Plea from PNG to Gathering of Mining Investors in SydneyPublished by MAC on 2004-12-03
The Battle is far from over
Network Statement from LRC-KSK
3rd December 2004
On 01 December 2004, we received the news that the Supreme Court, by a vote of 10 to 4 with one abstention, granted the Motions for Reconsideration filed by the government, Western Mining Corporation Philippines (WMCP), and Intervenor Chamber of Mines of the Philippines (CMP), in the case of La Bugal-Blaan Tribal Association, et al. versus Secretary Victor O. Ramos, et al. (G.R. No. 127882). In granting the Motions for Reconsideration, the Supreme Court reversed and set aside its decision made last 27 January 2004. It thus ruled that Republic Act No. 7942 or the Philippine Mining Act of 1995, its Implementing Rules and Regulations (IRR), and the WMCP Financial and Technical Assistance Agreement (FTAA) were constitutional after all.
The 246-page decision penned by Justice Artemio V. Panganiban, was concurred in by Chief Justice Hilario G. Davide Jr., Justices Reynato S. Puno, Leonardo A. Quisumbing, Angelina Sandoval-Gutierrez, Alicia Austria-Martinez, Renato C. Corona, and Dante O. Tinga, as well as by new Justices Minita Chico-Nazario and Cancio C. Garcia. Those who dissented were Justices Consuelo Ynares-Santiago, Antonio T. Carpio, Conchita Carpio-Morales, and Romeo J. Callejo. Justice Adolfo A. Azcuña did not take part because he was a former counsel of WMCP.
Last 27 January 2004, the Supreme Court, by a vote of 8 to 5 with one abstention, originally ruled that certain provisions of the Mining Law, its IRR, and the WMCP FTAA were all unconstitutional; thus, void and illegal. The previous decision was penned by Justice Conchita Carpio-Morales and was concurred in by Chief Justice Davide, Justices Puno, Quisumbing, Carpio, Corona, Callejo, and Tinga. Justices Panganiban and Jose C. Vitug (now retired) issued separate opinions that generally dissented with the majority. Justices Ynares-Santiago, Sandoval-Gutierrez, and Austria- Martinez joined Justice Panganiban in his separate opinion.
We have not yet received our official copy of the new decision, but it is not surprising to us. We are very much aware that larger interests are at play in this case- the way government harps about mining being the solution to our financial crisis; the way the mining industry and its allied interests bombard the media with its deceptions of economic growth and social responsibility; the way our public officials, both national and local, have been reduced to being mere mouthpieces of multinational mining interests.
It may look like we have lost but the fight is not yet over. We have not given up. We will never give up. We have considered this option long before and are now in the process of calibrating our response. We have a Plan B and we are doing it. We are obligated to engage. We are definitely filing a Motion for Reconsideration to this new decision, subject, of course, to the collective consent of the Petitioners we represent.
The case is not yet final. The new Supreme Court decision does not mean that the mining campaign is lost. This is merely a legal battle. Legal battles are engaged on legal grounds. The mining campaign is so much more than just the legal.
Freedoms are more meaningful when they are the result of collective struggle. Your help in this continuing crusade will be most welcome.
FROM THE WOMEN AND MEN OF LRC-KSK
Legal Rights and Natural Resources Center, Inc.
Kasama sa Kalikasan/ Friends of the Earth Philippines
No. 7 Marunong Street, Central East District
Diliman, Quezon City 1101
Telephone no. (02)928-1372
Fax no. (02)920-7172
The Supreme Court Reversal on La Bugal - A Bigger Storm Brewing Network
Statement from LRC-KSK
8th December 2004
Two storms came and wreaked havoc on the northern Philippine soil and seas. Along with these natural calamities came the penned decision that would create long lasting damages to our natural resources and drive communities deeper into poverty. The sellout of our country's resources is upheld by the highest court of the land by reversing its previous decision in late January.
