PMPI’S CONCERNS REGARDING THE EXPLORATION, DEVELOPMENT AND USE (EDU) OF NATURAL RESOURCES UNDER THE REGIME OF THE DRAFT BASIC BANGSAMORO LAW (BBL)
Philippine Misereor Partnership Inc. (PMPI) supports the creation of the Bangsamoro Government and all the processes leading to its realization. As part of the continuing peace process, we believe that the proposed Bangsamoro Basic Law (BBL) is a big step in the right direction toward achieving lasting peace and development in Mindanao as the Bangsamoro will eventually be transformed into a political reality and hopefully will increase the momentum for the economic empowerment of the Bangsamoro people. This is a significant and crucial process that we as a nation should collectively take part with greater resolve and creativity.
With this imperative, PMPI continues to engage the process by providing platform for dialogue and transformative action. As a network of more than 300 faith-based organizations, CSOs, and people’s organizations, PMPI values the promotion of total human development anchored on the principles of sustainable development, human rights, peace based on justice, good governance, and gender fairness. One of the major advocacies of PMPI is the stewardship of our natural resources which recognizes our individual and collective right to the beneficial use of our natural resources with the correlative duty to manage, enhance and conserve it for future generations. This should be accompanied by a clear rules and processes on access and benefit sharing that is inclusive, non-discriminatory, transparent and accountable.
In this regard, we take note of some key provisions of the draft BBL under Article XII on Fiscal Autonomy and Article XII- Economy and Patrimony. These are critical provisions in fleshing out the normative conduct and standards on how individuals and communities should partake of the benefits derived from the use, development and utilization of the natural resources within the sphere of their political aspirations as well as their social and cultural identities.
1. On Definition of terms. There is a need to define the terms used in the draft BBL. Very prominent in the provisions is the used of the term “bona fide inhabitant”. We refer in particular to:
Article XIII Section 11. Preferential Rights of Bona Fide Inhabitants of the Bangsamoro. – Qualified citizens who are bona fide inhabitants of the Bangsamoro shall have preferential rights over the exploration, development, and utilization of natural resources, including fossil fuels (petroleum, natural gas, and coal) and uranium, within the Bangsamoro territory. Existing rights over the exploration, development and utilization of natural resources shall be respected until the expiration of the corresponding leases, permits, franchises or concessions, unless legally terminated.
The proposed law should have a concise definition of this term since it could present an opportunity to “outsiders” who has capital and resources to gain control and unbridled access to exploration, development and use of natural resources. Without a tight definition guided by the spirit of the BBL of providing preferential treatment to members of the Bangsamoro and Indigenous Cultural Communities (ICCs), any person who has established residence or physical presence either as occupant, tenant or any possessory rights within the jurisdiction of the autonomous government may be considered a bona fide resident. In the context of imbalance of power, resources and information on which the BBL will operate the policy objective of democratizing access and benefit might remain unchecked. Hence, it may only perpetuate further exclusion and marginalization of the powerless which the Bangsa Moro governance wants to address in the first place.
Worthy of mention is the use of the term “non-living resources”.
Article XIII Section 20. Exploration, Development and Utilization of Non-living Resources in the Zones of Joint Cooperation. The Joint Body for the Zones of Joint Cooperation shall ensure the cooperation and coordination between the Central Government and the Bangsamoro Government on the exploration, development and utilization of non-living resources in the Zones of Joint Cooperation and determine the sharing of income and revenues derived therefrom
How is this different from mineral resources? The provision implies that it will create differential treatment in terms of the sharing of income. This “non-living resources” should have a clear, substantial and distinctive characteristic from the other resources under the BBL such mineral resources, energy among others to justify a separate regime of income and revenue sharing.
