Law on Natural Resources

Atty. Manuel A. Rodriguez II, AB, MPA, MM, JD

PHILIPPINES LEGAL FRAMEWORK
THE PHILIPPINES
● More than 7,100 islands
● One of the longest coastlines (36,289km)
● Total land area of almost 300,000 sq. km.
○ But this pales in comparison to the size of marine
territory of 2.2 million sq. km.(EEZ included)
● 1 of 17 countries with most diverse
biological resources.
● 3rd most vulnerable to climate change
(2011 UN Study)
● About 20 typhoons affect the country each
year.
● “Pacific Ring of Fire”
SOCIO-ECONOMIC CONTEXT
● 113.9 Million population
(2021)
● About half (49%) live in
urban areas.
● Philippines ranks number 13 in
the list of countries (and
dependencies) by population.
The population density in the
Philippines is 368 per Km2 (952
people per mi2).
● Employment rate if 95.5 (April
2023) - PSA
 ● Current constitution is
LEGAL FRAMEWORK adopted in 1987
● 3 branches of the
government (executive,
legislative, judiciary)
● Hierarchy of law: all national
laws and executive
implementing regulations
must be consistent with the
1987 Constitution, and the
implementing regulations
must be consistent with the
laws being implemented, and
implementation must be
within the delegated powers.
1987 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 islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines.” - Art. 1
In 2009, RA 9522 established the archipelagic
baselines of the country, declaring a ‘regime of
islands’ in the KGI and Scarborough Shoal in the
South China Sea, which the Philippines refer to as the
West Philippine Sea.
1987 CONSTITUTION
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. v.

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.
1987 CONSTITUTION
Under the Constitution, all natural resources,
including minerals, waters, fisheries, belong to the
State. This is popularly referred to as REGALIAN
DOCTRINE.
A claimant has the burden of proving that the land
has been classified as by the government as
available for private ownership.
The regalian doctrine has been criticized for its
historical inaccuracy. Not all natural resources,
especially land, are necessarily owned by the State.
More particularly, land and natural resources
belonging to indigenous peoples and long-term
occupants fall outside the ambit of this doctrine.
1987 CONSTITUTION
Utilization of natural resources is
generally reserved for Filipinos, except
for large-scale financial and technical
assistance agreements involving
mineral and petroleum resources.
In the case of fisheries, utilization is
reserved exclusively for Filipino citizens,
with priority given to subsistence
fishermen and protection against foreign
intrusion.
1987 CONSTITUTION
The Constitution recognized the rights of
indigenous peoples to their culture, institutions,
and ancestral lands and domain.

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.
1987 CONSTITUTION
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 Carino Case recognized that IPs never lost ownership of their
lands (ancestral domains) evena after the Spaniards came to
claim the Philippines for the Spanish Crown.

In 1997, Congress passed the Indigenous People’s Rights Act

(IPRA, RA 8371) that formally recognized the rights of IPs to their
ancestral domains and ancestral lands.
1987 CONSTITUTION
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 SC Justice Isagani Cruz challenged
the constitutionality of the IPRA.
While the SC 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.
NATIONAL LEGISLATION

● It is often said that the Philippines has comprehensive and advanced

laws to protect the environment and conserve natural resources, but that
these laws are poorly enforced because of financial and technical
capacity limitations.
NATIONAL LEGISLATION

● National resource exploitation was heavily

encouraged since the American and
Philippine commonwealth periods.
● The government implemented a policy
that emphasized economic development,
with little regard for conservation.
● In fact, from 1940’s to 1970’s, the
Philippines was one of the world’s leading
exporters of logs and fisheries.
NATIONAL LEGISLATION

● The 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.
NATIONAL LEGISLATION

● The policy shift from exploitation to

management occured in the 80’s, when
government issued policies to protect
the remaining forest resources while
giving local forest-dependent
communities the right to sustainably use
these resources.
NATIONAL LEGISLATION

● 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.
● CBFM strategy addressed the concern on
sustainable forest management and also
allowed more equitable access to forest
resources.
NATIONAL LEGISLATION

● Other instruments that served these ends

include the National Integrated Protected
Area System Act (NIPAS) and the
Indigenous Peoples Rights Act (IPRA),
which respectively gave local communities
and those of IPs the opportunity to
participate formally in forest management.
NATIONAL LEGISLATION

