Analysis
High Court Is Courting
Disaster
The country’s indigenous peoples and
upland farmers are being asked by the Supreme Court to forget their
ancestral land claims by allowing mining corporations to exploit mineral
wealth. One environmentalist group says the people will not allow this
thing sitting down.
By Bobby Tuazon
Bulatlat
Once again, the
Supreme Court (SC) showed itself as the court of corporate power and an
institution subsidiary to the President when – in just 11 months - it
reversed its original decision declaring the 1995 Mining Act as
unconstitutional.
While the high
court’s January 2004 was on appeal, a strong lobby was mounted by the
Chamber of Mines of the Philippines, the European and American Chambers of
Commerce, the governments of Canada,
Australia and the United States as
well as moderate labor unions to overturn the high court decision. It was
a big boost too that Environment Secretary Mike Defensor came to the
succor of the powerful lobby groups in line with President Gloria
Macapagal-Arroyo’s policy to revitalize the mining industry.
Presidential pressure
bore upon the high court when Macapagal-Arroyo warned late September that
opening the country to foreign mining investment would solve the country’s
fiscal problems, hinting that the SC can be held to account if it did not
untie the mining act from judicial constraints. Nobody in the “cold and
neutral” chambers of the high tribunal apparently bothered to ask who, in
the first place, caused the “fiscal crisis.”
The SC – the same
judicial institution that upheld martial law and its repressive PDs,
affirmed the onerous Visiting Forces Agreement and other questionable
treaties, and encouraged the criminalization of political offenses –
should now be put on record as beating yet another nail on the burdens
already borne by the people. It has put legitimacy to a mining act seen by
many Filipinos and groups as an instrument that would not only parcel out
the country’s sovereignty and territory to TNC aggression but also lead to
a potential genocide – depriving upland communities of their ancestral
land, livelihood and culture.
The Mining Act of
1995 (RA 7942) was signed into law by President Fidel V. Ramos as part of
the Structural Adjustment Program (SAP) prescribed by the IMF-World Bank
as a precondition for the granting of loans. It was one of Ramos’s
centerpiece programs under his Medium-Term Philippine Development Plan (MTPDP)
that called for embracing trade liberalization, industry deregulation and
privatization. These are the same policies that were backed by then Sen.
Gloria Macapagal-Arroyo when she sponsored the Senate bill calling for the
ratification of the General Agreement on Tariffs and Trade (GATT).
The act declared
state ownership of the country’s mineral assets and allows these to be
expropriated and handed over to 100 percent foreign ownership. It offers
foreign interest exploration permits and mineral agreements granting
25-year operating rights and financial and technical agreements. Investors
are given a 10-year tax holiday, capital tax exemptions, 100 percent
repatriation of profits and capital and other incentives. TNCs could
acquire multiple operations in partnership with local mining firms. Not
since the Marcos dictatorship was this attractive investment incentives
package been offered by an administration.
“Friendliest”
Thus the act was
hailed by TNC mining corporations as the “most foreign-friendly” mining
policy in the world. They had a reason for being jubilant: They –
particularly Canadian, Australian, American and European companies who had
lobbied hard for the act’s legislation here – were unwanted in their own
home grounds and in other countries because of their destructive
operations, among other reasons. Tougher labor and environmental laws in
their own countries forced them to set their eyes on developing countries
like the Philippines and Indonesia where these are either non-existent or
too liberal. Reports said these companies took part in drafting the Mining
Act of 1995.
From the very start,
the act was opposed by cause-oriented groups, indigenous and farmers
groups, environmentalists, church and human rights organizations and
various mining watch groups based abroad. Their claim that, among others,
RA 7942 would only wreak more havoc to the country’s fragile ecology and
hence displace the people’s land and livelihood was vindicated when one
major mining disaster after another took place.
Now the Dec. 1 SC
decision on the mining act will allow Defensor’s Department of Environment
and Natural Resources (DENR) to act favorably on 23 pending applications
for mineral exploration and exploitation all over the country. The
applications, filed mainly by Canadian, Australian, U.S. and European
companies, cover 13 million hectares or 45 percent of the
Philippines’
total land area. The vast swaths of landmass covered by the applications
are inhabited by upland farmers and most especially by indigenous peoples
who comprise 16 percent or 13 million of the country’s current population.
It is also here where the country’s remaining watersheds and forest
reserves – protected, incidentally, by the same Constitution that the SC
cites - are found.
