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Bangsamoro – Open for Business? After years of negotiations, the Philippine government and the Moro Islamic Liberation Front (“MILF”) signed the Comprehensive Agreement on the Bangsamoro (“CAB”) on 27 March 2014 that seeks to end more than four decades of Muslim secessionist movements and violence in Mindanao. The CAB includes the Framework Agreement on the Bangsamoro earlier signed on 15 October 2012, the four annexes (normalization, revenue generation and wealth sharing, transitional arrangement and modalities), and other agreements signed by both parties during the course of the 17-‐year peace negotiations. The documents describe and justify the Bangsamoro as an identity, a territory and as a new political entity, which will have its own distinct political, economic and social systems suitable to the life and culture of the Bangsamoro people. It will enjoy political and fiscal autonomy The Regalian Doctrine and the Bangsamoro Right to Self Determination The concept of jura regalia where the Regalian Doctrine was derived states that private title to land must be traced to some grant, whether express or implied, from the Spanish Crown or its successors, the American Colonial government, and ultimately, the Philippine Republic. By virtue of the Treaty of Paris of 10 December 1898, Spain ceded to the United States of America all rights, interests, and claims over the national territory of the Philippine islands for a consideration of US$20 million whose colonial government then pursued the Spanish policy of requiring settlers on public lands to obtain deeds from the government. When the 1935 Constitution was passed, the issue then was the conservation of the national patrimony for the Filipinos, which impelled the framers of the fundamental law to entrench the Regalian Doctrine wherein the State asserted ownership over lands of the public domain and all natural resources found therein, as further reiterated in the 1973 and 1987 Constitutions. Professor Miriam Coronel Ferrer, now the Philippine Government Peace Panel Chair, in her book “Costly Wars, Elusive Peace” premised that while landlessness has fed rural unrest in all parts of the country, the issue of landlessness assumed an ethnic dimension in Mindanao. The Moro insurgencies are thus sustained by domestic inequities and state failure to provide redistributive measures. Rather than a war over religion, Moro resistance is basically a Bangsamoro (Moro people/nation) nationalist/national liberation struggle to free Muslims in the Philippines and their claimed homeland from Filipino colonialism and oppression. In this regard, Muslim resistance organizations have invoked the United Nations-‐recognized principle of the right to self-‐determination. The Resource Potential of Bangsamoro There have been no extensive mineral exploration or mining activities in Bangsamoro. These can be attributed to the security risks associated with the prolonged civil strife arising from violence between the military and rebel forces. However, the Center for Energy Sustainability and Economics estimated mineral
deposits in Mindanao island at $312 billion. With respect to petroleum potential, the Sulu Sea basin and Cotabato basin, where the Liguasan Marsh is located, are within the territorial limits of Bangsamoro. The Sulu Sea basin extends to the northeast portion of Sabah where there has been gas discoveries and is part of the prolific circum-‐Borneo deep-‐water trend. The Cotabato Basin, on the other hand, is an onshore northwest-‐trending trough in south central Mindanao covering an area of 14,000 sq. km. It is considered a frontier area in terms of level of exploration maturity. The Department of Energy (“DOE”) calculated the resource volumes in accordance with the Philippine Petroleum Resource Classification System. For the Sulu Sea basin, the hypothetical (mapped) resources are estimated at 109 million barrels of oil equivalent (“MBOE”) while the speculative (unmapped) resources are 94 MBOE for a total of 203 MBOE. ExxonMobil in a consortium with BHP Billiton Petroleum and Malaysian-‐based Mitra Energy drilled four wells in the 6,460-‐sq km Service Contract 56 in the Sulu Sea Basin as part of a $400 million exploration campaign. But while the company hit gas with three of the four holes, ExxonMobil said the quantities were noncommercial. According to the Petroleum Economist (2011), while ExxonMobil resigned as operator and pulled out of its deep-‐water block in the Sulu Sea, its campaign had been lauded as a success by some industry observers and had generated significant interest in the potential of the Sulu Sea.
Sulu Sea – East Palawan Basin
In the Cotabato Bain, exploration results have shown that it is mainly an oil-‐prone area. Based on resource assessment studies made by the DOE, the basin is estimated to contain some 158 MBOE, of which 45% is gas. Any oil or gas discovery made within the Cotabato Basin can be produced economically due to their proximity to residential, industrial and commercial sites.
