Hammering a Productive Dialogue
March 13 - 14, 2019 was a milestone for Bantay Kita (BK), more than a hundred stakeholders from government, mining industry and civil society organizations gathered to discuss in a Forum on Responsible Mining.  In collaboration with the Chamber of Mines of the Philippines (COMP), Philippine – Extractive Industry Transparency Initiative and Mining (PH-EITI) and Mines and Geosciences Bureau (MGB), the third and bigger set of stakeholders broke barriers and  discussed their points of convergences and divergences on responsible mining.
 
The forum was third in a series of initial three forums to start discussions on what should be the definition of Responsible Mining in the Philippines. In November and December 2018, the multi-stakeholder group of BK, COMP, PH-EITI and MGB organized the first two Round Table Discussions on responsible mining - including large scale and small scale metallic and non-metallic mining. Experts from the academe, NGO leaders, government officials and industry representatives tackled the issue of conflict sensitivity, labor issues, environment, revenue, planet, profit, and people.  The discussions were lively, with conflicting opinions but everyone was generally respectful and even good humored in their discourse.
 
Existing Mining Standards and Monitoring Frameworks: National and International
Assistant Professor Jo Dionisio from the University of the Philippines Diliman Sociology Department, who was one of the panel reactors to the initial discussion results, gave a very good challenge at the end of her session – “Safe statements that highlight convergences are good but acknowledging divergences, even if uncomfortable, is necessary to filter the non-negotiable and to extract compromises from each sector.”
 
An industry leader shared his insights from his 30 years of experience and gave honest perspectives on their struggles, “We can accept no (as a response to a question if the industry can accept “no to mining” from communities and other stakeholders), but we want a consistent answer – it cannot be yes now and no later, we have to ensure that our investments will generate returns.”
 
An equally honest and passionate NGO leader shared their struggles and perspectives from the community, “We have been talking about our community issues and concerns for the past 30 years but we do not get reliable answers and assurances.”
 
Everyone shared their points, everyone listened.
 
Lisa Sumi; a representative from the US-based Initiative for Responsible Mining Assurance (IRMA) - a global non-profit organization with a mission to protect the environment, mine workers and communities directly affected by mining; shared IRMA’s Standard for Responsible Mining. Joan De Venecia-Fabul of Philex Mining Corporation shared COMP’s plan and partnerships with Towards Sustainable Mining (TSM) standards from Canada. Rodolfo Velasco and Larry Heradez from MGB presented their Tenement, Safety and Health, Environment and Social (TSHES) monitoring framework and Nieva Natural of Mining Industry Coordinating Council (MICC) shared their mining audit framework.
 
Their sessions generated a lot of questions and discussions that redounded to specific steps and suggestions on structures and mechanisms on how to improve monitoring and on how bring forward the discussions at the regional levels.
 
Collaborative Approach: Shared Responsibility, Joint Solutions
 
The two-day activity resulted in a joint call to action – to have  a shared responsibility and therefore shared actions on how to move forward in coming up with more holistic standard on responsible mining. The following are the top action points from the forum and the action planning session: 1) working together to develop responsible mining standard by reviewing current frameworks and guiding laws and policies, 2) identify ways on effective monitoring (e.g. self-monitoring, multi-stakeholder monitoring, third party monitoring), 3) how to prepare and roll out  effective transparency and accountability mechanisms using the monitoring results, 4)discuss and collaborate on enabling governance mechanisms, and 5) working together and build on current level of openness and collaborative engagement.
 
This can effectively happen in a multi-stakeholder platform with effective and meaningful participation of all stakeholders. “All of us are gathered here out of love and concern for our country, for our fellow Filipinos, because we want our nation to develop sustainably. We persist until we achieve our objectives, and we keep working towards convergence and synergy,” said Atty. Karla Espinosa, National Coordinator of PH-EITI.
 
At the end of the forum, the sentiment that resonated with everyone was, “We all love our country, we are all patriots and we are all committed to move this forward.” Norie Garcia, Bantay Kita’s Interim National Coordinator ended the forum and workshop by thanking everyone for their openness, commitment and attitude to forge collaborative engagement. 

