BAGUIO CITY – Benguet, Nueva Vizcaya, Compostela Valley, Masbate, Cebu, Davao, Palawan and Surigao are high in metallic and gold mining activities in the Philippines and ranked fifth most mineralized country, worldwide.
In these places are still undug gold, silver, copper, nickel and zinc reserves, estimated at $1 trillion. The Philippine Mines and Geosciences Bureau (MGB) indicated preliminary gross production value for large-scale metallic mining at 107.7 billion pesos.
In Benguet, mining and gold trading were among the principal economic activities of the Ibaloys and Kankaneys in the olden times. Benguet mining, today is very much alive, mining and quarrying having contributed most to Benquet’s Gross Provincial Development Product (GPDP) in 2021, accounting for 1.9 percentage points.
For all the whooping cash derived from mining, it, unfortunately, carries mineral activities and operations with various economic, environmental, social and cultural impacts, which, due to the nature of mining, are negative in many instances.
In “Legal Responses to the Environmental Impacts of Mining,” written by Antonio G.M. La Vina, Alaya M. de Leon and Gregorio Rafael P. Bueta, prominent legal luminaries from Ateneo de Manila University, delved into the holistic assessment of mining impacts that must include, among others, rights of indigenous people (IP) and indigenous cultural communities (ICCs).
Considerable numbers of mining projects on ancestral domains and the legal experts explained any mining endeavor tends to pose a serious threat to indigenous people (IP) and indigenous cultural communities (ICCs). About 60 percent of mining operations in the Philippines take place in ancestral domains. Social, cultural and economic aspects of mining are therefore crucial points to be taken seriously before any mining venture starts, they explained.
“It is an established fact that mining carries with it environmental impacts. Mining exploration, extraction and production are by nature disruptive and destructive activities, such that their undertaking must necessarily be accompanied by comprehensive measures aimed at the prevention, mitigation and remediation of environmental impacts,” their study emphasized.
Based even on cursory look at environmental harms caused by mining, the legal experts repeatedly hammered that proper mechanisms for their mitigation and compensation must not only be established but rigorously implemented.
Environmental damages from each stage of mining operation identified by their study are: On mining exploration. Operation and ore extraction results to disruption, if not loss of natural habitat; forest land conversion loss; decline in carbon sequestration capacity; erosion, sedimentation; reduced slope stability or higher risks of landslides; diversion of surface or groundwater; reduced or erratic stream flows; clogged stream channels; potential acid rock generation, and; contamination of surface waterways.
On mineral production. Resultant effects are: threat to particular species or biodiversity loss; diversion of surface or groundwater; reduced streamflow or groundwater depletion; acid rock drainage or contamination of soil and water; surface, groundwater pollution; reduced fish spawning area; damage to aquatic life, and; air pollution (increased dust, PM, metal gases, sulphuric acid).
On mine waste and tailings management. Disruptions caused are: contamination of streams, rivers, other water bodies from tailings release; destruction of habitats (rivers, mangroves, sea grass, coral reefs); fish kills; groundwater contamination from tailings dam seepages; air pollution from dried tailings, and; loss of particular species.
The 1987 Philippine Constitution enshrined a state policy “on the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” The Supreme Court has declared this provision self-executory, that is, capable of being enforced independent of any enabling statute.
Right to a balanced and healthful ecology, enshrined in Article II, Section 16 of the 1987 Constitution is the basis of remedies by actual or potential victims of environmental damage, they explained.
Of this constitutional sanctity, the legal experts pointed out the internationally recognized case of Oposa v. Factoran, Jr., in which the Supreme Court, apart from declaring this right self-executory, held that such right is “no less important than any of the civil and political rights enumerated in the Bill of Rights.”
Further, the Supreme Court, in this case, introduced the doctrine of “intergenerational responsibility,” allowing minor parties “to sue on behalf of succeeding generations.”
On the other hand, Article XII, Section 3 of the 1987 Constitution redoubles the requirement that Congress takes into account “requirements of conservation, ecology and development” when granting rights over lands of the public domain.
