Reviewer - Law on Natural Resources And Envi Law cc..New Era University

NEW ERA UNIVERSITY No. 9 Central Ave., Diliman, QC LAW ON NATURAL RESOURCES AND OTHER ENVIRONMENTAL LAWS 1st Semester, SY 2015 – 2015 Schedule: Monday, 8:00PM to 10:00PM Atty. Jonas Leones Undersecretary – DENR Midterm Exam 1.

Government Lands Government lands are lands owned by the government which may be classified into (a) lands of public domain, either alienable or inalienable, or (b) lands of private domain.

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Public Lands Public land is a subset of government land which are lands intended for public use. It.

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Doctrine of Primary Jurisdiction Doctrine of Primary Jurisdiction – the courts will not resolve controversy involving question which is within the jurisdiction of an administrative tribunal especially where the question demands the knowledge, experience and services of administrative tribunal to determine technical and intricate matter of fact.

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Homestead Settlement Homestead Settlement is a mode of disposition of land by which a qualified beneficiary is granted with a portion of land of public domain in exchange of cultivation efforts. Exhaustion of Administrative Remedy Doctrine of Exhaustion of Administrative Remedy provides that court action will not prosper until all the remedies have been exhausted at administrative level. It simply deprives the plaintiff of a cause of action, which is a ground for a motion to dismiss.

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Imperfect Title Imperfect Title is a scenario in which a vested right under a bona-fide ownership is acquired over the land in the absence of a Torrens Title

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Foreshore Lands Foreshore land is a strip of land that lies between the high and the low watermarks that is alternately wet and dry.

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Vested Right Vested right is some right or interest in the property which has become fixed and established and no longer open to doubt or controversy by any parties or regulation. This vested right over a property may not be altered or deprived by executive fiat alone without contravening the due process guarantees of the constitution.

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Ordinary Registration Proceedings Ordinary Registration Proceeding is a proceeding for registration of ‘unregistered’ land filed in RTC, initiated by those who, by themselves or through their predecessors-in-interest, have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier.

10. Cadastral Registration Proceedings Cadastral proceedings is a government initiated proceeding for compulsory registration of ‘unregistered’ land by filing petition against holder/ claimant, otherwise, they lose their right to own their property. 11. Critical Watershed Critical Watershed is a drainage area of a river system supporting existing and proposed hydro-electric power and irrigation works needing rehabilitation.

12. Kaingin Kaingin is a farming method in a portion of the forest land which is subject to slash-and-burn cultivation having little or no provision to prevent soil erosion. 13. Forest Land Forest Land is a type of land under the constitution which is beyond the commerce of man and may not be alienated or disposed. It includes public forest, permanent forest and forest reservations. 14. Laches Laches is based on the maxim that "equity aids the vigilant and not those who slumber on their rights." It is a failure or neglect for an unreasonable time to assert a right, warranting a presumption that the party entitled thereto has either abandoned on declined it. 15. Financial or Technical Assistance or Agreement A Financial or Technical Assistance Agreement is a contract involving financial or technical assistance for largescale exploration, development, and utilization of natural resources, in which the collection of government share shall commence after the contractor has fully recovered its preoperating expenses. In case of FTAA, any legally-organized foreign-owned corporation is deemed a “qualified person.” 16. Ore Transport Permit Ore Transport Permit is a permit specifying the origin and quantity of non-processed mineral ores from mine site to warehouse. 17. Exploration Permit Exploration permit grants a qualified person the right to conduct exploration for all minerals in specified area. 18. Filipino Owned Corporation Filipino-Owned Corporation refers to a corporation owned by Filipino shareholders of at least 60% ownership. 19. Multiple Use Management Multiple use management provides that only utilization, exploitation, occupation or possession of natural resources that will produce optimum benefits, with least injury, shall be allowed. 20. Principle of Intergenerational Responsibility Principle of Intergenerational Responsibility provides that man bears a solemn responsibility to protect and improve the environment for present and future generations. Essentially, the principle means that we hold the natural resource treasures of the earth in trust for the benefit, enjoyment and use of the generations of humankind yet to come. Problems 1. Regalian Doctrine v. Doctrine of Native Titles Regalian Doctrine is enshrined in Article XII, Section 2 of the 1987 Constitution which provides that all lands of public domain, including its natural resources, belong to the state. All lands not appearing to be of public domain presumptively belong to the state. On the other hand, Doctrine of Native Titles provides that that indigenous people may obtain recognition of their right over ancestral lands and ancestral domain by virtue of a native title. Both provision is harmonized in the doctrine enshrined in Cruz v. DENR, which provides that the ancestral domains are areas owned by the indigenous people since time immemorial, hence, these were never part of public domain. Since these lands were never a part of public domain, therefore, they are not covered by the Regalian Doctrine. 2.

Discuss the forms of mineral agreement: Co-production Agreement, Joint Venture Agreement and Production Sharing Agreement Under Section 2, Article XII of the Constitution, the State may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or 1

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 25 years, renewable for not more than 25 years. Co-production agreement is an agreement between government and a contractor where the government will share inputs on mining operations other than minerals. Meanwhile, in joint venture agreement, the government enters into a business venture to set-up a firm in which share of equity and gross revenue is expected. On the other hand, a production-sharing agreement is where a government provides an exclusive grant to a corporation for the utilization of natural resources in exchange of taxes or royalties. 3.

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Is A liable under Forestry Code for cutting trees within his ancestral land? Yes. A is liable under Forestry code. Under the law, cutting and removing of trees/timber without necessary permit from DENR, regardless of ownership or location of the trees, is punishable by law. It is also in consonance with Regalian doctrine that all lands of public domain and natural resources are owned by the state. In the case at bar, although the land of A is an ancestral domain, the trees planted over the land is still subject to the Forestry Code which prohibits the cutting done by A. Therefore, A is liable under the penal provisions of the Forestry Code, equivalent to the penalty of qualified theft as the case may be. Is mere possession of trees/timber liable under forestry code? Yes. Mere possession of trees/timber without necessary permit from DENR is a prima facie evidence of violation of the Forestry Code. Perpetrators liability will be equivalent to that of qualified theft, as the case may be.

GENERAL RULE ON PRIVATE LANDS 

Private lands can only be transferred or conveyed to: 1. Filipino Citizen 2. Corporations or associations incorporated in the Philippines, at least 60% of capital is owned by Filipino Citizen

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Exception on the general rule: 1. In intestate succession, where an alien heir of a Filipino is the transferee of private land 2. A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private land, subject to limitation provided by law. Hence, land can be used only for residential purposes. In this case, he only acquires derivative title. 3. Foreign states may acquire land only for embassy and staff residential purposes.

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Filipino citizenship is only required at the time the land is acquired. Thus, loss of citizenship after acquiring the land does not deprive ownership.

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Restriction against aliens only applies to ownership. Therefore: 1. Aliens may be lessees or usufructuaries of private lands 2. Aliens may be mortgagors of land, as long as they do not obtain possession thereof and do not bind foreclosure sale.

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Land tenure is not indispensable to the free exercise of religious profession and worship. A religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes

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Remedies to recover private lands from disqualified aliens (provided that the alien has not passed ownership to qualified person yet): 1. Escheat proceedings 2. Action for reversion under Public Land Act 3. An action by the former Filipino owner to recover the land. (Remarks: Pari delicto principle has been abandoned.)

What us the jurisdiction of MTC in land registration proceedings? Application for registration shall be heard in RTC. However, MTC has the delegated jurisdiction to hear and determine cadastral or land registration cases in the following instances: 1. 2.

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corporation may validly own the land since private lands are alienable and not part of the public domain.

Where the lot sought to be registered is not the subject of the controversy Value of the lot does not exceed P100,000.00

What are the instances when an aggrieved party be allowed to file directly to court without exhaustion of administrative remedy? 1. 2. 3.

When there is a violation of due process When the issue involved is purely question of law When the administrative action is patently illegal amounting to lack or excess of jurisdiction 4. When there is estoppel on the part of the administrative agency concerned 5. When there is irreparable injury. 6. When the respondent is department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter 7. When to require exhaustion of administrative remedies would be unreasonable 8. When it would amount to the nullification of the claim 9. When the subject matter is a private land in land case proceedings 10. When the rule does not provide a plain, speedy and adequate remedy 11. When there are circumstances indicating the urgency of judicial intervention 7.

