Post on 14-Apr-2018
transcript
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Bohol
Mateo
Natural Resources Law
GO3
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1987 Constitution
Republic Act 7942
Republic Act 7076
IPRA Law
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all lands of the public domain
water, minerals, coal, petroleum and other mineraloils
all forces of potential energy, fisheries, forests or
timber, wildlife, flora and other natural resources
owned by the state.
exploration, development and utilization of these
natural resources under the full control and supervision
of the state. States option-entering into co-production, joint
venture or production-sharing agreements with
Philippine citizens or Philippine corporations or
associations.
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At least 60% of the capital of acorporation or association-owned byPhilippine citizens to be considered as aPhilippine corporation or association.
Exception- President of the Philippinescan enter into agreements with foreign-owned corporations involving eitherfinancial or technical assistance, for thelarge-scale exploration, development andutilization of minerals, petroleum andother mineral oils.
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Regalian Doctrine-State owns all natural
resources.
Ownership of Private Lands-Only Filipinocitizens and corporations 60% Filipino owned
may acquire private lands.
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Philippine Mining Act of 1995
Effectivity- March 3, 1995
An Act Instituting a New System of Mineral
Resources Exploration, Development,
Utilization and Conservation
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Owned by the State
Exploration, development, utilization and
processing thereof shall be under States full
control and supervision. State may directly undertake activities or
enter mineral agreements with contractors
Rights indigenous people shall be recognized
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Can be allowed for scientific, cultural or
ecological value
President upon the Directorsrecommendation through the Secretary
Mining operations in existing mineral
reservations shall be undertaken by theDepartment or through a contractor- 25% of
such mineral reservation shall be subject to
valid exiting mining quarrying rights
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All submerged lands within the contiguous zoneand exclusive economic zone in RP are mineralreservations
10% share of all royalties and revenues to be
derived by the government from thedevelopment and utilization of the mineralresources within mineral reservations shallacrrue to Mines and Geosciences Bureau
Mining operations in reserved lands other thanmineral reservations may be undertaken by theDepartment or qualified person in accordancewith the rules and regulations promulgated bythe Secretary.
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right to develop and utilize minerals shall be
awarded to the President through
recommendation by the Director and
approval of the Secretary- party whoundertook exploration shall be given priority.
mineral land to be awarded shall be
automatically excluded-right of lessee of avalid mining contract shall not be prejudiced
or impaired
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Secretary shall periodically review
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Department shall be the primary government
agency responsible for the conservation,
management, development and proper use of
the States mineral resources
Bureau shall have direct charge in the
administration and disposition of mineral
lands and mineral resources and shallundertake geological, mining, metallurgical,
chemical and other researches as well as
geological and mineral exploration surveys
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No ancestral land shall be opened for mining
operations without prior consent of the
indigenous cultural community concerned
Royalty payments shall also be agreed upon
and shall for part of a trust fund for the
socioeconomic well-being of the indigenous
cultural community
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military and other government reservations,
except upon prior written clearance by the
government agency concerned
near or under public or private buildings,
cemeteries, archeological and historic sites,
bridges, highways, waterways, railroads,
reservoirs, dams or other infrastructure projects,
public or private works including plantations or
valuable crops, except upon written consent ofthe government agency or private entity
concerned
areas covered by valid and existing mining rights
areas expressedly prohibited by law
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In areas covered by small-scale miners as defined by lawunless with prior consent of the small-scale miners, in
which case a royalty payment upon the utilization of
minerals shall be agreed upon by the parties, said royalty
forming a trust fund for the socioeconomic development
of the community concerned
Old growth or virgin forests, proclaimed watershed forest
reserves, wilderness areas, mangrove forests, mossy
forests, national parks, provincial/municipal forests,
parks, greenbelts, game refuge and bird sanctuaries as
defined by law in areas expressly prohibited under the
National Integrated Protected areas System (NIPAS) under
Republic Act No. 7586, Department Administrative Order
No. 25, series of 1992 and other laws.
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Mining Geosciences Bureau (MGB) shall have the
authority
Maximum areas shall be:
Onshore, in any one province (1) For individuals, twenty (20) blocks; and
(2) For partnerships, corporations, cooperatives, or
associations, two hundred (200) blocks
Onshore, in the entire Philippines (1) For individuals, forty (40) blocks; and
(2) For partnerships, corporations, cooperatives, or
associations, four hundred (400) blocks.
