Environment and Natural Resources Law

7/30/2019 Environment and Natural Resources Law

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ENVIRONMENT ANDNATURAL 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 B’LAAN 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 byself-ascription and ascription by other, whohave continuously lived as organized

community or communal bounded anddefined territory, and who have, under claimsof ownership since time immemorial,occupied, possessed customs, tradition andother distinctive cultural traits, or who have,

through resistance to political, and culturalinroads of colonization, non-indigenousreligion and culture, become historicallydifferentiated from the majority of Filipinos.



MPSA(Mineral Production Sharing Agreement)- the governmentgrants the contractor the exclusive right to conduct miningoperations within the contract area and share in the gross output.

CADT(Certificate of Ancestral Domain Title)- refers to the titleformally recognizing the rights and ownership of ICCs/IPs overtheir ancestral domain identified and delineated in accordance

with this law.

NCIP(National Commission on Indigenous People)- refers to theoffice created under Republic Act No. 8371, which shall be underthe Office of the President, and which shall be the primarygovernment agency responsible for the formulation andimplementation of policies, plans, programs to recognize, protectand promote the right of ICCs/IPs.

Joint Venture Agreement- is an agreement where a joint-venture company is organized by the government and thecontractor 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 MiningProject?

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

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

Are these procedures mandatory?

Are these requirements applicable to the problemsituation?



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 theIPRA:

is the organic law that recognizes the existence of theindigenous 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 extentof these lands and domains.



Other rights are also granted to the ICCs/IPs, andthese 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 andtraditions 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, theICCs/IPs are given the right to self-governance andempowerment, social justice and human rights, the right topreserve and protect their culture, traditions, institutions andcommunity intellectual rights, and the right to develop theirown 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 mining-operations without prior consent of the indigenous culturalcommunity concerned.

Sec. 17: In the event of an agreement with an indigenouscultural community pursuant to the preceding section, theroyalty payment, upon utilization of the minerals shall beagreed 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. canthey stop the project entirely?)

The ICCs/IPs’ rights over the natural resourcestake the form of management or stewardship.

The ICCs/IPs may use these resources and share inthe profits of their utilization or negotiate the termof their exploration, provided, the ICCs/IPs mustensure that the natural resources are conserved forfuture generations and that the “utilization” of

these resources must not harm the ecology andenvironment pursuant to national and customarylaws.



• Rights of the ICCs/IPs over the natural resources

in their ancestral domains merely the right to thesmall-scale utilization of these resources, and atthe same time, a priority in their large-scaledevelopment and exploitation.

• The law does not mandate the State toautomatically give priority to the ICCs/IPs.

• The State has several options and it is within itsdiscretion to choose which option to pursue.



• Nothing in the law that gives the ICCs/IPs the right tosolely undertake the large-scale development of the

natural resources within their domains.

• The ICCs/IPs must undertake such endeavour alwaysunder State supervision or control.

• The provisions of the law simply give due respect to theICCs/IPs who, as actual occupants of the land where thenatural resources lie, have traditionally utilized theseresources for their subsistence and survival. Neither is theState stripped of ownership and control of the natural

resources.



What are the procedures for the tribe to officiallyconsider 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 inthe development and utilization of the natural resources for a period of

not exceeding twenty-five (25) years renewable for not more thantwenty-five (25) years: Provided, That a formal and written agreement isentered into with the ICCs/IPs concerned or that the community,pursuant to its own decision making process, has agreed to allow suchoperation: Provided, finally, That the all extractions shall be used tofacilitate 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 itscustomary laws without prejudice to the basic requirement of the existinglaws on free and prior informed consent: Provided, That the transfer shallbe temporary and will ultimately revert to the ICCs/IPs in accordance witha program for technology transfer: Provided, further, That no ICCs/IPsshall be displaced or relocated for the purpose enumerated under thissection without the written consent of the specific persons authorized togive consent.



Sec. 59:

All department and other governmental agencies shall henceforth bestrictly 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 notoverlap with any ancestral domain.

such certificate shall only be issued after a field-based investigation isconducted by the Ancestral Domain Office of the area concerned:Provided, That no certificate shall be issued by the NCIP without the freeand prior informed and written consent of the ICCs/IPs concerned:Provided, further, That no department, government agency orgovernment-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 rightto stop or suspend, in accordance with this Act, any project that has notsatisfied the requirement of this consultation process.



Sec. 17: In the event of an

agreement with an indigenous culturalcommunity pursuant to the precedingsection, the royalty payment, upon

utilization of the minerals shall beagreed upon by the parties. The saidroyalty shall form part of asocioeconomic well-being of theindigenous cultural community. (R.A.No.7942)



Are these procedures mandatory?

YES. Sec. 57 of IPRA states that “a formal andwritten agreement is entered into with theICCs/IPs concerned or that the community,pursuant to its own decision making process, hasagreed to allow such operation.”

Under Sec. 59 of IPRA, “all department and othergovernmental agencies shall henceforth bestrictly enjoined from issuing, renewing, orgranting any concession, license or lease, or

entering into any production-sharing agreement,without prior certification from the NCIP that thearea affected does not overlap with any ancestraldomain.”



Are these requirements applicable to theproblem situation?

YES. Since the proposed project is a large-scaleutilization of natural resources and the Lumads, beingan 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.

Documents

Environment and Natural Resources Law