House Rep. Tañada on Mining Act vs Alternative Mining Bill

HON. LORENZO R. TAÑADAIII

Talk on the AlternativeMining Bill (HB 6342)

to Kontra Mina

University of Sto Tomas

1 February 2010

I’m happy to see so many of you take time off fromFacebook and Twitter for a while to discuss a very important issue. Though if Iknow anything about you young people it’s that you’re good at multitasking, soyou can still make updates, with the condition that you have to say “I heart theAlternative Mining Bill” at least once.

The first thing that we need to know about miningis that it is much more than just an environmental issue. It is big businessconcerning state property. Kasama na palagi diyan ang mga usapin ukol satrade at economics.

At the same time, the way that business isconducted implicates social issues. Human rights, indigenous people’s rights.So, while the business of mining is primarily concerned with a naturalresource, it gives birth to a lot of issues that are beyond the environmental.

Ang batas natin sa pagmimina ay sakop ng RA 7942,or the Mining Act of 1995.

A little history about the law. During the 1990s,we were experiencing a slump in the mining industry. ‘Nung 70s, malakas pa angkita. During the 80s, medyo nagkakaproblema na, but in 1988, the Philippineswas still the sixth largest producer of chromium in the world; we were ninth ingold production, and tenth in copper production. The industry was contributingaround 3% of our GDP in 1980; but by 1990 it was contributing just half that,at 1.5% of our GDP. The 1990s saw that mining operations could not cope withtransitions in our policy—there were labor disputes, the workers wanted higherwages—and operations were also suffering serious setbacks from the usualtyphoons, earthquakes, tapos uso pa yung brownout. A lot of mining companiesleft and we got a bad rep for being a difficult place to invest in. Tinatanggalna tayo nung mga investors from their ‘Friends’ list.

We also began receiving pressure from the WorldBank to liberalize our national mining policy. So we did. Hindi tayomakapiyok kasi ang laki ng utang natin, and we were also trying to join the WTO—which would also turn outto be a massive disaster, but that’s another story.

President Arroyo, when she was just senator,sponsored this law—coincidentally enough, or not. The philosophy behind it wasthat we needed investors and we were willing to make concessions for them. A lot of concessions. I want youto imagine a McDonald’s with a sign outside that says: “FREE PSP WITH HAPPYMEAL.”

And what did our Happy Meal Contain? Tax cuts. 100%foreign ownership of mining companies. Perks. Incentives. Easy money. We madeit as mining-friendly as possible, by basically guaranteeing the investment. Paghindi sila kumita, hindi rin tayo kikita. If the company suffers a loss, for example,they can just take that out of their income tax.

This is not to say that the law specificallyintended itself to be a bad one. It uses all the rights words; it makesattractive promises. Ma-e-engganyo ka talaga sa packaging. For example, Section 2 ofthe Mining Act provides:

It shall be the responsibility of the State topromote the rational exploration, development, utilization and conservation ofmineral resources through the combined efforts of government and the privatesector in order to enhance national growth in a way that effectively safeguardsthe environment and protect the rights of affected communities. 

Ang ganda pakinggan hindi ba? But this is the way ittranslates to reality:

“As long as mining companies pay the government (“combinedefforts of government and the private sector”, check) even a little in taxes (“enhancenational growth”, check), they can dig around for minerals and then take themout simply by getting an Environmental Compliance Certificate (“safeguard theenvironment”, check) and doing everything they can to keep the people quiet (“protectthe rights of affected communities”, check).”

Never mind that environmental compliancecertificates are often obtained with fraudulent representations, or that theyget the communities’ consent by not telling them about what will really happento their land. Basta may substantial compliance, okay na.

But wait, we say, there is still the part that says“conservation of resources”! To which pro-mining interests reply: “But you saidwe can ‘use’! How do we ‘conserve’ what we’re already ‘using’!? Ano batalaga?Make up your mind!”

In the meantime, while we try to figure out how todeal with this serious inconsistency in our policy, the mining goes onoperating under systemic flaws.

In practice, then, the Mining Act has certainlybeen faithful to its goals of ‘exploration’, ‘development’ and ‘utilization.’But how did the law treat conservation? Ayun, bahala na raw si Batman,binilin pa niya kay Joker. 

The result is that we have a law that looks greaton paper, but in reality is a great big disaster.

It was not long after the Mining Act was passedwhen we were given a devastating demonstration of the effects of a flawedpolicy that coddles irresponsible mining.

In 1996, a mine tailings pit of the Marcopper minein Marinduque burst, and poured 3 millions tons of toxic waste onto one of thesurrounding rivers, the Boac. We now call that incident the Marcopper MiningDisaster, the biggest and worst we’ve ever had.

