EXECUTIVE ORDER NO. 79, July 06, 2012
INSTITUTIONALIZING AND IMPLEMENTING REFORMS IN THE PHILIPPINE MINING SECTOR PROVIDING POLICIES AND GUIDELINES TO ENSURE ENVIRONMENTAL PROTECTION AND RESPONSIBLE MINING IN THE UT…
16, Article II of the 1987 Constitution provides that the State shall
protect and advance the right of the Filipino people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature;
WHEREAS, Section
1, Article XII of the 1987 Constitution seeks a more equitable
distribution of opportunities, income, and wealth; a sustained increase
in the amount of goods and services produced by the nation for the
benefit of the people; an expanding productivity as the key to raising
the quality of life for all, especially the underprivileged; and that in
the pursuit of these goals, all sectors of the economy and all regions
of the country shall be given optimum opportunity to develop;
WHEREAS, Section
2, Article XII of the 1987 Constitution provides that the exploration,
development, and utilization of mineral resources shall be under the
full control and supervision of the State;
WHEREAS, further
to Section 2, Article XII of the 1987 Constitution, which recognizes
the small-scale utilization of resources by Filipino citizens,
small-scale mining shall be recognized as a formal sector of the
industry;
WHEREAS, Section 22, Article II of
the 1987 Constitution provides that the State recognizes and promotes
the right of indigenous cultural communities within the framework of
national unity and development, and Republic Act (RA) No. 8371, or the
Indigenous Peoples Rights Act (IPRA) of 1997, recognizes further the
indigenous peoples’ (IPs) right to develop their lands and natural
resources within their ancestral domains, subject to their free, prior,
and informed consent (FPIC);
WHEREAS, Section
7, Article X of the Constitution provides that local government units
(LGUs) are entitled to an equitable share in the proceeds of the
utilization and development of the national wealth within their
jurisdiction, and the Local Government Code of 1991 provides that LGUs
have the duty and authority to protect and co-manage the environment and
enhance the right of the people to a balanced ecology;
WHEREAS,
Section 2 of RA No. 7492, otherwise known as the Philippine Mining Act
of 1995, provides that it shall be the responsibility of the State to
promote the rational exploration, development, utilization, and
conservation of the country’s mineral resources through the combined
efforts of government and the private sector in order to enhance
national growth in a way that effectively safeguards the environment and
protects the rights of affected communities; and,
WHEREAS, as
recommended by the Climate Change Adaptation and Mitigation and
Economic Development Cabinet Clusters in a Joint Resolution dated 16
March 2012, a six-point agenda was adopted, which sets the direction and
lays the foundation for the implementation of Responsible Mining
Policies, foremost among which is to improve environmental mining
standards and increase revenues to promote sustainable economic
development and social growth, both at the national and local levels,
NOW THEREFORE, I, BENIGNO S. AQUINO III, President
of the Philippines , by virtue of the powers vested in me by the
Constitution and existing laws, do hereby order the following:
SECTION 1. Areas Closed to Mining Applications. Applications for mineral contracts, concessions, and agreements shall not be allowed in the following:
a) Areas expressly enumerated under Section 19 of RA No. 7942;
b) Protected areas categorized and established under the National Integrated Protected Areas System (NIPAS) under RA No. 7586;
c)
Prime agricultural lands, in addition to lands covered by RA No. 6657,
or the Comprehensive Agrarian Reform Law of 1988, as amended, including
plantations and areas devoted to valuable crops, and strategic
agriculture and fisheries development zones and fish refuge and
sanctuaries declared as such by the Secretary of the Department of
Agriculture (DA);d) Tourism development areas, as identified in the National Tourism Development Plan (NTDP); and,
e)
Other critical areas, island ecosystems, and impact areas of mining as
determined by current and existing mapping technologies, that the DENR
may hereafter identify pursuant to existing laws, rules, and
regulations, such as, but not limited to, the NIPAS Act.
Mining
contracts, agreements, and concessions approved before the effectivity
of this Order shall continue to be valid, binding, and enforceable so
long as they strictly comply with existing laws, rules, and regulations
and the terms and conditions of the grant thereof. For this purpose,
review and monitoring of such compliance shall be undertaken
periodically.
