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Achieving Compliance Despite the Shifting Political Tides

Cumplimiento de las obligaciones en un político cambiante

Tina Pimentel |

The Philippines is one of the most mineralized countries in the world. In a 2013 and 2016 survey, the Philippines ranked in the top 10 in terms of mineral potential out of 112 countries (Taylor & Green, 2017).

Mainstream paradigm acknowledges that mining contributes to economic growth and social development. But oftentimes, mining is also associated with environmental degradation, worsening inequality, conflict, corruption, displacement, and health issues.

In the Philippines, the legal framework that governs minerals management is the Mining law of 1995.  The law recognizes the economic potential of mining while adhering to sustainable development principles.

 

A Shift in Tides

On June 30, 2010 Benigno Aquino III was inaugurated President of the Philippines. He ran on an anti-corruption platform during the campaign.

The international community took notice, and invited the Philippines as one of the eight founding conveners of the Open Government Partnership when it was launched in September 2011. The Open Government Partnership (OGP), being a multilateral initiative that promotes principles of transparency, citizen empowerment, and anti-corruption, was a good fit for the goals of the Aquino administration.

Early in his term, President Aquino issued  Executive Order No. 79 (2012) providing  more concrete directives on responsible mining and environmental protection. The Executive Order also committed to the Philippines’ participation in the Extractive Industries Transparency Initiative (EITI). EITI is a global standard of transparency where mining, oil, and gas companies report how much they pay government and for government to state how much it receives from them.  A multi stakeholder group (MSG) governs the EITI. A Secretariat supports and coordinates the effort. The same E.O. also established the Mining Industry Coordinating Council (MICC). The MICC is an interagency body responsible for facilitating dialogue with stakeholders and reviewing mining related laws and conduct of auction, among others.

Former Davao City Mayor Rodrigo Duterte clinched the Presidential elections and assumed office on June 30, 2016.  One of his first actions was the release of an Executive Order 2, in July 2016.  E.O.2 operationalizes the public’s right to information involving public interest. While this E.O. is limited to offices under the executive branch, the E.O. is viewed as an important pillar in providing the right to information to its citizen’s.

 

Staying the Course despite Turbulent Waters

President Duterte made pronouncements on promoting responsible mining as a key industry for the nation’s economic growth.[1] He appointed staunch environmentalist Gina Lopez as Secretary of the Department of Environment and Natural Resources (DENR)[2]. Carlos Dominguez, a businessman with prior ties to the mineral industry[3], was named Chief of the Department of Finance (DOF).

In mid-2016, Sec. Lopez ordered an audit of existing mining operations, as recommended by Pres. Duterte.[4]  On February 2017, as a result of the audit, five mining operations were suspended and twenty-three were closed.[5]  This caused a falling out between DENR and the mining industry.  There was concern that companies would no longer volunteer to participate in EITI. This would be detrimental to transparency efforts that provide a strong foundation for policy reforms towards improved minerals management. To allay this possibility, DENR issued an Administrative Order (DAO) 17-07 on March 2017, compelling all mining companies to participate in Ph-EITI.[6].

Sec. Lopez’s pronouncements also caused a stir within the executive branch. DOF Secretary Dominguez, co-chair of the Mining Industry Coordinating Council (MICC) called for a review of the DENR orders. According to the DOF, this move was upon Pres. Duterte’s directive.

The public squabble was divisive. It had strained the cabinet and put PH-EITI efforts temporarily on hold.

The PH-EITI (EITI) Secretariat is lodged at the DOF. The change in administration put the Secretariat in an insecure situation in terms of directive, staffing and funding. The Secretariat received clear support from the DOF to fulfill its mandate only in October 2016.

Attainment of EITI compliance has been a PH-OGP National Action Plan (NAP) commitment since 2013. Despite the shifting political tides, PH-EITI has been steadfast in its work. On October 2017, its efforts were recognized as the only country that had made satisfactory progress against the 2016 EITI Standards.

 

Bantay Kita’s Efforts to Navigate the Shifting Tides

Bantay Kita (BK) is a national civil society coalition that pushes for transparency and accountability in the extractive industries. Our work is anchored on research, capacity building, and advocacy. We navigate the shifting tides through constructive multi-stakeholder engagement. BK is a PH-EITI MSG representative and a commitment holder in the PH-OGP for EITI compliance.

