The Tampakan quandary

By Atty. Dante Gatmaytan

ON FEB. 19, 2013, the Department of Environment and Natural Resources (DENR) announced that it issued an environmental compliance certificate (ECC) for the Tampakan copper-gold project of Sagittarius Mining, Inc. (SMI) in Southern Mindanao.

The DENR followed a directive from the Office of the President (OP) dated Feb. 4 (OP Case No. 12-F-159) where Executive Secretary Paquito Ochoa, Jr. rebuked the DENR for failing to issue the ECC. He wrote that SMI had complied with the requirements of the Environmental Impact Statement and should be issued an ECC. Ochoa opined that the DENR did not have to consider the ordinance banning open pit mining in South Cotabato as an obstacle to the issuance of the ECC.

These developments may create the impression that mining in Southern Mindanao is imminent. It is not. In the same announcement, Secretary of Environment and Natural Resources Ramon Paje said that the grant of ECC to SMI was “subject to certain conditions,” and failure to comply may result in the cancellation of the ECC. SMI also needs to satisfy the requirements of other laws such as the Mining Act of 1995 and the Local Government Code of 1991.

For example, Paje explained that under the ECC, SMI is directed to follow the provisions on toxic and solid wastes of laws on clean air and water and mining. SMI must observe appropriate practices on vegetative restoration, engineering structure, land use, and soil and water management, and ensure proper stockpiling and disposal of generated waste materials and erosion control.

Paje added that under the provisions of the Mining Act, SMI must set up a Multipartite Monitoring Team and submit an Environmental Protection and Enhancement Program that would integrate a final mine rehabilitation and decommissioning plan for when the project is terminated or completed. It must set up contingent and trust funds that would address future concerns for mine rehabilitation, wastes and tailings, and final decommissioning.

The Local Government Code adds requirements that project proponents also have to satisfy. Local governments can enact additional requirements under their police power to protect the health of the residents and the environment. The Supreme Court has upheld, for example, a city Ordinance banning the shipment of all live fish and lobster outside Puerto Princesa City for specified periods, as well as a resolution by Palawan prohibiting the catching, gathering, possessing, buying, selling, and shipment of live marine coral dwelling aquatic organisms (Tano v. Socrates, G.R. No. 110249, August 21, 1997).

Under the present state of the law, local government approval of national government projects is required. The Local Government Code in part provides:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. — It shall be the duty of every national agency or government-owned or -controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

SECTION 27. Prior Consultations Required. — No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

The legal landscape has crafted a partnership between the national and local governments on matters that affect the welfare of local residents. It rejects the Marcos era approach where the national government took what it wanted regardless of its harmful impacts on local peoples.

When the Local Government Code was signed into law in 1991, President Corazon C. Aquino said, “I consider the code as the linchpin of my political program. The new law lays down the policies that seek to institutionalize democracy at the local level. It hopes, therefore, to allow the people the widest possible space, to decide, initiate, and innovate, in building a free nation.” Today President Benigno Aquino III is poised to shatter the code. The issuance of the ECC is designed to pressure local governments to relent and to allow the Tampakan project to proceed. The pressure to force local communities to surrender their autonomy may lead to the dismantling of the constitutionally crafted partnership between the national and local governments.

In the face of an assertive national government, the battle to fight for autonomy ultimately rests on the people of southern Mindanao and their officials. Rep. Daisy Avance Fuentes has reclaimed the governorship of South Cotabato in a close race against incumbent Arthur Pingoy, Jr. Fuentes signed the ordinance banning open-pit mining before she ran for a seat in Congress. The peoples’ resolve and respect for the legal system should determine how this quandary can be prudently and fairly addressed.

Dante Gatmaytan is associate professor at the UP College of Law.

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