SECTION 2. Full Enforcement of Environmental Standards in Mining. The
Government in general, and the Department of Environmental and Natural
Resources (DENR) in particular, in coordination with concerned LGUs,
shall ensure that environmental standards in mining, as prescribed by
the various mining and environmental laws, rules, and regulations, shall
be fully and strictly enforced, and appropriate sanctions meted out
against violators thereof.
In line with the above, only those
who are able to strictly comply with all the pertinent requirements
shall be eligible for the grant of mining rights, pursuant to the
applicable provisions of RA No. 7942.
SECTION 3. Review of the Performance of Existing Mining Operations and Cleansing of Non-Moving Mining Rights Holders. To
ensure compliance with environmental standards, laws, rules and
regulations, and to rationalize the management and utilization of
minerals toward sustainable development, a multi-stakeholder team led by
the DENR shall conduct a review of the performance of existing mining
operations. The said review shall be based on guidelines and parameters
set forth in the specific mining contract or agreement and on other
pertinent or applicable laws, rules and regulations, such as the Mining
Act of 1995 and the Labor Code. Appropriate action shall be immediately
taken against proven violators based on the findings and recommendations
of the review.
SECTION 4. Grant of Mineral Agreements Pending New Legislation. No
new mineral agreements shall be entered into until a legislation
rationalizing existing revenue sharing schemes and mechanisms shall have
taken effect. The DENR may continue to grant and issue Exploration
Permits under existing laws, rules, and guidelines. The grantees of such
permits shall have the rights under the said laws, rules, and
guidelines over the approved exploration area and shall be given the
right of first option to develop and utilize the minerals in their
respective exploration area upon the approval of the declaration of
mining project feasibility and the effectivity of the said legislation.
The
DENR shall likewise undertake a review of existing mining contracts and
agreements for possible renegotiation of the terms and conditions of
the same, which shall in all cases be mutually acceptable to the
government and the mining contractor.
SECTION 5. Establishment of Mineral Reservations. Potential
and future mining areas with known strategic mineral reserves and
resources shall be declared as Mineral Reservations for the development
of strategic industries identified in the Philippine Development Plan
and a National Industrialization Plan, pursuant to the pertinent
provisions of RA No. 7942, after proper consultation with all concerned
stakeholders such as, but not limited to, residents of affected
communities, LGUs, the business sector, and non-government and civil
society organizations.
This shall be without prejudice to the
agreements, contracts, rights and obligations previously entered into by
and between the government and mining contractors/operators.
SECTION 6. Opening of Areas for Mining through Competitive Public Bidding. The
grant of mining rights and mining tenements over areas with known and
verified mineral resources and reserves, including those owned by the
Government and all expired tenements, shall be undertaken through
competitive public bidding. The Mines and Geosciences Bureau (MGB) shall
prepare the necessary competitive bid packages and formulate the proper
guidelines and procedures to conduct the same, which shall include
ensuring that the social acceptability of the proposed project has been
secured.
All other mining rights and tenements applications shall be processed and approved through existing procedures.
SECTION 7. Disposition of Abandoned Ores and Valuable Metals in Mine Wastes and Mill Tailings.
All valuable metals in abandoned ores and mine wastes and/or mill
tailings generated by previous and now defunct mining operations belong
to the State and shall be developed and utilized through competitive
public bidding in accordance with the pertinent provisions of law.
In
the case of existing mining operations, all valuable metals in mine
wastes and/or mill tailings shall automatically belong to the State upon
the expiration of the pertinent mining contracts and shall be similarly
developed and utilized through public bidding; provided, that
where two or more mine sites, covered by their respective mining
contracts, share a single tailings pond, both or all mining contracts
must expire before the State can claim ownership over the said tailing
pond.
The State’s assumption of responsibility over the
structures and facilities relating to mine wastes and mine tailings
shall be without prejudice to any liability/liabilities that may be
found against mining contractors for any harm or damage caused by said
structures and facilities, mine wastes and mine tailings prior to the
said assumption of responsibility in accordance with existing laws,
rules, regulations and the terms of the grant of the mining rights.
SECTION 8. Value-Adding Activities and the Development of Downstream Industries for the Mineral Sector.
The DENR, in coordination with the Department of Trade and Industry
(DTI), Department of Science and Technology (DOST), National Economic
and Development Authority (NEDA), other government agencies concerned,
the mining industry, and other stakeholders, shall submit within a
period of six (6) months a national program and road-map, based on the
Philippine Development Plan and a National Industrialization Plan, for
the development of value-adding activities and downstream industries for
strategic metallic ores.