May a private corporation acquire ownership over lands of public domain? As a general rule, corporation is not allowed to own lands of public domain. However, the only way for a Filipino Corporation to own lands of public domain is thru adverse possession under bona fide ownership of a predecessor in interest. Hence, if a land is already a private land, a 2

CA 141: Public Land Act Article I of 1987 Constitution. National Territory The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. Differentiate Imperium v. Dominium Imperium is the State’s authority to govern. It covers such activities as passing laws governing a territory, maintaining peace and order, and defending it against foreign invasion. On the other hand, dominium is the capacity to own or acquire property. It covers such rights as title to land, exploitation and use of it, and disposition or sale of the same. Regalian Doctrine is under the realm of dominium. What are the natural resources of the State? The natural resources of the State are: [1]All

lands of the public domain

waters [3]minerals [4]coal [5]petroleum [6]other mineral oils [2]

[7]all

forces of potential energy

fisheries [9]forests or timber [10]wildlife [11]flora and fauna [12]other natural resources [8]

Who are the Indigenous people? Indigenous People refer to a group of people who have continuously lived as an organized community on communally bounded and defined territory. These groups of peoples have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial. Differentiate ancestral land v. ancestral domain Ancestral land refers to the land occupied by the individual families and clans who are member of indigenous cultural community since time immemorial. Ancestral domain, on the other hand, is defined as areas generally belonging to industrial communities. What are the classification of lands? 1. In general: I. Lands of Public Domain (a.k.a Public Land) A. Alienable 1. Agricultural Land B. Non-Alienable 1. Forest or Timber Land 2. Mineral Lands 3. National Park II. Lands of Private Domain – Land belonging to the state as a private individual without being devoted for public use, public service or development of national wealth 2.

According to Civil Code I. Public Dominion – Those intended for public use; these properties are: (1) Outside the commerce of man; (2) not subject to levy, encumbrance or disposition through public or private sale. II. Patrimonial Properties – Former properties of the public dominion that are no longer intended for public use or public service.

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According to the 1987 Constitution I. Agricultural Land II. Forest or Timber III. Mineral Lands IV. National Park

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According to 1973 Constitution Agricultural, industrial, commercial, residential, resettlement mineral, timber or forest, grazing lands, and other classes as may be provided by law.

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According to 1935 Constitution I. Agricultural Land II. Forest or Timber III. Mineral Lands

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According to Public Land Act I. Alienable or disposable II. Timber III. Mineral Lands

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Classification of Public Lands Open to Disposition I. Agricultural II. Residential, commercial, industrial, or for similar productive purposes III. Educational, Charitable, or for other similar purposes IV. Reservation for town sites and for public and quasipublic purpose.

Who shall make classification provided for in Public Land Act? The President, upon recommendation by the Secretary of Environment and Natural Resources, shall, from time to time, make the classification and reclassification of lands from one class to another. Before the President could alienate or dispose the lands of public domain, the President must first officially classify these lands as alienable and disposable and declare them open for disposition. Classification is a prerogative of the executive department and not the court. No public land can be acquired by private person without express or implied grant. Unless public land is shown to have been reclassified or alienated to a private person by the State, it remains part of inalienable public domain. Therefore, possession in the concept of owner, no matter how long, cannot ripen into ownership and be registered as a title. Differentiate classification v. reclassification in line with PLA Classification means grouping of lands similar to each other, either as agricultural, forest or timber, mineral or national park, while reclassification means transfer of land from one class to another. Proper classification is essential because only lands classified as agricultural land may be alienated and disposed. How may public lands be disposed? 1. Homestead settlement 2. Sale 3. Lease 4. Confirmation of imperfect/incomplete title 4.1 Judicial legalization 4.2 Administrative legalization I. 1. 2. 3. 4. 5. 6.

HOMESTEAD Citizen of the Philippines Over 18 years of age or head of the family Not exceeding 12 hectares Must have cultivated and improved at least 1/5 of land continuously since approval of the application Resided for at least 1 year in the municipality in w/c the land is located or in the municipality adjacent to the same Payment of required fee

II. SALE What are the qualification for sale of public land? 1. Citizen of the Philippines 2. Over 18 years of age or head of the family 3. Not exceeding 12 hectares 4. Mode of sale through sealed bidding 5. Paid in full or 10 annual equal installment 6. Must have cultivated and improved at least 1/5 of land within 5 years from date of award 7. Must show actual occupancy, cultivation and improvement of at least 1/5 of the land until the date of final payment Requisites of a private sale 1. A Filipino citizen of legal age 2. Not the owner of a home lot in the municipality in which he resides 3. Have established good faith 4. Have construed his home and actually resided therein 5. Lot to be purchased not more than 1,000 sqm 3

Section 59 classifies land disposable under Title III as follows: Lands reclaimed by the government 1 by dredging, filling or other means 2 Foreshore Lease only Marshy lands or lands covered with 3 water bordering upon shores or banks of navigable lakes or rivers Lands not included in any of the 4 Lease/ Sale foregoing classes

may be conveyed or inherited. No subsequent law can deprive him of the vested right. If he complied, he acquires the property right. Not only a right to grant but the grant from the government.

III. LEASE What are the qualification for Lease? A. Filipino Citizen 1. Not to exceed 500 hectares 2. 1/3 of the land must be cultivated within 5 years. B. Corporation 1. 60% Filipino-owned 2. Period of lease: not to 25 years, renewable for not more than 25 years. 3. Not to exceed 1,000 hectares 4. 1/3 of the land must be cultivated within 5 years.

Does res judicata operates against third party with a better right? Res judicata will not operate against a third party who appears with a better right and title to the property. It does not operate as a bar to the proceedings for registration instituted on the grounds of new evidence. Res Judicata, a brocard, is a basic principle of law which provides that a matter judged by a competent court may not be pursued by the same party. The requisites of Res Judicata are: 1. The former judgment must be final 2. Judgment must be on the merits of the case 3. The former decision is rendered by the court having jurisdiction over the subject. 4. There is similar identity of parties, subject matter and cause of action for both cases.

Conditions of Lease of public land:  Lessee construct permanent improvement of the land  At the expiration of the lease, all improvement shall become government’s property Limitations regarding Alienable land of Public Domain Limitations on area Lease* Sale Private Corp. 1,000 hectares n/a 12 hectares (thru Filipino Citizen 500 hectares purchase, homestead or grant) *Lease period cannot exceed 25 years, renewable for not more than 25 years X filed a lease to a foreshore land. Subsequently, it was converted into a commercial or industrial land prior to the approval of the lease. Will the application be terminated? NO. The application of the lease will not be terminated. The subsequent classification of foreshore land into commercial or industrial land shall not result in the revocation of the lease, since the said land was a foreshore land at the time the application was filed. IV. CONFIRMATION OF IMPERFECT AND INCOMPETE TITLE A. Judicial legalization Applicable to the following citizens occupying lands of public domain or claiming to own any such lands or interest therein but whose titles have not been perfected or completed. (Under RTC’s jurisdiction) Requisites for judicial legislation: 1. Applicant must be Filipino Citizen 2. By themselves or through their predecessor in interest, possessed and occupied A&D agricultural portion of public domain 3. OCENPO since June 12, 1945 under a bona fide ownership 4. Must be filed in proper court B. Administrative legalization (Free Patents) What are the qualification for administrative legalization? 1. Any natural-born citizen of the Philippines 2. Not the owner of more than 12 hectares 3. Has continuously occupied and cultivated either by himself and or his predecessor in interest 4. Subject land must be an agricultural land 5. Real estate tax must be paid 6. Land not occupied by any other person 7. Prescriptive period of 30 years, under a bona fide claim of ownership 8. FP to be granted not to exceed 12hectares What is the effect of compliance with legal requirements of a homesteader? Even without a patent, he acquires vested right and is to be regarded as equitable owner thereof, unaffected by the fact that the paramount title to the land is still in the government. Such land

Who has the burden of proof to show that the land is alienable and disposable? The presumption that the land subject of an application for registration is alienable and disposable rests with the applicant.

What are the non-registrable properties? 1. Property of public dominion 2. Forest lands 3. Watersheds 4. Mangrove swamps 5. Mineral lands 6. National parks 7. Military or naval reservations 8. Foreshore lands or reclaimed areas 9. Submerged areas 10. Lakes 11. Navigable Rivers 12. Creeks 13. Reservations for public and semi-public purposes What is Torrens System? Torrens System is a system of land titling in which register of land holding guarantees an indefeasible title to those included in the register. Upon expiration of one year from its issuance, the certificate of title shall become indefeasible. May an applicant transfer/convey/encumber his rights to the land and improvements of the homestead? YES. An applicant may transfer his rights to the land and improvements to any person legally qualified, provided: 1. Such conveyance does not affect any right or interest of the government 2. The transferee is not delinquent 3. There is a prior approval Secretary of DENR Failure to meet any of the above requirement will make the transfer NULL and VOID. Additionally, any person who transfer his rights may not again apply for a new homestead. A, under adverse possession of 30 years, claims ownership of a parcel of land. The land was only classified as A&D on his 25th year of occupation in the land. Does A have vested right in the land? (Malabanan v. Republic) YES. A have vested right in the land and may apply for judicial legislation of imperfect title. The law provides that there must be an OCENPO of at least 30 years under a bona fide ownership. It is not necessary that the land first be classified as alienable and disposable at the time claim of ownership could start. The law merely requires that the property must be alienable and disposable at the time the application is filed. If the land under adverse possession is a forest land, will your answer be the same? NO. Occupation in a forest land in the concept of owner, no matter how long, cannot ripen into ownership and be registered as a title. It is expressly stated in the constitution that alienable lands of the public domain shall be limited to agricultural lands. Since the land occupied by A is a forest land, therefore, he cannot have vested right over the property.

