I. Introduction
This memorandum critically examines the legal and regulatory framework governing mining in the Philippines, the observed failures of state institutions to regulate mining corporations effectively, and the socio-legal consequences of elite capture in the sector. Central to this analysis are constitutional mandates on environmental protection and Indigenous peoples’ rights, statutory norms in the Philippine Mining Act of 1995 (RA 7942) and the new fiscal regime under RA 12253 (2025), and the regulatory conduct of relevant agencies.
II. Legal and Constitutional Framework
A. Constitutional Mandates on Environment and Resource Control
The 1987 Philippine Constitution enshrines both the national ownership of natural resources and the State’s duty to protect the environment. Article XII, Section 2 vests in the State “the ownership of all lands of the public domain, waters, minerals, coal, petroleum, and other natural resources,” mandating full control and supervision over their exploration and utilization. Article II, Section 16 further commands that “the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”
B. Statutory Regime: RA 7942 and RA 12253
1. Philippine Mining Act of 1995 (RA 7942). This foundational statute articulates policies for mineral resource exploration, development, utilization, and conservation. It recognises State ownership of mineral resources and sets out a regime for permitting and fiscal obligations. It also acknowledges Indigenous cultural community rights over ancestral lands and requires that no ancestral land be opened for mining without appropriate consent.
2. Enhanced Fiscal Regime for Large-Scale Metallic Mining Act (RA 12253, 2025). This recent law aims to overhaul the mining fiscal regime by simplifying tax structures, introducing margin-based royalties, windfall profits taxes, and transparency mechanisms designed to strengthen governance and ensure greater government share of mining revenues. It institutionalises multi-stakeholder mechanisms for data disclosure, including beneficial ownership and revenue data, as part of participatory governance.
C. Indigenous Peoples’ Rights Act (RA 8371) and Free, Prior, and Informed Consent (FPIC)
The Indigenous Peoples’ Rights Act operationalises constitutional protections by requiring Free, Prior, and Informed Consent (FPIC) from affected Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) before mining projects proceed on ancestral lands. Jurisprudence affirms that mining agreements are privileges subject to government police power and that the FPIC requirement cannot be waived or nullified by contractual claims by mining firms.
III. Regulatory Failure and Elite Capture
A. Fragmented Governance and Enforcement Deficits
Despite constitutional and statutory protections, regulatory implementation has been weak and inconsistent. Multiple agencies hold overlapping jurisdictions over mining permits, environmental compliance, and land classification, fostering regulatory gaps that corporations exploit. This fragmentation undermines enforcement of environmental safeguards and community protection, facilitating rent-seeking behaviours. Civil society and policy analysts have documented systemic enforcement weaknesses, enabling revenue leakages and environmental harms.
B. Elite Capture Defined
Elite capture in this context refers to the domination of policymaking and regulatory processes by a select group of political and economic actors — including large mining corporations and affiliated political elites — enabling them to shape laws, enforcement priorities, and fiscal incentives to their advantage, often at the expense of the broader public interest. This manifests in:
1. Policy Influence and Regulatory Concessions. Large mining firms, both domestic and foreign, have shaped tax and regulatory regimes to secure favourable tax holidays, exemptions, and concessions that limit state revenue and oversight. These concessions can amount to tacit tax avoidance and weaken the State’s ability to use resource wealth for public welfare.
2. Political Entrenchment. Mining interests often intersect with political networks, including local and national elites, creating a governance dynamic where regulatory leniency is rewarded while community demands for accountability are sidelined.
3. Bureaucratic Capture of Processes like FPIC. Investigations by international actors have highlighted procedural flaws and conflicts of interest in FPIC processes, with accusations that entities such as the National Commission on Indigenous Peoples (NCIP) have been co-opted to expedite approvals, sometimes in concert with military or corporate actors.
IV. Negative Effects on Social Justice and Equality
A. Environmental Degradation and Health Impacts
The failure to enforce environmental safeguards consistently has resulted in significant ecological disruption — deforestation, biodiversity loss, and water contamination — disproportionately affecting rural and Indigenous populations. These outcomes not only breach constitutional ecology rights but also undermine community health and livelihoods.
B. Unequal Economic Benefits and Tax Evasion
Mining contributes a small fraction to national GDP relative to the scale of resource extraction. Historical fiscal arrangements under RA 7942 allowed inconsistent royalty structures and exemptions that limited revenue capture. Although RA 12253 aims to address these inequities through margin-based royalties and transparency provisions, the sector remains vulnerable to sophisticated tax planning and profit shifting that advantage corporate elites.
C. Indigenous Rights Violations and Social Conflict
Flaws in FPIC implementation have resulted in consultations that do not meet the standards of genuine consent, exacerbating intra-community divisions and social tensions. Such procedural failures violate Indigenous peoples’ rights to self-determination and land stewardship.
D. Judicial Remedies and Access to Justice
Judicial remedies such as the Writ of Kalikasan provide constitutional avenues for redress, enabling citizens to seek protection against environmental harm. However, access to such remedies is often resource intensive and limited to well-organised civil society actors, leaving many affected communities without timely legal recourse.
V. Conclusion and Recommendations
The Philippine government’s regulatory framework governing mining, though grounded in robust constitutional and statutory principles, has fallen short in practice due to elite capture, fragmented governance, and weak enforcement. These failures diminish the constitutional rights of affected communities and undermine equitable distribution of natural resource wealth.
Recommendations:
1. Harmonise Regulatory Agencies. Clarify and streamline mandates to eliminate gaps and overlaps that enable regulatory evasion.
2. Strengthen Fiscal Transparency. Implement RA 12253’s transparency mechanisms rigorously, mandating public disclosure of beneficial ownership and revenue flows.
3. Reform FPIC Implementation. Institutionalise independent oversight of FPIC processes to ensure authentic consent free of undue influence.
4. Support Community Legal Access. Expand legal support mechanisms, including strategic use of environmental writs, to enable affected communities to enforce constitutional rights.
Sources
Republic Act No. 12253 (Enhanced Fiscal Regime for Large-Scale Metallic Mining Act): https://lawphil.net/statutes/repacts/ra_12253_2025.html
Republic Act No. 7942 (Philippine Mining Act of 1995): https://lawphil.net/statutes/repacts/ra_7942_1995.html
Environmental constitutional right, Philippines Constitution (Article II, Section 16): https://lawphil.net/consti/cons1987.html
FPIC and Indigenous Peoples’ Rights decisions: ASG Law analysis on FPIC requirements: https://www.asglawpartners.com/mining-law/2022/06/21/protecting-indigenous-rights-mining-agreements-must-respect-prior-consent/
Global Witness report on Indigenous rights and FPIC challenges: https://globalwitness.org/en/campaigns/land-and-environmental-defenders/how-the-militarisation-of-mining-threatens-indigenous-defenders-in-the-philippines/
Writ of Kalikasan — constitutional protection for environmental rights: https://en.wikipedia.org/wiki/Writ_of_Kalikasan
PwC summary of RA 12253 fiscal changes: https://www.pwc.com/ph/en/tax/tax-alerts/2025/pwc-ph_tax%20alert_republic-act-no-12253_enhanced-fiscal-regime-for-large-scale-metallic-mining-act.pdf
(Assisted by ChatGPT, January 14, 2026)
