Analayis - High Court Is Courting DisasterPublished by MAC on 2004-12-04
Source: Bulatlat, Vol. IV, No. 43 ()
Analayis - High Court Is Courting Disaster
By Bobby Tuazon, Bulatlat, Vol. IV, No. 43
November 28 - December 4, 2004
The country's indigenous peoples and upland farmers are being asked by the Supreme Court to forget their ancestral land claims by allowing mining corporations to exploit mineral wealth. One environmentalist group says the people will not allow this thing sitting down.
Once again, the Supreme Court (SC) showed itself as the court of corporate power and an institution subsidiary to the President when - in just 11 months - it reversed its original decision declaring the 1995 Mining Act as unconstitutional.
While the high court's January 2004 was on appeal, a strong lobby was mounted by the Chamber of Mines of the Philippines, the European and American Chambers of Commerce, the governments of Canada, Australia and the United States as well as moderate labor unions to overturn the high court decision. It was a big boost too that Environment Secretary Mike Defensor came to the succor of the powerful lobby groups in line with President Gloria Macapagal-Arroyo's policy to revitalize the mining industry.
Presidential pressure bore upon the high court when Macapagal-Arroyo warned late September that opening the country to foreign mining investment would solve the country's fiscal problems, hinting that the SC can be held to account if it did not untie the mining act from judicial constraints. Nobody in the "cold and neutral" chambers of the high tribunal apparently bothered to ask who, in the first place, caused the "fiscal crisis."
The SC - the same judicial institution that upheld martial law and its repressive PDs, affirmed the onerous Visiting Forces Agreement and other questionable treaties, and encouraged the criminalization of political offenses - should now be put on record as beating yet another nail on the burdens already borne by the people. It has put legitimacy to a mining act seen by many Filipinos and groups as an instrument that would not only parcel out the country's sovereignty and territory to TNC aggression but also lead to a potential genocide - depriving upland communities of their ancestral land, livelihood and culture.
The Mining Act of 1995 (RA 7942) was signed into law by President Fidel V. Ramos as part of the Structural Adjustment Program (SAP) prescribed by the IMF-World Bank as a precondition for the granting of loans. It was one of Ramos's centerpiece programs under his Medium-Term Philippine Development Plan (MTPDP) that called for embracing trade liberalization, industry deregulation and privatization. These are the same policies that were backed by then Sen. Gloria Macapagal-Arroyo when she sponsored the Senate bill calling for the ratification of the General Agreement on Tariffs and Trade (GATT).
The act declared state ownership of the country's mineral assets and allows these to be expropriated and handed over to 100 percent foreign ownership. It offers foreign interest exploration permits and mineral agreements granting 25-year operating rights and financial and technical agreements. Investors are given a 10-year tax holiday, capital tax exemptions, 100 percent repatriation of profits and capital and other incentives. TNCs could acquire multiple operations in partnership with local mining firms. Not since the Marcos dictatorship was this attractive investment incentives package been offered by an administration.
Thus the act was hailed by TNC mining corporations as the "most foreign-friendly" mining policy in the world. They had a reason for being jubilant: They - particularly Canadian, Australian, American and European companies who had lobbied hard for the act's legislation here - were unwanted in their own home grounds and in other countries because of their destructive operations, among other reasons. Tougher labor and environmental laws in their own countries forced them to set their eyes on developing countries like the Philippines and Indonesia where these are either non-existent or too liberal. Reports said these companies took part in drafting the Mining Act of 1995.
From the very start, the act was opposed by cause-oriented groups, indigenous and farmers groups, environmentalists, church and human rights organizations and various mining watch groups based abroad. Their claim that, among others, RA 7942 would only wreak more havoc to the country's fragile ecology and hence displace the people's land and livelihood was vindicated when one major mining disaster after another took place.