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Supposing that A sold the land to ABC Corporation without yet securing a title to the land after 30years of adverse possession, may ABC Corp validly register the land to the corporation’s name? ABC Corporation may validly register the land in the Corporation’s name. The confirmation of imperfect and incomplete title has the following basic requisites: (1) Applicant must be Filipino Citizen; (2) Registration must be made by themselves or through their predecessor in interest, possessed and occupied A&D agricultural portion of public domain; (3) OCENPO since June 12, 1945, or at least 30 years under a bona fide ownership; and (4) It must be filed in proper court. In short, a corporation may only validly own a land once that it is already a private land. In the case at bar, the only way that a corporation acquire ownership over land of public domain is through adverse possession of a predecessor in interest. Although the land was not titled yet, A acquires vested right and is to be regarded as equitable owner thereof. Such land may be conveyed or sold. Since A validly acquire the right to the land by meeting the requisites mentioned above, hence, it is already converted into a private land, thus, he may convey the land validly to ABC Corporation. Differentiate direct attack v. collateral attack in land registration proceeding. Collateral attack means that the ownership of the land is not the main cause of action of the case, hence, it may be filed to MTC. Direct attack, on the other hand, means that the ownership is the main cause of action of the land sought to be registered. Hence, RTC acquires proper jurisdiction over the case. What is Special Patent? Special Patent is a grant by law of a property in favor of a government agency pursuant to a special law, proclamation and special order. It is a proclamation from the president that titles a land in favor of a school, university or other government entity for special/specific purpose. Differentiate a patent v. registration A patent or a grant only operates between the grantor (Government) and the grantee (beneficiary), while the act of registration conveys or affects the transfer of land and binds third parties. A public land patent, when registered in the registry of deeds, is a veritable Torrens Title, and becomes indefeasible upon the expiration of 1 year from the date of its issuance. What are friar lands? Friar lands are lands purchased by the government from religious corporations for sale to actual occupants. These friar lands are not public lands but private or patrimonial property of the government. May the government be barred by prescription by laches? NO. The government is not barred by prescription by laches if the State is the real party in interest to assert its own rights. PROHIBITED ALIENATIONS Why is there a prohibition? The prohibition has the avowed purpose of giving the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given him as a reward for his labor in cleaning and cultivating it. 

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The transaction when a homesteader sold a portion of a homestead on an understanding that actual conveyance will take effect after the 5-year prohibitory period is null and void because the law does not distinguish between executory and consummated sales. RIGHT TO REPURCHASE  Period to repurchase within 5 years from the subsequent transfer/ sale.  Right to repurchase can be exercised even in the absence of any stipulation in the deed of sale  Right to repurchase cannot be waived. FRAUD Actual or Constructive 1. Actual/ Positive Fraud – Intentional deception by misrepresentation of material fact 2. Constructive Fraud – Construed as fraud because of its detrimental effect upon public interest and private/public confidence, even though the act is not designed to commit fraud or injury Extrinsic or Intrinsic 1. Extrinsic – Employed to deprive parties of their day in court; preventing them to assert their right to their property 2. Intrinsic – Fraudulent acts pertaining to an issue involved in the original action, or when acts constituting the fraud could have been litigated therein 

Court will deny relief if fraud is constitute in the presentation of the trial If the owner of an uncultivated land allowed a bona fide grantee to till/improve the land, the owner lose all rights to the parts of the land

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Differentiate Action for Nullity v. Reversion Action for Nullity Reversion Initiated by Private individual The Gov’t thru SolGen Party-InPlaintiff & Respondent The State Interest have at least two titles *The difference lies in the allegations as to the character of ownership of the realty whose title is sought to be nullified. Pertinent Would require plaintiff’s Would admit state allegation ownership prior to the ownership of the land. issuance of patent and title vis-à-vis the defendant’s document of title. Nature of Claims of ownership of Claims of ownership of property the land as private the land as public property property

When is Reversion improper? No. 1

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Scenario At the time of the issuance, it is no longer a public property

Though the title was obtained by fraud, it was already sold to an innocent buyer for value and in good faith who are holding a torrens title

Rationale The government is not the real party-in-interest, since the property is already PRIVATE. Here, the court may direct the defendant to RECONVEY the parcel of land to the true owner. Fraudulent title may be a root of a valid title in the name of an innocent buyer-for-value and in good faith

Any transfer of the land acquired thru homestead and free patent within 5 years from the date of the grant shall nullify the alienation/ transfer and constitute the reversion of the property to the state. Approval from Secretary of DENR is merely directory. Hence, it does not invalidate any transfer because such approval may be secured at any time in the future. Even if only part of the land has been sold or alienated, it is a sufficient cause for reversion.

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PD 706: Revised Forestry Code Distinguish Forest v. Forest Land Forest is a large track of land covered with a natural growth of trees and underbrush. On the other hand, forest land is a classification of land under the Constitution that is part of public domain which is beyond the commerce of man and may not be alienated or disposed. The former is a description of what the land appears, and the latter is a legal classification for legal purposes. However, it must be stresses that legal nature or status does not have to be descriptive of what the land actually looks like. Therefore, a land may be urbanized, yet still classified as forest land. What are the three (3) types of Forest? 1. Public Forest – a mass of land of public domain which has not been a subject of the present system of classification. 2. Permanent Forest/ Forest Reserves – lands of public domain which have been subject of the present system of classification and determined to be needed for forest purposes 3. Forest Reservation – Forest lands which have been reserved by the President of the Philippines for any specific purpose. Differentiate Watershed, watershed reservation and critical watershed  Watershed is a land area drained by a stream or fixed body of water and its tributaries having a common outlet for surface run-off.  Watershed Reservation is a forest land reservation established to protect or improve the conditions of the water yield thereof or reduce sedimentation.  Critical Watershed is a drainage area of a river supporting existing and proposed hydro-electric power and irrigation works needing immediate rehabilitation as it is being subjected to a fast denudation causing accelerated erosion and destructive floods. Notes:  Legality of closure of logging road is a justiciable question  Regalian Doctrine provides that all lands of public domain, including Forest lands, belong to the state and are not alienable and disposable. Hence, any title issued on such nondisposable lands, even if it is in the hands of a purchaser in good faith and for value shall be CANCELLED. International Hardwood & Veneer Co. v. UP GR 521518, Aug. 13, 1991 Issue: Does UP have the authority to collect forest charges to supervise the operation of the petitioner of a previously reclassified forest land? Yes. Even though the operation of the petitioner in the land began when the land is still a forest land, it completely removed the said land from public domain thru the Presidential Proclamation, hence, made UP the absolute owner of the property. Therefore, UP have the authority to collect forest charges to the petitioner. However, the right of the existing concessions in the land must be respected, even though it is no longer a forest land, until concession expires. Preservation and protection of forest  Ramos v. Director of Lands: “The prodigality of the spendthrift who squanders his substance for the pleasure of the fleeting moment must be restrained for the less spectacular but surer policy.”  A license is not a contract, property or right protected by due process clause of the constitution. It does not create an irrevocable right. It can be withdrawn or cancelled in the exercise of the police power of the state whenever dictated by public interest or public welfare.  No forest land 50% in slope or over may be utilized for pasture purposes.  Wildlife may be destroyed, killed, consumed, eaten or otherwise disposed of, without necessity of permit, for the protection of life, health, safety and property, and the convenience of the people.

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Cutting, gathering, collecting and removing timber or other forest products from any forest land, or timber from alienable or disposable public and, or from private land without any authority; and Mere possession of timber or other forest products without the legal documents required under existing forest laws and regulations. 

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In the second offense, it is immaterial whether the method of gathering the timber is legal or not. Mere possession of the forest product without the proper document is a prima facie evidence of the crime. Violation of Section 68 is an offense equivalent to Qualified Theft (Articles 309 and 310 of RPC). It is not qualified theft per se, but imposes only a penalty equivalent to that of qualified theft. The elements of the crime of qualified theft of logs are: (1) that the accused cut, gathered, collected or removed timber or other forest products; (2) that the timber or other forest products belong to the government or to any other private individual; and (3) that the cutting, gathering, collecting or removing was without authority granted by the state. Illegal Forest Products – Any forest products that are removed, cut, collected, processed and/or transported: (a) without the requisite, authorization or permit; or (b) with incomplete supporting documents; (c) with genuine authorizations or permits and/or supporting documentation that have an expired validity, have been cancelled or that contain forged entries; or (d) with spurious (fake) authorizations, permits and/or supporting documents. This offense is considered as Mala Prohibita. Characteristics of Mala Prohibita are: (1) it is prohibited by a special law; (2) Commission of the prohibited act is a crime itself; (3) Good faith is not a defense; and (4) intent is immaterial. Any timber/forest product, as well as the machineries, equipment and tools illegally used in the area where the timber or forest products are found, shall be confiscated in favor of the government. Reward to informant shall be 20% of the proceeds of confiscated forest products Mustang Lumber, Inc. v. CA: Lumber is a processed log or timber. The legislative intent is to include mere possession of lumber without legal documents punishable under Section68 of Revised Forestry Code. A forest officer or employee may arrest without warrant any person who has committed, or is committing in his presence any of the offense defined in the code. If an officer arrests an alleged perpetrator without a warrant, and without violating any offense in the code in his presence, the officer shall be investigated administratively. Forest products and other items seized and confiscated upon authority of the DENR Secretary is lawfully taken by virtue of legal process and is deemed to be in custodia legis, therefore, beyond reach of replevin. Appeal: Forest Management Bureau  DENR Secretary  President; Courts cannot review the decisions of the DENR Secretary except through special civil action for certiorari or prohibition. A suit against public officers acting within the scope of their authority is a suit against the state and cannot prosper without its consent.

