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The Need for an Alternative Mining Law
Volume 23 Number 1
Thursday, 12 January 2012 10:43

A Position Paoer of the Task Force Detainees of the Philippines

Note: The 14th Congress of the Philippines has already adjourned for the campaign period and the elections in May 2010.  It has failed to act on the alternative mining bill, among other important pending legislative measures.  It is the hope of human rights advocates that in the coming 15th Congress, the alternative mining bill will be re-filed and enacted into law for the respect, protection and fulfillment of human rights of the people, especially those in mining areas.
Human dignity is above all. Human rights ensure the enjoyment of peoples’ lives for dignity. In all aspects of human life, the respect, protection and fulfillment of human rights should be of utmost importance. In any economic development or poverty alleviation plan, this principle must be the primary consideration.
Note: The 14th Congress of the Philippines has already adjourned for the campaign period and the elections in May 2010.  It has failed to act on the alternative mining bill, among other important pending legislative measures.  It is the hope of human rights advocates that in the coming 15th Congress, the alternative mining bill will be re-filed and enacted into law for the respect, protection and fulfillment of human rights of the people, especially those in mining areas.
Human dignity is above all. Human rights ensure the enjoyment of peoples’ lives for dignity. In all aspects of human life, the respect, protection and fulfillment of human rights should be of utmost importance. In any economic development or poverty alleviation plan, this principle must be the primary consideration.

 

The rights of the people and the course towards livelihood and development must be included in any blueprint of the state’s program. The rights based approach to development must be in every government official’s mind in planning for the future.
The current plan of the government for development in the Philippines is through the aggressive mineral extraction in the country. The government believes that with the present mineral deposit available that is worth an estimated value of $3 trillion (estimated 30.8 billion metric tons of metallic and non-metallic minerals), the country’s economic problem will be addressed.
To be able to achieve the plan of maximizing the mineral extraction, the government promotes our country for foreign companies to come in and invest in the mining industry. It has made this industry “competitive” through streamlining the procedure of concerned government agencies and instrumentalities relating to the grant of mining tenements and outlined 23 priority mining projects. This was done without considering the human rights of the people that will be affected with these priority mining projects.
The major instrument that the government issued was the Philippine Mining Act of 1995 or Republic Act 7942. This law will not realize the target revenue of the government.  The law does not ensure that the income coming from the mining industry will go to the national revenue. It promotes the exportation of raw minerals without maximizing the benefits of such resources for the Filipino people. A big percentage of this will go out, and go to the mother company of the foreign investors. The law grants too many incentives for investments, including confidentiality of information, return of investments and tax-breaks. To top it all, it allows 100% ownership and control of natural resources to foreigners through the Financial and Technical Assistance Agreement (FTAA).
Even the share of revenue of the Local Government Units (LGUs) affected by the project is very minimal. Statistical data, however, show that LGUs get the least share from these. Of the PhP 10.4 billion pesos taxes collected in 2007, only PhP 357.9 million pesos were given to LGUs. This is a measly 0.03% of the total taxes of the mining industry for that year.
The Philippine Mining Act of 1995 does not recognize the right of the indigenous people (IP) to their ancestral domain.  The process of consultation in the law gives way to the distortion of a genuine democratic consultation for the IPs. Also, the law usurps the power of the judiciary to decide on the case of property and ownership under section 77, chapter XIII, through giving the panel of arbitrators the power to decide on the disputes over the surface owners, occupants and claimholders.
It is with the aforesaid concerns regarding the present mining law that TFDP calls for the immediate repeal of Republic Act 7942 and fully endorses the enactment of an Alternative Mining Law.
TFDP supports the enactment of an Alternative Mining Law for the following reasons:
First, the Alternative Mining Bill (AMB) proposed in the 14th Congress fully recognizes the Indigenous Peoples’ Rights as stated in Section 2 as Declaration of state policy and in section 11 in fulfillment of their right to self determination.
Sec. 2, Declaration of State Policies, the State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:
a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity and development;
b)The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;
c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies.
Section 11, Subject to their right to self-determination, indigenous cultural communities/indigenous peoples (ICCs/IPs) own and have the responsibility to manage the mineral resources in their respective ancestral domains, free from external manipulation, interference, force threat, intimidation, coercion and other analogous acts. The State shall support indigenous cultural communities in developing capacities to effectively exercise their right and responsibility.
Furthermore, in recognition of their rights, the AMB gives the IPs ownership over the minerals within its ancestral domain as specified in sections 26 to 28.
