ATM Position Papers

on

Executive Order 79, s. 2012

Alyansa Tigil Mina

Alyansa Tigil Mina

ATM National Secretariat

Emails: nc@alyansatigilmina.net sos@alyansatigilmina.net Twitter: atm_philippines policy@alyansatigilmina.net communications@alyansatigilmina.net Website: www.alyansatigilmina.net Facebook: Alyansa Tigil Mina

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Alyansa Tigil Mina

Position Papers
on

Executive Order 79, s. 2012

Table of contents

Introduction
This booklet is a compilation of position papers, and critiques on the new mining policy, also known as Executive Order No. 79 s. 2012 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, signed July 6, 2012. Upon release of the document, several reactions were gathered. Some positive gains were identified, yet the groups and communities continue to ask, Ganun Na Lang Ba Yun? The EO responded to environmental and economic safeguards but never mentioned communities. We ask the Aquino administration, how about human rights violations, disrespected and dishonored indigenous peoples and communities rights, Ganun Na Lang Ba Yun? Consequently, Alyansa Tigil Mina continues to call on the government to repeal Executive Order 270-A s. 2004 that revitalizes the mining industry and the Mining Act of 1995, and enact the Alternative Minerals Management Bill.

Alyansa Tigil Mina

ATM Position Paper on Executive Order 79, s. 2012

A long way from solving the mining issue, and is far from the meaningful reforms in the mining industry that we were expecting. Passage of a new minerals management law is the necessary path, and the right thing to prioritize.

The EO has failed to address the substantial issues:

1) Shifting the policy from earning profits from mining to a rational management of our mineral resources; 2) Ensuring that mining complies with sustainable development, human rights, poverty-eradication and the full human potential; and 3) Give a reprieve to communities and the natural resources they live off, from the real threats of destructive mining. We are cautious, and mildly optimistic that pressing issues and concerns will have temporary remedies. Some small steps in the right direction. ATM will engage the relevant government agencies to ensure that communities and the people are rightfully consulted and benefiting from mining, if they have decided to accept mining. On indigenous cultural communities (ICCs/IPs), the initial reaction from our members is that of uneasiness. Mining projects are only temporarily checked, as existing contracts and permits are still considered binding. We take comfort that there is an attempt to find out if social acceptance and free, prior and informed consent (FPIC) is strictly complied with. We will maintain our vigilance in ensuring that the new guidelines on FPIC are strictly enforced in mining projects. We will also monitor how the government and the mining companies will deal with the IPs, as we are cautious of the details that will be contained in the Implementing Rules and Regulations of this EO.
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We will sustain our partnership with local government units (LGUs) who have decided to reject or oppose mining. We believe that they have the Constitutional mandate, the legal authority and the moral ascendancy to determine the mode, type and pace of local development in their areas. As such, their stance on accepting or rejecting mining as part of their local development should be given premium. Some of our members are heavily involved in transparency and accountability work in extractives. We will encourage them to intensify and upscale their engagement with government and the industry to push forward the agenda of greater transparency in the mining industry, including the proposed commitment by the President to enroll in the Extractive Industries Transparency Initiative (EITI).

We recognize the value of the following new policies:

1. Review of mining contracts and mining operations 2. No Go Zones 3. Working for legislations to increase government share from proceeds of mining 4. EITI 5. Recognizing local autonomy 6. A moratorium on new mining applications 7. Cost-Benefit Analysis and an improved Environmental Impact Assessment System (EIA) 8. Using the various maps of government and other stakeholders as a reference for decision to mine or not. BUT we believe that the above-mentioned sections are misleading, where provisions for social and environmental safeguards are watered down because of the compromise and nuances in the language of the document. We reiterate our disagreement, discomfort and doubt with the following sections/ provisions on EO 79: Sec. 1. Areas Closed to Mining There is a catch-all phrase that provides an explicit way-out for the mining industry and the government to turn a blind eye to the current problematic mining projects. Mining contract, agreements and concessions approved before the effectivity of this Order shall continue to be valid, binding, and enforceable so long as they strictly comply with existing laws, rules, and regulations and the terms and conditions of the grant thereof. For this purpose, review and monitoring of such compliance shall be undertaken periodically.
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This section practically absolves all mining companies and projects of any responsibility from complying with the reforms being initiated in EO 79. It is also unclear when, who and how the review and monitoring of these current mining projects will be undertaken. We recommend that ALL current mining projects be subjected to this review and monitoring exercise, to be done within 90 days of the effectivity of EO 79. The communities, especially the affected IPs, and civil society must be given clear roles and responsibilities as part of these review and monitoring teams. Should there be evidence that these mining contracts, agreements and concessions are not compliant, then revocation or rescinding of these agreements, contracts should be done as soon as possible. We specifically recommend that all identified and mapped Key Biodiversity Areas (KBAs) should be part of the No Go Zones for mining. Critical watersheds should also be closed for mining, whether they are declared by legislation or not. The eco-system function and service of a watershed does not cease to be whether it is legislated, proclaimed by an authority or otherwise. Sec. 2: Full Enforcement of Environmental Standards in Mining The provision is an excellent policy IN PAPER. However, previous experience and current reality lends doubt to the capacity of the Department of Environment and Natural Resources (DENR) to actually perform its regulatory function. DENR lacks the people, expertise and equipment to effectively perform its job. DENR is also not immune to graft and corruption, especially at the regional and local levels, which prevents the efficient and effective regulation of the mining industry. We recommend that all mining projects be specifically subjected to a detailed evaluation of their compliance to their Environmental Impact Statement and established environmental standards. Aside from LGUs, communities and civil society must be involved in the enforcement of environmental standards. Sec. 3: Review of the Performance of Existing Mining Operations and Cleansing of Non-Moving Mining Rights Holders We recommend that the multi-stakeholder team for this review must have a Co-Chair or Co-Convenor from the local government unit and civil society that is affected or impacted by the mining project. Sec. 4: Grant of Mineral Agreements Pending New Legislation The passage of a new legislation rationalizing revenue sharing schemes and mechanisms is a complex and complicated matter. To date, we are not aware of any conscious effort from the government to study and propose a new revenue sharing scheme.
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We are greatly disturbed with the phrase in this section possible renegotiation of terms and conditions (of existing mining contracts and agreements, which shall in all cases be MUTUALLY ACCEPTABLE to the government and the mining contractor. Once again, the communities are glaringly left out in this equation. Sec. 5: Establishment of Mineral Reservations A clear timetable for the completion and production of the National Industrialization Plan (NIP) is not established. Again, this section provides an excuse clause - This shall be without prejudice to the agreements, contracts, rights and obligations previously entered into by and between the government and mining contractors and operators. Sec. 9: The Mining Industry Coordinating Council (MICC) There is no space for the participation or involvement of affected communities or civil society organizations to this policy-making and implementing body. We strongly recommend that community or CSO representation be ensured in the MICC. Sec. 11: Measures to Improve Small-Scale Mining Activities This section merely reiterates already existing provisions of laws and policies. There is no value-added in terms of mechanisms, procedures and systems that will enforce the intent to have small-scale mining comply with RA 7076 or the Small-Scale Mining Act. We recommend that DENR, in close coordination with concerned LGUs, immediately close all illegal small-scale mines throughout the country. In parallel, alternative livelihood to these displaced small-scale miners should be introduced. Section 12: Consistency of Local Ordinances with the Constitution and National Laws We welcome the shift of perspectives on this section. However, ATM maintains that LGUs clearly have the Constitutional mandate, the legal authority and the moral ascendancy to accept or reject mining applications and operations. Sec. 16 and 17 of the Local Government Code (Mandates and General Welfare provisions) are very clear on this. In addition, DENR (and other national government agencies) must recognize and respect the existing ordinances, resolutions and local orders of LGUs that reject, resist, oppose or impose strict and reasonable limits to mining operations and applications in their respective localities.

Alyansa Tigil Mina

Sec. 13: Creating One-stop Shop for all Mining Applications and Procedures. This One-stop Shop will impact on the independence and objectivity of the National Commission on Indigenous Peoples (NCIP). Securing the FPIC for mining applications and operations must not be subjected to this fast-tracking tactic. The One-stop Shop approach also runs contrary to the principle of decentralization and de-concentration, as embedded in the Local Government Code. This procedure also increases the probability for graft and corruption, especially without a strong regulatory check-and-balance system in place. Sec. 14: Improving Transparency in the Industry and Joining the EITI We fully support the government on this initiative. However, EITI is only concerned and focused on transparency on i) the payment of taxes by mining companies to the government and ii) the allocation of government of these proceeds/gains from mining to development programs and projects to the communities. ATM recommends that transparency in the whole value-chain of mining must be implemented. For this to happen, transparency must include i) disclosure of mining contracts and all related mining documents, PRIOR to signing or granting of mining agreements; ii) in decision-making whether a specific mining project is a go or no-go; and iii) clear definition and blueprint of the roles of minerals in natural resource management of the country. Sec. 15: Centralized Database for the Mining Industry Only data from the industry and government agencies and instrumentalities are to be included in this database. This is biased and not an objective procedure of data gathering, archiving and collation. Pertinent information such as documented human rights violations, customary and traditional social systems, legal cases or track record of mining companies in other counties or other in-country mining projects, may not be necessarily available from the government or willfully disclosed by the mining company. We recommend that the MICC ensure that all inputs from all stakeholders be considered and incorporated in this database. While Full Cost-Benefit Analysis (CBA) is mentioned in this section, it is unclear whether CBA is going to be made as a requirement for each mining application. The recommendation of ATM is to ensure that CBA must be done for each of the mining application and existing mining projects and operations. We recommend that resource valuation must also be done in each of the mining site, whether the mine project is in application or operation stage already. In turn, these resource valuations should be incorporated or factored in to the Cost-Benefit Analysis exercises.
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Sec. 16: Integrated Map System to Include Mining Related Maps Only maps and date from government agencies and instrumentalities are to be included in the database. This is a very limited policy. Academe and some civil society organizations sometimes, have better and updated maps than government, and these must be also considered and incorporated in the database. The government must ensure that all available maps from academe and civil society must be considered and incorporated into this mapping system. Sec. 17: Use of the Programmatic Environment Impact Assessment This section is aspirational. It lacks concrete basis, as there is no existing clear policy definition of what PEIA is, and how to implement it. This section also calls for amendments of rules and regulations of the EIA system. This has been a decades-long call and demand from environmental groups, and no serious effort has been invested in this. We do not see any compelling reason why this EO or this time-period should be any different. We do not see a clear timetable for the instruction to DENR-Environmental Management Bureau (DENR-EMB) to study the use and implementation of the PEIA. At best, this section is a clear example of giving a false-sense of security that necessary and urgent reforms are being put in place, while in truth, it is not the case. We recommend that DENR-EMB revise the EIA protocols, and institute a more transparent manner in the conduct, review and issuance of Environmental Compliance Certificates (ECCs). Sec. 19: Implementing Rules and Regulations (IRRs) Since there is no space for participation of communities or CSOs in the MICC, we strongly demand that community representatives or CSOs representatives must be involved in the crafting and issuance of the IRR for this EO. Sec. 21: Repealing Clause EO 79 failed to explicitly repeal EO 270-A. To avoid any misconceptions or misinterpretations of the mining policy, EO 270-A and its resulting National Minerals Action Plan (NMAP) in 2006, must be clearly rejected and set aside.

