Errol Abada Gatumbato

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

EO 79 declares closure of mining in island ecosystems*

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.

Tourism sites identified in the National Tourism Program and protected areas proclaimed and categorized under the NIPAS are also closed to mining*

List of Cluster Destinations and Tourism Development Areas

Grouping

Cluster Destinations

Tourism Development Areas

NorthernPhilippines NP-1:  Batanes, CagayanCoast and Babuyan

Islands

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

NP3-C:  Quirino

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-C:  Pampanga

NP6-D:  Bulacan

NP6-E:  Zambales Coast

NP6-F:  Bataan Coast and Inland

NP6-G:  Aurora

NP-7:  Metro Manila andCALABARZON NP7-A:  Metro Manila & EnvironsNP7-B:  Nasugbu-Looc-Ternate-

Cavite Coast

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
CP-2:  MarinduqueMindoro-

Romblon

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

Antique-Kalibo

CP4-D:  Capiz

 

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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July 23, 2012 Posted by | Ecotourism, Governance, Mining, Protected Areas | 1 Comment

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

Almost the entire Polillo Group of Islands is also covered with mining exploration applications*

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.

Not even protected areas, like the Samar Island Natural Park, are spared from mining applications*

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.

July 2, 2012 Posted by | Governance, Mining | 2 Comments

Negros Occidental faces more ecological stress

BY: ERROL A. GATUMBATO

Negros Occidental has barely four percent forest cover out of its total land area*

The environmental condition of Negros Occidental is already in critical state with the deterioration of its numerous ecosystems. The natural forest of the province is hardly four percent of its total land area, and its capacity to provide ecological services is already threatened. The remaining forests of Negros Occidental are primarily confined in the Mount Kanla-on Natural Park, Northern Negros Natural Park, and some forest patches in the southern part of the province.  These minimal forests are not yet fully secured because they are still threatened with destruction, especially in southern Negros Occidental where there are several mining applications and operations. Mining is a key environmental concern not only in Negros Occidental but the entire country, because most mining sites are similarly situated in the remaining forested areas.  Mining operations entail forest clearing, landscape alteration, and pollution. Washouts from mining operations also find their way into river systems and ultimately into coastal and marine ecosystems. Mining activities also affect wildlife and their habitats. Based on scientific studies, the forests in southern part of the province serve as critical habitats of important wildlife species, many of which are already threatened with extinction in the wild. The presence of threatened species clearly indicates the bad and worsening state of the environment.

Adding pressures to the already deteriorating ecological situation of Negros Occidental are the proposed coal-fired power plant and the offshore magnetite sand mining. Coal is known as a dirty source of energy and it contributes carbon emission in the atmosphere, not to mention that it is likewise hazardous to human health. Coal-fired power plant is being entertained because of the reported power shortage in Negros Occidental but ultimately it will likely result to a more serious environmental problem. The proposed offshore magnetite sand mining in the different parts of the province is really a disturbing development because it will create environmental havoc. Very recently, a scoping was held for the environmental impact assessment of the proposed magnetite sand mining covering more than 20,000 hectares offshore areas in Silay City and EB Magalona. The reported proponent of this offshore mining is the Massart Mineral Resources, Inc. based in Ermita in Manila City.

This proposed mining operation will surely affect the coastal and marine ecosystems, because it involves dredging and barging and construction of port facilities, among others.   Just like the forest, the coastal and marine ecosystems in Negros Occidental are already in terrible state with limited mangrove forest left and the coral reefs are fragmented and in poor condition. The proposed offshore mining may possible cover mangrove sites, particularly in Barangay Balaring in Silay where mangroves are still available. The fact that this mining operation will entail dredging of minerals will loosen and destabilize the sand. Moreover, this mining claim will dislocate the economy of fishing communities because the proposed area of operation is basically within the municipal waters, which are intended as fishing grounds of municipal fisher folks. 

