Wednesday, 05 April 2000

Communities opposed to mining
face an uphill battle

by Gina Mission



As if going against big mining companies were not tough enough, communities opposed to mining face yet another obstacle in their struggle to protect their ancestral lands: the Mines and Geosciences Bureau (MGB).

.....The bureau,  which is under  the Department of Environment and Natural Resources (DENR), is the government agency responsible for implementing the Philippine Mining Act of 1995, which governs the Philippine mining industry. This law lays down the procedures and guidelines on how the mineral resources of the country can be exploited.

.....As in the Indigenous People's Rights Act, the Mining Act provides that the “free and prior informed consent” of communities with lands covered by mining applications must be obtained before mining permits are issued.

.....But Edgar Bernal, a lawyer of the Legal Rights Resource Center, has accused the bureau of unfairness in enforcing the Mining Act.

‘Bending over backward’

.....He said the bureau “bends [over] backward” to “protect" the interest of mining companies applying for exploration permits, resulting in the “blatant violation of constitutionally guaranteed rights, such as the right to information.”

.....He cited the case of Midsalip, an agricultural municipality in Zamboanga del Sur which has considerable mineral resources. After the approval of the Mining Act, foreign mining companies, led by Rio Tinto Exploration Corp., regarded as the largest mining company in the world, filed applications for mineral agreements covering areas in Midsalip. Fifty per cent of the town’s inhabitants are Subanens, the people indigenous to Zamboanga peninsula.

.....A group composed of Subanens, as well as women, farmers, youth and religious organizations in Midsalip, who saw the notices pasted on the bulletin board of the municipal hall, wanted to protest the applications. But the notices, all written in English, reportedly contained only the names of the companies applying for mineral explorations in the place. The group needed more information to be able to file a "legitimate" opposition.

.....Representatives of he group, with the assistance of the LRC, then asked the MGB Region 9 office in Zamboanga City for copies of the declaration of location, affidavits of annual work obligations and letter of exemptions pertaining to these companies. But instead of complying with their request, MGB regional personnel gave them the runaround, Bernal said.

.....Because of such treatment, the group sent a similar request letter to the MGB central office in Quezon City. Bernal said then-MGB Director Horacio Ramos denied their request on the ground that a DENR administrative order requires the authorization of the companies for the release of these documents. The bureau eventually gave the group copies of the documents, but only after LRC Executive Director Marvic Leonen, pointing out that these are public records and  therefore open to any Filipino, threatened to file administrative, civil and criminal actions against the MGB.

.....That was just the first barrier the group had to hurdle. After getting copies of the companies’ documents, it filed a petition opposing the applications on the ground that the area applied for is a watershed, covered by “lush, virgin and old growth forests” and therefore legally closed to any mining exploration.

.....The group also assailed the use of English in the notices, saying the language was not generally understood by the mainly Cebuano and Subanen local populace.

Panel of arbitrators 

.....Bernal said MGB Region 9’s panel of arbitrators, the three-member group handling petitions such as that of the objectors on the regional level, dismissed the petition, claiming it was not within its jurisdiction to resolve the case.

.....The panel did not state the legal basis for claiming lack of jurisdiction, the petitioners claimed. On the contrary, they said, the panel was precisely mandated to handle such disputes as provided for in the Mining Act.

.....They also noted that the order dismissing their petition was promulgated on January 5, 1998, but was mailed to them only five months later, on June 3.

.....The petitioners filed a motion for reconsideration, but the panel reportedly did not act on it for over a year. Following it up, they were told that the panel had not received their motion. Bernal disputed this, saying the logbook at the office of the panel of arbitrators "reflects receipt of the motion.”

.....To keep the case going, the group faxed copies of the motion to the panel, which quickly denied it.

A pattern of bias?

.....Bernal said LRC’s experience repeatedly confirmed that the mining bureau’s “bias” against communities affected by mining applications was not confined to MGB’s performance of its administrative tasks. "It also permeates the exercise of its quasi-judicial function,” he said, citing the Midsalip case as a “classic” example of such bias on both the administrative and quasi-judicial levels.

