OBSERVATIONS AND POSSIBLE ADVOCACY POSITIONS REGARDING THE MINING SECTOR

OBSERVATIONS AND POSSIBLE ADVOCACY POSITIONS REGARDING THE MINING SECTOR

Erle Frayne D. Argonza

Date: 10 February 2005

[Written for the Office of the President/multi-agency task force on mining advocacy.]

BACKGROUND

The paper summarizes the observations of this analyst regarding the mining sector. Some prospective advocacy positions are advanced at the concluding part of the report. The references were largely the Mining Act and related reports coming from the DENR

Being a constituency-enabling agency, this organization most appropriately considers the ‘constituency criterion’ in addressing problems/issues of advocacy. That is, in regard to mining, the relevant question is: do the constituency groups benefit at all from a revitalized mining sector? This paper will try to answer this question in particular.

DEFINITION OF TERMS

For easier comprehension, a number of key terms are operationally defined as follows:

State: Government of the Republic of the Philippines, with all of its agencies and instrumentalities.

Market: All economic institutions aimed at seeking profits, notably: single proprietorships, partnerships and corporations.

Civil Society: Non-profit institutions, specifically: NGOs, Peoples Organizations or POs, brotherhoods/sisterhoods & civic clubs, associations (in the generic sense) and cooperatives and social enterprises (civil society with market functions).

Community: Territorially-bound, localized grouping of people, with associational life and unique culture.

Constituencies: Social sectors, localized community groups.

POTENTIALITIES, BARRIERS, ADDRESSING PROBLEMS

The developmental and wealth-producing potentials of the mining sector are enormous. The sector is noticeably in the doldrums though. Inspite of the enormous levels of mineral resources possessed by the nation, the (mining) sector produces only around 1% of the GDP, and employs merely 104,000 human resources or 0.30% of the labor force.  Barriers to entry of market players combine institutional, policy, fiscal, technological, environmental, infrastructural and micro-level productions factors. A combination of technological, environmental and financial factors led to the closure of big metallic mineral producers in particular (i.e. Atlas , Marcopper, Lepanto, Dizon).

Legislative measures were enacted to address the policy side of the sector.  Among these are: (a) Presidential Decree No. 1899, “Establishing Small-Scale Mining As A Dimension In Mineral Development,” and (b) Republic Act No. 7942, the Philippine Mining Act of 1995. DENR Administrative Order No. 96-40 was put into place in 1997 to serve as the administrative framework of the sector.

A debate raged for some time regarding the constitutionality of the Mining Act. The debate had since been resolved, with the Supreme Court deciding to defend the legality and propriety of permitting foreign investors to engage in mining within the Philippine territory, both onshore and offshore, at a 100% ownership scheme. The SC decision finally resolved a key policy barrier, and is expected to lead to synergy of efforts between the state and the market to revitalize mining activities and increase mining’s contribution to GDP in the short run.

POLICY ENVIRONMENT AMID SHIFTING POLITICAL REALITIES

Based on a review of the Mining Act of 1995, it can be inferred that the policy environment for the sector had become more definitive. Such a definitiveness had encouraged more market players to signify their intention to participate in the sector, from exploration to extraction. However, ambiguities lie in the operational side of the policy, which has implications to revising the present policy. It is quite premature to say though that a comprehensive national policy on mining prevails, this being the product of series of trilateral talks among state, market and civil society players.

As can be observed from the introductory provisions of the law, mining intervention is largely a state-market synergy. To quote Section 2 (Declaration of Policy) of Chapter 1 (Introductory Provisions):

It shall be the responsibility of the State to promote their rational exploration, development, utilization and conservation through the combined efforts of government and the private sector…

Such a policy statement that delimits mining to a state-market synergy, without civil society provision, is explained by the fact that liberal economic policies were the wave of the past three (3) decades when the law came out. The ‘ideological field’ changed the states’ role from ‘provider state’ to ‘enabler state’, while providing greater space for market players to operate—presumably on ‘level playing field’. The policy regime comprised of: liberalization, deregulation, privatization, decentralization, tax reforms, downsizing, and liberalized currency exchange.

