Provincial Governors have no authority to issue Small Scale Mining Permits

In the case of Calanza vs. PICOP (G.R. No. 146622, April 24, 2009), it was ruled:

 

PROVINCIAL GOVERNORS HAVE NO AUTHORITY TO ISSUE SMALL SCALE MINING PERMITS

 

Under Presidential Decree No. 1899, applications of small-scale miners are processed with the Director of the Mines and Geo-Sciences Bureau. Pursuant to Republic Act No. 7076, which took effect¹⁰ on 18 July 1991, approval of the applications for mining permits and for mining contracts are vested in the Provincial/City Mining Regulatory Board. Composed of the DENR representative, a representative from the small-scale mining sector, a representative from the big-scale mining industry and a representative from an environmental group, this body is tasked to approve small-scale mining permits and contracts.

In the case under consideration, petitioners filed their small-scale mining permits on 23 August 1991, making them bound by the procedures provided for under the applicable and prevailing statute, Republic Act No. 7076. Instead of processing and obtaining their permits from the Provincial Mining Regulatory Board, petitioners were able to get the same from the governor of Davao del Norte. Considering that the governor is without legal authority to issue said mining permits, the same permits are null and void.

 

Small Scale Mining Laws in the Philippines

Clarificatory Guidelines In The Implementation Of

The Small-Scale Mining Laws

I.  Co-existence of the Small-Scale Mining Laws

1. PD No. 1899 and RA No. 7076 shall continue to govern small-scale mining operations.  For areas not declared as People’s Small-Scale Mining  area  (PSSMA) under RA No. 7076, the pertinent  rules and regulations of PD 1899 shall apply.
2. Mines   Administrative   Order   No.   MRD-41,   Series   of   1984, Department   Administrative   Order   (DAO)   No.  28   and   MRDB Administrative Order Nos. 3 and 3A as provided in DAO No. 96-40, as amended, shall continue to be the implementing rules and regulations of PD No. 1899, while DAO No. 34, Series of 1992, shall continue to be the implementing rules and regulations of RA No. 7076.

II.  Scope of Small-Scale Mining Permits and Contracts

1. Small-scale mining operations in areas not declared as PSSMA shall be covered by Small-Scale Mining Permits (SSMPs) issued under PD No. 1899.  Small-scale mining operations in PSSMAs declared under RA No. 7076 shall be covered by Small-Scale Mining Contracts (SSMCs) pursuant to the pertinent provisions thereof.
2. In case, where a PSSMA is declared covering SSMP areas, the term of the SSMPs, including their renewal, shall be recognized unless such SSMPs are revoked, cancelled or terminated with the cause:  Provided, that the SSMP shall have the option to shift to a SSMC pursuant to the provisions of DAO No. 34, Series of 1997.

III.  Term of a Small-Scale Mining Permit or Contact

1. The two (2)-year term of an SSMP is renewable only once:  Provided, that the pertinent application shall be filed prior to the expiration thereof, among other requirements.  No SSMP shall be renewed unless its two (2)-year term is fully consumed.
2. In the case of an SSMC, no renewal shall likewise be granted unless its two(2)-year term is fully consumed.

IV.  Qualification of Applicants

1. For PD No. 1899, any Qualified Person may apply for an SSMP.  For this purpose, a Qualified Person shall mean a Filipino citizen, of legal age, and with capacity to contract, or a corporation of partnership authorized to engage in mining, registered with the Securities and Exchange Commission, at least 60% of the capital of which is owned t all times by Filipino citizens.
2. For RA No. 7076, only a Filipino small-scale mining cooperative organized by licensed and registered small-scale miners may apply.

V.  Maximum Annual Production

1. For metallic minerals, the maximum annual production under an SSMP/SSMC shall be 50,000 dry metric tons (DMT) of ore, while for non-metallic minerals, the maximum annual production shall be 50,000 DMT of the material itself, e.g., 50,000 DMT of limestone, 50,000 DMT of silica, or 50,000 DMT of perlite.
2. The maximum annual production above shall include low-grade and/or marginal ore, and/or minerals or rocks that are intended for sampling and/or metallurgical testing purpose/s.