II. Pasturing livestock III. Illegal occupation of national parks system and recreation areas and vandalism therein IV. Survey by unauthorized persons V. Misclassification and survey by government official or employee

Criminal offenses and penalties I. Section 68 of PD 705 6

without the permission from the State, because the right to possess or own the surface ground is separate and distinct from the mineral land over the same land.

RA 7942: Philippine Mining Act of 1995 Constitutional Basis: Section 2, Article XII of 1987 Constitution 

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All lands of the public domain, xxx and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated.

Even though location of a mining claim has been perfected, it does not bar the government’s exercise of its power of eminent domain.

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The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.

The right of eminent domain covers all forms of private property, tangible or intangible, and includes rights which are attached to the land.

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All projects relating to EDUC of natural resources are projects of the state, thus, the projects nevertheless remain as state projects and can never be purely private endeavors.

The State may directly undertake such activities, or it may enter into co-production, joint venture, or productionsharing 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. xxx The President may enter into agreements with foreignowned 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. xxx

Four (4) modes of Exploration, Development and Utilization of Natural Resources (Shall be under the full control and supervision of the State) I.

The state may directly undertake such activities

II.

The state may enter into co-production, joint venture and production sharing arrangement with a. Filipino citizen b. Corporation or association at least 60% of whose capital is owned by such citizen.  It should not exceed 25 years, renewable for not more than 25 years

III. Congress may, by law, authorize small-scale utilization of natural resources by Filipino citizen; (Congress may also authorize cooperative fish farming, with priority to subsistence fishermen and fish- workers in rivers, lakes, bays, and lagoons.) IV. The President may enter into agreements with foreignowned corporations involving either technical or financial assistance for large-scale EDU of minerals, petroleum, and other mineral oils  It should be 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 under this provision, within 30 days from its execution.  Management and service contracts are not allowed under this rule  Large-scale EDU pertains to area covered and not the amount of investment. Section 4: Ownership of Mineral Resources. Mineral resources are owned by the State, and the exploration, development, utilization and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may enter mineral agreements with contractors. 

Thus, if a person is the owner of an agricultural land in which minerals are discovered, his ownership of such land does not give him the right to extract or utilize the said minerals

Section 5: Mineral Reservations. When national interest so requires xxx, the President may establish mineral reservations upon the recommendation of the Director through the Secretary. xxx 

This section empowers the president to enter into mineral agreements with contractor if the national interest so requires.



Hence, it is beyond the power of the DENR Secretary to withdraw lands from forest reserves and to declare the same as an area open for mining operations.

Classification of minerals No. Group 1 First Group 2 Second Group 3 Third Group 4 Fourth Group 5

Fifth Group

Mineral Metals or metalliferous ores Precious stones Fuels Saline and mineral waters Building stone in place, clays, fertilizers and other non-metals

Definition of terms: Exploration – searching or prospecting for mineral resources by surveys, remote testing, etc. for the purpose of the existence, extent, quantity, quality and feasibility of mining them for profit. Development – work undertaken to explore and prepare on ore body or a mineral deposit for mining, including the construction of necessary infrastructure and related facilities. Utilization – extraction or disposition of minerals Foreign owned corporation – Any juridical entity with less than 50% Filipino-owned capital Qualified Person – any citizen of the Philippines with capacity to contract, or a juridical entity with technical and financial capability to undertake mineral resources development with at least 60% Filipino ownership 1. Individual a. Must be a Filipino Citizen b. Of legal age c. With capacity to contract 2. Juridical entity (corporation, partnership, cooperation or cooperative) a. Must be organized or authorized for the purpose of engaging in mining b. Duly registered in accordance with law c. 60% Filipino ownership Abandonment is the actual relinquishment of right; giving-up absolutely with intent never again to resume or claim one’s right or interest. 2 elements of abandonment: 1. INTENT to abandon a right or claim 2. EXTERNAL ACT by which intention is expressed and carried out to that effect. 

Mineral resources are BEYOND the commerce of man. Thus, they cannot be subject of patent. 7



Section 19: Areas Closed to Mining Operations. 1. In military and other government reservations 2. Near or under public or private buildings, cemeteries, archeological and historical sites, etc. 3. In areas covered by valid and existing mining rights 4. In areas prohibited by law 5. In areas covered by small-scale miners 6. Old growth or virgin forests, proclaimed watersheds, forest reserves, etc. and in areas prohibited under NIPAS 

In general, these areas are closed to mining operations except upon prior written clearance by government agency having jurisdiction over such reservation.



A mining license is a mere privilege and does not vest absolute rights in the holder. Thus, it may be revoked by the state if public interest so requires.



Although BMG is vested with quasi-judicial power, it cannot take cognizance of determining the validity of contract, since it remains a judicial function and involves a judicial question.



Are the agreements stated in the Constitution limited to only MPSA, JVA and CPA or FTAA?  Upon close reading of the Constitution, there is no express prohibition that restricts other agreements besides MPSA, JVA and CPA or FTAA. The phrase “the state may directly undertake such activities, or it may enter into CPA, JV or MPSA” and “either financial or technical assistance” DOES NOT restrict nor intend to exclude other modes of assistance.  If the intent of the constitution is to confine the agreements, it would have restrict it otherwise. Discuss degree of control  The Constitution provides that the state must have FULL control and supervision of the agreements, but full control and ownership does not mean control and supervision of EVERYTHING. Degree of control must only be sufficient to enable the state to regulate the extractive enterprise.

Findings of fact made by quasi-administrative body must be respected as long as they are supported by substantial evidence. The administrative decision in matters within the exclusive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud or error of law.

Examples of permits issued under Philippine Mining Act 1. Exploration Permit – grants the right to conduct exploration for all minerals in a specified area. Initial term of exploration permit Renewable Permit Non-metallic Metallic Extension* 





2.

3.

2 years 4 years 6 years Not to exceed 2years

*In case exploration permit expires prior to the approval of the declaration of mining feasibility, the permit shall be deemed automatically extended until such time FTAA application is approved. Exploration permit may be transferred or assigned to a qualified person subject to prior approval of the Secretary. Assignment or transfer of right and obligation of any mineral agreement except FTAA is deemed automatically approved if not acted upon by the Secretary within 30working days from OR date, unless patently illegal.

Ore Transport Permit (OTP) – permit specifying the origin and quantity of non-processed mineral ores from mine site to warehouse.  The absence of permit shall be considered as prima facie evidence of illegal mining.  OTP is not required for ore samples not exceeding 2 metric tons to be used exclusively for assay and pilot test purposes Mineral/Ore Export Permit (MOEP) - permit specifying the origin and quantity of non-processed mineral ores from warehouse to ship.

La Bugal B’laan Tribal Association v. Ramos May a foreign corporation hold exploration permit?  Yes. A foreign corporation may hold exploration permit. This is NOT unconstitutional because in fact, there is no express prohibition in the constitution prohibiting foreign/local contractors to hold exploration permits.  The right to conduct exploration is not tantamount to an authorization to extract or carry off mineral resources that may be discovered

Yes. The State may secure the aid of a foreign company. The spirit of the law provides that although all minerals are owned by the State, given the inadequacy of Filipino capital, it may secure the help of foreign corporation, PROVIDED that the State maintain its right of FULL CONTROL.

Quarry Resources 1. Quarry permit 2. Sand and gravel permit 3. Gratuitous permit 4. Guano permit 5. Gemstone gathering permit Section 76: Entry into Private Lands and Concession Areas. Subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concessions by surface owners xxx upon payment of just compensation xxx and any damaged done shall be properly & justly compensated. 

Easement of Right of Way – ownership will not vest to the owner of the mining area. They merely uses the area temporarily for the purposes of more convenient mining operations, in exchange of just compensation.



Holders of mining right may invoke power of eminent domain.



Under Regalia Doctrine, minerals found in one’s land belong to the State and not to a private landowner. Nonetheless, a condition sine qua non is that prospecting, exploration, discovery and location must be done in accordance with the law. Omission or failure to comply with the condition precedent means that its claim for surface rights and right of way will not mature, hence, it would be to countenance illegal trespass into private property. Section 9, Article III of 1987 Constitution: Private property shall not be taken for public use without just compensation. Issue: WoN taking under power of eminent domain for mining is for public use. Held: Yes. Mining is for public use, since mining is an industry which is for public benefit. Hence, eminent domain may be exercised.

