CHAPTER I

INTRODUCTION

1.1 Background of the Research 1.2 Research Scope, Aims and Hypotheses 1.3 Case Selection, Case Studies and Methodology 1.4 Overview of the Conceptual Framework 1.5 Significance of the Research 1.6 Organization of the Dissertation

Abstract

This chapter outlines the background of the research, research questions, brief review of the literature, research scope, aims and hypotheses, significance and limitations of the research, the overview of the conceptual framework and definition of terms, case selection, case studies and analytic methodology, as well as a road map for the rest of the dissertation.

1.1 Background of the Research

There are more than 32,000 golf courses worldwide1, with a rate of development increasing

annually, along with their adverse impacts on the environment. And for the last 20 years, the

world has seen a considerable proliferation of golf courses in Asia owing to sustained economic

growth in the region.2 Moreover, golf has become the preferred sport amongst Asians nowadays

and many governments have adopted golf tourism as national policy to spur economic growth.3

The Philippines, for instance, boasts of seventy-eight golf clubs compared with just 20 courses

from two decades ago.4 Thailand has 2225 courses, Viet Nam is hurriedly catching up with

1 Visit http://www.golf-research-group.com/start.html. Accessed on October 16, 2012. 2 The proliferation commenced in 1990s and peaked before the 1997 Asian economic downturn started to implode. There was a development hiatus for seven years and construction started to pick up again, with China building hundreds of golf courses annually (in 2004, there are 170 courses which grew to 645 in 2011). Read “New Golf Openings”, Golf Research Group (2003) at http://www.golf-research-group.com/start.html. Also visit http://en.wikipedia.org/wiki/Golf_in_China. Accessed on May 5, 2013. 3 Thailand and Philippines, in many news accounts, have declared a national policy to promote golf tourism, e.g. construction of infrastructures to connect and link golf courses to the national highway and city centres; grant of fiscal and non-fiscal incentives to golf complexes established in tourism economic zones. “Golf Tourism Exploding in Asia”, Golf Asian.com at http://www.golfasian.com/about/golfasian-press-releases/news/golf-tourism-exploding-in-asia/. Accessed on January 23, 2013. 4 Visit National Golf Association of the Philippines (NGAP) at http://www.ngaponline.net/History.php. Accessed on May 17, 2013. See generally, Golf Guide Philippines, 2010, JTech Publications listing of partially developed or temporarily shelved golf courses for various reasons, e.g. lack of funds or legal problems. 5 Visit Thailand Golf Association (TGA) at http://www.tga.or.th/#suwcontent=contentsuwcntdispcontentpagesuwcntDIV_MAINCONTENTsuwcntCONTENTTYPE%3Dhistorysuwcnt1368740286848. Accessed on May 17, 2013.

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twenty-eight6 and Singapore has eighteen golf clubs with twenty-six courses.7 These figures are

increasing steadily at an average rate of two new courses being constructed annually.8

Most of these golf courses are considered “traditional” or conventional, because they pursue a

particular mode of construction and management, i.e. prodigious use of chemicals, water, white

sand or pebbles, and hybrid turf grasses - not only to ensure the playing quality of the surface but

also aesthetically to enhance the greens and a substantial portion of the golf course (tees,

fairways). Moreover, most courses are built either on pristine or un-spoilt lands, hilly plains and

mountainous areas for breathtaking landscapes and challenging games. During the construction

and landscaping stage, the earth-moving activities generally destroy topsoil, re-direct riverine

and wild life habitats, as well as damage ecosystems. But mostly, golf courses have converted

vast tracts of agricultural lands, particularly paddy fields, which bring trepidations about food

security in the region.

Significantly, the “traditional” or conventional method of construction and operation of golf

courses is causing adverse environmental, health, social and economic impacts. Firstly, golf

courses require vast tracks of land for the construction of complexes. These lands could either be

agricultural, hilly or mountainous areas, reclaimed marine or coastal areas, or mostly state lands.

Secondly, golf courses use large quantities of chemicals which are highly toxic and can also bio-

accumulate in organisms9 . Chemicals also pose risks to people exposed to them. Thus, there is

a need to regulate the use of these chemicals (fertilizers, pesticides, herbicides, fungicides and

coagulants). The problem is exacerbated in developing countries, where government policies

encourage agro-chemical use as chemicals are seen as production enhancers – similarly,

substantial chemical application has become the popular “culture” in turf grass management in

golf courses.

There are however, “sustainable” golf courses – those courses that break from the norm to

explore and adopt new practices and principles, disproving the notion that golf courses

6 Twenty-eight courses are under construction. Data taken from Viet Nam Golf Association (VGA) at http://www.vga.com.vn/?show=intro&ic=1&list=6. Accessed on May 17, 2013. 7 Visit Singapore Golf Association (SGA) at http://www.sga.org.sg/Association/History/tabid/175/Default.aspx. Accessed on May 17, 2013. 8 The approximation is based on reports culled from the national bodies of golf and news reports. 9 Bi-accumulation is a “general term describing a process by which chemicals are taken up by an organism either directly from exposure to a contaminated medium or by consumption of food containing the chemical”, United States Environmental Protection Agency (EPA), available at http://toxics.usgs.gov/definitions/bioaccumulation.html. Accessed on March 24, 2011.

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invariably are destructive.10 “Sustainable” golf courses observe or conform to a combination of

legal and regulatory compliance, self-regulation, best management practices, good governance,

transparency and corporate social responsibility, etc. These types of golf courses also adopt the

principle of ethical and responsible utilization of land, water, chemicals, sand and hybrid turf

grasses. The non-traditional or sustainable golf courses meet the aim of balancing the philosophy

of PPP (People, Profit and Planet) that lies at the heart of the sustainable development paradigm.

It can be stated that, “tradition and practice” have popularly considered golf course

management or turf maintenance as agriculture.11 This “misplaced” treatment and recognition –

both by the government regulators and the regulated golf course industry actually results in dis-

order or confusion, particularly in the compliance and enforcement of laws and regulations.

This is evident in the use and application of chemicals, which is one of the core operations of

golf courses. Currently, legislation and regulations on chemical application specifically applies

only to agricultural activities and production. Theoretically, turf management is not agriculture.

Agriculture is defined as “an activity intended for food production”.12 Food production is not the

goal or the objective of golf course management 13 rather it is the cultivation of the greens and

other golfing surfaces to ensure playing quality. It follows that turf management would appear to

be excluded from the coverage of chemical regulation of agricultural activity. This also means

that the laws governing the use of chemical pesticides and fertilizers in the context of

agricultural activities may not apply to golf courses. Presumably, the confusion was due to the

fact that turf grass management is a branch of a broad and multi-disciplinary science of

agriculture, which encompasses soil science and fertility, pest control, ornamental horticulture,

landscape design and environmental science, etc. Moreover, golf course superintendents have

10 The TAT Filipinas Golf Club, Philippines, received the Inaugural “Custodian of the Environment Award” for sustainable golf practices and management. Underwritten by the government of the Royal Sultanate of Brunei, the prize was awarded last December 11, 2012, in Brunei Darussalam. The International Sustainability Council, Asia-Pacific Golf Conferences and the Audubon Lifestyles also support the inaugural award. Visit the Ministry of Industry and Primary Resources website of Brunei Darussalam at http://www.bruneimipr.gov.bn/index.php?option=com_content&view=article&id=555:asia-pacific-golf-summit-dinner-and-award-presentation-for-the-inaugural-custodian-of-the-enviromment-award&catid=79:news-highlights and http://www.theborneopost.com/2012/12/12/call-to-make-golf-courses-environmentally-sustainable/. Accessed on January 23, 2013. 11 See, Scott R. Templeton, David Zilberman and Mark S. Henry, Golf Courses in California As Modern Agricultural Enterprises, available at http://agecon.ucdavis.edu/extension/update/articles/v13n3_3.pdf. Accessed on March 11, 2011. 12 Britannica Concise Encyclopedia 2007 Edition defines agriculture (n.) as the science, art, and business of cultivating soil, producing crops, and raising livestock; farming. 13 Turf grass management pertains to the science and study of grasses. See generally, http://cropsoil.psu.edu/turf/outreach. Accessed on November 3, 2010.

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traditionally “treated” or considered turf management as agriculture owing to adhered

conventional practices and orientation.

As habitat for wild plants, aquatic animals and other organisms, golf courses have a considerable

impact on biodiversity. However, existing laws focus on habitat protection, nature and wildlife

conservation, as well as regulation of the trade in endangered species. There are also golf

courses, which are constructed or developed in natural, coastal, marine or protected areas, which

can destroy intertidal flats, reefs and corrals, but existing laws have not incorporated the

regulation of golf courses on reclaimed lands. The environmental cost arising from golf course

development on reclaimed coastal areas have not been considered although these maybe

determined through a Cost-Benefit Analysis (CBA). The adverse impacts, associated by

dredging and landfill operations on land and water resources of coastal reclamation should also

be considered, as there are environmental trade-offs.

Golf courses also consume significant amounts of water to keep them green and of excellent

playing quality. The United Nations Environmental Programme (UNEP) estimates that golf

courses worldwide consume some 2.5 billion gallons of water a day.14 In a world where water is

getting more scarce as a result of climate change, urbanization, industrialization, population

growth and inefficiencies, there is a need for better regulation of water consumption by golf

courses. Water for golf courses come from various sources: from rainfall, from the ground, from

rivers, from water re-use, etc. The amount of water that golf courses consume – in competition

with other uses – raises an issue on the pricing of water that golf courses must pay. This implies

a need for special regulation on water consumption by golf courses that would otherwise not be

normally covered by regulations on water consumption by domestic and industrial sectors.

Other critical issues discussed in this dissertation include hybrid turf grass use15, which involves

“genetic selection and recombination resulting in the introduction of new and improved

14 Water Facts, Water Information Program, available at http://www.waterinfo.org/resources/water-facts. Accessed on June 24, 2012. Sources, Water Usage: Chris Reuther, Know Your Environment, Academy of Natural Sciences, 1999; National Golf Foundation; State of the World 2004; Pesticides: “EcoMall: A Greener Golf Course, 2004” 15 When golf courses grow hybrid turf grasses, conventional maintenance practices require huge watering demand and massive chemical usage, etc. Read generally, James B. Beard, Turf Management for Golf Courses, United States Golf Association (USGA), Macmillan Press, 1982.

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cultivars”.16 Genetic modifications naturally increase chemical requirements owing to the special

characteristics of the species, which may vary from temperate to tropical zones. The possibility

of “trans-gene release or escape into the wild from transgenic plants may result in ecological

disaster. 17 There are also instances when historical and archeological sites are disturbed,

damaged or destroyed to make way for golf course development, particularly the case of

Eastridge Golf Course in the Philippines, one of the case studies in this dissertation. In

developing countries golf per se is linked with socio-cultural issues e.g. corruption, displacement

of farm-workers, land use conversion18, “land grabs”19 and prostitution20.

A. Sustainable Development

There is concern that the proliferation of traditionally managed golf courses represents the type

of economic growth, which conflicts with sustainable development. The Brundtland Report

(1987) in “Our Common Future” first coined the notion of Sustainable Development as

“development that meets the needs of the present without compromising the ability of future

generations to meet their own needs”. Seminal works have been written about the definition and

meaning of sustainable development, including debates and contestations Saunders (1990)21,

Pearce (1993)22, Beckerman (1994)23, Daly (1995)24, Alder and Wilkinson (1999)25, Jacobs

16 Craig W. Edminster, Future of Turfgrass Breeding Techniques, Cebeco International Seeds, Australia. Available at http://www.intlseed.com/documents/info_future_of_turfgrass_breeding.htm. Accessed on May 30, 2011. 17 See Luo, H., Development of Environmentally Safe Transgenic Turf Grass with Improved Traits, Clemson University, United States Department of Agriculture. Visit http://www.reeis.usda.gov/web/crisprojectpages/208011.html. Accessed on May 30, 2011. 18 In the Philippines, Executive Order 292, Series 1987, Book IV, Title XI stipulates that the Department of Agrarian Reform (DAR) is authorized to approve or disapprove conversion of agricultural lands to non-agricultural uses, such as industrial and commercial conversions under Republic Act No. 6657, the Comprehensive Agrarian Reform Law. 19 Land Grabbing: The Global Search for Food Security in Southeast Asia (2010), NTS-Asia (Consortium of Non-Traditional Security Studies), Issue 1, May 2010. “Land grab” refers to the farmland acquired by government-backed foreign investors to secure food security. A 2009 Report by the Food and Agriculture Organization (FAO), International Fund for Agricultural Development (IFAD) and the International Institute for Environment and Development (IIED) suggest that, “food security concerns and strategic investment opportunities are the key drivers of farmland acquisition”. 20 Current practices in most Asian countries involve the hiring of young women (ages between 16-20) as caddies and umbrella girls. However, the social impact of prostitution in golf courses will not be examined in this dissertation. 21 Saunders, John Owen, ed.,“The Legal Challenge of Sustainable Development: Essays from the Fourth Institute Conference on Natural Resources Law”, Canadian Institute of Resources Law, 1990. 22 See Pearce, David (ed), Blueprint 3: Measuring Sustainable Development, London, Earthscan, 199 and Pearce, David, Economic Values and Natural World, London, Earthscan. 23 See Beckerman, Wilfred, A Poverty of Reason: Sustainable Development and Economic Growth, Oakland California, Independent Institute, 2003; Beckerman, Wilfred, Sustainable Development: Is it a Useful Concept, in Growth, the Environment, and the Distribution of Incomes, Essays by a Skeptical Optimist, Aldershot, UK, E. Elgar, 1995.

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(1999)26 etc.

Nonetheless, it was not until after the conclusion of the United Nations Conference on

Environment and Development (UNCED) at Rio de Janeiro, Brazil in 1992 that the word

sustainable development has attracted the attention of legal scholars, particularly, to explore the

question of how the law can further the objectives of sustainable development, for instance,

Campbell-Mohn et al., (eds. 1993)27, Boers et al., (eds. 1996)28 and Robinson (1998).29 Other

scholars have proposed principles, concepts and prospects for a legal sub-field called Sustainable

Development Law, e.g. Segger and Khalfan (2004)30, Schrijver and Weiss (2004)31, and French

(2005).32

This dissertation primarily explores the question of how the law, coupled with good governance

and management can promote sustainable development by using a cross-national comparative

study involving golf courses in the Philippines, Thailand, Viet Nam and Singapore - a subject

that has not received adequate attention from legal scholars studying sustainable development or

environmental law.

B. Law and Governance

It is vitally important to discuss the aspects of law and governance in general, and in particular,

the rule of law, including the institutional and internal governance in the golf course industry.

Black’s Law Dictionary (2010) defines rule of law as the "supremacy of regular power as 24 Daly, Herman E., On Wilfred Beckerman’s critique of Sustainable Development, Journal of Environmental Law, Volume 7 (1995), Oxford University Press, p. 49. 25 Alder, John & Wilkinson, David, Environmental Law and Ethics, Macmillan Law Master, 1999, UK 26 Jacobs, Michael, Sustainable Development as a Contested Concept, see in Fairness and Futurity, Essays on Environmental Sustainability and Social Justice, Edited by Andrew Dobson, 1999, Oxford University Press, Part 1, at page 1 27 See Campbell-Mohn, Celia, et al., eds., Environmental Law from Resources to Recovery, St. Paul, MN: West, Environmental Law Institute, 1993 and Campbell-Mohn, Celia, et al., eds. Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery. St. Paul, MN: West; Environmental Law Institute, 1993. 28 Boer, B., "Sustainability law for the new millennium and the role of environmental legal education", Water Air and Soil Pollution, Vol. 123, No. 1-4 (2000): 447-465. 29 Robinson, Nicholas A., "Comparative Environmental Law Perspectives on Legal Regimes for Sustainable Development" (1998). Pace Law Faculty Publications. Paper 377. Available at http://digitalcommons.pace.edu/lawfaculty/377. 30 Segger, Marie Claire Cordonier and Khalfan, Ashfaq, Sustainable Development Law, Principles, Practicesand Prospects, 2004, Oxford University Press. 31 Schrijver, Nico and Weiss, Friedl, “International Law and Sustainable Development: Principles and Practice”, Martinus Nidhoff Publishers, 2004 32 French, Duncan, International Law and Policy of Sustainable Development, (Manchester: Manchester University Press, 2005.

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opposed to arbitrary power." It has been considered as one of the key dimensions that determine

the quality and good governance of a country33. The Rule of Law cannot exist without a

transparent legal system, the main components of which are a clear set of laws that are freely

and easily accessible to all, strong enforcement structures, and an independent judiciary to

protect citizens against the arbitrary use of power by the state, individuals or any other

organization.34 Former Singapore Chief Justice Chan SK shares that the Rule of Law “means an

independent judiciary, one that is independent of government and not dependent on it or

subservient to it”. 35

The United Nations (UN) promotes the rule of law at the national and international levels,36 and

refers to a principle of governance in which all persons, institutions and entities, public and

private, including the State itself, are accountable to laws that are publicly promulgated, equally

enforced and independently adjudicated, and which are consistent with international human

rights norms and standards37. In this dissertation, relevant laws and regulations are evaluated and

reviewed comprehensively under Chapter III, Part II, which have direct and indirect impact on

the development and operation of golf courses in the four subject countries.