VI.  Maximum Capital Investment

1. The maximum capital investment for a single small-scale mining operation   under   PD  No.  1899  or  R.A.  No.  7076   shall  be PHP 10 Million. This shall cover raw, additional and existing capital, such as processing plants, mine and hauling equipment, tools, infrastructures, capitalized exploration and development costs, support facilities and working capital.

VII.  Reliance on Manual Labor

1. Small-scale mining operations under P.D. 1899 or RA No. 7076 shall be largely artisanal with heavy reliance on manual labor and without the use of explosives and/or blasting accessories. For this purpose, a single unit small-scale mining operation, in open cast or shallow underground, shall be prohibited from using sophisticated and/or heavy equipment, i.e., excavators, loaders, backhoes, dozers, drilling machines and/or related or similar equipment for the extraction and/or breakage of materials, as well as hauling equipment within the mining/permit/contract area.

VII.  Reliance on Manual Labor

1. Hauling equipment for the transport of the ore or mined materials from the mine to the shipping point/market are not included in the prohibited use of sophisticated and/or heavy equipment.
2. In case non-sophisticated and non-heavy equipment shall be use, the ratio of labor cost to equipment utilization cost of the small-scale mining operations, including the extraction, processing and/or marketing activity(ies), shall not exceed on (1) for this purpose, the rental, lease and/or contracting of such equipment shall be considered as part of the equipment utilization.

VIII.  Environmental, Safety and Health, and Concerns
The SSMP/SSMC holder shall strictly comply with the environmental, safety  and  health,   and  social  provisions  of  R.A.  No.  7942,   the Philippine Mining Act of 1995, the Small-Scale Mining Laws and their implementing rules and regulations, among others.
VIII.  Environmental, Safety and Health, and Concerns
In particular, the SSMP/SSMC holder shall comply with the following requirements:

1. The Environmental Compliance Certificate (ECC) for a small-scale mining operation shall be secured from the Environmental Management Bureau Regional Office concerned and shall fully conform with the provisions of the Small-Scale Mining Laws, especially with respect to the annual production limit of 50,000 DMT, area of 20 hectares per permit/contact, among others.
2. The following documents shall be required prior to the start of small-scale mining under a SSMP/SSMC:
   1. Potential Environment Impact Report, which is a simplified Environmental Protection and Enhancement Program, and a Final Mine Rehabilitation/Decommissioning Plan duly approved by the Mine Rehabilitation Fund Committee concerned.
   2. Community Development and Management Program, a simplified Social Development and Management Program, duly approved by the Mines and Geosciences Bureau Regional Office concerned.
3. Small-Scale mining operations shall strictly comply with the provisions of DAO No. 97-30 in re:  Small-Scale Mine Safety Rules and Regulations.

 

If the DENR does not act, the Local Government Units Will!

Caveat:  Not sure if this HB has become law.

 