Types of mining disputes 1. Rights to mining area (any adverse claim, protest, or opposition to an application for a mineral agreement) 2. Mineral agreements, FTAAs or permit 3. surface owners, occupants and claim holders/ concessionaires; and 4. disputes pending before the Bureau at the date of effectivity of Phil. Mining Act

May the State secure aid of foreign corporation in EDU? 8

Appeal Panel Arbitrators Composed of 3 members: 2 lawyers and 1 licensed mining engineer in regional office  Mines Adjudication Board (MAB) Composed of 3 members: DENR Secretary, Director of MGB and USec for Operations 

4. 5. 6. 7. 8. 9. 10.

Destruction of mining structure Mines arson Willful damage to a mine Illegal obstruction to permittes or contractors Violations of the terms of ECC Obstruction of government officials Other violations

Court of Appeals 

Jurisdiction is limited to purely administrative matter, questions of fact or matters requiring the application of technical knowledge and experience.



Since MAB is a quasi-judicial body, rules of evidence prevailing in the court shall not be controlling. The board shall use all reasonable means to ascertain the facts in each case speedily and objectively without regard to technicalities of law or procedure, all in the interest of due process.



Validity of mining contract is a question of law; it involves exercise of judicial function; it requires determination of what the law is and the rights of the parties.



If ground for the annulment of a mining contract is due to non-conformity with the terms and condition of the agreement, it is purely civil in nature, hence, it is within the jurisdiction of regular courts. ABC filed to Panel Arbitrators for an alleged dispute regarding operating agreement against XYZ. Will the action prosper? Held: No. The action will not prosper. Panel arbitrators has exclusive and original jurisdiction over the following disputes: (1) Those involving rights to mining area; (2) those involving mineral agreements or permit (3) those involving surface owners, occupants and claim holders/ concessionaires; and (4) those pending before the Bureau at the date of effectivity of Phil. Mining Act. Upon its nature, an operating agreement is not a “mineral agreement,” because a mineral agreement requires that it be a contract between the government and a contractor; nor it is a “permit,” because permit pertains to exploration permit, quarry permit and other mining permit. Hence, being not a “mineral agreement” nor a “permit”, it is not within the jurisdiction of panel arbitrators. It is a purely civil contract between two private parties and under the jurisdiction of regular courts.

Grounds for Cancellation, Revocation and Termination 1. Late or non-filing of requirements 2. Violation of terms and conditions 3. Non-payment of taxes and fees 4. Expiration of permits 5. Falsehood/omission of facts 6. Withdrawal from mineral agreement or FTAA Penal Provisions 1. False statement 2. Illegal exploration 3. Theft of minerals  Elements of theft of minerals i. The accused extracted, removed and/or disposed the minerals ii. These minerals belong to the government or to other person iii. The accused did not possess the required permits or documents from DENR  In crimes punished by special laws, the act alone, irrespective of the motive, constitutes the offense 9

RA 8550: Philippine Fisheries Code Philippine water 1. All waters within the Philippine Territory 2. Waters around, between an connecting the islands of the archipelago, regardless of its breadth and dimension 3. The territorial sea, the seabed, the subsoil, the insular shelves and all other waters over which the Philippines has sovereignty or jurisdiction 4. 200n.m. EEZ and the continental shelf. Section 2, Article XII of 1987 Constitution: “The state shall protect the nation’s marine wealth and its archipelagic water, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusive for Filipino Citizen.” In other words, Filipino subsistence or marginal fishermen shall have “preferential right” over use and exploitation of fishery and aquatic resources. However, in Tano v. Socrates, the “preferential right” of the subsistence/marginal fishermen is NOT ABSOLUTE, since in accordance with the Regalian Doctrine, EDU of natural resources shall be under full control and supervision of the state.

Differentiate marginal v. subsistence fishermen:  Marginal fishermen – an individual engaged in fishing whose margin or return is barely sufficient to yield a profit.  Subsistence fishermen – catch yields but irreducible minimum for his livelihood. National Mapping & Resource Information Authority (NAMRIA) – repository of all maps in the Philippines. Obligations of the coastal state 1. Ensure measures that the living resources are not subject to over-exploitation 2. Promote optimum utilization of living resources 2 kinds of fishing: 1. Municipal fishing – 3 gross tons or less 2. Commercial fishing a. Small scale (3.1 to 20 GT) b. Medium scale (20.1 to 150 GT) c. Large scale (more than 150 GT) Limit of fishponds: 1. 50 hectares – individual 2. 250 hectares – corporation 

NO PERSON SHALL OPERATE A COMMERCIAL FISHING VESSEL, OR ENGAGE IN FISHERY ACTIVITY WITHOUT FIRST SECURING A LICENSE FROM DEPARTMENT OF AGRICULTURE.



ANY PERSON FOUND IN AREA WITHOUT PERMIT OR REGISTRATION FOR A FISHING VESSEL SHALL BE PRESSUMED ENGAGED IN UNAUTHORIZED FISHING.”



THERE IS AN AUTOMATIC CANCELLATION OF FISHPOND LEASE AGREEMENT IF THE HOLDER ACQUIRES CITIZENSHIP IN OTHER COUNTRY.



THE ENTRY OF FOREIGN FISHING VESSEL IN THE PHILIPPINE WATERS SHALL CONSTITUTE A PRIMA FACIE EVIDENCE OF UNAUTHORIZED FISHING (Penalty: fine, confiscation of catch, fishing equipment and fishing vessel)



SEARCH AND SEIZURE OF FISHING VESSEL WHICH VIOLATED THE FISHERIES LAW IS AN EXCEPTION TO BILL OF RIGHTS – SEARCH WITHOUT WARRANT.

Section 2, Article XII aims primarily NOT TO BESTOW any right to subsistence fishermen but to lay stress on duty of the state to protect the nation’s wealth. Application of RA 8550: The law shall be enforced in: a. all Philippine waters including other waters which the Philippine has sovereignty or jurisdiction; b. all aquatic and fisheries resources c. all lands devoted to aquaculture Maritime Zones according to United Nations Convention on Law of the Seas (UNCLOS) 1.

Internal waters – all waters landward from baseline of the territory. According to the constitution, “the waters around, between and connecting the archipelago. (Archipelagic waters)”

2.

Territorial Sea – a belt of sea outwards from baseline up to 12n.m, in which the coastal state exerciser sovereignty.

3.

Contiguous Zone – Water not exceeding 24n.m. from baseline; exercises authority for customs, fiscal, immigration or sanitation authority.

4.

Exclusive Economic Zone (EEZ) – Not more than 200n.m from baseline. The coastal state has rights & obligations relative to the exploitation, management and preservation over the economic resources found within the zone.

Baseline - low-water line along the coast as officially recognized by the coastal State. Straight baseline – drawn connecting selected points on coast without appreciable departure from general shape of the coast. High seas – beyond territorial seas and not subject to the sovereign of the coastal state. Continental Shelf – seabed/subsoil of submarine areas adjacent to the coastal state but outside territorial sea up to depth of 200meters or beyond. Municipal waters – bodies of water within the municipality which is not included within the protected areas, 15km from coastline.  Jurisdiction of municipal/city government  Under general welfare clause

LLDA v. CA  RA 4850 (1966) provides that Laguna Lake Development Authority (LLDA) has exclusive jurisdiction to issue permits for enjoyment of fishery and privilege in Laguna de Bay; On the other hand, RA 7160 (1991) calls for the exclusive authority of municipality regarding issuance of permits.  To harmonize, SC held that RA 7160 does not repeal the provision of RA 4850. The charter of LLDA constitutes a special law, while RA 7160 is a general law which cannot be construed to have repealed a special law. Power of LLDA embodied a valid exercise of police power, while LGU’s power is clearly granted for revenue purpose. Hizon v. Court of Appeals  There is a presumption of guilt on the discovery of substances and contaminated fish in the possession of fishermen in the fishing boat.  However, since it is only a prima facie evidence, the accused is not precluded from resenting his evidence to rebut the main fact presumed. Araneta v. Gatmaitan  If the Secretary has authority to regulate or ban fishing, then, the president may exercise the same power under: (i) Section 17, Article VII of 1987 constitution; and (ii) Supervision and control of President over his executive department under administrative code

Catch ceiling – limitations or quota on total quantity of fish captured for a specific period of time and specified area based on available evidence. 10

RA 7586: NIPAS Act What is NIPAS? National Integrated Protected Areas System (NIPAS) is a system of classification and administration of designated protected areas xxx to preserve genetic diversity. What are the protected areas? 1. Strict natural reserve 2. Natural park 3. Natural monument 4. Wildlife Sanctuary 5. Protected landscape and seascape 6. Resource reserve 7. Natural biotic areas 8. Other categories established by law PICOP v. Base Minerals Corp.  There must be a classification that an area is considered as “protected area.”  Without proclamation/classification pursuant to law, prohibition of mineral location will not be operational. Prohibited acts under NIPAS 1.