Meanwhile, the word “governance” has not been clearly defined and remains contested owing to

lack of clarity over its definition. Kooiman (1993) however elucidates that in governance, “no

single actor, public or private, has all the knowledge and information required to solve complex,

dynamic and diversified problems; no actor has sufficient overview to make the application of 33 Kaufman, Daniel et al. “Governance Matters VI: Governance Indicators for 1996-2006. World Bank Policy Research Working paper No. 4280 (July 2007). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999979, accessed on May 17, 2013. 34 Visit http://www.lexisnexis.com/en-us/about-us/rule-of-law.page. Accessed on April 12, 2013 35 “The Courts and the “Rule of Law” in Singapore”. Speech given by Former Chief Justice SK Chan before the International Bar Association (2012), Singapore Journal of Legal Studies, p. 209, December 2012. Also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2242727. Accessed on May 28, 2013. CJ Chan mentioned that, “an independent Judiciary is absolutely essential to the ‘rule of law’, and vice versa”. He also cited See Li-ann Thio, “Rule of Law within a Non-Liberal ‘Communitarian’ Democracy: The Singapore Experience” in Randall Peerenboom, ed., Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (London: RoutledgeCurzon, 2004). 36 The UN Reports states that, “establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict, to the effective protection of human rights, and to sustained economic progress and development. The principle that everyone – from the individual right up to the State itself – is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, is a fundamental concept which drives much of the United Nations work. The principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State-to-State relations. Read (S/2004/616) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. Accessed April 12, 2013 37 Id.

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particular instruments effective; and no single actor has sufficient action potential to dominate

unilaterally in a particular governing model.38 On the other hand, environmental governance

according to Seymour and Faraday (2001) is “used as authority and capacity exercised by

governmental and non-governmental actors in the management of the natural environment”.

Seymour, et.al, also mentions that the term “refers not only to the institutional framework of the

environmental sector, but also to the actors and the powers they exercise over the use of natural

resources”. Thus, Seymour, et al, believe that “environmental governance includes broader

governance issues like representation, legal recourse, civic activities, and protection of human

rights that provide the context for society’s management of its natural environment”.39

This dissertation proposes three (3) different aspects of governance, namely, (1) institutional

governance,40 (2) governance in golf courses (industry norms), and (3) NGO or civil society

participative governance. Thus, governance in golf courses may be classified (a) within the

national and international golf associations and federations, and (b) within the golf club itself. In

this thesis, the phrase “environmental governance” covers the application of law, best practices,

transparency, accountability and social responsibility. It also includes the policy and norms of

the golf course industry, which involves the interaction, collaboration and interplay of

government, private individuals and civil society to achieve environmental protection in golf

courses.

C. Gap in Legal and Academic Literature

Despite the proliferation of golf courses in Asia, very little is known in the literature about law

and governance in golf courses. Are golf courses coherently, effectively and adequately

regulated or governed under existing national laws? Is there a common trend, in substance and

procedure, across legal traditions in the subject countries? Are there industry norms, which have

been adopted by the golf course industry? What are “traditional” or conventional golf courses?

What are sustainable golf courses? What is the difference between “traditional” or sustainable

38 Kooiman, J., “Social-Political Governance: Introduction”, In Modern Governance New Government –Society Interactions, edited by J. Kooiman. London. Sage, 1993a. 39 Seymour Frances and Faraday, George, “Emerging Environmental Governance”, The Asian Environment Outlook, Philippines: Asian Development Bank, 2001. 40 In this dissertation, institutional governance refers to the system of administration, supervision and control exercised by state administrative agencies over the development activities of golf courses. The notion of an institution embodies several elements: formal and informal rules of behaviour, ways and means of enforcing these rules, procedures for mediation of conflicts, sanctions in the case of breach of rules, etc. Read http://www.wto.org/english/res_e/booksp_e/anrep_e/wtr04_2d_e.pdf. Accessed on May 5, 2013.

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courses? Are there laws and regulations, which promote sustainable golf courses? This

dissertation hopes to explore these questions.

For these reasons, law and governance in golf courses require a more coherent approach than is

currently done in most countries. In most developing countries, golf course regulations, e.g. EIA

requirements, biodiversity protection, nature conservation, land, water and chemical use

controls, etc. are not strictly enforced because of jurisdictional overlaps and lack of clarity in the

separation of powers and duties among the different administrative agencies. Enforcement

would have to be carried out by numerous government agencies – agriculture, water,

environment, local and national governments, etc. thereby rendering these regulations less than

effective. This multi-sectoral approach of governance results in jurisdiction overlaps, conflict

and turf wars. There are also problems stemming from the lack of institutional capacity due to

budgetary constraints This paper explores these issues and asks how the law and good

governance can help promote sustainable development, and consequently, the construction and

management of sustainable golf courses.

This dissertation also asserts that self-regulation is possible in the golf industry and provides

documentation of an example of a sustainable golf course. It argues that for golf courses to be

sustainable and become an industry norm, the following conditions are necessary: self-

regulation, benchmarking, public pressure, market demand, incentives and disincentives

(“carrots and sticks”) from regulators and reliable verification and enforcement mechanisms.

Civil society and NGO participation is likewise important, in order to check and balance

regulatory enforcements and implementations41.

1.2 Research Scope, Aims and Hypotheses

This dissertation proposes to answer the question of how the law and good governance can

further the objectives of sustainable development in the context of golf courses. More

specifically, this thesis aims to fill the gaps in the legal literature about golf courses. To achieve

this aim, this dissertation primarily, proposes and tests a framework to cross-nationally evaluate

and compare the laws and governance, from across and within the four countries. The analytical

framework - discussed in the next section - compares the coherence, adequacy and

41 Several NGOs and environmental advocacy groups promote sustainability and best practices in golf courses, among them, Golf Environment Organization (GEO), International Golf and Life Foundation (IGolf), Audubon Society, among others. Nonetheless, there are many aspects of sustainability, which the case studies in this thesis will discuss.

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responsiveness of both law and governance, particularly those related to the planning,

construction and operation of golf courses. The framework then is applied to the study of laws

and governance in golf courses in Southeast Asia particularly in the Philippines, Thailand, Viet

Nam and Singapore. The rationales for selecting these countries are explained in the

methodology section.

Using the framework of analysis, this dissertation qualitatively tests for the following

hypotheses:

Hypothesis 1: Law and governance in golf courses tend to be incoherent, ineffective and

inadequate. This is because both law and governance have evolved in traditional, fragmented,

compartmentalized and reactive or ad hoc manner. Examples can be drawn from the following,

(1) The regulation of water quality - water laws generally focus on the quality of drinking water

and therefore seek to control pollution and contamination of the water supply, by prescribing

effluent standards. Not many jurisdictions have considered the regulation of groundwater

extraction and the installation of flow meters; (2) The regulation of the use of fertilizers,

pesticides, fungicides and other chemicals - these are derived from agriculture-related

regulations, so it is unclear if the use of chemical in golf courses is regulated; (3) Most of land

use regulations are intended for urban planning purposes and do not adequately take into account

the concerns of agriculture and the need for food security Thus, many agricultural lands,

particularly paddy fields are converted for commercial or residential uses.

In short, because these regulations evolved and were designed for purposes other than to regulate

golf courses, they have become incoherent, unresponsive and inadequate for purposes of

regulating its adverse environmental impacts. This thesis argues that a coherent and effective

legal framework and governance is necessary to reduce the adverse environmental impacts of

golf courses and to encourage the construction and development of sustainable golf courses.

The second hypothesis to be tested explores the idea that self-regulation by golf owners and

operators is desirable and feasible under certain conditions. Because the enforcement of

regulation tends to be costly and imperfect, and technology for golf construction and operation is

dynamic (evolving) it makes sense for environmental policy to promote self-regulation. There is

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in fact a growing literature on industry self-regulation. According to a study by Toffel (2010)42,

“industry self regulation is concerned with issues such as how are the rules designed, who adopts

them, whether and how compliance is monitored, and whether these rules actually achieve what

they purport to achieve”. Toffel writes that, “Most studies that have examined industry-initiated

programs have found that at the time of adoption, participants are no better than others and little

evidence suggests that adopting such programs leads participants to improve faster.” Toffel

concludes that, “third-party verification becomes increasingly important”.

In the literature, there are no similar studies assessing whether or not self-regulation is possible

in the golf industry. This dissertation would therefore be the first such study. Thus, Hypothesis

2: Self-regulation by golf courses, in terms of adopting sustainable practices, is feasible under

certain conditions. This is because a sustainable model of golf courses presents golf owners and

operators a competitive or niche advantage in the industry especially for environmentally

conscious players. A sustainable model also technically and financially makes sense for golf

operators; it lessens their reputational risks in addition to helping them comply with

environmental regulations. However, for sustainable golf courses to become an industry norm, it

is argued that a combination of self-regulation, benchmarking, public pressure, market demand,

incentives and disincentives (“carrots and sticks”) from regulators and reliable verification and

enforcement mechanisms would be needed. 43

The second aim of the dissertation is to critically assess whether the principles, concepts or

philosophies embedded in Multi-lateral Environmental Agreements (MEAs), international and

regional hard and soft law instruments, actually guide, inform, enhance and promote national or

domestic environmental protection and management in golf courses. The comparative

42 Toffel, Michael W., “Making Self-Regulation more than merely symbolic: the critical role of the legal environment”, Administrative Science Quarterly, September 2010, Vol. 55, No. 3, pp. 361-396. Visit at http://asq.sagepub.com/content/55/3/361.short. Accessed on January 23, 2013. 43 Many professions adopt self-regulation in order to maintain professional reputation, education and ethical standards. Read, Glossary of Industrial Organisation Economics and Competition Law, compiled by R. S. Khemani and D. M. Shapiro, commissioned by the Directorate for Financial, Fiscal and Enterprise Affairs, OECD, 1993. Meanwhile, benchmarking is defined as the measurement of the quality of an organization’s policies, products, programs, strategies, etc. and their comparison with standard measurements, or similar measurements of its peers. Market demand is the aggregate of the demands of all potential customers (market participants) for a specific product over a specific period in a specific market. See generally, Paul A. Samuelson and William D. Nordhaus, Economics, McGraw Hill International Edition, 19th Edition, 2011, at page 48. Carrot and stick refers to giving reward and punishment to elicit cooperation among parties.

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environmental law literature, for instance, Robinson (1998)44 hypothesizes that there should be a

“common trend, in substance and procedure, across legal traditions because it is influenced by

four phenomena that are common to all legal jurisdictions”. First, “natural systems function in

much the same ways wherever they are studied regardless of their legal, political or social

contexts”. Second, “many of the externalities that endanger public health or degrade natural

systems, such as urban smog or acid rain, result from the same technological systems”. Third,

the “complexity of the modem state has given rise to an administrative system that shares a great

deal in common i.e. similarities in procedures for permits, financial incentives, norms and

standards, monitoring and baseline data analysis, environmental impact assessment, and

compliance and enforcement are used by these administrators in their jurisdictions”,

consequently administrative procedures tend to be similar among legal jurisdictions. Fourth, the

advent of globalization, the development of the Internet, global trade and travel, “enables

different jurisdictions to learn from environmental laws and regulations of other countries”. This

should facilitate the process of learning, adoption and adaptation and therefore we should expect

to see substantively similar legal procedures across jurisdictions.

The implication of all these is that we should expect to see a common trend, in substance and

procedure, in environmental law across legal traditions. Thus, in this dissertation, I test the third

hypothesis. Hypothesis 3: MEAs and soft and hard law instruments, to a certain extent, guide,

inform, enhance and promote domestic law and governance. The ability of countries to adopt or

transplant best practices, the adoption of laws relating to environmental impact assessments

(EIA), biodiversity protection, water pollution control and supply, the preservation of ecological

and cultural/archeological sites however, depend on several factors, such as the country’s

economic status, as well as its financial, legal and administrative capacity. It is hypothesized that

developed economies with stronger financial, administrative and legal capacities are more likely

to adopt sustainable and best management practices. Conversely, less developed economies with

weaker financial, administrative and legal capacities are likely to have less of these.

It can be argued that inadequate institutional capacity, as well as lack of knowledge and

awareness about the environmental impact of golf courses contributes to the resistance or

opposition to adopt sustainable practices. This thesis also notes that most landscapists and golf

course architects who work in Asia came from the developed countries of U.S.A. and Europe.

44 Supra, note 29.

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These same experts have also pursued the massive use of hybrid turf grasses, which are

dependent on huge water and chemical usage. Succeeding chapters of this thesis will show that

the best golf courses in Asia reveal ‘unsustainable practices”, which were promoted through

intricate and impractical designs and landscaping by world-class golf course architects and

landscapists.45

This thesis also looks into the role of golf tourism46, which drives competition and rivalry to

build the best, the largest and the most expensive golf courses in the region. In golf tourism

governments usually adopt a national policy of financially supporting public infrastructure

development, e.g. creation of tourism zones and complexes, construction of airports, bridges and

road networks. Investment opportunities and incentives (fiscal and non-fiscal), subsidies and tax

rebates are likewise proffered to entice foreign direct investments (FDIs) in capital-intensive

golf course development. In many instances, government agencies are tapped to support, finance

and operate golf courses. Thus, this thesis also evaluates whether regulatory mechanisms are in

place to pursue and promote golf tourism.

1.3 Case Selection, Case Studies and Methodology

A. General Approach to Research

This dissertation follows the approach proposed by comparative environmental law expert

Robinson (1998), who suggested that the sub-field of comparative environmental law involves

asking the following research questions: First, which jurisdictions can be compared? Second,

what are the elements of a comprehensive environmental law regime to identify and compare?

Third, how can environmental laws be harmonized and integrated among states in order to give

better effect to their objectives? Finally, how can one locate and verify environmental laws of

45 In several discussions during golf conferences, a handful of world-famous architects and landscapists argued that they are merely executing the desires and requirements of the owners and developers of golf courses. There is also an implied desire to build the best, the most challenging and the longest courses in the world. Some of the designs feed the egos of the golf owners and the golf architects. Read, “Contemporary Golf Course Architecture: Saga or Satire, Frank Hannigan, Former Senior Executive Director, United States Golf Association, first published in the Green Section RECORD, March/April 1989. Available at http://www.usga.org/course_care/articles/construction/general/Contemporary-Golf-Course-Architecture---Saga-or-Satire-/. Accessed on May 28, 2013. 46 Golf Tourism is the term used to describe trips undertaken by persons for which the main purpose is to play golf. This type of activity is difficult to measure. The global golf tourism market is worth over $17 billion, according to the International Association of Golfing Tour Operators (IAGTO). Available at http://www.iagto.com/. The IAGTO was established in 1997 with membership comprising 2050 accredited golf tour operators, golf resorts, hotels, golf courses, receptive operators, airlines, tourist boards, approved media and business partners in 90 countries including, at its core, 484 specialist golf tour operators in 61 countries.

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different states? This dissertation therefore advances the literature on comparative environmental

law using Robinson’s approach. This thesis also follows the environmental governance

framework of analysis designed by Francesch-Huidobro (2008).

B. General Approach to Analyses

This thesis adopts the empirical, comparative and evaluative method of analyses in order to

identify, review and compare both law and governance in the four subject countries. This thesis

also explores the development of national laws based on the application of MEAs and regional

treaties and conventions. No legal scholarship exists in relation to law and governance frameworks

involving golf courses. Neither has any cross-national comparative study been conducted on the

topic. This research relates to an under-developed legal field. There is also a dearth of judicial

guidance on the subject.

For empirical research, this paper conducted data collection, field research, personal interviews,

observation, evaluation, and extensive library research, ocular/visual inspection of golf courses.

Comparisons of the national frameworks and norms have also been conducted. This paper

evaluates the practices, constraints, key issues, problems and concerns encountered by the

administrative institutions in order to determine implementation, i.e. submission to EIA process,

payment of taxes, procurement of necessary clearances, licenses or permits, etc. This paper also

evaluates and compares the norms of the industry and general practices in golf courses, NGO and

civil society participation. Finally, this paper identifies the areas or aspects of law, regulation or

policy to be addressed. This paper then recommends improvements, amendments or revisions

where existing laws are found to be inadequate or insufficient.

C. Field Work, Personal Interviews and Secondary Data

This dissertation collected and evaluated voluminous legal texts, in English, Thai and

Vietnamese language by visiting government websites, libraries and offices. The researcher

travelled to Viet Nam (Ho Chi Minh, Long An Province, Phan Thiet, Dalat, Tam Dao, Chi Linh

and Halong Bay) and Thailand (Bangkok, Chacheongsao, Khet Kannayao, Samutprakarn)) for a

total of seven weeks to interview government officials, golf managers, chemical suppliers and

golf operators. Translators are hired and official English websites are checked but the lack of

English translations has been a constraint. Lengthy and repeated interviews with government

officials and policy-makers are conducted in order to verify information and to validate data.

15

Anecdotal evidence and data shared by several interviewees are treated with caution due to the

sensitive nature of disclosures, especially on the chemical rate of application and water usage.

Comparable data has been obtained from other sources to validate them. The researcher has

more than twelve years work experience operating two golf courses in the Philippines thus data

collected from resource persons can be validated. All primary data were collected through

personal interviews, which have durations of 1 hour to 2 hours, which included an ocular

inspection or a tour of the golf course. Before the start of the interview, a copy of the NUS Code

and Procedures on Research Integrity (For Academic and Research Staff), Version RI-1

(October 18, 2006) has been furnished to the interviewees, to ensure that the interview will be

conducted in academic manner. The interviewees were asked to provide their views and

opinions about the development and operation of golf courses. They were also asked about the

general trends, best practices and sustainability campaigns that have become popular in

developed countries.

