EN BANC
|
APEX MINING CO., INC., petitioner, - versus - southeast
mindanao gold mining corp., the mines adjudication board, provincial mining
regulatory board (PMRB-DAVAO), MONKAYO INTEGRATED SMALL SCALE MINERS ASSOCIATION,
INC., ROSENDO VILLAFLOR, BALITE COMMUNAL PORTAL MINING COOPERATIVE, DAVAO
UNITED MINERS COOPERATIVE, ANTONIO DACUDAO, PUTING-BATO GOLD MINERS
COOPERATIVE, ROMEO ALTAMERA, THELMA CATAPANG, LUIS GALANG, RENATO BASMILLO,
FRANCISCO YOBIDO, EDUARDO GLORIA, EDWIN ASION, MACARIO HERNANDEZ, REYNALDO
CARUBIO, ROBERTO BUNIALES, RUDY ESPORTONO, ROMEO CASTILLO, JOSE REA, GIL
GANADO, PRIMITIVA LICAYAN, LETICIA ALQUEZA and
joel brillantes management mining corporation, Respondents. x - - - - - - - - - - - - - - - - - - - - - - - - - x BALITE COMMUNAL PORTAL MINING COOPERATIVE, petitioner, - versus - southeast mindanao gold mining corp., APEX MINING CO., INC., the mines
adjudication board, provincial mining regulatory board (PMRB-DAVAO), MONKAYO
INTEGRATED SMALL SCALE MINERS ASSOCIATION, INC., ROSENDO VILLAFLOR, DAVAO
UNITED MINERS COOPERATIVE, ANTONIO DACUDAO, PUTING-BATO GOLD MINERS
COOPERATIVE, ROMEO ALTAMERA, THELMA CATAPANG, LUIS GALANG, RENATO BASMILLO,
FRANCISCO YOBIDO, EDUARDO GLORIA, EDWIN ASION, MACARIO HERNANDEZ, REYNALDO
CARUBIO, ROBERTO BUNIALES, RUDY ESPORTONO, ROMEO CASTILLO, JOSE REA, GIL
GANADO, PRIMITIVA LICAYAN, LETICIA ALQUEZA and
joel brillantes management mining corporation, Respondents. x - - - - - - - - - - - - - - - - - - - - - - - - x THE MINES ADJUDICATION BOARD AND ITS MEMBERS, THE HON.
VICTOR O. RAMOS (Chairman), UNDERSECRETARY VIRGILIO MARCELO (Member) and DIRECTOR
HORACIO RAMOS (Member), petitioners, - versus - southeast
mindanao gold mining corporation, Respondent. |
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G.R. Nos. 152613 & 152628 G.R. No.
152619-20 G.R. No. 152870-71 Present: PUNO, C.J., CARPIO,
CARPIO
MORALES, CHICO-NAZARIO,
VELASCO,
JR.,* NACHURA,** LEONARDO-DE
CASTRO, BRION,
PERALTA,*
BERSAMIN, ABAD,
and VILLARAMA,
JR., JJ. Promulgated: November 20, 2009 |
x- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CHICO-NAZARIO, J.:
This
resolves the motion for reconsideration dated
The Assailed Decision likewise upheld
the validity of Proclamation No. 297 absent any question against its
validity. In view of this, and
considering that under Section 5 of Republic Act No. 7942, otherwise known as the
“Mining Act of 1995,” mining operations in mineral reservations may be
undertaken directly by the State or through a contractor, the Court deemed the
issue of ownership of priority right over the contested Diwalwal Gold Rush Area
as having been overtaken by the said proclamation. Thus, it was held in the Assailed Decision
that it is now within the prerogative of the Executive Department to undertake
directly the mining operations of the disputed area or to award the operations
to private entities including petitioners Apex and Balite, subject to
applicable laws, rules and regulations, and provided that these private
entities are qualified.
SEM also filed a Motion for Referral
of Case to the Court En Banc and for
Oral Arguments dated
Apex, for its part, filed a Motion
for Clarification of the Assailed Decision, praying that the Court elucidate on
the Decision’s pronouncement that “mining operations, are now, therefore within
the full control of the State through the executive branch.” Moreover, Apex asks this Court to order the
Mines and Geosciences Board (MGB) to accept its application for an exploration
permit.
In its Manifestation and Motion dated
Camilo Banad, et al., likewise filed a motion for reconsideration and prayed that
the disputed area be awarded to them.
In the Resolution dated
During the Oral Argument, the Court identified the following principal issues to be discussed
by the parties:
1.
Whether the transfer or assignment of Exploration
Permit (EP) 133 by MMC to SEM was validly made without violating any of the
terms and conditions set forth in Presidential Decree No. 463 and EP 133
itself.
2.
Whether Southeast
Mindanao Mining Corp. acquired a vested right over the disputed area, which
constitutes a property right protected by the Constitution.
3.
Whether the assailed Decision dated
4.
Whether the issuance of Proclamation No. 297 declaring
the disputed area as mineral reservation outweighs the claims of SEM, Apex
Mining Co. Inc. and Balite Communal Portal Mining Cooperative over the Diwalwal
Gold Rush Area.
5.
Whether the issue of the legality/constitutionality of
Proclamation No. 297 was belatedly raised.
6.
Assuming that the legality/constitutionality of
Proclamation No. 297 was timely raised, whether said proclamation violates any
of the following:
a.
Article XII, Section 4 of the Constitution;
b.
Section 1 of Republic Act No. 3092;
c.
Section 14 of the Administrative Code of 1987;
d.
Section 5(a) of Republic Act No. 7586;
e.
Section 4(a) of Republic Act No. 6657; and
f.
Section 2, Subsection 2.1.2 of Executive Order No. 318
dated
After hearing the arguments of the
parties, the Court required them to submit their respective memoranda. Memoranda were accordingly filed by SEM,
Apex, Balite and Mines Adjudication Board (MAB).
We shall resolve the second issue
before dwelling on the first, third and the rest of the issues.
MMC or SEM
Did Not Have Vested Rights Over the Diwalwal Gold Rush Area
Petitioner SEM vigorously argues that
Apex Mining Co., Inc. v. Garcia[1]
vested in MMC mining rights over the disputed area. It claims that the mining rights that MMC
acquired under the said case were the ones assigned to SEM, and not the right
to explore under MMC’s EP 133. It
insists that mining rights, once obtained, continue to subsist regardless of
the validity of the exploration permit; thus, mining rights are independent of
the exploration permit and therefore do not expire with the permit. SEM insists that a mining right is a vested
property right that not even the government can take away. To support this thesis, SEM cites this
Court’s ruling in McDaniel v. Apacible
and Cuisia[2]
and in Gold Creek Mining Corporation v.
Rodriguez,[3] which
were decided in 1922 and 1938, respectively.
McDaniel and Gold Creek Mining Corporation
are not in point.
In
1916, McDaniel, petitioner
therein, located minerals, i.e., petroleum,
on an unoccupied public land and registered his mineral claims with the office
of the mining recorder pursuant to the Philippine Bill of 1902, where a mining
claim locator, soon after locating the mine, enjoyed possessory rights with
respect to such mining claim with or without a patent therefor. In that case, the Agriculture Secretary, by
virtue of Act No. 2932, approved in 1920, which provides that “all public lands
may be leased by the then Secretary of Agriculture and Natural Resources,” was
about to grant the application for lease of therein respondent, overlapping the
mining claims of the subject petitioner.
Petitioner argued that, being a valid locator, he had vested right over
the public land where his mining claims were located. There, the Court ruled that the mining claim
perfected under the Philippine Bill of 1902, is “property in the highest sense
of that term, which may be sold and conveyed, and will pass by descent, and is
not therefore subject to the disposal of the Government.” The Court then declared that since petitioner
had already perfected his mining claim under the Philippine Bill of 1902, a
subsequent statute, i.e., Act No.
