Law and Ecology 2013 Edition Volume 1

DRAFT: PLEASE DO NOT CITE OR DISTRIBUTE.
Draft: 28 OctoberSeptember 2012

Law and Ecology: Environmental Law and Policy in the Philippines
Volume One – Legal Framework for Addressing Environmental Problems
Antonio G.M.La Viña, JSD
Law and Ecology:
Environmental Law and Policy

in the Philippines
Prof. Antonio G.M. La Viña, JSD

DRAFT: PLEASE DO NOT CITE OR DISTRIBUTE. Draft: 28 September 2012
Preface
Astrology, while myth rather than science, was nonetheless based on observations of the world by the
philosophers and alchemists of antiquity. One of their observations was that it is possible for our world to
be broken down into component elements, or the classical elements. In classical Western philosophies
and astrology, these elements are: Fire, Earth, Air, and Water. Chinese thought, on the other hand, held
the elements to be Wood, Fire, Earth, Metal, and Water (wu xing).
People then believed that our material world, its natural phenomena, dynamic interaction, and even the
inherent or fundamental “powers” of anything and anyone are constructed out of the interaction of the
classical elements. The wu xing, for example, held that wood, fire, earth, metal, and water generated
each other in turn, while they could also interact by “overcoming”—water dousing fire, for example. In
Western astrology, each element imparts its qualities to its associated zodiac sign (e.g., Aries is a Fire
sign), and also had constructive and destructive relationships with other elements. The classical Greek
concept of the humors (fluids) of the body also associated each fluid with the elements. To master one’s
knowledge and command of these elements, they believed back then, was to find the key to health,
wealth, harmony, and happiness.
Of course, modern science has overtaken the classical worldviews, both East and West, leaving the old
ways to personal belief (not that it has stopped adherents from believing otherwise). Health, wealth,
harmony, and happiness are more the province of medicine, economics, politics, psychology, and ethics
today than they are of astrology and Feng Shui – and with good reason. Still, there is some wisdom in the
old ways that the modern world should understand, for the sake of our environment. It is not in their
scientific value, which is obviously lacking, but the way the classical Greeks, Chinese, and others have
viewed the world, compared to modern-day humanity. The people of antiquity saw the world in terms of
the balance of its constituent elements, and sought to maintain it. Today, that balance in our world and in
our environment is sorely lacking.
The world celebrates Earth Day and Earth Hour regularly, global rituals to remind us of the importance of
caring for our environment. Beyond the ritual of turning off our lights off for one hour, though, is the need
for a sustainable effort for the world, including the Philippines, to properly manage its natural resources
and its ecology. Environmental degradation threatens our country through loss of forest cover and fertile
agricultural lands, depleted fish stocks, contaminated water supplies and breathing air, increased
vulnerability to natural disasters, and energy insecurity, leading to catastrophic economic and social
dislocations. It is not an exaggeration to say that our people will lose income, livelihood, health, and
sustenance because of a failure of environmental management. Every country, rich or poor, is vulnerable
to calamity (as Japan’s recent sufferings have shown), though poverty and poor governance exacerbate
the situation.
The philosopher Martin Heidegger explained the difference between how man viewed nature then, almost
with a view towards art and philosophy; and how we view nature—or natural resources—now, as
instrumental, exploitable, and often without consideration for sustainability or ecological preservation. We
do not need to fear nature, as though it were a vengeful force, and neither can we continue to view
Mother Earth in purely utilitarian terms. We need to combine the old and new ways of looking at the
environment, learning to understand and respect nature. We need to, as the astrologer might suggest,
understand the balance of the elements of nature, and master this balance, as the key to the health,
wealth, harmony, and happiness of families, communities, and nations alike.
This is not just a philosophical exercise. At the family level, we need to acquire habits of ecological
respect when it comes to things like waste management and recycling, or water and energy conservation.
We must find ways to harness communities as environmental managers in their own right, protecting
vulnerable natural resources like our dwindling forests. At the national level, we must engage in
innovation and reform to provide a bureaucratic infrastructure that can successfully manage all aspects of
environmental and natural resource management, protection, and utilization.
i
The ancient world has passed to superstition and myth, yet some of their mindsets remain relevant even
up to today. Celebrating Earth Day is not just about a yearly ritual or environmentally-sensitive habits, but
about understanding what it means to live with our environment, and not just off of it. It should mean
recovering this appreciation for the earth, and all therein, that the philosophers of old had, even while we
use the environment to better our lives. I hope, through this set of books, we come to know what it means
to be a better manager of the ecological balance, to understand what it means to master the balance of
Creation’s elements.
Rainier Maria Rilke, the great German poet, says it very well: "Everything is far and long gone by. I think
that the star glittering above me has been dead for a million years. I would like to step out of my heart and
go walking beneath the enormous sky. I would like to pray. And surely of all the stars that perished long
ago, one still exists. I think that I know which one it is." It is my hope, that because we cared and took
action, centuries from now, our descendants too would come out and walk beneath the sky and say: our
planet still exists.
As you will see in the introductory essay in Chapter 1, I write about the elements of the world. I find it is
only fitting to begin with Earth, with land and soil from which so much of life springs forth. The Western
zodiac recognizes people influenced by the Earth signs as practical and dependable, while the Chinese
also add that, because of their grounded discipline, these souls are masters of their future. We view the
Earth as our foundation, as our sustenance; in many cultures, "Mother Earth" is a common phrase. We
build our homes on solid ground, and plant our food on fertile soil. From the Earth we harvest the lumber
and mine the metals that build our civilization; from the Earth comes life, which sustains humanity.
Imperiling that future is the consequence of poor land use and development. Good ecological
management must be a critical component of good use of land. Social justice too – the fair allocation of
land and its resources – is essential. We need not look further than Ondoy in 2009 to see the
consequences of poor land use and development. Majority of the typhoon’s victims lived along the Pasig
riverbanks, or built their homes in low-lying areas. Some of these homes were built by property
developers despite (or even willfully ignoring) warnings about flood risk. Other homes were built by
informal settlers who had no place to go, and settled instead on lands claimed by no one—precisely
because those lands were at risk of flood or other natural calamities. The result was therefore a tragedy,
which we must now make sure should not be repeated.
Agriculture faces a different threat: its sustainability as an economic and household enterprise is in
question. Climate change, ecological degradation, and bad macroeconomic policies have made farming
economically challenging. As urban and rural lands go fallow and become unproductive, economic and
social pressures invariably begin encroaching on ecology. Natural forests are cleared for pasture or
subdivisions; industries expand towards riverbanks, lakeshores, wetlands, and coastlines, thereby
threatening natural habitats of flora and fauna important to Philippine biodiversity and ecology. What is
sad is that, all over the world, loss of diversity of life is threatening the very diversity of humanity, as the
latter depends on the former.
After decades of environmental advocacy, I have come to conclude that the most important policy that
government can adopt and implement to ensure a good and sound environment is a land use policy that
is sustainable, environmentally friendly, and socially just. Good land use and development benefits both
rural and urban development, including food security, by protecting fertile lands and ecologically-sensitive
places while identifying those areas appropriate for housing, commercial, and industrial zones. The real
solution is good land use policy implemented by the relevant units of government, the private sector, and
communities.
This cooperative effort should be driven down to the ground as much as possible, devolving from national
to local government units (LGUs). LGUs must take the lead in an integrated land use and environmental
management plan, because it is their constituents—farmers, workers, and residents alike—who are
directly affected by socio-economic and environmental policy. Land use planning, for example, can
become a town hall exercise as much as an expert’s exercise, soliciting input from affected residents
ii
(especially informal settlers in the case of resettlement), land use experts, and ecologists and other
environmentalists, in establishing zoning and housing development plans which are socially equitable and
environmentally sensitive.
There is a Chinese proverb that goes, “The miracle is not to fly in the air, or to walk on the water, but to
walk on the earth.” With respect to the Earth as our Mother, we owe her as her children to mature as her
stewards, and walk by her side, instead of being in her cradle forever.
Philippine Environmental Law
Philippine environmental law is rapidly changing, with new national policies, laws, regulations and local
ordinances added to the legal landscape every year. There are clear trends in the evolution of the legal
framework, from pre-1970s laws that encouraged resource exploitation to the shift in focus to
conservation beginning in the 1980s. There was a significant surge in environmental legislation and
jurisprudence after the regime change in 1986 that emphasized stakeholders’ participation and the basic
right to a clean environment. It is inevitable that there are gaps, overlaps and conflicts among these
instruments as they evolved over time and overlapped in subject matter. Aside from the legal instruments
that deal directly with natural resources and environment, there are numerous sectoral laws and policies
on agriculture, tourism, economic incentives and taxes, infrastructure development, transportation,
international trade, urban and land-use planning, housing development, etc., that have significant impacts
on the protection of the environment and use of natural resources.
For the law practitioner, policymaker, student, stakeholder or general public, keeping up with the changes
in the legal framework is a challenge, given the number of sources, frequency of changes and
accessibility of the materials. It is an even more difficult challenge to understand and apply the various
instruments separately or together to address a particular environmental problem or case.
In 1991, this author published Law and Ecology: a compilation of Philippine laws and international
documents pertaining to ecology,1 to help law practitioners and students navigate through this relatively
new field. There have been several textbooks published since then, combining learned commentaries
with compilations of laws and regulations. In 2003, Prof. Atty. Antonio A. Oposa, Jr. published A Legal
Arsenal for the Philippine Environment, which has served as the ‘weapon’ of choice of advocates in the
battle to protect the environment. The Philippine Judicial Academy has also supported a number of
compilations of laws and cases together with partners, including the Haribon Foundation.
Approach
There are two major challenges to writing an environmental law textbook in the Philippines: First, to keep
it up to date with the almost daily changes in new national and local legal instruments; and second, to
present the materials in an interesting and realistic manner that captures the interplay of the laws as they
apply to particular cases. Because of the first challenge, no textbook can be complete in recording every
legal instrument. The second challenge also necessarily limits the focus of discussions to particular
problems, which call for the application of select provisions of the relevant laws and cases.
The approach to this textbook in Volume One, from Chapter Four to Eleven, is to present independent
modules, beginning with an Environmental Situationer as environmental issues occur in the real world
(based on one or a composite of actual cases or field experiences). The reader is expected to feel
immediately engaged by the environmental challenges presented, and the interaction of interests of the
parties involved. This is followed a section on Legal analysis, which is a quick survey of applicable
provisions of laws and relevant jurisprudence. The reader is invited to analyze, interpret and apply these
legal framework together to the problem presented. It is the interplay of these laws and decisions that is
critical to learning, more than a detailed discussion of each law separately in its entirety.
1 Law and Ecology: A Compilation of Philippine Laws and International Documents Pertaining to Ecology, in Legal Rights and
Natural Resources Center (Antonio G.M. La Viña, ed., 1991).
iii
A discussion of the legal framework is not enough. In the end, the reader needs to ask: did the law
address the environmental problem and/or give justice to the parties? The Policy analysis part will make
the reader reflect on the policy-making aspect. Thinking like a policy-maker, s/he has to understand and
consider the underlying physical and social science that help enlighten how the actors make decisions
that affect the physical environment, as well as how policies, laws and regulations can be crafted to
influence how these actors should work in order to achieve desired environmental and social objectives.
Finally, there is a Further discussion section in every chapter that invites the reader to look at related
issues and helpful concepts.
Volume Two is composed of two parts: application of international law, and application of the new Rules
of Procedure for Environmental Cases. In the past quarter century, Philippine environmental law and
policy has closely followed developments in international law dealing with environmental issues. Many of
the country’s environmental laws were passed in direct response to or in compliance with the country’s
commitments under international agreements or cooperation. Even the Rules of Procedure on
Environmental Cases promulgated by the Supreme Court in 2010 had partly been a result of the Court’s
exposure to developments in environmental justice in other countries and under international law.
This textbook is designed as a law school textbook to guide classroom discussion, but it can also be
useful for law practitioners, policymakers and the general public. The two-volume approach gives the
option to teach the second volume as separate special topics on international environmental law and on
the new Rules of Procedure for Environmental Cases, or as an advanced environmental law course.
Volume One can be expanded in future updates with additional ‘modules’ tackling new environmental
problems or issues.
iv
Volume One:
Legal Framework for Addressing Environmental Problems
v
Table of Contents
Preface i
Chapter One – Overview of the Natural, Socio-economic and Political Landscape 1
1.1 Land, sea, and the forces of nature
1.2 Socio-economic context
1.3 Legal framework related to environment and Natural Resources
1.3.1 Constitution
1.3.2 National Legislation
1.3.3 International Agreements
1.4 Further Discussion
Chapter Two – Institutional Framework for Environment and Natural Resources Management 56
2.1 Institutional framework for managing the environment and natural resources
2.1.1 Executive Branch
2.1.2 Congress and Local Legislatures
2.1.3 Judiciary
2.1.4 Quasi-judicial Agencies
2.1.5 Non-government Institutions
Chapter Three – Environmental Impact Assessment and Development Planning 71
3.1 Rationale
3.2 Legal Framework
3.2.1 Local Development Planning
3.3 Policy Analysis
3.3.1 Philippine Development Plan (2011-2016)
Chapter Four – Forests and Forestland Management 103
4.1 Environmental situationer
4.2 Legal analysis (application of existing laws)
4.2.1 Land classification
4.2.2 Land use in forest land
4.3 Policy analysis (effectiveness of laws in addressing environmental problem)
4.3.1 Evolution of Forest Policies
4.3.2 Logging moratorium
4.4 Further discussions
4.4.1 Illegal logging or subsistence livelihood
Chapter Five – Wildlife and Biodiversity Conservation 140
5.2.1 What is wildlife?
5.3 Policy Analysis
5.4 Further discussion
5.4.1 Biosafety and Alien Invasive Species
5.4.2 Bioprospecting
Chapter Six – Protected Areas and Watershed Management 156
6.3.1 Governance
Chapter Seven – Fisheries and Marine Resources 175
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Chapter Eight – Mineral Resources Extraction 193

8.3.1 Contribution of the mining industry to the economy
8.3.2 Environmental and social costs
8.4.1 Is responsible mining possible in the Philippines?
8.4.2 What operational conditions must be met to conduct responsible mining in
the Philippines?
8.4.3 What actions must the government take towards management of responsible
mining?
Chapter Nine – Waste Management and Sanitation 217
Chapter Ten – Industrial Pollution 260
Chapter Eleven – Climate Change and Disaster Risk Reduction and Management 284
Annex A – Survey of Writs of Kalikasan 295
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Chapter One
Overview of the Natural, Socio-economic and Political Landscape
1.1 Land, sea, and the forces of nature
The Philippines is an archipelago of more than 7,100 islands, with one of the longest coastlines (36,289
km) of any country. The total land area is almost 300,000 square kilometers, but this pales in comparison
to the size of the marine territory of about 2.2 million square kilometers, which includes the exclusive
economic zone.2 The islands are mostly mountainous, with the larger islands having narrow to extensive
plains highly suited for agriculture.
The Philippines is one of 17 countries with the most diverse biological resources. 3 The Philippine
Endemic Species Conservation Project4 has found several new species and new distribution records of
known species in the past five years. The international community has taken notice: In 2009, Birdlife
International chose as its flagship species the Cebu Flowerpecker (Dicaeum quadricolor), long thought to
be extinct and rediscovered in 1992. The International Institute for Species Exploration 5 chose newly
discovered Philippine species among its top 10 new discoveries, namely the Attenborough’s Pitcher
(Nepenthes attenboroughii) in 2010 and the Sierra Madre Spotted Monitor (Varanus bitatawa) in 2011.
The California Academy of Sciences has undertaken its largest expedition in the Philippines in the
summer of 2011. The Philippine Biodiversity Expedition was the first expedition to make a comprehensive
survey of both terrestrial and marine diversity in the country. The expedition, composed of American and
Filipino scientists, reported more than a hundred new species after only three weeks of surveys 6.
There are some 7.67 million hectares (76,700 sq. km.) of forests left 7 from a high of 20 million hectares in
the 1900s. Up until the 1970s, the country was a major exporter of logs. Beginning in the late 1970s,
commercial harvesting of natural timber became more and more regulated, until the early 1990s when
timber license agreements were either cancelled or allowed to expire, with no new licenses granted.
However, illegal logging in both small and large scale continues to this day. In 2009 alone, over a million
board feet of lumber (about 100 ten-wheeler trucks) was confiscated by combined units of the Armed
Forces and the Isabela Provincial Government after raiding three lumber yards and log ponds in the
Northern Sierra Madre Natural Park (NSMNP), the last remaining major natural forest area in the country.
The Philippines stands among the richest countries in terms of mineral wealth. According to the Chamber
of Mines8, the country’s mineral reserves (gold, copper, nickel, iron, chromium and aluminum) are
estimated to be worth PhP 47 trillion (US$840 billion). Significant oil and gas reserves have also been
discovered in recent years.
Perhaps the most valuable resources are in the seas. The Philippines is internationally recognized as the
center of marine biodiversity because of its unique habitats that host a rich variety of species. The country
is located at the apex of the Coral Triangle, which is often referred to as the “Amazon of the seas.”
Despite escalating problems of overfishing, fisheries productivity still increased over the years, because
of the expansion of seaweed farming and aquaculture. The natural beauty of corals and reef organisms
22 Mary Ann Palma, The Philippines as an Archipelagic and Maritime Nation: Interests, Challenges and Perspectives (Rajartanam
School of International Studies, Working Paper No. 182, 2009).
3 Ian A. Bowles, R. E. Rice, R. A. Mittermeier, and G. A. B. da Fonseca, Logging and Tropical Forest Conservation (1998).
4 Panay Eco-social Conservation Project, in Philippine Initiative for Conservation of the Environment and the people (2010).
http://www.panaycon.org/Pages/New_species.html (last visited July 24, 2012)
5 The International Institute for Species Exploration (2010, 2011).
6 California Academy of Sciences (2011), http://www.calacademy.org/science/hearst/
7 Forest Management Bureau (2010).
8 Chamber of Mines (2011), http://business.inquirer.net/26151/philippine-mining-wealth-seen-at-840b
viii
attract thousands of tourists, as well as unscrupulous collectors. Despite broad regulations that ban the
collection of marine wildlife, illegal harvesting is rampant, driven largely by the demands of international
trade. In May 2011, the Department of Agriculture-Bureau of Fisheries and Aquatic Resources (DA-
BFAR) reported the seizure of 161 dead sea turtles and over 21,000 seashells and black corals in
warehouses in Zamboanga City. Experts estimate that about 7,000 hectares of a “reef complex” were
destroyed based on the harvest. 9 Based on news reports, more than a thousand foreign poachers have
been arrested for illegally catching marine turtles and other species off Palawan from 1995 to 2008. At
least one report of poaching by foreign fishermen was recorded in 2010, and two incidents in the first
quarter of 2011.10
The rich bounty from nature, however, is also regularly dampened by natural calamities. The Philippines
ranks 3rd among the most vulnerable countries to climate change, based on a study by the United Nations
University Institute for Environment and Human Security 11. About 20 typhoons affect the country each
year, with half making landfall that causes tremendous damage to life, livelihoods and the natural
ecosystem. The country is also along the Pacific ring of fire, which means that volcanic eruptions and
earthquakes are normal occurrences, sometimes with devastating consequences. Climate change and
the effects of weather cycles, such as the El Nino and La Nina phenomena, have brought billions of
pesos in damages from floods, droughts, and increase in sea surface temperature. From 1990 to 2009,
value of damages due to weather and climate-related disasters totaled $4,813 million or an average of
$240.7 million per year. In the 2000s, total damages were $2,121, million, which were lower than the total
damages of $2,602 million in the 1990s12.
1.2 Socio-economic Context
In 2010, the country’s population stood at 94 million; it is expected to reach 103 million by 2015 and 141.6
million by 2040.13 About half of the population lives in urban areas (49%) and the rate of urbanization is
estimated at around 2.3% until 2015. In a recent survey by Time magazine14, Metro Manila is ranked
highest in population density at (46,000 persons/sq mile = x persons/sq km.), nearly twice that of New
York City. Metro Manila ranked 10th in the most populous cities in the world (population 16.3 million) and
9th among the fastest growing cities (additional 3.29 million in 2025).
In 2007, Goldman Sachs Global Economic Group ranked the Philippines among the Next-11 emerging
global economic powerhouse after the BRIC countries (Brazil, Russia, India and China). Despite the
recent and continuing global economic slowdown, and the frequent domestic political troubles, the
prospect for economic growth for the Philippines is positive. In 2010, per capita gross domestic product
was around $3,500, broken down by sector as follows: agriculture and fisheries (15%), forestry (0.06%),
industry (30%) and services (55%). The Philippine economy has traditionally been based on agriculture
and natural resources, but in the past decade this has shifted to light industry and services, as
exemplified by the business process outsourcing (BPO) sector where the country ranks 3rd of the total
BPO market, with 15% share. In the ENR sector, there has been a marked shift from utilization of natural
resources to providing the foundation for services (such as tourism) and industry (by providing the
needed water, power, etc.).
9 Jocelyn Uy, More Black Corals Seized, in Philippine Daily Inquirer (2011), http://newsinfo.inquirer.net/9209/more-black-corals-
seized.
10 Adraneda(2007).
Mar D. Meruenas, Stronger Law Enforcement Pushed for Palawan, Tawi-Tawi Seas, GMA News TV (June 8, 2010),
http://www.ecologyasia.com/news-archives/2010/jun-10/gma_100608_1.htm (last visited June 2012).
GMA New TV, Philippine Authorities Nab 6 Chinese Poachers Off Palawan (March 25, 2011),
http://www.gmanews.tv/story/216153/regions/phl-authorities-nab-6-chinese-poachers-off-palawan (last visited June 2012).
Redempto Anda, 34 Endangered Turtles Rescued in South Palawan, Inquirer.net (February 6, 2011),
http://services.inquirer.net/print/print.php?article_id=20110206-318835 (last visited June 2012).
11United Nations University Institute for Environment and Human Security, World Risk Report (2011)
http://www.ehs.unu.edu/article/read/worldriskreport-201.
12 Danilo Israel, Weather and climate-related disasters:the cost of inaction (Philippine Institute for Development Studies, Policy
Note No. 2010-12, 2010).
13 National Statistical Coordination Board, http://www.nscb.gov.ph/secstat/d_popnProj.asp (last visited June 2012).
14 Time (2011).
ix
However, despite the positive outlook, the unemployment rate is estimated at 7.3%, and more than a
quarter of the population (26.5%) lives in poverty. 15 The disparity in income between the rich and poor is
significant, as measured by the Gini coefficient (45.8%, as of 2006 estimate).
Former NEDA Director-General Cielito Habito 16 characterized the country’s economic growth in the past
two decades as “slow and erratic,” and “narrow, shallow and hollow,” where capital formation is
concentrated in a few industries and regions, export growth is based mostly (>70%) in garments and
electronics, and output growth does not generate jobs or reduce poverty. He counseled that the country is
faced with the twin challenge of accelerating and maintaining economic growth, and making sure that
growth involves and benefits a broad spectrum of sectors throughout the country, because past economic
growth has marginally benefited the poor.
Economic growth and poverty are two cross-cutting themes that will be referred to in the succeeding
chapters because they are central to the issues of natural resources utilization and equitable access to
natural resources. Development planning is touched upon again in Chapter Three.
1.3 Legal framework related to environment and natural resources
The current Constitution, adopted in 1987, is the highest law in the country. There are three branches of
government: a bicameral Congress enacts national laws; the President, as head of the Executive Branch,
implements these laws directly or through implementing regulations that must be consistent with
legislation; the Supreme Court heads the judiciary, which is the final arbiter of legal conflicts and
interpreter of the Constitution. Chapter Two discusses the institutional framework in greater detail.
In the hierarchy of laws, all national laws and executive implementing regulations must be consistent with
the Constitution, and implementing regulations must be consistent with the laws being implemented, and
implementation must be within the delegated powers given to the President and government agencies by
the Constitution and the specific laws.
1.3.1 Constitution
The Constitution defines the national territory, which “comprises the Philippine archipelago, with all the
islands and waters embraced therein… including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around between, the connecting the islands of the
archipelago, regardless of their breadth and dimensions, from part of the internal waters of the
Philippines.”17 In 2009, Republic Act No. 9522 established the archipelagic baselines of the country,
declaring a ‘regime of islands’ in the Kalayaan Group of Islands and Scarborough Shoal 18 in the South
China Sea, which the Philippines refers to as West Philippine Sea. The Philippines is a party to the UN
Convention on the Law of the Sea (UNCLOS) and has generally moved to interpreting the Constitution to
be consistent with UNCLOS.19
The national territory and its relation to UNCLOS is further discussed in Volume Two. The relevant
provisions in the Constitution are presented in Table 1, noting important relevant laws and cases that are
elaborated further in the rest of the book as they relate to specific environmental issues.
15 National Statistical Coordination Board (2010).

16 Cielito Habito, Can we grow twice as fast?, in Inquirer.net (2010), http://opinion.inquirer.net/22135/can-we-grow-twice-as-fast.
17 Const. (1987), art. 1 (Phil.).
18 Rep. Act 9522, § 2 (Phil.).
19 Rodolfo C. Severino, Where in the World is the Philippines: Debating its national territory, Institute of Southeast Asian Studies,
Singapore (2011).
Mary Ann Palma, The Philippines as an Archipelagic and Maritime Nation: Interests, Challenges and Perspectives (Rajartanam
School of International Studies, Working Paper No. 182, 2009).
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Table 1: Constitutional provisions relevant to ENR management
Constitution Relevant laws and cases
Article I. The national territory comprises the Philippine archipelago, Law:

National with all the islands and waters embraced therein, and all Baselines of Territorial Sea
Territory other territories over which the Philippines has sovereignty Act, R.A. No. 9522 (2009)
or jurisdiction, consisting of its terrestrial, fluvial and aerial
domains, including its territorial sea, the seabed, the Case:
subsoil, the insular shelves, and other submarine areas. Magallona, et al. vs.
The waters around, between, and connecting the islands of Executive Secretary Ermita,et
the archipelago, regardless of their breadth and dimensions, al., G.R. No. 187167, July 16,
form part of the internal waters of the Philippines. 2011
Article II. Section 15. The State shall protect and promote the right to Laws: (See Table 2)
Declaration health of the people and instill health consciousness among
of State them. Case:
Principles Hilarion M. Henares, Jr. vs.
and Policies LTFRB and DOTC, G.R. No.
158290, October 23, 2006.
Section 16. The State shall protect and advance the right of Laws: (See Table 2)
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature Case:
Minors Oposa, et al. vs.
DENR Secretary Factoran, et
al., G.R. No. 101083, July 30,
1993, discussed in this
section.
Felipe Ysmael, Jr vs.

Secretary of Environment and
Natural Resources, G.R. No.
79538 October 18, 1990.
Section 22. The State recognizes and promotes the rights Laws:
of indigenous cultural communities within the framework of Indigenous People’s Rights
national unity and development. Act, R.A. No. 8371 (1997)
Cases:
Cariño vs. Insular
Government, 212 US 449,
February 23, 1909
Cruz vs. NCIP, G.R. No.

135385, December 6, 2000
Province of North Cotabato

vs. Government of the
Republic of the Philippines,
GR Nos. 183591, 183752,
183893, 183951 & 183962,
October 14, 2008.
xi
Section 25. The State shall ensure the autonomy of local Law:
governments. Local Government Code,
R.A. No. 7160 (1991)
Case:
SJS vs. Atienza, G.R. No.
156052, March 7, 2007
Article III. Section 7. The right of the people to information on matters Cases:
Bill of of public concern shall be recognized. Access to official
Rights records, and to documents and papers pertaining to official Province of North Cotabato
acts, transactions, or decisions, as well as to government vs. Government of the
research data used as basis for policy development, shall Republic of the Philippines,
be afforded the citizen, subject to such limitations as may be GR Nos. 183591, 183752,
provided by law. 183893, 183951 & 183962,
October 14, 2008.
Chavez vs. Public Estates

Authority and Amari Coastal
Bay Development Corp., GR
No. 133250, July 9, 2002.
Valmonte vs. Belmonte, G.R.

No. 74930, February 13,
1989
Legaspi vs. CSC, G.R. No. L-

72119, May 29, 1987
Article X. Section 4. The President of the Philippines shall exercise Law:

Local general supervision over local governments. Provinces with Local Government Code,
Government respect to component cities and municipalities, and cities R.A. No. 7160 (1991)
and municipalities with respect to component barangays
shall ensure that the acts of their component units are within Case:
the scope of their prescribed powers and functions. Tano vs. Socrates, G.R. No.
110249, August 21, 1997
Section 5. Each local government unit shall have the power Law:
to create its own sources of revenues and to levy taxes, Local Government Code,
fees and charges subject to such guidelines and limitations R.A. No. 7160 (1991), Sec.
as the Congress may provide, consistent with the basic 18
policy of local autonomy. Such taxes, fees, and charges
shall accrue exclusively to the local governments.
Section 7. Local governments shall be entitled to an Laws:

equitable share in the proceeds of the utilization and Electric Power Industry
development of the national wealth within their respective Reform Act of 2001, R.A.
areas, in the manner provided by law, including sharing the 9136 (2001), Section 66
same with the inhabitants by way of direct benefits.
Local Government of 1991,
R.A. 7160 (1991), Sections
289 to 294
xii
Department of Energy Act of

1992, R.A. 7638 (1992),
Section 5(i)
Mining Act of 1995, R.A. 7942

(1995), Section 82
Section 15. There shall be created autonomous regions in Laws:

Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas Revised Organic Act of
sharing common and distinctive historical and cultural ARMM, R.A. 9054(2001).
heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and Mindanao Development
the national sovereignty as well as territorial integrity of the Authority (MinDA) Act of
Republic of the Philippines. 2010, RA No. 9996, February
17, 2010
James L. Chiongbian et al v
Oscar M. Orbos et al. G.R.
No. 96754 June 22, 1995
Sultan Mohamad Ali B.

Dimaporo v COMELEC, G.R.
No. 93201-04 June 26, 1990
Article XII. Section 1. The goals of the national economy are a more Law:
National equitable distribution of opportunities, income, and wealth; a Reorganizing the National
Economy sustained increase in the amount of goods and services Economic and Development
and produced by the nation for the benefit of the people; and an Authority, EO 230, approved
Patrimony expanding productivity as the key to raising the quality of life July 22, 1997.
for all, especially the underprivileged.
xxx Case:
Manila Prince Hotel v GSIS,
G.R. No. 122156 February 3,
1997
xiii
Section 2. All lands of the public domain, waters, minerals, coal, Cases:
petroleum, and other mineral oils, all forces of potential Aranda vs. Republic. GR No.
energy, fisheries, forests or timber, wildlife, flora and fauna, 172331, August 24, 2011
and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural Miners Association of the
resources shall not be alienated. The exploration, Philippines, Inc. vs. Factoran,
development, and utilization of natural resources shall be Jr., G.R. No. 98332, January
under the full control and supervision of the State. The State 16, 1995
may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing LA BUGAL-B'LAAN TRIBAL
agreements with Filipino citizens, or corporations or ASSOCIATION, INC., vs.
associations at least sixty per centum of whose capital is Ramos, G.R. No. 127882.
owned by such citizens. Such agreements may be for a December 1, 2004
period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and Heherson Alvarez vs. PICOP
conditions as may be provided by law. In cases of water Resources, G.R. Nos.
rights for irrigation, water supply fisheries, or industrial uses 162243, 164516 &
other than the development of water power, beneficial use 171875, December 3, 2009
may be the measure and limit of the grant.
Republic v. Quasha, G.R. No.
L-30299, Aug. 17, 1972
Republic v. Pagadian City

Timber, G.R. No. 159308,
September 16, 2008
The State shall protect the nation's marine wealth in its Law:
archipelagic waters, territorial sea, and exclusive economic The Philippine Fisheries
zone, and reserve its use and enjoyment exclusively to Code, R. A. No. 8550 (1998)
Filipino citizens. particularly Chapter II Sec. 5
10, & 11 and Chapter VI:
Prohibitions and Penalties,
Sec. 86-107
The Congress may, by law, allow small-scale utilization of Laws:

natural resources by Filipino citizens, as well as cooperative The Philippine Fisheries
fish farming, with priority to subsistence fishermen and fish- Code, R.A. No. 8550 (1998),
workers in rivers, lakes, bays, and lagoons. Sec. 17 &18
Agriculture and Fisheries

Modernization Act of 1997,
R.A. No. 8435, Sec. 13 & 14
The President may enter into agreements with foreign- Law:
owned corporations involving either technical or financial Mining Act of 1995, R.A. 7942
assistance for large-scale exploration, development, and (1995), Section 18.
utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by Cases:
law, based on real contributions to the economic growth and Miners Association of the
general welfare of the country. In such agreements, the Philippines, Inc. vs. Factoran,
State shall promote the development and use of local G.R. No. 98332 January 16,
scientific and technical resources. 1995
Apex Mining Co. Inc. v

The President shall notify the Congress of every contract
Southeast Mindanao Mining
xiv
entered into in accordance with this provision, within thirty Corp. G.R. No. 152613 & No.
days from its execution. 152628, June 23, 2006
Didipio Earth-Savers’
Multipurpose Association et
al. v Secretary of DENR, G.R.
No. 157882, March 30, 2006
LA BUGAL-B'LAAN TRIBAL
ASSOCIATION, INC., vs.
Ramos, G.R. No. 127882,
December 1, 2004
Section 3. Lands of the public domain are classified into Law:

agricultural, forest or timber, mineral lands and national Indigenous People’s Rights
parks. Agricultural lands of the public domain may be further Act, R.A. No. 8371 (1997)
classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be Cases:
limited to agricultural lands. Private corporations or Cruz v NCIP, G.R. No.
associations may not hold such alienable lands of the public 135385, December 6, 2000
domain except by lease, for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, Republic of the Philippines v
Naguiat, G.R. No. 134209,
and not to exceed one thousand hectares in area. Citizens
January 24, 2006
of the Philippines may lease not more than five hundred
hectares, or acquire not more than twelve hectares thereof
by purchase, homestead, or grant.
Taking into account the requirements of conservation,

ecology, and development, and subject to the requirements
of agrarian reform, the Congress shall determine, by law,
the size of lands of the public domain which may be
acquired, developed, held, or leased and the conditions
therefor.
Section 4. The Congress shall, as soon as possible, Law:

determine by law the specific limits of forest lands and The National Integrated
national parks, marking clearly their boundaries on the Protected Areas System Act,
ground. Thereafter, such forest lands and national parks R.A. No. 7586 (1992)
shall be conserved and may not be increased nor
diminished, except by law. The Congress shall provide, for DENR Administrative Order
such period as it may determine, measures to prohibit No. 2008-24 - Guidelines for
logging in endangered forests and watershed areas. the Assessment and
Delineation of Boundaries
between Forestlands,
National Parks and
Agricultural Lands
DENR Administrative Order

No. 1995-15- Revised
General Guidelines in the
Implementation of the Sub-
classification of Forestlands
and Other Inalienable Lands
of the Public Domain
xv
Cases:
PICOP Resources vs. Base
Metals Mineral Resources
Corporation G.R. No. 163509,
December 6, 2006
Apex Mining vs. Southeast

Mindanao Gold Mining G.R.
No. 152613, 152628, 152619-
152620, 152870-152871,
June 23, 2006
Province of Rizal v Exec Sec

G.R. No. 129546, December
13, 2005
Section 5. The State, subject to the provisions of this Law:

Constitution and national development policies and The Indigenous Peoples
programs, shall protect the rights of indigenous cultural Rights Act of 1997, RA No.
communities to their ancestral lands to ensure their 8371, Sections 2,-5, 7-8, 12
economic, social, and cultural well-being.
Mining Act of 1995, R.A. 7942
(1995), Section 4 and 16
Cases:
Nicasio I. Alcantara vs.
Commission on the
Settlement of Land Problems,
et al., G.R. No. 145838, July
20, 2001.
Patricio Cutaran et al. vs.

DENR, G.R. No. 134958,
January 31, 2001.
Mariano Tanenglean vs.

Silvestre Lorenzo et al., G.R.
No. 173415, March 28, 2008.
Section 7. Save in cases of hereditary succession, no Cases:

private lands shall be transferred or conveyed except to Palacios vs. Vda. De
individuals, corporations, or associations qualified to acquire Ramirez, G.R. No. L-27952,
or hold lands of the public domain. February 15, 1982
Cheesman vs. IAC, G.R. No.

74833, January 21, 1991
xvi
Article XIII. Section 6. The State shall apply the principles of agrarian Law:
Social reform or stewardship, whenever applicable in accordance Comprehensive Agrarian
Justice and with law, in the disposition or utilization of other natural Reform Law of 1988, “CARP”,
Human resources, including lands of the public domain under lease R.A. No. 6657, as amended
Rights or concession suitable to agriculture, subject to prior rights, by R.A. 9700
homestead rights of small settlers, and the rights of Sec. 2, 4, 9, 10 & 22
indigenous communities to their ancestral lands.
xxx Case:
Gavino Corpuz vs. Sps.
Grospe, G.R. No. 135297,
June 8, 2000.
Section 7. The State shall protect the rights of subsistence Law:

fishermen, especially of local communities, to the The Philippine Fisheries
preferential use of the communal marine and fishing Code, R.A. No. 8550 (1998),
resources, both inland and offshore. It shall provide support Sec. 17 & 18
to such fishermen through appropriate technology and
research, adequate financial, production, and marketing Agriculture and Fisheries
assistance, and other services. The State shall also protect, Modernization Act of 1997,
develop, and conserve such resources. The protection shall R.A. No. 8435, Sec. 13 & 14
extend to offshore fishing grounds of subsistence fishermen
Comprehensive Agrarian
against foreign intrusion. Fishworkers shall receive a just
Reform Law of 1988, “CARP”,
share from their labor in the utilization of marine and fishing
R.A. No. 6657, as amended
resources.
by R.A. 9700, Sec. 2
Case:
People vs. Maximo Maceren
et al., G.R. No. L-32166
October 18, 1977.
Section 16. The right of the people and their organizations Laws:
to effective and reasonable participation at all levels of Local Government Code,
social, political, and economic decision-making shall not be R.A. No. 7160 (1991)
abridged. The State shall, by law, facilitate the
establishment of adequate consultation mechanisms. Clean Water Act, R.A. No.
9275, (2004)
Clean Air Act, R.A. No. 8749

(1999)
Ecological Solid Waste

Management Act, R.A. 9003
(2000)
The Constitution guarantees the right of the people to health and a “balanced and healthful ecology
consistent with the rhythm and harmony of nature.” In the landmark case of Minors Oposa, et al. vs
Factoran et al., the Supreme Court declared that this right is paramount and immediately enforceable,
such that government agencies can be compelled to perform their mandated functions to protect the
environment.
Minors Oposa, et al. vs Factoran, et al.

GR No. 101083, July 30, 1993
xvii
Davide, Jr., J. ponente
In a broader sense, this petition bears upon the right of Filipinos to a balanced and
healthful ecology which the petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational justice." Specifically, it touches
on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life-support systems and continued rape of Mother
Earth."
The controversy has its genesis in Civil Case No. 90-777 which was filed before Branch
66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as an additional plaintiff is
the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The original defendant was
the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of
Environment and Natural Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion
by the petitioners. The complaint was instituted as a taxpayers' class suit and alleges
that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical rainforests." The same was filed for themselves and others who
are equally concerned about the preservation of said resource but are "so numerous that
it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn." Consequently, it is
prayed for that judgment be rendered: ". . . ordering defendant, his agents,
representatives and other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements." and granting the plaintiffs ". . .
such other reliefs just and equitable under the premises."
xxx
The complaint focuses on one specific fundamental legal right — the right to a balanced
and healthful ecology which, for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:
"SEC. 16. 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."
This right unites with the right to health, which is provided for in the preceding section of
the same article:
"SEC. 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them."
While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners —
the advancement of which may even be said to predate all governments and
xviii
constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are
now explicitly mentioned in the fundamental charter, it is because of the well-founded fear
of its framers that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when all else would be lost
not only for the present generation, but also for those to come — generations which stand
to inherit nothing but parched earth incapable of sustaining life.
xxx
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment.
xxx
Conformably with the enunciated right to a balanced and healthful ecology and the right
to health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, Section 4 of
which expressly mandates that the Department of Environment and Natural Resources
"shall be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral resources, including those in reservation
and watershed areas, and lands of the public domain, as well as the licensing and
regulation of all natural resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the welfare of the present and
future generations of Filipinos." Section 3 thereof makes the following statement of policy:
xxx
Both E.O. No. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of
the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy)
and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that
is conducive to a life of dignity and well-being." As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the environment for
succeeding generations." The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers
and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and
advance the said right.
A denial or violation of that right by the other who has the correlative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated
xix
their right to a balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
xxx
After a careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the
subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the
claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. xxx
The Oposa case is also famous internationally because the Court recognized the right of the Petitioners,
who were minors, to sue as a class, on their own and as representatives of ”generations yet unborn”
based on the concept of intergenerational responsibility:
This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm and harmony for the
full enjoyment of a balanced and healthful ecology. Put a little differently, the minors'
assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come.
Under the Constitution, all natural resources, including minerals, waters, fisheries, belong to the State.
This is popularly referred to as the Regalian doctrine. A claimant has the burden of proving that the land
has been classified by the government as available for private ownership. The most recent affirmation of
this rule is the case of Aranda vs. Republic.
Aranda vs. Republic

G.R. No. 172331, August 24, 2011
Villarama, Jr., J., ponente
Subject of a petition for original registration before the RTC is a parcel of land situated in
San Andres, Malvar, Batangas with an area of 9,103 square meters and designated as
Lot 3730, Psc 47, Malvar Cadastre.
xxx
In support of the application, petitioner’s sister Merlita A. Enriquez testified that in 1965
her father Anatalio Aranda donated the subject land to his brother (petitioner), as
evidenced by documents “Pagpapatunay ng Pagkakaloob ng Lupa” which she and her
siblings executed on June 7, 2000. She came to know the land for the first time in 1965
when she was eight years old and his brother Ramon has been tilling the land since then,
planting it with rice and corn. His brother did not introduce any permanent improvement
and also did not hire a tenant to work on the land. As to the donation made by his father
to his brother Ramon, she recalled there was such a document but it was eaten by rats.
xx
Another witness, Luis Olan, testified that his father Lucio Olan originally owned the land
and that he had known about this property since he was six (6) years old as he used to
accompany his father in going to the land. His father farmed the land and planted it first,
with rice, and later corn. They had open, peaceful, continuous and adverse possession of
the land in the concept of owner until his father sold the land in 1946 to Anatalio Aranda.
The children of Anatalio then took over in tilling the land, planting it with rice and corn and
adding a few coconut trees. He does not have any copy of the document of sale
because his mother gave it to Anatalio.
xxx
The Property Registration Decree (P.D. No. 1529) provides for original registration of land in
an ordinary registration proceeding. Under Section 14(1) thereof, a petition may be granted
upon compliance with the following requisites: (a) that the property in question is alienable
and disposable land of the public domain; (b) that the applicants by themselves or through
their predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation; and (c) that such possession is under a bona fide claim of
ownership since June 12, 1945 or earlier.
Under the Regalian doctrine which is embodied in Section 2, Article XII of the 1987
Constitution, all lands of the public domain belong to the State, which is the source of any
asserted right to ownership of land. All lands not appearing to be clearly within private
ownership are presumed to belong to the State. Unless public land is shown to have
been reclassified or alienated to a private person by the State, it remains part of the
inalienable public domain. To overcome this presumption, incontrovertible evidence must
be established that the land subject of the application is alienable or disposable.
To prove that the land subject of an application for registration is alienable, an applicant
must establish the existence of a positive act of the government such as a presidential
proclamation or an executive order; an administrative action; investigation reports of
Bureau of Lands investigators; and a legislative act or a statute. The applicant may also
secure a certification from the Government that the lands applied for are alienable and
disposable.
xxx
We have held that a person who seeks the registration of title to a piece of land on the
basis of possession by himself and his predecessors-in-interest must prove his claim by
clear and convincing evidence, i.e., he must prove his title and should not rely on the
absence or weakness of the evidence of the oppositors. Furthermore, the court has the
bounden duty, even in the absence of any opposition, to require the petitioner to show, by
a preponderance of evidence and by positive and absolute proof, so far as possible, that
he is the owner in fee simple of the lands which he is attempting to register. Since
petitioner failed to meet the quantum of proof required by law, the CA was correct in
reversing the trial court and dismissing his application for judicial confirmation of title. xxx
Utilization of natural resources is generally reserved for Filipinos, except for large-scale financial and
technical assistance agreements involving mineral and petroleum resources. 20 In the case of fisheries,
utilization is reserved exclusively for Filipino citizens, with priority given to subsistence fishermen and
protection against foreign intrusion.21
20 Const. (1987), art. XII, § 2 (Phil.).

21 Const. (1987), art. XII, § 2; Art. XIII, § 7 (Phil.).
xxi
Miners Association of the Philippines vs. Factoran

G.R. No. 98332 January 16, 1995
Romero, J., ponente
xxx
Herein controversy was precipitated by the change introduced by Article XII, Section 2 of
the 1987 Constitution on the system of exploration, development and utilization of the
country's natural resources. No longer is the utilization of inalienable lands of public
domain through "license, concession or lease" under the 1935 and 1973 Constitutions
allowed under the 1987 Constitution.
The adoption of the concept of jura regalia that all natural resources are owned by the
State embodied in the 1935, 1973 and 1987 Constitutions, as well as the recognition of
the importance of the country's natural resources, not only for national economic
development, but also for its security and national defense, ushered in the adoption of the
constitutional policy of "full control and supervision by the State" in the exploration,
development and utilization of the country's natural resources. The options open to the
State are through direct undertaking or by entering into co-production, joint venture; or
production-sharing agreements, or by entering into agreement with foreign-owned
corporations for large-scale exploration, development and utilization.xxx
Pursuant to the mandate of the above-quoted provision, legislative acts were

successively issued by the President in the exercise of her legislative power.
To implement said legislative acts, the Secretary of the Department of Environment and
Natural Resources (DENR) in turn promulgated Administrative Order Nos. 57 and 82, the
validity and constitutionality of which are being challenged in this petition. xxx
In this petition for certiorari, petitioner Miners Association of the Philippines, Inc. mainly
contends that respondent Secretary of DENR issued both Administrative Order Nos. 57
and 82 in excess of his rule-making power under Section 6 of Executive Order No. 279.
On the assumption that the questioned administrative orders do not conform with
Executive Order Nos. 211 and 279, petitioner contends that both orders violate the
non-impairment of contract provision under Article III, Section 10 of the 1987 Constitution
on the ground that Administrative Order No. 57 unduly pre-terminates existing mining
agreements and automatically converts them into production-sharing agreements within
one (1) year from its effectivity date. On the other hand, Administrative Order No. 82
declares that failure to submit Letters of Intent and Mineral Production-Sharing
Agreements within two (2) years from the date of effectivity of said guideline or on July
17, 1991 shall cause the abandonment of their mining, quarry and sand gravel permits.
The economic policy on the exploration, development and utilization of the country's
natural resources under Article XII, Section 2 of the 1987 Constitution could not be any
clearer. As enunciated in Article XII, Section 1 of the 1987 Constitution, the exploration,
development and utilization of natural resources under the new system mandated in
Section 2, is geared towards a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation
for the benefit of the people; and an expanding productivity as the key to raising the
quality of life for all, especially the underprivileged.
Upon the effectivity of the 1987 Constitution on February 2, 1987, the State assumed a
more dynamic role in the exploration, development and utilization of the natural resources
of the country. Article XII, Section 2 of the said Charter explicitly ordains that the
exploration, development and utilization of natural resources shall be under the full
xxii
control and supervision of the State. Consonant therewith, the exploration, development
and utilization of natural resources may be undertaken by means of direct act of the
State, or it may opt to enter into co-production, joint venture, or production-sharing
agreements, or it may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth and
general welfare of the country.
xxx
The exploration, development and utilization of the country's natural resources are
matters vital to the public interest and the general welfare of the people. The recognition
of the importance of the country's natural resources was expressed as early as the 1984
Constitutional Convention. In connection therewith, the 1986 U.P. Constitution Project
observed: "The 1984 Constitutional Convention recognized the importance of our natural
resources not only for its security and national defense. Our natural resources which
constitute the exclusive heritage of the Filipino nation should be preserved for those
under the sovereign authority of that nation and for their prosperity. This will ensure the
country's survival as a viable and sovereign republic."
Accordingly, the State, in the exercise of its police power in this regard, may not be
precluded by the constitutional restriction on non-impairment of contract from altering,
modifying and amending the mining leases or agreements granted under Presidential
Decree No. 463, as amended, pursuant to Executive Order No. 211. Police Power, being
co-extensive with the necessities of the case and the demands of public interest; extends
to all the vital public needs. The passage of Executive Order No. 279 which superseded
Executive Order No. 211 provided legal basis for the DENR Secretary to carry into effect
the mandate of Article XII, Section 2 of the 1987 Constitution.
Nowhere in Administrative Order No. 57 is there any provision which would lead us to
conclude that the questioned order authorizes the automatic conversion of mining leases
and agreements granted after the effectivity of the 1987 Constitution, pursuant to
Executive Order No. 211, to production-sharing agreements. The provision in Article 9 of
Administrative Order No. 57 that "all such leases or agreements shall be converted into
production sharing agreements within one (1) year from the effectivity of these guidelines"
could not possibility contemplate a unilateral declaration on the part of the Government
that all existing mining leases and agreements are automatically converted into
production-sharing agreements. On the contrary, the use of the term "production-sharing
agreement" if they are so minded. Negotiation negates compulsion or automatic
conversion as suggested by petitioner in the instant petition. A mineral production-sharing
agreement (MPSA) requires a meeting of the minds of the parties after negotiations
arrived at in good faith and in accordance with the procedure laid down in the subsequent
Administrative Order No. 82.
We, therefore, rule that the questioned administrative orders are reasonably directed to
the accomplishment of the purposes of the law under which they were issued and were
intended to secure the paramount interest of the public, their economic growth and
welfare. The validity and constitutionality of Administrative Order Nos. 57 and 82 must be
sustained, and their force and effect upheld.
xxiii
Special provisions in the Constitution recognize autonomy in Muslim Mindanao, 22 which is implemented in
the Expanded Organic Act for the Autonomous Region in Muslim Mindanao 23. The Autonomous Region
in Muslim Mindanao (ARMM) currently includes the provinces of Lanao del Sur Maguindanao, Basilan
(except Isabela City), Sulu, Tawi-Tawi. Local autonomy is discussed further in Chapter Two.
The Constitution recognizes the rights of indigenous peoples to their culture, institutions, and ancestral
lands and domain.24 There are 114 ethno-linguistic groups in the Philippines, totaling about 14 million
people, of which 63% live in Mindanao. The Badjaos of the Sulu archipelago are sea-oriented, boat
dwelling, nomadic groups that move around Sulu, Sabah, Sulawesi and Kalimantan.
Cariño vs Insular Government

212 U.S. 449 (1909)
Holmes, J., ponente
xxx The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the
land lies. For more than fifty years before the Treaty of Paris, April 11, 1899, as far back
as the findings go, the plaintiff and his ancestors had held the land as owners. His
grandfather had lived upon it, and had maintained fences sufficient for the holding of
cattle, according to the custom of the country, some of the fences, it seems, having been
of much earlier date. His father had cultivated parts and had used parts for pasturing
cattle, and he had used it for pasture in his turn. They all had been recognized as owners
by the Igorots, and he had inherited or received the land from his father in accordance
with Igorot custom. No document of title, however, had issued from the Spanish Crown,
and although, in 1893-1894 and again in 1896-1897, he made application for one under
the royal decrees then in force, nothing seems to have come of it, unless, perhaps,
information that lands in Benguet could not be conceded until those to be occupied for a
sanatorium, etc., had been designated -- a purpose that has been carried out by the
Philippine government and the United States. In 1901, the plaintiff filed a petition, alleging
ownership, under the mortgage law, and the lands were registered to him, that process,
however, establishing only a possessory title, it is said.
xxx
We come, then, to the question on which the case was decided below -- namely, whether
the plaintiff owns the land. The position of the government, shortly stated, is that Spain
assumed, asserted, and had title to all the land in the Philippines except so far as it saw
fit to permit private titles to be acquired; that there was no prescription against the Crown,
and that, if there was, a decree of June 25, 1880, required registration within a limited
time to make the title good; that the plaintiff's land was not registered, and therefore
became, if it was not always, public land; that the United States succeeded to the title of
Spain, and so that the plaintiff has no rights that the Philippine government is bound to
respect.
If we suppose for the moment that the government's contention is so far correct that the
Crown of Spain in form asserted a title to this land at the date of the Treaty of Paris, to
which the United States succeeded, it is not to be assumed without argument that the
plaintiff's case is at an end. It is true that Spain, in its earlier decrees, embodied the
universal feudal theory that all lands were held from the Crown, and perhaps the general
attitude of conquering nations toward people not recognized as entitled to the treatment
22 Const. (1987), art. X, § 15 (Phil.).

23 Rep. Act 9054 (Phil.).
24 Const. (1987), art.II, § 22; art XII, § 6; art. XIV, § 17 (Phil.).
xxiv
accorded to those in the same zone of civilization with themselves. It is true also that, in
legal theory, sovereignty is absolute, and that, as against foreign nations, the United
States may assert, as Spain asserted, absolute power. But it does not follow that, as
against the inhabitants of the Philippines, the United States asserts that Spain had such
power. When theory is left on one side, sovereignty is a question of strength, and may
vary in degree. How far a new sovereign shall insist upon the theoretical relation of the
subjects to the head in the past, and how far it shall recognize actual facts, are matters
for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General, in his
argument, characterized as a savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems probable, if not certain, that the
Spanish officials would not have granted to anyone in that province the registration to
which formerly the plaintiff was entitled by the Spanish laws, and which would have made
his title beyond question good. Whatever may have been the technical position of Spain,
it does not follow that, in the view of the United States, he had lost all rights and was a
mere trespasser when the present government seized his land. The argument to that
effect seems to amount to a denial of native titles throughout an important part of the
island of Luzon, at least, for the want of ceremonies which the Spaniards would not have
permitted and had not the power to enforce.
The acquisition of the Philippines was not like the settlement of the white race in the
United States. Whatever consideration may have been shown to the North American
Indians, the dominant purpose of the whites in America was to occupy the land. It is
obvious that, however stated, the reason for our taking over the Philippines was different.
No one, we suppose, would deny that, so far as consistent with paramount necessities,
our first object in the internal administration of the islands is to do justice to the natives,
not to exploit their country for private gain. By the Organic Act of July 1, 1902, c. 1369, §
12, 32 Stat. 691, all the property and rights acquired there by the United States are to be
administered "for the benefit of the inhabitants thereof." Xxx The same statute made a bill
of rights, embodying the safeguards of the Constitution, and, like the Constitution,
extends those safeguards to all. It provides that "no law shall be enacted in said islands
which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws."
It is true that, by § 14, the government of the Philippines is empowered to enact rules and
prescribe terms for perfecting titles to public lands where some, but not all, Spanish
conditions had been fulfilled, and to issue patents to natives for not more than sixteen
hectares of public lands actually occupied by the native or his ancestors before August
13, 1898. But this section perhaps might be satisfied if confined to cases where the
occupation was of land admitted to be public land, and had not continued for such a
length of time and under such circumstances as to give rise to the understanding that the
occupants were owners at that date. We hesitate to suppose that it was intended to
declare every native who had not a paper title a trespasser, and to set the claims of all
the wilder tribes afloat. xxx
Whatever the law upon these points may be, and we mean to go no further than the
necessities of decision demand, every presumption is and ought to be against the
government in a case like the present. It might, perhaps, be proper and sufficient to say
that when, as far back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed to have been held in
the same way from before the Spanish conquest, and never to have been public land.
Certainly, in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to
give the applicant the benefit of the doubt.
xxv
It is important to understand the rights of indigenous peoples in relation to environment and natural
resources policy because IPs have a different worldview of the relation of humans to their environment.
The Cariño case recognized that IPs never lost ownership of their lands (ancestral domains) even after
the Spaniards came to claim the Philippines for the Spanish Crown.
In 1997, Congress passed the Indigenous People’s Rights Act (IPRA, Republic Act No. 8371) that
formally recognized the rights of IPs to their ancestral domains and ancestral lands. The law followed the
reasoning in Cariño and gave flesh to the provisions in the Constitution protecting the rights of IPs.
Sec. 2. Declaration of State Policies. xxx (b)The State shall protect the rights of ICCs/IPs
to their ancestral domains to ensure their economic, social and cultural well being and
shall recognize the applicability of customary laws governing property rights or relations in
determining the ownership and extent of ancestral domain;
xxx
Sec. 3. Definition of Terms.-

a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands,inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs,
themselves or through their ancestors, communally or individually since time immemorial,
continuously to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government projects or any
other voluntary dealings entered into by government and private individuals, corporations,
and which are necessary to ensure their economic, social and cultural welfare. It shall
include ancestral land, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise, hunting grounds, burial
grounds, worship areas, bodies of water, mineral and other natural resources, and lands
which may no longer be exclusively occupied by ICCs/IPs but from which their
traditionally had access to for their subsistence and traditional activities, particularly the
home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;
xxx
h) Indigenous Cultural Communities/Indigenous Peoples - refer to a group of people or
homogenous societies identified by self-ascription and ascription by other, who have
continuously lived as organized community on communally bounded and defined territory,
and who have, under claims of ownership since time immemorial, occupied, possessed
customs, tradition and other distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, non-indigenous religions and culture,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise
include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or the establishment of present
state boundaries, who retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains or
who may have resettled outside their ancestral domains;
IPRA enumerated specific rights that IPs had and the formal processes in which these rights were
recognized by the State. This appeared to run against the generally applied Regalian doctrine that
governed everyone else not considered IPs. On this basis, former Supreme Court Justice Isagani Cruz
challenged the constitutionality of IPRA.
Isagani Cruz and Cesar Europa vs. Secretary of DENR, et al

G.R. No. 135385, December 6, 2000.
xxvi
Per curiam
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and
mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions
of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights
Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).
xxx
Petitioners assail the constitutionality of the following provisions of the IPRA and its
Implementing Rules on the ground that they amount to an unlawful deprivation of the
State's ownership over lands of the public domain as well as minerals and other natural
resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of
the Constitution: xxx
Petitioners also contend that, by providing for an all-encompassing definition of "ancestral
domains" and "ancestral lands" which might even include private lands found within said
areas, Sections 3(a) and 3(b) violate the rights of private landowners.
In addition, petitioners question the provisions of the IPRA defining the powers and
jurisdiction of the NCIP and making customary law applicable to the settlement of
disputes involving ancestral domains and ancestral lands on the ground that these
provisions violate the due process clause of the Constitution.
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP
Administrative Order No. 1, series of 1998, which provides that "the administrative
relationship of the NCIP to the Office of the President is characterized as a lateral but
autonomous relationship for purposes of policy and program coordination." They contend
that said Rule infringes upon the President's power of control over executive departments
under Section 17, Article VII of the Constitution.
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief
Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of
the challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion
sustaining all challenged provisions of the law with the exception of Section 1, Part II,
Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations
Implementing the IPRA, and Section 57 of the IPRA which he contends should be
interpreted as dealing with the large-scale exploitation of natural resources and should be
read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand,
Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a
justiciable controversy and petitioners do not have standing to question the
constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban
filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and
related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the
constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await
the filing of specific cases by those whose rights may have been violated by the IPRA.
Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and
57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and
De Leon Jr., join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained,
the case was redeliberated upon. However, after redeliberation, the voting remained the
xxvii
same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the
petition is DISMISSED.
While the Court’s decision itself did not provide the reasoning behind the votes, Justice Puno provided a
lengthy support for the decision of the Court that traced the roots of the Constitutional provisions and
IPRA:
PUNO, J .:
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical
concepts into the Philippine legal system which appear to collide with settled
constitutional and jural precepts on state ownership of land and other natural resources.
The sense and subtleties of this law cannot be appreciated without considering its distinct
sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by
discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted
by Congress not only to fulfill the constitutional mandate of protecting the indigenous
cultural communities' right to their ancestral land but more importantly, to correct a grave
historical injustice to our indigenous people.
xxx
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all
lands became the exclusive patrimony and dominion of the Spanish Crown. The Spanish
Government took charge of distributing the lands by issuing royal grants and concessions
to Spaniards, both military and civilian. Private land titles could only be acquired from the
government either by purchase or by the various modes of land grant from the Crown.
xxx
The Regalian doctrine was enshrined in the 1935 Constitution. Xxx The 1973 Constitution
reiterated the Regalian doctrine in Section 8, Article XIV xxx The 1987 Constitution
reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy and
Patrimony," xxx Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land, belong to the State. It is
this concept of State ownership that petitioners claim is being violated by the IPRA.
Republic Act No. 8371 xxx The IPRA recognizes the existence of the indigenous cultural
communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It
grants these people the ownership and possession of their ancestral domains and
ancestral lands, and defines the extent of these lands and domains. The ownership given
is the indigenous concept of ownership under customary law which traces its origin to
native title.
xxx
Land is the central element of the indigenous peoples' existence. There is no traditional
concept of permanent, individual, land ownership. Among the Igorots, ownership of land
more accurately applies to the tribal right to use the land or to territorial control. The
people are the secondary owners or stewards of the land and that if a member of the tribe
ceases to work, he loses his claim of ownership, and the land reverts to the beings of the
spirit world who are its true and primary owners. Under the concept of "trusteeship," the
right to possess the land does not only belong to the present generation but the future
ones as well.
Customary law on land rests on the traditional belief that no one owns the land except the
gods and spirits, and that those who work the land are its mere stewards. xxx
Land titles do not exist in the indigenous peoples' economic and social system. The
concept of individual land ownership under the civil law is alien to them. Inherently
xxviii
colonial in origin, our national land laws and governmental policies frown upon indigenous
claims to ancestral lands. Communal ownership is looked upon as inferior, if not
inexistent.
The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the
Tenth Congress of the Philippines, by their joint efforts, passed and approved R.A. No.
8371, the Indigenous Peoples Rights Act (IPRA) of 1997. xxx
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited
and cared for the land long before any central government was established.
Their ancestors had territories over which they ruled themselves and related
with other tribes. These territories — the land — include people, their
dwelling, the mountains, the water, the air, plants, forest and the animals.
This is their environment in its totality. Their existence as indigenous peoples
is manifested in their own lives through political, economic, socio-cultural
and spiritual practices. The IPs culture is the living and irrefutable proof to
this.
Their survival depends on securing or acquiring land rights; asserting their
rights to it; and depending on it. Otherwise, IPs shall cease to exist as
distinct peoples."
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a
bill based on two postulates: (1) the concept of native title; and (2) the principle of parens
patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian
Doctrine reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws"
and jurisprudence passed by the State have "made exception to the doctrine." This
exception was first laid down in the case of Cariño v. Insular Government xxx
Ancestral Domains and Ancestral Lands are the Private Property of
Indigenous Peoples and Do Not Constitute Part of the Land of the Public
Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral

domains and ancestral lands. xxx Native title refers to ICCs/IPs' preconquest
rights to lands and domains held under a claim of private ownership as far
back as memory reaches. These lands are deemed never to have been
public lands and are indisputably presumed to have been held that way since
before the Spanish Conquest. The rights of ICCs/IPs to their ancestral
domains (which also include ancestral lands) by virtue of native title shall be
recognized and respected. xxx
Like a torrens title, a CADT is evidence of private ownership of land by native
title. Native title, however, is a right of private ownership peculiarly granted to
ICCs/IPs over their ancestral lands and domains. The IPRA categorically
declares ancestral lands and domains held by native title as never to have
been public land. Domains and lands held under native title are, therefore,
indisputably presumed to have never been public lands and are private.
xxx
The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title
but to a Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the
xxix
indigenous concept of ownership of the ICCs/IPs over their ancestral domain. xxx
Following the constitutional mandate that "customary law govern property rights or
relations in determining the ownership and extent of ancestral domains," the IPRA, by
legislative fiat, introduces a new concept of ownership. This is a concept that has long
existed under customary law.
Custom, from which customary law is derived, is also recognized under the Civil Code as
a source of law. Some articles of the Civil Code expressly provide that custom should be
applied in cases where no codal provision is applicable. In other words, in the absence of
any applicable provision in the Civil Code, custom, when duly proven, can define rights
and liabilities.
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely
applies to ICCs/IPs. Its recognition does not depend on the absence of a specific
provision in the civil law. The indigenous concept of ownership under customary law is
specifically acknowledged and recognized, and coexists with the civil law concept and the
laws on land titling and land registration.
To be sure, the indigenous concept of ownership exists even without a paper title. The
CADT is merely a "formal recognition" of native title.
xxx
Are ancestral domains therefore, considered private lands in the same way as ordinary titled private
lands? Jurisprudence and IPRA are very clear that these lands are private; however, the reality in the
ground is different and more complex – for example, DENR still considers that ancestral domains within
protected areas are still part of public domain. Succeeding chapters explore the various dimensions of
this issue.
1.3.2 National legislation
It is often said that the Philippines has comprehensive and highly advanced laws to protect the
environment and conserve natural resources, but that these laws are poorly enforced because of financial
and technical capacity limitations.
Natural resource exploitation was heavily encouraged since the American and Philippine Commonwealth
periods. For a long time the government implemented a policy that emphasized economic development,
with little regard for conservation. In fact, from the 1940s to the 1970s the Philippines was one of the
world’s leading exporters of logs and fisheries. This bias toward extraction and utilization significantly
contributed to the loss and degradation of forest and marine resources. The attention given to balancing
utilization and conservation of natural resources, as seen in current policy pronouncements, is a relatively
recent development.
The policy shift from exploitation to management occurred in the late 1980s, when government issued
policies to protect the remaining forest resources while giving local forest-dependent communities the
right to sustainably use these resources. Community-based Forest Management (CBFM) has since
evolved as a foundation of environmental policy and a strategy for sustainable forest management under
Executive Order No. 263 was promulgated in 1995, which pronounced. The CBFM strategy addressed
the concern on sustainable forest management, and also allowed more equitable access to forest
resources. Other instruments that served these ends include the National Integrated Protected Areas
System Act and the Indigenous Peoples Rights Act, which respectively gave local communities and those
of indigenous peoples the opportunity to participate formally in forest management (de Rueda 2007).
xxx
In the fisheries sector, local communities and their civil society partners pioneered community-based
coastal management approaches to protected the dwindling marine resources. The enactment of the
Fisheries Code in 1998 gave impetus to fisheries resources conservation and community-based
management. Pollution laws have a relatively shorter history. Before the 1970s, little importance was
placed on waste and pollution concerns. As population grew and urbanization gained momentum,
pollution problems and its attendant woes (such as environmental health concerns) became a serious
concern. In response, the government came up a succession of laws that have been hailed as landmark
legislation, including the Toxic and Hazardous Waste Management Act (1990), Clean Air Act (1999), the
Ecological Solid Waste Management Act (2000), and the Clean Water Act (2004). These have been
lauded for laying down a comprehensive framework for environmental management in the place of the
piecemeal legislation that previously governed these matters.
xxxi
Table 2: Major environmental laws (as listed in the Rules of Procedure for Environmental Cases, Rule 1, Sec 2).
Short Title Reference Date took Implementing Rules and Regulations Date took effect
Number effect
An Act to Prohibit the Act No. 3572 Approved:
Cutting of Tindalo, Akle, or November 26,
Molave Trees, under Certain 1929
Conditions, and to Penalize
Violations Thereof P.L. 25: 70
Rules of Procedure for A.M. No. 09-6-8- April 29, 2010

Environmental Cases SC
Writ of Kalikasan
Revised Forestry Code P.D. No. 705 May 19, 1975 Executive Order No. 23 - Declaring a Moratorium on February 1, 2011
71 O.G. 4289 the Cutting and Harvesting of Timber in the Natural
No. 28 (July and Residual Forests and Creating the Anti-Illegal Order shall take
14, 1975) Logging Task Force effect immediately
after publication in
a newspaper of
general circulation
107 O.G. 631 No. 8
(February 21,
2011)
Received by
ONAR: June 7,
2011
Executive Order 318 – Promoting Sustainable Forest June 09, 2004
Management in the Philippines
Order shall take
effect immediately.
Received by
ONAR: June 30,
2004
Executive Order 26 – National Greening Program February 24, 2011
Effective
32
Immediately upon
its publication in a
newspaper of
general circulation
107 O.G. 1258 #13

(March 28, 2011)
Code on Sanitation of the P.D. No. 856 December 23, April 30, 1998
Philippines 1975
The Water Code of the P.D. No. 1067 December 31, 06-11-1979 Water Code of the Philippines 1st IRR adopted on
Philippines 1976 Implementing Rules and Regulations June 11, 1979 –
effective 15 days
(National Water Resources Council) after publication in
3 newspapers of
03-21-2005 Water Code of the Philippines Amended general circulation
Implementing Rules and Regulations
Amended IRR
(National Water Resources Board) adopted on March
21, 2005 – effective
15 days after
publication in the
Official Gazette
and a newspaper
of general
circulation
An Act Establishing a Marine R.A. No. 9441 April 28, 2007

Research and Breeding
Center in the Municipality of
Baler, Province of Aurora
An Act Establishing a Marine R.A. No. 9440 April 28, 2007
Fisheries Laboratory in the
Municipality of San Jose,
Privince of Northern Samar
Philippine Environmental P.D. No. 1151 June 6, 1977
Policy of 1977
Plant Quarantine Decree of P.D. No. 1433 Effective: June
1978 10, 1978 ; to
take effect
33
immediately
upon approval
74 O.G. 5733 –
QQQQ No. 30
(July 24, 1978)
Establishing an P.D. No. 1586 June 11, 1978 DENR AO 30-03 Issued: June 30,
Environmental Impact 2003
Statement System Including
Other Environmental Effective: 15 days
Management Related after its publication
Measures and for Other in a newspaper of
Purposes general circulation
Prohibition Against the R.A. No. 3571 Approved: Ministry of Natural Resources Administrative Order Effective: 15 days
Cutting, Destroying or June 21, 1963 - Parks and Wildlife Office Administrative Order No. 1 after publication in
Injuring of Planted or take effect Series of 1964 the Official Gazette
Growing Trees, Flowering upon its
Plants and Shrubs or Plants approval
of Scenic Value along Public
Roads, in Plazas, Parks, 59 O.G. 5720
School Premises or in any No. 35
Other Public Ground (September 2,
1963)
LR 18:76
An Act to Provide Protection R.A. No. 9168 June 7, 2002

to New Plant Varieties,
Establishing a New Plant
Variety Protection Board
Organic Agriculture Act of R.A. No. 10068 April 6, 2010

2010:
An Act Providing for the
Development and Promotion
of Organic Agriculture in the
Philippines
34
Laguna Lake Development R.A. No. 4850 June 1, 1992 DENR Administrative Order No. 26-08 January 31, 2009
Authority Act of 1966 Revised Implementing Rules and Regulations of
Republic Act No. 7586 or the National Integrated
Protected Areas System (NIPAS) Act of 1992
Toxic Substances and R.A. No. 6969 October 26, DENR Administrative Order No. 92-29 March 14, 1992
Hazardous and Nuclear 1990
Wastes Control Act of 1990
People's Small-Scale Mining R.A. No. 7076 Approved: DENR Administrative Order No. 92 - 34 July 14, 1992
Act of 1991 June 27, 1991
Effective: 15 days
Effective: 15 after publication in
days after the Official Gazette
publication in or in a national
the Official newspaper of
Gazette or in a general circulation
national
newspaper of
general
circulation
National Integrated R.A. No. 7586 June 1, 1992 DENR Administrative Order No. 26-08 January 31, 2009
Protected Areas System Act Revised Implementing Rules and Regulations of
of 1992 Republic Act No. 7586 or the National Integrated
Protected Areas System (NIPAS) Act of 1992
An Act Establishing the RA No. 10067 April 6, 2010

Tubbataha Reefs Natural
Park in the Province of
Palawan under the Nipas
Act (RA 7586) and the
Strategic Environmental
Plan (SEP) for Palawan Act
(7611) Providing for its
Management
Strategic Environmental R.A. No. 7611 June 19, 1992 Amended Rules and Regulations Implementing the May 25, 1993
Plan for Palawan Act Strategic Environmental Plan (SEP) for Palawan Act
35
Palawan Council for Sustainable Development
Philippine Mining Act of R.A. No.7942 Approved: DENR Administrative Order No. 96-40 January 23, 1997
1995 March 3, 1995
Effective: 30
days following
complete
publications in
2 newspapers
of general
circulation
Indigenous Peoples Rights R.A. No. 8371 Approved: Administrative Order No. 1 Series of 1998 Approved: June 9,
Act of 1997 October 29, 1998
1997
Effective: 15 days
Effective: 15 upon its publication
days after in any 2
publication in newspapers of
the Official general circulation.
Gazette or in
any 2
newspapers of
general
circulation
The Philippine Fisheries R.A. No. 8550 February 25, DA Administrative Order No. 3-98 March 23, 1998
Code of 1998 1998
The Handline Fishing Law R.A. No. 9379 March 8, 2007

An Act Defining Handline
Fishing, Providing Effective
Regulations therefor
Philippine Clean Air Act of R.A. No. 8749 June 23, 1999 DENR Administrative Order No. 00-81 November 7, 2000
1999
36
Ecological Solid Waste R.A. No. 9003 January 26, DENR Administrative Order No. 01-34 December 21,
Management Act of 2000 2001 2001
National Caves and Cave R.A. No. 9072 April 8, 2001 DENR Administrative Order No. 29-03 Approved: July 7,
Resources Management 2003
and Protection Act
Effective: 15 days
a newspaper of
general circulation
Wildlife Resources R.A. No. 9147 Approved July Joint DENR-DA-PCSD-NCIP Administrative Order DENR Department
Conservation and Protection 30, 2001 No. 1 Series of 2004 Administrative
Act Order No. 20,
Effective: 15 series of 1996, is
days after hereby repealed;
publication in provisions of
the Official Executive Order
Gazette or two No. 247
(2) newspapers inconsistent with
of general the Wildlife Act are
circulation deemed repealed;
Issued May 18,
97 O.G. 6559 2004, to take effect
No. 45 after publication in
(November 5, 2 newspapers of
2001) general circulation
and after 15 days
from registration
with ONAR
Published in:
Malaya on May 22,
2004 and
Daily Tribune on
December 21,
2004
Executive Order No. 514 - Establishing the National Received by
37
Biosafety Framework, Prescribing Guidelines for its ONAR: January 12,

Implementation, Strengthening the National 2005
Committee on Biosafety of the Philippines, and for
Other Purposes
Issued: March 17,
2006
Effective: 15 days
two newspapers of
general circulation
102 O.G. 3295 No.

20 (May 22, 2006)
Mt. Banahaw – San R.A. No. 9847 December 11,

Cristobal Protected 2009
Landscape (MBSCPL) Act of
2009.
An Act Establishing Mounts
Banahaw and San Cristobal
in the Provinces of Laguna
and Quezon as Protected
Area under the Category of
Protecte Landscape
Chainsaw Act of 2002 R.A. No. 9175 Approved: DENR Administrative Order No. 2003-24 Series of Issued June 30,
November 7, 2003 2003
2002
Effective: 15 days
Effective: 15 after its complete
days after its publication in at
complete least 2 national
publication in newspapers and
the Official upon
Gazette or in at acknowledgement
least 2 national of the UP Law
newspaper of Center
general
38
circulation, Published in:

whichever Manila Bulletin on
comes earlier July 3, 2003 and
Manila Standard on
99 O.G. 492 July 3, 2003
No. 4 (January
27, 2003) Received by
ONAR: January 8,
2004
Effective: 15 days
after its complete
PCSD Administrative Order No. 07 Series 2003 publication in at
least 2 local
newspapers of
general circulation
and by posting
copies to all
municipal buildings,
barangay halls and
conspicuous places
in every
municipality in
Palawan
An Act Imposing a Logging R.A. No. 9741 November 3,

Ban in the Third District of 2009
the Province of Negros
Occidental
An Act Imposing a Logging R.A. No. 9772 November 13,

Ban in the Province of 2009
Southern Leyte
Philippine Clean Water Act R.A. No. 9275 March 22, 2004 DENR Administrative Order No. 05-10 May 16, 2005
of 2004
Oil Pollution Compensation R.A. No. 9483 Approved:

Act of 2007 June 2, 2007
39
Effective: after
the completion
of its
publication
made once a
week for three
consecutive
weeks in at
least two
newspapers of
general
circulation
Renewable Energy Act of R.A. No. 9513 Approved: DOE Department Circular DC 2009-05-0008 Signed May 25,
2008 December 16, 2009.
2008
Effective: 15 days
Effective: 15 after its publication
days after its in at least 2
publication in at newspapers of
least 2 general circulation
newspapers of
general
circulation
National Environmental R.A. No. 9512 December 1.

Awareness and Education 2008
Act of 2008
Climate Change Act of 2009: R.A. No. 9729 October 23,

An Act Mainstreaming 2009
Climate Change into
Government Policy
Formulations, Establishing
the Framework Strategy and
Program on Climate
Change, Creating for this
Purpose the Climate
40
Change Commission
Relevant provisions in the following laws:

The Public Land Act C.A. No. 141 November 7, Relevant Provisions:
1936 Sections 6-10, 58-68
Comprehensive Agrarian R.A. No. 6657 June 10, 1988 Relevant Provisions:
Reform Law of 1988 Sections 40, 65-72
Local Government Code of R.A. No. 7160 October 10, Administrative Order No. 270 February 21, 1992
1991 1991
An Act Incorporating Certain R.A. No. 7161 Approved: DENR Administrative Order No. 2000-63 New Rates Supersedes DENR
Sections of the National October 10, of Forest Charges pursuant to R.A. 7161 and based Administrative
Internal Revenue Code of 1991 on the 1999 FOB Market Price of Forest Products Order No. 95-19
1977, as Amended, to
Presidential Decree No. 705, Effective: 15 Effective: Upon
as Amended, Otherwise days after its acknowledgement
Known as the "Revised publication in a by
Forestry Code of the newspaper of UP Law Center and
Philippines," and Providing general after fifteen (15)
Amendments thereto by circulation – 87 days from the date
Increasing the Forest O.G. 7003 No. of publication in at
Charges on Timber and 64 (Nov. 18, least two (2)
other Forest Products 1991) newspapers of
general circulation
Published in:
Manila Times on
September 2, 2000
and Kabayan on
September 2, 2000
Received by
ONAR: September
11, 2000 (effective
15 days after
receipt)
Seed Industry Development R.A. No. 7308 Approved: Department of Agriculture Administrative Order No. Received by
Act of 1992 March 27, 1992 3, Series of 1994 ONAR: February
41
16, 1995
Effective: 15
days after its Effective: 15 days
complete upon submission to
publication in the University of
the Official the Philippines Law
Gazette or in at Center in
least 2 accordance with
newspapers of the revised
general Administrative
circulation Code of 1987 (E.O.
290) and 3 days
88 O.G. 2793 after its complete
No. 19 (May publication in the
11, 1992) Official Gazette or
in at least 2
Department of Agriculture Administrative Order No. newspapers of
6, Series of 1995 Revising Administrative Order No. general circulation
3 Series of 1994
Issued: February
27, 1995
Received by
ONAR: March 21,
1996
Effective
immediately and
supersedes all
other orders
inconsistent
herewith.
High-Value Crops R.A. No. 7900 Approved: Joint Administrative Order No. 1 Series of 1996 Received by
Development Act of 1995 February 23 ONAR: June 13,
1995 1996
Effective Effective
immediately immediately
42
following its following its

publication in a publication in a
newspaper of newspaper of
general general circulation
circulation or in or in the Official
the Official Gazette whichever
Gazette, comes first
whichever
comes first.
91 O.G. 3025
No. 25 (May
15, 1995)
Coconut Preservation Act R.A. No. 8048 Approved: Jun Philippine Coconut Authority Administrative Order Issued: April 4,
e 7, 1995 No. 02, series of 2011 2011
Effective upon Published: April 20,

its approval. 2011
91 O.G. 5202 Effective: 15 days

No. 33 (August after publication
14, 1915)
Agriculture and Fisheries R.A. No. 8435 February 9, DA Administrative Order No. 6-98 Approved: July 10,
Modernization Act of 1997 1998 1998
Effective: 7 days
a newspaper of
general circulation
The Philippines Baselines R.A. No. 9522 March 10, 2009

Law
Renewable Energy Act R.A. No. 9513 Approved: DOE Department Circular DC 2009-05-0008 Signed May 25,
December 16, 2009
2008
Effective: 15 Effective: 15 days
43
days after its after its publication

publication in at in at least 2
least 2 newspapers of
newspapers of general circulation
general
circulation
Biofuels Act of 2006 R.A. No. 9637 Approved: Department of Energy Circular No. 2007 – 05 - 0006 Signed: May 17,
January 12, 2007
2007
Effective: 15 days
Effective: 15 after its publication
days after its in at least 2
publication in at newspapers of
least 2 general circulation
newspapers of
general
circulation
44
1.3.3 International Agreements25
The Philippines automatically adopts the generally accepted principles of international law as
part of the law of the land. 26 However, specific treaties and international agreements require
a two-thirds Senate concurrence27 to ratification before they can take effect. Treaties and
international agreements must not contravene the Constitution.
The Philippines is a founding member of the Association of Southeast Asian Nations

(ASEAN), which is devoted to “accelerate the economic growth, social progress and cultural
development in the region through joint endeavours in the spirit of equality and partnership…”
including “active collaboration and mutual assistance on matters of common interest in the
economic, social, cultural, technical, scientific and administrative fields…” 28.
In the past two decades, environmental laws and policies have been largely shaped by the
country’s participation and commitment to implement international environmental
agreements, including the United Nations Convention on Biological Diversity (UNCBD),
UNFCCC, Convention on Wetlands or Ramsar Convention, Convention on Migratory Species
(CMS), CITES, International Convention for the Prevention of Marine Pollution from Ships
(MARPOL), Basel Convention and others, as well as regional cooperation on the CTI, SDS-
SEA and the ASEAN Center for Biodiversity. In addition, the country is a member of the 18
Like-Minded Megadiverse Countries formed in Cancun in 2002.
The Philippines is a party to Regional Fisheries Management Organizations, including the
Commission for the Conservation of Southern Bluefin Tuna (CCSBT), International
Commission on the Conservation of Atlantic Tunas (ICCAT), Indian Ocean Tuna Commission
(IOTC), Western and Central Pacific Fisheries Commission (WCPFC).
Table 3: International Agreements on Environment and Natural Resources

International Agreement/ Domestic Implementing Designated National Authority/
Date of entry into force/ Legislation Lead implementing agencies
Date of Philippine ratification
COASTAL and MARINE
UNCLOS 82  RA 9522 Archipelagic Department of Foreign Affairs
baselines
 RA 8550 Philippine Fisheries
Code
MARPOL 73/78 Annex I/II Clean Water Act DENR

MARPOL 73/78 Annex III
MARPOL 73/78 Annex IV
MARPOL 73/78 Annex V Clean Air Act DENR
1993 FAO Compliance Agreement
1995 UN Fish Stocks Agreement
London Convention Protocol 96
CLC Protocol 92 RA No. 9483 Compensation for oil MARINA-DOTC
pollution damage
FUND Protocol 92 RA No. 9483 Compensation for oil MARINA-DOTC
pollution damage
SUA Convention 88
SOLAS Convention 74 MARINA Circular No. 2008-03
Rules and Regulations to Implement
the Code of Safe Practice for Cargo
Stowage and Securing in Domestic
25 This section serves as an overview of various international agreements. Further discussion may be found in
Volume 2 of this series.
26 Const. (1987), art. II, § 2 (Phil.).
27 Const. (1987), art. VII, § 21 (Phil.).
28 ASEAN Declaration (1967), http://www.asean.org/1212.htm.
45
Shipping
OZONE, CLIMATE and DISASTER RISK

UNFCCC 92  R.A. 9729 Climate Change Act Climate Change Commission:
(2009) Philippine President as Chairperson;
3 Commissioners appointed by the
President
Kyoto Protocol 97  RA 8749 Clean Air Act Environmental Management Bureau
 RA 9003 Ecological Solid of the Department of Environment
Waste Management Act and Natural Resources. Supported
by an Interagency Committee
composed of DFA, DOE, DOST, DA,
DPWH, DOTC, DTI-BOI, FMB of
DENR, NEDA, PAGASA, Phil.
Network on Climate Change
DENR was also designated National
Authority on CDM (EO 320, s. 2004)
Bali Action Plan
Durban Platform
Vienna Convention (Ozone Layer) Environmental Management Bureau
of the Department of Environment
and Natural Resources
Montreal Protocol 87 Environmental Management Bureau
Hyogo Framework for Action  RA 10121 Disaster Reduction National Disaster Risk Reduction
Act (2010) and Management Coordinating
Council (formerly NDCC) chaired by
the Secretary of National Defense
with heads of 18 Departments as
members
WILDLIFE and BIODIVERSITY
Biodiversity 92  RA 7586 National Integrated Protected Areas and Wildlife Bureau
Protected Areas System of the Department of Environment
(NIPAS) Law 1992 and Natural Resources. Supported
 RA 9147 Wildlife Act by a Review Committee (REV COM)
composed of DA, DOST, DILG,
DOH, NCIP, National Museum, civil
society, academe.
Ramsar 71*  Wetland Conservation Program Protected Areas and Wildlife Bureau
1996 of the Department of Environment
 National Wetland Action Plan and Natural Resources
CITES 73  R.A. 9147 An Act Providing for Protected Areas and Wildlife Bureau
the Conservation and of the Department of Environment
Protection of Wildlife and Natural Resources. Supported
Resources and their Habitats by DENR, DAR, BFAR, Palawan
2001 Council for Sustainable
Development. Wildlife Traffic
Monitoring Units in every region.
Migratory Species 79 Protected Areas and Wildlife Bureau
WASTE and HAZARDOUS SUBSTANCES
Basel Convention 89  RA 6969 Toxic Substances and Environmental Management Bureau
Hazardous and Nuclear of the Department of Environment
Wastes Control Act of 1990 and Natural Resources. Supported
by an Interagency Technical
Advisory Council: DOH, PNRI, DTI,
DND, DFA, DOLE, DOF, DA, NGOs
Basel Protocol 99 Environmental Management Bureau
Rotterdam Convention PD 1144, Fertilizer and Pesticide Fertilizer and Pesticide Authority of
Authority the Department of Agriculture and
Environmental Management Bureau
46
Stockholm Convention on POPs  RA 6969 Toxic Substances and Fertilizer and Pesticide Authority of
2001 Hazardous and Nuclear the Department of Agriculture and
Wastes Control Act of 1990 Environmental Management Bureau
 RA 8749 Clean Air Act of the Department of Environment
 RA 9003 Ecological Solid and Natural Resources
Waste Management Act
Biosafety Protocol 2000  EO 430 (1990) creating the DOST, DENR; DA and DOH
National Committee on
Biosafety
 RA No. 9271 Quarantine Act
 National Biosafety Framework
(2006)
FOOD and AGRICULTURE
Treaty on Plant Genetic Resources Department of Agriculture
for Food and Agriculture 2006
Fisheries Convention Conservation BFAR of the Department of
and Management of Highly Agriculture
Migratory Fish Stocks 04**
CULTURE and HERITAGE
World Heritage 72  National Cultural Heritage Act National Commission for Culture and
of 2009 the Arts
ACCESS PRINCIPLES
Rio Declaration 92
Aarhus Convention
1.4 Further Discussion
1. How is economic growth relevant to the management of environment and natural

resources? Consider, for example, that the mining and tourism sectors are seen as
major engines for economic growth. Consider also that economic activities are
dependent on natural resources for water, power, nutrients, waste and pollution
control, etc. Because of the narrow base of the economy, is there pressure to extract
the most value from the few sectors now in order to accelerate economic growth?
2. The solution to environmental problems is often linked to poverty alleviation. Why?