AN ACT EMPOWERING LOCAL GOVERNMENT UNITS (LGUs) TO MONITOR THE ENFORCEMENT OF LAWS, RULES AND REGULATIONS ON ENVIRONMENTAL PROTECTION AND CONSERVATION OF NATURAL RESOURCES
Republic of the Philippines HOUSE OF REPRESENTATIVES Quezon City TWELFTH CONGRESS First Regular Session HOUSE BILL NO. 234 Introduced by HON. JUAN MIGUEL F. ZUBIRI EXPLANATORY NOTE The local Government Code of 1991 was conceived and implemented in order to provide better and faster implementation of service of the government to the grassroots level. Because of the promise that the Code has shown upon its implementation, various mechanisms have been explored to better coordinate the national and local governments and enhance the cooperative interaction between them. Although a lot of laws dealing with the protection and conservation of our environment and natural resources, its complexities make it impractical for the national government to be the sole role in implementing said laws. With this, a more coordinated and cooperative action from the national and local governments on the enforcement of national laws on environmental protection and conservation of natural resources is needed because poor enforcement of such laws leads to environmental problems primarily affecting the local government. Empowering local governments in enforcing and implementing these laws will make them vigilant thereby reducing and preventing the risks of environmental disasters. In view of the above, this bill therefore seeks to increase the role of local governments in monitoring the implementation of national laws on environmental protection and conservation of natural resources. Approval of this bill is earnestly requested. JUAN MIGUEL F. ZUBIRI Representative, 3rd District, Bukidnon Republic of the Philippines HOUSE OF REPRESENTATIVES Quezon City TWELFTH CONGRESS First Regular Session HOUSE BILL NO. 234 Introduced by HON. JUAN MIGUEL F. ZUBIRI AN ACT EMPOWERING LOCAL GOVERNMENT UNITS (LGUs) TO MONITOR THE ENFORCEMENT OF LAWS, RULES AND REGULATIONS ON ENVIRONMENTAL PROTECTION AND CONSERVATION OF NATURAL RESOURCES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Title. This Act shall be known as the “Local Initiative on Environmental Protection and Conservation of Natural Resources Act of 2001”. Section 2. Declaration of Policy. It shall be the policy of the state to promote more effective coordination between the national and local governments. Section 3. Objective. The objective of this Act shall be to establish coordination between the national laws on environmental protection and conservation of natural resources. Section 4. Coverage. This Act shall involve all governments nationwide and shall cover the implementation of all national laws on environmental protection and conservation of natural resources. Section 5. Inspection. Local government executives, members of the local sanggunian and duly appointed officials of the local governments shall have ready access to the facilities and areas of operations of processing and manufacturing concerns and concessions of forest, mineral and aquatic resources in their areas of jurisdiction for the purpose of inspecting and determining compliance with existing laws, rules and regulations on environmental protection and conservation of natural resources. Section 6. Notice of Possible Violations. Local governments, through a resolution of their local sanggunian, shall serve formal notice to the DENR upon discovery of possible violations of national laws on environmental protection and conservation of natural resources by processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources. Section 7. Enforcement. In the event of failure by the DENR to act on the formal notice seven days after it has been served, local governments may, by a majority decision of the local sanggunian, exercise police power, and compel compliance from or impose sanctions on concerned parties, as provided for in the relevant national laws, rules or regulations on environmental protection and conservation of natural resources. Section 8. Validity of Local Government Action. Local government action on the enforcement of national laws, rules and regulations on environmental protection and conservation of natural resources as provided for in Section 3 above shall remain valid until superseded by a subsequent action by the Department of Environment and Natural Resources (DENR) or the courts of the Philippines. Section 9. Jurisdiction. For the purpose of implementing the intent and provisions of this Act, the respective jurisdiction of local governments shall be as follows: 1)                  Barangay government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose area of operation is exclusively within the territorial jurisdiction of the barangay. 2)                  Municipal government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose are a of operation covers more than one barangay but exclusively within the territorial jurisdiction of the municipality. 3)                  Provincial government – processing or manufacturing concerns or concessionaires of forest, mineral or aquatic resources whose are a of operation covers more than one municipality but exclusively within the territorial jurisdiction of the province. Section 10. Section 10. Implementation. The Department of Environment and Natural Resources and the Department of Interior and Local Government (DILG), in consultation with the League of Provinces and cities, League of Municipalities and the Liga ng mga Barangay shall formulate and enforce the rules and regulations necessary for the implementation of the intent and provisions of this Act. Section 11. Repealing Clause. All laws, decrees, orders, rules and regulations or parts thereof inconsistent with provisions of this Act are hereby repealed. Section 12. Separability Clause. The declaration of unconstitutionality or invalidity of any provisions of this Act shall not effect the other provisions thereof. Section 13. Effectivity. This Act shall take effect fifteen days after its complete publication in two (2) newspapers of general circulation in Filipino and English. Approved,