2932, could not operate to deprive him of his already perfected mining claim,
without violating his property right.
Gold Creek Mining reiterated the ruling in McDaniel
that a perfected mining claim under the
Philippine Bill of 1902 no longer formed part of the public domain; hence, such
mining claim does not come within the prohibition against the alienation of
natural resources under Section 1, Article XII of the 1935 Constitution.
Gleaned from the ruling on the
foregoing cases is that for this law to apply, it must be established that the
mining claim must have been perfected when the Philippine Bill of 1902 was
still in force and effect. This is so
because, unlike the subsequent laws that prohibit the alienation of mining
lands, the Philippine Bill of 1902 sanctioned the alienation of mining lands to
private individuals. The Philippine Bill
of 1902 contained provisions for, among many other things, the open and free
exploration, occupation and purchase of mineral deposits and the land where
they may be found. It declared “all valuable mineral deposits in public
lands in the Philippine Islands, both surveyed and unsurveyed x x x to be free
and open to exploration, occupation, and purchase, and the land in which they
are found to occupation and purchase, by citizens of the United States, or of
said Islands x x x.”[4] Pursuant to this law, the holder of the
mineral claim is entitled to all the minerals that may lie within his claim,
provided he does three acts: First, he
enters the mining land and locates a plot of ground measuring, where possible,
but not exceeding, one thousand feet in length by one thousand feet in breadth,
in as nearly a rectangular form as possible.[5] Second, the mining locator has to record the
mineral claim in the mining recorder within thirty (30) days after the location
thereof.[6] Lastly, he must comply with the annual actual
work requirement.[7] Complete mining rights, namely, the rights to
explore, develop and utilize, are acquired by a mining locator by simply
following the foregoing requirements.
With the effectivity of the 1935
Constitution, where the regalian
doctrine was adopted, it was declared that all natural resources of the
Commonwealth Act No. 137 or the
Mining Act of 1936, which expressly adopted the regalian doctrine following the provision of the 1935 Constitution,
also proscribed the alienation of mining lands and granted only lease rights to
mining claimants, who were prohibited from purchasing the mining claim itself.
When Presidential Decree No. 463, which
revised Commonwealth Act No. 137, was in force in 1974, it likewise recognized
the regalian doctrine embodied in the
1973 Constitution. It declared that all mineral deposits and public and private
lands belonged to the state while, nonetheless, recognizing mineral rights that
had already been existing under the Philippine Bill of 1902 as being beyond the
purview of the regalian doctrine.[10] The possessory rights of mining claim holders
under the Philippine Bill of 1902 remained intact and effective, and such
rights were recognized as property rights that the holders could convey or pass
by descent.[11]
In the instant cases, SEM does not
aver or prove that its mining rights had been perfected and completed when the
Philippine Bill of 1902 was still the operative law. Surely, it is impossible for SEM to
successfully assert that it acquired mining rights over the disputed area in
accordance with the same bill, since it was only in 1984 that MMC, SEM’s
predecessor-in-interest, filed its declaration of locations and its prospecting
permit application in compliance with Presidential Decree No. 463. It was on
SEM likens EP 133 with a building
permit. SEM likewise equates its supposed rights attached to the exploration
permit with the rights that a private property land owner has to said
landholding. This analogy has no basis
in law. As earlier discussed, under the
1935, 1973 and 1987 Constitutions, national wealth, such as mineral resources, are
owned by the State and not by their discoverer.
The discoverer or locator can only develop and utilize said minerals for
his own benefit if he has complied with all the requirements set forth by
applicable laws and if the State has conferred on him such right through
permits, concessions or agreements. In
other words, without the imprimatur of the State, any mining aspirant does not
have any definitive right over the mineral land because, unlike a private
landholding, mineral land is owned by the State, and the same cannot be
alienated to any private person as explicitly stated in Section 2, Article XIV
of the 1987 Constitution:
All lands of public domain, waters, minerals x x x and all other natural
resources are owned by the State. With the exception of agricultural lands,
all other natural resources shall not be
alienated. (Emphases supplied.)
Further, a closer scrutiny of the
deed of assignment in favor of SEM reveals that MMC assigned to the former the
rights and interests it had in EP 133, thus:
1. That for ONE PESO (P1.00) and other
valuable consideration received by the ASSIGNOR from the ASSIGNEE, the ASSIGNOR
hereby ASSIGNS, TRANSFERS and CONVEYS
unto the ASSIGNEE whatever rights or interest the ASSIGNOR may have in the area
situated in Monkayo, Davao del Norte and Cateel, Davao Oriental, identified as
Exploration Permit No. 133 and Application for a Permit to Prospect
in Bunawan, Agusan del Sur respectively.
(Emphasis supplied.)
It is evident that what MMC had over
the disputed area during the assignment was an exploration permit. Clearly, the right that SEM acquired was
limited to exploration, only because MMC was a mere holder of an exploration
permit. As previously explained, SEM did
not acquire the rights inherent in the permit, as the assignment by MMC to SEM
was done in violation of the condition stipulated in the permit, and the
assignment was effected without the approval of the proper authority in
contravention of the provision of the mining law governing at that time. In addition, the permit expired on
Even assuming arguendo that SEM obtained the rights attached in EP 133, said
rights cannot be considered as property rights protected under the fundamental
law.
An exploration permit does not
automatically ripen into a right to extract and utilize the minerals; much less
does it develop into a vested right. The
holder of an exploration permit only has the right to conduct exploration works
on the area awarded. Presidential Decree
No. 463 defined exploration as “the examination and investigation of lands
supposed to contain valuable minerals, by drilling, trenching, shaft sinking,
tunneling, test pitting and other means, for the purpose of probing the
presence of mineral deposits and the extent thereof.” Exploration does not include development and
exploitation of the minerals found.
Development is defined by the same statute as the steps necessarily taken to reach an ore body or mineral deposit so that
it can be mined, whereas
exploitation is defined as “the extraction and utilization of
mineral deposits.” An
exploration permit is nothing more than a mere right accorded to its holder to
be given priority in the government’s consideration in the granting of the
right to develop and utilize the minerals over the area. An exploration permit is merely inchoate, in
that the holder still has to comply with the terms and conditions embodied in
the permit. This is manifest in the
language of Presidential Decree No. 463, thus:
Sec. 8. x x x The right to exploit therein shall be
awarded by the President under such terms and conditions as recommended by the
Director and approved by the Secretary Provided,
That the persons or corporations who undertook prospecting and exploration of
said area shall be given priority.
In La Bugal-B’laan Tribal Association, Inc. v. Ramos,[12]
this Court emphasized:
Pursuant to Section 20 of RA 7942, an exploration
permit merely grants to a qualified person the right to conduct exploration for
all minerals in specified areas. Such a permit does not amount to an
authorization to extract and carry off the mineral resources that may be
discovered. x x x.
Pursuant to Section 24 of RA 7942, an exploration
permit grantee who determines the commercial viability of a mining area may,
within the term of the permit, file with the MGB a declaration of mining
project feasibility accompanied by a work program for development. The
approval of the mining project feasibility and compliance with other
requirements of RA 7942 vests in the grantee the exclusive right to an MPSA or
any other mineral agreement, or to an FTAA.
(Underscoring ours.)
The non-acquisition by MMC or SEM of
any vested right over the disputed area is supported by this Court’s ruling in Southeast Mindanao Gold Mining Corporation
v. Balite Portal Mining Cooperative[13]:
Clearly then, the Apex
Mining case did not invest petitioner with any definite right to the Diwalwal
mines which it could now set up against respondent BCMC and other mining
groups.