There were enough loopholes in the law so that thecompany that owned the majority stake in that mine, Placer Dome, was able tojust take all its investments back and leave without doing anything about thedamage.

No, wait, I think I’m being a little harsh. They did do something. They paid $1million dollars to the people in the community because in their lifetime theycan never fish or plant in that area again. You see, by the time the disasterhappened, the company had already turned the main body of water in the area,the Calancan Bay, into its own personal garbage can. 200 million tons of minetailings were dumped in that bay. That killed off the fish and corals, andpolluted two other rivers on top of that.

So paying the $1 million, that was at leastsomething that Placer did, a bit like saying “I am sorry your entire ecologicalsystem is now dead, so here’s a million dollars. Bye.” Mind you, this is from acompany that made $1 Billion from the entire operation. They must have had areally hard time parting with their money, which is strange because they werenot even Ilocanos, they were Canadians.

The other thing that Placer did was bring snow toMarinduque. On windy days, all that mine waste in the Boac River is blown offonto rice fields and water wells all over the surrounding areas. Ang tawag ngmga taga-Marinduque dun “Snow from Canada.” 

What’s happening in Marinduque now? Fourteen yearslater, their rivers are still dead, and every time it rains, those deposits ofmine wastes still run onto the rivers. The people have lost their livelihoods,and developed deadly diseases from heavy metal poisoning. Marinduque is now oneof our poorest provinces.

The local government is still trying to make Placerpay up, but it hasn’t been easy. Nakarating na sila hanggang sa EstadosUnidos, dun na nila sinampahan ng kaso ang kompanya. Placer is based in thestate of Nevada, where Las Vegas is. Malamang pinapanood nung mga opisyal ngPlacer yung mga laban ni Manny Pacquiao, iniisip nila, “Buti na lang di tayonag-operate sa General Santos!”

Marinduque is sadly not an isolated case. Anothermining operation caused a cyanide spill in Rapu-rapu, Albay, where they havesince experienced five fish kills over the last four years.

Those cases made us see how the law was being usedagainst itself, nagagamit na ang batas para gawin kung ano yungipinagbabawal niya.

For example, I was in a meeting of the Committee onNatural Resources just last week, which was investigating the DENR’s issuanceof an environmental compliance certificate to a mining company which wanted tooperate in Mindoro. What happened was that the provincial government did notwant them there; they could not get the people’s consent. So the companymaneuvered to go over the heads of the local officials and residents by goingto the DENR. Sabi ng local officials sa DENR, “hindi talaga puede andminahan doon sa proposed site kasi critical area ‘yun, at ipinagbabawal ngbatas and paglagay ng minahan sa watershed.” Heto naman ang abogado ng DENR,sinasabi na, “ay hindi, ang ipinagbabawal lang naman ng batas ay ang pagmina saproclaimed watershed (meaning a watershed proclaimed under the NIPASlaw),kaya technically puede yun.”

If you follow that reasoning, it does not matter why the law prohibits miningin watersheds in the first place. It does not matter that mining overwatersheds essentially deprives the communities of drinking water andirrigation for their crops. Basta hindi pa proclaimed ang watershed, ok lang.

This is an illustration of how grey areas in theMining Act are being taken advantage of and used to defeat its ends.

What are the lessons we have learned from theseincidents, as far as our law is concerned?

First off, we really need to get rid of the bigsign on the law that says “Poor country. Will trade environment forinvestment.”We simply can no longer support such a position, especially when recentresearch has revealed that mining has a direct impact on the ecological factorsthat go into food production. If it comes down to it, when given a choice betweena pot of gold and a pot of rice, rice wins.

We need to place a higher value on our naturalresources, and change the prevailing thought that we can profit from ournatural resources without care. Mind you, this is the same thought that droveus to deplete 85% of our forests. Until we stop looking at our naturalresources as platinum credit cards with no limits, then we will continue toextract and use them irresponsibly.

Second, we need to develop a more accuratecalculation of what constitute “costs” and “benefits” in the cost-benefitanalysis of a mining operation. Under “costs” we have to take into account theecological disruption that is unavoidable in this sort of extractive activity.We also have to factor in the losses on the agriculture and fisheries sectors,as well as the effects on food security, communal livelihoods and sustainabledevelopment.

Then we have to add the social costs. The costs ofdisplacing indigenous tribes from their ancestral domain. The costs of takingaway a means of livelihood. The costs of having an entire community becomedependent on a single industry, as often happens in mining communities. 