Section 26, Ownership of ICCs/IPs, Mineral resources within ancestral domains/ancestral lands is the collective private property of the indigenous cultural communities/indigenous peoples (ICCs/IPs). The management of such mineral resources shall build on the indigenous knowledge systems and practices.
Section 27, when ancestral domain is not yet formally recognized. When ancestral domain is not yet covered by a Certificate of Ancestral Domain Title/Certificate of Ancestral Land Title (CADT/CALT), or is covered by a different title issued in favor of members of the ICCs/IPs, mineral resources shall nevertheless be managed by the ICCs/IPs concerned when it can be presumed that the area is part of ancestral domain. An area is presumed to be part of ancestral domain by virtue of historic rights and self-delineation.
Section 28, when ICCs/IPs displaced from ancestral domain, and when ancestral domain is already covered by other titles emanating from the state other than CADT/CALT. Native title over ancestral domain subsists notwithstanding the fact that the ICCs/IPs who hold such native title have been displaced there from or that such ancestral domains have been occupied by other persons or corporations under another claim of title emanating from the State. In such cases, ICCs/IPs shall continue to own such mineral resources.
Second, the AMB is upholding the right of Filipinos to participatory governance. In sections 36 to 38, the bill proposed to create a multi-sectoral council that will determine whether to allow a mining operation in respective areas. Also, it clearly specifies the just representation of every stakeholder in the area. In these representations in the council, proper consultation will be observed.
Section 36, Establishment of Multi-Sectoral Mineral Council, a Multi-Sectoral Mineral Council shall be established for the purposes of this Act. There shall be as many Multi-Sectoral Mineral Councils as there are watershed systems with demarcated mineral areas.
Section 37, Powers of the Council, the Council shall have the following powers, among others:
a. To determine whether or not mining operations shall be allowed;
b. To deliberate on proposals for mineral agreements;
c. To approve the proposal for mineral agreements;
d. To monitor the conduct of mining operations;
e. To establish its internal rules of procedure which are not contradictory to this Act.
Section 38, Composition of the Multi-Sectoral Mineral Council, The Multi-Sectoral Mineral Council shall be composed of a representative of the Bureau, a representative from the DENR, one representative from each of the affected provincial governments/independent component cities/highly urbanized cities, representatives from development non-government organizations as many as the representatives of local government units, and the affected ICCs/IPs within the watershed system. The Bureau shall be the convenor of the Council.
Third is the recognition of the right of private lands within and outside the ancestral domain. In section 25, the AMB clearly states that not even an exploration will be allowed without the written consent of the landowners.
Section 25, The Bureau shall not enter into any private lands for the purposes of exploration activities without the written consent of the land owner, possessor and/or occupant, or the FPIC of the ICC/IP and payment of just compensation for the use of property. Neither shall the Bureau enter into any part of the ancestral domains/lands of ICCs/IPs without their free and prior informed consent.
Fourth is the prohibition of Strategic Legal Action against Public Participation (SLAPP) which is being used by the mining corporations against the people to be able to prevent or stop any dissent. This provision is a concrete manifestation of the respect for the civil and political rights of the people.
Section 132, Strategic Legal Action against Public Participation (SLAPP) shall be strictly prohibited. SLAPP is any legal action, whether civil, criminal or administrative, filed to harass, vex, exert legal action or stifle legal recourses of community members complaining against violations of this Act or enforcing the provisions of the Act, or exercising their freedom of assembly or right of public participation. The investigating prosecutor or court shall immediately determine within a period of thirty (30) days from filing thereof whether a legal action is a SLAPP and accordingly dismiss the same.
Lastly, the proposed bill eliminates incentives that only favor the foreign investors. It provides economic protection to the state by identifying profit sharing in every form of mineral production agreement. It also does away with the issuance of FTAA that puts the country at the losing end.
Section 44, Modes of Mineral Agreement, A mineral agreement may only take the following forms as herein defined; (a) Mineral production sharing agreement – is an agreement where the Government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor shall provide the financing, technology, management and personnel necessary for the implementation of this agreement. (b) Co-production agreement – is an agreement between the Government and the contractor wherein the Government shall provide inputs to the mining operations other than the mineral resource. (c) Joint venture agreement – is an agreement where a joint-venture company is organized by the Government and the contractor with both parties having equity shares. Aside from earnings in equity, the government shall be entitled to a share in the gross output.