Incidentally, it must likewise be pointed out that
under no circumstances may petitioner’s rights under EP No. 133 be regarded as
total and absolute. As correctly held by the Court of Appeals in its challenged
decision, EP No. 133 merely evidences a privilege granted by the State, which
may be amended, modified or rescinded when the national interest so
requires. x x x. (Underscoring supplied.)
Unfortunately,
SEM cannot be given priority to develop and exploit the area covered by EP 133
because, as discussed in the assailed Decision, EP 133 expired by non-renewal
on 6 July 1994. Also, as already
mentioned, the transfer of the said permit to SEM was without legal effect
because it was done in contravention of Presidential Decree No. 463 which
requires prior approval from the proper authority. Simply told, SEM holds nothing for it to be
entitled to conduct mining activities in the disputed mineral land.
SEM wants to impress on this Court
that its alleged mining rights, by virtue of its being a transferee of EP 133,
is similar to a Financial and Technical Assistance Agreement (FTAA) of a
foreign contractor, which merits protection by the due process clause of the
Constitution. SEM cites La Bugal-B’laan Tribal Association, Inc.
v. Ramos,[14]
as follows:
To say that an FTAA is just like a mere timber license
or permit and does not involve contract or property rights which merit
protection by the due process clause of the Constitution, and may therefore be
revoked or cancelled in the blink of an eye, is to adopt a well-nigh
confiscatory stance; at the very least, it is downright dismissive of the
property rights of businesspersons and corporate entities that have investments
in the mining industry, whose investments, operations and expenditures do
contribute to the general welfare of the people, the coffers of government, and
the strength of the economy. x x x.
Again, this argument is not
meritorious. SEM did not acquire the
rights attached to EP 133, since their transfer was without legal effect. Granting for the sake of argument that SEM
was a valid transferee of the permit, its right is not that of a mining
contractor. An exploration permit grantee is vested with the right to conduct exploration only, while an FTAA or MPSA contractor is authorized
to extract and carry off the mineral resources that may be discovered in
the area.[15] An
exploration permit holder still has to comply with the mining project
feasibility and other requirements under the mining law. It has to obtain approval of such
accomplished requirements from the appropriate government agencies. Upon obtaining this approval, the exploration
permit holder has to file an application for an FTAA or an MPSA and have it
approved also. Until the MPSA application
of SEM is approved, it cannot lawfully claim that it possesses the rights of an
MPSA or FTAA holder, thus:
x x x prior to the issuance of such FTAA or mineral
agreement, the exploration permit grantee (or prospective contractor) cannot
yet be deemed to have entered into any contract or agreement with the State x x
x.[16]
But again, SEM is not qualified to
apply for an FTAA or any mineral agreement, considering that it is not a holder
of a valid exploration permit, since EP 133 expired by non-renewal and the
transfer to it of the same permit has no legal value.
More importantly, assuming arguendo that SEM has a valid
exploration permit, it cannot assert any mining right over the disputed area,
since the State has taken over the mining operations therein, pursuant to
Proclamation No. 297 issued by the President on
Like timber permits, mining exploration permits do not vest in the grantee any permanent or
irrevocable right within the purview of the non-impairment of contract and due
process clauses of the Constitution, since the State, under its
all-encompassing police power, may alter, modify or amend the same, in
accordance with the demands of the general welfare.[17] (Emphasis
supplied.)
As a mere license or privilege, an
exploration permit can be validly amended by the President of the Republic when
national interests suitably necessitate.
The Court instructed thus:
Timber licenses, permits and license agreements are
the principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that the public welfare is
promoted. x x x They may be validly amended,
modified, replaced or rescinded by the Chief Executive when national interests
so require.[18]
Recognizing the importance of the
country’s natural resources, not only for national economic development, but
also for its security and national defense, Section 5 of Republic Act No. 7942
empowers the President, when the national interest so requires, to establish
mineral reservations where mining operations shall be undertaken directly by
the State or through a contractor, viz:
SEC
5. Mineral Reservations. – When the national interest so requires, such as when
there is a need to preserve strategic raw materials for industries critical to
national development, or certain minerals for scientific, cultural or
ecological value, the President may establish mineral reservations upon the
recommendation of the Director through the Secretary. Mining operations in existing mineral
reservations and such other reservations as may thereafter be established,
shall be undertaken by the Department or through a contractor x x x. (Emphasis supplied.)
Due to the pressing concerns in the
Diwalwal Gold Rush Area brought about by unregulated small to medium-scale
mining operations causing ecological, health and peace and order problems, the
President, on
SEC.
2. All lands of the public domain, water, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated.
The exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint
venture, or product-sharing agreements with Filipino citizens, or corporations
or associations at least sixty per centum of whose capital is owned by such
citizens. (Emphasis supplied.)
Furthermore, said proclamation cannot
be denounced as offensive to the fundamental law because the State is
sanctioned to do so in the exercise of its police power.[19] The issues on health and peace and order, as
well the decadence of the forest resources brought about by unregulated mining
in the area, are matters of national interest. The declaration of the Chief
Executive making the area a mineral reservation, therefore, is sanctioned by
Section 5 of Republic Act No. 7942.
The
Assignment of EP No. 133 by MMC in Favor of SEM Violated Section 97 of
Presidential Decree No. 463 and the Terms and Conditions Set Forth in the
Permit
SEM claims that the approval
requirement under Section 97 of Presidential Decree No. 463 is not applicable
to this case, because MMC neither applied for nor was granted a mining lease
contract. The said provision states:
SEC. 97. Assignment of
Mining Rights. – A
mining lease contract or any interest therein shall not be transferred,
assigned, or subleased without the prior approval of the Secretary: Provided, that such transfer, assignment
or sublease may be made only to a qualified person possessing the resources and
capability to continue the mining operations of the lessee and that the
assignor has complied with all the obligations of the lease: Provided, further, That such transfer or assignment shall be duly registered
with the office of the mining recorder concerned. (Emphasis supplied.)
Exploration Permit 133 was issued in
favor of MMC on
Pursuant to this law, a mining lease
contract confers on the lessee or his successors the right to extract, to remove,
process and utilize the mineral deposits found on or underneath the surface of
his mining claims covered by the lease.
The lessee may also enter into a service contract for the exploration, development and
exploitation of the minerals from the lands covered by his lease, to wit:
SEC.
44. A mining lease contract shall
grant to the lessee, his heirs, successors, and assigns the right to extract
all mineral deposits found on or underneath the surface of his mining claims
covered by the lease, continued vertically downward; to remove, process, and
otherwise utilize the mineral deposits for his own benefit; and to use the
lands covered by the lease for the purpose or purposes specified therein x x x
That a lessee may on his own or through the Government, enter into a service
contract… for the exploration, development and exploitation of his
claims and the processing and marketing of the product thereof, subject to the
rules and regulations that shall be promulgated by the Director, with the
approval of the Secretary x x x.
(Emphases supplied.)
In other words, the lessee’s
interests are not only limited to the extraction or utilization of the minerals
in the contract area, but also to include the right to explore and develop the
same. This right to explore the mining
claim or the contract area is derived from the exploration permit duly issued
by the proper authority. An exploration
permit is, thus, covered by the term “any
other interest therein.” Section 97
is entitled, “Assignment of Mining Rights.”
This alone gives a hint that before mining rights -- namely, the rights
to explore, develop and utilize -- are transferred or assigned, prior approval
must be obtained from the DENR Secretary. An exploration permit, thus, cannot
be assigned without the imprimatur of the Secretary of the DENR.
