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MANILA – Even before it is issued, President Benigno Aquino III’s new mining policy already has earned opposition from political ally Albay Governor Joey Salceda, a former Arroyo administration adviser who shifted loyalties during the 2010 elections.
On the sidelines of a seminar of the International Women Media Foundation last Friday, Salceda called “provocative” a provision in the draft executive order that would insist on the “primacy of national laws” over local ordinances, adding that this could be challenged in court.
The forthcoming EO is aimed at resolving the impasse triggered by the South Cotabato provincial government's ban on open-pit mining. The local ordinance halted what could be the Philippines' biggest mining investment, the $5.9 billion Tampakan copper-gold project of multinationals Xstrata Copper and Indophil Resources.
In the same forum held in Pasig City, Environment and Natural Resources Secretary Ramon Paje said the soon-to-be-released order would stress the superiority of national laws.
“Somehow, we will insist that there is primacy of national law, which is in fact, by the way, a reiteration of the Local Government Code. The Code says that national law prevails. In fact, local government units cannot pass ordinances contrary to national policies,” Paje said.
Salceda said the provision ignored the power of LGUs to decide on the mining activity they want for their area.
“We consider that provocative, in other words, it’s not conducive to a productive national conversation on the policy. The order is not in the national interest. It will breed inequality of income and assets. It will destroy the countryside. It’s definitely anti-rural, anti-LGU,” he said.
To date, 40 provinces have passed ordinances that regulate, if not ban mining altogether in their areas, according to Salceda.
“An executive order does not destroy an ordinance. They have to bring it to the Supreme Court to do a short cut. That executive order will not make our ordinances disappear because they are articulation of democratic aspirations,” the governor said.
“They have to go through each of these 40 ordinances passed by the local legislative bodies. They just can’t simply say these are invalidated and nullified,” he said.
Paje acknowledged that the EO will exist side-by-side with local ordinances, until a “competent authority” rules on the legality of either.
“Let me stick to my function. To me, I will respect the law while it’s there. Even the ordinance, I will respect it,” he said.
Asked if the EO will nullify local ordinances, Paje said: “Actually, I do not know. My point is it has to be rendered by a competent authority whether it is legal or illegal.”
As for small scale mining, Paje said the EO will recognize only Republic Act 7176 or the Act Creating a People's Small-Scale Mining Program in addressing the concerns of the sector.
Presidential Decree 1899, which authorizes governors to issue permits to small-scale miners, will no longer be in effect, he said.
“The Republic Act says that small-scale mining can only happen inside the minahang bayan; meaning that the area will be declared such, and small scale mining can take place there. You can put up waste treatment facility there,” Paje said
Under the draft executive order on mining, the government will move toward joint venture and co-production agreements with private companies rather than the much-availed mineral production sharing agreement, thus allowing the state to get a bigger share of mining revenues, the DENR chief said.
“As of now, our computation is we are losing around P700 million a year from occupation fee alone. When mining companies apply for tenement and it would take, for example, 10 years to perfect the agreement, they sit on the area of 5,000 or 6,000 hectares that remain exclusively to them,” Paje said.
“My point is to remove the speculators, then we make it costly for them to sit on a claim. If they want to fast track the exploration, they have to invest there,” he added.
Salceda said the current profit sharing scheme is skewed against the local government, which receives only two percent.
“How come mining companies are only paying two percent here, while in Australia, they are paying 35 percent?” he said.
He cited Albay, which received only P3.48 million from the operation of Rapu-Rapu Processing Inc., which earned around P7.7 billion.
“It’s so easy to sell mining. They would say, okay we will give you five billion dollar investments. The problem with this is they’re taking away P15 billion,” he said.
“Sa two percent talaga, ang liit-liit para ma-invest. So there would be inter-generational justice or sharing of revenue. That goal does not only belong to me, it also belongs to all Albayanos, at least three generations after,” the governor said.
Salceda said he is against mining because it is destructive to the environment, adding that Rapu-Rapu was approved and began operating before he became provincial governor.
“Mining is earth-moving. The assumption there is after you get what you want from the earth you will restore and rehabilitate it. But give me one mining area that is restored to its old self - there’s none,” he said.
Salceda said all provinces with mining activities remain among the poorest in the country, which dispels the argument that the business improves the local economy.
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