On December 1, 2004, the Supreme Court reversed its decision in the La Bugal mining case, declaring that the Philippine Mining Act of 1995, its Implementing Rules and Regulations and the Financial and Technical Assistance Agreement (FTAA) entered into by the government and Western Mining Corporation as constitutional. The Court voted 10 to 4 with one abstention. The Justices who voted in favor of the reversal are Chief Justice Hilario Davide and Justices Reynato Puno, Leonardo Quisumbing, Angelina Sandoval-Gutierrez, Alicia Austria-Martinez, Renato Corona, Dante Tinga, Minita Chico-Nazario and Cancio-Garcia. The Justices who dissented are Ynares-Santiago, Carpio, Morales and Callejo. Azcuna abstained.
It may be recalled that in its January 27, 2004 decision, the Court ruled that some provisions of the Mining Law and the FTAA in question were invalid and unconstitutional. In a dramatic reversal, 5 Justices who voted in favor of declaring the Mining Act, its implementing rules and regulations and the FTAA of Western Mining Corporation as unconstitutional, now voted to uphold their legality.
The December 1 decision caused outrage from different communities, environmental groups, indigenous peoples. In Mindanao, many groups are condemning the decision saying that the Court has allowed "the rape of our land and our natural resources." They pointed out that large-scale mining operations strip large areas of vegetation, dislocate peoples, endanger the country's rich biodiversity and sources of potable water.
The government and the mining industry has not answered to the "minerals curse" argument wherein studies showed that countries relying on natural mineral exports are bottom dwellers in terms of economic growth. With 100% foreign ownership allowed and all the fiscal incentives bestowed on the foreign investor, the communities will not reap part of the speculated potential value of precious metal computed by the mining consultants and industry.
Lawyers from the petitioners said that, "We are not surprised by this decision. However, we are greatly saddened that the Court has ruled on but one aspect of the case, which is on the issue of constitutionality. What remains to be resolved are the questions on the economic, political and ecological issues. We are getting ready to ask for the Court's reconsideration on the said case.
Larger interests are at play- the way government harps about mining being the solution to our financial crisis; the way the mining industry and its allied interests bombard the media with its deceptions of economic growth and social responsibility; the way some of our public officials have been reduced to beingmere mouthpieces of transnational mining interests.
We are not giving up. The case is not yet final. The new Supreme Court decision does not mean that the mining campaign is lost. This is merely a legal battle. Legal battles are engaged on legal grounds. The mining campaign is so much more than just the legal. The battle against the unjust mining regime is not yet over. The struggle continues.
The Women and Men of LRC-KsK
Legal Rights and Natural Resources Center, Inc.
Kasama sa Kalikasan/ Friends of the Earth Philippines
No. 7 Marunong Street, Central East District
Diliman, Quezon City 1101
Telephone no. (02)928-1372
Fax no. (02)920-7172
Joint Statement on the SC Reversal on the Mining Act of 1995
Joint Press Statement
December 6, 2004
Justice cannot be served through deceptions. Even more is justice inconceivable when what is branded as an act of justice will bring about further injustices.
This clearly is what the Supreme Court has done when it shed its independent image and kowtowed to Malacanang and the mining local and transnational corporations or TNCs, in its recent most shameful decision.
We strongly condemn the Supreme Court's reversal of its ruling which declared as unconstitutional the provisions of the Philippine Mining Act of 1995 that allow 100% foreign-owned corporations to explore, develop, exploit and use the country's mineral resources.
Even as the country's highest court of justice now rules that the law, R.A. 7942, is constitutional, this does not make it just. Decades of foreign plunder of the country's resources have brought our country nowhere but massive displacement of communities and devastation of our environment.
"Justice for All . for the Present and the Future," declares the Supreme Court decision. Yet its message rings hollow. It is as hollow as the weak and deceptive logic that runs throughout the decision ofn this unfounded and unreal declaration.
