Lawyers’ groups urge SC to reverse ruling on Mining Act’s constitutionality

By The Philippine Center for Investigative Journalism Seventeen law groups under the Alternative Law Groups (ALG) have filed a motion as intervenors seeking a reversal of a recent Supreme Court decision upholding the constitutionality of the Philippine Mining Act of 1995. In its March 30, 2006 decision, the high court dismissed the petition filed by the Didipio Earth-Savers’ Multi-purpose Association (Desama), to declare Republic Act No. 7942 (the Mining Act) unconstitutional and the Financial and Technical Assistance Agreement (FTAA) awarded to Climax-Arimco Mining Corp. (CAMC), recently renamed Australasian Philippines Mining Inc., illegal. Desama, composed of residents of Bgy. Didipio in Kasibu, Nueva Vizcaya who are directly affected by the area of operations of the Australian mining firm’s FTAA, filed a motion for reconsideration last month to appeal the SC ruling. In filing a motion for intervention yesterday, the ALG, a coalition of 17 law groups engaged in developmental lawyering for the poor and marginalized sectors, has similarly asked the Court to set aside its decision and declare RA 7942 and its implementing rules and regulations, including all FTAAs entered into by the Philippine government as unconstitutional. The ALG argues that: * Section 76 of the Mining Act is not a valid exercise of eminent domain as the taking of private lands for mining purposes do not provide for just compensation and also do not guarantee that it will be for public purpose. * The SC decision violates the public right to due process in summarily declaring that mining is for public benefit. * The same decision violates the public right to equal protection of the law. * The law and its provisions violate the public right to a healthful ecology. “The Mining Act will institutionalize a predator-prey relationship between the Philippines and large-scale foreign mining companies," said lawyer Glenda Litong, ALG national coordinator. Litong claimed that the Philippines will always be at a losing end because the law was crafted to “make foreign mining companies richer at the expense of the human rights of the poor majority of Filipinos who are in constant threat of being dislocated by large-scale mining operators." Contesting the SC’s statement that “mining is an industry which is of public benefit," Litong said the gains from mining do not constitute real contributions to economic growth. “The Mining Act is blind on how the State — which has the exclusive duty to explore, develop and utilize natural resources — would participate in the profits of service contracts such as financial and technical assistance agreements with mining contractors who act as mere agents in the Philippine government’s mining projects. The law also does not guarantee that the government will receive an equitable share on the mining contractor’s profit," she said. The government’s share in the FTAA with mining contractors are only in the form of taxes, duties and other fees paid by the contractors, as stipulated in Section 81 of RA 7942. Moreover, the payment of said fees does not immediately benefit the country, Litong said, as the contractors are given the privilege to first fully recover their pre-operating and property expenses before paying their financial obligations to the government. Litong said such inequitable sharing of profit can be gleaned from governmen’ts macroeconomic data showing that the mining sector’s average contribution to the GDP (gross domestic product) in the last 35 years is only 1.44 percent, and its average export share in the country’s total exports is only 11.27 percent. Employment in the mining sector has also dropped from an annual average of 134,000 jobs in the 1980s to 118,000 in 2004. Provinces with big gold and copper mines like Masbate and Camarines Norte, Litong said, have remained poor. “This only goes to show that while mining has a big potential for addressing poverty, the profits derived from mining operations have not trickled down to the poor," she added. The ALG motion also raised sustainability issues of mining operations, pointing to economic and ecological disasters to communities and the environment — massive dislocation of indigenous peoples, food security problems, deforestation, diminsihed water supply, pollution and competition for energy supply and distribution — that result from the extraction of non-renewable mineral deposits. - PCIJ