The Didipio Struggle Against Mining Activities of
Climax-Arimco Mining Corporation: A Summary
Former President Fidel V. Ramos granted the
Financial or Technical Assistance Agreement (FTAA) to Climax-Arimco Mining
Corporation (“Climax”) on 20 June 1994
, a year before Republic
Act 7942, otherwise known as the Philippine Mining Act of 1995, was enacted
into law. The exploration area has been
reduced to 21,465.00 hectares (from the initial contract area of 34,992
hectares. The Mining Act provides only a maximum of 5,000 hectares as mining
project site).
Social
Acceptability
The mining project required a large underground
mining operation and the removal of the local Dinkindi Hill. The Ifugao communities feared farmland would
be destroyed and the village would be used as a catch basin for mining waste.
In response, they formed a barangay-wide organization called The Didipio
Earth-Savers’ Multi Purpose Association, Inc. (DESAMA), a duly organized
people’s organization registered with the Securities and Exchange
Commission.
Other sectors of the community also made their
opposition to Climax’s project known, including a violent protest that led to
the deployment of a company of the Philippine Army, which set up camp beside
Dinkidi Hill. In an effort to quiet
local protests, Climax persuaded barangay officials to enter into a Memorandum
of Agreement (MOA) stipulating that Climax would allocate funds for education
and health programs, as well as promising jobs for residents.
CAMC’S
1999 ECC
An Environmental Compliance Certificate (ECC) was
issued on 11 August 1999
. However, the ECC was subject to several
conditions, one of which was the recommendation of the Regional Development
Council (RDC).
On 17 October 2000
, the RDC rejected the proposal of Climax despite the endorsements of
the Regional Land Use Committee and the Economic Development Committee for the reason that the proposed project is
located within a critical watershed area. Climax requested the RDC for a reconsideration of their decision, but
their previous rejection was sustained in a special meeting on 23
February 2001
.
(Incidentally, until now, there has been
no resolution as to the issue of whether CAMC’s project is within a critical
watershed area.)
Another major condition to the grant of the ECC is
the MOA, which has also been disputed with charges that the approval and
signatures were secured under threat and bribery. In 1997, DESAMA headed the campaign for a
“People’s Initiative,” petitioning for a recall of the MOA, and the conduct of
a referendum to validate the Agreement. (In
the meantime, in the election of local barangay officials, the majority of
those voted were against CAMC’s mining activities such that Barangay Didipio
issued a Resolution revoking the MOA in 2001. Hence, the petition for initiative was withdrawn.)
Notice of
Suspension by the DENR
Because of these issues, former DENR Secretary Alvarez issued a Notice of Suspension of
Exploration Activities on 11 October 2001
until such
time that various issues have been resolved. (No
act has been done by the DENR expressly lifting such suspension. However, the
re-issuance of an ECC to CAMC may effectively result in such lifting of the
suspension.)
CAMC’s
2004 ECC
On 6 August 2004
, the DENR issued an
amended Environmental Compliance Certificate to CAMC. The ECC now covers areas
in Kasibu, Nueva Vizcaya and Cabarroguis, Quirino. In the previous ECC, the
local government consent required was at the level of the barangay and the
provincial councils. Curiously, in the amended ECC, it only required the
endorsement of the Sanggunian Bayan.
(Incidentally,
in December 2004, the DENR approved the assignment of CAMC’s interest in the
project to its local affiliate, Australasian Philippines Mining, Inc.).
Since then, the local government units (LGU) of
Nueva Vizcaya have engaged in a political tug-of-war regarding the endorsement
of CAMC’s mining activities in the province.
On 8 August 2005
, the Sangguniang Bayan of
Kasibu, Nueva Vizcaya, resolved not to endorse CAMC’s mining activities. Surprisingly, even before the documentation
of such resolution was released, the Sangguniang Panlalawigan of Nueva Vizcaya
held a hearing on the endorsement of CAMC’s mining project on 7
September 2005
. A few hours of deliberating later, the Sangguniang
Panlalawigan unanimously endorsed CAMC’s project. (It was relayed later that the actions of the Sangguniang Panlalawigan
resulted from the endorsement of the project by the Sangguniang Kabataan of
Barangay Didipio, Kasibu, Nueva Vizcaya.)
