Common ground

A confrontation between the local mining industry and the government has been expected ever since President Duterte appointed antimining advocate Gina Lopez to head the Department of Environment and Natural Resources.

Early this month, things came to a head: Lopez ordered the closure of 23 mines and the suspension of five others across the country. The situation was somehow calmed by Malacañang, which stated as a policy that there would be due process before any closure or suspension is implemented. But last week, the DENR chief stepped up her antimining campaign by canceling 75 MPSAs (mineral production sharing agreements), triggering more confusion and antagonism.

Mining companies accuse Lopez, whose family owns broadcast network ABS-CBN, of arbitrarily shutting down or suspending their operations without giving them the chance to contest the allegations against them. Lopez denies this, claiming that the DENR has provided each of the affected mining companies with a copy of the complete mining audit, and that her decision is the result of a six-month review process.

Expectedly, Malacañang is backing a member of Mr. Duterte’s official family, but with a caveat—that the DENR should establish that due process has been followed before enforcing applicable laws, rules, or regulations.

Apart from the issue of due process, the problem seems to lie in the severity of the orders. Lopez herself admitted that the mining audit technical review committee’s recommendation was to penalize “erring” mines with fines, but that she didn’t agree and instead proceeded to order closures or suspensions using her prerogative as DENR chief and basing her decisions on her policy “that there should be no mining in watersheds.” A new problem has cropped up—the definition of a legally proclaimed or protected watershed and what Lopez refers to as “functional” watersheds.

The vagueness of Lopez’s orders has also caused an uproar in the industry. For example, Marcventures Mining and Development Corp. (MMDC) said it received an order from the DENR canceling its MPSA, but the order “failed to identify specific environmental violations which would warrant cancellation” of its contract with the government, and only said that it was operating in a declared watershed. The problem is that MMDC’s

MPSA was approved in 1993, prior to the issuance of the watershed declaration under Presidential Proclamation No. 1747 in 2009, which stipulates that “prior rights must be respected.”

What is needed now is to find a common ground. There should be acceptance on the government’s part that mining per se is not objectionable; otherwise, it would have been banned worldwide. There should also be acceptance that so-called responsible mining is possible, as Australia and Canada have shown. There should likewise be due process in a fair audit, after which the DENR can close or suspend or fine mining companies that have actually violated the law, and respect the rights of others that have been operating in accordance with the law.

Ultimately, Lopez will not have the final say on the implementation of the ordered closures and suspensions, as well as the cancellation of MPSAs. It will be up to the President. The interagency Mining Industry Coordinating Council, which has been tasked to review the DENR’s orders, is only recommendatory and companies can appeal their case to the President.

If this common ground is not found, the damage will be huge—legal suits here and possible arbitration cases overseas given that some mining companies here are owned by foreign investors. Also, failure to find a common ground will result in mining companies taking all legal actions deemed necessary and exhausting all remedies available to prevent the implementation of the closure and suspension orders and cancellation of MPSAs.

The worst-case scenario, according to some private miners, is this: The Duterte administration will face a big number of court cases similar to those involving the Naia 3 controversy, which the government eventually lost.