Most mining
applications are in the northern
Philippines’ Cordillera region
which has been exploited by corporate mining for a century. Newmont Mining
Company’s applications alone total 14 with one million hectares covering
all the mountain region’s provinces.
The high court echoed
hook, line and sinker government lawyers’ claim that reversing its
decision is best for the national interest and that the judiciary should
not interfere in the president’s prerogative to decide on what is best for
the country. “The Constitution,” the justices ruled, “should be read in
broad life-giving strokes. It should not be used to strangulate economic
growth or to serve narrow, parochial interests.”
They went further:
"Verily, the mineral wealth and natural resources of this country are
meant to benefit not merely a select group of people living in areas
locally affected by mining activities, but the entire Filipino nation."
How the poor people living in remote upland areas have benefited from the
mineral wealth and natural resources the SC did not bother to explain,
however.
“Parochial”
On this aspect, the
justices – those who voted to reverse the decision - in effect opine that
the democratic rights of upland farmers and indigenous communities are
“parochial” and they should be forfeited for the good of the whole. It
would not be difficult to accept this fallacy if indeed the use of the
country’s mineral resources has redound to the people’s benefit. The truth
of course is that upland farming and indigenous populations have been the
historical victims of land deprivation, development aggression and
militarization. They have become “squatters in their own land.” The wealth
looted from the exploitation of mineral wealth – and, for that matter,
other natural resources – has gone to the investors, raw material
exporters as well as to bureaucrats and generals, the landlords in
Congress and the rogues in robes.
Since when has
defending the ancestral domain of upland populations become “parochial”
and “narrow”? The historical defense of ancestral land against mining,
large-scale logging and development aggression is not only intended to
protect the local communities’ communal land, sacred grounds, culture and
other resources but also to preserve these from unwarranted destruction
and plunder by narrow, enterpreneurial interests. The whole nation
benefits.
It is when these
lands were opened up for corporate plunder particularly through legal
chicanery and the use of force that devastation to not only humans but
also to the land and environment takes place. Under the Mining Act, the
right of expropriation includes the right to desecrate mountains, denude
forests, use or divert water and, worst of all, the right to evict native
settlers. The social and economic costs of mining are not only immediate –
they are far-reaching affecting not only lowland farms and fishing grounds
but also other areas and the national economy. The fact that the
Philippines remains poor and is considered as one of the world’s top
disaster-prone countries attest to the human, economic and ecological
destruction that the government-backed corporate plunder has caused.
The SC also concurred
on government’s claim that foreign mining investment could bring in $800
billion in revenues, open thousands of jobs and boost the country’s
overall economic growth.
This line of thinking
of course raises questions and tosses the possibility that on the
contrary, it is the SC and the President, the DENR and mining TNCs that
are expected to benefit from the court ruling who actually represent the
“narrow and parochial interests” in this issue. Those who oppose the
mining act have argued that the Philippines has been mined of its gold,
copper and other mineral wealth for a century now and yet the economy has
remained stagnant and without any basic industries to speak of. Mining and
adjacent areas are where one finds some of the most neglected and
depressed communities in the country. In many mining projects, workers
have gone on strike because of low wages, job hazards and union
harassment.
Mining in the
Philippines is an extractive and for-export-only industry that brings
profit to the mining producers without promoting the country’s own
industrialization at all. True, as Macapagal-Arroyo says, the country used
to be among the world’s top gold and copper producers. But did mineral
production remove the country from being in the lowest rung of developing
countries?
Aside from this, the
human and environmental costs far outweigh whatever revenues that the
government claims would bring to the country. In environmental impact
alone – and, unlike in the oil and gas industry where 95 percent of the
extracted resource is used – only less than 10 percent is used in the
mineral industry. As a result, according to the World Resources Institute,
large quantities of waste rock, low-grade ores, tailings and slag must be
disposed of causing devastation to the environment.
With the SC taking
the side of government, corporate power and foreign capital, the people
have nothing else to do but to gear for a renewed struggle in defense of
their land, resources and environment. As an environmentalist group says,
the people particularly the IPs and upland farmers will not let this one
legal disaster sitting down. Bulatlat
BACK TO TOP ■
PRINTER-FRIENDLY VERSION ■
COMMENT
© 2004 Bulatlat
■ Alipato Publications Permission is granted to reprint or redistribute this article, provided its author/s and Bulatlat are properly credited and notified. |