Monthly Archives: June 2012

Aquino’s mining policy is unconstitutional

by Dan Gatmaytan

Environment and Natural Resources Secretary Ramon Paje recently commented on the new mining executive order expected to be signed by President Aquino. In a statement to the press, Paje said that the new policy would reiterate the “primacy of national law” over anti-mining ordinances.

Paje added that the ordinances would remain until rendered illegal by a “national government agency.”

Paje’s statements echo those made by DILG Secretary Jesse Robredo, which were made in 2010. Robredo made similar statements in response to South Cotabato’s resistance to mining. He opined that the province did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method.

In a Memorandum Circular dated November 9, 2010, Robredo directed the provincial government of South Cotabato to review its Environmental Code. According to the Memorandum Circular, “[i]n view thereof, you are hereby enjoined to cause the immediate suspension of the implementation of said ordinance pending its review.”

Secretaries Paje and Robredo make statements that are arguably inconsistent with law.

There is no law that prevents local governments from imposing additional strictures to safeguard the environment so long as it does not contradict an express provision of law. The Mining Act of 1995 does not prevent local governments from banning open-pit mining or from adopting measures that protect the environment. The efforts of South Cotabato to ban open-pit mining may be justified as police power measures under the Local Government Code. It is true that local ordinances must be consistent with the Constitution and national laws, but if a course of action is not prohibited by a national law it can certainly be adopted by an ordinance.

Local governments are allowed to add requirements before businesses otherwise satisfying national laws can operate at the local level. In Newsound Broadcasting Network Inc. v. Dy (G.R. Nos. 170270 & 179411, April 2, 2009.), the Supreme Court held that:

Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.

In another case, the Supreme Court recognized the power of local government units to prevent the operation of drug stores authorized by the Food and Drug Administration to operate. In that case (Gordon v. Verdiano II, G.R. No. L-55230, November 8, 1988.), the Court held that (then) Mayor Richard Gordon could not disallow the operation of a drugstore after it was allowed to operate by the FDA. “However,” the Court continued, “it was competent for the petitioner (Gordon) to suspend Mayor’s Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit.”

In other words, while the applicant has complied with the pertinent national laws and policies,

this fact alone will not signify compliance with the particular conditions laid down by the local authorities like zoning, building, health, sanitation, and safety regulations, and other municipal ordinances enacted under the general welfare clause. This compliance still has to be ascertained by the mayor if the permit is to be issued by his office. Should he find that the local requirements have not been observed, the mayor must then, in the exercise of his own authority under the charter, refuse to grant the permit sought.

What is more curious is that both Cabinet secretaries refer to the executive power to declare these ordinances illegal. The President does not have the power of control over local government officials, only the power of supervision. Supervision means overseeing the power or authority of an officer to see that subordinate officers perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.). The President’s authority is limited to seeing to it that rules are followed and laws are faithfully executed. “The President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.” (The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010).

Robredo’s actions and Paje’s statement suggest that the President has the power to declare ordinances unconstitutional. The President cannot declare ordinances as unconstitutional as that power is reserved by the Constitution to the courts.

If Paje’s statements are accurate, the new mining policy may face serious challenges in our courts.

Dan Gatmaytan is an Associate Professor in the University of the Philippines College of Law.


As govt gears for new mining EO, President reiterates: National law trumps local ordinances

by Chichi Conde,

President Benigno Aquino III on Monday reiterated the primacy of national laws over local laws and ordinances, as local officials brace themselves for a forthcoming executive order (EO) redefining mining policies in the Philippines.

The President made his remarks after around 40 governors last week threatened to challenge the EO expected to be signed by the President, saying it would undermine local governments’ wisdom and control over their own respective areas and resources therein.

Albay Gov. Joey Salceda, a member of Aquino’s Liberal Party, said the EO would allow the national government to override anti- or pro-mining policies of local executives.

Aquino, prompted to respond to Salceda’s position, said:

“I would like to talk to him (Salceda) but I think the premise of your question is wrong. Where did that happen? I don’t think Joey Salceda would come up with a statement that says the opposite – that a municipal order or provincial ordinance takes precedence over our national law,” he said.

“The Constitution is very, very clear on that. First, ordinance making powers of local governments are limited. Second, they have limited territorial scope. But more than all of these, there is a clause that says local ordinances should be consistent with our national laws,” the President added.

Aquino said for as long as the Philippines is not a federated government and remains to be a unitary government, national laws would always take precedence.

If Salceda was quoted correctly, Aquino said it was “premature” for the governor to be issuing such statements.

“I have not yet signed it. There is still some language I am not comfortable with,” Aquino said.

“But if they feel that their rights are being trampled upon, by allmeans they can go to the appropriate courts. But I am very confident that he (Salceda) would not say that the ordinances that they have promulgated on a local basis will supplant national laws,” the President added.