SECTION 9. Constituting the
Climate Change Adaptation and Mitigation and Economic Development
Cabinet Clusters as the Mining Industry Coordinating Council (MICC).
The Climate Change Adaptation and Mitigation and Economic Development
Cabinet Clusters, shall constitute themselves into an interagency forum
to be known as the Mining Industry Coordinating Council (MICC).
The
MICC shall be co-chaired by the Chairpersons of the two (2) clusters
and shall have the following additional members: Secretary, Department
of Justice (DOJ), Chairperson, National Commission on Indigenous Peoples
(NCIP), and President, Union of Local Authorities of the Philippines
(ULAP).
SECTION 10. Powers and Functions of the Council. The Council shall have the following powers and functions:
a)
Submit a work plan within sixty (60) days from the effectivity of this
Order for the implementation of this Order and other reforms related to
the mining industry;
b) Ensure continuing dialogue and coordination among all stakeholders in the industry;
c)
Conduct and facilitate the necessary capacity and institutional
building programs for all concerned government agencies and
instrumentalities;
d) Conduct an assessment and review of all
mining-related laws, rules and regulations, issuances, and agreements
with the view to formulating recommendations to improve the allocation
of revenues and risk between the government and the mining sector, to
enhance coordination between the National Government and LGUs to ensure
implementation of mining laws and regulations, and to properly regulate
small-scale mining participants and ensure that they are accountable to
the same environmental and social obligations as large-scale mining
companies;
e) As may be directed by the President, constitute
and create a Task Force Against Illegal Mining and seek the assistance
of all law enforcement agencies, such as, but not limited, to the
Philippine National Police (PNP) and the Armed Forces of the Philippines
(AFP) to ensure strict compliance with relevant laws, rules and
regulations;
f) Serve as the Oversight Committee over the operations of Provincial/City Mining Regulatory Boards (P/CMRBs);
g)
Request the assistance of any government agency or instrumentality,
including government-owned and controlled corporations and local
government units (LGUs), in the implementation of this Order;
h) Submit periodic reports to the President on the status of the implementation of this Order; and,
i)
Perform such other functions and acts as may be necessary, proper or
incidental to the attainment of its mandates and objectives, or as may
be directed by the President.
SECTION 11. Measures to Improve Small-Scale Mining Activities. To improve and address issues on small-scale mining, the following measures shall be undertaken:
a)
Small-scale mining activities shall comply with RA NO. 7076, or the
People’s Small-Scale Mining Act of 1991, and the Environmental Impact
Statement System requirements under Presidential Decree (PD) No. 1586;
b)
Pursuant to RA No. 7076, small-scale mining operations shall be
undertaken only within the declared People’s Small-Scale Mining Areas or
Minahang Bayan;
c) Pursuant to Section 24 of RA No.
7076, P/CMRBs in provinces and cities where they have not been
constituted shall be operationalized within three (3) months from the
effectivity of this Order;
d) Small-scale mining shall not be
applicable for metallic minerals except gold, silver, and chromite, as
provided for in RA No. 7076;
e) The use of mercury in small-scale mining shall be strictly prohibited; and,
f)
Training and capacity building measures in the form of technical
assistance for small-scale mining cooperatives and associations shall be
conducted by the concerned government agencies.
SECTION 12. Consistency of Local Ordinances with the Constitution and National Laws/LGU Cooperation. The
Department of the Interior and Local Government (DILG) and the LGUs are
hereby directed to ensure that the exercise of the lattter’s powers and
functions is consistent with and conform to the regulations, decisions,
and policies already promulgated and taken by the National Government
relating to the conservation, management, development, and proper
utilization of the State’s mineral resources, particularly RA No. 7942
and its implementing rules and regulations, while recognizing the need
for social acceptance of proposed mining projects and activities.
LGUs
shall confine themselves only to the imposition of reasonable
limitations on mining activities conducted within their respective
territorial jurisdictions that are consistent with national laws and
regulations.
Concerned government agencies, in particular the
DENR, the Department of Budget and Management (DBM), and the Department
of Finance (DOF), are hereby directed to ensure the timely release of
the share of LGUs in the National Wealth pursuant to Section 289 of RA
No. 7160, or the Local Government Code of 1991. These agencies are
likewise directed to study the possibility of increasing LGUS’ share as
well as granting them direct access similar to existing arrangements
with the Philippine Export Zone Authority (PEZA).
