It has been said that in a contest between “no go zone” and a well-heeled mining company, it is easier to chase away the “no go zone” than to chase away the mining firm. After all, the mining company does not operate to preserve and conserve the environment. The mining company operates to extract minerals for profit, and the environment is the obstacle. Where laws, rules and regulations can be complied with, well and good, as long as in the end the minerals extraction takes place. Where laws cannot be complied with, they need to be set aside rationally, either legally or extra-legally, often in ways that legitimate mining companies would rather avoid. Compliance with existing law and their implementing rules and regulations is easier, again, not in order to preserve the environment as is the intent of the law, but to overcome it as the obstacle to the goal of the firm. This includes dealing with the relevant people in charge, attracting them, arguing with them, convincing them, “motivating” them, making sure they are on board, as much as possible “within budget,” and all within the law. Here, the spirit of the environmental law may be sacrificed, but the spirit of the mining company is preserved.
For those who believe that the environment must be preserved against the spirit and logic of the mining industry, whose track record of environmental sensitivity in this country and abroad is less than sterling, the laws must be such that they demand strict compliance in favor of the environment. Once old-growth forests are destroyed or areas of high bio-diversity are violated, they can never be restored. The high-value signatures on legal documents, all won within the law and within budget, will not undo the environmental damage.
“No go zones” need therefore to be “no go zones strictly,” and not just “for the meantime” or sometimes. For environmental damage in these areas can be irreparable, affecting future generations. The laws defining the “no go zones” and the executive issuances like EO 79 implementing them must define them near absolutely, that is, to a point where the spirit of mining would undermined in their violation, and those who are compliant in their violation shall be held criminally accountable.
“No go zones” are not “no go zones” if permission can be attained relatively easily to make them “go zones.”
Based on existing laws, EO 79, Sec 1 lists five areas closed to mining applications. “Applications for mineral contracts, concession, 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. “
First, it is no mean thing that this formulation has been made, and forms part of the Aquino administration’s policy on mining. Notable is the explicit mention of such as prime agricultural lands, lands under CARP, tourist development areas, and other “critical areas” like “island ecosystems.” If the spirit of EO 79 is not just to allow mining but also to respect the environment, as it purports to, then its officials must stand true to the spirit of “no go zones.” Where discretion needs to be exercised over these areas, it needs to be exercised in favor of “no go” rather than “go” – no matter the power or violence of motivation in the other direction.
Second, let us consider in the law how “no go” “no go” is.
E0 79 refers to areas enumerated under RA 7942. These are:
“In military and other government reservations, except upon prior written clearance by the government agency concerned;
“Near or under public or private buildings, cemeteries, archeological and historical sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructures projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned;
“In areas covered by valid or existing mining rights;
“In areas prohibited by law;
“In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, …
“Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under RA 7586, Department Administrative Order no 25 s 1992 and other laws.
Except for areas under NIPAS, “No go zones” can be undermined at the discretion of government official or private persons. If these were obstacles to the intentions of mining, with enough determination and logistics, they could be overcome.
It is different with areas protected under NIPAS. “Disestablishment of a protected area” needs ultimately an act of Congress, upon recommendation of the majority [only!] of the relevant board after an appropriate study (Cf. RA 7586, Secs. 7 and 11). Here, the “no go zone” is more “no go” than “go,” but for the determined mining company seeking to extract minerals for profit, it is not an insurmountable obstacle.
Back to EO 79, Sec 1 c, this important declaration against mining in agricultural areas, CARP lands, fisheries and the like, is contingent on the declaration and the discretion of the Secretary of Agriculture as well as of the Secretary of Agrarian Reform. On orders of their superior or motivated by other concerns, they could exclude agricultural lands from their list of agricultural or reformed lands.
It is similar with the Tourism Development Areas. What is included today in the National Tourism Development Plan can be excluded tomorrow. While Palawan may be included today, it may be excluded tomorrow. Today, the official list of “Tourist Development Areas” includes Davao del Sur and Sultan Kudarat. That should be interesting for the proponents of the SMI/Xstrata project in Mindanao.
Finally, EO 79, Sec 1 e, mentions under critical areas “island ecosystems.” Environmentalist would certainly include here the small island of Rapu-Rapu in Albay and the beautiful island of Sibuyan in Romblon. Here the consequences of Acid Mine Drainage can be catastrophic. But Mindanao is also an island eco system which includes its mountains, watersheds, rivers, flora, fauna and human beings dependent on this island ecosystem. The government entity tasked to name the island ecosystems, however, is the Department of Energy and Natural Resources, which is according to present law hopelessly conflicted. On the one hand it is charged to protect the environment. On the other hand, it is charged to exploit natural resources.
“No go” zone clearer after EO 79? Not really. “No go” means maybe.