● 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.
NATIONAL LEGISLATION

● Pollution laws have a relatively

shorter history.
● Before the 70’s, little importance
was placed on waste and
pollution concerns.
NATIONAL LEGISLATION
● As population grew and urbanization
gained momentum, pollution problems and
its attendant woes 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).
INTERNATIONAL AGREEMENTS

● The Philippines automatically adopts the

generally accepted principles of international
law as part of the law of the land.
● However, specific treaties and international
agreements require a two-thirds Senate
concurrence to ratification before they can
take effect.
● Treaties and international agreements must
not contravene the Constitution.
INTERNATIONAL AGREEMENTS

● Environmental laws and policies have

been largely shaped by the country’s
participation and commitment to
implement international environmental
agreements.
 Institutional Framework
Environment and Natural Resources Management
 EXECUTIVE BRANCH

NATIONAL GOVERNMENT

● Office of the Secretary

● Undersecretaries and Asst. Secretaries
● Forest Management Bureau
● Lands Management Bureau
● Biodiversity Management Bureau
● Ecosystems Research and Development Bureau
● Regional Offices
EXECUTIVE BRANCH
EXECUTIVE BRANCH
EXECUTIVE BRANCH
EXECUTIVE BRANCH
 EXECUTIVE BRANCH

LOCAL GOVERNMENTS

● Provincial
● City and Municipal
● Barangay (or village)
EXECUTIVE BRANCH
● The Local Government Code of 1991 (RA
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
responsibilities to manage natural resources
and protect the environment.
● Local legislative councils (sanggunians) may
enact ordinances and resolutions consistent
with the powers and functions delegated by
Congress in the relevant national laws.
LEGISLATIVE BRANCH
● Legislature participates in ENR management in 2
significant ways: through the enactment of ENR
legislation and the enactment of appropriation
laws.
● Specific functions were also imposed under
certain ENR laws.
● A legislative enactment may be necessary to
establish a protected area under the NIPAS Act.
● Congressional oversight committees were
established under the Clean Air Act, Ecological
Solid Waste Management Act, and the Clean
Water Act.
● Local Councils exercise legislative functions
pursuant to delegated powers granted by
Congress.
 JUDICIAL BRANCH
● 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 MAB and the PAB of
DENR have exclusive original
jurisdiction, courts have appellate
jurisdiction.
 JUDICIAL BRANCH

Early 2008, the Supreme

Court designated 84
branches of first-level
courts and 31 second-
level courts as Special
Environmental Courts.
MMDA Decision

In light with the MMDA decision and

recognizing the compliance will take
years, the Court created the Manila Bay
Advisory Committee to assist the Court
in determining compliance.
Environmental Impact Assessment (EIA) and Development
Planning
E.I.A.

● 1977, President Ferdinand Marcos, Sr.

laid down the foundations of a
comprehensive policy to protect the
environment through a system of
environmental impact assessment (EIA).
Department Administrative Order 2003-30

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.”
Presidential Decree No. 1586
Republic v. City of Davao

In this case, 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 v. Davao
In the Davao case, 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

(technica ) issue? Should it have been
more appropriate for the Court to allow
DENR to modify its decision, since it is
the agency vested with the power to
evaluate and decide?
Boracay Foundation v. Aklan

In a later case after Davao 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
Boracay Foundation v. Aklan

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.
DAVAO Case vis-a-vis AKLAN case

The two cases come in sharp contrast on how the Court sees as its
oversight role over the actions of executive agencies.
LOCAL DEVELOPMENT PLANNING

The Local Government Code requires all

LGUs to convene local development
councils to prepare the development plan
for the LGU.
SEC. 106. LOCAL DEVELOPMENT COUNCILS
MEMBERS OF THE LOCAL DEVELOPMENT COUNCIL
MEMBERS OF THE LOCAL DEVELOPMENT COUNCIL
MEMBERS OF THE LOCAL DEVELOPMENT COUNCIL
COMPREHENSIVE LAND USE PLAN

The Local Government Code also

mandates LGUs to prepare
Comprehensive Land Use Plan
(CLUP) that will be the basis of local
zoning ordinances.
Forest and Forestland Management
From “Colors of the Wind” (OST Pocahontas 1995)

