Introduction: Why Mining?

Mining has existed since nearly the dawn of human civilization, perhaps even making it possible through the use of metal tools and weapons. But this extraction of minerals and metals has also been an incredibly destructive force in the history of mankind and has more become associated with imperialism, and more recently, environmental degradation.

It drove colonialism after European powers realized there were riches to be had even if their ships never arrived in the Indies and China. They desperately sought gold in the New World and searched for the legendary wealth of El Dorado. Once they had a strong foothold in what is now Latin America, the Spanish found the vast gold mines used by the indigenous peoples, who were then enslaved and forced to extract the precious metal for their oppressors. Spain became the richest country in the world, driven by their strong mining industry.

Although gold is still one of the most valuable substances in the world, a host of other metals and minerals have also drawn the attention of mining companies. Most of these corporations are based in the developed countries of the West, but have gone global with their operations, becoming multinationals with subsidiaries around the world, eager to exploit the vast, untapped natural resources of the Third World. Despite promises of wealth and development, human rights abuses and severe environmental damage have more often accompanied these ventures.

Despite the egregious record of mining companies regarding the violation of human rights and ecological degradation associated with them, they have largely stayed out of the limelight and avoided the exposure and targeting that other industries, such as oil and energy, have been subject to. Still, mining companies are a part of the netherworld of dirty business and shady politics. In order to understand the violations these companies are guilty of, it is important to first examine the role of mineral and natural resource rights in international human rights law, particularly in the realm of indigenous rights. Statistics and news articles can then provide an account of the general abuses associated with mining, such as violence against civilians and environmental damage and negligence. This has prompted the industry to suggest policies for change, although the success of their implementation is questionable at best. This information will then serve as a framework for understanding a current and on-going case study of mining on the island of Mindanao in the Philippines.

Natural Resources and Indigenous Rights

Natural resources, particularly mineral rights have become prominent in indigenous rights documents. Written by the United Nations agency the International Labor Organization in 1989, ILO Convention 169 remains the most progressive and comprehensive set of guidelines for indigenous rights. Within this document, mineral rights receive special treatment in an exclusive section separate from other natural resources.

Mineral rights are incredibly controversial in many developing countries with large indigenous populations. In most nations, subterranean resources belong exclusively to the State. Despite this, ILO 169 emphasizes the need for fairness and inclusion of indigenous people who live on the land above these resources and calls for consultations, participation in the decision making process, benefit-sharing, and compensation for any losses from the mining project, although it does not grant indigenous peoples the right to veto.

Mineral rights have also been given a prominent place by indigenous groups themselves in other documents. In the “Declaration of the Rights of Asian Indigenous Peoples,” published in the Asia-Pacific Journal on Human Rights and the Law in 2000, the third right asserted for self-determination is “the right to use, manage and develop all natural resources found within our ancestral domains.” This comes before the right to speak their own language or even the right to self-government.

Why are rights to natural, and especially mineral, resources so prominent? Part of it is an issue of territory. Asserting the right to what lies beneath the ground helps secure a right to that land, which is often contested and may even be claimed by the state. Indigenous claims and titles may prevent the forced displacement of 10 million people annually that accompanies mining projects. There is also a need for local control and ownership of development. There are many different modes of development and these should not be imposed on communities from above. Modernization must be balanced with the desire to maintain traditional livelihoods as a part of indigenous peoples’ cultural rights.

Indigenous control of land can also stop the social disruption that often accompanies mining projects. Specific territory given in a concession may be considered sacred and help form a sense of identity for a group. Forced resettlement can split families and many victims become homeless and jobless. Loss of land also reduces food security and the trauma often has negative consequences for people’s health. Children’s education is interrupted. This forced displacement is usually considered an externality that neither governments nor corporations are willing to fund, leaving those who have been displaced to fend for themselves.

