that is compatible with the preservation of the ecosystem in areas where agriculture and fisheries activities are carried out, and to utilize the nation’s resources in the most efficient and sustainable way in order to attain long-term sustainability.18 Similarly, the Comprehensive Agrarian Reform Program Extension with Reforms (CARPER) directs the State to promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, provided that the conversion of agricultural lands into industrial, commercial or residential lands shall take into account tillers’ rights and national food security. In the disposition or utilization of these natural resources, the State shall apply the principles of agrarian reform, or stewardship, whenever applicable, in accordance with law. 19 From the foregoing, it appears that mining exploration may be undertaken on fisheries and agricultural lands subject to the prescribed conditions. Noncompliance with these legal requirements constitutes a violation of the law, thus making such mineral operation illegal.

What is Executive Order No. 26? •

18 19 20

In relation to the State policy to pursue climate change mitigation and adaptation, Executive Order No. 26 or the National Greening Program mandates that about 1.5 billion trees covering about 1.5 Million hectares shall be planted for a period of six (6) years from 2011 to 2016.20 Any mineral exploration which destroys the established plantations or thwarts the greening efforts of the government will constitute a violation of the executive order.

Republic Act No. 8435, §2. Republic Act No. 9700, §1. Executive Order No. 26, §2. Laws that Implicate Mining 91


7

What is Executive Order No. 79? •

8

Albeit the State policy to promote the rational exploration, development, utilization, and conservation of the country’s mineral resources21, Executive Order No. 79 was issued to secure stern control on the utilization of these resources, the grant of rights for their utilization, and the flow of revenues from such. With the issuance of Executive Order No. 79, specific areas were closed to mining applications, either for contracts, concessions or agreements.22 Hence, mineral operations undertaken in any of these prohibited areas shall be dealt with by law. While existing mining operations will be allowed to continue, the granting of new mineral agreements will be suspended until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect.23 Moreover, environmental standards in mining, as prescribed by the various mining and environmental laws, rules, and regulations, shall be fully and strictly enforced. Otherwise, appropriate sanctions shall be meted out against violators thereof.24

What is Executive Order No. 147? •

21 22 23 24

Executive Order No. 147 created the Philippine Extractive Industries Transparency Initiative (PH-EITI) which aims to ensure greater transparency and accountability in the mining sector. The issuance is designed to guarantee proper disclosure of mining revenues. Mineral operations and activities which do not comply with this shall constitute violation of the executive order.

Republic Act No. 7492, §2. Executive Order No. 79, §1. Executive Order No. 79, §4. Executive Order No. 79, §2.

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Chapter 6 REMEDIES UNDER OTHER ENVIRONMENTAL LAWS


Marble quarry at Teresa, Rizal. Photo by Ramon F. Velasquez Extracted from Wikimedia Commons.

94 Primer on Local Environmental Governance: Abridged Handbook


Remedies under Clean Air Act and the Solid Waste Management Act 1

What are Citizen Suits? •

2

What are Suits and Strategic Legal Actions Against Public Participation or SLAPPs? Why do these laws provide for its dismissal? • •

3

These laws provide additional means by which concerned citizens may seek relief for environmental violations through “citizen suits,” even though they may not be directly affected or damaged by the prohibited act or omission. “Any citizen” may thus file “an appropriate civil, criminal or administrative action in the proper courts or bodies for violation of these Acts or their IRR.”

Both laws also provide for the dismissal of “Suits and Strategic Legal Actions Against Public Participation” or SLAPPs SLAPPs are suits brought against a person “to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions” of either Act. Many cases filed by large-scale mining companies against anti-mining activists have been identified as SLAPPs. These provisions are very powerful because they enable “ordinary” persons and organizations – those who may otherwise not have legal standing to sue – to do so in the general interest of the public to a healthful environment, and to be protected from false and malicious lawsuits in doing so. Persons against whom a SLAPP is filed, upon determination of the nature of the suit as such, are entitled to an award of attorney’s fees and double damages aside from having the case against them dismissed.

What are the remedies available under The Rules of Procedure for Environmental Cases? •

Under the Rules, persons may turn directly to the judiciary for relief in cases of environmental damage arising from mineral operations.

The Rules “govern the procedure in civil, criminal and special civil actions before [Trial Courts] involving enforcement or violations of environmental and other related laws, rules and regulations.”

Remedies under Other Environmental Laws 95


It introduced several concepts and remedies, which tilt the balance of “environmental justice” in favor of environmental advocates and ordinary citizens. These may be utilized to address mining-related violations in conjunction with remedies under other laws, or as an alternative to such:

Concepts and Remedies Under the Rules of Procedure for Environmental Cases

Precautionary Principle

• Applicable to the rules of evidence in environmental cases “[w]hen there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.” • This is a unique instance where evidentiary uncertainty does not work against a litigant but instead may be invoked to “avoid or diminish” “threats of serious and irreversible damage to the environment.

Allow the invocation of SLAPP as a defense

• In cases filed against “a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights,” the Rules make SLAPP available as a defense in the enforcement of any environmental policy, law, rule, or regulation.

• Essentially lowers the standing requirements for filing environmental lawsuits. • The provision allows “any Filipino citizen, in representation of others, including minors and generations yet unborn, [to] file an action to enforce rights or obligations under environmental laws. Citizen Suit

• It addresses the usual difficulty of fulfilling standing requirements in environmental cases, for example, in showing that the injury suffered by a plaintiff due to climate change is “fairly traceable to the action” of a mineral contractor or permittee. • The Rule on citizen suits effectively formalizes the doctrine of “intergenerational responsibility” established in the case of Oposa v. Factoran.