The purpose of the data collection is to obtain a clearer perspective about golf course operation

and maintenance practices from all four countries, as well as the rules and regulations they

honestly believe applies to regulate their activities. Thus, apart from examining the laws,

constitutions, legal cases, enforcement reports, journal articles and other publications, this

dissertation also interviewed various personnel from various government agencies as well as

from the golf industry in the different countries. Industry norms are identified from empirical

research conducted by this paper.

D. Choice of Jurisdictions for Comparison

This dissertation compares the laws and governance in golf courses in the Philippines: Thailand,

Viet Nam and Singapore. A brief background of the subject countries, are included, with

summary of the state of the environment in golf courses.

1. Philippines

The Philippines is mainly an agricultural economy with a total land area devoted to production at

thirteen million hectares.47 It is rich in natural resources with total renewable water resource at

479 cu km and irrigated area of more than 15,500 square km of agricultural land. 48

47 The total land area is of the Philippines is 300,000 sq km. Visit http://www.neda.gov.ph/econreports_dbs.asp. For agricultural updates, visit the Department of Agriculture (DA) at http://www.bas.gov.ph/?ids=agriperformance. Accessed on May 17, 2013. 48 Id.

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Environmental problems include critical water shortages in the National Capital Region (NCR)

and Metropolitan Cebu49, uncontrolled deforestation in watershed areas, soil erosion, and air and

water pollution in major urban centers. Around twenty typhoons hit the country annually while

rainfall varies widely in amount (1,000–4,000 millimeters) and distribution.50

Seventy-eight golf clubs with courses of varying sizes and number of holes operate in the

Philippines, a number of which were constructed and developed during the unprecedented golf

growth in the 1990s.51 An additional sixty-four complexes are unfinished or not operating owing

to financial constraints brought about by the 1997 Asian economic meltdown. The Philippines is

engaged in golf tourism, by playing host to Japanese and Chinese expatriates working in

industrial parks or economic zones. A sizable number of Korean tourists also dominate the

golfing scene while Filipino players account for approximately more than a hundred thousand52,

buying proprietary and non-proprietary club memberships. Golf clubs are mostly exclusive and

private but the rest consents to an “open door policy” where non-members are allowed to play,

provided members accompany them. Hotels and cottages are integrated with casinos and

resorts.53 There are also golf courses established by the Armed Forces (Navy, Army and Air

Force Units) inside military camps.54 Military pension funds managed by the Armed Forces

Retirement and Separation Benefit System (RSBS) have been invested in golf courses.55

Officially, there is no declared national policy on golf course development in the Philippines yet

tourism development is one of the top priority programs of the government. The Philippines has

49 National Capital Region (NCR) comprises the fifteen cities of Metro Manila and the lone municipality of Pateros. It also includes the suburbs in adjacent provinces of Cavite, Laguna, Rizal and Bulacan with an estimated total population of 20 Million as of August 2010. Cebu is a metropolitan city with an estimated population of 2.4 Million in 2010. National population is at 92,337.852 Million as of 2010, data is available at http://www.popcom.gov.ph/ and http://www.census.gov.ph/. Accessed on May 17, 2013. 50 Philippine Environment Monitor, 2003, Asian Development Bank Report. 51 List of golf courses in the Philippines with locational plotting is attached as Map 1. 52 These are rough estimates based on the annual rounds of play and club membership culled from unofficial records of golf clubs and the National Golf Association of the Philippines (NGAP). 53 Manila Southwoods Golf Club, Eastridge Golf Club and The Cliffs Golf & Beach Club have these 54 The golf courses include Fort Bonifacio Golf Club, Camp Aguinaldo Golf Club, Veterans Hospital Golf Club, Villamor Airbase Golf Club, and theArmy and Navy Golf Club. During the American occupation (1898-1946), three golf courses were built by the US military command inside the bases namely Camp John Hay Golf Club in Baguio City, Subic Golf Course in Olongapo, Zambales and the Clark Airbase Golf Course in Angeles, Pampanga. 55 The AFP-RSBS Pension Fund invested at Eastridge Golf Club – PHP 877.5 M (USD 21,227.400); (SGD 26,518.3); at Riviera Golf Club – PHP 341 M (USD 8,249,050) (SGD 10,305,100); at Presidio Royale Golf Club – PHP 450.3 M (USD 1,089,310) (SGD 1,360,820) and at Orchard Golf Club – PHP 297 M (USD 7,184,660) (SGD 8,975,430). At foreign exchange rate of USD1 = PHP41.114 and SGD 1 = PHP32.900 as of May 17, 2013 as of May 17, 2013. Also Read the Senate Committee Final Report No. 51, Inquiry in Aid of Legislation, Resolution No. 160: Inquiry into the alleged mismanagement of the funds and investment portfolio of the AFP-RSBS.

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been chosen for this comparative study precisely owing to its groundbreaking involvement in

golf tourism, as well as its pioneering adoption and codification of relevant environmental

policies and legislation involving golf courses. Moreover, the government agency in-charge of

licensing golf courses continues to accept EIA applications and issue new Environmental

Compliance Certificates (ECCs) despite dwindling annual rounds of golf and the non-operation

of at least sixty-four golf courses in the country.

2. Thailand

Thailand has a total land area of 514,000 square kilometers and a population of 67.448 Million.56

Its economy is largely dependent on agriculture, industry and services, including tourism.

Thailand has huge water resources with major rivers, khlongs or canals passing through the

central plains with an estimated surface water resource of 198.8 cubic kilometers per year

(km3/year)57 yet cyclically Bangkok has too much and too little water.58 Peasantry was the

foundation of the society and economy.59 When land reform was imposed in 197560 much of the

problems confronting the agricultural sector are drawn from high tenancy rates and landlessness

in the Central plains. 61 The Thai government allocated 10.1 Million rais (1,616,000 ha)

(3,993,000 acres)62 of public land and 0.5 Million rais (80,000 ha) (197,684 acres) of private

land to implement agrarian reform. However, land distribution was insufficient and the

government had to include 4 Million rais (64,000 ha) (158,147 acres) of deteriorated forests

56 See generally Thailand National Statistical Office. Visit http://web.nso.go.th/ and, https://www.cia.gov/library/publications/the-world-factbook/geos/th.html. Accessed on May 17, 2013. 57 Thailand has seven river basins and twenty-five sub-basins. Major rivers include the Chao Phraya, Tha Chin, Mae Klong and their tributaries. Chao Phraya runs through Bangkok and the basin covers 30% of Thailand’s land area. Visit http://flood.dpri.kyoto-u.ac.jp/ihp_rsc/riverCatalogue/Vol_05/10_Thailand-10.pdf. Accessed on May 21, 2013. 58 Annual rainfall is 800 trillion m3 yet there is water shortage problem in the Eastern Seaboard where most industrial estates are located. Visit http://www.nationsencyclopedia.com/Asia-and-Oceania/Thailand-CLIMATE.html. Accessed May 21, 2013. 59 Pasuk Phongpaichit and Chris Baker, Thailand, Economy and Politics, Second Edition, 2002 Oxford University Press, at page 3. 60 B.E. 2518, Agricultural Land Reform Act (1975), s.4 defines land reform as the “redistribution of land for farming and residential uses by allocating state land or, land purchased or expropriated from landowners who do not themselves cultivate or who own land in excess of what is stipulated by law”. 61 Read Suthipon Chirapanda, The Thai Land Reform Program, Bangkok, 1998. Visit http://www.seameo.org/vl/landreform/frame.htm. Accessed on August 23, 2008. 62 Land in Thailand is measured in Rai, Ngan and Wah. Land prices are usually expressed in Baht/Rai or Baht/Wah (for smaller plots). Metric measurements are normally used in construction and measurement of buildings. 1 sq. Wah = 4 m²; 1 Ngan = 100 Wah (or 400 m².); 1 Rai = 4 Ngan (or 1600 m²); 1 Acre = 2.5 Rai (approx.) or 43,560 sq.ft; 1 Ha = 6.25 Rai or 10,000 m².

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land.63 Land suitable for paddy has already been put to use and forests land has been cultivated

for agriculture.64 Generally, land use conversion is being allowed as a policy of the government.

Environmental issues include air and water pollution, hazardous waste and declining wildlife

population. Agriculture spurred the economic and tourism development in mid-1980s and as a

result many Japanese companies requiring high labor input to lower-wage economies relocated

and established Export Processing Zones in Thailand. Very few golf courses existed then – they

were either operated by the Thai military or just plain and basic course layouts for private

courses.65 Nevertheless, the robust financial market in the 1990s propelled the country to

massively build more than 220 courses with residential component. Two more courses are built

annually. It can be claimed that foreign investors who came to invest in Thailand’s economic

and industrial zones66 fueled the proliferation of golfing complexes. With a growing tourism

industry Thailand invested heavily in public infrastructures, such as road networks, bridges and

airports. Thailand’s dependence on tourism contributed to 17% of its foreign currency

earnings.67 The Tourism Authority of Thailand (TAT)68 was created primarily to promote

tourism development. TAT is very supportive of the tourism industry, and golf plays a

considerable role in bringing tourism into the country. There is no national policy for golf

course development albeit new complexes are built annually. Thailand is included in this cross-

national comparative study precisely owing to its dominance in golf tourism in the region.

3. Viet Nam

The Viet Nam war lasted more than three decades (1945-1975), eventually resulting in severe

environmental destruction due mostly from gun battles, shelling and chemicals sprayed onto

millions of hectares of forest and agricultural lands.69 In 1986, the People’s Party Congress

63 Id. 64 Noel Rajesh, Thailand Country Report on Pollution, 10-40 (1995). 65 Read The History of Golf in Thailand. Available at http://www.thailand.com/travel/golf/historyofthai.htm. Accessed on May 29, 2010. The locational map of Thailand with plotting of golf courses is attached as Map 2. 66 A 2006 survey conducted by the Japan External Trade Organization (JETRO) shows that Thailand was the “most optimal location for establishing a production/sales base in the coming 5-10 years.” Published in the website of the Royal Thai Embassy in Moscow, at http://en.thaiembassymoscow.com/info/?section=s2. Accessed on May 21, 2013. 67 Sunee Mallikamarl and Isono Yayoi, The State of Environment in Asia, 1999/2000, Chapter 3, “The Kingdom of Thailand”, Japan Environmental Council, Editor, Springer ISEAS, at page 68. 68 B.E. 2522, The Tourism Authority of Thailand (TAT) (1979) is a statutory body. 69 “Vietnam: war and the Environment”, The Green Left, (1993), available at http://www.greenleft.org.au/node/6044. Accessed on May 21, 2013.

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introduced the policy of doi moi (renovation)70 and the change ushered in massive foreign direct

investments.71 Today, Viet Nam is an agriculture-based economy yet its noticeable race to build

more golfing complexes has generated national unease brought about by land use conversion of

mostly agricultural lands, specifically, paddy fields. There are twenty-eight golf courses

currently operating, and around one hundred twenty-three golf licenses were issued for various

golf projects.72 The game of golf is relatively new in the country but novelty has not prevented

the unprecedented construction and development of mostly foreign-owned golf courses. At the

core of the spate of development is the decentralization of power from the Central government

based in Hanoi to local administration.

The policy of decentralization of central authority adopted by the People’s Party Congress in

2006 delegates power to the Provincial People’s Committees (PPCs)73, including the direct

power to issue golf licenses to developers.74 Thus, in a span of two years around 123 golf

licenses were allegedly released covering approximately 38,000 hectares (93,900 acres), of

agricultural lands.75 The Ministry of Planning and Investment (MPI) reported to the Prime

Minister the negative outcome of decentralization and recommended the recall of PPC authority

to approve golf licenses.76 The MPI also proposed to restrict the development of golf courses

encroaching on rice farms. Eventually, the Prime Minister recalled the PPC authority in 70 The policy of doi moi brought a shift from a centrally planned economy based chiefly on public ownership to a market-oriented economy with state management and a socialist orientation. Read generally Gillespie, John Stanley, Transplanting Commercial Law Reform, Developing a ‘Rule of Law’ in Viet Nam, Ashgate, 2006, at page 1. 71 Viet Nam registered USD 47.15 Billion FDI in 2008. Visit General Statistics Office of Viet Nam, available at http://www.gso.gov.vn/default_en.aspx?tabid=491. Accessed on May 21, 2013. 72 Data were obtained from various newspaper reports, actual informal interviews conducted with government officials and Viet Nam Golf Association website, validated by field research from periods April 22 to May 2, 2009. The 2020 National Golf Course Development Plan set the cap to ninety golf courses yet it appears that additional thirty golf courses have been given licenses, as well. The map of Viet Nam with locational plotting of golf courses is attached as Map 3. 73 Viet. Const. of 1992, art.118 states that, “the People’s Committees are the effective organs that implement and enforce laws”. 74 The Law on Environmental Protection (2005) provides that “the Ministry of Environment and Natural Resources (MONRE) is the central authority in environmental management and protection”. Thus the grant of authority to PPC through decentralization is actually a derogation of power previously bestowed to MONRE. 75 See generally Nguyen Van Suu, Industrialization and Urbanization: How Appropriation of Agricultural Land Use Rights Transformed Farmers’ Livelihoods in a Peri-Urban Hanoi Village? Final Report of an EADN Individual Research Grant Project, January 2009. Available at http://www.eadn.org/eadnwp_38.pdf. Accessed on August 14, 2010. Read Bloomberg news, October 8, 2010 at http://www.bloomberg.com/news/2010-10-08/rice-land-in-vietnam-may-shrink-5-as-cities-golf-courses-swallow-farms.html. Accessed on December 4, 2010. 76 Personal interview with Nguyen Thi Bich Ngoc, Deputy Head, Service Sector Division, Ministry of Planning and Investment on April 28, 2009, 2 Hoang Van Thu, Hanoi, Vietnam. Nguyen is in charge of the golf sector promotion. Transcript of interview is attached as Appendix “19”.

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December 2008 and under Prime Ministerial Decision 1946 (November 2009), Viet Nam

proposes to limit the number of golf courses operating in the country to ninety by 2020 through

the adoption on August 18, 2010 of the 2020 National Golf Course Development Plan.77

The recall of PPC authority and the adoption of the Golf Course Development Plan were due to

concerns about agricultural land use conversion, and the global shortage of rice 78, which

gripped the entire rice-consuming economies in Asia. In Vietnam, rice lands shrank from 4.5 to

4.1 million hectares from periods 2000-2006 due to the growth of industrial and residential

areas.79 Consequently, the MPI-Strategic Development Institute (SDI) was tasked to conduct a

study on the environmental and socio-economic impact of golf course development and was

required to submit a master plan for allowable development in the future. Hence, the 2020

National Golf Course Development Plan based on the MPI-SDI Master Plan was adopted.

Viet Nam is one of the largest recipients of overseas development assistance (ODA) in the

world.80 Thus, numerous international agencies assisted in strengthening its legal and regulatory

frameworks, specifically the Law on Environmental Protection (2005) where Environmental

Impact Assessment (EIA) is amply provided. 81 Recently, Circular No. 230/2009/TT-BTC

(2009), provides tax relief, enterprise income tax incentives, value added tax (VAT) incentives,

expenses for product advertisement and sorting of garbage at source, for environmental

protection efforts in Viet Nam.82

77 Copy of the 2020 National Golf Course Development Plan is attached as Appendix “20”. 78 The 2008 global rice shortages brought food prices sky-rocketing amid double-digit inflation. Severe flooding also contributed to the shortfalls. 79 Ministry of Agriculture Report, 2008. Visit the portal maintained in Vietnamese language at http://www.agroviet.gov.vn/Pages/default.aspx. Accessed on August 20, 2010. 80 Japan’s ODA policy for Viet Nam at http://www.mofa.go.jp/policy/oda/region/e_asia/vietnam.pdf or http://www.mofa.go.jp/policy/oda/longlist/vietnam.pdf. Also Visit http://www.aideffectiveness.org/Country-Vietnam.html. Accessed on August 21, 2010. 81 The Swedish International Development Agency (SIDA) provided technical and financial support for the codification of the LEP. See generally, Swedish Bilateral Support to Environmental Capacity Development –Overview of Key Results and Lessons Learned, Daniel Slunge and Emelie César, Draft Report, February 5, 2010, University of Gothenburg, School of Business, Economics and Law. Available at http://www.hgu.gu.se/Files/nationalekonomi/EEU/Helpdesk/jointreports/Review%20of%20Sida%20support%20to%20EnvCapDev-DRAFT%20feb%205%202010_.pdf. Accessed on August 14, 2010. 82 Tax Circular No. 230/2009/TT-BTC (2009) guides tax incentives for environmental protection activities prescribed in the Government’s Decree No. 04/2009/ND-CP (2009) on incentives and support of environmental protection activities. Available at http://www.thuvienphapluat.vn/archive/Thong-tu/230-2009-TT-BTC-vb101401t23.aspx. Accessed on January 1, 2011.

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In this thesis, Viet Nam is chosen for the cross-national comparative study owing to its

aggressive development and operation of golf courses. Most of the references for Vietnamese

legal documents have been taken from the official website designated by the government to

provide English translations of Vietnamese laws.83 The recent government action to clamp down

on the proliferation of golf courses, particularly those projects with large residential component,

until 2020, has shown decisiveness and swift response to regulate the golf course sector.

Although there are criticisms against the Golf Course Development Plan, other countries may

learn from the Vietnamese regulatory experience.