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Onshore, beyond five hundred meters (500m)
from the mean low tide level
(1) For individuals, one hundred (100) blocks;
and
(2) For partnerships, corporations,
cooperatives, or associations, one thousand
(1,000) blocks.
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Mineral production sharing agreement - is an agreementwhere the Government grants to the contractor the
exclusive right to conduct mining operations within acontract area and shares in the gross output. The
contractor shall provide the financing, technology,
management and personnel necessary for the
implementation of this agreement. Co-production agreement - is an agreement between the
Government and the contractor wherein the Government
shall provide inputs to the mining operations other than the
mineral resource
Joint venture agreement - is an agreement where a joint-venture company is organized by the Government and the
contractor with both parties having equity shares. Aside
from earnings in equity, the Government shall be entitled
to a share in the gross output.
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Maximum Contract Area. The maximum
contract area that may be granted per
qualified person, subject to relinquishment
shall be:
(a) 1,000 meridional blocks onshore;
(b) 4,000 meridional blocks offshore; or
(c) Combinations of (a) and (b) provided that it
shall not exceed the maximum limits foronshore and offshore areas.
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Provincial governor shall grant permit
5 years-25 years
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Provincial Mining Regulatory Board shall
formulate own policies
Mining Rights: Timber and water rights;
subject to taxes excise taxes on mineralproducts
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Late or non-filing of requirements
Violation of terms and conditions of permits
or agreements
Non-payment of taxes and fees Suspension or cancellation of tax incentives
and credits
Falsehood or omission of facts in the
statement
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Violation Description Penalty
False Statements Presents any false application,
declaration or evidence to
Government
Not exceeding P10000 fine
Illegal Exploration Undertaking exploration work
without necessary permit
Fine of not exceeding P50000
Theft of Minerals Extracting minerals and
disposing the same without amining agreement, lease,
permit, license
Steals minerals or ores or the
products thereof from mines or
mills or processing plants
Imprisonment of 6 months to 6
six years or fine from P10000to P20000 or both
Pay damages and
compensation for the minerals
removed, extracted and
disposed of
Destruction of Mining
Structures
Willfully destroys or damages
structures in or on the mining
area or on the mill sites
Not to exceed 5 years
imprisonment
Pay compensation for damages
Mines Arson Willfully sets fire to any mineral
stockpile, mine or workings,
fittings or a mine
Convicted based on RPC and
pay compensation for the
damages caused thereby
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Violation Description Penalty
Willful Damage to a Mine Any person who willfully damages a
mine, unlawfully causes water to run
into a mine, or obstructs any shaft or
passage to a mine, or renders useless,
damages or destroys any machine,
appliance, apparatus; rope, chain,tackle, or any other things used in a
mine,
Not exceed 5 years imprisonment and
pay compensation for damages
caused thereby
Illegal Obstruction to Permittees or
Contractors
Any person who, without justifiable
cause, prevents or obstructs the
holder of any permit, agreement or
lease from undertaking his mining
operations shall be punished,
fine not exceeding Five thousand
pesos (P5,000.00) or imprisonment
not exceeding one (1) year, or both, at
the discretion of the court.
Violation of the Terms and Conditionsof the Environmental Compliance
Certificate
Any person who willfully violates orgrossly neglects to abide by the terms
and conditions of the environmental
compliance certificate issued to said
person and which causes
environmental damage through
pollution
Imprisonment of six (6) months to six(6) years or a fine of Fifty thousand
pesos (P50,000.00) to Two Hundered
Thousand Pesos (P200,000.00), or
both at the discretion of the court.
Illegal Obstruction to Government Officials Any person who illegally
prevents or obstructs the Secretary,
the Director or any of their
representatives in the performance of
their duties under the provisions of
this Act and of the regulations
promulgated hereunder
fine not exceeding Five thousand
pesos (P5,000.00) or by imprisonment
not exceeding one (1) year, or both, at
the discretion of the court.
Other Violations Any other violation of this Act and its
implementing rules and regulations
fine not exceeding five thousand
pesos (P5,000.00).