How might poverty affect natural resource use patterns of poor communities for
livelihood, health and sanitation, housing, safety and security, etc? Consider both
urban and rural situations. Can poverty alleviation programs also have negative
environmental consequences? For example, what is the impact of increasing
agricultural productivity in the upland areas, or of fishing capacity in coastal areas?
THE RIGHT TO A BALANCED AND

HEALTHFUL ECOLOGY: THE ODYSSEY OF A
CONSTITUTIONAL POLICY
Antonio G.M. La Vina**
Earth give me back your pure gifts, the towers of silence which rose from the solemnity of their roots. I
want to go back to being what I have not been, and learn to go back from such deeps that amongst all
natural things I could live or not live; it does not matter to be one stone more, the dark stone, the pure
stone which the river bears away.
 Delivered as Malcolm Lecture on Constitutional Law, March 8, 1994, University of the Philippines .
**** Assistant Professor, College of Law, University of the Philippines; Director, Research and Policy Development
Division, Legal Rights and Natural Resources Center/Kasama sa Kalikasan; JSD Cand., LLM '92, Yale Law
School; LLB '89, University of the Philippines; AB Philosophy '80, Ateneo de Manila University. Research
assistance by Atty. Dante Rene B. Gatmaytan, Ms. Patricia Marie de Guzman and Ms. France Begonia is
acknowledged.
47
Pablo Neruda
Chief Justice Enrique Fernando, Trustees of the Malcolm Trust Funds, Dean Agabin, Former Secretary
of the DENR Fulgencio Factoran, Atty. Oposa, Prof. Sereno, Colleagues, Students, Friends.
Before I start my lecture, I would like to acknowledge my debt to the Trustees of the Malcolm Trust
Funds for the honor of choosing me to deliver this year's Malcolm Lecture. I would also like to thank
them for the financial support the Malcolm Trust Funds gave me during my doctoral studies at the Yale
Law School.
Let me begin with an overview of the lecture that I will deliver this afternoon. Its context is that of a
comprehensive policy science study of domestic and international environmental law. For today's
lecture however, I will focus on the constitutional policy on the environment as articulated in the 1987
Philippine Constitution. First, I will propose my central thesis on how we can understand and interpret
the constitutional policy. Second, I will say a word about the methodology I am using to prove this
thesis. Third, I will then apply the methodology to the constitutional policy on the environment, in
particular focusing on the role of the Judiciary. And finally, I will end with some suggestions on how we
can further ensure that this policy is realized and operationalized.
1. Central Thesis
The central thesis that underpins this lecture is that the constitutional policy on the environment is made
and remade, interpreted and reinterpreted, or in other words, operationalized not by the Philippine
judiciary principally nor even by the Philippine government but by the interaction of a plurality of
participants in a social decision process. These participants include government institutions - such as
the Judiciary, Congress and the Executive Branch, industry and other commercial users of natural and
ecological resources, communities of direct users of said resources, nongovernmental organizations,
and international entities such as multilateral financing institutions.
What is the law, including the constitutional policy, in the area of the environment at least, cannot be
really fixed at any given time but is a continuing process of decision-making in forums as diverse as
courts, administrative processes, the legislature, and international negotiations. Indeed, the decision
process extends even to informal and unofficial forums.
All the participants bring their own perspectives, framed as interpretations of law and policy, into this
process and the determining factor on what perspective prevails at a given point in time is the balance
of authority and power - i.e. the balance between the text of the law as a source of authority and the
economic, political and cultural resources available to the participants in the decision process. In a
nutshell, the constitutional policy on the environment is not only what the Constitution says it is nor even
what the Supreme Court proposes it to be but is the interpretation which prevails in a process
characterized by conflict among a plurality of participants.
2. Methodology
To prove this thesis, I propose to use the policy science approach as developed by Professors Myres
McDougal and Harold Lasswell and as articulated by Professor W. Michael Reisman.1 I use this
methodology without any illusion that it is the only theoretical framework that should be used to
understand law. In fact, I concede that, at some points, the framework can be criticized as culturally
inappropriate. However, I find the approach a very useful tool in piercing through and going beyond law
as a matter mainly of rules and of logic, a task which I think is essential in all areas of law and
particularly in environmental law.
Professor Reisman describes law as a social decision process.29 By itself, there is nothing new in this
proposition. At a superficial level, we can all agree that "a lawful decision is a choice made in conformity
with appropriate procedural and substantive norms".30 But Reisman points out that one does not just
11 See Myres McDougal and Harold Lasswell, "The Identification of Diverse Systems of Public Order" 53 A.J.I.L. 1
(1959); See also Myres McDougal & Associates, STUDIES IN WORLD PUBLIC ORDER (1960).
29 W. Michael Reisman, "Law from the Policy Perspective", in Myres McDougal & W. Michael Reisman,
INTERNATIONAL LAW ESSAYS (1981) 1,3.
30 Id.
48
make a decision. Indeed, many functions or operations are concealed in the word "decision" and
anyone who wants to understand as well as make effective a legal norm must deconstruct, i.e. take
apart, the meaning of such a term. Concretely, this means that the lawyer or legal scholar must
distinguish law as myth system from law as operational code.31
By myth system, Reisman refers to the black-letter law, to the official legal norms recognized as such
by society and by organs of the state. Thus, the constitution, statutes, administrative rules, even
jurisprudence - all these form part of law as myth. But, according to Reisman:
there are enough discrepancies between this myth system and the way things
are actually done by key officials or effective' actors to force the observer to apply
another name for the unofficial but nonetheless effective guidelines for behavior
in those discrepant sectors: the operational code. The operational code – how
the legal norms are used and manipulated and enforced by the different actors in a legal
system - is a "byproduct of socialcomplexity. generated by the increase of social divisions and
specializations". In the context of power, the operational code is a "privatesystem of law".32
The operational code is not totally divorced from the myth system. Indeed, it finds legitimacy in being
able to invoke black-letter law. But it is distinct from the myth system. And to understand law as well as
to make it more effective is to go beyond constitutional and statutory policy as myth and into policy as
operational code.
Understanding the operational code of Philippine environmental policy is particularly important because
staying at the level of constitutional, statutory and jurisprudential text alone is deceptive. At this level,
we have some of the most progressive policies in the world. Particularly among developing countries,
we are certainly one of the most if not the most advanced in articulated policy. The categorical right to
ecological security in the 1987 Constitution33 and our laws on protected areas34 as well as toxic and
hazardous wastes35, and the precedent-setting case of Oposa v. Factoran 36 are just some examples.
Yet, on the ground, we cannot deny that our environmental problems remain daunting. We cannot in
any way say that we have turned the tide. Hence, it is imperative to pierce our legal text and ask why
there is a gap between policy and reality, i.e. why the operational code is different from the myth
system.
For this lecture, because of time constraints, I decided to present in detail only my analysis of the role of
the Judiciary in environmental policymaking. This analysis I present in two parts: First, the role of the
judiciary as articulated in the myth system; Second, this role as manifested in the operational code. In
the first part which I call - Oposa v. Factoran: Locating the Role of the Judiciary in the Myth System, I
will use predominantly legal texts - the Constitution, statutory provisions, and Philippine and U.S.
jurisprudence. In the second part entitled – The Judiciary and The Environmental Dilemma: The
Operational Code, I will make use of various social sciences, particularly economics and anthropology.
In this section, I will also be indicating tentative observations and conclusions I have made as regards
alternative forums for environmental decision-making as well as the roles of other participants. This is
necessary for a clearer overview of the operational code of environmental law and policy and also for
appreciating the role and limits of the judiciary.
3. OPOSA V. FACTO RAN: LOCATING THE ROLE OF THE

JUDICIARY IN THE MYTH SYSTEM
The Oposa vs. Factoran case, promulgated on July 30, 1993, is a final and binding judgement of the
Supreme Court. It is not, strictly speaking, the first environmental case in the Philippines. Indeed, we
have a long line of decisions involving disputes in natural resources utilization - ego cases concerning
ownership of timber resources37 and disputes over timber license agreements.38 We have had a number
31 Id 3-4.
32 Id 26
33 Const., Art. II. Sec. 16. (Phil.)
34 See Republic Act No. 7586 - "An Act Providing for the Establishment and Management of National Integrated
Protected Areas System, Defining its Scope and Coverage and for Other Purposes" .
35 See Republic Act No. 6969: An Act to Control Toxic Substances And Hazardous And Nuclear Wastes. Providing
Penalties For Violation Thereof, And For Other Purposes.
36 Minors Oposa et. al. v. Factoran. G.R. No. 101083,30 July 1993.
37 See Santiago v. Basilan, 9 SCRA 349 and People v. CFI of Quezon, BR. VII, 206 SCRA 187
49
of cases also concerning pollution39 as well as a case involving nuclear power. 40 Winding its way to the
Supreme Court are cases involving conversion of lands from agricultural to industrial or residential. 41 All
these cases however, while certainly having environmental implications, dealt with the issue from a
conflict-of-rights perspective, thus usually the ratio decidendis of these decisions were based on due
process, property rights, the Regalian Doctrine or the law on agrarian reform.
What distinguishes Oposa V. Factoran however is that it is our first case which expressly interprets the
constitutional right to a balanced and healthful ecology found in the 1987 Constitution. Oposa v.
Factoran is also the first and so far the only Philippine case which deals with the issue of how to value
our natural resources not only with respect to the present but also for the future generations. Hence, the
Oposa case is a landmark decision for this reason. As Justice Florentino Feliciano describes it in his
concurring opinion, it
is one of the most important cases decided by this Court in the last few
years. The seminal principles laid down in this decision are likely to
influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization
of all the natural resources in the territorial base of our polity.42
The Issues
At this point, I must also acknowledge my gratitude to Atty. Antonio Oposa and former DENR Secretary
Fulgencio Factoran for consenting to be reactors to this lecture. Having been the main protagonists in
the case, I am sure we will benefit from their insight as well as hindsight.
The plaintiffs in this case were minors represented by their parents, and the Philippine Ecological
Network, Inc., a non-stock, non-profit organization. The original defendant was Atty. Factoran, then
Secretary of the Department of Environment and Natural Resources (DENR). The complaint was filed
by the plaintiffs to compel the defendant to cancel all existing Timber License Agreements (TLA) and to
cease and desist from granting new applications. This complaint was dismissed by the Regional Trial
Court on the procedural ground that the complaint stated no cause of action against the defendant and
that the granting of the relief asked would result in the impairment of contracts which is prohibited by
the Constitution.
The plaintiffs in turn petitioned the Supreme Court to reverse this ruling on the ground that the trial court
gravely abused its discretion in dismissing the complaint. The Supreme Court ruled in favor of the
petitioners and remanded the case to the lower court for trial.
In its simplest formulation, the main issues in this case are whether or not the petitioners have a cause
of action and whether or not cancellation of the TLAs constitutes impairment of contracts. It is the first
issue which concerns us in this lecture as it is in resolving the issue of cause of action that the Court
interprets the constitutional right to a sound environment.
In addition to these issues, the Supreme Court also ruled on the question of whether the petitioners had
standing to file this case and on whether or not the matter at hand was a political question. While
arguably obiter, the Court's pronouncements on these points merit discussion.
The Decision
The argument of the respondents centered on the proposition that the petitioners failed to allege in their
complaint a specific legal right violated by the former for which any relief is provided by law. They also
argued that the question of whether logging should be permitted in the country is a political question
which should be properly addressed to the executive or legislative branches.
38 See Suarez v. Reyes, 7 SCRA 462, Agusmin Promotional Enterprises v. Court of Appeals 117 SCRA 369, Tan v.
Director of Forestry 125 SCRA 302
39 See Pollution Adjudication Board v. Court of Appeals 195 SCRA 112 and Mead v. Argel 115 SCRA 256.
40 TanadaV. PAEC 141 SCRA 307 (1986)
41 These cases are still at the administrativel level or in the lower courts.
42 Concurring Opinion of Justice Florentino Feliciano in Oposa v. Factoran, Supra note 10 at 1.
50
In the decision rendered by the Supreme Court, written by Justice Hilarion Davide and concurred in by
all the Justices except Justice Narvasa who did not take part as he was related to one of the petitioners
and Justice Vitug who was not yet a member when the case was deliberated upon, the Court made the
following significant statements:
First, the Supreme Court dealt with the issue of standing. Did the petitioners have standing to file this
complaint? The Court said yes, stating that the civil case was properly a class suit. According to the
Court:
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently since the
parties are so numerous, it becomes impracticable, if not totally impossible, to
bring all of them before the court.43
The Supreme Court also recognized that the children in this case correctly asserted that they represent
their generation as well as generations yet unborn. Recognizing intergenerational equity and
responsibility was a "special and novel element" in the case. According to the Court,
their personality to sue in behalf of the succeeding general ions can only
be based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned.44
Second, the Supreme Court agreed with the petitioners that they had a cause of action. According to
the Court,
[T]he complaint focuses on one specific fundamental right, the right to a

balanced and healthful ecology which, for the first time in our nations
constitutional history, is solemnly incorporated in the fundamental law.45
The Court then cited Section 16, Article II of the Constitution which provides 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.
It also pointed to Section 15, Article II which mandates the State "to protect and promote the right to
health of the people and instill health consciousness among them".
Finally, to support its proposition that there is a right to a sound environment, the Court cited Exec.
Order No. 192 (987), the Administrative Code, and the Philippine Environmental Policy, all of which
expresses a general policy of environmental protection.
In interpreting these provisions, the Supreme Court recognized the primacy and centrality of the right to
ecological security and health among the many rights assured by the Constitution. It said that:
[W]hile the right to a balanced and healthful ecology is to be found under

the declaration of Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than self preservation
and self-perpetuation - the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist
from the inception of mankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers
that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting
43 Oposa v. Factora. Supra note 10, at II.

44 Id., at 12.
45 Id., at 14
51
their continuing importance and imposing upon the state a solemn obligation
to preserve the first and protect and advance the second, the day would not
be too far when all else would be lost not only for the present generation, but
also for those to come - generations which stand to inherit nothing but parched
earth incapable of sustaining life.46
Going beyond the rhetoric and poetry of these statements, the import of the Court's statements is that
the right to a sound environment is a self-executory constitutional policy. By itself, independent of
specific statutory rights, this right is actionable. And it is actionable against the DENR Secretary who is
tasked with carrying out the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
On the matter being a political question, the Court pointed out that under Article VIII, Section 1 of the
1987 Constitution, judicial power has been expanded to include:
the duty of the courts of justice to settle actual controversies involving

rights which are legally demandable and enforceable. and to determine
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Finally, on the issue of non-impairment of contracts, the Court ruled that TLAs are no't contracts within
the scope of the constitutional prohibition, but only a license which can be withdrawn when warranted
by public interest or welfare. Even if It also observed that even if they were considered as contracts, the
non-impairment clause cannot be invoked because there is no law involved. Besides, such a law,
according to the Supreme Court, would be justified under the police power of the state.
THE LEGAL IMPLICATIONS
Coupled with the liberalization of the rule on standing, recognizing the constitutional right to a sound
environment as self-executory makes Oposa v. Factoran a truly radical case insofar at least as to its
legal implications.
Justice Feliciano, in a concurring opinion, clearly sees these implications. With all due respect to
Justice Feliciano, I think that his concurring opinion does not clarify what the Court appears to be
saying but in fact diverges substantially from the reasoning in the main decision. Indeed, a
dispassionate observer could sincerely conclude that Justice Feliciano's concurrence is in part a
dissent.
For example, on the issue of whether the petitioners had a cause of action, Justice Feliciano disagreed.
According to him, they had not identified one specific fundamental legal right on which to base their
claim. Although the right to a balanced and healthful ecology is indeed a constitutional right, nothing
could be more "comprehensive in scope and generalized in character." He disagreed that Sections 15
and 16 of Article II of the Constitution were self-executing and judicially enforceable in their present
form. The same is true for the other texts cited by the Court in its main decision.
As to legal standing, Justice Feliciano observed that locus standi "is not a function of petitioners' claim
that their suit is properly regarded as a class suit" but refers to "the legal interest in which a plaintiff
must have in the subject matter of the suit". He then pointed the broadness of the class involved in this
suit -
[B]ecause of the very broadness of the concept of "class" here

involved - membership in this "class" appears to embrace everyone
living in the country whether now or in the future - it appears to me
that everyone who may be expected to benefit from the course of action
petitioners seek ... is vested with the necessary locus standi.
The Court can be seen therefore to be recognizing a beneficiaries' right
of action in the field of environmental protection as against both the public
administrative agency directly concerned and the private persons or entities
46 Id., at 14
52
operating in the field or sector of activity involved.47
Justice Feliciano then concludes that whether such right of action "may be found under any and all
circumstances, or whether some failure to act, in the first instance on the part of the government
agency concerned must be shown" is not discussed in the decision and presumably left for future
determination in a proper proceeding.48
On the issue of whether the cancellation of TLAs is a political question, Justice Feliciano clearly agrees,
stating that
[W)hen substantive standards as general as "the right to a balanced and

healthy ecology" and "the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of discretion amounting
to lack or excess of jurisdiction," the result will be ..,to propel courts into the
uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts
have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards
are shown to exist, then the policy making departments-- the legislative and
executive departments- must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.49
Why then did Justice Feliciano concur with the decision? From my reading, I can point out two reasons.
First, he believes that such a specific right on which petitioners may base their cause of action may
exist in Philippine law, and that plaintiffs should be afforded an opportunity to demonstrate this right,
and that this opportunity was denied by granting the defendant's Motion to Dismiss. Second, Justice
Feliciano voted to grant the petition because, in his words, "the protection of the environment, including
the forest cover of our territory, is of extreme importance for the country."
In sum, what are the legal implications of Oposa v. Factoran?
First, the Supreme Court clearly recognizes the constitutional right to a sound and healthful ecology as
a self-executory and actionable right, independent of specific legal rights. Theoretically, although
probably imprudent on the part of a plaintiff or complainant, Article II Section 16 alone can be invoked to
question acts or omissions by the other branches of government. It is as self-implementing as the right
to free speech or freedom of religion and other rights found in the Bill of Rights.
It would however be imprudent on the part of environmentalists or communities to rely on this right
alone as a basis for legal action. Difficulties in determining what evidence to present would arise if such
reliance was made. An environmental case would have a much greater chance of success at the trial
level if evidence, for example, of specific violations by a TLA holder of its concession agreement or of
forestry laws be introduced. I venture to say that this is the specific legal right that Justice Feliciano
indicated may exist on which the Oposa petitioners can anchor their claim for relief.
Second, the case liberalizes standing - at least with respect to environmental disputes. The concept of
class suit recognized in this case departs from our normal understanding of the term. The explicit
recognition of the right of future generations to be represented by present generations was certainly
never taught to me in my remedial law classes.
Oposa v. Factoran is precedent-setting in that it broadens the meaning of who are "proper parties" in a
suit.50 As all lawyers know, all actions must be prosecuted and defended in the name of the real party in
interest.51 The real party in interest has always been restricted to:
...the party who stands to be benefitted or injured by the judgment or the
47 Concurring Opinion of Justice Feliciano, Supra note 16 at 1-2.

48 Id
49 Id., at 6-7
50 See Dante Rene B. Gatmaytan, Unpublished Commentary on theOposa v. Factoran Case,
LRC/KSK Files
51 RULES OF COURT. rule 3. sec. 2.
53
party entitled to the avails of the suit. "Interest" within the meaning of the
rule means material interest. an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a
mere incidental interest. xxx52
The significance of Oposa is emphasized considering the restrictive ruling of the Supreme Court in
Lozada v. Commission on Elections. 53 There, the Court denied a petition to review a decision of the
COMELEC which refused to call an election to fill vacancies in the Batasang Pambansa. According to
the Court,
...Petitioners' standing to sue may not be predicated upon an interest of the

kind alleged here. which is held in common by all members of the public
because of the necessarily abstract nature of the injury supposedly shared by
all citizens. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form
traditionally capable of judicial resolution. When the asserted harm is a
"generalized grievance" shared in substantially equal measure by all or a
large class of citizens, that harm alone normally does not warrant exercise
of jurisdiction ...Even his plea as a voter is predicated on an interest held in
common by all members of the public and does not demonstrate any injury
specially directed to him in particular.54
Finally, the Oposa v. Factoran case is precedent for the proposition that the formulation and
implementation of specific environmental policies are not exclusively within the ambit of the political
branches of our governmental system. Since a self-executory constitutional right is involved, our courts
may intervene when there is grave of abuse of discretion in denying relief based on the assertion of
such a right.
In the United States, legal standing in environment cases has long been settled. However, unlike
Oposa, standing in the U.S. is always predicated on the complainant's allegation that the action will
cause her injury whether economic, conservational, recreational, or aesthetic.55 Oposa goes beyond
U.S. environmental jurisprudence which requires that specific, material injury must still be alleged
before an action can be filed.
In sum, our constitutional policy on the environment as interpreted by the Supreme Court in Oposa v.
Factoran is as progressive and as strong as it can be. What more can we ask for?
It is at this point that we must look at constitutional policy as operational code. Because to stay on the
level of the myth system is to delude ourselves.
For example, without minimizing the significance of the victory of the plaintiffs in the Oposa case, we
must remember that the decision did not result in the cancellation of any timber license agreement and
that it took the judiciary three full years (one year by the lower court and two years by the Supreme
Court) to dispose of what was basically a procedural issue. In fact, it is highly improbable for the case to
proceed to the trial stage since the Supreme Court, as a matter of due process, ordered that all TLA
holders be impleaded as in~ispensable parties. The implication, it seems to me, is that evidence must
be shown against each TLA holder. One can only surmise how much this will cost and how much time it
will take. In the meantime, our forests continued and continues to be denuded. In fact, at an annual
28U.S. v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 and Sierra Club v.
Morton, 405 U.S. 727 cited in 61A Am Jur 2d, Pollution Control, § 35. Injury to aesthetic and
environmental interest has been recognized as laying a sufficient foundation for standing. Save the
Courthouse Committee v. Lynn, 408 F. Supp. 1323 cited in 42 U.S.C.A. 4332.deforestation rate of
100,000 hectares per annum, three hundred thousand hectares of forests were lost while the case was
52 Gan Hock v. Court of Appeals 197 SCRA 223, 230 (1991). See also Sustiguer v. Tamayo. G.R. No. 29341, 176
SCRA 579. 587 (1989). cited in Gatmaytan. Supra note 24.
53 Q.R. No. 59068. 120 SCRA 337.340 (1983). cited in Gatmaytan. Supra note 24.
54 ld. at 341-342.
55 U.S. v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 and Sierra Club v. Morton, 405 U.S.
727 cited in 61A Am Jur 2d, Pollution Control, § 35. Injury to aesthetic and environmental interest has been
recognized as laying a sufficient foundation for standing. Save the Courthouse Committee v. Lynn, 408 F. Supp.
1323 cited in 42 U.S.C.A. 4332.
54
pending from 1990-1993.56
4. THE JUDICIARY AND THE ENVIRONMENTAL DILEMMA:

THE OPERATIONAL CODE
In analyzing the operational code of the Judiciary's role in environmental protection, the practical
question that must be posed is whether the Judiciary is equipped to deal with environmental disputes.
On a more constructive note, a better way of phrasing the question is to ask what the judiciary needs so
that its involvement in such disputes would be efficient, scientifically sound and equitable.
Answering these questions require a discussion of the nature of environmental disputes.
(a) What is an environmental problem?
The classical definition of the environmental problem is that it is a "commons" question. Since the
publication of Garrett Hardin's influential article57 in 1968, the "tragedy of the commons" has become a
household word among social scientists and policymakers concerned with environmental and natural
resource problems. The concept has been used to explain overexploitation in fisheries, overgrazing, air
and water population, abuse of public lands, population problems, extinction of species, fuel wood
depletion, wildlife decline, and other problems of resource misallocation. Simply put, Hardin's paradigm
is that environmental degradation results from the open access status of common goods like air, water,
forests and other natural resources. Because these goods are seen as free goods by all actual and
potential users, there is no attempt to internalize in their usage the costs of such consumption. The
attitude of these users is "I will get my share without having to pay for it". Thus, in the free-for-all,
environmental degradation and natural resources depletion becomes inevitable.
Few essays have been as influential as Hardin's, and few ideas so quickly and widely disseminated.
But as one author would put it: "It would be difficult to locate another passage of comparable length and
fame containing as many errors."58 Few questioned Hardin's assumption of individual interest
unchecked by social relations, and his emphasis on competition (rather than cooperation) as the
overriding relationship that shaped interactions among resource users. Under this PersPective, the
kneejerk response is the immediate rejection of common property management systems as inefficient
and ecologically unsound.
The "commons" paradigm however is useful for an understanding of the environmental dilemma as, to
use an economic term, an "externalify problem" 59. We cannot deny that in the use of natural resources,
the actual cost to the whole society is usually not counted. When we allow our loggers for example to
extract our timber resources while imposing ridiculously low forest charges, we fail to make them pay
not only for the actual value of the extracted resources but also for the ecological damage their
activities inflict on our natural resource base - including among others the loss of biological diversity, the
costs of soil erosion and climate changes, and the deaths and destruction resulting from flash floods. Or
when we allow an industrial firm to pollute the air or water, we do not usually count the costs to our
health system and to the productivity of the affected populace.
The usual rationale behind allowing such externalities is that activities such as logging and industrial
production contribute to society by way of job creation and contribution to the GNP. The problem is that
in undervaluing the resources extracted or polluted and in not costing the damage or injury done we
have no real basis for comparing the costs and benefits of allowing or disallowing a particular activity.
This brings us to another way of formulating the environmental dilemma - as a problem of sustainable
development.
"Sustainable development" is a concept that was first articulated formally by the World Commission on
Environment and Development, more popularly known as the Brundtland Commission. In OUR
COMMON FUTURE, the Commission's famous document, "sustainable development" is present
without compromising the ability to meet those of the future".60
56 See MASTER PLAN FOR FORESTRY DEVELOPMENT (1990). 2.
57 Garrett Hardin. "The Tragedy of the Commons", 162 Science 1243 (1968).
58Partha Dasgupta. THE CONTROL OF RESOURCES (1982), in Runge, 6
59 See Herman Daly and John Cobb, FOR THE COMMON GOOD: REDIRECTING THE ECONOMY TOWARD
COMMUNITY, THE ENVIRONMENT AND A SUSTAINABLE FUTURE (1989), 37.
55
The Commission explains why the present generation is faced with this responsibility:
We borrow environmental capital from future generations with no

intention or prospect of repaying. They may damn us for our
spendthrift ways, but they can never collect on our debt to them.
We act as we do because we can get away with it: future generations
do not vote; they have no political or financial power; they cannot
challenge our decisions.61
Under international law, sustainable development is now an accepted legal principle. Principle 3 of the
Rio Declaration of 1992 states that
[T]he right to development must be fulfilled so as to equitably meet

developmental and environmental needs of present and future generations.62
Under Philippine Agenda 21, sustainable development has also been articulated as a guiding norm for
both economic planning and environmental regulation. In fact as early as Presidential Decree Nos.
1151 issued by former President Marcos in 1977, the concept of sustainable development was already
accepted as a policy underpinning our environmental law.63
The problem however with the norm of sustainable development is that it is difficult to operationalize.
Experience shows that even when all parties to an environmental issue agree that sustainable
development is to be the goal, divergence in particular positions with regards to the issue often remain
inevitable. While it is possible for Philippine society as an abstract collective entity to decide - through
state organs - that an energy project is required for the development needs of the country and that the
resulting environmental damage can still be absorbed by the carrying capacity of our natural resource
base, the communities affected by such projects - usually economically and politically marginalized - do
lose or find their resource base diminished.
RIGHT TO A HEALTHFUL ECOLOGY
For example, a visit today to the site of the Mt. Apo geothermal plant confirms that while it could be
argued that the project conforms to the sustainable development norm from the national or even a
Mindanao-wide perspective, it cannot be denied that the physical changes in the site has altered Mt.
Apo forever and that the communities which relied on this part of Mt. Apo for their economic, cultural
and religious needs could no longer do so. In other words, for almost every environmental issue, one
cannot still avoid the choice of which value to prioritize - environment or development?
(b) Environmental Disputes
The preceding discussion brings us to different aspects or types of the disputes that arise from the
environmental dilemma.
First, the dispute on how to measure and compare the costs and benefits of ecologically harmful
activities and the costs and benefits of preventing or regulating such activities. Cost effectiveness and
economic efficiency is a valid criterion in determining the proper approach to environmental issues. The
problem however is that cost-benefit analysis requires the valuation of all the goods that are relevant to
a particular environmental issue. Unfortunately, up to the present, economists have not really yet
agreed on how to value ecological "goods" such as biodiversity or a stable climate. Complicating
matters is the need to develop a valuation formula in which the proper time scale should span
generations, i.e. decades, even centuries. How then can we evaluate that a particular approach is truly
cost-effective from the perspective of its ultimate objective? With this difficulty, how then can we expect
60 World Commission on Environment and Development, OUR COMMON FUTURE

(1987),40.
61 341d., at 8.
62 RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT (1992).
63 See Section 1 of P.D. No. 1151.
56
a participant like the Judiciary to deal rationally with environmental disputes?
A typical example of this dispute is the debate over whether we should impose a commercial logging
ban or not. Knowing that such a ban may lead to among others wood supply problems and loss of jobs,
the costs of such a ban are obvious and definite - but the benefits - what society saves if the ban is
imposed and succeeds in helping reverse deforestation - can at the moment only be qualitative: a
chance that our forest resources may recover, a hope that ten years after the ban we can resume
timber extraction in a selective and sustainable way, the expectation that there will be no more deaths
from flash floods resulting from deforestation twenty years from now, and the optimism that one day we
will reap economic benefits from the biological and genetic resources hidden in our forests.
Second, environmental disputes are often manifested as a conflict of specific rights between conflicting
users. In forest resources, the dispute is often between commercial users such as the timber industry
and forest communities, including indigenous cultural communities who have been in the forests since
time immemorial. In energy disputes, communities that need to be relocated or whose quality of life is
adversely affected clash with national priorities such as power supply and industrialization. In pollution
disputes - involving air, water or waste - again the rights of communities conflict with the interests of
commercial users and also with the industrial goals of the country.
The usual form in which this aspect of or kind of dispute arises in our legal system is through the
resolution of a due process question. Should a timber license agreement be canceled? Should a project
under Environment Impact Assessment (EIA) be approved? Should the DENR issue a cease and desist
or closure order against a factory?
In sum, an environmental dispute involves first, a resolution of what general rights or values to prioritize
in a given concrete situation - a task which requires a cost-benefit analysis, and second, which specific
legal rights in a conflict should prevail. What the Judiciary often deals with is only the second aspect or
type of dispute. My contention is that in both aspects, the judiciary playa necessary and indispensable
role. In Oposa v. Factoran, when the case comes to trial, both aspects will be present. While we can
predict that our courts can handle the second aspect with relative ease, I am not as certain if our judges
have the necessary technical and conceptual equipment to deal with the first type of dispute.
The limitations of our judiciary also becomes obvious when we take a look at some of the perspectives
that policymakers take in deciding our specific environmental policies.
DEALING WITH ENVIRONMENTAL DISPUTES:

PERSPECTIVES AND STRATEGIES
I propose to discuss four perspectives that the judiciary or any other participant in the environmental
decision process may adopt singly or incombination. Most of these perspectives, I submit, can be
justified under the Philippine Constitution and under our environmental laws. These are:
(1) A “command and control” strategy;

(2) A market based perspective;
(3) Community Based Resource Management (CBRM); and
(4) Pollution Prevention.
My contention is that when our courts decide on environmental disputes, they cannot escape from
making a choice on which strategy to uphold. All these strategies, except probably pollution prevention,
can find a legal text in the myth system that supports it and stake-holders in environmental issues -like
the government, communities and industry – will directly or indirectly invoke one or more strategies.
(a) Command and Control
By "Command and Control", the strategy that is pursued is that of a superior body - the State laying
down specific standards that all must follow, monitors compliance with such standards and enforces
such compliance by coercive or other measures. For example: in the Philippines, the government
through the DENR establishes and enforces modes of forest utilization through such measures as
"annual allowable cut" and "reforestation requirements". In air pollution, the Environmental Management
Bureau of the DENR lays down and enforces pollution standards, i.e. what kind and how much
57
emissions a factory is allowed.
The justification for a "command and control" strategy in the Philippines is the Regalian Doctrine. This
doctrine is also a good illustration of the limited use of a "command and control strategy".
The premise of the Regalian Doctrine is that all natural resources in the territory belong to the State and
therefore private ownership or title must emanate from the State. This view is articulated in Article XII,
Section 2 of the Philippine Constitution which provides that
[A]ll 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 bythe State. With the exception of agricultural lands, all other
natural resources shall not be alienated.
As a consequence of this claim of ownership over all natural resources, the Philippine government has
historically sought to monopolize the decision process on how to utilize these resources. This in turn
has had two adverse environmental results: (a) the adoption of a short-sighted commercially biased and
extractive utilization policy because the State consistently favored commercial users, and (b) an
extremely insecure land tenure system within the forest zones.
For example, included also among lands of the public domain, because they are usually situated in
upland forest zones, are those lands which have been occupied by indigenous cultural communities
since time immemorial. By such inclusion, these forest communities have been effectively
disenfranchised of their rights to their ancestral lands, resulting in their being categorized as squatters
in their own lands. While there may be a trend towards giving indigenous cultural communities more
access to their natural resource base, as exemplified for example by Department Administrative Order
No.2 of the DENR, Series of 1993, the DENR programs remains to be based on the premise that
ancestral lands are part of the public domain.
Among the reasons that are frequently cited is the need to protect these lands, usually located in
upland forest zones, from ecological misuse and degradation. The implication is that the time-
immemorial occupants are incapable of utilizing upland forest resources in an ecologically sound
manner. This is unfortunate as it ignores the role of upland indigenes in maintaining an ecologically
sound environment. Because they have been on the land for generations, these communities possess
a wealth of local knowledge and concern, including a reverent attitude toward, as well as a duty to
conserve, the natural bounty around them. Furthermore, it must be pointed out that the monopolization
by the government of the mandate to protect the forests has clearly not yielded satisfactory results.
Forest denudation continues to escalate even as commercial users derive the most profits from upland
resources.64
From the point of view therefore of both equity and ecology, there is a need to rethink the application of
the Regalian Doctrine to ancestral lands in forest and other ecologically critical zones. Concretely, the
first step is for the Philippine government to adopt a restrictive rather than expansive interpretation of
the Regalian Doctrine, an interpretation that finds legal support in Carino v. Insular Government65 and in
the constitutional provisions recognizing the rights of indigenous cultural communities to their ancestral
domains.66
Regardless of where one stands on the Regalian Doctrine, the validity of a "command and control"
strategy as the primary tool for environmental regulation is increasingly being questioned not only in the
Philippines but globally as well. It has been criticized as inefficient well as unjust. In the Philippines, it is
also a valid question to ask whether the Philippine bureaucracy is in a position to enforce environmental
64 See Lavina, Antonio. "Recognition of Ancestral Domains: An Imperative for a Democratic Upland Resource
Management", in Our Threatened Heritage, edited by Chip Fay, a special issue of SOLIDARITY (No. 124,
October-December, 1989). published by Solidaridad Publishing House. Manila.
65 41 Phil. 935 (1909).
66 This interpretation fmds constitutional support in Article XII, Section 5 of the Philippine Constitution which
provides that the State shall protect the rights of indigenous cultural communities to their ancestral lands to ensure
their economic, social and cultural well-being.
58
legal norms given its dismal historical record.
Congress and the Executive Branch historically has supported a command and control strategy.
However, recent policies indicate a small shift in favor of market based strategies67 and community
based resource management systems.68 On the other hand, the Judiciary has been consistent in
upholding the traditional conception of the doctrine. Unless it is willing to reexamine this, I am not so
sure if it can play a positive role in operationalizing the constitutional right to a sound environment.
(b) Market Based Strategies
A market-based approach is premised on the proposition that the best way of realizing the goals of
environmental policy is to use economic incentives to encourage sustainable and ecologically-friendly
activities or economic sanctions to discourage unsustainable and pollutive actions. 69 The usual example
given of this approach is the use of taxation and subsidies. You want to prevent overlogging - tax the
activity heavily instead of prohibiting it, or give incentives for non-extensive use.
The other mechanism favored by those who advocate market-based environmental based strategies is
that of "emissions trading". Basically, this mechanism is premised on the right of industries (or states in
international environmental law) to pollute up to a certain level that the state (or the collective will of
States) considers allowable. So long as this maximum level is not exceeded, the regulatory body will
not intervene and will leave it to the industries or states on how to attain the standard at the lowest
possible cost. Thus, among them, they can trade emission rights with each other. A firm that finds it
cost-effective to install the most up-to-date technology will do so and profit because it can then sell its
emission rights rather than install the best technology.
In the U.S., the market based approach found its first national legislative articulation in the Clean Air Act
of 1991. In the Philippines, many policy recommendations made by the Natural Resources
Management Program of the DENR such as lifting of the export ban on timber and liberalization of the
forest industry follows this approach. With respect to deforestation, it is argued that the better strategy
might be to use a taxation system to discourage such activity. At the very least this would ensure that
the true costs of the logging industry's activities are borne by it and that the whole society benefits from
the activity. On the other hand, a legal framework based on economic incentives would require that
non-extractive use, particularly by forest communities, be subsidized and given financial and technical
support. However, for such a framework to be put into place, a central issue must be addressed: the
uncertainty and insecurity of land tenure in forest zones. Without land tenure security, no amount of
economic incentives will ensure sustainable utilization.
Although intended to strengthen control, centralization of proprietary rights to forest lands and
resources in the government have more often "undermined local rules governing access and use,
removed local incentives for conservation, and saddled central governments with far-flung
responsibilities beyond their administrative capabilities".70 In every country with extensive tropical
rainforests, the public sector's claims on forest lands and resources far outstrip its ability to manage or
to control resources. The effect is that the government has institutionalized an open access situation.71
In sum, the market based approach to environmental regulation requires divestment by the State of its
67See Policy Recommendations of the Policy Studies Component of the Natural Resources Management
Program summarized in its ENVIRONMENTAL ASSESSMENT – FINAL SCOPING REPORT (1993). See also
proposed Clean Air Act pending in Congress which borrows the concept of emissions trading from the U.S. Clean
Air Act.
68 See DENR Administrative Order No.2, Series of 1993 - Rules and Regulations for the Identification,
Delineation and recognition of Ancestral Land and Domain Claims. See also NIPAS Law, supra note 8.
69 For a summary of this development in U. S. environmental law, see Marshall 1. Breger, Richard B. Stewart, E.
Donald Elliott, and David Hawkins, "Providing Economic Incentives in Environmental Regulation", 8 Yale J. on
Reg. 463 (1991).
70 Roberto Repetto, THE FOREST FOR THE TREES? GOVERNMENT POUCIES AND THE MISUSE OF
FOREST RESOURCES (1988),28.
71 C. Ford Runge, "Common Property Resources In A Global Context", Working Paper, University of Minnesota
(April 1990), 18. On file at the Social Science Library, Yale University.
59
ownership claim over most natural resources and increasing the scope of resources that may be
covered by property rights. But this change or reinterpretation must be accompanied with a bias for
communities of direct users as against commercial and industrial users. A market can work only when
there is a level playing field. Unfortunately, because of the disparity in economic and cultural power,
communities are at a disadvantage when indeed divestment occurs. As a necessary step therefore,
community based resource management systems must be encouraged and supported by the state
before a market based system can really work.
(c) Community Based Resource Management
Contrary to the widely-held belief that all communally-held resources are doomed to suffer from "the
tragedy of the commons", it is now known that a wide variety of sustainable community resource
management systems do exist.72 This recent rediscovery of communal institutions as an effective
solution to the commons problem is significant in a variety of ways. These institutions may have a
valuable role to play in sustainable use planning but have usually been overlooked or underutilized in
the planning process. This has happened because of over-emphasis on the kinds of resource
management practices dominant in the Western industrialized world in which the significance of
common property institutions have declined over time.
Community based resource management systems can range from the right of the community to be
consulted before any development project is imposed on it to actually recognizing community control
and management of natural resources. Recognizing these systems would also mean developing and
accepting common property regimes in our legal system.
Runge argues that common property regimes are just as viable as their individual private property
counterparts in terms of efficiency and equity. In a number of cases, he says, communal property
structures play "a key role in the effective management of scarce natural resources, complementing
and combining with private rights to promote both equity and efficiency." 73 This can be appreciated,
however, only if a communal system is distinguished from a "free and open access system" - where
there are no rules regulating individual use rights. 74 Much of the negative understanding of communal
property regimes emanates from such a misconception.
There are four reasons why community based resource management systems may be more
economically feasible and desirable. First, such a system "can be relatively less costly to maintain and
enforce, and better adapted to local conditions". Secondly, as a consequence of the system's
institutionalization of fairness in the face of random allocation of resources, "common use rights may
contribute to social stability at the same time that they promote efficient adaptation to changing
resource availability over time". Third, such a system provides a "hedge" against individual failure. A
communal property system, in this sense, offers more security to the individual members of the
community. Fourth, and last, "the opportunity costs associated with changing established practices are
high". By this, Runge refers to the tenacity of the rules under such a society. He recognizes the linkage
between these rules and the natural and social situation from which such rules emerge. Thus he
concludes that economic development should involve the promotion of structures which take into
account and are consistent with the environment in which resource management is to occur.75
Increasingly both in Congress and the Executive Department, lip service is paid to community-based
resource management as an important element of Philippine environmental strategy. Programs like
social forestry and control or resources and the community's right to monitor and enforce environmental
norms is increasing. In many ways, the Local Government Code reflects this philosophy.
Notwithstanding this progress, in terms of actual budgetary allocation as well as emphasis in the
implementation of environmental programs, this trend to recognize community based resource
management is not reflected. The gap can be attributed to two reasons: first in the opposition of those
72See Robert Rhodes & S. J. Thompson, "Adaptive Strategies in Alpine Environments: Beyond Ecological
Particularism", 2 American Ethnologist 535; B. S. Orlove, ALPACA, SHEEP AND MEN (1977); David Guillet,
AGRARIAN REFORM AND PEASANT ECONOMY IN SOUTHERN PERU (1979); R. K. Hitchcock, "Traditional
Systems of Land Tenure and Agrarian Reform in Botswana" Journal of African Law, Vol. 24 (1981); A.Legesse,
GADA: THREE APPROACHES TO THE STUDY OF AFRICAN SOCIETY (1973)
73 Runge, Supra note 45 at 3.
74 Id.
75 Id. at 20-22.
60
vested interests who have dominated, if not monopolized, the use of our natural resources, and;
second, a shift to community based resource management requires a shift in one's fundamental
paradigm, a task that demands stretching one's legal imagination.
(d) Pollution Prevention
A final strategy that has been proposed in the global level is that of pollution prevention. Simply put,
environmental policy should just prohibit as many forms of pollution as possible. This is justified
economically under the principle that all pollution is a wasted resource and of course the ethical
justification is obvious. It is however doubtful, given the poverty of our people and our development
needs, if this is a realistic option for us. However, let me just observe that an environmental policy
characterized by pollution prevention when coupled with an extensive program of scientific and
technological development is a way by which we can leap-frog industrialization and become a post-
industrial, high technology economy.
OTHER PARTICIPANTS AND ALTERNATIVE FORUMS
At this point, let me just say a word about the other participants in the environmental decision process.
Allow me also to indicate alternative forums to the judiciary for the resolution of environmental disputes.
The executive and legislative branches are of course significant players in the area of the environment.
I cannot here present a full analysis of their roles. Suffice it to say that the executive branch -
particularly the different bureaucracies within the DENR - are the first and primary forums of most
environmental disputes. While the DENR is certainly better equipped technically to deal with these
issues, I think it is fair to observe that there is much to be done by the Department to upgrade its
organizational capabilities. In many cases, many environmental decisions by the DENR are made on
the basis of political exigency rather than aby the DENR are made on the basis of political exigency
rather than a rigorous economic and scientific analysis of issues. While most environmental decisions
must in the final analysis be political, the space for irrational external interventions such as corruption
and undue political influence becomes much larger when ignorance or acceptance of the conventional
characterizes a bureaucracy. This is not to condemn or criticize all DENR personnel as there are
responsive and creative people in the Department. I make this comment as a statement only of what
still needs to be done.
As to the legislative branch, an analysis of the environmental laws it has passed in recent years such as
the law on toxic and hazardous wastes and the National Integrated Protected Areas Act illustrates its
responsiveness to the environmental dilemma. Legislation on air pollution, on land management, a total
commercial logging ban, a new forestry code, among others - are on the way to enactment. Whether
the laws that will eventually be passed would live up to expectations remains to be seen. The budgetary
allocations however to environmental programs remains inadequate. In particular, the support given to
community-based resource management programs is so small that it cannot be really said that we are
giving this strategy a chance.
Aside from the executive and legislative branches, another alternative forum in environmental disputes
are multilateral and bilateral development assistance agencies. Whether we like it or not, institutions
like the Asian Development Bank, the World Bank and the USAID are central and crucial players in
environmental policy-making in the Philippines. By financing many environmental programs, these
entities participate decisively in the environmental decision process. And often, more than our Congress
and the DENR, these institutions are more - to use a technological term - user friendly, i.e. because of
their international political vulnerability, they can be pressured to modify, suspend or cancel the
financing of environmental programs or projects which have an adverse effect on the environment. This
reality poses important questions and dilemmas regarding national sovereignty. It also stresses the
importance of developing domestic forums as viable forums for environmental dispute resolution.
As to other stakeholders, the most important are commercial users and communities of direct users.
Commercial users include logging companies, mining companies, and energy developers. To this
sector, the challenge is to realize and accept the fact that the days of unrestrained exploitation is over.
My experience with many, not all but a majority, of those in industry is their refusal to believe this.
Hence, many commercial users, for example loggers, always go for the jugular - i.e. retain as much
power as they can without any willingness to compromise.
A recent example of this unwillingness to compromise is how the logging industry is dealing with the
61
76 See DENR Administrative Order No. 60, Series of 1993.

77 See DENR Administrative Order No. 68, Series of 1993.
78 See DENR Memorandwn Circular No.6, Series of 1994.
79 Two recent examples are the anti-logging campaigns in San Fernando, Bukidnon and
Cagayan Valley.
80 “Logging Ban on Old-Growth Forests”, Business World, 28 February 1994, 6.
81 Jose W. Diokno, "A Nation for Our Children" (1984), reprinted in A NATION FOR OUR CIDLDREN, Ed. Priscila
S. Manalang (1987), 83.
82 Homer, THE ODYSSEY, Tr. W.H.D. Rouse (1937),116.
62
Chapter Two
Institutional Framework for Environment and Natural Resources

Management
It is often said that the Philippines has comprehensive and highly advanced laws to protect
the environment and conserve natural resources, but that these laws are poorly enforced
because of financial and technical capacity limitations. The framework for implementing and
enforcing the laws is crucial in achieving the policy objectives of protecting the environment
and conserving natural resources.
2.1 Institutional framework for managing the environment and natural resources
2.1.1 Executive Branch
The Executive Branch comprises two levels of management. The national government
operates through more than twenty executive departments and specialized agencies to
deliver basic services and implement national policies, programs, and projects, including
agencies responsible for environment and natural resources, public works, transportation and
communication, trade and industry, economic and development planning, etc.
The lead environment agency is the Department of Environment and Natural Resources
(DENR), created in 1987 by the Administrative Code (Executive Order No. 192) that
consolidated several government agencies performing ENR functions. The DENR is primarily
responsible for the conservation, management, development, and proper use of the country’s
environment and natural resources, specifically forest and grazing lands, mineral resources,
and lands of the public domain, as well as the licensing and regulation of all natural
resources.
The DENR is headed by a Secretary, who is appointed by the President and in whom the
authority and responsibility for exercising the department’s mandate is vested. It consists of
the Department Proper, the staff offices, the staff bureaus, and the
regional/provincial/community natural resources office. The Department Proper consists of
the Office of the Secretary, Offices of Undersecretaries, Offices of Assistant Secretaries, the
Public Affairs Office, the Special Concerns Office, and the Pollution Adjudication Board
(PAB). The staff bureaus consist of the Forest Management Bureau (FMB), Lands
Management Bureau, Protected Areas and Wildlife Bureau (PAWB), and Ecosystems
Research and Development Bureau. Two former staff bureaus, the Mines and Geosciences
Bureau and the Environmental Management Bureau (EMB), have been converted into line
bureaus by the Mining Act and the Clean Air Act. A line bureau operates as a sub-
organization in the department with direct line of command, usually with its own
representative offices, down to the regional and field offices of the department. For field
operations, the DENR maintains 16 regional offices, 73 provincial offices, and 171 community
offices (World Bank and ADB 2007). The DENR’s Regional Environment and Natural
Resources Office is headed by a Regional Executive Director, who is assisted by four
Regional Technical Directors, one each for forestry, land management, protected areas and
wildlife, and ecosystems research. The DENR exercises its line functions through these field
offices.
There are other agencies with ENR and related functions outside of the DENR. These
include the DENR-attached agencies such as the National Mapping and Resource
Information Authority, the Natural Resources Development Corporation, the Laguna Lake
63
Development Authority, and the National Water Resources Board. The other major agencies
with ENR management functions include the Department of Agriculture (DA) and its Bureau
of Fisheries and Aquatic Resources (BFAR), the Department of Energy; the Department of
Health, the National Commission on Indigenous Peoples (NCIP), the National Power
Corporation, and the Philippine National Oil Company. Moreover, even agencies not
traditionally associated with ENR functions, such as the Department of Trade and Industry,
the Department of Transportation and Communication, and the Department of Public Works
and Highways, have been given ENR management roles under the Clean Air Act and the
Clean Water Act.
A couple of other government-owned and controlled corporations (GOCCs) participate in

ENR management, such as the Philippine Forest and the National Resources Mining and
Development Corporation. In addition, there are special multijurisdictional and coordinative
bodies with ENR functions. These include the Palawan Council for Sustainable Development,
for the province of Palawan, which was created by the Strategic Environmental Plan (SEP)
for Palawan Act (Republic Act No. 7611) to implement the SEP for Palawan. In addition,
newer laws created multisectoral bodies to govern various ENR sectors, such as the
Protected Area Management Board under the NIPAS Act, the Fisheries and Aquatic
Resources Management Councils under the Fisheries Code, the Airshed Governing Board
under the Clean Air Act, the National Solid Waste Management Commission under the Solid
Waste Management Act, and the Water Quality Management Board under the Clean Water
Act.
Local Governments
The other level is the local government, which are autonomous sub-units that exercise both
corporate and governing functions. There are three levels of local government units (LGUs):
provincial; city and municipal; and barangay or village. Currently, there are 80 provinces, 138
cities, 1496 municipalities83 and about 40,000 barangays in the Philippines.
The Local Government Code of 1992 (R.A. No. 7160) sets the general powers and functions
of LGUs, including levying taxes, generating other revenues and sharing in benefits from the
use of natural resources. Congress may delegate other powers and functions to LGUs by
special laws, such as specific responsibilities to manage natural resources and protect the
environment. Local legislative councils (Sanggunian) may enact ordinances and resolutions
consistent with the powers and functions delegated by Congress in the relevant national
laws.
Table 4. Devolved ENR functions

Law Section Function Responsible LGU
Local Sec. 17 implementation of community-based Municipality
Government (2) forestry projects which include integrated
Code, R.A. No. social forestry programs and similar
7160 (1991) projects; management and control of
communal forests with an area not
exceeding fifty (50) square kilometers;
establishment of tree parks, greenbelts, and
similar forest development projects
Sec. 17 enforcement of forestry laws limited to Province
(3) community-based forestry projects,
pollution control law, small-scale mining
law, and other laws on the protection of the
83 National Statistical Coordination Board (2011).

64
environment; and mini-hydroelectric

projects for local purposes
Sec. 484 (1) Formulation of measures for the The Local
consideration of the sanggunian and Environment and
provide technical assistance and support to Natural
the governor or mayor, as the case may be, Resources Office
in carrying out measures to ensure the
delivery of basic services and provision of
adequate facilities relative to environment
and natural resources services as provided
for under Section 17 of this Code;
(2) Development of plans and strategies

and upon approval thereof, by the governor
or mayor, as the case may be, and
implementation of the same, particularly
those which have to do with environment
and natural resources programs and
projects which the governor or mayor is
empowered to implement and which the
sanggunian is empowered to provide for
under this Code;
(3) Establishment, maintenance, protection

and preservation of communal forests,
watersheds, tree parks, mangroves,
greenbelts and similar forest projects and
commercial forest, like industrial tree farms
and agro-forestry projects;
(4) Provision of extension services to

beneficiaries of forest development projects
and technical, financial and infrastructure
assistance;
(5) Management and maintenance of seed

banks and production seedlings for forest
and tree parks;
(6) Provision of extension services to

beneficiaries of forest development projects
and rendition of assistance for natural
resources-related conservation and
utilization activities consistent with
ecological balance;
(7) Promotion of the small-scale mining and

utilization of mineral resources, particularly
mining of gold;
(8) Coordination with government agencies

and non-governmental organizations in the
implementation of measures to prevent and
65
control land, air and water pollution with the

assistance of the Department of
Environment and Natural Resources;
(9) Positioning in the frontline of the delivery

of services concerning the environment and
natural resources, particularly in the
renewal and rehabilitation of the
environment during and in the aftermath of
man-made and natural calamities and
disasters;
(10) Recommendation to the sanggunian

and advise to the governor or mayor, as the
case may be, on all matters relative to the
protection, conservation maximum
utilization, application of appropriate
technology and other matters related to the
environment and natural resources
Fisheries Code Sec. 6 With consultation with Fisheries and Concerned LGUs
Aquatic Resources Management Councils (Municipality or
(FARMCs), and determination the license City)
fees of fishery activity in municipal waters.
Sec. 8 With consultation with FARMCs, the
establishment of catch ceilings in municipal
waters and fishery management areas.
Sec. 9 In consultation with the Secretary of the
Department of Agriculture and FARMCs,
the determination of which municipal
waters, fishery management areas and
other areas reserved for the use of
municipal fisherfolk shall be affected by a
closed season.
Sec. 14 In coordination with the Department of
Agriculture, FARMCs, the private sector
and other agencies, the establishment of a
monitoring, control and surveillance system.
Sec. 15 Determination of fees for the export of all
fish and fishery products (to defray
administrative costs) and issue auxiliary
invoices.
Sec. 16 Enforcement of all fishery laws, rules and
regulations as well as valid fishery
ordinances enacted by the municipality/city
council
may group and coordinate with other LGUs
bordering contiguous fishery resources to
achieve the objectives of the integrated
fishery resource management. The
FARMCs shall serve as their venue.
Sec. 17 Municipal/City council shall have the
authority to grant fishery rights pursuant to
Art. 149 of the Local Government Code
66
Sec. 18 Municipal or city government may, pursuant

to an ordinance, authorize or permit small
and medium commercial fishing vessels to
operate in municipal waters conditionally.
Sec. 19 Maintenance of a registry of municipal
fisherfolk, who are fishing or may desire to
fish in municipal waters for the purpose of
determining priorities among them, of
limiting entry into the municipal waters, and
of monitoring fishing activities and/or other
related purposes.
In consultation with FARMCs, the
formulatation of the necessary mechanisms
for inclusion or exclusion procedures that
shall be most beneficial to resident
municipal fisherfolk.
With assistance of FARMCs, maintenance
of a registry of municipal fishing vessels by
type of gear and other boat particulars.
Sec. 22 Grant of demarcated fishery rights to fishery
organizations/cooperatives for mariculture
operation in specific areas identified by the
Department of Agriculture.
Sec. 23 With the Department of Agriculture, the
determination of whether a municipal water
is overfished or in danger of being
overfished based on available data or
information.
Prohibition or limitation of fishery activities
in overfished waters or waters in danger of
being overfished.
Sec. 24 With the Department of Agriculture,
provision of support to municipal fisherfolk
through appropriate technology and
research, credit, production and marketing
assistance and other services such as, but
not limited to training for
additional/supplementary livelihood,
Sec. 50 In coordination with the Department, other
concerned agencies and FARMCs,
determination of which abandoned,
undeveloped or underutilized fishponds
covered by Fishpond Lease Agreements
can be reverted lo their original mangrove
state.
The taking of all steps necessary to restore
such areas in their original mangrove state.
Sec. 51 Designation of zones for the construction
and operation of fish pens, fish capes, fish
traps and other structures for the culture of
fish and other fishery products.
In consultation with FARMCs, determination
of the area to be utilized by individuals, for
this purpose.
67
Sec. 52 The granting of Pearl Farm leases to

qualified persons who possess the
necessary capital and technology.
Sec. 56 In consultation with FARMCs, determination
of the distance from the defined migration
path of migratory fish species within which
there shall be no obstruction, where
construction is prohibited.
Sec. 57 Prescription of minimum standards for fish
hatcheries, fish breeding facilities and
private fishponds; and maintenance a
registry for such.
Sec. 59 Coordination with the private sector and
other concerned agencies and FARMCs in
the establishment of post-harvest facilities
for fishing communities such as, but not
limited to, municipal fish landing sites, fish
ports, ice plants and cold storage and other
fish processing establishments to serve
primarily the needs of municipal fisherfolk.
Sec. 60 Prescription of minimum standards for post-
harvest facilities such as fish processing
plants, ice plants, and cold storages, fish
ports/landings and other fishery business
establishments; and maintenance a registry
for such.
Sec. 62 Through an ordinance, penalization of
fraudulent practices and unlawful
possession or use of instruments of weights
and measures in fishery transactions.
Sec. 64 (i) Coordination of efforts relating to fishery
production with the BFAR, primary fishery
producers, FARMCs, fishery
organizations/cooperatives.
(j) coordination with the BFAR on the
maintenance of proper sanitation and
hygienic practices in fish markets and fish
landing areas.
(m) coordination with the BFAR and other
concerned agencies for the establishment
of productivity enhancing and market
development programs in fishing
communities to enable women to engage in
other fisheries/economic activities and
contribute significantly to development
efforts
(n) consultation with the BFAR in the
enforcement of all laws, formulation and
enforcement of all rules and regulations
governing the conservation and
management of fishery resources, except in
municipal waters, and to settle conflicts of
resource use and allocation
Sec. 69 Consultation, orientation and assistance to
68
fisherfolk organizations/cooperatives and

NGOs in the locality in the formation of
FARMCs
Sec. 73 Creation of the Barangay Fisheries and
Aquatic Resources Management Councils
(BFARMCs) and the Lake-wide Fisheries
and Aquatic Resources Management
Councils (LFARMCs whenever necessary.
Sec. 80 In consultation with FARMCs, the
recommendation to the Department of
Agriculture that a portion of the municipal
waters beyond 15 kilometers from the
shoreline be declared as fishery reserves
for special or limited use, for educational,
research, and/or special management
purposes.
Sec. 81 In consultation with the FARMCs, the
establishment of fishery refuges and
sanctuaries in municipal waters.
Sec. 88 Endorsement to the Department of
(1) Agriculture, the use of electricity, poisonous
or noxious substances to catch, take or
gather fish or fishery species, for research,
educational or scientific purposes only,
subject to such safeguards and conditions
deemed necessary,
Sec. 107 The consultation by the Department of
Agriculture in the issuance of Fishery
Administrative Orders or regulations for the
conservation, preservation, management
and sustainable development of fishery and
aquatic resources.
Sec. 124 Authorization of law enforcement officers of
the LGU in the enforcement of this Code
and other fishery laws, rules and
regulations.
Clean Water Act Sec. 5 Designation of Member to Governing Board Concerned LGU
of Management Area
Sec. 6 The preparation and implementation of
contingency plans and other measures…for
the protection of health and welfare of the
residents within potentially affected areas
within non-attainment areas.
Sec. 7 1. The assistance of DPWH in preparing a
national program for sewerage and septage
management
2. Appropriation of land for construction of
the sewage and/or septage treatment
facilities
3. Raising of funds to subsidize operation
and maintenance expenses of sewerage
treatment or septage facility
Sec. 8 Coordination with the Agency required to
connect existing sewage lines to sewerage
69
system
Sec. 17 The entrance into agreements with DENR
for incorporation of “programmatic
environmental impact assessment into the
preparation, and the updating or revision of
local land use plans and area development
plans”
Sec. 19 1. The assumption of some responsibility
Sec. 20 regarding some aspects of water quality
management and regulation for the Act in
its territorial jurisdiction upon determination
of the DENR of its readiness and technical
capability
2. prepare compliance scheme
Sec. 21 The coordination with DENR and other
government agencies and private sector to
formulate appropriate incentives for the
adoption procedures that will preserve and
protect our water bodies
Sec. 26 Incentivization for LGU to undertake
effective water quality management and
other programs which will implement the
Act
Sec. 27 “Non-compliance of the LGU with the Water
Quality Framework and Management Area
Action Plan” will subject local government
officials to sanctions
Clean Air Act Sec. 2 Regulation of nuisance and pollution Concerned LGUs
(Republic Act Sec. 8 The Department shall, with public
8749) participation, formulate and implement an
air quality control action plan consistent
with Sec. 7, which will include enforcement
of emission limitiations and other control
measures.
Sec. 20
Sec. 21 Ban on incineration
(b) The exhaust emission limit of gaseous
pollutants as a function of the given
reference mass, for light commercial
Sec. 24 vehicles.
Sec. 31 Pollution from smoking
Sec. 36 Measures of monitoring green house gases
Local Government Units (LGUs) shall
share the responsibility in the
management and maintenance of air
quality within their territorial jurisdiction.
Sec. 39 Public Education and Information
IRR Sec. Campaign
13
Solid waste Sec. 10 Implementation and enforcement of the All LGUs
management provisions of R.A. No. 9003 within their (Province,
under the respective jurisdictions Municipality, City,
Ecological Solid Barangay)
70
Waste
Management Act
(Republic Act Sec. 10 Segregation and collection of solid waste, Barangay
9003) specifically for biodegradable, compostable
and reusable wastes
Sec. 10 Collection of non-recyclable materials and Municipality/City
special wastes
Sec. 11 Establishment of Provincial Solid Waste Province
Management Boards
Sec. 12 Establishment of Municipal or City Solid Municipality/City
Waste Management Boards
Sec. 16 Ordering the LGUs concerned to prepare Province,
their respective 10-year solid waste Municipality/City
management plans consistent with the
national solid waste management
framework
Sec. 32 Establishment of LGU Materials Recovery Barangay/Cluster-
Facility Barangay
Sec. 44 Consolidation or coordination of efforts, All LGUs
services, and resources for purposes of
jointly addressing common solid waste
management problems and/or establishing
common waste disposal facilities
National Sec. 5 (d) LGUs shall be advised of the date of LGUs of area
Integrated (5) (i) hearing at least thirty (30) days prior and affected
Protected Areas shall be invited to submit their views on the
System Act proposed action at the hearing not later
(Republic 7586) than thirty (30) days following the date of
the hearing.
Sec. 11 The head of the LGU shall appoint a
(a) representative as a member of the
Protected Area Management Board (except
the Provincial Development Officer who
shall serve ex officio)
Magna Carta for Sec. 10 The Secretary of Trade and Industry in Concerned LGU
Countryside and consultation with the Secretaries of
Barangay Finance, Labor, and Health, and the local
Enterprises government units shall formulate and
(Kalakalan20) prepare the necessary rules and
(Republic Act regulations to implement the provisions of
6810) this Act within one hundred twenty (120)
days. The rules and regulations issued
pursuant to this section shall take effect
fifteen (15) days after publication in a
newspaper of general circulation and by
such other means as the Secretary of
Trade and Industry may deem reasonably
sufficient to give interested parties general
notice of such issuance.
2.1.2 Congress and Local Legislatures
The legislature participates in ENR management in two significant ways: through the
enactment of ENR legislation and the enactment of appropriation laws. Specific functions
71
were also imposed under certain ENR laws. A legislative enactment is necessary to establish
a protected area under the NIPAS Act. Congressional oversight committees were created
under the Clean Air Act, the Ecological Solid Waste Management Act, and the Clean Water
Act. Table 2 above lists down the major environmental laws.
Local councils (Sangguniang Panlalawigan, Sangguniang Lungsod/Bayan and Sangguniang

Barangay) exercise legislative functions pursuant to delegated powers granted by Congress.
The scope of these powers is specified in the Local Government Code.
2.1.3 Judiciary
The judiciary influences ENR management through its power of judicial review. Trial courts
have jurisdiction over criminal cases for offenses defined under ENR laws. Meanwhile, in
pollution and mining cases the DENR’s Pollution Adjudication Board and Mines Adjudication
Board have exclusive original jurisdiction, and courts only have appellate jurisdiction. Early in
2008, the Supreme Court designated 84 branches of first-level courts and 31 branches of
second level courts as special Environmental Courts, with jurisdiction to try and decide
violations of environmental laws. This was done based on an inventory and assessment of
pending environmental cases whose objective is to improve efficiency in the administration of
justice, and to provide greater access to environmental justice, by having these courts in
places where environmental violations were shown to be most frequent and by providing
judges with specialized skills and knowledge relevant to the cases prevalent in their area.
Judicial review is defined as the power to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government84. Specifically, courts (i) adjudicate “conflicts and
violations that arise out of the implementation or enforcement of laws dealing with the use of
natural resources and impact of human activities on public health and the ecosystem” 85; and
decide on the just apportionment of limited resources 86. All single first- and second-level
courts are considered special courts for this purpose.
MMDA et al. vs Concerned Citizens of Manila Bay

GR No. 171947-48, Dec. 18, 2008
The need to address environmental pollution, as a cause of climate change,

has of late gained the attention of the international community. Media have
finally trained their sights on the ill effects of pollution, the destruction of
forests and other critical habitats, oil spills, and the unabated improper
disposal of garbage. And rightly so, for the magnitude of environmental
destruction is now on a scale few ever foresaw and the wound no longer
simply heals by itself. But amidst hard evidence and clear signs of a climate
crisis that need bold action, the voice of cynicism, naysayers, and
procrastinators can still be heard.
This case turns on government agencies and their officers who, by the nature
of their respective offices or by direct statutory command, are tasked to
protect and preserve, at the first instance, our internal waters, rivers, shores,
84 Const. (1987), art. VIII, § 1 (Phil.).

85 Consuelo Ynares-Santiago, Framework for Strengthening Environmental Adjudication in the Philippines, Paper
presented at Asian Justices Forum on the Environment, Manila, July 6-7, 2007.
86 Hilario Davide, The Role of Courts in Environmental Protection, in PHILJA Judicial Journal (vol. 6, issue 20,
2004).
72
and seas polluted by human activities. To most of these agencies and their
official complement, the pollution menace does not seem to carry the high
national priority it deserves, if their track records are to be the norm. Their
cavalier attitude towards solving, if not mitigating, the environmental pollution
problem, is a sad commentary on bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past,
once brimming with marine life and, for so many decades in the past, a spot
for different contact recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of people and
institutions that could have otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned

Residents of Manila Bay filed a complaint before the Regional Trial Court
(RTC) in Imus, Cavite against several government agencies, among them the
petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay.
xxx
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered

to clean the Manila Bay and submit to the RTC a concerted concrete plan of
action for the purpose.
xxx
Generally, the writ of mandamus lies to require the execution of a ministerial

duty. A ministerial duty is one that “requires neither the exercise of official
discretion nor judgment.” It connotes an act in which nothing is left to the
discretion of the person executing it. It is a “simple, definite duty arising under
conditions admitted or proved to exist and imposed by law.” Mandamus is
available to compel action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDA’s duty to take measures and maintain
adequate solid waste and liquid disposal systems necessarily involves policy
evaluation and the exercise of judgment on the part of the agency concerned.
They argue that the MMDA, in carrying out its mandate, has to make
decisions, including choosing where a landfill should be located by
undertaking feasibility studies and cost estimates, all of which entail the
exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear
and that petitioners’ duty to comply with and act according to the clear
mandate of the law does not require the exercise of discretion. According to
respondents, petitioners, the MMDA in particular, are without discretion, for
example, to choose which bodies of water they are to clean up, or which
discharge or spill they are to contain. By the same token, respondents
maintain that petitioners are bereft of discretion on whether or not to alleviate
the problem of solid and liquid waste disposal; in other words, it is the
MMDA’s ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners’ obligation to perform their duties as
defined by law, on one hand, and how they are to carry out such duties, on
73
the other, are two different concepts. While the implementation of the
MMDA’s mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be
done is ministerial in nature and may be compelled by mandamus. We said
so in Social Justice Society v. Atienza in which the Court directed the City of
Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027
directing the three big local oil players to cease and desist from operating
their business in the so-called “Pandacan Terminals” within six months from
the effectivity of the ordinance. But to illustrate with respect to the instant
case, the MMDA’s duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as other alternative
garbage disposal systems is ministerial, its duty being a statutory imposition.
The MMDA’s duty in this regard is spelled out in Sec. 3(c) of Republic Act No.
(RA) 7924 creating the MMDA. This section defines and delineates the scope
of the MMDA’s waste disposal services to include:
Solid waste disposal and management which include formulation

and implementation of policies, standards, programs and
projects for proper and sanitary waste disposal. It shall likewise
include the establishment and operation of sanitary land fill and
related facilities and the implementation of other alternative
programs intended to reduce, reuse and recycle solid waste.
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid

Waste Management Act (RA 9003), which prescribes the minimum criteria for
the establishment of sanitary landfills, and Sec. 42, which provides the
minimum operating requirements that each site operator shall maintain in the
operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37
of RA 9003, enjoining the MMDA and local government units, among others,
after the effectivity of the law on February 15, 2001, from using and operating
open dumps for solid waste and disallowing, five years after such effectivity,
the use of controlled dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set
forth not only in the Environment Code (PD 1152) and RA 9003, but in its
charter as well. This duty of putting up a proper waste disposal system
cannot be characterized as discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public functionaries to act
officially according to their judgment or conscience. A discretionary duty is
one that “allows a person to exercise judgment and choose to perform or not
to perform.” Any suggestion that the MMDA has the option whether or not to
perform its solid waste disposal-related duties ought to be dismissed for want
of legal basis.
A perusal of other petitioners’ respective charters or like enabling statutes

and pertinent laws would yield this conclusion: these government agencies
are enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to
perform these duties.
In the light of the ongoing environmental degradation, the Court wishes to

emphasize the extreme necessity for all concerned executive departments
and agencies to immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there is a need to set
74
timetables for the performance and completion of the tasks, some of them as
defined for them by law and the nature of their respective offices and
mandates.
The importance of the Manila Bay as a sea resource, playground, and as a

historical landmark cannot be over-emphasized. It is not yet too late in the
day to restore the Manila Bay to its former splendor and bring back the plants
and sea life that once thrived in its blue waters. But the tasks ahead, daunting
as they may be, could only be accomplished if those mandated, with the help
and cooperation of all civic-minded individuals, would put their minds to these
tasks and take responsibility. This means that the State, through petitioners,
has to take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners

must transcend their limitations, real or imaginary, and buckle down to work
before the problem at hand becomes unmanageable. Thus, we must reiterate
that different government agencies and instrumentalities cannot shirk from
their mandates; they must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. We are disturbed by petitioners’ hiding behind
two untenable claims: (1) that there ought to be a specific pollution incident
before they are required to act; and (2) that the cleanup of the bay is a
discretionary duty.
WHEREFORE, judgment is hereby rendered ordering the abovenamed

defendant-government agencies to clean up, rehabilitate, and preserve
Manila Bay, and restore and maintain its waters to SB level (Class B sea
waters per Water Classification Tables under DENR Administrative Order No.
34 [1990]) to make them fit for swimming, skin-diving, and other forms of
contact recreation. xxx
In light of the Order of the Supreme Court for the responsible government agencies to clean
up Manila Bay, and recognizing that compliance will take years, the Court created the Manila
Bay Advisory Committee to assist the Court in determining compliance. Justice Presbitero J.
Velasco, Jr., who penned the decision, chairs the Advisory Committee, with members
including (then) SC Assistant Court Administrator Jose Midas P. Marquez as Vice-Chair and
former Department Environment and Natural Resources (DENR) Secretary Elisea G. Gozun,
former DENR Undersecretary Dr. Antonio G.M. La Viña, and (former) University of the
Philippines Marine Science Institute Director Dr. Gil S. Jacinto as members. All three
Committee members, who will assist in evaluating compliance by the concerned government
agencies, are environmental experts in their own fields of governance, law and natural
sciences.
2.1.4 Quasi-judicial agencies
Some executive agencies, such as the Pollution Adjudication Board and the Mines
Adjudication Board, exercise adjudication powers in relation to their function as resource
manager. The Laguna Lake Development Authority also exercises quasi-judicial functions in
conjunction with its regulatory responsibilities in keeping Laguna de Bay clean and
productive.
2.1.5 Non-government institutions
Participation by citizens and citizens’ organizations in ENR management can either be

through participation in decision-making and policy making (e.g. as member of the Protected
75
Area Management Board) or through participation in the direct management of the resource
(e.g. through community-based forest management agreement).
The private sector (generally referring to business or industry sector) participates in

environment and natural resources management in two ways: through corporate social
responsibility (CSR) programs that promote community and environmental health, and in
investing in business or industry that depend on natural resources (e.g. eco-tourism, mining,
commercial tree plantations etc). The private sector is also represented in many multisectoral
bodies created under different environmental laws.
In the last 20 years, I have been a constant homo viator, traveling all over the world mostly to work on
environmental issues. My Facebook profile says I have been to 248 cities in 45 countries, although I am
pretty sure I have been to more cities and countries than these. However, as beautiful, grand or
otherwise interesting as all these cities are, to me, there is no place like Metro Manila. After my
hometown Cagayan de Oro, it is Manila that I always look for and always in my mind, as the Hotdog
song goes.
It is not that Metro Manila is the most beautiful city in the world. In fact, it is ugly, noisy, dirty, and
messy. It has grown without design and planning, in fact against many good urban development norms.
About 13% of the national population call Metro Manila home; it accounts for about 33% of the country’s
gross domestic product (GDP), so it is no surprise that residents from Bulacan in the north, to Cavite
and Laguna in the south, and Rizal in the east, make the weekly, sometimes even daily trek to the city
for work.
Malls sprawl as apartment buildings rise; industries fade as call centers and white-collar businesses
take over; and the network of roads and highways, pipes and sewers, power lines and cell towers grow
like vines on a wall to continually enlarge Metro Manila. The view from the air reveals that Metro Manila
is a place built on water – it should therefore be managed that way. Instead, we have built on Pasig
River, Laguna Lake and other waterways and reclaimed land recklessly. We have also allowed the
proliferation of settlements in unsuitable and dangerous places.
All of these mistakes come together in the problem of pollution in Manila Bay. In 2008, the Supreme
Court had to order its clean-up and, in an unprecedented move, retained jurisdiction over the case on a
continuing mandamus until the executive branch complied with the Court's order. The key agency to
making Manila better is the Metropolitan Manila Development Authority (MMDA). The MMDA is in
charge of coordinating the successful development of the megatropolis, and delivering some basic
services common to all its constituent units, such as traffic management and water, garbage disposal
and air quality control, disaster response and urban land use and zoning regulations. While the MMDA
Chairman is not the “mayor” of Metro Manila, he still exercises similar awesome responsibilities as that
godlike mayor of the videogame SimCity, affecting the lives of over eleven million people who call Metro
Manila home. It is an unenviable task.
The MMDA has, at times, courted a measure of controversy, and some voices have clamored for its
dissolution. Such calls are misplaced, though, for even in the absence of the MMDA, Metro Manila will
still need inter-city coordination and management at a high level. Certainly the MMDA can be reformed,
augmented, and streamlined as necessary. Even controversial programs like Metro Manila
beautification should be pursued but in a just and humane manner. The rapid rise of commercial
centers like Mall of Asia and the North EDSA area, beacons of commerce like Makati and Pasig City,
call for a well-thought out traffic management and public transportation scheme that lets roads and
commuters breathe freely. As urban migration and the growth of urban population continue, residential
zones must be properly set—and enforced—with due respect to environmental management and
disaster risk reduction, to avoid another Ondoy. Garbage must be reduced and disposed of safely,
while the daily demand for water must be met without tapping wells dry. These are challenges that no
one Metro Manila mayor alone can handle.
From a psychological point of view, for residents and visitors alike to Metro Manila, the biggest
challenge is unlocking traffic in Epifanio Delos Santos Avenue (EDSA). As one colleague pointed out,
we should make solving this issue a national project because of its potential as a showcase for good
76
governance, and I agree. There is also historic value in choosing EDSA as a national project, as the
highway has become the preferred venue of our contemporary revolutions. In my view, the MMDA has
not been remiss in trying to find solutions to this problem but it has to try harder and be more creative.
Of course, it has to be consultative and get the support of the people for radical solutions as we saw
recently in the opposition to restoring the odd-even scheme for all vehicles plying the EDSA route.
The task of MMDA may be unenviable, but with a good leader at the helm, accompanied by good
policies and supported by an effective team, I have confidence that it can done. It should be so that for
generations to come, there will always be no place like Manila.
Taken from:
EAGLE EYES – Dean Tony La Viña
2 November 2010, Manila Standard Today
No Place Like Manila
77
Chapter Three
Environmental Impact Assessment and Development Planning
3.1 Rationale
In 1977, President Ferdinand Marcos laid down the foundations of a comprehensive policy to
protect the environment through a system of environmental impact assessment. The
rationale for the Philippine Environmental Policy (Presidential Decree No. 1151) was stated
as follows:
WHEREAS, the individual and, at times, conflicting demands of population

growth, urbanization, industrial expansion, rapid natural resources utilization
and increasing technological advances have resulted in a piece-meal-
approach concept of environmental protection;
WHEREAS, such tunnel-vision concept is not conducive to the attainment of

an ideal environmental situation where man and nature can thrive in harmony
with one another; and
WHEREAS, there is now an urgent need to formulate an intensive, integrated

program of environmental protection that will bring about a concerted effort
towards the protection of the entire spectrum of the environment through a
requirement of environmental impact assessments and statements;
The specific provisions of the policy already hinted at concepts of sustainable development
and intergenerational responsibility that will become buzzwords in decades to come.
Section 1. Policy. - It is hereby declared a continuing policy of the State (a) to

create, develop, maintain, and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other, (b) to
fulfill the social, economic and other requirements of present and future
generations of Filipino, and (c) to insure the attainment of an environmental
quality that is conducive to a life of dignity and well-being.
Section 2. Goal. - In pursuing this policy, it shall be the responsibility of the

Government, in cooperation with concerned private organizations and
entities, to use all practicable means, consistent with other essential
considerations of national policy, in promoting the general welfare to the end
that the Nation may (a) recognize, discharge and fulfill the responsibilities of
each generation as trustee and guardian of the environment for succeeding
generations, (b) to assure the people of a safe, decent, healthful, productive
and aesthetic environment, (c) encourage the widest exploitation of the
environment without degrading it, or endangering human life, health and
safety or creating conditions adverse to agriculture, commerce and industry,
(d) preserve important historic and cultural aspects of the Philippine heritage,
(e) attain a rational and orderly balance between population and resource
use, and (f) improve the utilization of renewable and non-renewable
resources.
Section 3. Right to a Healthy Environment. -- In furtherance of these goals

and policies, the Government recognizes the right of the people to a healthy
environment. It shall be the duty and responsibility of each individual to
78
contribute to the preservation and enhancement of the Philippine

environment.
Section 4. Environmental Impact Statements. -- Pursuant to the above

enunciated policies and goals, all agencies and instrumentalities of the
national government, including government-owned or controlled corporations,
as well as private corporations, firms and entities shall prepare, file and
include in every action, project or undertaking which significantly affects the
quality of the environment a detailed statement on:
 the environmental impact of the proposed action, project or
undertaking;
 any adverse environmental effect which cannot be avoided should the
proposal be implemented;
 alternative to the proposed action;
 a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement of
the long-term productivity of the same; and
 whenever a proposal involve the use of depletable or non-renewable
resources, a finding must be made that such use and commitment are
warranted.
Before an environmental impact statement is issued by a lead agency, all

agencies having jurisdiction over, or special expertise on, the subject matter
involved shall comment on the draft environmental impact statement made by
the lead agency within thirty (30) days from receipt of the same.
The simple requirement for an environmental impact statement has now become an
elaborate process of scientific study, review and stakeholder participation in the evaluation
and approval of development activities that have potential negative impacts on the
environment.
The Revised Procedural Manual for DAO 2003-30 defines what an EIA is and its purpose:
Definition - An Environmental Impact Assessment (EIA) is a “process that

involves predicting and evaluating the likely impacts of a project (including
cumulative impacts) on the environment during construction, commissioning,
operation and abandonment. It also includes designing appropriate
preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the community’s welfare”.
Purpose of the EIA Process - As a basic principle, EIA is used to enhance

planning and guide decision-making. In this Manual, EIA is primarily
presented in the context of a requirement to integrate environmental
concerns in the planning process of projects at the feasibility stage. Through
the EIA Process, adverse environmental impacts of proposed actions are
considerably reduced through a reiterative review process of project siting,
design and other alternatives, and the subsequent formulation of
environmental management and monitoring plans. A positive determination
by the DENR-EMB results to (sic) the issuance of an Environmental
Compliance Commitment (ECC) document, to be conformed to by the
Proponent and represents the project’s Environmental Compliance
Certificate. The release of the ECC allows the project to proceed to the next
stage of project planning, which is the acquisition of approvals from other
79
government agencies and LGUs, after which the project can start
implementation.
The EIA Process in Relation to the Project Cycle - a) The EIA study shall
determine the environmental impacts of the project and shall provide
recommendations/guidance at various stages of the project cycle. It is during
the Feasibility Study (FS) stage when a Proponent defines its range of
actions and consider project alternatives, thus, it is the most ideal stage in the
project cycle wherein the EIA study will have most added value. EIA
documents are ideally prepared when prospective proposals are more
concrete than mere concept and are preferably available before the project
has reached a stage of investment or commitment towards implementation.
Proponents are in fact directed under Malacanang Administrative Order No.
42 to conduct simultaneously the environmental impact study and the project
planning or Feasibility Study (FS).
xxx
The Environmental Impact Statement that is based on an EIA process is a generic tool to be
used by project proponents in evaluating the potential environmental effects of their proposed
projects. While this is a useful tool, it does not describe the specific targets of government in
pursuing economic development while protecting the environment. For that we need to look
at the development plans of government, specifically, the national development plan and
local development plans of LGUs.
Section 3.2 looks at the legal requirements for the project-based EIA process, and the
requirements and guidelines for local development planning. Section 3.3 provides a
snapshot of the Philippine Development Plan (2011-2016) as it relates to the goals of
protecting the environment and conserving natural resources.
3.2 Legal framework
Presidential Decree No. 1586 provides the legal basis for requiring an EIA that the project
proponent then reports to the government to secure an Environmental Compliance
Certificate. There is a very wide range of projects covered by the System and each type of
project may require project-specific studies. The President listed down the various
categories of environmentally critical projects and well as areas that are most vulnerable
(environmentally critical) to ensure careful consideration of the impacts of development
activities on the environment.
Establishing An Environmental Impact Statement System xxx

Presidential Decree No. 1586 (1978)
Section 1. Policy. - It is hereby declared the policy of the State to attain and
maintain a rational and orderly balance between socio-economic growth and
environmental protection.
Section 2. Environmental Impact Statement System. - There is hereby
established a Environmental Impact Statement System founded and based
on the environmental impact statement required, under Section 4 of
Presidential Decree No. 1151, of all agencies and instrumentalities of the
national government, including government- owned or controlled
corporations, as well as private corporations, firms and entities for every
proposed project and undertaking which significantly affect the quality of the
80
environment.
xxx
Section 4. Presidential Proclamation of Environmentally Critical Areas and
Projects. - The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by
proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or
area without first securing an Environmental Compliance Certificate issued by
the President or his duly authorized representative. xxx
Section 5. Environmentally Non-Critical Projects. - All other projects,
undertakings and areas not declared by the Presidents as environmentally
critical shall be considered as non-critical and shall not be required to submit
an environmental impact statement. The National Environmental Protection
Council, thru the Ministry of Human Settlements may however require non-
critical projects and undertakings to provide additional environmental
safeguards as it may deem necessary.
Section 9. Penalty for Violation. - Any person, corporation or partnership
found violating Section 4 of this Decree, or the terms and conditions in the
issuance of the Environmental Compliance Certificate, or of the standards,
rules and regulations issued by the National Environmental Protection
Council (now the Environmental Management Bureau- DENR) pursuant to
this Decree shall be punished the suspension or cancellation of his/its
certificate and/or a fine in an amount not to exceed fifty thousand pesos
(50,000.00) for every violation thereof, at the discretion of the National
Environmental Protection Council.
Section 10. Environmental Revolving Fund. - Proceeds from the penalties
prescribed in the preceding Section 9 and other penalties imposed by the
National Pollution Control Commission (now EMB-DENR) as authorized in
P.D. 984 shall be automatically appropriated into an Environment Revolving
Fund hereby created as an exemption to P.D. 711 and P.D. 1234. The fund
shall be used exclusively for the operations of the National Environmental
Protection Council and the National Pollution Control Commission in the
implementation of this Decree. The rules and regulations for the utilization of
this fund shall be formulated by the Ministry of Human Settlements and
submitted to the President for approval.
Based on Section 4 of PD 1586, Presidential Proclamation No. 2146 was issued on

December 14, 1981, proclaiming the following areas and types of projects as environmentally
critical and within the scope of the Environmental Impact Statement System:
A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries
b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants
II. Resource Extractive Industries
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a. Major mining and quarrying projects

b. Forestry projects
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery Projects
1. Dikes for/and fishpond development projects
III. Infrastructure Projects

a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)
c. Major reclamation projects
d. Major roads and bridges
B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves,
wildlife preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened
species of indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or
tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic
hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10.Water bodies characterized by one or any combination of the following
conditions;
a. tapped for domestic purposes
b. within the controlled and/or protected areas declared by
appropriate authorities
c. which support wildlife and fishery activities
11.Mangrove areas characterized by one or any combination of the
following conditions:
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds
and storm floods;
e. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any combinations of the following
conditions:
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
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Implementing Rules and Regulations (IRR) for the

Philippine Environmental Impact Statement (EIS) System
DENR Administrative Order No. 2003-30
Section 1. Basic Policy and Operating Principles

Consistent with the principles of sustainable development, it is the policy of
the DENR to implement a systems-oriented and integrated approach to the
EIS system to ensure a rational balance between socio-economic
development and environmental protection for the benefit of present and
future generations.
The following are the key operating principles in the implementation of the
Philippine EIS System:
a) The EIS System is concerned primarily with assessing the direct and
indirect impacts of a project on the biophysical and human
environment and ensuring that these impacts are addressed by
appropriate environmental protection and enhancement measures.
b) The EIS System aids proponents in incorporating environmental
considerations in planning their projects as well as in determining the
environment’s impact on their project.
c) Project proponents are responsible for determining and disclosing all
relevant information necessary for a methodical assessment of the
environmental impacts of their projects;
d) The review of the EIS by EMB shall be guided by three general criteria:
(1) that environmental considerations are integrated into the overall
project planning, (2) that the assessment is technically sound and
proposed environmental mitigation measures are effective, and (3) that
social acceptability is based on informed public participation;
e) Effective regulatory review of the EIS depends largely on timely, full,
and accurate disclosure of relevant information by project proponents
and other stakeholders in the EIA process;
f) The social acceptability of a project is a result of meaningful public
participation, which shall be assessed as part of the Environmental
Compliance Certificate (ECC) application, based on concerns related
to the project’s environmental impacts;
g) The timelines prescribed by this Order, within which an Environmental
Compliance Certificate must be issued or denied, apply only to
processes and actions within the Environmental Management Bureau’s
(EMB) control and do not include actions or activities that are the
responsibility of the proponent.
Section 2. Objective
The objective of this Administrative Order is to rationalize and streamline the
EIS System to make it more effective as a project planning and management
tool by:
h) Making the System more responsive to the demands and needs of the
project proponents and the various stakeholders;
i) Clarifying the coverage of the System, and updating it to take into
consideration industrial and technological innovations and trends;
j) Standardizing requirements to ensure focus on critical environment
parameters;
83
k) Simplifying procedures for processing ECC applications, and

establishing measures to ensure adherence to ECC conditions by
project proponents, and
l) Assuring that critical environmental concerns are addressed during
project development and implementation.
xxx
Section 4. Scope of the EIS System

4.1 In general, only projects that pose potential significant impact to the
environment shall be required to secure ECC’s. In coordination with the
Department of Trade and Industry (DTI) and other concerned government
agencies, the EMB is authorized to update or make appropriate revisions to
the technical guidelines for EIS System implementation.
4.2 The issuance of ECC or CNC for a project under the EIS System does
not exempt the proponent from securing other government permits and
clearances as required by other laws.
In determining the scope of the EIS System, two factors are considered: (i)
the nature of the project and its potential to cause significant negative
environmental impacts, and (ii) the sensitivity or vulnerability of environmental
resources in the project area.
4.3 The specific criteria for determining projects or undertakings to be

covered by the EIS System are as follows:
1. Characteristics of the project or undertaking
 Size of the project
 Cumulative nature of impacts vis-à-vis other projects
 Use of natural resources
 Generation of waste and environment-related nuisance
 Environment-related hazards and risk of accidents
2. Location of the Project
 Vulnerability of the project area to disturbances due to its ecological
 importance, endangered or protected status
 Conformity of the proposed project to existing land use, based on
 approved zoning or on national laws and regulations
 Relative abundance, quality and regenerative capacity of natural
resources in the area, including the impact absorptive capacity of the
environment
3. Nature of the potential impact
 Geographic extent of the impact and size of affected population
 Magnitude and complexity of the impact
 Likelihood, duration, frequency, and reversibility of the impact
The following are the categories of projects/undertakings under the EIS

system:
Category A. Environmentally Critical Projects (ECPs) with significant potential

to cause negative environmental impacts
Category B. Projects that are not categorized as ECPs, but which may cause
negative environmental impacts because they are located in Environmentally
Critical Areas (ECA's)
84
Category C. Projects intended to directly enhance environmental quality or

address existing environmental problems not falling under Category A or B.
Category D. Projects unlikely to cause adverse environmental impacts.
4.4 Proponents of co-located or single projects that fall under Category A and
B are required to secure ECC. For co-located projects, the proponent has the
option to secure a Programmatic ECC. For ecozones, ECC application may
be programmatic based on submission of a programmatic EIS, or locator-
specific based on submission of project EIS by each locator.
4.5 Projects under Category C are required submit Project Description.
4.6 Projects classified under Category D may secure a CNC. The EMB-
DENR, however, may require such projects or undertakings to provide
additional environmental safeguards as it may deem necessary.
4.7 Projects/undertakings introducing new technologies or construction

technique but which may cause significant negative environmental impacts
shall be required to submit a Project Description which will be used as basis
by EMB for screening the project and determining its category.
5.2.1. Environmental Impact Statement (EIS).

