Since the AMB is intended to replace the Mining Act of 1995 (really an entire Code!), it is understandably very long (40 pages) and its inter-related provisions are quite complicated. In fact, it took several years for Legal Rights and Natural Resources Center (LRC) to finish writing the draft which Tañada and Hontiveros are now championing. (Lets not even mention the obligatory consultation processes with "experts", partner NGOs and their "client" communities--those took even longer!) This personal reaction is not an exposition of the entire bill but focuses only on the provisions that I'm most familiar with. I happen to have been consulted in the re-writing of an existing draft of LRC's AMB and particularly to suggest additional provisions about "governance", i.e., what mechanisms/governmental organizations are most appropriate to implement the alternative policies embodied in the existing draft. (However, the draft underwent further revisions after I worked on it and the bill as filed differs somewhat from the said draft.)
But, OK, a very brief (and selective) overview as you wish:
A well-considered "summary" of the AMB in one sentence is this pronouncement of a Cagayan de Oro priest: ""The AMB aims to bring back [mining] within the framework of national development, the right of peoples to self determination, and respect for human rights and the environment."
This statement would sound less "big" if only we consider the main headings and key themes of the AMB. I would identify the main headings/key themes this way:
- economic provisions, or HOW the economic benefits from mining can be expanded from merely earnings by the national government from the export of mineral ores (the current policy) to generation of downstream industries and real job creation for local communities (now that's national development!);
- self-determination provisions, or WHY mineral resources should be thought of not merely as "national wealth" but more importantly as "local wealth", which is also WHY local communities' (including indigenous peoples') decisions whether and how to exploit this wealth matters;
- environmental provisions, or HOW we can better ensure that the mining industry does not create environmental problems that outweigh the economic benefits it brings, and that the industry cleans up the mess when they do mess up (e.g., through an environmental insurance scheme);
- governance provisions, or WHO will implement all these above-mentioned neatly conceived policies and HOW will they make their decisions? (a.k.a., the realpolitik of the new mining regime).
In my humble opinion, although the most substantive innovations of the AMB deal with the HOWs and WHYs, the really crucial question is WHO? Who should be given the power to make these dreams reality?
Quite obviously, the AMB rejects the current emphasis on the powers and discretion of the National Government (a.k.a., the President) over mineral resources. There is a very strong localization current in the AMB's economic and self-determination provisions. For example, mineral resources within ancestral domains are formally recognized to belong to the indigenous peoples not to the State (a consequence of historic title); and while those outside such domains do belong to the State, the State is obliged to ensure that benefits from mining these resources accrue first to local communities affected by mining operations.
But WHO will ensure these newly recognized interests of local communities (including indigenous communities)?
Here, the AMB, I think, only half succeeds.
The AMB makes a basic conceptual advance by defining the term "local community", previously a mere buzzword with rhetorical uses but no legal meaning. The AMB says "local community" shall be defined in relation to a watershed so that all those who depend on the watershed threatened by a (proposed) mining operation form a community. Its an innovative concept which, as far as I can tell, has its origin in Sixto K. Roxas. The eco-system defines the boundaries of the local community, and for the purposes of a mining law, the relevant eco-system is the watershed. It recognizes the political boundaries of barangays, municipalities, cities or provinces do not cordon off the environmental effects of a mining operation; rather, they can spill over to the entire watershed. Hence, the "local community" in the AMB is not the barangay, not the municipality or city, nor the province. Rather, the "local community" is an environmental community.
I say the AMB only half succeeds because it does not really carry through the full implications of this newly minted concept of "local community" as an environmental community. If this is how "local community" is to be defined as the AMB says it should, then who should represent the interest of this "local community"?
The AMB does not identify representatives of local communities beyond the existing local government units and NGOs themselves. Under the AMB, the Multi-Sectoral Mineral Council is the political body that makes all the mining decisions from deciding whether to open a demarcated area with known mineral reserves to monitoring compliance by mining companies with mining agreements the Council approves. The Council is composed of representatives from LGUs and NGOs as well as the National Government and indigenous peoples.
But it is not so obvious that the boundaries of local communities coincide with the boundaries of local governments. If the boundaries of a local community is determined by the affected watershed, then a local community can be as small as a cluster of a few contiguous barangays or as large as the entire island of Mindanao. It will not do to simply say the local community will be represented by all the affected provinces or cities. The NGO advocates who prepared this bill know only too well that different levels of local governments (e.g., baranggay vs. city vs. province) often disagree about mining within the same territorial jurisdiction. Conflict can also exist among different territorial jurisdictions within the same watershed. In fact, one weakness of the Mining Act of 1995 that NGO advocates of the AMB have always drumbeat is the potential chaos that it incites among different local governments.
With all due respect to NGOs, it is also not so obvious that the interests of local communities can be conflated with the interests of unelected NGOs no matter how well-meaning and how good their track records are in empowering people.
The rationale behind the composition of the Multi-Sectoral Mineral Council therefore escapes me. The National Government is a minority in the Council (2 representatives); all the affected provincial and city governments (but not baranggays -- why?) and NGOs get represented. The number of LGU representatives is equal to the number of NGOs. What's happening here? Is this the AMB's formula for local community representation? Half part LGUs, half part NGOs?
It would be simpler if "local community" were also seen as a new unit of local environmental governance (specific to mining) and independent of the LGUs, and if members of the local community are directly represented through elections. Unfortunately, the AMB as it now stands stops short of doing this.
Instead, the local community (insofar as they are not already theoretically represented by LGUs and NGOs) is relegated to good old-fashioned "consultation" (which is the same as in the current Mining Act of 1995 and Local Government Code, and which NGOs ironically have previously criticized as insufficient).
And what about indigenous communities? Will they themselves manage the mineral resources that they supposedly own under the provisions of the AMB?
I regret to say this but the AMB actually makes a total mess here. After saying that indigenous peoples own and should administer mineral resources within their ancestral domain without external interference etc. etc., it nevertheless gives the power to manage their minerals to the Council. Oh yes the affected indigenous communities get represented in the Council (see Sec. 38 of the AMB) but as far as I can tell, they can be minoritized there easily. So much for self-determination.
Actually, my motivation for sharing this personal reaction is a bad dream. During the day, I fantasized that Tañada et.al. miraculously managed to convince the House that the AMB should be passed without any major revisions. Then I dozed off. In the ensuing dream, the DENR then drew up the implementing rules and regulations. In the implementing rules, the NGO representation in the Multi-Sectoral Mineral Council was indeed honored, except that the President gets to appoint which NGOs get to sit.
To the AMB, the best of luck!
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