Alyansa Tigil Mina

11 July 2012
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Statement on EO 79 and Alternative Minerals Management Bill

The long wait is over. The much awaited mining policy of Pres. Benigno Noynoy Aquinos administration, which was supposed to resolve the many issues and problems hounding the countrys mining industryhasnow been made public. And for us it has failed many expectations. EO79fails to address the necessary changes that have been raised to the Aquino Administration in order to make the countrys mining industry truly responsible. It failed because of the following reasons: Firstly, it ignored mining-affected communities. EO 79 does not address the long list of violations committed against communities, farmers and indigenous peoples, as well as issues raised by advocates and experts against the operations of the mining industry in the country and the criticisms against the policies governingthis industry. As the new mining EO upheld that all mining contracts, agreements and concessions approved before the effectivity of this Order shall be valid, binding and enforceable on the pretext of non-impairment of contracts clause, it does not provide provisions that will ensure and hasten the action and response to communities complaints for various violations. What will happen to the injustices inflicted upon the indigenous peoples and rural communities of Nueva Vizcaya down to the outskirts of South Cotabato? Justice that they have long been seeking and fighting for. It is these violations committed to our indigenous brothers and sisters, farmers and rural communities, and the destruction of our ecosystems that form the basis for the clamor for a change in the countrys mining policy, and the new mining EO greatly fails to address these issues. In fact it perpetuates the same situation with its business as usual framework. Secondly, most of the provisions in EO 79 are misleading.
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While the Mining EO places a moratorium on new mining contracts and permits, it allows exploration permits which are actually also, in experience, invasive and violative of the rights and welfare of mining-affected communities. Violations on FPIC of indigenous peoples, consent processes in mining exploration projects are well documented. The EO calls for a moratorium on new mining contracts butwill only be dependent on a new legislation rationalizing existing revenue sharing schemes.Revenue sharing only forms part of the bigger picture in resolving the many problems in the countrys mining industry. This also shows that the framework used in utilizing our mineral resources, is motivated mainly by profits out of mining instead of a rational, needs- based approach in mineral management and utilization which communities and advocates have long been clamoring. While the Mining EO expands the areas closed to mining, it has practically made this section inutile as it upheld all existing mining contracts and permits given before the Order. Data shows that almost fifty percent of key biodiversity areas (KBAs) and two-thirds of claimed and titled ancestral domains are impacted by these very same mining projects. While the Mining EO has used consistency instead of primacy in the section pertaining to local ordinances vis--vis the Constitution and national laws, which was the word used in its earlier draft, it has actually sent a warning to all LGUs who have stood up against the effects of large scale mining in their territories, and also those who wishes to follow them. By asserting that LGUs shall confine themselves only to the reasonable limitations of mining activities the EO have put local governance and autonomy open for interpretation. Mining companies, and to some extent government institutions, can now assert that banning open-pit mining is unreasonable, as experience have shown in relation to the South Cotabato open- pit mining ban. Thirdly, contrary to its assertion, EO 79 does not promote and/or embody the concept of responsible mining. How can this EO promote responsible mining when it upholds all existing mining contracts, agreements and permits? The very mining projects that have been tainted with abuses, environmental destructions, and human rights violations and even the blood of martyred community leaders, environmentalist and advocates. We can never forget the likes of Fr. Pops and Dr. Gerry Ortega. Contracts such as the OceanGold Gold and Copper FTAA in Nueva Vizcaya, a mining project that the Commission of Human Rights (CHR), anindependent constitutional body, have found guilty of gross human rights violations, thus calling for its revocation in January of 2010. Or the SMI-Xtrata-Indophil Tampakan Gold
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and Copper project in the four provinces of Southern Mindanao, which would cut 800 (?) hectares of primary forest, will divert and pollute billions of ounces of water resources that 80,000 farmers in one province are dependent on, and will displace hundreds of indigenous Blaans who have not given their consent and resisted the project, to name a few. Born out of a flawed and irresponsible law and framework the Mining Act of 1995, we cannot expect more out of the current Mining EO. It only mirrors the same irresponsible framework perpetuated by the Mining Act of 1995, a law that promotes profits over ecosystems and communities, extracting our mineral resources mainly to feed big multinational mining corporations and global corporate demand for raw materials, instead of ensuring the countrys present and future needs. This law have systematically perpetuated a system that has been used to sabotage local government efforts to protect health, environment and livelihoods of our Filipino brothers and sisters; corrupted the Free, Prior and Informed Consent (FPIC) processes of indigenous peoples communities; rendered inutile the Environmental Impact Assessment System; and has brought about a long string of human rights violations and extra-judicial killings against communities and individuals resisting mining.

A Need for a New Minerals Management Framework

Thus, we call on to President Benigno Noynoy Aquino, his administration, and policy makers to go beyond EO 79 and the Mining Act of 1995. What our country needs is a new law that will address the issues and concerns that mining-affected communities have long been raising, and the devastation of our rich but fragile ecosystems. While we say that the new mining EO is not enough and not what is needed, because it has ignored issues raised by communities, it misleads us, and it does not represent genuine responsible mining, we also believe that new mining EO has introduced positive provisions that show a way forward: 1. Public bidding process; 2. National Industrialization Plan, value-adding activity and downstream industry; 3. Extractive Industry Transparency Initiative; 4. Expansion of no-go zones of mining in prime agricultural lands and eco- tourism areas. All of which are, indirectly or directly, already in the Alternative Minerals Management Bill.

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The Alternative Minerals Management Bill (Philippine Mineral Resources Act of 2012) seeks to resolve the many problems faced by communities and local government units, and our country in general, due to the gaps and f law framework in the current Mining Act of 1995. What the AMMB represents is the rational, needs-based, rights-based, domestic- oriented utilization, developement and management of our mineral resources. By supporting AMMB and making it a priority bill, we are making a stand with the peopleand making a stand for mining-affected communities, indigenous peoples, the environment, and for the present and future generations of our country!

EO 79 is Not What is Needed, Its the Alternative Minerals Management Bill (AMMB)! Pass the AMMB NOW!
SOS-Yamang Bayan Network
*** The SOS-Yamang Bayan Network is a national, multi-sectoral movement composed of individual advocates, mining-affected communities, national peoples alliances, environmental organizations and networks, church-based organizations, human rights organizations, national NGOs, sectoral organizations from the indigenous peoples, youth, women, farmers, congressional representatives, leaders and personalities advocating for the repeal of the Mining Act of 1995 and the enactment of a new minerals management bill.

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A Call for the Passage of the Alternative Minerals Management Bill (AMMB)
Mining or extractive industry, more often than not, as experienced in the Philippines, can be destructive to communities and the environment. The scale of mining operation normally involves large tracks of land, mostly located in the environmentally fragile forest-ecosystems. With the governments policy direction of liberalizing the mining industry, applications of the transnational corporations came pouring in, targeting mineral rich area mostly located in the mountainous part of the country inhabited by the indigenous communities. Even the agricultural, tourism, biodiversity, and watershed areas are not spared. The Catholic Bishops Conference of the Philippines took the position that the promised economic benefits of mining by these transnational corporations are outweighed by the dislocation of communities especially among our indigenous brothers and sisters, the risks to health and livelihood and massive environmental damage. (CBCP, A Statement on Mining Issues and Concerns, January 29, 2006). The country faces more and more environmental problems because of the governments liberal policies on extractive operations - The government mining policy is offering our lands to foreigners with liberal conditions while our people continue to grow in poverty. We stated that the adverse social impact on the affected communities far outweigh the gains promised by mining Trans-National Corporations (TNCs) (CBCP, A Statement on Mining Issues and Concerns, January 29, 2006). The Mining Act of 1995, which lays down the policy for the governments near- fanatical campaign to attract foreign investors to invest in mining distorts the goal of genuine development. By single-mindedly pursuing the entry of foreign investments, it failed to weigh the greater consideration in the equation - the human and ecosystems well-being, the human rights of the indigenous peoples and the local communities, food security, local autonomy and the ecological integrity of our country. Together with experts and other civil society organizations, the Church recognized that the flaw is in the government policy framework which regards the natural resources as something to be exploited unlimitedly rather than a crucial reserve to be
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sustained and protected in order to sustain the ecological balance and sustainability for all. As in its previous pastoral statement, we appeal to change the governments mining policy and we reiterate the call for the repeal of Mining Act of 1995 on the premise that: the Mining Act destroys life. The right to life of people is inseparable from their right to sources of food and livelihood. Allowing the interests of big mining corporations to prevail over peoples right to these sources amounts to violating their right to life. Furthermore, mining threatens peoples health and environmental safety through the wanton dumping of waste and tailings in rivers and seas (CBCP, A Statement on Mining Issues and Concerns, January 29, 2006). The Church, together with the civil society advocates and mining affected communities, call for the repeal of the Mining Act of 1995 and the enactment of an alternative law on mining and environment protection. We see the need to go beyond the micro-policy initiatives and torecommend for a promulgation of national law that prioritizes ecological protection and promotes environmental justice, principles of stewardship and of the common good. The Church supports the call for the passage of the Alternative Minerals Management Bill (AMMB), which offers a far more sustainable approach to utilization and protection of our countrys natural resources. Recognizing, however, the long duration of legislative procedures, the Church joins the local communities and the civil society in calling for a mining moratorium to put a stop to the destructive plunder of our natural resources by the mining corporations. The large- scale mining operations, under the guise of development, promise to bring the much-needed foreign investment to the detriment of the environment and the welfare of our people. We believe that environment should never be sacrificed - that an economy respectful of the environment will not have the maximization of profit as its only objective, because environmental protection cannot be assured solely on the basis of financial calculations . . . The environment is one of those goods that cannot be adequately safeguarded or promoted by market forces.(John Paul II, Encyclical Letter CentesimusAnnus, 40: AAS 83 (1991), 843). We pursue our advocacy for a sustainable ecology because it is part of our Christian responsibility. With the late Pope John Paul II, we believe that Christians, in particular, realize that their responsibility within creation and their duty towards nature and the Creator are an essential part of their faith (The Ecological Crisis No. 15, Message of His Holiness Pope John Paul II for the celebration of the World Day of Peace).
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Legal Notes of Rep. Kaka J. Bag-ao*