Cotabato Basin
Bangsamoro Transition Commission and the Bangsamoro Basic Law Since 1996, the Philippine Government and the MILF, which formally broke away from the Mindanao National Liberation Front in 1981, have been engaged in peace talks. On 27 July 2008, their respective peace panels finalised a Memorandum of Agreement on Ancestral Domain (“MOA-‐AD”), creating the Bangsamoro Juridical Entity as an independent State or a near-‐independent State.
DRY WELL, P&A DRY WELL w/ oil shows, P&A
DRY WELL w/ gas shows, P&A DRY WELL w/ oil & gas shows, P&A OIL SEEP
However, on 4 August 2008, the Supreme Court issued a temporary restraining order (“TRO”) preventing its signing by both parties. The TRO was issued pursuant to the Petition for Mandamus and Prohibition filed with the Supreme Court on 23 July 2008, docketed as G.R. No. 183591, by the Province of North Cotabato and its Vice-‐Governor Emmanuel Piñol, questioning the constitutionality of the MOA-‐AD. On 14 October 2008, the Supreme Court declared the MOA-‐AD unconstitutional. A year later the Parties resumed negotiations and on 15 October 2012, the Philippine Government and the MILF signed the Framework Agreement on the Bangsamoro (“FAB”) at Malacañang. In December 2012, President Benigno Simeon Aquino issued Executive Order No. 120, which created the Bangsamoro Transition Commission (“BTC”), a body authorized to draft the Bangsamoro Basic Law (“BBL”) for the new Bangsamoro political entity. The President certified the draft BBL as an urgent bill. In relation to its task to draft the BBL, the BTC is also mandated to recommend to Congress or the people amendments to the 1987 Philippine Constitution, if it deems such necessary. According to the 119-‐page draft BBL submitted to Congress on 10 September 2014 and filed as House Bill 4994 in the House of Representatives and Senate Bill 2804 in the Senate, the powers of government are vested in the Bangsamoro Parliament, which shall set policies, legislate on matters within its authority and elect a Chief Minister who shall exercise executive authority on its behalf. The BBL shall be subject to a plebiscite scheduled for first quarter of 2015 to give the people the choice to ratify the BBL. Ratification by the people in a plebiscite shall make the BBL effective and will confirm the BBL as the fundamental law of the Bangsamoro. Provinces, cities, municipalities and barangays wherein the majority of voters have ratified the BBL will form part of the Bangsamoro, which will replace the Autonomous Region of Muslim Mindanao (“ARMM”). Upon ratification of the BBL, the Bangsamoro Transition Authority (“BTA”) shall perform the functions of an interim Bangsamoro government until the election and assumption of the members of the Bangsamoro Assembly and the formation of the Bangsamoro government in 2016. The future Bangsamoro will be the only region in the country that will run a government through parliamentary means and have an “asymmetric relationship” with the Central or National Government, “reflective of the recognition of their Bangsamoro identity, and their aspiration for self governance” in accordance with the Constitutional provisions on the creation of autonomous regions. The Bangsamoro government will be granted authority to govern its financial resources and levy taxes appropriately as prescribed in the BBL. In addition to taxes already being collected by the ARMM, the Bangsamoro may also collect capital gains tax, estate tax, documentary stamp tax and donor’s tax. All the revenues from these taxes will form part of the Bangsamoro treasury. From national taxes, fees and charges collected in the Bangsamoro, 75% shall go to the Bangsamoro and 25% to the Central government.
The Bangsamoro shall have the authority to contract loans, credits and other forms of indebtedness with government or private banks and lending institutions except those requiring sovereign guaranty. The Bangsamoro may also avail of overseas development assistance (“ODA”) for priority development projects. Other sources of revenue include shares of government income derived from Bangsamoro government-‐owned and controlled corporations, financial institutions, economic zones, and freeports operating within the Bangsamoro territory. It may receive grants derived from economic agreements entered into or authorized by the Bangsamoro Assembly such as donations, endowments and other forms of aid, subject to the reserved powers of Central government over foreign affairs. Grants and donations may be received directly by the Bangsamoro government to be used solely for the purpose for which they were received. Ownership and Management of Natural Resources According to Nasser Marohomsalic in his paper “The Framework Agreement on the Bangsamoro: Towards Hurdling the Constitutional Obstacle to Moro Self-‐determination”, the FAB unlike the MOA-‐AD, does not directly vest in the Bangsamoro government the joint jurisdiction with the National Government over natural resources in the territory of the Bangsamoro Government. Neither does it vest in the Bangsamoro government jurisdiction and control over strategic mineral and other sources of energy including their exploration and exploitation. However under the BBL, income from the exploration, development and exploitation of all the natural resources within the Bangsamoro shall be allocated as follows:
a. For non-‐metallic minerals such as sand, gravel and quarry resources within the Bangsamoro, revenues shall belong to the Bangsamoro and its local government units.
