Choosing between mining and tourism

Published on Wednesday, 07 November 2012 19:20

Written by Pancho G. Umali / On firm ground

TWO years into his term, President Aquino signed on July 6 Executive Order 79 (EO 79), which basically proclaims his administration’s mining policy.

One of the salient provisions of EO 79 is the expansion of the areas closed to mining applications, also known as the “no-go” zones.

Under Section 1 (d) of EO 79, applications for mineral contracts, concessions and agreements shall not be allowed in “tourism development areas,” as identified in the National Tourism Development Plan (NTDP). While EO 79 did not define NTDP, however, the term apparently refers to the five-year strategic plan which the Tourism Coordinating Council is mandated to prepare under Section 98 of Republic Act (RA) 9593 (Tourism Act of 2009), in order to develop and enhance a culture of tourism.

The NTDP for 2011-2016, which was unveiled by the Department of Tourism just a month before EO 79 was issued, lists 78 “existing and emerging tourism development areas.” Notably, the NTDP does not delineate these tourism development areas, or give the metes and bounds thereof. For example, the NTDP identifies “Camarines” under the “Central Philippines” cluster. In view of this designation, it would appear that no new mining application will be considered in Camarines pursuant to EO 79 even if local government units there boast of different minerals, such as lead, manganese, iron, silica, white clay, marble, white pebbles and gold, in their respective jurisdictions.

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While EO 79 only excludes mining in tourism development areas as identified in the NTDP, the IRR of EO 79 further widened the “no-go” zones by defining “tourism development areas” as including those identified even in local tourism development plans.

There have been allegations that the inclusion of tourism development areas in the no-go zones clause of EO 79 was a result of the lobbying of certain anti-mining and environment groups which argue that tourism is the more viable and ideal alternative to mining for bolstering economic development.  The underlying premise of this line of argument is that mining and tourism cannot co-exist in the same location.

If one is referring to a specific geographic area, it is clear that mining and tourism cannot legally co-exist for the simple reason that mining rules in place even before the issuance of EO 79 expressly prohibit mining in tourism zones. Section 15 (a) (2) of the IRR of RA 7942 (the Mining Act) in no unclear terms provides that “tourist zones as defined by law” are closed to mining applications. Unlike “tourism development areas” under EO 79, however, there is jurisprudence to the effect that tourism zones must identify or delineate specific geographic areas. In a 2009 case, a landowner (whose land was being sought to be covered under the CARP) argued that a 1975 Presidential proclamation declared three municipalities as each constituting a tourism zone, and reclassified all lands therein (including the landowner’s property) to tourism (and, therefore, converted their use to non-agricultural) purposes.

The Supreme Court en banc rejected the landowner’s argument, noting that the “specific geographic areas” for tourism development have not yet been identified in the presidential proclamation, among others.

Economic experts are in a better position to decide whether tourism, on its own and without mining, will be sufficient to hasten economic development in the entire country at a pace that the survival of our people demands. Yet, one ought to wonder whether a choice between these industries is really necessary.

The Mining Act, after all, requires a permit holder to undertake an environmental protection and enhancement program (EPEP) throughout the effectivity of its mining permit. The EPEP must include plans for rehabilitation, regeneration, revegetation and reforestation of mineralized areas, slope stabilization of mined-out and tailings covered areas, aquaculture, watershed development and water conservation.

Moreover, the maintenance of sustainable environmental conditions at every stage of the mining operation and the establishment of a functional post-disturbance land-use capability are among the pronounced environmental protection objectives of the Mining Act IRR. Accordingly, all open-pit work areas, underground workplaces, mine waste and tailings impoundment systems, quarry sites and other mining-disturbed landforms, including those disturbed during exploration, should be progressively rehabilitated at every stage of the mining operation to the condition prescribed in the project’s environmental compliance certificate and/or EPEP, with the aim of establishing a land-use capability that is functional and proximate to the land use prior to the disturbance of the mine area, unless other more beneficial land uses are predetermined and agreed in partnership with local communities and local government units.

Thus, with proper implementation and monitoring, and if the affected local population will agree, mine sites may even be developed as tourist destinations after mine decommissioning. The Internet shows a couple of closed mining sites in Malaysia, for example, that are now successful recreation and leisure spots.

Pancho G. Umali is a partner at Villaraza Cruz Marcelo & Angangco (www.cvclaw.com). He heads CVCLAW’s Tourism and Leisure Practice Group, and is a member of the firm’s Corporate and Special Projects Department and Mining and Natural Resources Department. He may be reached at pg.umali@cvclaw.com.

Disclaimer:

This article has been prepared for informational purposes only and should not be treated as legal advice.