So with the lessons we have learned, the new law Iam proposing, House Bill 6342, proceeds from an entirely different set ofassumptions. We call it the Alternative Mining Bill, because it is bornfrom the recognition that even if we have a new law, but we stick to the oldways of mining, the new law will be as useless as the old one.

The first thing the law does is admit that there isno such thing as “sustainable mining.” There can be no “conservation” involvedbecause when we dig up minerals, we can’t put them back. They also don’t grow back. And we cannot mineforever. So there is nothing ‘sustainable’ about the whole thing.

I believe, though, as do many others, that it ispossible for us to take our natural resources and use them rationally andwisely. ‘Sustainablemining’ may be a myth, but responsible mining is not. Responsible mining ispossible and completely within our reach.

How does the Alternative Mining Bill propose to dothis?

Well, first, we’re going to take away the HappyMeals. Our country is no longer going to be treated as a fast food chain ofnatural resources; we want to be an exclusive, members-only club where minersare going to have to prove they are cool enough to get in.

Hindi na puede sa proseso ‘yung “invitePhilippines as a friend” at “approve” lang. Sa invitation pa lang, mayrequirements na.

They will have to show us their track records. Didthey mine in other countries? If so, what happened there? If they caused anydamage, or were irresponsible in any way, they can forget about joining ourclub. Permanently.

The bill will give a fair share of the revenues tothe local governments and the indigenous people.

If the mining is on an ancestral domain, the affectedtribe will get a minimum of a 10% royalty on the operation. They can negotiatefor more if they want to. This is revolutionary in that it is a finalrecognition that OWNERSHIP of minerals found in ancestral domains rightlybelongs to these indigenous cultural communities. There will be a presumption thatthe area is part of the ancestral domain even without formal recognition, ifthe indigenous people have historic rights and self-delineation as the basisfor a claim. So if a tribe has always lived in a particular area, we cannotjust go in there without their permission. We have to explain to them carefullyand clearly just what mining means, and we will leave them to decide accordingto their own decision-making processes. If they say yes, we will give them partof the proceeds.

The same goes for the local governments affected.They will get a share of the net revenues of the operation, subject toadjustments according to how the LGU is ranked—whether it is first class orsecond or fourth—and its level of development measured by the Human DevelopmentIndex.

This is just our way of showing respect to thepeople who really suffer the most from mining, especially because our nationalgovernment enjoys most of the proceeds from mining activities. It is easy forus to approve mining applications because it is not Metro Manila that is beingturned upside down. We have to at least compensate these communities for theircontribution to our national development.

The bill also strengthens our monitoringmechanisms. Hindi lang sa una tinitingnan ang compliance, because naturally, thesecompanies initially make themselves look really good on paper to get theconcession. What we are going to do, aside from setting up a monitoring teamthat will regularly police the mining activities, is make periodicreassessments of the mining permits that we issue. Pag nakita natin na hindina maayos ang operasyon—meron tayong nararanasang effect na hindi na-foresee, okaya nagbago ang mga kondisyon sa komunidad, ititigil natin kaagad.

We are also going to require mining companies toput their money where their mouth is. It will not be enough that they complywith all our initial requirements. They will have to put up bonds and fees thatguarantee that they will perform according to how they promised they would.

So for example, they have to take out aninternational environmental insurance contract. The insurance is for eachsource of pollution or disaster, relative to a formulation of the costs of a “worstcase scenario”. If an area is prone to landslides, they have to take outinsurance for that. If the area is prone to landslides and flashfloods, they willhave to insure against both. Para kung may mangyaring katulad ng saMarinduque, may panghahawakan tayo. Kung tumakas man sila, forfeit naman nilaang pera nila.

The contractor is also required to deposit Php10Million every year in the Calamity and Human Rights Protection Fund. But this does not reduce liabilityin case the operations cause damage. If they cause damage that is worth, let’ssay, 20 million pesos, hindi nila puede i-offset at sabihing ten million nalang ibabayad nila.

We also require a Performance Bond equivalent to 50% ofthe projected cost for rehabilitation of the area. If the contractor leaveswithout repairing the destruction it caused, at least we will not be left highand dry and we will have money to spend to do the clean-up ourselves.

The bill sets up a MINE REHABILITATION FUND and thecontractor has to contribute a value based on its work program. This is a trustfund in a government depository bank that we will use for research on how to rehabilitatemined areas. Kulang pa kasi ang research dito, kahit na ang tagal na natingnagmimina.For example, we still do not have a cure for acid mine drainage, one of thecommon effects of mining. If we want to keep mining, it’s high time that westart to find out how to counter the inevitable results.