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Peoples Small Scale Mining of 1991
Effectivity- June 27, 1991
Subject: An Act Creating a Peoples Small-Scale Mining Program and For Other Purposes
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(a) The identification, segregation andreservation of certain mineral lands as people'ssmall-scale mining areas;
(b) The recognition of prior existing rights andproductivity
(c) The encouragement of the formation of
cooperatives;
(d) The extension of technical and financialassistance, and other social services;
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(e) The extension of assistance in processing andmarketing;
(f) The generation of ancillary livelihood
activities;
(g) The regulation of the small-scale miningindustry with the view to encourage growth and
productivity; and
(h) The efficient collection of governmentrevenue.
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Public lands not subject to any existing right;
Public lands covered by existing mining rights
which are not active mining areas; and
Private lands, subject to certain rights andconditions, except those with substantial
improvements or in bona fide and regular use as
a yard, stockyard, garden, plant nursery,
plantation, cemetery or burial site, or land
situated within one hundred meters (100 m.)from such cemetery or burial site, water
reservoir or a separate parcel of land with an
area of ten thousand square meters (10,000 sq.
m.) or less.
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No ancestral land may be declared as a people's
small-scale mining area without the prior
consent of the cultural communities concerned:
provided, that, if ancestral lands are declared as
people's small-scale mining areas, the membersof the cultural communities therein shall be
given priority in the awarding of small-scale
mining contracts.
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All persons undertaking small-scale mining
activities shall register as miners with the
Board and may organize themselves into
cooperatives in order to qualify for the
awarding of a people's small-scale mining
contract.
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The Board shall determine the reasonable size and shape
of the contract area following the meridional block systemestablished under Presidential Decree No. 463, as
amended, otherwise known as the Mineral Resources
Development Decree of 1974, but in no case shall the area
exceed twenty hectares (20 has.) per contractor and the
depth or length of the tunnel or adit not exceeding that
recommended by the director taking into account the
following circumstances:
(a) Size of membership and capitalization of the cooperative;
(b) Size of mineralized area;(c) Quantity of mineral deposits;
(d) Safety of miners;
(e) Environmental impact and other considerations; and
(f) Other related circumstances.
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A people's small-scale mining contract may be awarded
by the Board to small-scale miners who have voluntarily
organized and have duly registered with the appropriate
government agency as an individual miner or
cooperative; Provided, that only one (1) people's small-scale mining contract may be awarded at any one time
to a small-scale mining operations within one (1) year
from the date of award: provided, further, that priority
shall be given or city where the small-scale mining areais located.
Applications for a contract shall be subject to a
reasonable fee to be paid to the Department of
Environment and Natural Resources regional office
having jurisdiction over the area.
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A people's small-scale mining contract
entitles the small-scale mining contractor to
the right to mine, extract and dispose of
mineral ores for commercial purposes. In no
case shall a small-scale mining contract be
subcontracted, assigned or otherwise
transferred.
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A contract shall have a term of two (2) years, renewable
subject to verification by the Board for like periods as
long as the contractor complies with the provisions set
forth in this Act, and confers upon the contractor the
right to mine within the contract area: provided, that
the holder of a small-scale mining contract shall havethe following duties and obligations:
(a) Undertake mining activities only in accordance with a
mining plan duly approved by the Board;
(b) Abide by the Mines and Geosciences Bureau and thesmall-scale Mining Safety Rules and Regulations;
(c) Comply with his obligations to the holder of an
existing mining right;
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(d) Pay all taxes, royalties or governmentproduction share as are now or mayhereafter be provided by law;
(e) Comply with pertinent rules and regulations
on environmental protection andconservation, particularly those on tree-cutting mineral-processing and pollutioncontrol;
(f) File under oath at the end of each month a
detailed production and financial report tothe Board; and(g) Assume responsibility for the safety of
persons working in the mines.
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Exemption from the performance of annual work
obligations and payment of occupation fees, rental,and real property taxes;
Subject to the approval of the Board, free access to
the contract area to conduct metallurgical tests,explorations and other activities, provided such
activities do not unduly interfere with the
operations of the small-scale miners; and
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Royalty equivalent to one and one half percent
(1 1/2%) of the gross value of the metallic
mineral output or one percent (1%) of the gross
value of the nonmetallic mineral output to be
paid to the claim owner: provided, that suchrights and privileges shall be available only if he
is not delinquent and other performance of his
annual work obligations and other requirements
for the last two (2) years prior to the effectivityof this Act.