.....The 1995 Philippine Mining Act gave the panel of arbitrators in each MGB regional office “exclusive” and “original” jurisdiction over four kinds of disputes.  Each panel is composed of two lawyers and a mining engineer. Disputes handled by the panel are those involving rights to mining areas; mineral agreements or permits; surface owners, occupants and claim holders/concessionaires; and disputes pending before the MGB and the DENR on the date the Mining Act took effect.

.....Even before the Mining Act, the regional panels had been presiding over three types of disputes, except for disputes between applicants and surface owners and/or occupants—a new category of disputes provided for in the Mining Act.

.....Of the four types of disputes, Bernal believes that the new one is the most important. He explained that its being treated as a separate category gives communities opposed to a mining application a chance to assert their right to their lands at the earliest stage of, say, an application for a mineral agreement.

Disputes ‘mishandled’ 

.....But what is happening, Bernal said, is that most disputes of this nature are being “mishandled” by the panel of arbitrators. In fact, Midsalip’s case is not the only one so mishandled, he said.

.....Bernal recalled that in November 1997, several companies filed more than 30 applications for various forms of mining contracts and permits such as exploration permit, foreign and technical assistance agreement, mineral agreement, and mineral production sharing agreements in the province of Aurora.

.....The applications were opposed by the Multi-Sectoral Action Group of Aurora, a coalition of cause-oriented groups composed of women, youths, farmers, indigenous people and senior citizens.

.....In its petition, received by the panel of arbitrators for Region 4 and recorded as DENR Case 97-9, coalition representatives asked that the applications be denied because the applicants failed to consult their communities and obtain their consent beforehand.

.....In a preliminary conference, Bernal said, the panel of arbitrators refused to recognize the right of a paralegal to represent the petitioners and, having done so,  declared the case submitted for decision. “Yet their rules of procedure clearly allow a party (in the dispute) to be represented by an attorney or a representative,” he remarked.

.....The panel consequently dismissed the petition. It rejected the group’s argument on the need for prior consent and instead suggested that they raise the issue in the processing of the Environmental Compliance Certificate (ECC).

.....Bernal criticized the decision, saying that the panel missed two basic points. The Philippine Mining Act, he said, provides for the free and prior informed consent of the community affected by a mining application, as a requirement for the approval of a mining permit. “How could a panel of arbitrators dismiss a petition of this kind without citing any reason that disqualifies the petitioners from filing such case?” he asked.

.....“How could a panel suggest such a remedy to the objectors when an ECC is not a document that is required for obtaining an exploration permit, but is only necessary when, under the current interpretation of the MGB, mining operation in the technical sense is about to commence?” he further asked.

.....Even if the Aurora group followed the panel’s suggestion, Bernal said it would have been too late for them to complain that they were not consulted before the issuance of the permit. “By the time the company applies for an ECC, it shall already have invested millions in exploration, building physical infrastructures and easing community relations, as in the case of Western Mining Corporation in Tampakan, South Cotabato and Climax-Arimco in Didipio, Kasibu, Nueva Vizcaya,” he observed.

.....The Midsalip and Aurora cases, Bernal said, illustrate a “seemingly hopeless exercise” that communities opposed to mining companies must go through before their case reaches what people look up to as a neutral arena: the Supreme Court.

.....Anselmo Abungan, Legal Officer 4 at the Office of the MGB Director, said that there is hardly anything that other MGB officials can do with these cases because the decision really rests with the panel of arbitrators.

.....He pointed out, however, that the panel’s decision is “always appealable” to the Mines Adjudication Board, which at present, is composed of DENR Secretary Antonio Cerilles, DENR Assistant Secretary Pedro Caleon and MGB Director Victor Ramos.

.....Bernal has found a bit of irony in the way the MGB and, by extension, the DENR have been performing their roles in implementing the Philippine Mining Act with regard to affected communities. “Isn’t it surprising for these agencies to dismiss any opposition to mining applications as an obstacle to their work?”