THE MINERAL ACTION PLAN: Sacrificing environmental regulations and social acceptability provisions for the unhampered entry of foreign mining companies

Background and Context:

The Mineral Action Plan (MAP) is the detailed implementation plan of EO 270 and 270-A known as the National Minerals Policy (NMP), which was approved in January 2004 and amended in April 2004. The MAP is the national policy agenda for the revitalization of the Philippine mining industry. It sets the framework and principles by which the Philippine mining industry aims to achieve what it refers to as “sustainable and responsible mining”.

The National Mineral Policy

The Mineral Action Plan (MAP):

The MAP, as the concrete and detailed action plan of the NMP, sets concrete strategies with clear targets and specific activities to address various issues and concerns in revitalizing the Philippine mining industry. This policy agenda covers facilitation of investments; optimizing benefits from minerals; promotion of small scale mining; use of efficient technology, protection of the environment; multiple land use and sustainable utilization of mineralized areas; remediation or rehabilitation of abandoned mine-sites; economic and social benefits, education and information drives; and consultation process on resource management, policy and planning.

The MAP aims to bring about the integration and cohesion of different government agencies by resolving the issues that are seen as constraints or problem areas to greater foreign investments in the mining industry. These constraints are mainly on environmental regulations, social acceptability and various regulations of the concerned government agencies. Obviously, the MAP is intended to provide for the unhampered entry and operation of foreign mining companies which the government considers as the most decisive and key element in revitalizing the Philippine mining industry. The expected massive foreign investment to the mining industry is considered by the government as one of the key solutions to the worsening financial crisis. Based on the MAP, the government is even willing to bend its own rules, regulations and laws on the protection of the environment, the recognition of the rights of affected communities and the autonomy of local government units just to be able to satisfy the demands of foreign mining companies and ensure their profitability. On the other hand, the serious environmental and social cost and consequences of large scale mining are merely treated with more rhetoric rather than decisive actions. National patrimony, ecological protection and social concerns are clearly sacrificed in the drive to revitalize the mining industry, with all incentives given to foreign investors under the NMP and MAP.

Addressing the legal constraints:

Time and again, the mining industry has been very vocal in their disappointment over the tedious and long process of acquiring exploration and related permits and agreements, which are requirements for mining exploration and eventual operation. These legal requirements are on environmental protection, social acceptability, protection of biodiversity, and the regulation on foreign investment. However, instead of strengthening these positive provisions of the law to protect the public interest and welfare, the solution provided by MAP is to simplify the procedures and harmonize provisions of laws affecting mining, in order to facilitate greater investment in the mining industry by local and foreign companies. In particular, the Department of Justice will be asked to intervene in favor of the mining industry over the conflicting provisions of the Mining Act, the Local Government Code, IPRA, NIPAS, Omnibus Investment Code, among others.

In addition, the MAP provides for shortcuts to legal protective measures in order to satisfy the demands and interest of the mining industry. In particular, 15 regional one stop-shops for processing of mining applications have already been set up, instead of the regular procedure whereby the various government agencies have to do careful studies of each mining application. This short cut process becomes a mechanical procedure, vulnerable to a lot of oversight on various regulations, potential violations of certain laws and guidelines, as well as potential adverse impacts of the mining operation.

In particular, one shortcut process is the reduction of the period allowed for the processing of the requirement for the Free Prior and Informed Consent (FPIC) of affected indigenous communities. As per agreement made between the National Commission of Indigenous Peoples (NCIP) and the Department of Environment and Natural Resources (DENR), the 185 days required for the FPIC process has been reduced to 107 days or by 43%. This legal provision under the Indigenous Peoples Rights Act (IPRA) is a mechanism to ensure that indigenous peoples rights are not violated, especially on their control, management and utilization of their resources as part of their inherent and collective rights. But under the MAP, this is now being reduced to a mere technical and procedural requirement, making a mockery of the very principle of the right to self- determination of indigenous peoples. In order to uphold the very principles of FPIC, there should be clearer guidelines to ensure that adequate information is provided, including terms of contract and agreements, potential adverse impacts, independent environmental and social studies, and access to related information. Sufficient time should also be allowed for information dissemination, transparent consultations, independent collective discussions and independent decision making , meaning there should be no manipulation, coercion, bribery and similar cases just to obtain a favorable endorsement for the mining projects. The FPIC mechanism is a matter of social justice for indigenous peoples who have often been made sacrificial lambs in the name of development. The provision for FPIC, however, is seen by mining companies as an obstacle to their interest in exploiting the people’s resources for profit. Through the MAP, the government is simply following the dictates of mining companies by further watering down the already problematic NCIP guidelines for the implementation of the FPIC.