4. Singapore

Singapore is a city-state with total land area of 710.2 sq km84. The Singapore state owns 58% of

the land (41,000 hectares) excluding the lands sold to various statutory boards.85 Although

Singapore utilizes only 1% of its land for agriculture, e.g. hydroponics, floriculture, it is also

engaged in other agricultural activities, i.e. gardening (greening of parks, roads and road

networks) and aquaculture (food fish and ornamental fish) production. Singapore is also one of

the major chemical producers in the world.86 And reputedly, has one of the highest consumption

of chemicals, organic or inorganic (fertilizers, pesticides, herbicides, fungicides) in the region87.

Singapore has limited land availability and natural resources yet it is alleged “to have the highest

density of golf courses in the world with one course for every ten square miles”.88 In Singapore,

there are twenty-six golf courses of varying sizes and holes spread over eighteen golf clubs

83 Translation is provided by Viet Nam Law and Legal Forum, Official Translation and issuing Official Gazette in English, at 79 Ly Thuong Kiet, Hanoi, Viet Nam. 84 In August 2009, the total land area of Singapore is 692.7 sq km (69,270 hectares) but has increased to 715.8 sq km in 2010 owing to land reclamation. Visit the Department of Statistics, the National Statistical Coordinator under the Statistics Act, Cap. 317 (amend. 1973). Available at http://www.singstat.gov.sg/statistics/latest_data.html#12. Accessed May 20, 2013. 85 State Lands in Singapore. Visit http://www.sla.gov.sg/htm/ser/ser02.htm. Accessed on May 5, 2013. 86 Singapore is a major producer/exporter of chemicals owing to the existence of petrochemical plants in the State. Visit http://www.state.gov/r/pa/ei/bgn/2798.htm. See Charles Melton, The Environmental Effects of Golf Courses. Available at http://www.des.ucdavis.edu/courses/ESP10/10D_drafts/MElton.pdf. Accessed on June 6, 2010. 87 In various interviews conducted in the region, golf managers have pointed out that Singapore hosts the most number and priciest national and international tournaments. These events necessitate the preparation and priming up of the golf courses, with the use of “cultural practices” that includes massive chemical preparation. However, no data has been collected regarding the total tonnage or quantity of chemicals used in Singapore due to the refusal of interviewees to disclose their consumptions. 88 Estimated population of Singapore per 18 holes (000s) = 95.5, according to the World Research Group. Visit http:\\www.golf-research-group.com. Accessed on April 10, 2010. The map of Singapore with golf courses plotting is attached as Map 4.

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located in constrained areas, e.g. land within water catchments89, under airport flight paths or

areas affected by Ministry of Defense (MOD) restrictions. Of these courses, thirteen90 have

quasi-public interests - owing to direct or indirect investments brought about by leasehold

agreements extended by the government, which owns the State lands where golf courses are

built. Singapore imports around 3.8 Million tons of sand from Cambodia for its reclamation and

construction requirements, including for golf course development. 91 Singapore also buys

freshwater from Malaysia to supplement its water needs.92

Statistics show that public housing in Singapore services 85% of the population while occupying

only 6% of the total land area.93 On the other hand, golf courses occupy approximately 2,000

hectares or 2% of the total land area. Freshwater is scarce, supplemented by four “national

taps”.94 In 2002, Singapore’s daily water consumption reached 300 Million gallons per day (but

per capita domestic consumption has been brought down from 165 liters to 152 liters recently)95

and it is expected to triple in 2015.96 The water issue will become more significant in the next

decade as population increases (5,184 Million as of 2011) and correspondingly, the water needs.

89 The PUB Manager gave a talk about golf courses bordering water reservoirs in Singapore and the problems involved therein. Visit http://www.golfandlife.ch/fileadmin/user_upload/images/News/2nd_seminar-Singapore_Aug.09/Presentation_Michelle_Sim_-_low.pdf. Accessed on September 15, 2012. 90 The golf courses are: a) four eighteen holes of Singapore Island Country Club situated inside the PUB water catchments – the MacRitchie and Lower Peirce; b) three nine-holes of Singapore Armed Forces Reservists Association (Army, Navy, Air Force) funded partly by the Ministry of Defense for the National Servicemen of Singapore; c) one 18 holes Sembawang Golf Course, which is military owned, controlled and operated; d) one 18 holes National Service Resort and Country Club’s Kranji Sanctuary located inside the Kranji reservoir with thirty-year lease from PUB and financial support by the Ministry of Defense; e) one 18 holes Marina Bay Public Course situated in reclaimed land and water catchment area; f) Keppel Club’s one 18 holes situated in Singapore Land Authority (SLA) land; g) one 18 holes of Seletar Country Club; h) one 27 holes Orchid Country Club situated in Lower Seletar catchment; i) one 18 holes Jurong Country Club is in Jurong Lake catchment; and j) one 18 holes Raffles Country Club is situated in Tengeh Reservoir. 91 “Singapore’s Insatiable Hunger for Sand”, Chris Coles, New Mandala, April 25, 2012. Available at http://asiapacific.anu.edu.au/newmandala/2012/04/25/singapores-insatiable-hunger-for-sand/. Accessed on May 28, 2013. 92 Singapore imports water from Malaysia. Visit http://www.pub.gov.sg/water/Pages/singaporewaterstory.aspx. Accessed on May 28, 2013. 93 History of the Housing Development Board at http://www.hdb.gov.sg/fi10/fi10320p.nsf/w/AboutUsHDBHistory?OpenDocument. Accessed on December 6, 2010. 94 The “national taps” include water from local catchment, imported water from Johor, Malaysia; NE water and Desalinated water. Visit PUB website at http://www.pub.gov.sg/mpublications/Pages/PressReleases.aspx?ItemId=255. Accessed on August 14, 2010. 95 Statistical data from Public Utilities Board at http://www.pub.gov.sg/conserve/Pages/default.aspx. Accessed May 17, 2013. 96 Mathematical computation: 300 M (3) = 900 M (365 days) = 328,500 Billion gallons annually.

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However, Singapore’s “success story in water management holds lessons for the world”97, for

which innovation and policy, it won an international award in sustainable water management.98

Golf is the “sport of choice” by many Singaporeans. The massive golfing complexes in the small

city-state placed Singapore in the league with the highest chemical usage. Singapore is a high

chemical-consumption country owing to a juxtaposition of characteristics - being a highly

developed economy (presence of high-end consumers), annual hosting of international

tournaments99, popularity and strong patronage of the game100, climatological and weather

conditions.101 Singapore is included in this comparative study owing to its natural resources

dilemma and land availability constraints. In the past, Singapore allowed the carving off of

nature areas 102 for golf course construction, specifically the Kranji Sanctuary Course.

Meanwhile, the Sentosa (Serapong Course), Tanah Merah and Marina Bay Golf Courses are

located on reclaimed coastal land. This thesis evaluates the wisdom of these types of

97 Asit Biswas, “Global Water Future and the Role of Singapore”. Lecture given at the Lee Kuan Yew School of Public Policy, National University of Singapore on January 16, 2007. Prof. Biswas heads the Third World Centre for Water Management and is Founder and Editor-in-chief of the International Journal of Water Resources Development. In 2006, Prof. Biswas received the Stockholm Water Prize. See generally the Third World Centre for Water Management in Mexico, at http://www.thirdworldcentre.org/english.html. Accessed on August 24, 2010. Read Joshi, Yugal, Cecilia Tortajada and K B ASIT, "Cleaning of the Singapore River and Kallang Basin in Singapore: Human and Environmental Dimensions". AMBIO: A Journal of the Human Environment, (2012). Also read ASIT, K B and Cecilia Tortajada, eds., Asian Perspectives in Water Management, London: Routledge,, 2012. And Tortajada, Cecilia, K B ASIT and Yugal Joshi, eds., Urban Water Management in Singapore: From Third World to First World,., London: Routledge, 2012. See also C Tortajada, Y Joshi, A K Biswas The Singapore Water Story: Sustainable Development in an Urban City-State, Routledge2013. 98The Singapore Public Utilities Board (PUB) received the prestigious "Stockholm Industry Water Award", a prestigious water prize at World Water Week 2007, Sweden. Visit http://www.channelnewsasia.com/stories/singaporelocalnews/view/294176/1/.html. Accessed on August 2, 2010. 99 Singapore hosts the most prized-tournaments in Asia such as the Asian Tour, The HSBC Golf Champions, Open Amateur Championship, etc. 100 The National Service Resort and Country Club (NSRCC) has a record-breaking 12,000 membership with a monthly round of play at 16,000 for the combined 48 holes of Changi Golf Courses (27 Holes), Kranji Santuary (18 holes) and Executive Course (3 holes). 101 The annual average rainfall of Singapore is 2357.8 mm. Visit the Meteorological Services, National Environment Agency at http://www.weather.gov.sg/wip/web/Marine. Accessed on December 15, 2010. There is less rain on the eastern seaboard while the western side has high annual rainfall. Rain has impact on turf grass conditions. With constant yet continuous rain, turf grasses become easily contaminated by fungus and other turf diseases. In which case, chemical application is necessary. The rain also results in chemical wash out or run-off and causes topsoil erosion especially after the green’s topdressing. 102 Nature Areas either are terrestrial, marine or coastal areas that support natural ecosystems and have been recognized for their significant biodiversity. They are reflected in the Special and Detailed Control Plan of the URA Master Plan 2008 and are kept for as long as possible. Meanwhile, Nature Reserve Areas are legally protected areas with key representative indigenous ecosystems. Read, the Fourth National Report to the Secretariat of CBD (September 2010) at http://www.cbd.int/doc/world/sg/sg-nr-04-en.pdf. Accessed on December 19, 2010.

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development with massive ecological impact, as well as the ethical utilization of public land for

golf courses.

E. Relevant Features of Subject Countries

Table 1.1 provides a summary of the relevant features of the countries to be compared. The

choice of these countries was mainly determined by the research questions and the

corresponding research hypotheses. For instance, in order to test hypothesis 1 (golf courses are

not coherently, effectively and adequately governed or regulated under existing national laws

and governance), this dissertation compares countries with varying legal, political,

administrative systems, rule of law and levels of wealth by holding constant the type of golf

courses to be studied (traditional golf courses) to ensure their compatibility.

Studying countries with different legal traditions - civil law, common law and socialist law

traditions (discussed under Chapter III, Part II) - allows us to control for the effects of legal

tradition. This allows for the qualitative testing of the hypothesis that the coherence,

effectiveness and adequacy of golf course regulations or governance do not depend on legal

traditions but rather was the result of fragmented, sectoral and ad-hoc manner of regulation. The

choice of Singapore, Thailand, Viet Nam and the Philippines meet these requirements for

comparison and controls as these countries have varied legal traditions.

In addition, the reliability of the rule of law would have to be varied in the study to assess

whether variations in the coherence, effectiveness and adequacy of golf course law and

governance also vary with the reliability of the rule of law. The Rule of law determines

compliance to environmental laws and regulations and hence is a proxy for the effectiveness of

golf course regulations. No assumption is made however that the rule of law is correlated with

the coherence, effectivity and adequacy of regulations, but only with the effectiveness of its

enforcement. The choice of Singapore, Thailand, Viet Nam and the Philippines - with their

varied international reputation for the rule of law - enables us to assess whether variations in the

coherence, effectiveness and adequacy of regulations also vary with the reliability of the rule of

law. In addition, to control for the varying effects of these regulations across countries, golf

course management must also be compared within the same country. For this reason, three golf

courses within each of the comparative countries are examined. The choice of Singapore,

Thailand, Viet Nam and the Philippines enables us to do this within country comparison because

of the sufficient number of golf courses to compare within these countries.

25

To test hypothesis 2 (self-regulation of golf courses is feasible under certain conditions),

qualitative testing requires comparing countries and golf courses with and without sustainable golf

management practices while controlling for legal jurisdiction (comparison within a country) and

controlling for the wealth of the country (developed and developing countries). The intuition for

the former is derived from the Kuznets curve (richer countries are expected to invest more on

environmental goods compared with developing countries). This dissertation examined TAT

Filipinas Golf Club, a case study in this thesis and internationally recognized and awarded

sustainable golf course, and compares its practices with those of traditional golf courses within the

same country, as well as compared to other countries.

Finally, in order to test hypothesis 3 (MEAs, hard and soft law instruments guide, inform,

enhance and promote common trends in domestic law and governance), it is important to compare

across countries which adopted MEAs but have different legal, political and administrative

systems as well as countries with varying levels of wealth. Variations in the wealth of a country

are a relevant variable as wealth could affect the ability of countries to adopt the MEAs. To

control for the effects of variations across countries, the effects of MEAs and hard and soft law

instruments within countries was undertaken (golf course operations within countries are

compared to see if there are variations given the same types of law and environmental

governance). Table 1.1 shows the comparative summary of the relevant features of the golf

courses.

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Table 1.1 Comparative Summary of the Relevant Features of Golf Courses

Philippines Thailand Viet Nam Singapore

Number of golf courses *

78 operational 64 under construction

222 operational 2 under construction, annually

24 operational 25 under construction

16 golf clubs (26 golf courses operational)

Per Capita Income

Low-Middle Income

Middle Income Low income High Income

Political system

Liberal democracy Constitutional Monarchy

Socialist System, Communitarian Democracy103 (others claim Illiberal Democracy)104

Legal tradition Civil law, with Common law traditions

Civil Law, with influences of common law

Socialist, with influences of French Civil system

English Common law

Adoption of MEAs

Yes Yes Yes Yes

Regulations for golf courses

None None None None

Rule of law Moderate Moderate Moderate Strong Regulatory capacity

Moderate Moderate Moderate Strong

Traditional golf courses

Yes, with one internationally recognized and awarded sustainable golf course

Yes Yes Yes, a few courses observe sustainable and best practices

*Sources: National Golf Club Associations, various newspapers, Asia Pacific Golf Conferences, personal interviews, Franscesh-Huidobro (2008)

F. Legal Systems in the Philippines, Thailand, Viet Nam and Singapore

The subject countries adopt and adhere to varied legal systems. The Philippines, in some respect,

has been influenced by the Spanish civil system and the Anglo-American common law tradition.

However, in what is considered as the Muslim Mindanao areas, the Islamic legal system is

103 See Li-ann Thio, “Rule of Law within a Non-Liberal ‘Communitarian’ Democracy: The Singapore Experience” in Randall Peerenboom, ed., Asian Discourses of Rule of Law: Theories and Implementa- tion of Rule of Law in Twelve Asian Countries, France and the US (London: RoutledgeCurzon, 2004) 183 [Thio, “Rule of Law”]. 104 Zakaria, Fareed, The Future of Freedom: Illiberal Democracy at Home and Abroad, W. W. Norton & Company; Revised Edition Edition (October 17, 2007). Zakaria (2003) describes the concept of “illiberal democracy”, and was noted that too much democracy and democratic means of governance have been detrimental to life, liberty and the pursuit of happiness. Singapore is considered a classic example of illiberal democracy.

27

currently observed in civil and family relations.105 Thailand is based on the civil law system with

influences of common law from European countries (French and German) and Japan.106 In several

southern provinces, Islamic law can be applied.107 Thailand’s environmental law combines

Buddhism, animism and local knowledge and these belief systems include ideas that promote

“sustainable development”, which can be used to foster environmental protection.108

Viet Nam’s legal system is based on communist legal theory and the French civil law system109.

Vietnamese law as we see it today is a product of multiple influences110 - Chinese rule, French

rule, strong Soviet and Chinese influence, and now Western influence through donor-assisted legal

reform efforts that have all made their mark on the Vietnamese legal system. The current structure

is that the Vietnamese Communist Party and government have pursued a strategy of party-led

legal reform since late 1986. Singapore is a sovereign republic with a legal system, which has two

sources of law: the first source is the English common law111 as developed in England and

imported into Singapore. The second comprises laws passed by Parliament, including subsidiary

legislation (rules, regulations, orders and notifications, made by the relevant Ministers under

enabling legislation). English authorities form the overwhelming majority of precedents, which are

cited in court, through “reception”, which refers to the continued acceptance and application of

English statutes and case authorities in Singapore.112 Therefore, this thesis indirectly considers

105 On Matters of family, civil or personal laws, Islamic law is observed in Muslim Mindanao areas, with established Shari’a courts and justice system. Read M. B. Hooker, Islam in South-East Asia, East Asian Social Science Monograph, 1984, Oxford University Press, Singapore, at page 30. Read the Code of Muslim Personal Laws in the Philippines, Presidential Decree 1083 (1977). 106 Rebecca R. French, Thailand, in Herbert M, Kritzer, Editor, Legal Systems of the World, Volume IV, A Political, Social and Cultural Encyclopedia, ABC CLIO, US, 2002, p. 1295-1297, at page 1614. 107 Id. 108 Douglas L. Tookey, Southeast Asian Environmentalism at its Crossroads: Learning Lessons from Thailand’s Eclectic Approach to Environmental Law & Policy, Georgetown International Environmental Law Review, (1999), Volume II, at pages 307-362. 109 Mark Sidel, Vietnam in Herbert M. Kritzer, Editor, Legal Systems of the World, Volume IV, A Political, Social and Cultural Encyclopedia, ABC CLIO, US, 2002, at pages 1295-1297. 110 Four traditions – Confusian and legalist, French colonial, socialist Soviet and Chinese, and Western market-oriented – have been primary influences in the development of modern Vietnamese law. 111 Kevin YL Tan, Editor, The Singapore Legal System, Second Edition, Singapore University Press, National University of Singapore, 1999, at page 26. See also Helena H. M. Chan, The Legal Systems of Singapore, Butterworths Asia, 1995. 112 Walter Woon, The Applicability of English Law in Singapore, “The Singapore Legal System”, Chapter 6, Edited by Kevin YL Tan, Second Edition, Singapore University Press, at page 230. Also read Singapore has two sources of law. The first source is English common law as developed in England and imported into Singapore; and the second comprises laws passed by Parliament, including subsidiary legislation (rules, regulations, orders and notifications, made by the relevant Ministers under enabling legislation. Read Lye Lin Heng, “Environmental Law- Singapore”, Kluwer International Law, (2008), page 9. Also read, Gary F. Bell, The Singapore Legal System in Context - Whither the concept of the National Legal System, in The Singapore Legal System, Chapter I, ed. Kevin YL Tan, 1999, Second

28

whether the legal system has a bearing on the protection and management of the environment in

golf courses.