Akbayan Party-list

Extracting Good Policy From Bad Legislation? A Review of Executive Order 79, Series of 2012
Are all critical areas in No-Go Mining Zones actually mine-free? Does the moratorium on mining prohibit the operations of mining within the protected areas? Are LGUs deprived of their Rule-Making Power when it comes to mining? On 6 July 2012, President Benigno Aquino issued Executive Order (EO) 79, series of 2012 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. Several pros and cons have been deliberated on a very important matter concerning mining issues in the Philippines. This is my humble opinion on the matter which is based on the following premises: 1. There is no substitute to having an enacted Alternative Minerals Management Bill coupled with a National Land Use Policy; 2. Environmental protection and food security are of paramount priority over other concerns including economic benefits; 3. Players in the mining industry has not yet shown a model site for responsible mining where local communities have developed because of the entry of mining; 4. IP/ICCs ownership of minerals found inside their Ancestral Domain should be recognized.
* A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

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 I. GENERAL OBSERVATIONS TO EXECUTIVE ORDER 79, SERIES OF 2012

First, EO 79 was entirely based on Republic Act 7942 (Philippine Mining Act of 1995) wherein the focus is to fully utilize the mineral resources of the country at whatever cost. This is irresponsive to the concerns raised by segments critical to RA 7942 owing to its defective provisions resulting to unabated environmental destruction, human rights violations of the communities, exploitation of IP rights, food insecurity, militarization, among others, caused by mining operations. These very same problems are not addressed by the present mining law rendering it fully defective. Hence, any executive issuances based on Republic Act 7942 are necessarily defective as the very law itself has been defective since its enactment. Second, the language is not about environment but revenues and sharing. This frame limits the discussion between mining contractor and government for the revenue, and between national government and local government for sharing, thereby virtually depriving the communities and stakeholders from participating in the process. Third, the IPs area again sidelined in EO 79. Fourth, the EO 79 takes on a business-as-usual attitude as if the bureaucracy runs following the matuwid na daan. The national government failed to realize, or choose not to reach to such realization, that part of the problem, if not the main, is the government agency tasked to regulate mining itself the DENR. There will be no serious mining reforms without serious reforms in the DENR bureaucracy.

II. SPECIFIC CONCERNS A. No-Go Mining Zones

EO 79 was brave enough to expressly declare areas which should not be included in mining operations. This includes the 78 tourism sites, farmlands, marine sanctuaries and island ecosystems in response to the public clamour to protect the environment. EO 79 expanded the list of No-Go Mining Zones to include the following: SECTION 1. Areas Closed to Mining Applications. Applications for mineral contracts, concessions, and agreements shall not be allowed in the following: a) Areas expressly enumerated under Section 19 of RA No. 7942, to wit: (a) In military and other government reservations, except upon prior written clearance by the government agency concerned; (b) Near or under public or private buildings, cemeteries, archaeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructure projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned;
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(c) In areas covered by valid and existing mining rights; (d) In areas expressly prohibited by law; (e) In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, in which case a royalty payment upon the utilization of minerals shall be agreed upon by the parties, said royalty forming a trust fund for the socioeconomic development of the community concerned; and (f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law in areas expressly prohibited under the National Integrated Protected areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws. b) Protected areas categorized and established under the National Integrated Protected Areas System (NIPAS) under RA No. 7586; c) Prime agricultural lands, in addition to lands covered by RA No. 6657, or the Comprehensive Agrarian Reform Law of 1988, as amended, including plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Secretary of the Department of Agriculture (DA); d) Tourism development areas, as identified in the National Tourism Development Plan (NTDP); and, e) Other critical areas, island ecosystems, and impact areas of mining as determined by current and existing mapping technologies, that the DENR may hereafter identify pursuant to existing laws, rules, and regulations, such as, but not limited to, the NIPAS Act.

Although the list of the No-Go Zones seems to be a long enumeration, only three areas were added, to wit, (1) tourism sites, (2) prime agricultural lands, and (3) other critical areas, island ecosystems and impact areas were added to the list of areas where mining is banned. The rest are already covered by RA 7942 (Philippine Mining Act), RA 7586 (NIPAS), and RA 6657 (CARL). Not in the list are Key Bio-diversity Areas (KBAs) and Critical Watersheds which should have also been included to the list of areas that are closed to mining operations regardless of whether or not the same has been legislated/proclaimed by the President. The Implementing Rules and Regulations (IRR) of EO 79 should also clearly define what is meant by Island Eco-systems.
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1. Non-Impairment of Existing Mining Contracts What happens to areas identified as No-Go Mining Zones but with existing mining contracts? Unfortunately, EO 79 includes a catch-all proviso which absolves mining operations already existing within the banned areas, to wit: Mining contracts, agreements and concessions approved before the effectivity of this Order shall continue to be valid, binding, and enforceable so long as they strictly comply with existing laws, rules, and regulations and the terms and conditions of the grant thereof. For this purpose, review and monitoring of such compliance shall be undertaken periodically. Hence, existing mining contracts within the No-Go Mining Zones continue to be valid and effective as the provision only applies to future mining applications. The obvious conclusion is that mining may still be allowed within No-Go Mining Zones. The mining banwhich is purportedly the center-piece of the EOonly means that no future mining applications shall be entertained because of the supposedly ecological uniqueness and the need to protect the remaining flora and fauna, marine sanctuaries, farmlands, among others, of certain critical areas but at the same time expressly declares that mining contractors existing therein prior to EO 79 are allowed to exploit the same until the contract expires. Mining contracts have a 25-year term, renewable for another 25 years. Sadly, most of those areas included in the No-Go Mining Zones already have several existing mining operations. A case in point is Palawanthe whole island being declared as a Mangrove Swamp Forest Reserve by Presidential Proclamation 2152 as early as 1981 and with at least 17 Key Bio-diversity Areas (KBAs) and 8 declared protected areas in the island making it a part of the NIPAS protected areabut has at least 13 existing mining companies (Rio Tuba, MacroAsia, etc.) operating on 38,202 hectares within the protected areas. Despite the declaration that the whole island of Palawan is part of the 78 tourism zones, mining will continue rampage of destruction in what is considered as the last frontier of the Philippines. While Section 3 of EO 79 mandates a review of the performance of existing mining contracts, this will, however, not result in their invalidation because EO 79 expressly states that it does not affect the validity of prior mining contracts. In fact, the last paragraph of Section 4 of EO 79 states that the review of existing contracts for renegotiation shall in all cases be acceptable to the mining contractor, to wit: The DENR shall likewise undertake a review of existing mining contracts and agreements for possible renegotiation of the terms and conditions of the same, which shall in all cases be mutually acceptable to the government and the mining contractor.

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Hence, even if the review of the existing mining contracts shows that there are violations on the grant thereof, the same remains to be valid if the mining contractor does not allow its renegotiation. Previous violations should not be tolerated by EO 79. Thus, it is recommended that all existing mining projects be reviewed and monitored within 90 days from the effectivity of EO 79. Mining operations situated inside No-Go Mining Zones, or if there is an allegation of an overlap, should discontinue their activities pending the determination of the truthfulness of the allegation. Lastly, the jurisdiction of mining administrative cases (MPSA cancellation, etc.) should be immediately transferred to the inter-agency Mining Regulatory Board rather than just in the single-agency of the DENR. 2. Prime Agricultural Lands and Fishery Zones EO 79 is laudable in that it includes Prime Agricultural Lands, in addition to areas covered by CARP, as part of the banned areas for mining. The principle behind protecting such lands was to protect the gains of agrarian reform and to attain food security for the country. However, a question remains as to the areas critical to or surrounding the Prime Agricultural Landsare they also closed to mining applications? This has particular importance because of the nature of agricultural lands wherein any extractive activities in nearby areas would severely affect, if not completely damage, plantations and crops in the area. The same situation applies to fishery zones and marine sanctuaries where mining operations are usually conducted in upland areas but has adverse effects in the coastal areas. A case in point is the mining activities in Cantilan, Surigao del Sur wherein a 4,799-hectare area within the watersheds are presently being mined by Marcventures Mining and Development Corporation. The watersheds are vital main sources of water for the NIA-assisted irrigation systems and potable water sources in the three Municipalities of Cantilan, Carrascal, and Madrid, all in the Province of Surigao del Sur. However, the mining operation in the watersheds has severely damaged the river systems and irrigation facilities and affecting more than 3,300 hectares of ricelands, as well as the marine sanctuaries, in the coastal areas of Surigao. Hence, the exclusion of prime agricultural lands and marine sanctuaries do not fully protect them from the hazards and ill-effects of mining operations. The actual operation may not be on the said sites but may have adverse effects to the said areas. Mining operation may contaminate irrigation canals, rivers and coastal and aquatic resources. Areas close to mining should therefore include head waters and river systems affecting farmlands and coastal areas. Even if mining activities are banned in agricultural lands, if the surrounding areas critical to the improvement and development of the farmlands are not protected from extractive activities, then the goals of agrarian reform and food security are weakened.
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 B. Moratorium on Mining Applications

The provision on moratorium on mining applications is commendable but there are still important concerns which are not addressed by EO 79 which provides the following: SECTION 4. Grant of Mineral Agreements Pending New Legislation.No new mineral agreements shall be entered into until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect. The DENR may continue to grant and issue Exploration Permits under existing laws, rules, and guidelines. The grantees of such permits shall have the rights under the said laws, rules, and guidelines over the approved exploration area and shall be given the right of first option to develop and utilize the minerals in their respective exploration area upon the approval of the declaration of mining project feasibility and the effectivity of the said legislation. As stated above, existing mining operations continue despite the moratorium since what is deferred is only the grant of new mining applications regardless of whether the mining applications are located within No-Go Mining Zones. To address environmental concerns, the Moratorium should also be imposed on existing mining contracts pending compliance with Section 3 of EO 79 that requires a review of existing mining contracts. Ironically, despite the declaration of a moratorium on the grant of mining applications, EO 79 provides for a One-stop Shop for all mining applications in Section 13 aimed at fast-tracking the processes for the grant thereof. This is a clear manifestation that the moratorium is merely a temporary suspension and not exactly a moratorium. EO 79 also provides that the moratorium does not include the grant of Exploration Permits for mining companies and small-scale mining applications. In actual practice, however, the issuance of the Exploration Permits to mining companies signals the commencement of actual mining operations in the area. This has been a prevalent problem, especially in areas where indigenous communities are present, and which the DENR has not fully addressed. On the other hand, small-scale mining remains to be unregulated by the DENR for so many years. It is thus recommended that the moratorium should include the grant of Exploration Permits and small-scale mining applications. Furthermore, the moratorium should be lifted not upon the enactment of a new legislation on revenue-sharing scheme but only after an Integrated Map System is finalized and available. The map should cover all areas and shall include declaration of No-Go Zones Areas. The call for the cessation of mining operations is due to environmental, health, and livelihood concerns of the people in the affected communities and not merely because of the
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revenue-sharing issues between the national government and the LGUs. Enactment of a National Land Use Policy becomes an imperative.