However, while the policy statement excluded civil society, the other chapters of the law provides for the roles of civil society players along the various phases of mining operations. Invariably mentioned were the following players: NGOs, cooperatives, associations, indigenous cultural communities or IPs, and local communities. This is in addition to small-scale miners covered by previous laws.

Such a recognition of civil society as industry stakeholder is a response to the broad challenges posed by a strong civil society on state and market players to fast-track the  redistribution of power, resources and values. Even traditionally market-oriented sectors and engagements must provide space for civil society to participate in the sector, while corporate social responsibility turned into a powerful wave in the corporate world.

In sum, using a typical cost-benefit analysis, the policy environment has become more definitive so as to ensure that a revitalized mining would economically benefit market players, most specially but not exclusively corporate players, as well as government coffers in terms of added taxation (e.g. excise tax). However, there are remaining kinks concerning the social and economic benefits of communities and constituencies, or civil society, that must be addressed. Hopefully, a Comprehensive National Policy will eventually address the ambiguities in the constituency side of the equation.

While relevant issues concerning civil society stakeholders are not sufficiently addressed, thorny questions will be raised and tensions will prevail during the implementation of the Mining Act. Many detractors will claim that civil society has been reduced to a kibitzer in the Mining Act and related documents, a contention that is not altogether invalid. The Mining Act campaign of government will also be largely biased for market players in the absence of more definitive provisions for civil society benefits. The constituency side must therefore be addressed with immediacy and dispatch, to avoid making the mining sector a mitigating factor in destabilization campaigns.

PROVISIONS CONCERNING CONSTITUENCIES/CIVIL SOCIETY

Non-Governmental Organizations

Among the functions of NGOs is policing mining activities. Ch. 2 (Authority of the  Bureau) stipulates that “the Director may deputize, when necessary, …duly registered nongovernmental organization (NGO) or any qualified person to police all mining activities.”

Another important role of NGOs concerns the environmental side of mining. Section 70 (Environmental Impact Assessment) under Chapter 11 (Safety and Environmental Protection) stipulated the following:

That a completed ecological profile of the proposed mining area also constitute part of the environmental assessment. People’s organizations and nongovernmental organizations shall be allowed and encouraged to participate in ensuring that contractors/permittees shall observe all the requirements of environmental protection.

Indigenous Peoples

The Mining Act was very clear about IPs as stakeholders in the sector, from the exploration phase through the post-production phases such as royalty provisions. Chapter 3 (Scope of Application) contained two (2) relevant sections on IPs, to note:

Sec . 16. Opening of Ancestral Lands for Mining Operations. No ancestral land shall be opened for mining operations without the prior consent of the indigenous cultural community concerned.

Sec. 17. Royalty Payments for Indigenous Cultural Communities. In the event of an agreement with an indigenous cultural community pursuant to the preceding section, the royalty payment, upon utilization of the minerals shall be agreed upon by the parties. The said royalty shall form part of a trust fund for the socio-economic well-being of the indigenous cultural community.

It can be remarked that the provisions are progressive enough. However, Section 17 does not contain specific  benchmark ceilings that define how much can the IP community receive as royalties. In the absence of such a benchmark ceiling, the IP group can end up at the losing end, as royalties can be defined in the marginal figures by the mining companies involved. Also, corrupt leader-officials from the IP side can appear on the scene to aggrandize a large portion of the royalties.

Not only that. IP groups can always cite the USA case as the most progressive instance of IP treatment. In the USA today, various ‘affirmative action’ measures have taken place to ensure that the native Americans become co-owners of gambling centers, tourist spots and various market concerns in their localities. Many native Americans today own middle class residential structures and live middle class lives precisely because they all benefit as being co-owners rather than just be treated as beneficiaries of trickles from ambiguous royalties. The mining sector doesn’t seem to be prepared to cross swords with any IP group citing the USA case.

