ENVIRONMENT AND NATURAL RESOURCES LAW

LAW

MINING ACT OF 1995 (R.A. 7942) IDIGENOUS PEOPLES RIGHTS ACT OF 1997 or IPRA (R.A. 8371) ENVIRONMENTAL IMPACT STATEMENT (EIS) SYSTEM (P.D. 1586) JURISPRUDENCE

LA BUGAL BLAAN vs. SEC. OF DENR CRUZ vs. NCIP

Definition of Terms

Indigenous Cultural Community/ Indigenous People- refer to a group of people or homogenous societies identified by self-ascription and ascription by other, who have continuously lived as organized community or communal bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed customs, tradition and other distinctive cultural traits, or who have, through resistance to political, and cultural inroads of colonization, non-indigenous religion and culture, become historically differentiated from the majority of Filipinos.

MPSA(Mineral Production Sharing Agreement)- the government grants the contractor the exclusive right to conduct mining operations within the contract area and share in the gross output. CADT(Certificate of Ancestral Domain Title)- refers to the title formally recognizing the rights and ownership of ICCs/IPs over their ancestral domain identified and delineated in accordance with this law. NCIP(National Commission on Indigenous People)- refers to the office created under Republic Act No. 8371, which shall be under the Office of the President, and which shall be the primary government agency responsible for the formulation and implementation of policies, plans, programs to recognize, protect and promote the right of ICCs/IPs. Joint Venture Agreement- is an agreement where a jointventure company is organized by the government and the contractor with both parties having equity shares

THE LUMAD TRIBE:

Are there provisions in laws that recognize the rights of Lumad or Ordinary residents to oppose the ABC Mining Project? What is the extent of these rights (e.g. can they stop the project entirely?) What are the procedures for the tribe to officially consider and allow the project to proceed (should they decide to allow)? Are these procedures mandatory?

Are these requirements applicable to the problem situation?

Are there provisions in laws that recognize the rights of Lumad or Ordinary residents to oppose the ABC Mining Project?

Republic Act No. 8371 otherwise known as The Indigenous Peoples Rights Act of 1997 or the IPRA:
is the organic law that recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. it grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains.

Other rights are also granted to the ICCs/IPs, and these are:
the right to develop lands and natural resources;

the right to stay in the territories;

the right in case of displacement; the right to safe and clean air and water; the right to claim parts of reservations; the right to resolve conflict; right to ancestral lands;

the right to ancestral lands which include:

the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned; the right to redemption for a period not exceeding 15 years from date transfer, if the transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an unconscionable consideration.
NOTE: Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and empowerment, social justice and human rights, the right to preserve and protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciences and technologies.

Republic Act No. 7942 otherwise known as The Philippine Mining Act of 1995:
Sec. 16: No ancestral land shall be opened for miningoperations without prior consent of the indigenous cultural community concerned.
Sec. 17: In the event of an agreement with an indigenous cultural community pursuant to the preceding section, the royalty payment, upon utilization of the minerals shall be agreed upon by the parties. The said royalty shall form part of a socioeconomic well-being of the indigenous cultural community.

What is the extent of these rights (e.g. can they stop the project entirely?)

The ICCs/IPs rights over the natural resources take the form of management or stewardship. The ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the term of their exploration, provided, the ICCs/IPs must ensure that the natural resources are conserved for future generations and that the utilization of these resources must not harm the ecology and environment pursuant to national and customary laws.

Rights of the ICCs/IPs over the natural resources in their ancestral domains merely the right to the small-scale utilization of these resources, and at the same time, a priority in their large-scale development and exploitation. The law does not mandate the State automatically give priority to the ICCs/IPs. to

The State has several options and it is within its discretion to choose which option to pursue.

Nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale development of the natural resources within their domains. The ICCs/IPs must undertake such endeavour always under State supervision or control. The provisions of the law simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural resources lie, have traditionally utilized these resources for their subsistence and survival. Neither is the State stripped of ownership and control of the natural resources.

What are the procedures for the tribe to officially consider and allow the project to proceed (should they decide to allow)?

Under Sec. 57 of the IPRA:

A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the all extractions shall be used to facilitate the development and improvement of the ancestral domains.

Sec. 58:
Should the ICCs/IPs decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the ICCs/IPs should be arrived at in accordance with its customary laws without prejudice to the basic requirement of the existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the ICCs/IPs in accordance with a program for technology transfer: Provided, further, That no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent.

Sec. 59:
All department and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. such certificate shall only be issued after a field-based investigation is conducted by the Ancestral Domain Office of the area concerned: Provided, That no certificate shall be issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is pending application CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.

Sec. 17: In the event of an agreement with an indigenous cultural community pursuant to the preceding section, the royalty payment, upon utilization of the minerals shall be agreed upon by the parties. The said royalty shall form part of a socioeconomic well-being of the indigenous cultural community. (R.A. No.7942)

Are these procedures mandatory?

YES. Sec. 57 of IPRA states that a formal and

written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation.
Under Sec. 59 of IPRA, all department and other

governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain.

Are these requirements applicable to the problem situation?

YES. Since the proposed project is a large-scale utilization of natural resources and the Lumads, being an Indigenous Cultural Community and residents of the said settlement, the above cited provisions of IPRA and Mining act are controlling and, therefore, must be strictly complied with.