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Institutionalization of the Writ of Continuing Mandamus

• This authorizes courts to require agencies, instrumentalities, or officers of the government, who fail to fulfill their mandates under environmental laws, to perform an act or series of acts until the judgment is fully satisfied, and to submit periodic reports to the court regarding compliance with its order

• Through this, plaintiffs may petition a court to direct or enjoin “any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.” Environmental Protection Order (EPO)

• In matters of “extreme urgency” where the victim is bound to “suffer grave injustice and irreparable injury,” the court is authorized to issue a Temporary EPO ex parte, effective for 72 hours, within which it must conduct a summary hearing to determine whether or not the order may be extended

• A special civil action brought directly to the Court of Appeals or the Supreme Court, available to persons or entities “whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.”

Writ of Kalikasan

• It is applicable to cases that “transcend geographical boundaries,” overcoming the limitation of trial courts only being able to hear and decide on violations within their territorial jurisdictions. • The Writ also provides a very generalized basis for its invocation, allowing the redress of a wide range of violations, including those resulting from mining operations. • Upon grant of the writ, the issuing court may direct the respondent to cease acts or omissions resulting in environmental damage; to protect, preserve, rehabilitate or restore the environment; to monitor strict compliance with the decision and orders of the court; to make periodic reports on the execution of the final judgment; and such other reliefs related to the protection of the environment or people’s environmental rights.

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Chapter 7 Highlights of the Conclusions on the Handbook on Local Environmental Governance


There is an arsenal of laws and rules that can be used by local stakeholders to protect the environment and their communities from the impact of mining.

From a highly centralized approach to resource extraction during the Marcos Era, today, stakeholders should be consulted before these activities can proceed, they can legislate to protect their interests, and they share in the proceeds from the exploitation of resources found within their territories.

If properly executed, the legal system should raise the issues that local communities want addressed.

This new legal paradigm provides for a more responsible resource extraction.

As these are relatively new rules, task then is for everyone —local officials, communities, non-government and peoples’ organizations to step up and enforce the system.

The Supreme Court, as a venue to settle actual controversies, with regard to the protection of the environment, has at the recent, consistently ruled in favor of local governments when the environment is at stake – giving a pro-environment, pro-autonomy, and pro-people interpretation of the law.

Highlights of the Conclusions on the Handbook 99


Chapter 8 Notes on recent jurisprudence


Open-pit mine at Rodriguez, Rizal Province. Photo by Ramon F. Velasquez Extracted from Wikimedia Commons.

Notes on Recent Jurisprudence 101


League of Provinces v. Department of Environment

Though local autonomy has been granted by the Constitution to the local government units (LGUs), this is limited to administrative autonomy only.

In construing these laws together - Article XII, Section 2, Paragraph 1 of the Constitution, “the exploration, development and utilization of natural resources shall be under the full control and supervision of the State.” Section 3 of the same provision states that “the Congress may, by law, allow small – scale utilization of natural resources by Filipino citizens” and Title XIV, Chapter 1 Section 2 of the Administrative Code of 1987, DENR having been tasked to carry out this constitutional mandate,

The Court ruled that the enforcement of small-scale mining laws in the provinces is made subject to the supervision, control and review of the DENR. This is clear under both the Local Government Code and the People’s Small-Scale Mining Act as implemented by the DENR Secretary in coordination with other local government agencies.

This power did not encroach on the constitutional guarantee of local autonomy because the Constitution only grants administrative autonomy of LGUs, or the decentralization of autonomy.

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Province of Cagayan v. Lara Importance of securing local government permits before mining operations may commence •

Section 138 (2) of R.A. No. 7160 (Local Government Code of 1991) required that before an entity may commence a quarrying business, such entity must first secure a governor’s permit. This was reinforced by Article H Section 2.04 of Provincial Ordinance No. 2005-07.

It was clear in the records that Lara failed to secure such permit. Therefore, he had no right to conduct his quarrying business.

Ruzol v. Sandiganbayan Involved permits to transport issued by then Mayor Leovegildo Ruzol of General Nakar, Quezon accused of Usurpation of Official Functions under the Revised Penal Code •

While the DENR is the primary government instrumentality charged with the mandate of promulgating rules and regulations for the protection of the environment and conservation of natural resources, this cannot be taken to mean that they are the sole or exclusive instrumentality that may do so.

It is clear under the general welfare clause provided in Section 16 of R.A. No. 7160 that municipal governments have the authority to enact ordinances and issue regulations which are necessary to carry out the responsibilities conferred upon them by law and to promote the general welfare of the municipality and its inhabitants.

The issuance of the Permit to Transport was not a usurpation of the DENR’s authority rather, an additional measure which was meant to complement DENR’s duty

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to regulate and monitor the resources within the LGU’s territorial jurisdiction.

The LGU’s authority to manage and control communal forests should be ‘pursuant to national policies and is subject to supervision, control and review of DENR. Requirements must be accomplished before an area is declared a communal forest.

The accusation was based on the theory that the DENR was the only government instrumentality that can issue permits to transport salvage forest products. The theory is wrong.

Boracay Foundation, Inc. v. The Province of Aklan The necessity of prior consultation and prior approval by local government units (LGUs) over projects to be implemented by the national government in their respective territories. •

The Court emphasized that the Local Government Code established the duty of national government agencies to secure prior public consultation and approval of local government units for the projects described therein.

Under the Local Government Code before a national project that affects the environmental and ecological balance of local communities can be implemented. These are (1) prior consultation with the affected local communities (Sections 26 and 27) and prior approval of the project by the appropriate sangguninan (Section 447). Moreover, Section 5.3 of DENR DAO 2003-30 also provides public hearing and consultation requirements.

The lack of prior public consultation and approval was not corrected by the subsequent endorsements of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay which were both undoubtedly achieved at the urging and insistence of Province.

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