No, the people, much less the entire Filipino nation, present and future will not benefit from the historical and present injustice foisted by the latest Supreme Court ruling. The ruling can never be for the "greater good of the greatest number," as the Supreme Court said.
For more verily, the stark truth remains: Philippine mining operates under the sponsorship of mining TNCs for and only for their interest of amassing profits. And opening the whole country for the complete and unhindered exploitation and greed of mining TNCs, fully foreign-owned corporations, can only bring about greater damnation for the greatest number of our people. Not to mention that the Supreme Court decision brashly sidesteps the issue of sovereignty which it ironically sought to uphold in its earlier decision.
History has already given us an overwhelming proof of how Philippine mining, as presently constituted, operates with impunity against our political and economic sovereignty, our environmental security, and even against the human rights of the greater and increasing number of our people, especially our national minorities.
We are witnesses to how the mining industry has never taken off (and never will), as it reduces our sovereignty into a sham. Philippine mining is stunted not by people's anti-mining protests, but because it has been confined as an extractive industry serving export-oriented designs of globalization oligarchs, namely the TNCs in the world economy.
Unless we have a government which can see our mineral potentials beyond the export revenues they can bring, see them for their real worth in developing and industrializing our nation, as government truly respects and honors the people's rights and cares for the environment, only then, can this prolonged and painful struggle rest.
We have seen graphically in Marinduque how an arrogant mining TNC in the name of Marcopper-Placer Dome has almost reduced half the island into a wasteland and yet Marinduque's people are still among the most poverty-stricken Filipinos who are slowly dying because of still-highly toxic poisons left behind by unregulated mining operations.
Mining TNCs also continue to displace thousands to tens and hundreds of thousands of indigenous and peasant settler populations in the hinterlands, with countless cases of human rights violations and militarization.
The Supreme Court, as well as the Arroyo administration, picked an inauspicious period to bring down a most condemnable decision on the eve of the International Human Rights Week. The Supreme Court decision may have given a freer rein to the administration's illusions of revitalizing a moribund industry, but it will also revitalize human rights violations against the entire Filipino nation and people. It can veritably be the single most glaring human rights violation committed by the Arroyo administration.
On Monday, at the start of the human rights week, we, along with more number of our people, troop to the Supreme Court in protest over its unjust decision. It shall be the start of more intensified protest actions against the Mining Act and the treasonous mining agenda of the Arroyo administration.
KALIKASAN-People's Network for the Environment (Kalikasan-PNE)
Promotion of Church People's Response (PCPR)
Center for Environmental Concerns-Philippines (CEC)
Kalipunan ng Katutubong Mamamayan ng Pilipinas (KAMP)
Save the Abra Movement (STARM)
Samahan ng Nagtataguyod ng Agham at Teknolohiya para sa Sambayanan (AGHAM)
Kilusang Mayo Uno (KMU)
Kilusang Magbubukid ng Pilipinas (KMP)
Promotion of Church People's Response (PCPR) Press Statement
December 2, 2004
Supreme Court Reversal on the Mining Act of 1995: Supreme Disaster for the Filipino People; Supreme Violation of Charter Provisions on National Patrimony and Sovereignty
Calling it a 'supreme disaster and betrayal against the Filipino people,' the Promotion of Church People's Response (PCPR) declared today that the recent decision of the Supreme Court in favor of foreign mining corporations
must be junked in order to avoid the deadly consequences of massive logging and mining operations such as the reported deaths of over 400 Filipinos in the massive flooding and landslides in the Quezon province.
"Giving fresh license for unhampered mining and logging operations of foreign corporations in the Philippines is tantamount to sacrificing even more lives when the impact of natural calamities could have been minimized through total ban on large-scale logging and mining firms. This decision of the high court is immoral as it legalizes the total sell-out of our natural resources to transnational (TNC) mining firms, the massive displacement of indigenous peoples from the mineral-rich ancestral lands, destruction of forests and pollution of water systems in the course of open pit mining operations," Rev. Fr. Allan Jose Arcebuche, OFM, PCPR National Chairperson stated.