It is instructive to note that under
Section 13 of Presidential Decree No. 463, the prospecting and exploration of
minerals in government reservations, such as forest reservations, are
prohibited, except with the permission of the government agency concerned. It is the government agency concerned that
has the prerogative to conduct prospecting, exploration and exploitation of
such reserved lands.[21] It is only in instances wherein said
government agency, in this case the Bureau of Mines, cannot undertake said
mining operations that qualified persons may be allowed by the government to
undertake such operations. PNOC-EDC v.
Veneracion, Jr.[22]
outlines the five requirements for acquiring mining rights in reserved lands
under Presidential Decree No. 463: (1) a prospecting permit from the agency
that has jurisdiction over the land; (2) an exploration permit from the Bureau
of Mines and Geo-Sciences (BMGS); (3) if the exploration reveals the presence
of commercial deposit, application to BMGS by the permit holder for the
exclusion of the area from the reservation; (4) a grant by the President of the
application to exclude the area from the reservation; and (5) a mining
agreement (lease, license or concession) approved by the DENR Secretary.
Here, MMC met the first and second
requirements and obtained an exploration permit over the disputed forest
reserved land. Although MMC still has to prove to the government that it is qualified
to develop and utilize the subject mineral land, as it has yet to go through
the remaining process before it can secure a lease agreement, nonetheless, it
is bound to follow Section 97 of Presidential Decree No. 463. The logic is not hard to discern. If a lease
holder, who has already demonstrated to the government his capacity and
qualifications to further develop and utilize the minerals within the contract
area, is prohibited from transferring his mining rights (rights to explore,
develop and utilize), with more reason will this proscription apply with extra
force to a mere exploration permit holder who is yet to exhibit his
qualifications in conducting mining operations. The rationale for the approval
requirement under Section 97 of Presidential Decree No. 463 is not hard to
see. Exploration permits are strictly
granted to entities or individuals possessing the resources and capability to
undertake mining operations. Mining
industry is a major support of the national economy and the continuous and
intensified exploration, development and wise utilization of mining resources
is vital for national development. For
this reason, Presidential Decree No. 463 makes it imperative that in awarding
mining operations, only persons possessing the financial resources and
technical skill for modern exploratory and development techniques are
encouraged to undertake the exploration, development and utilization of the
country’s natural resources. The
preamble of Presidential Decree No. 463 provides thus:
WHEREAS, effective and continuous mining operations
require considerable outlays of capital and resources, and make it imperative
that persons possessing the financial resources and technical skills for modern
exploratory and development techniques be encouraged to undertake the
exploration, development and exploitation of our mineral resources;
The Court has said that a “preamble”
is the key to understanding the statute, written to open the minds of the
makers to the mischiefs that are to be remedied, and the purposes that are to
be accomplished, by the provisions of the statute.[23] As such, when the statute itself is ambiguous
and difficult to interpret, the preamble may be resorted to as a key to
understanding the statute.
Indubitably, without the scrutiny by
the government agency as to the qualifications of the would-be transferee of an
exploration permit, the same may fall into the hands of non-qualified entities,
which would be counter-productive to the development of the mining industry. It cannot be overemphasized that the
exploration, development and utilization of the country’s natural resources are
matters vital to the public interest and the general welfare; hence, their
regulation must be of utmost concern to the government, since these natural resources
are not only critical to the nation’s security, but they also ensure the
country’s survival as a viable and sovereign republic.[24]
The approval requirement of the
Secretary of the DENR for the assignment of exploration permits is bolstered by
Section 25 of Republic Act No. 7942 (otherwise known as the Philippine Mining
Act of 1995), which provides that:
Sec. 25. Transfer or Assignment. – An exploration
permit may be transferred or assigned to a qualified person subject to the
approval of the Secretary upon the recommendation of the Director.
SEM further posits that Section 97 of
Presidential Decree No. 463, which requires the prior approval of the DENR when
there is a transfer of mining rights, cannot be applied to the assignment of EP
133 executed by MMC in favor of SEM because during the execution of the Deed of
Assignment on 16 February 1994, Executive Order No. 279[25]
became the governing statute, inasmuch as the latter abrogated the old mining
system -- i.e., license, concession
or lease -- which was espoused by the former.
This contention is not well taken. While Presidential Decree No. 463 has already
been repealed by Executive Order No. 279, the administrative aspect of the
former law nonetheless remains applicable.
Hence, the transfer or assignment of exploration permits still needs the
prior approval of the Secretary of the DENR.
As ruled in Miners Association of
the Philippines, Inc. v. Factoran, Jr.[26]:
Presidential Decree No. 463, as amended, pertains to
the old system of exploration, development and utilization of natural resources
through “license, concession or lease” which, however, has been disallowed by
Article XII, Section 2 of the 1987 Constitution. By virtue of the said constitutional mandate
and its implementing law, Executive Order No. 279, which superseded Executive
Order No. 211, the provisions dealing on “license, concession, or lease” of
mineral resources under Presidential Decree No. 463, as amended, and other
existing mining laws are deemed repealed
and, therefore, ceased to operate as the governing law. In other words, in all other areas of administration and management of mineral lands,
the provisions of Presidential Decree No. 463, as amended, and other existing
mining laws, still govern. (Emphasis
supplied.)
Not only did the assignment of EP 133
to SEM violate Section 97 of Presidential Decree No. 463, it likewise
transgressed one of the conditions stipulated in the grant of the said
permit. The following terms and conditions
attached to EP 133 are as follows:[27]
1. That the permittee shall abide by the work program
submitted with the application or statements made later in support thereof, and
which shall be considered as conditions and essential parts of this permit;
2. That permittee
shall maintain a complete record of all activities and accounting of all
expenditures incurred therein subject to periodic inspection and verification
at reasonable intervals by the Bureau of Mines at the expense of the applicant;
3. That the permittee
shall submit to the Director of Mines within 15 days after the end of each
calendar quarter a report under oath of a full and complete statement of the
work done in the area covered by the permit;
4. That the
term of this permit shall be for two (2) years to be effective from this date,
renewable for the same period at the discretion of the Director of Mines and
upon request of the applicant;
5. That the
Director of Mines may at any time cancel this permit for violation of its
provision or in case of trouble or breach of peace arising in the area subject
hereof by reason of conflicting interests without any responsibility on the
part of the government as to expenditures for exploration that might have been
incurred, or as to other damages that might have been suffered by the
permittee;
6. That this
permit shall be for the exclusive use
and benefit of the permittee or his duly authorized agents and shall be
used for mineral exploration purposes only and for no other purpose.
It must be noted that under Section
90[28]
of Presidential Decree No. 463, which was the applicable statute during the
issuance of EP 133, the DENR Secretary, through the Director of the Bureau of
Mines and Geosciences, was charged with carrying out the said law. Also, under Commonwealth Act No. 136, also
known as “An Act Creating the Bureau of Mines,” which was approved on 7
November 1936, the Director of Mines had the direct charge of the
administration of the mineral lands and minerals; and of the survey, classification,
lease or any other form of concession or disposition thereof under the Mining
Act.[29] This power of administration included the
power to prescribe terms and conditions in granting exploration permits to
qualified entities.
Thus, in the grant of EP 133 in favor
of the MMC, the Director of the BMG acted within his power in laying down the
terms and conditions attendant thereto. MMC and SEM did not dispute the
reasonableness of said conditions.
