Mining Law and Environmental Laws Lecture 11 PDF

Republic Act No. 7942 (The Philippine Mining Act of 1995) H.D.A. Reyes I Correlation 2 Article 12, Section 2 of Philippine Constitution. Declaration of Policy. ■ ■ All mineral resources in public and private lands within the territory and exclusive economic zone of the Republic of the Philipp...

Republic Act No. 7942 (The Philippine Mining Act of 1995) H.D.A. Reyes I Correlation 2 Article 12, Section 2 of Philippine Constitution. Declaration of Policy. ■ ■ All mineral resources in public and private lands within the territory and exclusive economic zone of the Republic of the Philippines are owned by the State. It shall be the responsibility of the State to promote their rational exploration, development, utilization and conservation through the combined efforts of government and the private sector in order to enhance national growth in a way that effectively safeguards the environment and protect the rights of affected communities. Also known as Regalian Doctrine H.D.A. Reyes I Correlation 2 Some Important Definition of terms 11 ■ Ancestral lands 11 refers to all lands exclusively and actually possessed, occupied, or utilized by indigenous cultural communities by themselves or through their ancestors in accordance with their customs and traditions since time immemorial, and as may be defined and delineated by law. 11 ■ 8/ock11 or 11 meridional block 11 means an area bounded by one-half (1/2) minute of latitude and one-half (1/2) minute of longitude, containing approximately eightyone hectares (81 has). 11 ■ 8ureau 11 means the Mines and Geosciences Bureau under the Department of Environment and Natural Resources. 11 ■ Contract area 11 means land or body of water delineated for purposes of exploration, development, or utilization of the minerals found therein. 11 ■ Department 11 means the Department of Environment and Natural Resources. H.D.A. Reyes I Correlation 2 Some Important Definition of terms ■ "Environmental compliance certificate (ECC)" refers to the document issued by the government agency concerned certifying that the project under consideration will not bring about an unacceptable environmental impact and that the proponent has complied with the requirements of the environmental impact statement system. ■ "Environmental impact statement {EIS)" is the document which aims to identify, predict, interpret, and communicate information regarding changes in environmental quality associated with a proposed project and which examines the range of alternatives for the objectives of the proposal and their impact on the environment. ■ "Exclusive economic zone" means the water, sea bottom and subsurface measured from the baseline of the Philippine archipelago up to two hundred nautical miles (200 n.m.) offshore. H.D.A. Reyes I Correlation 2 Some Important Definition of terms ■ "Force majeure" means acts or circumstances beyond the reasonable control of contractor including, but not limited to, war, rebellion, insurrection, riots, civil disturbance, blockade, sabotage, embargo, strike, lockout, any dispute with surface owners and other labor disputes, epidemic, earthquake, storm, flood or other adverse weather conditions, explosion, fire, adverse action by government or by any instrumentality or subdivision thereof, act of God or any public enemy and any cause that herein describe over which the affected party has no reasonable control. ■ "Foreign-owned corporation" means any corporation, partnerships, association, or cooperative duly registered in accordance with law in which less than fifty per centum (50%) of the capital is owned by Filipino citizens. ■ "Government" means the government of the Republic of the Philippines. H.D.A. Reyes I Correlation 2 Some Important Definition of terms ■ "Indigenous cultural community" means a group or tribe or indigenous Filipinos who have continuously lived as communities on communally-bounded and defined land since time immemorial and have succeeded in preserving, maintaining, and sharing common bonds of languages, customs, traditions, and other distinctive cultural traits, and as may be defined and delineated by law. ■ 11 11 Minerals refers to all naturally occurring inorganic substance in solid, gas, liquid, or any intermediate state excluding energy materials such as coal, petroleum, natural gas, radioactive materials, and geothermal energy. H.D.A. Reyes I Correlation 2 ■ ■ ■ Same Important Definition of terms Private land refers to any land belonging to any private person which includes alienable and disposable land being claimed by a holder, claimant, or occupant who has already acquired a vested right thereto under the law, although the corresponding certificate or evidence of title or patent has not been actually issued. Public land refers to lands of the public domain which have been classified as agricultural lands and subject to management