40 governors oppose new Aquino mining policy—Salceda

By: Kristine Alave
Philippine Daily Inquirer

MANILA, Philippines—At least 40 anti-mining governors would challenge before the Supreme Court the Aquino administration’s mining policy upon its signing by President Aquino, Albay Governor Joey Salceda said.

Salceda said local government executives would oppose the mining policy that was supposed to be signed by President Aquino on Friday but was placed on hold because it put them in an adversarial position to the national government. It would also dismiss their autonomy and independence in favor of national laws and regulations on the mining industry, Salceda said.

According to the Albay governor, a member of the ruling Liberal Party, the mining policy stresses that the national laws take primacy over local laws and ordinances. As such, the national government can override anti- or pro-mining laws set by local executives.

“We consider that provocative. In other words, it’s not conducive to a productive national conversation on the policy,” Salceda said in a forum organized by the International Women’s Media Forum recently.

“It will breed inequality of income and assets, it will destroy the countryside. It’s definitely anti-rural, that EO is anti-LGU,” Salceda said.

He noted that at least 40 provinces have passed ordinances that restrict, regulate or oppose mining, especially metallic mining and large-scale mining. Albay currently has not been accepting mining applications, he said.

The executive order, Salceda said, could not invalidate their ordinances against mining. If the order was signed with this provision, local government executives would definitely go to the Supreme Court to strike it, he said.

“Forty governors are opposing it,” he noted.

“An executive order does not destroy an ordinance, they have to bring it to the Supreme Court to do a short cut. That executive order will not make our ordinances disappear because they are articulation of democratic aspirations,” he explained.

Salceda said Malacañang knew of their opposition to the mining policy. This could be the reason why the President has not signed it yet, he said.

The resistance from the local executives came at an awkward time for the administration. It needs as much support as it can muster from the local governments to keep its power in the provinces for the mid-term local elections in 2013.

Local governments distrust the national government and the mining companies because they have not felt the benefits brought by mining activities, Salceda said, adding that profit-sharing between the local and national branches are skewed to the latter.

His province, for instance, which hosts the Rapu-Rapu Polymetallic Project, only received P3.4 million from the mining company’s revenues. The company’s export value reached P7.7 billion.

“It is a failure when it comes to inter-generational sharing of resources. The basic principle why you allow mining is because it is for everyone including the next generation. Therefore, you should be able to raise sufficient revenues so that future generations would benefit from it,” said Salceda, a former member of the Arroyo economic team.

“The revenues you raise could be invested in things that would benefit at least three generations after you, like roads, bridges, enterprise development. But you can’t do that with P3.4 million,” he said.

Salceda said the mining industry’s track record in the Philippines has been in tatters, with most of the provinces with big mines also being the poorest, he said. Previous mining companies have also failed to rehabilitate their abandoned mine sites. Furthermore, mining operations, which are often militarized, breed tension in communities.

Salceda also called on Mines and Geosciences Bureau Director Leo Jasareno to resign from his post, saying Jasareno should regulate, not promote, mining activities.

President Aquino was supposed to sign the much-delayed and long-awaited executive order last Friday. The Department of Environment and Natural Resources, which was in charge of the order, initially planned it to be issued in early 2012. The original plan was to have a comprehensive mining policy that would spell out new regulatory and tax rules for the mining companies.

But last February, this plan was shelved. Instead, it was announced that Malacañang would only issue a policy statement that would lay out the administration’s direction on the mining sector. It also did away with controversial provisions on the valuation of natural wealth and taxation, pending more legal studies on these matters.


Letter to President Aquino: Reject SMI/XSTRATA Mine Proposal in Social Justice

June 8, 2012

His Excellency Benigno Simeon C. Aquino, III
President of the Republic of the Philippines
New Executive Building, Malacañang Palace
J.P. Laurel St., San Miguel, Manila

Your Excellency:


We are gratified that Sagittarius Mines, Inc. (SMI)/XStrata has been denied environmental clearance for the second time for its controversial $ 5.9 billion project straddling South Cotabato, Sultan Kudarat, Davao del Sur and Saranggani. The disapproval, “without prejudice to resubmission” (DENR order dated May 22, 2012), in my view, should be final and absolute. The disapproval should not just be based on the standing ordinance of South Cotabato against open-pit mining, but on appreciation of the incontrovertible information that has emerged on the impacts of the project on the environment and the people of Mindanao.

