The trail of a mining law: ‘resource nationalism’ in the Philippines* *Paper read at the conference on Mining and Mining Policy in the Pacific: History, Challenges and Perspectives, 21-25 November 2011. Noumea, New Caledonia. Minerva Chaloping-March, PhD Research Fellow, 'After Mining' Public Sector Linkage Project Philippines-Australia Studies Centre, Institute for Human Security La Trobe University, Bundoora 3086 VIC, Australia
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[email protected] Abstract: The paper looks into the socio-political and historical landscape of the Philippines that defined the impetus for a mining policy and has shaped the evolution of what is now the Philippine Mining Act of 1995. It discusses the law’s colonial foundations under the Spanish and American regimes that shaped the timing and tempo of minerals exploitation in the Philippines that were perfected by subsequent administrations. The paper traces the decades-long thorny path of the Mining Act of 1995 towards the Philippine State’s purported goal of enhancing national growth by promoting the rational exploration, development, and utilization of mineral resources. Currently, the process of administering and disposing mineral resources is encumbered by resolute anti-mining advocacy that rely considerably on nationalist rhetoric and ideas about state sovereignty and control. In addition, opposition to mining builds on religious-cultural perspectives. The role of the Catholic Church, together with various non-government organizations, could not be discounted in infusing ideas of citizen’s duty of stewardship over the country’s mineral resources and moral responsibility to protect the environment. The paper, using fieldwork data and archival materials, aims to contribute to understanding the strenuous pathway that a mining policy trudges and the socio-political and cultural factors that confront its objective of becoming effectively and efficiently implemented.
Introduction This paper examines the historical pathway through which an enacted mining policy has passed. In particular, it looks into key socio-political factors that have shaped the process of implementing the Philippine Mining Act of 1995, the law that governs the conservation, management and development of mineral resources in the Philippines. The timeline of events underlines key issues stemming from the nexus of political, economic, cultural and ideological dynamics of claiming rights to land and mineral resources, as well as raising concerns about environmental degradation associated with mining operations. The interlocution of many stakeholders brings up images of ‘nationalism’ and ‘sovereignty’, two broad terms which are closely tied to expressions of self-determination and aspirations to partake in the fruits of natural resource development. Thus, this paper is about understanding ‘resource nationalism’ in the Philippines in light of key events that have configured the ebb and flow of realizing the goals of the mining law. In current literature, discussions on ‘resource nationalism’ concern the moves of countries ‘to take (or seek to take) direct and increasing control of economic activity in natural resource sectors’ (Ward, 2009, p. 5). In particular, resource-rich countries transfer political and economic control of their energy and mining sectors from foreign and private interests to domestic and 1
state-controlled companies (Bremmer & Johnston, 2009, p. 2). The rationale of a state in enlarging its control is to secure its ability to exact a greater share of resource rents. During the 1970s, resource nationalism was a demonstration of backlash by developing countries against former colonial masters. At present, resource nationalism is ‘better understood in the context of global concern for resource security, climate change, sustainable development and poverty reduction’ as all these are intertwined (Ward, 2009, p.5). The paper explores the images of ‘resource nationalism’ with a focus on a much smaller and more immediate scale – the level of communities and local governments vis-à-vis mainly the Philippine State that aims to reinvigorate the minerals industry by attracting foreign investments, given the country’s vast potential and actual mineral reserves. Hence, the situation is one where constituent citizens challenge the absolute control of the Philippine State over land and natural resources and their utilization and development. This aspect of resource nationalism involving the claims of subnational constituencies is scarcely examined. It is towards this inadequacy that this paper attempts to make a contribution. Local governments seek to protect mineral lands within their area of jurisdiction. Communities support local governments to ensure they benefit from resources such as minerals within their vicinity and at the same time protect the surrounding environment that support forests and agriculture. In certain provinces within the archipelago, local government officials and constituent citizens share the need to secure a fair share of the proceeds from the development of the natural resources located within their area. Mining as an economic activity in the Philippines has continued to be a hotbed for controversies involving industrialists, environmentalists and conservation groups, indigenous peoples, local governments, communities, and religious groups. There are two primary reasons for the continuing controversies: a) a genuine concern of citizens for the long-term social and environmental consequences, including the cultural and economic wellbeing of communities especially after mining has long ceased, and b) a lingering mistrust of local citizens in the ability and sincerity of the national government and the minerals industry to address the concerns of communities who are adversely affected by mining operations. The paper consists of three sections. The first is a review of key colonial laws that served as foundations for policies by subsequent administrations in defining tenurial rights to land and the pace of exploiting