2. On the Exploration, Development and Use (EDU) of Natural Resources and FPIC[1]. We note that the draft BBL will have considerable impacts on current laws. One of which is the law governing the Exploration, Development and Utilization of natural resources under the existing governmental framework. Of particular importance is the fiscal regime and sharing agreement between the national government and the Bangsamoro Government and between the Bangsamoro Government and Indigenous Cultural Communities (ICCs) and closely link is to this is the recognition of the rights of the IPs relating to access and control over their ancestral domain via the Free, Prior and Informed Consent (FPIC), which we positively note as recognized by the draft BBL in the article below:
Article XII Section 12. Rights of Indigenous Peoples over Natural Resources. – The Bangsamoro Parliament shall enact a law recognizing the rights of indigenous peoples in the Bangsamoro in relation to natural resources within the territories covered by a native title, including their share in revenues, as provided in this Basic Law, and preferential rights in the exploration, development and utilization of such natural resources within their area.
The right of indigenous peoples to free and prior informed consent in relation to development initiatives shall be respected. (underscoring supplied)
However, we believe that the FPIC process should not only be resorted to in the context of EDU of natural resources found within the ancestral domains of the ICCs. It should be a major process even before the ICC’s are covered/included within the scope of the BBL. FPIC is not only constitutionally mandated but it is an international standard under international and human rights laws. Equality demands that the ICCs whose rights are recognized by the 1987 Constitution and the Indigenous Peoples’ Rights Act (IPRA) should be asked and consulted through FPIC process, whether or not they would want to be part of the Bangsamoro autonomous region.
Specific provisions of the UN Declaration on the Rights of Indigenous Peoples[2] are instructive on this note:
Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Furthermore, we support the proposal that the Indigenous People’s Rights Act be affirmed in the Bangsamoro Basic Law because like the BBL, IPRA is a product of a long history of the Indigenous People’s struggle for self-determination.
3. Revenue sharing from EDU of natural resources. The relevant provision is as follows:
Article XII Section 32. Sharing in Exploration, Development and Utilization of Natural Resource. – Central Government income from taxes derived from the exploration, development and utilization of all natural resources within the Bangsamoro shall be allocated as follows:
a. For non-metallic minerals (sand, gravel, and quarry resources), such revenues shall pertain fully to the Bangsamoro and its local government units;
b. For metallic minerals, seventy-five percent (75%) shall pertain to the Bangsamoro;
c. For fossil fuels (petroleum, natural gas, and coal) and uranium, the same shall be shared equally between the Central and Bangsa Moro Governments.
Such sharing scheme shall be applicable to the natural resources found in the land mass that comprise the Bangsamoro territory as well as the waters that are within the territorial jurisdiction of the Bangsa Moro.
This section is not clear on two counts:
1. The 75% share of the Bangsamoro referred in the foregoing provision with respect to metallic minerals is not clear where such percentage will be based. Although the first sentence refer to “central government (‘s) income from taxes”, will this refer to gross or net income derived from such EDU of natural resources.
2. Applying the rules mentioned in pars. a, b and c as provided in the last paragraph will not also help in defining the sharing agreement as applied to other natural resources. Do the natural resources defined in this paragraph refer to the resources defined in the 1987 Constitution under Article XII on National Economy and Patrimony, Sec. 2 thereof “such as fisheries, forests, or timber, wildlife, flora and fauna and other natural resources”? Such blanket reference to “natural resources” does not add up to the clarity of how income and revenue sharing will be done given the different characteristics and manner of EDU that may be applied to such natural resources.
4. Compensation of victims adversely affected by mining and other activities in the harnessing of natural resources.
Article XIII Section 16. Legislating Benefits, Compensation for Victims and Communities Adversely Affected by Mining and Other Activities that Harness Natural Resources. – The Bangsamoro Parliament shall enact laws for the benefit and welfare of the inhabitants injured, harmed or adversely affected by the harnessing of natural and mineral resources in the Bangsamoro. Such laws may include payment of just compensation to and relocation of the people and rehabilitation of the areas adversely affected by the harnessing of natural and mineral resources mentioned above.