and disposition or concession under existing laws. Quarrying means the process of extracting, removing and disposing quarry resources found on or underneath the surface of private or public land. 11 11 11 11 11 11 H.D.A. Reyes I Correlation 2 Land Classification ■ Forest Land - In the beginning, all land are part of public domain and fal I under this classification by default. ■ Agricultural Land- Can be acquired thru congress ■ Mineral Land - Can be acquired by acquiring mineral/ mining permit ■ National Park- Can be acquired thru congress by "law" * If the person has been living in the forest land for 30 years and continuously, they can request a patent for them to own the forest land *Only Agricultural land is alienable and disposable H.D.A. Reyes I Correlation 2 Mineral Reservations - Section 5 ■ When the national interest so requires, such as when there is a need to preserve strategic raw materials for industries critical to national development, or certain minerals for scientific, cultural or ecological value, the President may establish mineral reservations upon the recommendation of the Director through the Secretary. ■ Mining operations in existing mineral reservations and such other reservations as may thereafter be established, shall be undertaken by the Department or through a contractor: Provided, That a small scale-mining cooperative covered by Republic Act No. 7076 shall be given preferential right to apply for a small-scale mining agreement for a maximum aggregate area of twenty-five percent (25%} of such mineral reservation, subject to valid existing mining/quarrying rights as provided under Section 112 Chapter XX hereof. H.D.A. Reyes I Correlation 2 Mineral Reservations - Section 5 ■ All submerged lands within the contiguous zone and in the 9 exclusive economic zone of the Philippines are hereby declared to be mineral reservations ■ 6 out of 10 mineral reservations were declared by the national government based on results of the then Bureau of Mines's in-house exploration program. H.D.A. Reyes I Correlation 2 Mineral Reservations - Section 5 ► Surigao Laterite Mineral Reservation, ► Zambales Chromite Mineral Reservation, ► Siruma White Clay Mineral Reservation, ► Offshore Mineral Reservation, ► Samar Bauxite Mineral Reservation ► llocos Norte Feldspar Mineral Reservation ► zamboanga Mineral Reservation in 1987, ► Biak-Na-Bato Mineral Reservation in 1989, ► The lahar-affected rivers and embankment areas in the provinces of Pampanga, Tarlac and Zambales in 1999 and the ► Davao Mineral Reservation in 2002. H.D.A. Reyes I Correlation 2 Qualified Person: Any citizen of the Philippines w/ capacity to contract, or a corporation partnership, association, or cooperative organized or authorized for the purpose of engaging in mining, with technical and financial capacity to undertaken mineral resources development and duly registered in accordance with law at least 60% of the capital of w/c is owned by citizen of the Philippines; Provided, that a legally organized foreign-owned corp. shall be deemed a qualified person for purposes of granting an exploration permit, FTAA or MP permit H.D.A. Reyes I Correlation 2 Exploration Permit • An exploration permit grants the right to conduct exploration for all minerals in specified areas. The Bureau shall have the authority to grant an exploration permit to a qualified person H.D.A. Reyes I Correlation 2 Exploration Permit • The term of this Permit shall be for a period of two {2) years from date of issuance thereof, renewable for like periods but not to exceed a total term of six {6) years for non-metallic mineral exploration or eight (B) years for metallic mineral exploration: Provided, That no renewal of this Permit shall be allowed unless the Permittee has complied with the terms and conditions thereof and has not been found guilty of violation of any provision of the Mining Act and its Implementing Rules and Regulations: Provided, further, That in case of failure to file the declaration of mining project feasibility during the total term of four (4) years of this Permit for non-metallic minerals or six (6) years of the same Permit for metallic minerals, the Permittee may apply for further renewal of the Permit, which may be granted by the Secretary for another term of two (2) years for the very purpose of preparing or completing the feasibility studies, and filing of the declaration of mining project feasibility and the pertinent Mineral Agreement or Financial or Technical Assistance Agreement (FTAA) application. The complete and final exploration report shall be required in this renewal of the Permit: Provided, furthermore, That in case the Permit expires prior to the approval of the declaration of mining project feasibility and/or filing of the Mineral Agreement or FTAA application, the said Permit shall be deemed automatically extended until such time that the Mineral Agreement or FTAA