In no case shall Financial or Technical Assistance Agreements, or any other similar agreements, contracts, and/or executive issuances granting license or permission to explore, develop and/or utilize mineral resources be awarded to foreign persons.
Section 45, Eligibility, Only Filipino citizens or corporations sixty percent (60%) of whose equity is owned or controlled by such citizens shall be allowed to conduct development, utilization and processing of mineral resources within the country.
With the above mentioned provisions of House Bill 6342 or the Alternative Mining Bill during the 14th Congress that guarantee the respect for human rights, TFDP joins the ranks of the indigenous people and other people affected by the destructive mineral extraction activities in the country in pushing for the re-filing of the Alternative Mining Bill and its subsequent enactment into law during the 15th Congress.
The rights of the people and the course towards livelihood and development must be included in any blueprint of the state’s program. The rights based approach to development must be in every government official’s mind in planning for the future.
The current plan of the government for development in the Philippines is through the aggressive mineral extraction in the country. The government believes that with the present mineral deposit available that is worth an estimated value of $3 trillion (estimated 30.8 billion metric tons of metallic and non-metallic minerals), the country’s economic problem will be addressed.
To be able to achieve the plan of maximizing the mineral extraction, the government promotes our country for foreign companies to come in and invest in the mining industry. It has made this industry “competitive” through streamlining the procedure of concerned government agencies and instrumentalities relating to the grant of mining tenements and outlined 23 priority mining projects. This was done without considering the human rights of the people that will be affected with these priority mining projects.
The major instrument that the government issued was the Philippine Mining Act of 1995 or Republic Act 7942. This law will not realize the target revenue of the government.  The law does not ensure that the income coming from the mining industry will go to the national revenue. It promotes the exportation of raw minerals without maximizing the benefits of such resources for the Filipino people. A big percentage of this will go out, and go to the mother company of the foreign investors. The law grants too many incentives for investments, including confidentiality of information, return of investments and tax-breaks. To top it all, it allows 100% ownership and control of natural resources to foreigners through the Financial and Technical Assistance Agreement (FTAA).
Even the share of revenue of the Local Government Units (LGUs) affected by the project is very minimal. Statistical data, however, show that LGUs get the least share from these. Of the PhP 10.4 billion pesos taxes collected in 2007, only PhP 357.9 million pesos were given to LGUs. This is a measly 0.03% of the total taxes of the mining industry for that year.
The Philippine Mining Act of 1995 does not recognize the right of the indigenous people (IP) to their ancestral domain.  The process of consultation in the law gives way to the distortion of a genuine democratic consultation for the IPs. Also, the law usurps the power of the judiciary to decide on the case of property and ownership under section 77, chapter XIII, through giving the panel of arbitrators the power to decide on the disputes over the surface owners, occupants and claimholders.
It is with the aforesaid concerns regarding the present mining law that TFDP calls for the immediate repeal of Republic Act 7942 and fully endorses the enactment of an Alternative Mining Law.
TFDP supports the enactment of an Alternative Mining Law for the following reasons:
First, the Alternative Mining Bill (AMB) proposed in the 14th Congress fully recognizes the Indigenous Peoples’ Rights as stated in Section 2 as Declaration of state policy and in section 11 in fulfillment of their right to self determination.
Sec. 2, Declaration of State Policies, the State shall recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the framework of the Constitution:
a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity and development;
b)The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic, social and cultural well being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain;
c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and policies.
Section 11, Subject to their right to self-determination, indigenous cultural communities/indigenous peoples (ICCs/IPs) own and have the responsibility to manage the mineral resources in their respective ancestral domains, free from external manipulation, interference, force threat, intimidation, coercion and other analogous acts. The State shall support indigenous cultural communities in developing capacities to effectively exercise their right and responsibility.
Furthermore, in recognition of their rights, the AMB gives the IPs ownership over the minerals within its ancestral domain as specified in sections 26 to 28.
Section 26, Ownership of ICCs/IPs, Mineral resources within ancestral domains/ancestral lands is the collective private property of the indigenous cultural communities/indigenous peoples (ICCs/IPs). The management of such mineral resources shall build on the indigenous knowledge systems and practices.
Section 27, when ancestral domain is not yet formally recognized. When ancestral domain is not yet covered by a Certificate of Ancestral Domain Title/Certificate of Ancestral Land Title (CADT/CALT), or is covered by a different title issued in favor of members of the ICCs/IPs, mineral resources shall nevertheless be managed by the ICCs/IPs concerned when it can be presumed that the area is part of ancestral domain. An area is presumed to be part of ancestral domain by virtue of historic rights and self-delineation.