Several conferences, fora and fact-finding missions have concluded many reasons to reject the Tampakan Mine Project. Let me briefly enumerate some of these risks the mine poses to our human, ecological and cultural heritage:

Slated to become the biggest mine in the Philippines, the Tampakan Mine of SMI/Xstrata covers 10,000 hectares, destroying in its lifetime 4,000 hectares of water catchment forests, including old-growth forests. It risks polluting the water source of communities depending for their livelihoods on six rivers. The biggest river system, the Mal River, will be most polluted as many streams in its catchment will be destroyed and replaced by the tailings dam, which will devastate fisheries and will harm irrigated crops downstream in Davao del Sur, in the event of a dam failure. The Philippines needs more than ever to protect its water catchment if it is going to feed its expanding population and the apocalyptic Climate Change forecast of PAGASA showing a decreased rate of rainfall in Mindanao, the country’s food basket. (data from Goodland and Wicks, “Philippines: Mining or Food?”, 2006)

SMI threatens a total of 812 flora species, 247 (30%) are Philippine endemics and 52 (6%) are mainland Mindanao endemics. 55 species are under the Threatened Species list of the International Union for Conservation of Nature. For amphibians and reptiles alone, 28% are Philippine endemics, 18% are Mindanao endemics and 20% are Greater Mindanao endemics (data from the Environmental Impact Study of SMI).

• MINDANAO IS A CONFLICT ZONE. Precisely because of the unstable peace and order condition in the Tampakan site and surrounding areas, SMI facilities have been attacked, burned and partly destroyed on several occasions by aggrieved parties. This area is among the most militarized areas in south central Mindanao today. On the pretext of “clearing the areas of subversive elements,” the Philippine Armed Forces with the CAFGUs have continuously launched military campaigns in that area, intensifying the conflict between Anti- and Pro- mining B’laans and instigating fear and terror in the communities, as documented by the Fact-Finding Mission conducted on April 25 and 26, 2012 by the Social Action Center of the diocese of Marbel.

• THE TAMPAKAN MINE IS A MAJOR THREAT TO FOOD SECURITY. Agriculture is the dominant economic activity in Davao del Sur and South Cotabato. The open-pit mining method would create massive disturbance to the environmental ecosystem currently protecting the water catchments supplying water irrigation and drinking water to Koronadal. Failure of the 500-hectare tailings dam (a real possibility due to earthquake fault lines crossing the site or the eruption of Mt. Matutum, an active volcano, which is 12 kilometers away) would kill people and damage watershed and irrigation infrastructures that support Mindanao’s food basket. There are 80,000 farmers farming 200,000 hectares in South Cotabato valley alone, relying on the river systems and water catchments of the surrounding mountains; SMI/Xstrata admits in their EIS that they will impact six (6) river systems. Scientists also project that several aquifers will also be contaminated. (from Goodland and Wicks, “Philippines: Mining or Food?”, 2006)

In finally rejecting SMI/Xstrata of this particular project, I believe that you are not breaking faith with these foreign investors. The project, from the very beginning was conditioned on the investors showing that it could be implemented without serious environmental and social impacts. Otherwise, why else would Environmental Clearance be required? Their assumption in making their investments, no matter how big or small, was that they could prove the environmental soundness of their project. If through the intervening environmental impact studies (by DENR itself, or by private institutions like NGOs, Academe and Church) it has been demonstrated that the impacts would be disastrous, the President must recognize this and draw the necessary conclusion. In this case, DENR itself must come to the defense of the environment and protect the interests of the Filipino people, living now and the generations yet to come.

For these reasons, I appeal that the Tampakan Mine Project of SMI/Xstrata be disapproved with finality. The disapproval should not be based on the conflict of the national (RA 7942) and provincial (South Cotabato Ordinance No. 4-2010) laws alone, but in the context of social justice and the correlate principle of the common good – the shared human good where relationships to God, to human beings and the environment are honored and respected even in our economic pursuits.

Thank you.

Sincerely in our Lord,

Fr. Joel E. Tabora, SJ


Conflict over water in 2020: mining or agriculture?

By Carolyn O. Arguillas | Tuesday| June 5, 2012 | Filed under: Top Stories

DAVAO CITY (MindaNews/04 June) – Water will be a source of conflict and could possibly be a reason for war in 2020 if the river basins of Mindanao are not managed properly and the crucial resource is not allocated well, Secretary Lucille Sering, vice chair of the Climate Change Commission, warned in her keynote address at the Mindanao Economy and Environment Summit Monday.

But Sering added that water can also be a “catalyst for unity” depending on how we act now.

Given a reduced rainfall by 2020, potential conflicts over water use have to be defined and studied, she told some 200 participants at the Grand Regal Hotel.

“Mining has been mentioned. Water is crucial… If you see reduction of water in 2020, mining needs water, agriculture needs water and even hydropower needs water. Ano po ba ang uunahin natin sa paggamit sa ating tubig?” (What will be our first priority in using water?), Sering asked.