An environmental provision pointed out by the legal experts in the 1987 Constitution is the mandate to Congress to legislate limits of forest lands and national parks for the purpose of conserving them and to provide for the prohibition of logging in endangered forests and watershed areas.
Philippine Mining Act of 1995, Republic Act (RA) No. 7942 and its Implementing Rules and Regulations (IRR) govern large-scale operation development and utilization of mineral resources and the Department of Environment and Natural Resources (DENR) regulates and administers the mining industry.
Aside from administrative rules and regulations issued that are necessary to enforce the Mining Act, the Supreme Court jurisprudence interpreting the Constitution and the Mining Act and Executive Orders (EO) like EO No. 130, Series of 2021 and DENR Administrative Order No. 2021-25, the mining industry has also to strictly observe provisions of other laws.
There are Republic Act No. 8371 or the Indigenous People’s Right Act; RA No. 7076 or the People’s Small-scale Mining Act of 1991; RA No. 7160 or the Local Government Code of 1991; Presidential Decree 1586 or Environmental Compliance Certificate; Environmental Impact Statement; Clean Water Act of 2004; Clean Air Act of 1999; Revised Effluent Regulations of 1990; Toxic substance and Hazardous and Nuclear Waste Control Act of 1990, and the Ecological Solid Waste Management Act.
On places designated as “protected areas,” the legal experts explained the IRR of the Mining Act specifically points to areas closed to mining applications.
These include areas covered by valid and existing mining rights; old growth or virgin forest, watershed forest reserves; wilderness areas; mangrove forests; national parks; provincial and municipal forests; tree parks; greenbelts; game refuges; bird sanctuaries and areas proclaimed as marine reserves, marine parks and tourist zones.
Areas the DENR may exclude; offshore areas within 500 metres of the mean low tide level and onshore areas within 200 metres from the mean low tide level of land and where seabed depth is less than 30 metres, and; areas expressly prohibited by law.
Under the IRR of the Mining Act, no Mineral Agreements, Financial and Technical Assistance Agreements or mining permits shall be granted in areas subject to certificates of ancestral domains or ancestral land claims or area verified by DENR or other government agencies authorized by law for such purpose as actually occupied by indigenous people and indigenous cultural communities under a claim of time-immemorial possession. Except if, they gave their Free, Prior and Informed Consent.
For relief in cases of environmental damage arising from mineral operations, the legal experts hinted persons may turn directly to the judiciary or the courts. The Rules of Procedure for Environmental Cases “govern the procedure in civil, criminal and special civil actions before (Trial Courts) involving enforcement or violations of environmental or other related rules and regulations, the legal luminaries explained.
“The Rules introduced several concepts and remedies which tilt the balance of environmental justice in favor of environmental advocates and ordinary citizens. These may be utilized to address mining-related violations, in conjunction with remedies under other laws,” the legal experts further explained.
There is the “Precautionary Principle,” made applicable to the rules of evidence in environmental cases “when there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt,” the experts explained.
There is also the Rules for Environmental Cases, allowing invocation of Suits and Strategic Legal Actions Against Public participation (SLAPP) as a defense in cases filed against “a person involved in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.” The Rules make SLAPP available as defense in enforcement of any environmental policy, law, rule or regulation.
Then there is the Citizen Suit provision, formulates in the Rules for Environmental Cases essentially lowering the standing requirements for filing environmental lawsuits, “allowing any Filipino citizen, in representation of others, including minors and generations yet unborn to file an action to enforce rights or obligations under environmental laws,” the experts explained.
Last but not least is that the Rules introduced the Writ of Kalikasan, a special civil action brought directly to the Court of Appeals or the Supreme Court, available to persons or entities “whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful actor, omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more provinces or cities, the legal experts said.
It was during Ferdinand E. Marcos presidency that requirements regarding environmental regulation and protection were first made integral to national policy on mining. Presidential Decree (PD) 463 echoes punitive provision against willful pollution from mine wastes and tailings, as well as establishing general provision on conservation in mining operations.