COMMENTARY: EO 79 on Mining – a Mixed Bag. by Fr. Joel Tabora, S.J.

DAVAO CITY (MindaNews/12 July) — Tony La Viña of the AdMU School of Government said that the long-awaited, oft postponed E.O. on Mining would be a disappointment for everyone.  He was incorrect.  The miners are applauding.

The E.O. is a mixed bag.  It doesn’t please everyone.  It didn’t try to.  But I wish I were less disappointed than I am.  And that environmentalists I know were less disillusioned.

Of course, there are items in the E.O. that should make me happy.  And I would be lying were I to say I am not happy for them.  Already the title provides hope:  “Institutionalizing and Implementing Reforms in the Philippine Mining Sector, Providing Policies and Guidelines to Ensure Environmental Protection and Responsible Mining in the Utilization of Mineral Resources.”   The intention was right.  So much promise:  to ensure environmental protection, to ensure responsible mining, even in the use of mineral resources.

In this context, the E.O reiterates that mining should not be undertaken where it should not be undertaken, e.g. near cemeteries, archeological sites, waterways, reservoirs, old growth forests, protected areas, and prime agricultural lands.  It even refers to 78 tourist sites.  That’s the law. But law is empty verbiage when  mining is undertaken where it should not be undertaken.  In the face of huge investments, it is easier to re-zone protected areas than to re-zone mining interests. It is easier to shut your eyes to the reservoirs close by, or to the sacred archeological sites that some consider just ugly mountains.  Nothing in the E.O. convinces that mining will be kept out of areas where it should not be.

Of course I should be happy that the message that the Filipino people is being shortchanged by the policies that govern the mining industry has reached the President. That is why in his E.O. he has stated that “No new mineral agreements shall be entered into until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect” (Sec 4).

“Rationalizing” here is a wildcard whose meaning depends on the logical system within which one is “rationating” or reasoning.  What is reasonable to the mining investor may be totally unreasonable to the community affected by mining; what is reasonable to a government primarily interested in a growth economy is unreasonable to a government interested the preservation of indigenous cultures.  Where the Constitution says that minerals are “owned by the State” (Art. 12), what is rational to the foreign businessman may be completely irrational to the Filipino development planner.  If part of the rationality of the legislation is truly poverty alleviation for the Filipino people, demanding thirty percent of the minerals product may be completely rational, but totally irrational to a profit-maximizing investor.  I am unhappy that despite the verbiage, there is no further clarification of the rational legislation that administration seeks.  It cedes its leadership responsibility totally to the legislature.

Another reason why I’m unhappy?  The E.O. demands new legislation to improve the take of government in the fruits of mining, but it does not demand new legislation to better protect the environment.  Instead it relies on the Philippine Mining Act of 1995 (RA 7942) as its legal foundation.  I am unhappy that despite the beating the Philippine environment has taken or may continue to take at the hands of miners under this law, the E.O. shows no sensitivity for its flaws, and no honesty relative to government’s ability to properly  implement it, but seems instead to canonize it.  Considering that forests once covered the Philippines but were depleted to its current sorry state by “rational” people, the E.O. shows no sensitivity to the need to conserve minerals for generations beyond our own against the consuming rapaciousness of a minerals-ravenous globe.  After all, don’t we all use celfons?  Despite the cozy collaboration between the Economic Cluster and the Climate Change Adaptation and Mitigation Cluster in the Mining Industry Coordinating Council (Sec. 8), the E.O. does not solve the hopelessly conflicted situation of the DENR which is simultaneously the conserver of the environment and the exploiter of its natural resources.

There is no better example of this than in the manner in which the DENR has conducted itself in handling the contentious SMI/Xstrata mining application for environmental clearance in South Cotabato.  On the one hand, it has already twice denied environmental clearance to SMI/Xstrata because of the alleged conflict between the national law that does not prohibit open pit mining and the local ordinance which prohibits it.  When DENR Sec. Paje was asked how the E.O. would affect the SMI/Xstrata application, he actually stated that the E.O. addressed the problem, referring to its Section 12, “Consistency of Local Ordinance with the Constitution and National Laws / LGU Cooperation.”  He said that the Department of Interior and Local Government (DILG) was directed by the EO “to ensure that the exercise of the latter’s powers and functions is consistent with and conforms to the regulations, decision, and policies already promulgated and taken by the National Government relating to the conservation, management, development and proper utilization of the State’s mineral resources, particularly R.A. 7942 and its IRR…”  I think he meant that the DILG could now solve the problem between the local ordinance and the law, wanting finally that SMI/Xstrata be allowed its clearance.  At the same time, he himself stated that the local ordinances are valid until they are proven invalid.  I think this means that DILG would have the burden of proving that there is an inconsistency between the local ordinance, which always has the presumption of constitutionality, and the national law.  Here, Sec. Paje’s open support for SMI/Xstrata as DENR’s promoter of national resources is checked by his own statement that the ordinance is valid.

I am therefore happy that South Cotabato’s Sanggunian Panlalawigan stated yesterday that it had no reason to take up the E.O. since its ordinance is valid.

In fact, when the E.O. states that “LGUs shall confine themselves only to the imposition of reasonable limitations on mining activities conducted within their respective territorial jurisdictions that are consistent with national laws and regulations” (ibid), the protection of the environment from the adverse effects of a 500-hectare large, 800 meter deep open pit, just 12 kilometers away from an active volcano and close to an existing reservoir has to be accepted as “rational.”

I guess SMI/Xstrata is unhappy that the E.O doesn’t give it an environmental clearance, as I am unhappy that the E.O. doesn’t show enough political will on the part of the Aquino Administration to reject the project not merely on legal grounds but on environmental grounds.  Because of its forests, its waterways, its endemic species, its agricultural value it should be rejected.  For that, a new E.O. was not needed, but such a commitment to responsible mining that it would take it away from Tampakan. (MindaViews is the opinion section of MindaNews. Fr. Joel Tabora, SJ,  is the president of the Ateneo de Davao University which convened in January this year the International Conference on Mining in Mindanao)