The provision is laudable since it specifies the need for legislation to compensate the victims and communities affected by mining and other extractive activities. It is proposed however that legislation should focus also on the preventive mechanism. The UN Guiding Principles on Business and Human Rights (BHR), under the Protect, Respect and Remedy Framework[3], to which the Philippine Government is a signatory, offer the normative conduct on how states and business enterprises (BEs) should ensure that the harm to individuals and communities be prevented even prior to its operation. The Bangsa Moro government will conduct such EDU of mineral resources either through agreements such as the Financial and Technical Assistance Agreement (FTAA) with private companies, foreign or domestic or through the Government-owned or controlled corporations (GOCCs). It is suggested that the process of conducting due diligence by private entities and GOCCs be considered as part of the preventive mechanism. The human rights impact assessment (HRIA) is a tool that can inform the due diligence process which is intended to determine the human rights risk that may be entailed by the mining project or operation[4]. And this can be done prior, during or after the operation.
Likewise, should the harm be actually inflicted directly or indirectly by the private entity, remediation, compensation or the termination of the activity should be the alternative courses of action. Thus we recommend that the foregoing provision should use the word “shall” instead of the word “may” which is merely discretionary insofar as the compensation of victims is concerned.
The use of the precautionary approach in allowing any activities related to harnessing of the mineral and other natural resources should also guide and inform the policies or the proposed legislation mandated under this section.
5. Small-scale mining. The relevant provision is as follows:
Article XIII Section 15. Regulation of Small-Scale Mining. – Small-scale mining shall be regulated by the Bangsamoro Government to the end that the ecological balance, safety and health, and the interests of the affected communities, the miners, the indigenous peoples, and the local government units of the place where such operations are conducted are duly protected and safeguarded. (underscoring supplied)
It is hereby proposed that the term “affected communities” be qualified by the term within the “watershed continuum”. Hence, it should read as follows:
Section 15. Regulation of Small-Scale Mining. – Small-scale mining shall be regulated by the Bangsamoro Government to the end that the ecological balance, safety and health, and the interests of the affected communities within the watershed continuum, the miners, the indigenous peoples, and the local government units of the place where such operations are conducted are duly protected and safeguarded.
The impacts of mining whether large or small scale have been shown to have considerable environmental impacts from ridge to reef.
6. Governing regulatory and environmental laws during the transition period. The BBL under Article XVI, Bangsamoro Transitory Authority, explicitly provides for the functions of the governmental structure to be created while undergoing transition from being a provisional governmental and administrative structure to a full blown autonomous government of Bangsamoro people. We noticed that the proposed BBL is silent on the governing laws relating to the EDU during the transition.
It is suggested that there should be explicit provisions on the application of all existing regulatory and environmental laws, policies and related laws insofar as the management, use, conservation and utilization of natural resources within the Bangsamoro region including the application of the subsisting .regional laws passed by the Autonomous Region Muslim Mindanao during the transition period.
We close with a prayer that our legislators in Congress will undertake the broadest possible public consultation and constructive debate on the Bangsamoro Basic Law and finally craft each of the provisions of the Bill with a lens and a heart seeking to achieve Peace but ensuring inclusivity – so that all peoples in Mindanao are heard and recognized and that the earth’s resources, especially in Mindanao which is the very source of our life is given primordial care. PMPI will continue to engage the BangsaMoro beyond the passing of BBL to ensure that the spirit of the law, to serve the common good especially of the Bangsamoro people can be fully realized.
Philippine Misereor Partnership Inc.
29 October 2014
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*** The Philippine Misereor Partnership Inc. (PMPI) is a network of people’s organizations (POs), non-governmental organizations (NGOs), church/faith based groups and Misereor, the overseas development agency of the Catholic Church in Germany involved in community development and advocacy for justice, peace and integrity of Creation.
[1] Free and Prior Informed Consent — as used in this Act shall mean the consensus of all members of the ICCs/IPs to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community; Chapter III, Sec. 3 par. g, Republic Act 8371, The Indigenous Peoples Rights Act of 1997 available at http://www.gov.ph/1997/10/29/republic-act-no-8371/
[2] UN A/RES/61/295, available at http://daccess-dds un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf
[3] More popularly known as the Ruggie Framework, which is founded on three pillars: “the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that may occur; and greater access by victims to effective remedy, judicial and non-judicial,
Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (A/HRC/17/31) p. 4
[4] See UN Guiding Principle No. 15.