On January 29, 1994, the Filipino people scored a victory for national patrimony and sovereignty when the Supreme Court ruled that the Philippine Mining Act of 1995 (Republic Act of 1995) is unconstitutional. "We are greatly dismayed and outraged over this reversal of the Supreme Court's earlier decision. In gross violation of constitutional provisions on the protection of Philippine patrimony and sovereignty, the votes of ten (10) Justices to allow 100% foreign ownership and control over the 'exploration, development, exploitation and use of the country's mineral resources' is obviously in tune with the Gloria Macapagal-Arroyo government's plan to attract more foreign investors in the mining industry as a so-called solution to the fiscal crisis," PCPR stated.
"Contrary to her declaration of crackdown against illegal loggers, no less than Pres. Arroyo is accountable for the continuous destruction of the environment, massive death, displacement and sufferings of the people that result from the government's mining liberalization and other pro-elite and pro-TNC policies," PCPR concluded.
PCPR will join the protest rally led by the KALIKASAN-People's Network for the Philippine Environment at the Supreme Court in P. Faura, Manila this morning.
Rev. Fr. Allan Jose Arcebuche, OFM
PCPR National Chairperson
High Court upholds mining law
Thursday, December 2, 2004
By Ma. Elisa P. Osorio, Reporter, Manila Times
Manila, Philippines - 'The Constitution should be read in broad life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interest...Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investment, as well as to secure for our people and our posterity the blessings of prosperity and peace.'
The Supreme Court yesterday, with a vote of 10 to 4 with one abstentation, effectively reversed itself as it declared the Philippine Mining Act as constitutional.
In a 246-page decision, the court en banc overturned its January decision that nullified the mining law (Republic Act 7942) as well as the Financial and Technical Assistance Agreement (FTAA) between the government and Western Mining Corporation Philippines, a wholly-owned subsidiary of Western Mining Corporation Holdings Limited of Australia.
Those who voted for the reversal of the January decision were Chief Justice Hilario G. Davide, Jr. as well as justices Artemio V. Panganiban, Reynato S. Puno, Leonardo A. Quisu mbing, Angelina Sandoval-Gutierrez, Alicia Austria Martinez, Renato C. Corona, Dante O. Tinga, Minita V. Chico-Nazario and Cancio C. Garcia.
Those who dissented were justices Consuelo Ynares-Santiago, Antonio T. Carpio, Conchita Carpio-Morales, and Romeo J. Callejo. Justice Adolfo A. Azcuna abstained because he was a former lawyer of one of the parties.
The decision, penned by Justice Panganiban, ruled that the 1995 FTAA did not contravene the 1987 Constitution because the charter expressly allowed service contracts in "large-scale exploration, development, and utilization of minerals, petroleum and mineral oils."
"The Constitution should be read in broad life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interest," the court said.
"Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable lee way to enable them to attract foreign investment, as well as to secure for our people and our posterity the blessings of prosperity and peace," it added.
The court also said the government may undertake mining activities through "agreements with foreign-owned corporations involving either technical or financial assistance."
The court also said there was nothing unconstitutional about the mining law's Implementing Rules and Regulations that were drafted by the Department of Environment and Natural Resources.
It noted that the State, through the President, still retained and exercised full control over mining operations despite FTAAs.
"The drafters [of the Constitution] in fact knew that the agreements with foreign corporations were going to entail not mere technical or financial assistance, but rather, foreign investment in and management of an enterprise for large-scale exploration, development, and utilization of minerals," the court decision read.
"Indeed, the Chief Executive is the official constitutionally mandated to enter into agreements with foreign owned corporations," it added.
The law also states that Congress may review the action of the President regarding "every contract entered into in accordance with this [constitutional] provision," the court said.
In reversing itself on earlier nullifying the mining law, the court also said "the judiciary should not inordinately interfere in the exercise of this presidential power of control over the EDU [exploration, development and utilization] of our natural resources."