application is approved; H.D.A. Reyes I Correlation 2 Exploration Permit • Covered Area Onshore (One Province) Individual 20 Blocks Pa rt n e rs hip Onshore (Entire Offshore (Beyond 500m Philippines) from low tide) Individual Partnership Individual Partnership Corp, Coop, Corp, Coop, Corp, Coop, Assc Assc Assc 200 Blocks 40 Blocks 400 Blocks 100 Blocks 1,000 Blocks H.D.A. Reyes I Correlation 2 Exploration Permit • The Permittee shall annually relinquish at least 20% of the Permit Area during the first two (2) years of exploration and at least 10% of the remaining Permit Area annually during the renewed Exploration Period. However, if the Permit Area is less than five thousand (5,000) hectares, the Permittee need not relinquish any part thereof. H.D.A. Reyes I Correlation 2 Exploration Permit • Withdrawal or Termination - Exploration permit may be transferred or assigned to a qualified person subject to the approval of the Secretary upon the recommendation if the Director • Rights and Obligations - His heirs or successors-in-interest, the right to enter, occupy and explore the area • Guarantor/ Remarks - After the exploration, the permitee can apply for Mineral Agreement and FTTA under certain qua Iifi cati ans. H.D.A. Reyes I Correlation 2 Areas Close to Mining • (a) In military and other governmer1t reservations, except upon prior written clearance by the government agency concerned; • (b) Near or under public or private buildings, cemeteries, archeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructure projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned; • (c) In areas covered by valid and existing mining rights; H.D.A. Reyes I Correlation 2 Areas Close to Mining • {d) In areas expressly prohibited by law; • {e) In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, in which case a royalty payment upon the utilization of minerals shall be agreed upon by the parties, said royalty forming a trust fund for the socioeconomic development of the community concerned; and • {f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness area, 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 Area System {NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of 1992 and other laws. H.D.A. Reyes I Correlation 2 Mineral Agreement • Exclusive for Filipino-owned Mining Companies • For purposes of mining operations, a mineral agreement may take the following forms as herein defined: □ Mineral production sharing agreement - is an agreement where the Government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor shall provide the financing, technology, management and personnel necessary for the implementation of this agreement. □ Co-production agreement - is an agreement between the Government and the contractor wherein the Government shall provide inputs to the mining operations other than the mineral resource. □ Joint-venture agreement - is an agreement where a joint-venture company is organized by the Government and the contractor with both parties having equity 15 shares. Aside from earnings in equity, the Government shall be entitled to a share in the gross output. H.D.A. Reyes I Correlation 2 Mineral Agreement • Term of 25 years and can be renewed for another 25 years • upon renewal, ownership can be taken by the government or still the contractor (highest bidder) Onshore {One Province) Individual 10 Blocks Partnership Onshore (Entire Offshore (Entire Philippines) Philippines) Individual Partnership Individual Partnership Corp, Coop, Corp, Coop, Corp, Coop, Assc Assc Assc 100 Blocks 20 Blocks 200 Blocks 50 Blocks 500 Blocks Off Shore (Entire Philippines): For exclusive economic zone, a large area to be determined by the Secretary. H.D.A. Reyes I Correlation 2 Mineral Agreement • Withdrawal or Termination - The contractor may apply for cancellation of the agreement due to cause w/c, in the opinion of the contractor; make continued mining operations no longer feasible or viable. Provided that, the contractor has met all its financial fiscal and legal obligations • Guarantor/ Remarks - Can be transferred or assigned prior to the approval of the Secretary. - Filed to region of the area (For mineral reservation - be filed to the Bureau) - Secretary - Approve. H.D.A. Reyes I Correlation 2 FTAA - Financial or Technical Assistance Agreement • Applicable for foreign-owned mining companies • Term of 25 years and renewable for another 25 years • Minimum capital of US$ 50 million • Not applicable to cement raw materials, marble, granite, sand and gravel, and construction aggregates Onshore Offshore Combination of Onshore and Offshore 1,000 meridional blocks 4,000 meridional blocks Must not exceed the maximum limits for onshore and offshore H.D.A. Reyes I Correlation 2 FTAA - Financial or Technical Assistance Agreement • Withdrawal or Termination - The contractor shall manifest in writing to the Sec. his intention to withdraw from the