C. Primacy of National Policy over Local Legislation

Section 12 of EO 79 directs the local government units to exercise their powers consistent with the policies and decisions undertaken by the national government. This may have put limitations on the powers of LGUs granted by the Constitution and Republic Act 7160 (Local Government Code). There is a need to clarify the role of the national government over mining operations because a potential conflict is brewing between the national government and the local governments. The national government is clearly imposing its general supervision powers over the autonomous Local Government Units thereby disturbing the principle of devolution of powers to local governments. As of now, several provinces, cities and municipalities have passed legislations disallowing mining operations within their jurisdictions including Albay, South Cotabato, Bukidnon, Romblon, Samar, Marinduque, La Union, Capiz, Romblon, Antique, ZamboangaSibugay, Bohol, Zamboanga del Norte, and Negros Occidental, while in the process of banning mining are the areas of Eastern Samar, Nueva Vizcaya, Cagayan de Oro, Catanduanes, Sorsogon, Southern Leyte, and Davao City. A case in point is the Province of Romblon where the three Municipalities of Magdiwang, San Fernando and Cajidiocan, all in the island of Sibuyan, Romblon issued Joint Resolution No. 01-10 banning mining in Sibuyan Island. The whole island of Sibuyan has been previously declared as a Mangrove Swamp Forest Reserve by Presidential Proclamation 2152 in 1981 and therefore part of the NIPAS protected areas.This was supported by the Governor Eduardo Firmalo of Romblon who issued Executive Order 1, Series of 2011 declaring a moratorium in the whole Province of Romblon, as well as the Provincial Council of Romblon which issued Sanggunian Resolution No. 01-2011-23. In view of the new EO 79 issued by the President, what happens to the LGUs which have existing legislations strongly opposing mining operations within their jurisdictions? It is to be noted that Congress recognized the role of the local government units in development as stated in the Constitution, and enacted the Local Government Code of 1991 which provides the policy that the LGUs shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them effective partners in the attainment of national goals instituted through a system of decentralization whereby LGUs shall be given more powers, authority, responsibilities, and resources. Towards that end, Section 16 (General Welfare Clause) of the LGC provides that: SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers
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necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self- reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In the case of Province of Rizal versus Executive Secretary,1the Supreme Court provides an exhaustive discussion that the LGC gives to local government units all the necessary powers to promote the general welfare of their inhabitants, particularly citing Section 2 (c) of RA 7160, to wit: It is likewise the policy of the State to require all national agencies and offices to conduct consultations with appropriate local government units, nongovernmental and peoples organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. It is clear from the mandate of the general welfare that the primary consideration is to ensure and support activities that enhance the right of the people to a balanced ecology, including promoting health and safety, maintain peace and order, and preserve the comfort and convenience of their inhabitants, among others. With this primary consideration in mind, the LGUs have the right to reject or accept any projects within its jurisdiction. Definitely an executive issuance cannot limit the mandate provided by Congress to the LGUs in accordance to the Local Government Code. Needless to say, in case of doubt of the grant such power, the LGC provides that any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit.

IP Rights are once again sidelined in EO 79 D.

The rights of the Indigenous Peoples and/or Indigenous Cultural Communities (IP/ICCs) are once again sidelinedin EO 79. Though the EO made mention about the need of having Free, Prior and Informed Consent (FPIC) prior to the approval of mining agreement, it is silent on the mining privileges previously issued by the DENR. It should be noted that based on actual experience by the IP, FPIC is facilitated not as a recognition of IP rights but as a mere requirement of mining application. This means that IP consent should be obtained in whatever way to get an approval of the mining application. Maneuverings and deceit oftentimes
1 G.R. No. 129546, December 13, 2005

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go with it. With the existing framework being followed by EO 79 of identifying and enumerating the areas closed to mining, the implication is that all the rest not enumerated is open to mining. This scenario pose serious threats to IP/ICCs Ancestral Domains, since not all of the IP territories are inside the areas identified as closed to mining. MGB estimated around nine million hectares out of the countrys thirty million hectares as geologically prospective for metallic minerals as cited in the Philippine Development Plan (PDP) 2010-2016. It is highly probable that most of the IP territories overlapped with the 9 million-hectare area. In addition, the NCIP failed grossly in ensuring the IP/ICCs rights are recognized and protected. In the Joint DAR-DENR-LRA-NCIP Administrative Order No. 1 series of 2012, the NCIP virtually surrendered its mandate over Ancestral Domains. While IPRA recognize areas with entitlements as prior vested rights, the said JAO expanded the vested rights to include Resource Use Instruments (RUIs). These RUIs may include logging, mining and grazing privileges. NCIP is mandated to issue Certificate of Non-Overlap (CNO) before any development project shall commence, but projects like mining started and continue without certification. The NCIP is also mandated to notify agencies holding jurisdiction over IP areas, such notification will automatically transfer jurisdiction to the IP (Section 52.i of IPRA). The Commission, however, seemed powerless to perform its mandate. The government should first compel NCIP to perform its mandate before any mining operation shall commence. For non-IP areas, community consultation should likewise be mandatory. In all cases, the approval of the LGU concerned shall be necessary in the whole process from application to actual mining operation. The required mayors permit and sanggunian resolutions of the respective municipality and province should be included as mandatory requirements for approval of mining applications.

E. Other controversial provisions of the Executive Order 79

1. Full Enforcement of Environmental Standards in Mining (Section 2) This is nothing new as regulations, rules and standards on the subject matter already exist. The problem lies on the non-implementation or non-compliance of the same agency that issued these rules. DENR and MGB do not have the reputation of strictly and effectively implementing environmental laws. Enforcement mechanism should not be limited solely to these agencies but should expand and include independent groups and personalities. 2. Opening of Areas for Mining though Competitive Public Bidding (Section 6) Government should explore possibilities of initiating mining operations rather
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than foreign investors. This is an additional assurance that the government will observe responsible mining and guarantee accountability in cases of environmental degradation due to mining activities. 3. Constituting the Climate Change Adaptation and Mitigation and Economic Development Cabinet Clusters as the Mining Industry Coordinating Council (MICC) (Section 9) Membership in this body should be multi-sectoral. The participation of the affected communities and the civil society organizations should be ensured in the policy- making and implementing body such as the MICC. The one-stop shop application for mining operation should be part of the councils functions.The council should also have monitoring function on the existing mining claims and operations. 4. Measures to Improve Small-Scale Mining Activities (Section 11) This is already provided under RA 7076 but the same is not strictly implemented. One issue is that the Provincial/City Mining Regulatory Board (P/CMRB) is either not yet constituted or non-functional. P/CMRB is supposed to identify and establish Minahang Bayan, but small scale mining thrives even without an established Minahang Bayan or even without a constituted P/CMRB. Small scale mining operations which are either outside the established Minahang Bayan, no permit from the P/CMRB, or operating in areas with no duly constituted P/CMRB should discontinue. 5. Improving Transparency in the Industry by Joining the Extractive Industries Transparency Initiative (Section 14) This is a commendable and wise provision but it should include the whole value chain of mining such as (1) transparency in disclosure of mining contracts and all related mining documents prior to the grant of mining applications by the contractor; (2) transparency in decision-making whether a specific mining project is a No-Go Mining Zone or a Go-Zone; and (3) clear definition and blue print of the roles of minerals in resource management of the country. 6. Implementing Rules and Regulations (IRR) (Section 29) There should be a representation from the civil society organizations and sectoral groups affected by mining such as IPs, farmers, fisherfolks and women, in the drafting and finalization of the IRR for EO 79. 7. Repealing Clause (Section 21) EO 79 should expressly state that it repeals EO 270-Aand the National Minerals Action Plan of 2006.
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 III. ALTERNATIVE MINERALS MANAGEMENT BILL

Section 4 of EO 79 awaits for a new legislation from Congress. It is but fitting that a new law that will outline a comprehensive national policy to increase the government share from mining revenues and to promote an environment-friendly and human rights-centered mining industry in the country must be immediately legislated. Akbayan Partys House Bill No. 3763, also known as the Minerals Management Bill, seeks to repeal Republic 7942 or the Philippine Mining Act of 1995. This democratic, environment-sensitive and human rights-centered mining policy puts premium in the ecological value of our countrys mineral resources, shifting the land use priority towards environmental protection, food security and sustainable development. This is a 360-degree paradigm shift from the current Philippine Mining Act of 1995 (Republic Act 7942), which paved the way for the full liberalization of the mining industry to foreign investments without placing safeguards against the wanton exploitation of our natural resources and our people. The Minerals Management Bill upholds the provision in the 1987 Constitution that only Filipino corporations or those with at least 60% Filipino ownership shall be allowed for the exploration, development and utilization of mineral resources in the Philippines. This provision is a complete turnaround of the 1995 Mining Act clause that virtually allows 100% foreign-owned companies to conduct mining operations in the country. A Multi-Sectoral Mining Council shall become the only agency empowered to deliberate and approve mining applications. It is designed to democratize the process of screening and issuing permits to mining companies to ensure that all stakeholders will be able to air their voice on the said applications. This will be comprised of the Mined and Geosciences Bureau (MGB), the Department of Environment and Natural Resources (DENR), affected local government units (from the provincial to the city or municipal levels), non-government organizations, and indigenous peoples if their ancestral lands will be covered by the mining application. The MGB shall remain as the primary government agency tasked to regulate existing mining operations. The proposed measure specifically enumerates areas where mining activities shall not be permitted. Among those declared as no-go zones by the Bill are the following: head waters of watershed areas; areas with potential for acid mine drainage; critical watersheds; critical habitats; climate disaster-prone areas; geohazard areas; cultural sites, which may include, but not limited to, sacred sites and burial grounds; traditional swidden farms, and hunting grounds; prime agricultural lands; community sites; key biodiversity areas; densely populated areas; high conflict areas; and virgin forests, watershed forest reserves, wilderness area, mangrove forests, mossy forests, national parks, protection forests, provincial/municipal forests, parks, greenbelts, game
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refuge and bird sanctuaries, and their respective buffer zones as defined by law and in areas expressly prohibited under the National Integrated Protected Area System (NIPAS) under Republic Act 7586, Department Administrative Order 25 series of 1992, and other laws. Finally, with regard to the revenue-sharing aspect of the proposed measure, the Bill requires additional taxes that mining companies have to pay on top of the 2% excise tax currently imposed under the 1995 Mining Act. The Bill also aims to increase the share of the government in mining to 10% of the gross revenues of the company, as well as to impose an Indigenous Cultural Communities (ICCs) equivalent to at least 10% of the companys gross revenues if it operates within ancestral domains. Community development programs shall not be considered as royal payment. The Bill stipulates that funds must be set aside for scientific and research development, and legal support services for those affected by the mining operations. House Bill 3763 is currently being consolidated by a technical working group (TWG) in the Committee on Environment and Natural Resources composed of staff members of the authors of the different bills on responsible mining. To ensure the eventual passage of the Bill in the 15th Congress, Akbayan continues to work with its civil society partners under the Save Our Sovereignty Yamang Minerales Nagsisilbi sa Bayan (SOS-Yamang Bayan) Network.

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EO 79: No go means Maybe.