Currently, the conflicting positions of the LGUs
concerned are as follows:
[Sangguniang Kabataan –
endorse (The SK is not a recognized LGU.)]
Sangguniang Barangay –
reject
Sangguniang Bayan – reject
Sangguniang Panlalawigan -
endorse
It bears repeating that the only LGU identified in CAMC’s ECC to give its consent is the
Sangguniang Bayan. Furthermore, no
procedure for appeal from the Sangguniang Bayan’s decision is found in either
the ECC or in existing laws on local governance.
Legal
Questions Raised
In view of the foregoing, there are three basic
issues that arise from the request made by the SK, on behalf of CAMC, to the
Sangguniang Panlalawigan of Nueva Vizcaya to review and possibly overrule the
resolution of the Sangguniang Bayan of Kasibu. These are the following:
1. Does Climax-Arimco Mining Corporation (CAMC) or
the Sangguniang Kabataan have the right to appeal the unfavorable resolution of
the Sangguniang Bayan of Kasibu to the Sangguniang Panlalawigan of Nueva
Vizcaya?
2. Does the Sangguniang Panlalawigan have the right
to review and overrule any and all resolutions and ordinances of the
Sangguniang Bayan?
3. What is the effect of the review to be made by
the Sangguniang Panlalawigan on the resolution of the Sangguniang Bayan to
withhold its endorsement of CAMC’s project?
First, it must be pointed out that the most current
Environmental Compliance Certificate (ECC) of CAMC issued by the Department of
Environment and Natural Resources (DENR) specifically requires the consent of
the Sangguniang Bayan as a pre-condition to the start of its mining
operations. Considering that the ECC
also specifically identifies the areas of CAMC’s mining operations as located
in both Cabarroguis, Quirino and Kasibu, Nueva Vizcaya, it is from the
Sangguniang Bayan of these two localities that CAMC must request permission.
The ECC does not provide for a means by which CAMC
or any other person may appeal the decision of the Sangguniang Bayan whether it
is to grant or withhold its consent.
Likewise, the Local Government Code recognizes the
autonomy of local government units over their respective territories. Several provisions of the Code
require the consent
of local government units to projects before they are implemented. For reference, these provisions are as follows:
“SEC. 2. (c) It is likewise the policy
of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions.
“SEC. 26. Duty of
National Government Agencies in the Maintenance of Ecological Balance. - It
shall be the duty of every national agency or government-owned or -controlled
corporation authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government
units, nongovernmental organizations, and other sectors concerned and explain
the goals and objectives of the project or program, its impact upon the people
and the community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects
thereof.
And,
“SEC. 27. Prior
Consultations Required.- No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and
26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.”
Aside from the autonomy of local government units
from the national government, the Local Government Code also
recognizes the autonomy of each local government unit from other local
government units. Thus, Article
110 of the Local Government Code only requires the secretary of the
Sangguniang Bayan to transmit to the Sangguniang Panlalawigan for review,
copies of approved ordinances and resolutions that approve and adopt local development plans and public investment
programs formulated by the local development councils. Other than the foregoing ordinances and
resolutions, the Sangguniang Bayan is not required to forward its acts to the
Sangguniang Panlalawigan for review.
Even if the rejection of the mining operations of
CAMC is to be considered a resolution pertaining to a local development plan or
a public investment program, the power of review of the Sangguniang
Panlalawigan is limited to a finding if the had the authority to issue
Sangguniang Bayan the resolution or ordinance. The wisdom or the rationale for issuing the resolution is irrelevant.
Clearly, in this case, with the ECC requiring its
prior consent, the Sangguniang Bayan of Kasibu had every right to endorse or
reject the operation of CAMC. Being a
pre-condition to the ECC, the endorsement of the project cannot be imposed on
the Sangguniang Bayan.
