LA BUGAL B’LAAN TRIBAL ASSOCIATION INC., ET AL. V. RAMOS case digest

LA BUGAL B’LAAN TRIBAL ASSOCIATION INC., ET AL. V. RAMOS G.R. No. 127882 27 January 2004 Ponente: Carpio-Morales

FACTS: On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 279 authorizing the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts or agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration, development, utilization and processing of all mineral resources." R.A. No. 7942 defines the modes of mineral agreements for mining operations, outlines the procedure for their filing and approval, assignment/transfer and withdrawal, and fixes their terms. Similar provisions govern financial or technical assistance agreements. On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers of general circulation, R.A. No. 7942 took effect. Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato. On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by DAO No. 96-40, s. 1996 which was adopted on December 20, 1996. On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40, giving the DENR fifteen days from receipt to act thereon. The DENR, however, has yet to respond or act on petitioners' letter. Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction. They pray that the Court issue an order: (a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance Agreements; (b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void; (c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void; and (d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as unconstitutional, illegal and null and void. In January 2001, MMC – a publicly listed Australian mining and exploration company – sold its whole stake in WMCP to Sagittarius Mines, 60% of which is owned by Filipinos while 40% of which is owned by Indophil Resources, an Australian company. DENR approved the transfer and registration of the FTAA in Sagittarius’ name but Lepanto Consolidated assailed the same. WMCP contends that the annulment of

the FTAA would violate a treaty between the Philippines and Australia which provides for the protection of Australian investments. ISSUE: W/N the Philippine Mining Act is unconstitutional for allowing fully foreign-owned corporations to exploit Philippine mineral resources. – YES. ISSUE: W/N the FTAA between WMCP and the Philippines is a service contract. – YES.

RATIO: First Issue: RA 7942 or the Philippine Mining Act of 1995 is unconstitutional for permitting fully foreign owned corporations to exploit Philippine natural resources. Article XII Section 2 of the 1987 Constitution retained the Regalian doctrine which states that “All lands of the public domain, waters, minerals, coal, petroleum, and other 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.” The same section also states that, “exploration and development and utilization of natural resources shall be under the full control and supervision of the State.” Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the State to grant licenses, concessions, or leases for the exploration, exploitation, development or utilization of natural resources. Y such omission, the utilization of inalienable lands of public domain through license, concession or lease is no longer allowed under the 1987 Constitution. Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a particular natural resource within a given area. The concession amounts to complete control by the concessionaire over the country’s natural resource, for it is given exclusive and plenary rights to exploit a particular resource at the point of extraction. The 1987 Constitution, moreover, has deleted the phrase “management or other forms of assistance” in the 1973 Charter. The present Constitution now allows only “technical and financial assistance.” The management or operation of mining activities by foreign contractors, the primary feature of service contracts was precisely the evil the drafters of the 1987 Constitution sought to avoid. The constitutional provision allowing the President to enter into FTAAs is an exception to the rule that participation in the nation’s natural resources is reserved exclusively to Filipinos. Accordingly such provision must be construed strictly against their enjoyment by non-Filipinos. Therefore RA 7942 is invalid insofar as said act authorizes service contracts. Although the statute employs the phrase “financial and technical agreements” in accordance with the 1987 Constitution, its pertinent provisions actually treat these agreements as service contracts that grant beneficial ownership to foreign contractors contrary to the fundamental law. The underlying assumption in the provisions of the law is that the foreign contractor manages the mineral resources just like the foreign contractor in a service contract. By allowing foreign contractors to manage or operate all the aspects of the mining operation, RA 7942 has in effect conveyed beneficial ownership over the nation’s mineral resources to these contractors, leaving the State with nothing but bare title thereto. The same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally ordained 60-40% capitalization requirement for corporations or associations engaged in the exploitation, development and utilization of Philippine natural resources. When parts of a statute are so mutually dependent and connected as conditions, considerations, inducements or compensations for each other as to warrant a belief that the legislature intended them as

a whole, then if some parts are unconstitutional, all provisions that are thus dependent, conditional or connected must fall with them. Under Article XII Section 2 of the 1987 Charter, foreign owned corporations are limited only to merely technical or financial assistance to the State for large scale exploration, development and utilization of minerals, petroleum and other mineral oils. nd

2 Issue: The FTAA between WMCP and the Philippine government is likewise unconstitutional since the agreement itself is a device contract. Section 1.3 of the FTAA grants WMCP, a fully foreign owned corporation, the “exclusive right to explore, exploit, utilize and dispose of all minerals and by-products that may be produced from the contract area.” Section 1.2 of the same agreement provides that WMCP shall provide “all financing, technology, management, and personnel necessary for the Mining Operations.” These contractual stipulations and related provisions in the FTAA taken together, grant WMCP beneficial ownership over natural resources that properly belong to the State and are intended for the benefit of its citizens. These stipulations are abhorrent to the 1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid, the evils that it aims to suppress. Consequently, the contract from which they spring must be struck down.