The court also said its new decision would answer "the need to develop our stagnating mining industry and extract what NEDA [National Economic and Development Authority] Secretary Romulo Neri estimates is some $840 billion worth of mineral wealth lying hidden in the ground, in order to jump-start our floundering economy on the one hand, and on the other, the need to enhance our nationalistic aspirations, protect our indigenous communities, and prevent irreversible ecological damage."
"Verily, the mineral wealth and natural resources of this country are meant to benefit not merely a select group of people living in the areas locally affected by mining activities, but the entire Filipino nation," the court added.
The Supreme Court, last January 27 struck down as unconstitutional the provisions of the Philippine Mining Act of 1995 that allowed 100% foreign-owned firms to exploit the country's mineral resources.
In that 95-page ruling, the court en banc declared provisions of RA7942 void in so far as they pertained to the so-called FTAA.
That ruling likewise declared as void the FTAA between the government and Western Mining.
Reacting to the decision, the Chamber of Mines of th e Philippines said "the knowledge and wisdom of the court in this landmark case [was] expected to draw support from the entire business community, locally and internationally."
In a separate statement, American Chamber of Commerce of the Philippines Executive Director Robert Sears said the court decision would help the government "create jobs, increase revenues from exports, and bring in needed foreign direct investments."
Stock market analysts said the decision would also bode well for the local market and the economy.
In telephone interview, Astro del Castillo of First Grade Holdings, Inc. noted that mining, being an untapped sector for some time, had plenty of potential.
"This will open the floodgates [for developments] that will impact the country's fiscal problems," he said.
"They [foreign and local companies] will complement each other and enhance competition, which will result in more efficie nt operations for the sector," he added.
The mining and oil indices were up in yesterday's trading.
Jose Vistan, Jr. of AB Capital Securities, Inc. also welcomed the court ruling. "This is good news, which brings into the country not only potential capital but also technology. Mining companies short in capital can now tap the technology of those foreign companies and help the economy," he said.
He added the ruling was a "much-needed shot in the arm" for the economy to take off.
"Oil and copper prices are high. The Philippines is rich in these resources so the decision of the Supreme Court is good news for the economy, the stock market and the country as well. It is pro-business for a change," he added.
Meanwhile, Environment and Natural Resources Secretary Michael T. Defensor said, "We would now be assured of investments [in the mining sector], the economy would surely benefit from it. Any decision otherwise would have been disastrous for us."
"We see a potential $2 billion to $3 billion worth of investments during the first three years, and about $2 billion annually after that," he added.
Mr. Defensor also said, "There are about 30 potential investments with pending process of implementation because of the issue on mining. Now it is all systems go." -- with reports from Roulee Jane C. Calayag and Rommer M. Balab
Philippine Court Allows Foreign Control of Mines - Supreme Court Decision Opens Door to $5.8 Billion In Potential Investments
By James Hookway, Staff Reporter of the Wall Street Journal
December 2, 2004
MANILA, Philippines -- The Philippine Supreme Court decided to allow foreign control of mining projects, reversing an earlier ruling that unnerved investors and threatened to stall development of the Philippine mining industry.
In a decision announced yesterday, the court ruled that a mining act introduced in 1995 to spur foreign investment didn't break a constitutional provision limiting control of mining ventures to Filipinos.
The decision opens the way for potential investments in the industry that government officials have said could total $5.8 billion. At present, mining accounts for 1.5% of gross domestic product, while some officials believe it could be a key part of the Philippine economy.
Analysts had described the court case as a test of the Philippines' commitment to be open to foreign investment. The new decision "is what the mining industry has been waiting for," said Luz Lorenzo, an economist at ATR-Kim Eng Securities Inc. in Manila.
In January, the court embarrassed the Philippine government, which has been trying to woo foreign investors to pump money into the country's dwindling mining industry. The court initially ruled that the 1995 Mining Act violated the constitution, and declared that a mining contract between the government and Australian company WMC Resources Ltd. was illegal.