Quite conspicuous is the fact that
neither MMC nor SEM denied that they were unaware of the terms and conditions
attached to EP 133. MMC and SEM did not present any evidence that they objected
to these conditions. Indubitably, MMC wholeheartedly accepted these terms and
conditions, which formed part of the grant of the permit. MMC agreed to abide
by these conditions. It must be
accentuated that a party to a contract cannot deny its validity, without
outrage to one’s sense of justice and fairness, after enjoying its benefits.[30]
Where parties have entered into a well-defined contractual relationship, it is
imperative that they should honor and adhere to their rights and obligations as
stated in their contracts, because obligations arising from these have the
force of law between the contracting parties and should be complied with in
good faith.[31] Condition Number 6 categorically states that
the permit shall be for the exclusive use and benefit of MMC or its duly
authorized agents. While it may be true
that SEM, the assignee of EP 133, is a 100% subsidiary corporation of MMC,
records are bereft of any evidence showing that the former is the duly
authorized agent of the latter. This Court cannot condone such utter disregard
on the part of MMC to honor its obligations under the permit. Undoubtedly,
having violated this condition, the assignment of EP 133 to SEM is void and has
no legal effect.
To boot, SEM squandered whatever
rights it assumed it had under EP 133.
On
The Assailed
Decision Resolved Facts and Issues That Transpired after the Promulgation of Apex Mining Co., Inc. v. Garcia
SEM asserts that the
The assailed Decision DID NOT
overturn the
It must be pointed out that what Apex Mining Co., Inc. v. Garcia resolved
was the issue of which, between Apex and
MMC, availed itself of the proper procedure in acquiring the right to prospect
and to explore in the Agusan-Davao-Surigao Forest Reserve. Apex registered its Declarations of Location
(DOL) with the then BMGS, while MMC was granted a permit to prospect by the
Bureau of Forest Development (BFD) and was subsequently granted an exploration
permit by the BMGS. Taking into
consideration Presidential Decree No. 463, which provides that “mining rights
within forest reservation can be acquired by initially applying for a permit to
prospect with the BFD and subsequently for a permit to explore with the BMGS,”
the Court therein ruled that MMC availed itself of the proper procedure to
validly operate within the forest reserve or reservation.
While it is true that Apex Mining Co., Inc. v. Garcia settled
the issue of which between Apex and MMC was legally entitled to explore in the
disputed area, such rights, though, were extinguished by subsequent events that transpired after the decision was
promulgated. These subsequent events,
which were not attendant in Apex Mining
Co., Inc. v. Garcia[33] dated
(1) the
expiration of EP 133 by non-renewal on
(2) the
transfer/assignment of EP 133 to SEM on
(3) the
transfer/assignment of EP 133 to SEM is without legal effect for violating PD
463 which mandates that the assignment of mining rights must be with the prior
approval of the Secretary of the DENR.
Moreover, in Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining
Cooperative,[34] the Court, through Associate Justice
Consuelo Ynares-Santiago (now retired), declared that Apex Mining Co., Inc. v. Garcia did not deal with the issues of the
expiration of EP 133 and the validity of the transfer of EP 133 to SEM, viz:
Neither
can the Apex Mining case foreclose any question pertaining to the continuing
validity of EP No. 133 on grounds which arose after the judgment in said case
was promulgated. While it is true that the Apex Mining case settled the issue
of who between Apex and Marcopper validly acquired mining rights over the
disputed area by availing of the proper procedural requisites mandated by law,
it certainly did not deal with the question raised by the oppositors in the
Consolidated Mines cases, i.e., whether EP No. 133 had already expired and
remained valid subsequent to its transfer by Marcopper to petitioner. (Emphasis
supplied.)
What is more revealing is that in the
Resolution dated 26 November 1992, resolving the motion for reconsideration of Apex Mining Co., Inc. v. Garcia, the
Court clarified that the ruling on the said decision was binding only between
Apex and MMC and with respect the particular issue raised therein. Facts and
issues not attendant to the said decision, as in these cases, are not settled
by the same. A portion of the
disposition of the Apex Mining Co., Inc.
v. Garcia Resolution dated
x x x The decision rendered in this case is conclusive only between the parties with
respect to the particular issue herein raised and under the set of
circumstances herein prevailing. In no
case should the decision be considered as a precedent to resolve or settle
claims of persons/entities not parties hereto. Neither is it intended to
unsettle rights of persons/entities which have been acquired or which may have
accrued upon reliance on laws passed by the appropriate agencies. (Emphasis supplied.)
The Issue of
the Constitutionality of Proclamation Is Raised Belatedly
In its last-ditch effort to salvage
its case, SEM contends that Proclamation No. 297, issued by President Gloria
Macapagal-Arroyo and declaring the Diwalwal Gold Rush Area as a mineral
reservation, is invalid on the ground that it lacks the concurrence of Congress
as mandated by Section 4, Article XII of the Constitution; Section 1 of
Republic Act No. 3092; Section 14 of Executive Order No. 292, otherwise known
as the Administrative Code of 1987; Section 5(a) of Republic Act No. 7586, and
Section 4(a) of Republic Act No. 6657.
It is well-settled that when
questions of constitutionality are raised, the court can exercise its power of
judicial review only if the following requisites are present: (1) an actual and
appropriate case exists; (2) there is a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.
Taking into consideration the foregoing
requisites of judicial review, it is readily clear that the third requisite is
absent. The general rule is that the
question of constitutionality must be raised at the earliest opportunity, so
that if it is not raised in the pleadings, ordinarily it may not be raised at
the trial; and if not raised in the trial court, it will not be considered on
appeal.[35]
In the instant case, it must be
pointed out that in the Reply to Respondent SEM’s Consolidated Comment filed on
Certainly, posing the question on the
constitutionality of Proclamation No. 297 for the first time in its Motion for
Reconsideration is, indeed, too late.[36]
In fact, this Court, when it rendered
the Decision it merely recognized that the questioned proclamation came from a
co-equal branch of government, which entitled it to a strong presumption of
constitutionality.[37] The presumption of its constitutionality
stands inasmuch as the parties in the instant cases did not question its
validity, much less present any evidence to prove that the same is unconstitutional. This is in line with the precept that
administrative issuances have the force and effect of law and that they benefit
from the same presumption of validity and constitutionality enjoyed by
statutes.[38]
Proclamation
No. 297 Is in Harmony with Article XII, Section 4, of the Constitution
At any rate, even if this Court were
to consider the arguments belatedly raised by SEM, said arguments are not
meritorious.
SEM asserts that Article XII, Section
4 of the Constitution, bars the President from excluding forest
reserves/reservations and proclaiming the same as mineral reservations, since
the power to de-classify them resides in Congress.
Section 4, Article XII of the
Constitution reads:
The Congress shall as soon as possible, determine by law
the specific limits of forest lands and national parks, marking clearly their
boundaries on the ground. Thereafter, such forest lands and national parks
shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such periods
as it may determine, measures to prohibit logging in endangered forests and in
watershed areas.
The above-quoted provision says that
the area covered by forest lands and national parks may not be expanded or
reduced, unless pursuant to a law enacted by Congress. Clear in the language of the constitutional
provision is its prospective tenor, since it speaks in this manner: “Congress shall as soon as possible.” It is only after the specific limits of the forest
lands shall have been determined by the legislature will this constitutional
restriction apply. SEM does not allege nor present any evidence that Congress
had already enacted a statute determining with specific limits forest lands and
national parks. Considering the absence of such law, Proclamation No. 297 could
not have violated Section 4, Article XII of the 1987 Constitution. In PICOP
Resources, Inc. v. Base Metals Mineral Resources Corporation,[39]
the Court had the occasion to similarly rule in this fashion:
x x x
Sec. 4, Art. XII of the 1987 Constitution, on the other hand, provides that
Congress shall determine the specific limits of forest lands and national
parks, marking clearly their boundaries on the ground. Once this is done, the
area thus covered by said forest lands and national parks may not be expanded
or reduced except also by congressional legislation. Since Congress has yet to enact a law determining the specific limits
of the forest lands covered by Proclamation No. 369 and marking clearly its
boundaries on the ground, there can be no occasion that could give rise to a
violation of the constitutional provision.
