THE LEGAL NATURE OF DENR/MGB MINING PERMITS

Version 2 March 8, 2011 8 pages

THE CREATION OF TENEMENTS (MINING RIGHTS) OVER NON-TRIBAL LANDS

MPSA
Exploration Permit (E.P.)

CONGRESS delegates to the

DENR/MGB, by way of the Mining Act of 1995 (RA 7942), the power to create tenements.

TENEMENTS
EXPA with file number

SUPREME COURT upholds The

Mining Law as constitutional.
Right to EXPLORE Right to MINE
1. CONGRESS expresses the will of the
State by legislation.

Right to EXCLUDE

REGALIAN DOCTRINE FOUNDATION

Control And Disposition of all Natural Resources rest with the

2.
3.

The EXECUTIVE implements the legislation

The SUPREME COURT determines if laws are constitutional and legally implemented

STATE

THE CREATION OF MINING RIGHTS OVER TRIBAL LANDS

LAW GRANTS TRIBE PERFECT MINING RIGHTS
CONGRESS a. Specifically deprives DENR/MGB of the power to create mining tenements in ancestral domains without PRIOR tribal consent (Sec. 16, Mining Act of 1995) b. Specifically grants IPs the PRIORITY RIGHTS to exploit natural resources within their ancestral domains (Sec. 57, Indigenous Peoples Rights Act RA 8371) SUPREME COURT upholds the Mining Law and IPRA as constitutional.

DENR/MGB

Deprived Of Power to Create Tenements Over Ancestral Domains Without Prior I.P. Consent

Right to EXCLUDE

Right to EXPLORE

Right to MINE

REGALIAN DOCTRINE

CONGRESS expresses the will of the State by legislation.

FOUNDATION

Control And Disposition of all Natural Resources rest with the STATE

The EXECUTIVE implements the legislation

The SUPREME COURT determines if laws are constitutional and legally implemented.
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DENR/MGB ILLEGALLY CREATING TENEMENTS IN ANCESTRAL DOMAINS

By illegally creating tenements in ancestral domains without prior IP consent, the DENR/MGB have been putting the cart before the horse, causing confusion, spawning litigation, and slowing down mining development in the country. Not only that, DENR/MGB have been arrogating unto themselves powers not given them under the law because these powers have been guaranteed by the Constitution, Congress and the Supreme Court to IPs as their birthright within ancestral domains---all in violation of the anti-graft laws.

I.P. Consent

DENR/MGB

EXPA EXPA

I.P. Consent

Just as the DENR/MGB could not begin a journey by putting the cart before the horse, it should not process mining applications (unnumbered EXPA) without prior I.P. consent.

With prior IP consent, the journey may begin, the mining applications (unnumbered EXPAs) may be processed by giving these unnumbered EXPAs file numbers. Numbered EXPAs constitute the first fundamental tenement (the right to exclude)*.
*The second fundamental tenement is the right to explore. The 4 third fundamental tenement is the right to mine.

Prior IP Consent
Sec. 16 Mining Act of 1995 No ancestral land shall be opened for mining operations without the prior consent of the indigenous cultural community concerned. Sec. 57 of the Indigenous Peoples Rights Act (IPRA) of 1997 The ICCs/IPs shall have priority rights in the harvesting, extraction, development and exploitation of any natural resources within the ancestral domain. Art. 5 of the

Civil Code
Acts executed against the provisions of mandatory and prohibitory laws shall be void

Art. 1409 and 1410 of the Civil Code say that void acts cannot be ratified, the defense of illegality cannot be waived, and the action or defense of inexistence does not prescribe.

