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APCEL Report : Philippines Back to : Index : ASEAN Project : Philippines
The Republic of the Philippines is an archipelago of 7,100 islands in the South China Sea occupying a land area of 298,170 square kilometres, with a coastline of over 36,000 kilometres in length. The two largest islands are Luzon to the north and Mindanao in the south, with the central Visayas islands lying in between. With a population of over 76 million (July 1997 estimate), the Philippines is divided into 72 provinces and 61 chartered cities. The economy is dominated largely by agriculture, light industry and services, with the main exports being electronics, textiles, coconut products, copper, fruit and fish. The largest cities are the national capital, Manila (population 10 million), the central Visayan capital of Cebu City (population 0.7 million), and the southern Mindanao city of Davao (population 1 million). The Philippines’ per capita gross domestic product (1996 estimate) stands at US$2600. In recent years, the Philippines has been experiencing severe environmental problems resulting from uncontrolled deforestation in watershed areas, degradation of its vast land and marine resources, air and water pollution in the major cities, growing contamination of its water resources, indiscriminate conversion of prime agricultural land into industrial and residential land, dwindling coastal resources, and growing waste disposal problems. Several well-documented environmental disasters have occurred, including the Marcopper mine incident. Many of these problems were caused by the irresponsible practices of investors, both local and foreign, coupled with the acquiescence of local authorities. From a larger perspective, over-population and poverty in parts of the Philippines, together with unsustainable developmental policies, have imposed severe strains on the natural resource base.
The President is both the head of state and head of government, and is elected for a period of six years. The President presides over a Cabinet which he appoints with the consent of the Commission of Appointments. The bicameral Congress or Kongreso comprises the Senate and the House of Representatives, and is the supreme law-making authority. The structure of national governance is divided into the central, provincial, municipal/city and barangay (village) governments. The provinces are headed by governors, the municipalities by mayors, and the barangays by captains/chieftains. Thus, the provincial legislatures and governments are the effective organs in the provinces which legislate and administer laws respectively. Due to the recent moves to decentralise governance, there is a substantial measure of provincial autonomy in the Philippines. Environmental management, conservation and development in the Philippines is administered on a national level by the Department of Environment and Natural Resources (DENR), which was created in 1987. The Philippines is the only country in the ASEAN region which reposes the functions of environmental protection and natural resource management in one single body. Within the DENR are several natural resource management bureaus, the most important of which are the Environmental Management Bureau (EMB), the Forest Management Board (FMB), the Land Management Bureau (LMB), the Mines and Geosciences Bureau (MGB) and the Protected Areas and Wildlife Bureau (PAWB). The management, conservation, development, protection, utilisation and disposition of all fishery and aquatic resources of the country (except for municipal waters, which are under the control of the municipal or city governments), are within the jurisdiction of the Bureau of Fisheries and Aquatic Resources, a line bureau constituted under the Department of Agriculture. The policies formulated by the DENR and its bureaus are implemented by the DENR Regional Offices which are found in the thirteen (13) administrative regions of the country and the DENR-PENROs within each province. These are the Provincial Environment and Natural Resources Offices which are part of the DENR apparatus. The provincial governments also run their own Provincial Environment and Natural Resources Offices (which are also known as PENROs) as well as Community Environment and Natural Resources Offices (CENRO) in certain municipalities. The PENROs and CENROs operate within the machinery of the local governments (commonly referred to as LGUs or Local Government Units). Under the mandate of the Local Government Code of 1991, certain functions of the DENR have been wholly devolved to the LGUs, such as the testing and apprehension of smoke-belching vehicles. Hence, there are actually two PENROs in each province, one operating under the DENR, the other under the provincial government. Within the DENR network are two quasi-judicial bodies, the Pollution Adjudication Board (PAB) and the Mines Adjudication Board (MAB). The PAB has original jurisdiction over pollution cases, while the MAB has appellate jurisdiction over the resolution of the Panel of Arbitrators in each DENR Regional Office regarding mining disputes. The non-governmental organisation (NGO) movement in the Philippines is extremely vibrant, particularly in relation to environmental protection. Most NGO activities focus on community-based resource management and the defence of environmental rights. In relation to the latter, litigation before the courts is not generally preferred. Legal remedies are not recognised as the best solution to protect environmental rights, due to the lack of sufficient enforcement in the Philippines. Environmental NGOs prefer "metalegal strategies" wherein organised citizenry participate in creative and resourceful activities which employ the constitutional rights of freedom of assembly and expression to call public attention to their cause. The most significant and respected environmental NGOs are the Legal Rights and Natural Resources Inc. (LRC - Friends of the Earth), the Environmental Legal Assistance Centre (ELAC) and Tanggol Kalikasan. These are coalitions of environmental NGOs which have involved themselves in matters relating to legal rights, indigenous peoples, natural resource protection and exploitation of local communities by corporations. In recent years, many NGOs have allied themselves into coalitions for increased exposure and efficacy. The social and political culture in the Philippines is extremely tolerant of and receptive to the work of NGOs. Hence, NGOs wield significant influence over the shaping of public opinion and even governmental policy, even though they receive little financial assistance from the government. Most derive financial support from client revenue, private groups and international institutions like the Rockefeller Foundation and USAID. Even though the work of environmental NGOs in the Philippines is far-reaching, the multitude of environmental problems which exists still overwhelms their environmental protection efforts. Much remains to be done, and environmental NGOs require tremendous financial, manpower and moral support to build upon whatever benefits they have hitherto brought to local communities facing environmental problems.
