MINING AND SUSTAINABLE DEVELOPMENT: A Call for Environmental Accountability

MINING AND SUSTAINABLE DEVELOPMENT

TALKING POINTS

Mining Forum and Launch of the

National Resource Management Agenda

A Call for Environmental Accountability

Davao, 18 September 2008

Hon. Lorenzo R. Tañada III

Chair, Committee on Human Rights

House of Representatives

Maayong Hapon! It is my pleasure to be in this mining forum and launch of the National Resource Management Agenda initiated by AFRIM and its partner NGOs and POs. I also would like to thank one of Davao’s finest Councilor for facilitating my participation in this event.

I have been asked to share my perspectives on mining and sustainable development wearing my hat as member of Congress.

Let me ask you all several direct questions:

  • Can mining harm the environment?

  • Will mining sacrifice the rights of indigenous peoples and violate human rights?

  • Will it endanger the country’s food security?

When we think about the Marcopper (Placer Dome) in Marinduque, Rapu-Rapu (La Fayette) in Albay, the TVI Pacific in Canatuan, Siocon here in Mindanao, and several others, the images of the mining disasters and violations on the rights of people living in those communities, then we shall all say that the answer is a resounding YES. Therefore, the conclusion is that mining should not have any place in our country’s development plan.

But still the nagging afterthought – other countries were able to take out their minerals from the earth without violating human rights, their food security has been enhanced as they were able to buy more food in exchange for the minerals they have exported, and with minimal harm on the environment, why can’t we?

The answer I would say, is because we are only launching the National Resource Management Agenda now. Had this document been available at the time when the Mining Act of 1995 otherwise known as Republic Act 7942 was being debated, and the basic principles and framework for managing resources as cited in the Agenda is incorporated in the law, then perhaps we shall not be having mining disasters of the sort we have seen. And perhaps the primacy of the Indigenous People’s Rights Act is held over the Mining Act of 1995.

It is in this light that I congratulate AFRIM for leading a multi-stakeholder consultation to precisely grapple with questions of sustainable development and ensuring that it is our people that truly benefit from the utilization of our natural resources.

I couldn’t agree more with AFRIM in the enumeration of principles that should be contained in the Natural Resource Management Agenda – sustainability, equitability, responsible stewardship, systems orientation, and just peace and the six elements that aid the fulfillment of the vision include: tri-people1 focus, self-determination, gender-sensitivity, participatory and consultative decision-making, decentralized and emancipatory management, and food sovereignty.

So, sana noon pa andito na ito.

But then again, some of you might say, Erin, you must be dreaming. The author of Republic Act 7942 was then Senator Gloria Macapagal-Arroyo. Can you safely say that principles of sustainability, equitability, food sovereignty, participatory and consultative decision-making are even in her vocabulary?

But levity aside, I do thank AFRIM for the wonderful initiative as I hope to further contribute in enriching the Agenda.

The Mining Act is Seriously Flawed

Allow me to delve on Republic Act 7942. My father, former Senator Wigberto Tañada is among those who questioned the constitutionality of the Mining Act in GR No. 127882 filed February 7, 1997. It is a celebrated case since the petition challenged the very foundation of Government’s policy in the administration and management of the country’s mineral lands and resources.

The petition is mainly for the nullification of the Philippine Mining Act o 1995 and the Financial or Technical Assistance Agreement (FTAA) entered into by and between the Philippine Government and WMC (Philippines), Inc. for being unconstitutional.

On January 27, 2004, the Supreme Court declared all provisions of the Philippine Mining Act of 1995 which allows the direct participation of foreign-owned corporations in mineral resources exploration, development and utilization in the country.

It was a short-lived victory as on December 1, 2004, the Supreme Court reversed its January decision and declared all provisions on foreign participation – including FTAA of the Philippine Mining Act of 1995 constitutional. And the rape of our environment worsened…

I, just like my father, maintain the position that the Mining Act is seriously flawed and it is still riddled with constitutional questions. Proof of the matter is I am party to another case filed against RA 7942, this time zeroing in on two sections of said law, singling out Sagittarius Mines, Inc., Oceanagold Philippines Inc., and TVI Resources and Development Philippines Inc. .

Section 80 of the Mining Act of 1995 is constitutionally infirm as it limits government’s share to excise taxes. In short, it severely undermines the state’s taxation power. This contradicts the Constitutional provision that development of the national patrimony should be based on an equitable distribution of wealth. Further, the DENR had no basis to enter into Mining Production Sharing Agreements (MPSA) as the law did not constitutionally provide for the basis for sharing. This cannot be simply remedied by an executive issuance.

The petition likewise questions Section 81 of said law, again pertaining to Financial and Technical Assistance Agreements and prayed for a halt of the issuance of mining permits by the DENR.

My dear friends, two FTAAs cover 447,308 hectares that include indigenous communities, with 54 more FTAA applications targeting 2.3 million hectares of land in the country. Done outside the framework of sustainable development and equitable distribution of the benefits from the utilization of our natural resources, then we shall be wrecking havoc in our environment and our people’s lives.

The Need for Corporate, Government and International Social Responsibility for Mining

Apart from the principles that are embodied in the Natural Resources Management Agenda, permit me to add a few points with regard to social responsibility for mining. Some of these recommendations are lifted from the study done by Christian Aid, entitled “Breaking promises, making profits: Mining in the Philippines” published in December 2004.

Mining companies should:

  • Support improved regulation at both national and international level.

  • Desist from the use of paramilitary troops

  • Should recognize and respect the right to free, prior informed consent and right of communities to say NO to a mining project.

There are a lot of recommendations, “dos and donts” that are being put forward to the government. Among them are:

  • Public notification should be followed where a mining proponent exists

  • Adequate time should be allowed to determine local opinion (six months)

  • Deployment of military or paramilitary forces in an area prior to or during consultation is unacceptable

  • Any legal contests to the granting of a Certificate of Ancestral Domain Title should be secondary and should not cause the displacement of indigenous community while the suit is pending.

  • Government should decisively investigate and prosecute any reported human rights violations.

Further, there is a need of some form of international regulation which would ensure that:

  • Companies operate to the same standards in other countries as they do in their home countries, except where host countries have higher standards – these should be respected.

  • International law should ensure that minimum environmental and social standards are made binding for all companies. This will prevent host countries from lower standards to attract investments.

In the absence of international regulation, I would argue that these proposals can still be studied and explored so that an overhauled Mining Act, which captures the NMR Agenda’s framework and principles and the things I have mentioned.

State of Mining Legislation in Congress

As I end, allow me to just say that I think there is a real need to actively engage Congress so that at the minimum, a review of the Mining Act of 1995 is done and that the principles of sustainable development, food security, respect for the rights of indigenous peoples are in the forefront. Sadly though, the Committee on Natural Resources where bills2 which amends and/or repeals the Mining Act are lodged has only had one public hearing so far. And by the way things are going, I’m not sure if any of those mining-related bills or resolutions would be reported out by the Committee. Its Chair by the way, is Congressman Iggy Arroyo.

I think this is a rather lengthy discourse. Thank you very much for the opportunity to address this forum and I look forward to an enlightening exchange of ideas.

Mabuhay tayong lahat!

1 Tri-people means Muslims, migrant settlers, and IPs

2 There are 4 bills filed pertaining to mining – one by BM, two by Cong. Bichara, and another one by Congw. Carmencita Reyes; Villafuerte has a resolution pertaining to mining permits

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