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The private landowner or lawful possessor shall be
notified of any plan or petition to declare his land asa people's small-scale mining area. Said landownermay oppose such plan or petition in an appropriateproceeding and hearing conducted before the Board.
If a private land is declared as a people's small-scalemining area, the owner and the small-scale miningcontractors are encouraged to enter into a voluntaryand acceptable contractual agreement for the small-scale utilization of the mineral values from the
private land: provided, that the owner shall in allcases be entitled to the payment of actual damageswhich he may suffer as a result of such declaration:provided, further, that royalties paid to the ownershall in no case exceed one percent (1%) of the gross
value of the minerals recovered as royalty.
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The small-scale mining contractor shall be
the owner of all milllings produced from the
contract area. He may sell thelings or have
them processed in any custom mill in the
area: provided, that, if the small-scale
mining contractor decide to sell its milllings,
the claimowner shall have a preemptive right
to purchase said milllings at the prevailing
market price.
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All gold produced by small-scale miners in
any mineral area shall be sold to the Central
Bank, or its duly authorized representatives,
which shall buy it at prices competitive with
those prevailing in the world market
regardless of volume or weight.
The Central Bank shall establish as many
buying stations in gold-rush areas to fullyservice the requirements of the small-scale
minerals thereat.
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The establishment and operation of safe and
efficient customs mills to process minerals or ore-bearing materials shall be limited to mineral
processing zones duly designated by the local
government unit concerned upon recommendation
of the Board. In mining areas where the private sector is unable
to establish custom mills, the Government shall
construct such custom mills upon the
recommendation of the Board based on the viability
of the project.
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The Board shall issue licenses for theoperation of custom mills and otherprocessing plants subject to pollution controland safety standards.
The Department shall establish assaylaboratories to cross-check the integrity ofcustom mills and to render metallurgical andlaboratory services to mines.
Custom mills shall be constituted aswithholding agents for the royalties,production share or other taxes due theGovernment.
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The revenue to be derived by the
Government from the operation of the
mining program herein established shall be
subject to the sharing provided in the Local
Government Code.
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The noncompliance with the terms and conditions of
the contract or violation of the rules and regulations
issued by the Secretary pursuant to this Act, as well as
the abandonment of the mining site by the contractor,
shall constitute a ground for the cancellation of thecontracts and the ejectment from the people's small-
scale mining area of the contractor. In addition, the
Secretary may impose fines against the violator in an
amount of not less than Twenty thousand pesos
(P20,000.00) and not more than One hundred thousandpesos (P100,000.00). Nonpayment of the fine imposed
shall render the small-scale mining contractor
ineligible for other small-scale mining contract
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Small-scale miners who have been in actual
operation of mineral lands on or before
August 1, 1987 as determined by the Board
shall not be dispossessed, ejected or
removed from said areas: provided, that they
comply with the provisions of this Act.
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The Board shall be composed of the Department of
Environment and Natural Resources representative as
Chairman; and the representative of the governor or city
mayor, as the representative of the governor or city
mayor, as the case may be, one (1) small scale miningrepresentative, one (1) big-scale mining representative,
and the representative from a nongovernment
organization who shall come from an environmental
group, as members. (a) Declare and segregate existing gold-rush areas for
small-scale mining;
(b) Reserve future gold and other mining areas for
small-scale mining;
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(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and
regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over
conflicting claims within a people's small-scale
mining area, an area that is declared a small-
mining; and
(f) Perform such other functions as may be
necessary to achieve the goals and objectivesof this Act.
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Violations of the provisions of this Act or of
the rules and regulations issued pursuant
hereto shall be penalized with imprisonment
of not less than six (6) months nor more than
six (6) years and shall include the
confiscation and seizure of equipment, tools
and instruments
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Approved on 29 October 1997.
Grants to indigenous cultural communities or
indigenous peoples (ICCs/IPs)- preferential
rights to their ancestral domains and all resources
found therein.