Legislation in the Philippines falls under the following hierarchy:
The Philippine Constitution declares that it is the duty of the State to protect and advance the right of the people to a balanced and healthful ecology. This duty had earlier been codified in the Philippine Environmental Policy, which is the national blueprint for environmental protection. The Philippine Environment Code, in turn, contains general principles dealing with the major environmental and natural resource concerns of the Philippines. These two documents are very broad and general, and contain few substantive provisions. Taken together, the Policy and the Code can best be described as forming the very basic framework laws on the environment in the Philippines. Due to the generality of the Policy and the Code, various other laws have been enacted to address specific environmental concerns, notably Presidential Decree No. 1586 of 1978, which established the environmental impact statement (EIS) system, the Fisheries Code of 1998, the Revised Forestry Code of 1975, the Mining Act of 1995, the Pollution Control Decree of 1976, the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, the National Integrated Protected Areas System (NIPAS) Act of 1992 and the Indigenous Peoples Rights Act of 1997. Hence, there is no singular framework or "umbrella" legislation which binds together the numerous environmental concerns in a comprehensive manner. To better appreciate the legal regulation of the environment in the Philippines, one must delve into the whole plethora of laws and regulations which exists in relation to discrete environmental issues. That being said, it must be noted that the Philippines has arguably the most progressive, albeit piecemeal, environmental legislation in place of any Southeast Asian country. The Philippines has the only specific legislation relating to the prospecting of biological and genetic resources, as well as the most advanced EIA, mining, fisheries, protection of ancestral domain and protected areas legislation in the region. Altogether, these legislation recognise that the central theme of environmental protection in the country is the regulation of land and marine use rights and the reconciliation of these with the principle of sustainable development. The challenge remains, of course, to effectively implement the legislation which exists on paper. The main legislation mentioned above have been supplemented in varying degrees by subsidiary legislation, primarily in the form of DENR Department Administrative Orders (commonly known as DAOs). In December 1996, DAO 37/1996 was issued by the Secretary for the Environment to streamline the EIA system. In the same month, DAO 40/1996, revising the implementing rules and regulations of the Philippine Mining Act of 1995, was issued, in part to reinforce the environmental protection provisions of the Mining Act. Pursuant to the constitutional provisions calling for the protection of the rights of indigenous peoples, DAO 2/1993 was promulgated, providing for the rules and regulations for the identification, delineation and recognition of ancestral land and domain claims. In late 1997, the landmark Republic Act 8371 - the Indigenous Peoples Rights Act of 1997 was promulgated to govern the issue of indigenous communities’ rights. The courts in the Philippines have also been progressive (relative to other regional countries’ courts) in their recognition of environmental rights. Various cases on land rights and environmental protection have been successfully fought in court, many of them by public interest lawyers and environmental NGOs. One of the most significant in recent years is Oposa v. Factoran Jr., wherein the Philippine Supreme Court recognised the right of future unborn generations to the environmental patrimony of their country. It appears that the vindication of environmental rights in the courts will continue to complement the administration’s enforcement procedures, as well as the "metalegal strategies" favoured by NGOs.
