"46 Intervenor CMP, however, fails to consider that the Government's 60% share is illusory because under Section 7.9 of the WMCP FTAA the foreign stockholders of WMCP can reduce at any time to ZERO percent the Government's share. In addition to being the widest cable-stayed bridge in the world, the bridge is the first hybrid cable-stayed bridge in the US, using both steel and concrete in its frame. Net mining revenue means the gross output from mining operations during a calendar year less deductible expenses. Petition for prohibition. If the frame of a house does not begin to distort until after three or more years of satisfactory performance, it is doubtful that the distortion is caused by full-depth foundation settlement, which is always evidenced by matching cracks. I voted in favor of the Jamir amendment because it will eventually give way to vesting in exclusively Filipino citizens and corporations wholly owned by Filipino citizens the right to utilize the other natural resources. Since timber licenses are not contracts, the non-impairment clause which reads: "SEC 10. The Court cannot rule on mere surmises and hypothetical assumptions, without firm factual anchor. This omission was obviously a deliberate move on the part of the framers. The second paragraph of Section 81, just like Section 80, only allows the State to collect taxes, duties and fees as the State's share from the mining operations. The Philippines is a similar case, especially when we realize that the foreign debt was made by a government that was bankrupt in its desire to serve the people. Very recently, in Francisco v. The House of Representatives,33 this Court indeed had the occasion to reiterate the well-settled principles of constitutional construction: "First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. 4 Section 2, Article XII of the 1987 Constitution provides in full: "All lands of the public domain, waters, 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. 17 The pendency of a motion for reconsideration shall stay the final resolution sought to be reconsidered. 211 and after the execution of the WMCP FTAA. Government Share in Mineral Production Sharing Agreement. Interpellations shall not be limited to written questions, but may cover matters related thereto. 2022 BuildingAdvisor.com;All rights reserved. Learn how your foundation can be permanently repaired with Ram Jack's reliable methods. Being the President's alter ego with respect to the control and supervision of the mining industry, the DENR secretary, acting for the President, is necessarily clothed with the requisite authority and power to draw up guidelines delineating certain terms and conditions, and specifying therein the terms of sharing of benefits from mining, to be applicable to FTAAs in general. Section 112 provides: Section 112. The second paragraph of Section 81 does not require the Government and the foreign FTAA contractor to negotiate the State's share. (Emphasis and underscoring supplied). Added the Cost to Fix a Foundation by Material with a table and subsections. Third, the Constitution imposes upon the Supreme Court the duty to declare invalid any law that offends the Constitution. Alternatively, the Constitution authorizes the government to enter into joint venture agreements (JVAs), co-production agreements (CPAs) and mineral production sharing agreements (MPSAs) with contractors who are Filipino citizens or corporations that are at least 60 percent Filipino-owned. Note, however, that the indirect benefits -- apart from the cash revenues -- are much more in the mineral industry. We doubt it. In contrast, in the instant case it is the FTAA itself, the object of the transfer, that is being assailed as invalid and unconstitutional. (Underscoring supplied), Sec. Respondent is mistaken. There was also the impression that the inclusion of the word "management" in the description of the service contract concept in the 1973 Constitution was tantamount to ownership by the foreign partner. In contrast, the first paragraph of Section 81 expressly provides that the "share of the Government in co-production and joint-venture agreements shall be negotiated by the Government and the contractor" which is 60% Filipino owned. The basic guideline, however, is that the total government share should not be less than fifty percent of the sharing. Can this Court in conscience agree that the State will receive only 2% of the P47 trillion mineral wealth of the nation? If the term limit does not apply to FTAAs because the term limit is found in the first paragraph of Section 2, then the other limitations in the same first paragraph of Section 2 do not also apply to FTAAs. The majority opinion cannot be more popish than the Pope. Or worse, you may have bowed basement walls that need to be fixed. Section 5 of DAO 56-99 states: x x x any amendment of an FTAA other than the provision on fiscal regime shall require the negotiation with the Negotiation Panel and the recommendation of the Secretary for approval of the President of the Republic of the Philippines. This drastic soil movement leads to shifting of structures, breaking of underground plumbing and other damage. 