You think you own whatever

land you land on
The Earth is just a dead thing
you can claim
But I know every rock and tree
and creature
Has a life, has a spirit, has a
name
SITUATIONER

● Barangay Bunga is an upland community of

farmers.
● Over the past 3 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.
SITUATIONER
● There used to be 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 crops
SITUATIONER

● 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.
SITUATIONER
● 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).
SITUATIONER

● KAINGIN practice continues as

residents clear new areas for farming.
● Farming 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.
SITUATIONER
● 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.
LEGAL ANALYSIS

● LAND CLASSIFICATION
● DENR v. YAP, Et. Al.
○ Forest lands v. Forests
● LAND USE in FOREST
LANDS
LEGAL ANALYSIS

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 Philippines, one
can assume somebody planted it)
LEGAL ANALYSIS

Cutting of any trees in public land

requires permit, even if the trees
were in fact planted and not
naturally growing.
LEGAL ANALYSIS

● The case of Dator

● The Chainsaw Act regulates the use of
chainsaws in cutting and processing
wood products.
● Penal Provisions of the Forestry Code
are illustrated in the Mustang
Lumber and Paat Cases.
● Sama v. People is a new case relating
to IPs and State’s rights over the
forest.
Evolution of Forest Policies

● Marked by rampant and rapid human

utilization and exploitation.
● P.D. 706 - Revised Forestry Code
○ Regulate forestry activities
● License agreements, licenses, leases or
permits that grants 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.
PD 705

● PRESIDENT - “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. (Secs. 2,19,20)

● The law also provide penal sanctions for the

conduct of unauthorized logging and/or other
forest activities, among other things. (Secs. 77-78)
Section 37, P.D. 705

The code paved the way for a more protectionist laws subsequently enforced by
the government.
Wildlife and Biodiversity Conservation
Situationer

● 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 2 kinds: live fish (e.g.
grouper [lapu-lapu], humpback wrasse
[mameng] for food in fancy restaurants, and
aquarium fishes (e.g. lionfish, clownfish,
butterfly fish) for hobbyist.
Situationer

● The high demand and high prices for live fish

abroad has created a big incentive for local
businessmen to get into the business.
● The hobbyist 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
Situationer the fish, the poison eventually ends up
in coral reefs and kills corals and other
associated creatures.
● The 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.
Legal Analysis
● There are 2 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.
○ RA 9147 - Wildlife Protection and Conservation
Act (2001)
○ RA 8550 - Fisheries Code (1998)
● It must be noted that many 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.
Legal Analysis

● In the case of Tano v. Socrates,

the SC had the occasion to
review the local ordinances
issued by Puerto Princesa City
and Palawan Province that
banned the shipment of live fish.
POLICY ON CYANIDE

● Enforcement of the law banning the use

of cyanide is difficult, as shown by the
evidentiary requirements discussed in the
case of Hizon.
● In the Hizon case, the chain of custody of
samples sent for testing was called into
question.
ANALYZING HIZON CASE

● It is worth noting that in the Hizon case,

the prosecution failed to explain the
inconsistency of the first and second
sampling results.
Protected Areas and Watershed Management
Situationer

● Mount 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.
Situationer

● The Tribe considers the forests 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.
Situationer
● The settlers created 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
government and international
academic institutions conducted
biological surveys in Mt. Tinagong
Yaman and found the area is rich in
unique species of plants and animals.
Situationer

● 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 that ran through the mountains.
Situationer
● The scientific discoveries became the
basis of moves to declare the
mountain 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 the area.
● It was also recently discovered that
the area had once been declared as a
forest reserve.
Situationer

● 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.
Situationer
● 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.
Legal Analysis

● The framework for protecting terrestrial and

aquatic ecosystems that are considered
important for biodiversity conservation is the
National Integrated Protected Areas System
(NIPAS).
● NIPAS is recognized in other environmental
laws, such that areas designated for
protection are closed to other incompatible
land uses.
Legal Analysis
● The constant tension between use of
land for conservation and utilization is
exemplified by the cases of PICOP
Resources Inc. v. Base Metals
Mineral Resources Corp and MAB,
and Apex Mining v. Southeast
Mindanao Gold Mining
● Much of the conflict today involves
what are considered “initial
components” of the NIPAS, under
section 5(a)
Policy Analysis
● 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.