b. For metallic minerals within the Bangsamoro, seventy-‐five percent
(75%) shall belong to the Bangsamoro, and twenty-‐five (25%) shall go to the Central government.
c. For fossil fuels such as petroleum, natural gas and coal, and uranium,
there shall be equal sharing of income between the Central and Bangsamoro governments.
Understandably, the resource management provisions under the BBL are fraught with legal and fiscal issues and uncertainties that might impede their successful applications. Foremost of these is the power of veto by the Bangsamoro government over development projects in mining, energy and power entered into or granted by the Philippine government similar to the festering issues experienced under the Local Government Code and the Indigenous Peoples Rights Act.
As there are legislated sharing agreements in resources development contracts, there is then an urgency to review petroleum and coal services contracts, renewable energy service contracts, and mineral agreements and FTAAs under the Philippine Mining Act of 1995. The same is true in the power sector as there is a need to harmonize the provisions of RA 9136 or the Electric Power Industry Reform Act (“EPIRA”), Energy Regulations No. 1-‐94 or the Rules and Regulations Implementing Section 5 (i) of Department of Energy Act of 1992 (“ER 1-‐94”) and the Local Government Code on Royalty Tax (or National Wealth Tax) and Government Share. There is also a need to determine with certainty the role of indigenous peoples, the free and prior informed process, and the royalties extended to IPs under the Indigenous Peoples Rights Act. Perhaps the Bangsamoro can start from a clean slate learning from the successes and mistakes in resource management from the National Government. To begin with, the Bangsamoro can tap ODAs for comprehensive resources potential assessment and the establishment of a centralized data base system for mineral and petroleum resources that will be accessible to resource developers. Depending on the outcome of the final resource management structure with the Central Government under the BBL, the Bangsamoro government can then implement a transparent mineral tenement, energy service contract, and power contracts management system. Of course, there are apprehensions that the Bangsamoro during its early stages of existence is incapable of conducting the required administrative and financial know-‐how in resource management. There is an urgent need to build its capacity and knowledge in handling public financial resources and improve the quality of governance. Law enforcement and maintenance of peace and order shall be the primary function of the police force for the Bangsamoro. It remains to be seen if the Bangsamoro will be able to fully secure its territorial jurisdiction particularly from lawless elements, warlords, local militias, break-‐away rebel factions and communist insurgents, which have been the scourged of resources developers in Mindanao island. The BBL provides that the privileges already enjoyed by the local government units (“LGUs”) under existing laws shall not be diminished unless otherwise altered, modified or reformed for the purpose of good governance pursuant to the provisions of a Bangsamoro local government code. Policy issues encountered with LGUs are expected to be encountered within the Bangsamoro although at a greater and more complicated scale. Conclusion Despite the assurance by the negotiating parties of its constitutionality, the BBL bill is expected to encounter severe scrutiny in Congress. As soon as the BBL becomes law, its constitutionality or other legally controversial provisions will most likely be challenged before the Supreme Court. When the dust has settled, the Bangsamoro governance structure will surely pave the way for the region to
realize its full economic and development potential utilizing the untapped mineral and energy resources. Bangsamoro administrators through transparent management must assuage the lingering fear that resource development will not pave the way for environmental degradation or an inequitable distribution of wealth thereby negating the opportunity to improve the well being of their Moro constituents. The resources industry must share in the responsibility to ensure that inclusive growth will be achieved.
Fernando “Ronnie” Penarroyo is the Managing Partner of Puno and Penarroyo Law ([email protected]). He specializes in Energy, Resources and Environmental Law, Business Development and Project Finance.