Another appalling legal shortcut is on the requirement for positive endorsement by affected local government units as required under the Local Government Code for any project affecting their constituents. Instead of requiring official resolutions of the local legislative units such as the Sanggunian Bayan and Provincial Board, the MAP states that a certification of consultation with a designated local government official will suffice as a requirement for the issuance of exploration permits. This is again another affront to the exercise of local autonomy by local government units, and a usurpation of the responsibilities of local government units to conduct public consultations as a basis for any decision on projects affecting their constituents. Adding insult to injury, the DENR under MAP will seek the intervention of the Department of Justice (DOJ) regarding resolutions made by local government units declaring moratorium on mining. These resolutions serve as examples of good public accountability of the concerned local government units for upholding the position of their constituencies.

Addressing public concern on the adverse environmental and ecological impacts of mining:

While the MAP contains several measures and guidelines on environmental protection, it fails to provide decisive action on how to resolve existing serious environmental problems in relation to mining. For one, instead of requiring a mandatory third party audit of mining companies with regards to their mining operation, MAP merely encourages this kind of environmental accountability measure. From experience, given the environmental disasters caused by mining operations, mining companies are not very receptive to a third party audit because it opens up their operation to independent scrutiny. Likewise, MAP merely provides incentives for good environmental conduct of mining companies, but does not provide strong penalties and sanctions for serious environmental and ecological disasters caused by mining operations. In fact, more than 10 mine tailings dams have collapsed in the Philippines, yet not a single mining company in the Philippines has been given stiff penalties or sanction for this kind of disaster, which has serious consequences not only on the environment but on the people’s livelihoods. It should be noted that large scale mining operations, even with the use of highly sophisticated technology, still cannot reverse the inherent environmental damages caused by mining operations such as toxic mine waste disposal, pollution from milling operations and geological disasters.

Another area of mere lip service is on the protection of biodiversity-rich areas with mineral deposits. While MAP states its objective of protecting bio-diversity areas, this, however, is subject to valuation study and comprehensive land use plan. Given the practice of the government of giving premium to the commercial value of land and resource utilization, extraction of minerals is expected to be given higher priority over the protection of the ecological system. Thus, the most likely outcome and direction of the action plan of MAP is to enhance the NIPAS and mining laws towards strengthening land use for mining, rather than for biodiversity protection.

Instead of clear and decisive policy guidelines and concrete actions to address public concerns on the environmental consequences of mining, MAP instead provides a detailed action plan for education and information to promote mining as sustainable and beneficial for the development of the country. It drumbeats the so-called economic benefits of mining and the benefits for host communities in order to entice the public’s support. But this strategy is doomed to fail as the existing environmental mess caused by past mining operations remains unattended to and serves as a glaring example of the insincerity of the government and mining companies to resolve these inherent problems of mining. Actions speak louder than words on this matter.

The rhetoric of support for small-scale mining:

Surprisingly, the MAP has one section devoted to the government’s support and promotion of small scale mining. In fact, it even includes the identification of small-scale mining areas. However, the small-scale mining sector is already governed by the Small Scale Mining Act, which a lot of gold panners have rejected. What can be gleaned from this strategy is the overriding interest of the government to generate revenue from small scale miners as they continue to grow in numbers, and to regulate their activities, so that rich mineral deposits will be mainly for large-scale corporate mining.

Conclusion

The MAP is brazenly designed to further weaken any remaining protective measures that regulate the mining industry leading to the complete sell- out of the people’s mineral resources to large-scale corporate mining. It clearly follows the dictates and whims of mining companies and foreign investors to the detriment of the people’s livelihood sources, national patrimony and environment. The NMP and MAP pretend to be for environmental protection, yet do not provide for a strict regulatory regime for mining corporations, in spite of their appalling record of ecological disasters. Because of the government’s favoring of mining companies over the rights and welfare of the people, this is another form of national oppression of indigenous peoples and an imperialist imposition to further exploit and control the nation’s mineral wealth. It can be expected that more conflicts will take place in mining-affected communities with the onslaught of foreign mining companies fully supported by the State and its machineries. The people must then brace themselves and strengthen their ranks to defend their rights and secure the people’s resources. It is with the people’s vigilance, collective and sustained actions using various legitimate forms of struggle and defense, and with the support of the broad public, that we can prevent this aggressive plan to further marginalize the already impoverished people of the countryside. #