G. Case Studies

Chapter II, Part IV of the dissertation includes case studies113 of twelve (12) golf courses,

comprising three golf courses selected in each subject country owing to their regulatory,

ecological, and social and cultural impacts to the environment. Consequently, data collection

includes visual inspection and interviews of course superintendents, course managers, chemical

suppliers and turf grass research director. Various government officials were also interviewed,

specifically from environmental and agriculture agencies114. The interviews were conducted on the

basis of a general questionnaire115. The questions are informal ones or open-ended, i.e. inquiry

about the features and design of golf course, type of grass used, grown or propagated, maintenance

activities, rate of chemical application, water and chemical processes and practices, etc.

This thesis prepared a specific format of questions for golf course officials and a separate one for

government officials interviewed for this paper. In fact, there are no surveys, which requires

checking a box, answering yes or no, or providing ratings on a fixed scale to each question. There

is also no specific format for obtaining answers to the prepared questionnaires, as interviewees are

free to provide answers in any manner that they want. In fact, most of the interviewees choose to

ignore or not to reply to several questions included in the questionnaire.

H. Limitations of the Research

There are several limitations to this research. First, it is not possible to provide a complete and

detailed discussion of all legal issues and practices involving the golf sector. As such, this

dissertation selectively focused on key national environmental laws and regulations, which are

relevant to golf courses. Second, there are inherent limitations to field data collection, especially

cross - country studies on a sensitive topic, which examines adverse environmental impacts of

Edition, Singapore University Press, National University of Singapore, at page 1. 113 Case Study is one of the most suitable techniques to develop a theory and helps researchers understand certain phenomena by in-depth analysis and generate the hypothetical theory from findings for further empirical testing. See D.E. McNabb, Research Methods in Public Administration and Non-Profit Management: Quantitative and Qualitative Approach, 2002, Armond, New York and London. M.E. Sharpe. See also John Gerring, Case Study Research: Principles and Practices, 2007 Cambridge University Press, at page 17 and M. V. D. Velder, P. Jansen, and N. Anderson, N., Guide to Management Research Methods, 2004, Malden, Oxford, Carlton, Blackwell Publishing. 114 A list of persons interviewed is included as Appendix “1”. 115 Sample of questionnaires are included in this paper as Appendices “2”, “2-A” and “2-B”.

29

golf courses. For instance, in this dissertation, the researcher faced repeated refusals, rude

receptions and negative reactions in the course of her research and data collection.116 There is,

however, a network of golf course/club owners and operators, architects and landscapists,

managers and superintendents, turf grass associations, and chemical suppliers who cooperated

thereby allowing this paper to validate the data collected from interviews. This research gained

valuable information from industry practitioners.117

1.4 Overview of the Conceptual Framework

This dissertation uses law and governance as framework for analyses, specifically building on

Robinson’s (1998) comparative environmental law approach, and Maria Francesch-Huidobro’s

(2008) “governance theory” perspective. Comparative environmental law expert Robinson

suggested that the sub-field of comparative environmental law involves asking the following

research questions: First, which jurisdictions can be compared? Second, what are the elements of

a comprehensive environmental law regime to identify and compare? Third, how can

environmental laws be harmonized and integrated among states in order to give better effect to

their objectives? Finally, how can one locate and verify environmental laws of different states?

This dissertation therefore advances the literature on comparative environmental law using

Robinson’s approach.

Meanwhile, Francesch-Huidobro’s “governance theory” perspective focuses on state adaptation

to the external environment and new forms of coordination and collaboration between

government and civil society to tackle new societal problems. Francesch-Huidobro designed a

framework of analysis as a way of viewing the world of politics and government that helps to

focus attention on things that happen and the way they happen. Francesch-Huidobro sees

governance as a multi-dimensional phenomenon – sensitive to context by being applicable in

various guises to different political systems in developed and developing countries alike.

116 The researcher persistently wrote letters and emails, made phone calls, conducted ocular inspections and unannounced visits to golf courses and interviewed former employees/managers of golf clubs. 117 There were open and long conversations, sharing of experiences and practices specifically with the Managers of Thai Country Club and Navatanee Golf Club in Thailand, Keppel Golf Club and Warren Golf Club, NSRCC Kranji Sanctuary Golf Club in Singapore and Dalat Palace Golf Club, Ocean Dunes Golf Club, Tam Dao Golf Resort and Chi Linh Star Golf Club in Viet Nam. Philippine managers were guarded in their discussions, except those from Sta. Elena Golf Club and TAT Filipinas Golf Club. There were also discussions with Dr. Niddhi Bijaisoradat, Country Manager of ProCrop, Dr. Michael Hurdzan of Hurdzan and Fry Environmental Golf Course Design, Dennis Bowsher of Ohio State University Golf Courses, and Dr. Micah Woods of Asian Turfgrass Centre.

30

Currently, there is no legal scholarship involving law and governance in golf courses. Thus, for

purposes of this dissertation, I propose that law and governance in golf courses be understood to

include legal and institutional governance, administration and enforcement, as well as the

general observance by the golf course sector of industry norms and practices, which include self

regulation, transparency, good governance, benchmarking, best practices, etc. The direct

participation and public consultation involving the Non-governmental Organizations (NGOs)

and civil society are subsumed in the governance perspective. A complete elaboration of the

conceptual framework is discussed under Chapter II, Part III. However, the framework is

summarized in Chart 1 below and the operational definition of terms follows:

Chart 1 Flow Chart of the Conceptual Framework of the Dissertation

How can we locate/verify law and governance in golf courses?

How can we compare these legal and governance practices?

What are the elements of law and governance in golf courses?

• Golf  course  related  laws  (Hard,  soft,  international,  regional,  local)  

• Public  Policy  • Government  Administration  (Institutions,  Monitoring,  enforcement,  compliance  regimes  

• Golf  Course  Management  (Industry  norms,  best  practices,  benchmarking  

• Public  Consultation  (Civil  society  and  NGO  participation)  

• Compare  traditional  versus  non-­‐traditional  golf  courses  in  terms  of    

a. Planning  b. Construction  and  Development  c. Maintenance  and  Operation    

• Compare  law  enforcement  and  governance  practices  in  golf  courses  in  terms  of    

a. Coherence  b. Adequacy  c. Effectiveness  using  the  cases  of  Philippines,  Thailand,  Viet  Nam  and  Singapore  

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1.5 Significance of the Research

This dissertation hopes to contribute to the legal and governance literature as well as to their

theoretical, empirical and methodological dimensions in the following ways:

A. Little is known in the scholarly literature about the nexus between golf courses,

environment, law and governance. Substantively, despite the proliferation of golf courses and

their impacts on the environment, most countries do not have adequate, coherent, responsive or

effective legal and governance in golf courses. This dissertation will address these significant

gaps in the literature. It is in a sense a seminal contribution to this underdeveloped field of legal

scholarship.

B. The literature on comparative environmental law suggests that there should be a

common trend, in substance and procedure, across legal traditions (Robinsons, 1998). This

dissertation will qualitatively test this hypothesis with reference to four jurisdictions in Southeast

Asia.

C. Little is also known in the literature about the impact on golf courses in various

international and regional agreements or conventions, constitutional provisions, legislative

enactments, policies and guidelines e.g. the law relating to natural resources, biodiversity

protection, nature conservation, water resources, chemical pollution, Environmental Impact

Assessment, planning applications, etc. This dissertation addresses this gap in the academic and

policy literature with a comparative study of the four ASEAN countries.

1.6 Organization of the Dissertation

This thesis is divided into five (5) chapters, with sub-parts. Chapter I gives a general overview

about golf courses, the research background, aims, questions, scope, limitations, conceptual

framework, followed by an explanation of the research methodology, case selection, data

analyses, analytical framework, significance, organization, scope and value of this research.

Chapter II consists of four parts, discussing law and governance as frameworks for analyses.

Part 1 introduces golf courses and the environment, the impacts (ecological, social, political and

economic) and consequences of development and operation and the technical descriptions of

maintenance and operation of the golf course. Part II discusses the existing literature about golf

courses and law and governance in golf courses in four states in Southeast Asia, sustainable

development, environmental regulations, techniques and environmental regimes. Part III

discusses the framework for analyses and Part IV contains the case studies of four subject

countries.

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Chapter III is the Comparative evaluation and analyses of the International, Regional and

National Frameworks. Part I evaluates the international environmental legal frameworks while

Part II evaluates the regional environmental legal frameworks. Part III analyses and evaluates

the national legal and regulatory frameworks of the subject countries, which were grouped

according to the three stages of development and operation of golf courses in the Philippines,

Thailand, Viet Nam and Singapore.

Chapter IV summarizes of the cross-national comparison and evaluation of law and governance

in the subject countries. And finally, Chapter V contains the conclusion and recommendation of

the thesis, which includes the theoretical, policy and legal implications of the dissertation. The

recommendations share final reflections on the challenges and trends towards the creation of

sustainable golf courses, including guidance for future research.

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CHAPTER II LAW AND GOVERNANCE IN GOLF COURSES:

FRAMEWORK OF ANALYSES Part I Golf Courses and the Environment Part II Literature about Golf Courses Part III Framework of Analyses Part IV Case Studies

CHAPTER II, PART I GOLF COURSES AND THE ENVIRONMENT

1.1 Introduction 1.2 Environmental Impacts and Consequences of Golf Courses 1.3 Stages of Golf Course Development and Operation 1.4 Maintenance and Operation of Golf Courses 1.5 Feasible Recommendations

1.1 Introduction

The first part of this Chapter introduces golf courses and the environment. To build a golf

course, at least forty-five hectares (111.20 acres) of land is required to complete an 18 holes

regulation-length complex118 that would include the clubhouse and other facilities. In the early

70’s, golf courses in Asia are planted mostly with local or indigenous grasses. The landscape

changed when foreign golf course architects and design companies aggressively promoted

hybrid turf grasses in the ‘90s. For purposes of clarity and emphasis, this dissertation discusses

two kinds of golf courses – the traditional or conventional golf courses and the non-

traditional/sustainable golf courses.

118 There are actually three types of golf holes. The first is the Regulation Length Golf Course (R) - a traditional length and par golf course that include a variety of par 3, par 4 and par 5 holes. The second is the Executive Length Golf Course (E) - a shorter or compact version of the regulation length and par golf course that includes a variety of par 3, par 4 and/or par 5 holes. The third is the Par-3 Golf Course (P) - a short course comprising solely of par-3 holes. National Golf Foundation, Golf Project Glossary of Terms at http://www.ngf.org/cgi/ccglossary.asp and Golf course construction at http://secure.ngf.org/cgi/ccintro.asp and http://www.privatecommunities.com/second-home-buying/glossary/golf-related-terms.htm. Accessed on May 10, 2013.

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The traditional/conventional golf course development and operation generally can be considered

to be one of the most unsustainable activities, as it usually results in the degradation of natural

ecosystems119. When traditional/conventional golf courses are built, the landscaping activities

result in the destruction of natural wildlife habitat, i.e. modification and alteration of soil cover,

removal of topsoil, cutting/felling of trees, contouring of vast areas, including the re-direction of

water bodies. It has been claimed that course developers often choose the “most scenic natural

sites, including areas near rivers, lakes and oceans, land adjacent to pristine forests, and parcels

at the base of towering mountains”.120 Undeniably, the golf course industry has been accused of

wasteful usage of water, massive chemical application, coastal land reclamation, land use

conversion, use of beach sand or crushed shells, corals or marbles. Large tracts of land are

needed for the establishment of resort hotels and golf estates.

Today however, there are “sustainable” golf courses – those courses that break from the norm to

explore and adopt new practices and principles, disproving the notion that golf courses are

invariably destructive.121 These new practices and principles include ethical and responsible

utilization of land, water, chemicals, hybrid turf grass, etc. These non-traditional golf courses or

sustainable golf courses meet the aim to balance the philosophy of PPP (People, Profit and Planet)

that lie at the heart of the sustainable development paradigm. Sustainable practices trace its roots

from increased awareness and realization brought about by the Brundtland Report (1987) entitled

“Our Common Future”. The wave of environmentalism captured many hearts and minds,

including the legal scholars, who were exploring the question of how the law and governance can

further the objectives of sustainable development

119 South China Morning Post, “Golf Courses Destroy Water Resources and Land”, July 27, 2012. Visit http://www.scmp.com/article/284771/golf-courses-destroy-water-resources-and-land. Accessed on April 14, 2013. 120 C.Y. Ling, “Golf Gulf Divides Rich and Poor,” Earth Island Journal 7, No. 4, (Fall 1992), at page 431, in Kit Wheeler and John Naughright’s, “A Global Perspective on the Environmental Impact of Golf”, Sport in Society, Volume 9, No. 3, July 2006, Routledge Taylor and Francis Group, at pages 427-443. 121 Supra, note 10

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A. Parts of the Golf Course

Table 1.2 shows the different parts of the golf course.

Table 1.2 Parts of the Golf Course

Parts of the Golf Course Average Area

1. Tees (Also "peg") a small (usually, but not always, wooden) device for setting the ball up above the ground; (Also "teeing ground, teeing area, tee box") the starting point of each hole, the area designated as the teeing ground.

Average 6,000 sq.ft per hole Average 6,000 sq.ft MORE for the “surrounds” (approach, aprons, or collars) of the tees Average tees per hole - (Championship – yellow); blue; white; ladies – red and junior) 12,000 sq.ft x 18 holes = 216,000 sq.ft Total: 2.006 ha. (4.959 acres)

2. Greens (Also "putting green, putting surface, dance floor") is the most closely mown and smooth area on the course. Greens are specifically prepared for putting and on which the hole is placed

6,000 sq.ft x 18 = 108,000 sq.ft 6,000 sq.ft (generally extending 6-7 m around putting surface) MORE for the "surrounds” x 18 = 108,000 sq.ft 108,000 x 2 = 216,000 sq ft Total Area: 2.006 ha. (5.5 acres)

3. Fairways Fairways are the closely mown area between the tee and green

Average 16.2 ha (35-40 acres)

4. Roughs Roughs are longer grass adjacent to the fairways, greens and perhaps tees

Average 16.2 ha (35-80 acres)

5. Practice Greens Practice green is separate from the golf course; designated for practicing putting only or putting or the short game

6,000 sq.ft x 2 = 12,000 sq.ft Total: .111 ha. (.275 acres)

6. Driving Range (Also "practice range, practice tee, range") is an area, separate from the golf course, designated for hitting practice balls

Average of .809 h (1-2 acres)

GRAND TOTAL 37.332 HA. (92.25 ACRES) Source: TAT Filipinas Golf Club (2010)

B. Use of Hybrid Turf Grasses

Golf courses use turf grasses for the tees, greens and the fairways, as well as on the driving

range. There are a thousand species of turf grasses. Most traditional/conventional golf courses

use hybrid species while non-conventional or sustainable golf courses limit these hybrids on the

greens and tees, and choose to grow local or indigenous grasses on the large areas of the fairway.

The hybrid turf grasses generally are invasive species that needs protection against elements that

36

are endemic. They are also forced to grow in hostile environments in tropical Southeast Asia122

in which case, there is a high watering demand and application of fertilizers, pesticides,

herbicides and fungicides to maintain the required growth and the playing quality of golf

courses. In Southeast Asia, chemical requirements are higher due to its hot and humid weather

conditions where hosts of fungi and bacteria easily breed and attack hybrid species. The use of

hybrid turf grasses in the subject countries presents therefore a growing concern for the

environment.123

There is also a United States Golf Association (USGA) recommended height of greens for better

playing quality. The Stimpmeter is a device used to measure the speed of a golf course putting

green by applying a known force to a golf ball and measuring the distance traveled in feet.124

This means that the speed of the golf roll is maintained for tournament standards. In turf grass

maintenance, when the height of the turf grass is too low for a fast roll, the greens become

stressed and need more chemical and water.

Table 1.3 shows the growing popularity of the hybrids in Asia.

122 Heavy rainfall in tropics increases fungus infestation of turf grasses. 123 The UC Guide to Health Laws, The University of California Agriculture and Natural Resources portal, available at http://www.ipm.ucdavis.edu/TOOLS/TURF/TURFSPECIES/. Accessed on March 29, 2011. 124 The United States Golf Association (USGA) stimpmetered putting greens across the country to produce the following recommendations: Slow greens: 4.5 feet, Medium greens: 6.5 feet, Fast greens: 8.5 feet. For the US Open, USGA recommends: Slow greens: 6.5 feet, Medium greens: 8.5 feet, Fast greens: 10.5 feet. USGA Stimpmeter Instruction Booklet, visit http://www.usga.org/course_care/articles/management/greens/Stimpmeter-Instruction-Booklet/. Accessed on October 2012.