Hunting, destroying, disturbing, or mere possession of any plants or animals or products derived therefrom without a permit from the Management Board;

2.

Dumping of any waste products detriment to the protected area, or to the plants and animals or inhabitants therein;

3.

Use of any motorized equipment without a permit from the Management Board;

4.

Mutilating, defacing or destroying objects of natural beauty, or objects of interest to cultural communities (of scenic value);

5.

Damaging and leaving roads and trails in a damaged condition;

6.

Squatting, mineral locating, or otherwise occupying any land;

7.

Constructing or maintaining any kind of structure, fence or enclosures, conducting any business enterprise without a permit;

8.

Leaving in exposed or unsanitary conditions refuse or debris, or depositing in ground or in bodies of water; and

9.

Altering, removing destroying or defacing boundary marks or signs.

PD 972: Coal Development Act What are the aims of the Coal Development Act? Coal Development Act of 1976 aims to: 1. promote an accelerated exploration, development, exploitation, production and utilization of coal, 2. encourage the participation of private sector with sufficient capital, technical and managerial resources in the exploitation and production of coal resources, and 3. upgrade the technical and financial capabilities of coal industry. 

Jurisdiction over coal development act shall be under Department of Energy (DOE).



DOE shall not accept any application or proposal for contracts except during competitive public contracting rounds/bids.



Blocking system: each coal region shall be divided into meridional blocks or quadrangles containing 1,000 hectares or less.



No person shall be entitled to more than 15 blocks of coal lands in any coal region.



Exploration period under every coal operating contract shall be for 2 years. It may be extended for another 2 years.



All materials, equipment, plants and other installations movable in nature shall be properties of DOE if not removed within 1 year after the termination of coal operating contract

EMINENT DOMAIN  Power of eminent domain may be invoked and exercised for the entry, acquisition and use of private lands for purposes of coal exploration, development and exploitation, upon prior written notice to the surface owner. TIMBER RIGHTS  The operator may cut trees or timber within his coal contract as may be necessary for exploration, development and exploitation of the area  The operator granted with timber right shall be obligated to perform reforestation works in accordance with the regulations of FMB. WATER RIGHTS  A coal operator shall also enjoy water rights necessary for the exploration, development and exploitation of is coal contract area, BUT water rights already granted or legally existing SHALL NOT THEREBY BE IMPAIRED.

Terminologies: "Protected Area" refers to identified portions of land and water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation; "Buffer zones" are identified areas outside the boundaries of and immediately adjacent to designated protected areas pursuant to Section 8 that need special development control in order to avoid or minimize harm to the protected area; "Indigenous cultural community" refers to a group of people sharing common bonds of language, customs, traditions and other distinctive cultural traits, and who have, since time immemorial, occupied, possessed and utilized a territory;

11

PD 1586: Philippine Environmental Impact Statement System



Once a project is implemented, the ECC remains valid and active for the lifetime of the project The ECC automatically expires if a project has not been implemented within five (5) years from ECC issuance, or if the ECC was not requested for extension within three (3) months from the expiration of its validity.



Principle of Sustainable Development - rational and orderly balance between economic growth and environmental protection What is PEISS? PD 1586 otherwise known as Philippine Environmental Impact Statement Systems (1978) requires all instrumentalities of the government and private entities to prepare an Environmental Impact System (EIS) for every proposed Environmentally Critical Projects (ECP), or projects located in an Environmentally Critical Area (ECA), for every proposed project and undertaking which significantly affect the quality of the environment and to justify why the project should be implemented. ECC v. CNC 



Environmental Compliance Certificate (ECC) - document issued by the DENR/EMB after a positive review of an ECC application, certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant negative environmental impact. Certificate of Non-Coverage (CNC) – a certification issued by the EMB certifying that, based on the submitted project description, the project is not covered by the EIS System and is not required to secure an ECC. 

It should be noted however, that the issuance of an ECC does not preclude a project proponent from securing related permits, such as sanitary, conversion, water, and building permits, from concerned government agencies under other existing laws, rules and regulations.

ECA v. ECP 



Environmentally Critical Area (ECA) - area delineated as environmentally sensitive such that significant environmental impacts are expected if certain types of proposed projects or programs are located, developed or implemented in it. Environmentally Critical Project (ECP) - project or program that has high potential for significant negative environmental impact.

Deciding Authority EMB Regional Office Director EMB Central Office Director DENR Secretary

Appeal EMB Central Office Director DENR Secretary Office of the President

Paje, Secretary of DENR v. Casiño Is ECC a permit or license? No. ECC is not a permit. A “license” has been defined as “a governmental permission to perform a particular act (such as getting married), conduct a particular business or occupation, operate machinery or vehicles after proving capacity and ability to do so safely, or use property for a certain purpose.” While a “permit” has been defined as “a license or other document given by an authorized public official or agency (building inspector, department of motor vehicles) to allow a person or business to perform certain acts.” ECC is not a permit and should not be interpreted as such but rather a set of conditions which will have to be complied with by the Project before implementing the said project, hence, not a permit. Why do I need to know WoN ECC is a permit? In IPRA Law, it is necessary to secure a Certificate of NonOverlap (CNO) from NCIP before any license will be granted from any government agency. Since ECC is not a license, therefore, there is no need to secure certification before the actual granting of ECC. Aside from DENR, may LGU issue ECC or CNC? No. PD 1586 provides that ECCs are issued only by the President of the Philippines or his duly authorized representative, which is DENR (DENR Secretary as Alter Ego of the President). A delegated authority cannot be re-delegated.

EIS v. EIA  

A.

B.

 

Environmental Impact Statement (EIS) - document, prepared and submitted by the project proponent and/or EIA Consultant that serves as an application for an ECC. Initial Environmental Examination (IEE) Report - document similar to an EIS, but with reduced details and depth of assessment and discussion. I. ECPs in ECA or NECA: EIS  ECC II. NECA in ECA: IEE  ECC III. NECPs in NECA: CNC Environmentally Critical Projects I. Heavy Industries II. Resource Extractive Industries III. Infrastructure Projects Environmentally Critical Areas 1. NIPAS 2. Aesthetic potential tourist spots; 3. Habitat for any endangered or threatened species 4. Historic, archaeological, or scientific interests; 5. Occupied by cultural communities or tribes; 6. Frequently visited and/or hard-hit by natural calamities 7. Critical slopes areas; 8. Prime agricultural lands; 9. Recharged areas of aquifers; 10. Water bodies 11. Mangrove areas 12. Coral reefs The outcome of the EIA Process within the system administered by the DENR is the issuance of decision documents. Decision documents may either be an ECC, CNC or a Denial Letter. The decisions on applications shall be made within prescribed timelines within the control of DENR, otherwise, the application shall be deemed automatically approved, with the issuance of the approval document within five (5) working days from the time the prescribed period lapsed.

Thus, administrators of declared area management authorities and economic zones/industrial parks as well as LGUs do not have the authority to issue ECC/CNC under P.D. 1586 unless otherwise expressly delegated by the President of the Philippines Identify if issuance of the following are ministerial duty: a.

CNC – Yes. Issuance of CNC is a ministerial duty upon application of the proponent.

b.

ECC – NO. Issuance of ECC is NOT a ministerial duty

It is important to know the nature of ECC/CNC whether it is a ministerial duty because it is one of the element of the judicial writ of Mandamus, to wit: 1. 2.

Petitioner must show a clear legal right to the act demanded; Respondent must have a duty to perform the act mandated by law;

3.

Respondent unlawfully neglect the performance of the duty enjoined by law;

4.

The act to be performed is ministerial and not discretionary; and

5.

There is no other plain, speedy and adequate remedy in the ordinary course of law.

To tell whether the act may be compelled by Mandamus, the duty must be first ministerial. A duty is ministerial if it is the official duty of a public officer required by direct and positive command of the law wherein the officer has no room for the exercise of discretion.

12

PAB or LGU requiring determination of intricate matters of facts.

RA 8749: Philippine Clean Air Act What is Philippine Clean Air Act?

Citizen Suit Philippine Clean Air Act of 1999 outlines the government's measures to reduce air pollution and incorporate environmental protection into its development plans.



Any citizen may file an appropriate civil, criminal or administrative action in the proper court against:

Definition of terms

1.

Any person who violates or fails to comply with the provision of the Clean Air Act

Air pollutant – any matter found in the atmosphere other than the inert gases in their natural or normal concentrations that is detrimental to health or environment

2.

The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with Clean Air Act.

3.

Any public officer who willfully or grossly neglects the performance of an act.

Air pollution – any alteration of the physical, chemical and biological properties of the atmospheric air, or any discharge that will likely to create or render the air resources harmful, detrimental or injurious to public health. Ambient air – the general amount of pollution present in a broad area; and refers to the atmosphere’s average purity as distinguished from discharge measurements taken at the source of pollution.