mineral resources in the Philippines. The second section discusses government efforts to revive the minerals industry that had been on decline since the 1970s, except for 19851986 until the 1990s. Reviving the industry is regarded by the government as hinging on the successful implementation of the Mining Act of 1995. The third section looks into recent events – since the time the Act was passed – that highlight intertwining issues which exemplify the nature of claims and expectations concerning entitlements to land and mineral resources. The paper uses fieldwork data and archival materials collected mainly in September 2004 to May 2005 and complemented with additional interviews in March-April 2010 and August 2011, as well as additional materials from online sources. Colonial foundations for the current mining law Mining has carved out a place in the early history of the Philippines. The country’s long tradition of mining can be traced to as early as 400 B.C. to 250 B.C., a stage when other metals such as iron and bronze became known in Philippine prehistory (Caballero, 1996). The early Spanish 2
conquerors and pioneers who arrived in the Philippines in the 1500s observed alluvial mining, although relatively sparse, in many areas. During the 16th century, an important directive of the Spanish king to the conquistadors was to identify and consider the colonies’ resources which are potentially useful to the Crown. Thus, the leaders of exploratory teams in the Philippines recorded in detail the products and resources of localities they visited. Their tasks involved compiling geologic studies of many mineral-producing districts. They produced a mineral map of the archipelago incorporating the unsolicited observations of travellers. These works would, many years later, provide the subsequent colonial power in the Philippines – the Americans – vital information on locations of the mineral deposits and the mining areas where they could construct new mines (Lopez, 1992). The Spanish colonial government legislated the institutional regulation of the mining industry. By virtue of conquest, the entire archipelago of the Philippines was assumed to be owned by the Spanish King. This assumption, based on the concept of the Regalian Doctrine, hinges on the principle of eminent domain which accords the Crown the right to develop mines on its own initiative or through private concessions. However, this principle is considered ‘mythical’ (Leonen, 2004) because the Regalian Doctrine was not extensively effective during the Spanish regime in that the colonial government was not able to subjugate all areas of the islands. Nonetheless, as rightly stressed by Owen Lynch (1986) the doctrine would later become the basis upon which subsequent Philippine land laws are founded. The 1935, 1973, and the 1987 Philippine Constitutions all include provisions on the State’s ownership of natural resources, and its right to utilise and develop them. Spain handed over the Philippines to the United States under the Treaty of Paris on 21 December 1898. As the American occupation began in the Philippines, mining had been a major interest of the American economic survey teams. A series of land statutes were enacted that ensured central government control over all lands. Among the various laws were the following: a) the Land Registration Act No. 496 of 1902 which required the acquisition of a ‘Torrens Title’; a) the Public Land Act of 1905 which declared all previously unregistered lands as public lands under the administration of the state; and b) the Mining Law of 1905 which granted Americans the right to acquire public land for mining pursuits. These laws provided that mineral deposits in public lands were free and open for exploration, occupation and purchase by citizens of both the United States and the Philippines (Congress of the Philippines, 1902). These laws reinforced what had been laid out by the Spanish in which new ideas of resource access and use would dispossess certain groups of people, particularly those in the unhispanized areas, of their lands. Little or no regard has been paid to the people inhabiting the land or their unwritten rules on land (see Constantino, 1975). Mining policy under the Marcos administration Under the Marcos administration, an easy path for the extraction of the country’s mineral resources had been laid out with specific laws created for such purpose (Malig, 2002). In 1971,
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the Senate and Congress enacted Republic Act 63641, also known as the Gold Subsidy Law to provide relief to gold producers. Under this law, the Central Bank was required to purchase newly mined gold from mining companies at a designated price. All gold producers received a subsidy of sixty pesos per ounce of production, plus seventy per cent of the positive difference between the cost of production per ounce of gold and the official price (RA 6364, 1971). In 1974, Marcos issued Presidential Decree 463 (PD 463), also known as the Mineral Development Act of 1974, to provide for an efficient administration and disposition of mineral lands and promote and encourage their development and exploitation. Under the law, mining companies were exempt from paying customs duties and all taxes for machineries, equipment, tools for production, and plants imported for the use of new mines and old mines. In addition, all mining claims, improvements and mineral products derived from these claims were not liable for the payment of all taxes (PD 463, 1974, Chapter X Section 53). While PD 463 is labeled as the country’s first mining law to provide for ways ‘to deal with environmental and social aspects of mining operations’ (Cabalda, Banaag, Tidalgo, & Garces, 2002), it also granted mining companies timber, water and easement rights on mining claims they own, occupy or lease (PD 463, 1974, Chapter XI Sections 56 - 59). Even as the law stipulated penalties for pollution from mine wastes and mill tailings, the maximum fine of PhP5,000 or six-year imprisonment or both (Chapter XIV Section 