We recall three years ago in June 2022, when the Supreme Court issued its landmark ruling in Cosalan vs Lepanto. A decision that placed the indigenous peoples (IPs) right to Free and Prior Informed Consent (FPIC) above corporate mining interests.
Yet, in practice or in all actuality, this supposed victory did little dent towards the status quo which still harms IPs. The ruling now sits like a trophy locked in a cabinet. While it is being honored, it is, however, utterly ignored.
To understand the injustice, or ambiguity to some, that the ruling sought to resolve, let’s rewind to 1990, when Lepanto Consolidated Mining Corporation (LCMC) secured mining rights covering parts of the ancestral domain in Mankayan, Benguet through MPSA 001-90.
For 25 years, Lepanto mined these lands with legal cover. But the passage of the Philippine Mining Act in 1995 and the Indigenous Peoples’ Rights Act (IPRA) in 1997 changed the legal landscape. With these laws, FPIC from IPs became explicitly required for the issuance of any mining-related permits and renewals.
The letter of the law is unambiguous. No IP consent or FPIC means no permit, no opening ancestral lands to mining, and no renewals.
Yet, when Lepanto sought to renew its MPSA in 2014, one year before its expiration, it did so without securing FPIC or a Certification Precondition (CP) from the National Commission on Indigenous Peoples (NCIP), as required. Instead, it claimed, among others, a supposed “vested right” to renewal, as if our laws did not evolve.
In effect, arbitration followed, and shockingly or as expected to some, the decision favored LCMC through an arbitral award, allowing it to continue operations, and that said MPSA, while nearing expiration then, enjoys, apparently, automatic renewal without any FPIC.
This unfortunate event forced the IPs of Mankayan, later joined by former Congressman Ronald Cosalan, to challenge the arbitral award before the courts. While this was all ongoing, like salt on an open wound, LCMC was able to secure a Writ of Preliminary Injunction effectively further legalizing its continued presence and operation inside the ancestral domain even after the MPSA expired in 2015.
Worse, said Writ likewise prohibited any parties, including the NCIP, to disturb its operation. In the years thereafter, the IPs were rendered voiceless within their own lands. Their right to self-determination was put on hold while LCMC’s operations endured.
Then came the long-awaited decision in June 2022. The Supreme Court in Cosalan vs Lepanto, in no uncertain terms, upheld the position of the IPs. It cemented that FPIC is not a bureaucratic option as corporations suggests, but rather a matter of public policy, therefore, it is mandatory and has no substitution. Without it, no permit or renewal may be issued.
This victory of the IPs of Mankayan did not stop there. In a separate case, NCIP vs Lepanto in March 2023, the Supreme Court lifted the Writ of Preliminary Injunction that once protected LCMC’s uninterrupted presence in Mankayan.
While these twin rulings merit jubilation, the IPs of Mankayan cannot celebrate because, as of this writing, LCMC still continues to operate within the ancestral domain. But why is that?
According to locals I spoke with, LCMC clings to its presence by justifying that it is merely “protecting its assets” while awaiting FPIC and CP.
Sure, even if we set aside disbelief and accept said justification, one cannot simply overlook the deafening silence from regulatory agencies namely, the Mining and Geosciences Bureau (MGB) and the local government units (LGUs). They did nothing to enforce even a basic cessation of operations or compel a formal turnover of land and assets to the IPs.
Not even a whimper of enforcement. No suspension orders. No cease-and-desist. Not even a slap on the wrist.
Ironically, the only stoppage order which reached the public attention was the stoppage against lowly small-scale miners in one neighboring mining community of Benguet. It would seem that large-scale mining corporations enjoy red carpet treatment, while small-scale IP miners are made to hurdle laws and wait at the back of the line, if a line even exists for them at all.
This double-edged legal treatment being peddled here is offensive. A mockery of our laws and subsequent Supreme Court rulings.
What is clear is that the MPSA has expired. The legal authority to operate is gone. The lands belong to the IPs. Continuing operations under the guise of asset protection is equivalent to trespassing and squatting.
No stoppage order?
Yes, we do understand some of these agencies’ predicaments. I would imagine corporate giants with deep ties with top officials breathing down their necks.
LCMC may argue that it has filed for and has submitted itself to the FPIC process, but that is not enough. What is needed is a demonstrable act of good faith, which may only be obtained, through ceasing operations entirely and returning control of the land to its rightful custodians.
Without this, the FPIC process becomes coercive and meaningless. It is akin to negotiating rent with a tenant who refuses to leave after their lease has expired.
Sadly, this pattern is not limited to LCMC. A similar injustice now threatens the IPs in Mankayan from a new direction. The Crescent Mining Development Company (CMDC), through MPSA 057-96-CAR, had its permit renewed by the MGB even before the FPIC process began, and long before a CP was issued by NCIP.
In this case, the government did not even wait for the IPs to speak. This time, the regulatory agencies did not even pretend to listen to the IPs. It handed CMDC the keys and told the community to catch up.
If LCMC is the stubborn tenant who won’t vacate despite an expired lease, CMDC is the proverbial example of the “cart placed in front of the horse” where regulatory agencies act as if consent is an afterthought, not a prerequisite.
This design extends even outside Benguet. In Kalinga, Makilala Mining Company had its MPSA 356-2024-CAR approved before the CP was issued. The dates alone tell the story. I invite everyone to cross-reference the dates of the approval of the MPSA and the issuance of the CP and witness firsthand the irrefutable irregularity.
Just recently in Abra, a new breed of instrument with similar effect to an exploration permit namely, the Authority To Verify Minerals or ATVM, was issued by MGB, despite the pendency of the FPIC and the absence of the CP, to Yamang Mineral Corporation (YMC). In effect, allowing YMC entry and exploration activities inside IPs ancestral domains.
Going back to Benguet. One mining giant namely, Philex Mining Corporation (PMC) currently holds two MPSAs which they secured in 2000. However, said MPSAs were originally due for expiration this year. One would think, given the legal precedent and the chorus of jurisprudence affirming the necessity of FPIC, that regulatory agencies would move to ensure compliance to FPIC should PMC seek renewal. Sadly, there were none.
Last time I heard, PMC was granted two years of extension from the regulatory agency as a form of “offset” due to the COVID-19 pandemic which stalled their operations.
So here we are, three years after the Supreme Court’s landmark ruling in Cosalan vs Lepanto and NCIP vs Lepanto, the reality on the ground remains unchanged.
LCMC continues to operate. CMDC was allowed to renew its permit before any FPIC and CP was secured. Makilala obtained its MPSA ahead of a CP. And Philex, whose permits are set to expire, appears poised to receive the same treatment.
Another extension, another exemption, and more silence from the very institutions tasked with enforcing the law. And now, we witness the birth of ATVM, which YMC conveniently argues falls beyond the coverage of FPIC.
But be that as it may, I am confident that the IPs will remember. They will still resist.
They will not cower. Because their ancestral lands will remember. And it, too, refuses to forget.