The gathering also served as the election of new global council members. Chadwick Llanos of Bantay Kita was one of the newly elected global council membersto represent the Asia Pacific Region. The newly elected global council ratified the new five-year strategy.
 
Current context of disclosure
The different plenary and breakout sessions provided venues to share and learn different country context on how to enhance disclosures and on how to push for more citizen participation and greater accountability. For example, in the Philippines, gender related disclosures on employment have been available for the last two years but there are specific issues that need more attention like the role and impact of mining in women and the related governance issues that need to be addressed.
 
There was also emphasis on the need for more disclosures on social and environmental payments and issues on labor rights, health and safety - not just of laborers but as well as of those of communities.
 
Calling for social and environmental disclosure
In the Philippines, for the past several years, the CSOs have been clamoring for the disclosure of social and environmental impacts of the extractive industries. This has been more pronounced given the context of climate change vulnerability and the resulting hazards. Now that the global strategy is pushing for this and how it should be reflected in the international EITI standards, the CSOs in the PH-EITI multi-stakeholder platform can have stronger support and basis to demand disclosures and transparencies on these areas.
 
For example, environmental disclosures such as auxiliary rights on water and timber are not publicly disclosed. Tree cutting and water permits are easily granted to mining companies with less or no regards over communities’ rights to these resources. CSOs, over the past several years, have been asking for disclosures on these natural resource use  primarily because these ‘rights’ have been exploited by mining companies.
 
At the end of the Global Assembly, the Coalition called on the EITI to include social and environmental disclosures and publish contracts and licenses.
 
Moving forward
With the new global agenda, Bantay Kita will be able to put forward the communities’ agenda on gender, labor, social and environmental issues and continue its advocacy and facilitation of significant reforms in natural resource governance.
 
Bantay Kita will continue to build on its initial achievements to make transparency and accountability work for the communities it serves. The direction is to make transparency and accountability work such positive actions and outcomes will redound to the communities where it matters most. 

Bantay Kita questions the decision of the House of Representatives – Committee on Ways and Means in fast-tracking the approval of the unnumbered substitute bill to establish the fiscal regime for the mining industry.
 
The bill proposes a margin-based royalty on income for all metallic mining operations outside mineral reservations i.e. margin of 1% up to 10% shall pay 1 percent royalty. The Committee also lowered royalty payments of mining operations within mineral reservation, from 5 percent to 3 percent.
 
The Committee on Ways and Means also accepted the motion to remove provision on surcharge and banning open pit mining. Speaker Gloria Macapagal-Arroyo who proposed provision agreed into its deletion – this is contradictory to her recent pronouncements to push for a total ban on open pit mining in the Philippines.
 
Bantay Kita consistently proposes 5 percent mineral royalty payments on all mining operations that would add a total of at least Php 2.5 billion to government revenue. This is also administratively more feasible in terms of transparency and ease of collection. Royalties are to guarantee payments to the government as resource owner. The margin-based royalty on income of operations will not ensure payments for minerals, and if royalty is profit-based, the government will be collecting less over the mine life. Also, will profit information be publicly disclosed so that the community can monitor proper payment of taxes? Will the costs of operations be disclosed publicly? Congress should ask for simulation of tax collection – the government might end up with even lower tax take before the increase in excise tax.
 
Bantay Kita appeals to the Congress to approve tax regime that ensures fair and equitable share from the one-time extraction of the country’s mineral resources.

Open contracting is anchored on the principles of transparency and accountability around the use of public resources. It involves the disclosure of timely and complete data and documents in open format related to planning, tendering, award, implementation, and termination of contracts. It promotes citizen engagement by providing a platform for participation and feedback in all stages of contracting. This aids in enhanced monitoring, reduced corruption, and improved implementation, among others.
 