The EIS should contain at least the following:
1. EIS Executive Summary;
2. Project Description;
3. Matrix of the scoping agreement identifying critical issues and
concerns,
as validated by EMB;
4. Baseline environmental conditions focusing on the sectors (and
resources) most significantly affected by the proposed action;
5. Impact assessment focused on significant environmental impacts (in
relation to project construction/commissioning, operation and
decommissioning), taking into account cumulative impacts;
6. Environmental Risk Assessment if determined by EMB as necessary
during scoping;
7. Environmental Management Program/Plan;
8. Supporting documents, including technical/socio-economic data
used/generated; certificate of zoning viability and municipal land use
plan;
and proof of consultation with stakeholders;
9. Proposals for Environmental Monitoring and Guarantee Funds
including
justification of amount, when required;
10. Accountability statement of EIA consultants and the project proponent;
and
11. Other clearances and documents that may be determined and agreed
upon during scoping.
5.2.2. Initial Environmental Examination (IEE) Report

IEE Report is similar to an EIS, but with reduced details of data and depth of
assessment and discussion.
85
It may be customized for different types of projects under Category B. The

EMB shall coordinate with relevant government agencies and the private
sector to customize and update IEE Checklists to further streamline ECC
processing, especially for small and medium enterprises.
xxx
5.2.5. Environmental Performance Report and Management Plan

(EPRMP) .
The EPRMP shall contain the following:
1. Project Description;
2. Baseline conditions for critical environmental parameters;
3. Documentation of the environmental performance based on the
current/past environmental management measures implemented;
4. Detailed comparative description of the proposed project expansion
and/or process modification with corresponding material and energy
balances in the case of process industries, and
5. EMP based on an environmental management system framework and
standard set by EMB.
5.2.6. Project Description (PD)

The PD shall be guided by the definition of terms and shall contain the
following:
1. Description of the project;
2. Location and area covered;
3. Capitalization and manpower requirement;
4. For process industries, a listing of raw materials to be used, description
of
the process or manufacturing technology, type and volume of products
and
discharges:
5. For Category C projects, a detailed description on how environmental
efficiency and overall performance improvement will be attained, or
how an existing environmental problem will be effectively solved or
mitigated by the project, and
6. A detailed location map of the impacted site showing relevant features
(e.g. slope, topography, human settlements).
7. Timelines for construction and commissioning
5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the
EIS review is mandatory unless otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory unless specifically required
by EMB.
Proponents should initiate public consultations early in order to ensure that

environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management plan.
All public consultations and public hearings conducted during the EIA
process are to be documented. The public hearing/ consultation Process
report shall be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process.
5.3 Public Hearing / Consultation Requirements
86
For projects under Category A-1, the conduct of public hearing as part of the
EIS review is mandatory unless otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory unless specifically required
by EMB.
Proponents should initiate public consultations early in order to ensure that

environmentally relevant concerns of stakeholders are taken into
consideration in the EIA study and the formulation of the management plan.
All public consultations and public hearings conducted during the EIA
process are to be documented. The public hearing/ consultation Process
report shall be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process.
5.4 Documentation Requirements for DENR-EMB and EIA Reviewers

The EMB Central Office as well as the EMB Regional Offices shall document
the proceedings of the ECC application process and shall set up and
maintain relevant information management systems. The documentation
shall, at a minimum, include the following:
5.4.1. Review Process Report

This is to be prepared by the EMB Central or EMB RO. It is to be forwarded
to the DENR Secretary or RD as reference for decision-making and
maintained as part of the records on the ECC application. The report should
contain at least the following:
1. Summary of the environmental impacts of the undertaking, along with
the proposed mitigation and enhancement measures;
2. Key issues/concerns and the proponent's response to these;
3. Documentation of compliance with procedural requirements;
4. Acceptability of proposed EMP including the corresponding cost of
mitigation, EGF and EMF if required;
5. Key bases for the decision on the ECC application.
5.4.2. EIARC Report

This report, to be prepared by the EIA Review Committee, forms part of the
EIS review documentation. The EIARC Report shall be written by the
designated member of the EIARC and signed by all the members within five
days after the final review meeting. If an EIARC member dissents, he or she
must submit a memorandum to the EMB Director through the EIARC
Chairman his or her reasons for dissenting.
At a minimum the EIARC report should contain:
1. Detailed assessment of the proposed mitigation and enhancement
measures for the identified environmental impacts and risks;
2. Description of residual or unavoidable environmental impacts despite
proposed mitigation measures;
3. Documentation of compliance with technical/substantive review
criteria;
4. Key issues/concerns and the proponent's response to these, including
social acceptability measures;
5. Assessment of the proposed EMP (including risk
reduction/management
plan) and amounts proposed for the Environmental Guarantee Fund
and
the Environmental Monitoring Fund, and
6. Recommended decision regarding the ECC application as well as
87
proposed ECC conditions.
5.4.3. Decision Document

This is an official letter regarding the decision on the application. It may be in
the form of an Environmental Compliance Certificate or a Denial Letter. The
ECC shall contain the scope and limitations of the approved activities, as well
as conditions to ensure compliance with the Environmental Management
Plan. The ECC shall also specify the setting up of an EMF and EGF, if
applicable. No ECC shall be released until the proponent has settled all
liabilities, fines and other obligations with DENR.
A Denial Letter on the other hand shall specify the bases for the decision.
The ECC or Denial Letter shall be issued directly to the project proponent or
its duly authorized representative, and receipt of the letter shall be properly
documented.
The ECC of a project not implemented within five years from its date of
issuance is deemed expired. The Proponent shall have to apply for a new
ECC if it intends to pursue the project. The reckoning date of project
implementation is the date of ground breaking, based on the proponent’s
work plan as submitted to the EMB.
xxx
Section 9. Monitoring of Projects with ECCs

Post ECC monitoring of projects shall follow these guidelines. Other details
on requirements for monitoring of projects with ECC’s shall be stipulated in a
procedural manual to be formulated by EMB.
9.1 Multipartite Monitoring Team

For projects under Category A, a multi-partite monitoring team (MMT) shall
be formed immediately after the issuance of an ECC. Proponents required to
establish an MMT shall put up an Environmental Monitoring Fund (EMF) not
later than the initial construction phase of the project.
The MMT shall be composed of representatives of the proponent and of

stakeholder groups, including representatives from concerned LGU's, locally
accredited NGOs/POs, the community, concerned EMB Regional Office,
relevant government agencies, and other sectors that may be identified
during the negotiations. The team shall be tasked to undertake monitoring of
compliance with ECC conditions as well as the EMP. The MMT shall submit a
semi-annual monitoring report within January and July of each year.
The EMB shall formulate guidelines for operationalizing area-based or

cluster- based MMT. The Bureau may also develop guidelines for delegating
monitoring responsibilities to other relevant government agencies as may be
deemed necessary.
For projects whose significant environmental impacts do not persist after the
construction phase or whose impacts could be addressed through other
regulatory means or through the mandates of other government agencies,
the operations of MMT may be terminated immediately after construction or
after a reasonable period during implementation.
9.2 Self-monitoring and Third Party Audit
88
The proponent shall also conduct regular self-monitoring of specific

parameters indicated in the EMP through its environmental unit. The
proponent’s environmental unit shall submit a semi-annual monitoring report
within January and July of each year.
For projects with ECCs issued based on a PEPRMP, EPRMP, or an EMS-

based EMP, a third party audit may be undertaken by a qualified
environmental or EMS auditor upon the initiative of the proponent and in lieu
of forming an MMT. The said proponent shall submit to EMB a copy of the
audit findings and shall be held accountable for the veracity of the report. The
EMB may opt to validate the said report.
9.3 Environmental Guarantee Fund

An Environmental Guarantee Fund (EGF) shall be established for all co-
located or single projects that have been determined by DENR to pose a
significant public risk or where the project requires rehabilitation or
restoration. An EGF Committee shall be formed to manage the fund. It shall
be composed of representatives from the EMB Central Office, EMB Regional
Office, affected communities, concerned LGU's, and relevant government
agencies identified by EMB.
An integrated MOA on the MMT-EMF-EGF shall be entered into among the

EMB Central Office, EMB Regional Office, the proponent, and
representatives of concerned stakeholders.
To supplement the details provided in the Implementing Rules and Regulations of the EIS
System, and to facilitate the preparation EIAs and processing of ECCs, the DENR adopted a
procedural manual that guides preparers and evaluators step-by-step in complying with the
requirements (Revised Procedural Manual for DAO 2003-30, August 2007).
In the case of Republic vs City of Davao, the Supreme Court had an opportunity to scrutinize
the power of the DENR in deciding what to require of a development project that has
potential negative environmental impacts.
Republic vs. City of Davao

G.R. No. 148622, September 12, 2002
xxx On August 11, 2000, respondent filed an application for a Certificate of
Non-Coverage (CNC) for its proposed project, the Davao City Artica Sports
Dome, with the Environmental Management Bureau (EMB), Region XI.
Attached to the application were the required documents for its issuance,
namely, a) detailed location map of the project site; b) brief project
description; and c) a certification from the City Planning and Development
Office that the project is not located in an environmentally critical area (ECA).
The EMB Region XI denied the application after finding that the proposed
project was within an environmentally critical area and ruled that, pursuant to
Section 2, Presidential Decree No. 1586, otherwise known as the
Environmental Impact Statement System, in relation to Section 4 of
Presidential Decree No, 1151, also known as the Philippine Environment
Policy, the City of Davao must undergo the environmental impact
assessment (EIA) process to secure an Environmental Compliance
89
Certificate (ECC), before it can proceed with the construction of its project.
Believing that it was entitled to a Certificate of Non-Coverage, respondent
filed a petition for mandamus and injunction with the Regional Trial Court of
Davao, docketed as Civil Case No. 28,133-2000. It alleged that its proposed
project was neither an environmentally critical project nor within an
environmentally critical area; thus it was outside the scope of the EIS system.
Hence, it was the ministerial duty of the DENR, through the EMB-Region XI,
to issue a CNC in favor of respondent upon submission of the required
documents.
The Regional Trial Court rendered judgment in favor of respondent,
xxx
With the supervening change of administration, respondent, in lieu of a
comment, filed a manifestation expressing its agreement with petitioner that,
indeed, it needs to secure an ECC for its proposed project. It thus rendered
the instant petition moot and academic. However, for the guidance of the
implementors of the EIS law and pursuant to our symbolic function to educate
the bench and bar, we are inclined to address the issue raised in this petition.
Section 15 of Republic Act 7160, otherwise known as the Local Government
Code, defines a local government unit as a body politic and corporate
endowed with powers to be exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary. Governmental
functions are those that concern the health, safety and the advancement of
the public good or welfare as affecting the public generally. Proprietary
functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit. When
exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate
activities, it acts as an agent of the community in the administration of local
affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs
to promote the people’s right to a balanced ecology. Pursuant to this, an
LGU, like the City of Davao, cannot claim exemption from the coverage of PD
1586. As a body politic endowed with governmental functions, an LGU has
the duty to ensure the quality of the environment, which is the very same
objective of PD 1586.
xxx
Section 4 of PD 1586 clearly states that “no person, partnership or
corporation shall undertake or operate any such declared environmentally
critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized representative.” The
Civil Code defines a person as either natural or juridical. The state and its
political subdivisions, i.e., the local government units are juridical persons.
Undoubtedly therefore, local government units are not excluded from the
coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement
the policy of the state to achieve a balance between socio-economic
development and environmental protection, which are the twin goals of
sustainable development. The above-quoted first paragraph of the Whereas
clause stresses that this can only be possible if we adopt a comprehensive
and integrated environmental protection program where all the sectors of
90
the community are involved, i.e., the government and the private sectors. The
local government units, as part of the machinery of the government, cannot
therefore be deemed as outside the scope of the EIS system.
The foregoing arguments, however, presuppose that a project, for which an
Environmental Compliance Certificate is necessary, is environmentally critical
or within an environmentally critical area. In the case at bar, respondent has
sufficiently shown that the Artica Sports Dome will not have a significant
negative environmental impact because it is not an environmentally critical
project and it is not located in an environmentally critical area. In support of
this contention, respondent submitted the following:
1. Certification from the City Planning and Development Office that
the project is not located in an environmentally critical area;
2. Certification from the Community Environment and Natural
Resources Office (CENRO-West) that the project area is within the 18-30%
slope, is outside the scope of the NIPAS (R.A. 7586), and not within a
declared watershed area; and
3. Certification from PHILVOCS that the project site is thirty-seven
(37) kilometers southeast of the southernmost extension of the Davao River
Fault and forty-five (45) kilometers west of the Eastern Mindanao Fault; and
is outside the required minimum buffer zone of five (5) meters from a fault
zone.
The trial court, after a consideration of the evidence, found that the Artica
Sports Dome is not within an environmentally critical area. Neither is it an
environmentally critical project. It is axiomatic that factual findings of the trial
court, when fully supported by the evidence on record, are binding upon this
Court and will not be disturbed on appeal. This Court is not a trier of facts.
xxx
Under Article II, Section 1, of the Rules and Regulations Implementing PD
1586, the declaration of certain projects or areas as environmentally critical,
and which shall fall within the scope of the Environmental Impact Statement
System, shall be by Presidential Proclamation, in accordance with Section 4
of PD 1586 quoted above.
Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981,
proclaiming the following areas and types of projects as environmentally
critical and within the scope of the Environmental Impact Statement System
established under PD 1586:
xxx
The Artica Sports Dome in Langub does not come close to any of the
projects or areas enumerated above. Neither is it analogous to any of them.
It is clear, therefore, that the said project is not classified as environmentally
critical, or within an environmentally critical area. Consequently, the DENR
has no choice but to issue the Certificate of Non-Coverage. It becomes its
ministerial duty, the performance of which can be compelled by writ of
mandamus, such as that issued by the trial court in the case at bar.
In the case above, it seems that the Court made a technical evaluation that the project was
not environmentally critical or located in an environmentally critical area. How did it
determine this factual (and technical) issue? Should it have been more appropriate for the
91
Court to allow the DENR to modify its decision, since it is the agency vested with the power
to evaluate and decide?
In a more recent case, the issue of the enforcement of a reclamation project in the Province
of Aklan, specifically Boracay Island, was raised and decided upon by the Supreme Court. In
this case, the actions of the DENR as the administrator of the EIS system, and the Province
of Aklan as the project proponent, were called into question.
Boracay Foundation Inc. vs. The Province of Aklan represented by

Governor Carlito S. Marquez, The Philippine Reclamation Authority,
and the DENR-EMB (Region VI)
G.R. No. 196870, June 26, 2012
Leonardo-De Castro, J:

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-
stock domestic corporation. Its primary purpose is “to foster a united,
concerted and environment-conscious development of Boracay Island,
thereby preserving and maintaining its culture, natural beauty and ecological
balance, marking the island as the crown jewel of Philippine tourism, a prime
tourist destination in Asia and the whole world.” It counts among its members
at least sixty (60) owners and representatives of resorts, hotels, restaurants,
and similar institutions; at least five community organizations; and several
environmentally-conscious residents and advocates.

Respondent Province of Aklan (respondent Province) is a political
subdivision of the government created pursuant to Republic Act No. 1414,
represented by Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly
called the Public Estates Authority (PEA), is a government entity created by
Presidential Decree No. 1084, which states that one of the purposes for
which respondent PRA was created was to reclaim land, including foreshore
and submerged areas. PEA eventually became the lead agency primarily
responsible for all reclamation projects in the country under Executive Order
No. 525, series of 1979. In June 2006, the President of the Philippines
issued Executive Order No. 543, delegating the power “to approve
reclamation projects to PRA through its governing Board, subject to
compliance with existing laws and rules and further subject to the condition
that reclamation contracts to be executed with any person or entity (must) go
through public bidding.”

Respondent Department of Environment and Natural Resources –
Environmental Management Bureau (DENR-EMB), Regional Office VI
(respondent DENR-EMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental compliance certificates
regarding projects that require the environment’s protection and
management in the region.
xxx
Boracay Island (Boracay), a tropical paradise located in the Western Visayas

region of the Philippines and one of the country’s most popular tourist
destinations, was declared a tourist zone and marine reserve in 1973 under
92
Presidential Proclamation No. 1801. The island comprises the barangays of

Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in
the province of Aklan.
xxx
More than a decade ago, respondent Province built the Caticlan Jetty Port
and Passenger Terminal at Barangay Caticlan to be the main gateway to
Boracay. It also built the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving end for tourists in Boracay. Respondent
Province operates both ports “to provide structural facilities suited for locals,
tourists and guests and to provide safety and security measures.”

In 2005, Boracay 2010 Summit was held and participated in by
representatives from national government agencies, local government units
(LGUs), and the private sector. Petitioner was one of the organizers and
participants thereto. The Summit aimed “to re-establish a common vision of
all stakeholders to ensure the conservation, restoration, and preservation of
Boracay Island” and “to develop an action plan that [would allow] all sectors
to work in concert among and with each other for the long term benefit and
sustainability of the island and the community.” The Summit yielded a
Terminal Report stating that the participants had shared their dream of
having world-class land, water and air infrastructure, as well as given their
observations that government support was lacking, infrastructure was poor,
and, more importantly, the influx of tourists to Boracay was increasing. The
Report showed that there was a need to expand the port facilities at Caticlan
due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the
boat ride going to the island.
The Sangguniang Barangay of Caticlan, Malay Municipality,

issued Resolution No. 13, s. 2008 on April 25, 2008 stating that it had
learned that respondent Province had filed an application with the DENR for
a foreshore lease of areas along the shorelines of Barangay Caticlan, and
manifesting its strong opposition to said application, as the proposed
foreshore lease practically covered almost all the coastlines of
said barangay, thereby technically diminishing its territorial jurisdiction, once
granted, and depriving its constituents of their statutory right of preference in
the development and utilization of the natural resources within its
jurisdiction.
xxx
On November 20, 2008, the Sangguniang Panlalawigan of respondent

Province approved Resolution No. 2008-369, formally authorizing Governor
Marquez to enter into negotiations towards the possibility of effecting self-
liquidating and income-producing development and livelihood projects to be
financed through bonds, debentures, securities, collaterals, notes or other
obligations as provided under Section 299 of the Local Government Code,
with the following priority projects: (a) renovation/rehabilitation of the
Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b)
reclamation of a portion of Caticlan foreshore for commercial purposes.
xxx
93
Governor Marquez sent a letter to respondent PRA on March 12, 2009

expressing the interest of respondent Province to reclaim about 2.64
hectares of land along the foreshores of Barangay Caticlan, Municipality of
Malay, Province of Aklan.
In April 2009, respondent Province entered into an agreement with the

Financial Advisor/Consultant that won in the bidding process held a month
before, to conduct the necessary feasibility study of the proposed project for
the Renovation/Rehabilitation of the Caticlan Passenger Terminal Building
and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and
Reclamation of a Portion of Foreshore for Commercial Purposes (the
Marina Project), in Malay, Aklan.

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of
respondent Province issued Resolution No. 2009–110, which authorized
Governor Marquez to file an application to reclaim the 2.64 hectares of
foreshore area in Caticlan, Malay, Aklan with respondent PRA.
xxx
The Sangguniang Bayan of the Municipality of Malay expressed its strong

opposition to the intended foreshore lease application, throughResolution
No. 044, approved on July 22, 2009, manifesting therein that respondent
Province’s foreshore lease application was for business enterprise purposes
for its benefit, at the expense of the local government of Malay, which by
statutory provisions was the rightful entity “to develop, utilize and reap
benefits from the natural resources found within its jurisdiction.”
xxx
Governor Marquez submitted an Environmental Performance Report and

Monitoring Program (EPRMP) to DENR-EMB RVI, which he had attached
to his letter dated September 19, 2009, as an initial step for securing an
Environmental Compliance Certificate (ECC).
xxx
On November 19, 2009, the Sangguniang Panlalawigan enacted Resolution

No. 2009-299 authorizing Governor Marquez to enter into a Memorandum of
Agreement (MOA) with respondent PRA in the implementation of the Beach
Zone Restoration and Protection Marina Development Project, which shall
reclaim a total of 40 hectares in the areas adjacent to the jetty ports at
Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang
Panlalawigan approved the terms and conditions of the necessary
agreements for the implementation of the bond flotation of respondent
Province to fund the renovation/rehabilitation of the existing jetty port by way
of enhancement and recovery of the Old Caticlan shoreline through
reclamation of an area of 2.64 hectares in the amount of P260,000,000.00
on December 1, 2009.
xxx
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-

1003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation
94
Project to the extent of 2.64 hectares to be done along the Caticlan side
beside the existing jetty port.
xxx
Petitioner claims that during the “public consultation meeting” belatedly

called by respondent Province on June 17, 2010, respondent Province
presented the Reclamation Project and only then detailed the actions that it
had already undertaken, particularly: the issuance of the Caticlan Super
Marina Bonds; the execution of the MOA with respondent PRA; the alleged
conduct of an Environmental Impact Assessment (EIA) study for the
reclamation project; and the expansion of the project to forty (40)
hectares from 2.64 hectares.
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the
Malay Municipality reiterated its strong opposition to respondent Province’s
project and denied its request for a favorableendorsement of the Marina
Project.
xxx
In the meantime, a study was commissioned by the Philippine Chamber of

Commerce and Industry-Boracay (PCCI-Boracay), funded by
the Department of Tourism (DOT) with the assistance of, among others,
petitioner. The study was conducted in November 2010 by several marine
biologists/experts from the Marine Environmental Resources Foundation
(MERF) of the UPMSI. The study was intended to determine the potential
impact of a reclamation project in the hydrodynamics of the strait and on the
coastal erosion patterns in the southern coast of Boracay Island and along
the coast of Caticlan.
xxx
Dr. Villanoy said that the subject project, consisting of 2.64 hectares, would
only have insignificant effect on the hydrodynamics of the strait traversing
the coastline of Barangay Caticlan and Boracay, hence, there was a distant
possibility that it would affect the Boracay coastline, which includes the
famous white-sand beach of the island.
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan

enacted Resolution No. 2011-065 noting the report on the survey of the
channel between Caticlan and Boracay conducted by the UPMSI in relation
to the effects of the ongoing reclamation to Boracay beaches, and stating
that Dr. Villanoy had admitted that nowhere in their study was it pointed out
that there would be an adverse effect on the white-sand beach of Boracay.
On June 1, 2011, petitioner filed the instant Petition for Environmental

Protection Order/Issuance of the Writ of Continuing Mandamus. On June 7,
2011, this Court issued a Temporary Environmental Protection Order
(TEPO) and ordered the respondents to file their respective comments to the
petition.

After receiving a copy of the TEPO on June 9, 2011, respondent Province
immediately issued an order to the Provincial Engineering Office and the
95
concerned contractor to cease and desist from conducting any construction

activities until further orders from this Court.

The petition is premised on the following grounds:

I.

THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION
PROJECT, FAILED TO COMPLY WITH RELEVANT RULES AND
REGULATIONS IN THE ACQUISITION OF AN ECC.

A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN
ENVIRONMENTALLY CRITICAL AREAS REQUIRING THE
PERFORMANCE OF A FULL, OR PROGRAMMATIC,
ENVIRONMENTAL IMPACT ASSESSMENT.

B. RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE

ENDORSEMENT OF THE LGU CONCERNED.
C. RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED

CONSULTATION PROCEDURES AS REQUIRED BY THE LOCAL
GOVERNMENT CODE.
D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL

ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED BY LAW
AND RELEVANT REGULATIONS.
II.

THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN
CATICLAN AND BORACAY SHALL ADVERSELY AFFECT THE FRAIL
ECOLOGICAL BALANCE OF THE AREA.

Petitioner objects to respondent Province’s classification of the reclamation
project as single instead of co-located, as “non-environmentally critical,” and
as a mere “rehabilitation” of the existing jetty port. Petitioner points out that
the reclamation project is on two sites (which are situated on the opposite
sides of Tabon Strait, about 1,200 meters apart):

· 36.82 hectares – Site 1, in Bgy. Caticlan
· 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island
Petitioner argues that respondent Province abused and exploited

the Revised Procedural Manual for DENR Administrative Order No. 30,
Series of 2003 (DENR DAO 2003-30) relating to the acquisition of an ECC
by:

1. Declaring the reclamation project under “Group II Projects-Non-ECP
(environmentally critical project) in ECA (environmentally critical area)
based on the type and size of the area,” and

2. Failing to declare the reclamation project as a co-located project
application which would have required the Province to submit
a Programmatic Environmental Impact Statement (PEIS) or
96
Programmatic Environmental [Performance] Report Management Plan

(PE[P]RMP). (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the
classification above is based, which merely requires an Environmental
Impact Statement [EIS] for Group II projects) is patently ultra vires, and
respondent DENR-EMB RVI committed grave abuse of discretion because
the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well
as Presidential Proclamation No. 2146, clearly indicate that projects in
environmentally critical areas are to be immediately considered
environmentally critical. Petitioner complains that respondent
Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects within
Environmentally Critical Areas (ECAs) must submit a PEIS and/or a
PEPRMP.
The impact assessment allegedly performed gives a patently erroneous and

wrongly-premised appraisal of the possible environmental impact of the
reclamation project. Petitioner contends that respondent Province’s choice
of classification was designed to avoid a comprehensive impact assessment
of the reclamation project.
xxx
Respondent Province claimed that application for reclamation of 40

hectares is advantageous to the Provincial Government considering that its
filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which
is also the minimum fee as prescribed under Section 4.2 of Administrative
Order No. 2007-2.

Respondent Province considers the instant petition to be premature; thus, it
must necessarily fail for lack of cause of action due to the failure of petitioner
to fully exhaust the available administrative remedies even before seeking
judicial relief. According to respondent Province, the petition primarily
assailed the decision of respondent DENR-EMB RVI in granting the ECC for
the subject project consisting of 2.64 hectares and sought the cancellation
of the ECC for alleged failure of respondent Province to submit proper
documentation as required for its issuance. Hence, the grounds relied upon
by petitioner can be addressed within the confines of administrative
processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR

Administrative Order No. 2003-30 (DAO 2003-30), the issuance of an ECC is
an official decision of DENR-EMB RVI on the application of a project
proponent. It cites Section 6 of DENR DAO 2003-30, which provides for a
remedy available to the party aggrieved by the final decision on the
proponent’s ECC applications.
xxx
The issue for respondent PRA was whether or not it approved the
respondent Province’s 2.64-hectare reclamation project proposal in willful
disregard of alleged “numerous irregularities” as claimed by petitioner.
xxx
97
In its Comment dated July 1, 2011, respondent DENR-EMB RVI asserts that

its act of issuing the ECC certifies that the project had undergone the proper
EIA process by assessing, among others, the direct and indirect impact of
the project on the biophysical and human environment and ensuring that
these impacts are addressed by appropriate environmental protection and
enhancement measures, pursuant to Presidential Decree No. 1586, the
Revised Procedural Manual for DENR DAO 2003-30, and the existing rules
and regulations.
xxx
Although petitioner insists that the project involves 40 hectares in two sites,
respondent DENR-EMB RVI looked at the documents submitted by
respondent Province and saw that the subject area covered by the ECC
application and subsequently granted with ECC-R6-1003-096-7100 consists
only of 2.64 hectares; hence, respondent DENR-EMB RVI could not
comment on the excess area.
Respondent DENR-EMB RVI admits that as regards the classification of

the 2.64-hectare reclamation project under “Non ECP in ECA,” this
does not fall within the definition of a co-located project because the
subject project is merely an expansion of the old Caticlan Jetty Port,
which had a previously issued ECC (ECC No. 0699-1012-171 on
October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.
xxx
Respondent DENR-EMB RVI claims that the above two scientific studies
were enough for it to arrive at a best professional judgment to issue an
amended ECC for the Aklan Marina Project covering 2.64 hectares
xxx
The Court set the case for oral arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed

a Manifestation and Motion praying for the dismissal of the petition, as the
province was no longer pursuing the implementation of the succeeding
phases of the project due to its inability to comply with Article IV B.2(3) of the
MOA
ISSUES

The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for
having been rendered moot and academic

II. Whether or not the petition is premature because
petitioner failed to exhaust administrative remedies before filing this
case

98
III. Whether or not respondent Province failed to perform a

full EIA as required by laws and regulations based on the scope and
classification of the project

IV. Whether or not respondent Province complied with all the
requirements under the pertinent laws and regulations

V. Whether or not there was proper, timely, and sufficient
public consultation for the project
DISCUSSION

On the issue of whether or not the Petition should be dismissed for
having been rendered moot and academic
A close reading of the two LGUs’ respective resolutions would reveal that
they are not sufficient to render the petition moot and academic, as there are
explicit conditions imposed that must be complied with by respondent
Province
The Sangguniang Bayan of Malay obviously imposed explicit conditions for

respondent Province to comply with on pain of revocation of its endorsement
of the project, including the need to conduct a comprehensive study on the
environmental impact of the reclamation project, which is the heart of the
petition before us. Therefore, the contents of the two resolutions submitted
by respondent Province do not support its conclusion that the subsequent
favorable endorsement of the LGUs had already addressed all the issues
raised and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
xxx
We do not agree with respondents’ appreciation of the applicability of the

rule on exhaustion of administrative remedies in this case.
xxx
As petitioner correctly pointed out, the appeal provided for under Section 6 of
DENR DAO 2003-30 is only applicable, based on the first sentence thereof,
if the person or entity charged with the duty to exhaust the administrative
remedy of appeal to the appropriate government agency has been a party or
has been made a party in the proceedings wherein the decision to be
appealed was rendered. It has been established by the facts that
petitioner was never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only informed that the project
had already been approved after the ECC was already granted. Not being a
party to the said proceedings, it does not appear that petitioner was officially
furnished a copy of the decision, from which the 15-day period to appeal
should be reckoned, and which would warrant the application of Section 6,
Article II of DENR DAO 2003-30.
xxx
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The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC,
provides a relief for petitioner under the writ of continuing mandamus, which
is a special civil action that may be availed of “to compel the performance of
an act specifically enjoined by law” and which provides for the issuance of a
TEPO “as an auxiliary remedy prior to the issuance of the writ itself.” The
Rationale of the said Rules explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of
regulation by Congress to the implementation of regulatory programs by the
appropriate government agencies.

Thus, a government agency’s inaction, if any, has serious implications
on the future of environmental law enforcement. Private individuals, to
the extent that they seek to change the scope of the regulatory
process, will have to rely on such agencies to take the initial
incentives, which may require a judicial component. Accordingly,
questions regarding the propriety of an agency’s action or inaction will
need to be analyzed.

This point is emphasized in the availability of the remedy of the writ
of mandamus, which allows for the enforcement of the conduct of the tasks
to which the writ pertains: the performance of a legal duty. (Emphases
added.)

The writ of continuing mandamus “permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the reliefs
mandated under the court’s decision” and, in order to do this, “the court may
compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance
with its decision.”
xxx
We find that the petition was appropriately filed with this Court under Rule 8,
Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.—When any
agency or instrumentality of the government or officer thereof
unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence, specifying that
the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is fully
satisfied, and to pay damages sustained by the petitioner by
reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall
also contain a sworn certification of non-forum shopping.
100

SECTION 2. Where to file the petition.—The petition shall be filed
with the Regional Trial Court exercising jurisdiction over the
territory where the actionable neglect or omission occurred or
with the Court of Appeals or the Supreme Court.
On the issues of whether, based on the scope and classification of the

project, a full EIA is required by laws and regulations, and whether
respondent Province complied with all the requirements under the
pertinent laws and regulations
xxx
The Court notes such manifestation of respondent Province. Assuming,

however, that the area involved in the subject reclamation project has been
limited to 2.64 hectares, this case has not become moot and academic, as
alleged by respondents, because the Court still has to check whether
respondents had complied with all applicable environmental laws, rules, and
regulations pertaining to the actual reclamation project.
xxx
We recognize at this point that the DENR is the government agency vested
with delegated powers to review and evaluate all EIA reports, and to grant or
deny ECCs to project proponents. It is the DENR that has the duty to
implement the EIS system. It appears, however, that respondent DENR-
EMB RVI’s evaluation of this reclamation project was problematic, based on
the valid questions raised by petitioner.

Being the administrator of the EIS System, respondent DENR-EMB RVI’s
submissions bear great weight in this case. However, the following are the
issues that put in question the wisdom of respondent DENR-EMB RVI in
issuing the ECC:

1. Its approval of respondent Province’s classification of the project as a
mere expansion of the existing jetty port in Caticlan, instead of classifying it
as anew project;
2. Its classification of the reclamation project as a single instead of a co-
located project;
3. The lack of prior public consultations and approval of local government
agencies; and
4. The lack of comprehensive studies regarding the impact of the
reclamation project to the environment.
The above issues as raised put in question the sufficiency of the evaluation
of the project by respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the

agency with the expertise and authority to state whether this is a new
project, subject to the more rigorous environmental impact study requested
by petitioner, or it is a mere expansion of the existing jetty port facility.

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The second issue refers to the classification of the project by respondent

Province, approved by respondent DENR-EMB RVI, as single instead of co-
located.
xxx
The very definition of an EIA points to what was most likely neglected by
respondent Province as project proponent, and what was in turn overlooked
by respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely
impacts of a project (including cumulative impacts) on the environment
during construction, commissioning, operation and abandonment. It also
includes designing appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the environment and
the community’s welfare. (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of
the reclamation project to the environment and to prevent any harm that
may otherwise be caused.
The project now before us involves reclamation of land that is more than
five times the size of the original reclaimed land.
xxx
We had occasion to emphasize the duty of local government units to ensure

the quality of the environment under Presidential Decree No. 1586
in Republic of the Philippines v. The City of Davao, wherein we held:

Section 15 of Republic Act 7160, otherwise known as the Local Government
Code, defines a local government unit as a body politic and corporate
endowed with powers to be exercised by it in conformity with law. As such, it
performs dual functions, governmental and proprietary. Governmental
functions are those that concern the health, safety and the advancement of
the public good or welfare as affecting the public generally. Proprietary
functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit. When
exercising governmental powers and performing governmental duties, an
LGU is an agency of the national government. When engaged in corporate
activities, it acts as an agent of the community in the administration of local
affairs.

Found in Section 16 of the Local Government Code is the duty of the
LGUs to promote the people’s right to a balanced ecology. Pursuant to
this, an LGU, like the City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment,
which is the very same objective of PD 1586.
xxx
The Court chooses to remand these matters to respondent DENR-EMB RVI

for it to make a proper study, and if it should find necessary, to require
respondent Province to address these environmental issues raised by
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petitioner and submit the correct EIA report as required by the project’s
specifications. The Court requires respondent DENR-EMB RVI to complete
its study and submit a report within a non-extendible period of three
months. Respondent DENR-EMB RVI should establish to the Court in said
report why the ECC it issued for the subject project should not be canceled.
Lack of prior public consultation
xxx
It was necessary for respondent Province to go through respondent PRA

and to execute a MOA, wherein respondent PRA’s authority to reclaim was
delegated to respondent Province.
xxx
In Lina, Jr. v. Paño, we held that Section 27 of the Local Government Code
applies only to “national programs and/or projects which are to be
implemented in a particular local community” and that it should be read in
conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, range-land,
or forest cover; (5) may eradicate certain animal or plant species from the
face of the planet; and (6) other projects or programs that may call for the
eviction of a particular group of people residing in the locality where these
will be implemented. Obviously, none of these effects will be produced by
the introduction of lotto in the province of Laguna. (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established
that this project as described above falls under Section 26 because the
commercial establishments to be built on phase 1, as described in the
EPRMP quoted above, could cause pollution as it could generate garbage,
sewage, and possible toxic fuel discharge.
xxx
Prior consultations and prior approval are required by law to have been

conducted and secured by the respondent Province.
xxx
The claim of respondent DENR-EMB RVI is that no permits and/or

clearances from National Government Agencies (NGAs) and LGUs are
required pursuant to the DENR Memorandum Circular No. 2007-
08. However, we still find that the LGC requirements of consultation and
approval apply in this case. This is because a Memorandum Circular cannot
prevail over the Local Government Code, which is a statute and which
enjoys greater weight under our hierarchy of laws.
The lack of prior public consultation and approval is not corrected by the

subsequent endorsement of the reclamation project by the Sangguniang
103
Barangayof Caticlan on February 13, 2012, and the Sangguniang Bayan of

the Municipality of Malay on February 28, 2012, which were both
undoubtedly achieved at the urging and insistence of respondent Province.
As we have established above, the respective resolutions issued by the
LGUs concerned did not render this petition moot and academic.
WHEREFORE, premises considered, the petition is hereby PARTIALLY

GRANTED. The TEPO issued by this Court is hereby converted into a writ
of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-
Environmental Management Bureau Regional Office VI shall revisit and
review the following matters:
a. its classification of the reclamation project as a single instead of a co-
located project;
b. its approval of respondent Province’s classification of the project as a
mere expansion of the existing jetty port in Caticlan, instead of classifying it
as a new project; and
c. the impact of the reclamation project to the environment based on new,
updated, and comprehensive studies, which should forthwith be ordered by
respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the
reclamation project proposal and submit to the latter the appropriate report
and study; and
b. secure approvals from local government units and hold proper
consultations with non-governmental organizations and other stakeholders
and sectors concerned as required by Section 27 in relation to Section 26 of
the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the
submission by respondent Province of the requirements to be issued by
respondent DENR-EMB RVI in connection to the environmental concerns
raised by petitioner, and shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the findings of respondent
DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The
Province of Aklan, represented by Governor Carlito S. Marquez, The
Philippine Reclamation Authority, and The DENR-EMB (Region VI) are
mandated to submit their respective reports to this Court regarding their
compliance with the requirements set forth in this Decision no later than
three (3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or
their agents, representatives or persons acting in their place or stead, shall
immediately cease and desist from continuing the implementation of the
project covered by ECC-R6-1003-096-7100 until further orders from this
Court. For this purpose, the respondents shall report within five (5) days to
this Court the status of the project as of their receipt of this Decision, copy
furnished the petitioner.
This Decision is immediately executory.
104
SO ORDERED.
The two cases above come in sharp contrast on how the Court sees as its oversight role over
the actions of executive agencies. In Republic vs. Davao, the Court made its technical own
determination of the nature of the project activity, while in Boracay Foundation vs. Province of
Aklan, the Court gave the DENR the benefit of correcting its error in making the technical
evaluation.the
Revised Procedural Manual for DAO 2003-30
August 2007
To supplement the details provided in the Implementing Rules and Regulations of the EIS
System, and to facilitate the preparation EIAs and processing of ECCs, the DENR adopted a
procedural manual that guides preparers and evaluators step-by-step in complying with the
requirements.
3.2.21 Local Development Planning
The Local Government Code requires all LGUs to convene local development councils to
prepare the development plan for the LGU. The composition and functions of the
development councils are provided below.
SEC. 106. Local Development Councils. - (a) Each local government unit
shall have a comprehensive multisectoral development plan to be initiated by
its development council and approved by its sanggunian. For this purpose,
the development council at the provincial city, municipal, or barangay level,
shall assist the corresponding sanggunian in setting the direction of economic
and social development, and coordinating development efforts within its
territorial jurisdiction.
SEC. 107. Composition of Local Development Councils. - The composition of
the local development council shall be as follows:
(a) The barangay development council shall be headed by the
punong barangay and shall be composed of the following
members:
(1) Members of the sangguniang barangay;
(2) Representatives of non-governmental organizations
operating in the barangay, who shall constitute not less than
one fourth (1/4) of the members of the fully organized
council;
(3) A representative of the congressman.
(b) The city or municipal development council shall be headed by
the mayor and shall be composed of the following members:
(1) All punong barangays in the city or municipality;
(2) The chairman of the committee on appropriations of the
sangguniang panlungsod or sangguniang bayan concerned;
(3) The congressman or his representative; and
(4) Representatives of nongovernmental organizations operating
in the city or municipality, as the case may be, who shall
105
constitute not less than one-fourth (1/4) of the members of

the fully organized council.
(c) The provincial development council shall be headed by the
governor and shall be composed of the following members:
(1) All mayors of component cities and municipalities;
(2) The chairman of the committee on appropriations of the
sangguniang panlalawigan;
(3) The congressman or his representative; and
(4) Representatives of nongovernmental organizations operating
in the province, who shall constitute not less than one-fourth
(1/4) of the members of the fully organized council.
(d) The local development councils may call upon any local official
concerned or any official of national agencies or offices in the
local government unit to assist in the formulation of their
respective development plans and public investment programs.
SEC. 108. Representation of Non-Governmental Organizations. - Within a
period of sixty (60) days from the start of organization of local development
councils, the nongovernmental organizations shall choose from among
themselves their representatives to said councils. The local sanggunian
concerned shall accredit nongovernmental organizations subject to such
criteria as may be provided by law.
SEC. 109. Functions of Local Development Councils. –
(a) The provincial, city, and municipal development councils shall
exercise the following functions:
(1) Formulate long-term, medium-term, and annual
socioeconomic development plans and policies;
(2) Formulate the medium-term and annual public investment
programs;
(3) Appraise and prioritize socioeconomic development
programs and projects;
(4) Formulate local investment incentives to promote the inflow
and direction of private investment capital;
(5) Coordinate, monitor, and evaluate the implementation of
development programs and projects; and
(6) Perform such other functions as may be provided by law or
competent authority.
(b) The barangay development council shall exercise the following
functions:
(1) Mobilize people's participation in local development efforts;
(2) Prepare barangay development plans based on local
requirements;
(3) Monitor and evaluate the implementation of national or local
programs and projects; and
106
(4) Perform such other functions as may be provided by law or

competent authority.
xxx
SEC. 114. Relation of Local Development Councils to the Sanggunian and
the Regional Development Council. –
(a) The policies, programs, and projects proposed by local
development councils shall be submitted to the sanggunian
concerned for appropriate action. The local development plans
approved by their respective sanggunian may be integrated with
the development plans of the next higher level of local
development council.
(b) The approved development plans of provinces, highly-urbanized
cities, and independent component cities shall be submitted to
the regional development council, which shall be integrated into
the regional development plan for submission to the National
Economic and Development Authority, in accordance with
existing laws.
SEC. 115. Budget Information. - The Department of Budget and Management
shall furnish the various local development councils information on financial
resources and budgetary allocations applicable to their respective
jurisdictions to guide them in their planning functions.
The Local Government Code also mandates LGUs to prepae Comprehensive Land Use
Plans (CLUP) that will be the basis of local zoning ordinances.
Sec 447 (a)(2): (Sangguniang Bayan)

(vii) Adopt a comprehensive land use plan for the municipality: Provided, That
the formulation, adoption, or modification of said plan shall be in coordination
with the approved provincial comprehensive land use plan;
(ix) Enact integrated zoning ordinances in consonance with the approved
comprehensive land use plan, subject to existing laws, rules and regulations;
establish fire limits or zones, particularly in populous centers; and regulate
the construction, repair or modification of buildings within said fire limits or
zones in accordance with the provisions of the Fire Code;
Sec 458(a)(2): (Sangguniang Panglungsod)
(vii) Adopt a comprehensive land use plan for the city: Provided, That in the
case of component cities, the formulation, adoption or modification of said
plan shall be in coordination with the approved provincial comprehensive land
use plan;
(ix) Enact integrated zoning ordinances in consonance with the approved
comprehensive land use plan, subject to existing laws, rules and regulations;
establish fire limits or zones, particularly in populous centers; and regulate
the construction, repair or modification of buildings within said fire limits or
zones in accordance with the provisions of the Fire Code;
Sec 468(a)(2)(vii). (Sangguninang Panlalawigan) Review the comprehensive
land use plans and zoning ordinances of component cities and municipalities
107
and adopt a comprehensive provincial land use plan, subject to existing laws;
xxx
This power of the LGU to determine land-use is specifically limited by the following provision
in the Local Government Code.
SEC. 20. Reclassification of Lands. –
(a) A city or municipality may, through an ordinance passed by the
sanggunian after conducting public hearings for the purpose, authorize the
reclassification of agricultural lands and provide for the manner of their
utilization or disposition in the following cases: (1) when the land ceases to
be economically feasible and sound for agricultural purposes as determined
by the Department of Agriculture or (2) where the land shall have
substantially greater economic value for residential, commercial, or industrial
purposes, as determined by the sanggunian concerned: Provided, That such
reclassification shall be limited to the following percentage of the total
agricultural land area at the time of the passage of the ordinance:
(1) For highly urbanized and independent component cities, fifteen percent
(15%);
(2) For component cities and first to third class municipalities, ten percent
(10%); and
(3) For fourth to sixth class municipalities, five percent (5%): Provided,
further, That agricultural lands distributed to agrarian reform beneficiaries
pursuant to Republic Act Numbered Sixty-six hundred fifty-seven (R.A. No.
6657), otherwise known as "The Comprehensive Agrarian Reform Law",
shall not be affected by the said reclassification and the conversion of such
lands into other purposes shall be governed by Section 65 of said Act.
(b) The President may, when public interest so requires and upon
recommendation of the National Economic and Development Authority,
authorize a city or municipality to reclassify lands in excess of the limits set in
the next preceding paragraph.
(c) The local government units shall, in conformity with existing laws,
continue to prepare their respective comprehensive land use plans enacted
through zoning ordinances which shall be the primary and dominant bases
for the future use of land resources: Provided, That the requirements for food
production, human settlements, and industrial expansion shall be taken into
consideration in the preparation of such plans.
(d) Where approval by a national agency is required for reclassification, such
approval shall not be unreasonably withheld. Failure to act on a proper and
complete application for reclassification within three (3) months from receipt
of the same shall be deemed as approval thereof.
(e) Nothing in this Section shall be construed as repealing, amending, or
modifying in any manner the provisions of R.A. No. 6657.
A Guide to Comprehensive Land Use Plan Preparation (2006)
The Local Government Code sets the institutional mechanism and mandate to prepare the
CLUP. The Housing and Land Use Regulatory Board (HLURB) prepared a guidebook to
108
assist LGUs in the preparation of the CLUP in order to optimize the usefulness of these plans
and for uniformity across LGUs.87
This guidebook was developed for LGUs through a participatory process and is designed to
present logical planning procedures to ensure a balanced and harmonious development of
resources in the LGU. According to the HLURB, the guidebook is not prescriptive but is
designed to allow flexibility, creativity and analytical thinking on the part of the user.
This new guide suggests a 12-step process that is strategic/proactive in approach shows the
general procedures from which the planning team, with or without a formal training in
planning, can proceed with the CLUP and ZO preparation.
3.3. Policy analysis
3.3.1 Philippine Development Plan (2011-2016)
The Philippines recently approved a new Philippine Development Plan for 2011-2016 (PDP)
that outlines the policy priorities of the government in the medium-term. The PDP serves as
the template for specific programs and actions that agencies with specific mandates include
in their annual plans and budgets. The PDP has twin goals of economic growth and poverty
alleviation as components of the overall goal of inclusive growth.
The Environment and Natural Resources Chapter of the PDP focuses on three major goals –
two of which are directed at conserving remaining natural resources and preserving a clean
and healthy environment. The third goal emphasizes the need for climate change adaptation
and disaster management.
Under the goal on conservation, the PDP identifies key strategies, including:
 Sustainably manage forests and watersheds
 Improve protection and conservation of biodiversity
 Enhance coastal and marine resources management
 Improve land administration and management
 Manage a more equitable utilization of mineral resources;
 Develop and implement environment-friendly enterprise and livelihood
opportunities.
Under the goal on improving environmental quality, the priorities are:

 Reduce air pollution in Metro Manila and other major urban centers
 Reduce water pollution to improve water quality in priority rivers and other
economically and ecologically important water bodies
 Reduce wastes generated and improve waste disposal
 Establish a healthier and livable urban environment
Under the goal on enhancing resilience to climate change impacts, the PDP will:
 Strengthen institutional capacities of national and local governments for CCA
and DRRM
 Enhance the resilience of natural systems
 Improve adaptive capacities of communities
87 The guidebook, A GUIDE TO COMPREHENSIVE LAND USE PLAN PREPARATION, approved through Board
Resolution No. 789 on 16 February 2006, is the first of a 10-volume Guidelines on the Formulation and Revision
of CLUPs and Planning Strategically. The Guidebook is available for download at
http://hlurb.gov.ph/uploads/agency-profile/lgu/full-text-vol1.pdf
109
The environment sector, however, has only a small contribution to GDP. The goal of
conservation is in fact to improve delivery of ecosystem services (water, power,
waste/pollution control) that underpins the economy that is based on agriculture, industry and
services. At present, it is very difficult to measure the contribution of the specific sectors to
the economy.
110
Chapter Four
Forests and Forestland Management
Barangay Bunga is an upland community of farmers. Over the past three decades, families
have migrated to the area from the lowlands in search of work, livelihood and a place to call
home. The area used to be a timber concession (TLA) but abandoned after all the
commercially important trees were cut. The first settlers were workers of the timber
concession. There used to be a few patches of forest trees punctuating large tracts of cogon
and make-shift farms (through kaingin). Over the years, the settlers have developed the area
into farms, planting rice, corn, sugarcane, bananas and other cash crops. They have also
planted fruit trees near their homes. Commercial-scale logging goes on unabated in portions
of remaining forests. The settlers are not aware if these operations are illegal or not, but they
would at times work for these logging operators for odd jobs.
None of the farmers have title to the land, as the entire barangay is on classified forest land.
Property rights (land, crops, houses) are recognized through “tax declaration” and customary
respect for possession and informal agreements of sale, rent (arendo) or mortgage (prenda).
Kaingin practice continues as residents clear new areas for farming. Farmers either use the
bigger felled trees for building houses, or for firewood/charcoal for own use and sale. Despite
the hardships of making a living and lack of access to basic services, farmers have lived in
the area peacefully for generations.
On one occasion, DENR forest guards arrested two farmers as they were transporting on a
carabao sled 10 sacks of charcoal made from planted madre de cacao trees, assorted cut
lumber (Gmelina species) and a chainsaw. The farmers are not aware of laws or regulations
on forestry; they grew up with charcoal making as decent livelihood. The chainsaw that was
confiscated was borrowed from a logging operator.
4.2.1 Land classification
The legal status of the land determines what activities may or may not be conducted on these
lands. In addition, there are laws that regulate the cutting of trees and the use of chainsaws.
Following the Regalian Doctrine, all lands are presumed to be part of the public domain,
unless one can show proof or title of private ownership. Even lands that have already been
occupied, developed and sold to investors, such as the famous Boracay Island, may still be
public domain.
DENR Secretary et al. vs. Mayor Yap et al., G.R. No. 167707
(consolidated with G.R. No. 173775), October 8, 2008
AT stake in these consolidated cases is the right of the present occupants of

Boracay Island to secure titles over their occupied lands. xxx

Boracay Island in the Municipality of Malay, Aklan, with its powdery white
sand beaches and warm crystalline waters, is reputedly a premier Philippine
111
tourist destination. The island is also home to 12,003 inhabitants who live in
the bone-shaped island’s three barangays.

On April 14, 1976, the Department of Environment and Natural Resources
(DENR) approved the National Reservation Survey of Boracay Island, which
identified several lots as being occupied or claimed by named persons.

On November 10, 1978, then President Ferdinand Marcos issued
Proclamation No. 1801 declaring Boracay Island, among other islands, caves
and peninsulas in the Philippines, as tourist zones and marine reserves
under the administration of the Philippine Tourism Authority (PTA). President
Marcos later approved the issuance of PTA Circular 3-82 dated September 3,
1982, to implement Proclamation No. 1801. xxx
On May 22, 2006, during the pendency of G.R. No. 167707, President Gloria
Macapagal-Arroyo issued Proclamation No. 1064 classifying Boracay Island
into four hundred (400) hectares of reserved forest land (protection purposes)
and six hundred twenty-eight and 96/100 (628.96) hectares of agricultural
land (alienable and disposable). The Proclamation likewise provided for a
fifteen-meter buffer zone on each side of the centerline of roads and trails,
reserved for right-of-way and which shall form part of the area reserved for
forest land protection purposes. xxx
Petitioners-claimants contended that there is no need for a proclamation

reclassifying Boracay into agricultural land. Being classified as neither
mineral nor timber land, the island is deemed agricultural pursuant to the
Philippine Bill of 1902 and Act No. 926, known as the first Public Land Act.
Thus, their possession in the concept of owner for the required period entitled
them to judicial confirmation of imperfect title.

Opposing the petition, the OSG argued that petitioners-claimants do not have
a vested right over their occupied portions in the island. Boracay is an
unclassified public forest land pursuant to Section 3(a) of PD No. 705. Being
public forest, the claimed portions of the island are inalienable and cannot be
the subject of judicial confirmation of imperfect title. It is only the executive
department, not the courts, which has authority to reclassify lands of the
public domain into alienable and disposable lands. There is a need for a
positive government act in order to release the lots for disposition. xxx
The 1935 Constitution classified lands of the public domain into agricultural,
forest or timber. Meanwhile, the 1973 Constitution provided the following
divisions: agricultural, industrial or commercial, residential, resettlement,
mineral, timber or forest and grazing lands, and such other classes as may
be provided by law, giving the government great leeway for classification.
Then the 1987 Constitution reverted to the 1935 Constitution classification
with one addition: national parks. Of these, only agricultural lands may be
alienated. Prior to Proclamation No. 1064 of May 22, 2006, Boracay Island
had never been expressly and administratively classified under any of these
grand divisions. Boracay was an unclassified land of the public domain.

The Regalian Doctrine dictates that all lands of the public domain belong to
the State, that the State is the source of any asserted right to ownership of
land and charged with the conservation of such patrimony. The doctrine has
been consistently adopted under the 1935, 1973, and 1987 Constitutions.

112
All lands not otherwise appearing to be clearly within private ownership are
presumed to belong to the State. Thus, all lands that have not been acquired
from the government, either by purchase or by grant, belong to the State as
part of the inalienable public domain. Necessarily, it is up to the State to
determine if lands of the public domain will be disposed of for private
ownership. The government, as the agent of the state, is possessed of the
plenary power as the persona in law to determine who shall be the favored
recipients of public lands, as well as under what terms they may be granted
such privilege, not excluding the placing of obstacles in the way of their
exercise of what otherwise would be ordinary acts of ownership. xxx
Since 1919, courts were no longer free to determine the classification of

lands from the facts of each case, except those that have already became
private lands. Act No. 2874, promulgated in 1919 and reproduced in Section
6 of CA No. 141, gave the Executive Department, through the President, the
exclusive prerogative to classify or reclassify public lands into alienable or
disposable, mineral or forest. Since then, courts no longer had the authority,
whether express or implied, to determine the classification of lands of the
public domain. xxx
Except for lands already covered by existing titles, Boracay was an

unclassified land of the public domain prior to Proclamation No. 1064. Such
unclassified lands are considered public forest under PD No. 705. The
DENR and the National Mapping and Resource Information Authority certify
that Boracay Island is an unclassified land of the public domain.

PD No. 705 issued by President Marcos categorized all unclassified lands of
the public domain as public forest. Section 3(a) of PD No. 705 defines a
public forest as “a mass of lands of the public domain which has not been the
subject of the present system of classification for the determination of which
lands are needed for forest purpose and which are not.” Applying PD No.
705, all unclassified lands, including those in Boracay Island, are ipso facto
considered public forests. PD No. 705, however, respects titles already
existing prior to its effectivity.

The Court notes that the classification of Boracay as a forest land under PD
No. 705 may seem to be out of touch with the present realities in the island.
Boracay, no doubt, has been partly stripped of its forest cover to pave the
way for commercial developments. As a premier tourist destination for local
and foreign tourists, Boracay appears more of a commercial island resort,
rather than a forest land.

Nevertheless, that the occupants of Boracay have built multi-million peso
beach resorts on the island; that the island has already been stripped of its
forest cover; or that the implementation of Proclamation No. 1064 will destroy
the island’s tourism industry, do not negate its character as public forest.

Forests, in the context of both the Public Land Act and the Constitution
classifying lands of the public domain into “agricultural, forest or timber,
mineral lands, and national parks,” do not necessarily refer to large tracts of
wooded land or expanses covered by dense growths of trees and
underbrushes. The discussion in Heirs of Amunategui v. Director of Forestry
is particularly instructive:

A forested area classified as forest land of the public
113
domain does not lose such classification simply because loggers

or settlers may have stripped it of its forest cover. Parcels of
land classified as forest land may actually be covered with grass
or planted to crops by kaingin cultivators or other farmers.
“Forest lands” do not have to be on mountains or in out of the
way places. Swampy areas covered by mangrove trees, nipa
palms, and other trees growing in brackish or sea water may
also be classified as forest land. The classification is descriptive
of its legal nature or status and does not have to be descriptive
of what the land actually looks like. Unless and until the land
classified as “forest” is released in an official proclamation to that
effect so that it may form part of the disposable agricultural lands
of the public domain, the rules on confirmation of imperfect title
do not apply. (Emphasis supplied)

There is a big difference between “forest” as defined in a dictionary and
“forest or timber land” as a classification of lands of the public domain as
appearing in our statutes. One is descriptive of what appears on the land
while the other is a legal status, a classification for legal purposes. At any
rate, the Court is tasked to determine the legal status of Boracay Island, and
not look into its physical layout. Hence, even if its forest cover has been
replaced by beach resorts, restaurants and other commercial establishments,
it has not been automatically converted from public forest to alienable
agricultural land. xxx
The continued possession and considerable investment of private claimants

do not automatically give them a vested right in Boracay. Nor do these give
them a right to apply for a title to the land they are presently occupying. This
Court is constitutionally bound to decide cases based on the evidence
presented and the laws applicable. As the law and jurisprudence stand,
private claimants are ineligible to apply for a judicial confirmation of title over
their occupied portions in Boracay even with their continued possession and
considerable investment in the island. xxx
The Court is aware that millions of pesos have been invested for the
development of Boracay Island, making it a by-word in the local and
international tourism industry. The Court also notes that for a number of
years, thousands of people have called the island their home. While the
Court commiserates with private claimants’ plight, We are bound to apply the
law strictly and judiciously. This is the law and it should prevail. Ito ang
batas at ito ang dapat umiral.

All is not lost, however, for private claimants. While they may not be eligible
to apply for judicial confirmation of imperfect title under Section 48(b) of CA
No. 141, as amended, this does not denote their automatic ouster from the
residential, commercial, and other areas they possess now classified as
agricultural. Neither will this mean the loss of their substantial investments
on their occupied alienable lands. Lack of title does not necessarily mean
lack of right to possess.

For one thing, those with lawful possession may claim good faith as builders
of improvements. They can take steps to preserve or protect their
possession. For another, they may look into other modes of applying for
original registration of title, such as by homesteador sales patent, subject to
the conditions imposed by law.
114

More realistically, Congress may enact a law to entitle private claimants to
acquire title to their occupied lots or to exempt them from certain
requirements under the present land laws. There is one such bill now
pending in the House of Representatives. Whether that bill or a similar bill
will become a law is for Congress to decide.

In issuing Proclamation No. 1064, the government has taken the step
necessary to open up the island to private ownership. This gesture may not
be sufficient to appease some sectors which view the classification of the
island partially into a forest reserve as absurd. That the island is no longer
overrun by trees, however, does not becloud the vision to protect its
remaining forest cover and to strike a healthy balance between progress and
ecology. Ecological conservation is as important as economic progress.

To be sure, forest lands are fundamental to our nation’s survival. Their
promotion and protection are not just fancy rhetoric for politicians and
activists. These are needs that become more urgent as destruction of our
environment gets prevalent and difficult to control. As aptly observed by
Justice Conrado Sanchez in 1968 in Director of Forestry v. Munoz:

The view this Court takes of the cases at bar is but in
adherence to public policy that should be followed with respect
to forest lands. Many have written much, and many more have
spoken, and quite often, about the pressing need for forest
preservation, conservation, protection, development and
reforestation. Not without justification. For, forests constitute a
vital segment of any country's natural resources. It is of
common knowledge by now that absence of the necessary
green cover on our lands produces a number of adverse or ill
effects of serious proportions. Without the trees, watersheds dry
up; rivers and lakes which they supply are emptied of their
contents. The fish disappear. Denuded areas become dust
bowls. As waterfalls cease to function, so will hydroelectric
plants. With the rains, the fertile topsoil is washed away;
geological erosion results. With erosion come the dreaded
floods that wreak havoc and destruction to property – crops,
livestock, houses, and highways – not to mention precious
human lives. Indeed, the foregoing observations should be
written down in a lumberman’s decalogue.

xxx
4.2.2. Land use in forest land
Forest lands, being part of the public domain, are subject to the rules of government on what
can and cannot be done on the land and to all the natural resources therein. It is clear from
the Boracay case above that “forest lands” and “forests” are different. The general applicable
law is The Revised Forestry Code.
Revised Forestry Code

Presidential Decree No. 705, as amended
115
Section 15. Topography - No land of the public domain eighteen per cent
(18%) in slope or over shall be classified as alienable and disposable, nor
any forest land fifty per cent (50%) in slope or over, as grazing land.
Lands eighteen percent (18%) in slope or over which have already been
declared as alienable and disposable shall be reverted to the classification of
forest lands by the Department Head, to form part of the forest reserves,
unless they are already covered by existing titles approved public land
application, or actually occupied openly, continuously, adversely and publicly
for a period of not less than thirty (30) years as of the effectivity of this Code,
where the occupant is qualified for a free patent under the Public Land Act:
Provided, That said lands, which are not yet part of a well-established
communities, shall be kept in a vegetative condition sufficient to prevent
erosion and adverse effects on the lowlands and streams: Provided, further,
That when public interest so requires, steps shall be taken to expropriate,
cancel defective titles, reject public land application, or eject occupants
thereof.
Section 16. Areas Needed for Forest Purposes - The following lands, even if
they are below eighteen percent (18%) in slope, are needed for forest
purposes, and may not, therefore, be classified as alienable and disposable
land, to wit:
1. Areas less than 250 hectares which are far from, or are not
contiguous with any certified alienable and disposable land;
2. Isolated patches of forest of at least five (5) hectares with
rocky terrain, or which protect a spring for communal use;
3. Areas which have already been reforested;
4. Areas within forest concessions which are timbered or have
good residual stocking to support an existing, or approved to
be established, wood processing plant;
5. Ridge tops and plateaus regardless of size found within, or
surrounded wholly or partly by, forest lands where
headwaters emanate;
6. Appropriately located road-rights-of-way;
7. Twenty-meter strips of land along the edge of the normal high
waterline of rivers and streams with channels of at least five
(5) meters wide;
8. Strips of mangrove or swamplands at least twenty (20)
meters wide, along shorelines facing oceans, lakes, and
other bodies of water, and strips of land at least twenty (20)
meters wide facing lakes;
9. Areas needed for other purposes, such as national parks,
national historical sites, game refuges and wildlife
sanctuaries, forest station sites, and others of public interest;
and
10. Areas previously proclaimed by the President as forest
reserves, national parks, game refuge, bird sanctuaries,
national shrines, national historic sites:
Provided, That in case an area falling under any of the foregoing categories
shall have been titled in favor of any person, steps shall be taken, if public
interest so requires, to have said title canceled or amended, or the titled area
expropriated.
116
xxx
Section 19. Multiple Use - The numerous beneficial uses of the timber, land,
soil, water, wildlife, grass and recreation or aesthetic value of forest lands
and grazing lands shall be evaluated and weighted before allowing their
utilization, exploitation, occupation or possession thereof, or the conduct of
any activity therein. Only the utilization, exploitation, occupation or
possession of any forest lands and grazing lands, or any activity therein,
involving one or more of its resources, which will produce the optimum
benefits to the development and progress of the country, and the public
welfare, without impairment or with the least injury to its resources, shall be
allowed.
All forest reservations may be open to development or uses not inconsistent

with the principal objectives of the reservation; Provided, That critical
watersheds, national parks and established experimental forests shall not be
subject to commercial logging or grazing operations, and game refuges, bird
sanctuaries, marine and seashore parks shall not be subject to hunting or
fishing and other activities of commercial nature. [As amended by PD No.
1559]
Section 20. License Agreement, License, Lease or Permit - No person may

utilize, exploit, occupy, possess or conduct any activity within any forest and
grazing land, or establish, install, add and operate any wood or forest
products processing plant, unless he had been authorized to do under a
license agreement, license, lease or permit: Provided, That when the national
interest so requires, the President may amend, modify, replace, or rescind
any contract, concession, permit, license, or any other form of privilege
granted herein: Provided, further, That upon the recommendation of the
appropriate government agency, the President may, pending the conduct of
appropriate hearing, order the summary suspension of any such contract,
concession, license, permit, lease or privilege granted under this decree for
violation of any of the conditions therein such as those pertaining but not
limited to reforestation, pollution, environment protection, export limitation or
such condition as are prescribed by the Department of Natural Resources in
daily issued regulations. [As amended by PD No. 1559]
xxx
Section 52. Census of Kaingineros, Squatters, Cultural Minorities and Other

Occupants and Residents in Forest Lands - Henceforth, no person shall
enter into forest lands and cultivate the same without lease or permit.
A complete census of kaingineros, squatters, cultural minorities and other

occupants and residents in forest lands with or without authority or permits
from the government, showing the extent of their respective occupation and
resulting damage, or impairment of forest resources, shall be conducted.
The Bureau may call upon other agencies of the government and holders of
license agreement, license, lease and permits over forest lands to participate
in the census.
117
Section 53. Criminal Prosecution - Kaingineros, squatters, cultural minorities

and other occupants who entered into forest lands and grazing lands before
May 19, 1975, without permit or authority, shall not be prosecuted: Provided,
That they do not increase their clearings: Provided, further, That they
undertake, within two (2) months from notice thereof, the activities to be
imposed upon them by the Bureau in accordance with management plan
calculated to conserve and protect forest resources in the area: Provided,
finally, That kaingineros, squatters, cultural minorities and other occupants
shall whenever the best land use of the area so demands as determined by
the Director, be ejected and relocated to the nearest accessible government
resettlement area. [As amended by PD No. 1559]
xxx
Section 78. Cutting, Gathering and/or Collecting Timber, or Other Forest

Products Without License - Any person who shall cut, gather, collect, remove
timber or other forest products from any forestland, or timber from alienable
or disposable public land, or from private land, without any authority, or
possess timber or other forest products without the legal documents as
required under existing forest laws and regulations, shall be punished with
the penalties imposed under Articles 309 and 310 of the Revised Penal
Code: Provided, That in the case of partnership, associations, or
corporations, the officers who ordered the cutting, gathering, collection or
possession shall be liable, and if such officers are aliens, they shall, in
addition to the penalty, be deported without further proceedings on the part of
the Commission on Immigration and Deportation.
The Court shall further order the confiscation in favor of the government of
the timber or any forest products cut, gathered, collected, removed, or
possessed, as well as the machinery, equipment, implements and tools
illegally used in the area where the timber or forest products are found. [As
amended by PD No. 1559, and by EO No. 277, prom. July 25, 1987, 83 OG
No. 31, Aug. 3, 1987]
Section 78-A. Administrative Authority of the Department Head or His Duly

Authorized Representative to Order Confiscation - In all cases of violations of
this Code or other forest laws, rules and regulations, the Department Head or
his duly authorized representative, may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or abandoned, and
all conveyances used either by land, water or air in the commission of the
offense and to dispose of the same in accordance with pertinent laws,
regulations or policies on the matter. [As added by EO No. 277]
Section 79. Unlawful Occupation or Destruction of Forest Lands and Grazing

Lands - Any person who enters and occupies or possesses, or makes kaingin
for his own private use or for others, any forest land or grazing land without
authority under a license agreement, lease, license or permit, or in any
manner destroys such forest land or grazing land or part thereof, or causes
any damage to the timber stand and other products and forest growth found
therein, or who assists, aids or abets any other person to do so, or sets a fire,
or negligently permits a fire to be set in any forest land or grazing land, or
refuses to vacate the area when ordered to do so, pursuant to the provisions
of Section 53 hereof shall, upon conviction, be fined in an amount of not less
than five hundred pesos (P500.00), nor more than twenty thousand pesos
118
(P20,000.00) and imprisoned for not less than six (6) months nor more than
two (2) years for each such offense, and be liable to the payment of ten (10)
times to the rental fees and other charges which would have accrued had the
occupation and use of the land been authorized under a license agreement,
lease, license or permit: Provided, That in the case of an offender found guilty
of making kaingin, the penalty shall be imprisonment for not less than two (2)
nor more than four (4) years and a fine equal to eight (8) times the regular
forest charges due on the forest products destroyed, without prejudice to the
payment of the full cost of production of the occupied area as determined by
the Bureau: Provided, further, That the maximum of the penalty prescribed
herein shall be imposed upon the offender who repeats the same offense and
double the maximum of the penalty upon the offender who commits the same
offense for the third time.
In all cases, the Court shall further order the eviction of the offender from the
land the forfeiture to the government of all improvements made and all
vehicles, domestic animals and equipment of any kind used in the
commission of the offense. If not suitable for use by the Bureau, said
vehicles, domestic animals, equipment and improvements shall be sold at
public auction, the proceeds of which shall accrue to the Development Fund
of the Bureau. xxx
Section 85. Tax Declaration on Real Property - Imprisonment for a period of

not less than two (2) nor more than four (4) years and perpetual
disqualification from holding an elective or appointive office, shall be imposed
upon any public officer or employee who shall issue a tax declaration on real
property without a certification from the Director of Forest Development and
the Director of Lands or their duly designated representatives that the area
declared for taxation is alienable and disposable lands, unless the property is
titled or has been occupied and possessed by members of the national
cultural minorities prior to July 4, 1955.
Question: In the situationer, does it matter that the charcoal and lumber came from trees that
the farmers planted themselves, even if these were planted on forest land? (Note: Gmelina is
not naturally occurring in the country, one can assume somebody planted it). Cutting of any
trees in public land requires a permit, even if the trees were in fact planted and not naturally
growing.
In a case, the Court ruled that even cutting of trees in private lands, including trees that have
been planted, also require a permit.
People of the Philippines vs. Alfonso Dator and Benito Genol,

accused (Acquitted), Pastor Telen, accused-appellant.
G.R. No. 136142. October 24, 2000
DE LEON, JR., J.:
xxx
It appears that on October 29, 1993, Police Station Commander Alejandro Rojas of
Maasin, Southern Leyte, and SPO1 Necitas Bacala, were on board a police patrol
vehicle heading towards Barangay San Rafael, Maasin, Southern Leyte. Upon
119
reaching Barangay Laboon of the same municipality, they noticed a Isuzu cargo truck
loaded with pieces of lumber bound toward the town proper of Maasin. Suspicious that
the cargo was illegally cut pieces of lumber, Police Station Commander Rojas
maneuvered their police vehicle and gave chase.
Upon catching up with the Isuzu cargo truck in Barangay Soro-soro, Maasin, Southern
Leyte, they ordered the driver, accused Benito Genol, to pull over. Benito Genol was
left alone in the truck after his companions hurriedly left. When asked if he had the
required documents for the proper transport of the pieces of lumber, Genol answered
in the negative. Genol informed the police authorities that the pieces of lumber were
owned by herein appellant, Pastor Telen, while the Isuzu cargo truck bearing Plate No.
HAF 628 was registered in the name of Southern Leyte Farmers Agro-Industrial
Cooperative, Inc. (SLEFAICO) which is a local cooperative. Consequently, Police
Officers Rojas and Bacala directed Benito Genol to proceed to the Maasin Police
Station, Maasin, Southern Leyte for further investigation.
xxx
The defense denied any liability for the crime charged in the Information. Pastor Telen,
a utility worker at the Integrated Provincial Health Office, Southern Leyte for nineteen
(19) years, testified that he needed lumber to be used in renovating the house of his
grandparents in Barangay Abgao, Maasin, Southern Leyte where he maintained
residence. Knowing that it was prohibited by law to cut trees without appropriate permit
from the Department of Environment and Natural Resources (DENR), Telen sought the
assistance of a certain Lando dela Pena who was an employee at the CENRO,
Maasin, Southern Leyte. Dela Pena accompanied Telen to the office of a certain Boy
Leonor, who was the Officer in Charge of CENRO in Maasin, Southern Leyte. Leonor
did not approve of the plan of Telen to cut teak or hard lumber from his (Telen)
mother’s track of land in Tabunan, San Jose, Maasin, Southern Leyte. However,
Leonor allegedly allowed Telen to cut the aging Dita trees only. According to Telen,
Leonor assured him that a written permit was not anymore necessary before he could
cut the Dita trees, which are considered soft lumber, from the private land of his
mother, provided the same would be used exclusively for the renovation of his house
and that he shall plant trees as replacement thereof, which he did by planting
Gemelina seedlings.
xxx
Upon arrival in Barangay Soro-Soro, Telen was accosted by Police Station

Commander Alejandro Rojas who demanded from him DENR permit for the sawn
lumber. After confirming ownership of the sawn lumber, Telen explained to Rojas that
he had already secured verbal permission from Boy Leonor to cut Dita trees, which are
considered soft lumber, to be used in the renovation of his house and that he had
already replaced the sawn Dita trees with Gemelina seedlings, but to no avail. Rojas
ordered that the pieces of lumber and the Isuzu cargo truck be impounded at the
municipal building of Maasin, Southern Leyte for failure of Telen to produce the
required permit from the DENR.
Pastor Telen appeared before Bert Pesidas, CENRO hearing officer, in Maasin,
Southern Leyte for investigation in connection with the confiscated pieces of lumber.
Telen had tried to contact Officer-in-Charge Boy Leonor of the CENRO Maasin,
Southern Leyte after the confiscation of the sawn lumber on October 29, 1993 and
even during the investigation conducted by the CENRO hearing officer for three (3)
times but to no avail, for the reason that Boy Leonor was assigned at a reforestation
site in Danao, Cebu province.
120
xxx
After analyzing the evidence, the trial court rendered a decision, the dispositive portion
of which reads:
WHEREFORE, judgment is rendered as follows:
1. CONVICTING the accused PASTOR TELEN beyond reasonable doubt of

the offense charged and there being no modifying circumstances, and
with the Indeterminate Sentence Law being inapplicable, the herein
accused is hereby sentenced to suffer the indivisible penalty of
RECLUSION PERPETUA, with the accessory penalties provided by law,
which is two (2) degrees higher than PRISION MAYOR maximum, the
authorized penalty similar to Qualified Theft, and to pay the costs. His bail
for his provisional liberty is hereby cancelled and he shall be committed to
the New Bilibid Prisons, Muntinlupa, Metro Manila thru the Abuyog
Regional Prisons, Abuyog, Leyte via the Provincial Warden, Maasin,
Southern Leyte;
xxx
In his appeal Pastor Telen interpose the following assignments of error:
THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT FOR VIOLATION OF SEC. 68, P. D. 705, AS
AMENDED, BEING CONTRARY TO LAW AND THE EVIDENCE ON RECORD AND
FOR BEING NOT IN CONFORMITY WITH DENR ADMINISTRATIVE ORDER NO. 79,
SERIES OF 1990.
xxx
The appeal is not impressed with merit.
It is not disputed that appellant Pastor Telen is the owner of the fifty-one (51) pieces of
assorted Antipolo and Dita lumber with a total volume of 1,560.16 board feet. He
alleged that the pieces of lumber were cut from the track of land belonging to his
mother in San Jose, Maasin, Southern Leyte which he intended to use in the
renovation of his house in Barangay Abgao of the same municipality. After having
been confiscated by the police, while in transit, in Barangay Soro-soro, appellant Telen
failed to produce before the authorities the required legal documents from the DENR
pertaining to the said pieces of lumber.
The fact of possession by the appellant of the subject fifty-one (51) pieces of assorted
Antipolo and Dita lumber, as well as his subsequent failure to produce the legal
documents as required under existing forest laws and regulations constitute criminal
liability for violation of Presidential Decree No. 705, otherwise known as the Revised
Forestry Code. Section 68 of the code provides:
Section 68. Cutting, Gathering and/or Collecting Timber or Other Forest

Products Without License.-Any person who shall cut, gather, collect,
remove timber or other forest products from any forest land, or timber
from alienable or disposable public land, or from private land, without
121
any authority, or possess timber or other forest products without the

legal documents as required under existing forest laws and regulations,
shall be punished with the penalties imposed under Articles 309 and 310
of the Revised Penal Code: Provided, that in the case of partnerships,
associations, or corporations, the officers who ordered the cutting,
gathering, collection or possession shall be liable, and if such officers
are aliens, they shall, in addition to the penalty, be deported without
further proceedings on the part of the Commission on Immigration and
Deportation.
The Court shall further order the confiscation in favor of the government of the timber
or any forest products cut, gathered, collected, removed, or possessed, as well as the
machinery, equipment, implements and tools illegally used in the area where the
timber or forest products are found.
Appellant Telen contends that he secured verbal permission from Boy Leonor, Officer-
in-Charge of the DENR-CENRO in Maasin, Southern Leyte before cutting the lumber,
and that the latter purportedly assured him that written permit was not anymore
necessary before cutting soft lumber, such as the Antipolo and Dita trees in this case,
from a private track of land, to be used in renovating appellant’s house, provided that
he would plant trees as replacements thereof, which he already did. It must be
underscored that the appellant stands charged with the crime of violation of Section 68
of Presidential Decree No. 705, a special statutory law, and which crime is considered
mala prohibita. In the prosecution for crimes that are considered mala prohibita, the
only inquiry is whether or not the law has been violated. The motive or intention
underlying the act of the appellant is immaterial for the reason that his mere
possession of the confiscated pieces of lumber without the legal documents as
required under existing forest laws and regulations gave rise to his criminal liability.
In any case, the mere allegation of the appellant regarding the verbal permission given
by Boy Leonor, Officer in Charge of DENR-CENRO, Maasin, Southern Leyte, is not
sufficient to overturn the established fact that he had no legal documents to support
valid possession of the confiscated pieces of lumber. It does not appear from the
record of this case that appellant exerted any effort during the trial to avail of the
testimony of Boy Leonor to corroborate his allegation. Absent such corroborative
evidence, the trial court did not commit an error in disregarding the bare testimony of
the appellant on this point which is, at best, self-serving.
The appellant cannot validly take refuge under the pertinent provision of DENR
Administrative Order No. 79, Series of 1990 which prescribes rules on the deregulation
of the harvesting, transporting and sale of firewood, pulpwood or timber planted in
private lands. Appellant submits that under the said DENR Administrative Order No.
79, no permit is required in the cutting of planted trees within titled lands except
Benguet pine and premium species listed under DENR Administrative Order No. 78,
Series of 1987, namely: narra, molave, dao, kamagong, ipil, acacia, akle, apanit,
banuyo, batikuling, betis, bolong-eta, kalantas, lanete, lumbayao, sangilo, supa, teak,
tindalo and manggis.
Concededly, the varieties of lumber for which the appellant is being held liable for
illegal possession do not belong to the premium species enumerated under DENR
Administrative Order No. 78, Series of 1987. However, under the same DENR
administrative order, a certification from the CENRO concerned to the effect that the
forest products came from a titled land or tax declared alienable and disposable land
must still be secured to accompany the shipment. This the appellant failed to do, thus,
he is criminally liable under Section 68 of Presidential Decree No. 705 necessitating
122
prior acquisition of permit and “legal documents as required under existing forest laws
and regulations.” The pertinent portion of DENR Administrative Order No. 79, Series of
1990, is quoted hereunder, to wit:
In line with the National Reforestation Program and in order to promote

the planting of trees by owners of private lands and give incentives to
the tree farmers, Ministry Administrative Order No. 4 dated January 19,
1987 which lifted the restriction in the harvesting, transporting and sale
of firewood, pulpwood or timber produced from Ipil-Ipil (leucaenia spp)
and Falcate (Albizzia falcataria) is hereby amended to include all other
tree species planted in private lands except BENGUET PINE and
premium hardwood species. Henceforth, no permit is required in the
cutting of planted trees within the titled lands or tax declared A and D
lands with corresponding application for patent or acquired through court
proceedings, except BENGUET PINE and premium species listed under
DENR Administrative Order No 78, Series of 1987, provided, that a
certification of the CENRO concerned to the effect that the forest
products came from a titled land or tax declared alienable and
disposable land is issued accompanying the shipment.
The Chainsaw Act regulates the use if chainsaws in cutting and processing wood products:
The Chainsaw Act of 2002

Republic Act No. 9175
Sec. 5. Persons Authorized to Possess and Use a Chain Saw. — The
Department is hereby authorized to issue permits to possess and/or use a
chain saw for the felling and/or cutting of trees, timber and other forest or
agro-forest products to any applicant who:
(a) has a subsisting timber license agreement, production

sharing agreement, or similar agreements, or a private land
timber permit;
(b) is an orchard and fruit tree farmer;
(c) is an industrial tree farmer;
(d) is a licensed wood processor and the chain saw shall be

used for the cutting of timber that has been legally sold to said
applicant; or
(e) shall use the chain saw for a legal purpose.
Agencies of the government that use chain saws in some aspects of their
functions must likewise secure the necessary permit from the Department
before operating the same.
Sec. 6. Registration of Chain Saws. — Within a period of three (3) months
from the effectivity hereof, all persons who own or are otherwise in
possession of chain saws must register the same with the Department,
through any of its Community Environment and Natural Resources Office,
123
which shall issue the corresponding registration certificate or permit if it finds

such persons to be qualified hereunder.
Every permit to possess and/or use a chain saw for legitimate purpose shall
be valid for two (2) years upon issuance: Provided, That permits to possess
and use chainsaw issued to non-commercial orchard and fruit tree farmers
shall be valid for a period of five (5) years upon issuance. For this purpose,
the Department shall be allowed to collect reasonable registration fees for the
effective implementation of this Act.
Sec. 7. Penal Provisions. —
(1) Selling, Purchasing, Re-selling Transferring, Distributing or Possessing a

Chain Saw Without a Proper Permit. — Any person who sells, purchases,
transfers the ownership, distributes, or otherwise disposes or possesses a
chain saw without first securing the necessary permit from the Department
shall be punished with imprisonment of four (4) years, two (2) months and
one (1) day to six (6) years or a fine of not less than Fifteen thousand pesos
(P15,000.00) but not more than Thirty thousand pesos (P30,000.00) or both
at the discretion of the court, and the chain saw/s confiscated in favor of the
government.
xxx
(4) Actual Unlawful Use of Chain Saw. — Any person who is found to be in

possession of a chain saw and uses the same to cut trees and timber in
forest land or elsewhere except as authorized by the Department shall be
penalized with imprisonment of six (6) years and one (1) day to eight (8)
years or a fine of not less than Thirty thousand pesos (P30,000.00) but not
more than Fifty thousand pesos (P50,000.00) or both at the discretion of the
court without prejudice to being prosecuted for a separate offense that may
have been simultaneously committed. The chain saw unlawfully used shall be
likewise confiscated in favor of the government.
If the violation under this Sec. is committed by or through the command or

order of another person, partnership or corporation, the penalties herein
provided shall likewise be imposed on such other person, or the responsible
officer(s) in such partnership or corporation.
If the offender is a public official or employee, in addition to the above

penalties, he shall be removed from office and perpetually disqualified from
holding any public office.
The chain saws confiscated under this Sec. shall be sold at public auction to
qualified buyers and the proceeds thereof shall go to the Department.
xxx
The penal provisions of the Forestry Code are very clear, as illustrated by the following cases
of Mustang Lumber vs. Court of Appeals and Paat vs. Court of Appeals.
Paat v. Court of Appeals
124
G.R. No. 111107 January 10, 1997
Torres, Jr., J.:
xxx
The controversy on hand had its incipiency on May 19, 1989 when the truck of
private respondent Victoria de Guzman while on its way to Bulacan from San
Jose, Baggao, Cagayan, was seized by the Department of Environment and
Natural Resources (DENR, for brevity) personnel in Aritao, Nueva Vizcaya
because the driver could not produce the required documents for the forest
products found concealed in the truck. Petitioner Jovito Layugan, the
Community Environment and Natural Resources Officer (CENRO) in Aritao,
Cagayan, issued on May 23, 1989 an order of confiscation of the truck and
gave the owner thereof fifteen (15) days within which to submit an explanation
why the truck should not be forfeited. Private respondents, however, failed to
submit the required explanation. On June 22, 1989, Regional Executive
Director Rogelio Baggayan of DENR sustained petitioner Layugan’s action of
confiscation and ordered the forfeiture of the truck invoking Section 68-A of
Presidential Decree No. 705 as amended by Executive Order No. 277. Private
respondents filed a letter of reconsideration dated June 28, 1989 of the June
22, 1989 order of Executive Director Baggayan, which was, however, denied
in a subsequent order of July 12, 1989. Subsequently, the case was brought
by the petitioners to the Secretary of DENR pursuant to private respondents’
statement in their letter dated June 28, 1989 that in case their letter for
reconsideration would be denied then “this letter should be considered as an
appeal to the Secretary.” Pending resolution however of the appeal, a suit for
replevin, docketed as Civil Case 4031, was filed by the private respondents
against petitioner Layugan and Executive Director Baggayan with the
Regional Trial Court, Branch 2 of Cagayan, which issued a writ ordering the
return of the truck to private respondents. Petitioner Layugan and Executive
Director Baggayan filed a motion to dismiss with the trial court
contending, inter alia, that private respondents had no cause of action for their
failure to exhaust administrative remedies. The trial court denied the motion to
dismiss in an order dated December 28, 1989. Their motion for
reconsideration having been likewise denied, a petition for certiorari was filed
by the petitioners with the respondent Court of Appeals which sustained the
trial court’s order ruling that the question involved is purely a legal question.
Hence, this present petition, with prayer for temporary restraining order and/or
preliminary injunction, seeking to reverse the decision of the respondent Court
of Appeals was filed by the petitioners on September 9, 1993. By virtue of the
Resolution dated September 27, 1993, the prayer for the issuance of
temporary restraining order of petitioners was granted by this Court.
Invoking the doctrine of exhaustion of administrative remedies, petitioners

aver that the trial court could not legally entertain the suit for replevin because
the truck was under administrative seizure proceedings pursuant to Section
68-A of P.D. 705, as amended by E.O. 277. Private respondents, on the other
hand, would seek to avoid the operation of this principle asserting that the
instant case falls within the exception of the doctrine upon the justification that
(1) due process was violated because they were not given the chance to be
heard, and (2) the seizure and forfeiture was unlawful on the grounds: (a) that
the Secretary of DENR and his representatives have no authority to confiscate
125
and forfeit conveyances utilized in transporting illegal forest products, and (b)
that the truck as admitted by petitioners was not used in the commission of the
crime.
Upon a thorough and delicate scrutiny of the records and relevant

jurisprudence on the matter, we are of the opinion that the plea of petitioners
for reversal is in order.
This Court in a long line of cases has consistently held that before a party is
allowed to seek the intervention of the court, it is a pre-condition that he
should have availed of all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery can still be resorted to
by giving the administrative officer concerned every opportunity to decide on a
matter that comes within his jurisdiction then such remedy should be
exhausted first before court's judicial power can be sought, The premature
invocation of court's intervention is fatal to one's cause of action. Accordingly,
absent any finding of waiver or estoppel the case is susceptible of dismissal
for lack of cause of
action.
xxx
There is no question that the controversy was pending before the Secretary of
DENR when it was forwarded to him following the denial by the petitioners of
the motion for reconsideration of private respondents through the order of July
12, 1989. In their letter of reconsideration dated June 28, 1989, private
respondents clearly recognize the presence of an administrative forum to
which they seek to avail, as they did avail, in the resolution of their case. The
letter reads, thus:
xxx
If this motion for reconsideration does not merit your favorable

action, then this letter should be considered as an appeal to
the Secretary.
It was easy to perceive then that the private respondents looked up to the
Secretary for the review and disposition of their case. By appealing to him,
they acknowledged the existence of an adequate and plain remedy still
available and open to them in the ordinary course of the law. Thus, they
cannot now, without violating the principle of exhaustion of administrative
remedies, seek court's intervention by filing an action for replevin for the grant
of their relief during the pendency of an administrative proceeding.
xxx
It is important to point out that the enforcement of forestry laws, rules and
regulations and the protection, development and management of forest lands
fall within the primary and special responsibilities of the Department of
Environment and Natural Resources. By the very nature of its function, the
DENR should be given a free hand unperturbed by judicial intrusion to
determine a controversy which is well within its jurisdiction. The assumption by
the trial court, therefore, of the replevin suit filed by private respondents
126
constitutes an unjustified encroachment into the domain of the administrative

agency's prerogative. The doctrine of primary jurisdiction does not warrant a
court to arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an administrative body of special
competence.
xxx
Second, private respondents imputed the patent illegality of seizure and

forfeiture of the truck because the administrative officers of the DENR
allegedly have no power to perform these acts under the law. They insisted
that only the court is authorized to confiscate and forfeit conveyances used in
transporting illegal forest products as can be gleaned from the second
paragraph of Section 68 of P.D. 705, as amended by E.O. 277. The pertinent
provision reads as follows:
Sec. 68. . . .
xxx xxx xxx
The court shall further order the confiscation in favor of the

government ofthe timber or any forest products cut, gathered,
collected, removed, or possessed, as well as the machinery,
equipments,implements and tools illegaly [sic] used in the area
where the timber or forest products are found. (Emphasis ours)
A reading, however, of the law persuades us not to go along with private

respondents' thinking not only because the aforequoted provision apparently
does not mention nor include "conveyances" that can be the subject of
confiscation by the courts, but to a large extent, due to the fact that private
respondents' interpretation of the subject provision unduly restricts the clear
intention of the law and inevitably reduces the other provision of Section 68-A,
which is quoted herein below:
Sec. 68-A. Administrative Authority of the Department or His

Duly Authorized Representative To Order Confiscation. In all
cases of violation of this Code or other forest laws, rules and
regulations, the Department Head or his duly authorized
representative, may order the confiscation of any forest
products illegally cut, gathered, removed, or possessed or
abandoned, and all conveyances used either by land, water or
air in the commission of the offense and to dispose of the same
in accordance with pertinent laws, regulations and policies on
the matter. (Emphasis ours)
It is, thus, clear from the foregoing provision that the Secretary and his duly
authorized representatives are given the authority to confiscate and forfeit any
conveyances utilized in violating the Code or other forest laws, rules and
regulations. The phrase "to dispose of the same" is broad enough to cover the
act of forfeiting conveyances in favor of the government. The only limitation is
that it should be made "in accordance with pertinent laws, regulations or
policies on the matter." In the construction of statutes, it must be read in such
a way as to give effect to the purpose projected in the statute. Statutes should
be construed in the light of the object to be achieved and the evil or mischief to
127
be suppressed, and they should be given such construction as will advance

the object, suppress the mischief, and secure the benefits intended.
In this wise, the observation of the Solicitor General is significant, thus:
“But precisely because of the need to make forestry laws ‘more

responsive to present situations and realities’ and in view of the
‘urgency to conserve the remaining resources of the country,’
that the government opted to add Section 68-A. This
amendatory provision is an administrative remedy totally
separate and distinct from criminal proceedings. More than
anything else, it is intended to supplant the inadequacies that
characterize enforcement of forestry laws through criminal
actions. The preamble of EO 277-the law that added Section
68-A to PD 705-is most revealing:
‘WHEREAS, there is an urgency to conserve the remaining

forest resources of the country for the benefit and welfare
of the present and future generations of Filipinos;
WHEREAS, our forest resources may be effectively

conserved and protected through the vigilant enforcement
and implementation of our forestry laws, rules and
regulations;
WHEREAS, the implementation of our forestry laws suffers

from technical difficulties, due to certain inadequacies in
the penal provisions of the Revised Forestry Code of the
Philippines; and
WHEREAS, to overcome this difficulties, there is a need to

penalize certain acts more responsive to present situations
and realities;’
It is interesting to note that Section 68-A is a new provision

authorizing the DENR to confiscate, not only ‘conveyances,’ but
forest products as well. On the other hand, confiscation of forest
products by the ‘court’ in a criminal action has long been
provided for in Section 68. If as private respondents insist, the
power on confiscation cannot be exercised except only through
the court under Section 68, then Section 68-A would have no
purpose at all. Simply put, Section 68-A would not have
provided any solution to the problem perceived in EO
277, supra.”
xxx
With the introduction of Executive Order No. 277 amending Section 68 of P.D.
705, the act of cutting, gathering, collecting, removing, or possessing forest
products without authority constitutes a distinct offense independent now from
the crime of theft under Articles 309 and 310 of the Revised Penal Code, but
the penalty to be imposed is that provided for under Article 309 and 310 of the
Revised Penal Code. This is clear from the language of Executive Order No.
128
277 when it eliminated the phrase "shall be guilty of qualified theft as defined
and punished under Articles 309 and 310 of the Revised Penal Code" and
inserted the words "shall be punished with the penalties imposed under Article
309 and 310 of the Revised Penal Code". When the statute is clear and
explicit, there is hardly room for any extended court ratiocination or
rationalization of the law.
From the foregoing disquisition, it is clear that a suit for replevin can not be
sustained against the petitioners for the subject truck taken and retained by
them for administrative forfeiture proceedings in pursuant to Section 68-A of
the P.D. 705, as amended. Dismissal of the replevin suit for lack of cause of
action in view of the private respondents' failure to exhaust administrative
remedies should have been the proper course of action by the lower court
instead of assuming jurisdiction over the case and consequently issuing the
writ ordering the return of the truck. Exhaustion of the remedies in the
administrative forum, being a condition precedent prior to one's recourse to
the courts and more importantly, being an element of private respondents'
right of action, is too significant to be waylaid by the lower court.
Petition Granted; Decision of the respondent Court of Appeals and its

Resolution are hereby SET ASIDE AND REVERSED; the Restraining Order is
hereby made permanent.
Mustang Lumber v. Court of Appeals

G.R. No. 104988 June 18, 1996
Davide, Jr., J:
Petitioner, a domestic corporation with principal office at Nos. 1350-1352

Juan Luna Street, Tondo, Manila, and with a Lumberyard at Fortune Street,
Fortune Village, Paseo de Blas, Valenzuela, Metro Manila, was duly
registered as a lumber dealer with the Bureau of Forest Development (BFD)
under Certificate of Registration No. NRD-4-092590-0469. Its permit as such
was to expire on 25 September 1990.
Respondent Secretary Fulgencio S. Factoran, Jr., and respondent Atty.

Vincent A. Robles were, during all the time material to these cases, the
Secretary of the Department of Environment and Natural Resources (DENR)
and the Chief of the Special Actions and Investigation Division (SAID) of the
DENR, respectively.
xxx
On 1 April 1990, acting on an information that a huge stockpile of narra

flitches, shorts, and slabs were seen inside the lumberyard of the petitioner
in Valenzuela, Metro Manila, the SAID organized a team of foresters and
policemen and sent it to conduct surveillance at the said lumberyard. In the
course thereof, the team members saw coming out from the lumberyard the
petitioner's truck, with Plate No. CCK-322, loaded with lauan and almaciga
lumber of assorted sizes and dimensions. Since the driver could not produce
129
the required invoices and transport documents, the team seized the truck
together with its cargo and impounded them at the DENR compound at
Visayas Avenue, Quezon City. The team was not able to gain entry into the
premises because of the refusal of the owner.
On 3 April 1990, the team was able to secure a search warrant from
Executive Judge Adriano R. Osorio of the Regional Trial Court (RTC) of
Valenzuela, Metro Manila. By virtue thereof, the team seized on that date
from the petitioner's lumberyard four truckloads of narra shorts, trimmings,
and slabs; a negligible number of narra lumber; and approximately 200,000
board feet of lumber and shorts of various species including almaciga and
supa.
On 4 April 1990, the team returned to the premises of the petitioner's

lumberyard in Valenzuela and placed under administrative seizure the
remaining stockpile of almaciga, supa, and lauan lumber with a total volume
of 311,000 board feet because the petitioner failed to produce upon demand
the corresponding certificate of lumber origin, auxiliary invoices, tally sheets,
and delivery receipts from the source of the invoices covering the lumber to
prove the legitimacy of their source and origin.
Parenthetically, it may be stated that under an administrative seizure the

owner retains the physical possession of the seized articles. Only an
inventory of the articles is taken and signed by the owner or his
representative. The owner is prohibited from disposing them until further
orders.
xxx
On 3 May 1990, Secretary Factoran issued another order wherein, after

reciting the events which took place on 1 April and 3 April 1990, he ordered
"CONFISCATED in favor of the government to be disposed of in accordance
with law" the approximately 311,000 board feet of lauan, supa, and almaciga
lumber, shorts, and sticks found inside the petitioner's lumberyard.
xxx
On 17 September 1990, in response to reports that violations of P.D. No.

