Advocate’s Overview: A law affecting indigenous peoples, Mining Act of 1995

By ARTHUR L. ALLAD-IW
www.nordis.net

After the Bakun people collectively stopped the planned large scale mining in their ancestral domain, the people of Madaymen, Mankayan are in the height of their opposition to large scale mining, and the transformation of the proponents of the mining permit of Lepanto into a financial and technical assistance agreement (FTAA). Where if approved the world’s top gold producer Gold Fields will mine the areas earlier applied for by Lepanto.

As the mining is done under the context of the state’s mining policy, I am re-printing a column of mine I wrote last year, hoping that this would help readers substantially understand the mining issue and why indigenous people consider it as a continuing perpetuation of the historical injustice introduced by past colonizers.

Another law that implements the Regalian Doctrine – that mineral lands are owned by the state – is Republic Act 7941 otherwise known as the Mining Act of 1995. Approved on March 3, 1995, it was passed during the time that the globalization policy was adopted by the administration of then President Fidel V. Ramos. It was also during that period that the General Agreement on Tariff and Trade (GATT) was ratified by the Philippine Senate.

GATT removes the barrier for the national protection of the Philippine economy and opened the economy to foreign investments, including mining.

RA 7942 provides for the areas open to mining exploration which are “all mineral resources in public or private lands, including timber or forest lands as defined by existing laws.” The area covered is very broad. It is not only confined to those classified as mineral lands in the public domain but also include privately owned lands.

For indigenous peoples who are not used to titling their lands and have no paper title to show as proof of ownership, their lands can easily be part of a mineral claim. Or even assuming they had titled their properties, the title grants them rights limited to the surface and such rights do not extend to the mineral resources located within or underground their titled lands.

In case of conflict as to surface and sub-surface rights, the Supreme Court in the case of Atok Big Wedge Mining vs. CA (160 SCRA 228, 1988) ruled that the issue is resolved as to the classification of the area subject to the dispute. If it is a dominant mining area, then the rights should be ruled in favor of the mining claim of the corporation. This is a concrete case; a title does not secure IPs and their lands.

Another critique on this provision is its inclusion of the forestlands or national parks and reservations for mining. The Forestry Code (PD 705) prohibits any individual, whether IPs or not, from gathering any forest products or similar activities therein. Among the state’s purposes in passing PD 705 is forest protection from any activity. But I wonder why the state legally opened the forest and reservation areas for mining, knowing well that mining activities cause more destruction to the environment compared to any other forest activity. The effect of mining to the environment is extractive, hard, if not impossible, to rehabilitate.

Even the Mines and Geosciences Bureau (MGB) said that a patentable mining claim essentially turns an area into “mineral land.” Then MGBs Mining Tenement Management Division Chief, now MGB national director, Leo Jasareno said that the Supreme Court had once proclaimed that “once a mineral land, always a mineral land.” “Any subsequent proclamation,” said Jasareno, “will not alter the character of that mineral land.” These include laws and proclamations declaring areas as protected sites and which all contain the clause “subject to prior rights.”

Under the Mining Act, there are different modes of mineral agreements: mineral production sharing agreement, co-production agreement, or joint venture. Another mode provided under this law is the financial or technical assistance agreement. The first three modes provide for a maximum area for mineral agreement covering 16,000 hectares. The financial or technical assistance agreement, on the other hand, provides for a maximum area of 81,000 hectares per applicant. Interestingly in the Cordillera, nearly 70 percent of the region’s 1.8 million hectares land area has been applied for the various modes.

The life terms for all the above mineral agrements, including FTAA, is 25 years but renewable to another 25 years. The mineral scope is very broad. The life term of each application is also very long. With the present mechanization of mining extraction, such as bulk mining and open pit mining, the indigenous peoples are not only threatened with disenfranchisement from their ancestral lands and domain but this will also cause the fast depletion of mineral reserves and the destruction of the environment. This will lead to a worsened climate change.

The mining contractors are also granted rights and privileges. The auxiliary rights granted to contractors are not only confined to the mineral application on the sub-surface. It includes the rights to the surface of the applied area, such as timber rights, water rights, easement rights and entry into private and concession areas. These provision of RA 7942 broadened the mining rights provided and outlined in the case of Itogon Suyoc Mines vs. CA. It must be noted that any mine contractor is legally given the blessing to enter private areas.

While mining can be a source of revenue due to the taxes that the mining corporations pay, the law provides for investment guarantees such as repatriation of foreign investments and remittances of its earnings. These guarantees benefit foreign corporations but never will it serve for the stabilization of the country’s mining industry. Another guarantee for these investors is the freedom from expropriation by the government of the property represented by investments or loan. Other rights provided for by this law to mining investors include income tax holidays and fiscal and non-fiscal incentives provided by the Omnibus Investments Code of 1987.

At present, the Chamber of Mines of the Philippines’ Pres. Benjamin Philip Romuladez pushed that investment incentives are still necessary for the local mining sector to flourish. He pointed out that the mining sector still needs project perks despite their broad benefit provided by the Ming Act.

And the PNoy administration has not adopted a mining policy which would be different from his predecessor . Even his new mining policy reiterates the Regalian Doctrine. Hence our mineral resources are open for rape by the mining investors which I saw would fuel the opposition by the people – against the extractive resource exploitation. Until and unless the historical injustice perpetrated against indigenous people will be rectified, these people are threatened with displacement from their ancestral homeland. And they will die defending their homeland. # nordis.net

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