Public procurement in the Philippines embraces these principles. The Government Procurement Reform Act mandates disclosure of information, participation of civil society as observers to the process, and encourages competition. However, mining contracting is governed by a separate law.[1]
 
The 1995 Philippine Mining Act necessitates the public announcement of exploration and mineral agreement applications. It also provides space for citizens to lodge objections prior to decision-making.  The Act deputizes environmental compliance monitoring to a multi-stakeholder group, including civil society. It also requires that any mining activity within ancestral domains must seek prior consent from Indigenous Peoples. The Mining Law allows for exploration permit grantees the first option to apply for mineral agreements, and not through competitive public bidding.
 
The Philippine Mining Act had been fraught with opposition. The 1996 Marcopper environmental disaster[2] fueled mass opposition against mining. In 1997, constitutionality of some provisions of the Act were questioned. In mid-2000s, the Supreme Court ruled with finality in favor of its constitutionality[3].   
 
Urgency to implement transparency and accountability measures were paramount due to confusion and conflict surrounding the mining sector.
 
In 2011, the Philippines co-founded the Open Government Partnership.  In 2012, the Philippines committed to participate in the Extractive Industries Transparency Initiative (EITI). The EITI ushered in the opportunity for openness in the sector. Through the country’s Annual EITI Report, relevant data and documents are made available at a single source. The Philippine Government launched a platform[4] in 2014 meant to consolidate data from different government entities in formats intended for easy sharing, searching, and use.  By 2015, EITI compliance, access to information law, and open data were among the country’s commitment to the OGP.  In line with these commitments, PH-EITI took another step by developing a contracts portal with support from the Natural Resource Governance Institute, the World Bank, Columbia Center on Sustainable Development and the EITI MDTF through UK aid.
 
The drive for transparency was further accelerated when President Rodrigo Duterte signed the Freedom of Information executive order[5], calling upon agencies to disclose public contracts and records requested by citizens.
 
In December 2016, the PH-EITI Multi-Stakeholder Group agreed to the Open Data Policy that describes digital data as having characteristics required for it to be used, reused, and redistributed by anyone, anytime, anywhere.[6]
 
The PH-EITI Contracts Portal contains over 50 extractives contracts and supporting documents including mining project feasibility studies, and social and environmental monitoring reports, among others. Contracts are annotated for easier understanding. The site is searchable, and some supporting documents are in open data format. Prior to this, contracts were not public. Supporting documents were lodged in different government agencies in physical form.
 
As a member of environmental mining oversight committees, civil society can assess the company’s compliance to environmental regulations. If a violation is committed, sanctions including suspension, may be carried out. Environmental compliance reports are disclosed through the Philippine extractives contracts portal.  Citizens who are not part of this committee can also conduct parallel assessments to validate reports.
 
Citizens can also validate if the mandatory social development allocations are fulfilled and are aligned with the local development plans of the community.  These allocations are intended to contribute to “sustained improvement in the living standards of host and neighboring communities by creating responsible, self-reliant and resource-based communities capable of developing, implementing and managing community development programs, projects, and activities in a manner consistent with the principles of sustainable development[7]”. The social development reports may also be found in the contracts portal. Bantay Kita (BK) assessed the reports and found that it runs the risk of duplicating local government projects. In this respect, BK asserts that it would be more efficient if the allocations support existing local development plans.
 
By referring to coordinates of an approved mining area as reflected in a contract, communities can potentially check if the mining activities are within the agreed boundaries.
 
Bantay Kita utilized information in mining feasibility studies as assumptions to conduct fiscal modeling. Results can help Indigenous Peoples and local governments determine if it is beneficial to have mining companies operate in their areas; and if so, to ensure that they get a fair share.  
 
BK informs communities of relevant data in the Portal and capacitates them so that they can validate company reports, make meaningful decisions regarding natural resource management, and demand accountability.
 