Under Philippine law, the government could appeal that decision, and it did. In the new ruling, the Supreme Court said "the constitution should be read in broad life-giving strokes." It added that the constitution should be interpreted to allow the government sufficient leeway "to attract foreign investment and expertise."
The Supreme Court Justices voted 10 to 4 to declare the 1995 Mining Act constitutional, with one abstention.
Enacted after the fall of former President Ferdinand Marcos in 1986, the Philippine Constitution was drafted to prevent the rise of future dictators. But the constitutional drafting committee also wrote in protectionist economic restrictions, including limiting foreign ownership of mining projects to a 40% equity share.
The 1995 Mining Act effectively provided a loophole under which foreign investors could get a greater role in the industry. Under the act, they were allowed to control as much as 100% of Philippine mining ventures.
But legal challenges to the act's constitutionality have stalled liberalization, and without access to foreign capital, many potential sites have remained untapped.
At present, the Philippines mines about $500 million worth of minerals a year, far less than in Indonesia, which produced $18 billion of minerals in 2002. Philippine Socioeconomic Planning Secretary Romulo Neri estimates there could be $840 billion worth of untapped mineral wealth in his country.
WMC Resources no longer has a Philippine investment. It sold its interest in the Tampakan gold and copper mine in the southern Philippines to Sagittarius Mining Inc., which is 40% owned by Indophil Resources NL of Australia.
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.
Letter to the Editor, Philippine Daily Inquirer
6th December 2004
The PDI headline dated December 5, 2004 heralded President Arroyo's suspension of all logging permits all over the country as a way to avert destructive flooding that in most recent case has claimed nearly thousand lives and inflicted damages amounting to billions of pesos!
The government's anti-logging stand appears to be a mere face-saving political gimmickry and not an honest-to-goodness drive to protect the fragile environment. Barely a week before the calamity, President Arroyo was lauding the reversal decision of the Supreme Court that virtually granted transnational mining companies legal mandate to engage in large-scale plunder of our mineral resources.
The government's logic asserting that mining brings development to the poor is belied by the experiences of many affected communities that can attest that mining spells further devastation, ecological degradation, displacement of the indigenous peoples, greater suffering and deprivation. Even the recently concluded Extractive Industry Review (EIR) commissioned by the World Bank confirmed that mining contributed to greater poverty rather than easing it!
Moreover, the argument invoking "sound mining practices" remains to be a propaganda tactic in the light of continuing destruction that mining industry is inflicting to communities all over the world. The most recent reported damage is the poisoning of Buyat Bay in Indonesia, the site of submarine tailing disposal of Newmont Minahasa Raya. And we must not forget the tragedy in Marinduque, a mining disaster where mine tailings continue to poison the people with toxic chemicals! If we dare to call the unconscionable loggers terrorists, what do we call transnational mining firm like Placerdome that wrecked havoc and threatened the very survival of the people in Marinduque?
The consistency of our national policies with regard to the protection of the environment has become all the more necessary in the light of the present calamities. The government's move of suspending commercial logging while at the same time, promoting large-scale mining is simply inconsistent and utterly ridiculous!
We in Oriental Mindoro have consistently expressed our irrevocable opposition to the mining operation in our watershed by Crew-Aglubang Mining Corporation. In our recent protest rally (PDI, December 1, 2004, "Mindoro Folk Protest Entry of Nickel Mine Firm"), we reiterated our undaunted stand against Mindoro Nickel Project, whose MPSA was reinstated by the Office of the President on March 10, 2004.
We call on the collective force of the Church and the civil society to join the struggle of our people against the far graver threat of mining disasters posed by the reversed Supreme Court decision and the Arroyo government's aggressive pro-mining policies. Indeed, "how many more need to suffer devastation before we come to our senses?"
