Boracay Foundation, Inc. v.

Province of Aklan
G.R. No. 196870, June 26, 2012
FACTS:
Claiming that tourist arrivals to Boracay would reach 1 million in the future,
respondent Province of Aklan planned to expand the port facilities at Barangay
Caticlan, Municipality of Malay. Thus, on May 7, 2009, the Sangguniang
Panlalawigan of Aklan Province issued a resolution, authorizing Governor Carlito
Marquez to file an application with respondent Philippine Reclamation Authority
(PRA) to reclaim the 2.64 hectares of foreshore area in Caticlan. In the same year,
the Province deliberated on the possible expansion from its original proposed
reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the
utilization of its resources.
After PRAs approval, on April 27, 2010, respondent Department of
Environment and Natural Resources-Environmental Management Bureau-Region VI
(DENR-EMB RVI) issued to the Province Environmental Compliance Certificate-R61003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation Project to the
extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty
port.
On May 17, 2010, the Province finally entered into a MOA with PRA which
stated that the land use development of the reclamation project shall be for
commercial, recreational and institutional and other applicable uses. It was at this
point that the Province deemed it necessary to conduct a series of public
consultation meetings.
On the other hand, the Sangguniang Barangay of Caticlan, the Sangguniang
Bayan of the Municipality of Malay and petitioner Boracay Foundation, Inc. (BFI), an
organization composed of some 160 businessmen and residents in Boracay,
expressed their strong opposition to the reclamation project on environmental,
socio-economic and legal grounds.
Despite the opposition, the Province merely noted their objections and issued
a notice to the contractor on December 1, 2010 to commence with the construction
of the project. Thus, on June 1, 2011, BFI filed with the Supreme Court the instant
Petition for Environmental Protection Order/Issuance of the Writ of
Continuing Mandamus. Thereafter, the Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective
comments to the petition.
The Petition was premised on the following grounds, among others:
a) the Province failed to obtain the favorable endorsement of the LGU
concerned;

b) the Province failed to conduct the required consultation procedures as

required by the Local Government Code (LGC).
The Province responded by claiming that its compliance with the
requirements of DENR-EMB RVI and PRA that led to the approval of the reclamation
project by the said government agencies, as well as the recent enactments of the
Barangay Council of Caticlan and the Sangguniang Bayan of the Municipality of
Malay favorably endorsing the said project, had categorically addressed all the
issues raised by the BFI in its Petition. It also considered the Petition to be
premature for lack of cause of action due to the failure of BFI to fully exhaust the
available administrative remedies even before seeking judicial relief.

ISSUES:
WON the petition is premature because petitioner failed to exhaust
administrative remedies before filing this case?
WON there was proper, timely, and sufficient public consultation for the
project?

RULING:
On the issue of prematurity due to failure to exhaust administrative
remedies
The Court held that the petition is not premature for failing to exhaust
administrative remedies and to observe the hierarchy of courts as claimed by the
respondents.
The Court reiterated their ruling in Pagara v. Court of Appeals where they
clarified that the rule regarding exhaustion of administrative remedies is not a hard
and fast rule. It is not applicable where, among others, there are circumstances
indicating the urgency of judicial intervention such as in the instant case. The rule
may also be disregarded when it does not provide a plain, speedy and adequate
remedy or where the protestant has no other recourse.
Meanwhile, the new Rules of Procedure for Environmental Cases, A.M. No. 096-8-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 writ of continuing mandamus allows an aggrieved party to file a verified
petition in the proper court when any government agency or instrumentality or

officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty xxx in connection with the enforcement or violation of
an environmental law rule or regulation or a right therein, xxx and there is no other
plain, speedy and adequate remedy in the ordinary course of law. Such proper
court may be the Regional Trial Court exercising jurisdiction over the territory where
the actionable neglect or omission occurred, the Court of Appeals, or the Supreme
Court.
Here, the Court found that BFI had no other plain, speedy, or adequate
remedy in the ordinary course of law to determine the questions of unique national
and local importance raised that pertain to laws and rules for environmental
protection.
Moreover, 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 courts 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.

On the issue of whether or not there was proper, timely, and sufficient
public consultation for the project
The Court found that there was no proper, timely, and sufficient public
consultation for the project.
The Local Government Code (LGC) establishes the duties of national
government agencies in the maintenance of ecological balance and requires them
to secure prior public consultations and approval of local government units. In
Province of Rizal v. Executive Secretary, the Court emphasized that, under the Local
Government Code, two requisites must be met before a national project that
affects the environmental and ecological balance of local communities can
be implemented: (1) prior consultation with the affected local communities, and
(2) prior approval of the project by the appropriate sanggunian. The absence of
either of such mandatory requirements will render the projects
implementation as illegal.
Here, the Court classified the reclamation project as a national project since it
affects the environmental and ecological balance of local communities. In one
ruling, the Court noted that such national projects mentioned in Section 27 of the
LGC include those that may cause pollution and bring about climate change, among
others, such as the reclamation project in this case.
Also, DENR DAO 2003-30 provides that project 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.
Thus, the law requires the Province, being the delegate of the PRAs power to
reclaim land in this case, to conduct prior consultations and prior approval.
However, the information dissemination conducted months after the ECC had
already been issued was insufficient to comply with the requirements under the
LGC.
Furthermore, the lack of prior public consultation and approval is not
corrected by the subsequent endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan and the Sangguniang Bayan in 2012, which were
both undoubtedly achieved at the urging and insistence of the Province.