Posted on July 26, 2012 by Joel Tabora, S.J.
It has been said that in a contest between no go zone and a well-heeled mining company, it is easier to chase away the no go zone than to chase away the mining firm. After all, the mining company does not operate to preserve and conserve the environment. The mining company operates to extract minerals for profit, and the environment is the obstacle. Where laws, rules and regulations can be complied with, well and good, as long as in the end the minerals extraction takes place. Where laws cannot be complied with, they need to be set aside rationally, either legally or extra-legally, often in ways that legitimate mining companies would rather avoid. Compliance with existing law and their implementing rules and regulations is easier, again, not in order to preserve the environment as is the intent of the law, but to overcome it as the obstacle to the goal of the firm. This includes dealing with the relevant people in charge, attracting them, arguing with them, convincing them, motivating them, making sure they are on board, as much as possible within budget, and all within the law. Here, the spirit of the environmental law may be sacrificed, but the spirit of the mining company is preserved. For those who believe that the environment must be preserved against the spirit and logic of the mining industry, whose track record of environmental sensitivity in this country and abroad is less than sterling, the laws must be such that they demand strict compliance in favor of the environment. Once old-growth forests are destroyed or areas of high bio-diversity are violated, they can never be restored. The high-value signatures on legal documents, all won within the law and within budget, will not undo the environmental damage. No go zones need therefore to be no go zones strictly, and not just for the meantime or sometimes. For environmental damage in these areas can be irreparable, affecting future generations. The laws defining the no go zones and the executive issuances like EO 79 implementing them must define them near absolutely, that is, to a point where the spirit of mining would undermined in their violation, and those who are compliant in their violation shall be held criminally accountable. No go zones are not no go zones if permission can be attained relatively easily to make them go zones.
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Based on existing laws, EO 79, Sec 1 lists five areas closed to mining applications. Applications for mineral contracts, concession, and agreements shall not be allowed in the following: a) Areas expressly enumerated under Section 19 of RA No. 7942; b) Protected areas categorized and established under the National Integrated Protected Areas System (NIPAS) under RA No. 7586; Prime agricultural lands, in addition to lands covered by RA No. 6657, or c) the Comprehensive Agrarian Reform Law of 1988, as amended, including plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Secretary of the Department of Agriculture (DA); d) Tourism development areas, as identified in the National Tourism Development Plan (NTDP); and, e) Other critical areas, island ecosystems, and impact areas of mining as determined by current and existing mapping technologies, that the DENR may hereafter identify pursuant to existing laws, rules, and regulations, such as, but not limited to, the NIPAS Act. First, it is no mean thing that this formulation has been made, and forms part of the Aquino administrations policy on mining. Notable is the explicit mention of such as prime agricultural lands, lands under CARP, tourist development areas, and other critical areas like island ecosystems. If the spirit of EO 79 is not just to allow mining but also to respect the environment, as it purports to, then its officials must stand true to the spirit of no go zones. Where discretion needs to be exercised over these areas, it needs to be exercised in favor of no go rather than go no matter the power or violence of motivation in the other direction. Second, let us consider in the law how no go no go is. E0 79 refers to areas enumerated under RA 7942. These are: In military and other government reservations, except upon prior written clearance by the government agency concerned; Near or under public or private buildings, cemeteries, archeological and historical sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructures projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned; In areas covered by valid or existing mining rights; In areas prohibited by law;
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In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under RA 7586, Department Administrative Order no 25 s 1992 and other laws. Except for areas under NIPAS, No go zones can be undermined at the discretion of government official or private persons. If these were obstacles to the intentions of mining, with enough determination and logistics, they could be overcome. It is different with areas protected under NIPAS. Disestablishment of a protected area needs ultimately an act of Congress, upon recommendation of the majority [only!] of the relevant board after an appropriate study (Cf. RA 7586, Secs. 7 and 11). Here, the no go zone is more no go than go, but for the determined mining company seeking to extract minerals for profit, it is not an insurmountable obstacle. Back to EO 79, Sec 1 c, this important declaration against mining in agricultural areas, CARP lands, fisheries and the like, is contingent on the declaration and the discretion of the Secretary of Agriculture as well as of the Secretary of Agrarian Reform. On orders of their superior or motivated by other concerns, they could exclude agricultural lands from their list of agricultural or reformed lands. It is similar with the Tourism Development Areas. What is included today in the National Tourism Development Plan can be excluded tomorrow. While Palawan may be included today, it may be excluded tomorrow. Today, the official list of Tourist Development Areas includes Davao del Sur and Sultan Kudarat. That should be interesting for the proponents of the SMI/Xstrata project in Mindanao. Finally, EO 79, Sec 1 e, mentions under critical areas island ecosystems. Environmentalist would certainly include here the small island of Rapu-Rapu in Albay and the beautiful island of Sibuyan in Romblon. Here the consequences of Acid Mine Drainage can be catastrophic. But Mindanao is also an island eco system which includes its mountains, watersheds, rivers, flora, fauna and human beings dependent on this island ecosystem. The government entity tasked to name the island ecosystems, however, is the Department of Energy and Natural Resources, which is according to present law hopelessly conflicted. On the one hand it is charged to protect the environment. On the other hand, it is charged to exploit natural resources.

No go zone clearer after EO 79? Not really. No go means maybe.

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EO 79 and Social Justice and Mining

Posted on July 18, 2012 by Joel Tabora, S.J.
[Address: Stakeholders Caucus on EO 79 on Mining, Ateneo de Davao University July 18, 2012]

No one really talked much about mining when I was going to school. It was one of those activities engaged in by a relatively small number of people; its effects were not well understood. Things have changed. While no one will contest that in the modern world we need the products of mining for such as celfones, computers, skyscrapers and the like, there are concerns about the costs of mining on the environment. The desire has been to understand what responsible mining is. Even as some Philippine activists positions have been characterized as anti-mining, the thrust is less to ban mining activities absolutely from the country, but to hold it in abeyance until a broader consensus is achieved as to what responsible mining policy might be, and until the country clearly has the structures and competent personnel to enforce responsible mining. Because of the various interests involved, finding consensus on responsible mining is elusive. I believe that the more Philippine citizens and their friends participate in a competent discussion on mining and its effects, the better. Why? On the one hand, the Philippine Constitution declares that minerals belong to the State. This means that originally they do not belong to owners of land titles, nor are they the preserve of private interest groups, whether these are foreign capitalists or indigenous peoples. They belong to the State to the Filipino People. Thus, the public policy that governs the use of minerals, including EO 79 as well as RA 7942, is the concern of all who are its owners.

The Call of the Common Good

There is another, arguably even more fundamental reason why people should participate in this discussion. This is a principle espoused by the social doctrine of the Catholic Church. It teaches that there is a social mortgage on private property. While the Church has consistently recognized the validity of private property in the human beings fulfillment of personal and family needs, private property
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is encumbered by a social mortgage and must contribute to the common good (Laborem exercens, 14). Short of this the legitimacy of private property is lost: The right to private property is subordinated to the right to common use, to the fact that goods are means for everyone (ibid). This is a powerful doctrine inviting reflection on the manner in which property in society in general is handled. It is embedded in a principle called the universal destination of all created goods (Sollicitudo Rei Socialis, #42) the doctrine that all goods created by God are for the good of all. Where the Constitution states that minerals belong to all, and the Church teaches that even minerals are numbered among created goods with a universal destination the good of all the search for a rational policy on mining cannot exclude the good of all, i.e., the common good. In fact, the Philippine Constitutions acclaimed centerpiece, its Article XIII on Social Justice, states: The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good (Art. XIII. Sec 1). This is an ongoing mandate. It enacts laws in pursuit of the common good. It repeals, amends, and perpetually improves laws towards the greater pursuit of the common good. This greater pursuit of the common good is the pursuit of social justice. No laws are perfect. Agreements and activities undertaken under laws are often imperfect and harmful to the common good, even if they are legal. The pursuit of social justice warrants the repeal and ongoing reform of laws, just as the pursuit of social justice warrants the cancellation of agreements that militate against the common good. If a law were to be enacted that would cause harm to all women and children in a male chauvinistic society, it is ultimately in pursuit of social justice (and not just political advantage) that that law should be repealed. If a contract would deprive large numbers of babies from necessary nourishment, it is in pursuit of social justice that that contract should be voided. Social justice provides the ultimate rationality for a law, or the compelling warrant for its repeal. Commutative justice, which compels the fulfillment of contracts, and distributive justice, which distributes benefits and burdens in the maintenance of society, find their legitimacy in social justice and are subordinated to it. When they harm social justice, in social justice they are to be overcome.

Law, Rationality, and Social Justice

The rationality of laws must be anchored in social justice. If a law is not socially just, activities and agreements under that law become socially unjust, and so can never be legitimated simply because they comply with law. What is legal is not necessarily socially just, and therefore not necessarily moral. Human beings who
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take responsibility for society must be sensitive to this. Existing laws may advance the common good, or advance the common good merely partially, or may militate against the common good. Who makes this call? It is the people, yourselves and myself, weighing the various forces and constraints which affect us in our current society, asserting a certain shared wisdom achieved by and for the whole of society in history, who make this call. For instance, if a law were to give a group of people a monopoly over fresh air in exchange for large taxes paid to the State, but this law were to deprive poor people of the air they need to breath, no matter how legitimately enacted, the people could declare this law socially unjust and act towards its repeal. Until it is repealed, in social justice, they could act to undermine it. Of course, enforcers of the law could defend the unjust law. But because it is defended does not mean it is just, and the stuff of heroism and martyrdom is when people undermine existing social structures in the pursuit of social justice. Where our intention is to search for what responsible mining especially in the light of the perceived sins against social justice under the laws currently governing mining policy, it is thoroughly unsatisfying if it is argued that responsible mining is achieved when the current laws governing mining are complied with. Where especially RA 7942, first, notoriously allows a fiscal regime which does not give the Filipino people, who are the owners of the minerals, a fair share of the product and, second, fails today to effectively protect the environment, especially in the light of expected climate change impacts, a claim to responsible mining because of compliance to this law dodges the issues raised in social justice. This is what I tried to point out in an earlier article. If responsible mining is to be based on a certain rationality, what is rational for the investor is quite irrational for the environmentalist; what is rational for the Blaan or the Tivoli peoples is irrational for the military; what is rational and necessary for Government is irrational for the free private sector. In the end, rationality must be decided on by the autonomous people in a given historical moment defining what is socially just.