705 (The Revised Forestry Code of the Philippines), as amended, were
committed and acting upon instruction of Robles and under Special Order
No. 897, series of 1990, a team of DENR agents went to the business
premises of the petitioner located at No. 1352 Juan Luna Street, Tondo,
Manila. The team caught the petitioner operating as a lumber dealer
although its lumber-dealer's permit had already been suspended or 23 April
1990. Since the gate of the petitioner's lumberyard was open, the team went
inside and saw an owner-type jeep with a trailer loaded with lumber. Upon
investigation, the team was informed that the lumber loaded on the trailer
was to be delivered to the petitioner's customer. It also came upon the sales
invoice covering the transaction. The members of the team then introduced
themselves to the caretaker, one Ms. Chua, who turned out to be the wife of
the petitioner's president and general manager, Mr. Ri Chuy Po, who was
130
then out of town. The team's photographer was able to take photographs of
the stockpiles of lumber including newly cut ones, fresh dust around sawing
or cutting machineries and equipment, and the transport vehicles loaded with
lumber. The team thereupon effected a constructive seizure of approximately
20,000 board feet of lauan lumber in assorted sizes stockpiled in the
premises by issuing a receipt therefor.
Petitioner filed with the RTC of Manila a petition forcertiorari and prohibition.

The case (hereinafter, the SECOND CIVIL CASE) was docketed as Civil
Case No. 90-54610 and assigned to Branch 24 of the said court.
xxx
An information was filed on 5 June 1991 by the DOJ with Branch 172 of the
RTC of Valenzuela, charging Ri Chuy Po with the violation of Section 58 of
P.D. No. 705, as amended, which was docketed as Criminal Case No. 324-
V-91 (hereinafter, the CRIMINAL CASE). The accusatory portion of the
information reads as follows:
That on or about the 3rd day of April 1990, or prior to or subsequent thereto,
within the premises and vicinity of Mustang Lumber, Inc. in Fortune Village,
Valenzuela, Metro Manila, and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, feloniously and
unlawfully have in his possession truckloads of almaciga and lauan and
approximately 200,000 bd. ft. of lumber and shorts of various species
including almaciga and supa, without the legal documents as required under
existing forest laws andregulations.
On 7 June 1991, Branch 35 of the RTC of Manila rendered its decision in the
FIRST CIVIL CASE, the dispositive portion of which reads:
WHEREFORE, judgment in this case is rendered as follows:
1. The Order of Respondent Secretary of the DENR, the Honorable

Fulgencio S. Factoran, Jr., dated 3 May 1990 ordering the confiscation in
favor of the Government the approximately 311,000 board feet of Lauan,
supa, end almaciga Lumber, shorts and sticks, found inside and seized from
the Lumberyard of the petitioner at Fortune Drive, Fortune Village, Paseo de
Blas, Valenzuela, Metro Manila, on April 4, 1990 (Exhibit 10), is hereby set
aside and vacated, and instead the respondents are required to report and
bring to the Hon. Adriano Osorio, Executive Judge, Regional Trial Court,
NCR, Valenzuela, Metro Manila, the said 311,000 board feet of Lauan, supa
and almaciga Lumber, shorts and sticks, to be dealt with as directed by Law;
2. The respondents are required to initiate and prosecute the appropriate

action before the proper court regarding the Lauan and almaciga lumber of
assorted sizes and dimensions Loaded in petitioner's truck bearing Plate No.
CCK-322 which were seized on April 1, 1990;
3. The Writ of Preliminary Injunction issued by the Court on August 2, 1990

shall be renderedfunctus oficio upon compliance by the respondents with
paragraphs 1 and 2 of this judgment;.
131
4. Action on the prayer of the petitioner that the Lauan, supa and almaciga
lumber, shorts and sticks mentioned above in paragraphs 1 and 2 of this
judgment be returned to said petitioner is withheld in this case until after the
proper court has taken cognizance and determined how those Lumber,
shorts and sticks should be disposed of; and
5. The petitioner is ordered to pay the costs.
SO ORDERED
xxx
The trial court, however, set aside Secretary Factoran's order of 3 May 1990
ordering the confiscation of the seized articles in favor of the Government for
the reason that since the articles were seized pursuant to the search warrant
issued by Executive Judge Osorio they should have been returned to him in
compliance with the directive in the warrant.
Xxx
In the CRIMINAL CASE, respondent Judge Teresita Dizon-Capulong

granted the motion to quash and dismissed the case on the ground that
"possession of lumber without the legal documents required by forest laws
and regulations is not a crime.
Its motion for reconsideration having been denied in the order of 18 October
1991, the People filed a petition for certiorari with this Court in G.R. No.
106424, wherein it contends that the respondent Judge acted with grave
abuse of discretion in granting the motion to quash and in dismissing the
case.
The People filed a petition for certiorari with this Court in G.R. No. 106424,
wherein it contends that the respondent Judge acted with grave abuse of
discretion in granting the motion to quash and in dismissing the case.
The Court of Appeals rendered a decision in CA-G.R. SP

No. 25510 dismissing for lack of merit the petitioner's appeal from the
decision in the FIRST CIVIL CASE and affirming the trial court's rulings on
the issues raised. As to the claim that the truck was not carrying contraband
articles since there is no law punishing the possession of lumber, and
that lumber is not timber whose possession without the required legal
documents is unlawful under P.D. No. 705, as amended, the Court of
Appeals held:
This undue emphasis on lumber or the commercial nature of the forest

product involved has always been foisted by those who claim to be engaged
in the legitimate business of lumber dealership. But what is important to
consider is that when appellant was required to present the valid documents
showing its acquisition and lawful possession of the lumber in question, it
failed to present any despite the period of extension granted to it.
132
The petitioner's motion to reconsider the said decision was denied by the
Court of Appeals in its resolution of 3 March 1992. Hence, the petitioner
came to this Court by way of a petition for review on certiorari in G.R. No.
104988, which was filed on 2 May 1992
xxx
On 24 September 1992, Branch 24 of the RTC of Manila handed down a

decision in the SECOND CIVIL CASE dismissing the petition
for certiorari and prohibition because (a) the petitioner did not exhaust
administrative remedies; (b) when the seizure was made on 17 September
1990 the petitioner could not lawfully sell lumber, as its license was still
under suspension; (c) the seizure was valid under Section 68-A of P.D. No.
705, as amended; and (d) the seizure was justified as a warrantless search
and seizure under Section 80 of P.D. No. 705, as amended.
The petitioner appealed from the decision to the Court of Appeals, which
docketed the appeal as CA-G.R. SP No. 33778.
In its decision of 31 July 1995, the Court of Appeals dismissed the

petitioner's appeal in CA-G.R. SP No. 33778 for lack of merit and sustained
the grounds relied upon by the trial court in dismissing the SECOND CIVIL
CASE. Relying on the definition of "lumber" by Webster, viz., "timber or logs,
especially after being prepared for the market," and by the Random House
Dictionary of the English Language, viz., "wood, esp. when suitable or
adapted for various building purposes," the respondent Court held that
since wood is included in the definition of forest product in Section 3(q) of
P.D. No. 705, as amended, lumber is necessarily included in Section 68
under the term forest product.
G.R. No. 106424
Xxx
Respondent Ri Chuy Po is charged with the violation of Section 68 of P.D.

No. 705, as amended by E.O. No. 277, which provides:
Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest

Products Without License. -- Any person who shall cut, gather, collect,
remove timber or other forest products from any forest land, or timber from
alienable or disposable public land, or from private land, without any
authority, or possess timber or other forest products without the legal
documents as required under existing forest laws and regulations, shall be
punished with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code: Provided, That in the case of partnerships,
associations, or corporations, the officers who ordered the cutting, gathering,
collection or possession shall be liable, and if such officers are aliens, they
shall, in addition to the penalty, be deported without further proceedings on
the part of the Commission on Immigration and Deportation.
The Court shall further order the confiscation in favor of the government of
the timber or any forest products cut, gathered, collected, removed, or
133
possessed, as well as the machinery, equipment, implements and tools

illegally used in the area where the timber or forest products are found.
Punished then in this section are (1) the cutting, gathering, collection,

or removal of timber or other forest products from the places therein
mentioned without any authority; and (b) possession of timber forest
products without the legal documents as required under existing forest laws
and regulations.
Indeed, the word lumber does not appear in Section 68. But conceding ex

gratia that this omission amounts to an exclusion of lumber from the
section's coverage, do the facts averred in the information in the CRIMINAL
CASE validly charge a violation of the said section?
A cursory reading of the information readily leads us to an infallible

conclusion that lumber is not solely its subject matter. It is evident therefrom
that what are alleged to be in the possession of the private respondent,
without the required legal documents, are truckloads of
(1) almaciga and lauan; and
(2) approximately 200,000 bd. ft. of lumber and shorts of various species

including almaciga and supa.
The "almaciga and lauan" specifically mentioned in no. (1) are not described
as "lumber." They cannot refer to the "lumber" in no. (2) because they are
separated by the words "approximately 200,000 bd. ft." with the conjunction
"and," and not with the preposition "of." They must then be raw forest
products or, more specifically, timbers under Section 3(q) of P.D. No. 705,
as amended, which reads:
Sec. 3. Definitions. --
xxx xxx xxx
(q) Forest product means timber, firewood, bark, tree top, resin, gum, wood,
oil, honey, beeswax, nipa, rattan, or other forest plant, the associated water,
fish game, scenic, historical, recreational and geological resources in forest
lands.
It follows then that lumber is only one of the items covered by the

information. The public and the private respondents obviously
miscomprehended the averments in the information. Accordingly, even
if lumber is not included in Section 68, the other items therein as noted
above fall within the ambit of the said section, and as to them, the
information validly charges an offense
xxx
The Revised Forestry Code contains no definition of either timber or lumber.

While the former is included inforest products as defined in paragraph (q) of
134
Section 3, the latter is found in paragraph (aa) of the same section in the
definition of "Processing plant," which reads:
(aa) Processing plant is any mechanical set-up, machine or combination of

machine used for the processing of logs and other forest raw materials
into lumber, veneer, plywood, wallbond, blockboard, paper board, pulp,
paper or other finished wood products.
This simply means that lumber is a processed log or processed forest raw

material. Clearly, the Code uses the term lumber in its ordinary or common
usage. In the 1993 copyright edition of Webster's Third New International
Dictionary, lumber is defined, inter alia, as "timber or logs after being
prepared for the market." 32 Simply put, lumber is a processed log or timber.
It is settled that in the absence of legislative intent to the contrary, words and
phrases used in a statute should be given their plain, ordinary, and common
usage meaning. And insofar as possession of timber without the required
legal documents is concerned, Section 68 of P.D. No. 705, as amended,
makes no distinction between raw or processed timber. Neither should
we. Ubi lex non distinguere debemus.
G.R. No. 104988
We find this petition to be without merit.
xxx
The seizure of such truck and its cargo was a valid exercise of the power
vested upon a forest officer or employee by Section 80 of P.D. No. 705, as
amended by P.D. No. 1775. Then, too, as correctly held by the trial court and
the Court of Appeals in the FIRST CIVIL CASE, the search was conducted
on a moving vehicle. Such a search could be lawfully conducted without a
search warrant.
Search of a moving vehicle is one of the five doctrinally accepted exceptions

to the constitutional mandate that no search or seizure shall be made except
by virtue of a warrant issued by a judge after personally determining the
existence of probable cause. The other exceptions are (3) search as an
incident to a lawful arrest, (2) seizure of evidence in plain view, (3) customs
searches, and (4) consented warrantless search.
G.R. No. 123784
The Court of Appeals correctly dismissed the petitioner's appeal from the
judgment of the trial court in the SECOND CIVIL CASE. The petitioner never
disputed the fact that its lumber-dealer's license or permit had been
suspended by Secretary Factoran on 23 April 1990. The suspension was
never lifted, and since the license had only a lifetime of up to 25 September
1990, the petitioner has absolutely no right to possess, sell, or otherwise
dispose of lumber. Accordingly, Secretary Factoran or his authorized
representative had the authority to seize the Lumber pursuant to Section 68-
A of P.D. No. 705, as amended, which provides as follows:
135
Sec. 68-A Administrative Authority of the Department Head or his Duly

Authorized Representative to Order Confiscation. -- In all cases of violations
of this Code or other forest laws, rules and regulations, the Department
Head or his duly authorized representative may order the confiscation of any
forest products illegally cut, gathered, removed, or possessed or abandoned.
...
xxx
WHEREFORE, judgment is hereby rendered
1. (a) GRANTING the petition in G.R. No. 106424; (b) SETTING ASIDE and
ANNULLING, for having been rendered with grave abuse of discretion, the
challenged orders of 16 August 1991 and 18 October 1991 of respondent
Judge Teresita Dizon-Capulong, Branch 172, Regional Trial Court of
Valenzuela, Metro Manila, in Criminal Case No. 324-V-91, entitled "People
of the Philippines vs. Ri Chuy Po"; (c) REINSTATING the information in the
said criminal case; and (d) DIRECTING the respondent Judge or her
successor to hear and decide the case with purposeful dispatch; and
2. DENYING the petitions in G.R. No. 104988 and in G. R. No. 123784 for
utter failure of the petitioner to show that the respondent Court of Appeals
committed any reversible error in the challenged decisions of 29 November
1991 in CA-G.R. SP No. 25510 in the FIRST CIVIL CASE and of 31 July
1995 in CA-G.R. SP No. 33778 on the SECOND CIVIL CASE.
Costs against the petitioner in each of these three cases.
SO ORDERED.
Meridavs.People of the Philippines

G.R. No. 158182, June 12, 2008
Carpio, J.:
Petitioner was charged in the Regional Trial Court of Romblon, Romblon,

Branch 81 (trial court) with violation of Section 68 of PD 705, as amended, for
"cut[ting], gather[ing], collect[ing] and remov[ing]" a lone narra tree inside a
private land in Mayod, Ipil, Magdiwang, Romblon (Mayod Property) over
which private complainant Oscar M. Tansiongco (Tansiongco) claims
ownership.
The prosecution evidence showed that on 23 December 1998, Tansiongco

learned that petitioner cut a narra tree in the Mayod Property. Tansiongco
reported the matter to Florencio Royo (Royo), the punong barangay of Ipil.
On 24 December 1998, Royo summoned petitioner to a meeting with
Tansiongco. When confronted during the meeting about the felled narra tree,
petitioner admitted cutting the tree but claimed that he did so with the
permission of one Vicar Calix (Calix) who, according to petitioner, bought the
Mayod Property from Tansiongco in October 1987 under a pacto de retro
136
sale. Petitioner showed to Royo Calix's written authorization signed by Calix's

wife.
On 11 January 1999, Tansiongco reported the tree-cutting to the Department

of Environment and Natural Resources (DENR) forester Thelmo S.
Hernandez (Hernandez) in Sibuyan, Romblon. When Hernandez confronted
petitioner about the felled tree, petitioner reiterated his earlier claim to Royo
that he cut the tree with Calix's permission. Hernandez ordered petitioner not
to convert the felled tree trunk into lumber.
On 26 January 1999, Tansiongco informed Hernandez that petitioner had

converted the narra trunk into lumber. Hernandez, with other DENR
employees and enforcement officers, went to the Mayod Property and saw
that the narra tree had been cut into six smaller pieces of lumber. Hernandez
took custody of the lumber, deposited them for safekeeping with Royo, and
issued an apprehension receipt to petitioner. A larger portion of the felled tree
remained at the Mayod Property.
Section 68, as amended, one of the 12 acts25 penalized under PD 705,

provides:
SECTION 68. Cutting, Gathering and/or Collecting Timber, or Other Forest

Products Without License. - Any person who shall cut, gather, collect, remove
timber or other forest products from any forest land, or timber from alienable
or disposable public land, or from private land, without any authority, or
possess timber or other forest products without the legal documents as
required under existing forest laws and regulations, shall be punished with
the penalties imposed under Articles 309 and 310 of the Revised Penal
Code: Provided, That in the case of partnerships, associations, or
corporations, the officers who ordered the cutting, gathering, collection or
possession shall be liable, and if such officers are aliens, they shall, in
addition to the penalty, be deported without further proceedings on the part of
the Commission on Immigration and Deportation.
The court shall further order the confiscation in favor of the government of the
timber or any forest products cut, gathered, collected, removed, or possessed
as well as the machinery, equipment, implements and tools illegally used in
the area where the timber or forest products are found. (Emphasis supplied)
Section 68 penalizes three categories of acts: (1) the cutting, gathering,

collecting, or removing of timber or other forest products from any forest land
without any authority; (2) the cutting, gathering, collecting, or removing of
timber from alienable or disposable public land, or from private land without
any authority; and (3) the possession of timber or other forest products
without the legal documents as required under existing forest laws and
regulations. Petitioner stands charged of having "cut, gathered, collected and
removed timber or other forest products from a private land without x x x the
necessary permit x x x " thus his liablity, if ever, should be limited only for
"cut[ting], gather[ing], collect[ing] and remov[ing] timber," under the second
category. Further, the prosecution evidence showed that petitioner did not
perform any acts of "gathering, collecting, or removing" but only the act of
"cutting" a lone narra tree. Hence, this case hinges on the question of
137
whether petitioner "cut x x x timber" in the Mayod Property without a DENR

permit.
We answer in the affirmative and thus affirm the lower courts' rulings.
On the question of whether petitioner cut a narra tree in the Mayod Property
without a DENR permit, petitioner adopted conflicting positions. Before his
trial, petitioner consistently represented to the authorities that he cut a narra
tree in the Mayod Property and that he did so only with Calix's permission.
However, when he testified, petitioner denied cutting the tree in question. We
sustain the lower courts' rulings that petitioner's extrajudicial admissions bind
him. Petitioner does not explain why Royo and Hernandez, public officials
who testified under oath in their official capacities, would lie on the stand to
implicate petitioner in a serious criminal offense, not to mention that the acts
of these public officers enjoy the presumption of regularity. Further, petitioner
does not deny presenting Calix's authorization to Royo and Hernandez as his
basis for cutting the narra tree in the Mayod Property. Petitioner has no use
of Calix's authorization if, as he claimed during the trial, he did not cut any
tree in the Mayod Property.
We further hold that the lone narre tree petitioner cut from the Mayod
Property constitutes "timber" under Section 68 of PD 705, as amended. PD
705 does not define "timber," only "forest product" (which circuitously
includes "timber.") Does the narra tree in question constitute "timber" under
Section 68? The closest this Court came to defining the term "timber" in
Section 68 was to provide that "timber," includes "lumber" or "processed log."
In other jurisdictions, timber is determined by compliance with specified
dimensions or certain "stand age" or "rotation age." In Mustang Lumber, Inc.
v. Court of Appeals, this Court was faced with a similar task of having to
define a term in Section 68 of PD 705 - "lumber" - to determine whether
possession of lumber is punishable under that provision. In ruling in the
affirmative, we held that "lumber" should be taken in its ordinary or common
usage meaning to refer to "processed log or timber," thus:
The Revised Forestry Code contains no definition of either timber or lumber.

While the former is included in forest products as defined in paragraph (q) of
Section 3, the latter is found in paragraph (aa) of the same section in the
definition of "Processing plant," which reads:
(aa) Processing plant is any mechanical set-up, machine or combination of

machine used for the processing of logs and other forest raw materials into
lumber, veneer, plywood, wallboard, blackboard, paper board, pulp, paper or
other finished wood products.
This simply means that lumber is a processed log or processed forest raw
material. Clearly, the Code uses the term lumber in its ordinary or common
usage. In the 1993 copyright edition of Webster's Third New International
Dictionary, lumber is defined, inter alia, as "timber or logs after being
prepared for the market." Simply put, lumber is a processed log or timber.
It is settled that in the absence of legislative intent to the contrary, words and
phrases used in a statute should be given their plain, ordinary, and common
usage meaning. And in so far as possession of timber without the required
138
legal documents is concerned, Section 68 of PD No. 705, as amended,

makes no distinction between raw and procesed timber. Neither should we. x
x x x.88
We see no reason why, as in Mustang, the term "timber" under Section 68

cannot be taken in its common acceptation as referring to "wood used for or
suitable for building or for carpentry or joinery." Indeed, tree saplings or tiny
tree stems that are too small for use as posts, panelling, beams, tables, or
chairs cannot be considered timber.
Here, petitioner was charged with having felled a narra tree and converted
the same into "several pieces of sawn lumber, about three (3) pcs. 2x16x6
and three (3) pcs. 2x18x7 x x x consisting of 111 board feet x x x." These
measurements were indicated in the apprehension receipt Hernandez issued
to petitioner on 26 January 1999 which the prosecution introduced in
evidence.Further, Hernandez testified that the larger portion of the felled log
left in the Mayod Property "measured 76 something centimeters [at the big
end] while the smaller end measured 65 centimeters and the length was 2.8
meters." Undoubtedly, the narra tree petitioner felled and converted to lumber
was "timber" fit "for building or for carpentry or joinery" and thus falls under
the ambit of Section 68 of PD 705, as amended.
Despite this, illegal logging is rampant throughout the country, not because of the absence of
effective laws, but because of the government’s lack of resources devoted to enforcement.
4.3.1 Evolution of Forest Policies
The history of Philippine Forestry has been marked by rampant and rapid human utilization
and exploitation of the forest resources encouraged by past forest policies that allowed
exploitative activities, which led to severe deforestation of the country’s forest lands. 89 The
primary law on Philippine Forestry is Presidential Decree 705, more commonly known as the
Revised Forestry Code, which was issued during the Marcos Administration in 1975. It
exhibits the same utilitarian policy, but introduced the idea of sustainable use of forest
resources.
The Code identified the need to regulate forestry activities in order to maximize and ensure
the continuous productivity of the forests to support the demands of the country. This had
been addressed through the issuance of license agreements, licenses, leases or permits that
grant its holders the privilege to pursue any activity within specific forest concession areas,
subject to further government regulation to guarantee sustainable utilization of forest
resources. To enforce its policy of sustainable forest utilization, the Code authorized the
President of the country to “amend, modify, replace, or rescind” any privileges granted in
consideration of national interest and to suspend the same upon determination of any
violation of the stipulated conditions therein such as reforestation and environmental
protection.90 This is one manner by which to deter the grant holders from violating the
requirements of forest protection and rehabilitation especially since these activities would
require additional financial expenditures on their part. P.D. No. 705 also provide for penal
88 Italicization in the original; boldfacing supplied.
89 Juan Pulhin, Trends in Forest Policy in the Philippines 29, 31-33 (Policy Trend Report, 2002)
< http://enviroscope.iges.or.jp/modules/envirolib/upload/371/attach/03_Philippines.pdf >
90 P.D. No. 705, Sections 2, 19, 20
139
sanctions for the conduct unauthorized logging and/or other forest activities, among other
things.91 The criminalization of these activities emphasize the importance of ensuring
sustainability of forest productivity to secure its continued contribution of the timber industry
to the country’s economic growth.
Privileges Definitions as stated in Section 3 of PD 705

Lease “a privilege granted by the State to a person to occupy and possess, in
consideration of specified rental, any forest land of the public domain in
order to undertake any authorized activity therein”
License “a privilege granted by the State to a person to utilize forest resources
within any forest land, without any right of occupation and possession
over the same, to the exclusion of others, or establish and operate a
wood-processing plant, or conduct any activity involving the utilization of
any forest resources”
License “a privilege granted by the State to a person to utilize forest resources
Agreement within any forest land with the right of possession and occupation thereof
to the exclusion of others, except the government, but with the
corresponding obligation to develop, protect and rehabilitate the same in
accordance with the terms and conditions set forth in said agreement”
Permit “short-term privilege or authority granted by the State to a person to
utilize any limited forest resources or undertake a limited activity within
any forest land without any right to occupation and possession therein”
Table 5. Definitions of the Different Privileges or Grants authorized by the Revised Forestry
Code92
While the Code mainly regulates forestry activities, namely timber harvesting and wood
processing, we must note that it did pave the way for more protectionist laws subsequently
enforced by the government. Section 37 of the said Code states that “all measures shall be
taken to protect the forest resources from destruction, impairment and depletion.” 93 This
provision can be taken as an authorization from Congress for all subsequent actions or
measures undertaken by concerned government agencies and offices pursuant to forest
protection and conservation.
In 1991, more than a decade after P.D. No. 705’s enactment, came the next significant forest
protection measure in the form of DENR Administrative Order No. 24 during the Aquino
administration. This DAO signified the beginning of the State’s gradual shift on its approach
concerning the country’s forest resources, from one that was primarily utilitarian to that of
conservationist since it implemented a nationwide ban on logging activities in all Old-Growth
(Virgin) Forests and limited the same to only Second-Growth (Residual) Forest. The
remaining virgin forests were then reclassified to become part of the permanent national
forest estate of the country. 94 DAO No. 24’s policy then was not to ban commercial logging
altogether but to minimize the extent of its destructive impact on Philippine Forests.
Furthering the shift in forestry policy towards a more protectionist slant was the enactment of
Executive Order No. 263 in 1995. While previously, the government relied on commercial
logging ventures to ensure forest management and conservation under P.D. No. 705, this
E.O. acknowledged the important role of local communities, the main stakeholders in terms
of the forests and its resources, in effectively protecting the said resources. Through this
E.O., the Community-Based Forest Management was formally adopted as the “national
strategy to achieve sustainable forestry…” 95 Under this strategy, the grant of long-term
91 Ibid., Sections 77-88

92 Ibid, Section 3
93 Ibid, Section 37
94 DENR Administrative Order No. 24 (May 3, 1991)
95 Executive Order No. 263 (1995), Section 1
140
tenurial agreements to organized communities allowed them to engage in forestry activities

within their allocated areas as long as they utilize “environment-friendly, ecologically
sustainable and labor-intensive harvesting methods.” 96 However, to be able to achieve its
goal of conserving and rehabilitating the forests, the E.O. not only gives community
stakeholders equal access to forest lands – it also empowers them to be able to take
advantage of such opportunity. To realize its goal of empowering the local communities to
take part in these forest conservation schemes, the E.O. mandates the DENR to provide
financing and support mechanisms such as community forestry training programs to the
communities that will equip them with the knowledge, skills and financial capacity to
responsibly utilize and effectively protect the country’s forest resources. 97
Unfortunately, even with the actions taken to veer Philippine forestry policy away from the
historical utilitarian thinking to a more protectionist orientation, the problem of deforestation
has not been abated. The effects of deforestation, primarily flash floods and landslides
across the country that cause injury to persons and property, still remained over the years.
This reality led to the issuance of Executive Order No. 23, under the second Aquino
administration in 2011.98 This E.O. imposed a moratorium on all logging activities in all natural
and residual Philippine forests. To implement this mandate, the DENR is restricted from
granting and renewing any logging contract or agreement concerning said forests previously
authorized by law including the Revised Forestry Code and E.O. No 263. It also has the
power to immediately rescind any of the existing contracts upon finding of violation of any of
its conditions.99 This latest policy on Philippine forestry is therefore a complete turn-around
from what started and has long been maintained as an exploitative forest management policy
to one that is almost completely for forest conservation and development in the hope of being
able to save what little forests of the country is left.
Adoption of
Community-Based
Forest Protection to Moratorium on all
Pre-PD
Zero-forest protection DAO Forest Management
PD 705sustain long-term Total ban on logging in
EO 263discontinuing logging activities in all
EO 23
705 from utilization viability of forest
industry
24 Virgin Forests Commercial-Based
types of forests in the
country
approach in forest
rehabilitation
Illustration 2. Evolution of Philippine Forestry Policy within the last 40 years
Bias: From Commercial to Community-Based Forestry Management
The long history of government-controlled and non-participatory forest management

approach in the country allowed for highly commercialized exploitation of forest resources
that was mainly taken advantage of by the country’s elite. 100 In this light, P.D. No. 705 is not
much different from the previous forest regulations since for the most part it tackles
regulatory issues concerning commercial forestry privileges that allow logging activities and
the production of wood products for profit. Moreover, a closer reading of Section 60 of the
Code reveals a preference with respect to potential grantees of forest privileges by stating
that the same shall be made available only to those who are able to show their financial and
technical capacity to minimize forest exploitation in their logging activity, and their ability to
96 Ibid., Section 3
97 Ibid., Sections 6, 8, 10, 11
98 Situationer for Annex of Executive Order 23 (2011).
99 Executive Order No. 23 (2011), Section 2
100 Juan Pulhin and Makoto Inoue, Dynamics Of Devolution Process In The Management Of The Philippine
Forests, in International Journal of Social Forestry 3-5 (2008),
http://www.ijsf.org/dat/art/vol01/ijsf_vol1_no1_01_pulhin_philippines.pdf
141
support a correlative forest conservation and development program. 101 This qualification
implies that commercial corporations because of their vast resources are most likely the only
ones that can participate in such forestry activities, to the exclusion of local communities who
though desirous of participating, might not necessarily have the financial or technical means
to meet the said requirement.
The Code establishes the general rule of commercial forest utilization management, by
merely referring to local communities such as cultural minorities as an exception. Section 52
of the Code emphasizes that upon the effectivity of the same, only those with licenses or
permits shall be allowed to enter, cultivate and utilize forest lands, save for occupants of
forest lands such as cultural minorities or those from the local community who have entered
the area prior to its effectivity. This exemption, however, is subject to the condition that their
forest land holdings shall not be increased, and that they may subsequently be made to
vacate the premises when the “best land use of the area” arises. 102 As earlier mentioned, the
Code appears to favor commercial corporations for the utilization of forest resources upon
whom part of the burden of forest protection is given. However, this in itself presents a
problem since there will always be the temptation on the part of commercial establishments
to skirt away from the responsibility of conserving and rehabilitating their forest areas due to
additional expenses that they will have to shoulder, which could reduce their profitability.
Commercial-based forest management was the main forestry policy until it had been
abandoned by the issuance of Executive Order No. 263, which adopted the community-
based forest management approach as the national strategy for sustainable forest
development. Here, the local communities are given equitable access to the forest lands with
the responsibility of forest protection through long-term tenurial agreements backed by
financial and technical assistance to be provided by the DENR. 103
Compared, therefore, to the Revised Forestry Code, this E.O. expressly gives preference to
local communities as opposed to commercial corporations. It not only grants them an
opportunity to participate in forestry activities including its conservation but also ensures that
they have the necessary capacity to effectively do so. Although forest policies have allegedly
become participatory through the years, reality belies this assertion due to some
technicalities. The E.O. as well as its Implementing Rules and Regulations have failed to
define distinctly the composition of the community to which it primarily refers. DAO No. 96-29
provides a broad definition of what is to be considered a “community,” thus allowing persons
though with varied or even conflicting interests to be considered as one group. Regulating
agents themselves have not taken measures to make such differentiation of interests within
groups, which has led to the continued capture of forest benefits by the elite. 104 This therefore
brings the situation back to square one, with forest management still largely in the hands of
commercial corporations for whom forest rehabilitation and development is more an expense
than an asset.
4.3.2 Logging moratorium
Executive Order No. 23, which imposed a nationwide logging moratorium, is a “policy
instrument used by government in response to environmental, socio-economic, political and
other concerns and issues that threaten the forest and the resources within.” 105 Executive
Order No. 23 imposed this policy with the goal of mitigating the occurrence of calamities such
101 P.D. No. 705, Section 60
102 Id, at Section 52, 53
103 Executive Order No. 263 (1995)
104 Juan Pulhin, Community Forestry in the Philippines: Trends, Issues and Challenges, 3-4 (1998)
<http://www.recoftc.org/site/search.php?text=juan+pulhin>
142
as flooding and landslides due to the unabated deforestation happening in the country. 106
Indeed, the imposition of a logging moratorium is primarily for the purpose of protecting
forests from further exploitation, in order to ensure a livable environment for society in
general. However, despite the noble intentions behind the issuance of EO 23, the idea of a
nationwide logging moratorium has been criticized as follows:
1. Inadequate government resources to effectively implement the logging

moratorium. To illustrate this problem, consider the fact that there is only one forest
guard to every 2,500 to 4,000 ha of forest land instead the optimal situation of having
one forest guard to every 500 to 2,000 ha.107
2. Calamities identified as the destructive results of deforestation, will not be
averted by a logging moratorium. According to Dr. Rex Cruz, the flooding incidents
in certain parts of the country that prompted the issuance of EO 23, was caused by
climate change and not by deforestation. Even forested areas are not spared from
said calamities.108
3. Forest lands lose protection without the logging concessions. When forest
concessioners stop operating, their concessions will be left defenseless against
illegal logging activities.109 More specifically, if the log ban is improperly implemented
it may estrange the communities involved in Community-Based forest management
who are the “ultimate protectors of forests.”110
4. Forestry is an economic activity upon which a fraction of the population relies
upon for their daily sustenance. A logging ban will approximately affect 2 Million
employees who depend on the forest industry for their wages. 111
5. No forest charges. Since the logging moratorium will halt forest industry activities,
the government will therefore lose the opportunity to impose taxes on forest products
that contribute to the income of the government. 112
6. ‘Loose’ exceptions that could be windows for deforestation activities.
Exceptions to the logging moratorium such as road construction, if not specifically
defined can be taken advantage and result to even greater deforestation. 113

105 Leonida A. Bugayong, Effectiveness Of Logging Ban Policies In Protecting The Remaining Natural Forests Of
The Philippines, 4 (2006), available at http://userpage.fu-
berlin.de/ffu/akumwelt/bc2006/papers/Bugayong_06BerlinConference.pdf (Paper presented at the 2006 Berlin
Conference on Human Dimensions of Global Environmental Change – Resource Policies: Effectiveness,
Efficiency, and Equity, held at Freie University, Berlin, Germany, on 17-18 November 2006).
106 Executive Order No. 23-2011 (Phil.); Situationer for Annex of Executive Order 23 (2011).
Efficiency, and Equity, held at Freie University, Berlin, Germany, on 17-18 November 2006)
108 Jennifer Ng, Log Ban Won’t Spell End To Floods: Expert, in Business Mirror (February 8, 2011)
<http://www.businessmirror.com.ph/home/top-news/7224-log-ban-wont-spell-end-to-floods-expert>
109 Id.
110 Antonio La Viña, The Forest and the Trees, in Manila Standard Today (February 15, 2011)
<http://www.asg.ateneo.edu/blog2.php?newsid=199>
Efficiency, and Equity, held at Freie University, Berlin, Germany, on 17-18 November 2006)
112 Id.
113 Antonio La Viña, The Forest and the Trees, in Manila Standard Today (February 15, 2011)
<http://www.asg.ateneo.edu/blog2.php?newsid=199>
143
4.4.1 Illegal logging or subsistence livelihood
In the enforcement of forestry laws, it is often the poor who are adversely affected – because
they are dependent on forest resources for livelihood and have few, if any, other options; they
are not aware of the laws and the heavy penalties for violation; they have been accustomed
to traditional forest use practices that are often in conflict with formal laws.
A recent study114 analyzed the logging activities in the Northern Sierra Madre Natural Park,
tracing the chain of people – who are involved, and who benefits. They summarize the
results as follows:
Illegal logging is a threat to biodiversity and rural livelihoods in the Northern Sierra
Madre Natural Park, the largest protected area in the Philippines. Every year,
between 20,000 to 35,000 cu.m. in wood is extracted from the park. The forestry
service and municipal governments tolerate illegal logging in the protected area;
government officials argue that banning an important livelihood activity of the
households along the forest frontier will aggravate rural poverty. However, this
reasoning underestimates the scale of timber extraction, and masks resource
capture and collusive corruption. Illegal logging in fact forms an obstacle for
sustainable rural development in and around the protected area by destroying
ecosystems, distorting markets, and subverting the rule of law. Strengthening law
enforcement and controlling corruption are prerequisites for sustainable forest
management in and around protected areas in insular Southeast Asia.
In both the above study and the situationer at the beginning of this Chapter, poor upland people
are dependent on the forest for their livelihood. What are the differences between the two
situations? Should the laws or policies also distinguish between the situations of the poor in both
instances?
Wood is a classical element unique to Chinese astrology. Its influence over those born of those
Chinese astrological signs associated with Wood imbues that person with confidence and strong will,
compassion and desire for cooperation. Wood, which is also known as the Tree in the Wu Xing
elemental cycle, also symbolizes renewal and rebirth, spring and the arrival of a new season of growth.
Wood, in short, symbolizes Life: its vitality, perseverance in the face of obstacles, continuing growth,
and flexibility. It should be no surprise that this element also symbolizes life in the natural sciences as
well.
This immediately brings to mind forests. Apart from providing fodder and shelter, forests anchor the soil
with their roots, preserving them against the erosive forces of wind, water, and storm. Through
photosynthesis, they help regulate the climate, also serving in this way as carbon “sinks” or stores from
the conversion of carbon dioxide to oxygen. Trees help maintain a suitably moist, humid climate, and
also prevent flash floods and landslides when too much water inundates the land.
Trees also have religious meaning; many indigenous peoples see trees as sacred. Buddha, for
instance, found enlightenment under a tree. All the great monotheistic religions - the Jewish Religion,
Islam and Christianity - recognize the tree of knowledge in paradise and its role in salvation. In the
bible, we see this reference to trees frequently, from "the cedars of Lebanon," in the Song of Songs to
the fig tree cursed by the Jesus Christ to wither for not bearing fruit, and the sycamore tree the tax
collector Zacchaeus climbed so that Jesus would noticed him. We know the story: after seeing
Zacchaeus up the tree, the Lord asked him to come down, entered his house and Zacchaeus and his
family were "born again" (a good story for the feast of Pentecost which we celebrated last Sunday). And
114 Jan van der Ploeg, Merlijn van Weerd, Andres Masipiqueña, Gerard Persoon, Illegal logging in the Northern
Sierra Madre Natural Park, the Philippines, in Conservation & Society (Vol.9, Issue 3, 2011).
144
then there is the olive tree "on which the Savior of the world was nailed."
What is at stake with our forests is life itself, especially in a country that has lost most of its forests and
has made itself more vulnerable to floods and other natural disasters. I believe President Aquino’s total
logging ban policy was not an overreaction, but a needed response to the state of our forests. The
National Greening Program is also a good initiative and deserves to be supported. What comes next,
however, is more important.
The most serious challenge we must address to protect our remaining forests and to renew or
rejuvenate our forest land that have not yet been converted into other uses is where to get the funds to
pay for such protection and reforestation. The money needed for this massive effort is enormous; right
now, we do not have it. Money is needed not only for forest guards or seedlings needed for tree
planting, but above all money is needed to compensate communities who protect these forests and
newly planted trees. Many of these communities are indigenous peoples; and unfortunately, many are
poor and marginalized.
In order to solve our forest crisis, we have to change the way we see our forests, as we have reduced
its value to the revenue we get from the timber we can extract from it. This was wrong at the time when
logging was a major industry in the country – because we as a country and society ended up getting
very little from that industry. It is even more wrong now that we can no longer harvest timber – if we
follow that logic, our forests have will no longer have value now that logging is prohibited.
Clearly, what we need to do is to change the way we see not just our forests but all of our
environmental and natural ecosystems. We have to begin to see and value these ecosystems for what
they are – sources of critical and essential ecosystem goods and services that our society and
economy cannot do without. These ecosystems provide food, fiber, water and shelter. These
ecosystems are critical for climate change – to help us adapt to it, and to help us mitigate our own
contribution to the problem.
Reducing Emissions from Deforestation and Forest Degradation (REDD-Plus) is a series of initiatives to
stop deforestation, reverse its degradation, and conserve and enhance forests. The goal of the REDD-
Plus mechanism is to provide incentives for governments, private firms, and local stakeholders to
preserve and enhance forests, as opposed to harvesting or converting them. The mechanism, however,
if designed or implemented badly, could negatively impact forest-dependent communities, including
indigenous peoples, or the environment. That is why REDD-Plus must be accompanied by safeguards
for the protection of stakeholder rights, environmental integrity, and governance. The Philippines has
worked hard and successfully so that the REDD-Plus agreement (adopted finally in Cancun in 2010)
included such safeguards. Fortunately, as I am able to confirm now in Bonn, it is now widely accepted
that a REDD-Plus mechanism can only succeed if safeguards and co-benefits such as the conservation
of biodiversity and ecosystem services, and the alleviation of poverty, are also realized.
Much as the bamboo adapts to the typhoon winds, flexing in order to prevent breaking under severe
forces, the Philippines must quickly adapt to the pressures of environmental destruction in order to
prevent catastrophe. Much as tree roots anchor soil, Filipinos must unite in preserving our country’s
woodlands as the anchor of our environmental health. Because, indeed, our forests are our life.
Taken from:
14 June 2011, Manila Standard Today
Our Forests, Our Life
There is a well-known idiom about people "missing the forest for the trees," i.e., by immersing too much
in details, people fail to see the big picture. In the case of the moratorium on the cutting and harvesting
of timber in natural forests in the country, more popularly called a logging ban, "the forest" (the big
picture of the state of our forests and environment) and "the trees" (the details of implementation) are
equally important. Paying attention only to "the forest" and not "the trees" will, in fact, be counter
productive and result in an even worse situation for the country's environment.
My position on Executive Order No. 23, issued by President Benigno Aquino III in February 2011, is
145
clear. I support it; indeed, I wrote an open letter thanking the President for issuing this order imposing a
nationwide ban on logging.
For the last twenty years, the environmental movement has demanded an absolute commercial logging
ban. In the late 1980s and early 1990s, we lobbied Congress for such a ban but failed because of the
political influence of the timber industry. Even if we had the facts on our side, we could not win enough
legislators over, and could not get the support of the executive branch for the ban.
In the early 1990s, environmental lawyer Tony Oposa filed a case to compel the Department of
Environment and Natural Resources (DENR) to cancel all Timber License Agreements (TLAs). While
the famous case of Oposa vs. Factoran laid down important legal principles, such as intergenerational
equity and the liberalization of standing in environmental lawsuits, the Supreme Court stopped short of
stopping logging and deforestation continued unabated for another decade or so.
From 1996-1998, then DENR Secretary Victor Ramos, one of the most committed and competent
among public servants I have worked with, became strict with logging companies and canceled TLAs
that were not complying with their legal obligations. As a result, when we left the DENR in 1998, only a
handful of logging operations remained. Indeed, when President Aquino acted two weeks ago, very little
legal logging was going on in the country – rendering the log ban mainly symbolic in its value, but
important nonetheless.
While it would have been better if Congress passed a law to impose a log ban, it did delegate this
power to the President under the Revised Forestry Code. The President rightfully acted to avert climate
impacts like floods and protects forests and biodiversity.
While supporting the President's decision, it must be remembered that "the devil is in the details." We
have to work hard to ensure that the log ban is well-implemented, not just to enforce it, but also so that
the ban does not adversely affect the hundreds of forest communities that depend on forests for their
livelihoods. In particular, Community Based Forest Management Agreement holders, those
communities who have been given the right to manage forests that they have occupied, protected and
utilized for a long time, might be unjustly impacted. This includes indigenous peoples and communities
that utilize forest resources for livelihood and not just for cultural reasons. If it alienates forest peoples
and communities, the log ban will fail, as these peoples and communities, and not (never) the state, are
the ultimate protectors of forests in the country.
Executive Order No. 23 should be harmonized with Executive Order No. 263, which was issued by
President Fidel V. Ramos in 1995. The latter adopted community-based forest management (CBFM) as
the national strategy to ensure the sustainable development of the country's forests, and Executive
Order No. 318, issued in 2004 by President Gloria Macapagal-Arroyo, affirmed the primacy of CBFM as
our forest strategy. Executive Order No. 23 does not repeal these previous orders and CBFM remains
the national forest strategy. Executive Order No. 23, however, must be amended to identify, under
strictly defined criteria and circumstances, exceptions for CBFM areas.
Given the log ban's potential adverse economic impacts, the Climate Change Commission should fast
track implementation of the Reducing Emissions from Deforestation and Degradation-Plus (REDD-Plus)
program under the United Nations Framework Convention on Climate Change. In the Cancun
conference on climate change in 2010, the Philippines was instrumental in getting REDD-Plus
approved. If designed properly with social, environmental and governance safeguards, the Philippine
National REDD-plus Strategy (based on CBFM) should bring significant resources for forest protection
and to support forest workers and communities. When REDD-Plus is fully implemented, we might not
even have to exempt CBFM areas from the log ban.
Another priority in implementation is ensuring that the good intentions behind Executive Order No. 23
are not defeated by loopholes that ill-motivated persons could exploit. These include tightening the
exceptions indicated in the order, such as exempting road construction and area preparation for
plantations from the moratorium, and exceptions that could result in massive deforestation activities.
One issue to clarify is whether cutting trees for mining purposes is allowed under the log ban. It is not
one of the exceptions indicated, but mining companies will probably argue differently.
Finally, in order to thresh out the details for implementing the logging ban, extensive public
consultations should be undertaken. Unfortunately, we do have an implementation gap in our country,
146
and enforcing our forest laws, including those on illegal logging, have not been an exception. Among
others, we have to pay attention to the role of enforcement agencies, local governments and forest
communities who are the front liners in implementing the ban. Funds must be provided for enforcement.
And, of course, corruption in the forest sector must be addressed.
Scientists should be also be consulted, in order to better understand the role of deforestation in floods
and other climate impacts. A more holistic response to these events should be adopted. Environmental
Science for Social Change (ESSC), a Jesuit institution based in the Manila Observatory inside the
Ateneo de Manila campus, has pointed out that flooding will continue in areas that are flood-prone as
this is the natural course of water. According to ESSC, "[t]he response needed is to get people out of
harm’s way and minimize the debris that will be brought along by the floodwaters. Major landslides will
recur in areas where soil is of sufficient depth and has reached saturation point after continuous heavy
rainfall. The response is to get people off of steep slopes and ensure that the appropriate vegetation is
planted to regenerate water infiltration and biodiversity that will sustain the environment under average
climatic conditions."
Taken from:
15 February 2011, Manila Standard Today
The Forest and the Trees
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Chapter Five
Wildlife and Biodiversity Conservation
In the coastal Barangay of Bahura, fishermen engage in the lucrative trade of collecting live
fish for sale to middlemen who ship the fish to the city and abroad. The demand is of two
kinds: live fish (e.g. grouper (lapu-lapu), humpback wrasse (mameng) for food in fancy
restaurants, and aquarium fishes (e.g. lionfish, clownfish, butterfly fishes) for hobbyists. The
high demand and high prices for live fish abroad has created a big incentive for local
businessmen to get into the business. The hobbyists are also expanding demand to live
corals and invertebrates (e.g. nudibranchs and cone shells). Because of the high demand,
unscrupulous businessmen have trained local fishers to use cyanide to stun the fish, in order
for them to be easily caught. While this cyanide mixture does not kill the fish, the poison
eventually ends up in coral reefs and kills corals and other associated creatures.
This problem had become so serious that the LGU issued a local ordinance banning the
transport of all live fish regardless of the method it was caught, and declared the reef areas
as fish sanctuaries. The DENR also studied the area and has proposed that it be declared
as a protected area.
5.2.1 What is wildlife?
There are two laws that apply to this case, namely the Wildlife Act and Fisheries Code. The
application of the law depends on whether the particular species caught can be considered
wildlife or fisheries.
Wildlife Protection and Conservation Act

Republic Act No. 9147 (2001)
xxx
Section 5. Definition of Terms. - "Wildlife" means wild forms and varieties of
flora and fauna, in all developmental stages, including those which are in
captivity or are being bred or propagated;
xxx
Sec. 7. Collection of Wildlife. Collection of wildlife may be allowed in

accordance with Section 6 of this Act: Provided, That in the collection of
wildlife, appropriate and acceptable wildlife collection techniques with least or
no detrimental effects to the existing wildlife populations and their habitats
shall, likewise, be required: Provided, further, That collection of wildlife by
indigenous people may be allowed for traditional use and not primarily for
trade: Provided, furthermore, That collection and utilization for said purpose
shall not cover threatened species: Provided, finally, That Section 23 of this
Act shall govern the collection of threatened species.
Sec. 8. Possession of Wildlife. - No person or entity shall be allowed

possession of wildlife unless such person or entity can prove financial and
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technical capability and facility to maintain said wildlife: Provided, That the
source was not obtained in violation of this Act.
Sec. 9. Collection and/or Possession of By-Products and Derivatives. By-

products and derivatives may be collected and/or possessed: Provided, That
the source was not obtained in violation of this Act.
xxx
Sec. 18. Economically Important Species. The Secretary, within one (1)
year after the effectivity of this Act, shall establish a list of economically-
important species. A population assessment of such species shall be
conducted within a reasonable period and shall be regularly reviewed and
updated by the Secretary.
The Collection of certain species shall only be allowed when the results of the
assessment show that, despite certain extent of collection, the population of
such species can still remain viable and capable of recovering its numbers.
For this purpose, the Secretary shall establish a schedule and volume of
allowable harvests.
Whenever an economically important species become threatened, any form

of collection shall be prohibited except for scientific, educational or
breeding/propagation purposes, pursuant to the provisions of this Act.
xxx
Sec. 22. Determination of Threatened Species. - The Secretary shall

determine whether any wildlife species or subspecies is threatened, and
classify the same as critically endangered, endangered, vulnerable or other
accepted categories based on the best scientific data and with due regard to
internationally accepted criteria, including but not limited to the following:
(a) present or threatened destruction, modification or

curtailment of its habitat or range;
(b) over-utilization for commercial, recreational, scientific or
educational purposes;
(c) inadequacy of existing regulatory mechanisms; and
(d) other natural or man-made factors affecting the existence of
wildlife.
The Secretary shall review, revise and publish the list of categorized
threatened wildlife within one (1) year after effectivity of this Act. Thereafter,
the list shall be updated regularly or as the need arises: Provided, That a
species listed as threatened shall not be removed there from within three (3)
years following its initial listing.
Upon filing of a petition based on substantial scientific information of any

person seeking for the addition or deletion of a species from the list, the
Secretary shall evaluate in accordance with the relevant factors stated in the
first paragraph of this section, the status of the species concerned and act on
said petition within a reasonable period.
The Secretary shall also prepare and publish a list of wildlife which resembles
so closely in appearance with listed threatened wildlife, which species shall
likewise be categorized as threatened.
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Sec. 23. Collection of Threatened Wildlife, By-products and Derivatives The

collection of threatened wildlife, as determined and listed pursuant to this Act,
including its by-products and derivatives, shall be allowed only for scientific,
or breeding or propagation purposes in accordance with Section 6 of this Act:
Provided, That only the accredited individuals, business, research,
educational or scientific entities shall be allowed to collect for conservation
breeding or propagation purposes.
xxx
Sec. 25. Establishment of Critical Habitats. - Within two (2) years following
the effectivity of this Act, The Secretary shall designate critical habitats
outside protected areas under Republic Act No. 7586, where threatened
species are found. Such designation shall be made on the basis of the best
scientific data taking into consideration species endemicity and/or richness,
presence of man-made pressures/threats to the survival of wildlife living in
the area, among others.
All designated, critical habitats shall be protected, in coordination with the

local government units and other concerned groups, from any form of
exploitation or destruction which may be detrimental to the survival of the
threatened species dependent therein. For such purpose, the Secretary may
acquire, by purchase, donation or expropriation, lands, or interests therein,
including the acquisition of usufruct, establishment of easements or other
undertakings appropriate in protecting the critical habitat.
Xxx
Sec. 27. Illegal Acts. - Unless otherwise allowed in accordance with this Act,
it shall be unlawful for any person to willfully and knowingly exploit wildlife
resources and their habitats, or undertake the following acts:
(a) killing and destroying wildlife species, except in the following

instances;
(i) when it is done as part of the religious rituals of established tribal
groups or indigenous cultural communities;
(ii) when the wildlife is afflicted with an incurable communicable
disease;
(iii) when it is deemed necessary to put an end to the misery
suffered by the wildlife;
(iv) when it is done to prevent an imminent danger to the life or limb
of a human being; and
(v) when the wildlife is killed or destroyed after it has been used in
authorized research or experiments.
(b) inflicting injury which cripples and/or impairs the reproductive
system of wildlife species;
(c) effecting any of the following acts in critical habitat(s)
(i) dumping of waste products detrimental to wildlife;
(ii) squatting or otherwise occupying any portion of the critical
habitat;
(iii) mineral exploration and/or extraction;
(iv) burning;
(v) logging; and
(vi) quarrying
(d) introduction, reintroduction or restocking of wildlife resources;
(e) trading of wildlife;
150
(f) collecting, hunting or possessing wildlife, their by-products and

derivatives;
(g) gathering or destroying of active nests, nest trees, host plants
and the like;
(h) maltreating and/or inflicting other injuries not covered by the
preceding paragraph; and
(i) transporting of wildlife.
xxx
It must be noted that many of the fish and shellfish species considered wildlife are also
commonly caught for food. Under the Fisheries Code, the harvesting of food species that are
endangered or threatened is regulated.
Fisheries Code
Section 4. Definition of Terms – xxx (17) Endangered, Rare and/or Threatened

Species - aquatic plants, animals, including some varieties of corals and sea
shells in danger of extinction as provided for in existing fishery laws, rules and
regulations or in the Protected Areas and Wildlife Bureau of the Department of
Environment and Natural Resources (DENR) and in the Convention of the
International Trade of Endangered Species of Flora and Fauna (CITES).
xxx
(22). Fish and Fishery/Aquatic Products - include not only finfish but also
mollusks, crustaceans, echinoderms, marine mammals, and all other species
of aquatic flora and fauna and all other products of aquatic living resources in
any form.
Sec. 11. Protection of Rare, Threatened and Endangered Species. - The

Department shall declare closed seasons and take conservation and
rehabilitation measures for rare, threatened and endangered species, as it may
determine, and shall ban the fishing and/or taking of rare, threatened and/or
endangered species, including their eggs/offspring as identified by existing
laws in concurrence with concerned government agencies.
Sec. 86. Unauthorized Fishing or Engaging in Other Unauthorized Fisheries

Activities - No person shall exploit, occupy, produce, breed, culture, capture or
gather fish, fry or fingerlings of any fishery species or fishery products, or
engage in any fishery activity in Philippine waters without a license, lease or
permit.
Sec. 88. Fishing Through Explosives, Noxious or Poisonous Substance, and/or

Electricity. - (1) It shall be unlawful for any person to catch, take or gather or
cause to be caught, taken or gathered, fish or any fishery species in Philippine
waters with the use of electricity, explosives, noxious or poisonous substance
such as sodium cyanide in the Philippine fishery areas, which will kill, stupefy,
disable or render unconscious fish or fishery species: Provided, That the
Department, subject to safeguards and conditions deemed necessary and
endorsement from the concerned LGUs, may allow, for research, educational
or scientific purposes only, the use of electricity, poisonous or noxious
substances to catch, take or gather fish or fishery species: Provided, further,
151
That the use of poisonous or noxious substances to eradicate predators in

fishponds in accordance with accepted scientific practices and without causing
adverse environmental impact in neighboring waters and grounds shall not be
construed as illegal fishing.
It will likewise be unlawful for any person, corporation or entity to possess, deal
in, sell or in any manner dispose of, any fish or fishery species which have
been illegally caught, taken or gathered.
The discovery of dynamite, other explosives and chemical compounds which

contain combustible elements, or noxious or poisonous substances, or
equipment or device for electro-fishing in any fishing vessel or in the
possession of any fisherfolk, operator, fishing boat official or fishworker shall
constitute prima facie evidence, that the same was used for fishing in violation
of this Code. The discovery in any fishing vessel of fish caught or killed with the
use of explosive, noxious or poisonous substances or by electricity shall
constitute prima facie evidence that the fisherfolk, operator, boat official or
fishworker is fishing with the use thereof.
(2) Mere possession of explosive, noxious or poisonous substances or

electrofishing devices for illegal fishing shall be punishable by imprisonment
ranging from six (6) months to two (2) years.
(3) Actual use of explosives, noxious or poisonous substances or electrofishing

devices for illegal fishing shall be punishable by imprisonment ranging from
five (5) years to ten (10) years without prejudice to the filing of separate
criminal cases when the use of the same result to physical injury or loss of
human life.
(4) Dealing in, selling, or in any manner disposing of, for profit, illegally
caught/gathered fisheries species shall be punished by imprisonment ranging
from six (6) months to two (2) years.
(5) In all cases enumerated above, the explosives, noxious or poisonous

substances and/or electrical devices, as well as the fishing vessels, fishing
equipment and catch shall be forfeited.
Sec. 97. Fishing or Taking of Rare, Threatened or Endangered Species. - It

shall be unlawful to fish or take rare, threatened or endangered species as
listed in the CITES and as determined by the Department. Violation of the
provision of this section shall be published by imprisonment of twelve (12)
years to twenty (20) years and/or a fine of One hundred and twenty thousand
pesos (120,000.00) and forfeiture of the catch, and the cancellation of fishing
permit.
DENR has issued a list of threatened terrestrial species of animals DAO 2004-15 (fauna),
and plants DAO 2007-01 (flora). The humpback wrasse or mameng is listed under CITES
Appendix II, so are many corals and cone shells. These are species that are not necessarily
threatened with extinction, but may become so unless trade in specimens of such species is
subject to strict regulation in order to avoid utilization incompatible with the survival of the
species in the wild.
152
In the case of Tano, et al. vs. Socrates, et al., the Supreme Court had the ocassion to review
the local ordinances issued by Puerto Princesa City and Palawan Province that banned the
shipment of live fish. The extreme measure was necessary because illegal fishermen were
using cyanide to catch the live fish. Cyanide fishing has also resulted in the destruction of the
coral reef habitats of the target fishes.
Tano et al. vs. Socrates et al.

G.R. No. 110249, August 21, 1997
On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa

City enacted Ordinance No. 15-92 which took effect on January 1, 1993
entitled: "AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1,
1993 TO JANUARY 1, 1998 AND PROVIDING EXEMPTIONS, PENALTIES
AND FOR OTHER PURPOSES THEREOF"
To implement said city ordinance, then Acting City Mayor Amado L. Lucero
issued Office Order No. 23, Series of 1993 dated January 22, 1993 which
reads as follows: In the interest of public service and for purposes of City
Ordinance No. PD 426-14-74, otherwise known as "AN ORDINANCE
REQUIRING ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN
ANY BUSINESS, TRADE, OCCUPATION, CALLING OR PROFESSION OR
HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR WHICH A
PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYOR'S
PERMIT" and "City Ordinance No. 15-92, AN ORDINANCE BANNING THE
SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are
hereby authorized and directed to check or conduct necessary inspections on
cargoes containing live fish and lobster being shipped out from the Puerto
Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction
of the City to any point of destinations [sic] either via aircraft or seacraft.
On February 19, 1993, the Sangguniang Panlalawigan, Provincial

Government of Palawan enacted Resolution No. 33 entitled: "A
RESOLUTION PROHIBITING THE CATCHING, GATHERING,
POSSESSING, BUYING, SELLING AND SHIPMENT OF LIVE MARINE
CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE
(MAMENG), EPINE PHELUS FASCIATUS (SUNO). CROMILEPTES
ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS
AND SPAWNING, TRIDACNA GIGAS (TAKLOBO), PINCTADA
MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CLAMS AND
OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER
SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES)
FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN
WATERS
xxx
Without seeking redress from the concerned local government units,

prosecutor's office and courts, petitioners directly invoked our original
jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend
that:
153
First, the Ordinances deprived them of due process of law, their livelihood,
and unduly restricted them from the practice of their trade, in violation of
Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor condition under

which the Mayor's permit could be granted or denied; in other words, the
Mayor had the absolute authority to determine whether or not to issue the
permit.
Third, as Ordinance No. 2 of the Province of Palawan "altogether prohibited

the catching, gathering, possession, buying, selling and shipping of live
marine coral dwelling organisms, without any distinction whether it was
caught or gathered through lawful fishing method," the Ordinance took away
the right of petitioners-fishermen to earn their livelihood in lawful ways; and
insofar as petitioners-members of Airline Shippers Association are
concerned, they were unduly prevented from pursuing their vocation and
entering "into contracts which are proper, necessary, and essential to carry
out their business endeavors to a successful conclusion."
xxx
After a scrutiny of the challenged Ordinances and the provisions of the

Constitution petitioners claim to have been violated, we find petitioners'
contentions baseless and so hold that the former do not suffer from any
infirmity, both under the Constitution and applicable laws.
xxx
The LGC provisions invoked by private respondents merely seek to give flesh
and blood to the right of the people to a balanced and healthful ecology. In
fact, the General Welfare Clause, expressly mentions this right:
Sec. 16. General Welfare. — Every local government unit shall

exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential
to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to
a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their
inhabitants. (emphasis supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general
welfare provisions of the LGC "shall be liberally interpreted to give more
powers to the local government units in accelerating economic development
and upgrading the quality of life for the people of the community."
154
The LGC vests municipalities with the power to grant fishery privileges in
municipal waters and impose rentals, fees or charges therefor; to penalize,
by appropriate ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious methods of fishing;
and to prosecute any violation of the provisions of applicable fishery laws.
Further, the sangguniang bayan, the sangguniang panlungsod and the
sangguniang panlalawigan are directed to enact ordinances for the general
welfare of the municipality and its inhabitants, which shall include, inter alia,
ordinances that "[p]rotect the environment and impose appropriate penalties
for acts which endanger the environment such as dynamite fishing and other
forms of destructive fishing . . . and such other activities which result in
pollution, acceleration of eutrophication of rivers and lakes, or of ecological
imbalance."
Finally, the centerpiece of LGC is the system of decentralization as expressly

mandated by the Constitution. Indispensable to decentralization is devolution
and the LGC expressly provides that "[a]ny provision on a power of a local
government unit shall be liberally interpreted in its favor, and in case of doubt,
any question thereon shall be resolved in favor of devolution of powers and of
the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government
unit concerned." Devolution refers to the act by which the National
Government confers power and authority upon the various local government
units to perform specific functions and responsibilities.
One of the devolved powers enumerated in the section of the LGC on

devolution is the enforcement of fishery laws in municipal waters including
the conservation of mangroves. This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws within the municipal
waters.
xxx
At this time then, it would be appropriate to determine the relation between

the assailed Ordinances and the aforesaid powers of the Sangguniang
Panlungsod of the City of Puerto Princesa and the Sangguniang
Panlalawigan of the Province of Palawan to protect the environment. To
begin, we ascertain the purpose of the Ordinances as set forth in the
statement of purposes or declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or
purposes: (1) to establish a "closed season" for the species of fish or aquatic
animals covered therein for a period of five years; and (2) to protect the coral
in the marine waters of the City of Puerto Princesa and the Province of
Palawan from further destruction due to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to
enforce fishery laws in municipal waters, such as P.D. No. 1015, which
allows the establishment of "closed seasons." The devolution of such power
has been expressly confirmed in the Memorandum of Agreement of 5 April
1994 between the Department of Agriculture and the Department of Interior
and Local Government.
155
The realization of the second objective clearly falls within both the general
welfare clause of the LGC and the express mandate thereunder to cities and
provinces to protect the environment and impose appropriate penalties for
acts which endanger the environment.
The destruction of coral reefs results in serious, if not irreparable, ecological

imbalance, for coral reefs are among nature's life-support systems. They
collect, retain and recycle nutrients for adjacent nearshore areas such as
mangroves, seagrass beds, and reef flats; provide food for marine plants and
animals; and serve as a protective shelter for aquatic organisms. It is said
that "[e]cologically, the reefs are to the oceans what forests are to continents:
they are shelter and breeding grounds for fish and plant species that will
disappear without them."
The prohibition against catching live fish stems, in part, from the modern
phenomenon of live-fish trade which entails the catching of so-called exotic
species of tropical fish, not only for aquarium use in the West, but also for
"the market for live banquet fish [which] is virtually insatiable in ever more
affluent Asia. These exotic species are coral-dwellers, and fishermen catch
them by "diving in shallow water with corraline habitats and squirting sodium
cyanide poison at passing fish directly or onto coral crevices; once affected
the fish are immobilized [merely stunned] and then scooped by hand." The
diver then surfaces and dumps his catch into a submerged net attached to
the skiff. Twenty minutes later, the fish can swim normally. Back on shore,
they are placed in holding pens, and within a few weeks, they expel the
cyanide from their system and are ready to be hauled. They are then placed
in saltwater tanks or packaged in plastic bags filled with seawater for
shipment by air freight to major markets for live food fish. While the fish are
meant to survive, the opposite holds true for their former home as "[a]fter the
fisherman squirts the cyanide, the first thing to perish is the reef algae, on
which fish feed. Days later, the living coral starts to expire. Soon the reef
loses its function as habitat for the fish, which eat both the algae and
invertebrates that cling to the coral. The reef becomes an underwater
graveyard, its skeletal remains brittle, bleached of all color and vulnerable to
erosion from the pounding of the waves." It has been found that cyanide
fishing kills most hard and soft corals within three months of repeated
application.
The nexus then between the activities barred by Ordinance No. 15-92 of the
City of Puerto Princesa and the prohibited acts provided in Ordinance No. 2,
Series of 1993 of the Province of Palawan, on one hand, and the use of
sodium cyanide, on the other, is painfully obvious. In sum, the public purpose
and reasonableness of the Ordinances may not then be controverted.
xxx
5.3 Policy analysis
Enforcement of the law banning the use of cyanide is difficult, as shown by the evidentiary
requirements discussed in the case of Hizon. In this case, the chain of custody of samples
sent for testing was called into question.
Hizon, et al. vs. Court of Appeals, et al.

G.R. No. 119619 December 13, 1996
156
In September 1992, the Philippine National Police (PNP) Maritime Command

of Puerto Princesa City, Palawan received reports of illegal fishing operations
in the coastal waters of the city. In response to these reports, the city mayor
organized Task Force Bantay Dagat to assist the police in the detection and
apprehension of violators of the laws on fishing.
On September 30, 1992 at about 2:00 in the afternoon, the Task Force
Bantay Dagat reported to the PNP Maritime Command that a boat and
several small crafts were fishing by "muro ami" within the shoreline of
Barangay San Rafael of Puerto Princesa. The police, xxx immediately
proceeded to the area and found several men fishing in motorized sampans
and a big fishing boat identified as F/B Robinson within the seven-kilometer
shoreline of the city. They boarded the F/B Robinson and inspected the boat
with the acquiescence of the boat captain, Silverio Gargar. In the course of
their inspection, the police saw two foreigners in the captain's deck. SP03
Enriquez examined their passports and found them to be mere photocopies.
The police also discovered a large aquarium full of live lapu-lapu and
assorted fish weighing approximately one ton at the bottom of the boat. They
checked the license of the boat and its fishermen and found them to be in
order. Nonetheless, SP03 Enriquez brought the boat captain, the crew and
the fishermen to Puerto Princesa for further investigation.
xxx
The following day, October 1, 1992, SPO3 Enriquez directed the boat captain
to get random samples of fish from the fish cage of F/B Robinson for
laboratory examination. As instructed, the boat engineer, petitioner Ernesto
Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside a
plastic shopping bag filled with water. SPO3 Enriquez received the fish and in
the presence of the boat engineer and captain, placed them inside a large
transparent plastic bag without water. He sealed the plastic with heat from a
lighter.
The specimens were brought to the National Bureau of Investigation (NBI)

sub-office in the city for examination "to determine the method of catching the
same for record or evidentiary purposes." They were received at the NBI
office at 8:00 in the evening of the same day. The receiving clerk, Edna
Capicio, noted that the fish were dead and she placed the plastic bag with the
fish inside the office freezer to preserve them. Two days later, on October 3,
1992, the chief of the NBI sub-office, Onos Mangotara, certified the
specimens for laboratory examination at the NBI Head Office in Manila. The
fish samples were to be personally transported by Edna Capicio who was
then scheduled to leave for Manila for her board examination in Criminology.
On October 4, 1992, Ms. Capicio, in the presence of her chief, took the
plastic with the specimens from the freezer and placed them inside two
shopping bags and sealed them with masking tape. She proceeded to her
ship where she placed the specimens in the ship's freezer.
Capicio arrived in Manila the following day, October 5, 1992 and immediately
brought the specimens to the NBI Head Office. On October 7, 1992, NBI
157
Forensic Chemist Emilia Rosaldes conducted two tests on the fish samples
and found that they contained sodium cyanide, xxx
In light of these findings, the PNP Maritime Command of Puerto Princesa City
filed the complaint at bar against the owner and operator of the F/B
Robinson, the First Fishermen Fishing Industries, Inc., represented by herein
petitioner Richard Hizon, the boat captain, Silverio Gargar, the boat engineer,
Ernesto Andaya, two other crew members, the two Hongkong nationals and
28 fishermen of the said boat.
xxx
We now review the evidence to determine whether petitioners have

successfully rebutted this presumption. The facts show that on November 13,
1992, after the Information was filed in court and petitioners granted bail,
petitioners moved that the fish specimens taken from the F/B Robinson be
reexamined. 37 The trial court granted the motion 38. As prayed for, a member
of the PNP Maritime Command of Puerto Princesa, in the presence of
authorized representatives of the F/B Robinson, the NBI and the local
Fisheries Office, took at random five (5) live lapu-lapu from the fish cage of
the boat. The specimens were packed in the usual manner of transporting
live fish, taken aboard a commercial flight and delivered by the same
representatives to the NBI Head Office in Manila for chemical analysis.
On November 23, 1992, Salud Rosales, another forensic chemist of the NBI
in Manila conducted three (3) tests on the specimens and found the fish
negative for the presence of sodium cyanide, xxx
The Information charged petitioners with illegal fishing "with the use of
obnoxious or poisonous substance (sodium cyanide), of more or less one (1)
ton of assorted live fishes" There was more or less one ton of fishes in the
F/B Robinson's fish cage. It was from this fish cage that the four dead
specimens examined on October 7, 1992 and the five specimens examined
on November 23, 1992 were taken. Though all the specimens came from the
same source allegedly tainted with sodium cyanide, the two tests resulted in
conflicting findings. We note that after its apprehension, the F/B Robinson
never left the custody of the PNP Maritime Command. The fishing boat was
anchored near the city harbor and was guarded by members of the Maritime
Command41. It was later turned over to the custody of the Philippine Coast
Guard Commander of Puerto Princesa City42.
The prosecution failed to explain the contradictory findings on the fish

samples and this omission raises a reasonable doubt that the one ton of
fishes in the cage were caught with the use of sodium cyanide.
The absence of cyanide in the second set of fish specimens supports

petitioners' claim that they did not use the poison in fishing. According to
them, they caught the fishes by the ordinary and legal way, i.e., by hook and
line on board their sampans.
xxx
158
The only basis for the charge of fishing with poisonous substance is the result
of the first NBI laboratory test on the four fish specimens. Under the
circumstances of the case, however, this finding does not warrant the
infallible conclusion that the fishes in the F/B Robinson, or even the same
four specimens, were caught with the use of sodium cyanide.
Prosecution witness SPO1 Bernardino Visto testified that for the first
laboratory test, boat engineer Ernesto Andaya did not only get four (4)
samples of fish but actually got five (5) from the fish cage of the F/B
Robinson. The Certification that four (4) fish samples were taken from the
boat shows on its face the number of pieces as originally "five (5)" but this
was erased with correction fluid and "four (4)" written over it. The specimens
were taken, sealed inside the plastic bag and brought to Manila by the police
authorities in the absence of petitioners or their representative. SP02
Enriquez testified that the same plastic bag containing the four specimens
was merely sealed with heat from a lighter. Emilia Rosales, the NBI forensic
chemist who examined the samples, testified that when she opened the
package, she found the two ends of the same plastic bag knotted. These
circumstances as well as the time interval from the taking of the fish samples
and their actual examination 51 fail to assure the impartial mind that the
integrity of the specimens had been properly safeguarded.
Apparently, the members of the PNP Maritime Command and the Task Force
Bantay Dagat were the ones engaged in an illegal fishing expedition. As
sharply observed by the Solicitor General, the report received by the Task
Force Bantay Dagat was that a fishing boat was fishing illegally through
"muro ami" on the waters of San Rafael. "Muro ami" according to SPO1
Saballuca is made with "the use of a big net with sinkers to make the net
submerge in the water with the fishermen surround[ing] the net." This method
of fishing needs approximately two hundred (200) fishermen to execute.
What the apprehending officers instead discovered were twenty eight (28)
fishermen in their sampans fishing by hook and line. The authorities found
nothing on the boat that would have indicated any form of illegal fishing. All
the documents of the boat and the fishermen were in order. It was only after
the fish specimens were tested, albeit under suspicious circumstances, that
petitioners were charged with illegal fishing with the use of poisonous
substances. xxx
It is worth noting that in the Hizon case, the prosecution failed to explain the inconsistency of
the first and second sampling results. Perhaps the prosecution was unaware that the small
traces of cyanide that turned up in the first sampling will have been metabolized (therefore
undetectable) in a matter of hours or days. The levels of cyanide would have been very
small to begin with or it would have killed the fish. After the trace amounts of cyanide were
metabolized, the results of the second testing would likely be negative for cyanide.

There are two environmental issues often related to biodiversity and wildlife: biosafety and
bioprospecting. Biosafety refers to “a condition in which the probability of harm, injury and
damage resulting from the intentional and unintentional introduction and/or use of a regulated
article is within acceptable and manageable levels;” 115 bioprospecting “means the research,
115 National Biosafety Framework, § 3.3.1

159
collection and utilization of biological and genetic resources for purposes of applying the
knowledge derived there from solely for commercial purposes.”116
5.4.1. Biosafety and Alien Invasive Species
A genetically modified organism is a product of genetic engineering, a process that allows for
the selection and transfer of specific genes from one organism to another. 117 Although
genetically modified organisms may seem promising – especially with regard to their potential
to end food security issues in developing countries – safety issues with respect to their
possible effects on humans and the environment have been and continue to be raised. 118
The following issues have been raised against GMO introduction and commercialization:
1. Human Health Concern

Opposition groups to GMOs claim that this type of food pose health risks to
human beings.119 The case of the Bt Corn crop introduced in the country is
illustrative of this point. Bt Corn is a corn plant, which was incorporated with an
additional gene from a particular soil microorganism intended to make the same
resistant to particular insects responsible for crop destruction. It is “so far, the
only approved GM crop for commercial propagation.” 120 An advantage of this
crop is that it generates more produce for the farmers because insect
infestations are greatly reduced. However, there are certain issues that prevent
its widespread acceptance by the public. A significant issue involves the “Fear,
Uncertainty and Doubt tactics” used by those rallying against GMOs. In 2004, a
certain Norwegian scientist was quoted by the media to have observed ill effects
on particular persons in a community in Mindanao, which he attributed to Bt
corn. However, the ill effects claimed had been subsequently investigated by
private and public health professionals and was confirmed to be “unlikely due to
Bt corn.”121 Unfortunately claims similar to these can indeed make the public
doubt the safety of the crop for human consumption. A statement by Dumlao-
Santos may be found by many to be enlightening:
“But in dealing with the GMO debate, it is human logic that will resolve
issues on human technology. This Bt substance, a protein, exists in an
inactivated form; it is activated only in the alkaline medium of the
insect’s gut. Once activated, this toxin binds to specific receptors in the
insect’s gut and bores holes through the membrane. The toxin is thus
known as gut poison. But our stomachs are acidic; thus, the toxin
cannot be activated. Furthermore, we do not have receptors to bind the
toxin. So what happens to the Bt substance in the corn that we eat?
This will be treated by our digestive systems just like any protein, and
will be broken down into tiny pieces. Eating Bt corn is no different from
eating non-Bt corn.”122
116 Rep. Act 9147, § 5, cl. A (Phil.).

117 Ameurfina Dumlao-Santos, A Crash Course in GMOs, in Selected Essays on Science and Technology for
Securing A Better Philippines 318 (Cesar Saloma, et. al. eds., 2008).
118 Corazon Catibog-Sinha and Lawrence R. Heaney, Philippine Biodiversity: Principles and Practice, HARIBON
104 (2006).
119 David Dawe and Laurian Unnevehr, Crop Case Study: GMO Golden Rice in Asia with Enhanced Vitamin A
Benefits for Consumers, in AgBioForum 10(3) 155 (2007), avaible at: http://www.agbioforum.org/v10n3/v10n3a04-
unnevehr.pdf.
120Ameurfina Dumlao-Santos, A Crash Course in GMOs, in Selected Essays On Science And Technology For
Securing A Better Philippines 318-319 (Cesar Saloma, et. al. eds., 2008).
121 Benigno Peczon, The Continuing Bt Corn War, in Selected Essays On Science And Technology For
Securing A Better Philippines 298-299 (Cesar Saloma, et. al. eds., 2008).
160
2. Environmental Concerns (especially with regard to GM crops)

One risk to the environment cited against GM crop cultivation is the danger of
“gene flow,” which is “the possibility that GM crops will hybridize with their wild
relatives, resulting in the transfer of the transgenes from the GM crops to their
wild counterparts.” This gene flow can lead to certain harmful environmental
situations such as:123
1. The occurrence of the so-called “superweeds”124

2. The threat of extinction of the wild relatives of the GM crops 125
3. The “‘genetic pollution’ of natural ecosystem diversity” 126
In addition, GM crops may have repercussions on non-targeted organisms as

well as cause the intended recipients to become immune to the pesticides or
diseases.127
3. Regulatory Concerns
The slow commercialization of GM products in developing countries can be
attributed to several factors, one of which is the cost incurred in complying with
the biosafety regulatory requirements. “A high cost of compliance with biosafety
regulations may deter a small firm or public-sector institution from pursuing GM
technologies, or may cause them to abandon or delay commercialization of
potentially valuable products.” This limits the avenues for commercialization to
mostly large corporations who have enough capital to shoulder high
transactional costs. Another deterrent related to regulatory compliance is the
resulting delay in time for regulatory approval caused for example by slow or
lengthy review procedures, which in turn result to losses for the investing
entity.128 Other criticisms regarding the present biosafety regulations in the
Philippines as highlighted by the issue of the Bt corn approval are that they lack
measures for “transparent, independent, and participatory” implementation and
“mechanisms through which socio-economic concerns could be addressed in the
biosafety decision process.”129
5.4.2 Bioprospecting
The Wildlife Resources Conservation and Protection Act (R.A. No. 9147) defines
bioprospecting as “the research, collection and utilization of biological and genetic resources
for purposes of applying the knowledge derived there solely for commercial purposes.”
122 Ameurfina Dumlao-Santos, A Crash Course in GMOs, in Selected Essays On Science And Technology For
Securing A Better Philippines 319 (Cesar Saloma, et. al. eds., 2008).
123 Christina L. Richmond, Genetically Modified Crops in the Philippines: Can Existing Biosafety Regulations
Adequately Protect the Environment, in Pacific Rim Law & Policy Journal 573 ( 2006), available at:
http://www.nationalaglawcenter.org/assets/bibarticles/richmond_genetically.pdf.
124 Id, at 574.
125 Id.
126 Id.
127 Id.
128 Jessica C. Bayer, et. al., Cost of Compliance with Biotechnology Regulation in the Philippines: Implications
for Developing Countries,in AgBioForum, 13(1) 53, 57-60 (2010), available at:
http://www.agbioforum.org/v13n1/v13n1a04-norton.pdf.
129 Lindsey Fransen, et. al., Integrating Socio-Economic Considerations into Biosafety Decisions: The Role of
Public Participation, World Resources Institute 38 (2005), available at:
http://pdf.wri.org/fransen_lavina_biosafetywhitepaper.pdf.
161
Section 14. Bioprospecting shall be allowed upon execution of an undertaking

by any proponent, stipulating therein its compliance with and commitment(s)
to reasonable terms and conditions that may be imposed by the Secretary,
which are necessary to protect biological diversity.
The Secretary or the authorized representative, in consultation with the

concerned agencies, before granting the necessary permit, shall require that
prior informed consent be obtained by the applicant from the concerned
indigenous cultural communities, local communities, management board
under Republic Act No. 7586 or private individual or entity. The applicant
shall disclose fully the intent and scope of the bioprospecting activity in a
language and process understandable to the community. The prior informed
consent from the indigenous peoples shall be obtained in accordance with
existing laws. The action on the bioprospecting proposal by concerned bodies
shall be made within a reasonable period.
Upon submission of the complete requirements, the Secretary shall act on

the research proposal within a reasonable period. If the applicant is a foreign
entity or individual, a local institution should be actively involved in the
research, collection and, whenever applicable and appropriate in the
technological development of the products derived from the biological and
genetic resources.
Section 15. Collection and utilization of biological resources for scientific

research and not for commercial purposes shall be allowed upon execution of
an undertaking/agreement with and issuance of a gratuitous permit by the
Secretary or the authorized representative: Provided, that prior clearance
from concerned bodies shall be secured before the issuance of the gratuitous
permit: Provided, further, That the last paragraph of Section 14 shall likewise
apply.
The Philippines has been a global pioneer in the adoption of bioprospecting regulations.
Executive Order No. 247, deemed internationally as the first access to genetic resources and
benefit-sharing law, was issued after Philippine ratification of the Convention of Biological
Diversity.130 However, this Executive Order has been criticized as follows:
1. In defining the concept of bioprospecting, E.O. 247 in effect limited its scope to
sampling and collecting materials instead of dealing with the entire subject matter,
which also includes exploration and documentation of such materials. 131
2. The Prior Informed Consent requirement as carried out pursuant to the E.O.’s
Implementing Rules and Regulations requires only notice to the affected community
of the proposed bioprospecting activity, but not dialogue regarding the same. 132
3. With the benefit sharing scheme only characterized as to be made “equitably” but no
quantified ratio is identified, the benefits to be gained by the affected communities is
uncertain.133
130 Kathryn Garforth, et. al., Overview of the National and Regional Implementation of Access to Genetic
Resources and Benefit-Sharing Measures, in Centre for International Sustainable Development Law, 19 (3rd ed.
2005), available at: http://www.cisdl.org/pdf/ABS_ImpStudy_sm.pdf.
131 Oscar B. Zamora, The Philippines: A Bridle on Bioprospecting?, in GRAIN (1997),
http://www.grain.org/article/entries/213-the-philippines-a-bridle-on-bioprospecting.
132 Id.
133 Id.
162
4. E.O. No. 247 imposed a difficult process for obtaining permits that has hindered the
research activities of Filipino scientists like those aiming to study natural products. 134
The Wildlife Resources Conservation and Protection Act included provisions that tackle the
bioprospecting concerns on E.O. No. 247,135 some of which are listed below:
1. It provided a new definition of bioprospecting as the “research, collection and

utilization of biological and genetic resources for purposes of applying the knowledge
derived therefrom solely for commercial purposes.” 136
2. Affected communities through the Prior Informed Consent requirement are entitled to
bargain as to their share in the benefits derived from the bioprospecting activity. 137
3. The Guidelines of the Wildlife Act laid down “detailed benefit-sharing provisions.” 138
4. Instead of obtaining Commercial or Academic Research Agreements under E.O. No.
247, the Act now requires a Bioprospecting Undertaking permit for commercial
undertakings and a gratuitous permit for scientific studies. 139
134 Lourdes J. Cruz, Natural Products Research and Bioprospecting, in PES: Sustainable Financing for
Conservation and Development, Padilla, J.E. et. al. eds., 118-119, (Proceedings from the National Conference-
Workshop on Payments for Environmental Services: Direct Incentives for Biodiversity Conservationand Poverty
Alleviation, Manila, March 1-2, 2005) <http://www.wwf.org.ph/downloads/PES.pdf>
135 Id, 119
136 Id.
137 Kathryn Garforth, et. al., Overview of the National and Regional Implementation of Access to Genetic
Resources and Benefit-Sharing Measures, in Centre for International Sustainable Development Law 20 (3rd ed.
2005), available at: http://www.cisdl.org/pdf/ABS_ImpStudy_sm.pdf
138 Id.
139 Lourdes J. Cruz, Natural Products Research and Bioprospecting, in PES: Sustainable Financing for
Conservation and Development, Padilla, J.E. et. al. eds., 119, (Proceedings from the National Conference-
Workshop on Payments for Environmental Services: Direct Incentives for Biodiversity Conservationand Poverty
Alleviation, Manila, March 1-2, 2005) <http://www.wwf.org.ph/downloads/PES.pdf>
163
Chapter Six
Protected Areas and Watershed Management
Mt. Tinagong-Yaman is the legendary home of engkanto (spirits) that protect plants, animals
and waters of the forests. For centuries, the --- Tribe lived within and around the thick
forests, moving from place to place doing shifting cultivation and hunting wild animals for
food. The Tribe considers the forest as its home, and integral to the Tribe’s spiritual and
social identity. Over the years, settlers from different provinces have come to live at the
edges of the forests. These settlers befriended the Tribe, engaging in trade, including buying
portions of lands from some tribal members. The settlers cleared some portions of the forest
to plant crops. Some areas of the mountain were not suitable for farming because the land
was rocky and inhospitable.
In recent years, scientists from the government and international academic institutions
conducted biological surveys in Mt. Tinagong Yaman and found that the area is rich in unique
species of plants and animals. Government scientists also discovered that the rocky areas
were actually rich in mineral deposits. This was confirmation of old folks tales about finding
gold nuggets in the rivers than ran through the mountains.
The scientific discoveries became the basis of moves to declare the mountain as a protected
area to conserve the biodiversity and natural beauty of the place. The local communities and
even the tribal leaders were happy about the program to protect area. It was also recently
discovered that the area had once been declared as a forest reserve.
However, the news of rich mineral deposits also attracted many investors to apply for mining
permits in the area. Suddenly there have been an influx of small-scale miners, and
geologists from large mining companies have also visited the area to conduct tests. Many
small-scale miners have started digging and panning – and set up processing facilities. Local
communities and tribal leaders noticed that the waters near the mining areas have become
very murky; government investigations found that the waters have become silted and
contaminated with chemicals used by the miners.
The framework for protecting terrestrial and aquatic ecosystems that are considered
important for biodiversity conservation is the National Integrated Protected Areas System.
National Integrated Protected Areas System Act

Section 5. Establishment and Extent of the System. The establishment and

operationalization of the System shall involve the following:
a. All areas or islands in the Philippines proclaimed, designated or

set aside, pursuant to a law, presidential decree, presidential
proclamation or executive order as national park, game refuge,
bird and wildlife sanctuary, wilderness area, strict nature
reserve, watershed, mangrove reserve, fish sanctuary, natural
and historical landmark, protected and managed
164
landscape/seascape as well as identified virgin forests before

the effectivity of this Act are hereby designated as initial
components of the System. The initial components of the
System shall be governed by existing laws, rules and
regulations, not inconsistent with this Act; xxx
Section 13. Ancestral Lands and Rights Over Them. Ancestral lands and
customary rights and interest arising shall be accorded due recognition. The
DENR shall prescribe rules and regulations to govern ancestral lands within
protected areas: Provided, That the DENR shall have no power to evict
indigenous communities from their present occupancy nor resettle them to
another area without their consent: Provided, however, That all rules and
regulations, whether adversely affecting said communities or not, shall be
subjected to notice and hearing to be participated in by members of
concerned indigenous community.