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Table 1.3 Use of Turf Grasses (Hybrid or Local Grasses) in Southeast Asia

Country Golf Course

Type of Grass

Philippines Sta. Elena Golf Club Hybrid: Dwarf Bermuda (tifeagle) for greens and fairways

Philippines TAT Filipinas Golf Club Hybrids: Combination of Zoysia Japonica, Paspalum and Tifeagle for the greens, Zoysia for the tee mounds. Local: Carabao grass for fairways

Philippines Eastridge Golf Course Hybrid: Tifeagle Thailand Navatanee Golf Club Hybrid: tifDwarf for the greens; 419 for the fairways Thailand Thai Country Club Hybrid: Seashore paspalum Thailand Panya Indrah Resort Hybrid: Seashore Paspalu Seaisle 2000 Viet Nam Tam Dao Golf Resort Hybrid: Salaam Paspalum for fairways and Seashore

Paspalum SeaIsle2000 for the greens Viet Nam Chi Linh Star Golf Course Hybrid: Tifeagle for greens; wintergreen Bermuda

for faiways Singapore Kranji Sanctuary Resort Hybrid: Tifeagle for the greens; Bermuda for

fairways Singapore Laguna National Golf

Course Hybrid: Platinum TE Paspalum

Singapore Singapore Island Country Club 1. Bukit Course 2. Sime Course 3. Island Course 4. New Course 5. Millennium Course

Hybrid: Zoysia Metrella for tee boxes and fairways and Local: Serangoon grass for greens Hybrid: Zoysia Matrella for tee boxes and cow grass for fairways, Bermuda for greens Hybrid: Zoysia for tee mounds, cow grass for fairways and Local: Serangoon for greens Hybrid: Zoysia matrella for tee mounds and fairways and Bermuda tifDwarf for greens Hybrid: Zoysia Matrella for tee mounds and fairways and Bermuda tifDwarf for greens.

Malaysia Kula Lumpur Golf & Country Club, West Course

Hybrid: Salam Seashore Paspalum for tees, fairways and roughs; paspalum supreme for greens

Indonesia Royale Jakarta Golf Club Hybrid: Seaisle Supreme Paspalum Indonesia Nusa Dua Bali Golf &

Country club Hybrid: 328 Bermuda Grass for tees, greens and fairways

Hong Kong The Jockey Club Kau Sai Chau Public Golf Course

Hybrid: North and South Courses is planted with Bermuda Grass; New East Course with Seashore Paspalum

Source: Research, Visual Inspection and Field Interview

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1.2 Impacts and Consequences of Golf Courses

A. Environmental Impacts of Development - Water, Chemicals, Sand

Golf courses inherently require a package of chemicals and their impact on soil, water quality

and irrigation supply can be cited as “public concerns”.125 In the United States of America

(USA) various programs were introduced to minimize the potential of ecological harm resulting

from course maintenance.126 Under the “intensifying pressure from the public, government

agencies have been collaboratively working on policies as tools in the decision process for

course development”.127 Michael J. Hurdzan PhD128, an expert in environmental golf course

design and construction, shares his data showing the amount of water and the rate of chemical

application for every tees, greens and fairways, roughs and putting greens of an 18 holes golf

course. Table 1.5 shows the water and chemical rate of application for 18 holes golf course.

1. Water and Chemical Requirements for 18 Holes Golf Course

125 The United States Environmental Protection Agency (EPA) study revealed that golf course superintendents apply fifty-five pounds of pesticides to each acre of golf course per year. See 2005 US Pesticide Industry Report, Executive Summary, March 2006, KRS Network. Also visit EPA portal at http://www.epa.gov/greenchemistry/. Accessed on May 17, 2013. 126 Read About the Golf Course Superintendents Association of America (USGCSAA), Programs and Activities. Available at http://www.gcsaa.org/. Accessed on May 3, 2010. Majority of golf clubs in Southeast Asia have registered their resident Golf Course Superintendents with the USGCSAA. 127 The USGSCAA recommends the adoption of restrictions for course construction in sensitive areas such as watersheds, coastlines and sites near aquifers, reservoirs and rivers where contamination of surface and ground water most likely occur; effective monitoring and regulation of water quality and pesticide handling; adoption of measures that would reduce pesticide leaching to ground water source. 128 Michael J. Hurdzan, PhD is a lecturer and a recognized authority on the design of environmentally responsible golf courses. Hurdzan received the Donald Ross Award (2007) - the highest honor granted by the American Society of Golf Course Architect’s. Hurdzan wrote Golf Course Architecture: Evolutions in Design, Construction, and Restoration Technology (1996). His second book, titled Golf Greens: History, Design, and Construction (2004) introduces the reader to the past 100 years of the history and evolution of golf greens and how scientific investigations have influenced their construction. Hurdzan teaches a seminar for USGCSAA titled “Golf Greens: Theory, Design, Construction and Maintenance” and is a past instructor of “Environmental Impacts of Golf Courses”, a seminar sponsored by the Harvard University Graduate School of Design. Transcript of personal interview of Dr. Hurdzan is attached as Appendix “3”.

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Table 1.4 Water and Chemical Requirements for 18 holes Golf Course

Area Water Requirements

Tees

• Average - 6,000 ft2 per hole at 112,000 gallons of water per week • Surrounds (approach, aprons and collars) doubles the size to 2.23 hectares (5.5 acres) needing another 112,000 gallons of water per week. • Some grasses can get by with less water than other grasses in the same environment by perhaps as much as 35-40%, and some root zone soils can help cut another 10-20% of applied water. • There are many variables, including wind effects, shade and sun regimes, relative humidity, stage of grass growth or dormancy, temperature, water quality (more hard or salty water is required than fresh or soft water), and playing conditions demanded by golfers.

Greens

• Typically, most golf courses have 20 greens (18 holes plus a putting green, or two or a sod nursery) that average 6,000 ft2 for a total facility area of 120,000 ft2, of which the golf course itself is only 108, 000 ft. • Many superintendents treat the green surrounds (approach, aprons and collars) with nearly the same chemicals and watering as the green. • The “surrounds” of a green, generally extending 6-7 meters around the putting surface, will be equal to the green area, or another 6,000 ft2. • This is true for watering than chemical applications but it could double the amount per golf course to 240,000 ft2 or 2.23 hectares (5.5 acres) of total area. • Generally, greens and surrounds of short grass require 1.5 inches of water per week. One acre/inch of water equals 27,000 gallons per acre inch, so 1.5 acres inches = 40,500 gallons on 5.5 acres means about 222,000 gallons per week for greens and surrounds, assuming there is no rainfall. • If it rained an inch and a half, even only over a week, then no water would be needed. So it depends upon the weather, but in worst-case scenario, it is 222,000 gallons per week for greens.

Fairways • Golf courses that are about 6,500 yards long have fairways that are 40 yards wide, that start at the forward tee that go to the green, with an average of about 16.2 hectares (35-40 acres). • Fairway grasses can generally get by with only one inch of water per week, or say 40 acre/inches of 1,080,000 or 1.1 million gallons per week, more or less. • The same variables to increase or decrease the amount apply to fairways as it does to tees and greens. • In the desert, in the summer when grasses are grown most actively, golf courses will use up to One Million gallons of water per day or Seven Million gallons per week. • However, in a gentler climate the average is about two Million gallons per week for tees, greens, surrounds, and fairways, if there is no natural precipitation.

Roughs • Some golf courses water and chemically treat roughs which can add another 40-80 acres at one inch of water (27,000 gallons per acre) per week

Practice Greens

• Normally, golf courses have two putting greens, located near the starting tees at 12,000 ft2.

Driving Range • The driving range tee can often be an acre or so in size with another 40,500 gallons of water for the range tee per week.

Extremes

• Dubai could use 10-14 Million gallons of water per week. • Florida’s Naples National with a total maintained turf area of 45 acres for tees, greens, surrounds, fairways and roughs (the rest of the course is either native sand or pine straw) – cuts all costs and quantities by 33 – 66% compared to South Florida courses.

Source: Hurdzan and Fry (2010)

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Thus, Table 1.5 shows the total water requirements of an 18 holes golf course.

Table 1.5 Summary of Total Water Requirements for 18 Holes Golf Course

Part of the Golf Course Requirements

1. Tees • 224,000 gals. per week (847,932.62 Liters) 2. Greens, Putting Greens • Greens and surrounds of short grass require 1.5 inches/week.

• 240,000 sq.ft of greens = 2.3 ha (5.5 acres) • 1 acre/inch of water = 27,000 gallons/acre inch, so 1.5 acres inches =

40,500 gals on 5.5 acres means about 222,000 gallons per week (no rainfall)

3. Fairways • 1 inch/week, or say 40 acre/inches of 1,080,000 or 1.1 Million gals. per weeks, more or less

4. Roughs • Roughs can add another 40-80 acres at one inch of water (27,000 gals. per acre) per week

5. Driving Range • 40,500 gals. of water for the range tee per week Source: Hurdzan and Fry (2010) 2. Chemical Requirements for 18 Holes Golf Course

In ASEAN countries, scientific surveys and reports on chemical effects in golf courses are

lacking. There are no available documents, papers, reports or records, which exists for reference

and guidance. Thus, this thesis had to resort to data collection, survey, ocular inspection and

informal interviews of people involved with golf courses. Golf clubs are not required by law to

submit their rate of chemical application to government authorities. There could be instances

requiring registration of chemicals used in golf courses but due to the laxity of regulatory

mechanisms, enforcement and compliance is weak. Chemical companies distribute leaflets and

flyers directing the handling and application of turf herbicides, “warning that environmental

hazards and contamination may result in surface and ground water system”.129 Apparently,

discretion is given to the course superintendent, as the instructions are merely recommendatory.

Meanwhile, the total chemical requirements and frequency of application of 18 holes golf course

are shown under Table 1.6.

129 In the US, the product warning is required under the Worker Protection Standard (WPS) for Agricultural Pesticides {40 CFR 170.240 (d) (4-6)} aimed at reducing the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers. The WPS offers protection to approximately 2.5 million agricultural workers and pesticide handlers that work at over 600,000 agricultural establishments. The WPS contains requirements for pesticide safety training, notification of pesticide applications, use of personal protective equipment, restricted-entry intervals after pesticide application, decontamination supplies, and emergency medical assistance. Visit US EPA website at http://www.epa.gov/agriculture/twor.html. Accessed on April 13, 2013.

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Table 1.6 Chemical Requirements for 18 Holes Golf Course

Part of the Golf

Course Requirements

1. Tees 2. Greens 3. Fairways 4. Practice Greens

• Most golf courses chemically treat tees, greens, surrounds and fairways for pests (diseases, insects, weeds, etc.) on the average of once every two weeks during active growth and stress areas on about 50 acres (tees, greens, surrounds and fairways). • One of only two documented all organic golf courses in the USA sprays 5-7 times per week with organic materials (not synthetic) so it uses no chemical but tools and equipment uses fossil fuels instead. • Each golf course is site specific, and two golf courses adjacent to one another could dramatically utilize or require different quantities of water and chemicals. • Amounts of water and chemicals will vary by weather and are ultimately driven by market forces of golfers' expectations of what are acceptable turf conditions.

Source: Hurdzan and Fry (2010) In this thesis, only two Case Studies disclosed the regular list of chemicals used in their courses:

Warren Golf Club (Singapore) and TAT Filipinas Golf Club (Philippines). Other case studies

did not share their data.

Table 1.7 List of Chemicals Applied by Warren Golf Club, Singapore

Classification of Chemicals Name of Chemicals

1. Pesticides • Carbufuran (Furadan) • Carbaryl (Sevin 85)

2. Fertilizer • NPK Mixtures • Ammonium Sulphate 28%/ Potassium Suphate/ Ferrous Sulphate • Calcium nitrate

3. Fungicides • Iprodione • Campbell Dacogreen (active Ingredient: Chlorothalonil 72%; impurity

HCB less than 10 ppm)

4. Other Chemicals • Green Lawnger/Turf Colourant • Syngenta Primo Maxx growth Regulator and Alleviate Wetting Agent.

Source: New Warren Golf Club (2010)

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Table 1.8 List of Chemicals Applied by TAT Filipinas Golf Club, Philippines

Classification of

Chemicals Name of Chemical

1. Fungicide • Amistar • Armor (Component: Thiophanate methyl) Daconil 2787

(Component: Chlorothalonil) • Dithane (Component: Mancozeb) • Redeem (Component: Ethylene Bisdithiocabamate) • Tranzeb (Component: Ethylene Bisdithiocabamate);

2. Insecticide • Biflex • Chlormite TC (Component: chloropyrifus) Cymbush 5 EC

(Component: Cypermethrin) • Diazol 40 EZ • Furadan Ultra (Component: Carbofuran) • Lorsban (Component: chloropyrifus) • Sevin (Component: Carbaryl) • Transocarb (Component: carbaryl);

3. Other Chemicals • Sprayhold • Tenac Sticker, Trical • Wetting Agent Apsa 80 and Primo (Component: Trinexapac-

ethyl) • Floratine organic products are being used on the tees and

greens. Source: TAT Filipinas Golf Club (2010)

3. Sand Requirements of 18 Holes Golf Course

Table 1.9 shows the sand requirements for an 18 holes golf course. The massive use either of

sand, silica, crushed shells or marbles on the greens complex, greenside bunkers, putting greens,

fairways and tee mounds of the golf course have ecological impacts. These may also cause land

impairments, such as soil erosion and destruction of large marine or coastal areas. Probable

causes of impairment include habitat alteration, sedimentation and siltation 130 . In many

instances, golf clubs have to import white beach sand for aesthetic and visual reasons. In the

Philippines, sand quarrying is regulated131 however the powdery white Boracay beach sand is

popular among Philippine courses.

130 Source and Cause of Pollution, Pennsylvania State Department of Environmental Protection, available at http://files.dep.state.pa.us/Water/Drinking%20Water%20and%20Facility%20Regulation/WaterQualityPortalFiles/Methodology/AppendixASorceAndCause.pdf. Accessed on April 14, 2013. 131 Republic Act No. 7942 (1995), Mining Act, s.2 declares that, “all mineral resources in public and private lands within the territory and exclusive economic zone of the Republic are owned by the State and that the State shall promote rational exploration, development, utilization and conservation”.

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There are no regulations in Singapore regarding sand quarrying but owing to its size and limited

land availability, the country customarily buys sand from Indonesia. Following an Indonesian

government ban on sand exports in 2007, Singapore sought new supply sources in Cambodia132

but public reaction has been divided owing to ethical and environmental factors133. No data are

available regarding outsourcing of sand in Viet Nam and Thailand but it is fair to assume that

owing to its land size, supplies come from within the country. It is important to know that

published pictures of almost all golf courses in these countries have shown massive use of beach

sand or crushed shells/marble bunkers.

Table 1.9

Sand Requirements for 18 Holes Golf Course

Source: TAT Filipinas Golf Club (2010)

132 Read, Invest in Cambodia at http://www.investincambodia.com/minerals.htm. Accessed on March 28, 2011. 133 Watts, Jonathan, “Singapore sand imports threaten Cambodian ecosystem”, report warns Global Witness that Singapore is expanding its coastline with irresponsibly dredged sand from Cambodia, The Guardian, May 2010. Read also the Case Study: “The Dirty Business of Sand: The Case of Cambodia Sand Dredging”, written by Fazlin Abdullah and Goh Ann Tat of the Lee Kuan Yew School of Public Policy, National University of Singapore. Visit http://www.spp.nus.edu.sg/docs/case/LKYSPPCaseStudy12-01_Dirty_Business_of_Sand.pdf. Accessed on April 14, 2013.

Part of the Golf Course

Requirements

1. Greens Complex • Maximum of 54 sand traps/bunkers are constructed with an average area of 95 square meters (m²) and a sand depth of 4-6 inches (in).

2. Greenside Bunkers

• Greenside bunkers occupy an average area of 5,130 m² that requires 651.51 cubic meter (m3) of bunker sand

• in order to achieve an average sand depth of 5 inches 3. Putting Greens • The Putting Greens occupies a total of 1 ha of land at an average of 500 m² per

green and requires sand capping of 8-12 in thick equivalent to 2,540 m3 for twenty putting greens, including two practice greens.

4. Fairways • On the Fairways (through the greens), an 8-12 in thick sand cap is built at an approximate area of 26 ha. Around 66,040 m3 of sand is needed to sand-cap this area at 10 in deep.

5. Tee Mounds • Tee Mound complex (average of four mounds per hole) occupying a total land area of 6,526 m² sand capping of 8-12 in deep or 1,658 m3 is required.

6. Other Uses • Aside from the afore-mentioned requirements, there is a bi-monthly top-dressing of the tees and greens (average of 24x in one year).

• Golf courses therefore continually purchase sand/silica, marbles or crushed shells and. during heavy rains or downpour these are carried away and may clog canals, rivers and result in siltation.