81) saw no actual imposition on polluting mines. In 1977, Marcos issued two decrees that should have supplemented PD 463. First, PD 11982 provided that mining corporations ‘shall, to the fullest extent possible, restore, rehabilitate, and return the lands, rivers, and natural environment subject thereof or affected thereby to their original conditions as of before such operations or activities’ (PD 1198, 1977, Section 1, emphasis supplied). Second, PD 12513 imposed fines of PhP0.05 and PhP0.10 per metric ton of mine waste and mill tailings respectively. The pollution of major waterways is lucid evidence that these laws had not, over the decades, actually been enforced. PD 463 actually amended Commonwealth Act 137 (CA 137)4, the mining law under the American administration, which stipulated the 60-40 ownership ratio where foreign investors can own 40 percent as maximum of the company while Filipino citizens can own the remaining 60 percent. Mining policy under subsequent administrations On July 1987, President Corazon Aquino issued Executive Order 2795. This law fully authorised the Secretary of the DENR (Department of Environment and Natural Resources) to negotiate and 1 An Act to Provide for Assistance to the Gold Mining Industry 2 Requiring All Individuals, Partnerships or Corporations Engaged in the Exploration, Development and Exploitation of Natural Resources or in the Construction of Infrastructure Projects to Restore or Rehabilitate Areas Subject Thereof or Affected Thereby to their Original Condition 3 Imposing A Fee on Operating Mining Companies to be Known as "Mine Wastes and Tailings Fee" to Compensate for Damages to Private Landowners and for Other Purposes 4 This law is also known as the Mining Act of 1936. It was patterned after the United States’ Federal Mining Act of 1872 and incorporated most of the features of the Philippine Bill of 1902. 5
Authorizing the Secretary of Environment and Natural Resources to Negotiate and Conclude Joint Venture, CoProduction, or Production-Sharing Agreements for the Exploration, Development and Utilization of Mineral Resources, and Prescribing the Guidelines for Such Agreements and Those Agreements Involving Technical or
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conclude leasehold agreements with existing and expected proposals from interested parties, including foreign-owned corporations. The aim was to encourage investment in the mining industry’ (Executive Order 279, 1987). This authority was formerly a prerogative reserved only for the President of the Philippines. The new power of the DENR Secretary effectively hastened the entry of many foreign mining firms. Aquino’s successor in 1992, Fidel V. Ramos, further opened the doors to foreign investors for all industries: deregulating, liberalizing and privatizing almost all government owned corporations. The Philippines was one of many developing countries to adopt neo-liberal economic policies to attract more mining investments. In 1993, President Ramos commissioned a multi-sectoral task force to assess the needs of the minerals sector and make proposals towards reviving the stagnant and ailing industry. A major concern which the minerals industry in the Philippines had faced for years was the delay in the passage of a new mining law. For many years, executive and administrative orders providing guidelines for specific activities concerns governed the minerals industry. A particular clamour by key officials of the Mines and Geosciences Bureau (MGB)6 and the Chamber of Mines of the Philippines (COMP) was the need to remedy the constitutional rule restricting foreign investors to a ceiling of 40 percent ownership in mining ventures. Under President Ramos, the Philippine Congress issued in 1994 Republic Act 7729, otherwise known as the Excise Tax Act7. This law reduced the excise tax rates on metallic and non-metallic minerals. Subsequently in March 1995, Republic Act 7942, known as the Philippine Mining Act of 1995, was approved. As entreated by the minerals industry, the Act allows up to 100 percent ownership of mining operations by foreign companies. Such avenue given to foreigners to fully own and control mining operations in the Philippines is the most contentious issue pertinent to developing the country’s minerals resources. The Mining Act also grants mining companies to operate for a maximum of 50 years and can occupy an area of 81,000 hectares where the company enjoys timber rights, water rights and easement rights. The incentives granted to foreign mining companies include tax holidays and 100 percent repatriation of their capital and profit. The passage of the Mining Act of 1995 proved that it was the signal which foreign investors were waiting for. Barely a few months after the law’s enactment, more than 50 applications for FTAAs were already filed at the MGB (Cinco, 1995). In 1996, 20 of the world’s largest mining companies established offices in the country and filed applications for various mining tenements leading to the approval of several exploration projects (Cabalda, Banaag, & Garces, 2002; Domingo, 2003).
Financial Assistance by Foreign-Owned Corporations for Large-Scale Exploration, Development, and Utilization of Minerals. 6
The MGB is the primary government agency in charge of administering the exploitation of the country’s mineral resources. It is one of the bureaus of the DENR. 7 An Act Reducing the Excise Tax Rates on Metallic and Non-Metallic Minerals and Quarry Resources, Amending for the Purpose Section 151(A) of the National Internal Revenue Code, As Amended.
