Tebtebba Foundation position on National Minerals Policy
Published by MAC on 2003-02-15
In the Philippines at present there is a strong push by the government to bring in another new framework for mining: a national minerals policy. This is promoted by the mining industry to give higher priority to mining and (inter alia) to increase the nubmer of areas designated as mineral lands where mining has a special priority regime of rights.
The following position paper on the issue was produced by the Tebtebba Foundation in February 2003.
Comments and Recommendations on the National Minerals Policy Framework
Submitted by Tebtebba Foundation
CAR Regional Consultation
February 8, 2003
DENR-CAR Multipurpose Center
Baguio City
Thank you for inviting Tebtebba Foundation to this regional consultation on the National Minerals Policy (NMP) Framework. As an invited stakeholder to this exercise, we are officially submitting herewith our official comments and recommendations.
A. Comments
1. It is our position that the National Mineral Policy Framework should be held in abeyance as it is an adjunct to the Philippine Mining Act of 1995 (RA 7942) and its Implementing Rules and Regulations (IRR).
It has always been our stand that RA 7942 and its IRR in its present form are flawed both in substance and in practice. Our opposition is based on the following grounds:
a. The law is based on an economic framework of export-import dependence, a policy that has been proven to be the main factor in driving the country's economy to bankruptcy.
b. The law has opened our mineral wealth to full exploitation by foreign investors, thus surrendering our national patrimony and sovereignty to corporate entities which have the control of capital and technical know-how.
c. The law is not based on Philippine realities: we are an archipelago with fragile ecosystems and the areas where minerals are located are inhabited by indigenous peoples.
d. The law was promulgated, not on the basis of supporting the development of our economy by strengthening our agriculture and undertaking industrialization, but rather on the basis of attracting foreign investment.
Offering our mineral resources for full exploitation by foreign companies is not the best way to attract investors. An effective way is to get rid of corruption; the Philippines currently ranks 11th out of 102 countries for corruption. Another way is for the government to have the political will to collect taxes from big corporations and the elite in order to have the necessary budget to fund various development projects. In doing so, investment confidence will be upgraded and investments will trickle in.
2. The present policies on mining are contrary to the present thrust of the Administration on micro-economics to push its economic program. While the Administration also calls for macro-economics, this is not enough reason to revive the mining industry through a National Minerals Policy Framework that is based on a flawed law.
3. We find many objectionable points in the National Mineral Policy Framework. The following are the major points enumerated under each of the Four Policy Thrusts of the NMP:
a. Protection and Rehabilitation of the Environment
a.1. We do not agree to giving self-regulation and non-regulatory approaches to the mining industry.
The Busang incident, the Enron experience etc. are still fresh incidents that give those involved in the extractive industry a very bad reputation. The Benguet Corporation and Marinduque cases have also given a black eye to the local mining industry.
What the mining industry is asking is that we give them our full trust in their mining operation. At a time when a strong feeling of distrust still exists between the community people on one hand and the mining industry and the MGB on the other, conditions do not warrant that the mining industry be given full trust by the people.
The self-regulation and non-regulatory approaches the mining industry seeks weaken the call of the current administration for a strong republic.
a.2. We do not endorse the use of Deep Sea Tailings Placement (DSTP) as an alternative way of tailings management. DSTP is another name for the Submarine Tailings Disposal System (STD), which has been banned by industrialized countries such as Canada. The usage of DSTP/STD will cause the further destruction of our ecosystems.
a.3. We do not agree to the use of the best available technology as a feature of Best Practice. As a matter of procedure, after thoroughly considering our geological landscape and fragile ecosystems, the mining industry should select the appropriate technology to be used in a specific setting. The best available technology is not the same as the appropriate technology suited for a specific condition.
As a feature of Best Practice, voluntary public reporting and disclosure should be replaced by mandatory public reporting and disclosure when requested.
a.4. In cases of unauthorized release of tailings into the environment, the penalty of P50 per ton is a slap on the affected community people. Revocation of mining licenses, compensation for damaged properties and rehabilitation of the land should be imposed in such cases.
Under this section, the NMP is silent on the issue of standards to be used. It is proposed that standards and parameters do not compromise the health of the people and the integrity of the environment.
b. Promotion of Social and Community Stability
b.1. The process of prior approval or indorsement of a mining project by any two (2) from among the Sangguniang Panlalawigan, Sangguniang Bayan and Sangguniang Barangay is divisive. This provides a loophole where the mining company can bypass a local government unit where the sentiment against the mining project is strong.
As a general principle in the democratic process, there should be a full consensus among the different levels of local government units after the community people have
been consulted and given their approval to a project.
b.2. The role as a mediator between the Indigenous Peoples/Indigenous Cultural Communities and the mining company is not an appropriate function for the local government. Local government units have the task to make their development plans and craft local legislation as they see fit to pursue these plans. If a local government unit sees that mining does not have a place in its economic planning, this should be respected.
b.3. Corporate Social Responsibility is best exemplified by the principle of transparency. As presently practiced, both mining companies and the MGB are not open to providing the information needed by the community people so they can be better guided in their decision making. Instead they want the community to accept what they say without verification from mining project documents, which in the first place are supposed to be public documents.
b.4. The SDMP that should be utilized towards the sustained improvement in the living standards of the host and neighboring communities is greatly reduced. Expenses by the company that are necessary for its operations, such as the establishment/construction and maintenance of infrastructure and conducting studies in the mining area, are deducted from this fund. These should not be taken from the SDMP so that there are sufficient funds to create alternative livelihoods after the area is mined out.
c. Preservation of Options for Future Generations
c.1. For the moment, gold should be struck out from the list for proritization in the extraction of minerals. There is a global campaign to produce less gold since there is already an oversupply of this metal. This arose from the fact that gold no longer has a role in the global monetary system and that central banks of numerous countries such as Britain, Switzerland, Australia etc. have slowly unloaded and sold their gold in the international market.