Mining under RA 7942 which Needs Repeal

In a Powerpoint presentation entitled To Mine or Not to Mine: the case of the Tampacan Copper Gold Project: Mindanao, Philippines presented by Dr. Esteban C. Godilano, PhD, of UP, with contributions by Atty. Christian Monsod (referred to hereafter as: G.M.), they speak of four conditions for allowing mining in the Philippines. I believe it is their position on what responsible mining is. These conditions are: mining projects;
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activities are put in place; and specifically used to create new capital such as more developed human resources and infrastructure, particularly in the rural areas (G.M., slide 22) Where under the Philippine Mining Act of 1995 (RA 7942) and EO 270-A, providing for the aggressive development of Philippine mining, we still do not have the tools and disciplines to account for the full costs of mining projects, where we admit the people are not getting their full and fair share of mineral products, where the institutional capabilities of government to evaluate and regulate mining activities are not in place, where we have not devised a scheme to exploit the benefits of extracting these non-renewable resources in new capital and infrastructure projects, we have warrant for stating that mining continues to be irresponsible and socially unjust. This brings me to a key problem with EO 79. Where the Catholic Bishops Conference of the Philippines in A Statement of Concern on the Mining Act of 1995 in 1998 called for the repeal of RA 7942, the EO continues to lean on it for its effectivity. Of course, the Executive can only rely on existing law for any EO. But the EO seems to show no sensitivity for the ills pointed out by the bishops wrought by EO 7942. The adverse social impact on the affected communities, specially on our indifenous brothers and sisters, far outweigh the gains promised by large-scale mining operations. Our people living in the mountains and along the affected shorelines can no longer avail of the bounty of nature. Rice fields are devastated and bays rich with sea foods become health hazards. The bishops call was reiterated in 2006: We reaffirm our stand for the repeal of the Mining Act of 1996. We believe that the mining act destroys life. The right to life is inseparable from their right to sources of food and livelihood. Allowing the interests of big mining corporations to prevail over peoples right to these sources amounts to violating their right to life.

EO 79 on Mining: A Mixed Bag

Leaning on RA 7942, EO 79 is a mixed bag. Environmental consciousness and concern today is a powerful force. E0 79, reiterating the Constitutional right of the Filipino to a balanced and healthy ecology, certainly asserts the need to protect the environment. This is demonstrated in the areas closed to mining applications of Sec. 1. Beyond those already articulated in Sec. 19 of RA 7942 and in the National Integrated Protected Area System (RA 7586), it also includes: a. Prime agricultural lands, in addition to lands covered by RA No. 6657, or the Comprehensive Agrarian Reform Law of 1988, as amended, including
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plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Secretary of the Department of Agriculture (DA); b. Tourism development areas, as identified in the National Tourism Development Plan; and c. Other critical areas, island ecosystems, and impact areas of mining as determined by current and existing mapping technologies, that the DENR may hereafter identify pursuant to existing laws, rules and regulations, such as but not limited to, the NIPAS Act. But the EO also states: Mining contracts, agreements and concessions approved before the effectivity of this Order shall continue to be valid, binding, and enforceable so long as they strictly comply with existing laws, rules and regulations and the terms and conditions of the grant thereof. For this purpose, review and monitoring of such compliance shall be undertaken periodically.

For the People, Zero to Nil

Section 4, however, makes the grant of new mineral agreements contingent on new legislation rationalizing existing revenue sharing schemes and mechanisms. The existing revenue regime is irrational or socially unjust. This is because with RA 7942, mining investments with 100% foreign equity were now possible, overtaking the previous policy of 60 percent Filipino and only 40 percent foreign equity. RA 7942 further limited the government share from Mineral Production Sharing Agreements (MPSA) to two percent (2%): The total government share in a mineral production sharing agreement shall be the excise tax of mineral products as provided in RA No. 7729 (RA 7729, Sec. 80), while the State is the owner of the product. The excise tax however is not a share in the product itself. The State gets Zero to Nill (Justice Carpio) of the product. On the other hand, through the Foreign Technical Assistance Agreement (FTAA), the State enters into an agreement with a mining firm as a contractor. The States share again consists in taxes, fees and duties, which are not a direct share in the product. It gets an additional share only if the contractors net income after tax amounts to more than 40% share of gross output. Historically, however, this is a practical impossibility. Again, therefore, in the FTAA, the States share in the product is Zero to Nill.
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Need to Challenge Validity of Existing Contracts

But if the State so clearly sees that this is socially unjust, why would it not in its EO 79 more aggressively challenge the validity of existing contracts based on RA 7942 in social justice? If the provisions of the law themselves are social unjust, are not the contracts closed under these conditions voidable? Where there is so much poverty in the Philippines, should we allow these contracts to continue to rob the Filipino people of their patrimony? Through these contracts under RA 7942 the State is practically giving away the peoples minerals free! Lamentably, EO 79 declares the contracts valid without having first worked out a program so that extracted minerals, which are non-renewable, can better contribute the development of human capital and infrastructure that would uplift our poor rather than the profit margins of foreign investors and wealthy capitalists (Cf. GM).

More Rational Environmental Regime Required

Furthermore, where the EO calls on Congress to enact a more rational fiscal regime, why does it not also call on Congress to legislate a more rational regime of environmental protection? What protects the people from repetitions of the Marcopper Mining disaster of 1996, which Marcopper walked away from with practical impunity? Open-pit mining is no longer allowed in developed countries like the US and Canada. Why does the EO remain neutral to the law that allows it for our fragile island ecosystem, oblivious to the countrys vulnerability to acid mine drainage through open-pit mining? Why does it seem even to support open-pit mining by its Sec 12, where it challenges the local ordinances prohibiting open-pit mining in their jurisdiction. Sec. Ramon Paje of DENR actually stated that the apparent conflict between the provincial ordinance of So. Cotabato prohibiting open-pit mining and the national law RA 7942 was to be addressed by this provision. Does the national law RA 7942 which favors foreign miners outweigh the national law RA 7160 and Administrative Order 270 which is the Local Government Code and its Implementing Rules and Regulations? These mandate that LGUs enact measures that protect the local environment. So what does the EO intend when it says: 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 (EO 79, Sec 12)? Is environmental protection not reasonable? Is it asking the DILG to militate against the enforcement of the Local Government Code? These questions are raised parallel to the laudable declaration by the EO that existing contracts are valid conditionally, only so long as they strictly comply with existing law, rules, and regulations and the terms and conditions of the grant thereof. This means that their validity is assailable when they violate existing laws, e.g., through
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the devastation of old growth forests, the manipulation of the FPIC, and the like. The call for the review of existing contracts from this vantage point is therefore happy news. The review however should not be periodic, but ongoing and vigorous.

Bring Work in Progress Forward in Social Justice

EO 79 is a mixed bag. It recognizes the imperative to protect the environment. But it is weak in its reliance on RA 7942. It has not brought about a consensus on responsible mining. On the other hand, Atty. Chris Monsod has described it as a work in progress. This should be progress in and for social justice rather than just for the private benefit of the mining investors. While the Administration continues to rely on RA 7942 for now, it should work proactively for better mining legislation not just for an improved fiscal regime but for improved environment protection. Considering the limited capacity of government to oversee and evaluate the mining activities throughout the country, the Mining Industry Coordinating Council (MICC) referred to in EO 79, Sec 9, needs the active participation of climate change specialists, environmental scientists and anthropologists, as well as representatives from religion and civil society for the oversight of mining projects that are open and not violently hostile to the scrutiny of the public. In the end, together, in a convergence of conscience, we must take responsibility for mining policy that is not just legal but socially just. After all, the minerals belong to all. On all minerals, there is a social mortgage.

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E.O. 79 is The Emperors New Clothes

Haribon Foundations Statement on E.O.79
Executive Order No. 79, more popularly known as the Mining E.O. signed by Pres. Benigno Noynoy Aquino III last 6 July 2012 is a modern rendition of the classic childrens tale The Emperors New Clothes. In the story, an Emperor ordered some of his kingdoms best tailors and dressmakers to come up with the best design for his new set of clothes. A cunning dressmaker proposed that he will be able to come up with a magical design, so magical that the new clothes will be one-of-its-kind. As we all know in the story, there is no magical design and the truth is that the Emperor went out to parade his new clothes in the streets and took one innocent child to say that he is in fact wearing nothingnaked, in another word. But because of the Emperors pre-occupation with his image, he did not realize that he was not really wearing anything new and more so, that he was parading the streets of his kingdom without clothes on. This is what the new Mining E.O. is about. In its attempt to clothe a failed policy, the Mining Act of 1995 (R.A.7942), E.O. 79 ironically exposes the flaws in the current mining legislation. It is inadequate, unresponsive to issues on the ground, and misleading. Haribon Foundation believes that E.O. 79 is just an iteration of the current mining legislation. The proof of the pie is in the eating. We have documented how the Mining Act created a big rift in the protection of the environment and then we have another policy that yet again has weak provisions on the conservation of our declining natural forests and therefore compromises the ability of ecosystems to provide ecological services. Let us not forget that the E.O. is just a palliative solution, a Band-Aid remedy, to a flawed legislation on mining. We will continue to engage the government on how they will implement this E.O., says Anabelle E. Plantilla, Chief Operating Officer of Haribon. While the list of 78 tourism sites, farmlands, marine sanctuaries and island ecosystems included gives an initial impression of being comprehensive, Section 1
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of E.O. 79, Areas Closed to Mining, is just a reiteration of the sites already covered by RA 7942 (Philippine Mining Act), RA 7586 (NIPAS), and RA 6657 (CARL), also known as No-Go Zones. In actual fact, only three area classifications were added: (1) tourism sites, (2) prime agricultural lands, and (3) other critical areas, island ecosystems and impact areas to the list of areas where mining is prohibited. E.O. 79 is silent on Key Bio-diversity Areas (KBAs) and critical watersheds which should also be part of the list of areas that are closed to mining operations regardless of whether or not they have been legislated or proclaimed by the President. Biodiversity is crucial to our survival and therefore should never be compromised. Biodiversity provides our food, water and shelter. It is the basis for rural development and economic growth and provides a viable solution to poverty. At present, there is roughly only 10% of natural forest cover left in the country. In these forests remain key conservation sites or Key Biodiversity Areas (KBAs). They are also important cultural heritage sites. They serve as the last bastion for biodiversity in our country. Key Biodiversity Areas (KBAs) constitute the last remaining natural forests in the country that serve as refuge for our rich and unique biodiversity. Biodiversity in the Philippines is one of the richest in the world. It is home to over 500 endemic species of birds, mammals, reptiles and amphibians, making the Philippines one of the 17 mega-diversity countries in the world. Mining adversely affects biodiversity. The Philippines past experience on mining has seen many of our forests ravaged leaving very little trace of its original beauty and bounty. Mining in KBAs will strip the land of vegetation and the eroding topsoil from the rains will cause the surrounding lands to be unproductive. Deforestation that results from mining will further displace the already threatened wildlife from their habitats and drive them to extinction. Mining causes water pollution and coral reef degradation as a result of siltation and the release of heavy metals tailings in waterways that eventually find its way into the sea. The loss of biodiversity leads to poverty. Biodiversity is the source of food, water, shelter and livelihood for our people. The impacts of mining are closely felt by those living near the mining sites that are mostly dependent on natural resources for their subsistence. Loss of biodiversity further drives them to abject poverty. Biodiversity provides vital ecological services such as water, climate regulation, f lood control which are important in regulating the natural processes on earth. Valuation studies in Samar Island show that the estimated value of biodiversity in Samar Island Natural Park is equivalent to US$43 billion over 25 years which is more than double the estimated potential earnings from bauxite for the same period. This only proves that the services provided by biodiversity and forests are invaluable and that no mining company can ever compensate at the amount they are willing to offer.
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The current mining policy offers no protection for KBAs. The governments thrust in the promotion and revitalization of the mining industry fails to recognize the importance of KBAs, especially the complex relationships across and between species and the environment. In this regard, we urgently call on government to ban mining in key biodiversity areas (KBAs) since KBAs represent the remaining critical habitats for threatened species and they provide the key element to ensure ecological balance and services necessary for humans to survive. The term island eco-systems lacks a clear and rigorous policy definition in E.O 79. Given the archipelagic nature of the Philippines, the island eco-systems could well comprise the whole country. Moreover, given the mountainous topography and tropical climate of the country, the impact areas of mining will be all the ecosystems that are linked by waterways where mine tailings/waste may pass. A ridge-to- reef perspective on environmental management says that all the countrys major ecosystems are inter-connected and inter-related, primarily by the bodies of water that runs from the mountains all the way to the sea. On E.O. 79s Section 2 which calls for Full Enforcement of Environmental Standards. Haribon Foundation strongly believes that the Environmental Impact Assessment system should be tight and participatory. Adherence to the integrity of the Free, Prior, and Informed Consent (FPIC) process, respect for social and cultural acceptability, and technically sound biological and physical assessments should be the norm. It should require conduct of resource valuation studies, particularly on ecosystem services. The results of these surveys and studies should be presented during scoping meetings with the stakeholders. ECC compliance should also be monitored. Haribon Foundation supports the proposal for the formation of a multi-stakeholder group that includes representatives from the local government units and civil society organizations in mining-affected areas. This is in response to Section 3 that calls for the Review of the Performance of Existing Mining Operations and Cleansing of Non-Moving Mining Rights Holders. We lament, however, that such proposal was not included in Section 3 of E.O. 79. Mineral reservations should be off limits in KBAs, indigenous and community conserved areas (ICCAs) and should respect comprehensive land use plans (CLUP) /forest land use plans (FLUP) that identify terrestrial areas/habitats as protection forest. Minerals development should be undertaken within the context of a national and local land use plans. Rational allocation of land to respond to the different needs of our people should be the primordial basis for the designation of mineral reservations. This is our response to E.O. 79s Section 5 on Establishment of Mineral Reservations. This is a non-negotiable item in our list.
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Social acceptability and strict compliance with the FPIC process should be ensured in the Environmental Impact Statement (EIS) System. Section 11, proposing Measures to Improve Small-Scale Mining Activities, should be balanced through strict implementation of CLUPs/FLUPs, provided that provisions and stipulations in CLUPs and FLUPs should prevail over the operations of Minahang Bayan areas. There should also be NGO/PO/civil-society representation in the Provincial Mining Regulatory Boards. The strict implementation of R.A. 6969, banning the use of mercury in small-scale mining activities should also be observed. Training plans should be prepared and immediately implemented for legitimate small-scale mining cooperatives and associations. Haribon Foundation believes that E.O. 79 gives a false sense of security in the conservation of biodiversity. Section 12, Consistency of Local Ordinances with the Constitution and National Laws/LGU Cooperation is a double-edged sword. While it recognizes the autonomous role of local government units in terms of governing their own areas in relation to accepting or rejecting mining applications and operations, it also directs LGUs to 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, which among others, are under the mandate of the Department of Environment and Natural Resources (DENR). The rampant destruction of Philippine forests by the twin behemoths of logging and mining continues even with this new E.O because what the E.O fails to address are the implementation and enforcement issues of various laws on the environment. Haribon Foundation remains committed to the move to repeal the Mining Act of 1995 thru the passage of an Alternative Minerals Management Bill/Philippine Mineral Resources Act of 2012. We are part of the national movement and multi- sectoral alliance that has remained steadfast in its strong clamor for the formulation of a new minerals policy that recognizes the rational management of minerals, the importance of conserving biodiversity and its strong relationship with humans and its environs especially in light of the current state of forests in the country as well as the principles of transparency and genuine participation. The Aquino administration cannot adopt a business-as-usual attitude to mining operations in the country. Given the damage that mining operations have done to the environment, we are firm in saying that there can be no life in mining if we destroy life itself.