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Ebb-and Flow of the Mining Act of 1995 In the most ironic twist of events, the positive momentum generated by the passage of the Mining Act of 1995 had dissipated during the years immediately following the law’s enactment. This was due to a combination of economic, political, and socio-cultural factors which warrant some discussion. The Marcopper mine disaster The Marcopper disaster ironically happened just as the Philippine government was trying to revive the industry and campaigning about the Mining Act as the vehicle to implement ‘sustainable mining’. On 24 March 1996, a major tailings spillage occurred at the Marcopper mine in Marinduque Island. For many years, Marcopper Mining Corporation had been using a mined-out open pit as a tailings containment pond. Connected to this pond is an old drainage tunnel that collapsed. As a result, an estimated 1.5 to 3 million cubic meters of mine tailings found their way into the Makulapnit River, Boac River, and eventually the ocean at the Westside of the island (Plumlee, Morton, Boyle, Medlin, & Centeno, 2000). The immediate effects were catastrophic: agricultural fields were flooded and fishing which was a major livelihood for more than 20,000 families in 42 communities stopped due to the flow of mine tailings burying the channels and the valley floor (SEPO, 2005). Inquests on the accident established that the mines’ pollution problems had been occurring for many years. Previous penalties were imposed on the company for its marine disposal of over 200 million metric tons of tailings in Calancan Bay resulting in marine pollution and siltation of about 0.84 kms2 during the period 1975 to 1986 (Ramos, Cabalda, & Banaag, 2000). However, permanent closure was never enforced. Although the tailings spillage was committed specifically by one company, public denunciation was launched at the entire minerals industry. The incident reinforced the public doubts cast at the minerals industry’s claims of environmental management especially in managing mine wastes and tailings (Ramos, et al., 2000). The disaster drew calls from mainly the country’s Catholic clergy, church-based organisations, civic-oriented groups, conservation and environment activists for opposition to mining in general and even the outright scrapping of the Mining Act of 1995 in particular. A legal impasse Partly as a response to the Marcopper tailings disaster, and alarmed by the influx of foreign mining companies to the country, a group of nongovernment organizations (NGOs) filed on 10 January 1997 a petition at the Philippine Supreme Court questioning the constitutionality of the Mining Act and its implementing rules and regulations. The group of NGOs was led by the Legal Rights Center-Kasama sa Kalikasan (LRC-KsK). Known as the La Bugal-B’laan Case, the petition called for the Supreme Court to nullify the Philippine Mining Act of 1995 and the FTAA entered into in 1995 by and between the Philippine Government and Tampakan Mineral
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Resources Corporation, Inc., owned by the Australian Western Mining Corporation (WMC) 8. Although WMC is the only formal private respondent in the case, the entire minerals industry had actually been handed the legal challenge. The key issue of the appeal pertains to the unconstitutionality of the FTAA provision of the Mining Act because, as claimed by the petitioners, such provision allows 100 percent foreign ownership in large-scale exploration, development, utilization and exploitation of mineral resources in the Philippines by filing FTAAs. Such practice, the petitioners argued, breaches the constitutional provision that the natural resources of the Philippines are a national heritage which foreign companies, through FTAAS, should not exploit. Enactment of a law to protect indigenous peoples rights While the Mining Act was caught in a legal standoff, a law that concerns protecting indigenous resource rights was enacted: Republic Act 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA). Its final passage9 on 29 October 1997 was the result of a decade of lobbying, deliberations and consultations by concerned NGOs, peoples’ organizations and indigenous peoples’ representatives with the support of public interest lawyers who are themselves environmental activists. The IPRA is a realisation of the State policy on rights of indigenous peoples and cultural communities as declared in Section 22, Article II of the Philippine Constitution, i.e., “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” The IPRA created the National Commission on Indigenous Peoples (NCIP) as ‘the primary government agency for the formulation of and implementation of policies, plans and programs to promote and protect the rights and well-being of indigenous cultural communities/indigenous peoples (ICCs/IPs) and their ancestral domains as well as their rights thereto’ (RA 8371, 1997). Hailed by Atty. Evelyn Dunuan, the first NCIP head as ‘the first of its kind in the whole world’ (Dunuan, 2003), the IPRA gives explicit recognition to and protection of the rights of ICCs/IPs ‘to their ancestral domains to ensure their economic, social and cultural well-being’. The ancestral domain of ICCs/IPs not only covers the physical land they occupy but the totality of resources and environment including mineral and natural resources underneath. The IPRA provides for priority rights to ICCs/IPs in the extraction, development or exploitation of any natural resources within their ancestral domain (see NCIP Administrative Order No.3, 2002). Soon after its enactment and what appeared to be a countermove to the La Bugal-B’laan case, two lawyers, i.e., Isagani Cruz (a retired Supreme Court Justice) and Atty. Cesar Europa challenged at the Supreme Court the constitutionality of the IPRA. As petitioners, their issues pertain mainly to the ownership of minerals, property rights, priority rights and self-delineation by the ICCs/IPs. They also questioned the powers and jurisdictions of the NCIP and the applicability of customary law to the settlement of disputes involving ancestral domains and ancestral lands as violating due process of law. 8
In 2004, Western Mining Corporation (Australia) sold the project to the joint venture of Sagittarius Mining, Indophil Resources, Xstrata Holdings and J.P. Morgan. 9
The law’s passage had a considerably lengthy history in which one change built incrementally upon another. Circumstances leading to the enactment of the law can be traced to as early as 1974.