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generally belonging to ICCs/IPs
subject to property rights within ancestral domainsalready existing or vested upon the effectivity of
the IPRA
comprising lands, inland waters, coastal areas, and
natural resources held under a claim of ownership, occupied or
possessed by ICCs/IPs by
themselves or through their ancestors
communally or individually
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since time immemorial, continuously to the
present, except when interrupted by war,force
majeure or displacement by force, deceit,
stealth, or as a consequence ofgovernment
projects or any voluntary dealings entered intoby the government and private persons
which are necessary to ensure their economic,
social and cultural welfare.
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No mineral agreement shall be approved unlessthere is a prior certification from the NationalCommission on Indigenous Peoples (NCIP) thatthe area does not overlap any ancestral domainor that the prior free and informed written
consent as been obtained from the ICC/IPconcerned.
memorandum of agreement with the ICC/IPconcerned, through their Council of Elders.
memorandum of agreement will govern the
utilization, extraction and development ofnatural resources within their ancestral domain.
This agreement is subject to a limited term of 25years, renewable at the option of the ICC/IP foranother 25 years.
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ICCs/IPs have rights of ownership over lands,
waters, and natural resources and all
improvements made by them at any time
within the ancestral domains/lands.
right over the fruits, the right
to possess, the right to use, right to
consume, right to exclude and right torecover ownership, and the rights or
interests over land and natural resources.
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ICCs/IPs have the right to control, manage,
develop, protect, conserve, and sustainably use:
land, air, water and minerals;
plants, animals and other organisms;
collecting, fishing and hunting grounds;
sacred sites; and
other areas of economic, ceremonial and
aesthetic value in accordance with their
indigenous knowledge systems and practices
and customary laws and traditions, and duly
adopted Ancestral Domain Sustainable
Development and Protection Plan (ADSDPP)
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right to benefit from the utilization,
extraction, use and development of lands
and natural resources within their ancestral
lands/domains and to be compensated for
any social and/or environmental costs of
such activities.
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I. Human Rights The extractive industry worldwide has been
described as having an enormous and intrusivesocial and environmental footprint. The miningindustry has a deplorable record in relation to
human rights, resulting from militarization andcorruption, and leading to a broad array ofabuses up to and including complicity in crimesagainst humanity.
The extractive industry is utterly dominating in
terms of reported abuses, accounting for two-thirds of the total reported.
This trend is evident in the Philippines withabuses affecting local communities, especiallyindigenous people.
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a. Security Firms and Militarization
Following his country visit in 2003, the
Special Rapporteur on the Human Rights and
Fundamental Freedoms of Indigenous
Peoples, Professor Rodolfo Stavenhagen,
stated that the militarization of indigenous
areas is a grave human rights problem.
Members of the Subanon indigenous people
related that 169 armed security guards, hired by
the TVI mining company, 31 were manning
checkpoints and blocking access to their
ancestral domain.
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a(1). Extrajudicial Killings Between 2001-2006, it is claimed that at least 11
extrajudicial killings were related to protestsagainst mining.
There is a climate of fear developing amonglegitimate protesters against governmentpolicies and commercial projects and theapparent lack of effective protection of the rightto peaceful protest and opposition.
It is inadvisable to develop large-scale and
controversial mining projects in anenvironmentally and socially responsible way ifpeople feel threatened when they criticizegovernment and corporate practices.
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II. Corruption
A number of corruption activities is linked withmining at local government level.
The EITI is a multi-stakeholder initiative to
address corruption within the extractiveindustries. The EITI requires government,industry and civil society to work together topublish and verify company payments andgovernment revenues from mining.
The Government of the Philippines and thePhilippines Chamber of Mines have expressedinterest in this initiative but have not yet signedup to it. Its is currently a candidate for EITI.
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III. Pressure on the Judiciary
At the Philippine governments mining roadshow
in London in June 2005, the Speaker of the
House of Representatives, Jose De Venecia, told
international mining investors about his role inthe controversial reversal of a SC decision on the
constitutionality of the Mining Act in the La
Bugal-Blaan Tribal Assn v. Ramos case of 2004.
He announced that, together with the Chamberof Mines, he mounted a strong campaign to get
the Supreme Court to reverse itself.
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The statement appeared to indicate that the
Philippines judiciary may be vulnerable to
pressure from legislators.
