Clashing laws, gnashing jaws

Who is to prevail when two apparently conflicting laws provide authority over a certain domain or issue to two different entities? Which policy is to take precedence when two laws prescribe conflicting courses of action on the same issue or locality?

Case in point: the controversy over the issuance of bans on open-pit mining by two provincial governments, over the agitated protests of the mining industry. The provinces invoke their authority over local development and local resources, bestowed upon them by the 1991 Local Government Code (Republic Act 7160). But then there’s the 1995 Mining Act (RA 7942), a national law that opened up the industry to new mining investments and provided legal guidelines and mechanisms for undertaking such. It is under this law that large new mining investors have come in over the past decade, spending billions on exploration activities and various infrastructures to be able to extract metallic ores from our mineral-rich lands all over the country.

The problem is that for most of the large industry players, open-pit mining—which involves scraping away the soil and digging out large volumes of land, including flattening mountains—is the only economic method of extracting the minerals. For certain precious minerals like gold, digging long and deep tunnels can be a feasible alternative in certain areas, and is a preferred mining mode by those who fight for conservation of biodiversity. But mining via tunneling is not without its own downsides, including hazardous and often sub-human working conditions in the mine tunnels.

One can easily grasp the rationale for each side’s strongly held positions. The local governments assert their authority for self-determination as espoused by the country’s commitment to devolution and decentralization that the Local Government Code (LGC) enshrined into law. And in the often-unavoidable tradeoff between protecting the environment and pursuing certain economic activities like mining, certain LGUs have made a clear but controversial choice. Those on the other side argue that a law on national policy such as the Mining Act must prevail over the authority given to LGUs by the LGC; besides, the former law came after the latter. So who is right?

A similar conflict arises out of provisions in the Mining Act and the National Integrated Protected Areas System (Nipas) Act (RA 7586), defining certain areas in the country as protected areas. These are “portions of land and/or water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation.”  The problem is, mineral exploration permits have been granted by the government under the Mining Act in areas that have also been declared as protected areas under the Nipas Act, thus agitating many environmentalist groups. The reasoning sounds valid enough: If an area is already declared a protected area under the Nipas law, why should mineral exploration even be permitted when any subsequent mining activity on the area would be prohibited under the law anyway?

Yet another clash between two laws, this time between the LGC and the Indigenous Peoples Rights Act (RA 8371 or Ipra), is causing difficulties in at least one mining area I am familiar with. In the IP community hosting a major mining project, a tense conflict has arisen between the tribal chieftain and the local barangay captain. The former refuses to recognize the authority of the latter, who also happens to be a member of the IP community, and thus subject to the former’s traditional authority. The chieftain asserts that the Ipra makes their area, covered by a Certificate of Ancestral Domain Title (CADT), technically private property over which he exercises full authority as the tribal leader. On the other hand, the barangay captain, whose barangay covers a substantial part of the CADT area, asserts authority over the barangay on the basis of political authority bestowed by the LGC. While the chieftain asserts authority on the basis of the law (Ipra), the barangay captain likewise asserts authority over the barangay on the basis of the law (LGC). The problem is exacerbated by a historical disagreement between the two stemming from circumstances around the entry of the mining project into their area.

This gray area of authority over the mining company’s host community due to clashing laws now compromises the development of this depressed community and the lives of its poor residents. And it is not for lack of financial resources, of which they are awash. Millions of pesos in mine royalties have been paid to the tribal leaders. On top of that, the mining company has provided substantial assistance directly to the community under their Social Development Management Program mandated by law (Mining Act).  And besides the clash of laws leading to a local political stalemate, there is a legal vacuum on proper accountabilities in the disposition of the large sums paid to IP leaders in mining royalties.

In the end, all these legal inconsistencies and infirmities are matters for the decision of the courts, but one wishes that such gray areas of legislation could have been avoided at the outset through more diligent lawmaking. Since the conflicts are there, it is incumbent upon Congress to rectify them via corrective legislation, and I find it hard to understand why it  hasn’t done so all these years. It is high time, indeed long overdue, that it revisited and revised the above laws—among others I don’t have space to discuss here—and ease these legal tensions that have held us back in many ways for far too long.

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E-mail: cielito.habito@gmail.com