Section 4, Article XII of the
Constitution, addresses the concern of the drafters of the 1987 Constitution
about forests and the preservation of national parks. This was brought about by the drafters’
awareness and fear of the continuing destruction of this country’s forests.[40] In view of this concern, Congress is tasked
to fix by law the specific limits of forest lands and national parks, after
which the trees in these areas are to be taken care of.[41] Hence, these forest lands and national parks
that Congress is to delimit through a law could be changed only by Congress.
In addition, there is nothing in the
constitutional provision that prohibits the President from declaring a forest
land as an environmentally critical area and from regulating the mining
operations therein by declaring it as a mineral reservation in order to prevent
the further degradation of the forest environment and to resolve the health and
peace and order problems that beset the area.
A closer examination of Section 4,
Article XII of the Constitution and Proclamation No. 297 reveals that there is
nothing contradictory between the two.
Proclamation No. 297, a measure to attain and maintain a rational and
orderly balance between socio-economic growth and environmental protection,
jibes with the constitutional policy of preserving and protecting the forest
lands from being further devastated by denudation. In other words, the
proclamation in question is in line with Section 4, Article XII of the
Constitution, as the former fosters the preservation of the forest environment
of the Diwalwal area and is aimed at preventing the further degradation of the
same. These objectives are the very same
reasons why the subject constitutional provision is in place.
What is more, jurisprudence has
recognized the policy of multiple land
use in our laws towards the end that the country’s precious natural
resources may be rationally explored, developed, utilized and conserved.[42] It has been held that forest reserves or
reservations can at the same time be open to mining operations, provided a
prior written clearance by the government agency having jurisdiction over such
reservation is obtained. In other words
mineral lands can exist within forest reservations. These two terms are not anti-thetical. This is made manifest if we read Section 47
of Presidential Decree No. 705 or the Revised Forestry Code of the
Mining operations in forest lands shall be regulated
and conducted with due regard to protection, development and utilization of
other surface resources. Location,
prospecting, exploration, utilization or exploitation of mineral resources in
forest reservations shall be governed by mining laws, rules and
regulations. (Emphasis supplied.)
Also, Section 6 of Republic Act No.
7942 or the Mining Act of 1995, states that mining operations in reserved lands
other than mineral reservations, such as forest reserves/reservations, are
allowed, viz:
Mining
operations in reserved lands other than mineral reservations may be undertaken by the Department, subject to
limitations as herein provided. In the event that the Department cannot
undertake such activities, they may be undertaken by a qualified person in
accordance with the rules and regulations promulgated by the Secretary. (Emphasis supplied.)
Since forest reservations can be made
mineral lands where mining operations are conducted, then there is no argument
that the disputed land, which lies within a forest reservation, can be declared
as a mineral reservation as well.
Republic Act
No. 7942 Otherwise Known as the “Philippine Mining Act of 1995,” is the
Applicable Law
Determined to rivet its crumbling
cause, SEM then argues that Proclamation No. 297 is invalid, as it transgressed
the statutes governing the exclusion of areas already declared as forest
reserves, such as Section 1 of Republic Act No. 3092,[43]
Section 14 of the Administrative Code of 1987, Section 5(a) of Republic Act No.
7586,[44]
and Section 4(a) of Republic Act No. 6657.[45]
Citing Section 1 of Republic Act No.
3092, which provides as follows:
Upon the recommendation of the Director of Forestry,
with the approval of the Department Head, the President of the Philippines shall set apart forest reserves which shall include denuded forest lands
from the public lands and he shall by proclamation declare the establishment of
such forest reserves and the boundaries thereof, and thereafter such forest
reserves shall not be entered, or otherwise disposed of, but shall remain
indefinitely as such for forest uses.
The
President of the Philippines may, in
like manner upon the recommendation of the Director of Forestry, with the
approval of the Department head, by
proclamation, modify the boundaries of any such forest reserve to conform with
subsequent precise survey but not to exclude any portion thereof except with
the concurrence of Congress. (Underscoring
supplied.)
SEM submits that the foregoing
provision is the governing statute on the exclusion of areas already declared
as forest reserves. Thus, areas already
set aside by law as forest reserves are no longer within the proclamation
powers of the President to modify or set aside for any other purposes such as
mineral reservation.
To bolster its contention that the
President cannot disestablish forest reserves into mineral reservations, SEM
makes reference to Section 14, Chapter 4, Title I, Book III of the
Administrative Code of 1987, which partly recites:
The President shall
have the power to reserve for settlement or public use, and for specific
public purposes, any of the lands of the public domain, the use of which is not otherwise directed by law. The reserved land shall thereafter remain
subject to the specific public purpose indicated until otherwise provided by
law or proclamation. (Emphases
supplied.)
SEM further contends that Section 7
of Republic Act No. 7586,[46]
which declares that the disestablishment of a protected area shall be done by
Congress, and Section 4(a) of Republic Act No. 6657,[47]
which in turn requires a law passed by Congress before any forest reserve can
be reclassified, militate against the
validity of Proclamation No. 297.
Proclamation No. 297, declaring a
certain portion of land located in Monkayo, Compostela Valley, with an area of
8,100 hectares, more or less, as a mineral reservation, was issued by the
President pursuant to Section 5 of Republic Act No. 7942, also known as the
“Philippine Mining Act of 1995.”
Proclamation No. 297 did not modify
the boundaries of the Agusan-Davao-Surigao Forest Reserve since, as earlier
discussed, mineral reservations can exist within forest reserves because of the
multiple land use policy. The metes and bounds of a forest reservation remain
intact even if, within the said area, a mineral land is located and thereafter
declared as a mineral reservation.
More to the point, a perusal of
Republic Act No. 3092, “An Act to Amend Certain Sections of the Revised
Administrative Code of 1917,” which was approved on 17 August 1961, and the
Administrative Code of 1987, shows that only those public lands declared by the
President as reserved pursuant to these two statutes are to remain subject to
the specific purpose. The tenor of the cited provisions, namely: “the President of the
Over and above that, Section 5 of
Republic Act No. 7942 authorizes the President to establish mineral
reservations, to wit:
Sec. 5. Mineral Reservations. - When the
national interest so requires, such as when there is a need to preserve
strategic raw materials for industries critical to national development, or
certain minerals for scientific, cultural or ecological value, the President may establish mineral
reservations upon the recommendation of the Director through the Secretary. Mining operations in existing mineral
reservations and such other reservations as may thereafter be established,
shall be undertaken by the Department or through a contractor x x x. (Emphasis supplied.)
It is a rudimentary principle in
legal hermeneutics that where there are two acts or provisions, one of which is
special and particular and certainly involves the matter in question, the other
general, which, if standing alone, would include the matter and thus
conflict with the special act or
provision, the special act must as intended be taken as constituting an
exception to the general act or provision, especially when such general and
special acts or provisions are contemporaneous, as the Legislature is not to be
presumed to have intended a conflict.
Hence, it has become an established
rule of statutory construction that where one statute deals with a subject in
general terms, and another deals with a part of the same subject in a more
detailed way, the two should be harmonized if possible; but if there is any
conflict, the latter shall prevail regardless of whether it was passed prior to
the general statute. Or where two
statutes are of contrary tenor or of different dates but are of equal
theoretical application to a particular case, the one specially designed
therefor should prevail over the other.