agreement, if in his judgement the mining project is no longer economically feasible. • Guarantor/ Remarks - Department to President - Can be converted to Mineral Agreement. - Can be transferred in whole or part. H.D.A. Reyes I Correlation 2 Permit/Ag Years of reement Contract -5 years Covered Area Withdrawal or Rights and Guarantor Termination Obligations / Remarks Minimum of 5 has Can be cancelled -Upon Provincial Provided, That in large- by the provincial cancellation Governor Renewabl scale quarry operation governor e violation of the holder to a involving cement raw for of permit, the period materials, marble, provisions of this be not granite, sand and gravel, Act exceedin and construction implement ing or g to total aggregates, a qua Iified rules of regulations years 25 person and government heard in its an investigation and conducted on terms or purpose. may enter into a mineral the agreement as defined condition of said herein. permit. H.D.A. Reyes must I Correlation 2 and Withdrawal Permit/Agreement Yea rs of Contract Covered Area or Termination Commercial Sand and Gravel Permit -5 years Rights and Guarantor Obligations / Remarks Not more Provincial than 5 has. More Than 5 Governor Bureau -Renewable to has. a period not exceeding to total 25 of years Exclusive Sand and Provincial Gravel Permit Governor H.D.A. Reyes I Correlation 2 Permit/Agreement Years of Contract Withdrawal Covered Area or Termination Rights and Guarantor Obligations / Remarks Government Not more than 2 has. Provincial Gratuitous Permit (Use for constructing Governor buildings or infrastructure for public purposes) --,~---- Private Gratuitous Provincial Permit Governor Guano Permit Provincial Gemstone Governor Gathering Permit H.D.A. Reyes I Correlation 2 MINERAL PROCESSING PERMITS ■ A 5-year Term, renewable for like periods, up to a maximum of 25 years; ■ Allows both local and 100% foreign -owned corporations; ■ Requirement to submit adequate ore supply contract to justify the establishment of the processing plant; ■ Can be granted for cement plants, smelting and refining; beneficiation plants; marble cutting and processing plants, and others of similar nature; ■ Issued by the Secretary for projects with cost of more than PhP 500 Million, by the MGB Director for projects with cost of more than PhP 200 Million but less than PhP 500 Million, and by the MGB Regional Director for projects with cost of PhP 200 Million or lesser. H.D.A. Reyes I Correlation 2 Taxes ■ National Government ■ Income Tax= ■ Excise Tax= 4 % of actual value of minerals extracted; ■ Royalties, if extracted from government Reservation = 5% of market value 35 % of Taxable Income; H.D.A. Reyes I Correlation 2 Mineral Environmental Impact Statement ("EIS") System • Project proponent of environmentally critical projects and projects within environmentally critical areas must obtain an environmental compliance certificate prior to commencement • Environmental Management Bureau as lead agency H.D.A. Reyes I Correlation 2 • Environmental Impact Assessment - All mining projects considered environmentally critical; - Subject to Environmental Impact Assessment (EIA) and to secure the necessary Environmental Clearance Certificate Environmental Management Bureau (EMB); and (ECC) from the - Activities during the exploration period exempted from the EIA/ECC requirement. • Environmental Work Program - In lieu of the ECC during the exploration period; - Program to address environmental impact; and - Defines financial commitment to be included in the annual exploration budget. H.D.A. Reyes I Correlation 2 • Environmental Protection and Enhancement Program (EPEP) Provides specific annual plans, programs and activities to institute environmental protection measures and/or rehabilitate miningaffected areas, during development and production stages; and Gives support in attaining the objectives of the Environmental Clearance Cerrtificate granted. • Final Mine Rehabilitation/Decommissioning Plan Provides activities to achieve mine closure, i.e., decommissioning, rehabilitation, residual care, etc. Establishment of a Fund to be deposited during early years of the mine life. H.D.A. Reyes I Correlation 2 • DENR ADMINISTRATIVE ORDER NO. 2008- 20 This Order shall cover the guidelines for the filing, processing and issuance of Mineral Ore Export Permit (MOEP) for the transport/shipment outside the Philippines of all mineral ore(s), including tailings; by permit holders and other mining rights holders, including small scale mining permits. The exportation of processed minerals~ including gold bullions, by permit holders and other mining right holders, including those within the special economic zones, shall continue to be in accordance with existing guidelines and not covered by this Order. H.D.A. Reyes I Correlation 2 • DENR ADMINISTRATIVE ORDER NO. 2008- 20 Every transport/shipment outside the Philippines of mineral