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With the legal challenge posed to the IPRA, the government withheld the release of the NCIP’s budget in September 1998. Thus, the agency was prevented from performing its functions. Concerned sectors were asking why the government did not also suspend the implementation of the Mining Act, which was similarly facing a constitutionality challenge before the Supreme Court. On 6 December 2000, the Supreme Court dismissed the challenge to the constitutionality of the IPRA (see Supreme Court of the Philippines, 2000). Subsequently, the petitioners filed a motion for reconsideration. However on 21 September 2001, the Supreme Court arrived at a resolution and declared that the IPRA is constitutional. Verdict on the constitutionality challenge to the Mining Act From the time the La Bugal-B’laan case was filed in 1997, the Supreme Court had not issued a decision on the constitutionality issue against the Mining Act. In January 2004, after seven years of deliberations, the Supreme Court ruled in favour of the petitioners, thereby nullifying the Mining Act’s FTAA provisions that allowed the execution of service contracts with foreign firms for exploration and mining ventures. The Supreme Court also declared null and void the FTAA entered into by and between the Philippine Government and WMC. The MGB enjoined by the private respondents and the minerals industry represented by the COMP immediately appealed the High Tribunal’s decision. They argued, among others, that the Philippine Constitution allowed foreign contractors to have reasonable management over mining projects and the Mining Act ensured a fair and equitable sharing of the proceeds of mining projects between the contractor and the state. The appellants also asserted that annulling the FTAA provisions would deprive the country billions of dollars of potential investments from outside. The President of the COMP stressed that the Philippines has already lost at least $20 billion-worth of export revenues because the Mining Act was not fully implemented since its passage in 1995 (Clancy, 2005). The COMP worked closely with the Office of the Solicitor General and then filed a motion for reconsideration to the Supreme Court to plead for an oral hearing of the case in order to explain better the implications of the decision. Thus, an exhaustive constitutional review and the oral hearing in the Supreme Court were held in July 2004. On 1 December 2004, the Supreme Court reversed its January decision. It affirmed the legality of the FTAA. The High Court’s response pointed out that ‘whatever priority or preference may be given to mining vis-à-vis other economic or non-economic activities is a question of policy (not of constitutionality)’. In addition, such policy is something which the other two branches of government, the President and Congress, must address. Accordingly, the Supreme court ‘decided for the greater good of the greatest number’ and upheld the constitutionality of the Mining Act of 1995 (Supreme Court of the Philippines, 2004). The High Court ruled that the mining laws that were questioned earlier – the implementing rules and regulations (IRR) crafted by DENR, and the FTAA with WMC-Philippines which was executed in 1995 – do not breach the constitution. In the earlier decision handed in January 2004, the High Court had noted that the provision of Republic Act 7942 allowing foreign-owned corporations to operate and manage mining activities in the country violated the Charter on the grounds that it was in the nature of a ‘service contract’ (see Panganiban, 2005). The LRC-KsK submitted a motion for reconsideration of the Court’s ruling. However, on 1 February 2005, the Supreme Court denied the motion, thus upholding with finality the constitutionality of the Mining Act of 1995.
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Expectedly, the government and the minerals industry were euphoric with the High Tribunal’s pronouncement as this would pave the smoother path for implementing the Mining Act. Both the government and the minerals industry carried out a series of campaign activities to invite foreign mining investments to the Philippines. Both the MGB and the COMP had presented the Philippines as an investor-friendly country with a mining law that assures fiscal incentives such as tax holidays as well as non-fiscal incentives which include employment of foreign nationals, simplified customs information procedures and institutional assistance for faster business registration procedures. The marketing and campaign activities had displayed the close partnership between the government and the COMP, particularly in presenting the firm promining stance of President Gloria Macapagal-Arroyo. Prior to the High Tribunal’s December 2004 ruling in favour of the Mining Act, President Macapagal-Arroyo already declared her policy shift “from tolerance to promotion” of mining in 2003. In January 2004, the President subsequently issued Executive Order No. 270, also known as the National Policy Agenda on Revitalizing Mining in the Philippines. She also directed the DENR to complete a Minerals Action Plan (MAP) to guide the development of the local mining industry which included identifying the government’s priority mining projects. President Arroyo’s directives aimed to facilitate the processing time of mining applications. A test for the Mining Act’s effectiveness and the government’s policing capability Throughout most of 2005, the government and the minerals industry were at the height of promoting, at home and abroad, mining investments in the Philippines. The sustained information campaign on the government’s priority mining projects was generating remarkably encouraging pledges and memoranda of understanding (MOUs) from investors. While this was happening, another major tailings spillage occurred in the country. This time, the disaster involved an Australian mine operation which belongs to the 24 priority mining projects: the Rapu-rapu Pollymetallic Project. The company’s first production in July 2005 was a significant milestone for the country’s minerals industry because the RRP was the first to have opened and finally moved into production in the country within three decades (MGB, 2005). The project is considered by the government as critical to attracting more global investments into mining in the country (DENR, 2006; RFFC, 2006). Barely three months after RRP’s first gold production, mine tailings spilled from the company’s ore processing mill into nearby creeks, leading into the sea. Based on the Rapu-rapu Fact Finding Commission (RRFC) Report and the DENR Assessment Report, there were two incidents of spillage, i.e., on 11th and 31st October 2005. The cause of both incidents was grave mistakes ‘on the part of Lafayette management and operating personnel’, which the company admitted. Similarly, both incidents of mine tailings spills ‘released extremely high levels of cyanide into the nearby creeks and caused damage to the marine life’. The DENR admitted its culpability ‘in not being able to monitor’ in advance of any incident and acknowledged its being ‘dysfunctional’ as it failed to check on the company’s ‘crucial non-compliance’ to rules and regulations (DENR 2006.). The Rapu-rapu calamity clearly showed the critical weaknesses of the DENR as a regulatory agency. As admitted by DENR in its assessment report, the first spillage could have been corrected to avoid the second spillage (DENR 2006). The Rapu-rapu spillage incidents provided more credence to the predictions and general rhetoric of anti-mining advocates.