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Annex

Executive Order No. 79, s. 2012

MALACAAN PALACE MANILA BY THE PRESIDENT OF THE PHILIPPINES
EXECUTIVE ORDER NO. 79
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

WHEREAS, Section 16, Article II of the 1987 Constitution provides that the State shall protect and advance the right of the Filipino people to a balanced and healthful ecology in accord with the rhythm and harmony of nature; WHEREAS, Section 1, Article XII of the 1987 Constitution seeks a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; an expanding productivity as the key to raising the quality of life for all, especially the underprivileged; and that in the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop; WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the exploration, development, and utilization of mineral resources shall be under the full control and supervision of the State; WHEREAS, further to Section 2, Article XII of the 1987 Constitution, which recognizes the small-scale utilization of resources by Filipino citizens, small-scale mining shall be recognized as a formal sector of the industry;
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WHEREAS, Section 22, Article II of the 1987 Constitution provides that the State recognizes and promotes the right of indigenous cultural communities within the framework of national unity and development, and Republic Act (RA) No. 8371, or the Indigenous Peoples Rights Act (IPRA) of 1997, recognizes further the indigenous peoples (IPs) right to develop their lands and natural resources within their ancestral domains, subject to their free, prior, and informed consent (FPIC); WHEREAS, Section 7, Article X of the Constitution provides that local government units (LGUs) are entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their jurisdiction, and the Local Government Code of 1991 provides that LGUs have the duty and authority to protect and co-manage the environment and enhance the right of the people to a balanced ecology; WHEREAS, Section 2 of RA No. 7492, otherwise known as the Philippine Mining Act of 1995, provides that it shall be the responsibility of the State to promote the rational exploration, development, utilization, and conservation of the countrys mineral resources through the combined efforts of government and the private sector in order to enhance national growth in a way that effectively safeguards the environment and protects the rights of affected communities; and, WHEREAS, as recommended by the Climate Change Adaptation and Mitigation and Economic Development Cabinet Clusters in a Joint Resolution dated 16 March 2012, a six-point agenda was adopted, which sets the direction and lays the foundation for the implementation of Responsible Mining Policies, foremost among which is to improve environmental mining standards and increase revenues to promote sustainable economic development and social growth, both at the national and local levels, NOW THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do hereby order the following: SECTION 1. Areas Closed to Mining Applications. Applications for mineral contracts, concessions, and agreements shall not be allowed in the following: a) Areas expressly enumerated under Section 19 of RA No. 7942; b) Protected areas categorized and established under the National Integrated Protected Areas System (NIPAS) under RA No. 7586; c) Prime agricultural lands, in addition to lands covered by RA No. 6657, or the Comprehensive Agrarian Reform Law of 1988, as amended, including
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plantations and areas devoted to valuable crops, and strategic agriculture and fisheries development zones and fish refuge and sanctuaries declared as such by the Secretary of the Department of Agriculture (DA); d) Tourism development areas, as identified in the National Tourism Development Plan (NTDP); and, e) Other critical areas, island ecosystems, and impact areas of mining as determined by current and existing mapping technologies, that the DENR may hereafter identify pursuant to existing laws, rules, and regulations, such as, but not limited to, the NIPAS Act. Mining contracts, agreements, and concessions approved before the effectivity of this Order shall continue to be valid, binding, and enforceable so long as they strictly comply with existing laws, rules, and regulations and the terms and conditions of the grant thereof. For this purpose, review and monitoring of such compliance shall be undertaken periodically. SECTION 2. Full Enforcement of Environmental Standards in Mining. The Government in general, and the Department of Environmental and Natural Resources (DENR) in particular, in coordination with concerned LGUs, shall ensure that environmental standards in mining, as prescribed by the various mining and environmental laws, rules, and regulations, shall be fully and strictly enforced, and appropriate sanctions meted out against violators thereof. In line with the above, only those who are able to strictly comply with all the pertinent requirements shall be eligible for the grant of mining rights, pursuant to the applicable provisions of RA No. 7942. SECTION 3. Review of the Performance of Existing Mining Operations and Cleansing of Non-Moving Mining Rights Holders. To ensure compliance with environmental standards, laws, rules and regulations, and to rationalize the management and utilization of minerals toward sustainable development, a multi- stakeholder team led by the DENR shall conduct a review of the performance of existing mining operations. The said review shall be based on guidelines and parameters set forth in the specific mining contract or agreement and on other pertinent or applicable laws, rules and regulations, such as the Mining Act of 1995 and the Labor Code. Appropriate action shall be immediately taken against proven violators based on the findings and recommendations of the review. SECTION 4. Grant of Mineral Agreements Pending New Legislation. No new mineral agreements shall be entered into until a legislation rationalizing existing revenue sharing schemes and mechanisms shall have taken effect. The DENR may continue to grant and issue Exploration Permits under existing laws, rules, and
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guidelines. The grantees of such permits shall have the rights under the said laws, rules, and guidelines over the approved exploration area and shall be given the right of first option to develop and utilize the minerals in their respective exploration area upon the approval of the declaration of mining project feasibility and the effectivity of the said legislation. The DENR shall likewise undertake a review of existing mining contracts and agreements for possible renegotiation of the terms and conditions of the same, which shall in all cases be mutually acceptable to the government and the mining contractor. SECTION 5. Establishment of Mineral Reservations. Potential and future mining areas with known strategic mineral reserves and resources shall be declared as Mineral Reservations for the development of strategic industries identified in the Philippine Development Plan and a National Industrialization Plan, pursuant to the pertinent provisions of RA No. 7942, after proper consultation with all concerned stakeholders such as, but not limited to, residents of affected communities, LGUs, the business sector, and non-government and civil society organizations. This shall be without prejudice to the agreements, contracts, rights and obligations previously entered into by and between the government and mining contractors/ operators. SECTION 6. Opening of Areas for Mining through Competitive Public Bidding. The grant of mining rights and mining tenements over areas with known and verified mineral resources and reserves, including those owned by the Government and all expired tenements, shall be undertaken through competitive public bidding. The Mines and Geosciences Bureau (MGB) shall prepare the necessary competitive bid packages and formulate the proper guidelines and procedures to conduct the same, which shall include ensuring that the social acceptability of the proposed project has been secured. All other mining rights and tenements applications shall be processed and approved through existing procedures. SECTION 7. Disposition of Abandoned Ores and Valuable Metals in Mine Wastes and Mill Tailings. All valuable metals in abandoned ores and mine wastes and/or mill tailings generated by previous and now defunct mining operations belong to the State and shall be developed and utilized through competitive public bidding in accordance with the pertinent provisions of law. In the case of existing mining operations, all valuable metals in mine wastes and/ or mill tailings shall automatically belong to the State upon the expiration of the pertinent mining contracts and shall be similarly developed and utilized through public bidding; provided, that where two or more mine sites, covered by their respective
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mining contracts, share a single tailings pond, both or all mining contracts must expire before the State can claim ownership over the said tailing pond. The States assumption of responsibility over the structures and facilities relating to mine wastes and mine tailings shall be without prejudice to any liability/liabilities that may be found against mining contractors for any harm or damage caused by said structures and facilities, mine wastes and mine tailings prior to the said assumption of responsibility in accordance with existing laws, rules, regulations and the terms of the grant of the mining rights. SECTION 8. Value-Adding Activities and the Development of Downstream Industries for the Mineral Sector. The DENR, in coordination with the Department of Trade and Industry (DTI), Department of Science and Technology (DOST), National Economic and Development Authority (NEDA), other government agencies concerned, the mining industry, and other stakeholders, shall submit within a period of six (6) months a national program and road-map, based on the Philippine Development Plan and a National Industrialization Plan, for the development of value-adding activities and downstream industries for strategic metallic ores. SECTION 9. Constituting the Climate Change Adaptation and Mitigation and Economic Development Cabinet Clusters as the Mining Industry Coordinating Council (MICC). The Climate Change Adaptation and Mitigation and Economic Development Cabinet Clusters, shall constitute themselves into an interagency forum to be known as the Mining Industry Coordinating Council (MICC). The MICC shall be co-chaired by the Chairpersons of the two (2) clusters and shall have the following additional members: Secretary, Department of Justice (DOJ), Chairperson, National Commission on Indigenous Peoples (NCIP), and President, Union of Local Authorities of the Philippines (ULAP). SECTION 10. Powers and Functions of the Council. The Council shall have the following powers and functions: a) Submit a work plan within sixty (60) days from the effectivity of this Order for the implementation of this Order and other reforms related to the mining industry; b) Ensure continuing dialogue and coordination among all stakeholders in the industry; c) Conduct and facilitate the necessary capacity and institutional building programs for all concerned government agencies and instrumentalities; d) Conduct an assessment and review of all mining-related laws, rules and regulations, issuances, and agreements with the view to formulating recommendations to improve the allocation of revenues and risk between the government and the mining sector, to enhance coordination between the National Government and