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4. Summary of all Requirements (Water, Chemicals, Grass, Sand) of 18 Holes Golf Course

Thus, an 18 holes golf course requires the following components, as shown in Table 1.10

Table 1.10 Summary of All Requirements for 18 Holes

Requirements Quantity

1. Water • Average of 500,000 gals. per day (1,892.71 Million liters) 2. Sand and/or combination of crushed shells

• 70,000 – 80,000 m3 for total golf course construction • Additional 50 m3/month (maximum) for greenmix and

teemix sand for topdressing and divots 3. Turf grass • 26 hectares (64.25 acres) greens, tees, fairway and roughs 4. Chemicals in kilograms and area in square meters (per annum)

• Greens - 6,813 m2 • Tees - 6, 526 m2 • Fairways -138,000 m2 • Roughs - 114,000 m2 • Fertilizer • Average of 270 kg per m2 (Greens Only) • Average of 377 kg per m2 (Tees, Fairway, Roughs) • Insecticide • Average of 124 kg per m2 for greens • Average of 5 kg per m2 for tees; fairways and roughs • Fungicide • Average of 147 kg per m2 for greens; • Average of 3 kg per m2 for tees, fairways and roughs

Source: TAT Filipinas Golf Club (2010)

B. Impact on the Social Environment

The global tri-media (TV, radio, print) drives the growth of the game around the world as the

impact of tournament publicity and sponsorship shape public perception, as well as

expectations.134 And in many projects involving tourism and recreation development, “critical

issues”135 such as displacement, informal settlements, “land grab” and prostitution are listed

among social concerns136. A host of conflicts could also polarize local communities, particularly

134 Golf awards the largest tournament prizes in the world, specifically the US Open, British Open, Barclay’s Singapore Open at http://www.usopen.com/en_US/index.html, http://www.opengolf.com/ and http://www.barclayssingaporeopen.com/. Accessed on May 27, 2010. 135 There are instances where mountain dwellers, farmers or farm workers are displaced in case of land development owing to the confiscation of public or private lands. Informal settlements arise as workers are hired to operate and maintain golf courses and shanties are often built outside perimeter fences. In Asia, there is a preference for the services of lady caddies in golf courses. 136 Read, “the Sex Sector, The Economic and Social Bases of Prostitution in Southeast Asia”, edited by Lin Liam Lim, International Labor Office, Geneva (1998). Also available at ttp://books.google.com.sg/books?id=VFNKZbL1jWwC&pg=PA49&lpg=PA49&dq=prostitution+in+golf+courses+in+Asia&source=bl&ots=w7J-w8plLe&sig=gv-roc1wf-

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when agricultural lands and/or paddy fields are converted for golf course development. Policies

of land use conversion of agricultural lands for industrial or commercial usage basically

threatens the food security of the nation.137

The flagrant disregard of land use planning laws complicate the siting of golf courses, i.e.

clustering in city centers in Bangkok and Metropolitan Manila or the construction in

mountainous areas susceptible to flooding and soil erosion. It is also true that un-regulated

chemical application pose dangers to the health and well being of ground maintenance workers.

Problems such as untreated chemical rinse water dumped in nearby rivers and streams also affect

communities. These concerns are more pronounced in developing countries with less regulation

and transparency and may also arise when stakeholders are excluded from decision-making

processes, such as public consultation or direct participation.

Public infrastructures are necessary to promote golf tourism, i.e. road networks, bridges,

airports. Obviously, infrastructure costs are prohibitive hence developers routinely ask the

government for funding support or loan guarantees. Subsidies, fiscal and non-fiscal incentives,

tax holidays or grants benefiting private industries are largely criticized particularly in

developing countries where financial appropriations for basic services are limited. Inescapably, a

virulent condemnation follows if public funds are utilized to benefit golf clubs138 while poverty

alleviation programs are seriously neglected.

C. Economic Impact

The golf course industry contributes substantially to the national economy of both developed and

developing countries. Revenues earned by golf clubs fuel cash-strapped economies, improve

lives through employment generation and rural opportunities to communities, infrastructure

development and increase tax base. It has been claimed that, “golf is a multi-billion dollar

industry involving mostly trans-national corporations associated with construction, agriculture, naGO03z4Vyfztm2Lk&hl=en&sa=X&ei=bCKkUd_JJ4KPrQf814DwBQ&redir_esc=y#v=onepage&q=prostitution%20in%20golf%20courses%20in%20Asia&f=false 137 Philippine National Statistics Office (PNSO) Report stated that in an eleven-year period, from 1991 to 2002, the country’s farmlands fell from 9.9 Million to 9.7 million ha. Data may be reviewed at http://www.census.gov.ph/data/sectordata/dataagri.html. Accessed on May 2, 2008. 138 The government funded the construction of Halang and Greenfield interchanges in Laguna, Philippines. The interchange connects the golf courses to the main South Luzon Expressway reducing travel time. Read Report on Current Operating Expenditures, Department of Budget and Management, Republic of the Philippines. 2005. Available at http://www.dbm.gov.ph/dbm_publications/nep_2005/details_files/dpwh-programs.txt. Accessed on August 19, 2007.

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entertainment and the hotel industry”139. Ostensibly, golf course operation is considered as

potentially lucrative sector.

1.3 Stages of Golf Course Development and Operation

This thesis proposes that there should be three (3) stages of golf course development and

operation, as shown under Table 1.11

Table 1.11

Stages of Golf Development and Operation

1.4 Maintenance and Operation of Golf Courses

Golf course maintenance mainly involves turf management and general upkeep of the ground.

Turf management varies according many factors, i.e. design of the course, financial capacity of

the club, type of grass planted on the greens, tees, fairways, putting greens, and roughs, etc.

139 Supra, note 120.

Stages Scope/Coverage

1. Planning • Various laws apply during the planning stages, i.e. laws on investment, land use planning, and environmental impact assessments (EIAs).

• Planning includes the conceptualization of the project; preparation of business plan and feasibility study; procurement of development permits and licenses from various government agencies; preliminary review and assessment of the land use planning laws, planning application, land use zoning and classification; review of public trust doctrine adopted by the State; preparation of detailed design work, contractor selection, construction inspection; financial evaluation and approval; outlining layout plan, project inspection, etc.

• It is also during this stage that the project proponent submits the planning or EIA application to relevant agencies. Corruption also may occur during this stage.

2. Construction and Development

• Laws that apply during construction stage, i.e. laws on national heritage and archeological preservation, biodiversity protection and nature conservation.

• Includes the construction of the golf course and facilities; approval and issuance of planning licenses; EIA compliance and issuance of Environmental Compliance Certificates; water permits for ground water extraction; licenses, urban or local zoning compliance; Local Government Units approval and development permits; nursery preparation, installation of deep well units, site clearing and grading activities, etc.

3. Operation and Maintenance

• Laws that apply during this stage include legislations on water resource protection, chemical pollution, environmental protection, health, sanitation, waste disposal and management, and lastly, prevention of corruption.

• Includes the monitoring and supervision of the golf course; submission of reportorial requirements; compliance with water and chemical regulation; wastewater treatment; registration and licensing of securities to be sold as membership shares; operation and maintenance of turf grass, rehabilitation and repairs.

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Mechanical and electrical machineries, equipment, tools and implements are utilized to perform

maintenance activities. These tools and equipment are heavily dependent on fossil fuel (diesel,

gas, petro lubes). In some countries, wash bay areas and wastewater treatment facilities are

required to clean up the equipment used in chemical application. These areas are considered as

the most pollutive grounds where contamination of soil, surface water, or ground water most

likely occur, e.g. when pesticides are spilled, containers or equipment cleaned, rinse water

dumped or discharged, or improperly cleaned containers are stockpiled or buried.

Table 1.12 shows the activities, as follows:

Table 1.12 Turf Maintenance Activities

Activity Frequency

(Min-Max) 1. Watering or Irrigation Refer to Table 1.4 2. Fertilization and Pesticide Application Refer to Table 1.6 3. Mowing (greens) 6x a week 4. Greens Aeration 2x a year 5. Greens Verti-cutting 6x a year 6. Greens slicing 7. Greens Top-dressing 24x a year 8. Rolling 9. Tees Mowing 3x a week 10. Fairways Mowing 2x a week 11. Roughs Mowing Once a week

Source: TAT Filipinas Golf Club

In Table 1.13 the standard manpower requirement for golf courses is presented, showing that

those with agriculture and related degrees are hired to work in golf courses, i.e. horticulturists,

agriculturists.

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Table 1.13 Manpower Requirements for 18 Holes Golf Course

Manpower Quantity

1. Golf Course Superintendent 1 2. Assistant Superintendent 1 3. Secretary 1 4. Foreman for Grounds 1 5. Horticulturist 1 6. Spray Technician (Certified and Licensed) 1 7. Greens Keeper 6 8. Irrigation crew 2 9. Chief Mechanic 1 10. Equipment Mechanic 4 11. Green Mower Operator 4 12. Tee Mower Operator 2 13. Fairway Mower Operator 2 14. Rough Mower Operator 3 15. Utility 6 TOTAL 36

Source: TAT Filipinas Golf Club (2010)

Table 1.14 shows the desired number of tools, equipment and machineries necessary to maintain

an 18 holes golf course. The equipment’s operate either on gas or diesel oil at a maximum of

1,300 and 1,200 liters, respectively, per week, for 18 holes operation.140 Thus, the fossil fuel

consumption of golf courses is enormous, particularly during the rainy season where turf grasses

grow faster than during dry periods.

140 Source: TAT Filipinas Golf Club. Reduced consumption due to sustainable management and best course practices at 2, 500 liters a month or 30,000 liters of gas or diesel, per year.

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Table 1.14 Desired Number of Equipment, Machineries, Tools (18 Holes Golf Course)

Activity Area

Equipment Quantity

1. Greens 1.a Walk behind green mowers 1.b Walk behind green mowers with groomer

4 2

2. Tees 2.a Walk behind mowers - 3. Collars and approaches 3.a Walk behind green mowers

3.b Triflex Green Mowers 2 -

4. Fairways 4.a 5 Gang Hydraulic Mowers 2 5. Roughs 5.a 3 Gang Hydraulic Mowers 3 6. Bunkers 6.a Sand trap rake with box & front rake 1 7. Trim Mowing 7.a 72’ Rotary Deck Mower

7.b Walk behind Rotary Mower 1 2

8. Top Dressing 8.a Walk Behind Topdresser 8.b Ride-on Topdresser

1 1

9. Spraying 9.a 100 gallon sprayer with boom & hose reel 9.b 300 gallon sprayer with boom & hose reel

1 1

10. Transporting 10.a Turf Utility Vehicle 10.b Heavy Duty Maintenance Vehicle 10.c Superintendent’s Vehicle/Pick up

6 2 1

11. Accessories 11.a Verticut reels for ride-on green mowers 11.b Groomer for 5 gang fairway mower 11.c Roller for ride-on green mower 11.d Fairway aerator

1 1 1 1

12. Implements 12.a Tractor with turf tires 45 HP with hydraulic 12.b 3 pt. hitch turf blower 12.c Sweeper 12.d Vicon Fertilizer Spreader 12.e Cart Path Edgers (greens and tees) 12.f Hover Mowers 12.g String trimmers/brush cutters 12.h Back pack blowers 12.i Equipment Trailers 12.j Loader Bobcat, Reel Grinder 12.k Bed knife Grinder, Sod Cutter 12.l Backlapping Machine

1 1 1 1 2 4 6 4 6 2 1 2

Source: TAT Filipinas Golf Club (2010)

1.5 Feasible Recommendations

The massive proliferation of golf must be regulated in order to lessen the impact of ecological

degradation. Regulatory controls and environmental tools should be introduced, i.e. EIA, land use

planning, biodiversity assessments, installation of flow meters for groundwater extractive

activities, reportorial requirements for chemical rate of application, among others. Industry norms

must be promoted and pursued, while NGO and civil society participation must be enhanced.

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CHAPTER II, PART II

LITERATURE REVIEW

1.1 Literature Review 1.2 Law and Governance 1.3 Environmental Regulations 1.4 Sustainable Development 1.1 Literature Review

A review of the literature and databases such as Scopus, JSTOR, SSCI and Google Scholar

would show that the nexus between golf courses, environment, law and governance is largely an

unexplored terrain. For example, the existing literature on golf courses mainly focuses on their

environmental impacts - on water, soil and biodiversity – Mankin (2000)141, Yasuda, Koike and

Terman (2008)142, Baris (2010)143. The social and political aspects of golf courses have also

received some attention (Neo, 2001, 2010144; Hiskes, 2010)145 but not as much as scientific

studies. Other scholars have developed various approaches to help policy makers assess the

impacts of golf courses. These include the soft sustainability test (Briassoulis, 2007) 146 ;

comparative analyses applied to China and Korea (Choi, 2007)147; the optimization model

(Chen, et al, 2009)148; systems thinking to sustainable golf tourism such as cause mapping,

141 Mankin, K.R., 2000, An integrated approach for modeling and managing golf course water quality and ecosystem diversity, Ecological Modeling 133: 259-267. Also available at http://www.maine.gov/dep/land/watershed/fert/research.htm 142 Yasuda, M., Koike, F., Terman, M., How management practices affect arthropod communities on Japanese golf courses? Landscape and Ecological Engineering, Volume 4, Issue 2, November 2008, Pages 133-138 143 Baris, R.D., Cohen, S.Z. , Barnes, N.L., Lam, J., Ma, Q., Quantitative analysis of over 20 years of golf course monitoring studies, Environmental Toxicology and Chemistry, Volume 29, Issue 6, June 2010, Pages 1224-1236. 144 Neo, Harvey, Sustaining the unsustainable? Golf in urban Singapore, International Journal of Sustainable Development and World Ecology, Volume 8, Issue 3, 2001, Pages 191-202 and Neo, Harvey, Unpacking the post-politics of golf course provision in Singapore, Journal of Sport and Social Issues, Volume 34, Issue 3, 2010, Pages 272-287. 145 Hiskes, Richard P.,"Missing the Green: Golf Course Ecology, Environmental Justice, and Local "Fulfillment" of the Human Right to Water", Human Rights Quarterly 32.2 (2010): 326-341. Project MUSE. Web. 17 Oct. 2012. <http://muse.jhu.edu/>. 146 Briassoulis, H., Golf-centered development in coastal Mediterranean Europe: A soft sustainability test”, Journal of Sustainable Tourism, Volume 15, Issue 5, 2007, Pages 441-462 and Briassoulis, Helen, “A Soft Sustainability Test”, (Briassoulis 449-453, Marsden 2006 – 206-208). Read also http://jss.sagepub.com/content/34/3/288.abstract. 147 Choi, J. , Kwon, Y.H., Comparative study on the environmental impact assessment of golf course development between Korea and Japan, 2006, Landscape and Ecological Engineering, Volume 2, Issue 1, May 2006, Pages 21-29. 148 Chen, C. H., Wu, R. S., Liu, W. L., Su, W. R., Chang, Y. M. (2009), Development of a methodology for strategic environmental assessment: application to the assessment of golf course installation policy in Taiwan”, Department of Civil and Environmental Engineering, Nanya Institute of Technology, 414, Sec. 3, Chung-Shang E. Road, Jungli City, Taoyuan County 320, Taiwan, ROC, Also available at

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system dynamics modeling and simulations of golf, tourism, and environmental relationships

(Woodside, 2009)149; analytic hierarchy process (del Campo Gomis, et al, 2010)150; meta-

analyses (Colding and Folke, 2010)151; and the carbon budgeting approach to assess whether

golf courses serve as carbon sinks or sources (Selhorst and Lal, 2011)152. Most of these analytic

models do not factor in the regulatory dimension of golf course planning, construction and

operation.

Table 1.15 provides a summary of the literature on golf courses.  

Table 1.15 Summary of Existing Literature About Sustainable Golf Courses

Authors (Year) /

Country Methods and Variables

Studied Findings / Arguments/ Conclusions

Mankin, K.R. (2000) USA

Integrated approach for modeling and managing golf course water quality and ecosystem diversity

Sustainable water quality management must include proper soil and water conservation, irrigation scheduling, and fertilizer and pesticide management. Appropriate features must be designed into numerous contiguous area of non-playing area to meet avian habitat needs. And a diversity of stream habitat conditions must be maintained, including clear pool and gravel-substrate riffle zones, and permanent and intermittent streams.

Neo, Harvey (2001) Singapore

Sustainability of golf in urban areas

Continual expansion of golf courses runs counter to the broad ideal of urban sustainability. The arguments that support golf course expansion viz. reducing the issue to a matter of supply and demand and extolling golf's economic benefits pay scant attention to principles of equity and sustainability.

chchen@nanya.edu.twhttp://www.ncbi.nlm.nih.gov/pubmed/19015828. And Chen, C.-H., Wu, R.-S., Liu, W.-L., Su, W.-R., Chang, Y.-M. 2009, Development of a methodology for strategic environmental assessment: Application to the assessment of golf course installation policy in Taiwan, Environmental Management, 43 (1), pp. 166-188. 149 Woodside, Arch G., “Applying Systems Thinking to Sustainable Golf Tourism”, Journal of Travel Research (2009), 48 (2) 205-215. 150 Del Campo Gomis, F.J. , López Lluch, D.B., Sales Civera, J.M., Agulló Torres, A.M., Lagos Milla, J., Environmental considerations for feasibility of new golf course development in Alicante province (Spain), Journal of Food, Agriculture and Environment, Volume 8, Issue 2, April 2010, Pages 1174-1179. 151 Colding, J. and Folke, C., The role of golf courses in biodiversity conservation and ecosystem management. Ecosystems, Volume 12, Issue 2, February 2009, Pages 191-206 and Colding, J. and Folke, C., The Role of Golf Courses in Biodiversity Conservation and Ecosystem Management, Ecosystems, Published online, 11 November 2008. 152 Selhorst, Adam and Lal, Rattan, “Carbon budgeting in golf course soils of Central Ohio”, Urban Ecosystems, November 2011, Volume 14, Issue 4, pp, 771-781. At http://rd.springer.com/article/10.1007/s11252-011-0168-5

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Briassoulis, Helen (2007) Mediterrenean)

Soft sustainability test for golf course development

The study suggests that golf course development engenders considerable risks to sustainable local and regional development in coastal Mediterranean Europe. The findings indicate that the principal criteria of resource maintenance and use efficiency, livelihood sufficiency, opportunity and intra- and intergenerational equity as well as the necessary conditions to achieve them may not always be satisfactorily met.