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Local government moratoriums against mining While the national government has been marketing the Philippines to attract foreign investments in mining, a number of local governments have aimed to impede the implementation of the Mining Act. In 1999, the Capiz provincial government declared a 15-year moratorium on all large-scale mining. The Oriental Mindoro provincial government declared a 25-year moratorium on mining since 2000, particularly opposing the plan of the Canadian Crew Minerals Development Corporation to undertake open-pit mining in the province. Currently, the most controversial opposition to mining by local governments, supported by constituent populations, are found in Palawan (see MISN, 2010), Romblon, and South Cotabato (Minda News, 2010, 11 June, 2011, 18 February). Lower-level local governments such as municipalities have also issued related ordinances in an attempt to restrict if not disallow the entry of exploration and mining projects. Organised and sustained opposition to mining by local government, backed up by concerned citizens, has recently demonstrated that indomitable mining companies do eventually get dissuaded to withdraw. This is demonstrated in the case of Ivanhoe-Philippines, a subsidiary of Canadian Ivanhoe Mines Ltd. The company decided to abandon its plans to explore copper-gold prospects in the province of Romblon citing local politicians’ opposition as a reason (see PDI, GMA News Online, 2011, 13 January; 2011, 13 October). Advocacy to deter mining projects The ultimate recipients of the adverse effects, both direct and indirect, of mining are the poor natural resource-dependent communities that rely on fishing and agriculture, two common livelihoods in rural areas of the Philippines. Also, indigenous peoples in upland areas and remote locations face ruinous effects on their way-of-life and cultural practices given their dependence on land and access to various resources such as water, forests and animals. With the number of mining projects speedily entering many parts of the Philippines, these vulnerable populations want their apprehensions heard and subsequently addressed appropriately. They turn for help to available advocates who would support and represent their cause. In specific municipalities or provinces, the champions may include local government officials. Others are civic organisations. At the national level, some help is often found in the Roman Catholic Church. The religious sector of mining oppositionists includes Catholic clergymen, particularly the politically influential Catholic Bishops Conference of the Philippines (CBCP) that raises a moral issue in regard to mining: the land must not be ‘defiled’, the environment protected and the disadvantaged sectors particularly the indigenous peoples must not be displaced. The CBCP has been vocal in its criticism of mining. As early as 1998, it issued an official statement demanding the repeal of the Mining Act (CBCP, 2006; CBCP, 1998). In 2006, the CBCP called the Arroyo government to cancel ‘all concessions and deny all applications’ (The Manila Times, 2006). In addition to the collective declaration by the CBCP, individual bishops have been crusading against opening mining to foreigners, criticizing mining companies, and blaming the industry for deaths in natural disasters (see Catholic News, 2006; Catholic News, 2007). Most recently, the bishops declared anew their commitment to the environment. In a particular case, they have stressed their rejection of mining projects in Palawan to avoid despoiling the province’s subterranean river (CBCP Online Radio, 2011, 17 November). 10
The clergymen are supported by the advocacy activities carried out by nationalist groups that tend to be ideological in orientation and whose rhetoric appeals to citizens and communities desperate for support. Their discourse includes claims to stop the entry of transnational mining companies into the Philippines as foreign mining companies are ‘imperialist plunderers’. Many nationalist organisations are either directly allied with or sympathetic to BAYAN (Bagong Alyansa Makabayan)10, a leftist supra-organisation that coordinates mass movements. BAYAN takes a political position during elections and represents peasants, industrial workers, women, jeepney drivers, teachers, indigenous peoples, and others. BAYAN organisations are overtly revolutionary and seek involvement in any constituency of resistance that they can identify. Conclusion The ebb and flow of the Philippines’ Mining Act of 1995 demonstrate that the passage of a mining law is simply the beginning of another process of negotiating claims and counterclaims of many stakeholders. The Philippine State has expended enormous resources – policy, administrative structure, and extensive promotional activities – to revive the minerals industry that stagnated for years. However, serious consequences of the failure in both previous and current state policies and enforcement eventually emerged, as they are bound to emerge, to draw attention to fundamental problems that require resolution. These were exemplified by the Marcopper disaster and subsequently the Rapu-rapu tailings spillages. Having an existing mining law is one thing, implementing it effectively is another matter. The Filipinos’ religious and political culture brings important dimensions to how policy on mineral exploitation is formulated and implemented. The role of NGOs and the Church could not be more important in maintaining the needed voice in the way a mining law directs mineral development. The Catholic Church infuses ideas of ethics and morality as the government talks of the Mining Act of 1995 as bringing hopes for economic growth by drawing in the much needed foreign capital through investments from overseas. However, the responses of concerned citizens to the mining law confirm the nationalist discourse that questions the capability of mining, particularly through foreign investments, as a vehicle for sustained development. In addition, there lingers a continuing general lack of trust among many Filipinos that mining companies will be dutiful to sincerely fulfil the law. There is general scepticism among ordinary citizens about the government’s capability and political will to carry out its policing functions. Vulnerable citizens find the mining oppositionists as valuable channels for their demands and aspirations for better changes. The strong position of NGOs and clergymen serves to counter the generally perceived durable and intimate alliance between government and business interests. ‘Resource nationalism’ builds on citizens’ profound awareness and commitment that protection of their lands and the environment as well as the way mineral resources are disposed lie primarily on themselves. Having had real experiences of mining-related disasters, local governments and citizens find the environmental safeguards promised by the Mining Act of 1995 as being too far-fetched from real. The effective implementation of a mining law hinges on the established trust of citizens on the national government.
