by Joel Roja/Asianjournal.com
MANILA — Several partylist representatives and affected individuals on Monday filed separate petitions anew before the Supreme Court seeking to scrap Republic Act 7942 or the Philippine Mining Act of 1995 for being unconstitutional.
In the first petition, Reps. Ana Hontiveros-Baraquel (Akbayan), Lorenzo Tañada III and Teodoro Casiño of BAYAN and several persons affected by mining activities in three municipalities in Davao Oriental also asked the Court to issue a temporary restraining order (TRO) enjoining the Department of Environment and Natural Resources (DENR) from acting on any application for Minerlal Production Sharing Agreements (MPSA) and to nullify the seven MPSAs that the department had already reassigned to respondent mining firms Hallmark Mining Corporation and Austral-Asia Link Mining Corporation.
The MPSAs cover 17,215.4474 hectares covering the three municipalities of Mati, San Isidro and Governor Generoso, all in the province of Davao Oriental.
The petitioners argued that R.A. 7942 is unconstitutional as it violates Article XII, Section 2 of the 1987 Constitution. The provision states that “all lands of public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests, timber, wildlife, flora and fauna and other natural resources are owned by the State.
It added that “exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.”
Such agreements, according to the same provision, may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.
However, the petitioners asserted that Section 80 of R.A. 7942 and Section 212 of Department Order 96-40 violate the Constitution since they provide that the government share shall be excise taxes.
“This fiscal arrangement is glaringly contradictory to the Constitutional provision that the development of the national patrimony should be based on an equitable distribution of wealth,” the petitioners claimed.
The petitioners said DENR had no basis to enter into MPSAs as the law did not constitutionally provide for the basis for sharing. Such defect in R.A. 7942 limiting the share of the state to excise taxes cannot be remedied by any executive issuance.
The petitioners cited as example the findings of the Bastes Commission on the Rapu-Rapu incident which showed that the excise tax collection in 2005 from Rapu-Rapu Mining, Inc. was P2,065,511.54.
The corporation, meanwhile, in a span of a fourmonth operation, garnered revenues amounting to P134.4 million, which means that only a measly 1.5 percent of the revenues went to the government as share.
“These figures are glaringly inequitable to say the least. These figures merely represent loss of potential income, without factoring the valuation of the loss of livelihood, utilization of other natural resources, loss of income from long-term exploitation, and most of all, the human rights impact of these operations,” the petitioners added.
Likewise, the petitioners said the basic rights of the people are at risk if the MPSAs will not be voided.
They noted that studies have shown that one of the effects of open pit mining being conducted by the respondents is the pollution of the groundwater due to toxic wastes, as well as sedimentation.
“The groundwater has been found to be the water source of the residents of the affected areas. The contaminated water shall be detrimental to the health and lives of those who depend on the groundwater, as well as damaging to the farmlands being irrigated by the watersheds, not to mention stressing the ecological habitat of marine life on Pujada Bay which the residents along the coastal areas are dependent on,” they said.
In another petition also filed by the three party-list solons and several other individuals argued that Section 81 of the Mining Act is unconstitutional because it is a violation of the rule on delegated legislation.
It also sought the nullification of DENR Order 07-12 as it usurps legislative power. The said order provides for the “Revised Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance Agreements (FTAA).
They added that Section 81 and department order (DAO) 07-12 are unconstitutional as they allow the inequitable sharing of wealth contrary to Article XII, Sections 1, 2, and 4 of the 1987 Constitution.
The petitioner said Section 81 and DAO 07-12 “nullifies the Philippine state’s role as owner-in-trust and as an investor in mining and minerals utilization of the country, as the government’s source of revenue will largely rely on the collection of taxes, fees and royalties, as part of the state’s inherent police and taxation powers.
“The seriously flawed fiscal regimes of the Mining Act of 1995 clearly puts into serious doubts the government’s claims about a huge financial and economic benefits that the Filipino people will gain from opening our country to large-scale mining,” they added.
As of present, existing MPSAs in various parts of the country gobble up 442,804.07 hectares that include sizeable indigenous lands. Two FTAAs cover 447,308.26 hectares that include indigenous communities, with 54 more FTAA applications targeting 2,350,643.34 hectares of land in the country.
“We have long-decried the human rights, environmental and other destructive impacts of R.A. 7942 on mining-affected communities, including indigenous people’s lands. Even the state and the Filipino citizens will also stand to lose economically and financially if we will rest content with these provisions and with the Mining Act itself,” the petitioners said.