FR. EDWIN A. GARIGUEZ
St. Augustine Seminary
SVD Road, Tagaytay City
Tel. No. 046-4131-308
Press Release DCMI's Response to the Supreme Court Ruling of December 1, 2004
December 13, 2004
The DIOPIM Committee on Mining Issues expresses its dismay and strong opposition to the Supreme Court rulings made on December 1, 2004. On this date the Court reversed the ruling that it made previously on January 29, 2004 regarding the 'unconstitutionality' of the Mining Act and the Financial and Technical Assistance Agreement (FTAA) provision which allows 100% foreign ownership of investment capital.
In making this decision, the Supreme Court has catered to the interests of the rich and powerful and while showing careless disregard for the collective future of the Philippine People. We are certain that this ruling was influenced by groups who are eager to exploit the rich natural resources of our country. Philippine mining history has shown us over and over again that multinational companies and unscrupulous government officials are not hesitant about abusing the justice system to serve their own ends.
The Supreme Court defended their decision by saying that greater foreign investment into the mining industry would stimulate local economic development and benefit the country as a whole. This rationale, however, is deeply flawed. We do not believe that economic development is the inevitable result of greater investment in the mining industry. We also do not believe that the Filipino people stand to benefit from this increased investment.
Many studies on the subject show that mining is a relatively negligible factor in economic growth.* In fact, research has shown that mineral dependent countries are more likely to fare poorly both socially and economically. In a study of 95 developing countries over 20 years, Harvard economists Sachs and Warner found that countries with higher rates of natural resource exports had slower rates of per capita growth.**
In the Philippines, mining has frequently failed at creating substantial employment. Currently only 1% of the total work force in the country are employed by mining companies. The mining industry has ceased to become a significant employer because of increasing mechanization. According to the International Labour Organization, one-third of all mine-workers in 25 major mineral-producing countries lost their jobs between 1995 and 2000.
The Philippine mining industry has also failed stimulate economic development in related sectors. The industry continues to import most of its capital equipment and inputs such as fuel, vehicles, drills, generators and explosives from overseas.***
DCMI is also opposed to the recent ruling because we do not believe that economic development is the sole process that can guarantee a strong and secure future for the people of the Philippines. On the contrary, we believe that economic development is useless if it is unsustainable. Furthermore, we assert that economic growth is destructive if it requires the devastation of the land, the pollution of the water, the displacement of families and communities, the suppression of human rights, and the impoverishment of the many for the benefit of the few.
We have recently witnessed the frightening aftermath of the Philippine logging industry. The tragic flooding and landslides were the visible and inevitable result of environmental destruction in a country of our climate and geography. The floods, however, are not the only legacy of the logging industry. Multinational corporations have been exporting our lumber for years while promising development for the local communities. These promises were repeatedly broken as companies pulled out of communities leaving nothing but ghost towns and environmental wastelands behind. In the end, the only people to benefit from this trade off were the logging companies and their Filipino counterparts.
We believe the mining industry is poised to follow the path of the logging industry. Increased mining will make our land and our people increasingly vulnerable to environmental hazards. More communities will suffer displacement and betrayal. We are astounded that the Supreme Court could even consider encouraging the further pillaging of our country at such a time.
For our rights, our future, and our environment, DCMI loudly calls for the scraping of the Republic Act 7942. DCMI asks the People of the Philippines and the International Community to oppose the large scale mining companies that seek to exploit our land. To this end, we are currently conducting an education, information and signature campaign about the mining act. If you wish to add your voice to the protest, please let us know.
Tito N. Fiel
Celes V. Tano
* See Thomas Michael Power, Digging to Development, Oxfam America, New
York, September 2002.
** See Jeffery D. Sachs and Andrew M. Warner, Natural Resource
Abundance and Economic Growth (Cambridge, MA: Harvard, November 1997),
*** See Antonio Tujan Jr. and Rosario Bella Guzman, Globalising
Philippine Mining, Ibon Books, Manila, 1998.