LGUs, DENR,
and the MGB working together shall strictly implement RA No. 7076, to
ensure the protection of the environment, address various issues in
small-scale mining, and ensure that violators thereof are subjected to
appropriate administrative and criminal liability.
SECTION 13. Creating a One-stop Shop for all Mining Applications and Procedures. The
DENR is hereby directed to establish an inter-agency one-stop shop for
all mining related applications and processes within six (6) months from
the effectivity of this Order. The DENR shall issue authority to verify
mineral deposits only for areas open to mining, as defined in this
Order; provided, that no Mineral Production Sharing Agreement
(MPSA), Financial and Technical Assistance Agreement (FTAA), Joint
Venture Agreement (JVA), or Co-Production Agreement (CPA) shall be
approved without the FPIC of the concerned IPs and compliance with the
social acceptability requirement of the communities affected. All
concerned government agencies and instrumentalities, including but not
limited to the DENR-MGB, NCIP, DOF, and concerned LGUs are hereby
directed to ensure an efficient and effective consolidation of
functions, and to cooperate and render assistance as may be necessary.
SECTION 14. Improving Transparency in the Industry by Joining the Extractive Industries Transparency Initiative. In
order to improve transparency, accountability, and governance in the
sector, the government shall support and commit participation in the
Extractive Industries Transparency Initiative (EITI). The DENR is
mandated to ensure that mechanisms are established to operationalize the
EITI in the mining sector, in consultation and coordination with the
mining industry and other concerned stakeholders.
SECTION 15. Creation of a Centralized Database for the Mining Industry.
The DENR is hereby directed to create a centralized database of all
mining-related information. The database shall initially include all
available data on the industry from all government agencies and
instrumentalities. The database shall be publicly accessible,
transparent, complete, and comprehensive. The database shall be created
within six (6) months from the effectivity of this Order.
Information
and data gathered from the conduct of Resource Accounting or Full-Cost
Benefit Analysis Studies, in line with the Wealth Accounting and
Valuation of Ecosystem Services (WAVES) and the National Climate Change
Action Plan (NCCAP), shall also be made part of the centralized
database.
SECTION 16. Integrated Map System to Include Mining Related Maps.
Current and existing efforts to create an integrated map system for the
common and uniform use of all government agencies and instrumentalities
shall include all mining-related maps, such as, but not limited, to
mining tenement maps, geo-hazard and multi-hazard maps, ancestral lands
and domains, and protected areas under the NIPAS, among others. The maps
in the system, including the mining-related maps, shall guide all
planning and decision-making processes.
Areas closed to mining
operations, as provided for in Section 2 of this Order and in other
pertinent laws, rules, and regulations, shall be clearly defined and
delineated under the integrated map system.
SECTION 17. Use of the Programmatic Environmental Impact Assessment.
The DENR and the Environmental Management Bureau (EMB) shall study the
adoption of the Programmatic Environmental Impact Assessment (PEIA) in
the implementation of the Philippine Environmental Impact Statement
System (PEISS) under PD No. 1586, for mining projects and related
activities. The necessary amendatory rules and regulations shall be
issued for the implementation of this Section.
The DENR-EMB is
also hereby directed to study the use and implementation of the PEIA for
other industries and activities covered by the PEISS.
SECTION 18. Funding. All
government agencies involved in the implementation of this Order are
authorized to allocate from their existing funds such amounts as may be
necessary for the budgetary requirements that may be needed to pursue
the objectives of this Order, subject to the usual government accounting
and auditing rules and regulations.
SECTION 19. Implementing Rules and Regulations (IRRs). The DENR, working with the MICC, shall issue the pertinent IRRs within sixty (60) days from the effectivity of this Order.
SECTION 20. Separability Clause. If
any provision of this Order is declared invalid and unconstitutional,
all other provisions unaffected shall remain valid and subsisting.
SECTION 21. Repealing Clause.
All other rules, regulations and issuances or parts thereof that are
inconsistent with this Executive Order are hereby repealed or modified
accordingly.
SECTION 22. Effectivity. This Order shall take effect immediately upon its publication in a newspaper of general circulation.
DONE, in the City of Manila, this 6th day of July in the year of our Lord Two Thousand and Twelve.
(Sgd.) PAQUITO N. OCHOA, JR. Executive Secretary