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Bagong Alyansa Makabayan means ‘The New Patriotic Alliance’. For related information, see http://www.philippinerevolution.net
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References: Bremmer, I., & Johnston, R. (2009). The rise and fall of resource nationalism. Survival, 51(2), 149-158. Cabalda, M. V., Banaag, M. A., & Garces, R. B. (2002). Sustainable Development in the Philippine Minerals Industry: A Baseline Study.: Institute of Environment and Development and World Business Council for Sustainable Development. Cabalda, M. V., Banaag, M. A., Tidalgo, P. N. T., & Garces, R. B. (2002). Sustainable Development in the Philippine Minerals Industry: A Baseline Study: International Institute for Environment and Sustainable Development - World Business Council for Sustainable Development. Mines Minerals and Sustainable Development Project. Caballero, E. J. (1996). Gold from the Gods: Traditional Small-scale Miners in the Philippines. Quezon City: Giraffe Books. Catholic News. (2006, 18 December). Mining to blame for typhoon deaths, Filipino priest says Retrieved 17 October, 2007, from http://www.cathnews.com/news/612/93.php Catholic News. (2007, 29 January). Mining companies modern "Trojans", says Filipino bishop Retrieved 17 October, 2007, from http://www.cathnews.com/news/701/149.php CBCP (Catholic Bishops Conference of the Philippines) News Service. (2006, 29 January). A statement on mining issues and concerns - "Do not defile the land where you live and where I dwell"(Num. 35:34) Retrieved 17 October, 2007, from http://www.cbcpworld.com/cbcpnews/html/miningissues.html CBCP (Catholic Bishops Conference of the Philippines) Online Radio. (2011, 17 November). Church calls for renewed commitment to the environment. Retrieved 19 November, 2011, from http://cbcponlineradio.com/?p=6624 CBCP (Catholics Bishops Conference of the Philippines). (1998). A statement of concern on the Mining Act of 1995 Retrieved 14 March, 2003, from http://www.philsolnl/A00a/CBCPmining-feb98.htm Cinco, J. C. (1995). The Philippines. Mining Annual Review(July), 127. Clancy, M. (2005). The rebirth of the Philippine mining industry (pp. 1-9). Makati, Philippines: Philippine Business Leaders Forum Inc.,. Congress of the Philippines. (1902). The Philippine Bill of July 1, 1902 - Act of Congress of July First, Nineteen Hundred And Two, "The Philippine Bill." An Act Temporarily to Provide for the Administration of the Affairs Of Civil Government in the Philippine Islands, and for Other Purposes: Retrieved 31 May, 2007, from http://www.chanrobles.com/philippinebillof1902.htm. Constantino, R. (1975). A History of the Philippines. New York and London: Monthly Review Press. DENR (Department of Environment and Natural Resources). (2006). DENR Assessment of the Rapu-rapu Polymetallic Project. Quezon City: Mines and Geosciences Bureau. Retrieved 20 January, 2007, from http://www.mgb.gov.ph/miningissues/rapurapu/rapurapuassessment.pdf. 12
Domingo, E. G. (2003, 8-9 October). Public policy initiatives in institutionalising CSR in the Philippine mining industry. Paper presented at the World Bank International Conference on Public Policy for Corporate Social Responsibility, Washington D.C. Dunuan, E. S. (2003). The IPRA: its impact on mining. Chamber of Mines of the Philippines Newsletter, 28(31), 10-11. Executive Order 279. (1987). Authorizing the Secretary of Environment and Natural Resources to Negotiate and Conclude Joint Venture, Co-Production, or Production-Sharing Agreements for the Exploration, Development and Utilization of Mineral Resources, and Prescribing the Guidelines for Such Agreements and Those Agreements Involving Technical or Financial Assistance by Foreign-Owned Corporations for Large-Scale Exploration, Development, and Utilization of Minerals -- Full Text published online by the Supreme Court E-Library Retrieved 14 March, 2007, from http://elibrary.supremecourt.gov.ph/index10.php?doctype=Executive%20Orders&docid= a45475a11ec72b843d74959b60fd7bd6469d525320bc3#sam GMA News Online. (2011, 13 January). Romblon gov orders moratorium on all metallic mining Retrieved 10 November, 2011, from http://www.gmanews.tv/story/210483/regions/romblon-gov-orders-moratorium-on-allmetallic-mining Leonen, M. (2004). Weaving worldviews: implications of constitutional challenges to the Indigenous Peoples Rights Act of 1997. Social Policy and the Law (Journal of the Integrated Bar of the Philippines), Vol. 30 1st and 2nd Quarters 2004(1), 153-184. Lopez, S. P. (1992). Isles of Gold: A History of Mining in the Philippines. Singapore: Oxford University Press. Lynch, O. J. (1986). Philippine law and upland tenure. In S. Fujisaka, P. Sajise & R. Castillo (Eds.), Man, Agriculture, and the Tropical Forest: Change and Development in the Philippine Uplands (pp. 269-292). Bangkok: Winrock International Institute for Agricultural Development. Malig, M. L. (2002). Sustaining Poverty: The National Report on Sustainable Development in the Philippines. Retrieved 31 July, 2007, from http://focusweb.org/publications/Books/National-report-on-sd.pdf. MGB (Mines and Geosciences Bureau). (2005). Rapu-rapu mines pour first gold Retrieved 12 August, 2005, from http://www.mgb.gov.ph/news/072005_rapurapu.htm Minda News. (2010, 11 June). South Cot approves environment code, bans open pit mining Retrieved 6 June, 2011, from http://www.mindanews.com/environment/2010/06/11/south-cot-approves-environmentcode-bans-open-pit-mining/ Minda News. (2011, 18 February). Tampakan project is ‘catastrophe in the making,’ militant group says Retrieved 23 July, 2011, from http://www.mindanews.com/topstories/2011/02/18/tampakan-project-is-%E2%80%98catastrophe-in-themaking%E2%80%99-militant-group-says/ MISN (Mining Injustice Solidarity Network). (2010). PCSD endorsement to Macroasia multibillion giant deferred: an initial victory for NGOs and indigenous peoples Retrieved 2 13