It must be observed that Republic Act
No. 3092, “An Act to Amend Certain Sections of the Revised Administrative Code
of 1917,” and the Administrative Code of 1987, are general laws. Section 1 of Republic Act No. 3092 and
Section 14 of the Administrative Code of 1987 require the concurrence of
Congress before any portion of a forest reserve can be validly excluded
therefrom. These provisions are broad
since they deal with all kinds of exclusion or reclassification relative to forest
reserves, i.e., forest reserve areas can be transformed into
all kinds of public purposes, not only
the establishment of a mineral reservation.
Section 5 of Republic Act No. 7942 is a special provision, as it
specifically treats of the establishment of mineral reservations only. Said provision grants the President the power
to proclaim a mineral land as a mineral reservation, regardless of whether such
land is also an existing forest reservation.
Sec.
5(a) of Republic Act No. 7586 provides:
Sec.
5. Establishment
and Extent of the System. — The establishment and operationalization of the
System shall involve the following:
(a) All
areas or islands in the Philippines proclaimed, designated or set aside, pursuant
to a law, presidential decree, presidential proclamation or executive order as
national park, game refuge, bird and wildlife sanctuary, wilderness area,
strict nature reserve, watershed, mangrove reserve, fish sanctuary, natural and
historical landmark, protected and managed landscape/seascape as well as
identified virgin forests before the effectivity of this Act are hereby
designated as initial components of the System. The initial components of the
System shall be governed by existing laws, rules and regulations, not
inconsistent with this Act.
Glaring in the foregoing enumeration
of areas comprising the initial component of the NIPAS System under Republic
Act No. 7586 is the absence of forest reserves.
Only protected areas enumerated under said provision cannot be
modified. Since the subject matter of
Proclamation No. 297 is a forest reservation proclaimed as a mineral reserve,
Republic Act No. 7586 cannot possibly be made applicable. Neither can Proclamation No. 297 possibly
violate said law.
Similarly, Section 4(a) of Republic
Act No. 6657 cannot be made applicable to the instant case.
Section 4(a) of Republic Act No. 6657
reads:
All alienable and disposable lands of the public
domain devoted to or suitable for agriculture. No reclassification of forest or mineral lands to agricultural lands
shall be undertaken after the approval of this Act until Congress, taking into
account ecological, developmental and equity considerations, shall have
determined by law, the specific limits of the public domain. (Underscoring supplied.)
Section 4(a) of Republic Act No. 6657
prohibits the reclassification of forest or mineral lands into agricultural
lands until Congress shall have determined by law the specific limits of the
public domain. A cursory reading of this
provision will readily show that the same is not relevant to the instant
controversy, as there has been no reclassification of a forest or mineral land
into an agricultural land.
Furthermore, the settled rule of
statutory construction is that if two or more laws of different dates and of
contrary tenors are of equal theoretical application to a particular case, the
statute of later date must prevail being a later expression of legislative
will.[48]
In the case at bar, there is no
question that Republic Act No. 7942 was signed into law later than Republic Act
No. 3092, the Administrative Code of 1987,[49]
Republic Act No. 7586 and Republic Act No. 6657. Applying the cited principle, the provisions
of Republic Act No. 3092, the Administrative Code of 1987, Republic Act No.
7586 and Republic Act No. 6657 cited by SEM must yield to Section 5 of Republic
Act No. 7942.
Camilo
Banad, et al., Cannot Seek Relief
from This Court
Camilo
Banad and his group admit that they are members of the Balite Cooperative. They, however, claim that they are distinct
from Balite and move that this Court recognize them as prior mining locators.
Unfortunately for them, this Court
cannot grant any relief they seek.
Records reveal that although they were parties to the instant cases
before the Court of Appeals, they did not file a petition for review before
this Court to contest the decision of the appellate court. The only petitioners in the instant cases are
the MAB, SEM, Balite and Apex.
Consequently, having no personality in the instant cases, they cannot
seek any relief from this Court.
Apex’s
Motion for Clarification and Balite’s Manifestation and Motion
In its Motion for Clarification, Apex
desires that the Court elucidate the assailed Decision’s pronouncement that
“mining operations, are now, therefore within the full control of the State
through the executive branch” and place the said pronouncement in the proper
perspective as the declaration in La
Bugal-B’Laan, which states that –
The concept of control adopted in Section 2 of Article
XII must be taken to mean less than dictatorial, all-encompassing control; but
nevertheless sufficient to give the State the power to direct, restrain, regulate
and govern the affairs of the extractive enterprise.[50]
Apex
states that the subject portion of the assailed Decision could send a chilling
effect to potential investors in the mining industry, who may be of the
impression that the State has taken over the mining industry, not as regulator
but as an operator. It is of the opinion
that the State cannot directly undertake mining operations.
Moreover, Apex is apprehensive of the
following portion in the questioned Decision– “The State can also opt to award
mining operations in the mineral reservation to private entities including
petitioner Apex and Balite, if it wishes.”
It avers that the phrase “if it wishes” may whimsically be interpreted
to mean a blanket authority of the administrative authority to reject the
former’s application for an exploration permit even though it complies with the
prescribed policies, rules and regulations.
Apex likewise asks this Court to
order the MGB to accept its application for an exploration permit.
Balite echoes the same concern as
that of Apex on the actual take-over by the State of the mining industry in the
disputed area to the exclusion of the private sector. In addition, Balite prays that this Court
direct MGB to accept Balite’s application for an exploration permit.
Contrary
to the contention of Apex and Balite, the fourth paragraph of Section 2,
Article XII of the Constitution and Section 5 of Republic Act No. 7942
sanctions the State, through the executive department, to undertake mining
operations directly, as an operator and not as a mere regulator of mineral
undertakings. This is made clearer by the fourth paragraph of Section 2,
Article XII of the 1987 Constitution, which provides in part:
SEC. 2. x x x The
State may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. x
x x. (Emphasis supplied.)
Also, Section 5 of Republic Act No.
7942 states that the mining operations in mineral reservations shall be
undertaken by the Department of Environment and Natural Resources or a
contractor, to wit:
SEC. 5. Mineral
Reservations. – When the national interest so requires, such as when there
is a need to preserve strategic raw materials for industries critical to
national development, or certain minerals for scientific, cultural or
ecological value, the President may establish mineral reservations upon the
recommendation of the Director through the Secretary. Mining operations in existing mineral reservations and such other
reservations as may thereafter be established, shall be undertaken by the
Department or through a contractor x x x.
(Emphasis supplied.)
Undoubtedly, the Constitution, as
well as Republic Act No. 7942, allows the executive department to undertake
mining operations. Besides, La Bugal-B’Laan, cited by Apex, did not
refer to the fourth sentence of Section 2, Article XII of the Constitution, but
to the third sentence of the said provision, which states:
SEC. 2. x x x The exploration, development, and
utilization of natural resources shall be under the full control and
supervision of the State. x x x.
Pursuant to Section 5 of Republic Act
No. 7942, the executive department has the option to undertake directly the
mining operations in the Diwalwal Gold Rush Area or to award mining operations
therein to private entities. The phrase
“if it wishes” must be understood within the context of this provision. Hence, the Court cannot dictate this co-equal
branch to choose which of the two options to select. It is the sole prerogative of the executive
department to undertake directly or to award the mining operations of the
contested area.
Even assuming that the proper
authority may decide to award the mining operations of the disputed area, this
Court cannot arrogate unto itself the task of determining who, among the
applicants, is qualified. It is the duty
of the appropriate administrative body to determine the qualifications of the
applicants. It is only when this
administrative body whimsically denies the applications of qualified applicants
that the Court may interfere. But until
then, the Court has no power to direct said administrative body to accept the
application of any qualified applicant.