ore(s), including tailings by permit holders and other mining rights holders1 including small scale mining permits, must be accompanied by the MOEP issued by the Secretary and the proof of payment of the required excise tax. Any transport/shipment outside the Philippines of mineral ore(s), including tailings, without a validly issued OTP and MOEP shall be considered prima facie evidence of illegal mining and shall cause the seizure/confiscation of the mineral ore(s)/tailings, along with the tools, equipment and conveyances used in the transport/shipment of the said materials, and shall serve as sufficient ground for the cancellation of the permit/contract/accreditation/lease agreement. H.D.A. Reyes I Correlation 2 Qualified Miners • Filipino citizens who, individually or in the company of other Filipino citizen, voluntarily from a cooperative duly licensed by the DENR to engage, under the terms and condition of a contract, in the extraction or removal of minerals or ore-bearing materials from the ground. • A contractor must be an individual or cooperative of small-scale miners, registered with the SEC (Securities and Exchange Commission) or other appropriate government w/ the State for the smallscale utilization of a plot of mineral land w/in a people's small-scale mining area. H.D.A. Reyes I Correlation 2 Mining Plans - A 2 years program of activities and methodologies employed in the extraction and production of minerals or ore-bearing materials, including financial plan and other resources in support thereof. H.D.A. Reyes I Correlation 2 Permit/Agreement Years of Contract Covered Area Peop le's scale Contract -2 years -Renewable subject to ve rificatfo n by the Board s. for like periods as long as, the contractor complies with the According to M ineral Resource Development Decree of ]974 (Pres.idential Decree No. 463), but in no cas,e shafl the ar:ea· ,exceed 20 has. per contra.ctor and the departm ent or length of the tunnel or fil!!l not exceeding that recommended by the director taking int o account the foll,ow ing circumstances: a. Size of membership and capitalization of the cooperative b. Size of m ineralized area c. Quantity of the m ineral deposits d. Saf ety of miiners e. Environmental impact and other considerations f. Otlher refat ed circumstances SmallM ining prov1s1ons set forth in the Act1 and confers upon the contractor the right to m ine with-in the contract area. H.D.A. Reyes I Correlation 2 Grounds for Cancellation and Guarantor/ Termination of the Contract Remarks >Noncompliance with the t erms and condiU011s of the corit ractor vioJating the rules and regulat ions issued by Burea1..1 th e Secretary pu rs1..1arit t o t his Act, >as w ell as abari donment of the mining site by the contractor >In addition, a fin e of n ot ress than P20, 000 and not more than Pl00,000 >l h e Secret ary, upon re commendat ion o,f the dire ctor, shall withdraw the st atus of the people 's smalJ..scale mining area wh e n it can no longer feasibfry operat ed on a small-scale mining basis o r when the safety, health and environment conditions warrant that the same shall reve rt t o the Stat e for prope r disposition. H.D.A. Reyes I I Correlation 2 ' I Other Laws Related to Geology and Mining H.D.A. Reyes I Correlation 2 ■ Indigenous People's Rights Act of 1997; {IPRA) RA 8371 ■ Philippine Clean Air Act of 1999 ;Republic Act No. 8749 ■ Philippine Clean Water Act of 2004; Republic Act (R.A.) No. 9275 ■ Ecological Solid Waste Management Act of 2000; Republic Act (RA) 9003 Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990; Republic Act No. 6969 ■ ■ Pollution Control Law; Republic Act No. 3931 ■ National Integrated Protected Areas System (NIPAS) Act of 1992; Republic Act 7586 H.D.A. Reyes I Correlation 2 ■ Geology Profession Law of the Philippines; Republic Act No. 4209 ■ Geology Profession Act of 2012; Republic Act No. 10166 ■ "No Go Zone"; Executive Order No. 79 ■ Renewable Energy Act of 2008; Republic Act No. 9513 ■ The Coal Development Act of 1976.; Presidential Decree No. 972 ■ The Oil Exploration And Development Act Of 1972; Presidential Decree No. 87 H.D.A. Reyes I Correlation 2 Republic of the Philippines (1995). Republic Act No. 7942: AN ACT INSTITUTING A NEW SYSTEM OF MINERAL RESOURCES EXPLORATION, DEVELOPMENT, UTILIZATION AND CONSERVATION or The Philippine Mining Act of 1995. Metro Manila, Philippines Tumonong, M.M.L. and Manipon C.J.C .. Mineral Reservations of the Philippines: Overlooked Resources for Development. GEOLOGICAL SOCIETY OF THE PHILIPPINES, Mandaluyong City, Philippines https://www.geolsocphil. org/ geocon abstracts/ geocon2004 15.ht m http://www.mgb.gov.ph/images/stories/RA 7942. pdf http ://mgb.gov.ph/attach ments/ art icl e/7 9/PFC EP.pdf https://www. syciplaw.com/Docu me nts/CI i ent%20Alert%2020130226. pdf http://www.mgb.gov.ph/images/ stories/DAO 2008-20.pdf https://www. Iawp hi I.net H.D.A. Reyes I Correlation 2