Suits and Strategic Legal Actions against Public Participation (SLAPP) 

Incineration – process of burning of municipal bio-medical and hazardous wastes, which emits poisonous and toxic fumes. However, prohibition on incineration does not apply to sanitation “siga”, traditional, agricultural, health and food preparation and crematoria. (Atty. USec: Jurisprudence held that incineration is not at all prohibited, provided that it meets the standard)

Where a suit is brought against a person who filed an action as provided in Section 41 (Citizen suit) against any person, institution or government agency that implements a law complained about, it shall be the duty of the investigating prosecutor or the court, as the case may be, to immediately determine within 30 days, whether the said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining.

Gross violation Will mandamus prosper to compel PUVs to used natural gas as alternative fuel?



NO. Mandamus will not prosper to compel PUVs to use natural gas as alternative fuel in the absence of specific law on the matter. The legislature should provide first the specific statutory remedy to the complex environmental problems before any judicial recourse by mandamus is taken.

Regulation of Vehicles and Engines 

Any imported new or locally-assembled motor vehicle shall not be registered unless it complies with the emission standards set, as evidenced by Certificate of Conformity (COC).



No motor vehicle registration (MVR) shall be issued unless such motor vehicle passes the emission testing requirement.

Gross violation against clean air act shall mean: a.

three (3) or more specific offenses within a period of (1) year

b.

three (3) or more specific offenses within three (3) consecutive years;

c.

blatant disregard of the orders of the PAB, such as but not limited to the breaking of seal, padlocks and other similar devices, or operating despite the existence of an order for closure, discontinuance or cessation of operation; and

d.

irreparable or grave damage to the environment as a consequence of any violation or omission of the provisions of this Act.

Prohibition on smoking

According to USec Leones:



Application of Exhaustion of Administrative Remedies

Section 10 of Clean Air Act: Smoking inside a public building or an enclosed public place, including public vehicles and other means of transport, or in any other enclosed area outside one’s private residence, private place of work or any duly designated smoking area is prohibited. (To be implemented by LGUs)

 

PD 1586: EAR shall apply Clean Water Act/Clean Air Act: EAR does not apply, since jurisdiction on the matter is vested on a quasi-judicial body.

Prohibition on Ozone Depleting Substances (Montreal Protocol) 

Section 30 of Clean Air Act: The Department shall phase-out ozone-depleting substances.

Abatement of Private Nuisance 

Section 694 of NCC provides that nuisance is any act, omission, establishment, condition of property or anything else which: (1) injures or endangers the health or safety of others; or (2) annoys or offends the senses; or (3) shocks, defies or disregards decency or morality; or (4) obstructs or interferes with the free passage of any public highway or street or any body of water; or (5) hinders or impairs the use of property.



AC Enterprises, Inc. v. Frabelle Properties Corporation: PAB has no jurisdiction on the resolution of the issue before RTC, WoN the noise complained about is an actionable nuisance, since it does not require any technical expertise and experience of 13

RA 9275: Clean Water Act

RA 9003: Ecological Solid Waste Management Act

What is Clean Water Act?  Clean Water Act of 2004 aims to protect the country’s water bodies from pollution. It provides for a comprehensive and integrated strategy to prevent and minimize pollution through a multi-sectoral and participatory approach involving stakeholders.

What is Ecological Solid Waste Management Act?  Ecological Solid Waste Management Act of 2000 refers to the systematic administration of activities which provide for segregation at source, segregated transportation, storage, transfer, processing, treatment, and disposal of solid waste and all other waste management activities which do not harm the environment.  National Solid Waste Management Commission (NSWMC) shall implement the Ecological Solid Waste Management Act which shall be composed of 14 government agencies and 3 members from private sector.



It covers ALL types of bodies of water



All owners or operators of facilities that discharge wastewater are required to get a permit to discharge from the DENR or LLDA



Anyone discharging wastewater into a water body shall have to pay a wastewater charge.

Definition of Terms: Beneficial use – use of the environment or any element/segment thereof conducive to public or private welfare, safety and health; and shall include, but not limited to the use of water for domestic, municipal, irrigation, power generation, fisheries, livestock raising, industrial, recreational and other purpose. Contamination – means the introduction of substances not found in the natural composition of water that make the water less desirable or unfit for intended use. Discharge – the act of spilling, leaking, pumping, pouring, emitting, emptying, releasing or dumping of any material into a water body or onto land from which it might flow or drain into said water. Effluent - means discharge from known sources which is passed into a body of water or land, or wastewater flowing out of a manufacturing plant, industrial plant including domestic, commercial and recreational facilities. Hazardous waste - means any waste or combination of wastes of solid liquid, contained gaseous, or semi-solid form which cause, of contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness, taking into account toxicity of such waste, its persistence and degradability in nature, its potential for accumulation or concentration in tissue, and other factors that may otherwise cause or contribute to adverse acute or chronic effects on the health of persons or organism. Pollutant - shall refer to any substance, whether solid, liquid, gaseous or radioactive, which directly or indirectly: a.

alters the quality of any segment of the receiving water body to affect or tend to affect adversely any beneficial use thereof;

b.

is hazardous or potential hazardous to health;

c.

imparts objectionable odor, temperature change, or physical, chemical or biological change to any segment of the water body; or

d.

is in excess of the allowable limits, concentrations, or quality standards specified, or in contravention of the condition, limitation or restriction prescribed in this Act.

Treatment - means any method, technique, or process designed to alter the physical, chemical or biological and radiological character or composition of any waste or wastewater to reduce or prevent pollution. Waste - means any material either solid, liquid, semisolid, contained gas or other forms resulting industrial, commercial, mining or agricultural operations, or from community and household activities that is devoid of usage and discarded. Water Pollution - means any alteration of the physical, chemical, biological, or radiological properties of a water body resulting in the impairment of its purity or quality.

Definition of terms Collection - shall refer to the act of removing solid waste from the source or from a communal storage point; Composting - shall refer to the controlled decomposition of organic matter by micro-organisms, mainly bacteria and fungi, into a humuslike product; Ecological solid waste management - shall refer to the systematic administration of activities which provide for segregation at source, segregated transportation, storage, transfer, processing, treatment, and disposal of solid waste and all other waste management activities which do not harm the environment; Leachate - shall refer to the liquid produced when waste undergo decomposition, and when water percolate through solid waste undergoing decomposition. It is contaminated liquid that contains dissolved and suspended materials; Materials recovery facility (MRF) - includes a solid waste transfer station or sorting station, drop-off center, a composting facility, and a recycling facility; Solid waste management facility - shall refer to any resource recovery system or component thereof; any system, program, or facility for resource conservation; any facility for the collection, source separation, storage, transportation, transfer, processing, treatment, or disposal of solid waste; Municipal waste - shall refer to wastes produced from activities within local government units which include a combination of domestic, commercial, institutional and industrial wastes and street litters; Solid waste - shall refer to all discarded household, commercial waste, non-hazardous institutional and industrial waste, street sweepings, construction debris, agricultural waste, and other nonhazardous/non-toxic solid waste. Solid Waste Management Procedure  Segregation of wastes shall begin in the household, institutional, industrial, commercial and agricultural sources, which shall be segregated into “compostable”, “non-recyclable”, “recyclable” or “special type of waste”.  Collection of wastes shall be undertaken by the LGU. Solid wastes shall be brought to Materials Recovery Facility (MRF), in which solid wastes shall be further sorted. Residual wastes shall be sent to landfill, while hazardous wastes shall be sent to treatment facility. Salient Features:  Prohibition on the Use of Non-Environmentally Acceptable Packaging - No person owning, operating or conducting a commercial establishment in the country shall sell or convey at retail or possess with the intent to sell or convey at retail any products that are placed, wrapped or packaged in or on packaging which is not environmentally acceptable packaging. 

Prohibition Against the Use of Open Dumps for Solid Waste - No open dumps shall be established and operated, nor any practice or disposal of solid waste by any person, including LGUs, which constitutes the use of open dumps for solid wastes, be allowed (Atty Usec: There should be no open dumpsite by 2016)



Prohibition on [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]Open burning of solid wastes, et. al.

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RA 6969: Toxic Substances and Hazardous and Nuclear Wastes Control Act What is Toxic Substances and Hazardous and Nuclear Wastes Control Act? Toxic Substances and Hazardous, and Nuclear Wastes Control Act of 1990: (1) regulate, restrict or prohibit the importation, manufacture, processing, sale, distribution, use and disposal of chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment; (2) prohibit the entry, even in transit, of hazardous and nuclear wastes and their disposal into the Philippine territorial limits for whatever purpose; and (3) provide advancement and facilitate research and studies on toxic chemicals. TSHNWCA shall cover the importation, manufacture, processing, handling, storage, transportation, sale, distribution, use and disposal (from cradle to grave) of all unregulated chemical substances and mixtures in the Philippines, including the entry even in transit, as well as the keeping or storage and disposal of hazardous and nuclear wastes into the country for whatever purposes.