If you ever get around to reading the Alternativemining Bill (you can find a copy in my website), I hope you won’t be put off byhow long it is. Actually, if you read it through, it is very simple. It justwants the mining contractor to do three specific things: respect no-go zones,respect people’s consent, take accountability for its operations. On the partof our government, the law just wants one thing: subject mining operations togood governance.

What do these things mean?

First, respecting no-go zones. This is just sayingto mining companies: “NO-GO MEANS DO NOT GO”!!! If the proposed sitecovers a watershed, a critical habitat, or an old growth forest, don’t botherapplying there. Huwag nang ipilit. Huwag na ring subukang ikutin ang batasat sabihing ‘hindi naman proclaimed yung watershed’ o di kaya ‘matanda na namanyung gubat, wala nang nakikinabang.’ Basta hindi puede, ‘yun na ‘yun. End of story.

Respecting people’s consent means that thecommunities have to know exactly what they are agreeing to. The “consent” we aretalking about must be FREE PRIOR INFORMED CONSENT. Kailangang alam nilakung ano talaga ang mangyayari kapag pumayag sila. One of the biggestproblems we are experiencing under the current law is that the affectedcommunities give their consent to mining operations because all they hear fromcontractors are promises of jobs and an easier life. Kapag andiyan na yungpagmimina, nagpo-protesta na sila. Ang karaniwang daing: “Hindi naman nilasinabing bubungkalin pala nila yung bundok namin, na hindi na pala namin puedenginumin ‘yung tubig galing sa ilog, at mamamatay pala yung mga hayop at wala nakaming makakain.”

They are not made aware of what will exactly happenswith large-scale mining. We want to put an end to impaired consent because thishas become a source of a lot of destabilization and violence.

When the community feels like it has been cheatedinto agreeing, the people naturally resort to all available means to punishthose who took advantage of their ignorance. Not all the means they use arepeaceful; they go as far as sabotage and even openly arming themselves. Now,the mining companies also fight back, natural lang din dahil naka-invest dinsila, may shareholders din ang kompaniya na kailangan nilang panagutan. Angnangyayari tuloy:human rights abuses, bribery, coercion. General chaos. This has to stop. If wecannot mine without getting rid of these effects, then never mind, we arebetter off not mining at all.

Last, we want accountability from these miningcompanies. Responsible mining entails having accountable mining operators. Ofcourse, mining is still a business, so you can bet these contractors will tryand exact any advantage they can. This is what all the bonds and fees are for:to force theminto being accountable. We like to think that these companies are notinherently evil; they just need a nudge in the right direction. In this case,we nudge them by holding hostage the thing that they hold nearest and dearest:their money.

If we can do all these things, we will haveachieved good governance. This proceeds from the premise that the governmenthas to be able to balance competing interests if it wants to undertake aparticular industry for a protracted period of time.

How do we operationalize this? By funding research;by making the process of obtaining consent fair and free from interference andrespecting the ability of communities to make decisions for themselves; bydistributing the benefits among all the stakeholders; and by keeping theoperation in line with our development goals. This is the absolute minimum thatwe can ask of a responsible government.

We have to keep in mind that the law is meant to bea corrective to natural imbalances. The world, if left alone, is not alwaysperfectly fair, and ideals do not always translate seamlessly to reality. Thelaw is there precisely to tip the scales in favor of the weak when they needprotection, and to reign in forces of destruction wherever they pose a threattoo great to be countenanced.

There are times, though, when the law itself becomesa tool for the very injustice it is meant to prevent. This is where my job as alaw-maker comes in: to ferret out those instances when the law veers off thepath to the good, and to put it back on course. Sometimes that involvesamending parts of a law, and other times it calls for a drastic change.

The Mining Act of 1995 is one those laws I referto, which now seems to be a vehicle for widespread destruction and injustice.It no longer reflects the goals of our citizens and instead has run counter to theinterests of our people and our natural environment. This is the reason why Ifiled the Alternative Mining Bill, to correct a situation where the law, ratherthan protecting us, places us at a disadvantage.

I would like to thank you all for taking the timeto gain some knowledge about mining here in the Philippines. I am heartenedthat young people are not afraid to take on big issues like this. A short timefrom now, we will be making a very big decision about our country, and whetherthat decision will result in a real change or not will be all up to you. 99% ofmaking a good decision really just involves information, as much information asyou can get. In this sense your generation is light years ahead of ours,because you are used to getting information with the click of a button. But Ihope you remember to share that information, to pass it on. If I have saidanything today that you can use in a status update or a tweet, I’ll considerthis a job well done.

Thank you.