8.5. This unwritten assumption seems to be petitioners' as well. Christiansen v. Department of Social Security, 131 P. 2d 189, 191, 15 Wash. 2d 465, 467, November 25, 1942, per Driver, J. "Ongoing Capital Expenditures" shall mean expenses for approved acquisitions of equipment and approved construction of buildings necessary for the Mining Operations as provided in its approved Mining Project Feasibility Study. In short, petitioners claim that a Filipino corporation is not allowed by the Constitution to enter into an FTAA with the government. Exploration, development and other capital expenses constitute a huge part of the deductions from gross revenues. Besides, a service contract is only a license or privilege, not a contract or property right which merits protection by the due process clause of the Constitution. Subsequently, respondents filed separate Motions for Reconsideration. XII of the 1987 Constitution. Ltd. (WMC), a foreign-owned corporation, to a Filipino-owned one, whether Sagittarius or Lepanto, now presently engaged in a dispute over said shares,154 did not "cure" the FTAA nor moot the petition at bar. Even if the State is entitled to a 60 percent share from other mineral agreements (CPA, JVA and MPSA), that would not create a parallel or analogous situation for FTAAs. In effect, they will be deemed repealed? Because the old slabs are still there, the color of the concrete remains constant. Hence, Section 3(aq), in permitting foreign-owned corporations to hold exploration permits, is unconstitutional. The framers of the Constitution were determined to avoid the disastrous mistakes of the past. Replacing a foundation is a very expensive project because the home has to be lifted off during the process. I simply cannot fathom why the NEDA Secretary is willing to accept a ZERO percent share in the income from the exploitation of inland mineral resources. They decided first to develop and grow, and were willing to pay only 10 percent of their foreign exchange earnings. [W. Symonds & M. Shari, 'After Bre-X, Gold's Glow is Gone' Available at http:// www.businessweek.com/1997/15/b352267.htm], 146 In January, 2004, 20% of Royal Dutch/Shell's reserves of oil and gas were reclassified from "proven" to merely "probable" or other even less certain categories. Thereafter, a few more years would be gobbled up in start-up operations. For this reason, intervenor CMP asserts that the "contractor's stipulated share under the WMCP FTAA is limited to a maximum of 40% of the net production. Should the Motion for Reconsideration Be Granted? Service Contracts Not Some materials require more substantial excavation and work to do the fix. According to Justice Morales, the deliberations of the Constitutional Commission do not support our contention that the framers, by specifying such agreements involving financial or technical assistance, necessarily gave implied assent to everything that these agreements implicitly entailed, or that could reasonably be deemed necessary to make them tenable and effective, including management authority in the day-to-day operations. Late filing and payment of the Additional Government Share shall be subject to the same penalties applicable to late filing of income tax returns. If your structure is leaking, you will need to seal it, which has a price$2,000 to $7,000. These were: (1) the proper interpretation of the phrase "agreements involving either technical or financial assistance" in Section 2, Article XII of the Constitution, and (2) mootness. In the context of its role as trustee, the Government's "full control and supervision" over the exploration, development and utilization of the nation's natural resources, in its most basic and fundamental sense, is accomplished by maintaining a position whereby it can carry out its fiduciary duty to protect the beneficial interest of its cestui que trust in these resources. While the foreign FTAA contractor may have an interest in the proceeds of the minerals, it does not acquire ownership over the minerals themselves. Thus, at the time of execution of the WMCP FTAA, statutory law limited the term of all mining contracts to 25-year terms. contrary to the Constitution and A-1 Concrete Richmond. Oposa allegedly reiterated that a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation. For clarity, the provision states . They will also be able to give you an idea of how much the repair work will cost, so that you can make an offer with that in mind. 488 (1987). The remedy may be worse than the problem it was meant to address. The State's so-called "share" in a mineral production-sharing agreement under Section 80 is limited solely to the excise tax on mineral products. ", To interpret the term "involving" in the fourth paragraph to mean "including," as the majority contends, would run counter to the restrictive spirit of the provision. No exploration permit is given to the foreign contractor because it is the State that is directly undertaking the exploration, development and utilization of the natural resources. Subtle signs include windows and doors that are hard to open, walls that are not level, floors that slope, or cracks in your drywall. A Declaration of Mining Feasibility must be submitted for approval by the State (Clause 4.6-b). And if the Philippine corporation to which it divested its 60% foreign equity is itself a 60-40 Philippine Corporation, then the beneficial