In addition to that, while it is clear that laws
in the Philippines seem to provide a
framework for the protection of local rights,
it appears to be practically impossible for
local communities to obtain timely and
effective resolution of cases submitted at
municipal and regional trial courts.
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IV. Environmental Concerns The record of mining companies with regard to
environmental protection, disasters and post-mining clean-up in the Philippines is very poor.
The DENR has described the Philippines as thehottest of hotspots in the world in terms ofthreats to its mega diverse biodiversity. Ithighlighted the urgent need to properly managenatural resources and protect the environment.
The loss of forest has resulted in increased
flooding, devastating landslides, siltation andthe destruction of biodiversity areas. Large-scalemining has the potential to seriously exacerbatethis.
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Many mining applications in the Philippines arein water catchment areas very close to the sea,and pose a major threat to valuable marineenvironments.
The Philippines has very high geo-hazard risks.
Typhoons, earthquakes, volcanoes and landslidesare common. Alarmingly, over half of the activemining concessions and two-thirds of exploratoryconcessions are located in areas of high seismicrisk where earthquakes are considered likely.
The Marcopper disaster was blamed by PlacerDome, the company operating the mine, on aminor earthquake. The spill of tailings slurryaffected 20,000 people and resulted in the Boacriver being declared biologically dead.
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a. Food and Water Security Grave concerns about the potential impact on
the volume and quality of water have beenraised by communities downstream of existing
mines. International experience suggests that if pursued
on the scale currently proposed by the Philippinegovernment, mining could weaken the foodsecurity of affected communities and even of
the country as a whole. Local communities fear that pollution and
siltation of rivers may deplete water sources,reducing rice production and fisheries.
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In the Philippines, many mining and
exploration concessions overlap watershed
areas where demand for water exceeds the
available supply.
Mining in these areas would therefore be
likely to compete with the needs of other
users, including farmers and households, for
scarce water.
Many mining sites are located on mountains
that act as watersheds for numerous rivers,
potentially compounding the threat.
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b. Environmental Social Impact Assessments& Strategic Environmental Assessments
Hard-won provisions for public participationin Environmental Impact Assessments (EIAs)
are being eroded in the name ofstreamlining application processes.
Recent Administrative Orders have weakenedparticipation rights, including the right to
information, participation in decision makingand access to justice.
This undermines the protection afforded byEIAs in the Philippines.
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Locals and NGOs reported the difficultycommunities had in obtaining copies of EIAs, andof the lack of independent analysis orexplanation of their contents and implications.
Another area of concern is the seeming lack of
attention to the social and environmental impactof projects. This includes identification ofthreats to biodiversity and sustainabledevelopment and their potential accumulativeimpacts. To ensure protection of indigenouspeoples rights, all protected areas must beidentified as well.
Currently there seems to be no comprehensiveassessment of these important potentialimpacts.
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V. Indigenous People and Free, Prior, Informed,Consent
The Indigenous Peoples Rights Act (IPRA, 1997)and the Mining Code (Republic Act 7942, 1995)guarantee indigenous peoples the right to free,
prior, informed consent (FPIC) over decisionsaffecting them and developments on theirlands.
This right is being systematically denied to theindigenous peoples of the Philippines.
There is lack of independent informationregarding mining that is made available to IPs. Asa result they feel that they are not in a positionto make an informed choice.
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Another serious issue raised by theindigenous communities was what they
described as a type of foot in the door
policy being operated by mining companies.
Companies only provide IPs with details of
their initial planned operations and do not
give them information on the potential for
future expansion.
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Indigenous communities felt that miningcompanies lacked respect for theirtraditional cultures, viewing their right toFPIC as a technical obstacle to be overcome
as quickly as possible rather than a necessaryprotection of rights.
IPs also suffer from factionalism andmisrepresentation. In cases where theconsent of the indigenous people has notbeen forthcoming, non-representativeindigenous leaders have been created andrecognized by the NCIP and the miningcompanies.
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a. Lack of Independent Monitoring & ExpertiseProvision & the NCIP
The NCIP is the body mandated to protect andpromote the interest and well-being of the
ICCs/IPs. The perception among indigenous people, based
on their experience on the FPIC process to date,is that the NCIP is failing in its mandate and hasin many cases sided with mining companies.
