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 PRA’s 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-R6-1003-096-7100 (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. 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 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.