The Philippine Environmental Impact Statement (EIS) System requires all government agencies, government-owned or controlled corporations, and private companies to prepare an Environmental Impact Assessment (EIA) for any project or activity that significantly affects the quality of the environment. The Philippine EIS system is extremely comprehensive and entails an EIA being conducted to study the relationship between a proposed project and its surrounding environment. Unlike in several other countries, the EIS system does not merely emphasise the regulation of industrial pollution, but is also aimed at the protection of natural resources, fragile ecosystems and the rights of local communities. Apart from playing a regulatory role, the EIS system has substantially evolved into a comprehensive planning and management instrument as well. According to DAO 37/1996, which is the central pillar of the EIS system, the system is the process of predicting the likely environmental consequences of implementing projects or undertakings and designing appropriate preventive, mitigation and enhancement measures. The EIA is a requirement in obtaining an Environmental Compliance Certificate (ECC), a document issued by the DENR Secretary or by the DENR Regional Executive Director (RED). Presently, most banks in the Philippines make loans contingent upon the project proponent securing an ECC. A number of government agencies also require an ECC before they will issue project-related permits and approvals. Thus, securing an ECC is in theory, a critical and requisite step for a project to be approved. The EIS system was originally conceived in the Philippine Environmental Policy (P.D. 1151). The actual establishment of the EIS System began with Presidential Decree (P.D.) No. 1586, which empowered the President to declare certain projects, undertakings or areas in the country as environmentally critical, and to prohibit the undertaking or operation of such environmentally critical projects without first securing an ECC issued by the President or his duly-authorized representative. Pursuant to such powers, the President issued Proclamation No. 2146 of 1981 and Proclamation No. 803 of 1996 declaring certain projects and areas as environmentally critical. In 1996, recognizing that the actual issuance of the ECC must be delegated to subordinate officials, the President issued Administrative Order No. 300 which confirmed the power of the Secretary of the DENR and the REDs of the regional DENR offices to issue ECCs. P.D. 1586 was refined through a number of administrative regulations and guidelines, the first being the implementing rules and regulations passed by the National Environmental Protection Council (NEPC) in 1979, and amended by the same body in 1984. In 1992, the DENR, which had assumed the powers and responsibilities of the NEPC (pursuant to E.O. 192), issued DAO 21/1992, further amending the NEPC-issued rules. On 2 December 1996, the DENR enacted DAO 37/1996 to further improve the EIS System. DAO 21/1992 was thus repealed. DAO 37/1996 is today the most important and comprehensive legal pronouncement on the EIS/EIA system in the Philippines, and perhaps in the whole Southeast Asian region. Amongst the new features of DAO 37/1996 are the enumeration of "environmentally critical projects" and "environmentally critical areas" within the DAO itself, the incorporation of "social acceptability" as a prerequisite for the issuance of an ECC, and the requirement for the establishment of Environmental Guarantee and Monitoring Funds. DAO 37/1996 also institutionalises the Environmental Impact Assessment Review Committee (EIARC), which is a body of independent technical experts and professionals of known probity from various fields organised by the Environmental Management Board (EMB) or the Regional Environmental Director (RED). The main tasks of the EIARC are to evaluate the EIS and other documents related thereto, and to make appropriate recommendations to the EMB or RED regarding the issuance or non-issuance of ECCs. In general, a proposed project that meets either of the following conditions requires an ECC, and thus, some form of EIA:
As in many developing countries, conflicts of jurisdiction occur at the central level between the DENR and other national agencies, and at the provincial levels, between the DENR and provincial governments (these are the local government units, or LGUs). At the central level, the situation is relatively much better than in many other countries, since the DENR is the singular body responsible for issues of pollution control as well as forestry, mining and protected area management. Overlapping jurisdiction commonly occurs however, in relation to fisheries and agriculture (in areas impinging on the environment like pesticide control and land use), both of which come under the Department of Agriculture with its own sets of legislation. The Department of Agrarian Reform is also involved in agricultural and land use matters, particularly the conversion of agricultural land for industrial and other uses. Another area where overlaps in jurisdiction are common is in relation to ship-source pollution of the marine environment. The responsibility for controlling oil pollution from ships and tankers is with the Philippine Coast Guard. With regard to supervising industrial activities which contribute to environmental degradation, some overlap in jurisdiction occurs with respect to the Board of Investments, whose task is to oversee foreign investment projects (see discussion on EIAs). The Philippine government realises that the solution to many of these jurisdictional problems lies in improving the coordination amongst national agencies. To that end, numerous multi-agency committees have been established to ensure that the views of different agencies are incorporated into the overall decision-making processes. The problem is more acute in the provinces. Due to the geographical nature of the Philippine archipelago, authority is very much decentralised - the Local Government Code (LGC) of 1991 devolves considerable authority to the provincial governments. The central DENR, whilst maintaining regional offices in the 13 administrative regions of the country (each regional office being headed by the Regional Environmental Director (RED)) as well as Provincial Environment and Natural Resources Offices in each province, has to liaise with the provincial governments’ own Provincial Environment and Natural Resources Offices (PENROs). These provincial PENROs in turn, oversee the Community Environment and Natural Resources Offices (CENROs), which operate at a municipal/community level. Provincial PENROs and CENROs come under the direct authority of the provincial governments, and enjoy exclusive jurisdiction over certain environmental matters of local concern, as defined under the Local Government Code of 1991. In these respects, the laws emanating from the DENR may not always be applicable. Even if they were applicable, they may not be adequately enforced by the local government units (LGUs). Several reasons exist for inadequate enforcement:
As in most developing countries, the lack of political will, both at the central and provincial levels, hampers environmental protection efforts. This phenomenon frequently occurs due to the difficulty in reconciling long-term environmental goals with short-term developmental expectations. Indeed, the concept of sustainable development appears difficult to "sell" to the people in most developing countries. In the Philippines, provincial governments come under heavy pressure to showcase developmental progress in the respective provinces. Re-election of LGU officials depend significantly on the level of development attained in the previous term of office. In such situations, long-term plans for environmental and natural resource management are often sacrificed in favour of short-term developmental policies. This is often exacerbated by the vested interests of industrialists and project proponents which are not always consonant with sound environmental practices. The EIS system in the Philippines demonstrates the above problems in a clear fashion. First, there is a lack of capacity to fully appreciate the EIS system, especially in the remote provinces. Hence, the LGUs which have the task of coordinating and appraising an EIA review may not have sufficient expertise to adequately carry out their responsibilities. Even at the central level, the DENR and the private sector do not always have the requisite technical expertise to commission proper EIA reports. The problem is of course, exacerbated by the high costs involved in commissioning EIAs, particularly for large infrastructural projects. In addition, the individuals who are most affected by a proposed project often do not fully realise their rights under the EIS system. Hence, the public participation component advocated by DAO 37/1996 does not necessarily have the desired effect of empowering local communities. This is one area where NGOs figure prominently in advocating the rights of local communities. Second, there is as yet insufficient mapping of the environmentally critical areas in the country wherein EIAs are required of developmental projects. The coverage of DAO 37/1996, whilst appearing comprehensive, still lacks depth and specificity in many respects. The lack of documentation available to prepare a comprehensive EIA also leads to the tendency to circumvent the procedures outlined in DAO 37/1996. In addition, there is as yet no provision for "cumulative" or "integrated" EIAs, i.e. EIAs which purport to assess the cumulative effects of several activities taken together, for instance in an industrial zone. As it currently exists, the EIS system only regulates individual activities at a discrete level. Third, and most significantly, the lack of compliance with the EIS system is all too evident. Blatant violations occur, especially in smaller-scale and less-publicised projects. There is a lack of penal provisions in the current EIS system. Often, the penalties provided for EIS violations are meagre as compared to the losses in profit arising from delays caused by the EIS process or by adherence to ECC orders. In the result, industrialists and corporations are often none too deterred by the provisions of the EIS system. Due also to the Philippine 2000 vision adopted by the government to accelerate the flow of foreign investment into the Philippines, there is a reluctance to deny ECCs to investment projects. As it is, the EIS system under DAO 37/1996 is already viewed by many to be too stringent for and obstructive to the investment climate. Hence, circumvention of the procedures in DAO 37/1996 is not uncommon. All these relate to the point mentioned above on the lack of political will. In recent years, the most celebrated case involving the EIS system has been the Bolinao Cement Plant Project. The US$450 million plant was proposed to be constructed in Pangasinan province in Luzon, and promised high yields in the export market. After several years of protracted negotiations, the DENR finally denied the project an ECC in 1996 due to its high environmental risks, primarily the threat to the aquatic life in the nearby Lingayen Gulf, the loss of arable land, significant air and water pollution risks and the general social unacceptability of the project to local residents. The lessons from the Bolinao and Marcopper incidents were to subsequently inspire the improved provisions of DAO 37/1996. It must be noted that in many respects, Bolinao remains an unusual case due to the large publicity it attracted - in numerous other cases around the country, the EIS system has not worked very well. Several other issues illustrating the lack of implementation of environmental legislation are as follows:
The Philippines has a wide range of significant environmental problems to tackle, from mining and forestry to industrial pollution and the loss of biological diversity. However, it also possesses one of the more responsive institutional and legislative mechanisms for environmental management in South East Asia. Even though lacking a singular framework law for environmental protection, the enactment of discrete but remarkably progressive legislation on environmental protection and natural resource management is an admirable development. Coupled with this is the existence of a proactive government department responsible for nearly all facets of natural resource management. Of course, the effective implementation of legislation remains a huge problem, as with many countries in the region. The lack of political will, the constraints in financing and skilled manpower; the interests of industrialists, corporations and local authorities and the difficulties in coordinating jurisdictional authority between national and provincial authorities all lead to significant challenges for the environmental management effort. These problems are alleviated to some extent by the presence of credible NGOs and the development of judicial activism in environmental protection. With concerted action from all fronts, the legal framework for environmental protection in the Philippines appears to face an even more challenging and eventful future in the years to come.
Ancestral Domain and Indigenous People’s Rights
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