Introduction
st
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The Mining legislation
There are three laws governing mining in the
Philippines:
a. Republic Act No. 7042, otherwise known as the
Philippine Mining Act of 1995 (the Mining Act) and
its Implementing Rules and Regulations embodied in
Department of Environment and Natural Resources
(DENR) Administrative Order (AO) No. 2010-21
(the Mining Act IRR);
b. Republic Act No. 7076 or the Peoples Small-Scale
Mining Act of 1991 (the Small-Scale Mining Act);12
and
c. Executive Order No. 79 entitled Institutionalising
and Implementing Reforms in the Philippine Mining
Sector, Providing Policies and Guidelines to Ensure
Environmental Protection and Responsible Mining in
the Utilization of Mineral Resources (the Mining
Policy) and its Implementing Rules and Regulations
embodied in DENR Administrative Order No. 2012-
07 (the Mining Policy IRR)
The Mining Act is the main mining legislation in the
Philippines and governs large-scale exploration,
development and utilisation of mineral resources; the
Small-Scale Mining Act, as its title suggests, regulates
small-scale mining and limits the same to Filipino
citizens. The Mining Policy is an executive fiat
recently enacted on 6 July 2012. It makes several
innovations on the Mining Act, specifically in the
following areas: expansion of areas closed to mining
applications, establishment of mineral reservations,
competitive public bidding for areas open to mining,
and compliance with the social acceptability
requirement of the communities affected. It also calls
for the strict implementation of the provisions of the
Small-Scale Mining Act and prohibits the use of
mercury in small-scale mining activities.
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During the 1980s and early 1990s, there was, however,
a decline in the state of the mining sector that led to
the enactment in 1995 of Republic Act No. 7942,
otherwise known as the Philippine Mining Act
(Mining Act), as a means to boost the industry.
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This law became a subject of controversy and
eventually was challenged before the Supreme Court
for being unconstitutional. The Supreme Court in the
case of La Bugal-BLaan Tribal Association Inc. vs.
Ramos 4 finally resolved the issue on the legality of the
Mining Act including those relating to financial and
technical agreements ruling that:
All mineral resources are owned by the State. Their
exploration, development and utilization (EDU) must
always be subject to the full control and supervision of
the State. More specifically, given the inadequacy of
Filipino capital and technology in large-scale EDU
activities, the State may secure the help of foreign
companies in all relevant matters especially
financial and technical assistance provided that, at
all times, the State maintains its right of full
control. The foreign assistor or contractor assumes all
financial, technical and entrepreneurial risks in the
EDU activities; hence, it may be given reasonable
management, operational, marketing, audit and other
prerogatives to protect its investments and to enable
the business to succeed.
When the Supreme Court upheld the Constitutionality
of the Mining Act, this resulted in faster growth in
mineral exports, percentage share to total exports,
employment in the mining sector and in the total paid-
up investments in mining.
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HISTORY OF MINING LAWS IN THE
PHILIPPINES
The 1987 Constitution is the supreme law governing
the Philippine mining industry. Article XII on
National Economy and Patrimony provides:
Section 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of
agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and
utilization of natural resources shall be under the full
control and supervision of the State.
The Philippines follows the Regalian Doctrine. Under
Section 2, Article XII of the 1987 Constitution, all
natural resources, including minerals, are owned by
the state. The state may however, enter into
agreements such as MPSAs, FTAAs, CPAs and JVAs
for the exploration, development and utilisation of
natural resources. Title to minerals cannot be
transferred to private parties, specifically the permit
holders and mineral agreement grantees. The permits
and agreements contain a stipulation that the grant
thereof does not bestow beneficial ownership of the
minerals to the holder or grantee.17 Also, pursuant to
the Regalian Doctrine, the state owns all mineral lands
that are considered inalienable.18 Thus, a private
individual or entity, whether a Filipino citizen or
otherwise, cannot own mineral lands. Patented titles to
mineral lands perfected under the Philippine Bill of
1902 shall, however, continue to be owned by the
grantees thereof.
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Just read
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Governing principle
GOVERNING PRINCIPLES The Implementing
Rules and Regulations (DENR Administrative Order
No.96-40) of the Philippine Mining Act of 1995
provides strict adherence to the principle of
SUSTAINABLE DEVELOPMENT. This strategy
mandates that the needs of the present should be met
without compromising the ability of the future
generations to meet their own needs, with the view of
improving the quality of life, both now and in the
future. Sustainable development provides that the use
of mineral wealth shall be pro-people and pro-
environment in sustaining wealth creation and
improve quality of life. The principles of
SUSTAINABLE MINING operates under the
following terms: Mining is a temporary land use for
the creation of wealth, leading to an optimum land use
in post-mining stage as consequence of progressive
and engineered mine rehabilitation works done in
cycle with mining operations; Mining activities must
always be guided by current Best Practices in
environmental management committed to reducing the
impacts of mining while efficiently and effectively
protecting the environment. The wealth created as a
result of mining accruing to the Government and the
community should lead to other wealth-generating
opportunities for people in the communities and for
other environment-responsible endeavors. Mining
activities shall be undertaken with due and equal
regard for economic and environmental
considerations, as well as for health, safety, social and
cultural concerns. Conservation of minerals is
effected not only through technological efficiencies of
mining operations but also through the recycling of
mineral-based products, to effectively lengthen the
usable life of mineral commodities. The granting of
mining rights shall harmonize existing activities,
policies and programs of the Government that directly
or indirectly promote self-reliance, development and
resource management. Activities, policies and
programs that promote community-based,
community-oriented and procedural development
shall be encouraged, consistent with the principles of
people empowerment and grassroots development.
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Regulatory body
The MGB under the DENR is the agency tasked with
implementing the Mining Act and its IRR. It accepts,
evaluates, reviews and recommends to the DENR
Secretary the approval of applications for exploration
permits and mineral agreements. The environmental
laws and standards are implemented by the EMB.
The Mining Policy also created a Mining Industry
Coordinating Council (the MICC), which is an
interagency body15 tasked, inter alia, with
implementing the Mining Policy and conducting an
assessment and review of all mining-related laws,
rules and regulations, issuances and agreements, so as
to be able to make recommendations to improve the
allocation of revenues and risk between the
government and the mining sector.
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The NO- GO ZONES