National versus local in Tampakan
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As I have written previously, the proposed Tampakan mine is a 10,000-hectare (actual area to be mined, as I was reminded last week by the Chamber of Mines in its reaction to my previous column, is less than a thousand hectares) copper and gold open-pit mine, heralded as the single biggest foreign direct investment in the country to date. But while Sagittarius Mines, Inc. (SMI), local subsidiary of the giant mining corporation Xstrata, was doing its preparatory studies for the mine, the South Cotabato government enacted a Provincial Environmental Code in 2010 banning open-pit mining in the entire province.
On its face, South Cotabato’s Environmental Code would seem like a valid law of local application, since local government units have the power to promulgate their own ordinances, both under the Constitution and as reiterated in the Local Government Code.
Understandably, this has caused some headaches to the Aquino administration, which is pushing for policy stability in the mining industry, presumably to attract more foreign investments. This apparent displeasure impelled President Aquino to include in his Executive Order 79 on mining released last year a section that dealt with the “consistency of local ordinances with the Constitution and National Laws”. An earlier draft even used the phrase “primacy of National Laws over Local Ordinances”.
The 1987 Constitution and Philippine Mining Act, which under our hierarchy of laws are generally supreme to local ordinances, do not mention any prohibition on open-pit mining, implying supposedly that no ordinance can thus prohibit open-pit mining. This has put the Department of Environment and Natural Resources in a precarious situation: while it needs to work with local governments in the implementation of environmental laws, it also must contend with the policies of its superiors in the national sphere.
To be fair to DENR Secretary Ramon Paje, he initially opted to defer to the South Cotabato open-pit mine ban by rejecting the Environmental Compliance Certificate of SMI for the Tampakan project. But as events unfolded, the Aquino administration, through Executive Secretary Paquito Ochoa, rebuffed the DENR, leading to the issuance in February of an ECC to SMI.
This seeming displeasure by the Aquino administration with the local government of South Cotabato and its ordinance banning open-pit mining is further manifested in a Memorandum Circular issued by the Department of Interior and Local Government late last year, on the strength of an Opinion by the Department of Justice. The Opinion, a form of issuance answering legal queries from other Executive branch agencies, didn’t go as far as to say that the subject local ordinance of South Cotabato is invalid—that is a function of the Judiciary. It did however comment on certain points which the DOJ considers as weaknesses in the position of the South Cotabato government.
Taking its cue from this, the DILG’s Memorandum Circular directed all local governments to comply with Aquino’s EO79, explaining how local governments are inferior to the national government, hence intimating that ordinances passed by local government officials believed to conflict with national law or policy may be “corrected” by the President or be subject of sanctions.
This matter is complex and branches out to other legal issues such as the concept of local autonomy and the relation of the President to local government units. Just these two issues have produced countless of legal controversies that reached the Supreme Court, sometimes decided with consistency, sometimes with marked deviations. There is no case law on this area, though, in relation to environment or natural resources. However, an equally important concept that bears heavily on this discussion is the so-called “general welfare clause” of the Local Government Code.
Under the general welfare clause, every local government unit is empowered to undertake actions that will promote the common interest of its constituents. The Supreme Court jealously guarded this principle in the past, and in fact held on several occasions that newer pieces of legislation giving more onus and power to local governments to do certain things for their constituents are unnecessary and may be subsumed under the general welfare clause.
Does the general welfare clause then give local governments the right to contravene or disregard national laws? Certainly not. Yet while the Philippine Mining Act indeed does not provide that open-pit mining is prohibited or can be prohibited, neither does it say in absolute terms that open-pit mining cannot be prohibited. Its silence implies either possible resolution.
This issue will most likely be laid to rest only by a judicial interpretation of the laws involved, unless one of the parties proverbially blinks. All interested parties will have to remain watchful, as events develop in the coming weeks. One can only hope, and here I am one with the Chamber of Mines and many stakeholders, that sustainable development, that which does not sacrifice the needs of generations for the present, prevails.