Section 28, when ICCs/IPs displaced from ancestral domain, and when ancestral domain is already covered by other titles emanating from the state other than CADT/CALT. Native title over ancestral domain subsists notwithstanding the fact that the ICCs/IPs who hold such native title have been displaced there from or that such ancestral domains have been occupied by other persons or corporations under another claim of title emanating from the State. In such cases, ICCs/IPs shall continue to own such mineral resources.
Second, the AMB is upholding the right of Filipinos to participatory governance. In sections 36 to 38, the bill proposed to create a multi-sectoral council that will determine whether to allow a mining operation in respective areas. Also, it clearly specifies the just representation of every stakeholder in the area. In these representations in the council, proper consultation will be observed.
Section 36, Establishment of Multi-Sectoral Mineral Council, a Multi-Sectoral Mineral Council shall be established for the purposes of this Act. There shall be as many Multi-Sectoral Mineral Councils as there are watershed systems with demarcated mineral areas.
Section 37, Powers of the Council, the Council shall have the following powers, among others:
a. To determine whether or not mining operations shall be allowed;
b. To deliberate on proposals for mineral agreements;
c. To approve the proposal for mineral agreements;
d. To monitor the conduct of mining operations;
e. To establish its internal rules of procedure which are not contradictory to this Act.
Section 38, Composition of the Multi-Sectoral Mineral Council, The Multi-Sectoral Mineral Council shall be composed of a representative of the Bureau, a representative from the DENR, one representative from each of the affected provincial governments/independent component cities/highly urbanized cities, representatives from development non-government organizations as many as the representatives of local government units, and the affected ICCs/IPs within the watershed system. The Bureau shall be the convenor of the Council.
Third is the recognition of the right of private lands within and outside the ancestral domain. In section 25, the AMB clearly states that not even an exploration will be allowed without the written consent of the landowners.
Section 25, The Bureau shall not enter into any private lands for the purposes of exploration activities without the written consent of the land owner, possessor and/or occupant, or the FPIC of the ICC/IP and payment of just compensation for the use of property. Neither shall the Bureau enter into any part of the ancestral domains/lands of ICCs/IPs without their free and prior informed consent.
Fourth is the prohibition of Strategic Legal Action against Public Participation (SLAPP) which is being used by the mining corporations against the people to be able to prevent or stop any dissent. This provision is a concrete manifestation of the respect for the civil and political rights of the people.
Section 132, Strategic Legal Action against Public Participation (SLAPP) shall be strictly prohibited. SLAPP is any legal action, whether civil, criminal or administrative, filed to harass, vex, exert legal action or stifle legal recourses of community members complaining against violations of this Act or enforcing the provisions of the Act, or exercising their freedom of assembly or right of public participation. The investigating prosecutor or court shall immediately determine within a period of thirty (30) days from filing thereof whether a legal action is a SLAPP and accordingly dismiss the same.
Lastly, the proposed bill eliminates incentives that only favor the foreign investors. It provides economic protection to the state by identifying profit sharing in every form of mineral production agreement. It also does away with the issuance of FTAA that puts the country at the losing end.
Section 44, Modes of Mineral Agreement, A mineral agreement may only take the following forms as herein defined; (a) Mineral production sharing agreement – is an agreement where the Government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor shall provide the financing, technology, management and personnel necessary for the implementation of this agreement. (b) Co-production agreement – is an agreement between the Government and the contractor wherein the Government shall provide inputs to the mining operations other than the mineral resource. (c) Joint venture agreement – is an agreement where a joint-venture company is organized by the Government and the contractor with both parties having equity shares. Aside from earnings in equity, the government shall be entitled to a share in the gross output.
In no case shall Financial or Technical Assistance Agreements, or any other similar agreements, contracts, and/or executive issuances granting license or permission to explore, develop and/or utilize mineral resources be awarded to foreign persons.
Section 45, Eligibility, Only Filipino citizens or corporations sixty percent (60%) of whose equity is owned or controlled by such citizens shall be allowed to conduct development, utilization and processing of mineral resources within the country.
With the above mentioned provisions of House Bill 6342 or the Alternative Mining Bill during the 14th Congress that guarantee the respect for human rights, TFDP joins the ranks of the indigenous people and other people affected by the destructive mineral extraction activities in the country in pushing for the re-filing of the Alternative Mining Bill and its subsequent enactment into law during the 15th Congress.

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