Is Executive Order No. 79 Workable?

IS EXECUTIVE ORDER NO. 79 WORKABLE?

by Antonio C. Antonio

December 5, 2012

To answer the question whether Executive Order No. 79 is workable, I should say “yes” and “no” at the same time.  “Yes” because it is the State that wills it and “no” because it offers no environmental protection and may not promote responsible mining in the utilization of mineral resources.  Right or wrong the State has the power to implement anything.  On the purely environmental context, it should be considered that mining is destructive and non-renewable… and because of this, I say:  NO, EO 79 WILL NOT WORK. 

In July 6, 2012, President Benigno S. C. Aquino, III signed Executive Order No. 79 “INSTITUTIONALIZING AND IMPLEMENTING REFORMS IN THE PHILIPPINE MINING SECTOR PROVIDING POLICIES AND GUIDELINES TO ENSURE ENVIRONMENTAL PROTECTION AND RESPONSIBLE MINING IN THE UTILIZATION OF MINERAL RESEOURCES.”  But rather than clear the growing uneasiness about mining, the President only added to the malaise of the informed and intelligent Filipino.  The better way for the President to address mining issues is encourage and supported the timely and speedy enactment of the Alternative Minerals Management Bill of the People’s Mining Bill.  This piece of legislation is still pending in the House of Representatives.  The President could have simply given his “urgent” certification and, like the RH Bill, Congress could also have given this law due course.  This will not be the first time that Congress “fast tracks” a law anyway.

Legislation is not an executive function.  An Executive Order (EO) is meant to be temporary in nature (due to the absence of any law whatsoever to address a specific structural defect in governance) pending the legislation of a formal law to permanently cure this structural defect in governance.  Needless to say, the promulgation of EOs should only be a tool for the national leadership to address problems in emergency situations.  Anyway, let’s just assume that our mining issue is an emergency situation and, therefore, the EO is justified.

Perhaps, the initial question would be:  “Is there really a need for the Executive Order?”  I should say that there is a need to address our mining and environment concerns but the means to address is should not be confined to the issuance of an EO alone.  The Philippine Mining Act of 1995 has been labeled as destructive and anti-people.  It is for this reason why the People’s Mining Bill has been drafted.  Our mining issues could have been better handled by Congress where there is a wide range of debate of ideas and transparency.  As it is, the EO was crafted by only a few individuals whose interest will always remain suspect in the opinion of the public.

The issuance of the Executive Order was met by opposition from environment advocates (the academe and civic organizations), environment protection groups (Non-Governmental Organizations [NGOs] and rural communities, indigenous communities and People’s Organizations [POs]) and Local Government Units [LGUs].  They say that the EO favored foreign mining business interest and brushed away the legitimate concerns of the affected communities, environmental groups and LGUs opposed to mining.  Although the EO was written using elegant terms and promoted large-scale mining, a lot of concerned citizens frowned over it and called it a masterful deception.

EO 79 is widely viewed as a façade to make it appear that government is serious in its environment concerns but it secretly increased liberalization in mining to favor the big and large-scale mining companies.  Obvious deceptions were detected in some statements used in some provisions of the EO, such as:

1. THERE WILL BE CONSULTATIONS – A provision in EO 79 entails the setting-up of the MICC (Mining Industry Coordinating Council which shall be composed of the Climate Change Adaptation and Mitigation government clusters, the Secretary of Justice, The Secretary of the DENR, the NCIP (National Commission of Indigenous Peoples), and the ULAP (Union of National Authorities of the Philippines) to oversee implementation and conduct consultations.  Judging from this mix of members to the MICC, there is an obvious lack of representation from civil society, the affected communities and the academe where environmental concerns are stronger and more militant.  It could be further noted that the members of the MICC are all Presidential appointees and, therefore, beholden to the President.  This set-up is also prone to railroading wherein the essence of consultation could be futile.
2. LGUS HOSTING MINING OPERATIONS TO CONFORM TO REGULATIONS, DECISIONS AND POLICIES… PROMULGATED AND TAKEN BY THE NATIONAL GOVERNMENT – EO 79 effectively overrode and nullified previous decisions by the LGUs who have not allowed large-scale mining to happen in their areas.  Davao City, under the heavy-handed leadership of Rodrigo Duterte, has registered strong opposition to the EO.  Most LGUs are now wondering whatever happened to the Local Government Code of 1991 wherein national government function are supposed to be devolved to them.  They are also asking why they are not even represented in the MICC.
3. NO MORE MINING APPLICATIONS – This statement seems to be closing the door to additional mining applications.  EO 79 was signed in July 6, 2012 but the Mines and Geosciences Bureau (MGB) of the Department of Environment and Natural Resources (DENR) show that there existed around 771 kinds of large-scale mining permits (covering 1,009,161.21 hectares (almost 1/30 of the total land area of the Philippines) as of June 30, 2012.  During the incumbency of President Aquino, he, himself, approved more than 270,000 hectares of mineral lands for mining operations.  The public suspects that the Aquino Administration hastily approved and put in place its favorite KKKs (Kamaganak, Kasangga at Kabarilan) before closing the door to new mining grants.  Unfortunately, over half of these newly approved mining permits (by President Aquino) cover areas allocated to indigenous peoples.  The EO threatens even further the survival of the indigenous peoples beyond the enactment of the Philippine Mining Act of 1995.  The moratorium (EO 79) or mining ban is also contrary to other provisions of the EO which calls for the speedy and rapid processing of new mining permits via the “one-stop shop” concept.  Moratorium or ban simply means a stoppage to permit issuance.  So what is the need for this expeditious measure in the processing of new permits?  Are there still other KKKs the administration has not yet accommodated?
4. EXISTING MINING CONTRACTS UP FOR REVIEW – Who will conduct the review?  If civil society, the affected communities and the academe can easily be ignored in deciding on the membership to the MICC, will they be allowed to participate in the review of mining contacts (considering they are militant)?  Besides, government reviews, evaluations, audit, etc. have been traditionally been mechanisms for corruption.  These just provide opportunities for government people to make money.  Especially if they are to conduct “reviews” on wealthy and heavily funded mining companies.
5. CLOSING SOME AREAS TO MINING – This is another of EO 79’s deception.  The EO never intends to close areas that need protection.  The areas identified have already been identified with the workings of other laws which are already in place.  So what else is new?  The NIPAS (National Integrated Protected Areas System) Law or Republic Act No. 7586 requires a detailed, lengthy and expensive process before an area can be officially declared as a protected area.  Under the NIPAS Law there are only 240 protected areas in the Philippines.  Therefore, other areas could still be used for mining operations unless and until they are declared protected areas.  This presents an open window of opportunity for more mining permits to be granted.  Therefore, again, the EO offers nothing new in terms of closing some areas to mining.
6. ONLY EXPLORATION ALLOWED – Why should exploration be allowed when the essence of the ban or moratorium is stop new mining activities?  If mining companies are allowed to explore for minerals, such exploration permits can eventually be upgraded to a mining permit or MPSA (Mineral Production and Sharing Agreement.)  Exploration permits are easy to get since they do not require an ECC (Environmental Compliance Certificate).  It should be noted that prior to the issuance of an ECC, studies are conducted on possible impacts to the environment and mitigation plans and programs… this is where the importance of the ECC lies.  The EO actually encourages uncontrolled exploration by the big players in the mining sector.  Wouldn’t it be a contrary position to declare a moratorium and encourage exploration?  Wouldn’t it be a waste of resources to encourage exploration if the State doesn’t intend to eventually grant MPSAs? 

Just my little thoughts…