When it required consent, the DENR could not have
possibly meant that such endorsement is a mere ministerial act by the
Sangguniang Bayan. Consent connotes a
careful deliberation that can either result favorably or unfavorably on the
applicant. Regardless of whether or not
other local government units agree with the resolution of the Sangguniang Bayan
of Kasibu, the fact remains that its resolution was made within its authority
as recognized and specified by the ECC of CAMC.
Incidentally, the previous ECC of CAMC had required
the consent of the barangay and municipal councils. It is
unfortunate that when Barangay Didipio issued a resolution revoking the
previous endorsement it gave CAMC to proceed with its mining operations, CAMC
was issued a new ECC requiring instead only the consent of the Sanggunian
Bayan.
Again, there is no basis for the appeal of CAMC to
the Sangguniang Panlalawigan to review or even overrule the non-endorsement of
the Sangguniang Bayan of Kasibu of its mining project. The ECC categorically requires the consent of
the Sangguniang Bayan and of said local government council alone. Whether or not the Sangguniang Panlalawigan
issues its own endorsement of the project, the same will not fulfill the
condition stipulated in the ECC.
The Local Government Code also does not provide for
the power of control by the Sangguniang Panlalawigan over the Sangguniang
Bayan. The former, in certain instances
only, has the mere power of supervision. It can only check if the Sangguniang Bayan acts within its authority. It cannot delve into the wisdom, the
rationale, or the justification of the decision. In this case, it is clear that the
Sangguniang Bayan exercised a clear and unquestionable power to withhold its
endorsement. Necessarily, if it acts on
the appeal of CAMC to endorse the project despite the resolution of the
Sangguniang Bayan, the Sangguniang Panlalawigan does so beyond its power of
review and any result therefrom is illegal and, therefore, void.
Legal
Actions Done
Because of the uncertainty that the political
tug-of-war brings to Didipio, it was necessary to request the DENR to recognize
the non-endorsement of the Sangguniang Bayan, which the Legal Rights and
Natural Resources Center did, in a letter dated 19
September 2005
.
In response, the DENR referred the matter to the
DENR Regional Director of Region II. Unfortunately, the Memorandum dated 27
September 2005
misleadingly states
that the said project is only in Quirino province. Thus, we wrote the DENR again to clarify the
actual coverage of CAMC’s ECC. Such
clarificatory letter was also endorsed to the Regional Office.
Other
Incidents
As additional evidence to the efforts of supposedly
unbiased public officials to hasten the procedures for the implementation of
CAMC’s project despite the overwhelming objections thereto, DENR Secretary Michael Defensor issued a
statement vetoing the Sangguniang Bayan’s resolution and giving CAMC the
go-signal for its mining project.
Clearly, such act of DENR Secretary Defensor is a
violation of the autonomy accorded local government units.
As an alter-ego, the President can alter or nullify
the act of any executive department. Definitely, as an alter-ego of the President, the DENR Secretary can exercise
no more power than the President can.
To emphasize that it is
only supervisory power that is exercised by the President and his alter-egos
over local government units, the Local Government Code provides for procedures
by which projects are to be implemented that require the consent of local
government units before they are implemented. (Please refer to afore-quoted Sections 2, 26, and 27 of the Local
Government Code.)
Said provisions establish the need for the consent
of the local government unit to the implementation of a project. There
are no exceptions or short-cuts that will allow for an executive department to
remove such power.
The decision of the Sangguniang Bayan of Nueva
Vizcaya not to endorse CAMC’s project is well-within its power. Similarly to the Sangguniang Panlalawigan, the
DENR may not agree with the Sangguniang Bayan but it is a decision that will
stand despite any opposition even if made by the President herself.
The issue is simple enough and the answer is
clearly provided in the Local Government Code, and, more importantly, in the
1987 Constitution of the Republic of the Philippines
. There is no gray area; there is no room for
discussion.