While it is true that these proposed environmentally critical projects may offer economic opportunities, it is very important that we shall also consider their social and environmental costs. Unfortunately, the environmental impact assessment in the Philippines does not provide detailed cost and benefit analysis and valuation, to determine if these proposed projects are indeed beneficial in the long-term.  The economic benefits derived from these projects may not be enough to compensate environmental damages and far below the ecological services provided by natural ecosystems. If all these projects will finally be approved, Negros Occidental will become highly industrialized but how long the critical ecosystems of the province can withstand with these?

May 17, 2011 Posted by | Coastal and Marine Ecosystems, Deforestation and Degradation, Ecosystems, Forest Ecosystem, Mining | 4 Comments

Mining threatens endemic species and habitats in southern Negros Occidental

BY: ERROL A. GATUMBATO

The remaining forest fragments in southern Negros Occidental are important habitats of threatened species*

It is quite unfortunate that in spite of the fragile ecological situation in Negros Occidental, there are still efforts to subject the southern part of the province with intensive mining operations. As reported in the VISAYAN DAILY STAR last week, the Philex Mining and Santa Barbara Development Corporations have applied for exploration permits with the Department of Environment and Natural Resources.  Approximately 3,501 hectares of Sipalay City and Cauayan town is covered with these exploration permits for copper and gold.  The VISAYAN DAILY STAR further reported that another mining company, the BF Mining Coporation, has similarly applied for a two-year mining exploration permit in six barangays also in Sipalay and Cauayan, covering a total of 4,722 hectares.  Combining the different mining applications, a total of 8,223 hectares in Sipalay and Cauayan shall be subjected with mining exploration, which is quite a large area.

These applications are intended only for exploratory activities and may not entail environmental destructions, but once mineral deposits are confirmed then full-scale mining operations will eventually follow.  The exploratory permits are based on initial information that Sipalay, Cauayan, and Hinobaan are among the mineral-rich areas of Negros Occidental. It was further reported that two other mining companies have previously conducted mining exploration for copper, gold, silver, and other mineral resources in these sites. Most probably, areas that will be covered by these mining exploration permits are timberlands in Cauayan and Sipalay.  Although most timberlands in the south have already been wiped out with forest cover by commercial logging before, there are still remaining forest patches in Sipalay and Cauayan that are critical habitats of numerous endemic species of Negros Island.

The forest fragments in the south are now getting the attention of conservation communities because of the rediscovery of the

Deforested areas in southern Negros Occidental await massive rehabilitation*

 Philippine Bare-backed fruit bat (Dobsonia chapmani) in a remote village in Sipalay. This species was once thought as extinct because it has never been recorded since 1963 until it was rediscovered in 2003 by the group of Dr. Ely Alcala of the Silliman University.  This mysterious species was earlier thought to be a Negros endemic species, until it was recorded in Cebu by the group of biologist Lisa Marie Paguntalan in 2001. Both the IUCN-World Conservation Union and the DENR have declared Dobsonia chapmani as critically endangered, because its population declined to about 80 percent over three generations (15-20 years). 

There are also other endemic wildlife species, such as the critically endangered Philippine spotted deer and the Visayan warty pig, surviving in the remaining forest fragments in southern Negros Occidental. The protection of the remaining forest and the rehabilitation of denuded areas are necessary for biologically important species to survive in the wild.  Mining operations will threatened the survival of these species because mining entails forest clearing, landscape alteration, and introduction of chemicals, among others.

The tourism potentials of southern Negros Occidental may also be affected once large-scale mining operations shall be allowed.  Washed outs from mining operations will find their ways to river systems and to the coastal and marine ecosystems, which will greatly affect the natural environment.  There are other environmental issues associated with mining operations and most if not all of the mined out areas in the Philippines still require massive rehabilitation. It is now a challenge to local officials and residents if they allow these mining explorations to proceed. After all, social acceptability is one of the important criteria in providing permits in various stages of mining development.

January 16, 2011 Posted by | Forest Ecosystem, Mining | Leave a comment