Now the Dec. 1 SC decision on the mining act will allow Defensor's Department of Environment and Natural Resources (DENR) to act favorably on 23 pending applications for mineral exploration and exploitation all over the country. The applications, filed mainly by Canadian, Australian, U.S. and European companies, cover 13 million hectares or 45 percent of the Philippines' total land area. The vast swaths of landmass covered by the applications are inhabited by upland farmers and most especially by indigenous peoples who comprise 16 percent or 13 million of the country's current population. It is also here where the country's remaining watersheds and forest reserves - protected, incidentally, by the same Constitution that the SC cites - are found.
Most mining applications are in the northern Philippines' Cordillera region which has been exploited by corporate mining for a century. Newmont Mining Company's applications alone total 14 with one million hectares covering all the mountain region's provinces.
The high court echoed hook, line and sinker government lawyers' claim that reversing its decision is best for the national interest and that the judiciary should not interfere in the president's prerogative to decide on what is best for the country. "The Constitution," the justices ruled, "should be read in broad life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests."
They went further: "Verily, the mineral wealth and natural resources of this country are meant to benefit not merely a select group of people living in areas locally affected by mining activities, but the entire Filipino nation." How the poor people living in remote upland areas have benefited from the mineral wealth and natural resources the SC did not bother to explain, however.
On this aspect, the justices - those who voted to reverse the decision - in effect opine that the democratic rights of upland farmers and indigenous communities are "parochial" and they should be forfeited for the good of the whole. It would not be difficult to accept this fallacy if indeed the use of the country's mineral resources has redound to the people's benefit. The truth of course is that upland farming and indigenous populations have been the historical victims of land deprivation, development aggression and militarization. They have become "squatters in their own land." The wealth looted from the exploitation of mineral wealth - and, for that matter, other natural resources - has gone to the investors, raw material exporters as well as to bureaucrats and generals, the landlords in Congress and the rogues in robes.
Since when has defending the ancestral domain of upland populations become "parochial" and "narrow"? The historical defense of ancestral land against mining, large-scale logging and development aggression is not only intended to protect the local communities' communal land, sacred grounds, culture and other resources but also to preserve these from unwarranted destruction and plunder by narrow, enterpreneurial interests. The whole nation benefits.
It is when these lands were opened up for corporate plunder particularly through legal chicanery and the use of force that devastation to not only humans but also to the land and environment takes place. Under the Mining Act, the right of expropriation includes the right to desecrate mountains, denude forests, use or divert water and, worst of all, the right to evict native settlers. The social and economic costs of mining are not only immediate - they are far-reaching affecting not only lowland farms and fishing grounds but also other areas and the national economy. The fact that the Philippines remains poor and is considered as one of the world's top disaster-prone countries attest to the human, economic and ecological destruction that the government-backed corporate plunder has caused.
The SC also concurred on government's claim that foreign mining investment could bring in $800 billion in revenues, open thousands of jobs and boost the country's overall economic growth.
This line of thinking of course raises questions and tosses the possibility that on the contrary, it is the SC and the President, the DENR and mining TNCs that are expected to benefit from the court ruling who actually represent the "narrow and parochial interests" in this issue. Those who oppose the mining act have argued that the Philippines has been mined of its gold, copper and other mineral wealth for a century now and yet the economy has remained stagnant and without any basic industries to speak of. Mining and adjacent areas are where one finds some of the most neglected and depressed communities in the country. In many mining projects, workers have gone on strike because of low wages, job hazards and union harassment.
Mining in the Philippines is an extractive and for-export-only industry that brings profit to the mining producers without promoting the country's own industrialization at all. True, as Macapagal-Arroyo says, the country used to be among the world's top gold and copper producers. But did mineral production remove the country from being in the lowest rung of developing countries?
Aside from this, the human and environmental costs far outweigh whatever revenues that the government claims would bring to the country. In environmental impact alone - and, unlike in the oil and gas industry where 95 percent of the extracted resource is used - only less than 10 percent is used in the mineral industry. As a result, according to the World Resources Institute, large quantities of waste rock, low-grade ores, tailings and slag must be disposed of causing devastation to the environment.
With the SC taking the side of government, corporate power and foreign capital, the people have nothing else to do but to gear for a renewed struggle in defense of their land, resources and environment. As an environmentalist group says, the people particularly the IPs and upland farmers will not let this one legal disaster sitting down.