But she quickly answered her own question. “Hindi lang po natin pag-aaralan kung paano i-manage ang ating river basins kundi paano natin i-allocate itong resources na ito para hindi tayo mag-away-away at maging panibagong rason para magkagyera,” (Let us not just study about how to manage the river basins but also how to allocate water resources so that we will not fight and make this a new reason for war), the Secretary said.

She said Mindanawons need to protect their right to live peacefully and to live with sufficient water.

Talking about water is not that simple, said Sering. “When we talk about water, it means a lot of things. What we do now will really somehow define what will happen to us in the future. What we will do now and how we will take care of it will also really define what will happen in the future. It could either be a source of conflict or a catalyst for unity,” Sering explained.

Citing the climate change scenario of the Philippine Atmospheric Geophysical and Astronomical Services Administration (PAG-ASA), Sering said Mindanao and the entire country will experience reduction of rainfall around 2020.

Mindanao will experience a decrease in rainfall for at least six months from April to September “and when it rains, it will really, really pour so this is where we have to understand and determine how do we manage our waters.”

Sering also pointed to the need to have an economic model that is “unique to Mindanao.”

She took note of what Davao City Planning Officer Roberto Alabadao, representative of Davao City Mayor Sara Duterte, said on the challenge of balance, “that if you do environment — somehow that was the impression that I got — it’s like anti-development. And maybe we should look at this economic model because we have to have an economic model that’s unique to Mindanao. We now need to review this brown economy. We now need to look at this green economy because we now need to understand if the current economic model is still fit.”

The United Nations Environment Programme (UNEP) defines green economy as “a system of economic activities related to the production, distribution and consumption of goods and services that result in improved human wellbeing over the long term, while not exposing future generations to significant environmental risks and ecological scarcities.”
Jose Ma. Lorenzo Tan, executive director of the World Wildlife Fund, also mentioned mining and agriculture in his presentation. He stressed the need to think about Mindanao’s priorities, given that government and the business sector have zeroed in on mining as an opportunity.

“To a great extent, the key environmental decision that Mindanao has to make today, revolves around the perceived potential of this non-renewable resource and the impacts of mining on the island’s dependence on natural resource, and its core business, i.e, agriculture.”

“Think about this carefully,” he said.

He ticked off statistics on Mindanao’s mineral wealth: an estimated 43% of the country’s chromite reserves, 56% of copper, 63% of nickel, 67% of bauxite and 75% of the country’s gold reserves.

Gold mining, Tan said, stands out as an activity of special concern as this mineral has “almost singlehandedly fueled the proliferation of less stringently regulated small scale and artisanal mining activity.”

But given that agriculture has its own set of requirements that remain unrealized, Tan said Mindanao has to decide “how best to sustain its core business and avoid a case of double jeopardy.”

“Unless it is the collective intention of Mindanao’s leaders to scale down agriculture as its primary economic driver, the difficult decisions on mining have to be made soon and cast in stone,” Tan said, adding that if the non-renewable wealth is withdrawn, “there must be some prior definition of how much of those earnings will constitute a net benefit to the people of Mindanao.”

In her opening remarks, Secretary Luwalhati Antonino, Mindanao Development Authority (MinDA) chair, narrated how Mindanao, the country’s food basket, “produces 40% of the total food requirements of the country” but with the pace of forest degradation, is at risk of not being able to feed its population of 22 million.

Tan noted Mindanao is consistently a net exporting economy with export earnings, mostly from agri-based products at USD2.19 billion in 2009, that it has improved its product mix over the years and from 1995 to 2007, 71% of its total agricultural exports have been enhanced by added value.

This underscores that Mindanao’s competitiveness is “firmly anchored on the sustained viability of ecosystem services,” he said.

But Tan asked, “how much of this has returned to accelerate the internal velocity of money within Mindanao?”

Tan also aired a concern that needs to be addressed: that while wealth is being created in Mindanao and Mindanao has been a net contributor of savings to the rest of the Philippine economy, Mindanao’s deposits to the banking system “far exceed loans granted for Mindanao projects.”

“This indicates that the banking system effectively withdraws wealth out of the island’s economy. Rather than serving to boost its own ‘natural balance sheet,’ the ‘net income’ of Mindanao is being utilized elsewhere,” he said.

Sering said Mindanao continues to lag behind despite that fact it has the biggest contribution to the national economy.

The two-day Summit, whose theme is “Building Constituency, Managing River Basins, Achieving Green Economy,” is part of the Mindanao Nurturing Our Waters (MindaNOW) program of MinDA that is aimed at “creating champions, building constituency and adapting change in responding to the challenge of ensuring food on the table without compromising the carrying capacity of the environment by caring for our waters.”
The Summit is also timed for the June 5 celebration of World Environment Day. This year’s theme is “Green Economy: Does it include you?” (Carolyn O. Arguillas/MindaNews)