SOMEONE ELSE’S WINDOWS: Open pitfall by H. Marcos C. Mordeno

MALAYBALAY CITY  (MindaNews/28 June) —  Reacting to the approval by the Sangguniang Panlalawigan of South Cotabato of the Provincial Environment Code that bans open pit mining, John B. Arnaldo, communications officer of Sagittarius Mines Inc. was quoted by MindaNews to have said that “a local law cannot supersede a national law (Mining Law of 1995)”. Days after, the Regional Development Council of Region 12 asked outgoing Gov. Daisy Avance-Fuentes to veto the ordinance, citing the same legal argument.

Arnaldo’s and RDC 12’s pronouncements can be interpreted as warnings that they would be willing to bring the matter to court if the governor signs the code. Their argument reveals two things: 1] with their avid defense of the open pit method, the mining industry only treats the environment as an afterthought, if at all; and 2] they view the Mining Act as a supra-law which should be interpreted as a stand-alone legislation and not in relation to the other laws, specifically those dealing with the environment and the powers of local government units.

What one should bear in mind is that the code does not challenge the Mining Act itself. It simply seeks to mitigate ecological impact [of mining activities] by regulating the methods to be used in extracting the minerals, a measure consistent with the general welfare clause (Section 16) of the Local Government Code of 1991 (Republic Act 7160). This provision empowers local government units to “ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology…” [emphasis added]

Can local governments be restrained from exercising this power in relation to whatever powers may have been vested in agencies tasked to implement the Mining Act? Section 5(c) of RA 7160 gives a hint: “The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community.”

Note that this section deliberately states “economic development” and “quality of life” as two distinct elements. The basis for constructing this provision in this manner is simple: Economic development does not and cannot encompass the whole range of quality of life, which includes the right to a healthy environment.

Section 16 of Article II (State Policies) of the 1987 Constitution also provides: “The 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.”

The Mining Act itself recognizes this policy in Sections 19, 69, 70 and 71. Section 19(f) prohibits mining in old growth or virgin forests, proclaimed watersheds, wilderness areas, mangrove forests, national parks, and other areas covered by the National Integrated Protected areas System (NIPAS) Act and other laws. MindaNews reported that Gov. Fuentes was particularly apprehensive of the impact of mining on water sources and subsequently on agriculture in the province. She should also determine if SMI’s operations would cut across virgin forests and other ecologically critical areas.

Sections 69, 70 and 71 on the other hand deal with measures pertaining to environmental protection and mitigation of the impacts of mining activities.

More significantly, Section 27 of RA 7160 requires projects or programs implemented by government agencies to obtain the prior approval of the sanggunian concerned. The power to approve implies the accompanying power to revoke such approval, a power which the Sangguniang Panlalawigan of South Cotabato may exercise if the other party refuses to abide by the terms of the environment code which the governor said she would likely sign.

If Fuentes signs the code, expect SMI to question its legality all the way to the Supreme Court. It would be interesting to watch how the SC would decide on another landmark case involving the Mining Act. Where will the burden of proof lie? Will the Court be convinced by the evidences of the ill-effects of the open pit method or will it give credence to assurances by SMI that its activity will not cause extensive damage to the environment?

As of now, the ball is in the governor’s hands. (MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at [email protected])