Gold diggers’ orgasm: the adulterated legal justification for deeper and harder earthly

penetration

Dissecting Mining under PH and International Laws

I. Philippine Domestic Laws

Circa 18 years ago the Mining Act was signed into law. We now ask ourselves, what
have we gained? The truth is, we gained nothing—save for plunder of our land and resources;
massive destruction of the environment and ecosytem, mining disasters (Philex, Lepanto,
Marcopper, Lafayette), violation of people’s rights especially indigenous peoples’ collective right
to Free, Prior and Informed Consent (FPIC), ancestral land and self determination, militarized
communities especially those opposing the entry of the large mines, pollution of agricultural
lands and water bodies, health hazards, food insecurity and more. Large mining is no longer
taking place in mountain tops but also along coastal areas. Many community leaders have been
victims of extrajudicial killings and enforced disappearances.

On this premise we anchor our position that the Mining Act is unconstitutional.

First, it violates peoples’ right to health, and right to a balanced ecology.

The Constitution enshrined the oft-cited 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.

Mineral operations cannot be conducted without affecting and disturbing the land, water,
and air surrounding and connected to the site, as well as the various natural resources found on
and in them. Mining does not only result in the extraction of minerals, but often also
necessitates the use, removal, or destruction of non-mineral resources, such as freshwater,
timber, and wildlife.

Concomitantly, Mining industries who cause pollution may be liable civilly or criminally
under the Climate Change Act, Clean Air Act, Clean Water Act, Solid Waste Management Act,
and Toxic Substances and Hazardous and Nuclear Wastes Control Act.

The Constitution is crystal clear. The State should protect and promote these rights.
Aware of terrible environmental impacts, the government has nothing left to do but to stop these
dangers; else, it shall continue to patently violate the fundamental law it ought to defend without
fear or favor.

Second, it deprives the government of full control and supervision over mineral
resources.

The decision in LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., v. RAMOS ([G.R. No.

127882. December 1, 2004]) dangerously opened the gate for foreign investors’ and
corporations’ total control of over people’s mineral resources and the country’s whole natural
resources as well. This is a mockery of the people’s control over their patrimony and a clear
violation of the rights of indigenous peoples over their land and resources.
 Section 80 of the Mining Act limits the share of the government in MPSA to excise taxes
while Section 81 confines government shares to taxes, fees and royalties instead of allowing it
to have full control over the exploration, development and utilization of mineral resources.

These provisions, put the government at a financial disadvantage as these limit the
State’s share in revenues to 2% excise tax and 5% royalty. Therefore, the mining law is
unconstitutional since the government is not getting its equal share in the mining contracts it
enters into.

More importantly, as already established, allowing irresponsible mining is not merely

constitutionally problematic. It blatantly breaches human rights too, specifically; to name a few:

1. The right to food which is recognized in the 1948 Universal Declaration of Human
Rights (Article 25) as part of the right to an adequate standard of living, and is enshrined
in the 1966 International Covenant on Economic, Social and Cultural Rights (Article 11).

The right to food is violated if people who depend on land for their livelihood are
deprived of access to land without being provided suitable alternative sources of
livelihood.

Development of the mining sector may increase violations of the right to food. Mining
activities nor tracts of land large enough for industrial mining would almost definitely
affect agricultural lands, rivers, and irrigations. Further, the potential impacts of mining
activities—such as depletion of water resources and harm to the environment by
chemicals or toxic mine drainage—could have deleterious impacts on subsistence
farmers beyond the area of any given mine.

2. Right to a Healthy Environment. Several provisions in the core international human

rights treaties protect the right to health, including Article 12 of the ICESCR, Article 12 of
the CEDAW, Article 5 of the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), and Article 24 of the CRC.

Metal mining may exacerbate existing obstacles to the right to health by negatively affecting
underlying determinants of health. Even during exploration, metal mining activities may cause
toxic mine drainage, an organic process by which rocks from deep in the earth leach toxins
when they are exposed to oxygen and water. During the extraction phase of mining, the use of
chemical processing and industrial-scale digging and crushing equipment may cause
environmental problems, including water contamination, production of unmanageable amounts
of solid waste and dust, loss of tree cover, and landslides. These harms can impact health
severely.

