THE PITFALL OF THE BAN ON OPEN PIT MINING

Just days before Gina Lopez’s appointment as Environment secretary was formally rejected by the Commission on Appointments, she issued a ban on open pit mining through Department of Environment and Natural Resources ( DENR) Administrative Order No. 2017-10. Officially, the subject of the said DAO is “Banning the Open Pit Method of Mining for Copper, Gold, Silver, and Complex Ores in the Country.”

Recently, DENR Secretary Roy Cimatu revealed in a briefing that President Rodrigo Duterte ordered him to look at alternatives to open pit mining in extracting the country’s mineral wealth. According to Secretary Cimatu, the Mining Industry Coordinating Council (MICC) would convene on Oct. 24 to operationalize this instruction from the President. Of course, Ms. Lopez, along with anti-mining groups, continues to advocate for maintaining the ban, again through public appeals, while the industry pins its hope on the MICC review.

DAO 2017-10 is problematic because it seems to address a problem not caused by the subject of the ban. In particular, the DAO characterizes the open pit method of mining as: “the extraction of metallic ores from a surface excavation resembling roughly an inverted cone with benches along its walls.” In describing the problem addressed however, the DAO points to a different aspect of mining, to wit:

Whereas, the history of mining in the country shows that most, if not all, open pits have ended up as perpetual liabilities, causing adverse impacts to the environment, particularly due to the generation of acidic and/ or heavy metal- laden water, erosion of mine waste dumps

Further, DAO 2017-10 goes on to claim that, “records attest that most of the mining disasters in the country were due to tailings spills associated with open pit mining.”

Based on the clauses cited, the DAO puts a stop on open pit as a method of mining despite identifying the mine tailings as the culprit for environmental degradation. In other words, the problem identified is not the environmental disturbance due to open pit as a particular method of mining, but rather the pollution caused by mining per se. Simply put, are tailings spills not also associated with mine tunneling or the other methods of mining?

Following this reasoning in environmental policy making will yield absurd results. Thus, if the logic of banning an industry activity is rooted on the waste such activity generates, then there should likewise be a ban on factories for having a “history” of polluting our air and our rivers. Clearly, this regulation should be addressing not the method for extracting minerals, but the management and disposal of waste or mine tailings.

In fairness, DAO 2017-10 makes an effort to directly tie the open pit method to a perceived environmental issue, thus:

Whereas, notwithstanding the provisions of the Mining Act on final mine rehabilitation and

decommissioning, the fact remains that the rehabilitation of mined- out open pits shall invariably require perpetual maintenance works that shall outlive the existence of mining companies and, thereby, leave to the unknown the fate of the environment.

First, the use of “invariably” and “perpetual” to describe “maintenance works” reeks of speculation unworthy of an executive department policy. The language used betrays real examples all over the world of open pits that have been turned into other productive land uses. Perhaps, the DAO is referring to abandoned or legacy mines in the country, which really pose serious environmental issues, but nonetheless solvable ones, and by no means perpetual ones, if addressed properly.

Second, the use of the word “notwithstanding” cannot justify labeling open pit as a perpetual liability in the face of clear provisions of law on final mine rehabilitation and decommissioning. Either the crafters of DAO 2017-10 do not want to implement the Mining Act, in clear violation of their mandate, or they simply do not understand what said law means vis- à- vis the mining industry. On this note, it is worth asking how many final mine rehabilitation and decommissioning plans (FMRDP) have been approved by the DENR and actually implemented by the proponents to warrant stating that open pits will forever be a problem despite the statutory provisions on rehabilitation.

From the foregoing, the current DENR administration must seriously consider overturning the ban on open pit mining as embodied in DAO 2017-10. Given that there is a palpable disconnect between the means employed and the environmental problem sought to be addressed, unintended adverse results will be inevitable. Certainly, the general consequence for pursuing this policy is the crippling of a legitimate industry without effectively confronting both the issue of open pit mining and of tailings management.