Atty. Lysander Castillo, Environment Fellow of the Stratbase ADR Institute; Secretary-General of the Philippine Business for Environmental Stwardship (PBEST)

Last October, the Mining Industry Coordinating Council (MICC), recommended the lifting of the open-pit mining ban instituted by former DENR secretary Gina Lopez through DENR Administrative Order (DAO) No. 2017-10 specifically prohibits the open-pit method of mining for copper, gold, silver, and complex ores in the country.

Despite the protests of Ms. Lopez and the anti-mining groups, current Environment Secretary Roy Cimatu expressed the intention to formally overturn the ban before 2017 ended shortly after the MICC pronouncement. In a sudden policy direction twist, however, President Rodrigo Duterte rejected the MICC recommendation to lift the ban on open-pit mining. The reason behind the President’s declaration was purportedly due to the huge environmental disturbance the method brings, and perceived to be without corresponding corrective measures. As an alter ego of the President, Secretary Cimatu had to reverse his earlier intention to scrap the ban and tow the administration’s line. Thus, 2018 has come without any policy change on open-pit mining.

By merely looking at the reported concern of President Duterte, is there enough justification to maintain the ban? Perhaps, the President may be coming from a perspective that largely takes into account the so-called “legacy mines,” which indeed brought about destruction of ecosystems and environmental services sans any form of mitigation and rehabilitation. There are a lot of these abandoned mines and they continue to hound the mining industry.

Nonetheless, are the adverse consequences inevitable with open-pit mining, a method accepted worldwide? Or are the negative effects to the people a manifestation of the failure to comply with or implement laws, common to environmental rules and regulations here in the Philippines?

To begin with, it is a fact that open-pit mining, or mining per se, is not the only human activity that significantly disturbs the environment and cause pollution. Certainly, the development of areas for residential and commercial uses, the clearing of forests to pave way for agriculture, or even commercial fishing, done improperly, will have long-lasting ill effects to nature and the people.

That said, we can turn to environmental laws to determine if there are enough policies to guard against the adverse impacts of open-pit mining. Section 69 of Republic Act No. 7942, or the Mining Act of 1995, is clear on environmental protection, to wit:

Every contractor shall undertake an environmental protection and enhancement program covering the period of the mineral agreement or permit. Such environmental program shall be incorporated in the work program which the contractor or permittee shall submit as an accompanying document to the application for a mineral agreement or permit. The work program shall include not only plans relative to mining operations but also to rehabilitation, regeneration, revegetation and reforestation of mineralized areas, slope stabilization of mined-out and tailings covered areas, aquaculture, watershed development and water conservation; and socioeconomic development.

Further, the same law, in Section 71, reinforces the need for rehabilitation in any mining project, thus:

Contractors and permittees shall technically and biologically rehabilitate the excavated, mined-out, tailings covered and disturbed areas to the condition of environmental safety, as may be provided in the implementing rules and regulations of this Act. A mine rehabilitation fund shall be created, based on the contractor’s approved work program, and shall be deposited as a trust fund in a government depository bank and used for physical and social rehabilitation of areas and communities affected by mining activities and for research on the social, technical and preventive aspects of rehabilitation. Failure to fulfill the above obligation shall mean immediate suspension or closure of the mining activities of the contractor/permittee concerned.

Aside from the implementing rules and regulations that give flesh to the said provisions, Presidential Decree No. 1586, requires mining, being an environmentally critical project, to undertake an environmental impact assessment, which essentially obliges the proponent to identify the impacts of the project to the environment and adopt the corresponding mitigating measures therefor.

With these laws in place, it appears that open-pit mining is demonized because of the lack of compliance with the rules and concomitant enforcement by the government. Among the major concerns about open-pit mining are the change in landform, the generation of an acid mine drainage, and the deprivation of water supply. All these, however, can be reversed, mitigated, if not totally avoided, with the proper engineering solutions, using advances in technology.

One example of a mining project that meets the law’s requirements and yet stifled by the open-pit ban is the Philex-Silangan Project. Already with an approved rehabilitation plan and an ISO 14001, this prospective open-pit mine employed geologic material characterization and modeling, as well as process and ground water modeling, among others to address open-pit concerns. More importantly, the LGUs and the affected communities have expressed support for the project. In fact, Philex has already demonstrated the ability to successfully undertake mine rehabilitation in its Bulawan and Sibutad mines.

So if there are laws in place for environmental protection and proof that rehabilitation can be done, what then is the rationale for upholding the open-pit ban?