For motives known only at the top rung of power, by a vote of 8-5 with one abstention, the Supreme Court on January 27, 2004 declared that the Mining Act violated the Constitution. In the process, the Court nullified all provisions of the Mining Act concerning Financial and Technical Assistance Agreements (FTAA) that allow foreign firms to own up to 100% of mining projects, and other permits granted to foreign investors. Ruling in favor of the 1997 petition questioning the Mining Act’s legality, the judicial body then subscribed to the claims that the law would displace indigenous communities and destroy the country’s natural resources.

However, parties at the DENR/MGB held the view that it was incorrect to say the Supreme Court “junked’ the Mining Act because the January 27, 2004 deci- sion nullified only those provisions regarding the par- ticipation of foreign firms in local mining operations. Government parties maintained that the Court deci- sion was not final and executory, pending the resolu- tion of the motion for reconsideration filed through the Office of the Solicitor General. All other provi- sions of the mining act were still enforceable, they said.

Nevertheless for more than 11 months, the high court ruling and its repercussions was the most pressing concern faced by the mining industry. It had created policy instability and uncertainties in an industry, albeit perceived as a “sunset industry ”, heavily dependent on foreign capital. At the 11th hour, very powerful interests about to lose their prized catch could have sounded the alarm. Hence, the entire legal machinery of the government was mobilized to push its motion for reconsideration and to allay fears of big-time investors.

Perceived by the public to have succumbed to the pressures of very powerful interests, the Supreme Court on December 1, 2004, reversed its January 27, 2004 decision by a vote of 10-4 with again one abstention. As it had long been expected by some quarters that distrust the country’s judicial system, the Court upheld the legality of the Mining Act and its provisions allowing foreign mining firms full access to the country ’s mineral resources. Still, one could not but fathom out why it only took this august body of magistrates barely a year to reverse what it had pre- viously cogitated upon for about seven years.

Now, high government officials are one in saying that the Court’s decision paves the way for the infusion of an estimated $6 billion in foreign capital within the next three years, prompting the President to declare the country was on the verge of a great investment take-off.

In the wake of recent calamities, the President was quoted as saying “that mining activities will even miti- gate the deadliest disasters because the poor will not have to ravage the forest to survive”. Perhaps con- scious of the bad timing that enveloped the Supreme Court’s about-face, the Chief Executive tried to as- sure a rather skeptical or cynical public that “this time, we will fully enforce responsible and environmentally sound mining practices”.

However, environmental groups condemn the Court’s reversal of position as “anti-nationalist” and “anti- Filipino”. Allowing the entry of wholly foreign-owned corporations in the exploitation of our mineral resources, they protest, will only aggravate the worsening environmental situation in the country.

The protesting groups consider the Court ruling that removed an important barrier to the entry of foreign mining companies liable for environmental destruction and for human rights violations against indigenous peoples and rural communities “an act of treason” of which the President, they suspect, may have a sinister hand.