What’s new in mining EO?
BY: ERROL A. GATUMBATO
President Benigno Simeon Aquino III will deliver his 3rd State of the Nation Address at the opening of Congress this afternoon. I am pretty sure the President will take note of Executive Order 79, which he signed two weeks ago. The EO is entitled “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 issuance of this new EO is in consonance with Republic Act 7492, commonly known as the Philippine Mining Act of 1995.
The mining sector came out with a statement supporting the EO, while cause oriented groups lambasted it to support foreign and large scale mining industries in plundering our mineral resources. Some environmental advocates are critical on the EO, especially so that it affirms the continuity of existing mining operations. The main purposes by which the EO was formulated include the improvement of environmental mining standards and increase revenues to promote sustainable economic development and social growth, both at the national and local levels. From this provision of the EO, it is very clear that the Aquino administration is bending to pursue mining industry as one of the economic pillars of the country. How the so called environmental mining standards shall be implemented remains to be seen, given the lackluster performance of mining companies in keeping environmental protection measures. Most if not all mining operations in the country entail vegetation and landscape alteration.
The EO reiterates the closure of mining in areas specifically provided in the Mining Act, but it is worrying that it singled out the closure
of mining in protected areas “categorized and established” under the National Integrated Protected Areas System Act or RA 7586. Under RA 7586, there are numerous initial components, comprising of “areas or islands in the country that have been proclaimed , designated or set aside, pursuant to a law, presidential decree, presidential proclamation or executive order as national park, game refuge, bird and wildlife sanctuary, wilderness area, strict nature reserve, watershed, mangrove reserve, fish sanctuary, natural and historical landmark, protected and managed landscape/seascape as well as identified virgin forest before the effectivity of the NIPAS Act”, that are not yet technically proclaimed and designated under the NIPAS as protected areas. Would this mean that the new EO will allow mining operations in those protected areas not yet proclaimed under the NIPAS? Most of these sites are included in the list of Key Biodiversity Areas of the Philippines.
In addition, the EO disallows mining in prime agricultural lands, including areas covered by Comprehensive Agrarian Reform Law or RA 6657. Plantations and areas devoted to valuable crops, and strategic agricultural and fisheries developments zones, as well as fish refuge and sanctuaries, as declared by the Department of Agriculture, shall also be exempted from mining. It should be noted that there are fish refuge and sanctuaries declared by local government units under the current Fishery Code of the Philippines, and will these sites be opened to mining, too? EO 79 further identified tourism development sites as no-mining zones in the Philippines. However, these tourism sites shall specifically be provided in the National Tourism Development Plan. There are 78 sites in the country that have been included in NTDP covering the period from 2011 to 2016. These sites are presented in the table below.
List of Cluster Destinations and Tourism Development Areas
Tourism Development Areas
|NorthernPhilippines||NP-1: Batanes, CagayanCoast and Babuyan
|NP-1A: Batanes IslandNP-1B: Babuyan Island
NP-1C: Cagayan Coast
|NP-2: Laoag-Vigan||NP-2A: Laoag-PagudpudNP-2B: Vigan|
|NP-3: Sierra Madre
|NP3-A: Tuguegarao-TabukNP3-B: Ilagan & Isabela Coast
|NP-4: Cordillera||NP4-A: Central CordilleraNP4-B: Benguet-Baguio-Mt. Province
NP4-C: Nueva Vizcaya
|NP-5: Lingayen Gulf||NP5-A: La Union CoastNP5-B: Western Pangasinan Loop
NP5-C: East Pangasinan Circuit
NP5-D: Lingayen Coast & Islands
|NP-6: Central Luzon||NP6-A: Subic-Clark-Tarlac CorridorNP6-B: Nueva Ecija
NP6-E: Zambales Coast
NP6-F: Bataan Coast and Inland
|NP-7: Metro Manila andCALABARZON||NP7-A: Metro Manila & EnvironsNP7-B: Nasugbu-Looc-Ternate-
NP7-C: Laguna de Bay
NP7-D: Batangas Peninsula
NP7-E; Quezon Coast & Islands
|CentralPhilippines||CP-1: Bicol||CP1-A: Camarines & CatanduanesCP1-B: Albay-Sorsogon-Masbate|
|CP2-A: Marinduque IslandCP2-B: Romblon Island
CP2-C: Puerto Galera
CP2-D: Southwest Mindoro Coast
|CP-3: Palawan||CP3-A: San Vicente-El Nido-TaytayCP3-B: Puerto Princesa
CP3-C: Southern Palawan
CP3-D: Busuanga-Coron-Culion Islands
|CP-4: Western Visayas||CP4-A: Metro Iloilo-GuimarasCP4-B: Bacolod-Silay
CP4-C: Boracay Island-Northern
The EO also provides that other critical areas and island ecosystems are closed to mining, which shall be determined by the Department of Environment and Natural Resources. This provision is quite vague because basically most of the islands in the Philippines are categorized as island ecosystems and critical areas using forest cover and threatened species as main indicators.
The new presidential directive on mining declares a moratorium in the issuance of new mining permits, but honors and affirms the operations of the prior approved mining tenements. Existing mining operations shall be subjected to review and evaluation as to their compliance with environmental standards, laws and regulations. A multi-sectoral team, to be led by DENR, shall undertake the review of the performance of existing mining operations.
In declaring a moratorium for new mining permits, the EO cited the need for a new legislation pertaining to the rationalization of the existing mining revenue sharing schemes and mechanisms, which I guess the President will present to the Congress this afternoon as part of his priority legislative agenda. Aquino is so clever that he puts the burden now to the Congress in deciding the fate of new mining permits in the Philippines. On a positive note, however, this development gives the Congress the opportunity to review not only the mining revenue schemes but the totality of the Mining Act, especially so there are several pending bills in Congress related to mining. Some sectors are even demanding for the scrapping of the existing Mining Act. How the review process at the Congress will proceed is something that we should keenly watch. But what will happen if the Congress will not consider the proposed mining measure of the President?
One of the controversial provisions of EO 79 is on ordinances issued by local government units on mining. Numerous LGUs issued ordinances and resolutions declaring mining ban on their respective territorial jurisdictions. According to Albay Governor Joey Salceda, one of the allies of the President who is taking a contrary position on mining, at least 40 provinces have passed ordinances that ban, restrict and regulate mining, especially on large-scale mining operations.
Section 12 of the new mining EO directed the Department of the Interior and Local Governments and LGUs to ensure consistency and conformity in exercising their powers and functions to the “regulations, decisions 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 RA 7942 and its implementing rules and regulations, while recognizing the need for social acceptance of proposed mining projects and activities”. The EO further specifies that “LGUs shall confine themselves only to the imposition of reasonable limitations on mining activities conducted within their respective territorial jurisdiction that are consistent with national laws and regulations”.
While there is no question as to the supremacy of national laws over local ordinances, this is not merely the main consideration in undermining the position of LGUs against mining. It is important to note that no less than the 1987 Philippine Constitution requires the participation of local governments in maintaining ecological balance in their respective localities. If the LGUs have scientific facts and direct experience on the adverse impacts of mining to the ecology, then passing an ordinance against mining to ensure general welfare and safety of their constituents is a valid exercise. Of course, lawyers will have the most brilliant arguments relative to this, but it is also very necessary that we should consider the social acceptability clause of various regulations, such as the Environmental Impact Assessment System and the Local Government Code.
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