RA 7076: People’s Small-Scale Mining Act of 1991 What is People’s Small-Scale Mining Act? 

People’s Small-Scale Mining Act of 1991 enshrines the rights of small scale miners, and authorized Mining Regulatory Board directly under DENR Secretary’s control and supervision to declare and set aside people's small-scale mining areas in sites onshore suitable for small-scale mining, immediately giving priority to areas already occupied and actively mined by smallscale miners before August 1, 1987;



Exceptions a. such areas are not considered as active mining areas; b. the minerals found therein are technically and commercially suitable for small-scale mining activities: c. the areas are not covered by existing forest rights or reservations and have not been declared as tourist or marine reserves, parks and wildlife reservations, unless their status as such is withdrawn by competent authority,



Suitable areas for small- scale mining: a. Areas already occupied and actively mined by small-scale miners before August 1, 1987Public lands not subject to any existing right, b. Public lands not subject to any existing rights c. Public lands covered by existing mining rights which are not active mining areas, and d. Private lands, except those with substantial improvements or used as a yard, stockyard, garden, plant nursery, plantation, cemetery or burial site; or land situated within one hundred meters (100 m.) from such cemetery or burial site, water reservoir or a separate parcel of land with an area often thousand square meters (10,000sq.m.) or less. e. Ancestral lands with prior consent of the cultural communities f. Areas occupied by a community of traditional small-scale miners, subject to approval of the said community



No ancestral land may be declared as a people's small-scale mining area without the prior consent of the cultural communities concerned: Provided that, if ancestral lands are declared as people's small-scale mining areas, the members of the cultural communities therein shall be given priority in the awarding of small-scale mining contracts; provided further that royalties shall be paid to them by the parties to the mining contract.



Small-scale miners have easement rights to mining and logging roads, private roads, port and communication facilities, processing plant which are necessary for the effective implementation of the People's Small-scale Mining Program, subject to payment of reasonable fees to the operator, claim owner, landowner or lessor of the property.



In no case shall a small-scale mining contract be subcontracted, assigned or otherwise transferred. A contract shall have a term of two (2) years, renewable subject to verification by the Board for like periods as long as the contractor complies with the provisions of the act. The small-scale mining contractor shall be the owner of all mill tailings produced from the contract area. He may sell the tailings or have them processed in any custom mill in the area All golds shall be sold to the Central Bank, or its duly authorized representatives, which shall buy it at prices competitive with those prevailing in the world market regardless of volume or weight Royalty of private land owner shall not exceed 1% of the gross value of minerals

There is an Inter-agency Technical Advisory Council attached to the Department of Environment and Natural Resources which shall be composed of one (1) chairman and ten (10) members: Secretary of DENR as Chairman, and Secretary of DOH, Director of PNRI, Secretary of DTI, Secretary of DOST, Secretary of DND, Secretary of DFA, Secretary of DOLE, Secretary of DOF, Secretary of DA, Representative from NGO from Health and safety as members Section 13 of TSHNWCA enumerates the following as Prohibited Acts: a. Knowingly use in chemical substance or mixture which is imported, manufactured, processed or distributed in violation of this Act or implementing rules and regulations or orders; b. Failure or refusal to submit reports, notices or on the information, access to records as required by this 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 (Meaning, there must be import clearance before entry of any chemical substances to the Philippines); and d. 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 Definition of Terms: Hazardous substances are 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 hazard or the risk of fire or explosion; or 2. long-term environmental hazards, including chronic toxicity upon repeated exposure. Hazardous wastes are 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 the territory of the Philippines. Nuclear wastes are hazardous wastes made radioactive by exposure to the radiation incidental to the production or utilization of nuclear fuels but does not include nuclear fuel, or radioisotopes which have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial, or industrial purpose. Kinds of list of chemicals as provided by TSHNWCA: 1. Philippine Inventory of Chemicals & Chemical Substances (PICCS) – list of all allowed chemical substances. 2. Philippine Priority Chemical List (PPCL) – list of prohibited chemical substances

  



Definition of Terms: Small-scale mining refers to mining activities which rely heavily on manual labor using simple implements and methods and do not use explosives or heavy mining equipment. Small-scale miner refers to Filipino citizens who, individually or in the company of other Filipino citizens voluntarily form a cooperative duly licensed by the Department of Environment and Natural Resources to engage, under the terms and conditions of a contract, in the extraction or removal of minerals or ore-bearing materials from the ground

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Cartagena Protocol What is Cartagena Protocol? The Cartagena Protocol on Biological Diversity is an international treaty governing the movements of living modified organisms (LMOs) from one country to another, and seeks to protect biological diversity from the potential risks posed by genetically modified organisms resulting from modern biotechnology. Living Modified Organism (LMO)/ Genetically Modified Organism (GMO) – any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology. Overall, the term 'living modified organisms' is equivalent to genetically modified organism – the Protocol did not make any distinction between these terms and did not use the term 'genetically modified organism.' Biosafety Clearing-House (BCH) – an informationexchange mechanism that provides open and easy access to key information about LMOs Salient Feature: The parties shall ensure that the development, handling, transport, use, transfer and release of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health.

Basel Convention What is Basel Convention? The Basel Convention on the Control of Transboundary Movements of “Hazardous Wastes” and Their Disposal is an international treaty that was designed to reduce the movements of hazardous waste between nations, and specifically to prevent transfer of hazardous waste from developed to less developed countries (LDCs). It does not, however, address the movement of radioactive waste. Hazardous wastes are substances which are either (1) explosive, (2) flammable, (3) toxic or (4) corrosive. Those substances/wastes that did not fall on the category is defined as or considered to be a hazardous waste under the laws of either the exporting country. (see RA 6969) Atty Usec: As a general rule, no one is permitted to export hazardous waste. Exception: exporter without treatment facility. In other words, if an exporter already have a treatment facility, they are no longer allowed to export hazardous waste. There are 2 options in resolving the wastes exported from Canada to the Philippines: (1) ship it back to the source country, as per Basel Convention; or (2) if there is no way to ship it back, or if would not be convenient or economical, or if it would cause more harm to the environment, the concerned State should sit down, discuss the problem and come up with a solution. In the case at bar, it would be economical to bury the waste and promulgate a more stringent rules on importation.

Rotterdam Convention What is Rotterdam Convention? Rotterdam Convention on the Prior Informed Consent Procedure for Certain “Hazardous Chemicals and Pesticides” in International Trade is a multilateral treaty to promote shared responsibilities in relation to importation of hazardous chemicals. The convention promotes open exchange of information and calls on exporters of hazardous chemicals to use proper labeling, include directions on safe handling, and inform purchasers of any known restrictions or bans. Signatory nations can decide whether to allow or ban the importation of chemicals listed in the treaty, and exporting countries are obliged to make sure that producers within their jurisdiction comply. The Convention promotes the exchange of information on a very broad range of chemicals. Basically, the convention is about the proper labelling of chemicals.

Montreal Protocol What is Montreal Protocol? The Montreal Protocol on Substances that Deplete the Ozone Layer (a protocol to the Vienna Convention for the Protection of the Ozone Layer) is an international treaty designed to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion. Due to its widespread adoption and implementation it has been hailed as an example of exceptional international cooperation, with Kofi Annan quoted as saying that "perhaps the single most successful international agreement to date has been the Montreal Protocol". In comparison, effective burden sharing and solution proposals mitigating regional conflicts of interest have been among the success factors for the Ozone depletion challenge, where global regulation based on the Kyoto Protocol has failed to do so. Chlorofluorocarbons (CFCs) – ozone depleting substance

Kyoto Protocol

Stockholm Convention What is Stockholm Convention? Stockholm Convention on Persistent Organic Pollutants is an international environmental treaty, signed in 2001 and effective from May 2004, that aims to eliminate or restrict the production and use of persistent organic pollutants (POPs). Persistent Organic Pollutants (POPs) are chemical substances that persist in the environment, bio-accumulate through the food web, and pose a risk of causing adverse effects to human health and the environment. The Stockholm Convention is perhaps best understood as having five essential aims: 1. Eliminate dangerous POPs, starting with the 12 worst 2. Support the transition to safer alternatives 3. Target additional POPs for action 4. Cleanup old stockpiles and equipment containing POPs 5. Work together for a POPs-free future

What is Kyoto protocol? The Kyoto Protocol is an international treaty, which extends the 1992 United Nations Framework Convention on Climate Change (UNFCCC) that commits State Parties to reduce greenhouse gases emissions, based on the premise that (a) global warming exists and (b) man-made CO2 emissions have caused it.

12 worst chemicals No. 1 2 3 4 5

Chemical Name Aldrin Chlordane Dieldrin Endrin Heptachlor

No. 7 8 9 10 11

6

Hexachlorobenzene

12

Chemical Name Mirex Toxaphene Polychlorinated biphenyls (PCBs) DDT Polychlorinated dibenzo-p-dioxins ("dioxins") and polychlorinated dibenzofurans Hexachlorobenzene

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