In the Philippines, the OGP Action Plan is co-created by civil society and government through island-wide consultations. BK actively participated in this process.  EITI had been a commitment since the 2013 OGP action plan. BK worked to help ensure that the EITI maintained its position.

To do so, we widely disseminated the invitations to the OGP island-wide consultations to members and networks of BK. We worked in collaboration with the PH-EITI Secretariat and concerned government entities to align efforts.

Bantay Kita conducts regular outreach, awareness-raising, and capacity-building activities that also contribute to the effort. We illustrate how extractives impact a community’s social, economic and environmental context.

In August of this past year, the 2017-2019 OGP National Action Plan (NAP) was approved. We have since then been implementing our commitments.

The main challenge we encountered in the development the of the NAP was competing concerns. Each group, be it government or civil society, had its own issue. Each issue was put forward. Representatives had an opportunity to explain their program– to show how it met the OGP objectives, to illustrate that it had both government and civil society support, and to assert why it merited to be considered. EITI is not easy to sell. It is technical and to many, boring. People feel more connected to other concerns like enhancing participatory audit, improving public service delivery, and increasing local government competitiveness.

 

Charting the Waters

Once the commitment was accepted, the real work began. Charting the waters is more challenging due to several issues. First is the existing legal framework for transparency. Policies that are created by executive order or department order do not carry the same weight as a law. Its application is limited, and penalties are weak compared to a law. The Data Privacy has a law, the PH-EITI and FOI have executive orders. Compelling mining companies to participate in EITI is a Department Order. The call for public disclosure in FOI is contradicted by the long list of exceptions, and provisions of the Data Privacy law.

Clear criteria of “public interest” is absent. This leaves a lot of room for discretion in determining what falls under “public interest.”

The mining law allows for multi-stakeholder monitoring of contract implementation, specifically environmental impacts of mining operations. However, there is no credible selection process of civil society representatives in the said body. There is also no room for citizen engagement in the planning stage.

Though strides have been made for increased disclosure on extractives data through the EITI reports and the contracts portal, more needs to be done. There is still a lack of access to timely, complete, reliable, and accurate data on auxiliary rights awarded to mining companies, and environment monitoring reports to name a few. By having access to these documents, communities have the bases for monitoring. Being unaware of such rights granted to mining companies often becomes a source of conflict in operating areas. Issues of land grabbing and displacement, and illegal logging abound in mining concession areas.

There is also the perennial challenge of the lack of resources and the will power to champion the reform that had been accepted. This boils down to the question of prioritization and commitment.

 

Selecting the Appropriate Vessel

Bantay Kita sees OGP as an appropriate vessel to seek allies for reforms within the OGP national and international family (EITI, FOI); a venue to collaborate; an opportunity to push for interlinking advocacies and to build trust among CSOs and between civil society and government.

Particular to BK’s advocacy, we will continue to use OGP as an avenue to drive for the harmonization and clarification of guidelines on information in favor of disclosure. In the short term define “public interest” to fully operationalize the Executive Order on FOI. In the long-term, to legislate the FOI bill. Institutionalize governance reforms (EITI) and mainstream it in the subnational level;  set timelines and monitoring government compliance for the enhancement of processes, and online platforms that are in line with the open data policy (accessible, timely, complete, usable, comparable), as well as disclosures; provide more opportunities for citizen engagement in the whole extractives value chain; clear criteria for providing permits and licenses; focus on demand-driven data by developing a more user-centered approach on determining what is relevant to stakeholder; develop redress and grievance mechanisms; and continue the facilitative and consultative work. Underlying all this, is the guarantee that basic rights to freely and confidently, express, assemble, and associate are present.

 


[1] http://www.gmanetwork.com/news/story/571062/money/economy/responsible-mining-is-a-key-to-growing-the-economy-duterte-spokesperson

[2] http://www.denr.gov.ph/about-us/mission-vision.html The DENR is responsible for conserving, managing and developing the country’s environment and natural resources, including mineral resources.

[3] http://www.bloomberg.com/research/stocks/people/person.asp?personId=260974061&privcapId=35386912

[4] http://newsinfo.inquirer.net/793912/gina-lopez-grilled-on-1st-day-at-denr

[5] http://www.denr.gov.ph/images/stories/2.3.17__Final_miningaudit__report2.pdf

[6] http://server2.denr.gov.ph/uploads/rmdd/dao-2017-07.pdf