While there are OGP commitments like the EITI, open data policy, and freedom of information that increase openness and support citizen engagement, the contracts portal is an innovation particularly intended to further democratize access to data and related documents in the mining sector. These open contracting initiatives face challenges including:

• Absence and lack of access to timely, correct and complete data and documents.
• Limited bandwidth causing instability of the contracts portal site.
• The EITI process and open data policy are still not mainstreamed. Though progress has been made, there are still issues of weak record keeping and incompatible file formats. Documents are still stored in pdf or hard copies. Difficulties in file transfer, conversion sharing, system inoperability, connectivity, and coordination within government regional and central offices remain. The absence of a legal framework for sustained disclosure and citizen engagement, through an FOI and EITI laws hinder open contracting implementation in the sector.  Both bills are pending in Congress. The presence of the Data Privacy Act and Bank Secrecy Law also casts a shadow on data disclosure.
• Funding for sustainability remains an issue.
• Digital divide limits the reach and impact of on-line information.
• Culture of sharing has yet to be achieved.

 
Strides have been made, but efforts remain fragmented.
 
Talks are underway between PH-EITI and the Department of Information and Communications Technology (DICT) to migrate the contracts portal. Originally, the portal would have been relaunched by end of June. However, slow government implementation is hampering transfer.
 
The Mining and Geoscience Bureau developed a website[8] containing similar data. The site contains a list of mining agreements, exploration and mineral processing permits, mine safety, health and environment, employment, geological, operational and administrative data.   Though data in this site is more updated, it remains inconsistent and incomplete. Most data are aggregated where granularity is needed, and supporting documents are not provided due to the limited bandwidth.
 
Aside from the challenges mentioned, there is still a need to capacitate communities; and develop user-centered knowledge products to understand and appreciate data for more meaningful engagement in natural resource management. Opportunities for citizen participation, particularly in the planning, awarding, closure/rehabilitation phases are limited. Where community engagement is present, information symmetry and genuine consent process are questionable. Moreover, a credible selection process for community representatives is lacking.  A feedback loop between representatives and their constituents is also missing.
 
Bantay Kita is working on these issues in collaboration with key stakeholders: through civil society networks like PWYP; targeted outreach to communities, government, and industry; and platforms like the EITI and the OGP, but much remains to be done.

[1]  The Philippine Mining Act of 1995 and its Implementing Rules and Regulations
[2] https://www.rappler.com/move-ph/issues/disasters/165051-look-back-1996-marcopper-mining-disaster
[3] http://www.chanrobles.com/cralaw/2005februarydecisions.php?id=109
[4] https://data.gov.ph
[5] https://www.foi.gov.ph/downloads/EO-2-s-2016-signed-copy.pdf
[6] International Open Data Charter. http://opendatacharter.net
[7] DAO No. 2000-99, Section 2(o)
[8] http://databaseportal.mgb.gov.ph

*This handout was prepared for the Publish What You Pay Asia Pacific Regional Meeting held last August 8-9, 2018 at Jakarta, Indonesia.

​Bantay Kita, a national coalition advocating for enhanced natural resource governance, appeals to the Department of Environment and Natural Resources (DENR) to uphold process of meaningful public consultations as it lifts the moratorium on applications for exploration permit of metallic and non-metallic minerals through Administrative Order 2018-13.
 
Exploration will determine an area’s mineral potential. This can guide government in identifying if and how much minerals it is willing to develop.
 
“Exploration requires consent from local government units and communities. We welcome information that would help stakeholders make evidence-based decisions. We expect that necessary data and documents are disclosed to them so that they can arrive at factual conclusions. We urge that the consent process be genuinely applied, and decisions made by stakeholders be respected,” Bantay Kita Coordinator Tina Pimentel stressed.
 
Executive Order (EO) 79 S. 2012, Section 4 allows the granting of exploration permits, despite the moratorium on issuance of mineral agreements. It also states the exploration permit grantee shall be given the right of first option to apply for development of minerals in the exploration site.
 
EO 79 Section 6 provides that “mining rights and mining tenements over areas with known and verified mineral resources and reserves, including those owned by the Government and all expired tenements, shall be undertaken through competitive public bidding.”
 
“In light of the lifting of the exploration moratorium, we implore the Mines and Geosciences Bureau (MGB) to prepare the guidelines for competitive public bidding, with emphasis on transparency and citizen engagement at the soonest. We also appeal to the DENR to release the results of the mining audit which is said to be the basis for the lifting of the exploration permit moratorium,” Ms. Pimentel concluded.