Environmental Degradation and Human Rights

When the United Nations was formed and the key documents and treaties defining human rights were written, the current concern for the environment was nonexistent. The importance of the natural world, however, has long been acknowledged. The Hague Conventions, the Geneva Conventions, and the Inhuman Weapons Convention, among others, outlaw the environmental destruction during warfare. This includes burning down forests, destroying orchards, and polluting rivers and other water sources. Currently, debate has revolved around whether or not a healthy environment in itself is a right or if it simply falls under other categories. The difference is subtle. In order to pursue “standard” rights, such as that to life or health, a relatively clean environment is necessary. But having an unpolluted environment can also be seen as a right in itself, regardless of implications of other rights. The norm in this area varies by country. Fifty-six constitutions include a guarantee of an ecological standard. Courts across the globe have also interpreted this as a constitutional right, including the Supreme Court of the Philippines.

In either case, extreme environmental degradation would be considered a violation of rights. Mining is well-known for causing severe ecological damage. Strip-mining is especially harmful as mountaintops are flattened and minerals are taken from a huge crater that is made. Open pit mines, which are more common, dig close to the surface for extraction, often gauging and deforesting the land. But the most dangerous aspect of mining is the waste that is produced. Toxic chemicals are usually used for extraction, such as cyanide for gold or ammonia for nickel. This waste is called “tailings.” Disposal is usually in an artificial pond or crater where it will evaporate, although there have been many reports of tailing dam failures. Skin diseases, lower crop yields, and lower fish yields have been associated with these industrial accidents.

However, in many Third World countries, “submarine tailing disposal” (STD), is the preferred and cheaper method. It is incredibly harmful and the practice has been outlawed in the United States, Canada, and Australia, although multinationals from these nations routinely engage in the practice abroad. The process consists of pumping tailings from the site to the sea floor in coastal areas that then disperse through the ocean currents. Independent scientific studies of the impact of this practice have not yet been conducted, but anecdotal evidence (and common sense) point to large scale death of fish, corals, and other marine life. Waste that remains at the sea floor causes severe damage and contamination occurs in deep sea fish and bottom-dwelling organisms. Contaminants can also make their way up the food chain and cause substantial ecosystem disturbance. Currents can carry the toxins long distances, as well as to the surface. Upwelling, movement of water from the bottom of the sea to the surface, can also bring toxins in contact with humans and fish (which are often important food sources).

The type of environmental degradation causes by mining is a danger to locals’ health, lives, and livelihoods. Spills and improper disposal contaminate water and crops. Many communities rely on fishing from rivers or the sea, which is also severely affected by these cases.

Case Study: The Philippines

An example of how corporations have infringed on indigenous rights is the mining industry in the Philippines. The Philippines is a diverse country, an archipelago of over 7,000 islands in Southeast Asia. The country is diverse with a long history that includes mining. The ancestors of most native tribes arrived on the islands several thousand years ago. Muslim influence arrived from Indonesia beginning in the late 14th century. Around the same time, Chinese merchants began a gold trade from the island of Luzon. In 1521, Ferdinand Magellan arrived on the Philippine islands and for over three centuries, it was a Spanish colony. After the Spanish-American War, the Philippines came under American control and remained a colony until 1946. During this period, Congress passed statutes granting American investors access to the country’s metal and mineral deposits and control over the industry.

There is also a legacy of violence and rebellion in the Philippines. Current militarization of areas with mining concessions is often attributed to insurgencies and “Maoist revolutionaries.” The primary group of concern has been the Communist Party of the Philippines (CPP) and its militant wing, the New People’s Army (NPA), which were founded in 1968 and found a base in middle-class students dissatisfied with the government. Though considered a “Maoist” group, the CPP also allied with peasants who had been rebelling against the state since the 19th century. The group has engaged in extortion, banditry, bombing, and has not avoided civilian targets. The other main group of rebels has been Muslim secessionists, mostly on the island of Mindanao, who have called for independent Muslim states ruled by Sharia, Islamic law. Though some groups have come to compromise with the government, the Abu Sayyaf Group (Bearer of the Sword), which was founded in 1989 and loosely connected to the Afghan mujahadeen have also continued their insurgency.