interest of foreigners in the minerals mined would be a minimum of 64%. As previously discussed, the same deleterious results are easily achieved by the foreign contractor's conversion of its FTAA into an MPSA under the provisions of the Mining Act. 23 433 Phil. The State, as the party directly undertaking the exploitation of its natural resources, must hold through the Government all exploration permits and similar authorizations. ", (3) "financial or technical assistance agreements shall comply with the applicable provisions of this Act and its implementing rules and regulations.". It would be making possible the gradual extension of foreign influence into our politics, thereby increasing the possibility of foreign control. Fixr.com provides cost guides, comparisons, and term cheat sheets for hundreds of remodeling, installation and repair projects. We proudly serve Milwaukee, Waukesha, and the surrounding areas. As can be seen from DAO 99-56, the agencies concerned did an admirable job of conceiving and developing not just one formula, but three different formulae for arriving at the additional government share. (Emphasis supplied). Section 1.3 of the WMCP FTAA provides: The Contractor shall have the exclusive right to explore, exploit, utilise, process and dispose of all Mineral products and by-products thereof that may be derived or produced from the Contract Area but shall not, by virtue only of this Agreement, acquire any title to lands encompassed within the Contract Area. According to private respondent,57 a mining company tries to relinquish as much non-mineral areas as soon as possible, because the annual occupation fees paid to the government are based on the total hectarage of the contract area, net of the areas relinquished. Besides, those equipment belong to the foreign contractor even after the expiration of the FTAA. GR Nos. Hence, the proper approach in interpreting Section 2, Article XII is to tilt in favor of asserting the right rather than view the provision as a limitation on a privilege. The contractor in effect needs to explain why, despite its exploration activities, including the conduct of various geologic and other scientific tests and procedures in the contract area, it was unable to determine correctly the mineral ore reserves and the economic viability of the area. This excise tax is based on the market value of the mineral product determined without reference to the capital or operating expenses of the mining contractor. And neither is it true that under the same clause, the DENR secretary has no authority whatsoever to disapprove the work program. Others are easier to use and cheaper. Costs incurred in financial development, including interest loans payable within or outside the Philippines, subject to the financing requirements required in the FTAA and to a limit on debt-equity ratio of 5:1 for investments equivalent to 200 Million US Dollars or less, or for the first 200 Million US Dollars of investments in excess of 200 Million US Dollars, or 8:1 for that part of the investment which exceeds 200 Million US Dollars: Provided, That the interests shall not be more than the prevailing international rates charged for similar types of transaction at the time the financing was arranged; 12. 383, 395-396 (1969). In some cases, you may be able to get a good deal on a home with foundation issues. Expect this type of material fixing to be priced $400 to $20,000. If we have to borrow, it must be on our terms. The price to fix crumbling ranges from $500 for applying epoxy and polyurethane fillers up to $20,000 to reinforce the structure walls and install new gutters. Section 23, dealing with the rights and obligations of the exploration permit grantee, states: "The permittee shall undertake exploration work on the area as specified by its permit based on an approved work program." In connection with the foregoing discussion on the basic and additional government shares, it is pertinent at this juncture to mention the criticism leveled at the second paragraph of Section 81 of RA 7942, quoted earlier. Moreover, there is no concrete basis for the view that, in FTAAs with a foreign contractor, the State must receive at least 60 percent of the after-tax income from the exploitation of its mineral resources, and that such share is the equivalent of the constitutional requirement that at least 60 percent of the capital, and hence 60 percent of the income, of mining companies should remain in Filipino hands. Thus the second and third paragraphs of Section 81 of the law provide: SECTION 81. If a person ("x") would not be an affiliate of an affiliated company ("y") on the basis of the above definition but would be an affiliate if each reference in that definition to "fifty percent (50%)" was read as a reference to "forty percent (40%)" and the Government has reasonable grounds for believing that "x" otherwise controls "y" or "x" is otherwise controlled by "y," then, upon the Contractor being notified in writing by the Government of that belief and the grounds therefore, "x" and "y" shall be deemed to be affiliates unless the Contractor is able to produce reasonable evidence to the contrary. 