Section 20. Prohibited Acts. Except as may be allowed by the nature of their
categories and pursuant to rules and regulations governing the same, the
following acts are prohibited within protected areas:
a. Hunting, destroying, disturbing, or mere possession of any

plants or animals or products derived therefrom without a permit
from the Management Board;
b. Dumping of any waste products detrimental to the protected
area, or to the plants and animals or inhabitants therein;
c. Use of any motorized equipment without a permit from the
Management Board;
d. Mutilating, defacing or destroying objects of natural beauty, or
objects of interest to cultural communities (of scenic value);
e. Damaging and leaving roads and trails in a damaged condition;
f. Squatting, mineral locating, or otherwise occupying any land;
g. Constructing or maintaining any kind of structure, fence or
enclosures, conducting any business enterprise without a
permit;
h. Leaving in exposed or unsanitary conditions refuse or debris, or
depositing in ground or in bodies of water; and
i. Altering, removing destroying or defacing boundary marks or
signs.
NIPAS is recognized in other environmental laws, such that areas designated for protection
are closed to other incompatible land uses.
Mining Act
Section 19. Areas Closed to Mining Applications. Mineral agreement or

financial or technical assistance agreement applications shall not be allowed:
a. In military and other government reservations, except upon prior

written clearance by the government agency concerned;
b. Near or under public or private buildings, cemeteries,
archeological and historic sites, bridges, highways, waterways,
railroads, reservoirs, dams or other infrastructure projects, public
or private works including plantations or valuable crops, except
165
upon written consent of the government agency or private entity

concerned;
c. In areas covered by valid and existing mining rights;
d. In areas expressedly prohibited by law;
e. In areas covered by small-scale miners as defined by law unless
with prior consent of the small-scale miners, in which case a
royalty payment upon the utilization of minerals shall be agreed
upon by the parties, said royalty forming a trust fund for the
socioeconomic development of the community concerned; and
f. Old growth or virgin forests, proclaimed watershed forest
reserves, wilderness areas, mangrove forests, mossy forests,
national parks provincial/municipal forests, parks, greenbelts,
game refuge and bird sanctuaries as defined by law and in
areas expressly prohibited under the National Integrated
Protected Areas System (NIPAS) under Republic Act No. 7586,
Department Administrative Order No. 25, series of 1992 and
other laws.
DENR Memorandum Order No. 2011-04
Pursuant to Section 6 and 10(d) of Republic Act No. 7586 or the National
Integrated Protected Areas System (NIPAS) Act of 1992, and in view of Rule
7.1 of DENR Administrative Order No. 2008-26, the following guidelines are
hereby issued for the compliance of all concerned:
1. The survey and processing of all public land applications (PLAs)

for titling purposes over lands covered by proposed
Proclamations for Protected Areas submitted by the DENR to
the Office of the President are hereby declared suspended
effective upon the actual date of the submission of the draft
Proclamation by the Office of the RED to the Central Office.
Beginning on the said date, no PLAs over lands within these
areas shall be accepted;
2. Also on the same date, the processing of applications for
lease/license/ permit of any project/activity therein shall be held
in abeyance and no new applications shall be accepted, except
for projects that are compatible with the objectives of the NIPAS;
xxx
The constant tension between use of land for conservation and utilization is exemplified by
the cases of PICOP Resources Inc. vs. Base Metals Mineral Resources Corp and MAB, and
Apex Mining v Southeast Mindanao Gold Mining (SEM). Much of the conflict today involves
what are considered ‘initial components’ of the NIPAS, under Section 5(a) quoted above.
PICOP Resources Inc. vs. Base Metals Mineral Resources Corporation,

and the Mines Adjudication Board
G.R. No. 163509, December 6, 2006
166
xxx a portion of Banahaw Mining's mining claims 140 was located in petitioner
PICOP's logging concession in Agusan del Sur, Banahaw Mining and
petitioner PICOP entered into a Memorandum of Agreement, whereby, in
mutual recognition of each other's right to the area concerned, petitioner
PICOP allowed Banahaw Mining an access/right of way to its mining claims.
In 1991, Banahaw Mining converted its mining claims to applications for

Mineral Production Sharing Agreements (MPSA for brevity). Xxx
PICOP filed with the Mines Geo-Sciences Bureau (MGB), Caraga Regional
Office No. XIII an Adverse Claim and/or Opposition to private respondent
Base Metals' application xxx
PICOP then proceeded to claim that the area should remain forest land if the
purpose of the presidential fiat were to be followed. It stated:
Technically, the areas applied for by Base Metals are classified as permanent
forest being land of the public domain determined to be needed for forest
purposes (Paragraph 6, Section 3 of Presidential Decree No. 705, as
amended) If these areas then are classified and determined to be needed for
forest purpose then they should be developed and should remain as forest
lands. Identifying, delineating and declaring them for other use or uses
defeats the purpose of the aforecited presidential fiats. Again, if these areas
would be delineated from Oppositor's forest concession, the forest therein
would be destroyed and be lost beyond recovery.
xxx
PICOP contends that its concession area is within the Agusan-Surigao-

Davao Forest Reserve established under Proclamation No. 369 and is closed
to mining application citing several paragraphs of Sec. 19 of RA 7942. xxx
(f) Old growth or virgin forests, proclaimed watershed forest reserves,

wilderness areas, mangrove forests, mossy forests, national parks,
provincial/municipal forests, parks, greenbelts, game refuge and bird
sanctuaries as defined by law in areas expressly prohibited under the
National Ingrated Protected Areas System (NIPAS) under Republic Act No.
7586, Department Administrative Order No. 25, series of 1992 and other laws
(emphasis supplied).
xxx
Firstly, assuming that the area covered by Base Metals' MPSA is a

government reservation, defined as proclaimed reserved lands for specific
purposes other than mineral reservations, such does not necessarily
preclude mining activities in the area. Sec. 15(b) of DAO 96-40 provides that
government reservations may be opened for mining applications upon prior
written clearance by the government agency having jurisdiction over such
reservation.
140 Later sold to Base Metals
167
Sec. 6 of RA 7942 also provides that mining operations in reserved lands

other than mineral reservations may be undertaken by the DENR, subject to
certain limitations.
xxx
Secondly, RA 7942 does not disallow mining applications in all forest

reserves but only those proclaimed as watershed forest reserves. There is no
evidence in this case that the area covered by Base Metals' MPSA has been
proclaimed as watershed forest reserves.
Even granting that the area covered by the MPSA is part of the Agusan-
Davao-Surigao Forest Reserve, such does not necessarily signify that the
area is absolutely closed to mining activities. Contrary to PICOP's obvious
misreading of our decision in Apex Mining Co., Inc. v. Garcia, supra, to the
effect that mineral agreements are not allowed in the forest reserve
established under Proclamation 369, the Court in that case actually ruled that
pursuant to PD 463 as amended by PD 1385, one can acquire mining rights
within forest reserves, such as the Agusan-Davao-Surigao Forest Reserve,
by initially applying for a permit to prospect with the Bureau of Forest and
Development and subsequently for a permit to explore with the Bureau of
Mines and Geosciences.
Moreover, Sec. 18 RA 7942 allows mining even in timberland or forestry

subject to existing rights and reservations.
xxx
Thirdly, PICOP failed to present any evidence that the area covered by the
MPSA is a protected wilderness area designated as an initial component of
the NIPAS pursuant to a law, presidential decree, presidential proclamation
or executive order as required by RA 7586.
Sec. 5(a) of RA 7586 provides:
Sec. 5. Establishment and Extent of the System.—The establishment and

operationalization of the System shall involve the following:
(a) All areas or islands in the Philippines proclaimed, designated or set

aside, pursuant to a law, presidential decree, presidential proclamation
or executive order as national park, game refuge, bird and wildlife
sanctuary, wilderness area, strict nature reserve, watershed, mangrove
reserve, fish sanctuary, natural and historical landmark, protected and
managed landscape/seascape as well as identified virgin forests before the
effectivity of this Act are hereby designated as initial components of the
System. The initial components of the System shall be governed by existing
laws, rules and regulations, not inconsistent with this Act.
Although the above-cited area status and clearances, particularly those

pertaining to MPSA Nos. 012 and 013, state that portions thereof are within
the wilderness area of PICOP, there is no showing that this supposed
wilderness area has been proclaimed, designated or set aside as such,
pursuant to a law, presidential decree, presidential proclamation or executive
order. It should be emphasized that it is only when this area has been so
168
designated that Sec. 20 of RA 7586, which prohibits mineral locating within

protected areas, becomes operational.
From the foregoing, there is clearly no merit to PICOP's contention that the
area covered by Base Metals' MPSA is, by law, closed to mining activities.
xxx
Apex Mining vs. Southeast Mindanao Gold Mining (SEM)

G.R. No. 152613 & 152628, February 3, 2009
RESOLUTION

Chico-Nazario, J.:
xxx
Proclamation No. 297 Is in

Harmony with Article XII,
Section 4, of the Constitution

At any rate, even if this Court were to consider the arguments belatedly raised
by SEM, said arguments are not meritorious.

SEM asserts that Article XII, Section 4 of the Constitution, bars the President
from excluding forest reserves/reservations and proclaiming the same as
mineral reservations, since the power to de-classify them resides in Congress.
Section 4, Article XII of the Constitution reads:

The Congress shall as soon as possible, determine by law
the specific limits of forest lands and national parks, marking
clearly their boundaries on the ground. Thereafter, such
forest lands and national parks shall be conserved and may
not be increased nor diminished, except by law. The
Congress shall provide, for such periods as it may determine,
measures to prohibit logging in endangered forests and in
watershed areas.

The above-quoted provision says that the area covered by forest lands and
national parks may not be expanded or reduced, unless pursuant to a law
enacted by Congress. Clear in the language of the constitutional provision is
its prospective tenor, since it speaks in this manner: “Congress shall as soon
as possible.” It is only after the specific limits of the forest lands shall have
been determined by the legislature will this constitutional restriction apply. SEM
does not allege nor present any evidence that Congress had already enacted a
statute determining with specific limits forest lands and national parks.
Considering the absence of such law, Proclamation No. 297 could not have
violated Section 4, Article XII of the 1987 Constitution. In PICOP Resources,
Inc. v. Base Metals Mineral Resources Corporation, the Court had the
occasion to similarly rule in this fashion:

x x x Sec. 4, Art. XII of the 1987 Constitution, on the
other hand, provides that Congress shall determine the
specific limits of forest lands and national parks, marking
169
clearly their boundaries on the ground. Once this is done, the

area thus covered by said forest lands and national parks
may not be expanded or reduced except also by
congressional legislation. Since Congress has yet to enact
a law determining the specific limits of the forest lands
covered by Proclamation No. 369 and marking clearly its
boundaries on the ground, there can be no occasion that
could give rise to a violation of the constitutional
provision.

Section 4, Article XII of the Constitution, addresses the concern of the drafters
of the 1987 Constitution about forests and the preservation of national parks.
This was brought about by the drafters’ awareness and fear of the continuing
destruction of this country’s forests. In view of this concern, Congress is tasked
to fix by law the specific limits of forest lands and national parks, after which
the trees in these areas are to be taken care of. Hence, these forest lands and
national parks that Congress is to delimit through a law could be changed only
by Congress.

In addition, there is nothing in the constitutional provision that prohibits the
President from declaring forest land as an environmentally critical area and
from regulating the mining operations therein by declaring it as a mineral
reservation in order to prevent the further degradation of the forest
environment and to resolve the health and peace and order problems that
beset the area.

A closer examination of Section 4, Article XII of the Constitution and
Proclamation No. 297 reveals that there is nothing contradictory between the
two. Proclamation No. 297, a measure to attain and maintain a rational and
orderly balance between socio-economic growth and environmental protection,
jibes with the constitutional policy of preserving and protecting the forest lands
from being further devastated by denudation. In other words, the proclamation
in question is in line with Section 4, Article XII of the Constitution, as the former
fosters the preservation of the forest environment of the Diwalwal area and is
aimed at preventing the further degradation of the same. These objectives are
the very same reasons why the subject constitutional provision is in place.

What is more, jurisprudence has recognized the policy of multiple land use in
our laws towards the end that the country’s precious natural resources may be
rationally explored, developed, utilized and conserved. It has been held that
forest reserves or reservations can at the same time be open to mining
operations, provided a prior written clearance by the government agency
having jurisdiction over such reservation is obtained. In other words, mineral
lands can exist within forest reservations. These two terms are not anti-
thetical. This is made manifest if we read Section 47 of Presidential Decree
No. 705 or the Revised Forestry Code of the Philippines, which provides:

Mining operations in forest lands shall be regulated and
conducted with due regard to protection, development and
utilization of other surface resources. Location,
prospecting, exploration, utilization or exploitation of
mineral resources in forest reservations shall be governed
by mining laws, rules and regulations. (Emphasis supplied.)

Also, Section 6 of Republic Act No. 7942 or the Mining Act of 1995, states that
170
mining operations in reserved lands other than mineral reservations, such as

forest reserves/reservations, are allowed, viz:

Mining operations in reserved lands other than mineral
reservations may be undertaken by the Department, subject
to limitations as herein provided. In the event that the
Department cannot undertake such activities, they may be
undertaken by a qualified person in accordance with the rules
and regulations promulgated by the Secretary. (Emphasis
supplied.)

Since forest reservations can be made mineral lands where mining operations
are conducted, then there is no argument that the disputed land, which lies
within a forest reservation, can be declared as a mineral reservation as well.

Otherwise Known as the
“Philippine Mining Act of
1995,” is the Applicable Law

Determined to rivet its crumbling cause, SEM then argues that Proclamation
No. 297 is invalid, as it transgressed the statutes governing the exclusion of
areas already declared as forest reserves, such as Section 1 of Republic Act
No. 3092, Section 14 of the Administrative Code of 1987, Section 5(a) of
Republic Act No. 7586,and Section 4(a) of Republic Act No. 6657.

Citing Section 1 of Republic Act No. 3092, which provides as follows:

Upon the recommendation of the Director of Forestry, with
the approval of the Department Head, the President of the
Philippines shall set apart forest reserves which shall
include denuded forest lands from the public lands and he
shall by proclamation declare the establishment of such
forest reserves and the boundaries thereof, and thereafter
such forest reserves shall not be entered, or otherwise
disposed of, but shall remain indefinitely as such for forest
uses.

The President of the Philippines may, in like manner upon
the recommendation of the Director of Forestry, with the
approval of the Department head, by proclamation, modify
the boundaries of any such forest reserve to conform
with subsequent precise survey but not to exclude any
portion thereof except with the concurrence of
Congress. (Underscoring supplied.)

SEM submits that the foregoing provision is the governing statute on the
exclusion of areas already declared as forest reserves. Thus, areas already
set aside by law as forest reserves are no longer within the proclamation
powers of the President to modify or set aside for any other purposes such as
mineral reservation.

To bolster its contention that the President cannot disestablish forest reserves
171
into mineral reservations, SEM makes reference to Section 14, Chapter 4, Title
I, Book III of the Administrative Code of 1987, which partly recites:

The President shall have the power to reserve for
settlement or public use, and for specific public purposes,
any of the lands of the public domain, the use of which is
not otherwise directed by law. The reserved land shall
thereafter remain subject to the specific public purpose
indicated until otherwise provided by law or proclamation.
(Emphases supplied.)

SEM further contends that Section 7 of Republic Act No. 7586, which declares
that the disestablishment of a protected area shall be done by Congress, and
Section 4(a) of Republic Act No. 6657, which in turn requires a law passed by
Congress before any forest reserve can be reclassified, militate against the
validity of Proclamation No. 297.

Proclamation No. 297, declaring a certain portion of land located in Monkayo,
Compostela Valley, with an area of 8,100 hectares, more or less, as a mineral
reservation, was issued by the President pursuant to Section 5 of Republic Act
No. 7942, also known as the “Philippine Mining Act of 1995.”

Proclamation No. 297 did not modify the boundaries of the Agusan-Davao-
Surigao Forest Reserve since, as earlier discussed, mineral reservations can
exist within forest reserves because of the multiple land use policy. The metes
and bounds of a forest reservation remain intact even if, within the said area, a
mineral land is located and thereafter declared as a mineral reservation.

More to the point, a perusal of Republic Act No. 3092, “An Act to Amend
Certain Sections of the Revised Administrative Code of 1917,” which was
approved on 17 August 1961, and the Administrative Code of 1987, shows that
only those public lands declared by the President as reserved pursuant to
these two statutes are to remain subject to the specific purpose. The tenor of
the cited provisions, namely: “the President of the Philippines shall set apart
forest reserves” and “the reserved land shall thereafter remain,” speaks of
future public reservations to be declared, pursuant to these two statutes. These
provisions do not apply to forest reservations earlier declared as such, as in
this case, which was proclaimed way back on 27 February 1931, by Governor
General Dwight F. Davis under Proclamation No. 369.

Over and above that, Section 5 of Republic Act No. 7942 authorizes the
President to establish mineral reservations, to wit:

Sec. 5. Mineral Reservations. - When the national interest so
requires, such as when there is a need to preserve strategic
raw materials for industries critical to national development,
or certain minerals for scientific, cultural or ecological value,
the President may establish mineral reservations upon
the recommendation of the Director through the
Secretary. Mining operations in existing mineral
reservations and such other reservations as may thereafter
be established, shall be undertaken by the Department or
through a contractor x x x. (Emphasis supplied.)

It is a rudimentary principle in legal hermeneutics that where there are two acts
172
or provisions, one of which is special and particular and certainly involves the
matter in question, the other general, which, if standing alone, would include
the matter and thus conflict with the special act or provision, the special act
must as intended be taken as constituting an exception to the general act or
provision, especially when such general and special acts or provisions are
contemporaneous, as the Legislature is not to be presumed to have intended a
conflict.

Hence, it has become an established rule of statutory construction that where
one statute deals with a subject in general terms, and another deals with a part
of the same subject in a more detailed way, the two should be harmonized if
possible; but if there is any conflict, the latter shall prevail regardless of
whether it was passed prior to the general statute. Or where two statutes are
of contrary tenor or of different dates but are of equal theoretical application to
a particular case, the one specially designed therefor should prevail over the
other.

It must be observed that Republic Act No. 3092, “An Act to Amend Certain
Sections of the Revised Administrative Code of 1917,” and the Administrative
Code of 1987, are general laws. Section 1 of Republic Act No. 3092 and
Section 14 of the Administrative Code of 1987 require the concurrence of
Congress before any portion of a forest reserve can be validly excluded
therefrom. These provisions are broad since they deal with all kinds of
exclusion or reclassification relative to forest reserves, i.e., forest reserve areas
can be transformed into all kinds of public purposes, not only the
establishment of a mineral reservation. Section 5 of Republic Act No. 7942 is
a special provision, as it specifically treats of the establishment of mineral
reservations only. Said provision grants the President the power to proclaim a
mineral land as a mineral reservation, regardless of whether such land is also
an existing forest reservation.
Sec. 5(a) of Republic Act No. 7586 provides:

Sec. 5. Establishment and Extent of the System. — The
establishment and operationalization of the System shall
involve the following:

(a) All areas or islands in the Philippines proclaimed,
designated or set aside, pursuant to a law, presidential
decree, presidential proclamation or executive order as
national park, game refuge, bird and wildlife sanctuary,
wilderness area, strict nature reserve, watershed, mangrove
reserve, fish sanctuary, natural and historical landmark,
protected and managed landscape/seascape as well as
identified virgin forests before the effectivity of this Act are
hereby designated as initial components of the System. The
initial components of the System shall be governed by
existing laws, rules and regulations, not inconsistent with this
Act.

Glaring in the foregoing enumeration of areas comprising the initial component
of the NIPAS System under Republic Act No. 7586 is the absence of forest
reserves. Only protected areas enumerated under said provision cannot be
modified. Since the subject matter of Proclamation No. 297 is a forest
reservation proclaimed as a mineral reserve, Republic Act No. 7586 cannot
173
possibly be made applicable. Neither can Proclamation No. 297 possibly

violate said law.

Similarly, Section 4(a) of Republic Act No. 6657 cannot be made applicable to
the instant case.

Section 4(a) of Republic Act No. 6657 reads:

All alienable and disposable lands of the public domain
devoted to or suitable for agriculture. No reclassification of
forest or mineral lands to agricultural lands shall be
undertaken after the approval of this Act until Congress,
taking into account ecological, developmental and equity
considerations, shall have determined by law, the
specific limits of the public domain. (Underscoring
supplied.)

Section 4(a) of Republic Act No. 6657 prohibits the reclassification of forest or
mineral lands into agricultural lands until Congress shall have determined by
law the specific limits of the public domain. A cursory reading of this provision
will readily show that the same is not relevant to the instant controversy, as
there has been no reclassification of a forest or mineral land into an agricultural
land.

Furthermore, the settled rule of statutory construction is that if two or more laws
of different dates and of contrary tenors are of equal theoretical application to a
particular case, the statute of later date must prevail being a later expression of
legislative will.

In the case at bar, there is no question that Republic Act No. 7942 was signed
into law later than Republic Act No. 3092, the Administrative Code of 1987,
Republic Act No. 7586 and Republic Act No. 6657. Applying the cited
principle, the provisions of Republic Act No. 3092, the Administrative Code of
1987, Republic Act No. 7586 and Republic Act No. 6657 cited by SEM must
yield to Section 5 of Republic Act No. 7942.
xxx
6.3.1 Governance
Who is responsible for managing areas designated for conservation, and who decides on
what activities may be conducted therein? The governance issue is complicated by the
various interests and needs at the national and local levels, which can be gleaned in the case
involving the San Mateo Landfill in the Marikina Watershed.
Province of Rizal, et al. v Executive Secretary, et al.

G.R. No. 129546, December 13, 2005
Chico-Nazario, J.:
At the height of the garbage crisis plaguing Metro Manila and its environs,
parts of the Marikina Watershed Reservation were set aside by the Office of
174
the President, through Proclamation No. 635 dated 28 August 1995, for use as
a sanitary landfill and similar waste disposal applications. In fact, this site,
extending to more or less 18 hectares, had already been in operation since 19
February 1990 for the solid wastes of Quezon City, Marikina, San Juan,
Mandaluyong, Pateros, Pasig, and Taguig.

This is a petition filed by the Province of Rizal, the municipality of San Mateo,
and various concerned citizens for review on certiorari of the Decision of the
Court of Appeals in CA-G.R. SP No. 41330, denying, for lack of cause of
action, the petition for certiorari, prohibition and mandamus with application for
a temporary restraining order/writ of preliminary injunction assailing the legality
and constitutionality of Proclamation No. 635.
xxx
We hold that the San Mateo Landfill will remain permanently closed.

xxx
We thus feel there is also the added need to reassure the residents of the
Province of Rizal that this is indeed a final resolution of this controversy, for a
brief review of the records of this case indicates two self-evident facts. First,
the San Mateo site has adversely affected its environs, and second,
sources of water should always be protected.

As to the first point, the adverse effects of the site were reported as early as 19
June 1989, when the Investigation Report of the Community Environment and
Natural Resources Officer of DENR-IV-1 stated that the sources of domestic
water supply of over one thousand families would be adversely affected by the
dumping operations. The succeeding report included the observation that the
use of the areas as dumping site greatly affected the ecological balance and
environmental factors of the community. Respondent LLDA in fact informed the
MMA that the heavy pollution and risk of disease generated by dumpsites
rendered the location of a dumpsite within the Marikina Watershed Reservation
incompatible with its program of upgrading the water quality of the Laguna
Lake.

The DENR suspended the site’s ECC after investigations revealed ground
slumping and erosion had resulted from improper development of the site.
Another Investigation Report submitted by the Regional Technical Director to
the DENR reported respiratory illnesses among pupils of a primary school
located approximately 100 meters from the site, as well as the constant
presence of large flies and windblown debris all over the school’s playground.
It further reiterated reports that the leachate treatment plant had been eroded
twice already, contaminating the nearby creeks that were sources of potable
water for the residents. The contaminated water was also found to flow to
the Wawa Dam and Boso-boso River, which in turn empties into Laguna
de Bay.

This brings us to the second self-evident point. Water is life, and must be
saved at all costs. In Collado v. Court of Appeals, we had occasion to reaffirm
our previous discussion in Sta. Rosa Realty Development Corporation v. Court
of Appeals, on the primordial importance of watershed areas, thus: “The most
important product of a watershed is water, which is one of the most important
175
human necessities. The protection of watersheds ensures an adequate supply

of water for future generations and the control of flashfloods that not only
damage property but also cause loss of lives. Protection of watersheds is an
“intergenerational” responsibility that needs to be answered now.

Three short months before Proclamation No. 635 was passed to avert the
garbage crisis, Congress had enacted the National Water Crisis Act to “adopt
urgent and effective measures to address the nationwide water crisis which
adversely affects the health and well-being of the population, food production,
and industrialization process. One of the issues the law sought to address was
the “protection and conservation of watersheds.”

In other words, while respondents were blandly declaring that “the reason for
the creation of the Marikina Watershed Reservation, i.e., to protect Marikina
River as the source of water supply of the City of Manila, no longer exists,” the
rest of the country was gripped by a shortage of potable water so serious, it
necessitated its own legislation.

Respondents’ actions in the face of such grave environmental consequences
defy all logic. The petitioners rightly noted that instead of providing solutions,
they have, with unmitigated callousness, worsened the problem. It is this
readiness to wreak irrevocable damage on our natural heritage in pursuit of
what is expedient that has compelled us to rule at length on this issue. We
ignore the unrelenting depletion of our natural heritage at our peril.

I.
THE REORGANIZATION ACT OF THE DENR DEFINES AND
LIMITS ITS POWERS OVER THE COUNTRY’S NATURAL RESOURCES

The respondents next point out that the Marikina Watershed Reservation, and
thus the San Mateo Site, is located in the public domain. They allege that as
such, neither the Province of Rizal nor the municipality of San Mateo has the
power to control or regulate its use since properties of this nature belong to the
national, and not to the local governments.

It is ironic that the respondents should pursue this line of reasoning.

In Cruz v. Secretary of Environment and Natural Resources, we had occasion
to observe that “(o)ne of the fixed and dominating objectives of the 1935
Constitutional Convention was the nationalization and conservation of the
natural resources of the country. There was an overwhelming sentiment in the
convention in favor of the principle of state ownership of natural resources and
the adoption of the Regalian doctrine. State ownership of natural resources
was seen as a necessary starting point to secure recognition of the state’s
power to control their disposition, exploitation, development, or utilization.”

The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of
Article XIII on “Conservation and Utilization of Natural Resources.” This was
reiterated in the 1973 Constitution under Article XIV on the “National Economy
and the Patrimony of the Nation,” and reaffirmed in the 1987 Constitution in
Section 2 of Article XII on “National Economy and Patrimony,” to wit:
Sec. 2. All lands of the public domain, waters, minerals, coal,
176
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. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development and utilization of natural
resources shall be under the full control and supervision of the
State. The State may directly undertake such activities or it may
enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations
at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

Clearly, the state is, and always has been, zealous in preserving as much of
our natural and national heritage as it can, enshrining as it did the obligation to
preserve and protect the same within the text of our fundamental law.

It was with this objective in mind that the respondent DENR was mandated by
then President Corazon C. Aquino, under Section 4 of Executive Order No.
192, otherwise known as “The Reorganization Act of the Department of
Environment and Natural Resources,” to be “the primary government agency
responsible for the conservation, management, development and proper
use of the country’s environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in reservation and
watershed areas, and lands of the public domain. It is also responsible for the
licensing and regulation of all natural resources as may be provided for by law
in order to ensure equitable sharing of the benefits derived therefrom for
the welfare of the present and future generations of Filipinos.”

We expounded on this matter in the landmark case of Oposa v. Factoran,
where we held that the right to a balanced and healthful ecology is a
fundamental legal right that carries with it the correlative duty to refrain from
impairing the environment. This right implies, among other things, the
judicious management and conservation of the country’s resources, which duty
is reposed in the DENR under the aforequoted Section 4 of Executive Order
No. 192. Moreover, Section 3 (of E. O. No. 192) makes the following
statement of policy:

SEC. 3. Declaration of Policy. - It is hereby declared the policy of
the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of
the population to the development and use of the country's natural
resources, not only for the present generation but for future
generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental
cost implications relative to their utilization; development and
conservation of our natural resources. (Emphasis ours)

177
This policy declaration is substantially re-stated in Title XIV, Book IV of the

Administrative Code of 1987, specifically in Section 1 thereof which reads:

SEC. 1. Declaration of Policy. - (1) The State shall ensure, for
the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and
enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such
natural resources equitably accessible to the different segments
of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.

The above provision stresses “the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment.”
(Emphasis ours.)

In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust
the DENR with the guardianship and safekeeping of the Marikina Watershed
Reservation and our other natural treasures. However, although the DENR, an
agency of the government, owns the Marikina Reserve and has jurisdiction
over the same, this power is not absolute, but is defined by the declared
policies of the state, and is subject to the law and higher authority. Section 2,
Title XIV, Book IV of the Administrative Code of 1987, while specifically
referring to the mandate of the DENR, makes particular reference to the
agency’s being subject to law and higher authority, thus:

SEC. 2. Mandate. - (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge
of carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.

With great power comes great responsibility. It is the height of irony that the
public respondents have vigorously arrogated to themselves the power to
control the San Mateo site, but have deftly ignored their corresponding
responsibility as guardians and protectors of this tormented piece of land.

II.
THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT
UNITS ALL THE NECESSARY POWERS TO PROMOTE THE GENERAL
WELFARE OF THEIR INHABITANTS

The circumstances under which Proclamation No. 635 was passed also
178
violates Rep. Act No. 7160, or the Local Government Code.

Contrary to the averment of the respondents, Proclamation No. 635, which was
passed on 28 August 1995, is subject to the provisions of the Local
Government Code, which was approved four years earlier, on 10 October
1991.

Section 2(c) of the said law declares that it is the policy of the state “to require
all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's
organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions.” Likewise,
Section 27 requires prior consultations before a program shall be implemented
by government authorities and the prior approval of the sanggunian is
obtained.

During the oral arguments at the hearing for the temporary restraining order,
Director Uranza of the MMDA Solid Waste Management Task Force declared
before the Court of Appeals that they had conducted the required
consultations. However, he added that “(t)his is the problem, sir, the officials
we may have been talking with at the time this was established may no longer
be incumbent and this is our difficulty now. That is what we are trying to do
now, a continuing dialogue.”

The ambivalent reply of Director Uranza was brought to the fore when, at the
height of the protest rally and barricade along Marcos Highway to stop dump
trucks from reaching the site, all the municipal mayors of the province of Rizal
openly declared their full support for the rally and notified the MMDA that they
would oppose any further attempt to dump garbage in their province.

The municipal mayors acted within the scope of their powers, and were in fact
fulfilling their mandate, when they did this. Section 16 allows every local
government unit to “exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to the
promotion of the general welfare,” which involve, among other things,
“promot(ing) health and safety, enhance(ing) the right of the people to a
balanced ecology, and preserv(ing) the comfort and convenience of their
inhabitants.”

In Lina, Jr. v. Paño, we held that Section 2 (c), requiring consultations with the
appropriate local government units, should apply to national government
projects affecting the environmental or ecological balance of the particular
community implementing the project. Rejecting the petitioners’ contention that
Sections 2(c) and 27 of the Local Government Code applied mandatorily in the
setting up of lotto outlets around the country, we held that:
From a careful reading of said provisions, we find that these apply

only to national programs and/or projects which are to be
implemented in a particular local community. Lotto is neither a
program nor a project of the national government, but of a
charitable institution, the PCSO. Though sanctioned by the
national government, it is far fetched to say that lotto falls within
the contemplation of Sections 2 (c) and 27 of the Local
Government Code.
179

Section 27 of the Code should be read in conjunction with Section 26 thereof.
Section 26 reads:

SECTION 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. It shall be the duty of every
national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, range-
land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals
and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or
minimize the adverse effects thereof.

Thus, the projects and programs mentioned in Section 27 should
be interpreted to mean projects and programs whose effects are among
those enumerated in Section 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause the
depletion of non-renewable resources; (4) may result in loss of crop land,
range-land, or forest cover; (5) may eradicate certain animal or plant
species from the face of the planet; and (6) other projects or programs
that may call for the eviction of a particular group of people residing in
the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
(emphasis supplied)

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.
Lanzanas141 where we held that there was no statutory requirement for the
sangguniang bayan of Puerto Galera to approve the construction of a mooring
facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of
the municipality, grants the sangguniang bayan the power to, among other
things, “enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to Section 16 of
th(e) Code.” These include:
(1) Approving ordinances and passing resolutions to protect the

environment and impose appropriate penalties for acts
which endanger the environment, such as dynamite fishing
and other forms of destructive fishing, illegal logging and
smuggling of logs, smuggling of natural resources products
and of endangered species of flora and fauna, slash and burn
farming, and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes, or of
ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of
property within the jurisdiction of the municipality,
141 Available at: http://www.supremecourt.gov.ph/jurisprudence/2005/dec2005/129546.htm#_ftn50.
180
adopting a comprehensive land use plan for the municipality,

reclassifying land within the jurisdiction of the city, subject to
the pertinent provisions of this Code, enacting integrated
zoning ordinances in consonance with the approved
comprehensive land use plan, subject to existing laws, rules
and regulations; establishing fire limits or zones, particularly in
populous centers; and regulating the construction, repair or
modification of buildings within said fire limits or zones in
accordance with the provisions of this Code; [Section 447 (2)
(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and
effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in addition to
said services and facilities, …providing for the
establishment, maintenance, protection, and conservation
of communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest
development projects ….and, subject to existing laws,
establishing and providing for the maintenance, repair and
operation of an efficient waterworks system to supply water for
the inhabitants and purifying the source of the water
supply; regulating the construction, maintenance, repair and
use of hydrants, pumps, cisterns and reservoirs; protecting
the purity and quantity of the water supply of the
municipality and, for this purpose, extending the coverage
of appropriate ordinances over all territory within the
drainage area of said water supply and within one
hundred (100) meters of the reservoir, conduit, canal,
aqueduct, pumping station, or watershed used in
connection with the water service; and regulating the
consumption, use or wastage of water.” [Section 447 (5)(i) &
(vii)]

Under the Local Government Code, therefore, two requisites must be met
before a national project that affects the environmental and ecological balance
of local communities can be implemented: prior consultation with the affected
local communities, and prior approval of the project by the appropriate
sanggunian. Absent either of these mandatory requirements, the project’s
implementation is illegal.

III.
WASTE DISPOSAL IS REGULATED BY THE ECOLOGICAL
SOLID WASTE MANAGEMENT ACT OF 2000

The respondents would have us overlook all the abovecited laws because the
San Mateo site is a very expensive - and necessary - fait accompli. The
respondents cite the millions of pesos and hundreds of thousands of dollars
the government has already expended in its development and construction,
and the lack of any viable alternative sites.

The Court of Appeals agreed, thus:
During the hearing on the injunction, questions were also asked. “What
will happen if the San Mateo Sanitary Landfill is closed? Where will the
daily collections of garbage be disposed of and dumped?” Atty.
181
Mendoza, one of the lawyers of the petitioners, answered that each

city/municipality ‘must take care of its own.’ Reflecting on that answer,
we are troubled: will not the proliferation of separate open dumpsites
be a more serious health hazard (which ha(s) to be addressed) to the
residents of the community? What with the galloping population growth
and the constricting available land area in Metro Manila? There could
be a ‘mini-Smokey Mountain’ in each of the ten cities…comprising
Metro Manila, placing in danger the health and safety of more people.
Damage to the environment could be aggravated by the increase in
number of open dumpsites. An integrated system of solid waste
management, like the San Mateo Sanitary Landfill, appears advisable
to a populous metropolis like the Greater Metro Manila Area absent
access to better technology.

We acknowledge that these are valid concerns. Nevertheless, the lower court
should have been mindful of the legal truism that it is the legislature, by its very
nature, which is the primary judge of the necessity, adequacy, wisdom,
reasonableness and expediency of any law.

Moreover, these concerns are addressed by Rep. Act No. 9003. Approved on
26 January 2001, “The Ecological Solid Waste Management Act of 2000” was
enacted pursuant to the declared policy of the state “to adopt a systematic,
comprehensive and ecological solid waste management system which shall
ensure the protection of public health and environment, and utilize
environmentally sound methods that maximize the utilization of valuable
resources and encourage resource conservation and recovery.” It requires the
adherence to a Local Government Solid Waste Management Plan with regard
to the collection and transfer, processing, source reduction, recycling,
composting and final disposal of solid wastes, the handling and disposal of
special wastes, education and public information, and the funding of solid
waste management projects.

The said law mandates the formulation of a National Solid Waste Management
Framework, which should include, among other things, the method and
procedure for the phaseout and the eventual closure within eighteen months
from effectivity of the Act in case of existing open dumps and/or sanitary
landfills located within an aquifer, groundwater reservoir or watershed
area. Any landfills subsequently developed must comply with the minimum
requirements laid down in Section 40, specifically that the site selected must
be consistent with the overall land use plan of the local government unit,
and that the site must be located in an area where the landfill’s operation
will not detrimentally affect environmentally sensitive resources such as
aquifers, groundwater reservoirs or watershed areas.

This writes finis to any remaining aspirations respondents may have of
reopening the San Mateo Site. Having declared Proclamation No. 635 illegal,
we see no compelling need to tackle the remaining issues raised in the petition
and the parties’ respective memoranda.

A final word. Laws pertaining to the protection of the environment were not
drafted in a vacuum. Congress passed these laws fully aware of the perilous
state of both our economic and natural wealth. It was precisely to minimize the
adverse impact humanity’s actions on all aspects of the natural world, at the
same time maintaining and ensuring an environment under which man and
nature can thrive in productive and enjoyable harmony with each other, that
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these legal safeguards were put in place. They should thus not be so lightly
cast aside in the face of what is easy and expedient.
Xxx
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Chapter Seven
Fisheries and Marine Resources
The Visayan Sea [bounded by Iloilo, Romblon, Masbate, Cebu, Negros] is one of the
country’s richest fishing grounds. Under the Fisheries Code of 1998 (Fish Code), commercial
fishing is not allowed within fifteen (15) kilometers from shore. In the Visayan Sea, there is
only a small patch in the center, which is farther than fifteen (15) kilometers from shore of the
surrounding islands. Small-scale fishermen complain of rampant commercial fishing in the
entire Visayan Sea, which they say is the cause of the depletion of fish catch. Commercial
fishing operators claim that they are not fishing in the area, but just passing through on their
way to the fish port in Cadiz City. Commercial fishers counter that small-scale fishermen
have resorted to illegal fishing methods [dynamite, fine mesh net] to increase their catch –
but which have caused the destruction of the habitats and decline of fish populations. Local
governments in Iloilo and Negros Provinces have intensified enforcement to protect their
fishing grounds. Fishermen from Negros have occasionally been caught by the bantay dagat
from Iloilo for ‘illegally fishing [no permit]’ in their municipal waters. This has caused conflict
among LGUs and residents of the 2 provinces. BFAR regular closed seasons declared in the
Visayan Sea.142
The Fisheries Code of 1998 provides the framework for managing the country’s fisheries
resources, as well as allocating access to fisheries among the various users. The
Constitution provides preferential access to marginal fishermen, as well as reserves the
exploitation of fisheries exclusively to Filipinos.
Fisheries Code
Section 4. Definition of Terms
10. Commercial Fishing - the taking of fishery species by passive or active

gear for trade, business or profit beyond subsistence or sports fishing to be
further classified as:
1. Small scale commercial fishing - fishing with passive or active gear

utilizing fishing vessels of 3.1 gross tons (GT ) up to twenty (20) GT;
2. Medium scale commercial fishing - fishing utilizing active gears and
vessels of 20.1 GT; up to one hundred fifty ( 150) GT; and
3. Large scale commercial fishing - fishing utilizing active gears and
vessels of more than one hundred fifty (150) GT.
xxx
56. Municipal fisherfolk - persons who are directly or indirectly engaged in

municipal fishing and other related fishing activities.
57. Municipal fishing - refers to fishing within municipal waters using fishing
vessels of three (3) gross tons or less, or fishing not requiring the use of
fishing vessels.
142 See relevant FAOs
184
58. Municipal waters - include not only streams, lakes, inland bodies of water
and tidal waters within the municipality which are not included within the
protected areas as defined under Republic Act No. 7586 (The NIPAS Law),
public forest, timber lands, forest reserves or fishery reserves, but also
marine waters included between two (2) lines drawn perpendicular to the
general coastline from points where the boundary lines of the municipality
touch the sea at low tide and a third line parallel with the general coastline
including offshore islands and fifteen (15) kilometers from such coastline.
Where two (2) municipalities are so situated on opposite shores that there is
less than thirty (30) kilometers of marine waters between them, the third line
shall be equally distant from the opposite shore of the respective
municipalities.
xxx
Sec. 16. Jurisdiction of the Municipal/City Governments. - The municipal/city

government shall have jurisdiction over municipal waters as defined in this
Code. The municipality/city government, in coordination with FARMC, enact
appropriate ordinances for this purpose and in accordance with the National
Fisheries Policy. The ordinance enacted by the municipality and component
city shall be reviewed pursuant to RA 7160 by their sanggunian of the
province which has jurisdiction over the same. The LGUs shall also enforce
all fishery laws, rules and regulations as well as valid fishery ordinances
enacted by the municipality/city councilor.
The management of contiguous fishery resources such as bays which

straddled several municipalities, cities, and provinces, shall be done in an
integrated manner and not based on political subdivisions of municipal waters
in order to facilitate their management as single resource systems. The LGUs
which share or border such resources may group themselves and coordinate
with each other to achieve the objectives of integrated fishery resource
management. The integrated Fisheries and Aquatic Resource Management
Councils (FARMCs) established under Section 76 of this Code shall serve as
the venues for close collaboration among LGUs in the management of
contiguous resources.
Sec. 17. Grant of fishing privileges in municipal waters. - The duly registered
fisherfolk organization/cooperatives shall have preferences in the grant of
fishery rights by the Municipal/City Council pursuant to Section 149 of the
Local Government Code: Provided, that the in the area where there are
special agencies or offices vested with jurisdiction over municipal water by
virtue of special law creating these agencies such as, but not limited to the
Laguna Lake Development Authority and the Palawan Council for
Sustainable Development, said offices and agencies shall continue to grant
permits for proper management and implementation of the aforementioned
structures.
Sec. 18. Users of Municipal Waters. - All fishery related activities in municipal
waters, as defined in this Code, shall be utilized by municipal fisherfolk and
their cooperatives/organizations who are listed as such in the registry of
municipal fisherfolk.
The municipal or city government, however, may, through its local chief
executive and acting pursuant to an appropriate ordinance, authorize or
permit shall and medium commercial fishing vessels to operate within then
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point one (10.1) to fifteen (15) kilometer area from the shoreline in municipal
waters as defined herein, provided, that all the following are met:
a. no commercial fishing in municipal waters with depth less than

seven (7) fathoms as certified by the appropriate agency;
b. fishing activities utilizing methods and gears that are determined

to be consistent with national polices set by the Department.
c. prior consultation, through public hearing, with the M/CFARMC

has been conducted; and
d. the applicant vessel as well as the ship owner, employer, captain
and crew have been certified by the appropriate agency as not
having violated this Code, environmental laws and related laws.
In no case shall the authorization or permit mentioned above be granted for

fishing in bays as determined by the Department to be in an environmentally
critical condition and during closed season as provided for in Section 9 of this
Code.
xxx
CHAPTER VI.PROHIBITIONS AND PENALTIES
Sec. 86. Unauthorized Fishing or Engaging in Other Unauthorized Fisheries

Activities - No person shall exploit, occupy, produce, breed, culture, capture
or gather fish, fry or fingerlings of any fishery species or fishery products, or
engage in any fishery activity in Philippine waters without a license, lease or
permit.
Discovery of any person in an area where he has no permit or registration

papers for a fishing vessel shall constitute a prima facie presumption that the
person and/or vessel is engaged in unauthorized fishing: Provided, That
fishing for daily food sustenance or for leisure which is not for commercial,
occupation or livelihood purposes may be allowed.
It shall be unlawful for any commercial fishing vessel to fish in bays and in
such other fishery management areas which may herein-after be declared as
over exploited
Any commercial fishing boat captain or the three (3) highest officers of the
boat who commit any of the above prohibited acts upon conviction shall be
punished by a fine equivalent to the value of catch or Ten thousand pesos
(P10,000.00) whichever is higher, and imprisonment of six (6) months,
confiscation of catch and fishing gears, and automatic revocation of license.
It shall be unlawful for any person not listed in the registry of municipal
fisherfolk to engage in any commercial fishing activity in municipal waters.
Any municipal fisherfolk who commits such violation shall be punished by
confiscation of catch and a fine of Five hundred pesos (P5,000.00).
xxx
Sec. 88. Fishing Through Explosives, Noxious or Poisonous Substance,

and/or Electricity. –
186
(1) It shall be unlawful for any person to catch, take or gather or

cause to be caught, taken or gathered, fish or any fishery
species in Philippine waters with the use of electricity,
explosives, noxious or poisonous substance such as sodium
cyanide in the Philippine fishery areas, which will kill, stupefy,
disable or render unconscious fish or fishery species: Provided,
That the Department, subject to safeguards and conditions
deemed necessary and endorsement from the concerned LGUs,
may allow, for research, educational or scientific purposes only,
the use of electricity, poisonous or noxious substances to catch,
take or gather fish or fishery species: Provided, further, That the
use of poisonous or noxious substances to eradicate predators
in fishponds in accordance with accepted scientific practices and
without causing adverse environmental impact in neighboring
waters and grounds shall not be construed as illegal fishing.
It will likewise be unlawful for any person, corporation or entity to

possess, deal in, sell or in any manner dispose of, any fish or
fishery species which have been illegally caught, taken or
gathered.
The discovery of dynamite, other explosives and chemical

compounds which contain combustible elements, or noxious or
poisonous substances, or equipment or device for electro-fishing
in any fishing vessel or in the possession of any fisherfolk,
operator, fishing boat official or fishworker shall constitute prima
facie evidence, that the same was used for fishing in violation of
this Code. The discovery in any fishing vessel of fish caught or
killed with the use of explosive, noxious or poisonous
substances or by electricity shall constitute prima facie evidence
that the fisherfolk, operator, boat official or fishworker is fishing
with the use thereof.
(2) Mere possession of explosive, noxious or poisonous substances

or electrofishing devices for illegal fishing shall be punishable by
imprisonment ranging from six (6) months to two (2) years.
(3) Actual use of explosives, noxious or poisonous substances or
electrofishing devices for illegal fishing shall be punishable by
imprisonment ranging from five (5) years to ten (10) years
without prejudice to the filing of separate criminal cases when
the use of the same result to physical injury or loss of human
life.
(4) Dealing in, selling, or in any manner disposing of, for profit,
illegally caught/gathered fisheries species shall be punished by
imprisonment ranging from six (6) months to two (2) years.
(5) In all cases enumerated above, the explosives, noxious or
poisonous substances and/or electrical devices, as well as the
fishing vessels, fishing equipment and catch shall be forfeited.
Sec. 89. Use of Fine Mesh Net. - It shall be unlawful to engage in fishing
using nets with mesh smaller than that with which may be fixed by the
Department: Provided, That the prohibition on the use of fine mesh net shall
not apply to the gathering of fry, glass eels, elvers, tabios, and alamang and
187
such species which by their nature are small but already mature to be
identified in the implementing rules and regulations by the Department.
Violation of the above shall subject the offender to a fine from Two thousand
pesos (P2,000.00) to Twenty thousand pesos (P20,000.00) or imprisonment
form six (6) months to two (2) years or both such fine and imprisonment at
the discretion of the court: Provided, That the owner/operator of the
commercial fishing vessel who violates this provisions shall be subjected to
the same penalties provided herein: Provided, finally, That the Department is
hereby empowered to impose upon the offender an administrative fine and/or
cancel his permit or license or both.
Sec. 90. Use of Active Gear in the Municipal Waters and Bays and Other
Fishery Management Areas. - It shall be unlawful to engage in fishing in
municipal waters and in all bays as well as other fishery management areas
using active fishing gears as defined in this Code.
Violators of the above prohibitions shall suffer the following penalties:
(1) The boat captain and master fisherman of the vessels who
participated in the violation shall suffer the penalty of
imprisonment from two (2) years to six (6) years;
(2) The owner/operator of the vessel shall be fined from Two
thousand pesos (P2,000.00) to Twenty thousand pesos
(P20,000.00) upon the discretion of the court.
Sec. 91. Ban on Coral Exploitation and Exportation. - It shall be unlawful for
any person or corporation to gather, possess, sell or export ordinary precious
and semi-precious corals, whether raw or in processed form, except for
scientific or research purposes.
Violations of this provision shall be punished by imprisonment form six (6)

months to two (2) years and a fine from Two thousand pesos (P2,000.00) to
Twenty thousand pesos (P20,000.00), or both such fine and imprisonment, at
the discretion of the court, and forfeiture of the subject corals, including the
vessel and its proper disposition.

The confiscated corals shall either be returned to the sea or donated to
schools and museums for educational or scientific purposes or disposed
through other means.
Sec. 92. Ban on Muro-Ami, Other Methods and Gear Destructive to Coral
Reefs and Other Marine Habitat. - It shall be unlawful for any person, natural
or juridical, to fish with gear method that destroy coral reefs, seagrass beds,
and other fishery marine life habitat as may be determined by the
Department. "Muro-Ami" and any of its variation, and such similar gear and
methods that require diving, other physical or mechanical acts to pound the
coral reefs and other habitat to entrap, gather or catch fish and other fishery
species are also prohibited.
The operator, boat captain, master fisherman, and recruiter or organizer of

fishworkers who violate this provision shall suffer a penalty of two (2) years to
ten (10) years imprisonment and a fine of not less than One Hundred
Thousand Pesos (P100,000.00) to Five Hundred Thousand Pesos
188
(P500,000.00) or both such fine and imprisonment, at the discretion of the

court. The catch and gear used shall be confiscated.
It is likewise unlawful for any person or corporation to gather, sell or export

white sand, silica, pebbles and other substances which make up any marine
habitat. The person or corporation who violates this provision shall suffer a
penalty of two (2) years to ten (10) years imprisonment and a fine of not less
than One Hundred Thousand Pesos (P100,000.00) to Five Hundred
Thousand Pesos (5000,000.00) or both such fine and imprisonment, at the
discretion of the court. The substance taken from its marine habitat shall be
confiscated.
Sec. 93. Illegal Use of Superlights. - It shall be unlawful to engage in fishing

with the use of superlights in municipal waters or in violation of the rules and
regulations which may be promulgated by the Department on the use of
superlights outside municipal waters.
Violations of this provision shall be punished by imprisonment form six (6)

months to two (2) years or a fine of five thousand pesos (P5,000.00) per
superlight, or both such fine and imprisonment at the discretion of the courts.
The superlight, fishing gears and vessel shall be confiscated.
Sec. 94. Conversion of Mangroves. - It shall be unlawful for any person to

convert mangroves into fishponds or for any other purposes.
Violation of the provision of this section shall be punished by imprisonment of

six (6) years and one (1) day to twelve (12) years and/or a fine of Eighty
thousand pesos (P80,000.00): Provided, That if the area requires
rehabilitation or restoration as determined by the court, the offender should
also be required to restore or compensate for the restoration of the damage.
Sec. 95. Fishing in Overfished Area and During Closed Season. - It shall be
unlawful to fish in overfished area and during closed season.
Violation of the provision of this section shall be published by imprisonment of

six (6) moths and one (1) day to six (6) years and/or fine of Six thousand
pesos (P6,000.00) and by forfeiture of the catch and cancellation of fishing
permit or license.
Sec. 96. Fishing in Fishery Reserves, Refuge and Sanctuaries. - It shall be

unlawful to fish in fishery areas declared by the Department as fishery
reserves, refuge and sanctuaries.
Violation of the provision of the is section shall be punished by imprisonment

of two (2) years to six (6) years and/or fine of Two thousand pesos
(P2,000.00) to Twenty thousand pesos (P20,000.00) and by forfeiture of the
catch and the cancellation of fishing permit or license.
Sec. 97. Fishing or Taking of Rare, Threatened or Endangered Species. - It

shall be unlawful to fish or take rare, threatened or endangered species as
listed in the CITES and as determined by the Department.
Violation of the provision of this section shall be published by imprisonment of

twelve (12) years to twenty (20) years and/or a fine of One hundred and
189
twenty thousand pesos (120,000.00) and forfeiture of the catch, and the
cancellation of fishing permit.
Sec. 98. Capture of Sabalo and Other Breeders/Spawners. - It shall be

unlawful for any person to catch, gather, capture or possess mature milkfish
or "sabalo" and such other breeders or spawners of other fishery species as
may be determined by the Department: Provided, That catching of sabalo
and other breeders/spawners for local breeding purposes or scientific or
research purposes may be allowed subject to guidelines to be promulgated
by the Department.

six (six) months and one (1) day to eight (8) years and/or a fine of Eighty
Thousand Pesos (P80,000.00) and forfeiture of the catch, and fishing
equipment used and revocation of license.
Sec. 99. Exportation of Breeders, Spawners, Eggs or Fry. - Exportation of

breeders, spawners, eggs or fry as prohibited in this Code shall be punished
by imprisonment of eight (8) years, confiscation of the same or a fine
equivalent to double the value of the same, and revocation of the fishing
and/or export license/permit.
Sec. 100. Importation or Exportation of Fish or Fishery Species. - Any

importation or exportation of fish or fisheries species in violation of this Code
shall be punished by eight years of imprisonment, a fine of Eighty Thousand
Pesos (80,000.00) and destruction of live fishery species or forfeiture of non-
lived fishery species in favor of the department for its proper disposition:
Provided, That violator of hits provision shall be banned from being members
or stock holders of companies currently engaged in fisheries or companies to
be created in the future, the guidelines for which shall be promulgated by the
Department.
Sec. 101. Violation of Catch Ceilings. - It shall be unlawful for any person to
fish in violation of catch ceilings as determined by the Department. Violation
of the provision of this section shall be punished by imprisonment of six (6)
months and one (1) day to six (6) months and one (1) day to six (6) years
and/or a fine of Fifty Thousand Pesos (P50,000.00) and forfeiture of the
catch, and fishing equipment used and revocation of license.
Sec. 102. Aquatic Pollution. - Aquatic pollution, as defined in this Code shall
be unlawful.

six (6) years and one (1) day to twelve (12) years and/or a fine of Eighty
thousand pesos (80,000.00) plus an additional fine of Eight thousand pesos
(8,000.00) per day until such violation ceases and the fines paid.
The Local Government Code also provides key regulatory mechanisms on Fisheries, which
complements the Fisheries Code143.
Local Government Code

143 Note that the Fisheries Code is the later law.
190
SEC. 149. Fishery Rentals, Fees and Charges. - (a) Municipalities shall have
the exclusive authority to grant fishery privileges in the municipal waters and
impose rentals, fees or charges therefor in accordance with the provisions of
this Section.
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or

other aquatic beds or bangus fry areas, within a definite zone of
the municipal waters, as determined by it: Provided, however,
That duly registered organizations and cooperatives of marginal
fishermen shall have the preferential right to such fishery
privileges: Provided, further, That the sangguniang bayan may
require a public bidding in conformity with and pursuant to an
ordinance for the grant of such privileges: Provided, finally, That
in the absence of such organizations and cooperatives or their
failure to exercise their preferential right, other parties may
participate in the public bidding in conformity with the above
cited procedure.
(2) Grant the privilege to gather, take or catch bangus fry, prawn
fry or kawag-kawag or fry of other species and fish from the
municipal waters by nets, traps or other fishing gears to marginal
fishermen free of any rental, fee, charge or any other imposition
whatsoever.
(3) Issue licenses for the operation of fishing vessels of three (3)
tons or less for which purpose the sangguniang bayan shall
promulgate rules and regulations regarding the issuances of
such licenses to qualified applicants under existing laws.
Provided, however, That the sanggunian concerned shall, by appropriate

ordinance, penalize the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of fishing and prescribe
a criminal penalty therefor in accordance with the provisions of this Code:
Provided, finally, That the sanggunian concerned shall have the authority to
prosecute any violation of the provisions of applicable fishery laws.
Under both laws, access to fisheries is allocated to municipal and commercial fishers.
However, there are many instances of conflicts among the two stakeholder groups because
of competition over nearshore fisheries – commercial fishers have more efficient gear, but
they are banned in municipal waters because they could easily deplete the resources to the
detriment of mostly poor municipal fishes who have less efficient fishing gear.
The Fisheries Code was enacted primarily to ensure that fisheries resources are sufficient to
meet food security.
Sec. 2. Declaration of Policy. - it is hereby declared the policy of the State:
a. to achieve food security as the overriding consideration in the

utilization, management, development conservation and
protection of fishery resources in order to provide the food needs
of the population. A flexible policy towards the attainment of food
191
security shall be adopted in response to changes in

demographic trends for fish, emerging trends in the trade of fish
and other aquatic products in domestic and international
markets, and the law of supply and demand;
b. to limit access to the fishery and aquatic resources of the
Philippines for the exclusive use and enjoyment of Filipino
citizens;
c. to ensure the rational and sustainable development,
management and conservation of the fishery and aquatic
resources in Philippine water including the Exclusive Economic
Zone (EEZ) and in the adjacent high seas, consistent with the
primordial objective of maintaining a sound ecological balance,
protecting and enhancing the quality of the environment;
d. to protect the rights of fisherfolk, especially of the local
communities with priority to municipal fisherfolk, in the
preferential use of the municipal waters. Such preferential use,
shall be based on, but not limited to, Maximum Sustainable Yield
(MSY) or Total Allowable Catch (TAC) on the basis of resources
and ecological conditions, and shall be consistent with our
commitments under international treaties and agreement;
e. to provide support to the fishery sector, primarily to the municipal
fisherfolk, including women and youth sectors, through
appropriate technology and research, adequate financial,
production, construction of post-harvest facilities, marketing
assistance, and other services.
According to a 2004 paper by Luna,144 the following issues confront Philippine marine
fisheries today:
• depleted fishery resources;

• degraded coastal environment and critical fisheries habitats;
• low catches and incomes, and dissipated resource rents;
• physical losses and reduced value of catches due to improper post-harvest practices
and inefficient marketing;
• inequitable distribution of benefits from resource use;
• intersectoral and intrasectoral conflicts;
• poverty among small-scale fishers; and
• inadequate systems and structures for fisheries management.
Open access is one of the main interconnections among all the issues identified. They
recommended six critical actions to reverse the decline in Philippine marine fisheries:
• reduction and rationalization of fishing effort;

• protection, rehabilitation and enhancement of coastal habitats;
• improved utilization of harvests;
• enhanced local stewardship and management of resources;
• supplemental and alternative livelihoods for fishers; and capacity building and
institutional strengthening.145
144 Luna, C.Z., Silvestre, G.T., Carreon, M.F. III, White, A.T. & Green, S.J., Sustaining Philippine Marine
Fisheries Beyond “Turbulent Seas: A Synopsis of Key Management Issues and opportunities, in Department of
Agriculture- Bureau of Fisheries and Aquatic Resoures 345–358 (2004).
145 Id.
192
The Marine Science Institute of the University of the Philippines 146 further identified several
issues which need tackling:
1. Lingayen Gulf and Manila Bay: too many fishers and environmental
stress
One of the common features in many fishing areas is how the varying degrees
of environmental stress induced by human impacts interact with fisheries
overexploitation (e.g., siltation together with pollution in Lingayen Gulf and
Manila Bay).147,148 The most prevalent fisheries concern is the condition that is
referred to as ‘malthusian overfishing’. This condition often related to an
increasing density of fishers’ population and leads to using more efficient but
destructive fishing practices such as blastfishing. 149 In addition, the competition
between commercial and municipal fishing activities within municipal waters
has been consistently seen as one of the major concerns.
2. Municipal fisheries vs. commercial fisheries
Due to the overexploited state in the coastal areas and the need to regulate
fishing effort (i.e., municipal waters within 10 to 15 km from the shore), illegal
access by the commercial fleets has been seen as a major problem in the
fisheries sector.
This social equity and uneven competition have been considered characteristic
not only in the Philippines, but also in many other coastal fisheries of
developing countries. Thus, solutions require greater empowerment
mechanisms (e.g., community-based efforts for improved enforcement), which,
to some extent, have been initiated through some of the decentralization
devolution mechanisms of the Philippine local government code of 1992.
Unfortunately, the small-scale municipal fisheries sector also requires

considerable effort reductions in order to have any significant change to
mitigate for the decline of the fisheries resources. 150 As mentioned earlier,
malthusian overexploitation, together with the marginalization of the municipal
fishers, have led them further to desperate measures for more effective and
destructive fishing practices (e.g., blast fishing, poison fishing).
3. Capture fisheries and mariculture
Due to the expected stagnation of capture fisheries in the coastal areas and,
on the other hand, with a projected continuous increase in population, cheap
fish protein food may be less available in future. 151 Hence, mariculture has
been seen as the logical panacea to augment the fisheries deficit. This
146 P.M. Alinio, An Overview of Philippine Fisheries (undated), available at: http://innri.unuftp.is/pdf/Philippine
%20Fisheries.pdf
147 J.E. Padilla & A.C. Morales, Evaluation of Fisheries Management Alternatives for Lingayen Gulf: An Options
Paper, in Studies on Lingayen Gulf, Final report of The Philippine Environmental and Natural Resources
Accounting Project (ENRAP-Phase IV) (1997).
148 D. Pauly, T-E Chua, The Overfishing of Marine Resources: Socioeconomic Background in Southeast Asia ,
in AMBIO 17: 200-206 (1988).
149 D. Pauly, G.T. Silvestre & I.R. Smith, On development, fisheries and dynamite: a brief review of tropical
fisheries management, in Natural Resources Modelling 3(3): 307-329 (1989).
150 VV Hilomen & L. Jimenez , Resource and Social assessment of Lingayen Gulf: Capture Fisheries (2001)
(unpublished report) (on file with authors).
193
suggestion, however, has been wrought with problems such as the issue of
degradation of important fisheries habitats. In the Philippines, fishpond
conversion of mangrove areas has been identified as one of the major cause of
mangrove destruction.152 Recently in the Lingayen Gulf, the introduction of fish
pens and fish cages brought about serious problems. Aside from the problems
of water quality and fish kills due to unrequlated aquaculture activities, further
displacement of fishers has occurred in addition to the unfair access
arrangements in the commons.153
4. Transboundary issues: pelagic stocks and disputed areas
A report on the innovation by the Filipinos’ introduction of the payao (a fish

aggregating device) suggested that catch rates in the Philippines may be
beyond their potentials and may also have signs of growth overfishing. 154
It also identified some recommendations on tackling the various issues and concerns on
Philippine Fisheries:155
1. Enhance capabilities of Fisheries Management councils at all levels

specially through the establishment of National and Regional Fisheries
Councils. To date, with Republic Act 8550 (the Philippine Fisheries Code of
1998), the Fisheries and Aquatic Resources Management Councils (FARMCs)
have been institutionalized by law. Unfortunately, they are mainly a
consultative body and would require improved ways of making them more
effective in actual management interventions in the ground.
2. There is a need to clarify the management goals that fisheries management

programs often confuse the management concerns that deal with intermediate
causes (e.g., overexploitation of fisheries and habitat destruction) and those
that deal with the root causes (e.g., poverty, population growth, social equity,
political economy). Aside from the clarification of these goals and objectives, it
is crucial that appropriate stakeholders’ roles and responsibilities be identified
to contribute to coordinated, integrated and complementary outcomes.
3. Pursue innovative ways of reducing fishing effort and more effective ways of
enforcement and compliance. Considering the dire depauperate condition of
the Philippines and widespread hunger and deprivation in its social
development, controlling fishing effort requires more than the usual command
and control monitoring, control and surveillance mechanisms of developed
states. Much of the succesful initiatives tended to provide social pressures from
the community through a changed social view of community stewardship. A
broader compliance to local and national ordinances can be improved if
151 G. Bernacsek, Principal Fisheries Development Policy Issues for the Five-Year Development Plan of the
Philippines (1987) (unpublished conference paper) (presented at the National Fisheries Policy Workshop, 16-20
Mar 1987, Baguio City).
152 P.M. Aliño, C.L. Nañola, D.G. Ochavillio & M.C. Rañola, The Fisheries Potential of the Kalayaan Island
Group, South China Sea 219-226. (B. Morton, ed. 1998) (presented at Proc. 3rd International Conference on
Marine Biology of the South China Sea, Hong Kong, 28 Oct - 1 Nov 1996).
153 L.F. Verceles, L.T. McManus & P.M. Aliño, Participatory Monitoring and Feedback System: An Important
Entry Towards Sustainable Aquaculture in Bolinao, Northern Philippines 78- 87 (2001).
154 R. Ganaden, B. Stequert, Tuna Fisheries in the Philippines (1987) (presented at the IPTP Tuna Working
Group, Aug 1987, Manila, Philippines).
155 G.T. Silvestre, Philippine Marine Capture Fisheries: Exploitation, Potential and Options for Sustainable
Development 87 (International Center for Marine Resource Development, The University of Rhode Island,
Working Paper No 48, 1989).
194
political-will is demnstrated by the local government. On the other hand, many

broad based organized community (e.g., through militant peoples
organizations) or through citizens watch programs known as Bantay Dagat
(sea watchers or local community coast guards) have also been succesful.
Though only documented in fewer cases in the Philippines, some communities
still assert some of their local beliefs (akin to traditional ecological knowledge
and wisdom) as a guide for their fishing practices.156
4. Explore incentives for livelihood-linked programs to sustain resource

management and disincentives for sustainable practices. Due to the broader
development concerns prevalent in developing countries, regulating fishing as
a crucial livelihood for the sustenance of fishers requires effective incentives to
shift towards sustainable practices. Some success has been shown for areas
where some fishers have shifted towards some ecotourism related activities
involving marine sanctuaries where resource extraction has been minimized. 157
In addition, it has been suggested that resource enhancement activities
involving community stakeholders has shown some promise. Such
experiences in learning by doing as part their livelihood and as stewardship
responsibility creates a greater social pressure for unsustainable practices.
Reducing product acceptance derived from unsustainable livelihood practices
(e.g., blast fishing and poison fishing) and as compared to more acceptable
ecolabelled goods and services also offer complementary value-added
incentives.
5. Encourage joint ventures in international waters and consider incentives in

lightly exploited international areas. The broad Philippine fisheries experience
in the region may offer the problems of its local fisheries resource depletion to
explore lightly exploited areas in the Pacific international waters areas with
other regional partners (e.g., Indonesia and Papua New Guinea). Improvement
of the private sector and state interaction needs to be explored further
especially in facilitating goodwill and clarifying mutually beneficial trade
agreements.
6. Improve effectiveness of enhancement and rehabilitation through an

ecosystem and integrated coastal management approach. Some reseeding
efforts and mangrove enhancement initiatives have met with less success due
to the inappropriate context that they have been undertaken. Thus sea
ranching without sufficient efforts to regulate access and area control (e.g., with
a complementary marine sanctuary area) or proper grow out educated
cooperators would not be sustainable. In addition, enhancement areas situated
in areas where conflicts in general usage of the zones (e.g., international ports
and industrialdischarges or possible pollution sources) would jeopardize
enhancement and rehabilitation. As shown in the example for mariculture,
more and more fisheries management concerns of municipalities’ are now
being approached as part of its’ integrated coastal development plans.
156 Mahar Mangahas, Indigenous Coastal Resources Management: The Case of the Hataw Fishing in Batanes,
Center for Development Studies (1993).
157 P.H. Vogt, The Economic Benefits of Tourism in the Marine Reserve of Apo Island, Philippines 7 (1997)
(presented at the 8th International Coral Reef Sympsosium, June 1997, Panama).
195
The Philippine fisheries industry comprises marine fisheries, inland fisheries, and
aquaculture. Marine fisheries can be further divided into municipal fisheries and commercial
fisheries. Recreational fisheries have not developed in the country.
Municipal marine fisheries operate in coastal waters within fifteen (15) kilometers from the
coastline (“municipal marine waters”), using vessels as well as fishing without the use of
vessels. Commercial fisheries operate outside municipal waters.
Inland fisheries operate in inland waters such as lakes, reservoirs and rivers, including
estuaries. Aquaculture involves aquatic organisms in fresh, brackish and marine waters.
The Philippines ranked eleventh among the top fish producing countries in the world in 2003,
with production of 2.63 million tonnes of fish, crustaceans, molluscs and aquatic plants
(including seaweed).
As an archipelagic state with over 2.2 million km of highly productive seas, the Philippines is
fortunate to have vast fishery resources at its disposal. However, all of the country’s main fish
species and marine organisms are showing signs of overfishing.
Marine fisheries
In 2003, reported marine fisheries production was 2,169,164 tonnes: 45.38% from municipal
and 54.62% from commercial fisheries.158
Of the eight top species caught by both municipal and commercial fisheries, almost two-thirds
were harvested by commercial fishers compared with one-third caught by municipal fishers.
This suggests that, although the commercial and municipal fisheries are purported to be two
distinctly different sectors, they are in fact competing directly with each other.
Despite the continued expansion of the country’s commercial fishing fleet, total fish catch
levelled off at around 1.65 million tonnes in the early 1990s. Indeed, the country had reached
the maximum economic yield from its demersal fish stocks as early as the late 1960s, except
in the offshore hard bottoms around Palawan, Southern Sulu Sea and the central part of the
country’s Pacific coast. Studies on pelagic fisheries also indicate overfishing and declining
catch per unit effort. Exceptions are in lightly fished areas in waters off Palawan, parts of the
country’s Pacific coast and some parts of Mindanao. Such findings are supported by an
observed change in species composition, i.e. anchovies have partially replaced sardines,
scads and mackerels in the catch, an indication of gradual stock collapse.
A major fishing ground, Lingayen Gulf, reached its maximum sustainable yield (MSY) more
than 20 years ago. The fishery now has four times the optimum effort for the available fish
stocks. Catch rates in the gulf are only one-fifth of what they were 15 years ago, compelling
fishers to invest more time and money in dwindling catches. 159
In some areas, not only has the volume of catch been reduced, but also quality. For example,
in Central Visayas, there has been an overall shift in catch composition, away from coastal
pelagic to oceanic pelagic species and away from demersal to pelagic species. In the
Visayan Sea, one of the most productive fishing grounds of the country, a major change in
composition of catch took place in the 1980s, with coastal pelagics replacing the demersals
as the most abundant catch, and invertebrate species shifting from shrimp-dominant to squid-
158 Bureau of Fisheries and Aquatic Resources, Philippine Fisheries Profile (2003).
159 S.J. Green, A.T. White, J.O. Flores, M.F. Carreon, & A.E. Sia, Philippine fisheries in crisis: A Framework for
Management, Coastal Resource Management Project DENR-Cebu 77 (2003).
196
dominant, reflecting a shift in the ecosystem due to fishing pressure and a shift away from
trawling to purse seine and ring net. These changes indicate that the Visayan Sea was
exhibiting signs of overexploitation as far back as the 1980s. 160
Inland fisheries
Based on the statistics for the period 2001–2003, inland fisheries contribute an average of
13.3% to the aggregate (marine and inland). In 2003, inland fisheries produced a reported
133,292 tonnes of fish. In spite of its low quantity, inland fisheries provides subsistence
livelihood for thousands of marginal fishermen.
Inland fisheries production fell from 229,973 tonnes in 1992 to 136,347 tonnes in 2001. The
reduction can be attributed to overexploitation and increasing pollution. 161
Fishermen communities in municipal areas
Municipal fisherfolk are considered the “poorest among the poor.” In 2000, households
whose heads were fishers had a significantly higher poverty incidence than households in
general. Their daily income was roughly the retail value of two (2) kilograms of fish. Low
incomes can be attributed to declining fish catch, estimated to be about two (2) kilograms per
day, down from the twenty (20) kilograms per day that was the average catch during the
1970s.
Households of fishers and those in the fishing industry also had heads with relatively lower
education levels compared with households in general. Fishers’ households had lower
access rates to basic necessities like safe water, sanitary toilets and electricity than other
households, and were more likely to live in makeshift houses or were squatting. Also, the
average size of households of fishers and of those in the fishing industry was greater than
the national average.162
According to the 2002 Census of Fisheries, there were 1.8 million municipal and commercial
fishing operators. This was a three-fold increase from the 584,000 fishing operators recorded
in 1980. Municipal fishing dominated the fishing industry in terms of numbers of operators. In
2002, 1.78 million operators (99.6%) were engaged in municipal fishing compared with only
7,800 in commercial fishing operations.
The vast majority of municipal fishing operations (1.752 million or 98.4%) were individual
operations. At 1.7 million, male operators accounted for 94.5% of the municipal fishing
operators, with a median age of forty-one (41) years.
In 2002, out of 7,200 commercial fishing operations, 7,190 were operated by individuals, and
almost all (98.6%) were males, with a median age of 39 years.
Women also have a role in fisheries and helping in the livelihood of the family. Their roles
include: (1) fish marketing or vending, (2) fish processing, (3) fry gathering, (4) gear
preparation, (5) fishing, (6) net mending, and (7) fishing boat ownership and operation. 163
160 S.J. Green, J.O. Flores, J.Q. Dizon-Corrales, R.T. Martinez, D.R.M Nunal, N.B. Armada & A.T. White, The
Fisheries of Central Visayas, Philippines: Status and Trend, Coastal Resource Management Project DENR, DA-
BFAR Cebu 159 (2004).
161 R.O. Juliano, Inland fisheries and lake management: Situation, Issues and Problems, and
Recommendations (1996) (presented during the Second National Fisheries Workshop on Policy Planning and
Industry Development, Cavite, the Philippines).
162 D.C. Israel, Economics and Environment in the Fisheries Sector, in DA-BFAR 131–137 (q.v., 2004).
163 Siason, I.M. 2004. Women in fisheries in the Philippines. pp. 144–149. In: DA-BFAR, 2004, q.v.
197
Fishermen communities in inland areas
Socio-economic data on inland fisheries communities are limited in the literature. More data
can be found on small-scale fisherfolk in coastal communities. However, it can be assumed
that the socio-economics of coastal fishing communities will not differ significantly from those
of inland fishing communities.164
Fish Export and Import
The Philippines is an exporter as well as importer of fish and fishery products. In 2003, the
balance of trade was positive in terms of quantity and value.
In 2003, total exports of fish and fishery products amounted to 202,016 tonnes, valued at
over US$ 525.4 million. The products consisted mainly of fresh and processed fish,
crustaceans and molluscs. Leading fishery products were tuna, shrimp and seaweed. The
major export destinations of tuna were Japan and the United States of America. The major
export destinations of shrimps were Japan, Spain and the United States of America. The
major export destinations for dried seaweed were China, France, Republic of Korea and the
United States of America, while the major export destinations for carageenan were Denmark,
France and the United States of America.
For the past several years, the Philippines has been importing large quantities of pelagic
species such as tuna (mainly from Indonesia). Large quantities of fishmeal are also imported
(mostly from Peru and the United States of America) for feed preparations.
Economics
In 2003, the fisheries sector had a total value of US$ 1,832 million, accounting for 2.2% of
GDP. The Philippines ranked 11th among the top fish producing countries in the world for
2001, accounting for 2.2% of global production. The Philippines is the world’s largest
producer of carageenophyte seaweed.
However, globally in the last 20 years, the Philippines’ ranking in world aquaculture
production steadily slid from 4th place in 1985 to 12th at present. From 5% of global farmed
fish supply, the Philippines now contributes only a little over 1% of world production.
Supply & Demand
Fish demand is robust in the Philippines, with three main uses. Domestic human
consumption is by far the largest single use (2,335,474 tonnes in 2003). The most important
species consumed are roundscad, Indian sardines, frigate tuna, big-eyed scad, fimbriated
sardines and anchovies, which originate from marine waters and are augmented by imports
and milkfish and tilapia from aquaculture and inland fisheries. Fish exports are the second
largest use of supply (155,129 tonnes in 2003). The main exported products are tuna, which
originate from commercial and municipal marine fisheries, and shrimp from aquaculture. The
smallest portion of demand (332,268 tonnes in 2003) is for non-food uses. This consists
mainly of imported fishmeal for animal feeds, and snails caught in inland waters for duck
feed.
The supply divides as about 83% for human consumption and 17% for exports and non-food
uses.
164 Juliano, R.O. 1999. Inland fisheries in the Philippines: Its development, management and future. pp. 116–192.
In: R.D. Guerrero III (ed). 100 Years of Philippine fisheries and marine science 1898–1998. Philippine Council for
Aquatic and Marine Research and Development, Los Banos, Laguna, the Philippines.
198
Fish contributes around 22.4% of the total protein intake of the average Filipino. It is the main
source of animal protein in the diet, contributing 56% to animal protein intake. 165 The
Philippine per capita fish consumption was 28.8 kg in 2003.
Food Security
On the role of fisheries in food security in the Philippines: “There are clear indications that
fisheries quantity production is approaching real limits to further growth. Government of the
Philippines fisheries policy should re-orient and re-focus to emphasize growth in product
value added and increase in profitability, rather than the historical focus on quantity output. A
new development climate needs to be created which will facilitate active entrepreneurial
exploration of new markets for fish products and new export opportunities. Parallel to this
policy shift, sustainability of domestic production needs to be achieved through effective
management in order for producers to be able to provide a secure source of raw materials for
processors and marketers.166
Trade
The foreign trade performance of the sector for 2003 recorded a trade surplus of US$ 445
million. Total fishery exports showed a 3.6% growth in value terms compared with the
previous year. Combined, the earnings of the top three fishery exports (tuna, shrimp and
seaweed) contributed US$ 363.2 million (69.3%) to total fishery products exports of US$
524.3 million.
Significant changes in international trade policy, quality and safety criteria have put pressure
on the fish processing industry to improve the products that are being manufactured. The
Philippines has adopted the Hazard Analysis Critical Control Point (HACCP) system for food
safety management. The Philippines continues to face challenges regarding access of its
fishery products in international markets.
Employment
According to the 2002 Census of Fisheries, there were 2,009,300 fishing operators and
aquafarm operators. Municipal fishing operators, commercial fishing operators and aquafarm
operators constituted 88.6%, 0.39% and 11.0%, respectively. Estimates of the employment
generated from ancillary industries are not available, but it is accepted that they provide jobs
for many people.167
Rural Development
Various socio-economic data indicate that the ability of the sea to provide a cheap source of
food and income for the Filipino masses has been severely compromised. The Philippines –
one of the world’s forty (4) largest fish-producing nations – is also among the ten (10) low-
income, food-deficit countries of the world. 168 With regard to aquaculture, its full potential for
rural development has yet to be realized.
165 J. Espejo-Hermes, Trends and Status of Fish Processing Technology, in DA-BFAR 122–126 (q.v., 2004)
166 B. Bernacsek, The Role of Fisheries in Food Security in the Philippines: A Perspective Study for the
Fisheries Sector to the Year 2010 (1996) (presented during the Second National Fisheries Workshop on Policy
Planning and Industry Development, Cavite, the Philippines).
167 National Statistics Office (2005).
168 S.J. Green, A.T. White, J.O. Flores, M.F. Carreon, & A.E. Sia, Philippine fisheries in crisis: A Framework for
Management, Coastal Resource Management Project DENR-Cebu 77 (2003).
199
Effectiveness of protecting critical habitats
Less than five percent of the Philippines’ coral reef ecosystems remain in pristine health, and
there are fishing grounds that contain a mere 10% of the fish stock present just fifty (50)
years ago. Most near-shore fishing is conducted by subsistence fishers in coastal
communities – a group that represents not just a formidable threat, but the most likely driver
of an effective solution.
As overfishing has identified as the leading threat to the marine ecosystem, the Philippines
established itself as a world leader in marine conservation, decentralizing natural resource
management and establishing what many experts agree are the key to successful protected
areas – no-take zones. These NTZs are marine areas where absolutely no fishing is allowed
and which – when well managed by surrounding communities – yield greater stocks of fish to
support local livelihoods and food security long term; preserve coral reefs on which tourism
depends; and buffer coastal areas from the negative impacts of climate change. This, of
course, requires that communities have both the will and the way to adopt better
management practices. More than a quarter of the world’s 4,700+ documented NTZs are
located in the Philippines, but many exist only on paper. 169
The study conducted by Weeks et. al.170 indicates “that the current extent, distribution,
and size of MPAs are inadequate to fulfill conservation objectives at this scale.” It was
said that while individual MPAs are sufficient for “local-scale fisheries objectives,” they
are still no substitute to a comprehensive national MPA network “to achieve an adequate
representation of biodiversity.” However, even established large MPAs are problematic,
as most of them allow extractive activities within their boundaries, and these extractive
activities “provide little protection to marine biodiversity.” Just the same, these large
MPAs do “offer an existing commitment to the management of marine resources.”
According to the results, the current percentage of coastal municipal waters and coral
reef areas covered by no-take MPAs (approximately 0.5% and between 2.7% and 3.4%,
respectively) does not meet the prescribed legislated targets. However, it was noted that
there is scarcely any available basis as to the pegging of the required 15% of coastal
municipal waters in no-take MPAs as mandated by the 1998 Fisheries Code. “The
process was likely one of political convenience rather than scientific endeavor. Given
that 15% of Philippine municipal waters are about twice the total coral reef area in the
country, it does not appear to be an achievable or appropriate goal.” The study offered a
hypothetical solution to “fulfill the legislated requirements by establishing MPAs
exclusively between 10 km and 15 km offshore,” but at the same time surmised that
such action would not benefit coral reef ecosystems, which are most at threat of
overexploitation. The study also introduced the Philippine Marine Sanctuary Strategy
target of “protecting 10% of reef area,” although it “falls short of general
recommendations that a minimum of 20% and an optimum of 30%–50% of area be set
aside in marine reserves.”
However, a count of established MPAs can only be a proper conservation indicator if

they are likewise managed effectively. According to the Marine Protected Area Rating
System, of the 251 MPAs surveyed “only 12% are rated as ‘sustained,’ meaning they
have a fully operational enforcement system, management plan, and monitoring
169 Rare Conservation, Program for Sustainable Fishing in the Philippines, http://rareconservation.org/program-
sustainable-fishing-philippines (last visited June 2012).
170 Rebecca Weeks, Garry Russ, Angel Alcala, Alan White, Effectiveness of Marine Protected Areas in the
Philippines for Biodiversity Conservation, in Conservation Biology (Contributed Paper, 2010).
200
program,” [while] a further 35% are rated as ‘enforced.’ If these figures are accurate, our
results are optimistic assessments of conservation effectiveness.”
201
Chapter Eight
Mineral Resources Extraction171
The Philippines is a country rich in mineral resources that would be worth trillions of pesos if
sold today (PhP 47 Trillion, according to a leader in the mining industry). These mineral
resources are located within our lands or under our seas, both of which locations are also
rich in other living or non-living resources that sustain economic activities such as farming,
eco-tourism, and fishing. Mining operations necessarily involve the alteration of the land or
seabed, such that people who use the land or sea for settlement and/or livelihood are likely to
be displaced by mining operations. The lands where mineral resources are located may also
have cultural or ecological values not easily measured in monetary terms.
The benefits derived from mining must balance its costs on people and the environment.
Compensation for losses must be provided on top of the rightful share of the country and
local people of the income from mineral wealth.
Minerals are non-renewable resources. Therefore, mining operations have a limited lifespan.
The scale of alteration or disturbance resulting from mining operations (spatial and temporal)
depends on the type of minerals, size of deposit, type of technology used, economic
feasibility, and similar factors. The impacts on the environment and people, at any scale,
depend on unique local factors: customary traditions and practices, uniqueness of natural
ecosystems, risk of accidents brought by natural disasters, availability of livelihood
alternatives, or the general ability of people and ecosystems to adjust to the scale of
alteration or disturbance.
The extent of alteration or disturbance resulting from mining operations may be limited to the
period of operations and controlled to minimize its adverse impacts. However, the impacts on
the environment and on people generally last longer than the mining operations, and may or
may not be reversible. The impacts of mining operations in the Philippines are magnified
because their scale is large compared to the total area and population affected (often in small
islands, with many communities living in the area intended for mining, with high risk of natural
disasters).
Mining operations are either large-scale or small-scale, depending on the perspective of

regulating the mining operator relative to the size of its operations. The policy criteria for
categorizing small- versus large-scale mining do not always match the criteria for determining
the scale of environmental impacts or economic benefits.
The issues regarding mining as alternative to other land uses were discussed in the Chapter
on Protected Areas and Watershed Management. In this Chapter, the focus is on the mining
industry as a pillar of the economy, its contributions and costs.
In the Fraser Institute Policy Potential Index (PPI) in 2010/2011, the Philippines ranked 66 th
out of 72 countries in conduciveness of policies to mining investments. The country ranked
low despite fiscal and other incentives provided by the government to mining companies.
Could this be due to the lingering uncertainty and conflicts associated with mining activities in
171 Based on the Policy Brief that the author prepared from research and consultations conducted by the Ateneo
School of Government, where the author is Dean.
202
the country? In the case of La Bugal B’laan, the Supreme Court extensively examined the
contribution of the mining industry and the conflicts surrounding access to mineral resources,
tracing its history and current status. In the original decision (January 2004), the Court ruled
that the Mining Act that regulates mining contradicted the Constitution in allowing foreign
entities to engage in activities exclusively reserved for Filipinos. The decision was met with
grave concern that the mining industry will collapse if foreign investments leave the country.
The decision was dramatically overturned in the Resolution of the Court issued December
2004, which held that the Mining Act was consistent with the Constitution, especially on the
matter involving foreign participation under the FTAA.
La Bugal-B'laan Tribal Association, Inc., vs.

