Since the 1970s, mining has been regarded as a potential driver of economic development. The demands of a fast growing population, within the context of development, require natural resource extraction and utilization. Many mineral-rich areas, however, are also environmentally valuable. Thus, the contest between the economic return of mining and the benefit of preserving an area for environmental protection is ever-present, and often controversial. Despite the significant disturbance that mining creates, there should be a general agreement that, done responsibly, mining can produce net economic and social benefits. The paramount question therefore is: Do we need new laws to ensure mining is done responsibly?
As a background, Republic Act No. 7942 or the Philippine Mining Act was enacted in 1995. In that same year, the mining law’s constitutionality was challenged before the Supreme Court. It took the High Court almost a decade to decide in favor of upholding the validity of the Mining Act in 2004 after a motion for reconsideration. Subsequently, Executive Order (EO) No. 79, which suspends the granting of new mining permits, was issued in 2012. EO 79 still survives amidst the intensified mining audits conducted by the present administration.
Notwithstanding the fact that the Mining Act of 1995 has been just in operation for less than eight years, calls to scrap the existing law have been ringing in the public arena. In particular, several proposals that will replace the Mining Act have been pending in the legislative mill and re-filed for the consideration of the current 17th Congress.
In furthering the amendment or abolition of the law, what is really wrong with the eight-year-old Mining Act that regulates an industry that has a business cycle of around 20 years? What is lacking in this governing law for a highly technical industry that has provisions for environmental protection, social development, and rehabilitation? Several concerns have been floated, but existing laws, policies or even regulations already address them.
First, there is the concern that environmentally critical areas must be upheld as no-mining zones. However, the Mining Act of 1995 itself, together with the National Integrated Protected Areas System (NIPAS) Act, absolutely prohibits mining on old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks provincial/municipal forests, parks, greenbelts, game refuges and bird sanctuaries, among other critical areas.
Second, the insistence that environmental protection takes precedence in all mining activity is until now enshrined in the Philippine Environmental Impact Statement System (PEISS). Through the PEISS, protection and mitigation measures corresponding to the activity to be undertaken are put in place and are subject to monitoring and evaluation.
Third, the issue of participation in the decision-making process by the community to ensure its welfare is satisfied by not only the public consultation mechanisms in both the Local Government Code and the PEISS, but further strengthened in the Indigenous Peoples Rights Act as well.
Lastly, the objective to develop metal processing and downstream industries has always been the direction of government and development plans were crafted by government units to realize that goal.
Considering that the basic concerns are sufficiently addressed, one can only arrive at the conclusion that it is in the inadequate and sometimes outright non-implementation and non-conformance to existing applicable laws, rules and regulations that result in problems in the mining industry. This should be obvious in a country that is replete with sophisticated policies, but is still struggling to achieve economic and social development. Despite the existence of relevant laws, environmental destruction, human rights violations, and economic stagnation in mining continue to exist only because such laws are not properly enforced.
This is not to say, however, that the Mining Act of 1995 is perfect.
There is room for improvement in the transparency and dissemination of data concerning environmental programs, findings, and mineral production. Also, it is desirable to mandate the allocation of additional funds for environmental protection, the increase of waste generation fees, and some form of insurance for natural hazards.
Still, the current laws are adequate to address the balance between utilization of natural resources and protection and preservation of the environment. Clearly, the one needed right now is an implementation arrangement that can effectively monitor and evaluate compliance of all mining activities, large scale or small scale, to existing environmental laws, rules and regulations.
Only actual use of the existing provisions of the law would allow the mining industry to determine better practices and policies. The principles of accountability and transparency require that mining corporations and government regulatory agencies be made accountable for their actions. The law allows us the opportunity to make them accountable, and only an informed, active and engaged population can make them truly accountable. It is the transformation of stakeholders into responsible ones that can pave the way for mining to be done responsibly.
Atty. Lysander Castillo is an Environment Fellow at the Stratbase ADR Institute and the Secretary-General of Philippine Business for Environmental Stewardship (PBEST). This article was originally published in BusinessWorld.