Given these circumstances, it is surprising that mining companies are willing to operate in this area. Yet the specter of “Islamic terrorists” and “Maoist revolutionaries” have provided an excuse for increased militarization and a cover for human rights abuses by the military and mining company security forces. According to Human Rights Watch, over 700 civilians have been the victims of extrajudicial killings by the military, which has repeatedly denied responsibility, while no individuals have been brought to justice since the killings began in 2001. Most victims were formerly or are currently active members of leftwing political parties and civil rights and environmental activists at both the national and local level. This is part of an effort to eliminate the NPA by 2008, as ordered by President Arroyo, and has included violence, intimidation, and even allegations of torture. Meanwhile, the military has “attributed the killings to an internal purge by the communist insurgency” and some top-level generals have gone so far as to publicly condone the killings.

The security forces employed by mining companies have also been accused of human rights abuses and close ties with the government and military. TVI Pacific, a Canadian firm with major mining projects on Mindanao, hires a paramilitary force known as the Special CAFGU Armed Auxiliary (SCAA), which is trained and armed by the Filipino military. The SCAA has shot at peaceful protesters, hidden barbed nails in frequently used trails, and blockaded local villages near their mines, preventing food and medical supplies from entering the area. Guards also manned checkpoints and prohibited indigenous Subanen people from going to their sacred sites. Some of these sites themselves were opened up to mining. During testimony to the Canadian Parliament in 2005, former project manager of the KingKing mine described bribes and protection money given to politicians, military figures, and terrorist and military groups as the “cost of doing business.” Clifford James, the company’s CEO, simply denied any knowledge of these activities, refusing to take responsibility for his company’s actions.

In addition, mining companies have been able to undermine both indigenous rights and the laws of the Philippines itself. This process began in earnest in 1994 when the Asian Development Bank pressured the government heavily to liberalize its laws on FDI, which had mandated at least 60% Filipino ownership of each mining project and restricted profit repatriation. In order to attract investors, the Philippine government has been relaxing its regulations and procedures. In 1995, the Mining Act was passed. This provided extensive tax breaks, including a five year complete exemption, and changed laws on investment, allowing projects to be completely foreign-owned and permitting 100% profit repatriation. Additionally, the DENR planned to open up 30% of the country to mining concessions.

The Philippine Indigenous Rights Act of 1997, one of the most progressive in the world, granting control of land, resources, and development of ancestral land among other things, has also been seriously undermined by legislation that promotes mining. Mining companies opposed the legislation, particularly the extensive free prior informed consent regulations. Lobbying has led to changes in that policy. An Administrative Order was issued stating that concessions given before the 1997 passage of the Indigenous Rights Act would not require free prior informed consent. At Mt. Cantuan on Mindanao, the Subanen people have been protesting the opening of a gold mine since it was first proposed in 1989. In 1994, TVI Pacific bought the right from Benguet Corporation. Since then, TVI has mined in sacred areas, seized property, and forcibly displaced many. Despite the lack of free and prior informed consent and obvious opposition, the mining has been allowed to continue since the concession was given before 1997.

Even the procedures for obtaining free and prior informed consent when necessary have become incredibly unjust and corrupt. When consent has not been forthcoming, corporations have not shied away from bribes or choosing their own “leaders” from groups, disregarding customary indigenous law and government structures. In other cases, meeting attendance sheets have been used to prove consent. Information needed to make a judgment has also not been forthcoming. Environmental Impact Assessments (EIA) are made by the companies themselves and rarely amount to more than propaganda. There is also no independent review or monitoring system and the reports rarely contain comprehensive biological, social, or economic impact analysis. Plans for future expansion are typically not included. Despite these deficiencies in reporting, information given to local people is of even lesser quality. In fact, under current policy, the mining company decides what is told to the community and it rarely amounts to substantial information. EIA’s can only be released with the permission of the company itself, as the indigenous communities of the Zamboanga peninsula on Mindanao were told in 1998 by Horacio Ramos, director of the Mines and Geosciences Bureau. Thus, cases of actual informed consent are incredibly rare.