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LGUs to ensure implementation of mining laws and regulations, and to properly regulate small-scale mining participants and ensure that they are accountable to the same environmental and social obligations as large-scale mining companies; e) As may be directed by the President, constitute and create a Task Force Against Illegal Mining and seek the assistance of all law enforcement agencies, such as, but not limited, to the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) to ensure strict compliance with relevant laws, rules and regulations; f) Serve as the Oversight Committee over the operations of Provincial/City Mining Regulatory Boards (P/CMRBs); g) Request the assistance of any government agency or instrumentality, including government-owned and controlled corporations and local government units (LGUs), in the implementation of this Order; h) Submit periodic reports to the President on the status of the implementation of this Order; and, i) Perform such other functions and acts as may be necessary, proper or incidental to the attainment of its mandates and objectives, or as may be directed by the President. SECTION 11. Measures to Improve Small-Scale Mining Activities. To improve and address issues on small-scale mining, the following measures shall be undertaken: a) Small-scale mining activities shall comply with RA NO. 7076, or the Peoples Small-Scale Mining Act of 1991, and the Environmental Impact Statement System requirements under Presidential Decree (PD) No. 1586; b) Pursuant to RA No. 7076, small-scale mining operations shall be undertaken only within the declared Peoples Small-Scale Mining Areas or Minahang Bayan; c) Pursuant to Section 24 of RA No. 7076, P/CMRBs in provinces and cities where they have not been constituted shall be operationalized within three (3) months from the effectivity of this Order; d) Small-scale mining shall not be applicable for metallic minerals except gold, silver, and chromite, as provided for in RA No. 7076; e) The use of mercury in small-scale mining shall be strictly prohibited; and, f) Training and capacity building measures in the form of technical assistance for small-scale mining cooperatives and associations shall be conducted by the concerned government agencies. SECTION 12. Consistency of Local Ordinances with the Constitution and National Laws/LGU Cooperation. The Department of the Interior and Local
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Government (DILG) and the LGUs are hereby directed to ensure that the exercise of the lattters powers and functions is consistent with and conform 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 States mineral resources, particularly RA No. 7942 and its implementing rules and regulations, while recognizing the need for social acceptance of proposed mining projects and activities. 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. Concerned government agencies, in particular the DENR, the Department of Budget and Management (DBM), and the Department of Finance (DOF), are hereby directed to ensure the timely release of the share of LGUs in the National Wealth pursuant to Section 289 of RA No. 7160, or the Local Government Code of 1991. These agencies are likewise directed to study the possibility of increasing LGUS share as well as granting them direct access similar to existing arrangements with the Philippine Export Zone Authority (PEZA). LGUs, DENR, and the MGB working together shall strictly implement RA No. 7076, to ensure the protection of the environment, address various issues in small-scale mining, and ensure that violators thereof are subjected to appropriate administrative and criminal liability. SECTION 13. Creating a One-stop Shop for all Mining Applications and Procedures. The DENR is hereby directed to establish an inter-agency one-stop shop for all mining related applications and processes within six (6) months from the effectivity of this Order. The DENR shall issue authority to verify mineral deposits only for areas open to mining, as defined in this Order; provided, that no Mineral Production Sharing Agreement (MPSA), Financial and Technical Assistance Agreement (FTAA), Joint Venture Agreement (JVA), or Co-Production Agreement (CPA) shall be approved without the FPIC of the concerned IPs and compliance with the social acceptability requirement of the communities affected. All concerned government agencies and instrumentalities, including but not limited to the DENR- MGB, NCIP, DOF, and concerned LGUs are hereby directed to ensure an efficient and effective consolidation of functions, and to cooperate and render assistance as may be necessary. SECTION 14. Improving Transparency in the Industry by Joining the Extractive Industries Transparency Initiative. In order to improve transparency, accountability, and governance in the sector, the government shall support and commit participation in the Extractive Industries Transparency Initiative (EITI). The DENR is mandated
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to ensure that mechanisms are established to operationalize the EITI in the mining sector, in consultation and coordination with the mining industry and other concerned stakeholders. SECTION 15. Creation of a Centralized Database for the Mining Industry. The DENR is hereby directed to create a centralized database of all mining-related information. The database shall initially include all available data on the industry from all government agencies and instrumentalities. The database shall be publicly accessible, transparent, complete, and comprehensive. The database shall be created within six (6) months from the effectivity of this Order. Information and data gathered from the conduct of Resource Accounting or Full- Cost Benefit Analysis Studies, in line with the Wealth Accounting and Valuation of Ecosystem Services (WAVES) and the National Climate Change Action Plan (NCCAP), shall also be made part of the centralized database. SECTION 16. Integrated Map System to Include Mining Related Maps. Current and existing efforts to create an integrated map system for the common and uniform use of all government agencies and instrumentalities shall include all mining-related maps, such as, but not limited, to mining tenement maps, geo-hazard and multi- hazard maps, ancestral lands and domains, and protected areas under the NIPAS, among others. The maps in the system, including the mining-related maps, shall guide all planning and decision-making processes. Areas closed to mining operations, as provided for in Section 2 of this Order and in other pertinent laws, rules, and regulations, shall be clearly defined and delineated under the integrated map system. SECTION 17. Use of the Programmatic Environmental Impact Assessment. The DENR and the Environmental Management Bureau (EMB) shall study the adoption of the Programmatic Environmental Impact Assessment (PEIA) in the implementation of the Philippine Environmental Impact Statement System (PEISS) under PD No. 1586, for mining projects and related activities. The necessary amendatory rules and regulations shall be issued for the implementation of this Section. The DENR-EMB is also hereby directed to study the use and implementation of the PEIA for other industries and activities covered by the PEISS. SECTION 18. Funding. All government agencies involved in the implementation of this Order are authorized to allocate from their existing funds such amounts as may be necessary for the budgetary requirements that may be needed to pursue the objectives of this Order, subject to the usual government accounting and auditing rules and regulations.

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SECTION 19. Implementing Rules and Regulations (IRRs). The DENR, working with the MICC, shall issue the pertinent IRRs within sixty (60) days from the effectivity of this Order. SECTION 20. Separability Clause. If any provision of this Order is declared invalid and unconstitutional, all other provisions unaffected shall remain valid and subsisting. SECTION 21. Repealing Clause. All other rules, regulations and issuances or parts thereof that are inconsistent with this Executive Order are hereby repealed or modified accordingly. SECTION 22. Effectivity. This Order shall take effect immediately upon its publication in a newspaper of general circulation. DONE, in the City of Manila, this 6th day of July in the year of our Lord Two Thousand and Twelve.

(Sgd.) BENIGNO S. AQUINO III By the President: (Sgd.) PAQUITO N. OCHOA, JR. Executive Secretary

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Ganun na lang ba yun?

On April 2012, Alyansa Tigil Mina released a report on the massive fish kill in Lake Bito in Mac Arthur, Leyte wherein the community blamed the black sand mining operations near the lake. While in Nueva Vizcaya, more than five hundred people in Kasibu held a demonstration in front of the towns Municipal Hall to express their strong opposition against the operation of Oceana Gold Philippines in the mountains of Didipio. At the same time, a Fact Finding Mission Team headed to Tampakan in South Cotabato to investigate the account of militarization of the Sagittarius Mines Inc. to a Blaan Community. The above cases and even more, like the delay in the enforcement of the Cease and Desist Order for the magnetite mining in the shore of Buguey, Cagayan Valley which should have been served way back 2009 are strong justification that the mining industry in the Philippines had failed to protect the environment and get the support of the local stakeholders since many mining firms had disregarded their rights and transacted their business in such a bad faith. On the killing of anti-mining advocates and the continued culture of fear spread to silent the struggle against mining, we continue to seek justice and so we ask, Ganun Na Lang Ba Yun? Councilor Armin Marin was shot point blank in a rally in Sibuyan, Romblon in 2010 and the shooter, the mining companys security guard, was acquitted. Meanwhile, the murder of Gensun Agustin, shot while riding a motorcycle on the way home in Buguey, Cagayan in 2010, is still in the dark. Ganun na lang ba yun? Campaign is a call to make the government and the Chamber of Mines of the Philippines (COMP) accountable in all the tragedies and atrocities that the mining communities had experienced and still experiencing up to this time. It is an inquiry for the extractive industry and even to the general public that are we just letting things to happen without giving justice to the communities and with no remorse from the mining firms. In the end, everything is connected to and is a reflection of the weak components and the loopholes of the Philippine Mining Act of 1995. Alyansa Tigil Mina and all the other member organization of the SOS-Yamang Bayan Network are tediously campaigning for the repeal of the current policy that allows and aggressively promotes the use of large-scale mining. Ganun na lang ba yun? Campaign justifies and intensifies the call for the enactment of the Alternative Mineral Management Bill, which is now being heard in the congress.

Alyansa Tigil Mina

Alyansa Tigil Mina National Secretariat
# 973 Aurora Blvd. corner Dapdap St., Anonas Cubao, Quezon City 1109 Philippines Tel.: +63 (02) 434.46.42 loc 27 Fax: +63 (02) 434.46.96 Emails : nc@alyansatigilmina.net policy@alyansatigilmina.net sos@alyansatigilmina.net communications@alyansatigilmina.net
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