In view of this, the Court cannot
grant the prayer of Apex and Balite asking the Court to direct the MGB to
accept their applications pending before the MGB.
SEM’s Manifestation and Motion dated
SEM wants to emphasize that its
predecessor-in-interest, Marcopper or MMC, complied with the mandatory
exploration work program, required under EP 133, by attaching therewith
quarterly reports on exploration work from
It must be observed that this is the
very first time at this very late stage that SEM has presented the quarterly
exploration reports. From the early phase
of this controversy, SEM did not disprove the arguments of the other parties
that Marcopper violated the terms under EP 133, among other violations, by not
complying with the mandatory exploration work program. Neither did it present evidence for the
appreciation of the lower tribunals. Hence, the non-compliance with the
mandatory exploration work program was not made an issue in any stage of the
proceedings. The rule is that an issue
that was not raised in the lower court or tribunal cannot be raised for the
first time on appeal, as this would violate the basic rules of fair play,
justice and due process.[51] Thus, this Court cannot take cognizance of
the issue of whether or not MMC complied with the mandatory work program.
In sum, this Court finds:
1.
The
assailed Decision did not overturn the
2.
SEM
did not acquire vested right over the disputed area because its supposed right
was extinguished by the expiration of its exploration permit and by its
violation of the condition prohibiting the assignment of EP 133 by MMC to
SEM. In addition, even assuming that SEM
has a valid exploration permit, such is a mere license that can be withdrawn by
the State. In fact, the same has been
withdrawn by the issuance of Proclamation No. 297, which places the disputed
area under the full control of the State through the Executive Department;
3.
The
approval requirement under Section 97 of Presidential Decree No. 463 applies to
the assignment of EP 133 by MMC to SEM, since the exploration permit is an
interest in a mining lease contract;
4.
The
issue of the constitutionality and the legality of Proclamation No. 297 was
raised belatedly, as SEM questions the same for the first time in its Motion
for Reconsideration. Even if the issue
were to be entertained, the said proclamation is found to be in harmony with
the Constitution and other existing statutes;
5.
The
motion for reconsideration of Camilo Banad, et
al. cannot be passed upon because they are not parties to the instant
cases;
6.
The
prayers of Apex and Balite asking the Court to direct the MGB to accept their
applications for exploration permits cannot be granted, since it is the
Executive Department that has the prerogative to accept such applications, if
ever it decides to award the mining operations in the disputed area to a
private entity;
7.
The Court cannot pass upon the issue of whether or not MMC complied with
the mandatory exploration work program, as such was a non-issue and was not
raised before the Court of Appeals and the lower tribunals.
WHEREFORE, premises considered, the Court
holds:
1. The Motions for Reconsideration
filed by Camilo Banad, et al. and
Southeast Mindanao Gold Mining Corporation are DENIED for lack of merit;
2. The Motion for Clarification of
Apex Mining Co., Inc. and the Manifestation and Motion of the Balite Communal Portal
Mining Cooperative, insofar as these motions/manifestation ask the Court to
direct the Mines and Geo-Sciences Bureau to accept their respective
applications for exploration permits, are DENIED;
3. The Manifestation and Urgent
Motion dated
4.
The State, through the Executive Department, should it so desire, may
now award mining operations in the disputed area to any qualified entities it
may determine. The Mines and Geosciences
Bureau may process exploration permits pending before it, taking into
consideration the applicable mining laws, rules and regulations relative
thereto.
SO
ORDERED.
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MINITA V. CHICO-NAZARIO
Associate Justice |
WE
CONCUR:
On official leave
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ANTONIO
T. CARPIO Associate Justice |
RENATO
C. CORONA
Associate Justice |
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On official
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CONCHITA
CARPIO MORALES
Associate Justice |
PRESBITERO
J. VELASCO, JR.
Associate Justice |
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(No Part)
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ANTONIO EDUARDO B. NACHURA Associate Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
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On official
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ARTURO D.
BRION Associate Justice |
DIOSDADO
M. PERALTA Associate Justice
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LUCAS P.
BERSAMIN Associate Justice
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MARIANO C.
Associate Justice |
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ROBERTO
A. ABAD
Associate Justice |
MARTIN S.
VILLARAMA, JR. Associate Justice |
Pursuant
to Article VIII, Section 13 of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
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REYNATO S. PUNO
Chief Justice
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* On official leave.
* * No part.
[1] G.R. No. 92605,
[2] 42 Phil. 749 (1922).
[3] 66 Phil. 259 (1938).
[4] Atok Big-Wedge Mining Co. v. Intermediate Appellate Court, 330 Phil. 244, 262 (1996).
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12] 486 Phil. 754, 828-829 (2004).
[13] 429 Phil. 668, 682 (2002).
[14] Supra note 12 at 895.
[15] Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining Cooperative, supra note 13 at 682-683.
[16]
[17] G.R. No. 149927,
[18]
[19] Id at 531.
[20] Miners Association of the Philippines, Inc. v. Factoran, Jr., 310 Phil. 113, 130 (1995).
[21] PNOC-Energy Development Corporation (PNOC-EDC) v. Veneracion, Jr., G.R. No. 129820, 30 November 2006, 509 SCRA 93, 106.
[22]
[23] Estrada v. Escritor, 455 Phil. 411, 569 (2003).
[24] Miners Association of the Philippines, Inc. v. Factoran, Jr., 310 Phil. 113, 130-131 (1995).
[25] Promulgated on
[26] Supra note 24 at 130.
[27] Records, Vol. 2, pp. 84-85.
[28] Executive Officer. - The Secretary, through the Director, shall be the Executive Officer charged with carrying out the provisions of this Decree. x x x.
[29] Section 3, Commonwealth Act No. 136.
[30] Premiere Development Bank v. Court of Appeals, 471 Phil. 704, 716 (2004).
[31]
[32] Supra note 1 at 284.
[33] Supra note 1 at 283-284.
[34] Supra note 13 at 681.
[35] Matibag v. Benipayo, 429 Phil. 554, 578-579 (2002).
[36] Umali v. Exececutive Secretary Guingona, Jr., 365 Phil. 77, 87 (1999).
[37] Senate
of the
[38] Mirasol v. Department of Public Works and Highways, G.R. No. 158793, 8 June 2006, 490 SCRA 318, 347-348.
[39] G.R. No. 163509,
[40] Records of the Constitutional Commission, Vol. III, pp. 592-593.
[41]
[42] PICOP Resources, Inc. v. Base Metals Mineral Resources Corporation, supra note 39 at 419.
[43] Approved on
[44] Approved on
[45] This Act is known as the
“Comprehensive Agrarian Reform Law of 1998.”
It took effect on
[46] Disestablishment as Protected Area. –
When in the opinion of the DENR a certain protected area should be withdrawn or
disestablished, or its boundaries modified as warranted by a study and
sanctioned by the majority of the members of the respective boards for the
protected area as herein established in Section 11, it shall, in turn, advise
Congress. Disestablishment of a
protected area under the System or modification of its boundary shall take
effect pursuant to an act of Congress.
[47] All
alienable and disposable lands of the public domain devoted to or suitable for
agriculture. No reclassification of
forest or mineral lands to agricultural lands shall be undertaken after the
approval of this Act until Congress, taking into account ecological,
developmental and equity considerations, shall have determined by law, the
specific limits of the public domain.
[48] Philippine
National Bank v. Cruz, G.R. No. 80593,
[49] This law is dated
[50] Supra note 12 at 1093.
[51] Multi-Realty
Development Corporation v. Makati Tuscany Condominium Corporation, G.R. No.
146726,