Given this perception of the NCIPs bias againstindigenous peoples, there is a need to addressits lack of credibility and restore confidence inlegal processes.
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There is also a need to mandate anindependent body to provide scientific andlegal assistance to indigenous peoples duringthe FPIC process.
Such a body is essential to ensure thatindigenous people are in a position toconsider giving their informed consent.
There is a need to provide independent
assessments and explanations on the FPICprocess and it should be in a language andformat understandable to indigenouspeoples.
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b. Weaknesses in the Law
Two major problems in the current IPRA
legislation and its Implementing Rules and
Regulations (IRR), in relation to FPIC:
1. The short timeframe allotted for
consensus building in the Implementing Rules
and Regulations;
2. the current interpretation of Section56 of the IPRA which seeks to deny indigenous
peoples the right to FPIC for mining operations
that existed before the enactment of the IPRA.
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VI. The Philippines Local Government Code
The Local Government Code of 1991 requires
that local governments be consulted with
regard to development initiatives, including
mining operations, within their jurisdiction.
In practice it seems this requirement is
frequently over-ridden by national
government, or ignored, or renderedineffective by bribery.
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VII. Health Impacts
Mining can have serious health implications
for local communities.
In commercial mining, cyanide separation is used
to extract gold from ore. It is estimated that
one-millionth of a gram of cyanide per liter of
water can be fatal to fish. The mining process
can also lead to toxic metals being released from
the ore. If toxic metals, mercury or cyanide getinto the food chain they can seriously damage
health.
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VIII. Militarized Commerce The large economic rents generated by
extractive industries may help provoke orprolong civil conflict.
Indigenous peoples are particularlyvulnerable.
One of the core macro-governance criteriain relation to mining should be the absence
of conflict or ofa high risk of conflict andthat in no circumstance should the WorldBank support mining projects in areasinvolved in armed conflict.
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In the Philippines mining is currentlyproceeding in conflict zones.
There had been extensive human rights
violations by the army in northern Mindanao
in connection with economic development
projects including mining.
Both the Moro Islamic Liberation Front (MILF)
and Abu Sayyaf are reported to have beenactive in the Zamboanga provinces, where
TVI is operating.
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a. Peace Agreements
The peace negotiations between the government
and the MILF may enable mining on indigenous
peoples lands without their consent.
Failure to address the concerns of indigenouspeoples in the peace negotiations could lead to
instability and the denial of rights their rights.
United Indigenous Nations of Mindanao expressed
their opposition to the inclusion of theirancestral domains and ancestral lands in the
proposed coverage of the Bangsamoro homeland.
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IX. Economic Model
The government of the Philippines is
promoting mining as assisting in the
Governments program on poverty alleviation
and contributing to the general economic
well being of the nation.
However, evidence of mining benefiting the
local poor or the countrys economy as a
whole is quite scant.
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On the evidence available to it, the fact-finding team has strong grounds to believe
that:
Large-scale, technologically sophisticated mining
appears unlikely to lead to job creation. There isconsiderable basis for the fear that more
livelihoods will be destroyed (through damage to
agricultural land and fisheries, and displacement
of small-scale miners) than new jobs created. It seems clear that revenues to the state, once
incentives have been accounted for, will be
substantially less than expected.
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Based on all past experience, affected poor andindigenous communities on site and downstream
will be worse off. The fact-finding team was not
convinced that royalty payments would
adequately offset such impacts. They remainconcerned that the management of royalty
payments was lacking in transparency and
participation, and might become a source of
corruption and conflict.
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Responsible Mining is complying with thelaws that already take into account its
environmental, social, economic, cultural,
and other impacts.
However, this assumes that the existing
regulations are enough to safeguard the
health of the environment and human
communities, and that these come with
effective mechanisms of implementation.
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Responsible mining can also be measuredusing basic principles developed and adopted
by ethical mining companies worldwide.
The Philippine Chamber of Mines Compliance
and Beyond: A Guidebook on Corporate Social
Responsibility for the Philippine Mining
Industry
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The following principles are the bases for theGuidebook:
Protect the environment as a paramount
consideration in all stages of mining and conduct
activities in a manner that will contribute to thebroader goals of sustainable development.
Protect the rights of affected communities,
including the rights of indigenous cultural
communities. Engage in adequate and timelycommunication and consultation with them and
work for the improvement of the quality of their
lives during and even after the life of the mine.
