07 Property Law Reform Needs in Philippine Coastal and Marine Law - Prof. Jay L. Batongbacal

8/9/2019 07 Property Law Reform Needs in Philippine Coastal and Marine Law - Prof. Jay L. Batongbacal

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JAYL. BATONGBACALAsst. Prof., UP Asian Center

Senior Lecturer, UP College of Law


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Section 1. The Congress shall give highest priority tothe enactment of measures that protect and enhancethe right of all the people to human dignity,

reduce social, economic, and politicalinequalities, and remove cultural inequities byequitably diffusing wealth and political power forthe common good.

To this end, the State shall regulate the acquisition,ownership, use, and disposition of property andits increments.


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Section 7. The State shall protect the rights ofsubsistence fishermen, especially of localcommunities, to the preferential use of the communalmarine and fishing resources, both inland and offshore.

It shall provide support to such fishermen throughappropriate technology and research, adequate financial,production, and marketing assistance, and other services.The State shall also protect, develop, and conserve such

resources. The protection shall extend to offshore fishinggrounds of subsistence fishermen against foreign intrusion.Fishworkers shall receive a just share from their labor in theutilization of marine and fishing resources.


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Coastal and marine areas At least 86% of total area

under RP jurisdiction Approx. 46% of total RP

population reside in coastal

areas 822 out of 1,502 LGUs arecoastal

RP jurisdnpresent law

Potential

additionaljurisdiction


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RA8550, the Philippine Fisheries Code of 1998

cf. RA8435, Agriculture and Fisheries Modernization Act

RA7942, the Philippine Mining Act of 1995 PD 87 as amended, the Petroleum Development Act of

1972

RA7160, the Local Government Code

CA141, Public Land Law as amended


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RA9593, Tourism Act of 2009 RA9513, Renewable Energy Act of 2009 EO380-A, Charter of the Philippine Reclamation Authority RA9275, Clean Water Act of 2004

RA9147, Wildlife Resources Conservation and ProtectionAct RA9003, Ecological Solid Waste Management Act of 2001 RA7586, National Integrated Protected Areas System RA7061, Peoples Small-scale Mining Act of 1991 RA6969, Toxic Substances and Hazardous and Nuclear

Wastes Control Act of 1990


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Systematic survey and understanding of marine tenurialregimes Must accommodate existing local coastal uses Must be sensitive to local management contexts

Regalian Doctrine currently hinders establishment ofcommunal property and rights, despite occasionalreference in law to such Need to carve out an exception

The seas must remain property in common = nationalmarine heritage


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Observations, propositions based on field experiencesin last decade

20-30 year time horizon, after which trends willprobably be irreversible/unremediable

Worst-case scenarios; they can be prevented, if

reforms in place


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As the transport infrastructure improves acrossthe islands, formerly isolated communitieslocated in undeveloped or under-developedislands and coastal areas will come underincreasing pressure from real estate development. These developments will

tend to displace and further marginalize the coastalpoor and

create enclaves of gated seaside or island communitiesthat will exacerbate the gap between the affluent andthe impoverished in the coastal areas.


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Multi-nationalbrand-name hotel

Local hotel


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More and more areas of municipal waters willcome under private control through various formsof mariculture lease agreements, publicreclamation projects, as well as illegal private

reclamation. The appropriation of near-shore spaces will

reduce the available accessible fishing grounds forfishing communities,

increase the likelihood of local conflicts betweenfishers seeking other fishing grounds, and

generallyincrease the incidence of poverty andmalnutrition along the coast.


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Circular fish cage


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Unchecked population growth in the coastal areas willresult in increased congestion of limited coastalspace. Urban development upstream of rivers andhigher population density in coastal settlements willgenerate more massive amounts of land-based marinepollution such as garbage and sewage, which will further reduce the productivityof near-shore capture

fisheries, jeopardize bio-diversity conservation efforts,

increase the health risks from marine toxins, and threaten the viability of any alternative livelihoodsources such as aquaculture, mariculture, and coastaltourism (if there was any before).


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The incidence ofde facto foreign ownership ofcoastal properties will increase and possiblyaccelerate, marginalizing and displacing Filipinocommunities from direct access to the sea or

ownership of coastal lands. Higher-value coastal properties and frontages,

particularly in tourism zones, will be increasinglyappropriated by foreign citizens or interests and

eventuallyrelegate Filipino citizens to lower-valueareaswith more difficult access and limitedutilities and services.


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Increase in offshore petroleum exploration anddevelopment, growth in domestic and foreignshipping incidental to economic activity andgrowth, and coastal tourism development will

subject coastal communities to higher risks of environmental damage from

operational or accidental marine pollution,

tend to displace traditional uses of the coasts and

seas, and further limit the mobility and ability of fishing

communities to survive.


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Negative trends Privatization and exclusive appropriation of currently

public coastal/marine spaces/commons Coming into alignment with environmental and eco-tourism

advocacies Marginalization of fishing communities from direct

access to/tenure over resources needed forsubsistence/livelihood

Displacement from more convenient/higher value locations Higher exposure/vulnerability of fishing communities to

risk of sudden catastrophic environmental damage orcumulative environmental degradation


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D. Miller,1976: about how the good and bad things in life aredistributed in society

J. Laurel, Calalang v. Williams: neither communism, nor despotism, nor atomism, nor anarchy,

but the humanization of laws and the equalization of socialand economic forces by the State so that justice in its rationaland objectively secular conception may at least be approximated.Social justice means the promotion of the welfare of all the people,the adoption by the Government of measures calculated to insureeconomic stability of all the competent elements of society,through the maintenance of a proper economic and socialequilibrium in the interrelations of the members of the

community, constitutionally, through the adoption of measureslegally justifiable, or extra-constitutionally, through the exercise ofpowers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.


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J. Diokno, 1981: first, bynot having a system of law at all, written or

unwritten, or one so flawed that people do not knowwhat their legal rights and duties are; second, by not

enforcing law fairly; and third, by enacting law thatdoes not pursue the social values that constitute theFilipino vision of a just society, or that adopts meanswhich subverts those values


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Urgently needed for coastal and marine tenure

Anticipatory reforms needed to prevent existing trends

from becoming irreversible


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07 Property Law Reform Needs in Philippine Coastal and Marine Law - Prof. Jay L. Batongbacal

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