October, 2011, from http://www.solidarityresponse.net/palawan-unesco-man-andbiosphere-reserve-sold-out-to-mining-companies-last-government-decision-on-30-july/ NCIP Administrative Order No.3 Series of 2002. (2002). Revised Guidelines for the Issuance of Certification Precondition and the Free and Prior Informed Consent in Connection with Applications for License, Permit, Agreement or Concession to Implement and or Operate Programs/Projects/Plans/Business or Investments Including Other Similar or Analogous Activities or Undertaking that do not Involve Issuance of License, Permit, Agreement or Concession but Requires the Free and Prior Informed Consent of ICC/IP Community in Ancestral Domain Areas in Accordance with R.A. 8731. Panganiban, A. V. (2005). Invest in the whole country, not just in the mining industry. Paper presented at the International Mining Investment Conference, Makati City, Philippines. 3 February. Pasimio, H. J. (2005, November). Extracting Growth from Mining Retrieved 23 March, 2006, from http://www.senate.gov.ph/publications/PI%20200511%20ExtractingGrowth%20from%20Mining.pdf PD 463 (Presidential Decree No. 463). (1974). Providing for a Modernized System of Administration and Disposition of Mineral Lands and to Promote and Encourage the Development and Exploitation Thereof -- Full Text published online by the Chan Robles Virtual Law Library Retrieved 14 March, 2007, from www.chanrobles.com/presidentialdecrees/presidentialdecreeno463.html PD 1198 (Presidential Decree No. 1198). (1977). Requiring All Individuals, Partnerships or Corporations Engaged in the Exploration, Development and Exploitation of Natural Resources or in the Construction of Infrastructure Projects to Restore or Rehabilitate Areas Subject Thereof or Affected Thereby to Their Original Condition -- Full Text published online by the Chan Robles Virtual Law Library Retrieved 14 March, 2007, from www.chanrobles.com/presidentialdecrees/presidentialdecreeno1198.html PDI (Philippine Daily Inquirer). (2011, 13 October). Ivanhoe drops mining exploration plans for Romblon: Local pols’ opposition cited. Retrieved 31 October, 2011, from http://business.inquirer.net/24567/ivanhoe-drops-mining-exploration-plans-for-romblon Plumlee, G. S., Morton, R. A., Boyle, T. P., Medlin, J. H., & Centeno, J. A. (2000). An Overview of Mining-Related Environmental and Human Health Issues, Marinduque Island, Philippines: Observations from a Joint US Geological Survey - Armed Forces Institute of Pathology Reconnaissance Field Evaluation, May 12-19, 2000 Retrieved 9 March, 2006, from http://pubs.usgs.gov/of/2000/ofr-00-0397/ofr-00-0397.pdf Ramos, H. C., Cabalda, M. V., & Banaag, M. A. (2000, 25-27 October). Tailings dam accidents and the use of chemicals in mining -- issues, policy response and lessons learned from the Philippines. Paper presented at the International Workshop on Environmental Regulation for Accident Prevention in Mining -- Tailings and Chemicals Management, Perth, Australia. Rapu-Rapu Fact-Finding Commission. (2006). Findings and Recommendations of the Factfinding Commission on the Mining Operations in Rapu-Rapu Island Retrieved 31 December, 2007, from http://www.mgb.gov.ph/miningissues/rapurapu/rrffcreport.pdf 14
Republic Act No. 6364. (1971). An Act Amending Republic Act Numbered Thirty Hundred Eighty-Nine, As Amended, Entitled "An Act to Provide for Assistance to the Gold Mining Industry" -- Full Text published online by the Supreme Court E-Library Retrieved 14 March, 2007, from http://elibrary.supremecourt.gov.ph/republic_acts.php?doctype=Republic%20Acts&docid =a45475a11ec72b843d74959b60fd7bd645af92adc0d66 Supreme Court of the Philippines. (2000, 6 December). EN BANC [G.R. No. 135385. December 6, 2000] Cruz vs Sec. of Environment and Natural Resources Retrieved 1 April, 2006, from http://www.supremecourt.gov.ph/jurisprudence/2000/dec2000/135385.htm Supreme Court of the Philippines. (2004). Supreme Court Decision on WMC FTAA Retrieved 4 December, 2004, from http://www.supremecourt.gov.ph/jurisprudence/2004/dec2004/127882.htm The Manila Times. (2006, 6 February). Bishops’ antimining drive breathes life to old debate Retrieved 27 April, 2007, from www.manilatimes.net/national/2006/feb/06/yehey/top_stories/20060206top5.html Ward, H. (2009). Resource nationalism and sustainable development: a primer and key issues. IIED Working Paper. Retrieved 12 Nov, 2011, from http://pubs.iied.org/pdfs/G02507.pdf
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