Victor O. Ramos, Secretary of (DENR), et al.
G.R. No. 127882, January 27, 2004
Carpio-Morales, J.:
The present petition for mandamus and prohibition assails the

constitutionality of Republic Act No. 7942, 5 otherwise known as the
PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and
Regulations issued pursuant thereto, Department of Environment and Natural
Resources (DENR) Administrative Order 96-40, and of the Financial and
Technical Assistance Agreement (FTAA) entered into on March 30, 1995 by
the Republic of the Philippines and WMC (Philippines), Inc. (WMCP), a
corporation organized under Philippine laws.
On July 25, 1987, then President Corazon C. Aquino issued Executive Order
(E.O.) No. 279 authorizing the DENR Secretary to accept, consider and
evaluate proposals from foreign-owned corporations or foreign investors for
contracts or agreements involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals, which, upon
appropriate recommendation of the Secretary, the President may execute
with the foreign proponent. In entering into such proposals, the President
shall consider the real contributions to the economic growth and general
welfare of the country that will be realized, as well as the development and
use of local scientific and technical resources that will be promoted by the
proposed contract or agreement. Until Congress shall determine otherwise,
large-scale mining, for purpose of this Section, shall mean those proposals
for contracts or agreements for mineral resources exploration, development,
and utilization involving a committed capital investment in a single mining unit
project of at least Fifty Million Dollars in United States Currency (US
$50,000,000.00).
On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to
"govern the exploration, development, utilization and processing of all mineral
resources." R.A. No. 7942 defines the modes of mineral agreements for
mining operations, outlines the procedure for their filing and approval,
assignment/transfer and withdrawal, and fixes their terms. Similar provisions
govern financial or technical assistance agreements.
The law prescribes the qualifications of contractors and grants them certain
rights, including timber, water and easement rights, and the right to possess
203
explosives. Surface owners, occupants, or concessionaires are forbidden

from preventing holders of mining rights from entering private lands and
concession areas. A procedure for the settlement of conflicts is likewise
provided for.
The Act restricts the conditions for exploration, quarry and other permits. It
regulates the transport, sale and processing of minerals, and promotes the
development of mining communities, science and mining technology, and
safety and environmental protection.
The government's share in the agreements is spelled out and allocated, taxes
and fees are imposed, incentives granted. Aside from penalizing certain acts,
the law likewise specifies grounds for the cancellation, revocation and
termination of agreements and permits.
On April 9, 1995, 30 days following its publication on March 10, 1995 in

Malaya and Manila Times, two newspapers of general circulation, R.A. No.
7942 took effect. Shortly before the effectivity of R.A. No. 7942, however, or
on March 30, 1995, the President entered into an FTAA with WMCP covering
99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur
and North Cotabato.
On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR
Administrative Order (DAO) No. 95-23, s. 1995, otherwise known as the
Implementing Rules and Regulations of R.A. No. 7942. This was later
repealed by DAO No. 96-40, s. 1996 which was adopted on December 20,
1996.
On January 10, 1997, counsels for petitioners sent a letter to the DENR
Secretary demanding that the DENR stop the implementation of R.A. No.
7942 and DAO No. 96-40, giving the DENR fifteen days from receipt to act
thereon. The DENR, however, has yet to respond or act on petitioners' letter.
Petitioners thus filed the present petition for prohibition and mandamus, with
a prayer for a temporary restraining order. They allege that at the time of the
filing of the petition, 100 FTAA applications had already been filed, covering
an area of 8.4 million hectares, 64 of which applications are by fully foreign-
owned corporations covering a total of 5.8 million hectares, and at least one
by a fully foreign-owned mining company over offshore areas.
Petitioners claim that the DENR Secretary acted without or in excess of

jurisdiction:
x x x in signing and promulgating DENR Administrative Order No. 96-40

implementing Republic Act No. 7942, the latter being unconstitutional in that it
allows fully foreign owned corporations to explore, develop, utilize and exploit
mineral resources in a manner contrary to Section 2, paragraph 4, Article XII
of the Constitution;
xxx
204
x x x in signing and promulgating DENR Administrative Order No. 96-40

implementing Republic Act No. 7942, the latter being unconstitutional in that it
allows priority to foreign and fully foreign owned corporations in the
exploration, development and utilization of mineral resources contrary to
Article XII of the Constitution;
xxx
VII
x x x in recommending approval of and implementing the Financial and

Technical Assistance Agreement between the President of the Republic of
the Philippines and Western Mining Corporation Philippines Inc. because the
same is illegal and unconstitutional.
xxx
WMCP subsequently filed a Manifestation dated September 25, 2002 alleging

that on January 23, 2001, WMC sold all its shares in WMCP to Sagittarius
Mines, Inc. (Sagittarius), a corporation organized under Philippine laws.
WMCP was subsequently renamed "Tampakan Mineral Resources
Corporation." WMCP claims that at least 60% of the equity of Sagittarius is
owned by Filipinos and/or Filipino-owned corporations while about 40% is
owned by Indophil Resources NL, an Australian company. It further claims
that by such sale and transfer of shares, "WMCP has ceased to be
connected in any way with WMC."
By virtue of such sale and transfer, the DENR Secretary, by Order of

December 18, 2001, approved the transfer and registration of the subject
FTAA from WMCP to Sagittarius. Said Order, however, was appealed by
Lepanto Consolidated Mining Co. (Lepanto) to the Office of the President
which upheld it by Decision of July 23, 2002. Its motion for reconsideration
having been denied by the Office of the President by Resolution of November
12, 2002, Lepanto filed a petition for review before the Court of Appeals.
Incidentally, two other petitions for review related to the approval of the
transfer and registration of the FTAA to Sagittarius were recently resolved by
this Court.
It bears stressing that this case has not been rendered moot either by the
transfer and registration of the FTAA to a Filipino-owned corporation or by the
non-issuance of a temporary restraining order or a preliminary injunction to
stay the above-said July 23, 2002 decision of the Office of the President. The
validity of the transfer remains in dispute and awaits final judicial
determination. This assumes, of course, that such transfer cures the FTAA's
alleged unconstitutionality, on which question judgment is reserved.
WMCP also points out that the original claimowners of the major mineralized
areas included in the WMCP FTAA, namely, Sagittarius, Tampakan Mining
Corporation, and Southcot Mining Corporation, are all Filipino-owned
corporations, each of which was a holder of an approved Mineral Production
Sharing Agreement awarded in 1994, albeit their respective mineral claims
205
were subsumed in the WMCP FTAA; and that these three companies are the
same companies that consolidated their interests in Sagittarius to whom
WMC sold its 100% equity in WMCP. WMCP concludes that in the event that
the FTAA is invalidated, the MPSAs of the three corporations would be
revived and the mineral claims would revert to their original claimants.
These circumstances, while informative, are hardly significant in the

resolution of this case, it involving the validity of the FTAA, not the possible
consequences of its invalidation.
Of the above-enumerated seven grounds cited by petitioners, as will be

shown later, only the first and the last need be delved into; in the latter, the
discussion shall dwell only insofar as it questions the effectivity of E. O. No.
279 by virtue of which order the questioned FTAA was forged.
xxx
The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-
40 likewise fulfills the requisites of justiciability. Although these laws were not
in force when the subject FTAA was entered into, the question as to their
validity is ripe for adjudication.
xxx
II
Petitioners contend that E.O. No. 279 did not take effect because its
supposed date of effectivity came after President Aquino had already lost her
legislative powers under the Provisional Constitution.
And they likewise claim that the WMC FTAA, which was entered into
pursuant to E.O. No. 279, violates Section 2, Article XII of the Constitution
because, among other reasons:
(1) It allows foreign-owned companies to extend more than mere financial or

technical assistance to the State in the exploitation, development, and
utilization of minerals, petroleum, and other mineral oils, and even permits
foreign owned companies to "operate and manage mining activities."
(2) It allows foreign-owned companies to extend both technical and financial

assistance, instead of "either technical or financial assistance."
To appreciate the import of these issues, a visit to the history of the pertinent
constitutional provision, the concepts contained therein, and the laws enacted
pursuant thereto, is in order.
Section 2, Article XII reads in full:
Sec. 2. All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy,
206
fisheries, forests or timber, wildlife, flora and fauna, and other

natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision
of the State. The State may directly undertake such activities or
it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development
of water power, beneficial use may be the measure and limit of
the grant.
The State shall protect the nation's marine wealth in its

archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
The Congress may, by law, allow small-scale utilization of

natural resources by Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and fish-workers
in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned

corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to
the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use
of local scientific and technical resources.
The President shall notify the Congress of every contract

entered into in accordance with this provision, within thirty days
from its execution.
Xxx
The first sentence of Section 2 embodies the Regalian doctrine or jura

regalia. Introduced by Spain into these Islands, this feudal concept is based
on the State's power of dominium, which is the capacity of the State to own or
acquire property.
Xxx
The Regalian doctrine extends not only to land but also to "all natural wealth
that may be found in the bowels of the earth." Spain, in particular, recognized
the unique value of natural resources, viewing them, especially minerals, as
an abundant source of revenue to finance its wars against other nations.
207
Mining laws during the Spanish regime reflected this perspective.
xxx
Unlike Spain, the United States considered natural resources as a source of

wealth for its nationals and saw fit to allow both Filipino and American citizens
to explore and exploit minerals in public lands, and to grant patents to private
mineral lands. A person who acquired ownership over a parcel of private
mineral land pursuant to the laws then prevailing could exclude other
persons, even the State, from exploiting minerals within his property. Thus,
earlier jurisprudence held that:
A valid and subsisting location of mineral land, made and kept up in

accordance with the provisions of the statutes of the United States, has the
effect of a grant by the United States of the present and exclusive possession
of the lands located, and this exclusive right of possession and enjoyment
continues during the entire life of the location. x x x.
x x x.
The discovery of minerals in the ground by one who has a valid mineral
location perfects his claim and his location not only against third persons, but
also against the Government. x x x.
The Regalian doctrine and the American system, therefore, differ in one
essential respect. Under the Regalian theory, mineral rights are not included
in a grant of land by the state; under the American doctrine, mineral rights are
included in a grant of land by the government.
Among the principal organic acts of the Philippines was the Act of Congress
of July 1, 1902, more commonly known as the Philippine Bill of 1902, through
which the United States Congress assumed the administration of the
Philippine Islands. Section 20 of said Bill reserved the disposition of mineral
lands of the public domain from sale. Section 21 thereof allowed the free and
open exploration, occupation and purchase of mineral deposits not only to
citizens of the Philippine Islands but to those of the United States as well xxx
Section 21 also made possible the concession (frequently styled "permit",
license" or "lease") system. This was the traditional regime imposed by the
colonial administrators for the exploitation of natural resources in the
extractive sector (petroleum, hard minerals, timber, etc.).
Under the concession system, the concessionaire makes a direct equity

investment for the purpose of exploiting a particular natural resource within a
given area. Thus, the concession amounts to complete control by the
concessionaire over the country's natural resource, for it is given exclusive
and plenary rights to exploit a particular resource at the point of extraction. 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.
Later statutory enactments by the legislative bodies set up in the Philippines

adopted the contractual framework of the concession. For instance, Act No.
2932, approved on August 31, 1920, which provided for the exploration,
location, and lease of lands containing petroleum and other mineral oils and
208
gas in the Philippines, and Act No. 2719, approved on May 14, 1917, which
provided for the leasing and development of coal lands in the Philippines,
both utilized the concession system.
xxx
The 1935 Constitution adopted the Regalian doctrine, declaring all natural
resources of the Philippines, including mineral lands and minerals, to be
property belonging to the State. As adopted in a republican system, the
medieval concept of jura regalia is stripped of royal overtones and ownership
of the land is vested in the State.
xxx
The adoption of the principle of state ownership of the natural resources and
of the Regalian doctrine was considered to be a necessary starting point for
the plan of nationalizing and conserving the natural resources of the country.
For with the establishment of the principle of state ownership of the natural
resources, it would not be hard to secure the recognition of the power of the
State to control their disposition, exploitation, development or utilization.
The nationalization of the natural resources was intended (1) to insure their
conservation for Filipino posterity; (2) to serve as an instrument of national
defense, helping prevent the extension to the country of foreign control
through peaceful economic penetration; and (3) to avoid making the
Philippines a source of international conflicts with the consequent danger to
its internal security and independence.
The same Section 1, Article XIII also adopted the concession system,
expressly permitting the State to grant licenses, concessions, or leases for
the exploitation, development, or utilization of any of the natural resources.
Grants, however, were limited to Filipinos or entities at least 60% of the
capital of which is owned by Filipinos.
The swell of nationalism that suffused the 1935 Constitution was radically
diluted when on November 1946, the Parity Amendment, which came in the
form of an "Ordinance Appended to the Constitution," was ratified in a
plebiscite. The Amendment extended, from July 4, 1946 to July 3, 1974, the
right to utilize and exploit our natural resources to citizens of the United
States and business enterprises owned or controlled, directly or indirectly, by
citizens of the United States:
xxx
The Parity Amendment was subsequently modified by the 1954 Revised

Trade Agreement, also known as the Laurel-Langley Agreement, embodied
in Republic Act No. 1355.
xxx
Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy

Development, analyzed the benefits and drawbacks of the concession
209
system insofar as it applied to the petroleum industry:
Advantages of Concession. Whether it emphasizes income tax or royalty, the

most positive aspect of the concession system is that the State's financial
involvement is virtually risk free and administration is simple and
comparatively low in cost. Furthermore, if there is a competitive allocation of
the resource leading to substantial bonuses and/or greater royalty coupled
with a relatively high level of taxation, revenue accruing to the State under the
concession system may compare favorably with other financial
arrangements.
Disadvantages of Concession. There are, however, major negative aspects

to this system. Because the Government's role in the traditional concession is
passive, it is at a distinct disadvantage in managing and developing policy for
the nation's petroleum resource. This is true for several reasons. First, even
though most concession agreements contain covenants requiring diligence in
operations and production, this establishes only an indirect and passive
control of the host country in resource development. Second, and more
importantly, the fact that the host country does not directly participate in
resource management decisions inhibits its ability to train and employ its
nationals in petroleum development. This factor could delay or prevent the
country from effectively engaging in the development of its resources. Lastly,
a direct role in management is usually necessary in order to obtain a
knowledge of the international petroleum industry which is important to an
appreciation of the host country's resources in relation to those of other
countries.
Other liabilities of the system have also been noted:
x x x there are functional implications which give the concessionaire great

economic power arising from its exclusive equity holding. This includes, first,
appropriation of the returns of the undertaking, subject to a modest royalty;
second, exclusive management of the project; third, control of production of
the natural resource, such as volume of production, expansion, research and
development; and fourth, exclusive responsibility for downstream operations,
like processing, marketing, and distribution. In short, even if nominally, the
state is the sovereign and owner of the natural resource being exploited, it
has been shorn of all elements of control over such natural resource because
of the exclusive nature of the contractual regime of the concession. The
concession system, investing as it does ownership of natural resources,
constitutes a consistent inconsistency with the principle embodied in our
Constitution that natural resources belong to the state and shall not be
alienated, not to mention the fact that the concession was the bedrock of the
colonial system in the exploitation of natural resources.
Eventually, the concession system failed for reasons explained by Dimagiba:
Notwithstanding the good intentions of the Petroleum Act of 1949, the

concession system could not have properly spurred sustained oil exploration
activities in the country, since it assumed that such a capital-intensive, high
risk venture could be successfully undertaken by a single individual or a small
company. In effect, concessionaires' funds were easily exhausted. Moreover,
since the concession system practically closed its doors to interested foreign
210
investors, local capital was stretched to the limits. The old system also failed
to consider the highly sophisticated technology and expertise required, which
would be available only to multinational companies.
A shift to a new regime for the development of natural resources thus

seemed imminent.
xxx
The promulgation on December 31, 1972 of Presidential Decree No. 87,

otherwise known as The Oil Exploration and Development Act of 1972
signaled such a transformation. P.D. No. 87 permitted the government to
explore for and produce indigenous petroleum through "service contracts."
"Service contracts" is a term that assumes varying meanings to different

people, and it has carried many names in different countries, like "work
contracts" in Indonesia, "concession agreements" in Africa, "production-
sharing agreements" in the Middle East, and "participation agreements" in
Latin America. A functional definition of "service contracts" in the Philippines
is provided as follows:
A service contract is a contractual arrangement for engaging in the

exploitation and development of petroleum, mineral, energy, land and other
natural resources by which a government or its agency, or a private person
granted a right or privilege by the government authorizes the other party
(service contractor) to engage or participate in the exercise of such right or
the enjoyment of the privilege, in that the latter provides financial or technical
resources, undertakes the exploitation or production of a given resource, or
directly manages the productive enterprise, operations of the exploration and
exploitation of the resources or the disposition of marketing or resources.
In a service contract under P.D. No. 87, service and technology are furnished
by the service contractor for which it shall be entitled to the stipulated service
fee. The contractor must be technically competent and financially capable to
undertake the operations required in the contract.
Financing is supposed to be provided by the Government to which all

petroleum produced belongs. In case the Government is unable to finance
petroleum exploration operations, the contractor may furnish services,
technology and financing, and the proceeds of sale of the petroleum
produced under the contract shall be the source of funds for payment of the
service fee and the operating expenses due the contractor. The contractor
shall undertake, manage and execute petroleum operations, subject to the
government overseeing the management of the operations. The contractor
provides all necessary services and technology and the requisite financing,
performs the exploration work obligations, and assumes all exploration risks
such that if no petroleum is produced, it will not be entitled to reimbursement.
Once petroleum in commercial quantity is discovered, the contractor shall
operate the field on behalf of the government.
P.D. No. 87 prescribed minimum terms and conditions for every service
contract. It also granted the contractor certain privileges, including exemption
from taxes and payment of tariff duties, and permitted the repatriation of
211
capital and retention of profits abroad.
Ostensibly, the service contract system had certain advantages over the
concession regime. It has been opined, though, that, in the Philippines, our
concept of a service contract, at least in the petroleum industry, was basically
a concession regime with a production-sharing element.
On January 17, 1973, then President Ferdinand E. Marcos proclaimed the

ratification of a new Constitution. xxx
While Section 9 of the same Article [Art. XIV] maintained the Filipino-only
policy in the enjoyment of natural resources, it also allowed Filipinos, upon
authority of the Batasang Pambansa, to enter into service contracts with any
person or entity for the exploration or utilization of natural resources.
Sec. 9. The disposition, exploration, development, exploitation, or utilization

of any of the natural resources of the Philippines shall be limited to citizens,
or to corporations or associations at least sixty per centum of which is owned
by such citizens. The Batasang Pambansa, in the national interest, may allow
such citizens, corporations or associations to enter into service contracts for
financial, technical, management, or other forms of assistance with any
person or entity for the exploration, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial, technical,
management, or other forms of assistance are hereby recognized as such.
The concept of service contracts, according to one delegate, was borrowed

from the methods followed by India, Pakistan and especially Indonesia in the
exploration of petroleum and mineral oils. The provision allowing such
contracts, according to another, was intended to "enhance the proper
development of our natural resources since Filipino citizens lack the needed
capital and technical know-how which are essential in the proper exploration,
development and exploitation of the natural resources of the country."
The original idea was to authorize the government, not private entities, to
enter into service contracts with foreign entities. As finally approved,
however, a citizen or private entity could be allowed by the National
Assembly to enter into such service contract. The prior approval of the
National Assembly was deemed sufficient to protect the national interest.
Notably, none of the laws allowing service contracts were passed by the
Batasang Pambansa. Indeed, all of them were enacted by presidential
decree.
xxx
Thus, virtually the entire range of the country's natural resources –from
petroleum and minerals to geothermal energy, from public lands and forest
resources to fishery products – was well covered by apparent legal authority
to engage in the direct participation or involvement of foreign persons or
corporations (otherwise disqualified) in the exploration and utilization of
natural resources through service contracts.
xxx
212
After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins
of power under a revolutionary government. On March 25, 1986, President
Aquino issued Proclamation No. 3, promulgating the Provisional Constitution,
more popularly referred to as the Freedom Constitution. By authority of the
same Proclamation, the President created a Constitutional Commission
(CONCOM) to draft a new constitution, which took effect on the date of its
ratification on February 2, 1987.
The 1987 Constitution retained the Regalian doctrine. The first sentence of
Section 2, Article XII states: "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."
Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the
second sentence of the same provision, prohibits the alienation of natural
resources, except agricultural lands.
The third sentence of the same paragraph is new: "The exploration,

development and utilization of natural resources shall be under the full control
and supervision of the State." The constitutional policy of the State's "full
control and supervision" over natural resources proceeds from the concept of
jura regalia, as well as the recognition of the importance of the country's
natural resources, not only for national economic development, but also for its
security and national defense. Under this provision, the State assumes "a
more dynamic role" in the exploration, development and utilization of natural
resources.
Conspicuously absent in Section 2 is the provision in the 1935 and 1973

Constitutions authorizing the State to grant licenses, concessions, or leases
for the exploration, exploitation, development, or utilization of natural
resources. By such omission, the utilization of inalienable lands of public
domain through "license, concession or lease" is no longer allowed under the
1987 Constitution.
Having omitted the provision on the concession system, Section 2 proceeded

to introduce "unfamiliar language":
The State may directly undertake such activities or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens.
Consonant with the State's "full supervision and control" over natural
resources, Section 2 offers the State two "options." One, the State may
directly undertake these activities itself; or two, it may enter into co-
production, joint venture, or production-sharing agreements with Filipino
citizens, or entities at least 60% of whose capital is owned by such citizens.
A third option is found in the third paragraph of the same section:
The Congress may, by law, allow small-scale utilization of natural resources

by Filipino citizens, as well as cooperative fish farming, with priority to
213
subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.
While the second and third options are limited only to Filipino citizens or, in
the case of the former, to corporations or associations at least 60% of the
capital of which is owned by Filipinos, a fourth allows the participation of
foreign-owned corporations. The fourth and fifth paragraphs of Section 2
provide:
The President may enter into agreements with foreign-owned corporations

involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
Although Section 2 sanctions the participation of foreign-owned corporations

in the exploration, development, and utilization of natural resources, it
imposes certain limitations or conditions to agreements with such
corporations.
First, the parties to FTAAs. Only the President, in behalf of the State, may
enter into these agreements, and only with corporations. By contrast, under
the 1973 Constitution, a Filipino citizen, corporation or association may enter
into a service contract with a "foreign person or entity."
Second, the size of the activities: only large-scale exploration, development,

and utilization is allowed. The term "large-scale usually refers to very capital-
intensive activities."
Third, the natural resources subject of the activities is restricted to minerals,

petroleum and other mineral oils, the intent being to limit service contracts to
those areas where Filipino capital may not be sufficient.
Fourth, consistency with the provisions of statute. The agreements must be in

accordance with the terms and conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering into such

agreements. The agreements must be based on real contributions to
economic growth and general welfare of the country.
Sixth, the agreements must contain rudimentary stipulations for the promotion
of the development and use of local scientific and technical resources.
Seventh, the notification requirement. The President shall notify Congress of

every financial or technical assistance agreement entered into within thirty
days from its execution.
Finally, the scope of the agreements. While the 1973 Constitution referred to
214
"service contracts for financial, technical, management, or other forms of

assistance" the 1987 Constitution provides for "agreements. . . involving
either financial or technical assistance." It bears noting that the phrases
"service contracts" and "management or other forms of assistance" in the
earlier constitution have been omitted.
By virtue of her legislative powers under the Provisional Constitution,

President Aquino, on July 10, 1987, signed into law E.O. No. 211 prescribing
the interim procedures in the processing and approval of applications for the
exploration, development and utilization of minerals. The omission in the
1987 Constitution of the term "service contracts" notwithstanding, the said
E.O. still referred to them in Section 2 thereof:
Sec. 2. Applications for the exploration, development and utilization of

mineral resources, including renewal applications and applications for
approval of operating agreements and mining service contracts, shall be
accepted and processed and may be approved x x x. [Emphasis supplied.]
The same law provided in its Section 3 that the "processing, evaluation and
approval of all mining applications . . . operating agreements and service
contracts . . . shall be governed by Presidential Decree No. 463, as amended,
other existing mining laws, and their implementing rules and regulations. . . ."
As earlier stated, on the 25th also of July 1987, the President issued E.O. No.
279 by authority of which the subject WMCP FTAA was executed on March
30, 1995.
On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section
15 thereof declares that the Act "shall govern the exploration, development,
utilization, and processing of all mineral resources." Such declaration
notwithstanding, R.A. No. 7942 does not actually cover all the modes through
which the State may undertake the exploration, development, and utilization
of natural resources.
The State, being the owner of the natural resources, is accorded the primary
power and responsibility in the exploration, development and utilization
thereof. As such, it may undertake these activities through four modes:
The State may directly undertake such activities.
(2) The State may enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of natural resources by

Filipino citizens.
(4) For the large-scale exploration, development and utilization of minerals,

petroleum and other mineral oils, the President may enter into agreements
with foreign-owned corporations involving technical or financial assistance.
Except to charge the Mines and Geosciences Bureau of the DENR with
performing researches and surveys, and a passing mention of government-
215
owned or controlled corporations, R.A. No. 7942 does not specify how the
State should go about the first mode. The third mode, on the other hand, is
governed by Republic Act No. 7076 (the People's Small-Scale Mining Act of
1991) and other pertinent laws. R.A. No. 7942 primarily concerns itself with
the second and fourth modes.
Mineral production sharing, co-production and joint venture agreements are

collectively classified by R.A. No. 7942 as "mineral agreements." The
Government participates the least in a mineral production sharing agreement
(MPSA). In an MPSA, the Government grants the contractor the exclusive
right to conduct mining operations within a contract area and shares in the
gross output. The MPSA contractor provides the financing, technology,
management and personnel necessary for the agreement's implementation.
The total government share in an MPSA is the excise tax on mineral products
under Republic Act No. 7729, amending Section 151(a) of the National
Internal Revenue Code, as amended.
In a co-production agreement (CA), the Government provides inputs to the

mining operations other than the mineral resource, while in a joint venture
agreement (JVA), where the Government enjoys the greatest participation,
the Government and the JVA contractor organize a company with both
parties having equity shares. Aside from earnings in equity, the Government
in a JVA is also entitled to a share in the gross output. The Government may
enter into a CA or JVA with one or more contractors. The Government's
share in a CA or JVA is set out in Section 81 of the law:
The share of the Government in co-production and joint venture agreements

shall be negotiated by the Government and the contractor taking into
consideration the: (a) capital investment of the project, (b) the risks involved,
(c) contribution of the project to the economy, and (d) other factors that will
provide for a fair and equitable sharing between the Government and the
contractor. The Government shall also be entitled to compensations for its
other contributions which shall be agreed upon by the parties, and shall
consist, among other things, the contractor's income tax, excise tax, special
allowance, withholding tax due from the contractor's foreign stockholders
arising from dividend or interest payments to the said foreign stockholders, in
case of a foreign national and all such other taxes, duties and fees as
provided for under existing laws.
All mineral agreements grant the respective contractors the exclusive right to
conduct mining operations and to extract all mineral resources found in the
contract area. A "qualified person" may enter into any of the mineral
agreements with the Government. A "qualified person" is any citizen of the
Philippines with capacity to contract, or a corporation, partnership,
association, or cooperative organized or authorized for the purpose of
engaging in mining, with technical and financial capability to undertake
mineral resources development and duly registered in accordance with law at
least sixty per centum (60%) of the capital of which is owned by citizens of
the Philippines x x x.
The fourth mode involves "financial or technical assistance agreements." An

FTAA is defined as "a contract involving financial or technical assistance for
large-scale exploration, development, and utilization of natural resources."
Any qualified person with technical and financial capability to undertake large-
216
scale exploration, development, and utilization of natural resources in the

Philippines may enter into such agreement directly with the Government
through the DENR. For the purpose of granting an FTAA, a legally organized
foreign-owned corporation (any corporation, partnership, association, or
cooperative duly registered in accordance with law in which less than 50% of
the capital is owned by Filipino citizens) is deemed a "qualified person."
Other than the difference in contractors' qualifications, the principal distinction

between mineral agreements and FTAAs is the maximum contract area to
which a qualified person may hold or be granted. "Large-scale" under R.A.
No. 7942 is determined by the size of the contract area, as opposed to the
amount invested (US $50,000,000.00), which was the standard under E.O.
279.
Like a CA or a JVA, an FTAA is subject to negotiation. The Government's

contributions, in the form of taxes, in an FTAA is identical to its contributions
in the two mineral agreements, save that in an FTAA:
The collection of Government share in financial or technical assistance

agreement shall commence after the financial or technical assistance
agreement contractor has fully recovered its pre-operating expenses,
exploration, and development expenditures, inclusive.
THE CONSTITUTIONALITY OF THE WMCP FTAA
Petitioners submit that, in accordance with the text of Section 2, Article XII of
the Constitution, FTAAs should be limited to "technical or financial
assistance" only. They observe, however, that, contrary to the language of
the Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned
mining corporation, to extend more than mere financial or technical
assistance to the State, for it permits WMCP to manage and operate every
aspect of the mining activity.
Petitioners' submission is well-taken. It is a cardinal rule in the interpretation

of constitutions that the instrument must be so construed as to give effect to
the intention of the people who adopted it. This intention is to be sought in the
constitution itself, and the apparent meaning of the words is to be taken as
expressing it, except in cases where that assumption would lead to absurdity,
ambiguity, or contradiction. What the Constitution says according to the text
of the provision, therefore, compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people
mean what they say. Accordingly, following the literal text of the Constitution,
assistance accorded by foreign-owned corporations in the large-scale
exploration, development, and utilization of petroleum, minerals and mineral
oils should be limited to "technical" or "financial" assistance only.
WMCP nevertheless submits that the word "technical" in the fourth paragraph
of Section 2 of E.O. No. 279 encompasses a "broad number of possible
services," perhaps, "scientific and/or technological in basis." It thus posits that
it may also well include "the area of management or operations . . . so long
as such assistance requires specialized knowledge or skills, and are related
to the exploration, development and utilization of mineral resources."
217
This Court is not persuaded. As priorly pointed out, the phrase "management
or other forms of assistance" in the 1973 Constitution was deleted in the 1987
Constitution, which allows only "technical or financial assistance." Casus
omisus pro omisso habendus est. A person, object or thing omitted from an
enumeration must be held to have been omitted intentionally. As will be
shown later, the management or operation of mining activities by foreign
contractors, which is the primary feature of service contracts, was precisely
the evil that the drafters of the 1987 Constitution sought to eradicate.
Respondents insist that "agreements involving technical or financial

assistance" is just another term for service contracts. They contend that the
proceedings of the CONCOM indicate "that although the terminology 'service
contract' was avoided [by the Constitution], the concept it represented was
not." They add that "[t]he concept is embodied in the phrase 'agreements
involving financial or technical assistance.'" xxx
This Court is likewise not persuaded.
As earlier noted, the phrase "service contracts" has been deleted in the 1987
Constitution's Article on National Economy and Patrimony. If the CONCOM
intended to retain the concept of service contracts under the 1973
Constitution, it could have simply adopted the old terminology ("service
contracts") instead of employing new and unfamiliar terms ("agreements . . .
involving either technical or financial assistance"). Such a difference between
the language of a provision in a revised constitution and that of a similar
provision in the preceding constitution is viewed as indicative of a difference
in purpose. If, as respondents suggest, the concept of "technical or financial
assistance" agreements is identical to that of "service contracts," the
CONCOM would not have bothered to fit the same dog with a new collar. To
uphold respondents' theory would reduce the first to a mere euphemism for
the second and render the change in phraseology meaningless.
An examination of the reason behind the change confirms that technical or

financial assistance agreements are not synonymous to service contracts.
[T]he Court in construing a Constitution should bear in mind the object sought
to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in light of the
history of the times, and the condition and circumstances under which the
Constitution was framed. The object is to ascertain the reason which induced
the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and calculated to effect that
purpose.
xxx
WMCP cites Opinion No. 75, s. 1987, and Opinion No. 175, s. 1990 of the
Secretary of Justice, expressing the view that a financial or technical
assistance agreement "is no different in concept" from the service contract
allowed under the 1973 Constitution. This Court is not, however, bound by
this interpretation. When an administrative or executive agency renders an
opinion or issues a statement of policy, it merely interprets a pre-existing law;
218
and the administrative interpretation of the law is at best advisory, for it is the
courts that finally determine what the law means.
In any case, the constitutional provision allowing the President to enter into
FTAAs with foreign-owned corporations is an exception to the rule that
participation in the nation's natural resources is reserved exclusively to
Filipinos. Accordingly, such provision must be construed strictly against their
enjoyment by non-Filipinos. As Commissioner Villegas emphasized, the
provision is "very restrictive." Commissioner Nolledo also remarked that
"entering into service contracts is an exception to the rule on protection of
natural resources for the interest of the nation and, therefore, being an
exception, it should be subject, whenever possible, to stringent rules."
Indeed, exceptions should be strictly but reasonably construed; they extend
only so far as their language fairly warrants and all doubts should be resolved
in favor of the general provision rather than the exception.
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is
invalid insofar as said Act authorizes service contracts. Although the statute
employs the phrase "financial and technical agreements" in accordance with
the 1987 Constitution, it actually treats these agreements as service contracts
that grant beneficial ownership to foreign contractors contrary to the
fundamental law.
Section 33, which is found under Chapter VI (Financial or Technical

Assistance Agreement) of R.A. No. 7942 states:
SEC. 33. Eligibility.—Any qualified person with technical and financial

capability to undertake large-scale exploration, development, and utilization
of mineral resources in the Philippines may enter into a financial or technical
assistance agreement directly with the Government through the Department.
"Exploration," as defined by R.A. No. 7942, means the searching or

prospecting for mineral resources by geological, geochemical or geophysical
surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling
or any other means for the purpose of determining the existence, extent,
quantity and quality thereof and the feasibility of mining them for profit.
A legally organized foreign-owned corporation may be granted an exploration

permit, which vests it with the right to conduct exploration for all minerals in
specified areas, i.e., to enter, occupy and explore the same. Eventually, the
foreign-owned corporation, as such permittee, may apply for a financial and
technical assistance agreement.
"Development" is the work undertaken to explore and prepare an ore body or

a mineral deposit for mining, including the construction of necessary
infrastructure and related facilities.
"Utilization" "means the extraction or disposition of minerals." A stipulation

that the proponent shall dispose of the minerals and byproducts produced at
the highest price and more advantageous terms and conditions as provided
for under the implementing rules and regulations is required to be
incorporated in every FTAA.
219
A foreign-owned/-controlled corporation may likewise be granted a mineral

processing permit. "Mineral processing" is the milling, beneficiation or
upgrading of ores or minerals and rocks or by similar means to convert the
same into marketable products.
An FTAA contractor makes a warranty that the mining operations shall be

conducted in accordance with the provisions of R.A. No. 7942 and its
implementing rules and for work programs and minimum expenditures and
commitments. And it obliges itself to furnish the Government records of
geologic, accounting, and other relevant data for its mining operation.
"Mining operation," as the law defines it, means mining activities involving
exploration, feasibility, development, utilization, and processing.
The underlying assumption in all these provisions is that the foreign

contractor manages the mineral resources, just like the foreign contractor in a
service contract.
Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the
same auxiliary mining rights that it grants contractors in mineral agreements
(MPSA, CA and JV). Parenthetically, Sections 72 to 75 use the term
"contractor," without distinguishing between FTAA and mineral agreement
contractors. And so does "holders of mining rights" in Section 76. A foreign
contractor may even convert its FTAA into a mineral agreement if the
economic viability of the contract area is found to be inadequate to justify
large-scale mining operations, provided that it reduces its equity in the
corporation, partnership, association or cooperative to forty percent (40%).
Finally, under the Act, an FTAA contractor warrants that it "has or has access
to all the financing, managerial, and technical expertise. . . ." This suggests
that an FTAA contractor is bound to provide some management assistance –
a form of assistance that has been eliminated and, therefore, proscribed by
the present Charter.
By allowing foreign contractors to manage or operate all the aspects of the

mining operation, the above-cited provisions of R.A. No. 7942 have in effect
conveyed beneficial ownership over the nation's mineral resources to these
contractors, leaving the State with nothing but bare title thereto.
Moreover, the same provisions, whether by design or inadvertence, permit a

circumvention of the constitutionally ordained 60%-40% capitalization
requirement for corporations or associations engaged in the exploitation,
development and utilization of Philippine natural resources.
In sum, the Court finds the following provisions of R.A. No. 7942 to be
violative of Section 2, Article XII of the Constitution:
(1) The proviso in Section 3 (aq), which defines "qualified person," to

wit:
Provided, That a legally organized foreign-owned corporation shall be

deemed a qualified person for purposes of granting an exploration
220
permit, financial or technical assistance agreement or mineral

processing permit.
(2) Section 23, which specifies the rights and obligations of an

exploration permittee, insofar as said section applies to a financial or
technical assistance agreement,
(3) Section 33, which prescribes the eligibility of a contractor in a

financial or technical assistance agreement;
(4) Section 35, which enumerates the terms and conditions for every
financial or technical assistance agreement;
(5) Section 39, which allows the contractor in a financial and technical
assistance agreement to convert the same into a mineral production-
sharing agreement;
(6) Section 56, which authorizes the issuance of a mineral processing

permit to a contractor in a financial and technical assistance
agreement;
The following provisions of the same Act are likewise void as they are
dependent on the foregoing provisions and cannot stand on their own:
(1) Section 3 (g), which defines the term "contractor," insofar as it

applies to a financial or technical assistance agreement.
Section 34, which prescribes the maximum contract area in a

financial or technical assistance agreements;
Section 36, which allows negotiations for financial or technical

assistance agreements;
Section 37, which prescribes the procedure for filing and evaluation
of financial or technical assistance agreement proposals;
Section 38, which limits the term of financial or technical assistance

agreements;
Section 40, which allows the assignment or transfer of financial or

technical assistance agreements;
Section 41, which allows the withdrawal of the contractor in an FTAA;
The second and third paragraphs of Section 81, which provide for the
Government's share in a financial and technical assistance agreement; and
Section 90, which provides for incentives to contractors in FTAAs insofar as it

applies to said contractors;
When the parts of the statute are so mutually dependent and connected as
221
conditions, considerations, inducements, or compensations for each other, as

to warrant a belief that the legislature intended them as a whole, and that if all
could not be carried into effect, the legislature would not pass the residue
independently, then, if some parts are unconstitutional, all the provisions
which are thus dependent, conditional, or connected, must fall with them.
There can be little doubt that the WMCP FTAA itself is a service contract.
Section 1.3 of the WMCP FTAA grants WMCP "the exclusive right to explore,
exploit, utilise[,] process and dispose of all Minerals products and by-products
thereof that may be produced from the Contract Area." The FTAA also
imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples from the Contract area for
the purpose of conducting tests and studies in respect thereof;
(c) to determine the mining and treatment processes to be utilised during the
Development/Operating Period and the project facilities to be constructed
during the Development and Construction Period;
(d) have the right of possession of the Contract Area, with full right of ingress
and egress and the right to occupy the same, subject to the provisions of
Presidential Decree No. 512 (if applicable) and not be prevented from entry
into private ands by surface owners and/or occupants thereof when
prospecting, exploring and exploiting for minerals therein;
xxx
(f) to construct roadways, mining, drainage, power generation and

transmission facilities and all other types of works on the Contract Area;
(g) to erect, install or place any type of improvements, supplies, machinery

and other equipment relating to the Mining Operations and to use, sell or
otherwise dispose of, modify, remove or diminish any and all parts thereof;
(h) enjoy, subject to pertinent laws, rules and regulations and the rights of
third Parties, easement rights and the use of timber, sand, clay, stone, water
and other natural resources in the Contract Area without cost for the
purposes of the Mining Operations;
xxx
(i) have the right to mortgage, charge or encumber all or part of its interest
and obligations under this Agreement, the plant, equipment and infrastructure
and the Minerals produced from the Mining Operations;
x x x.
All materials, equipment, plant and other installations erected or placed on

the Contract Area remain the property of WMCP, which has the right to deal
with and remove such items within twelve months from the termination of the
FTAA.
222
Pursuant to Section 1.2 of the FTAA, WMCP shall provide "[all] financing,
technology, management and personnel necessary for the Mining
Operations." The mining company binds itself to "perform all Mining
Operations . . . providing all necessary services, technology and financing in
connection therewith," and to "furnish all materials, labour, equipment and
other installations that may be required for carrying on all Mining Operations."
WMCP may make expansions, improvements and replacements of the
mining facilities and may add such new facilities as it considers necessary for
the mining operations.
These contractual stipulations, taken together, grant WMCP beneficial

ownership over natural resources that properly belong to the State and are
intended for the benefit of its citizens. These stipulations are abhorrent to the
1987 Constitution. They are precisely the vices that the fundamental law
seeks to avoid, the evils that it aims to suppress. Consequently, the contract
from which they spring must be struck down.
In arguing against the annulment of the FTAA, WMCP invokes the

Agreement on the Promotion and Protection of Investments between the
Philippine and Australian Governments, which was signed in Manila on
January 25, 1995 and which entered into force on December 8, 1995.
x x x. Article 2 (1) of said treaty states that it applies to investments whenever

made and thus the fact that [WMCP's] FTAA was entered into prior to the
entry into force of the treaty does not preclude the Philippine Government
from protecting [WMCP's] investment in [that] FTAA. Likewise, Article 3 (1) of
the treaty provides that "Each Party shall encourage and promote
investments in its area by investors of the other Party and shall [admit] such
investments in accordance with its Constitution, Laws, regulations and
investment policies" and in Article 3 (2), it states that "Each Party shall ensure
that investments are accorded fair and equitable treatment." The latter
stipulation indicates that it was intended to impose an obligation upon a Party
to afford fair and equitable treatment to the investments of the other Party
and that a failure to provide such treatment by or under the laws of the Party
may constitute a breach of the treaty. Simply stated, the Philippines could
not, under said treaty, rely upon the inadequacies of its own laws to deprive
an Australian investor (like [WMCP]) of fair and equitable treatment by
invalidating [WMCP's] FTAA without likewise nullifying the service contracts
entered into before the enactment of RA 7942 such as those mentioned in
PD 87 or EO 279.
This becomes more significant in the light of the fact that [WMCP's] FTAA
was executed not by a mere Filipino citizen, but by the Philippine
Government itself, through its President no less, which, in entering into said
treaty is assumed to be aware of the existing Philippine laws on service
contracts over the exploration, development and utilization of natural
resources. The execution of the FTAA by the Philippine Government assures
the Australian Government that the FTAA is in accordance with existing
Philippine laws.
The invalidation of the subject FTAA, it is argued, would constitute a breach

of said treaty which, in turn, would amount to a violation of Section 3, Article II
of the Constitution adopting the generally accepted principles of international
law as part of the law of the land. One of these generally accepted principles
223
is pacta sunt servanda, which requires the performance in good faith of treaty
obligations.
Even assuming arguendo that WMCP is correct in its interpretation of the

treaty and its assertion that "the Philippines could not . . . deprive an
Australian investor (like [WMCP]) of fair and equitable treatment by
invalidating [WMCP's] FTAA without likewise nullifying the service contracts
entered into before the enactment of RA 7942 . . .," the annulment of the
FTAA would not constitute a breach of the treaty invoked. For this decision
herein invalidating the subject FTAA forms part of the legal system of the
Philippines. The equal protection clause guarantees that such decision shall
apply to all contracts belonging to the same class, hence, upholding rather
than violating, the "fair and equitable treatment" stipulation in said treaty.
One other matter requires clarification. Petitioners contend that, consistent

with the provisions of Section 2, Article XII of the Constitution, the President
may enter into agreements involving "either technical or financial assistance"
only. The agreement in question, however, is a technical and financial
assistance agreement.
Petitioners' contention does not lie. To adhere to the literal language of the
Constitution would lead to absurd consequences. As WMCP correctly put it:
x x x such a theory of petitioners would compel the government (through the

President) to enter into contract with two (2) foreign-owned corporations, one
for financial assistance agreement and with the other, for technical assistance
over one and the same mining area or land; or to execute two (2) contracts
with only one foreign-owned corporation which has the capability to provide
both financial and technical assistance, one for financial assistance and
another for technical assistance, over the same mining area. Such an absurd
result is definitely not sanctioned under the canons of constitutional
construction.
Surely, the framers of the 1987 Charter did not contemplate such an absurd
result from their use of "either/or." A constitution is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided. Courts are not to give words a
meaning that would lead to absurd or unreasonable consequences and a
literal interpretation is to be rejected if it would be unjust or lead to absurd
results. That is a strong argument against its adoption. Accordingly,
petitioners' interpretation must be rejected.
The foregoing discussion has rendered unnecessary the resolution of the

other issues raised by the petition.
WHEREFORE, the petition is GRANTED. The Court hereby declares

unconstitutional and void:
(1) The following provisions of Republic Act No. 7942:
(a) The proviso in Section 3 (aq),
224
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment and Natural Resources

Administrative Order 96-40, s. 1996 which are not in conformity with this
Decision, and
(3) The Financial and Technical Assistance Agreement between the

Government of the Republic of the Philippines and WMC Philippines, Inc.
SO ORDERED.
EN BANC
[G.R. No. 127882. December 1, 2004]
RESOLUTION
Panganiban, J.:
All mineral resources are owned by the State. Their exploration,

development and utilization (EDU) must always be subject to the full control
and supervision of the State. More specifically, given the inadequacy of
Filipino capital and technology in large-scale EDU activities, the State may
secure the help of foreign companies in all relevant matters -- especially
financial and technical assistance -- provided that, at all times, the State
maintains its right of full control. The foreign assistor or contractor assumes
all financial, technical and entrepreneurial risks in the EDU activities; hence, it
may be given reasonable management, operational, marketing, audit and
other prerogatives to protect its investments and to enable the business to
succeed.
Full control is not anathematic to day-to-day management by the contractor,

provided that the State retains the power to direct overall strategy; and to set
aside, reverse or modify plans and actions of the contractor. The idea of full
control is similar to that which is exercised by the board of directors of a
private corporation: the performance of managerial, operational, financial,
marketing and other functions may be delegated to subordinate officers or
given to contractual entities, but the board retains full residual control of the
business.
Who or what organ of government actually exercises this power of control on

behalf of the State? The Constitution is crystal clear: the President. Indeed,
the Chief Executive is the official constitutionally mandated to “enter into
agreements with foreign owned corporations.” On the other hand, Congress
225
may review the action of the President once it is notified of “every contract
entered into in accordance with this [constitutional] provision within thirty days
from its execution.” In contrast to this express mandate of the President and
Congress in the EDU of natural resources, Article XII of the Constitution is
silent on the role of the judiciary. However, should the President and/or
Congress gravely abuse their discretion in this regard, the courts may -- in a
proper case -- exercise their residual duty under Article VIII. Clearly then, the
judiciary should not inordinately interfere in the exercise of this presidential
power of control over the EDU of our natural resources.
The Constitution should be read in broad, life-giving strokes. It should not be

used to strangulate economic growth or to serve narrow, parochial interests.
Rather, it should be construed to grant the President and Congress sufficient
discretion and reasonable leeway to enable them to attract foreign
investments and expertise, as well as to secure for our people and our
posterity the blessings of prosperity and peace.
On the basis of this control standard, this Court upholds the constitutionality of
the Philippine Mining Law, its Implementing Rules and Regulations -- insofar as
they relate to financial and technical agreements -- as well as the subject
Financial and Technical Assistance Agreement (FTAA).
SUMMATION
To conclude, a summary of the key points discussed above is now in order.
The Meaning of “Agreements Involving
Either Technical or Financial Assistance”
Applying familiar principles of constitutional construction to the phrase

agreements involving either technical or financial assistance, the framers’
choice of words does not indicate the intent to exclude other modes of
assistance, but rather implies that there are other things being included or
possibly being made part of the agreement, apart from financial or technical
assistance. The drafters avoided the use of restrictive and stringent
phraseology; a verba legis scrutiny of Section 2 of Article XII of the
Constitution discloses not even a hint of a desire to prohibit foreign
involvement in the management or operation of mining activities, or to
eradicate service contracts. Such moves would necessarily imply an
underlying drastic shift in fundamental economic and developmental policies
of the State. That change requires a much more definite and irrefutable basis
than mere omission of the words “service contract” from the new Constitution.
Furthermore, a literal and restrictive interpretation of this paragraph leads to

logical inconsistencies. A constitutional provision specifically allowing
foreign-owned corporations to render financial or technical assistance in
respect of mining or any other commercial activity was clearly unnecessary;
the provision was meant to refer to more than mere financial or technical
assistance.
Also, if paragraph 4 permits only agreements for financial or technical

assistance, there would be no point in requiring that they be “based on real
contributions to the economic growth and general welfare of the country.”
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And considering that there were various long-term service contracts still in
force and effect at the time the new Charter was being drafted, the absence
of any transitory provisions to govern the termination and closing-out of the
then existing service contracts strongly militates against the theory that the
mere omission of “service contracts” signaled their prohibition by the new
Constitution.
Resort to the deliberations of the Constitutional Commission is therefore

unavoidable, and a careful scrutiny thereof conclusively shows that the
ConCom members discussed agreements involving either technical or
financial assistance in the same sense as service contracts and used the
terms interchangeably. The drafters in fact knew that the agreements with
foreign corporations were going to entail not mere technical or financial
assistance but, rather, foreign investment in and management of an
enterprise for large-scale exploration, development and utilization of minerals.
The framers spoke about service contracts as the concept was understood in the
1973 Constitution. It is obvious from their discussions that they did not intend to
ban or eradicate service contracts. Instead, they were intent on crafting provisions
to put in place safeguards that would eliminate or minimize the abuses prevalent
during the martial law regime. In brief, they were going to permit service
contracts with foreign corporations as contractors, but with safety measures
to prevent abuses, as an exception to the general norm established in the
first paragraph of Section 2 of Article XII, which reserves or limits to Filipino
citizens and corporations at least 60 percent owned by such citizens the
exploration, development and utilization of mineral or petroleum resources.
This was prompted by the perceived insufficiency of Filipino capital and the felt
need for foreign expertise in the EDU of mineral resources.
Despite strong opposition from some ConCom members during the final
voting, the Article on the National Economy and Patrimony -- including
paragraph 4 allowing service contracts with foreign corporations as an
exception to the general norm in paragraph 1 of Section 2 of the same Article
-- was resoundingly and overwhelmingly approved.
The drafters, many of whom were economists, academicians, lawyers,

businesspersons and politicians knew that foreign entities will not enter into
agreements involving assistance without requiring measures of protection to
ensure the success of the venture and repayment of their investments, loans
and other financial assistance, and ultimately to protect the business
reputation of the foreign corporations. The drafters, by specifying such
agreements involving assistance, necessarily gave implied assent to
everything that these agreements entailed or that could reasonably be
deemed necessary to make them tenable and effective -- including
management authority with respect to the day-to-day operations of the
enterprise, and measures for the protection of the interests of the foreign
corporation, at least to the extent that they are consistent with Philippine
sovereignty over natural resources, the constitutional requirement of State
control, and beneficial ownership of natural resources remaining vested in the
State.
From the foregoing, it is clear that agreements involving either technical or

financial assistance referred to in paragraph 4 are in fact service contracts,
but such new service contracts are between foreign corporations acting as
contractors on the one hand, and on the other hand government as principal
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or “owner” (of the works), whereby the foreign contractor provides the capital,
technology and technical know-how, and managerial expertise in the creation
and operation of the large-scale mining/extractive enterprise, and government
through its agencies (DENR, MGB) actively exercises full control and
supervision over the entire enterprise.
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant of such service contracts is
subject to several safeguards, among them: (1) that the service contract be
crafted in accordance with a general law setting standard or uniform terms,
conditions and requirements; (2) the President be the signatory for the
government; and (3) the President report the executed agreement to
Congress within thirty days.
Ultimate Test:
Full State Control
To repeat, the primacy of the principle of the State’s sovereign ownership of

all mineral resources, and its full control and supervision over all aspects of
exploration, development and utilization of natural resources must be upheld.
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. Also, government need not micro-manage mining
operations and day-to-day affairs of the enterprise in order to be considered
as exercising full control and supervision.
Control, as utilized in Section 2 of Article XII, must be taken to mean a degree

of control sufficient to enable the State to direct, restrain, regulate and govern
the affairs of the extractive enterprises. 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 government to
regulate the conduct of affairs in various enterprises, and restrain activities
deemed not desirable or beneficial, with the end in view of ensuring that
these enterprises contribute to the economic development and general
welfare of the country, conserve the environment, and uplift the well-being of
the local affected communities. Such a degree of control would be
compatible with permitting the foreign contractor sufficient and reasonable
management authority over the enterprise it has invested in, to ensure
efficient and profitable operation.
Government Granted Full Control

by RA 7942 and DAO 96-40
Baseless are petitioners’ sweeping claims that RA 7942 and its Implementing
Rules and Regulations make it possible for FTAA contracts to cede full
control and management of mining enterprises over to fully foreign owned
corporations. Equally wobbly is the assertion that the State is reduced to a
passive regulator dependent on submitted plans and reports, with weak
review and audit powers and little say in the decision-making of the
enterprise, for which reasons “beneficial ownership” of the mineral resources
is allegedly ceded to the foreign contractor.
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As discussed hereinabove, the State’s full control and supervision over

mining operations are ensured through the following provisions in RA 7942:
Sections 8, 9, 16, 19, 24, 35[(b), (e), (f), (g), (h), (k), (l), (m) and (o)], 40, 57,
66, 69, 70, and Chapters XI and XVII; as well as the following provisions of
DAO 96-40: Sections7[(d) and (f)], 35(a-2), 53[(a-4) and (d)], 54, 56[(g), (h),
(l), (m) and (n)], 56(2), 60, 66, 144, 168, 171 and 270, and also Chapters XV,
XVI and XXIV.
Through the foregoing provisions, the government agencies concerned are

empowered to approve or disapprove -- hence, in a position to influence,
direct, and change -- the various work programs and the corresponding
minimum expenditure commitments for each of the exploration, development
and utilization phases of the enterprise. Once they have been approved, the
contractor’s compliance with its commitments therein will be monitored.
Figures for mineral production and sales are regularly monitored and
subjected to government review, to ensure that the products and by-products
are disposed of at the best prices; copies of sales agreements have to be
submitted to and registered with MGB.
The contractor is mandated to open its books of accounts and records for
scrutiny, to enable the State to determine that the government share has
been fully paid. The State may likewise compel compliance by the contractor
with mandatory requirements on mine safety, health and environmental
protection, and the use of anti-pollution technology and facilities. The
contractor is also obligated to assist the development of the mining
community, and pay royalties to the indigenous peoples concerned. And
violation of any of the FTAA’s terms and conditions, and/or non-compliance
with statutes or regulations, may be penalized by cancellation of the FTAA.
Such sanction is significant to a contractor who may have yet to recover the
tens or hundreds of millions of dollars sunk into a mining project.
Overall, the State definitely has a pivotal say in the operation of the individual
enterprises, and can set directions and objectives, detect deviations and non-
compliances by the contractor, and enforce compliance and impose sanctions
should the occasion arise. Hence, RA 7942 and DAO 96-40 vest in
government more than a sufficient degree of control and supervision over the
conduct of mining operations.
Section 3(aq) of RA 7942 was objected to as being unconstitutional for

allowing a foreign contractor to apply for and hold an exploration permit.
During the exploration phase, the permit grantee (and prospective contractor)
is spending and investing heavily in exploration activities without yet being
able to extract minerals and generate revenues. The exploration permit
issued under Sections 3(aq), 20 and 23 of RA 7942, which allows exploration
but not extraction, serves to protect the interests and rights of the exploration
permit grantee (and would-be contractor), foreign or local. Otherwise, the
exploration works already conducted, and expenditures already made, may
end up only benefiting claim-jumpers. Thus, Section 3(aq) of RA 7942 is not
unconstitutional.
WMCP FTAA Likewise Gives the

State Full Control and Supervision
The WMCP FTAA obligates the contractor to account for the value of
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production and sale of minerals (Clause 1.4); requires that the contractor’s
work program, activities and budgets be approved by the State (Clause 2.1);
gives the DENR secretary power to extend the exploration period (Clause
3.2-a); requires approval by the State for incorporation of lands into the
contract area (Clause 4.3-c); requires Bureau of Forest Development
approval for inclusion of forest reserves as part of the FTAA contract area
(Clause 4.5); obligates the contractor to periodically relinquish parts of the
contract area not needed for exploration and development (Clause 4.6);
requires submission of a declaration of mining feasibility for approval by the
State (Clause 4.6-b); obligates the contractor to report to the State the results
of its exploration activities (Clause 4.9); requires the contractor to obtain
State approval for its work programs for the succeeding two year periods,
containing the proposed work activities and expenditures budget related to
exploration (Clause 5.1); requires the contractor to obtain State approval for
its proposed expenditures for exploration activities (Clause 5.2); requires the
contractor to submit an annual report on geological, geophysical,
geochemical and other information relating to its explorations within the FTAA
area (Clause 5.3-a); requires the contractor to submit within six months after
expiration of exploration period a final report on all its findings in the contract
area (Clause 5.3-b); requires the contractor after conducting feasibility
studies to submit a declaration of mining feasibility, along with a description of
the area to be developed and mined, a description of the proposed mining
operations and the technology to be employed, and the proposed work
program for the development phase, for approval by the DENR secretary
(Clause 5.4); obligates the contractor to complete the development of the
mine, including construction of the production facilities, within the period
stated in the approved work program (Clause 6.1); requires the contractor to
submit for approval a work program covering each period of three fiscal years
(Clause 6.2); requires the contractor to submit reports to the secretary on the
production, ore reserves, work accomplished and work in progress, profile of
its work force and management staff, and other technical information (Clause
6.3); subjects any expansions, modifications, improvements and
replacements of mining facilities to the approval of the secretary (Clause 6.4);
subjects to State control the amount of funds that the contractor may borrow
within the Philippines (Clause 7.2); subjects to State supervisory power any
technical, financial and marketing issues (Clause 10.1-a); obligates the
contractor to ensure 60 percent Filipino equity in the contractor within ten
years of recovering specified expenditures unless not so required by
subsequent legislation (Clause 10.1); gives the State the right to terminate
the FTAA for unremedied substantial breach thereof by the contractor (Clause
13.2); requires State approval for any assignment of the FTAA by the
contractor to an entity other than an affiliate (Clause 14.1).
In short, the aforementioned provisions of the WMCP FTAA, far from

constituting a surrender of control and a grant of beneficial ownership of
mineral resources to the contractor in question, vest the State with control
and supervision over practically all aspects of the operations of the FTAA
contractor, including the charging of pre-operating and operating expenses,
and the disposition of mineral products.
There is likewise no relinquishment of control on account of specific

provisions of the WMCP FTAA. Clause 8.2 provides a mechanism to prevent
the mining operations from grinding to a complete halt as a result of possible
delays of more than 60 days in the government’s processing and approval of
submitted work programs and budgets. Clause 8.3 seeks to provide a
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temporary, stop-gap solution in case a disagreement between the State and

the contractor (over the proposed work program or budget submitted by the
contractor) should result in a deadlock or impasse, to avoid unreasonably
long delays in the performance of the works.
The State, despite Clause 8.3, still has control over the contract area, and it
may, as sovereign authority, prohibit work thereon until the dispute is
resolved, or it may terminate the FTAA, citing substantial breach thereof.
Hence, the State clearly retains full and effective control.
Clause 8.5, which allows the contractor to make changes to approved work
programs and budgets without the prior approval of the DENR secretary,
subject to certain limitations with respect to the variance/s, merely provides
the contractor a certain amount of flexibility to meet unexpected situations,
while still guaranteeing that the approved work programs and budgets are not
abandoned altogether. And if the secretary disagrees with the actions taken
by the contractor in this instance, he may also resort to
cancellation/termination of the FTAA as the ultimate sanction.
Clause 4.6 of the WMCP FTAA gives the contractor discretion to select parts
of the contract area to be relinquished. The State is not in a position to
substitute its judgment for that of the contractor, who knows exactly which
portions of the contract area do not contain minerals in commercial quantities
and should be relinquished. Also, since the annual occupation fees paid to
government are based on the total hectarage of the contract area, net of the
areas relinquished, the contractor’s self-interest will assure proper and
efficient relinquishment.
Clause 10.2(e) of the WMCP FTAA does not mean that the contractor can
compel government to use its power of eminent domain. It contemplates a
situation in which the contractor is a foreign-owned corporation, hence, not
qualified to own land. The contractor identifies the surface areas needed for
it to construct the infrastructure for mining operations, and the State then
acquires the surface rights on behalf of the former. The provision does not
call for the exercise of the power of eminent domain (or determination of just
compensation); it seeks to avoid a violation of the anti-dummy law.
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. Banks lend also upon the security of encumbrances on goods
produced, which can be easily sold and converted into cash and applied to
the repayment of loans. Thus, Clause 10.2(l) is not something out of the
ordinary. Neither is it objectionable, because even though the contractor is
allowed to mortgage or encumber the mineral end-products themselves, the
contractor is not thereby relieved of its obligation to pay the government its
basic and additional shares in the net mining revenue. The contractor’s
ability to mortgage the minerals does not negate the State’s right to receive
its share of net mining revenues.
Clause 10.2(k) which gives the contractor authority “to change its equity
structure at any time,” means that WMCP, which was then 100 percent
foreign owned, could permit Filipino equity ownership. Moreover, what is
important is that the contractor, regardless of its ownership, is always in a
position to render the services required under the FTAA, under the direction
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and control of the government.
Clauses 10.4(e) and (i) bind government to allow amendments to the FTAA if
required by banks and other financial institutions as part of the conditions of
new lendings. There is nothing objectionable here, since Clause 10.4(e) also
provides that such financing arrangements should in no event reduce the
contractor’s obligations or the government’s rights under the FTAA. Clause
10.4(i) provides that government shall “favourably consider” any request for
amendments of this agreement necessary for the contractor to successfully
obtain financing. There is no renunciation of control, as the proviso does not
say that government shall automatically grant any such request. Also, it is up
to the contractor to prove the need for the requested changes. The
government always has the final say on whether to approve or disapprove
such requests.
In fine, the FTAA provisions do not reduce or abdicate State control.
No Surrender of
Financial Benefits
The second paragraph of Section 81 of RA 7942 has been denounced for

allegedly limiting the State’s share in FTAAs with foreign contractors to just
taxes, fees and duties, and depriving the State of a share in the after-tax
income of the enterprise. However, the inclusion of the phrase “among other
things” in the second paragraph of Section 81 clearly and unmistakably
reveals the legislative intent to have the State collect more than just the usual
taxes, duties and fees.
Thus, DAO 99-56, the “Guidelines Establishing the Fiscal Regime of

Financial or Technical Assistance Agreements,” spells out the financial
benefits government will receive from an FTAA, as consisting of not only a
basic government share, comprised of all direct taxes, fees and royalties,
as well as other payments made by the contractor during the term of the
FTAA, but also an additional government share, being a share in the
earnings or cash flows of the mining enterprise, so as to achieve a fifty-
fifty sharing of net benefits from mining between the government and the
contractor.
The additional government share is computed using one of three (3)

options or schemes detailed in DAO 99-56, viz., (1) the fifty-fifty sharing of
cumulative present value of cash flows; (2) the excess profit-related
additional government share; and (3) the additional sharing based on the
cumulative net mining revenue. Whichever option or computation is used,
the additional government share has nothing to do with taxes, duties, fees or
charges. The portion of revenues remaining after the deduction of the basic
and additional government shares is what goes to the contractor.
The basic government share and the additional government share do not yet
take into account the indirect taxes and other financial contributions of mining
projects, which are real and actual benefits enjoyed by the Filipino people; if
these are taken into account, total government share increases to 60 percent
or higher (as much as 77 percent, and 89 percent in one instance) of the net
present value of total benefits from the project.
The third or last paragraph of Section 81 of RA 7942 is slammed for deferring
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the payment of the government share in FTAAs until after the contractor shall
have recovered its pre-operating expenses, exploration and development
expenditures. Allegedly, the collection of the State’s share is rendered
uncertain, as there is no time limit in RA 7942 for this grace period or
recovery period. But although RA 7942 did not limit the grace period, the
concerned agencies (DENR and MGB) in formulating the 1995 and 1996
Implementing Rules and Regulations provided that the period of recovery,
reckoned from the date of commercial operation, shall be for a period not
exceeding five years, or until the date of actual recovery, whichever comes
earlier.
And since RA 7942 allegedly does not require government approval for the
pre-operating, exploration and development expenses of the foreign
contractors, it is feared that such expenses could be bloated to wipe out
mining revenues anticipated for 10 years, with the result that the State’s
share is zero for the first 10 years. However, the argument is based on
incorrect information.
Under Section 23 of RA 7942, the applicant for exploration permit is required

to submit a proposed work program for exploration, containing a yearly
budget of proposed expenditures, which the State passes upon and either
approves or rejects; if approved, the same will subsequently be recorded as
pre-operating expenses that the contractor will have to recoup over the grace
period.
Under Section 24, when an exploration permittee files with the MGB a
declaration of mining project feasibility, it must submit a work program for
development, with corresponding budget, for approval by the Bureau, before
government may grant an FTAA or MPSA or other mineral agreements;
again, government has the opportunity to approve or reject the proposed
work program and budgeted expenditures for development works, which will
become the pre-operating and development costs that will have to be
recovered. Government is able to know ahead of time the amounts of pre-
operating and other expenses to be recovered, and the approximate period of
time needed therefor. The aforecited provisions have counterparts in Section
35, which deals with the terms and conditions exclusively applicable to
FTAAs. In sum, the third or last paragraph of Section 81 of RA 7942 cannot
be deemed defective.
Section 80 of RA 7942 allegedly limits the State’s share in a mineral

production-sharing agreement (MPSA) to just the excise tax on the mineral
product, i.e., only 2 percent of market value of the minerals. The colatilla in
Section 84 reiterates the same limitation in Section 80. However, these two
provisions pertain only to MPSAs, and have no application to FTAAs.
These particular provisions do not come within the issues defined by
this Court. Hence, on due process grounds, no pronouncement can be
made in this case in respect of the constitutionality of Sections 80 and
84.
Section 112 is disparaged for reverting FTAAs and all mineral agreements to
the old “license, concession or lease” system, because it allegedly effectively
reduces the government share in FTAAs to just the 2 percent excise tax
which pursuant to Section 80 comprises the government share in MPSAs.
However, Section 112 likewise does not come within the issues delineated by
this Court, and was never touched upon by the parties in their pleadings.
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Moreover, Section 112 may not properly apply to FTAAs. The mining law
obviously meant to treat FTAAs as a breed apart from mineral agreements.
There is absolutely no basis to believe that the law intends to exact from
FTAA contractors merely the same government share (i.e., the 2 percent
excise tax) that it apparently demands from contractors under the three forms
of mineral agreements.
While there is ground to believe that Sections 80, 84 and 112 are indeed
unconstitutional, they cannot be ruled upon here. In any event, they are
separable; thus, a later finding of nullity will not affect the rest of RA 7942.
In fine, the challenged provisions of RA 7942 cannot be said to

surrender financial benefits from an FTAA to the foreign contractors.
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. 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. We are dealing with an
essentially different equation. Here we have the old apples and oranges
syndrome.
The Charter did not intend to fix an iron-clad rule of 60 percent share,
applicable to all situations, regardless of circumstances. There is no
indication of such an intention on the part of the framers. Moreover, the
terms and conditions of petroleum FTAAs cannot serve as standards for
mineral mining FTAAs, because the technical and operational
requirements, cost structures and investment needs of off-shore
petroleum exploration and drilling companies do not have the remotest
resemblance to those of on-shore mining companies.
To take the position that government’s share must be not less than 60
percent of after-tax income of FTAA contractors is nothing short of this Court
dictating upon the government. The State resultantly ends up losing control.
To avoid compromising the State’s full control and supervision over the
exploitation of mineral resources, there must be no attempt to impose a
“minimum 60 percent” rule. It is sufficient that the State has the power and
means, should it so decide, to get a 60 percent share (or greater); and it is
not necessary that the State does so in every case.
Invalid Provisions of
the WMCP FTAA
Section 7.9 of the WMCP FTAA clearly renders illusory the State’s 60 percent
share of WMCP’s revenues. Under Section 7.9, should WMCP’s foreign
stockholders (who originally owned 100 percent of the equity) sell 60 percent
or more of their equity to a Filipino citizen or corporation, the State loses its
right to receive its share in net mining revenues under Section 7.7, without
any offsetting compensation to the State. And what is given to the State in
Section 7.7 is by mere tolerance of WMCP’s foreign stockholders, who can at
any time cut off the government’s entire share by simply selling 60 percent of
WMCP’s equity to a Philippine citizen or corporation.
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In fact, the sale by WMCP’s foreign stockholder on January 23, 2001 of the
entire outstanding equity in WMCP to Sagittarius Mines, Inc., a domestic
corporation at least 60 percent Filipino owned, can be deemed to have
automatically triggered the operation of Section 7.9 and removed the State’s
right to receive its 60 percent share. Section 7.9 of the WMCP FTAA has
effectively given away the State’s share without anything in exchange.
Moreover, it constitutes unjust enrichment on the part of the local and foreign
stockholders in WMCP, because by the mere act of divestment, the local and
foreign stockholders get a windfall, as their share in the net mining revenues
of WMCP is automatically increased, without having to pay anything for it.
Being grossly disadvantageous to government and detrimental to the Filipino

people, as well as violative of public policy, Section 7.9 must therefore be
stricken off as invalid. The FTAA in question does not involve mere
contractual rights but, being impressed as it is with public interest, the
contractual provisions and stipulations must yield to the common good and
the national interest. Since the offending provision is very much separable
from the rest of the FTAA, the deletion of Section 7.9 can be done without
affecting or requiring the invalidation of the entire WMCP FTAA itself.
Section 7.8(e) of the WMCP FTAA likewise is invalid, since by allowing the
sums spent by government for the benefit of the contractor to be deductible
from the State’s share in net mining revenues, it results in benefiting the
contractor twice over. This constitutes unjust enrichment on the part of the
contractor, at the expense of government. For being grossly
disadvantageous and prejudicial to government and contrary to public policy,
Section 7.8(e) must also be declared without effect. It may likewise be
stricken off without affecting the rest of the FTAA.
EPILOGUE
AFTER ALL IS SAID AND DONE, it is clear that there is unanimous

agreement in the Court upon the key principle that the State must exercise
full control and supervision over the exploration, development and utilization
of mineral resources.
The crux of the controversy is the amount of discretion to be accorded the

Executive Department, particularly the President of the Republic, in respect
of negotiations over the terms of FTAAs, particularly when it comes to the
government share of financial benefits from FTAAs. The Court believes that it
is not unconstitutional to allow a wide degree of discretion to the Chief
Executive, given the nature and complexity of such agreements, the
humongous amounts of capital and financing required for large-scale mining
operations, the complicated technology needed, and the intricacies of
international trade, coupled with the State’s need to maintain flexibility in its
dealings, in order to preserve and enhance our country’s competitiveness in
world markets.
We are all, in one way or another, sorely affected by the recently reported
scandals involving corruption in high places, duplicity in the negotiation of
multi-billion peso government contracts, huge payoffs to government officials,
and other malfeasances; and perhaps, there is the desire to see some
measures put in place to prevent further abuse. However, dictating upon
the President what minimum share to get from an FTAA is not the
235
solution. It sets a bad precedent since such a move institutionalizes the very
reduction if not deprivation of the State’s control. The remedy may be worse
than the problem it was meant to address. In any event, provisions in such
future agreements which may be suspected to be grossly disadvantageous or
detrimental to government may be challenged in court, and the culprits haled
before the bar of justice.
Verily, under the doctrine of separation of powers and due respect for co-
equal and coordinate branches of government, this Court must restrain itself
from intruding into policy matters and must allow the President and Congress
maximum discretion in using the resources of our country and in securing the
assistance of foreign groups to eradicate the grinding poverty of our people
and answer their cry for viable employment opportunities in the country.
“The judiciary is loath to interfere with the due exercise by coequal branches of
government of their official functions.” As aptly spelled out seven decades ago
by Justice George Malcolm, “Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any other
department of government, so should it as strictly confine its own sphere of
influence to the powers expressly or by implication conferred on it by the
Organic Act.” Let the development of the mining industry be the responsibility
of the political branches of government. And let not this Court interfere
inordinately and unnecessarily.
The Constitution of the Philippines is the supreme law of the land. It is the
repository of all the aspirations and hopes of all the people. We fully
sympathize with the plight of Petitioner La Bugal B’laan and other tribal
groups, and commend their efforts to uplift their communities. However, we
cannot justify the invalidation of an otherwise constitutional statute along with
its implementing rules, or the nullification of an otherwise legal and binding
FTAA contract.
We must never forget that it is not only our less privileged brethren in tribal
and cultural communities who deserve the attention of this Court; rather, all
parties concerned -- including the State itself, the contractor (whether Filipino
or foreign), and the vast majority of our citizens -- equally deserve the
protection of the law and of this Court. To stress, the benefits to be derived
by the State from mining activities must ultimately serve the great majority of
our fellow citizens. They have as much right and interest in the proper and
well-ordered development and utilization of the country’s mineral resources
as the petitioners.
Whether we consider the near term or take the longer view, we cannot
overemphasize the need for an appropriate balancing of interests and
needs -- the need to develop our stagnating mining industry and extract what
NEDA Secretary Romulo Neri estimates is some US$840 billion (approx.
PhP47.04 trillion) worth of mineral wealth lying hidden in the ground, in order
to jumpstart our floundering economy on the one hand, and on the other, the
need to enhance our nationalistic aspirations, protect our indigenous
communities, and prevent irreversible ecological damage.
This Court cannot but be mindful that any decision rendered in this case will
ultimately impact not only the cultural communities which lodged the instant
Petition, and not only the larger community of the Filipino people now
struggling to survive amidst a fiscal/budgetary deficit, ever increasing prices
236
of fuel, food, and essential commodities and services, the shrinking value of
the local currency, and a government hamstrung in its delivery of basic
services by a severe lack of resources, but also countless future generations
of Filipinos.
For this latter group of Filipinos yet to be born, their eventual access to
education, health care and basic services, their overall level of well-being, the
very shape of their lives are even now being determined and affected partly
by the policies and directions being adopted and implemented by government
today. And in part by the this Resolution rendered by this Court today.
Verily, the mineral wealth and natural resources of this country are meant to
benefit not merely a select group of people living in the areas locally affected
by mining activities, but the entire Filipino nation, present and future, to whom
the mineral wealth really belong. This Court has therefore weighed carefully
the rights and interests of all concerned, and decided for the greater good of
the greatest number. JUSTICE FOR ALL, not just for some; JUSTICE FOR
THE PRESENT AND THE FUTURE, not just for the here and now.
WHEREFORE, the Court RESOLVES to GRANT the respondents’ and the

intervenors’ Motions for Reconsideration; to REVERSE and SET ASIDE this
Court’s January 27, 2004 Decision; to DISMISS the Petition; and to issue this
new judgment declaring CONSTITUTIONAL (1) Republic Act No. 7942 (the
Philippine Mining Law), (2) its Implementing Rules and Regulations contained
in DENR Administrative Order (DAO) No. 9640 -- insofar as they relate to
financial and technical assistance agreements referred to in paragraph 4 of
Section 2 of Article XII of the Constitution; and (3) the Financial and Technical
Assistance Agreement (FTAA) dated March 30, 1995 executed by the
government and Western Mining Corporation Philippines Inc. (WMCP),
except Sections 7.8 and 7.9 of the subject FTAA which are hereby
INVALIDATED for being contrary to public policy and for being grossly
disadvantageous to the government. SO ORDERED.
8.3.1 Contribution of the mining industry to the economy
Mining operations bring jobs and infuse money into the local economy, and the mining sector
contributes to economic growth in general. Even so, is any positive number in terms of job
generation and economic growth always a good thing? How much incentive does the
government give to the mining sector, which should be deducted from the net benefits to the
country and local people? How much more (or less) can the government get if it considers
alternative uses of the land? In other words, are Filipinos (as a people) really better off with
mining, and is the government getting the best deal for its people? These are tough
questions to answer because the researchers do not have the complete picture, due to the
lack of data and a framework to analyze benefits as a whole. But there are known facts that
can help in this analysis:
a. Contribution of mining sector to employment generation – According to the Mines

and Geosciences Bureau (MGB), the mining (and quarrying) sector’s contribution to
national total employment has always been below 1 percent (1%). Recent data has
shown that it has been 0.5% since 2008 until 2010. So far, for the first half of 2011,
contribution has been reported as 0.6% (in contrast to agriculture at 33% in 2011).
237
All over the world, extractive mining is known as a low-employment generating

activity. The Tampakan project, with expected investments of $5.9 billion, will
provide only 2,000 permanent jobs.
b. Contribution of mining industry to growth in other sectors – Habito172 observed that

the mining sector has relatively low labor-output ratios in terms of employment
generation. Labor compensation accounts for only 13.3% against an average of
20.7% in all sectors. The sector has a backward linkage index of only 0.46,
meaning there is relatively little input from other domestic industries; even the
forward linkage of 0.82 indicates that the sector is below average compared to all
other sectors in generating further domestic economic activities. Minerals are being
exported with little value-adding that could have generated further employment and
industry linkage.
c. Contribution of mining to economic growth – At the macro level, the contribution of

mining to GDP has remained in the single digits. As of 2010, it only contributed
1.0%, with a Gross Value Added in Mining of PhP88.2 billion 173, compared to the
agricultural sector’s contribution of 12% in 2010 174. As for its contribution to total
exports, export of minerals and mineral products has averaged 4.5% in the last four
years and reporting 4.3% for the first half of 2011 175. Total exports of non-metallic
minerals’ share are even lower, hovering around 0.4% for the past 4 years 176
compared to agriculture at 8% for 2011. The manufacturing and service sector has
always been the main driver of economic growth for the country comprising of over
50% of GDP177.
However, the picture can be very different from the perspective of a project
proponent. In the Tampakan Copper-Gold Project, Sagittarius Mines, Inc. (SMI)
estimates that the project alone will contribute an additional 1% of national GDP, or
an additional 10.4% of regional GDP for Regions XI and XII. It is difficult to access
data for relative contribution of existing projects to local economic growth (at
provincial and municipal levels), if data exists at all.
d. Inflow of foreign investments and outflow of profits – The figures are not readily
accessible to the public, but the government should be able to determine how much
of the foreign funds that come in actually remains in the country to generate more
jobs and economic activities. How quickly do the funds return to the foreign
investors?
172 Cielito Habito, An Agenda for High and Inclusive Growth in the Philippine, Asian Development Bank (2010).
173 Mines and Geosciences Bureau (2011).
174 Bureau of Agricultural Statistics (2011)
176 Id.
177 Asian Development Bank (2011).
238
In M$
Year
Figure 1. Total Mining Investment including forecasts that include seven
development projects such as Tampakan Copper, Far Southeast Copper-Gold
Project, Runruno Gold-Molybdenum Project, Didipio Copper-Gold, Boyungan Gold
Project, Sumitomo Nickel Project and Kingking Copper Gold Project. 178
e. Revenues/taxes received by the government – The amounts of taxes, fees and

royalties from mining change from year to year and do not appear to show a trend.
Table 1. Taxes, Fees and Royalties from Mining179

2007 2008 2009 2010 1H 2011
Taxes, Fees and Royalties
from Mining
Fees, charges and 774.0 557.4 369.2 800.6 383.8
royalties collected by
DENR-MGB/LGUs
Excise Tax Collected by 942.1 660.3 718.8 1,299.7
BIR
Taxes Collected by 8,371.7 5,949.5 10,272.5 10,551.6
National Government
Agencies
Taxes and Fees Collected 359.8 522.2 992.8 1,050.5 10.1
by LGUs
Total 10,447.6 7,689.4 12,380.3 13,702.4 393.9
*data in million pesos
There are other factors to consider in how much the government actually gets. It
would seem that a tax holiday for Financial and Technical Assistance Agreements
(FTAAs) and the 2% limit of government (excise) tax on Mineral Production and
Sharing Agreements (MPSAs) translate to almost zero revenue for government.
Bautista180 estimated that 19.60% to 29.74% of mining revenue accrues to
government tax collection. Action for Economic Reforms 181 calculated only a 7.5%
effective tax rate in the industry (1997-2000). AER also cited that the government
loses an average of 32% of revenues annually (1999-2004) because of incentive

179 Id.
181 Action for Economic Reforms (2009)
239
laws. Compared to other countries, the Philippines’ effective tax rate is low.
Deutsche Bank182 reported that effective tax rate for minerals in other countries are
as follows: US (40%), Australia (38%), Brazil (38%), and Canada (23%).
In the Tampakan Project, SMI estimates that the project will produce a revenue
stream of up to US$37B (PhP1.85 trillion) over the life of the mine – US$7 billion
will go to government as taxes/duties/royalties and US$2 billion will go to local
governments and host communities. According to the Chamber of Mines,
government already gets 41% of the mining firm’s income before taxes, which is
much higher compared to Africa (average 34.4%) or Latin America (average
39.5%).
f. Poverty incidence in mining areas – There are a few studies that appear to
associate poverty incidence with mining. It is difficult to make sweeping
conclusions, but the data shows that provinces hosting mining operations do not
necessarily demonstrate improvement in the lives of local people.
In a recent study,183 the poverty incidence among individuals engaged in mining has
continued to increase, compared to workers in other sectors. In 2006, income
poverty in the sector was at 34.64 and by 2009 it increased to 48.71. The author
also uses a multidimensional poverty index (MPI) that captures various dimensions
of poverty (see Table 2). The mining sector also shows a high deprivation in health
and education compared to other industries (see Table 3).
Table 2. MPI, H, A and Income Poverty by Sector, 2006 and 2009
Note: The table summarizes the estimates of multidimensional poverty index (MPI),
multidimensional headcount (H), and average deprivation intensity experienced by
the poor (A).
Table 3. Contributions of Dimensions per group
182 Deutsche Bank (2010)

183 Arsenio Balicasan,What Has Really Happened to Poverty in the Philippines? New Measures, Evidence, and
Policy Implication, University of the Philippines School of Economics (Discussion Papers 14, 2011).
240
The 2003 small area poverty incidence of National Statistical Coordination Board
(NSCB) shows that Bataraza, Palawan, where Rio Tuba has been operating for
thirty (30) years has a poverty incidence that is twice the national rate, and is in the
bottom 25% of municipalities on poverty incidence.
Some may argue that at the project level, mining operations can have a significant
impact on the local community income from royalties and social benefits, which
could lift families out of poverty. For the Tampakan Project, SMI expects royalty
payments and social development contributions to reach US$800 million to host
indigenous and local communities.
There are no systematic studies to track the impact of the mining sector (as a whole
or at a project level) to improving the lives of local communities. It is important to
measure this economic impact especially after mining activities end.
g. Improvement of health and education services in mining areas – According to

Bautista,184 a paltry 0.11% to 0.26% (with gold mines at 1.23%) of mining revenues
go to community development. How much of this goes to improving the health and
education of local communities? Since these services are the responsibility of
government, it is also important to know how much of the government’s share from
mining revenues has been put into improving basic services.
There are many reports of adverse health impacts associated with mining, both
large- and small-scale.185 These have shown poor health in communities mostly due
to exposure to high levels of mercury, specifically in areas of small-scale mining.
Even granting that these incidents are accidental or isolated instances, the health
impacts of mining require accurately accounting for the improvement of health
services together with the dangers to life and health.
184 Bautista (2009).

185 Sakaon, (2003).
Drasch, et. al. (2001).
Appleton, et. al. (1999).
Bautista (2006).
241
The benefits that the country and local people can derive from mining have a limit in amount
and in time period. A visit to a mining operation typically shows new roads and access to
transportation, increased trade of goods and services supplied to the mining operations, even
improved access to health centers and schools. These added benefits might be provided by
the mining operator or the government, or made possible because of the presence of mining
operations. Mining companies claim that there are huge economic and social benefits during
mining operations, although there are no independent studies that measure the net benefits
after accounting for the costs.
On the contrary, there is no dispute that there is little or no economic benefits after operations
end. The sustainability of the benefits from mining depends on how the benefits will be
allocated among the beneficiaries in the present and for the future. But, is there any
municipality that shows significantly better quality of life than neighboring municipalities after
mining has left?
Based on available verifiable information, it can be argued that the contribution of mining to
the overall economy is small. The Philippine government does not appear to be getting the
best deal for the people, especially compared to other countries with mining industries, and
most of the benefits go to a very narrow set of beneficiaries. The researchers encourage the
mining industry to provide verifiable information on benefits that are not considered here.
8.3.2 Environmental and social costs
There are many documented experiences involving mining conflicts and issues that highlight
the risks of mining. The following cases are meant to illustrate some experiences, and are
not intended to show that mining activities only result in damages or conflicts.
Marcopper Mining
The following year after the Mining Act was signed into law, the country experienced one of
its most serious industrial pollution accidents. The incident involved the Marcopper Mining
Corporation, the largest mining company in Marinduque, which had been carrying out open-
pit copper mining since the 1970s. When the company finished one of its operations in
Marinduque, it plugged the old pit with concrete so that it could act as a disposal pond for
mine waste. Seepage was then discovered in August 1995. It then ruptured and caused
discharged tailings into the Boac river system. This resulted to the release of 1.6 million cubic
meters of tailings along the river. Because of this, crops and vegetables were destroyed and
irrigation channels to rice fields were blocked. The United Nations then declared the accident
to be a major environmental disaster. It announced that aquatic life, productivity and
beneficial use of the rivers for domestic and agricultural purposes were totally lost because of
the sedimentation.186 The toxic spills caused flash floods that isolated five villages with a
population of 4,400 people. The government estimates that the toxic tailings waste caused
the residents to have levels of zinc and copper in their bodies that are beyond tolerable
levels. Water sources were also contaminated.
Rapu-Rapu Mining Tragedy
Lafayette Philippines, Inc. started mining in Rapu-Rapu, Albay on July 2005. It is a domestic
subsidiary of Lafayette Mining Ltd. of Australia. They are the true owners of the mine in
Rapu-Rapu. Four months later, there were two incidents of spilling of mine tailings. The first
incident on October 11, 2005 was caused by a malfunctioning of a pumping unit that resulted
186 Assessment mission conducted under the leadership of UNEP/Water Branch, United Nations Department of
Humanitarian Affairs, (March 10, 2011), http://www.reliefweb.int/ocha_ol/programs/response/unep/unep4.html
(last visited June 2012).
242
into an overflow of tailings into the open sea. On October 31, 2005, there were heavy rains
that led to the overflowing of the mine tailings of Lafayette. The company caused cyanide
spill and fish-kills that paralyzed the livelihood of the poor local communities in Rapu-Rapu
and fishing and tourism in Sorsogon. Lafayette denied the fish-kill and the Mines and
Geosciences Bureau (MGB) supported it by exonerating Lafayette from the blame. 187 The
Department of Environment and Natural Resources (DENR) ordered the company to pay
P10.4 million in fines and penalties for the two mine spills for violating the Clean Water Act.
Michael Defensor, then Environment Secretary, explained that the fines were justified at
P200,000 per day for violations.188
South Cotabato Open-Pit Mining Ban
The provincial government of South Cotabato implemented an open-pit mining ban on July
2010 because of threats of pollution and damages to the water assets of South Cotabato
which is crucial to its largely agricultural economy. 189 Open-pit mining method is said to be
destructive in nature and results to the denudation of forests. The implementing rules and
regulations (IRR) were signed on March 2011. Because of this, the Tampakan Copper-Gold
Project of Australian-backed Sagittarius Mines, Inc. (SMI) worth $5.9 billion of potential
investment, might not push through. Stakeholders like mining companies, chambers of
commerce and the DENR have expressed opposition to the ban saying that they could not
supersede the Mining Act of 1995.190
Other provinces, like Zamboanga del Norte and Batangas, are now considering restrictions
on mining in light of the ban implemented by South Cotabato. 191 But is this action efficient?
Despite the ban, illegal small-scale mining continues in South Cotabato. 192
Palawan Mining
Palawan is famous for its natural resources, which have captivated many people. It is home
to 40% of the Philippines’ mangrove areas, 30% of the country’s coral reefs, 17 biodiversity
areas, 2 UNESCO World Heritage Sites and 8 declared protected areas. One of its main
attractions, the Puerto Princesa Subterranean River Natural Park, is a candidate to be one of
the new wonders of the world. According to Puerto Princesa Mayor Hagedorn, the ecosystem
of Palawan is fragile and is prone to erosion. 193 This is why mining should be banned. There
is also legislation such as RA 7611 or the Strategic Environment Plan for Palawan that
mandates that certain areas subject to qualifications should be fully protected and kept free
from human disruption. Despite this, mining continues.
187 Mines and Communities Website, The Tragedy of Mining in Rapu-Rapu Island Ecosystem, Albay Province
( April 28, 2011), http://www.minesandcommunities.org/article.php?a=2309 (last visited June 2012).
188 Manila Bulletin, Fishermen Demand Pullout of Mining Firm from Albay (April 30, 2011)
http://www.mb.com.ph/node/57951 (last visited June 2012).
189 Philippine Daily Inquirer, South Cotabato Bans Open Pit Mining (April 20, 2011),
http://business.inquirer.net/money/topstories/view/20100701-278512/South-Cotabato-bans-open-pit-mining (last
visited June 2012).
190 Philippine Daily Inquirer, South Cotabato to Implement Open-pit Mining Ban Next Week
(April 20, 2011), http://business.inquirer.net/money/topstories/view/20100701-278512/South-Cotabato-bans-open-
pit-mining (last visited June 2012).
191 Intell Asia Website, More Philippine Provinces Considering Restrictions on Mining ( April 21, 2011),
http://www.intellasia.net/news/articles/resources/111321334_printer.shtml (last visited June 2012).
192 Business World Online, Illegal Small-Scale Mining Continues Despite Prohibition (April 30, 2011),
http://www.bworldonline.com/content.php?section=Nation&title=Illegal-small-scale-mining-continues-despite-
prohibition&id=30242 (last visited June 2012).
193 ABS-CBN News Online, Save Palawan Movement Launches No To Mining Campaign (April 30, 2011),
http://www.abs-cbnnews.com/-depth/02/03/11/save-palawan-movement-launches-no-mining-campaign-0 (last
visited June 2012).
243
At present, a campaign to collect 10 million signatures against mining in Palawan has already
been launched by multisectoral environmental coalition Save Palawan Movement in order to
send a message to the government. President Aquino has already ordered to stop the
processing of new mining applications in the province in response to the protest to stop
mining in the area.
Compostela Valley Landslide
On April 22, 2011, Good Friday, a landslide occurred in the small mining community of
Pangason-B, Kingking village in Pantukan Compostela valley. It buried many homes, left
eight dead and many injured. 194 Small miners in the area allegedly have violated not only the
law on mining but also other laws. They were reported to have been using explosives,
mercury, and cyanide, which are all banned by law in small mining activities. 195 Residents
were asked to move out and the government has prepared to forcibly evacuate the families
who refuse to leave. Because of this, calls for a moratorium on all mining operations until an
efficient monitoring and control system has emerged. A Catholic bishop has expressed his
opinion saying that the government should address the ‘loopholes’ in the Mining Act of 1995.
8.4.1 Is responsible mining possible in the Philippines?
A simple operational answer is: responsible mining is complying with the laws that already
take into account its environmental, social, economic, cultural, and other impacts. However,
this assumes that the existing regulations are enough to safeguard the health of the
environment and human communities, and that these come with effective mechanisms of
implementation.
Republic Act No. 7942 or the Philippine Mining Act or 1995 declares that all Philippine
mineral resources are owned by the State, which is responsible for the “rational exploration,
development, utilization and conservation [of mineral resources] through the combined efforts
of government and the private sector in order to enhance national growth in a way that
effectively safeguards the environment and protect the rights of affected communities. “The
law mandates several environmental and social work programs (i.e., the Environmental Work
Program, the Environmental Protection and Enhancement Program, the Final Mine
Rehabilitation/Decommissioning Plan and the Social Development and Management
Program), as well as financial assurances (i.e., the Contingent Liability and Rehabilitation
Fund, Mine Rehabilitation Fund, and Mine Wastes and Tailings Reserve Fund).
However, because of the unreliability and insufficiency of available monitoring data, it is still
uncertain whether these mechanisms are enough and whether they are enforced effectively.
There is still no definitive document from the government that clearly and specifically details
the national expectation for responsible mining. Does the legal framework take into account
the uncertainties detailed above, the uniqueness of Philippines as biodiversity-rich, the
sensitivity of small islands, the situation in populated mining areas, risks from extreme
weather, and so on? Is compliance with the law enough?
194 Philippine Daily Inquirer, Three Out Of Eight Killed In Compostela Valley Landslide Identified (April 28, 2011),
http://globalnation.inquirer.net/viewpoints/viewpoints/view/20110426-333048/3-of-8-killed-in-Compostela-Valley-
landslide-identified (last visited June 2012).
195 Philippine Daily Inquirer, Suspension of Mining Urged; Death Toll Rises to 8 (April 28, 2011),
http://newsinfo.inquirer.net/inquirerheadlines/nation/view_article.php?article_id=332979 (last visited June 2012).
244
Responsible mining can also be measured using basic principles developed and adopted by
ethical mining companies worldwide. The Philippine Chamber of Mines’ Compliance and
Beyond: A Guidebook on Corporate Social Responsibility for the Philippine Mining Industry is
the most comprehensive guidance on responsible mining in the country so far, which
includes specific suggestions on how to adhere to responsible mining at every stage of the
mining cycle. The following principles are the bases for the Guidebook:
 Protect the environment as a paramount consideration in all stages of mining and

conduct activities in a manner that will contribute to the broader goals of sustainable
development.
 Protect the rights of affected communities, including the rights of indigenous cultural
communities. Engage in adequate and timely communication and consultation with
them and work for the improvement of the quality of their lives during and even after
the life of the mine.
 Safeguard the health and safety of mineworkers, local population, host and impact
communities, and address foreseeable health- and safety-related impacts associated
with mining over its full life cycle.
 Maintain a competent workforce that is committed to responsible mining and whose
welfare is advanced. Make sure that affected communities benefit from mining
through employment, whenever possible.
 Respect, protect, and promote human rights of those affected by mining and promote
human rights-sensitive security arrangements.
 Adopt responsible corporate governance and management principles that nurture
trust and promote company integrity by developing effective self-regulatory practices
and management systems and employing business practices that are ethical,
transparent and accountable.196
In the Philippines, a special concern for responsible mining is the identification of “no-go”
areas. Despite provisions in the law that identify areas closed to mining, field implementation
has been beset by conflicts. There is no clear-cut policy on mining in island ecosystems that
are most vulnerable to environmental and social impacts. The National Integrated Protected
Areas System (NIPAS) and SEP for Palawan laws should inform such a policy. In 2000,
DENR issued Administrative Order No. 83 on “Guidelines for the Management And
Development of Small Islands, Including Its Coastal Areas” but this regulation has not
stopped the exploitation of mineral resources in small islands and coastal areas.
8.4.2 What operational conditions must be met to conduct responsible mining in the
Philippines?
Responsible mining has to accurately assess and account for all relevant costs and benefits:
 The appropriate valuation mechanisms should be employed to ensure that the

environmental and social responsibilities are accounted for, and that the negative
impacts are mitigated and affected communities compensated.
 There must be a more comprehensive articulation of risk assessment for disaster
management, given that the Philippines is prone to geophysical disturbance and
climate change-induced hazards.
196 Chamber of Mines (2010).

245
 Regulations on environmental impact studies should be reviewed to account for the

value of biodiversity and ethnodiversity significance.
Responsible mining has to respect no-go areas:
 There must be respect for the NIPAS and SEP for Palawan that declare areas closed
to mining.
 There must be respect for the right of local governments to close areas within their
territorial jurisdiction to mining operations as a precautionary measure, in the
absence of credible information on impacts and acceptable risks.
 Small island ecosystems should be excluded from mining. Agenda 21 of the United
Nations identifies small islands supporting small communities as special cases for
environment and development, being ecologically fragile and vulnerable. The ocean
and coastal environment of small islands of strategic importance and constitutes a
valuable development resource. Their small size, limited resources, geographic
dispersion and isolation from markets, place them at a disadvantage economically
and prevent economies of scale.
Responsible mining has to respect the decision of local stakeholders, especially indigenous
peoples:
 Inconsistencies in the implementation of FPIC raise serious doubts as to the validity

of community consent and benefit-sharing agreements.
 The right of IPs and local communities to say “no” should be respected and not taken
as a provisional decision subject to negotiation until communities finally say “yes.”
Small-scale mining should be held to the same high standards:
 Policies on small-scale mining should be revised to account for the same impacts as
large-scale mining:
8.4.3 What actions must the government take towards management of responsible mining?
The operational conditions for responsible mining must be matched with governance actions,
including:
 Defining a policy to get the best deal for the people –The country and local
communities apparently get little in terms of benefits from mining, compared to the
returns that investors get. The Philippine Development Plan (PDP) noted from an
assessment report of a mining project 197 that the fair share of the government from
mining has not been achieved due to the existing incentive mechanism 198. The
current fiscal incentives and taxation regime in mining are inadequate and do not
assume long-term national and local benefits in the extraction of exhaustible
resources. The government recently proposed the imposition of a 5% royalty for the
exploitation of select mineral reservations. This has been met with stiff opposition by
the mining industry. Comparative data on government benefits from mining are
conflicting; therefore the government must make further studies to firm up its
negotiating position.
197 Rapu-Rapu <complete project name, if possible>.

198 Philippine Development Plan 297 (which year?)
246
In the landmark case of La Bugal-B’laan Tribal Association vs. Ramos 199, the
Supreme Court ruled that the Mining Act of 1995 was constitutional provided it was
implemented in a manner that truly benefited the country. The Court stated that the
government retained control of mineral resources in the country through regulation.
Thus, if the government and society at large do not benefit from the current mining
revenue system, modifying that system is then justified.
 Defining clear indicators for reforms – Clear and measurable indicators are needed
to track compliance and progress in reforms needed for responsible mining, including
inclusiveness of economic benefits, as well as social, cultural, and environmental
safeguards. The government needs to design and implement a systematic
monitoring and evaluation (M & E) process based on these indicators.
There should be an objective, third-party review of current operating mines to

determine compliance with responsible mining. A more comprehensive compilation
of best practices should also be prepared to equip the government, mining
companies, and affected communities with information to make rational decisions.
 Continuous capacity building – In order to support stable, rational decision-making,

the government must have the capacity to implement:
o Natural resources valuation;

o Options for benefit-sharing schemes at the national, local, and community
level;
o Measuring local economic impact;
o Measuring impact on community values and culture;
o Establishing systematic monitoring and evaluation of environmental, social,
and economic impacts at all levels (project, local, and national); and
o A genuine and inclusive process of obtaining free and prior informed
consent.
The Philippine Development Plan acknowledges that “government capacity for

resource management is wanting”200 and that “Ensuring the equitable and just
distribution of benefits from extracted mineral resources remains to be a challenge…
Currently, there is no standard resource and environment valuation. There is a need
to have a cost-benefit analysis and standard parameters that will consider all relevant
values (including nonmarket values).”201
Risk assessment should also be prioritized. The Philippines is located in the Pacific
Ring of Fire. The same tectonic activity that makes it a prime location for
economically valuable metals also means that the country is prone to geophysical
hazards such as earthquakes and volcanic eruptions.
 Setting a clear action plan with a reasonable timetable and sufficient budget and
personnel support – The actions needed must be set in a clear, doable, time-bound,
and adequately funded action plan, so that all stakeholders can reasonably expect
199 G.R. No. 127882 (2004) (Phil.).

