A new animal emerged within the realms of mining here in the Cordillera. This animal comes in the form of a government instrument issued by the Department of Environment and Natural Resource carrying the effect of an “express ticket” for mining corporations into indigenous peoples’ (IPs) ancestral domains and lands. In my seven years working in the National Commission on Indigenous Peoples, it was my first time encountering such an animal.
Anchored on Section 13 of Executive Order 79 Series of 2012 (EO 79), this instrument is called the “Authority to Verify Minerals” (ATVM). It was recently issued to a mining corporation while its exploration application agreement (EXPA) was still pending. This corporation was attempting to secure the Free and Prior Informed Consent (FPIC) of indigenous peoples (IPs) to conduct exploration activities within their ancestral domains and lands when the ATVM was issued. The mining corporation claims that the ATVM allows them to commence exploration, effectively bypassing the pending FPIC process. However, as confirmed by the IPs and local authorities, the corporation has already initiated exploration activities before obtaining the necessary consent.
Now, let’s try to dissect this ATVM and ascertain whether its issuance, while absent from the FPIC or the certification precondition (CP), was regular.
Section 13 of EO 79 grants the DENR the authority to issue ATVMs to mining corporations for areas designated as open for mining. While the EO doesn’t explicitly list areas open for mining, it does enumerate areas that are closed. Notably, IP ancestral domains and lands are not included in the list of closed areas. This led the mining corporation to argue that, by omission, these areas are implicitly open for mining. Consequently, they claim that the issued ATVM justifies their ongoing exploration activities within IP ancestral domains, even without the required FPIC or certification precondition (CP).
However, a closer examination of relevant laws and legal precedents reveals a different interpretation. While IP ancestral domains and lands are not explicitly listed as closed areas for mining, they are also not explicitly opened. Section 16 of Republic Act 7942, the Philippine Mining Act of 1995, clearly states that no ancestral land can be opened for mining operations without the prior consent of the Indigenous cultural community concerned. This means that these lands are not automatically open for mining and require explicit and “prior consent” from indigenous peoples.
The “prior consent” being required under Section 16 was further elucidated and explained in the landmark Lone District of Benguet vs Lepanto and Republic vs Lepanto, which were jointly decided by the Supreme Court (G.R. No. 244063. June 21, 2022) underscoring therein; “[i]t bears underscoring that the protection of the “rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being,” is a Constitutionally declared policy of the State. This is also reflected as a State Policy under the Philippine Mining Act of 1995, safeguarding the environment and protecting the rights of affected communities, more particularly the ICCs/IPs to their ancestral domains. In recognition of this policy, Section 16 of the Act mandates that “[n]o ancestral land shall be opened for mining-operations without prior consent of the indigenous cultural community concerned.” As aptly observed by Associate Justice Alfredo Benjamin S. Caguioa (Associate Justice Caguioa), this general requirement of consent on the part of the affected ICCs/IPs is now made more specific and concrete through the FPIC and Certification Precondition explicitly mandated in Section 59 of the IPRA”
Clearly, then, it goes without saying that the issuance of an ATVM under Section 13 of EO 79, when it affects IPs’ ancestral domains and lands, must be interpreted in conjunction with Section 16 of the Philippine Mining Act and Section 59 of the Indigenous Peoples Rights Act (IPRA). This means that ATVMs cannot be automatically issued for these areas and must only be granted after obtaining the required “prior consent” from the concerned IPs.
In fine, knowing Cordillera with nearly 93% of its land classified as ancestral domains and lands, the potential for mining activities raises profound concerns.
I’m not a legal expert and my opinion might be wrong. However, it’s clear that the issuance of an ATVM without an FPIC, a practice that circumvents indigenous peoples rights, indicates a blatant disregard for the law. The region’s historical experience with mining, marked by environmental degradation and social conflict, serves as a cautionary tale.
To safeguard Cordillera’s future, a firm line must be drawn regarding mining explorations through the use of ATVMs.
