RENEWING THE CALL FOR LEGAL RECOGNITION OF COMMUNITYBASED PROPERTY RIGHTS FOR MINING COMMUNITIES

Mt. Canatuan is our sacred mountain. That is the place where the mortal and the immortal made their first pact. We have not committed sins towards the people or government of Canada. We do not even know where or what Canada is! Hopefully the people of Canada and the government of Canada will help stop the destruction of our sacred places. Thank you. Timuay Fernando Mudai

Look, that dam could break at any time, maybe next week, maybe tomorrow, I dont know. But I do know that when it does happen, my house and my family will probably be destroyed. And just like last time, the company will blame it on an Act of God. I want that picture to exist, so that people can know what happened. For that, I would be willing to sacrifice myself.

Imaginebeing forced into a situation where you lived in a houseand a contractor puts a huge swimming pool up on your roof. You then suddenly receive a secret report that says the roof can cave in at any time and the water can drown you and your children who live below!How would you feel if you had no other place to live? If you feel desperate, you have just put yourselves in the shoes ofalmost 100,000 villagers in my home province of Marinduque. - Congressman Edmund Reyes from Marinduque.

Primary legitimacy is drawn from the community in which they exist, and not from the nation state in which they are located.

Not granted by the state Recognized by international, anthropological and natural law concepts Does not specifically refer to what kind of rights exist but primarily on the existence of such rights.

Refers to the primary right of local communities (whether indigenous or otherwise) to manage and control their natural resources.
NOT community-based natural resource management NOT merely a common property or community property regime NOT co-management and joint management

Enforced by the community

Establishment of rights and obligations regarding natural resource management

Long established communities have a more developed understanding and reliance on CBPRs with respect to natural resource management owing to their inherent knowledge of local conditions

While this refers to indigenous communities, the term does not exclude other local communities

While such rights are not granted by the State and its recognition by the State is not required for its existence, the recognition by the State of CBPRs is desirable for:
It facilitates the enforcement of such rights by the State; It promotes environmental justice; It aids the government in fulfilling its responsibility to resource-dependent communities; It provides an assurance to the people that they will benefit more from their investment in terms of time and labor; It would promote the involvement of local and indigenous communities in protecting ecosystems and natural resource areas.

PUBLIC

PERSONAL

GROUP

PRIVATE

YES. Indigenous peoples.

Article XIII, Section 6 of the 1987 Constitution recognizes the right of indigenous peoples to their ancestral lands.
Article XIII, Section 7 of the 1987 Constitution provides:
Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

Local subsistence fishermen

For indigenous peoples (IPRA)

Right to ownership by way of native title

Right to develop lands and natural resources Right to stay in the territories Right in case of displacement Right to regulate entry of migrants Right to safe and clean air and water Right to claim parts of reservations Right to resolve conflict Right to alienate ancestral lands in accordance with customary law Right to redemption

Under an indigenous concept of ownership

For subsistence fishermen, only such rights enumerated in the Constitution are recognized.

For local communities, the Sections 2(c), 26, and 27 of the Local Government Code explicitly require , before the implementation of a project, the conduct of prior consultations by the National Government with the local government units, nongovernmental organizations, and other sectors as well as the approval of the Sanggunian concerned. In Alvarez v. PICOP Resources, Inc., G.R. No. 162243, December 3, 2009, the aforementioned requirement was held to be mandatory.

Right to a healthful and balanced ecology Right to free, prior, and informed consent Right to a livelihood Right to self determination Right to information Right to life and all other rights necessary for a dignified life

With respect to mineral resources, however, the State retains ownership thereover as well as the prerogative to explore, develop, and utilize the same under following modes allowed under Article XII, Section 2 of the Constitution:

Direct development by the State; Co-production, Joint Venture, or Production sharing agreements with Filipino citizens or corporations whose sixty percentum of capital is owned by Filipinos; Small scale utilization by Filipino citizens; and Financial and Technical Assistance Agreement with foreign-owned corporations

Somewhere along the line however, local communities were removed from the picture except only insofar as the safeguards of prior consultation and approval as provided by the Local Government Code.