3. The duty to protect people from human rights violations is a fundamental State
responsibility and principle under human rights law. The obligation to protect
requires that the State take action to prevent violations, and where violations have
occurred, to investigate, prosecute, and punish individuals, companies, or other entities
that harm individuals’ human rights.
 4. Indigenous Peoples/ Indigenous Communities’ Rights. Case in point: The Free,
Prior, and Informed Consent (FPIC) of the Binongan indigenous peoples in Baay-Licuan,
Abra Philippines, was grossly violated by Canadian mining company Olympus Pacific
Minerals for not securing such prior to exploration and drilling in the indigenous peoples’
ancestral domain at Capcapo mountain.

Recommendation
Viewed from the vantage point of domestic laws, whichever comes earlier, the remedies
to address the dark side of mining, are:
(a) the Supreme Court must review its decision upholding the constitutionality of
the Mining Act, and declare the said law as unconstitutional; or
(b) the Congress must urgently pass the Mining Law reform bills pending in
plenary, so as to correct the unfortunate results of the law.

Mining is an issue of social justice, and for justice to prevail, the Mining Act must be
declared unconstitutional. The Congress must act upon to alternative mining laws to reorient
and overhaul the current mining industry, such as the People’s Mining Bill. Reorienting the
current Philippine mining industry must mean correcting the historical injustice committed to the
people, especially indigenous peoples, and all victims of mining plunder, by making mining
companies accountable. Reorienting the Philippine mining industry means it must not be profit-
driven, not import-oriented and export-dependent, environmentally regulated especially in
indigenous peoples territories where these mineral resources are, among others. It must be for
the common good, in the framework of a nationally industrialized Philippine mining industry. And
it is important that these matters are constitutionally guaranteed.

II. International Environmental Law

International agreements to which the Philippines is a party are part of the law of the
land.They are thus subject to implementation with the same force and effect as domestic laws,
and the Philippines is bound to perform the obligations imposed by these treaties. In the arena
of the environment alone, Chief Justice Reynato Puno has said that the Philippines has “over
170 environmental treaties in existence”.

Despite its significant adverse environmental impacts, mining has been the subject of
few international standards.Like energy, mining is regulated by international law only to the
extent that it is incidentally addressed by environmental impact assessments and rules that
address the protection of flora and fauna, the disposal of waste, and air pollution.The following
international instruments, to which the Philippines has adhered, may have particular application
to the mining industry:

The Stockholm Declarationis the product of the United Nations (UN) Conference on the
Human Environment held on June 5-16, 1972. It was the first UN conference specifically to
consider problems in the environment, adopting a Declaration and Action Plan.Some provisions
are:

Principle 6: The discharge of toxic substances or of other substances and the release of heat, in
such quantities or concentrations as to exceed the capacity of the environment to render them
harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted
upon ecosystems. The just struggle of the people of ill countries against pollution should be
supported.

Principle 7: States shall take all possible steps to prevent pollution of the seas by substances
that are liable to create hazards to human health, to harm living resources and marine life, to
damage amenities or to interfere with other legitimate uses of the sea.

The Rio Declarationis one of the outputs of the UN Conference on Environment and
Development (UNCED) held in Rio de Janeiro, Brazil to elaborate strategies and measures to
halt and reverse the effects of environmental degradation in the context of strengthened national
and international efforts to promote sustainable and environmentally sound development in all
countries (Sands 2003). It comprises 27 principles that set out the basis on which states and
people are to cooperate and further develop international law in the field of sustainable
development. The Rio Declaration provides a benchmark to measure future developments,
provides a basis for defining sustainable development and its application, and provides a
framework for development of environmental law at the national and international level to guide
decision-making. Some of the provisions are:

Principle 11: States shall enact effective environmental legislation. Environmental standards,
management objectives and priorities should reflect the environmental and developmental
context to which they apply. Standards applied by some countries may be inappropriate and of
unwarranted economic and social cost to other countries, in particular developing countries.

Principle 15: In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.

The UN Framework Convention on Climate Change (UNFCCC)establishes a framework

for elaborating measures to address the causes of climate change; and is an important example
of the principles of common but differentiated responsibilities and precautionary action under the
Rio Declaration,of the special needs and circumstances of developing countries, sustainable
development, and international trade.

