ADVOCACY MINDANOW: Mining’s big fight

DIPOLOG VISIT — I was back in Dipolog City a few days ago. There’s an interesting and important court case now before the Regional Trial Court there.  And it’s worth watching because the court ruling is crucial on issues on mining, local autonomy, police powers of the state, and other issues clearly with constitutional undertones.   It may help resolve the pestering question: if a local legislation comes in conflict with national laws, which one should prevail? Collateral to this is the question on whether the local Sanggunian Panglunsod (SP) or Provincial Board has the authority to pass an ordinance that will outlaw what the national law, the Mining Act allows. Or whether the so-called powers under the local autonomy law allow the LGUs to abridge effective and subsisting contracts. There are still a host of other collateral issues.  This Dipolog case will eventually end up in the highest levels: the Supreme Court. It will be precedent setting.

POLICY ISSUES –There are also policy issues.

For example: Is the national government now under President Aquino really dead serious in its announced policy that it is supporting mining? If so, why are the anti-mining elements in the present administration doing their own thing as if they have their own agenda and ignoring, nay, undermining if not embarrassing, the president’s own public avowals?

On the other hand, perhaps the president himself is indeed NOT supportive of mining. If so, this must be clearly spelled out so everyone, including investors, mostly foreign, will be properly advised. There should be no gray areas in policies. Clarity is needed.

HOW IT STARTED –Here’s how the controversy started.

In August, this year, the SP of Zamboanga Del Norte province quietly passed Ordinance no. ZN-11-128 totally banning open pit mining and giving the governor of the province “draconian” powers over “life or death” on a mining company operating within its territory.  He can play God. Good if done to protect or promote a greater good.  Bad if the purpose is for something else.  But that’s too early yet to tell.

TVI EXPERIENCE –TVI Resource Development (Phil) Inc. has been doing mining operations in its tenement and plant in Canatuan, Siocon town in Zamboanga del Norte for seven years now starting 2004, although exploration started 10 years earlier, in 1994.  Early in the game, it experienced problems and challenges. For example, TVI trucks were ambushed twice in 2002 killing 15 Subanens and injuring several other persons, mostly IPs. But it stayed the course. I was in charge of Mindanao then for Malacanang and I was directed to help clean up the mess. It’s been 17 years of TVI doing Mindanao. Then this Ordinance came.

TVI has a Mineral Production and Sharing Agreement (MPSA) with the Philippine government and has complied with all requirements to allow it to do open pit mining. In the years it has been in operations, it brought progress and development to Siocon which was then a sleepy, conflict- affected 4th class municipality becoming a 1st class unit with its economic boom clearly evident immediately as you get into town. Mindful of the issues about mining and how it destroys the environment, TVI when it first came to town, rolled up its sleeves and busied itself doing a cleanup of the poisonous and toxic waste left in the wake of crude, dangerous small-scale mining. Using the modern mining technology in accordance with stringent requirements of its own country of origin (Canada in this case), TVI went for it and eventually reaped recognitions and awards extolling its pioneering efforts in responsible and sustainable mining. Its Canatuan processing plant even became the Mecca of the curious and  the inquisitive — – observers, researchers, including  doubtful do-gooders  — as a showcase of what a model mining company should be.

Interestingly, the Zamboanga church hierarchy refused to even take a look at the site, steadfast in its opposition, (perhaps afraid to be confronted with the truth and therefore losing a favorite whipping boy?) But that’s par for the course.

I did several visits myself. I was fascinated seeing a “detox” plant to clean up wastes before they are dumped to posterity. I saw palay (for rice) lushly growing in one filled up dam. Their tailings dams were built along the best of the world standards.

TVI RESORT –I was first there at the TVI mountain top area about 10 years ago and from the helicopter I saw a cogonal hillside jotted with ugly diggings and tunnels, courtesy of small-scale miners at the height of their destructive trade. When I returned recently, I saw lush forests that TVI developed.  In fact, I told friends that I visited a mine site but I saw a resort.

