The NIPAS Law and the Mining Act

comparative Legal Analysis of the NIPAS Law

The NIPAS Law and the Philippine Mining Act

The NIPAS Law and the Philippine Mining Act (Republic Act No. 7942)

Salient points of the Philippine Mining Act of 1995

n The Mining Act of 1995 provides for the areas that are open to mining operations, which includes timber or forestlands among others.

n It recognizes some areas that are closed to mining and one of those areas are those expressly prohibited under the NIPAS law and others.

n Ancestral lands are not open to mining without prior consent of the indigenous cultural community concerned.

n The DENR is the lead government agency in the implementation of this act

n A local board Provincial Mining

Regulatory Board is limited only for the regulation of small scale mining

n Safety and environmental protection as well as rehabilitation of the areas subject to mining activities are established.

n Mining contractors were granted the rights to cut trees and timbers within the mining area as may be necessary in his mining activity. Likewise, a contractor is also given water rights aside from other rights necessary for his mining operation Assessment

The primary objective of the enactment of the NIPAS law is for the protection of the environment. On the contrary, however, the basic purpose of the Mining Act of 1995 is economic rather than environmental protection. Hence, there is more contrast in the afore-said laws than coherence.

In the NIPAS law a particular area can only be considered a PA if it has been declared as such before the effectivity of the said act or after its approval. The basic principle here is that it is not a PA if there is no declaration as such. This is clearly provided under section 5 of the NIPAS Law. Hence, prior declaration of an area to be a PA is necessary before it can be considered as such. This scenario will lead to dependence on Congress to have an area be declared a protected one.

It is important to note that a PA which is declared and identified as such by congress through its own Republic Act is easier to manage and to protect than that which is only identified by executive issuances and proclamations. In order to better manage a protected area, a “tailored-fit” law must be enacted. This is so because protected areas are diverse. A PA may be as vast as an entire sea or as small as a tiny island. It may be an uninhabited area or an area adjacent to a metropolis. Thus, each PA has its own specific requirements for management.

On the contrary, however, under the Mining Act of 1995, under section 18, thereof, “x x x all mineral resources in public or private lands, including timber or forestlands

comparative Legal Analysis of the NIPAS Law

The NIPAS Law and the Philippine Mining Act

as defined in existing laws, shall be open to mineral agreements or financial or technical assistance agreement applications.” In short basically all areas are open to mining including forest and timberlands and this does not need any further act of congress to be declared as such. It is already a selfexecuting act.

Taking into account these conflicts of the two legislative enactments, if an issue will arise, for example, that a particular “timber or forestland” is part of a proposed protected area, the general rule would be, it is open to mining except when declared as protected area. Thus, even if it is a timber or forestland so long as it is not yet declared a protected area, it is open to mining.

This bias towards mining is manifested in the case of PICOP RESOURCES, INC. VS. BASE METALS, ET AL. G.R. NO. 163509, DEC. 6, 2006, where there is an issue of whether a wilderness area is open to mining or not, where the Honorable Supreme Court said, that:

“Although the above-cited area status and clearances, particularly those pertaining to MPSA Nos. 012 and 013, state that portions thereof are within the wilderness area of PICOP, there is no showing that this supposed wilderness area has been proclaimed, designated or set aside as such, pursuant to a law, presidential decree, presidential proclamation or executive order. It should

be emphasized that it is only when this area has been so designated that Sec. 20 of RA 7586, which prohibits mineral locating within protected areas, becomes

operational.”(emphasis added) Based on the above-quoted decision of the Supreme Court there seems to be no conflict because the wilderness area has not yet been proclaimed as a PA, hence, open to mining. However, the above decision illustrates how easy it is for an area to be declared open to mining than to be declared as a PA. It is on this point that the conflict lies. Although a PA is closed to mining, a better scrutiny of the Mining Act, however, will demonstrate that PAs being closed to mining is an irony. It is an irony because if an area is not yet declared a PA by any law, or executive act, said area is still open to mining despite the fact that it has been identified as an area containing rich biodiversity or rare biophysical attributes. Essentially, before an area is declared a PA, it is open to mining.

This situation also holds true in ancestral lands because although ancestral lands are recognized by the NIPAS law, the Mining Act of 1995 provides that ancestral lands shall be open to mining provided there is prior consent from the indigenous cultural community.

Moreover, it is apparent in both the NIPAS law and the Mining Act of 1995 that there is conflict between the two laws as far as matter of priorities are concerned in relation to the environment, but ironically the lead government agency in charge of the implementation of the two laws is the same, the DENR. If this is the case definitely there will be conflict in resolving some issues that may involve the same set of laws. Hence it is a must that there must be proper specification of roles.

On another point, basically under the