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Safeguard the health and safety of mineworkers,local population, host and impact communities,
and address foreseeable health- and safety-
related impacts associated with mining over its
full life cycle. Maintain a competent workforce that is
committed to responsible mining and whose
welfare is advanced. Make sure that affected
communities benefit from mining through
employment, whenever possible.
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Respect, protect, and promote human rights ofthose affected by mining and promote human
rights-sensitive security arrangements.
Adopt responsible corporate governance and
management principles that nurture trust andpromote company integrity by developing
effective self-regulatory practices and
management systems and employing business
practices that are ethical, transparent and
accountable.
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In the Philippines, a special concern forresponsible mining is the identification ofno-go areas.
Despite provisions in the law that identify
areas closed to mining, field implementationhas been beset by conflicts.
In 2000, DENR issued Administrative OrderNo. 83 on Guidelines for the Management
And Development of Small Islands, IncludingIts Coastal Areas but this regulation has notstopped the exploitation of mineral resourcesin small islands and coastal areas.
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Responsible mining has to accurately assessand account for all relevant costs andbenefits: The appropriate valuation mechanisms should be
employed to ensure that the environmental andsocial responsibilities are accounted for, and thatthe negative impacts are mitigated and affectedcommunities compensated.
There must be a more comprehensive
articulation of risk assessment for disastermanagement, given that the Philippines is proneto geophysical disturbance and climate change-induced hazards.
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Regulations on environmental impact studiesshould be reviewed to account for the value ofbiodiversity and ethno-diversity significance.
Responsible mining has to respect no-go
areas: There must be respect for the NIPAS and SEP for
Palawan that declare areas closed to mining.
There must be respect for the right of localgovernments to close areas within their
territorial jurisdiction to mining operations as aprecautionary measure, in the absence ofcredible information on impacts and acceptablerisks.
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Small island ecosystems should be excluded from
mining. Agenda 21 of the United Nations
identifies small islands supporting small
communities as special cases for environment
and development, being ecologically fragile andvulnerable. The ocean and coastal environment
of small islands of strategic importance and
constitutes a valuable development resource.
Their small size, limited resources, geographic
dispersion and isolation from markets, placethem at a disadvantage economically and
prevent economies of scale.
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Responsible mining has to respect the
decision of local stakeholders, especially
indigenous peoples:
Inconsistencies in the implementation of FPIC
raise serious doubts as to the validity of
community consent and benefit-sharing
agreements.
The right of IPs and local communities to say
no should be respected and not taken as aprovisional decision subject to negotiation until
communities finally say yes.
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Small-scale mining should be held to the
same high standards:
Policies on small-scale mining should be revised
to account for the same impacts as large-scale
mining.
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Defining a policy to get the best deal forthe people - The country and localcommunities apparently get little in terms ofbenefits from mining, compared to the
returns that investors get. The PhilippineDevelopment Plan (PDP) noted that the fairshare of the government from mining has notbeen achieved due to the existing incentivemechanism. Comparative data ongovernment benefits from mining areconflicting; therefore the government mustmake further studies to firm up itsnegotiating position.
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Defining clear indicators for reforms Clearand measurable indicators are needed to
track compliance and progress in reforms
needed for responsible mining, including
inclusiveness of economic benefits, as well
as social, cultural, and environmental
safeguards. The government needs to design
and implement a systematic monitoring and
evaluation (M & E) process based on theseindicators.
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Continuous capacity building In order tosupport stable, rational decision-making, the
government must have the capacity to
implement:
Natural resources valuation; Options for benefit-sharing schemes at the national,
local, and community level;
Measuring local economic impact;
Measuring impact on community values and culture;
Establishing systematic monitoring and evaluation of
environmental, social, and economic impacts at all
levels (project, local, and national); and
A genuine and inclusive process of obtaining free and
prior informed consent.
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Setting a clear action plan with areasonable timetable and sufficient budgetand personnel supportThe actions neededmust be set in a clear, doable, time-bound,
and adequately funded action plan, so that
all stakeholders can reasonably expect
accomplishment of the reform goals. The
reforms are only as good as their
implementation. Government has to providethe manpower needed to implement the
reforms both at national and local