WHO WILL MAKE THE FIRST MOVE? EO 79 and Its Rules Subordinating Local Mining Ordinances to National Laws and its Discontents

Elpidio V. Peria
29 September 2012

Just this Thursday, the Philippine Daily Inquirer reported that mining companies will continue to keep their legal options open as the policy guidelines on mining that was supposed to have been changed by the implementing rules and regulations of EO 79 are still full of loopholes, though amidst all this negative sentiment, industry seemed satisfied with the provision of the IRR which affirms the primacy of national laws over local laws, especially in the case of mining.

Today, however, Saturday, the same newspaper came out with the news that the Government has suspended the implementation of the IRR which would have taken effect also today, 29 September, over a provision which according to mining industry reps would shorten the effectivity of existing mining contracts.

Let us, for now, focus our attention on the provision on primacy of national over local laws on mining of that draft IRR which industry was happy about, and see whether such satisfaction has basis or it may just leave some other sectors- the local governments or environment advocates – apoplectic or dismayed.

That provision in the IRR, issued last 10 September 2012, reads:

The Department of the Interior and Local Government (DILG) and the LGUs are hereby directed to ensure that the exercise of the latter’s powers and functions is consistent with and conform to the regulations, decisions and policies already promulgated and taken by the National Government, the Constitution and national laws relating to the conservation, management, development and proper utilization of the State’s mineral resources, particularly RA 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.

On its face, this guideline has a basic problem, can a mere Executive Order limit the operation and in effect, amend, the provisions of the Local Government Code, Republic Act 7160, a law, on how local governments may exercise their powers as granted by the law? Any first year law student knows a law can only be amended by another law, and an Executive Order, while an issuance of the President of the Republic, is not in the category of a law.

Going to what the IRR says, can the exercise of these powers be made consistent with existing laws, like what it says here, the Mining Act and its implementing rules? You can say, fine, but according to whose standards? The standards here can be understood to be what should these exercise of powers should be “consistent” about, but what can be deemed as “consistent”, what does it really mean? To say that the standard is the rules on which should be made the basis for “consistent” action, then the LGUs do not really have a clear idea how to proceed. It must be noted that what is being limited here is the exercise, or the manner on how these powers are to be exercised, the IRR should have laid down some procedures on how the “consistency” may be achieved.

Then, we have the question of who will set these “consistent” standards, the agencies implementing the Mining Act, or the DILG? Or maybe the Mining Industry Coordinating Council, the body set up by EO 79.

Where is Gov. Joey Salceda now who then spoke in behalf of LGUs, when these rules are already here, though not yet legally effective, as it has been suspended – didn’t he express some disquiet over the EO somehow limiting the powers of LGUs over what they can do within their jurisdiction on mining?

To those LGUs who may be the target of this provision of the IRR, have they uttered a squeak in defense of their existing local ordinances, like the South Cotabato Environment Code which banned the method of open-pit mining? Or will they now move to amend these kinds of ordinances to make it “consistent” with what the EO prescribes?

Is the mining industry really so sure about these rules that they are more concerned now with the other provisions of the IRR, or they may be the first to seek to clarify what does “consistency” mean? Perhaps they will want it to be consistent with their plans to further make use of the much-vaunted though unproven, forecast of US$84 billion worth of mineral deposits in the Philippines, according to existing rules, only 1% and slightly more above it, will go to the communities.

What about the environmental advocates, would they wait for either the LGUs or the industry to take the initiative to further define what “consistency” means according to how they will like it to be or will they take it into their own hands and go to the Supreme Court over this issue?

So, who will make the first move? Maybe when the final set of rules will come out, most likely those rules on primacy of national laws over local ordinances may survive unchanged after this moment of indecisiveness of the DENR, then we will know.


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