Let us preserve our gold for future useful use.
c.2. The government should be serious in the reuse and recycling of metals in order to lessen mining activity and lessen environmental degradation. The government should subsidize this effort.
c.3. The government should now conduct an investigation on the incidence of Acid Mine Drainage (AMD). AMD is prevalent when the mining method used is open pit mining and mining companies have not made the proper decommissioning. AMD contamination of the water table poses grave health risks and dangers to the community people.
d. Competitive and Prosperous Minerals Industry
The whole concept of a competitive mining industry is not the appropriate strategy in developing the country's economy. What the mining industry offers as a competitive minerals industry is limited to the extraction and the semi-processing of ores to supply the international market.
We can only be competitive if we first strengthen the country's economy by producing our own consumer goods, machineries etc. and strengthen our agriculture. This is where the role of the mining industry should be defined.
In the past, we produced gold and became one of the top ten producers. But this did not translate into our becoming an industrialized and prosperous country. The government should stop the policy of competing to supply the international market with semi-processed mining products. Instead, it should start the development of a full mature mining and minerals industry.
B. Our Recommendations
Learn from the past. Listen to the people who are adversely affected by mining operations; they are after all major stakeholders.
During the regional consultations on the Implementing Rules and Regulations of RA 7942, the mining industry pleaded that the law be given a chance. Almost eight years have passed, and the experience of community people, especially indigenous peoples, with the implementation of this law has been one of deceit, displacement and violation of their basic human rights. Evidences of these are the various testimonies indigenous peoples and people's organizations gave during the National Conference on Mining held on May 6-8, 2002 and the numerous human rights cases that have been submitted to the UN Special Rapporteur on Indigenous Peoples during his country visit on December 2-11, 2002.
Now is also the time for the people to be heard and given a chance by the government and the mining industry. The following recommendations are the result of unities reached by the people in various gatherings in the past years through conferences, peoples' summits as well as dialogues with the DENR/MGB.
1. Scrap the Philippine Mining Act of 1995 and its Implementing Rules and Regulations and all anti-people mining laws.
Effect a moratorium on the opening of new large mines and the expansion of existing ones until such time that a new mining law is legislated. A new mining law should be crafted within the framework of nationalist industrialization and supportive of advancing agriculture in order to contribute to food security, jobs and job security, and just wages.
The new mining law should also:
a. Uphold the social and economic, civil and political rights of all democratic sectors of Philippine society vis-à-vis the threat that mining poses to the exercise of these rights.
b. Recognize and respect the rights of indigenous peoples to their ancestral domain, to their ancestral lands, and to self-determination.
c. Uphold and recognize declarations by Local Government Units for a mining moratorium or mining-free zones in their towns/provinces.
d. Recognize the right of the people to veto a mining project.
e. Ban open pit mining, submarine mine waste disposal methods and other destructive mining technologies.
f. Ban mining where the ecosystem is fragile.
2. Cancel all Financial or Technical Assistance Agreements FTAAs), Mineral Production Sharing Agreements (MPSAs), Exploration Permits (EPs), and other instruments, licenses, or contracts issued to foreign mining companies and their domestic counterparts in large mining.
Declare a moratorium on the processing of large mining applications.
3. The historical baggage against mining companies could only be overcome if they establish confidence-building measures, such as:
a. Guarantee adequate separation pay and benefits for workers retrenched from mining operations that have been discontinued as a result of the cancellation of mining contracts.
b. Guarantee justice and indemnification for all victims of mining - including disabled workers; dispossessed peasants; displaced communities; persons who have suffered diseases caused by mining operations; and persons who have been harmed and have suffered death in their families from the violence that has surrounded mining projects.
c. Rehabilitate the land and other resources ravaged by mining operations, including mined-out areas. Mining companies should be responsible for this.
Rehabilitated land and other resources should be returned to the people in order that they can make use of these economically.
As a final point: yes, we are amenable in doing away with "the politics of blame and shame, of confrontation, and of zero tolerance". Yes, we should give way to a new era of relationship. But this should be within the framework of a new mining policy and a new mining law that respect basic human rights, strengthen our sovereignty over our own territories, and reaffirm our control over our own mineral resources.
Tebtebba Foundation
(Indigenous Peoples' International Centre for Policy Research and Education)
No. 1 Roman Ayson Rd., 2600, Baguio City, Philippines
Tel.No. 63 74 4447703 Tel/Fax No. 63 74 4439459
Website: www.tebtebba.org e-mail: tebtebba@skyinet.net
"NGO in Special Consultative Status with the Economic and Social Council of the UN"