Cooperatives and Associations

Cooperatives and associations were clearly stipulated as among the permissible participating market players in the sector. They were lumped up together with partnerships and corporations, notably in Chapter IV (Exploration Permit). The chapter defined the geographical limits of operations by market players, without discriminating against any particular form of stakeholder.

Whether in onshore or offshore operations, the limits applying to partnerships and corporations will likewise be benefited by cooperatives and associations. Let us cite for example Secion 22 (Maximum Areas for Exploration Permit):

(a)    Onshore, in any province –

For partnerships, corporations, cooperatives, or associations, two hundred (200) blocks.

(b)   Onshore, in the entire Philippines –

For partnerships, corporations, cooperatives, or associations, four hundred (400) blocks.

      © Onshore, beyond five hundred meters (500 m) from the mean low tide level –

For partnerships, corporations, cooperatives, or associations, one thousand (1,000) blocks.

Corollary provisions in Chapter 5 (Mineral Agreements) also stipulated the same stakeholders as participating market players. The chapter set the limits on maximum areas for mineral agreements, without discriminating against any form of stakeholder, inclusive of cooperatives and associations.

There was no clear definition, however, of association. Just exactly what sort of associations can participate in mining intervention in a given area? This question must be answered by the operating guidelines affecting the sector.

[Note: 1 block approximately equals 81 hectares.]

Marginal Miners

Aside from stating that a previous law (RA 7076) already defined the scope and limits of participation by small-scale miners in the sector, the Mining Act also contained important provisions affecting the said miners. Chapters 4 and 5 referred to them as ‘individual miners’, with maximum ceilings of geographical areas considerably smaller that those of partnerships, corporations, cooperatives and associations.

Mining Communities

The Mining Act also cared to ensure the development of mining communities. Chapter 10, titled “Development of Mining Communities, Science and Technology,” articulated on provisions about the locality being a beneficiary of a mining intervention within its folds. Section 57 (Expenditure for Community Development and Science and Mining Technology) states: “A contractor shall assist in the development of its mining community, the promotion of the general welfare of its inhabitants, and the development of science and mining technology.”

Another section of the same chapter, Sec. 61 (Donations/Turn Over Of Facilities), defined how a mining community can benefit from the post-operational facilities left behind by a mining operator. The section stipulates the following:

…Prior to cessation of mining operations occasioned by abandonment or withdrawal of operations, on public lands by the contractor, the latter shall have a period of one (1) year therefrom within which to remove his improvements; otherwise, all the social infrastructure and facilities shall be turned over or donated tax-free to the proper government authorities, national or local, to ensure that said infrastructure and facilities are continuously maintained and utilized by the host and neighboring communities.

Labor

First of all, the latest mining law is very friendly towards children, and strictly prohibits child labor. Section 64 (Mine Labor) under Chapter 11 (Safety and Environmental Protection)  contained the following unambiguous provision: “No person under sixteen (16) years of age shall be employed in any phase of mining operations and no person under eighteen (18) years of age shall be employed underground in a mine.”

Labor in FDI (foreign direct investments) controlled firms have relevant provisions for Filipino labor, as contained in Chapter 10 (Development of Mining Communities, Science and Technology). To cite the key provisions:

Sec. 59. Training and Development. A contractor shall maintain an effective program of manpower training and development throughout the term of the mineral agreement and shall encourage and train Filipinos to participate in all aspects of the mining operations, including the management thereof. For highly-technical and specialized mining operations, the contractor may, subject to the necessary government clearances, employ qualified foreigners.