If an applicant has NO PRIOR IP CONSENT, the EXPA, APSA, MPSA, AFTA or any other papers issued him by MGB are VOID, and the government officials who opened the ancestral domain to mining by creating mining tenements without such prior IP consent are liable for prosecution under the anti-graft laws.
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TENEMENTS
The issuance of tenements involves the exercise by the DENR/MGB of 2 different kinds of powers:
I Powers of DENR/MGB in the issuance of tenements over non-tribal land
The power to control and dispose of natural resources delegated by Congress to the DENR/MGB.
When the DENR/MGB grants an EXPA with file number, an EP, or an MPSA, it thereby decides WHO shall have priority to explore and mine a particular area.
TENEMENTS OVER NON-TRIBAL LANDS

II Regulatory power

This involves the power of the DENR/MGB to promote mining safety, protect the environment and in general, address public welfare. This answers the question: HOW should exploration and mining be conducted?

SPECIAL ORE EXTRACTION PERMIT (SOEP)

In respect of tribal lands, the issuance of a permit by the DENR/MGB involves only one power: the regulatory power.

Power of DENR/MGB over Tribal Lands

Regulatory power

This involves the power of the DENR/MGB to promote mining safety, protect the environment and in general, address public welfare. This answers the question: HOW should exploration and mining be conducted?

SOEP

The I.P.s rights to explore and mine resources in their ancestral domain derives from a direct legislative grant of Congress (IPRA). No grant or tenement from the DENR/MGB is involved. In fact, the DENR/MGB are specifically prohibited from creating tenements in ancestral domains without prior IP consent (Sec. 16, Mining Act). A regulatory permit is not a privilege or a grant. The DENR/MGB have only the ministerial, not discretionary, power to grant it when the I.P.s ask for a permit under IPRA. Many government officials have gone to jail for unreasonably withholding regulatory permits, in the mistaken notion that there is no difference between a permit as a grant or privilege (discretionary) and a permit as a regulatory device (ministerial). 7

Summary of Distinctions
Tenements in Non-Tribal Lands 1 2
Granted by the DENR/MGB under powers delegated by Congress DENR/MGB grant tenements in successive stages, i.e. numbered EXPA (right to exclude); EP (right to exclude and explore); and finally MPSA (the perfect and complete right to exclude, explore and mine) Rights are recognized by tenements (numbered EXPA, EP, MPSA) recorded in MGB tenement maps maintained and updated by region. DENR/MGB determine WHO shall mine by creating tenements (numbered EXPA, EP, MPSA) DENR/MGB determine HOW to mine. Same document as in No. 4 above. Issuance of DENR/MGB tenements involves 2 powers: (a) power to dispose and (b) regulatory power The grant of a tenement is discretionary on the part of DENR/MGB.

Mining Rights of IPs in Tribal Lands

Granted by Congress to IPs by direct legislative act. Congress, by direct legislative act, grants IPs rights (perfect and complete from Day 1) to exclude from, explore, and mine their ancestral domains. Rights exist without need for DENR/MGB intervention. IPs rights are not DENR/MGB tenements and should not be included in MGB tenement maps. The law has predetermined WHO shall mine ancestral domains the IPs. Ancestral domains are not DENR/MGB mining tenements. DENR/MGB determine HOW to mine by issuing Special Ore Extraction Permit (SOEP). Issuance of DENR/MGB SOEP involves only the power to regulate. Issuance of SOEP is ministerial. SOEP is not a grant but a mere regulatory permit.

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Being the source of the tenement, the DENR/MGB have the power to prescribe terms of acquisition. They may, for example, bid out tenements, instead of awarding these on a first-come-first-serve basis.

Not being the source of IP rights, the DENR/MGB have no power to change the gratuitous nature of the Congressional grants under Sec. 16 of the Mining Act and Sec. 57 of the Indigenous Peoples Rights Act (IPRA).

NOTE: When IPs waive their priority rights and give prior informed consent for non-IPs to mine a particular area within their 8 domain, that area may, for 25 years, be treated by the DENR/MGB as if the area were non-tribal and include it in their tenement maps. DENR/MGB may then prescribe the terms and conditions of tenement acquisition by non-IP applicants.