200 Philippine Development Plan 309
201 Philippine Development Plan 298
247
accomplishment of the reform goals. The reforms are only as good as their
implementation. Government has to provide the manpower needed to implement the
reforms both at national and local government levels.
For decades, the shortcomings in governance have been side-stepped, and the government
has assumed that approval of mining operations can continue because capacity-building is
taking place. This is no longer acceptable. As shown above, with the inadequacies of
regulation and capacity for governance, the government has no rational basis for making
decisions on mining.
Aristotle stands out as one of the most influential and appreciated Greek philosophers. In the menu of
ideas in moral philosophy, his concept of the "golden mean" is one of the most practical; it still as
relevant now, nearly 2500 years after Aristotle first articulated it, as it was then: "Virtue is concerned
with passions and actions, in which excess is a form of failure, and so is defect, while the intermediate
is praised and is a form of success; and being praised and being successful are both characteristics of
virtue. Therefore virtue is a kind of mean, since, as we have seen, it aims at what is intermediate."
Applying Aristotle's golden mean to the challenge of mining in the Philippines, is a middle ground on
mining possible? Is there such a thing as responsible mining that conforms to sustainable
development? Or is mining always destructive of nature and communities? What is the golden mean in
mining?
Metal arises from Earth in the Chinese wu xing cycle of elements. It is the instrument by which Water
(the succeeding element) is captured and harnessed, and Wood (the element opposed) is cut down into
lumber. Metal is therefore central to the development of civilization, as we saw in the Bronze and Iron
Ages. Today, metal is one of the most important economic resources, from the steel of skyscrapers and
bridges, to the rare earth metals used in semiconductors and electronics. Thus, ideally, mining is an
important component of any national economy as it brings hard currency, elicits investment, and
generates jobs.
The situation in our country is, however, far from ideal. Weak governance institutions and corruption
compromise mining governance, with environmental, safety, and human rights regulations frequently
ignored. Our mining claims system is antiquated, allowing until July 2012 companies and individuals to
lay mineral claims on large swaths of Philippine territory, and unnecessarily giving the impression that
all of the country is open for mining.
I believe that mining, and similar natural resources issues are best seen and resolved through the prism
of environmental and social justice. For the record, I am not against mining per se. I oppose mining
that is environmentally destructive, and a mining governance system that does not distribute benefits
properly. The latter is more important because if we solve the inequity of revenue distribution in mining,
we can ensure that enough resources are set aside to minimize its negative environmental and social
impacts. This is true for both small-scale (which I also do not endorse unconditionally because of its
environmental impacts and safety risks) and large-scale mining.
The most important reform in mining governance is the proper distribution of powers, responsibilities,
and income from the extraction of mineral resources. Thus, indigenous peoples and local communities
must have a voice in the mining decisions and a big share of the revenue. Similarly, local governments
should have a major say on whether or not mining should be allowed within their territory, and must
have a just share of the revenues. Where there is conflict between national government and local
governments, mediation is the only recourse.
Many in the industry will acknowledge the bad environmental legacy of mining, but they argue that
responsible mining is now possible. They point to global best practices in environmental management
and addressing social impacts which when employed properly make mining consistent with sustainable
development. They are right. However, there are places where mining should not be allowed, where the
risk to important biological, environmental and cultural resources are too serious and cannot be
mitigated adequately. Palawan, given its unique biological diversity and its potential for ecotourism, is
such a place.
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In El Filibusterismo, Jose Rizal’s anti-hero Simoun funded his attempt at insurgency using a chest of
precious stones. Padre Florentino, the friar to whom Simoun confessed as he was dying, took the
chest, cursed as it was being the inspiration and tool for corruption and hatred, and threw it into the
Pacific Ocean, shouting: "May Nature guard you in her deep abysses… When for some holy and
sublime purpose man may need you, God will in his wisdom draw you from the bosom of the waves.
Meanwhile, there you will not work woe, you will not distort justice, you will not foment avarice!”
Just like Simoun’s proverbial war chest, our rich mineral resources, in a country compromised by
corruption and insufficient governance, can only result in woe, distorted justice, and avarice. Just as
steel must be tempered to achieve its full strength and flexibility, mining governance requires important
reforms before the mining industry can be entrusted with the national treasure chest. When we achieve
mining's golden mean, being endowed with mineral resources will no longer be a curse causing conflict
and environmental destruction but, finally, becomes, as it should be, blessing and bounty from our
Earth.
Taken from:
10 May 2011, Manila Standard Today
Mining's Golden Mean
In many ways, Colorado is the ground zero of mining in the United States. As early as 1859, gold
was discovered in Colorado; in addition, coal, gypsum, limestone, silver, molybdenum, soda ash
and sodium bicarbonate have been and are mined there. According to the Colorado Mining
Association, mining contributes about $8 billion to the state’s economy. At the same time, mining
in Colorado is not entirely uncontroversial. The state is also known for its natural and scenic
beauty, and tourism is one of its major industries. In 2007 alone, it was reported that 28 million
visitors visited the State and spent $9.8 billion. For obvious reasons, mining is not necessarily
compatible with tourism and at times hard choices had and have to be made in Colorado as to
what land use is preferred.
It is no different in the Philippines. While we are a highly mineralized country, with substantial mineral
deposits that are still unexploited, the country is both densely populated and environmentally stressed.
I have walked on, driven through, sailed around and have flown in most of our islands, and everywhere
I see lots of people in overstretched critical ecosystems and natural resources. Because of this, any
mining decision will always be in the context of land use conflicts that is then expressed politically,
sometimes violently. Because of this, mining cannot and never will be an easy nor fast decision in this
country.
Today, in the Philippines, the ground zero of mining is Tampakan, South Cotabato, where the largest
untapped copper deposit in Southeast Asia can be found. Sagittarius Mines Incorporated (SMI), a
company majority-owned by global mining firm Xstrata Plc., has the legal right to develop the
Tampakan deposit. Already, the US$5-6 billion project has been delayed by a decade when the legality
of the Mining Act of 1995 and in particular the Financial and Technical Assistance Agreement (FTAA)
held by SMI was questioned before and eventually upheld by the Supreme Court. With the legal case
out of the way and the mining feasibility done, what was left for SMI to do was to get an environmental
clearance for the Tampakan project.
Unfortunately for the project, in June 25, 2010, then-outgoing governor of South Cotabato Daisy
Fuentes signed into law the province's Environmental Code. Passed by an overwhelming 9-1 vote in
the provincial legislature, arguably a strong manifestation of the will of the people of the province, the
Code bans the use of open-pit mining (the technology that will be used to extract the minerals from
Tampakan).
The legality of the South Cotabato Environmental Code has been assailed by critics who point out
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that the Mining Act, which does not prohibit open-pit mining, should prevail over the provincial
Environmental Code. They argue that a national law is superior to a local ordinance. Under the
Mining Act, the DENR (through the Mines and Geosciences Bureau) is the primary agency
responsible for the management and use of the State's mineral resources and its Secretary is
given the authority to enter into mineral agreements on behalf of the government. On the other
hand, under the Local Government Code (LGC), local government units are authorized to come
up with measures intended to protect the general welfare. With such a mandate, the
Sangguniang Panlalawigan (provincial legislature) can enact ordinances to protect the
environment. In addition, Section 27 of the LGC requires prior approval of the Sanggunian
(council) concerned before any national project, including mining projects, is implemented
within their territorial jurisdiction.
How then can we move forward – on Tampakan specifically and on mining generally? The burden is
principally on the national government, which must now balance all legitimate interests. The DENR
Secretary, with the full support of the President, should establish a transparent, participatory and
credible multi-stakeholder negotiation and consensus-building process for this. Because it seems
inevitable that this matter will be taken to court, the parties could also take advantage of the provision in
the new Rules of Procedure for Environmental Cases, which allows of a “consent decree” – a judicially-
approved settlement between the parties that could stipulate the conditions under which the Tampakan
project could proceed. This is certainly a more viable and less costly (money and time wise) option
compared to a protracted legal battle where the outcome is far from certain.
Whether such a negotiation happens in a judicial or other context, I strongly suggest that independent
third party facilitators who have the trust of all the stakeholders assist them. In that process, the
following outcomes should be sought: the promotion of sustainable development; the encouragement of
responsible investments; a revenue sharing regime that is fair to host communities and to the country;
the uncompromising protection of the environment; and respect for local autonomy and indigenous
peoples' rights (most of the Tampakan mineral deposit is in the ancestral domain of indigenous
peoples). While it is likely that not all these outcomes will be achieved, if most or a majority of them are
achieved, it would not be so bad. Not perfect, not at all, but maybe good.
Taken from:
14 September 2010, Manila Standard Today
Ground Zero of Mining
Executive Order No. 79 lays down very clearly the roadmap on mining sector reforms, including
guidelines on environmental protection and responsible mining. The “Mining EO,” as it has come to be
known, is a good and progressive issuance that merits congratulations. This Aquino mining policy, as
illustrated by the EO, is not perfect, but good. In fact it is very good.
The EO is a definitive step in the right direction for the mineral industry, as it changes paradigms for the
better:
Section 1, providing additional areas closed to mining operations or “no-go” areas. While the
Mining Act (RA 7942) already provides for some no-go areas, including those prohibited under the
National Integrated Protected Areas System (NIPAS, RA 7586) – and which the EO reiterates – the
Presidential issuance provides 3 new categories of areas where mineral operations are prohibited:
⁃ Prime agricultural lands, in addition to lands covered by the Comprehensive Agrarian Reform Law,
including plantations and areas devoted to valuable crops, and strategic agriculture and fisheries
development zones and fish refuge and sanctuaries;
⁃ Tourism development areas, such as Puerto Princesa, San Vicente-El Nido-Taytay, and Southern
Palawan within the Palawan Tourism Cluster, and Camarines, Catanduanes, and Albay-Sorsogon-
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Masbate within the Bicol Tourism Cluster, as per the National Tourism Development Plan; and
⁃ Other critical areas, island ecosystems, and impact areas of mining. This is a very powerful
argument why Mindoro, Sibuyan, Camiguin, Siquijor, Romblon and similar islands should be
considered off limits to mining.
Section 4 imposing a moratorium on the grant of mineral agreements pending legislation on

rational revenue sharing for the industry. The imposition of this moratorium is based on the
conclusion that the current system does not favor equitable distribution of the benefits derived from
mining. The invocation of Section 1, Article XII of the 1987 Constitution in the EO’s preamble – a
provision not usually invoked in the context of environmental protection and as such is revolutionary –
says as much about the need to re-assess and re-align the myriad advantages of our mineral wealt
This provision indicates that the President means business – invoking the said constitutional provision
on “a more equitable distribution of opportunities, income, and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the people; an expanding
productivity as the key to raising the quality of life for all, especially the underprivileged; and that in the
pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop.”
These all point to a clear intent to ensure that the Philippine mineral industry serves all citizens and not
just the interests of a few, that it benefits the majority and raises the quality of life for all.
'Revolutionary provisions'
In addition, the EO contains four other revolutionary provisions related to the management of mineral
agreements and revenues derived therefrom:
 Section 5 on the establishment of mineral reservations, setting aside potential and future
mining areas for strategic industries identified in the Philippine Development Plan and the
National Industrialization Plan, subject to consultation with all concerned stakeholders.
 Section 6 on competitive public bidding over mining rights and tenements including
government-owned and all expired tenements, for which the Mines and Geosciences Bureau shall
not only prepare bid packages and guidelines but also ensure that social acceptability for the
project has been secured.
 Section 8 on the development of value-adding activities and downstream industries for the
mineral sector, which shall be laid out in a national program and road map to be formulated by
relevant government agencies, the mining industry, and other stakeholders.
 Section 14 on "Improving Transparency in the Industry by Joining the Extractive Industries

Transparency Initiative." To improve transparency, accountability, and governance in the sector,
the government shall support and commit participation in the Extractive Industries Transparency
Initiative (EITI). The DENR is mandated to ensure that mechanisms are established to
operationalize the EITI in the mining sector, in consultation and coordination with the mining
industry and other concerned stakeholders.
These provisions provide a paradigm shift in how the country’s mineral reserves and resources are
treated and exploited, which over the years seemed typified as a “come one, come all” system for
investors. The Mining EO sets initial steps for exercising more stringent controls on the utilization of
mineral resources, the grant of rights for their utilization, and the flow of revenues from such.
 Section 11, providing initial measures to improve the management and development of small-
scale mining (SSM). Strict attention to the extremely problematic and complex issue of managing
small-scale mining in the country is long overdue. This provision once and for all clarifies the
statutes that govern the industry, reiterates that SSM must be undertaken only within the confines
of delineated Minahang Bayan, and addresses the need for training and capacity building of SSM
operators, among others.
Likewise, we praise the President for issuing specific directives to his Cabinet to immediately implement
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the EO. We particularly laud the directive to the DENR to “Desist from processing mining applications in
Palawan and enhance the strict implementation and periodic review of the Strategic Environmental Plan
for Palawan with the Palawan Council for Sustainable Development.”
Directives to complete cultural mapping of indigenous peoples’ areas and address their concerns and
recognition of their rights, and to address the overlapping tasks and functions of departments involved
in mining, are also crucial points for implementation and respond to some of the most basic systemic
weaknesses of governing the mineral industry.
Some concerns
While we congratulate the President on an EO that departs from “business as usual” practices in the
mineral industry, we also express concern over Section 12 on the “consistency” of local ordinances with
the Constitution and national laws.
Admittedly, it is an improvement from an earlier iteration of the EO which referred to the “primacy” of
national over local legislation. However, a more appropriate term would have been “harmonization”
between the 2, because such assumes that local government units (LGUs) act in good faith and
generally exercise their power in accordance with national laws.
Still, in spite of its language, Section 12 can be interpreted as allowing LGUs to impose restrictions on
mineral activities within their jurisdiction – including mining bans – if they are able to demonstrate that
such legislation is reasonable within the environmental, social, and economic circumstances
surrounding a proposed project, and as long as this is supported by risk assessments and evidence-
based studies, and appropriate consideration of the precautionary principle.
With EO 79, a new mining policy has been effectively put into place by a President who clearly means
business. The challenge now, as always whenever our country enacts or adopts progressive legislation
and policies, is implementation.
With the directives the President issued along side his EO, he is clearly also paying attention to what
happens now in the field. For that reason, we are hopeful.
Perhaps, finally, the “resource curse,” the truism that extractive industries like mining cause only
poverty and conflict, will be disproven in our country, and our mineral wealth will become as it should be
– a bounty and blessing for our people.
Taken from:
Rappler.com – Dean Tony La Viña and Atty. Alaya de Leon
11 July 2012
Mining E.O. Not Perfect, But Very Good
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Chapter Nine
Waste Management and Sanitation
In January 1999, respondents concerned residents of Manila Bay filed a complaint before the
Regional Trial Court (RTC) in Imus, Cavite against several government agencies, for the
cleanup, rehabilitation, and protection of the Manila Bay. The complaint alleged that the water
quality of the Manila Bay had fallen way below the allowable standards set by law,
specifically Presidential Decree (PD) No. 1152 or the Philippine Environment Code. 202 In their
individual causes of action, respondents alleged that the continued neglect of petitioner
agencies in abating the pollution of the Manila Bay constitutes a violation of, among others:
(1) Respondents’ constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law.
The respondents, as plaintiffs, prayed that petitioners be ordered to clean up the Manila Bay
and to submit to the RTC a concerted concrete plan of action for such purpose.
In an attempt to dramatize the urgency of the need for petitioner-agencies to comply with
their statutory tasks, the Supreme Court cited the Asian Development Bank-commissioned
study on the garbage problem in Metro Manila. 203 As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some highlights of the report are as
follows:

1. As early as 2003, three land-filled dumpsites in Metro Manila - the
Payatas, Catmon and Rodriquez dumpsites - generate an alarming
quantity of lead and leachate or liquid run-off. Leachate are toxic liquids
that flow along the surface and seep into the earth and poison the surface
and groundwater that are used for drinking, aquatic life, and the
environment.

2. The high level of fecal coliform confirms the presence of a large amount of
human waste in the dump sites and surrounding areas, which is
presumably generated by households that lack alternatives to sanitation.
To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and
possibly strains of pathogens seeps untreated into ground water and runs
into the Marikina and Pasig River systems and Manila Bay.
202 MMDA v. Concerned Residents of Manila Bay, December 18, 2008

203 The results of which are embodied in the The Garbage Book.
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Given the above perspective, it is good to note how difficult and daunting it is to clean up
Manila Bay from the abovementioned solid waste materials. Wastes of such nature are not
present in the bay at one particular point in time only but said wastes are continuously
produced by their common sources. In the language of the Supreme Court, “the cleanup
and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as
important as the cleaning phase. It is imperative then that the wastes and contaminants
found in the rivers, inland bays, and other bodies of water be stopped from reaching the
Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no
time at all, the Manila Bay water quality would again deteriorate below the ideal minimum
standards set by PD 1152, RA 9275, and other relevant laws.”
For this reason that the Supreme Court ultimately decided to impose a “continuing
mandamus” upon petitioner-agencies to periodically and regularly clean-up the Manila Bay.
Under what our judicial discipline describes as “continuing mandamus”, the Court may, under
extraordinary circumstances, issue directives with the end in view of ensuring that its decision
would not be set to naught by administrative inaction or indifference. For instance, in India,
the doctrine of continuing mandamus was used to enforce directives of the court to clean up
the length of the Ganges River from industrial and municipal pollution.
In ruling on the petition, the Supreme Court cited the landmark case of Oposa vs. Factora,
the same Court stated that the right to a balanced and healthful ecology need not even be
written in the Constitution for it is assumed, like other civil and political rights guaranteed in
the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Thus, in analogy, the court in the present case
ratiocinated that even assuming the absence of a categorical legal provision specifically
prodding petitioners to clean up the bay, they and the men and women representing them
cannot escape their obligation to future generations of Filipinos to keep the waters of the
Manila Bay clean and clear as humanly as possible.
Special Laws and Legal Mandates
The special laws governing and the legal mandates of agencies applicable to the proper
management and disposal of solid wastes are as clear as spring-clean water. In the case of
the clean-up of Manila Bay, the Supreme Court cited some of those laws and legal
mandates, which included among others:
i. Sec. 3, Par. C, RA 7924 creating the Metro Manila Development Authority

(MMDA) which mandates:
Solid waste disposal and management which include formulation and
implementation of policies, standards, programs and projects for proper and
sanitary waste disposal. It shall likewise include the establishment and operation
of sanitary land fill and related facilities and the implementation of other alternative
programs intended to reduce, reuse and recycle solid waste.
ii. Sec. 19, RA 9275 or the Clean Water Act of 2004 which mandates the DENR to
comply with the following:
a) Prepare a National Water Quality Status report within twenty-four (24) months
from the effectivity of this Act: Provided, That the Department shall thereafter
review or revise and publish annually, or as the need arises, said report;
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b) Prepare an Integrated Water Quality Management Framework within

twelve (12) months following the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan
within 12 months following the completion of the framework for each
designated water management area. Such action plan shall be
reviewed by the water quality management area governing board
every five (5) years or as need arises.
iii. Sec. 48 of RA 9003 or the Ecological Solid Waste Management Act of 2000
which prohibits the following acts:
(1) Littering, throwing, dumping of waste matters in public places, such as roads,
sidewalks, canals, esteros or parks, and establishment, or causing or permitting
the same;
(2) Undertaking activities or operating, collecting or transporting equipment in
violation of sanitation operation and other requirements or permits set forth in
established pursuant;
(3) The open burning of solid waste;
(4) Causing or permitting the collection of non-segregated or unsorted wastes;
(5) Squatting in open dumps and landfills;
(6) Open dumping, burying of biodegradable or non-biodegradable materials in
flood prone areas;
(7) Unauthorized removal of recyclable material intended for collection by
authorized persons;
(8) The mixing of source-separated recyclable material with other solid waste in
any vehicle, box, container or receptacle used in solid waste collection or
disposal;
(9) Establishment or operation of open dumps as enjoined in this Act, or closure
of said dumps in violation of Sec. 37;
(10) The manufacture, distribution or use of non-environmentally acceptable
packaging materials;
(11) Importation of consumer products packaged in non-environmentally
acceptable materials;
(12) Importation of toxic wastes misrepresented as "recyclable" or "with
recyclable content";
(13) Transport and dumplog in bulk of collected domestic, industrial, commercial,
and institutional wastes in areas other than centers or facilities prescribe under
this Act;
(14) Site preparation, construction, expansion or operation of waste management
facilities without an Environmental Compliance Certificate required pursuant to
Presidential Decree No. 1586 and this Act and not conforming with the land use
plan of the LGU;
(15) The construction of any establishment within two hundred (200) meters from
open dumps or controlled dumps, or sanitary landfill; and
(16) The construction or operation of landfills or any waste disposal facility on
any aquifer, groundwater reservoir, or watershed area and or any portions
thereof.
iv. Sec. 4 of PD 601 or the Revised Coast Guard Law of 1974 which mandates the
Philippine Coast Guard to apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship,
vessel, barge, or any other floating craft, or other man-made structures
at sea, by any method, means or manner, into or upon the territorial and
inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be
thrown, discharged, or deposited either from or out of any ship, barge, or
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other floating craft or vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any refuse matter of
any kind or description whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed into such
navigable water; and
c. deposit x x x material of any kind in any place on the bank of any
navigable water or on the bank of any tributary of any navigable water,
where the same shall be liable to be washed into such navigable water,
either by ordinary or high tides, or by storms or floods, or otherwise,
whereby navigation shall or may be impeded or obstructed or increase
the level of pollution of such water.
v. Secs. 17 and 20 of the Environment Code (PD 1152) which mandates the DENR
to perform the following duties:
Section 17. Upgrading of Water Quality.––Where the quality of water has
deteriorated to a degree where its state will adversely affect its best
usage, the government agencies concerned shall take such measures
as may be necessary to upgrade the quality of such water to meet the
prescribed water quality standards.
Section 20. Clean-up Operations. ––It shall be the responsibility of the
polluter to contain, remove and clean-up water pollution incidents at his
own expense. In case of his failure to do so, the government agencies
concerned shall undertake containment, removal and clean-up
operations and expenses incurred in said operations shall be charged
against the persons and/or entities responsible for such pollution.
The special laws governing and the legal mandates of agencies applicable to the proper
management and disposal of solid wastes are as clear as spring-clean water. In the case of
the clean-up of Manila Bay, the Supreme Court cited some of those laws and legal
mandates. In relation to the above laws and legal mandates, the order of the Supreme Court
to the government agencies concerned with the clean-up, rehabilitation, and protection of the
Manila Bay is quite simple. To quote the said order:
“WHEREFORE, judgment is hereby rendered ordering the abovenamed

defendant-government agencies to clean up, rehabilitate, and preserve
Manila Bay, and restore and maintain its waters to SB level (Class B sea
waters per Water Classification Tables under DENR Administrative Order
No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of
contact recreation. In particular:
a) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary

agency responsible for the conservation, management, development,
and proper use of the country’s environment and natural resources, and
Sec. 19 of RA 9275, designating the DENR as the primary government
agency responsible for its enforcement and implementation, the DENR is
directed to fully implement its Operational Plan for the Manila Bay
Coastal Strategy for the rehabilitation, restoration, and conservation of
the Manila Bay at the earliest possible time. It is ordered to call regular
coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan
of action in accordance with its indicated completion schedules.
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b) Pursuant to Title XII (Local Government) of the Administrative Code of

1987 and Sec. 25 of the Local Government Code of 1991, the DILG, in
exercising the President’s power of general supervision and its duty to
promulgate guidelines in establishing waste management programs
under Sec. 43 of the Philippine Environment Code (PD 1152), shall
direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan,
Pampanga, and Bataan to inspect all factories, commercial
establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited to
the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las
Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, the Laguna De Bay, and other minor
rivers and waterways that eventually discharge water into the Manila
Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by
existing laws, ordinances, and rules and regulations. If none be found,
these LGUs shall be ordered to require non-complying establishments
and homes to set up said facilities or septic tanks within a reasonable
time to prevent industrial wastes, sewage water, and human wastes from
flowing into these rivers, waterways, esteros, and the Manila Bay, under
pain of closure or imposition of fines and other sanctions.
c) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide,

install, operate, and maintain the necessary adequate waste water
treatment facilities in Metro Manila, Rizal, and Cavite where needed at
the earliest possible time.
d) Pursuant to RA 9275, the LWUA, through the local water districts and in
coordination with the DENR, is ordered to provide, install, operate, and
maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna,
Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
e) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered

to improve and restore the marine life of the Manila Bay. It is also
directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga, and Bataan in developing, using recognized
methods, the fisheries and aquatic resources in the Manila Bay.
f) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime
Group, in accordance with Sec. 124 of RA 8550, in coordination with
each other, shall apprehend violators of PD 979, RA 8550, and other
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existing laws and regulations designed to prevent marine pollution in the

Manila Bay.
g) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention

for the Prevention of Pollution from Ships, the PPA is ordered to
immediately adopt such measures to prevent the discharge and dumping
of solid and liquid wastes and other ship-generated wastes into the
Manila Bay waters from vessels docked at ports and apprehend the
violators.
h) The MMDA, as the lead agency and implementor of programs and

projects for flood control projects and drainage services in Metro Manila,
in coordination with the DPWH, DILG, affected LGUs, PNP Maritime
Group, Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and remove all
structures, constructions, and other encroachments established or built
in violation of RA 7279, and other applicable laws along the Pasig-
Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the
rest of the country more particularly in Bulacan, Bataan, Pampanga,
Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP
Maritime Group, HUDCC, and other concerned government agencies,
shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws
along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other
rivers, connecting waterways, and esteros that discharge wastewater
into the Manila Bay. In addition, the MMDA is ordered to establish,
operate, and maintain a sanitary landfill, as prescribed by RA 9003,
within a period of one (1) year from finality of this Decision. On matters
within its territorial jurisdiction and in connection with the discharge of its
duties on the maintenance of sanitary landfills and like undertakings, it is
also ordered to cause the apprehension and filing of the appropriate
criminal cases against violators of the respective penal provisions of RA
9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws
on pollution.
i) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA

9275, within one (1) year from finality of this Decision, determine if all
licensed septic and sludge companies have the proper facilities for the
treatment and disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be non-complying,
a reasonable time within which to set up the necessary facilities under
pain of cancellation of its environmental sanitation clearance.
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j) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of

RA 9003, the DepEd shall integrate lessons on pollution prevention,
waste management, environmental protection, and like subjects in the
school curricula of all levels to inculcate in the minds and hearts of
students and, through them, their parents and friends, the importance of
their duty toward achieving and maintaining a balanced and healthful
ecosystem in the Manila Bay and the entire Philippine archipelago.
k) The DBM shall consider incorporating an adequate budget in the

General Appropriations Act of 2010 and succeeding years to cover the
expenses relating to the cleanup, restoration, and preservation of the
water quality of the Manila Bay, in line with the country’s development
objective to attain economic growth in a manner consistent with the
protection, preservation, and revival of our marine waters.
l) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA,

DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS,
LWUA, and PPA, in line with the principle of “continuing mandamus,”
shall, from finality of this Decision, each submit to the Court a quarterly
progressive report of the activities undertaken in accordance with this
Decision.”
Compliance with the Supreme Court Order
Despite the clarity of the legal mandates and the simplicity of the orders of the Supreme
Court to the government agencies concerned, compliance to said legal mandates and court
orders is almost impossible. To illustrate, with respect to point-source pollutants or pollutants
originating from a single, identifiable source, such as a discharge pipe from a factory or
sewage plant, the said agencies lacks the capacity, as well as the facility to enforce said legal
mandates and court orders.
The various types of point-source pollutants found in waters are as varied as the types of
business, industry, agricultural, and urban sources that produce them. Commercial and
industrial businesses use hazardous materials in manufacturing or maintenance, and then
discharge various wastes from their operations. The raw materials and wastes may include
pollutants such as solvents, petroleum products (such as oil and gasoline), or heavy metals.
Point sources of pollution from agriculture may include animal feeding operations, animal
waste treatment lagoons, or storage, handling, mixing, and cleaning areas for pesticides,
fertilizers, and petroleum. Municipal point sources might include wastewater treatment plants,
landfills, utility stations, motor pools, and fleet maintenance facilities.
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Basing on the scientific nature of point-source pollutants, it seems that in order to eradicate
the same, a highly-sophisticated form of technology is required and apparently, the agencies
mandated to clean-up the Manila Bay do not have the necessary resources in order to
effectively comply with the duties imposed on them by the law and by the court. To minimize
and even worse, to completely erase pollution in the bay is a task that would certainly take a
long period of time and is absolutely not something which can be done overnight.
On the other hand, as regards nonpoint-source pollutants or those which do not originate
from a single, direct source, regulation of the same is as impossible as it is daunting.
Nonpoint-source pollution occurs as water moves across the land or through the ground and
picks up natural and human-made pollutants, which can then be deposited in lakes, rivers,
wetlands, coastal waters, and even groundwater. The water that carries nonpoint-source
pollution may originate from natural processes such as rainfall or snowmelt, or from human
activities such as crop irrigation or lawn maintenance. Nonpoint-source pollution is usually
found spread out throughout a large area. It is often difficult to trace the exact origin of these
pollutants because they result from a wide variety of human activities on the land as well as
natural characteristics of the soil, climate, and topography. The most common nonpoint-
source pollutants are sediments, nutrients, microorganisms and toxics. Sediment can
degrade water quality by contaminating drinking water supplies or silting in spawning grounds
for fish.204
Preventing and controlling nonpoint-source pollution is primarily accomplished through

regulation under special laws and voluntary watershed protection efforts of certain
environment groups. Best management practices and pollution prevention can be applied
both in the national and in the local level to reduce and prevent nonpoint-source pollution.
Some activities are state responsibilities, perhaps, such as ensuring that public lands are
properly managed to reduce soil erosion, or developing legislation to govern chemical use.
Many other regulatory approaches may be best handled locally, through the Local
Government Units (LGUs), such as by zoning or erosion-control ordinances.
Each citizen can play an important role by being active in the community, learning more
about the local watershed, practicing conservation, and by preventing pollution in homes,
yards, and neighborhoods. But all these recommended approaches are still extremely difficult
to enforce due to the lack of facilities and manpower on the part of the government agencies
concerned. Theoretically, these suggested approaches are very promising and are
impressed with great merit but at the end of the day, it still boils down to the implementation
part and if no enforcement or implementation is done, legislation of ways and means to
eradicate pollution would merely be an exercise in futility.
As was mentioned in a previous chapter, one of the solutions for the problem of water
pollution coming from industrial sources is the application of “effluent standards”. Effluent
standards refer to any legal restriction or limitation on quantities, rates, and/or concentrations
or any combination thereof, of physical, chemical, or biological parameters of effluent, which
a person or point source is allowed to discharge into a body of water. The use of these
standards is already being practiced in many jurisdictions all over the world, including the
Philippines. In fact, the DENR, by virtue of Department Administrative Order 2008-20, has set
204 Polluted Runoff: Nonpoint Source Pollution. U.S. Environmental Protection Agency, Office of Water,
http://www.epa.gov/OWOW/NPS/ (last visited June 2012).
260
effluent standards to be followed by individuals and entities in order to minimize the pollutants
that are discharged into bodies of water in the country.
However, the employment of effluent standards must not be viewed in isolation. The
particular circumstances of every case must be taken into consideration before these
standards can be properly applied. The size, location, and carrying capacity of a specific
body of water must be considered before it can be decided that the application of effluent
standards achieves its desired objective. In addition, the number of existing factories,
industrial facilities, and other sources of pollution must also be looked into. Otherwise, the
application would be futile and water pollution will not be mitigated. For instance, if there are
many factories surrounding a certain lake, even if all the discharges made by these factories
are within the prescribed standards, the receiving body of water may still end up heavily
polluted.
Apart from the application of effluent standards, another way of resolving the problem of
water pollution according to experts is the application of “ambient standards” or such
standards which regulate the allowable amount of materials, as a concentration of pollutants,
in water. The standard is set to protect against anticipated adverse effects on human health
or welfare, wildlife, or the environment, with a margin of safety in the case of human health.
However, same as in the case of effluent standards, the problem with the application of
ambient standards is the fact that even if pollution in the bay can be eradicated at the
soonest possible time, it is still unknown how long said bay can recover and be brought to its
original state prior to the pollution. As a result, even with the best efforts on the part of the
government agencies concerned, it is still unknown to them if and when they can comply with
the Supreme Court order.
The Philippine Legal Framework on Solid Waste Management
The legal and institutional framework that we have in our jurisdiction, which is supposed to
work its way around the problems of pollution and improper waste management, is viewed by
several environmentalists, lawyers, and scholars alike as overly complicated as it tries (and
thereby fails) to address an even more complex environmental problem. The complexity of
the problem is brought about by various “unknowns,” which the legal and institutional
frameworks have not succeeded in resolving. These “unknowns” include the carrying
capacity of the body of water, the specific sources of pollution, and the particular
technological means applicable.
The special laws concerned with proper waste management and the eradication of pollution
are in need of more detailed and more specific provisions on how to unearth such unknowns.
While it is true that it is the duty of the implementing agencies to properly inform themselves
of whatever is not sufficiently provided by the statute because theoretically, said agencies
have the technical knowhow and the expertise for the effective enforcement of the provisions
of the special laws mandating them, there is still an apparent need of a solution that is based
on reasonable science. In other words, in order for these special laws to be properly
implemented, the same must be backed up with long years of scientific research and study.
How Culture Affects the Environment
The existence of practices that trigger pollution and the improper management of wastes is
greatly impacted by the specific culture and behavior of a community. For instance, Marawi
City, a predominantly Muslim city at the heart of Lanao del Sur in Mindanao, was declared by
the DENR as one of the dirtiest and most polluted cities in the Philippines. The question now
261
before us is this: despite the 99% Muslim population of Marawi City (Muslims being believed
to be very conscious of personal cleanliness and hygiene), why is it still so dirty? In order to
address this question, we should probe into the cultural and economic background of Marawi
as a city.
Marawi City lies along Lake Lanao, Mindanao’s largest freshwater lake. Years of unchecked
human and industrial activity in that area have resulted in poor water quality, diminished
aquatic resources, increased health risks etc. A 2007 study undertaken by the city LGU
reported Marawi’s volume of waste generation at 68,400 kilos per day, almost 70% of which
is biodegradable. Most lake dwelling communities depend on this freshwater body for food
and income, not to mention recreation. There are also reports of harmful algae blooms
(HABs), which appear as discolorations in the water. These are caused by excess of
nutrients (phosphorous, carbon or nitrogen) from agricultural and industrial activity, and can
have serious health consequences once they enter the food chain. 205 Moreover, the economy
of Marawi City is largely based on agriculture, trading and exporting. Most industries in the
city are agriculture-oriented. They include rice and corn, hollow block manufacturing,
goldsmithing, and saw milling. Hence, there’s no wondering why the city is heavily polluted.
However, as a step in institutionalizing efforts to address waste management problems in

Mindanao, Marawi City’s Muslim religious sector, through the Ulama, has committed to act in
support of the local government’s Integrated Solid Waste Management program in the
context of a solid waste management (SWM) orientation specially conducted for the group
last June 2009. The SWM orientation for Muslim religious leaders was initiated by the City
Government of Marawi and the Philippine Environmental Governance Project (EcoGov), a
project of the U.S. Agency for International Development (USAID) in partnership with the
Department of Environment and Natural Resources (DENR). Over 50 leaders from the ranks
of the Aleem, Aleema, and the city local government participated in this event, which
highlighted principles of Islamic environmental management, as culled from the
environmental sourcebook Al Khalifa (The Steward).
Al Khalifa promotes environmental management in Muslim communities, and has been

endorsed by the Assembly of the Darul Ifta of the Philippines. It delves into the religious
consciousness of Muslims in preaching that maintaining ecological balance is a duty of each
Muslim, being God’s khalifa (steward) on Earth. “We should be including waste management
in the topics of our weekly radio program for women, in the khutba (sermon during the Friday
congregational prayer), and broadcast this to the children of our madrasah (Arabic schools),”
Aleema Rocaya S. Guinal told other leaders present. The Muslim religious leaders gained an
appreciation of proper waste management practices, such as waste segregation,
composting, and reuse of materials. For the first time, concrete steps to these practices were
demonstrated in their midst, which boosted their eagerness to share firsthand information to
their community members and to initiate small-scale SWM programs in mosques and
madrasah.
In order to arrive at a sensible conclusion, let us look at several Muslim principles, as

embodied in the Koran, and see how these relate to the Muslims’ view on the protection of
the environment. Take this excerpt for example:
And you certainly know already the first form of creation: why then do you not
celebrate His praises?
See you the seed that you sow in the ground?
205 Philippine Environmental Governance Project Website, Marawi City, www.ecogov.com/marawicity (last
visited June 2012).
262
Is it you that cause it to grow, or are We the cause?

Were it our will, We could crumble it to dry powder, and you would be left in
wonderment,
[Saying], “We are indeed left with debts [for nothing];
“Indeed are we shut out [of the fruits of our labour].”
See you the water which you drink?
Do you bring it down [in rain] from the cloud or do We?
Were it our will, We could make it salt [and unpalatable]; then why do you not give
thanks?
See you the fire which you kindle?
Is it you who grow the tree which feeds the fire, or do We grow it?
It is We Who make it a means to remind [you of Us], and an article of comfort and
convenience for the denizens of deserts.
Then celebrate with praises the name of your Sustainer, the Supreme!
According to Yusuf Ali the message conveyed in this verse is the core of Revelation; it
explains the Hereafter: All things were created by God; are maintained by Him; and will go
back to Him. But the point of special interest to man is that man will also be brought back to
God and is answerable to Him, and to Him alone. He further says that the concept of Divine
unity, as was represented in the above verse, is the basis and essence of Islam. Divine unity
is apparent in the unity of humanity and of nature. God’s vice-regents on the earth, the
holders of His trust, are therefore primarily responsible for preserving the unity of creatures,
the integral wholeness of the world, the flora and fauna, and wildlife and natural environment.
Thus, “unity”, “trust”, and “responsibility” are the three basic concepts of Islam. These
principles are at the same time the chief pillars of the Islamic environmental ethic. They form
also the fundamental values taught by the Qur’an. Thus, when we read the Qur’an’s verses
about the earth, we find that they suggest strongly that it is for man a peaceful place, which
he should take heed of. Thus, the Qur’an draws our attention to nature and to the events that
occur in it.206
Let us also look at this other verse:
For that We pour forth water in abundance,

And We split the earth in fragments,
And produce therein corn,
And grapes and nutritious plants,
And olives and dates,
And enclosed gardens, dense with lofty trees,
And fruits and fodder —
For use and convenience to you and your cattle.
According to Dr. Ibrahim Ozdemir, in his interpretation of the above verse the earth is also
important with regard to the concept of mutual relations. Human beings are created from two
of its elements: earth and water. Thus, if man becomes alienated from the earth, he becomes
alienated from his very nature. He is not the lord and ruler of the earth; he is a humble
member of it. The superior qualities and faculties he possesses require not that he
irresponsibly consumes and destroys its beauties and resources, but that he acts in
awareness of his great responsibility towards them.207
As regards cleanliness, Islam indeed considers cleanliness to be one of the fundamentals of

belief. It thus makes a direct connection between belief and cleanliness. It is for this reason
206 Ibrahim Ozdemir, Ph. D., An Islamic Appraoch to the Environment, available at:
www.crescentlife.com/islamicapproach (last visited June 2012).
207 Id.
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that throughout the ages cleanliness has been one of the Muslims’ most striking
characteristics. In one chapter of the Koran, Prophet Muhammad said: “Cleanliness is half of
belief.” Some of the earliest verses revealed to him by God were:
O you wrapped up [in a mantle]!
Arise and deliver your warning!
And your Sustainer magnify!
And your garments keep free from stain!
And all abomination shun!
It may be noted here that by requiring the cleanliness of clothes, on the one hand physical
cleanliness is being emphasized, and by demanding that “abomination” is shunned, on the
other moral and spiritual purity are being underlined. Thus, in Islam, physical and moral and
spiritual cleanliness form an indivisible whole. Muslims should neglect neither the cleanliness
of their surroundings, houses, the roads they use, and parks and gardens, nor any sort of
moral and spiritual cleanliness.
It is clear then that Muslims are obliged to always be clean in every respect, both physically
and spiritually. According to Ozdemir, a Muslim who pays attention to physical cleanliness,
that is, who keeps his body, house, and surroundings clean, will not neglect the purity of his
heart and spirit and his moral purity. It is common knowledge that the most important
condition for protecting ourselves against illness is being clean and living in a clean
environment. According to Prophet Muhammad, what preventive medicine tells us is nothing
different to this. As the hereunder verse says:
God loves those who turn to Him constantly and He loves those who keep themselves
pure and clean.
Taking all the abovementioned principles into account, accompanied by efforts on the part of
the local government, Marawi City is possibly on its way to a cleaner and safer future.
The Acceptability of Technological Fixes
The Philippines has employed numerous means and has accepted various technological
fixes that aim to promote proper waste management and sanitation. Most of these means
and technological fixes were first introduced in other parts of the globe and now they have
made their way into our country. An example of these is the “ecological sanitation system
urine diverting dry toilet” (UDDT) or “eco-san bowls” for short, which was a project started in
2003 by Center for Advanced Philippine Studies (CAPS). This was a poverty alleviation
program under the Millennium Development Goal (MDG) whose objective was to propagate
eco-san in areas where water supply is a problem. The eco-san bowls, widely used in China,
Mexico, Nepal, South Africa and Sweden, hit the Philippines to replace the flush-type toilets
and to “prevent pollution and disease caused by human excreta.” 208
Dan Lapid, executive director of CAPS, said the eco-san approach is very simple. It is a
waste segregation principle anchored on the “don't mix” approach which is applied on human
waste. The eco-san bowl has two holes that separate the urine from the human excreta.
Once fell on the ground, these go into two separate containers. The excreta and the urine are
then transferred on designated storage areas. There is no need for a household to build a
septic tank, as supply of ash is required to cover the excreta.
208 Maria Congee Gomez, Eco-San Toilet Bowls Make Its Mark in the Philippines (2009).
264
Based on the findings of CAPS, the human excreta can be stored from 6 to 12 months while
the urine, high in nitrogen, phosphorous and potassium (NPK) and with proper mix of water,
at four weeks before it can be applied one month before harvest time.“But not all would
welcome the eco-san approach,” averred Dan Lapid, enumerating the required preparations
leading to it.
On top of all, are rigid series of orientation for the beneficiaries and local government officials.
The seminars are focused on changes in attitude, sanitation habits and views regarding
human excreta. Lapid said everyone has gotten used to the 'flush-and-forget' style that the
eco-san may not be a welcome thing. He stressed that a major component of the orientation
is to develop a change in attitude toward one’s human excreta. At that time, Lapid reported
the eco-san success story of San Fernando City, La Union. Mayor Mary Jane Ortega initiated
eco-san to her constituents after she learned of it through files of winning non-government
organization projects.
The mayor, known for her pro-environment stand, inquired about the project and asked
CAPS to bring in some eco-san bowls to the city. She said she would install them in areas
where communities are not dependent on water supply.
Intensive seminars ensued after the mayor’s inquiry and by the end of the orientation, four
hundred (400) eco-san bowls were installed in the city's urban poor and coastal areas. Lapid
recalled the people’s initial reaction was rejection. “They were not used to the smell of human
excreta. Thus, they all wanted led to avoid the toilets which were delivered in their areas.” But
governance in San Fernando was something this city was proud of. Its locals have that
sprinkling of complete trust on their mayor that did not take long to shed their apprehensions
on the new approach.209
However, commercial toilet bowl manufacturers are not enthusiastic in making eco-san bowls
even if it was stressed that this would be on top of the standards. The random interviews with
standard bowl manufacturers stressed only one thing – absence of niche market in the urban
areas. It did not help to say that they would be pushing for advocacy to help the environment,
as preoccupation was solely on revenues.
Another means currently employed in the Philippines in order to alleviate the problems
caused by improper management and disposal of solid wastes is waste segregation.
Segregation of wastes is done by separating one’s trash into biodegradable and non-
biodegradable, thus, in effect, there will be two garbage bins which would contain the
segregated trash. Creative modifications have also been done on the simple segregation into
biodegradable and non-biodegradable. Some institutions would classify trash into three
categories, namely, paper, plastics, and cans. Others would categorize them into recyclables
and non-recyclables. No matter what system of segregation is employed, the important thing
is that the objective of proper waste management is achieved.
Local Government Units in Metro Manila have already employed waste segregation in their
garbage collection systems. In Quezon City, for example, Mayor Herbert Bautista orders QC
residents to segregate their trash first as a prerequisite before the garbage collector gets
them. In this manner, people are forced to properly segregate the garbage they produce;
otherwise, their homes will be filled with uncollected trash. If there is one underlying problem
in the employment of waste segregation is the fact that even though the trash are segregated
at the first instance, i.e., in the homes, offices, commercial establishments, these segregated
trash sometimes still get commingled with each other when they reach the dumpsite.
Whenever this happens, the purpose of waste segregation is defeated.
209 Id.
265
Another means of disposing solid wastes which is widely practiced in the Philippines but is
frowned upon by most environmentalists is backyard burning. Backyard burning occurs
when people burn household trash on their own property. Typical household trash burned
consists of items that would typically be sent to a landfill or recycled. This includes paper,
cardboard, food scraps, plastics, yard trimmings, and leaves. Burning can occur in a burn
barrel, usually a 55-gallon drum, a homemade burn box, wood stove, outdoor boiler, or open
pit. In the past, the trash burned by residents, especially those in rural areas, consisted
mainly of paper and wood. The makeup of trash has changed within the past 50 years and
now includes coated paper, plastics, and other materials manufactured by humans.
The reason why backyard burning is not widely-accepted by environmentalists, as well as by

a substantial number of citizens, is quite obvious. It is because backyard burning can emit
pollutants such as hazardous air pollutants (HAPs), particle pollution, and volatile organic
compounds (VOCs). These pollutants can contribute to health problems that may affect
homeowners, their families, their neighbors, and the community. While national and local
regulations limit the amount of backyard burning, dangerous releases of HAPs can occur if a
homeowner does not comply with these regulations. Burning trash produces many pollutants,
including dioxins, formaldehyde and hexachlorobenzene.
Regulation of Open Dumpsites
Last September 6, 2011, DENR Secretary Ramon Paje announced that four hundred thirty-
five (435) local government units (LGUs) around the country continue to maintain open and
controlled dumpsites. In a statement, Paje said that the DENR is already working with the
Office of the Ombudsman and the Department of Interior and Local Government (DILG) to
make sure that these LGUs would comply with Republic Act 9003 or the Ecological Solid
Waste Management Act, which set the deadline for the closure of open and controlled
dumpsites in 2004. “We are already working closely with DILG and the Ombudsman to
resolve this issue of low, if not noncompliance of local chief executives, to the requirements
of the Ecological Solid Waste Management Act,” Paje explained to members of Ecowaste
Coalition, which staged a protest at the DENR office in Quezon City yesterday.
The coalition, which pushes for the 3Rs – reduce, reuse and recycle – in waste management,
is calling for the immediate closure and rehabilitation of all dumpsites in the country.This
came in the wake of the deadly collapse of an open dumpsite in Baguio City at the height of
Typhoon "Mina," which left several people dead and displaced.Paje said that the DENR has
already issued final notices to the 435 LGUs and the Office of the Ombudsman has initially
issued subpoena duces tecum to the LGUs. He said that the twin moves are “a step closer to
filing administrative charges against noncompliant LGU officials under RA 7160 or the Local
Government Code, and send out a signal to those who continue to ignore the risks to their
own constituents’ health and property.”210
An “open dumpsite” is a land disposal site at which solid wastes are disposed of in a manner
that does not protect the environment, is susceptible to open burning, and is exposed to the
elements, disease vectors and scavengers. These unplanned heaps of uncovered wastes,
often burning and surrounded by pools of stagnated polluted water, rat and fly infestations
with domestic animals roaming freely and families of scavengers picking through the wastes
is not only an eyesore but a great environmental hazard. As a default strategy for municipal
solid waste management, open dumps involve indiscriminate disposal of waste and limited
210 Philippine Star, 435 Lgus Operating Dumpsites Face Sanctions (Sept. 6, 2011), www.philstar.com/lgu-
opendumpsite (last visited June 2012).
266
measures to control operations, including those related to the environmental impacts of

landfills. Very often, open dumping sites are swamp lands or low-lying areas with the wastes
being used for reclamation. Liners are rarely used and little consideration is given to the
water table and groundwater pollution and/or gas migration.
Problems of shortage of cover, lack of leachate collection and treatment, inadequate

compaction, poor site design, and many scavengers working at the site are common. The
high percentage of organics, combined with much plastic, which forms layers when
compacted, contributes to the build-up of methane gases at dumps. Fires often break out and
workers are made ill by the gases. In cities where plastic shopping bags are used to put out
wastes for collection, waste pickers sometimes set refuse on fire in order to recover valuable
inorganic items. Spontaneous fires also break out in dumps. This greatly adds to the air
pollution from dumps. The roads leading to dumps and those on dumps themselves are often
elementary, becoming impassable in the wet season. Since most large dumps have
hundreds of extra workers in the form of waste pickers, and the municipal workers are not
provided with protective gloves, the health risks at dumps are much higher than in sanitary
landfills in industrialized countries. These workers are exposed to risks from human feces,
slaughterhouse wastes, landfill gases, toxic dust, infectious biomedical wastes, snakes,
scorpions, broken glass, and explosions. Thus, these dump sites are essentially uncontrolled,
creating considerable health, safety, and environmental problems.
Solid waste management services in most of the Countries comes a poor third in municipal
priorities, after water supply and health services. However they are under pressure from their
own legislation to move away from the current disposal practices of open dumping to sanitary
landfilling. Such a change is unlikely to occur in the nearest future due to limitations on
finance, shortage of technical resources and lack of institutional arrangements. 211 It is
advisable to have small incremental improvements in landfill design and operation rather than
an attempt to make a single large technological leap. This approach should also match the
affordability and sustainability considerations.
Making Money Out of Trash
On July 2000, tragedy literally befell a slum community in Payatas, Quezon City when a hill of
garbage overlooking the area caved in, killing two hundred eighteen (218) people and leaving
three hundred (300) families homeless. Despite this, many people still consider Payatas as a
land of opportunities, especially those who make money out of scavenging and selling trash.
Every day, before dawn breaks over Quezon City, a small army of human scavengers make
their way from the nasty slums they call home to the gates of the city’s biggest garbage
dump. Armed with headlamps and wicker baskets they make the slow walk to the top of the
Payatas dumpsite. Rising some 30 to 40 meters (98 to 131 feet) from the valley floor the
mound of garbage covers 10 hectares and takes in sweeping views of the surrounding
countryside.212 It also overlooks the old Payatas dumpsite, which was closed at the end of
2000 because of the landslide.
Just after four in the morning, the first trucks start to arrive carrying their precious cargo,
which will be picked over by teams of scavengers looking for anything they can recycle. Over
the next 17 hours some 430 to 450 garbage trucks will deposit an estimated 1,200 tons of
garbage at the site. For the 30,000 residents who live around the garbage-mountain it is their
only source of income. The teams of scavengers who pick over each truckload of refuse are
211 Michael Pugh, Landfill Technology in Developing Countries, Waste Management 58-59 (1999).
212 Karl Wilson, A Mountain of Opportunity for Payatas Scavengers, Manila Times (March 6, 2006).
267
lucky if they make one hundred pesos a day for their efforts. Down in the slums cottage
industries thrive as thousands of people, including children, sort through baskets brought
down from the mound. Rusted inner springs from discarded mattresses are used as fences
around shacks made from scrap pieces of wood and iron sheeting. The fences are used to
dry paper and plastic for recycling.
Foam rubber is washed and dried before being glued in strips to make mattresses. Covers
are made for around P12 each and the finished product sold in local markets for P100 or
more. A broken concrete bridge crosses a narrow river where boys wash plastic in putrid
water. It is dried and bundled up and sold for recycling. In one yard are piles of discarded
backpacks that will be washed, repaired and later sold in markets in the poorer districts of
Metro Manila. Drinking water is brought in by truck daily and sold to residents and some
dwellings have electricity.213
In 1993, the Vincentian Missionaries Social Development Foundation, under the leadership of
Father Norberto Carcellar and the late Brother Oquet Anayan, started a Savings and Credit
Program for the scavengers of the Payatas dumpsite. At that time, the dump occupied only
five of its present 20 hectares. The Foundation’s program catered mainly to women, using a
modified Grameen Bank approach that emphasized savings rather than outside funding as a
source of capital. The Foundation organized the borrowers into a people’s organization, the
Lupang Pangako Urban Poor Association, Inc. (LUPAI), registered in June 1997 with the
Securities and Exchange Commission of the Philippines. 214 From an initial seed capital of one
hundred thousand pesos (PhP100,000; around US$ 2,000), donated by a government charity
agency in 1993, LUPAI now manages around PhP15 million (US$ 300,000) in savings
accounts for its 7,000 members. Today, many LUPAI members engage in microenterprises
that provide goods and services to the scavengers and other residents of the area
surrounding the dumpsite.
Another charity group which has installed livelihood projects in Payatas is the Mother Ignacia
National Social Apostolate Center (MINSAC). There are two (2) operating projects which
were opened by MINSAC in the area: the Basahan Project and the Sewing Project. 215 In
order to make these projects sustainable, a strategy called “subcontracting” was used.
Subcontracting is done when a company (called contractor) places an order of other
companies (called subcontractor) for the production of parts, and components to be
incorporated into a product to be sold by the contractor. Hence, with this strategy, the sewers
and Basahan workers do the labor and they are being paid for it. In a few months of
operation, these projects already created an impact on the families who are being involved in
the operation. According to them, the amount that they are earning from the projects
somehow helps them in sustaining the families’ basic needs. Also because of it their skills in
sewing and making different rugs are humanizing. They are not just earning but they are also
learning.
213 Id.
214 Eugenio Gonzales, From Wastes to Assets: The Scavengers of Payatas (2003).
215 Eugenio Gonzales, From Wastes to Assets: The Scavengers of Payatas (2003).
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Chapter Ten
Industrial Pollution
A few years ago, DENR ordered the temporary closure of a certain recycling plant in Quezon
Province on suspicion that the plant operators were dumping toxic and hazardous wastes
into the surrounding land and water bodies. Inside the compound, DENR inspectors
discovered numerous steel and plastic drums piled on top of each other, plastic square bins
containing various kinds of toxic wastes and stacks of contaminated rags. Moreover, in one
area of the plant premises, workers wearing gas masks were seen putting hardened
chemical waste in a sack filled with sawdust and sand. The closure of the plant was
prompted by the admission of a certain persons who were caught dumping toxic wastes in
several sites in the province. They admitted that the wastes originated from the said
recycling plant’s compound.
According to the persons caught, the drums were being given to them for free by a person
who works at the plant, upon condition that they will be the one to get rid of its contents. The
couple said they accepted the offer because of financial opportunities after they were
assured that the drum contents will not harm them as long as they were buried under the
ground. Some of the wastes, according to the couple, were even buried by them in their own
backyard. The couple further disclosed that once they dispose of the drum contents, they sell
the steel drum, which weighs 18 kg. each at PhP18 per kg. The plastic drums cost PhP250
up to PhP500 each when empty. The couple claimed innocence when informed that what
they had been doing was against the law. The plant officials, on the other hand, denied being
associated with the couple, as well as the latter’s allegations against their company.
The dumps were found littered with hundreds of plastic and steel drums containing different
kinds of toxic chemical waste, some of them spilling out into creeks and farms. The
chemicals were being discharged into the dumping ground and then covered when full. Some
of the containers have labels that read “hazardous waste” and have skull and bone signs on
them.
In order to completely understand the policy of the State against substances and wastes that
are harmful to health and the environment, R.A. 6969 defines for us what “hazardous
substances” and “hazardous wastes” are. According to the law, “hazardous substances” shall
refer to substances which present either:
(1) short-term acute hazards, such as acute toxicity by ingestion, inhalation or skin
absorption, corrosivity or other skin or eye contact hazards or the risk of fire or explosion; or
(2) long-term environmental hazards, including chronic toxicity upon repeated exposure,
carcinogenicity (which may in some cases result from acute exposure but with a long latent
period), resistance to detoxification process such a biodegradation, the potential to pollute
underground or surface waters, or aesthetically objectionable properties such as offensive
odors.
On the other hand, “hazardous wastes” shall be defined as substances that are without any
safe commercial, industrial, agricultural or economic usage and are shipped, transported or
brought from the country of origin for dumping or disposal into or in transit through any part of
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the territory of the Philippines. The term “hazardous wastes” shall also refer to by-products,
side-products, process residues, spent reaction media, contaminated plant or equipment or
other substances from manufacturing operations, and as consumer discards of manufacture
products.
Based on the definitions provided by the law, the adverse effects of these substances and
wastes both to human health and the environment are undeniable.
Rights and Obligations Created
A number of rights and obligations are created by the R.A. with respect to specific persons
and/or entities concerned. As to manufacturers, processors, or importers of ‘new’ chemical
substances or mixtures, before such chemical substance or mixture can be manufactured,
processed, or imported for the first time, the following information shall be submitted: the
name of the chemical substance or mixture, its chemical identity and molecular structure,
proposed categories of use, an estimate of the amount to be manufactured, processed or
imported; processing and disposal thereof, and any test data related to health and
environmental effects which the manufacturers, processors or importers have. However, if
such substances or mixtures are to be produced in small quantities solely for experimental or
research and developmental purposes and are to exist temporarily and which have no human
or environmental exposure such as those which exist as a result of chemical reaction in the
manufacture or processing of a mixture of another chemical substance, their manufacturers,
processors, or importers shall be exempt from the abovementioned submission.
Manufacturers, processors, or importers shall also be required to have their chemical

substances or mixtures tested and shall shoulder the costs of such testing upon finding by
the DENR: (1) of a reason to believe that the chemical substances or mixture may present an
unreasonable risk to health or the environment or there may be substantial human or
environmental exposure thereto; and (2) that there is insufficient data and experience for
determining or predicting the health and environmental effects of the chemical substance and
the testing of the chemical substance or mixture is necessary to develop such data.
With respect to the public in general, it shall have the right of access to records, reports, or
information concerning chemical substances and mixtures including safety data submitted,
data on emission or discharge into the environment, and such documents shall be available
for inspection or reproduction during normal business hours. However, the DENR may
consider a record, report or information or particular portions thereof confidential and may not
be made public when such would divulge trade secrets, production or sales figures or
methods, production or processes unique to such manufacturer, processor or distributor, or
would otherwise tend to affect adversely the competitive position of such manufacturer,
processor or distributor.
In addition to the obligations created by the law as mentioned in the preceding paragraphs,
Sec. 13 of the Act explicitly prohibits the following acts: (a) to knowingly use a chemical
substance or mixture which is imported, manufactured, processed or distributed in violation of
the Act or its implementing rules and regulations or orders; (b) failure or refusal to submit
reports, notices or other information, access to records, as required by the Act, or permit
inspection of establishment where chemicals are manufactured, processed, stored or
otherwise held; (c) failure or refusal to comply with the pre-manufacture and pre-importation
requirements; and (d) to cause, aid or facilitate, directly or indirectly, in the storage,
importation, or bringing into Philippine territory, including its maritime economic zones, even
in transit, either by means of land, air or sea transportation or otherwise keeping in storage
any amount of hazardous and nuclear wastes in any part of the Philippines.
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Penal Provisions
According to Sec. 14 of the Act, the penalty for any person who violates Sec. 13 (a), (b), and
(c) is imprisonment of six (6) months and one day to six (6) years and one day and a fine
ranging from Six hundred pesos (PhP600.00) to Four thousand pesos (PhP4,000.00) and
such person shall not be covered by the Probation Law. If the offender is a foreigner, he or
she shall be deported and barred from any subsequent entry into the Philippines after serving
his or her sentence. In case the violation was committed by a partnership, corporation,
association or any juridical person, the partner, president, director or manager who shall
consent to or shall knowingly tolerate such violation shall be directly liable and responsible for
the act of the employee and shall be criminally liable as a co-principal. If the offender is a
government official or employee, he or she shall, in addition to the abovementioned
penalties, be deemed automatically dismissed from office and permanently disqualified from
holding any elective or appointive position.
On the other hand, the penalty of imprisonment of twelve (12) years and one day to twenty
(20) years, shall be imposed upon any person who shall violate section 13 (d) of the Act. If
the offender is a foreigner, he or she shall be deported and barred from any subsequent entry
into the Philippines after serving his or her sentence. In the case of corporations or other
associations, the penalties mentioned in the few preceding paragraphs shall be imposed
upon the managing partner, president or chief executive in addition to an exemplary damage
of at least Five hundred thousand pesos (PhP500,000.00). If it is a foreign firm, the director
and all officers of such foreign firm shall be barred from entry into the Philippines, in addition
to the cancellation of its license to do business in the Philippines. If the offender is a
government official, the same rule set forth in the preceding paragraph shall apply.
Furthermore, the law states that every penalty imposed for the unlawful importation, entry,
transport, manufacture, processing, sale or distribution of chemical substances or mixtures
into or within the Philippines shall carry with it the confiscation and forfeiture in favor of the
Government of the proceeds of the unlawful act and instruments, tools or other
improvements including vehicles, sea vessels, and aircrafts used in or with which the offense
was committed. Chemical substances so confiscated and forfeited by the Government at its
option shall be turned over to the Department of Environment and Natural resources for
safekeeping and proper disposal.
In addition, the person or firm responsible or connected with the bringing or importation into
the country of hazardous or nuclear wastes shall be under obligation to transport or send
back said prohibited wastes. Any and all means of transportation, including all facilities and
appurtenances that may have been used in transporting to or in the storage in the Philippines
of any significant amount of hazardous or nuclear wastes shall at the option of the
government be forfeited in its favor.
Administrative Accountability
Moreover, in all cases of violations of the Act, it shall be within the authority of the DENR
Secretary to impose an administrative fine of not less than PhP10,000 but not more than
PhP50,000 upon any person or entity found guilty thereof.
General Powers and Responsibilities of the DENR
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R.A. 6969 expressly enumerates the functions, powers, and responsibilities of the DENR in
relation to the regulation and control of hazardous substances and wastes. Pursuant to one
of the Act’s general objectives, first among DENR’s responsibilities is to keep an updated
inventory of chemicals that are presently being manufactured or used, indicating, among
others, their existing and possible uses, quality, test data, names of firms manufacturing or
using them, and such other information as the Secretary may consider relevant to the
protection of health and the environment. Such responsibility is in consonance with one of the
fundamental aims of the law, which is to identify the respective liabilities of persons and
entities who shall act in violation of its provisions and to impose upon them specific
obligations relative to the management and control of hazardous substances and wastes.
Moreover, it shall be within the powers of the DENR to require chemical substances and
mixtures that present unreasonable risk or injury to health or to the environment to be tested
before they are manufactured or imported for the first time, as well as chemical substances
that are already being manufactured, and to evaluate the characteristics of such chemicals
after they are tested to determine their toxicity and the extent of their implications on health
and the environment.
It shall also be the function of the DENR to conduct inspection of any establishment in which
chemicals are manufactured, processed, stored or held before or after their commercial
distribution and to make recommendations to the proper authorities concerned, upon finding
of particular irregularities in the course of the activities in which these establishments are
usually engaged. Another power vested in the DENR by the Act is the authority to enter into
contracts and make grants for research, development, and monitoring of chemical
substances and mixtures, in pursuance of the Act’s long-term objective, which is to be able to
achieve advancements in research and study for the purpose of saving the environment from
possible destruction and to protect the people’s health and general welfare. It shall also be
well within the DENR’s authority to confiscate or impound chemicals found not falling within
said acts cannot be enjoined except after the chemicals have been impounded and to
monitor and prevent the entry, even in transit, of hazardous wastes and their disposal into the
country. Furthermore, it shall be the corollary duty of the DENR to disseminate information
and conduct educational awareness campaigns on the effects of chemical substances,
mixtures and wastes on health and environment, which is once again in accordance with one
of the Act’s general objectives, which is to educate the public about the hazards and risks
brought by toxic substances.
In addition, the Implementing Rules and Regulations of RA 6969 (DENR Administrative Order
No. 1992-29) provides that the Secretary of DENR may validly delegate his powers and
functions and/or appoint an Environmental Protection Officer. The Secretary shall have the
power to amend or revoke said delegated authorities.
Functions of Other Concerned Agencies
The law also grants the DENR the right to call on any department, bureau, office, agency,
state university or college, and other instrumentalities of the government for assistance in the
form of personnel, facilities, and other resources as the need arises in the discharge of its
functions. As a matter of fact, the law creates an “Inter-Agency Technical Advisory Council”
attached to the DENR which shall be composed of the DENR Secretary as head of the
Council and officials of other government agencies as members. Among these officials are
the Secretary of Health, Secretary of Science and Technology, Secretary of National
Defense, Secretary of Trade and Industry, Secretary of Foreign Affairs, and Secretary of
Labor and Employment. The basic functions of the Council include assisting the DENR in the
preparation and updating of the inventory of chemical substances and mixtures that fall within
the coverage of the Act and conducting the preliminary evaluation of the characteristics of
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chemical substances and mixtures to determine their toxicity and effects on health and the
environment and make the necessary recommendations to the DENR.
10.4 The Clean Air Act
The Clean Air Act, or Republic Act no. 8749, expressly recognized certain rights of citizens
with a significant pronouncement to the right to breathe clean air. It has also identified the
sources of pollution and provided for their emission standards.
SEC. 4. Recognition of Rights. - Pursuant to the above-declared principles, the
following rights of citizens are hereby sought to be recognized and the State
shall seek to guarantee their enjoyment:
[a] The right to breathe clean air;
[b] The right to utilize and enjoy all natural resources according to the principles
of sustainable development;
[c] The right to participate in the formulation, planning, implementation and
monitoring of environmental policies and programs and in the decision-making
process;
[d] The right to participate in the decision-making process concerning
development policies, plans and programs projects or activities that may have
adverse impact on the environment and public health;
[e] The right to be informed of the nature and extent of the potential hazard of
any activity, undertaking or project and to be served timely notice of any
significant rise in the level of pollution and the accidental or deliberate
release into the atmosphere of harmful or hazardous substances;
[f] The right of access to public records which a citizen may need to exercise his
or her rights effectively under this Act;
[g] The right to bring action in court or quasi-judicial bodies to enjoin all activities
in violation of environmental laws and regulations, to compel the rehabilitation
and cleanup of affected area, and to seek the imposition of penal sanctions
against violators of environmental laws; and
[h] The right to bring action in court for compensation of personal damages
resulting from the adverse environmental and public health impact of a project
or activity.
xxx
SEC. 5. Definitions.- As used in this Act:
a) “Air pollutant” means any matter found in the atmosphere other than oxygen,
nitrogen, water vapor, carbon dioxide, and the inert gases in their natural or
normal concentrations, that is detrimental to health or the environment, which
includes, but not limited to smoke, dust, soot, cinders, fly ash, solid particles of
any kind, gases, fumes, chemical mists, steam and radioactive substances;
b) “Air pollution” means any alteration of the physical, chemical and biological
properties of the atmospheric air, or any discharge thereto of any liquid,
gaseous or solid substances that will or is likely to create or to render the air
resources of the country harmful, detrimental, or injurious to public health,
safety or welfare or which will adversely affect their utilization for domestic,
commercial, industrial, agricultural, recreational, or other legitimate purposes;
xxx
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f) “Department” means the Department of Environment and Natural Resources;

xxx
SEC. 16. Permits.- Consistent with the provisions of this Act, the Department
shall have the authority to issue permits as it may determine necessary for the
prevention and abatement of air pollution.
Said permits shall cover emission limitations for the regulated air pollutants to
help attain and maintain the ambient air quality standards. These permits shall
serve as management tools for the LGUs in the development of their action
plan.
SEC. 17. Emission Quotas.- The Department may allow each regional industrial
center that is designated as special airshed to allocate emission quotas to
pollution sources within its jurisdiction that qualify under an environmental
impact assessment system programmatic compliance program pursuant to the
implementing rules and regulations of Presidential Decree No. 1586.
SEC. 18. Financial Liability for Environmental Rehabilitation.- As part of the
environmental management plan attached to the environmental compliance
certificate pursuant to Presidential Decree No. 1586 and rules and regulations
set therefor, the Department shall require program and project proponents to
put up financial guarantee mechanisms to finance the needs for emergency
response, clean-up rehabilitation of areas that may be damaged during the
program or project’s actual implementation. Liability for damages shall continue
even after the termination of a program or project, where such damages are
clearly attributable to that program or project and for a definite period to be
determined by the Department and incorporated into the environmental
compliance certificate.
Financial liability instruments may be in the form a trust fund, environmental
insurance, surety bonds, letters of credit, as well as self-insurance. The choice
of the guarantee instruments shall furnish the Department with evidence of
availment of such instruments.
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SEC. 19. Pollution From Stationary Sources.- The Department shall, within two
(2) years from the effectivity of this Act, and every two (2) years thereafter,
review, or as the need therefore arises, revise and publish emission standards,
to further improve the emission standards for stationary sources of air pollution.
Such emission standards shall be based on mass rate of emission for all
stationary source of air pollution based on internationally accepted standards,
but not be limited to, nor be less stringent than such standards and with the
standards set forth in this section. The standards, whichever is applicable, shall
be the limit on the acceptable level of pollutants emitted from a stationary
source for the protection of the public’s health and welfare.
xxx
Pursuant to Sec. 8 of this Act, the Department shall prepare a detailed action
plan setting the emission standards or standards of performance for any
stationary source the procedure for testing emissions for each type of pollutant,
and the procedure for enforcement of said standards.
Existing industries, which are proven to exceed emission rates established by
the Department in consultation with stakeholders, after a thorough, credible and
transparent measurement process shall be allowed a grace period of eighteen
(18) months for the establishment of an environmental management system
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and the installation of an appropriate air pollution control device: Provided, That
an extension of not more than twelve (12) months may be allowed by the
Department on meritorious grounds.
SEC. 20. Ban on Incineration.- Incineration, hereby defined as the burning of
municipal, biomedical and hazardous waste, which process emits poisonous
and toxic fumes is hereby prohibited; Provided, however, That the prohibition
shall not apply to traditional small-scale method of community/neighborhood
sanitation “siga”, traditional, agricultural, cultural, health, and food preparation
and crematoria; Provided, further, That existing incinerators dealing with a
biomedical wastes shall be out within three (3) years after the effectivity of this
Act; Provided, finally, that in the interim, such units shall be limited to the
burning of pathological and infectious wastes, and subject to close monitoring
by the Department.
Local government units are hereby mandated to promote, encourage and
implement in their respective jurisdiction a comprehensive ecological waste
management that includes waste segregation, recycling and composting.
With due concern on the effects of climate change, the Department shall
promote the use of state-of-the-art, environmentally-sound and safe non-burn
technologies for the handling, treatment, thermal destruction, utilization, and
disposal of sorted, unrecycled, uncomposted, biomedical and hazardous
wastes.
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SEC. 21. Pollution from Motor Vehicles.- a) The DOTC shall implement the
emission standards for motor vehicles set pursuant to and as provided in this
Act. To further improve the emission standards, the Department shall review,
revise and publish the standards every two (2) years, or as the need arises. It
shall consider the maximum limits for all major pollutants to ensure substantial
improvement in air quality for the health, safety and welfare of the general
public.
xxx
b) The Department, in collaboration with the DOTC, DTI and LGUs, shall
develop an action plan for the control and management of air pollution from
motor vehicles consistent with the Integrated Air Quality Framework. The DOTC
shall enforce compliance with the emission standards for motor vehicles set by
the Department. The DOTC may deputize other law enforcement agencies and
LGUs for this purpose. To this end, the DOTC shall have the power to:
[1] Inspect and monitor the emissions of motor vehicles;
[2] Prohibit or enjoin the use of motor vehicles or a class of motor vehicles in
any area or street at specified times; and
[3] Authorize private testing emission testing centers duly accredited by the DTI.
c) The DOTC, together with the DTI and the Department, shall establish the
procedures for the inspection of motor vehicles and the testing of their
emissions for the purpose of determining the concentration and/or rate of
pollutants discharged by said sources.
d) In order to ensure the substantial reduction of emissions from motor vehicles,
the Department of Trade and Industry (DTI), together with the DOTC and the
Department shall formulate and implement a national motor vehicle inspection
and maintenance program that will promote efficient and safe operation of all
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motor vehicles. In this regard, the DTI shall develop and implement standards
and procedures for the certification of training
institutions, instructors and facilities and the licensing of qualified private service
centers and their technicians as prerequisite for performing the testing,
servicing, repair and the required adjustment to the vehicle emission system.
The DTI shall likewise prescribe regulations requiring the disclosure of
odometer readings and the use of tamper-resistant odometers for all motor
vehicles including tamper-resistant fuel management systems for the effective
implementation of the inspection and maintenance program.
SEC. 22. Regulation of All Motor Vehicles and Engines.- Any imported new or
locally-assembled new motor vehicle shall not be registered unless it complies
with the emission standards set pursuant to this Act, as evidenced by a
Certificate of Conformity (COC) issued by the Department.
Any imported new motor vehicle engine shall not be introduced into commerce,
sold or used unless it
complies with emission standards set pursuant to this Act.
Any imported used motor vehicle or rebuilt motor vehicle using new or used
engines, major parts or
components shall not be registered unless it complies with the emission
standards.
In case of non-compliance, the importer or consignee may be allowed to modify
or rebuild the vehicular engine so it will be in compliance with applicable
emission standards.
No motor vehicle registration (MVR) shall be issued unless such motor vehicle
passes the emission testing requirement promulgated in accordance with this
Act. Such testing shall be conducted by the DOTC or its authorized inspection
centers within sixty (60) days prior to date of registration.
The DTI shall promulgate the necessary regulations prescribing the useful life of
vehicles and engines including devices in order to ensure that such vehicles will
conform to the emissions which they were certified to meet. These regulations
shall include provisions for ensuring the durability of emission devices.
SEC. 23. Second-Hand Motor Vehicle Engines.- Any imported second-hand
motor vehicle engine shall not be introduced into commerce, sold or used
unless it complies with emission standards set pursuant to this Act.
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SEC. 24. Pollution from smoking.- Smoking inside a public building or an
enclosed public place including public vehicles and other means of transport or
in any enclosed area outside of one’s private residence, private place of work or
any duly designated smoking area is hereby prohibited under this Act. This
provision shall be implemented by the LGUs.
SEC. 25. Pollution from other mobile sources.- The Department, in coordination
with appropriate agencies, shall formulate and establish the necessary
standards for all mobile sources other than those referred to in Sec. 21 of this
Act. The imposition of the appropriate fines and penalties from these sources
for any violation of emission standards shall be under the jurisdiction of the
DOTC.
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276
SEC. 26. Fuels and Additives.- Pursuant to the Air Quality Framework to be
established under Section 7 of this Act, the Department of Energy (DOE), co-
chaired by the Department of Environment and Natural Resources (DENR), in
consultation with the Bureau of Product Standards (BPS) of the DTI, the DOST,
the representatives of the fuel and automotive industries, academe and the
consumers shall set the specifications for all types of fuel and fuel-related
products, to improve fuel composition for increased efficiency and reduced
emissions: Provided, however, that the specifications for all types of fuel and
fuel-related products set-forth pursuant to this
section shall be adopted by the BPS as Philippine National Standards (PNS).
The DOE shall also specify the allowable content of additives in all types of
fuels and fuel-related products. Such standards shall be based primarily on
threshold levels of health and research studies. On the basis of such
specifications, the DOE shall likewise limit the content or begin that phase-out
of additives in all types of fuels and fuel-related products as it may deem
necessary. Other agencies involved in the performance of this function shall be
required to coordinate with the DOE and transfer all documents and information
necessary for the implementation of this provision.
Consistent with the provisions of the preceding paragraphs under this section, it
is declared that:
a) not later than eighteen (18) months after the effectivity of this Act, no person
shall manufacture, import, sell, supply, offer for sale, dispense, transport or
introduce into commerce unleaded premium gasoline fuel which has an anti-
knock index (AKI) of not less that 87.5 and Reid vapor pressure of not more
than 9 psi. Within six (6) months after the effectivity of this Act, unleaded
gasoline fuel shall contain aromatics not to exceed forty-five percent (45%) by
volume and benzene not to exceed four percent (4%) by volume; Provided, that
by year 2003, unleaded gasoline fuel should contain aromatics not to exceed
thirty-five percent (35%) by volume and benzene not to exceed two percent
(2%) by volume;
b) not later than eighteen (18) months after the effectivity of this Act, no person
introduce into commerce automotive diesel fuel which contains a concentration
of sulfur in excess of 0.20% by weight with a cetane number of index of not less
than forty-eight (48): Provided, That by year 2004, content of said sulfur shall be
0.05% by weight; and
c) not later than eighteen (18) months after the effectivity of this Act, no Person
introduce into commerce industrial diesel fuel which contains a concentration of
sulfur in excess of 0.30% (by weight).
Every two (2) years thereafter or as the need arises, the specifications of
unleaded gasoline and of automotive and industrial diesel fuels shall be
reviewed and revised for further improvement in formulation and in accordance
with the provisions of this Act.
The fuels characterized above shall be commercially available. Likewise, the
same shall be the reference fuels for emission and testing procedures to be
established in accordance with the provisions of this Act.
Any proposed additive shall not in any way increase emissions of any of the
regulated gases which shall include, but not limited to carbon monoxide,
277
hydrocarbons, and oxides of nitrogen and particulate matter, in order to be

approved and certified by the Department.
SEC. 27. Regulation of Fuels and Fuel Additives.- The DOE, in coordination
with the Department and the BPS, shall regulate the use of any fuel or fuel
additive. No manufacturer, processor or trader of any fuel or additive may
import, sell, offer for sale, or introduce into commerce such fuel for additive
unless the same has been
registered with the DOE. Prior to registration, the manufacturer, processor or
trader shall provide the DOE with the following relevant information:
a) Product identity and composition to determine the potential health effects of
such fuel additives;
b) Description of the analytical technique that can be used to detect and
measure the additive in any fuel;
c) Recommended range of concentration; and
d) Purpose in the use of the fuel and additive.
XXX
SEC. 34. Lead Agency.- The Department, unless otherwise provided herein,
shall be the primary government agency responsible for the implementation and
enforcement of this Act. To be more effective in this regard, The Department’s
Environmental Management Bureau (EMB) shall be converted from a staff
bureau to a line bureau for a period of no more than two (2) years, unless a
separate, comprehensive environmental management agency is created.
In the case of Henares v. LTFRB, the Supreme Court held that the Clean Air Act is a general
mandate, which does not impose the use of Public Utility Vehicles of any particular kind of
fuel.
HENARES vs. Land Transportation Franchising and Regulatory Board

G.R. No. 158290. October 23, 2006
QUISUMBING, J, ponente:
Petitioners challenge this Court to issue a writ of mandamus commanding respondents Land
Transportation Franchising and Regulatory Board (LTFRB) and the Department of
Transportation and Communications (DOTC) to require public utility vehicles (PUVs) to use
compressed natural gas (CNG) as alternative fuel.
Citing statistics from the Metro Manila Transportation and Traffic Situation Study of 1996, the
Environmental Management Bureau (EMB) of the National Capital Region, a study of the
Asian Development Bank, 3 the Manila Observatory and the Department of Environment and
Natural Resources (DENR) on the high growth and low turnover in vehicle ownership in the
Philippines, including diesel-powered vehicles, two-stroke engine powered motorcycles and
their concomitant emission of air pollutants, petitioners attempt to present a compelling case
for judicial action against the bane of air pollution and related environmental hazards.
Petitioners allege that the particulate matters (PM) — complex mixtures of dust, dirt, smoke,
and liquid droplets, varying in sizes and compositions emitted into the air from various engine
combustions — have caused detrimental effects on health, productivity, infrastructure and the
overall quality of life. Petitioners particularly cite the effects of certain fuel emissions from
engine combustion when these react to other pollutants. For instance, petitioners aver, with
278
hydrocarbons, oxide of nitrogen (NOx) creates smog; with sulfur dioxide, it creates acid rain;
and with ammonia, moisture and other compounds, it reacts to form nitric acid and harmful
nitrates. Fuel emissions also cause retardation and leaf bleaching in plants. According to
petitioner, another emission, carbon monoxide (CO), when not completely burned but emitted
into the atmosphere and then inhaled can disrupt the necessary oxygen in blood. With
prolonged exposure, CO affects the nervous system and can be lethal to people with weak
hearts.
Petitioners add that although much of the new power generated in the country will use natural
gas while a number of oil and coal-fired fuel stations are being phased-out, still with the
projected doubling of power generation over the next 10 years, and with the continuing high
demand for motor vehicles, the energy and transport sectors are likely to remain the major
sources of harmful emissions. Petitioners refer us to the study of the Philippine Environment
Monitor 2002, stating that in four of the country's major cities, Metro Manila, Davao, Cebu
and Baguio, the exposure to PM10, a finer PM which can penetrate deep into the lungs
causing serious health problems, is estimated at over US$430 million. The study also reports
that the emissions of PMs have caused the following:
 Over 2,000 people die prematurely. This loss is valued at about US$140 million.
 Over 9,000 people suffer from chronic bronchitis, which is valued at about US$120
million.
 Nearly 51 million cases of respiratory symptom days in Metro Manila (averaging
twice a year in Davao and Cebu, and five to six times in Metro Manila and Baguio),
costs about US$170 million. This is a 70 percent increase, over a decade, when
compared with the findings of a similar study done in 1992 for Metro Manila, which
reported 33 million cases.
Petitioners likewise cite the University of the Philippines' studies in 1990-91 and 1994
showing that vehicular emissions in Metro Manila have resulted to the prevalence of chronic
obstructive pulmonary diseases (COPD); that pulmonary tuberculosis is highest among
jeepney drivers; and there is a 4.8 to 27.5 percent prevalence of respiratory symptoms
among school children and 15.8 to 40.6 percent among child vendors. The studies also
revealed that the children in Metro Manila showed more compromised pulmonary function
than their rural counterparts. Petitioners infer that these are mostly due to the emissions of
PUVs.
To counter the aforementioned detrimental effects of emissions from PUVs, petitioners

propose the use of CNG. According to petitioners, CNG is a natural gas comprised mostly of
methane which although containing small amounts of propane and butane, is colorless and
odorless and considered the cleanest fossil fuel because it produces much less pollutants
than coal and petroleum; produces up to 90 percent less CO compared to gasoline and
diesel fuel; reduces NOx emissions by 50 percent and cuts hydrocarbon emissions by half;
emits 60 percent less PMs; and releases virtually no sulfur dioxide. Although, according to
petitioners, the only drawback of CNG is that it produces more methane, one of the gases
blamed for global warming.
Asserting their right to clean air, petitioners contend that the bases for their petition for a writ
of mandamus to order the LTFRB to require PUVs to use CNG as an alternative fuel, lie in
Section 16, Article II of the 1987 Constitution, our ruling in Oposa v. Factoran, Jr., and
Section 4 of Republic Act No. 8749 otherwise known as the "Philippine Clean Air Act of
1999."
xxx
According to petitioners, Section 16, 21 Article II of the 1987 Constitution is the policy
279
statement that bestows on the people the right to breathe clean air in a healthy environment.
This policy is enunciated in Oposa. The implementation of this policy is articulated in Rep.
Act No. 8749. These, according to petitioners, are the bases for their standing to file the
instant petition. They aver that when there is an omission by the government to safeguard a
right, in this case their right to clean air, then, the citizens can resort to and exhaust all
remedies to challenge this omission by the government. This, they say, is embodied in
Section 4 of Rep. Act No. 8749.
Petitioners insist that since it is the LTFRB and the DOTC that are the government agencies
clothed with power to regulate and control motor vehicles, particularly PUVs, and with the
same agencies' awareness and knowledge that the PUVs emit dangerous levels of air
pollutants, then, the responsibility to see that these are curbed falls under respondents'
functions and a writ of mandamus should issue against them.
xxx
Now, as to petitioners' standing. There is no dispute that petitioners have standing to bring
their case before this Court. Even respondents do not question their standing. This petition
focuses on one fundamental legal right of petitioners, their right to clean air. Moreover, as
held previously, a party's standing before this Court is a procedural technicality which may, in
the exercise of the Court's discretion, be set aside in view of the importance of the issue
raised. We brush aside this issue of technicality under the principle of the transcendental
importance to the public, especially so if these cases demand that they be settled promptly.
Undeniably, the right to clean air not only is an issue of paramount importance to petitioners
for it concerns the air they breathe, but it is also impressed with public interest. The
consequences of the counter-productive and retrogressive effects of a neglected
environment due to emissions of motor vehicles immeasurably affect the well-being of
petitioners. On these considerations, the legal standing of the petitioners deserves
recognition.
xxx
In this petition the legal right which is sought to be recognized and enforced hinges on a
constitutional and a statutory policy already articulated in operational terms, e.g. in Rep. Act
No. 8749, the Philippine Clean Air Act of 1999. Paragraph (a), Section 21 of the Act
specifically provides that when PUVs are concerned, the responsibility of implementing the
policy falls on respondent DOTC. It provides as follows:
SEC 21. Pollution from Motor Vehicles. — a) The DOTC shall implement the
emission standards for motor vehicles set pursuant to and as provided in this
Act. To further improve the emission standards, the Department [DENR] shall
review, revise and publish the standards every two (2) years, or as the need
arises. It shall consider the maximum limits for all major pollutants to ensure
substantial improvement in air quality for the health, safety and welfare of the
general public.
Paragraph (b) states:
b) The Department [DENR] in collaboration with the DOTC, DTI and

LGUs, shall develop an action plan for the control and management of air
pollution from motor vehicles consistent with the Integrated Air Quality
Framework . . . (Emphasis supplied.)
There is no dispute that under the Clean Air Act it is the DENR that is tasked to set the
280
emission standards for fuel use and the task of developing an action plan. As far as motor
vehicles are concerned, it devolves upon the DOTC and the line agency whose mandate is to
oversee that motor vehicles prepare an action plan and implement the emission standards for
motor vehicles, namely the LTFRB.
xxx
Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for
issuance of a writ of mandamus commanding the respondents to require PUVs to use CNG
as an alternative fuel. Although both are general mandates that do not specifically enjoin the
use of any kind of fuel, particularly the use of CNG, there is an executive order implementing
a program on the use of CNG by public vehicles. Executive Order No. 290, entitled
Implementing the Natural Gas Vehicle Program for Public Transport (NGVPPT), took effect
on February 24, 2004. The program recognized, among others, natural gas as a clean
burning alternative fuel for vehicle which has the potential to produce substantially lower
pollutants; and the Malampaya Gas-to-Power Project as representing the beginning of the
natural gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one
of its objectives, the use of CNG as a clean alternative fuel for transport. Furthermore, one of
the components of the program is the development of CNG refueling stations and all related
facilities in strategic locations in the country to serve the needs of CNG-powered PUVs.
Section 3 of E.O. No. 290, consistent with E.O. No. 66, series of 2002, designated the DOE
as the lead agency (a) in developing the natural gas industry of the country with the DENR,
through the EMB and (b) in formulating emission standards for CNG. Most significantly, par.
4.5, Section 4 tasks the DOTC, working with the DOE, to develop an implementation plan for
"a gradual shift to CNG fuel utilization in PUVs and promote NGVs [natural gas vehicles] in
Metro Manila and Luzon through the issuance of directives/orders providing preferential
franchises in present day major routes and exclusive franchises to NGVs in newly opened
routes. . ." A thorough reading of the executive order assures us that implementation for a
cleaner environment is being addressed. To a certain extent, the instant petition had been
mooted by the issuance of E.O. No. 290.
Regrettably, however, the plain, speedy and adequate remedy herein sought by petitioners,
i.e., a writ of mandamus commanding the respondents to require PUVs to use CNG, is
unavailing. Mandamus is available only to compel the doing of an act specifically enjoined by
law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to
order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No.
290 in par. 4.5 (ii), Section 4 "to grant preferential and exclusive Certificates of Public
Convenience (CPC) or franchises to operators of NGVs based on the results of the DOTC
surveys."
xxx
In the same manner that we have associated the fundamental right to a balanced and
healthful ecology with the twin concepts of "inter-generational responsibility" and "inter-
generational justice" in Oposa, where we upheld the right of future Filipinos to prevent the
destruction of the rainforests, so do we recognize, in this petition, the right of petitioners and
the future generation to clean air. In Oposa we said that if the right to a balanced and
healthful ecology is now explicitly found in the Constitution even if the right is "assumed to
exist from the inception of humankind. . . it is because of the well-founded fear of its framers
[of the Constitution] that unless the rights to a balanced and healthful ecology and to health
are mandated as state policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be lost not only for
the present generation, but also for those to come. . ."
281
It is the firm belief of this Court that in this case, it is timely to reaffirm the
premium we have placed on the protection of the environment in the landmark
case of Oposa. Yet, as serious as the statistics are on air pollution, with the
present fuels deemed toxic as they are to the environment, as fatal as these
pollutants are to the health of the citizens, and urgently requiring resort to drastic
measures to reduce air pollutants emitted by motor vehicles, we must admit in
particular that petitioners are unable to pinpoint the law that imposes an
indubitable legal duty on respondents that will justify a grant of the writ of
mandamus compelling the use of CNG for public utility vehicles. It appears to us
that more properly, the legislature should provide first the specific statutory
remedy to the complex environmental problems bared by herein petitioners
before any judicial recourse by mandamus is taken.
WHEREFORE, the petition for the issuance of a writ of mandamus is

DISMISSED for lack of merit.
In MMDA v. Jancom, the Supreme Court upheld the Court of Appeals ruling that the Clean
Air Act only prohibits “burning processes which emit poisonous and toxic fumes.”
MMDA vs. JANCOM Environmental Corporation

G.R. No. 147465. January 30, 2002
MELO, J ponente:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Civil Procedure filed by petitioner Metropolitan Manila Development Authority
(MMDA), seeking to reverse and set aside the November 13, 2000 decision of the
Court of Appeals declaring valid and perfected the waste management contract
entered into by the Republic of the Philippines, represented by the Secretary of
National Resources and the Executive Committee to oversee the build-operate-
transfer implementation of solid waste management projects, and JANCOM
Environmental Corporation.
XXX
In 1994, then President Fidel V. Ramos issued Presidential Memorandum Order

No. 202 creating the Executive Committee (EXECOM) to oversee the BOT
implementation of solid waste management projects, headed by the Chairman of
the MMDA and the Cabinet Officer for Regional Development-National Capital
Region (CORD-NCR). The EXECOM was to oversee and develop waste-to-
energy projects for the waste disposal sites in San Mateo, Rizal and Carmona,
Cavite under the build-operate-transfer (BOT) scheme. The terms of reference for
the waste-to-energy projects provided that its proponents should have the
capability to establish municipal solid waste thermal plants using incineration
technology. This type of technology was selected because of its alleged
advantages of greatly reduced waste volume, prolongation of the service life of
the disposal site, and generation of electricity.
XXX
During the second bid conference, the bid proposals of First Philippines for the
Carmona site and JANCOM for the San Mateo site were found to be complete
and responsive. Consequently, on February 12, 1997, JANCOM and First
Philippines were declared the winning bidders, respectively, for the San Mateo
and the Carmona projects.
282
XXX
Moreover, if after a perfected and binding contract has been executed between
the parties, it occurs to one of them to allege some defect therein as reason for
annulling it, the alleged defect must be conclusively proven, since the validity and
the fulfillment of contracts cannot be left to the will of one of the contracting
parties. In the case at bar, the reasons cited by MMDA for not pushing through
with the subject contract were: 1) the passage of the Clean Air Act, which
allegedly bans incineration; 2) the closure of the San Mateo landfill site; and 3)
the costly tipping fee. These reasons are bereft of merit.
Once again, we make reference to the insightful declarations of the Court of

Appeals:
Sec. 20 of the Clean Air Act pertinently reads:
SECTION 20. Ban on Incineration. — Incineration, hereby defined as the
burning of municipal, bio-chemical and hazardous wastes, which process emits
poisonous and toxic fumes, is hereby prohibited . . ."
Section 20 does not absolutely prohibit incineration as a mode of waste disposal;

rather only those burning processes which emit poisonous and toxic fumes are
banned.
xxx
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack

of merit and the decision of the Court of Appeals in CA-G.R. SP No. 59021 dated
November 13, 2001 AFFIRMED. No costs.
Invoking the right of citizens to breathe clean air as recognized by Republic Act No. 8749
otherwise known as the Clean Air Act, the Philippine Medical Association has declared its
intention to bring a P1-Billion class suit against the Secretary of the Department of
Transportation and Communications for the Department’s failure to abate the numerous
smoke-belching vehicles from plying the streets of Metro Manila, which have greatly
contributed to the deteriorating air quality in the city which pose a serious danger to the lives
of the residents.216
While air quality is still a problem in Metro Manila, other cities in the country as enumerated
below have already pushed forward to make this issue a thing of the past:
1. Puerto Princesa, Palawan – With the objective of decreasing the city’s hydrocarbon
and carbon monoxide emissions, the local government implemented the “50-50
scheme” which reduced by half the number of public utility tricycles operating in the
city.217
2. San Fernando City, La Union – The local government implemented an upgrading
program for public utility tricycles previously running on 2-stroke cycle engines to 4-
stroke cycle engines by offering incentive schemes to the affected sector, e.g. interest
free loans, to reduce air pollution.218
216 Sheila Crisostomo, PMA eyes P1-billion class suit vs DOTC chief, in Philippine Star (April 11, 2012),
http://www2.philstar.com/nation/top-stories/794110/pma-eyes-p1-billion-class-suit-vs-dotc-chief.
217 Clean Air Quality Tool Kit for Local Governments: Case Studies, 135-138 (USAID Project)
http://cleanairinitiative.org/portal/node/4716
218 Id, at140.
283
3. Marikina City, Metro Manila – The local government is promoting biking as an

alternative mode of transportation within the city by allotting bike lanes in its streets
and highways to reduce emissions from vehicles.219
10.5 The Clean Water Act
According to the Environmental Management Bureau (EMB), as early as 1996 51% of our
country’s rivers still met the standards for their most beneficial use, leaving the rest polluted
from domestic, industrial and agricultural sources. Studies say that domestic wastewater is
the principal cause of organic pollution (at 48%) in our water bodies. According to a World
Bank report, Metro Manila is second to the lowest in sewer connections among major cities in
Asia. Furthermore, 31% of all illnesses in the country are attributed to polluted waters. 220
On the basis of these facts, the Philippine Clean Water Act of 2004, or Republic Act no.
9275, aims to protect the country’s water bodies from pollution from land-based sources. It
provides for a comprehensive and integrated strategy to prevent and minimize pollution
through a multi-sectoral and participatory approach involving all stakeholders. In Section 2, it
specifically states that RA 9275 aims to pursue a policy of economic growth in a manner
consistent with the protection, preservation and revival of the quality of our fresh, brackish
and marine water.
President Gloria Macapagal-Arroyo approved the Clean Water Act on March 2, 2004, and it
took effect on May 6, 2004. The Implementing Rules and Regulations (IRR) of the Act were
approved by the Secretary of the DENR on May 16, 2005 and took effect on June 10, 2005.
The Act applies to water quality management in all water bodies. It primarily applies to the
abatement and control of pollution from land-based sources, although the water quality
standards and regulations and the civil liability and penal provisions under the Act shall be
enforced irrespective of sources of pollution.221
Management of Water Quality
The Department of Environment and Natural Resources, in coordination with the National
Water Resources Board (NWRB), is tasked to designate certain areas as water quality
management areas. These management areas should have similar hydrological,
hydrogeological, meteorological or geographic conditions. A governing board, composed of
mayors and governors of member LGUs, as well as representatives of relevant national
government agencies, NGOs, water utility sector and the business sector, is to govern the
management areas.
The governing boards are tasked with formulating strategies to coordinate policies necessary
for the Act’s effective implementation. Each management area is required to form a multi-
sectoral group to establish and effect water quality surveillance and monitoring network. The
group is required to submit its recommendation and report to the chairman of the governing
board.222
Obligations Created
DENR
219 Id.,at 143.