Sec. 62. A contractor shall give preference to Filipino citizens in all types of mining employment within the country insofar as such citizens are qualified to perform the corresponding work with reasonable efficiency and without hazard to the safety of the operations. The contractor, however, shall not be hindered from hiring employees of his own selection, subject to the provision of the Commonwealth Act No. 613, as amended, for technical and specialized work which in his judgement and with the approval of the Director, required highly-specialized training or long experience in exploration, development or utilization of mineral resources: Provided, that in no case shall each employment exceed five (5) years or the payback period as represented in original project study, whichever is longer…

While the provisions are sterling instances of ‘affirmative action’ measures for Filipino labor, certain quarters can raise the howl that labor is treated in the traditional way as wage labor. There is no provision at all that stipulates a far more progressive scheme on profit sharing. We may as well anticipate such howls to come, added to another age-old issue of  ‘nationalization’ pertaining to the sector.

Environment

The concern for ecological balance was taken up in one whole chapter (Ch. 11/Safety and Environmental Protection). This chapter signifies the changes in developmental approaches, in that this time around development cannot be left to market forces alone. The risk to a purely market-driven development is the further degradation of the environments and destruction of human habitats mitigated by severe ecological damages. Section 63 stipulates provisions on mines safety and environmental protection. Section 64 defines mine labor, as previously mentioned.

Other interesting and relevant sections are: Section 68 (Reports of Accidents), which penalizes mining firms that fail to report mining-related accidents within a given time; Section 69 (Environmental Protection), which mandates participating market players to undertake an environmental protection and enhancement program; Section 70 that mandates the conduct of Environmental Impact Assessment, with civil society participation as mentioned earlier; and, Section 71 (Rehabilitation) that requires contractors and permittees to “technically and biologically rehabilitate the excavated mined-out, tailings covered and disturbed areas to the condition of environmental safety…,” with stiff penalties for failing to undertake rehabilitation.

EFFECTING WINNABLE ADVOCACY BY CLARIFYING POLICY & OPERATIONAL AMBIGUITIES

This analyst argues that the mining campaign could be a potentially winnable one, and can be a focal point to reverse prevailing perceptions about the state. It is further argued that the crux of the winnability lies in providing clearer, unambiguous guarantees to the social benefit & acceptability aspect of the entire mining sector. The following positions are advanced for deliberations and adoption:

Draft a Comprehensive National Mining Policy. Such a policy must pay respect to the evolving trend of tripartite state-market-civil society synergy in all forms of developmental endeavors and all phases of program and project execution. The national policy must ensure that constituencies are co-partners in the sector and are not just mere kibitzers that can ‘perform a role’ when contingencies arise.

Call for a Mining Summit that should involve precisely the three (3) sectoral stakeholders, namely: state, market, civil society. The output of the summit should be clear, definitive and doable policy agenda that can serve as input for the drafting of the national policy and revision of the mining act to incorporate the changes in the policy framework.

Revise the mining act in accordance with the summit covenant drafted and adopted thereof. The law should not just limit the participation of NGOs to monitoring activities and the conduct of EIAs but should be broadened to include  participation in the periodic review and assessment of the entire mining industry and drafting of policy covenants in the succeeding years.

Define specific benchmark ceilings for the royalties that should go to the IP communities where mining is involved. Such a ceiling should not be lower than five percentum (5%) of the income after taxes derived from the specific cite. [5% is the standard brokerage fee in various enterprises.] The accounting system that can define the benchmark should likewise be clearly defined. The basis for the royalty should be ‘social capital’, which means that the norms, values, institutions of the community must be properly valuated and regarded as equity or equivalent for royalty purposes.

Define clearly what ‘association’ means, by defining who can constitute an ‘association’ that can participate as a market stakeholder. Should local, broad-based community associations be involved in mining, as co-partners of partnerships, corporations and cooperatives, than the ‘social capital’ of the members should be considered as an equity capital equivalent to no less than five percentum (5%) of the authorized capital requirements for the concerned mining project.

Stiffer penalties on those market stakeholders that violate child labor policies should be added to the mining act. Section 64, Chapter 11 of the law should be amended accordingly.

Provide incentives to partnerships and corporations that will share profits to their laborers. The higher the percentage of profits shared to the workers at any given time, the greater the incentives, notably tax incentives.

END