Even the host indigenous people’s community, the Subanens which was hostile initially, is now the bulwark of TVI’s stakeholders’ support. The Siocon town, with a swashbuckling former ABS- CBN journalist for its  mayor (Cesar Soriano) eventually came around and is the strongest and loudest supporter of TVI for seeing up close its operations and recognizing its windfall effects on everyone in the area — and even beyond.

“SALIVATING?”  –Unfortunately for TVI, the provincial government, headed by 3-termer Gov. Rolando Yebes, saw it differently. He had been salivating for sometime hoping to get a piece of the action. Hounded by the thought that he could get more, beyond the pitiful  2% on gross revenues as excise tax that first goes to the national government, (by the way, taking  almost forever to remit to the province its 40% share of that pittance, of which it has to download 35% to Barangay Tabayo and 25 % to Siocon municipality) then bolstered  by the church anti-mining campaign championed by Bishop Manguiran no less, Gov. Yebes rallied his political cohorts in the SP to pass the Ordinance without anybody noticing it. For one reason or another, he did not affix his signature to it but allowed it to lapse into effectivity. One morning in November, TVI woke up to belatedly discover that the proposed ordinance was quietly approved 3 months earlier, already in effect and giving TVI  12 months to pack its bags and  get out of the province! Pronto!

“NEVER MIND” — The “go pack up order” shocked everyone. Never mind if TVI has still about 10 years to legally operate under the MPSA with about four years of estimated viable mine life left. Never mind if it has already infused $60 Million (PHP 2.5 Billion!) into its operations. Never mind if it sends about 1,000 gainfully employed and competent Filipino workers to the streets and join the throng of the unemployed. Never mind if the social benefits and royalties estimated at P75 to P100 million annually, given to host Subanen communities will have to also suddenly and prematurely stop. (No wonder the IPs mounted a rally in Dipolog town during the initial court hearings condemning the ordinance.) Never mind if it has built many roads, schoolhouses, gave livelihood programs, funded scholars, etc.  Never mind if TVI already offered to increase directly the municipal and provincial share by voluntarily setting up a rehabilitation fund under its social development and management project (SDMP)  for the LGUs to manage in coordination with other interested affected sectors to make up for the LGU’s pitiful share. Never mind if there is a contractual obligation in place between the national government and TVI and its terms abridged and thrown out of the window. Never mind if it sets the fuse to trigger a hemorrhaging of the vital lifeblood provided by the mining industry all throughout the country. Never mind if it closes down a company that has been the model of what a mining company should be.  Oh, a list of more “never minds” but those will suffice for the moment.

FIGHTING MOOD –In the face of all this, under the leadership of Canadian Clifford James, a maverick of sorts, an old hand in mining and a Mindanao adventurer since the 90’s, TVI   decided to give it a fight and not succumb. He filed a case in the Dipolog court for relief believing that the judge, a no-nonsense, soft-spoken former audit bureaucrat, former prosecutor, former law professor and known for his independence and clear legal mind, will rule on this on the merits, Zamboanga peninsula’s grip by political lords, notwithstanding.

“I intend to fight this to the end and will not allow the bullies to have their way,” Cliff told an equally fired-up crowd of miners and investors in a forum the other day at Makati, the country’s economic hub. He also warned his co-travelers in the mining industry that while TVI is willing and in fact going head-on for it single-handedly, a “domino effect” is looming in the horizon:  Tampakan, South Cotabato first, Zamboanga del Norte now. Perhaps, Zamboanga Sibugay next. And so on and so forth. The mining crowd cheered.

PROXY FIGHT –The Makati crowd   clapped and cheered for TVI’s Clifford James for taking on a survival fight for his company and his investors. They admired TVI for having the “balls” as the industry’s proxy in this fight.  But I think that’s as far as they can go. We know that businessmen are the most cowardly when it comes to fighting “city hall”, never mind if this is also a survival fight for the host IP communities, the stakeholders, the mining industry as a whole and on a higher plain, for the benefit of the Philippine economy as well.

Sadly, the national government appeared nonchalant by the wayside, watching helplessly “biting its nails” as this parade goes by. (The author, a journalist-lawyer, was former Chairman of the Mindanao Development Authority and Presidential Adviser for Mindanao during the administrations of President Ramos and President Arroyo.)