In order to become a more attractive country for FDI, the DENR has also “streamlined” the process of granting licenses. The processing time for review of applications has been reduced and if review is not complete by the deadline, a license is automatically granted. This often happens when a consensus decision by the local communities as to whether or not they approve has not been reached in time, although from the tactics described above, it is evident that companies have devised many ways of creating consent. The National Commission for Indigenous People, created in 1997 by the Indigenous Rights Act, has not been seen as a helpful tool by the people it is supposed to serve. It lack independence from the obvious pro-mining government and therefore often sides with the corporations.

Serious environmental damage has also been an issue with mining in the Philippines, undermining food security and rights to health and even life itself. Submarine tailings disposal, described earlier, is commonly used, often destroying coral and decimating coastal fish populations that locals rely on for food. From 1993-2003, there were 16 major tailing dam failures, made more likely by the seismic instability of the entire region. 800 abandoned mines have not been cleaned up, and probably never will be due to high costs running into the billions. This waste often contaminates rivers, reducing fish populations and causing severe skin infections in people who come in contact with the water. In 2002, Philex Gold ceased its operations on Mindanao after two tailing dam overflows (that year and previously in 1997) that contaminated the local rivers and indigenous people’s rice paddies. In addition to major toxin exposure, the villagers report their rice yields have been reduced to approximately half of what they were. One of the worst disasters occurred in March 1996 when a plug in the tailings pit of the Marcopper Mine Corporation in Marinduque failed, releasing between 1.6 and 3 million cubic meters of toxic, acidic waste into the Boac River, which was declared “biologically dead” by an investigating United Nations team of scientists. Four years later, a United States Geological Survey (USGS), found and most likely irreversible damage still present.

Concluding Remarks

Mining is an industry with a long history of imperialism, exploitation, and abuse. In fact, many citizens of Third World countries consider mining projects carried out by Western-based companies a new form of imperialism. And despite a host of initiatives and commissioned reports, the industry has largely failed to reform, though it has also escaped harsh scrutiny.

Many improvements that mining companies should undertake suggested by former British Secretary of State for Overseas Development Clare Short after her fact-finding mission to the Philippines are obvious, although there has already been resistance to them. These include halting current operations, conducting more thorough environmental assessments, and allowing independent review. She also suggests that the Philippine government provide technical and legal advise to indigenous peoples, regulate instead of promote mining, and enforce existing laws. These recommendations can also be generalized to fit other countries and industries and accurately reflect changes that need to occur.

Yet recommendations with no chance of implementation anytime soon can only take us so far while many questions remain and other issues have yet to be explored in depth. What actions can force Western governments to regulate their companies? Indigenous communities have often used these situations as a launching point for creating dialogue and reshaping national identity. Perhaps corporations could also engage in this process. Instead of simply providing seemingly coercive “gifts” to communities, could they pressure the governments they work so closely with to be accountable to marginalized populations? Can industry in general, driven by profit and not social justice, ever truly become a vehicle for real improvement in peoples’ lives? How have mining project affected relations between indigenous peoples and other locals? How have indigenous groups themselves been split on these issues? How have scientists and researchers, generally perceived as apolitical and indifferent, been manipulated so effectively by corporations? Can indigenous communities more effectively engage them? And what role do NGO’s play in all this drama? Though they are advocates for marginalized indigenous communities, their structure and ultimate interests are shaped by their position in Western society. In the Philippines, affected communities have made strong partnerships with Filipino NGO’s, grass-roots organizers, and other civil society groups, such as the Catholic Bishops of the Philippines. The challenge here is to use powerful groups, like NGO’s, to use their influence to change the industry, while not losing sight of the goals and needs of the people who are the most affected.

Mining may never be able to drop the baggage from its abusive past. Perhaps decisive steps toward change will make a difference, but that has yet to be seen.