Undermining local governments on mining
BY: ERROL A. GATUMBATO
President Benigno Simeon Aquino III is set to sign a new Executive Order on mining, which according to Environment and Natural Resources Secretary Ramon Paje will affirm the superiority of the national law over ordinances passed by local governments. While there is no argument on the validity of this legal premise, it should not be taken as the sole consideration in crafting an executive order that may jeopardize the safety, health and general welfare of the people, and the environment.
The new mining EO is being considered because of the perceived deficiency of Republic Act 7942 or the Philippine Mining Act of 1995. Many conservationists fear that this proposed EO would only advance large scale mining that will affect localities where the remaining forests and rich biodiversity are also found. Numerous issues, such as landscape alteration, deforestation, pollution, disposal of toxic and hazardous substances, and human rights violations, have been raised by various groups on the operations of several large-scale mining companies in the Philippines. On the other hand, the mining sector is claiming its huge contribution in fueling the economy, particularly in providing local employment and basic services, and promotion of environmental programs and projects.
The constitutionality of the Mining Act was challenged in the Supreme Court a few years back. The SC, however, overturned its first promulgation declaring the unconstitutionality of RA 7942 thereby making the mining as one of the major economic platforms of the national government. In spite of this ruling, several local government units are still not in agreement with the decision made by SC. With the rule-making functions and powers provided by the Local Government Code, several LGUs expressed their sentiments by enacting ordinances banning mining operations in their respective territorial jurisdictions. Paje was quoted in media reports last week saying that the national government will honor these local ordinances unless they have been rendered illegal. Earlier this year, the Department of Environment and Natural Resources has denied the application for Environmental Compliance Certificate of the $6-billion Tampacan copper and gold mine by Sagittarius Mining in Cotabato, on the basis of an existing local ordinance, which disallows open-pit mining in the said province.
It should be noted that mining operations are covered with the Environmental Impact Assessment System of the Philippines. Under
this regulation, prior to actual mining operations, the proponent shall conduct comprehensive EIA as the basis of the DENR to grant or deny the ECC. The scope of the EIA includes determination of social acceptability, which will affirm if local stakeholders are amendable with the proposed mining project. In the ancestral domains, Free and Prior Informed Consent from the IPs is a requirement before mining activities can proceed, as provided in RA 8371 or the Indigenous People’s Right Act.
I therefore consider that local ordinances banning mining are also legal instruments on local governments’ position relative to the social acceptability requirement of the EIAS. The DENR administers the implementation of the EIAS and will it the first to overturn its equally important and related guideline on mining? Similarly, the DENR, jointly with the Department of Interior and Local Governments, has issued a memorandum circular requiring its field offices to secure prior comments from LGUs on any proposed program or project that shall be implemented in a particular locality, especially if the proposal involves the use of natural resources.
Albay Governor Joey Salceda claimed in media reports that he and 39 other governors are planning to challenge before the Supreme Court the new mining policy of the administration once it will be signed by the President. Salceda added 40 provinces have passed ordinances that ban, restrict and regulate mining, especially on large-scale mining operations. How the Aquino administration will stand on mining relative to the concerns and opposition raised by LGUs merits closer scrutiny, indeed.
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