Atty. Julius Gregory Delgado
ON WHY OPEN-PIT MINING CANNOT BE PROHIBITED BY A LOCAL ORDINANCE
Considering that the country is cash-strapped and debt-laden because of intense borrowings made to address the COVID-19 pandemic, not to mention the looming energy and food security crises brought by international upheavals, the National Government sees reviving and revitalizing the mining industry as one of the solutions that would address our problems, especially in terms of revenue and employment generation.
Unfortunately, one of the challenges faced by the mining industry is the resistance of some local government units, usually prodded by anti-mining interests, which led to the passage of local ordinances banning open-pit as a mining method. As differentiated from underground mining, open-pit mining or surface mining is a method wherein you will be scraping the surface to access and extract the ore body which is usually very shallow and for which reason underground mining is not technically feasible.
Legally, a local ordinance which bans open-pit as a mining method is invalid and ultra vires. This is because what is allowed by the national laws enacted by Congress cannot be prohibited by an ordinance. In Batangas CATV vs. Court of Appeals, 439 SCRA 326 (2004), the Supreme Court held that an ordinance which is in conflict with a state law of general character and statewide application is universally held to be invalid:
“It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid. The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state. In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law.” [at page 342: emphasis and underscoring supplied]
Further, in Lina, Jr. v. Paño, 364 SCRA 76 (2001), the Supreme Court held, commenting on local autonomy, that such “freedom to exercise contrary views does not mean that local governments may actually enact ordinances that go against laws duly enacted by Congress”.
Now, the Philippine Mining Act of 1995, open-pit or surface mining is not prohibited. In fact, Section 66 thereof regulates the same, to wit:
“Section 66. Mine Inspection – The regional director shall have exclusive jurisdiction over the safety inspection of all installations, surface or underground, in mining operations at reasonable hours of the day or night and as much as possible in a manner that will not impede or obstruct work in progress of a contractor or permittee.” [Emphasis and underscoring supplied]
Furthermore, the Implementing Rules and Regulations of the Philippine Mining Act did not prohibit but merely regulated open-pit or surface mining activities. The DENR also issued DAO 98-00 (Mine Safety and Health Standard) which clearly allows open-pit or surface mining activities, subject to certain rules and regulations by the State. In fact, DAO 98-00 even devotes an entire chapter on surface mining rules, thereby dismissing the notion that open-pit or surface mining is a prohibited activity. Thus, it is very clear that local ordinances must conform and should not contradict our national laws and their implementing issuances.