Project specifications

The Tampakan deposit is one largest undeveloped copper-gold deposits in the Southeast Asia-Western Pacific Region
of gold.

Totalling 2.2 billion tons of 0.6% grade copper and 0.2 grams per ton

According to its projected timeframe, the mine will be operational by 2016

It has the capacity to process at a rate of 66 million tons per year and

is projected to yield 340,000 tons of copper and 350,000 ounces of gold per year Once operational, the mine is expected to operate for at least 20 years

Project location

Area is within 4 municipalities in 4 provinces and 2 regions (Region 11 & 12) Tampakan, South Cotabato Kiblawan, Davao del Sur Columbio, Sultan Kudarat Malungon, Sarangani

Project facilities:

Open pit mine Ore overland transport Copper concentrator Tailings storage facility

Waste rock storage facility Aggregate quarry and borrow pits Water treatment plants Freshwater storage facility Administration facilities

Off-site facilities include the following:

Concrete pipeline (for mining effluent) Power station Transmission lines Ship loading facility Mine site access roads

BENEFITS

DETRIMENT

Employment opportunities Development of communal infrastructure Annual royalties for Indigenous Peoples Potential for rural development

Mining wastes pose a real and significant biohazard Threat to local water supply Dust, noise, and vibration impact from mining operations Displacement of communities Legacy of mining operations

Disturbance of ecosystem and biodiversity Long term contamination of the environment

THIS IS NOT THE ULTIMATE SOLUTION Legal recognition of not only an individual but a community

Recall that public group rights are the strongest

From the perspective of Environmental Justice, it is the empowerment of the minority and the weak whose interests are often forsaken by the majority, those politically relevant, and even the State which is duty-bound to act and protect their rights and interests

Pictures were taken from:

http://saverapurapu.blogspot.com/2008/07/revisiting-marinduque-mining-disaster.html http://ledzep.biz/aga/?p=268 http://www.adnu.edu.ph/institutes/inecar/rapu-rapu/reason03.asp http://en.wikipedia.org/wiki/File:CanatuanCopperMine.jpg http://bvmolm.blogspot.com/ http://pcij.org/stories/the-canadian-quandary/ http://t0.gstatic.com/images?q=tbn:ANd9GcR5ZyIM32FYH-TRkYxYXO3nHz4QFj5lOurMg2bP_2OCahC_NlaB http://t1.gstatic.com/images?q=tbn:ANd9GcQQYZ0OSab-1Fs3y-Z1ngu4RR74Y49Lf3xV4BLTXIGGvqB6vAho http://t0.gstatic.com/images?q=tbn:ANd9GcT_8RcmJIAQU32BWmjA7tDduv7LU6VPQZzWauciICgDoq_TV0F7 http://t1.gstatic.com/images?q=tbn:ANd9GcStqUf9R84pT1i6tHL7pE4Eb6kgeEq7iCM4Gk0_IJGqjN4YwQnFQA http://t1.gstatic.com/images?q=tbn:ANd9GcRwXArDHshmQbW2ZYoNc1hLS-qNL5iAj5iNpbBMwunC2cL-Vt1F http://alexfelipe.wordpress.com/2009/06/07/all-that-glitters-nominated-for-a-natl-mag-award/ http://1.bp.blogspot.com/_YlGMhFSZf9o/TAzH_QH1KHI/AAAAAAAAAUU/jMbD7f8IobM/s1600/Photo+13.j pg http://www.smi.com.ph/publications_library.cfm

Lynch, O., Promoting Legal Recognition of Community-Based Property Rights, Including the Commons: Some Theoretical Considerations, Symposium of the International Association for the Study of Common Property and the Workshop in Political Theory and Policy Analysis, Indiana University, Bloomington, Indiana, June 7, 1999. Lynch, O., Community-based Property Rights (CBPRs): A Concept Note. Center for International Environmental Law Issue Brief (2002). Lynch, O. and Maggio, G., Mountain Laws and Peoples: Moving Towards Sustainable Development and Recognition of Community-Based Property Rights, Center for International Environmental Law Washington, DC, USA.