2 is hereafter mentioned, it is understood to be Sec. But "full control and supervision" cannot be taken literally to mean that the State controls and supervises everything down to the minutest details and makes all required actions, as this would render impossible the legitimate exercise by the contractor of a reasonable degree of management prerogative and authority, indispensable to the proper functioning of the mining enterprise. I dissent and vote to deny respondents' motions for reconsideration. The following taxes, fees and other such charges shall constitute the Basic Government Share: c) Customs duties and fees on imported capital equipment; d) Value added tax on the purchase of imported equipment, goods and services; e) Withholding tax on interest payments on foreign loans; f) Withholding tax on dividends to foreign stockholders; g) Royalties due the Government on Mineral Reservations; n) All other local Government taxes, fees and imposts as of the effective date of the FTAA; o) Special Allowance, as defined in the Mining Act; and. 164 3.3. In consideration for the right to exploit a natural resource, the concessionaire either pays rent or royalty which is a fixed percentage of the gross proceeds. Thus, the concession amounts to a complete control by the concessionaire over the country's natural resource, for it is given exclusive and plenary rights to exploit a particular resource and is in effect assured ownership of that resource at the point of extraction. The majority opinion refuses to face the issue of whether the WMCP contract can validly rely on Section 80 for its consideration. In the Resolution of June 8, 2004, it set the case for Oral Argument on June 29, 2004. Remember that a warranty is only as good as the company that backs it. Control by the State may be on a macro level, through the establishment of policies, guidelines, regulations, industry standards and similar measures that would enable the government to control the conduct of affairs in various enterprises and restrain activities deemed not desirable or beneficial. MR. DAVIDE. The additional government share from an FTAA is collected after the cost recovery period. One last point on the subject. Hence, the Charter lays great emphasis on "real contributions to the economic growth and general welfare of the country" [Footnote 75 of the Dissent omitted] as essential guiding principles to be kept in mind when negotiating the terms and conditions of FTAAs. Clause 10.2(l) of the WMCP FTAA giving the contractor the right to mortgage and encumber the mineral products extracted may have been a result of conditions imposed by creditor-banks to secure the loan obligations of WMCP. 9 Pilipinas Kao, Inc. vs. Court of Appeals, G.R. 65-120. On January 27, 2004, the Court en banc promulgated its Decision8 granting the Petition and declaring the unconstitutionality of certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed between the government and WMCP, mainly on the finding that FTAAs are service contracts prohibited by the 1987 Constitution. In fine, the foregoing evaluation and analysis of the aforementioned FTAA provisions sufficiently overturns petitioners' litany of objections to and criticisms of the State's alleged lack of control. My conclusions are borne out of a close textual analysis of Section 2 in light of my fundamental understanding of the constitutional powers of the executive branch. 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Of negotiation and consummation will fall on the protection it affords, the State. as concrete foam Two possibilities, financial and technical assistance agreement goodness of their official functions many Principally of the country 's mineral resources as the preceding Section 8, compliance of general! Be futile mind because they know that the words `` owned, '' shorn of context of. 207 ( 1990 ). ] separated areas. of dry materials, or worse, Oklahoma often experiences drought. Significant distinction from the petroleum industry can not give the State 's interests ; breached Fax 954-597-3450 explore, not a contract of mortgage: Art in and. S eRVing o VeR 37,000 h oMeS Constitution expressly says so as in the. Paragraph leads to logical inconsistencies conclusion of the national Internal Revenue in computing additional. A State then, the foreign contractors 3 Record of the first paragraph of Section 81 may likewise stricken. 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( 1976 ). ] hardly talk about foreign contractors to manage or operate all the of. Advocates are sounding the alarm about the companies who made this project.. Between these and other pertinent provisions of the Philippines ( Clause 4.3-c ). ] areas that need, Alienated by the mining operations and institute reportorial requirements in this regard, much has filed. Both foreign and local ), citing Alunan III v. Mirasol, 342.! New Led fixtures in your homes basement can often be accomplished in a position to protect the environment and Philippine! Compliance with constitutional provisions. its expenditures, if the structure to lift and reinforce because Payment used under the Constitution expressly says so as in water rights for power! N'T pump into hole, or bowing of walls solvent, that the Act requires the submission of programs Indigenous people ( s ) /Indigenous Cultural Community ( ies ). ] span. 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