The Kyoto Protocol was adopted in December 1997 after it was established that States’
commitments under the UNFCCC were not adequate, and is regarded as a tool for the
implementation and enforcement of concrete goals in accordance with the aspirational
objectives set forth in the UNFCCC.The major achievement of the Protocol was the commitment
of developed countries to achieve quantified emissions reduction targets within a timetable. It
also proposed to allow developed countries, otherwise referred to as Annex 1 states, to meet
their commitments by purchasing or acquiring credits representing greenhouse gas reductions
in other countries. The Clean Development Mechanism further established a means for Annex
1 parties to gain emission reductions credits to assist them in achieving compliance with their
quantified emissions limitation and reduction commitments.

The UNFCCC and the Kyoto Protocol have a particular implication on mining because of
the potential contribution of mineral activities to climate change. The International Council of
Mining and Metals has identified climate change and the impact of greenhouse gases (GHG)
“as ‘the most important environmental issue, without a doubt’ to face the mining industry”.The
mining industry faces such climate-related challenges as “compliance with local regulatory
regimes restricting carbon emissions.

Thus, the Philippines’ commitments under the UNFCCC and the Kyoto Protocol, now
embodied in the Republic Act No. 9729, must be considered integral components of the national
policy on mining and their objectives incorporated in the environmental programs of mining
contractors and permit holders.

The Convention on Biological Diversity (CBD)aims at the conservation and sustainable

use of biological diversity, the fair and equitable sharing of benefits from its use, and the
regulation of biotechnology. A significant provision of the CBD which relates to the mining
industry is found in Article 3 on Principle, which calls on member States, such as the
Philippines, to ensure that use and exploitation of natural resources carries with it a
responsibility to ensure the protection of the environment and the preservation of biological
diversity.

CONCLUSIONS

The International Laws created all has the common purpose of setting the standards to prevent
the destruction of the countries’ own environment with the additional purpose of creating a
protective layer by setting limitations in the operation of the State’s activities.

These limitations were set to prevent activities such as extractions from the environment of such
quantities that would exceed the capacity of the environment and to keep these activities
harmless which must be implemented in order to ensure that serious or irreversible damage is
not inflicted upon ecosystems. It is for each State to regulate its own activities to promote,
protect, and preserve their natural resources for the benefit of the State and keeping its people
in mind as well.

The State also has the obligation of creating its own programs for future developments through
effective environmental legislations and other applicable precautionary approaches attainable
by the State’s own capacity which are all aimed at preventing the environment’s destruction, the
worsening of pollution and climate change.

However, regardless of all these standards and limitations set in these international laws, it is
difficult to state for a fact that these are actually implemented and followed by the State in
accordance to what was originally intended by the creators. Although the international laws may
have the best interest of the state and its people, the State has failed to recognize its own
capacity of implementing such a nation wide concern that requires even the minutest
participation to make such laws effective and efficient.

Why?

Firstly, the reporters conclude that the current rush in the mining industry world wide will
undermine the Government’s own strategy for sustainable development by destroying or
severely damaging critical eco-systems since the Philippines is the fifth most mineral-rich
country in the world for gold, nickel, copper, and chromite and it is home to the largest copper-
gold deposit in the world. It is also estimated that the country has an estimated $840 billion
worth of untapped mineral wealth, as of 2012.

Secondly, the extensive implementation of these international laws on mining activities’

standards will bring insufficient benefits to the Filipino people by restricting them too much and
making it more difficult for them to legally mine without the proper permission from the
government. Hence, prompting them to resort to unlawful means. Such lack of participation from
the people renders the law itself ineffective and inefficient regardless of the number of
precautionary and protective environmental legislations set by the government.

Lastly, corruption is a serious problem in the Philippines and it can be expected that those
corrupt individuals take advantage of such a profitable venture by creating plans for extensive
regulation of mining operations in wide and remote areas requiring licensing, regulation and
monitoring which will only make corruption in the country worse. Most especially that in certain
areas of the country,they rely on the mining industry to keep it going and most of its income
comes from its mining activities.

Therefore,until and unless the flaws in the system itself and for its implementation are ironed
out and polished, it cannot be said that the State, the people, and the environment are getting
the most of what was originally planned for them because it is the State that has a hand in the
effective implementation of the International laws set regarding activities involving natural
resources.