220 Environmental Management Bureau (2012), http://emb.gov.ph/eeid/cwa-english.htm
221 Rep. Act 9275, § 3 (Phil.).
222 Rep. Act 9275, § 5 (Phil.).
284
The primary duty of the DENR is to act as the overall lead agency to implement and enforce
the Clean Water Act.223 This included the preparation of a National Water Quality Status
Report, an Integrated Water Quality Management Framework, and a 10-year Water Quality
Management Area Action Plan. The Action Plan is to be reviewed by the water quality
management area governing board every five years, or as the need arises. 224 Aside from
designating water management areas pursuant to Section 5, the DENR is also tasked to
designate water bodies where specific pollutants from either natural or man-made source
have already exceeded water quality guidelines as non-attainment areas for the exceeded
pollutants.225 It tasked with preparing and implementing a program that will not allow new
sources of exceeded water pollutant in non-attainment areas without a corresponding
reduction in discharges from existing sources.
Within two years from the effectivity of the Act, the DENR was to revise and publish a list of
categories of industry sector for which effluent standards were provided for each significant
wastewater parameter per industry sector, 226 and to implement a wastewater charge system
in all management areas.227 The Department was likewise given the authority to grant
discharge permits to owners or operators of facilities that discharge regulated effluents. 228
The DENR, in coordination with the DOST and other concerned agencies and academic
institutions, is required by the Act to establish a national research and development program
for the prevention and control of water pollution. 229
DPWH
Under the Clean Water Act, the DPWH is tasked to prepare a national program on sewerage
and septage management, which shall include a priority listing of sewerage, septage and
combined sewerage-septage projects for LGUs based on population density and growth,
degradation of water resources, topography, geology, vegetation, programs/projects for the
rehabilitation of existing facilities.230
LGUs
The Act requires LGUs to appropriate the necessary land, and road right of way for the
construction of the sewage and/or septage treatment facilities. They may also raise funds to
subsidize the necessary expenses for the operation and maintenance of sewerage treatment
or septage facility servicing their area of jurisdiction.231
DOH
The DOH shall formulate guidelines and standards for the collection, treatment and disposal
of sewage including guidelines for the establishment and operation of centralized sewage
system.232 It shall also be responsible for the promulgation, revision and enforcement of
drinking water quality standards.233
Philippine Coast Guard
223 Rep. Act 9275, § 19 (Phil.).

224 Rep. Act 9275, § 19(b) (Phil.).
225 Rep. Act 9275, § 6 (Phil.).
226 Rep. Act 9275, § 12 (Phil.).
227 Rep. Act 9275, § 13 (Phil.).
228 Rep. Act 9275, § 14 (Phil.).
229 Rep. Act 9275, § 24 (Phil.).
230 Rep. Act 9275, § 7 (Phil.).
231 Rep. Act 9275, § 7 (Phil.).
232 Rep. Act 9275, § 8 (Phil.).
233 Rep. Act 9275, § 22(d) (Phil.).
285
The Philippine Coast Guard, in coordination with the DA and the DENR is responsible for
enforcing water quality standards in marine waters, specifically from offshore sources. 234
MWSS, LWUA and other urban water utilities
They are responsible for the provision of sewerage and sanitation facilities and the efficient
and safe collection, treatment and disposal of sewage within their area of jurisdiction. 235
DA
The DA, under the Act, was to develop guidelines for re-use of wastewater for irrigation and
other agricultural purposes and for the prevention, control and abatement of pollution from
agricultural and aquaculture activities.236
The BFAR, under the DA, was determined to be primarily responsible for the prevention and
control of water pollution for the development, management and conservation of the fisheries
and aquatic resources.237
DOST
The DOST was to prepare a program for evaluation, verification, development and public
dissemination of pollution prevention and cleaner production technologies. 238
DepEd, CHED, DILG and PIA
They are tasked to assist and coordinate with the DENR in the preparation and
implementation of a comprehensive and continuing public education and information program
pursuant to the objectives of the Act.239
National Water Quality Management Fund
A water quality management fund administered by the DENR was established by the Clean
Water Act to be used for the purposes specified in Section 9. Donations, endowments and
grants in the form of contributions to the national government under the Act are exempt from
donor’s taxes and all other taxes, charges or fees imposed by the government, and are to be
deducted from the gross income of the donor for income tax purposes. 240
Area Water Quality Management Fund
The area water quality management fund was established under the Clean Water Act for the
maintenance and upkeep of the water bodies in a water quality management area. It is to be
used for (1) the grant of rewards and incentives to entities whose effluent discharges are
better than the water quality criteria of the target classification of the receiving body of water,
(2) loans for acquisitions and repairs of facilities to reduce quantity and improve quality of
wastewater discharges, and (3) regular maintenance of the water bodies within the
management area.241
234 Rep. Act 9275, § 22(a) (Phil.).

235 Rep. Act 9275, § 22(b) (Phil.).
236 Rep. Act 9275, § 22(c) (Phil.).
237 Rep. Act 9275, § 22(c) (Phil.).
238 Rep. Act 9275, § 22(e) (Phil.).
239 Rep. Act 9275, § 22(f) (Phil.).
240 Rep. Act 9275, § 9 (Phil.).
241 Rep. Act 9275, § 10 (Phil.).
286
Establishment of Wastewater Charge System
The Clean Water Act features a wastewater charge system in all management areas. The
system is established on the basis of payment to the government for discharging wastewater
into the water bodies.242 The fee shall be based on the net waste load using the following
formula, which is to be applied to all industrial and commercial wastewaters: 243
WDF = Ln x R
Where R = rate per kilogram (Php/kg) initially fixed at P5.00 per kilogram for priority
pollutant parameter
Ln = net waste load (kg/year)
Permits are required from owners and operators that discharge regulated effluents. The
discharge permit is therefore the legal authorization by the DENR to discharge wastewater, 244
and shall specify the quantity and quality of effluent that the said facilities are allowed to
discharge into a particular water body, along with the compliance schedule and monitoring
requirement.
Clean-Up Operations
Any person who pollutes, or caused the pollution of, water bodies in excess of the applicable
and prevailing standards shall be responsible to contain, remove and clean up any pollution
incident at his own expense, to the extent that the same water bodies have been rendered
unfit for utilization and beneficial use. However, in the event of a polluter’s failure to
immediately undertake necessary emergency clean up operations, the DENR shall conduct
containment, removal and clean up operations. The expenses incurred by the DENR,
however, shall be reimbursed by the person/s found to have caused such pollution, after
liability has been properly determined in accordance with the Clean Water Act. 245
Incentives and Rewards
Rewards shall be given to individuals, private organizations and entities that have undertaken
outstanding and innovative projects, technologies, processes and techniques or activities in
water quality management. These rewards shall be taken from the Water Quality
Management Fund.246 Incentives are given to encourage LGUs, water districts, enterprises,
or private entities, and individuals to develop or undertake an effective water quality
management or actively participate in any program geared towards the promotion thereof.
Incentives may be non-fiscal, such as the inclusion in the Investments Priority Plan or fiscal
such as tax and duty exemption on imported capital equipment, tax credit on domestic capital
equipment, or tax and duty exemption of donations, legacies and gifts. Government financial
institutions such as the Development Bank of the Philippines, Land Bank of the Philippines,
Government Service Insurance System and such other government institutions accord high
priority to extend financial services to LGUs, WDs, enterprises or private entities engaged in
sewage collection and treatment facilities. Lastly, cities and municipalities that establish or
operate sewerage facilities may be entitled to receive grants for the purpose of developing
technical capabilities.247
242 Rep. Act 9275, § 13 (Phil.).

243 DAO 2005-10, § 13.1 (Phil.).
244 Rep. Act 9275, § 14 (Phil.).
245 Rep. Act 9275, § 16 (Phil.).
246 Rep. Act 9275, § 25 (Phil.).
247 Rep. Act 9275, § 26 (Phil.).
287
Penal Provisions
Actions prohibited by the Clean Water Act are provided in Section 27 to the said law. Some
of these include discharging, depositing or causing to be deposited material of any kind
directly or indirectly into water bodies, which could cause water pollution. Section 28
provides for fines, damages and penalties to any person who commits any of the prohibited
acts. The Secretary of the DENR, upon recommendation of the PAB, shall impose fines not
less than P10,000 or more than P200,000 for every day of violation. Failure to undertake
clean up operations, willfully or through gross negligence, shall be punished by imprisonment
of not less than two years and not more than four years, and a fine not less than P50,000 and
not more than P100,000 per day for each day of violation. Such failure or refusal that results
in serious injury or loss of life and/or irreversible water contamination of surface, ground,
coastal and marine water shall be punished with imprisonment of not less than six years and
one day and not more than twelve years, and a fine of P500,000 per day for each day during
which the omission and/or contamination continues. In case of gross violations of the Act,
the PAB shall issue a resolution recommending that the proper government agencies file
criminal charges against the violators.248
Local government officials shall be subject to administrative sanctions in case of failure to

comply with their action plan in accordance with the relevant provisions of the Local
Government Code.249
For years now, the problems posed by hazardous substances and wastes have been one of
the priority concerns of the Philippine government. This is likely due to the quickly growing
number of transnational companies, as well as local firms, that generate waste considered
hazardous to health and the environment. The Philippines, like any Third World country, is
not properly equipped in terms of machinery and technical expertise to deal with these
substances, although steps are being done to define the regulatory and enforcement
responsibilities of various government agencies. The agency that probably has the most
important role in the management and control of these substances and wastes is the
Department of Environment and Natural Resources (DENR).
Toxic waste is waste material that can cause death or injury to living creatures. Often used
interchangeably with the term “hazardous waste,” it spreads very easily and can contaminate
land, air, and water. It encompasses any form of discarded material that can pose a long-
term risk to health or the environment. As with most environmental problems, toxic waste
began to be a significant issue during the industrial revolution. It is usually the product of
industry or commerce, but also comes from residential use (e.g. cleaning products,
cosmetics, lawn care products), agriculture (e.g. chemical fertilizers, pesticides), the military
(nuclear weapons testing, chemical warfare), medical facilities (e.g. pharmaceuticals),
radioactive sources, and light industry, such as dry cleaning establishments. Toxic waste
comes in many forms, such as liquid, solid, or sludge, and it contains chemicals, heavy
metals, radioisotopes, dangerous pathogens, or other toxins.
The Philippines’ Situation
The pressure brought about by rapid population growth, combined with inadequate
environmental sanitation facilities have resulted in the generation of severe negative impacts
in the Philippines and other countries in Southeast Asia. Furthermore, excessive exploitation
of natural resources at present poses a great threat for future generations. Disposal of waste
248 Rep. Act 9275, § 28 (Phil.).
249 Rep. Act 9275, § 29 (Phil.).
288
into the environment by the escalating number of industries has caused the rapid increase in
pollution not only in the Philippines, but in other parts of the globe as well. Disposal of various
non-biodegradable chemical and hazardous wastes is making most of the water resources in
the country unsuitable for use, creating the need for expensive advanced treatment, and
most of the land unfit for cultivation and crop production. The end results of these activities
are environmental degradation and health hazards. Industrialized countries are most
probably responsible for this rapid depletion of resources and environmental degradation by
virtue of waste exportation, which is explicitly prohibited by certain local legislations and
international agreements.
In a study conducted by Greenpeace of Southeast Asian Countries in 1994 250 one of the most
significant hazardous waste problems in the Philippines is the small-scale nature of the
majority of the industrial facilities, and inadequate space available for on-site storage of
hazardous wastes. Most of these industries are located in municipal areas, so they deposit
their wastes in streets and MSW containers, and discharge wastewater into drains and sewer
pipes. There is always a dangerous threat to the aquatic life by the wastewater discharged
into rivers, as well as, the pollution of land, if irrigated with such water. Moreover, seepage of
leachate and percolation of surface water into ground can cause groundwater pollution.
According to the website of the Basel Action Network (BAN), most countries in Southeast
Asia are faced with financial problems thereby impeding the effective implementation of
pollution control systems, especially in the case of small-scale industries in Hong Kong,
Malaysia, Papua New Guinea, and the Philippines, which prefer to shut down their business
operations rather than installing individual hazardous waste treatment facilities. 251 Even
though the treatment equipment is installed by large-scale multinational industries, they are
not operated properly as reported by some government agencies of Thailand and the
Philippines.252 Most of these industries are always having problems with the facilities like
finance, technical, and infrastructure to deal with these waste problems. Total treatment or
disposal is not implemented in most of the provinces, cities and municipalities in the country.
Although a couple of incineration plants are installed for hazardous waste treatment, they are
not sufficient, and most of the said hazardous wastes are disposed into unsecured landfill. In
the Philippines, hazardous wastes are collected from industries located in Manila and
dumped in neighboring rural areas such as Rizal and Batangas. 253
The adverse effects of improper management and control of hazardous wastes is something
that the Philippine Government is greatly concerned about. Various types and quantities of
wastes are produced in the country, and the specific pieces of information regarding which
are not properly documented. Domestic industrial activities and transportation of hazardous
wastes from developed countries are two of the main sources of the profound difficulty in
handling and controlling hazardous substances and wastes that are dangerous to human
health and the environment.254 Furthermore, the absence of strict enforcement, experienced
manpower, and lack of public awareness are also relevant issues which the government
needs to address.
In addition to the continuous increase in the number of industries in the country is the
growing burden for the government to control and manage it. Existence of small-scale
industries, scattered profile of industrial development, and unavailability of actual data on the
volume and characteristics of hazardous wastes from industries are significant areas of
250 Greenpeace (1994).

251 Ban.org, http://www.ban.org/philippines.
252 Id.
253 A Survey of Environmental Markets in 16 Asia-Pacific Countries and Territories, SGS-Environmental
Information Unit, Bangkok, Thailand (1996).
254 Earth Summit, United Nations, http://www.un.org/esa/earthsummit.
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concern as well. Nevertheless, effective information dissemination in order to properly instill

awareness among the public is the most important factor that should be taken into
consideration by the Philippine Government, to be able to correctly identify the genuine
problems brought about by the generation of hazardous substances and wastes and
eventually create feasible solutions to such problems.
Moreover, in 1996, Greenpeace investigations showed that the Philippines was becoming a
leading destination of hazardous wastes coming mostly from industrialized countries. In
particular, used lead acid batteries (ULABs), considered as hazardous waste by the
international community, were being imported into the country using the guise of recycling.
According to Greenpeace, hazardous waste recycling in developing countries can be

characterized as either sham or dirty recycling. Sham recycling takes place when exports
claimed to be for recycling are actually merely dumped in the receiving country after
minimum or zero processing. This is especially difficult in third world countries like the
Philippines. Even the so-called state-of-the-art hazardous waste recycling operations being
supported and funded by the Philippine government are some of the worst polluters
Greenpeace has investigated.255 These facilities often pollute far more than a disposal facility
would. Not only do these operations pollute the environment with toxic emissions, they often
create residual hazardous wastes, which are more toxic than the original wastes.
Despite a supposed national ban on the entry of toxic and hazardous wastes into the country,
and despite being an active party to the Basel Convention which aims to halt the
transboundary movement of hazardous and toxic wastes for dumping and recycling
purposes, the Philippines in the mid-1990s became one of the leading destinations of scrap
lead acid batteries from industrialized nations like Australia, Canada, United Kingdom,
Germany and the United States.256
Of all the natural resources available to human beings, air is arguably the most free and accessible, the
most public and common of goods. While lumber, ores and oil must be harvested, mined or refined;
while water must be filtered and purified before being fit for consumption; and while crops and livestock
must be grown; air is simply breathed. And, of all the natural resources on earth, air is the one we use
the most—for we must breathe every day we live.
Yet perhaps because air is so common a good, like all common goods, it suffers from overuse and
abuse. Ever since the Industrial Revolution, air pollution has worsened everywhere, sparing very few
places. A large portion of the problem, especially in the cities, comes from vehicular exhaust. Up to 90
percent of urban pollution can come from cars and trucks. This problem is compounded by the gridlock
of rush hour, which leaves vehicles stuck in traffic or in slow speeds, all the while still burning gas and
releasing pollutants. This is an all-too-common sight along EDSA or in the densest parts of the
metropolis. Finally—and this is a problem very familiar to Manileños—there are cars, jeepneys, and
trucks with poorly-maintained engines, or without proper catalytic converters, belching unsightly smoke,
often times right into the face of following vehicles, or pedestrians alongside the road.
Pollution is not just caused by cars, however, and whether in major cities or the province, industries
have increasingly become the source of pollution. Poor and insufficient enforcement can lead to
industries setting up shop in the provinces without regard for environmental compliance, dispensing
with required air and water pollution controls in order to drive down costs and increase profits. In the
end, the provincial poor, so often “out of sight, out of mind” from policy-makers, have to endure the
same threats to their health that city folk face walking down EDSA. Precisely because of their poverty
and distance from sufficient health care, the rural poor are even more vulnerable to lung diseases.

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Innovative thinking is necessary to head off this threat to Philippine health. Perhaps a happy
coincidence, in Western astrology, the classical element of Air is identified with the mind, logic,
invention, and innovation.
Technology is a key factor in the fight against air pollution: hybrid vehicles and electric cars to reduce
dependence on fossil fuels, and air pollution scrubbers for industrial smokestacks that strip exhaust
gases of particulate matter and toxic chemicals. The problem with technology is that it is often
expensive—a hybrid Honda Civic, for example, costs significantly more than a regular Civic. It is not
impossible, however, to envision some government support and incentives to help shift the Philippines
industries and transport systems green-ward: increasing the use of more environmentally-friendly
biofuels or renewable energy sources, subsidies for hybrid and electric vehicles, encouraging foreign
companies and even rich countries to sponsor air-friendly projects like reforestation or renewable
energy.
Specific to traffic as the largest source of air pollution, one of the best solutions is encouraging public
transportation and carpools. Sadly, our public transport systems often are a sources of air pollution
themselves, especially smoke-belching “colorum” buses. So far, the cleanest option in Metro Manila is
the MRT-LRT system, and it is sadly overtaxed. Makati has experimented with electrical “eJeepneys,”
and this should be encouraged elsewhere in the metropolis. In this regard, I urge the Metropolitan
Manila Development Authority to fast-track the implementation of a Bus Rapid Transit (BRT) system,
starting perhaps with Commonwealth Avenue. BRT is an innovative, flexible, high capacity, more cost-
effective public transportation solution that utilizes buses or specialized vehicles on roadways or
dedicated lanes to quickly and efficiently transport commuters to their destinations.
The State and our society must integrate sustainable development ideas into urban planning, as well as
economic development. We can make it so that land developers, by law, must provide areas for public-
use “urban forests” or parks whenever they undertake a large-scale project like a mall or a high-rise (as
it stands, one usually only sees this in subdivision-based land development in the suburbs, or high-
profile apartment construction, both of which almost are the exclusive province of the wealthy). City
planning and renewal must also be executed, from the start, with efficient road networks and public
transport systems to reduce gridlock and dependence on private vehicles.
The government, especially at the local level, should regulate which kinds of industries can operate in
the country. The need for economic development and job creation cannot be an excuse to be lax on
environmental standards. Violators must be shuttered and penalized for endangering public health.
Beefing up the enforcement arms of the Department of Environment and Natural Resources (DENR),
as well as taking advantage of new, environmentally-friendly Supreme Court rules such as the Writ of
Kalikasan, are the best tools the state has to defend the right to clean air. In exchange, we must seek
out and entice those businesses that are willing to implement pollution control measures into their
processes, and even help or sponsor the country’s efforts to restore the environment. We should also
look to substitute crude, polluting industries with lucrative agricultural or ecotourism jobs for the rural
poor, providing them employment options that are better economically and health-wise.
A combination of incentives and innovative policies can go a long way towards clearing up our air, and
ensuring our children can breathe freely in the future. Above everything else however, consistent,
uncompromising and effective enforcement is the most essential ingredient in the fight against air
pollution. Enforcing once for all The Clean Air Act, a law passed more than ten years ago – now that’s a
breath of fresh air.
Taken from:
24 May 2011, Manila Standard Today
A Breath of Fresh Air
Air and water pollution in the country is a worsening problem. Manila, for example, has been reported
as the 4th most polluted city in the world. If you think, however, that pollution is a concern exclusive to
Metro Manilans, think again. We are becoming more aware of the ill effects of pollution that are
beginning to be felt even in the provinces. A particular tire pyrolysis facility somewhere in Bulacan is a
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case in point.
In 2009, a waste oil processing plant was granted an Environmental Compliance Certificate (ECC) from
the Department of Environment and Natural Resources (DENR) but soon after, the ECC was amended
so the facility could conduct tire pyrolysis or the extraction of oil using scrap/waste rubber tires as raw
materials. Tire pyrolysis, when done properly by investing in the right equipment and proper diligence,
is arguably a safe technology, despite the toxic products produced. However, in this case, the
technology was clearly inadequate and crude. If one visited the premises of the facility, as I personally
did, it would be obvious that it was being operated without regard for the safety for its workers and
surrounding residents. The building was decrepit, the fence improperly built, and carbonaceous waste
from operations could be seen everywhere. Recently, patched-up improvements were done to give the
semblance of good housekeeping. Even after upgrades, the facility remains unreliable. It was appalling,
how the government could have even allowed the operation of what was clearly an inadequately funded
and backyard – probably fly-by-night – operation, which had such serious environmental and health
impacts.
The hazardous operations resulted in excessive discharge of wastewater and airborne pollutants that
polluted its surroundings and caused health problems to nearby residents, ranging from allergic
reactions and pneumonia to other respiratory ailments. Neurological symptoms such as headaches,
dizziness and nausea have been reported as well. Long-term effects could include cancer and similar
death-threatening illnesses. These serious health effects are corroborated by an independent report
from the Blacksmith Institute which states that “[r]esidents living near xxx commonly experience
difficulty in breathing every time the establishment is operating. This is because of the black smoke
coming from the company's smoke stack. According to one of the residents, they usually stay inside
their house because they can't stand the smoke coming from the burning of tires. Inhaling the smoke
also causes [headaches] and chest pain due to coughing.”
After unfavorable media exposure and after complaints from affected residents, the Pollution
Adjudication Board (PAB) issued, in December 2009, a Cease and Desist Order (CDO) against the
company for failure to pass the DENR Effluent Standards in terms of oil and grease. The
company, however, intentionally defied the Order and continued to operate. After several
attempts, the DENR successfully padlocked the facility on February 8, 2010. Then-acting DENR
Secretary Eleazar Quinto himself led the operations to close the plant and was quoted as saying
"[t]his [closure] is a (sic) work done by a community against a firm that has no regard for the
community and the environment. We made several attempts to enter this firm but we failed. This
firm operates in a guerrilla-style manner, a hit-and-run type."
Unfortunately, a Temporary Lift Order (TLO) for 15 days was granted to the facility on May 2010. A TLO
is normally allowed so that a previously closed facility can be tested on whether its operations have
begun to comply with the law. In this case, however, given the serious health impacts of the pollution,
the Pollution Adjudication Board should never have issued a TLO. Another Acting DENR Secretary,
Horace Ramos, had to order the Regional Office (Region 3) of the Environmental Management Bureau
(EMB) to again close down the facility. When DENR Secretary Ramon Paje assumed office, he too
supported the affected residents and the facility was to remain closed. In fact, in late 2010, the DENR
cancelled the ECC it previously granted and, during the Christmas season, for the first time in many
months, the affected residents were able to breathe good and clean air.
Unfortunately, a happy ending is not yet certain, as the tire pyrolysis facility has reapplied for an ECC.
To my surprise and dismay, because it is illegal (as it could circumvent the incineration ban in the Clean
Air Act) and against all common sense, there is a possibility that the concerned EMB Regional Office
might issue such an ECC. This is so in spite of all the documentation that affected residents have
provided the authorities on the environmental and health impacts of the facility. These impacts will not
be prevented even after recent upgrades and in spite of the environmental record of the facility, as well
as its continued cavalier approach to the pollution it causes (e.g., the facility operated for so long
without a pollution control officer and its present PCO is not even an engineer and instead is an "expert"
in government relations.)
Tire pyrolysis facilities similar to the one in Bulacan should not be allowed. Such similar facilities in that
province and elsewhere in the Philippines should be closed down. Their technology does not stand up
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to standard technical requirements of environmental and health safety. The records of these facilities in
implementing mitigation measures are usually very bad. The legal standard the EMB/DENR should use
is the Precautionary Principle, a rule of evidence that the Supreme Court applies to environmental
cases. Where there is serious health and environmental impacts, even when there is scientific
uncertainty, the possibility alone of serious harm happening is enough reason to close down these
facilities. Precaution is also sufficient reason as to why the DENR cannot allow this particular facility
that emits poison in Bulacan to reopen.
Taken from:
1 February 2011, Manila Standard Today
Poison in Bulacan
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Chapter Eleven
Climate Change and Disaster Risk Reduction and Management
Recently, tragedy has struck many places as super-typhoons ravaged the provinces. PAG-
ASA traditionally measures typhoon intensity by the strength of the winds, however, recent
typhoons that caused extreme damages were not only due to strong winds but more of
intense rainfall over a short period. The steep slopes in many areas collapsed under heavy
rains, causing massive landslides that destroyed farms and homes. The rivers overflowed
and the torrents flooded the towns in the lowlands with devastating results. Debris, including
cut logs, was swept down the river into the sea. The townspeople in the lowlands blamed the
upland dwellers for illegal logging and deforestation that resulted in the flood and loss of lives
and property.
Climate change is a global phenomenon. While the Philippines engages in activities that
affect the climate, regulating our actions alone is not enough. It takes global action to make
an impact. In Volume Two we look at the United Nations Framework Convention on Climate
Change (UNFCCC) as a global action to address the issue. On the other hand, preparing for
and responding to the impacts of climate change is a domestic challenge.
Since the solution to the environmental problem requires concerted global action, the topic on
climate change is discussed in more detail in Volume Two. The Philippines has crafted
forward-looking and comprehensive laws to address climate change and its impacts.
Climate Change Act

Republic Act 9729 (2009)
SEC . 2. Declaration of Policy. – It is the policy of the State to afford full

protection and the advancement of the right of the people to a healthful
ecology in accord with the rhythm and harmony of nature. In this light, the
State has adopted the Philippine Agenda 21 framework which espouses
sustainable development, to fulfill human needs while maintaining the quality
of the natural environment for current and future generations.
Towards this end, the State adopts the principle of protecting the climate
system for the benefit of humankind, on the basis of climate justice or
common but differentiated responsibilities and the Precautionary Principle to
guide decision-making in climate risk management. As a party to the United
Nations Framework Convention on Climate Change, the State adopts the
ultimate objective of the Convention which is the stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system which should
be achieved within a time frame sufficient to allow ecosystems to adapt
naturally to climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable manner. As
a party to the Hyogo Framework for Action, the State likewise adopts the
strategic goals in order to build national and local resilience to climate
change-related disasters.
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Recognizing the vulnerability of the Philippine archipelago and its local

communities, particularly the poor, women, and children, to potential
dangerous consequences of climate change such as rising seas, changing
landscapes, increasing frequency and/or severity of droughts, fires, floods
and storms, climate-related illnesses and diseases, damage to ecosystems,
biodiversity loss that affect the country’s environment, culture, and economy,
the State shall cooperate with the global community in the resolution of
climate change issues, including disaster risk reduction. It shall be the policy
of the State to enjoin the participation of national and local governments,
businesses, nongovernment organizations, local communities and the public
to prevent and reduce the adverse impacts of climate change and, at the
same time, maximize the benefits of climate change. It shall also be the
policy of the State to incorporate a gender-sensitive, pro-children and pro-
poor perspective in all climate change and renewable energy efforts, plans
and programs. In view thereof, the State shall strengthen, integrate,
consolidate and institutionalize government initiatives to achieve coordination
in the implementation of plans and programs to address climate change in
the context of sustainable development.
Further recognizing that climate change and disaster risk reduction are
closely interrelated and effective disaster risk reduction will enhance climate
change adaptive capacity, the State shall integrate disaster risk reduction into
climate change programs and initiatives.
Cognizant of the need to ensure that national and subnational government

policies, plans, programs and projects are founded upon sound
environmental considerations and the principle of sustainable development, it
is hereby declared the policy of the State to systematically integrate the
concept of climate change in various phases of policy formulation,
development plans, poverty reduction strategies and other development tools
and techniques by all agencies and instrumentalities of the government.
Philippine Disaster Risk Reduction and Management Act

Sec. 2. Declaration of Policy. – It shall be the policy of the State to:

(a) Uphold the people’s constitutional rights to life and property by
addressing the root causes of vulnerabilities to disasters,
strengthening the country’s institutional capacity for disaster risk
reduction and management and building the resilience of local
communities to disasters including climate change impacts;
(b) Adhere to and adopt the universal norms, principles, and
standards of humanitarian assistance and the global effort on
risk reduction as concrete expression of the country’s
commitment to overcome human sufferings due to recurring
disasters;
(c) Incorporate internationally accepted principles of disaster risk
management in the creation and implementation of national,
regional and local sustainable development and poverty
reduction strategies, policies, plans and budgets;
(d) Adopt a disaster risk reduction and management approach that
is holistic, comprehensive, integrated, and proactive in lessening
the socio-economic and environmental impacts of disasters
including climate change, and promotes the involvement and
295
participation of all sectors and all stakeholders concerned, at all

levels, especially the local community;
(e) Develop, promote, and implement a comprehensive National
Disaster Risk Reduction and Management Plan (NDRRMP) that
aims to strengthen the capacity of the National Government and
the local government units (LGUs), together with partner
stakeholders, to build the disaster resilience of communities, and
to institutionalize arrangements and measures for reducing
disaster risks, including projected climate risks, and enhancing
disaster preparedness and response capabilities at all levels;
(f) Adopt and implement a coherent, comprehensive, integrated,
efficient and responsive disaster risk reduction program
incorporated in the development plan at various levels of
government adhering to the principles of good governance such
as transparency and accountability within the context of poverty
alleviation and environmental protection;
(g) Mainstream disaster risk reduction and climate change in
development processes such as policy formulation, socio-
economic development planning, budgeting, and governance,
particularly in the areas of environment, agriculture, water,
energy, health, education, poverty reduction, land-use and urban
planning, and public infrastructure and housing, among others;
(h) Institutionalize the policies, structures, coordination mechanisms
and programs with continuing budget appropriation on disaster
risk reduction from national down to local levels towards building
a disaster-resilient nation and communities; xxx
xxx
Sec. 16. Declaration of State of Calamity. – The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President’s declaration may warrant international humanitarian
assistance as deemed necessary.
The declaration and lifting of the state of calamity may also be issued by the
local sanggunian, upon the recommendation of the LDRRMC, based on the
results of the damage assessment and needs analysis.
SEC. 17. Remedial Measures. – The declaration of a state of calamity shall

make mandatory the immediate undertaking of the following remedial
measures by the member-agencies concerned as defined in this Act:
(a) Imposition of price ceiling on basic necessities and prime

commodities by the President upon the recommendation of the
implementing agency as provided for under Republic Act No.
7581, otherwise known as the Price Act, or the National Price
Coordinating Council;
(b) Monitoring, prevention and control by the Local Price
Coordination Council of overpricing/profiteering and hoarding of
prime commodities, medicines and petroleum products;
(c) Programming/reprogramming of funds for the repair and safety
upgrading of public infrastructures and facilities; and
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(d) Granting of no-interest loans by government financing or lending

institutions to the most affected section of the population through
their cooperatives or people’s organizations.
SEC. 18. Mechanism for International Humanitarian Assistance. –
(a) The importation and donation of food, clothing, medicine and

equipment for relief and recovery and other disaster
management and recovery-related supplies is hereby authorized
in accordance with Sec. 105 of the Tariff and Customs Code of
the Philippines, as amended, and the prevailing provisions of the
General Appropriations Act covering national internal revenue
taxes and import duties of national and local government
agencies; and
(b) Importations and donation under this Section shall be
considered as importation by and/or donation to the NDRRMC,
subject to the approval of the Office of the President.
SEC. 19. Prohibited Acts. – Any person, group or corporation who commits
any of the following prohibited acts shall be held liable and be subjected to
the penalties as prescribed in Section 20 of this Act:
(a) Dereliction of duties, which lead to destruction, loss of lives,

critical damage of facilities and misuse of funds;
(b) Preventing the entry and distribution of relief goods in disaster-
stricken areas, including appropriate technology, tools,
equipment, accessories, disaster teams/experts;
(c) Buying, for consumption or resale, from disaster relief agencies
any relief goods, equipment or other aid commodities which are
intended for distribution to disaster affected communities;
(d) Buying, for consumption or resale, from the recipient disaster
affected persons any relief goods, equipment or other aid
commodities received by them;
(e) Selling of relief goods, equipment or other aid commodities
which are intended for distribution to disaster victim;
(f) Forcibly seizing relief goods, equipment or other aid commodities
intended for or consigned to a specific group of victims or relief
agency;
(g) Diverting or misdelivery of relief goods, equipment or other aid
commodities to persons other than the rightful recipient or
consignee;
(h) Accepting, possessing, using or disposing relief goods,
equipment or other aid commodities not intended for nor
consigned to him/her;
(i) Misrepresenting the source of relief goods, equipment or other
aid commodities by:
(1) Either covering, replacing or defacing the labels of the
containers to make it appear that the goods, equipment or
other aid commodities came from another agency or
persons;
(2) Repacking the goods, equipment or other aid commodities
into containers with different markings to make it appear that
the goods, came from another agency or persons or was
released upon the instance of a particular agency or
persons;
297
(3) Making false verbal claim that the goods, equipment or other
aid commodity in its untampered original containers actually
came from another agency or persons or was released upon
the instance or a particular agency or persons;
(j) Substituting or replacing relief goods, equipment or other aid
commodities with the same items or inferior/cheaper quality;
(k) Illegal solicitations by persons or organizations representing
others as defined in the standards and guidelines set by the
NDRRMC;
(l) Deliberate use of false or inflated data in support of the request
for funding, relief goods, equipment or other aid commodities for
emergency assistance or livelihood projects; and
(m) Tampering with or stealing hazard monitoring and disaster
preparedness equipment and paraphernalia.
xxx
Sec. 21. Local Disaster Risk Reduction and Management Fund (LDRRMF). –
The present Local Calamity Fund shall henceforth be known as the Local
Disaster Risk Reduction and Management Fund (LDRRMF). Not less than
five percent (5%) of the estimated revenue from regular sources shall be set
aside as the LDRRMF to support disaster risk management activities such
as, but not limited to, pre-disaster preparedness programs including training,
purchasing life-saving rescue equipment, supplies and medicines, for post-
disaster activities, and for the payment of premiums on calamity insurance.
The LDRRMC shall monitor and evaluate the use and disbursement of
LDRRMF based on the LDRRMP as incorporated in the local development
plans and annual work and financial plan. Upon the recommendation of the
LDRRMO and approval of the sanggunian concerned, the LDRRMC may
transfer the said fund to support disaster risk reduction work of other
LDRRMCs which are declared under state of calamity.
Of the amount appropriated for LDRRMF, thirty percent (30%) shall be

allocated as Quick Response Fund (QRF) or stand-by fund for relief and
recovery programs in order that situation and living conditions of people in
communities or areas stricken by disasters, calamities, epidemics, or
complex emergencies, may be normalized as quickly as possible.
Unexpended LDRRMF shall accrue to a special trust fund solely for the
purpose of supporting disaster risk reduction and management activities of
the LDRRMCs within the next five (5) years. Any such amount still not fully
utilized after five (5) years shall revert back to the general fund and will be
available for other social services to be identified by the local sanggunian.
SEC. 22. National Disaster Risk Management and Recovery Fund. –
a. The present Calamity Fund appropriated under the annual

General Appropriations Act shall henceforth be known as the
National Disaster Risk Reduction and Management Fund
(NDRRM Fund) and it shall be used for disaster risk reduction
or mitigation, prevention and preparedness activities such as
but not limited to training of personnel, procurement of
equipment, and capital expenditures. It can also be utilized for
relief, recovery, reconstruction and other work or services in
connection with natural or human-induced calamities, which
298
may occur during the budget year or those that occurred in the
past two (2) years from the budget year.
b. The specific amount of the NDRRM Fund and the appropriate
recipient agencies and/or LGUs shall be determined upon
approval of the President of the Philippines in accordance with
the favorable recommendation of the NDRRMC.
c. Of the amount appropriated for NDRRM Fund, thirty percent
(30%) shall be allocated as Quick Response Fund (QRF) or
stand-by fund for relief and recovery programs in order that
situation and living conditions of people in communities or
areas stricken by disasters, calamities, epidemics, or complex
emergencies, may be normalized as quickly as possible.
d. All departments/agencies and LGUs that are allocated with
DRRM fund shall submit to the NDRRMC their monthly
statements on the utilization of DRRM funds and make an
accounting thereof in accordance with existing accounting and
auditing rules.
e. All departments, bureaus, offices and agencies of the
Government are hereby authorized to use a portion of their
appropriations to implement projects designed to address
DRRM activities in accordance with the guidelines to be issued
by the NDRRMC in coordination with the DBM.
What is climate change?257
Climate Change is defined in the United Nations Framework Convention on Climate Change
(UNFCCC) as “a change of climate that is attributed directly or indirectly to human activity
that alters the composition of the global atmosphere and that is in addition to natural climate
variability observed over comparable time periods.”258 Although referred to by many as global
warming, many scientists are said to prefer use of the term climate change due to the fact
that while the Earth, on average, warms up, a few regions may begin to slightly cool. 259
The general warming of the climate system has been declared to be unequivocal, evidenced
by increases in the temperature of the air and the ocean. The Fourth Assessment Report of
the Intergovernmental Panel on Climate Change (IPCC) released in 2007 states that the
years 1995 to 2006 have been the “warmest years in the instrumental record of global
surface temperatures.”260 The melting of snow and ice has sped up and become more
widespread, causing the global average sea level to rise. Scientists project a warming of
approximately 0.2 degrees Celsius per decade, although should concentrations of
greenhouse gases (GHGs) and aerosols be kept consistent with year 2000 emission levels,
the rise in temperature could be reduced to 0.1 degrees Celsius instead. All in all, the global
average temperature is likely to rise from around 1.1 to 6.4 degrees Celsius by 2080 to 2090,
relative to 1980 to 1999 temperatures.261
257 “Climate Change: Issues, Problems and Challenges in the Philippines” by Antonio G.M. La Viña & Cecilia
Therese T. Guiao, 3 August 2012, unpublished.
258 United Nations Framework Convention On Climate Change (UNFCCC), http://unfccc.int/2860.php (last visited
June 2012)
259 Robert Henson, The Rough Guide to Climate Change 6 (2008).
260 Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Intergovernmental Panel on Climate
Change 30A (2007).
261 Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Intergovernmental Panel on Climate Change
12 (2007).
299
Report of the Intergovernmental Panel on Climate Change (2007)262
 Warming of the climate system is unequivocal, as is now evident from observations

of increases in global average air and ocean temperatures, widespread melting of
snow and ice and rising global average sea level
 Global GHG emissions due to human activities have grown since pre-industrial
times, with an increase of 70% between 1970 and 2004
 Global atmospheric concentrations of CO2, methane (CH4) and nitrous oxide (N2O)
have increased markedly as a result of human activities since 1750 and now far
exceed pre-industrial values determined from ice cores spanning many thousands of
years.
 Most of the observed increase in global average temperatures since the mid-20th
century is very likely due to the observed increase in anthropogenic GHG
concentrations. It is likely that there has been significant anthropogenic warming over
the past 50 years averaged over each continent (except Antarctica)
Does climate change cause super-typhoons?

Studies have shown that an abrupt change in typhoon count in the vicinity of Taiwan
occurred in the year 2000. According to an article written by Tu, Chou and Chu, “[o]n
average, 3.3 typhoons per year have been noted before 2000 (1970–99), with the rate
increasing to 5.7 typhoons per year since 2000 (2000–06). This abrupt change is consistent
with a northward shift of the typhoon track over the western North Pacific–East Asian region
and an increase of typhoon frequency over the Taiwan–East China Sea region. The
northward shift of the typhoon track tends to be associated with typhoon-enhancing
environmental conditions over the western North Pacific, namely, the weakening of the
western North Pacific subtropical high, the strengthening of the Asian summer monsoon
trough, and the enhanced positive vorticity anomalies in the lower troposphere. Based on
observational analysis and model simulations, warm sea surface temperature anomalies over
the equatorial western and central Pacific appear to be a major factor contributing to a
northward-shifted typhoon track.”263
In the Philippines, the Manila Observatory in 2012 identified Typhoon Sendong as an
“extreme weather event,” especially considering the amount of total accumulated rainfall in
one day. Precipitation associated with this typhoon much higher than normal; PAGASA
Lumbia Station data signified a total of 180mm of rainfall in Cagayan de Oro City in one day –
63mm more than the 117mm monthly average based on 1977-2005 data.
Tropical cyclones are known to hit Mindanao far less frequently than Luzon and Visayas.
From 1883 to 1900, there was an average of one typhoon a year in the region, although in
the past 15 years only six typhoons passed through Mindanao. Data from the Joint Typhoon
Warning Center (JTWC) shows that there is roughly only one typhoon that goes through
Mindanao every 10 years in the month of December.
262 Leonard S. Bernstein, Climate Change 2007: Synthesis Report, in Intergovernmental Panel on Climate Change
30A (2007).
263 Tu, Chou and Chu. 2009. The Abrupt Shift of Typhoon Activity in the Vicinity of Taiwan and Its Association
with Western North Pacific–East Asian Climate Change. Journal of Climate 22: 3617-3628
300
As it is, it is very difficult to attribute one extreme event to climate change – a definite
conclusion as to whether or not Sendong is brought about by climate change therefore
cannot be made. Attribution is a complex topic that the IPCC is still addressing, although the
scientific consensus is that extreme weather events are going to become more commonplace
with climate change.
Climate change, known to many people by the more popular phrase "global warming," is the most
serious environmental problem the world confronts. It results from the accumulation of greenhouse
gasses in the atmosphere, both natural and human-induced, with the latter source increasing in this
century because of human activity. Most economic activities emit these gasses: energy production and
consumption, transportation, agriculture and forestry, real estate, industry and manufacturing, and so
on. National boundaries are irrelevant in dealing with the challenges of climate change. It is caused by
human activities in all countries. Its impacts are felt in all countries regardless of their respective
contributions to climate change. In fact, the greatest injustice of climate change is that the poorest
countries and the poorest communities within the countries that have contributed the least to this
problem will not only be the first ones to suffer – they will also be the ones to suffer the most.
For the Philippines, climate change is about effect. Our contribution to the problem is miniscule
because of the scale of our economy, but we are at the forefront of the countries that will suffer
most from the climate change. Our agriculture and food security will be affected. Public health
epidemics are likely to increase. Existing threats to marine and coastal resources and our already
stressed natural resources in forests and uplands will be aggravated. There will be increased
risks to human habitations in coastal areas and in geologically sensitive places. For sure, natural
disasters – from stronger storms, more rainfall, intense droughts, etc., will increase in number
and magnitude because of climate change. Already, in 2009, the Philippines is considered to have
experienced the most disasters according to the reputable Center For Research on the
Epidemiology of Disasters.
Whether we like it or not, and whatever we do now, climate change is a given – it will affect the country.
The poor are most vulnerable, but as the experience of Typhoons Ondoy and Pepeng illustrate, the rich
will also not be spared. As a country with limited resources, our response should focus on helping our
farmers and fisherpersons adapt to climate change, reduce risks brought by disasters, build a public
health system that helps the poor, conserve our forests and other natural resources, etc. We should still
do mitigation and minimize our own contribution to climate change by cutting emissions wherever we
can, but we should emphasize mitigation measures that are consistent with our adaptation goals.
Government has been pro-active in climate change since the early 1990s. In 2009, Congress enacted
the Climate Change Act of 2009 designed to mainstream climate change into government policy. It
creates the Climate Change Commission headed by the President and joined by a Vice-Head and two
other commissioners. In May 2009, the Commission adopted the National Framework Strategy on
Climate Change, a document that is based on the integrated adaptation-mitigation approach described
earlier.
Will the new law be effective in helping the Philippines address the challenge of climate change,
however? It remains to be seen if that will be the case. Already there are calls to amend the law based
on concerns that it does not create a good institutional mechanism for dealing with the problem.
Through the years, climate change has become very personal to me. How could it not be? I have three
sons whose generation will inherit this Earth. I do not want to leave them and their children this problem
not only unsolved but also aggravated. I work to combat climate change and intend to do so for the rest
of my life because, in the words of a Japanese poem I paraphrased in Kyoto, Japan in 1997, "I do not
want to be afraid of the rains and long for the memory of how they once made our mountains more
beautiful to see and I do not want to weep for my children as I watch the sea."
It is ironic that the morning after Typhoon Sendong struck my hometown of Cagayan de Oro City in late
2011, I was flying home to Manila after nearly three weeks in Africa, where I was a member of the
301
Philippine delegation to the annual United Nations-sponsored climate change negotiations. Although
the Philippines tried hard – being an influential player in the negotiations – to help the world address
climate change, little progress has been achieved. Because of this, climate change will only get worse
in the future, and we must prepare for the worst.
We must therefore identify and implement priorities so that never again will a disaster such as Sendong
be repeated in Mindanao or anywhere else in the Philippines. I propose a number of priorities according
to their urgency – those which are short-term (priorities 1-6), medium-range (priorities 7-9) and long-
term (priority 10).
Priority 1: Getting back to normal. For closure to happen for most survivors, the government must
prioritize tasks that would bring things back to normal as soon as possible. These include cleaning up
the streets, restoring water, and repairing damaged infrastructure. As soon as possible and where
alternatives exist, public schools used for evacuation centers must be restored to their prior use;
children should go back to their classrooms and instruction be normalized.
Priority 2: Resettling the poor survivors. Highest priority must be given to resettling the poor survivors,
those who were living in unsafe areas and who should not be allowed to go back to their previous
homes. The support and actions of public-private partnerships that have been struck between national
and local governments and such groups as Gawad Kalinga, Habitat for Humanity, the UN Habitat, the
Philippine National Red Cross, and others are very much welcome.
Priority 3: Assisting middle class survivors. It is necessary to pay attention to what I call the “forgotten
survivors” – the middle class families who were also affected by the Sendong disaster. Indeed, the
floods that hit both Cagayan de Oro and Iligan cities did not discriminate between rich and poor. By and
large, however, those belonging to the middle class were left on their own and their particular needs
were not given attention. To some extent, as was my personal experience with my own relatives, the
middle class survivors were able to take care of themselves and stand up on their own. But for the long
haul, some help is needed. For example, the government should develop a financial assistance
program that could help these survivors to rebuild their homes or adapt such homes for future disasters.
Assistance should also be provided to those who have to move out of their current homes where it is
clear that is no longer viable to live there.
Priority 4. Helping the business sector. Related to assisting middle class survivors is helping the
business community of the affected places to stand on its feet. There should be an honest appraisal of
economic impacts and mitigation measures must be quickly identified. More specifically, financial
assistance may also be needed so that business can return to normal quickly. As was done in the
Pinatubo disaster, reprieve for loans and concessions in tax obligations could be good and effective
strategies not only for the private sector but also for the middle class survivors mentioned earlier.
Priority 5. Time now to emphasize accountability. After proper investigation and following due process,
it is critical that the appropriate criminal, civil and administrative cases are filed against accountable
officials. I would especially want charged those officials who abetted the activities that exacerbated the
disaster or those who had the information and the power to prevent it (but negligently did not do so).
Lessons must be taught if a disaster like Sendong is not to be repeated.
Priority 6. Be better prepared. The real disaster in natural disasters is our failure to prepare for what we
now know is inevitable. We must quickly put into place disaster preparedness measures – better
forecasting, more effective warning systems (based on expected rainfall, for example), improved inter-
LGU cooperation (Bukidnon could have warned Cagayan de Oro about what was coming), disaster risk
mapping, evacuation plans, and necessary physical infrastructure and interventions to reduce risk.
Knowledge of best practices should be shared and disseminated so every community stand a fighting
chance against the worst disasters.
Priority 7. Reduce risks to disasters. Together with being prepared, we must reduce our risks to
disasters. The Disaster Risk Reduction and Management (DRRM) Act of 2010 lays this down as
national policy, but it fails to do one thing many experts have said is necessary – the creation of a full
time, independent disaster agency. The military and the defense establishment should rightly lead
disaster response, rescue and relief, but they are not equipped to lead the work on reducing risks. A
civilian and expert-led body, headed by a cabinet-level official reporting directly to the President, is
necessary for this. Congress must amend the DRRM law to make this happen.
302
Priority 8. Addressing the roots. We must understand and address the root causes of why Sendong
caused so much death and destruction. There is of course the reality of climate change; this should
make us realize that Sendong was not a singular event but could be part of a new pattern. Accepting
this as a permanent reality, we must now confront some hard facts: our settlement patterns are not
sustainable; deforestation and land degradation must be reversed, which means putting a stop to all
logging and mining in all surrounding areas (including in the Autonomous Region of Muslim Mindanao)
and making agriculture more sustainable; and a massive reforestation and revegetation effort must be
immediately launched. We must enforce our environmental laws strictly. Destructive and extractive
activities, such as logging and mining (legal or illegal, small scale or large scale) and unsustainable
agriculture, should be prohibited.
Priority 9. Implementing adaptation. The most common-sense approach to respond to climate change
is to design and implement adaptation programs. This is not rocket-science. In fact, the National
Climate Change Action Plan is, at its core, an adaptation program. Adaptation requires us to know
where we are vulnerable and what is needed to lessen the risks to us. Every town an Ecotown,
designed to be resilient as well as light on the environment, should be our goal.
Priority 10. Deal with climate change. We must address, as a society and a member of the global
community, the problem of climate change. Unless we reduce the greenhouse gas emissions we are all
loading into the atmosphere, climate change will always run ahead of us and our vulnerability will only
increase. While the Philippines is currently not a major contributor to climate change, we must do our
part as well and stop building coal and other fossil fuel plants that make us lose the moral authority to
call on other countries to reduce their emissions.
Is Sendong bound to be repeated? Yes, it is; because of climate change, this is certain. But, if we
implement the ten identified priorities, its impacts need not be as tragic and horrible as it was in
December 2011. Never again a Sendong – we Mindanawans and Filipinos must promise this to
ourselves and to our children.
Taken from
10 August 2010, Manila Standard Today
Climate Change: Up Close and Personal
Rapper.com – Dean Tony La Viña

22 December 2011
After Sendong: 10 Things We Must Do
Dean Tony La Viña

17 February 2012
Never Again A Sendong: 10 Priorities
303
Annex A
Survey of Writs of Kalikasan

Granted 1 Agham Party List vs. Paje and [Approx. Re: Proliferation of fish
TVPL-PAMB February 15, cages in Taal Volcano
2012 based on Protected Landscape, as
the date of the well as the below standard
news article] water quality
2 Agham Party List vs. LNL June 13, 2012 Re: Leveling of a
Archipelago Minerals, Inc. mountiain in relation to
mining activities in Sta.
Cruz, Zambales
3 Writ of Kalikasan to stop BT [Date not Re: Multi-location field
Talong Field Trials indicated] trials of genetically altered
eggplants that can, in
effect, produce their own
pesticides
4 Writ of Kalikasan to top large [Date not Re: Validity of mining
scale mining in Ilocos and indicated] agreement for not having
Pangasinan been signed by the
President of the
Philippines, and for lack of
prior consultations
5 Philippine Earth Justice Center [Date not Re: Mining in the
Inc., et al. vs. Secretary of indicated] Zamboanga Peninsula;
DENR, et al. 51% of the peninsula’s
land mass already
approved for mining
activities
6 Hernandez vs. Placer Dome June 21, 2011 Re: Severe pollution of
Inc. (Marcopper tragedy) land and waters due to
failure to rehabilitate after
engaging in mining
activities
7 West Tower Condominium [November 19, Re: Continuous operation
Corporation vs. First Philippine 2010,] of a leaking pipeline
Industrial Corporation system
8 Writ of Kalikasan issued [Date not Re: Preventing the
against a reclamation project in indicated] implementation of a plan to
Manila Baty reclaim land covering the
cities of Las Pinas,
Paranaque and Bacoor in
Cavite
9 Writ of Kalikasan issued [July 20, 2012 – Re: Petition to stop the
against Subic coal-fired plant date when it was construction of a coal-fired
filed] plant due to health risks
posed against residents of
Zambales and Bataan
10 Writ of Kalikasan issued [February 21, Re: Petition to stop the
against Obando, Bulacan 2012] construction of a private
coastal landlfill landfill on 45 hectares of
land beside Manila Bay
Denied 11 Case of a denied petition for [Date not Re: The dismantling of
Writ of Kalikasan filed in CA vs. indicated] electricity transmission
MERALCO poles and lines near
houses of Pasay and
Makati residents
304
AGHAM PARTY LIST vs. RAMON PAJE, The PROTECTED AREA MANAGEMENT
BOARD OF THE TAAL VOLCANO PROTECTED LANDSCAPE (TVPL-PAMB)264
Facts:
Agham Party List, in its petition for the issuance of a Writ of Kalikasan, alleged that the
respondents had violated or threaten to violate petitioner’s Constitutional right to a balanced
ecology, including its other Constitutional rights relating to the Taal Volcano Protected
Landscape.
The Agham Party List grounded its action on the fact that its members were allegedly
disturbed by the proliferation of fish cages in Taal Lake to a point exceeding its established
carrying capacity. Also, the party list brought forth the issue that despite efforts to improve the
water quality of Taal Lake, the same still fell below standards in the vicinity of the fish cages.
It likewise called attention to the abusive piggeries operating in the area. The party list
insisted that because of the nutrient loading brought forth by the fish and hog industries, the
Taal Lake’s original mesotrophic-to-oligotrophic state has now to turned eutrophic, which it
backed up with scientific studies. Agham also instilled a sense of urgency to the petition by
alleging that this alarming situation places Taal Lake in imminent and grave danger of
breaching a point where any of the State’s conservation efforts, no matter how intense, will
be futile. It accomplished this by explaining the nature of Taal Lake: that it has a long
retention time making it a very sensitive ecosystem since its waters need 20 years or more to
be flushed out or replaced; that long water retention times means that in-lake changes are
often gradual in nature, thereby difficult to observe; that having a long water retention time
also means that the expected improvements from implementing remedial measures for
specific lake basin problems may take a long time to exhibit visible results.” 265 Furthermore,
Agham cited recent alarming incidents that happened in Taal, including (1) the reported May
to June 2011 bangus fish kill in Taal where 2,105.843 metric tons of fish worth at least
P148.7 million, majority of which were milkfish (“bangus”), died due to a substantial
temperature change in the water, and (2) the December 10, 2011 hog waste incident where a
large volume of piggery waste covering at least half a hectare was seen from the shores of
Taal Lake fronting Lipute River in Mataas na Kahoy, Batangas. To top everything off, Agham
appealed to the emotions of the Court by stating that The Taal Volcano Protected Landscape
is composed of 13 towns and the three cities of Tagaytay, Tanauan and Lipa which are not
only heavily populated but also a major national tourist attraction.
To convince the Court that the remedy they seek is apt and appropriate, the party list argued
that the Writ of Kalikasan is a favored remedy for cases such as this since “the Rationale to
the Rules of Procedure for Environmental Cases states that the ‘writ... was refashioned as a
tool to bridge the gap between allegation and proof by providing a remedy for would-be
environmental litigants to compel the production of information within the custody of
government. ...The scope of the fact-finding power could be; (1) anything related to the
issuance, grant of a government permit issued or information contained in documents such
as environmental compliance certificate and other government records.’” 266 Put simply,
Agham asserts that a Writ of Kalikasan will not only allow “the right to information on the
permit holders and the presence, absence or validity of their prerequisites but also provide
the government agencies with the impetus to work together within the framework of the
NIPAS Act and the PAMB to charge parties liable for the disposition of wastes from piggeries,
the overstocking that led to the fish kill, to charge the costs incurred as well as to assess and
264 Full-text of Supreme Court decision not available;

Writ of Kalikasan, in Agham.org.ph, http://www.agham.org.ph/blog/writ-of-kalikasan.html;
Sunstar.com (2012), http://www.sunstar.com.ph/breaking-news/2012/02/15/convening-taal-lake-management-
set-206235)
265 Id.
266 Id.
305
pinpoint accountability for rehabilitation of the ecosystem damage (supra).” The party list
asserted that the continuing deterioration of the water quality of Taal Lake coupled with its
nature makes it imperative that the best and fastest remedy is secured so that generations to
come may again experience the lake in its original state. This “best” and “fastest” remedy is
the Writ of Kalikasan, the party said.
Ruling:
“The SC granted the petition filed by Agham Rep. Angelo Palmones for the issuance of a
temporary environmental protection order (TEPO) or writ of Kalikasan for the government to
fully implement two laws calling for the phase-out of fish cages and fish pens beyond 2000 in
a bid to protect a balanced and healthful ecology. Specifically, the Writ of Kalikasan
mandated the respondents to refrain from issuing any PAMB clearances for fish cage
operations within Taal Lake in compliance with Sec 45 of RA 8550 and, to draft, submit and
execute an implementation plan for the dismantling of illegal cages starting with the ones in
Talisay, Batangas.
Named respondents were Environment Secretary Ramon Paje, in his capacity as overall
chair of the multi-sectoral group Protected Areas Management Board (PAMB), which
oversees all government-declared protected landscapes; Taal Volcano Protected Landscape
(TVPL)-PAMB chair Reynulfo Juan; and Protected Area Supt. Laudemir Salac. The high
court gave them 10 days to answer the petition.”267
G.R. No. 201918

Agham Party List v. LNL Archipelago Minerals, Inc.268
June 13, 2012
Facts:
Residents of Barangay Bolitoc, Sta. Cruz, Zambales complained to Agham party-list Rep.
Angelo Palmones and Laguna Rep. Danilo Fernandez, chairman of the committee on
ecology of the House of Representatives regarding the mining in their area. These
grievances prompted the two congressmen to conduct on-site inspection.
Upon arrival in the area where the mining is being conducted, the two congressmen were
confronted by heavily armed men. After inspection, Fernandez’s panel recommended to the
Environment and Natural Resources Secretary Ramon Paje the issuance of a cease and
desist order (CDO) against the “irresponsible mining firm.” Come June 4, 2012, or more than
a month after the congressmen pointed out the alarming destruction of environment to
Secretary Paje and the police, LAMI’s backhoes were still conducting mining activities. “LAMI
continued to destroy the environment by cutting mountain trees and leveling a mountain to
the damage and detriment of the residents of Zambales and of the nearby towns of
Pangasinan, without any of the concerned government agencies and officials stopping such
illegal actions and or worse, condoning the same.”269
This development prompted Palmones to file with the Supreme Court a petition seeking the
issuance of a Writ of Kalikasan.
“The special civil action for issuance of a writ of kalikasan with Application for a Temporary
Environmental Protection Order was filed against LNL Archipelago Minerals Inc., the
Department of Environment and Natural Resources, represented by Secretary Ramon Jesus
267 Malaya.com.ph (2012), http://archive.malaya.com.ph/2012/February/02082012/news11.html

268 Supreme Court, in SC.judiciary.gov.ph (2012), http://sc.judiciary.gov.ph/pio/news/2012/06/06211201.php
PhilStar.com (2012), http://www.philstar.com/nation/article.aspx?publicationsubcategoryid=200&articleid=819168
269 Id.
306
P. Paje; Philippine Ports Authority, represented by General Manager Juan C. Sta. Ana; and
the Zambales Provincial Police Office, represented by PS Supt. Francisco DB Santiago.” 270
In the 12-page petition to the Supreme Court, Palmones attached 60 pages of annexes that
contained photographic stills of the site showing its state prior to and preceding the leveling
of the mountain. The pictures depicted, among other things, that the excavated soil were
pushed towards and reclaiming the sea and destroying the corals and natural habitat of the
fishes. Affidavits of complaining residents were also attached to the petition. Palmones
further alleged that LNL Archipelago Minerals Inc. (LAMI) had begun flattening a mountain in
the vicinity of Barangay Bolitoc, Sta. Cruz, Zambales. This mountain is important because it
serves as a natural protective barrier of the residents of Sta. Cruz, Zambales and the
residents of some of the adjacent towns of Pangasinan from typhoons and floods. Once this
natural barrier is damaged substantially, the residents of these two provinces will be
defenseless against typhoons and floods resulting in their lives, health and properties being
in constant risk of being lost or destroyed. Palmones further averred that the residents’ side
was never sought in a discussion or any consultation before LAMI began its operations.
Regarding the technicalities, Palmones said that the permit to construct issued in favor of
LAMI did not authorize it to cut mountain trees nor flatten a mountain for the construction of
its port. The DENR did issue an environmental compliance certificate (ECC) but it was just a
“planning tool” and not a permit. Moreover, the ECC required LAMI to secure pertinent
permits and clearances from all the concerned government agencies. This, the LAMI failed to
comply with.
Ruling:
“The Supreme Court granted the issuance of the writ of Kalikasan sought by Agham Party
List Rep. Angelo Palmones, against Paje, LAMI president Lawrence Lenio and general
manager Philip Floria, Philippine Ports Authority (PPA) general manager Juan Sta. Ana, and
Zambales Police provincial director Superintendent Francisco Santiago Jr.
The Court also referred the case to the Court of Appeals for acceptance of the return of the
writ and for hearing, reception of evidence, and rendition of judgment. The Court also ordered
the respondents to answer the charges, by making a “verified return of the Writ
of Kalikasan before the Court of Appeals within a non-extendible period of (10) ten days from
receipt.”271
The Writ of Kalikasan to stop Bt Talong Field Trials272
Facts:
A petition was filed in April 26, 2012 seeking a temporary environmental protection order
(TEPO) and an issuance of a Writ of Kalikasan to stop the ongoing field trials of the Bacillus
thuringiensis (Bt) eggplant, which was genetically modified to incorporate a gene from the Bt
bacteria, which enables it to secrete its own pesticide against destructive insects.
“Among the petitioners who sought the TEPO were former Senator Orlando Mercado, Puerto
Princesa Mayor Edward S. Hagedorn, Rep. Teodoro Casiño, Dr. Charito Medina of the
scientists and farmers group Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura
(MASIPAG), lawyers Harry Roque and Maria Paz Luna, scientists Dr. Ben Malayang III of
270 Id.
271 Id.
272 Allvoices.com (2012), http://www.allvoices.com/contributed-news/12144216-writ-of-kalikasan-granted-
against-bt-eggplant-field-trials-in-the-philippines.
Masipag.org (2012), http://masipag.org/cms/index.php?option=com_content&task=view&id=123&Itemid=2.
307
Silliman University and Dr. Romeo Quijano of University of the Philippines College of
Medicine, Leo Avila of the Davao City Agriculturist's Office, Catherine Untalan of Miss Earth
Foundation, and activist-musician Noel Cabangon.
On the other hand, the respondents of said petition were the Environmental Management
Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Bureau of
Plant Industry (BPI) and the Fertilizer and Pesticide Authority (FPA) of the Department of
Agriculture (DA), University of the Philippines Los Banos (UPLB) Foundation, Inc., UP
Mindanao (UPMin) Foundation, Inc. and International Service for the Acquisition of Agri-
Biotech Applications (ISAABA)-Southeast Asia Center.” 273
“In support of their petition, the petitioners highlighted the need for a genuine and
comprehensive process of informing and consulting the public to ensure the safety of
Genetically Modified Organisms (GMOs) on people’s health and the environmental before
such are released into the society. Petitioners further argued that GMOs and GMO field trials
clearly violate every Filipino’s constitutional right to a balanced and healthful ecology, and the
invasion into our fields and our diets of such GMOs must be stopped.”274
Greenpeace also pointed out an alarming trend in the Philippine regulatory system governing
GMOs. Greenpeace said that said regulatory system had never rejected at least one
application for GMOs and that it has allowed the dangerous GMO produce to penetrate our
society and diets despite the growing scientific literature regarding GMOs’ bad effects to
health. As a matter of fact, beginning 2002, there was a total of 67 GMOs for importation,
consumption and/or propagation approved by the regulatory agencies. Greenpeace also
wanted to hold the Philippine Department of Agriculture (DA) accountable for not taking a
precautionary approach to GMO, which is the trend followed by developed countries, but has
done exactly the opposite. Greenpeace tried to establish that many independent scientific
studies provide clear and convincing proof that GMOs such as the Bt eggplant have the
capacity to damage one’s liver, kidneys or blood when ingested. Greenpeace also pointed
out that when the GMOs are planted in open fields, the GMOs were found to crossbreed with
natural species, thus endangering biodiversity.
Ruling:
The Supreme Court granted the issuance of the writ of Kalikasan to stop field trials of the
genetically-modified organism (GMO) Bt eggplant (called Bt talong) in the Philippines.
The Writ of Kalikasan to Stop Large Scale Mining in Ilocos and Pangasinan 275
Facts:
SENATOR Aquilino “Koko” Pimentel III prayed for the SC to issue a Writ of Kalikasan against
a mining scheme in the provinces of Pangasinan, Ilocos Norte, and Ilocos Sur. Joining
Pimentel in the petition wre party-list representatives Teodoro A. Casiño (Bayan Muna),
Raymond V. Palatino (Kabataan), Antonio Tinio (ACT Teachers), Luzviminda C. Ilagan
(Gabriela), Emerenciana A. de Jesus (Gabriela); Ilocos Sur Mayor Jeremy Jesus Bueno III,
273 Id.
274 Gene.ch (2012), http://www.gene.ch/genet/2012/May/msg00060.html.
275 Remate.ph (2012), http://www.remate.ph/2012/05/sc-issues-writ-of-kalikasan-vs-large-scale-mining-in-
ilocos-pangasinan/.
Journal.com.ph (2012), http://www.journal.com.ph/index.php/news/national/29297-writ-of-kalikasan-sought-vs
mining-project.
See following articles:
https://environmentallawsummer2012.wordpress.com/category/mining/
http://cuadernoilocano.blogspot.com/2012/05/response-of-supreme-court-for-writ-of.html
http://paulgeniusboy.blogspot.com/2012/05/stop-black-sand-mining-in-ilocos.html
308
and Salcedo, Ilocos Norte Mayor Leonofre Gironella, several local government officials and
residents.
The petitioners alleged that the former Executive Secretary Leandro Mendoza, acting as the
representative of the former president Gloria Macapagal-Arroyo, forged a mining agreement
with Altamina Exploration and Resources, Inc. one day before President Benigno Aquino III
assumed his position as president of the Philippines. Ergo, they claim it was a “midnight
mining deal.” Petitioners also argued that the FTAA should have been signed by then Pres.
Gloria Arroyo, herself, and not by her Executive Secretary. In support of this contention, they
invoke the 1987 Constitution, which states “it is the President of the Philippines who must
enter into agreements involving financial or technical assistance related to the large-scale
exploration, development, and utilization of minerals, petroleum, and other mineral oils.”
The petitioners revealed that the mining operation’s goal was to extract magnetite ore in the
shore and offshore areas of the Ilocos to Pangasinan coastline. Magnetite, also known as
black sand, is used to produce steel, toners for photocopying machines, micro-nutrient in
fertilizers, and high-density concrete. In relation to this, the petitioners averred that magnetite,
or locally termed 'black sand,' is also an "important mineral that should remain in its natural
environment because it keeps sand particles heavier and more compressed" thus serving as
a natural barrier of land surfaces and fresh water deposits from seawater and ensures that
seawater is at a lever lower than land surface area.
An additional ground cited for the granting of the petition was that the mining agreement was
invalid for not having been signed by the President and for being awarded without prior
consultations with the concerned local government units. The petitioners are afraid that the
mining project will result in saltwater flooding, soil erosion, and landslides, and will displace
families living along and near the shoreline. The petitioners also claimed that is the poor local
fishermen who will bear the brunt of the mining operation. It included reports that baranggays
Subec, Paratong, Sinabaan, Pangada, Cabaroan, Tamorong, Cabittaogan, and Poblacion
Sta. Catalina experienced "massive and worsening coastal erosions and shoreline retreat
since 2010," by around 150 meters from 2011 to 2012, and 100 meters from Jan. to Feb. of
2012 in Paratong and Tamorong. To gain more persuasive power, the petitioners cited recent
studies by Brown and McLachlan, Continental Shelf Associates, Inc., Crutchfield, the United
States National Oceanic and Atmospheric Administration Technical Memorandum, and
Center for Environmental Concerns-Philippines that detailed the adverse effects of
exploration and extraction processes on the environment and human life.”
Ruling:
“The Supreme Court issued a Writ of Kalikasan (nature) directing mining firm Altamina
Exploration and Resources, Inc., President Benigno S. C. Aquino III, and two others to reply
to the petition filed by several lawmakers and local government officials seeking to stop the
firm’s mining activities in Pangasinan, Ilocos Sur and Ilocos Norte.
Promulgated by the full court on May 8, the writ ordered respondents Altamina; Mr. Aquino,
as successor of former president Gloria Macapagal-Arroyo; Executive Secretary Paquito N.
Ochoa, Jr., as successor of Leandro R. Mendoza; and Environment Secretary Ramon Jesus
P. Paje "to make a verified return of the Writ of Kalikasan... within a non-extendible period of
10 days from receipt hereof.”
309
G.R. NO. 197754

Philippine Earth Justice Center Inc., et. al vs. Secretary of Department of Environment
and Natural Resources et. al.276
Facts:
The petitioners in this case are Philippine Earth Justice Center Inc. (PEJC), Alliance to Save
the Integrity of Nature, Inc. (ASIN), Kesalubuukan Tupusumi Organization, and all other
individual petitioners who are residents in Zamboanga Peninusula, whose names and
personal circumstances are found in the verification and certification, who are suing on their
behalf and on behalf of the minor Filipinos and of generations of Filipinos yet unborn.
The respondents in this case, on the other hand, are Secretary Ramon Paje as the head of
the Department of Environment and Natural Resources (DENR), Mines and Geosciences
Bureau (MGB), Protected Areas and Wildlife Bureau (PAWB), National Commission on
Indigenous Peoples (NCIP), mining companies and entities with stakes in Zamboanga
Peninsula.
The petitioners alleged that this petition is urgent lest the last of the peninsula’s remaining
forests will be cut off and its mountains flattened or made hollow underneath.
One of the bases for the petition for issuance of the Writ of Kalikasan is the petitioners’
allegation that the respondents violated or threaten to violate petitioners’ right to ecology.
Mining necessitates moving soil to be able to reach and extract the ores containing the
desired minerals deep within the earth. Thus, there is no way that the physical landscape will
not be altered or destroyed along with the greenery on top the petitioners argue. They also
point out that when the forests disappear, the habitats of flora and fauna follow and
watersheds will run dry.
Furthermore, the petitioners argued that the damage to the environment brought about by
mining does not end with the moving of soil and the flattening of mountains; segregative
process will still be applied wherein the precious substances is isolated from the larger mass
of less valuable materials. This larger mass of less valuable materials is then discarded as
waste. The petitioners gave the case of copper mining as an example: almost 95.5% of
materials mined are rejected and become mine wastes. These wastes coming from mining
activities, the petitioners allege, may result in land degradation, ecosystem disruption, acid
mine drainage, chemical leakages, slope failures, toxic dusts, among others. The scale of
this danger is magnified, according to the petitioners, in the case of Zamboanga Peninsula
because 170 mining agreements, at present, are already being entertained or otherwise
being approved. All these permits taken together comprise a total of 808,269.09 hectares,
which is about 51% of peninsula’s land mass. Indeed, the threat to the environment had
become very real and imminent.
Aside from what the petitioners cited as the violations or threatened violations of their
constitutional right to live in the rhythm and harmony of nature, the petitioners also alleged
the lack of capacity of the private respondents to properly enforce environmental regulations
given the vastness of the area being opened and subjected to mining and the track record of
the respondents DENR and MGB. To bolster this argument, the petitioners cited the
environmental catastrophes in Rapu-rapu and Semirara islands which are directly caused by
irresponsible operations of mining companies permitted by public respondent MGB.
Another basis for this petition was the alleged capricious issuances of Mining Tenements,
which violated Sec. 19 (f) of R.A. 7942. Sec. 19 (f) of the Mining Law. This disallowed the
acceptance of mining applications in areas of old growth or virgin forests, proclaimed
276 Elaw.org (undated), http://www.elaw.org/system/files/Writ+of+Nature+(Kalikasan)+v.+Mining+Phils.pdf

310
watershed forest reserves and in areas expressly prohibited under NIPAS and other laws.
The petitioners further buttressed their petition by alleging that respondents violated the
prohibition in Sec. 20 (f) of the NIPAS Law when the respondents issued the mining permits
in the Zambaonga peninsula covering areas, which are part of the eleven (11) sites inside
Zamboanga Peninsula that have been declared as protected areas under the NIPAS Act. It
was also alleged that the respondents violated Sec. 27 (c) of Republic Act 9147, which
considers mineral exploration and/or extraction inside critical habitats of critical, endangered
or vulnerable wildlife species as criminal offenses. The petitioners also claimed that the
respondents violated the Principle of Prior, Free and Informed Consent and other
Environmental law principles under IPRA of the Indigenous Peoples living in the vicinity and
that the Environmental Law Principle on Carrying Capacity was also alleged to have been
violated.
Ruling:
The Supreme Court granted the issuance of the writ of Kalikasan sought by petitioners.
G.R. No. 195482

Hernandez v. Placer Dome Inc. (Marcopper tragedy)277
June 21, 2011
Facts:
The petitioners in this case are three residents of Marinduque province—Eliza Hernandez,
Mamerto Lanete and Godofredo Manoy—seeking the issuance of a Writ of Kalikasan against
Placer Dome, Inc. and Barric Gold Corporation. Placer Dome is Marcopper’s mother
company and has 39.9 percent of the shares in Marcopper. Marcopper began its mining
operations in 1964, which continued up to 1997 in Marinduque.
In the petition, the petitioners stressed that Placer Dome should be held liable for expelling
approximately 2 million cubic meters of toxic industrial waste in the area. The poisonous
wastes were allegedly dumped into the Boac River after the drainage plug holding toxic
mining waste undergoing process broke. According to records of the court, the toxic wastes
spilled and caused flash floods that isolated 4,400 people in five villages along the river.
Barangay Hinapulan suffered greater damage because it was buried under six feet of muddy
floodwater where 400 families had to flee to higher grounds. Also, the petitioners allege that
the drinking water was tainted while fish, freshwater shrimp and pigs were poisoned. As a
result of all these, Placer Dome is considered to have severely polluted the lands and waters
of Marinduque, caused two cataclysmic environmental disasters, poisoned the islanders by
contaminating their food and water sources, and then left the province without cleaning up
the mess-all in violation of Philippine law. The petitioners also pointed out the fact that Placer
Dome did not honor its contract with the former President Fidel Ramos to rehabilitate the
waters in three Luzon provinces—Romblon, Marinduque and Quezon.
The correctness and appropriateness of the Writ of Kalikasan as remedy was justified by the
petitioners by expressing their dismay at how five lawsuits against Marcopper failed to
prosper and reiterated through their legal counsel Fr. Joaquin Bernas that, “...all of these
cases are mired in the courts. After 15 years of litigation, none of them have (sic) even
reached the trial stage,” due to lack of evidence and other technicalities.
277 Elibrary.judiciary.gov.ph. (2001), http://elibrary.judiciary.gov.ph/resolutions.php?doctype=Minute

%20Resolutions&docid=1311122752991342703
Manilatimes.net (2011), http://www.manilatimes.net/index.php/news/regions/1898-ca-ordered-to-take-action-on-
marcopper-mine-disaster).
311
Ruling:
“SC issued the Writ of Kalikasan on March 8 in favor of the three residents of Marinduque
province. The SC stated in its ruling that pursuant to Section 3, Rule VII of the Rules of
Procedure for Environmental Cases, that a “petition for the writ of kalikasan shall be filed with
the Supreme Court or with any of the stations of the Court of Appeals.”
“It was in consonance with this provision that, the (Supreme) Court issued the resolution
which, after granting the writ (of kalikasan) sought by petitioners, referred the case to the CA
for hearing, reception of evidence and rendition judgment,” the SC en banc noted. The
Supreme Court ordered the Court of Appeals to hear and decide the case of the Marcopper
mining tragedy on March 24, 1996 in Marinduque.”
G.R. No. 194239

West Tower Condominium Corporation vs. First Philippine Industrial Corporation
[FPIC]278
Facts:
The West Tower Condominium Corporation, on behalf of the Residents of West Tower
Condo, and in representation of Barangay Bangkal, and others, including minors and
generations yet unborn filed a petition for issuance of Writ of Kalikasan against First
Philippine Industrial Corporation (FPIC), First Gen Corporation and their respective Board of
Directors and Officers, John Does and Richard Roes. FPIC is the operator of the pipeline
system, which transports Chevron and Shell products from Batangas province to Pandacan.
The said pipeline was found to be the source of the oil that had been leaking into the
basement of the West Tower Condominium in Barangay Bangkal, Makati City. The
petitioners allege in the petition that their right to a healthful and balanced ecology was
violated by the continuous operation of the pipeline despite the leak.
Ruling:
“Chief Justice Renato C. Corona granted the Writ of Kalikasan with a Temporary
Environmental Protection Order (TEPO), requiring the First Philippine Industrial Corporation
(FPIC) and First Gen Corporation (FGC) to make a Verified Return within a non-extendible
period of ten (10) days from receipt thereof pursuant to Section 8, Rule 7 of the Rules of
Procedure for Environmental Cases. The TEPO enjoined FPIC and FGC to: (a) cease and
desist from operating the pipeline until further orders; (b) check the structural integrity
of The whole span of the 117-kilometer pipeline while implementing sufficient measures to
prevent and avert any untoward incidents that may result from any leak of the pipeline; and
(c) make a Report thereon within 60 days from receipt thereof.”
Writ of Kalikasan issued against a reclamation project in Manila Bay 279
Facts:
There was a P14-billion project to reclaim land along the Manila Bay coastline. The plan
covered three cities: Las Piñas, Parañaque and Bacoor. Former Las Piñas representative
Cynthia Villar filed the petition for issuance of Writ of Kalikasan to stop the enforcement of
this project. Villar joined the Public Reclamation Authority (PRA), Department of
278 Elibrary.judiciary.gov.ph (2011), http://elibrary.judiciary.gov.ph/resolutions.php?doctype=Minute

%20Resolutions&docid=13119260911184130980,
http://elibrary.judiciary.gov.ph/resolutions.php?doctype=Minute%20Resolutions&docid=1327889687146143532,
http://elibrary.judiciary.gov.ph/resolutions.php?doctype=Minute%20Resolutions&docid=13255585191918099762,
Inquirer.net (2011), http://newsinfo.inquirer.net/15802/environmental-issue-raised-in-west-tower-case
279 GMANetwork.com (2012), http://www.gmanetwork.com/news/story/254585/news/metromanila/sc-issues-writ-
of-kalikasan-vs-manila-bay-reclamation-project.
Yahoo.com (2012), http://ph.news.yahoo.com/supreme-court-issues-writ-kalikasan-vs-manila-bay-
184128347.html.
312
Environment and Natural Resources (DENR), Environmental Management Bureau (EMB),

city government of Las Piñas and Alltech Contractors Inc. (Alltech) as respondents.
In her petition Villar attached the signatures of 315,849 Las Piñas residents and the results of
a hydrological services consultant she hired for the purposes of the petition. Citing the report
of Tricore Solutions Inc. (Tricore), Villar said that it is predicted that the implementation of the
project in conjunction with days of heavy rain might cause five-meter deep floods in 65
barangays. Villar, through her counsel former solicitor general Frank Chavez, cited as
another ground for the issuance of the Writ of Kalikasan the high probability that AllTech
project would cause "irreparable" damage and affect more or less 1.5 million residents in the
three cities above stated.
Villar further warned that the project would destroy one of Metro Manila’s last nature reserves
and bird sanctuaries, which was a clear reference to the Las Piñas-Parañaque Coastal
Lagoon and three mangrove-clad islands therein. Villar also said that the reclamation project
would gravely affect the Las Pinas-Parañaque Critical Habitat, which serves as the home to
over 195 bird species and over eight mangrove varieties. Additionally, Villar avers that the
conversion into a commercial-residential-industrial district would hinder the natural flow of the
Las Pinas, Parañaque, and Zapote Rivers and exacerbate the already grave waterway
problem in the Philippines.
Ruling:
“The SC granted the writ of kalikasan but did not issue a Temporary Environmental
Protection Order (TEPO). The SC said that the government and contractor AllTech
Contractors Inc. (AllTech) could still push through with the project. Moreover, the SC said the
issuance of the writ was merely "procedural" on all Kalikasan cases filed before the high
court.”
Writ of Kalikasan issued against Subic coal-fired plant 280
Facts:
The petition for the Writ of Kalikasan was filed in July 20, 2012 by the party-list groups Bayan
Muna, Kabataan, Gabriela, Anakpawis, and Kalikasan together with residents of Olongapo
City, the Subic Bay Chamber for Health and Environmental Conservation and the No to Coal-
Central Luzon Alliance. The Writ of Kalikasan was being sought against Redondo Peninsula
Energy Inc. (RP Energy), a consortium of giant power firms (Taiwan Cogen, Meralco and
Aboitiz Power) that plans to build the P56-billion 600-megawatt power plant.
The petitioners were seeking to stop the construction of the coal-fire powered plant due to the
health risks it poses to residents of Zambales and Bataan. The petitioners argue that allowing
its construction and operation would violate the constitutional rights of residents of Zambales
and Bataan provinces to a balanced and healthful ecology, as well as provisions in the Local
Government Code and the Indigenous Peoples Rights Act. They stressed that Central Luzon
would be faced with more pollution and disasters if the power plant is allowed to operate.
On July 27, the petitioners led environmental groups and residents of Olongapo City and
nearby towns in Zambales and Bataan in a rally to express their opposition to the project,
with around 2,000 protesters. Olongapo Vice Mayor Rolen Paulino and city councilors
supported the rally, stating that the power plant has, in fact, long been rejected by local
government units in the area.
280 Interaksyon.com (2012),

http://www.interaksyon.com/article/39234/tepo-sought-after-sc-issues-writ-of-kalikasan-on-case-vs-subic-coal-
fired-plant,
http://www.interaksyon.com/assets/documents/file080212.pdf.
313
Ruling:
“The Supreme Court has issued a writ of kalikasan against the Department of Environment
and Natural Resources, the Subic Bay Metropolitan Authority and the Redondo Peninsula
Energy Inc., prompting the petitioners to ask the high court to also issue a temporary
environmental protection order against the planned establishment of a coal-fired power plant
in Subic Bay Freeport Zone. The high court has referred the case to the Court of Appeals for
hearing, reception of evidence and judgment.
Writ of Kalikasan Issued against Obando, Bulacan coastal landfill 281
Facts:
The petitioners in this case were residents of Obando. As for the respondents, they were
comprised of Environment Secretary Ramon Paje, the Environmental Management Bureau
(EMB), Region 3 director Lormelyn Claudio, Bulacan Gov. Wilhelmino Sy-Alvarado,
Bulacan’s Sangguniang Panlalawigan, Obando Mayor Orencio Gabriel, Obando
Sangguniang Bayan, Salambao Sanggunian Barangay, and Ecoshield Development Corp.
(EDC), and the P1-billion project’s proponent.
The petitioners prayed for the Supreme Court to issue a Writ of Kalikasan to stop the
construction of the private landfill on 45 hectares of land in Barangay Salambao, which is
adjacent to Manila Bay. The petitioners argued that the landfill would “destroy a mangrove
ecosystem, cause persistent water, air and soil pollution to its immediate environs, aggravate
the condition of the bay, destroy the livelihoods of coastal residents, and worsen the current
flood problem of Obando and adjacent towns.” 282 The petitioners further alleged that the
officials were reckless and hasty in their approval of the project which resulted in the violation
of their right to a “balanced and healthful ecology,’’ and was, furthermore, a willful disregard
of the Supreme Court’s 2008 order for the rehabilitation of the bay. The petitioners also aver
that they had communicated and met with the environment and local officials a number of
times to air their opposition to the project, but all was for naught. This is the reason why, they
said, they resorted to this petition for issuance of Writ of Kalikasan.
Ruling:
“The Supreme Court issued the ‘Writ of Kalikasan’ in favor of the residents. In the Feb. 21,
2012 resolution, “the court directed the Department of Environment and Natural Resources
and various national, provincial and municipal officials to show that the proposed landfill did
not violate any environmental law or damage to the ecology to the detriment of the people. It
remanded the case to the Court of appeals for hearing, reception of evidence and rendition of
judgment, as well as for the acceptance of the return of the writ.” 283
The Supreme Court ordered the respondents, including Environment Secretary Ramon Paje,
to make a verified return of the writ to the court of Appeals within 10 days of receipt. It held in
abeyance the issuance of a temporary environmental protection order pending the hearing.
The high court also required the petitioners to file a consolidated reply to the respondents’
comments on their petition.”
Case of a Denied Petition for Writ of Kalikasan filed in CA vs. MERALCO284
281 Inquirer.net (2012), http://newsinfo.inquirer.net/155437/high-court-steps-into-bulacan-landfill-dispute-issues-

%E2%80%98writ-of-kalikasan%E2%80%99.
282 Id.
283 Id
314
Facts:
The petitioners were residents of Pasay and Makati who were seeking the dismantling of
electricity transmission poles and lines near their houses. The respondents to this case are
MERALCO, the corresponding barangay captains and officials, and the Manila International
Airport Authority (MIAA).
The petitioners filed their petition with the Court of Appeals and argued that the putting up of
electric poles carrying which hosted 115-kilovolt transmission lines close to their abodes were
consented to by the barangay officials even before having asked the residents about their
opinion on such matter. Said officials also did not study the possible adverse effects of the
putting up of the same to their health. In order to support their petition, the petitioners pointed
to the findings of numerous scientific studies, which tend to show that the energy conducted
through the electric lines cause hazardous effects to the health and safety of the residents
living within the vicinity. Atty. Harry Roque who served as counsel further pointed out that the
local government officials involved did not to comply with the requirements mandated by law
in the constructing and installing of the said poles.
Ruling:
CA dismissed the petition for writ of kalikasan. Petition denied.
284 Harryroque.com (2010), http://harryroque.com/2010/11/11/first-ever-writ-of-kalikasan-filed-in-ca-vs-meralco-

2/
315

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Draft: 28 OctoberSeptember 2012

Law and Ecology:

Environmental Law and Policy

Prof. Antonio G.M. La Viña, JSD

Philippine Environmental Law

Legal Framework for Addressing Environmental Problems

Chapter Eight – Mineral Resources Extraction 193

Overview of the Natural, Socio-economic and Political Landscape

1.1 Land, sea, and the forces of nature

1.3 Legal framework related to environment and natural resources

15 National Statistical Coordination Board (2010).

Table 1: Constitutional provisions relevant to ENR management

Constitution Relevant laws and cases

Article I. The national territory comprises the Philippine archipelago, Law:

Felipe Ysmael, Jr vs.

Cruz vs. NCIP, G.R. No.

Province of North Cotabato

Chavez vs. Public Estates

Valmonte vs. Belmonte, G.R.

Legaspi vs. CSC, G.R. No. L-

Article X. Section 4. The President of the Philippines shall exercise Law:

Section 7. Local governments shall be entitled to an Laws:

Department of Energy Act of

Mining Act of 1995, R.A. 7942

Section 15. There shall be created autonomous regions in Laws:

Sultan Mohamad Ali B.

Republic v. Pagadian City

The Congress may, by law, allow small-scale utilization of Laws:

Agriculture and Fisheries

Apex Mining Co. Inc. v

Section 3. Lands of the public domain are classified into Law:

Taking into account the requirements of conservation,

Section 4. The Congress shall, as soon as possible, Law:

DENR Administrative Order

Apex Mining vs. Southeast

Province of Rizal v Exec Sec

Section 5. The State, subject to the provisions of this Law:

Patricio Cutaran et al. vs.

Mariano Tanenglean vs.

Section 7. Save in cases of hereditary succession, no Cases:

Cheesman vs. IAC, G.R. No.

Section 7. The State shall protect the rights of subsistence Law:

Clean Air Act, R.A. No. 8749

Ecological Solid Waste

Minors Oposa, et al. vs Factoran, et al.

Davide, Jr., J. ponente

Aranda vs. Republic

Villarama, Jr., J., ponente

20 Const. (1987), art. XII, § 2 (Phil.).

Miners Association of the Philippines vs. Factoran

Romero, J., ponente

Pursuant to the mandate of the above-quoted provision, legislative acts were

Cariño vs Insular Government

Holmes, J., ponente

22 Const. (1987), art. X, § 15 (Phil.).

Sec. 3. Definition of Terms.-

Isagani Cruz and Cesar Europa vs. Secretary of DENR, et al

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral

1.3.2 National legislation

Rules of Procedure for A.M. No. 09-6-8- April 29, 2010

Executive Order 26 – National Greening Program February 24, 2011

107 O.G. 1258 #13