Choi (2007) China and South Korea

Comparison on environmental impact assessment on golf courses (preparation of environmental impact statements (EISs), review process, approval procedure, and EIS contents)

The study finds variations in EIA procedures and EIS contents in the two countries. In China, there are some limitations on technical analysis and survey experience but its EIA system is more advanced in legislative terms, requiring more advanced measures, such as screening and scoping. In Korea, legislation contains more specific and concrete requirements, a compulsory supplement system, and technical methods of surveying.

Yasuda, Mika Koike, Fumito Terman, Max (2008) Japan

Effects of golf course management on anthropods

Management practices (length of grass, pesticide, herbicide) have some effect on particular types of anthropods.

Colding, Johan Folke, Carl (2008) Sweden

Ecological value of golf courses based on a quantitative synthesis of studies in the scientific literature

Golf courses had higher ecological value in 64% of comparative cases. Many golf courses also contribute to the preservation of fauna of conservation concern. More broadly, we found that the ecological value of golf courses significantly decreases with land types having low levels of anthropogenic impact, like natural and nature-protected areas. Conversely, the value of golf courses significantly increases with land that has high levels of anthropogenic impact, like agricultural and urban lands.

Chen, C. H., Wu, R. S., Liu, W. L., Su, W. R., Chang, Y. M. (2009) Taiwan

Optimization model for sustainable golf course Using the following parameters: quantity, human activity intensity, total quantities of pollution load and resource use

The proposed methodology can be used to assist the authorities for simultaneously generating and assessing how to regulate golf course development and operation during the strategic environmental assessment (SEA) process.

Woodside, Arch G. (2009) USA

Application of systems thinking to sustainable golf tourism, cause mapping, and system dynamics modeling and simulations of golf, tourism, and environmental relationships

Systems thinking approach can be used in the planning for and evaluation of sustainable golf course tourism. Sustainable relationships that include golf, tourism, and environmental objectives require crafting government policies via stakeholder participation of all parties that such relationships affect-recognizing and enabling this requirement needs to be done explicitly-to reduce conflicts among stakeholders and avoid system failures

Neo, Harvey (2010) Singapore

Politics of golf course Politics of golf course has become more consensual than confrontational since the 2000s. "Consensual politics" is a conscious tactic used by planners and golf proponents to circumvent and manage dissent toward the construction of new golf courses.

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Del Campo Gomis, Francisco J., et al. (2010) Spain

Develops the analytic Hierarchy Process methodology using social, economical and natural environmental parameters to assess impacts of golf course development

The analytic hierarchy process can be used by policymakers in assessing the social, environmental and economic impacts of golf course development

Hiskes, Richard P. (2010) USA

Golf course and environmental justice, access to water as a human right

A golf course’s impact on neighboring communities and, by implication, on a global water system is a legitimate focus of human rights litigation and advocacy.

Baris, Reuben D., Cohen, Stuart Z., Barnes, N. Lajan, Lam, Juleen, Ma, Qingli (2010) USA

Impact of golf courses on water quality

Widespread and/or repeated water quality impacts by golf courses had not occurred at the sites studied, although concerns are raised herein about phosphorus.

Selhorst, Adam L. Lal, Rattan (2011) Ohio, USA

Carbon budgeting in golf course soils

Golf course turf grasses can sequester carbon at varying rates but these benefits are often offset by conventional management practices (fuel combustion, use of nitrogen, fungicides, irrigation). These can transform golf courses from carbon sinks to carbon sources in 30 years.

Shen, Ke Yin Kou, Xian Juan (2012) China

Environmental ethics Environmental ethics is an important consideration in golf course development

1.2 Law and Governance

Golf course development and operation are governed under national laws and regulations. The

national laws either are codified locally or may have been transplanted from Multilateral

Environmental Agreements, international or regional instruments (hard and soft law), which

have been signed and ratified, or acceded to by Contracting Parties. The MEAs contain

principles and philosophies, which promote, inform, enhance and guide environmental

protection and management.

Meanwhile, Scholars argue that governance is a concept that better captures the institutions and

relationships involved in the post-modern process of governing (Francesch-Huidobro, 2008).

Peters (2002) suggests that governance is mostly about steering and the means to do so with

state, market and civil society being involved in various ways, but not to the point of the

government displaced by other actors.153 Political scientists come into agreement that changes in

post-modern societies require a shift from a “rowing” to a “steering” function of the state

153 Peters, B. Guy. “The Changing Nature of Public Administration: From Easy Answers to Hard Questions”, Asian Journal of Public Administration 24, no. 2 (2002): 153-83.and Jon Pierre.

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(Kooiman, 1993; Pierre and Peters, 2002).154 Thus, the processes of interpenetration among

different governance domains, of political and administrative decentralization, and of

international interdependencies seem to be needed and their existence acknowledged as

alternatives to the traditional “top down” approach to governing (Greca, 2002).155

In any case, Rhodes (1996) argues that governance is a broader term than government, referring

in its widest sense to the various ways through which social life is coordinated. Rhodes further

states that government can be seen as just one more of the institutions involved in governance,

therefore, it might be possible to have governance without government.156 While some associate

governance with a shift from command and control mechanisms to reliance on consultation and

bargaining, others argue that it implies a preference for less government and the free market

(Heywood, 2002157 and Salamon, 2002158). In the development of private business, governance is

equated with good governance, which means a commitment to obtaining wider and cheaper

capital and improving shareholder value (Pettigrew and McNulty, 1995).159

The World Bank equates governance with accountability, transparency, participation, and rule of

law and with the ability of governments to put in place mechanisms that support the market for

poverty alleviation and development (World Bank, 2004). Thus, World Bank issues the

Worldwide Governance Indicators (WGI), which shows many countries making progress in

governance and anti-corruption measures. 160 The WGI measure six broad dimensions of

governance, including: voice and accountability, political stability and absence of violence,

government effectiveness, as well as regulatory quality, rule of law and control of corruption.

The Indicators cover 212 countries and territories. The World Bank maintains that better

governance helps in the fight against poverty and improves living standards albeit measuring 154 Peters, B. Guy and Jon Pierre. “Introduction: The Role of the Public Administration in Governing”. In Handbook of Public Administration, edited by B. Guy Peters and Jon Pierre. London: SAGE Publications, 2003. 155 Greca, R. “Governance: Old and New Problems in the Interaction of State, Market and Civil Society”. Unpublished manuscript, 6 March 2002. 156 Rhodes, R.A.W. “The New Governance: Governing without Government”. Political Studies 44, no.3 (1996): 652-67. 157 Heywood, A. Politics. Basingstoke, Hampshire: Mcmillan Press, 1997 and Politics (2nd edition). London, New York: Palgrave, 2000. 158 Salamon, Lester.“The New Governance and the Tools of Public Action: An Introduction”. In The Tools of Government: A Guide to the New Governance, edited by Lester M. Salamon, Oxford, N.Y.: Oxford University Press, 2002. 159 Pettigrew, A. and McNulty, T. “Power and Influence in and around the Boardroom”. Human Relations 48, no. 8 (1995) 160 Governance Matters, The World Bank Report 2009. Available at http://siteresources.worldbank.org/EXTWBIGOVANTCOR/Resources/Pressrelease_7-2009.pdf

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governance is difficult and all measures of governance are necessarily imprecise. Meanwhile,

the Organization for Economic Cooperation and development (OECD) associates governance

with corporate governance needed to ameliorate economic efficiency, which depends on

relationships between management, board, shareholders, and other stakeholders (OECD

Principles of Corporate Governance, 2004).

A. Governance Theory

Francesch-Huidobro (2008) elucidates that the shift from government to governance seems to

have started in the 1980s, with the beginning of a trend applying market mechanisms to the

public sector so as to put a system that is lean, efficient, has minimum regulation, and is

supportive of private and voluntary action. Then there was the discourse on international donor

policy in developing countries (Laking, 1999161; Wallis and Dollery, 2001162). Francesch-

Huidobro summarizes that in these discourses the government is seen as facilitator and partner

where cross-sectoral relations are the norm – which creates an increase in accountability,

transparency, and responsiveness – characteristics of a democratic government with an effective

policy process that is rational and equitable, and the maximizing of service delivery. Overall, the

trend increases the role of the non-profit sector in public life through inclusive partnerships

between government and civil society actors.

Francesch-Huidobro explains that the governance approach where the state, civil society,

Government-NGO relations and environmental protection have specific characteristics is

adopted in the study as a tool for analyzing this process. It is also called disciplined governance

approach.163 Thus, a governance approach to governing recognizes various types of relations

between the players within different domains resulting in various types of governance order,

mainly hierarchical governance, co-governance and self-governance.

161 Laking, R. “Don’t Try This At Home? A New Zealand Approach to Public Management Reform in Mongolia”. International Public Management Journal 2, no. 2 (1999): 217-36. 162 Wallis, J. and Dollery, B. “Government Failure, Social Capital and the Appropriateness of the New Zealand Model for Public Social Reform in Developing Countries”. WORLD DEVELOPMENT 29, NO. 2 92001): 245-63. 163 Francesch-Huidobro (2008) writes that the intriguing notion of disciplined governance underpins the analysis, with its origins in an appreciation of how illiberal democracies are usually structured and run by a tightly knit political-administrative elite.

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B. Environmental Governance

Francesch-Huidobro presents that a governance approach to managing the environment means

that efforts of various actors are brought together through formal and informal institutions at

multiple levels. It appeals to people to engage in acts of collective action and cooperate for

environmental protection and nature conservation. She also mentioned that a governance

perspective could be used in seeking to assess and make sense of environmental politics and

policy. She also explains that research on environmental issues and policies in East and

Southeast Asia in the past two decades had focused mainly on existing institutional mechanisms

of environmental management, the establishment of new environmental management structures,

the introduction of incentives to improve natural capital and foster environmental protection and

the culture of environmental or “green” groups. Thus, environmental governance is

characterized by decentralization and democratization, which requires both formal and informal

interaction through flat and loosely bounded networks that enable the participation of various

actors. The ultimate goal is to determine whether governance theory serves as an appropriate

tool to explain the realities of diverse country and policy settings, and if not, which type of

governance order serves this purpose best (Francesch-Huidobro).

1.3 Environmental Regulations

Regulation is the control exercised by a non-police public body over the activities of individuals,

firms or Member States in order to achieve defined goals; or control by firms of their own

activities to achieve such goals (Ogus, 1994). The implementation of environmental laws and

regulations rests on various tools and techniques, such as command-and-control methods to

economic incentive programmes, i.e, Pigouvian taxes and subsidies, marketable permits, etc.164.

The economic incentive approach, mainly advocated in the form of the ‘polluter-pays-principle, is

therefore put forward in the new environmental economics literature as the general policy tool for

dealing with environmental degradation.165 Regulatory techniques both have international and

domestic application, and involve direct government control. Therefore, achieving higher levels of

environmental quality while maintaining economic growth will require far-reaching innovation

and investment in less polluting, more resource-efficient methods of production and

consumption.166

164 Massoud Karshenas, Environment, Technology and Employment: Towards a New Definition of Sustainable Development, Development and Change. October 1994, Vol. 25, Issue 4, pp. 723-756. 165 Ibid. 166 Richard B. Stewart, Economic Incentives for Environmental Protection: Opportunities and Obstacles, in Environmental Law, the Economy and Sustainable Development, edited by Richard L. Revesz, Philippe

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There has been a growing tendency to grant powers to the public enforcement agencies to

impose “civil” or “administrative” penalties, and without the procedures and protection of the

criminal law.167 There is a range of regulatory techniques, divided into two types; 1) the

traditional form of direct regulation (command and control) and, 2) techniques, which make use

of economic instrument (Driesen, 2001).168 Under Command and Control (CAC), the State

instructs environmental agencies or bodies “to adopt and apply standards, which are generally

applicable in a uniform manner to their addresses”.169 Driesen stresses that CAC encompasses a

variety of methods, e.g. influencing behavior through laws, incentives, threats, contracts and

agreements while enforcement often involves the use of uniform sanctions, which can result in

small businesses feeling the burdens of regulation more severely than companies of a larger size.

Driesen further notes that the 1980s in particular saw CAC subject to widespread criticism and a

good number of the critics tend to favor market-based instruments. Driesen also points out that

some critics of CAC point to incentives-based regulation as an alternative, with possible benefits

including cheaper administration costs and reduction in the risk of regulatory capture.

However, some commentators prefer to use ‘direct regulatory instrument’ because of the

negative connotations surrounding the term.170 One criticism is that an “EIS confers a license to

pollute, that is akin to selling indulgences to sin”. 171 The UNECE Bergen Ministerial

Declaration, 7 May 1990 provides that, “to support sustainable development it would be

necessary to make more extensive use of economic instruments in conjunction with regulatory

approaches”. As a mechanism of decision-making process or as a tool for planning, the

Environmental Impact Assessment (EIA) was devised and eventually codified in a number of

countries and has generally gained wide acceptance. Briffett (1999) writes that although the

mandatory EIA was introduced in the planning systems of many countries in Southeast Asia Sands and Richard B. Stewart, 25 Harvard International Law Review, 601 (2001), at page 184, – quoting Ian W.H. Parry, “Pollution Regulation and the Efficiency Gains from Technological Innovation,” 14 J. Regulatory Economics 229 (1998) 167 Anthony Ogus and Carolyn Abbot, Sanctions for Pollution: Do we have the right regime?, Journal of Environmental Law, Vol. 14 No 3, Oxford University Press, 2003 at 283. – 168 D. Driesen, Choosing Environmental Instruments in a Transnational Context, 27 Ecology Law Quarterly 1 (2001). 169 Id. The author defines CAC regulation as “the direct regulation of an industry or activity by legislation that states what is permitted and what is illegal. The ‘command’ is the presentation of quality standards/targets by a government authority that must be complied with while the ‘control’ part signifies the negative sanctions that may result from non-compliance e.g. prosecution. 170 Read, R. Wolfrum (ed.) Enforcing Environmental Standards: Economic Mechanisms as Viable Means (1996). Read also, P. Galizzi, Economic Instruments as Tools for the Protection of the International Environment, 6 European Environmental Law Review, 155 (1997). 171 R. Goodin, “Selling Indulgencies,” 47 Kykos 573 (19940 in Richard B. Stewart article. Read, Eckard Rehbinder, Market-Based Incentives for Environmental Protection, page 245

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region yet its success in protecting the environment has been limited. Severinsson (2004) claims

that the EIA system in Vietnam is still incomplete in its regulatory form and relatively

ineffective in its application as a tool for planning and monitoring of development. Pranee

Pantumsinchai and Thongchai Panswad (2007) argues that although the EIA process was

introduced to Thailand over 20 years ago, it is still filled with controversy because many parties

involved in the process still could not agree on what EIA exactly means and they each have

differing views about it.172 In fact, under Thailand law golf course development is not required

to undergo the EIA process. Similarly in the Philippines, the EIA has been transplanted into the

legal system since 1978 yet difficulties in the implementation of public participation and

consultation still persist. Existing literature pointed out that the social acceptability and public

consultation process often do not reflect the true will of the stakeholders. In Singapore, there is

no EIA legislation although the government may order its submission on an ad hoc basis.

Luna (2005) enlightens that the result of public consultations need not necessarily lead to social

acceptability or the lack thereof but could lead to resolutions that are creative, unanticipated and

even non-materially based. Likewise, Werner (1992) researches into several thousands of impact

statements in the Philippines and Thailand during the last decade and has revealed that not a single

project was denied for environmental reasons. Nonetheless, there is one EIA application, which

was denied by DENR in the Philippines in 1995 because of social acceptability concerns173 and

not because of ecological reasons or importance.

Meanwhile, Cost-Benefit Analysis (CBA) is the exercise of comparing the costs and benefits of

two or more options of the use of the land.174 CBA measures the relative efficiency of any given

course of action (or inaction). The feasibility study aims to objectively and rationally uncover the

strengths and weaknesses of an existing business or proposed venture, opportunities and threats as

presented by the environment, the resources required to carry through, and ultimately, the

prospects of success. Generally, feasibility studies precede technical development and project

implementation.175

172Pantumsinchai P and Panswad T., Improvement of the EIA System. Available at www.eeat.or.th/improvementofEIA.pdf. Accessed on June 14, 2007. 173 Proposed Bolinao Cement Factory in Pangasinan, Philippines. 174 M. Sagoff, The Economy of the Earth, Cambridge University Press, 1988 175 Justis, R. T. & Kreigsmann, B. (1979). The feasibility study as a tool for venture analysis. Business Journal of Small Business Management 17 (1) 35-42. Available at http://en.wikipedia.org/wiki/Project. Accessed on October 19, 2012.

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A. Application of Regulatory Controls in Asia

Studies by Zarsky and Tay (2000) on environmental regulation revealed that enforcement was

weak in Asia. Zarsky and Tay (2000) also speaks about the future of environmental governance

in Southeast Asia, stating that the government’s inability to effectively deliver environmental

policy and management is often related to a lack of political will, to fiscal constraints, to a lack

of regulatory capacity, and to the pressures of competition in the global arena.176 Meanwhile,

Briffett (1999) wrote that the command and control system is not successful in developing

countries as it prescribes standard, which are unattainable and unenforceable, where fines and

penalties are minimal and therefore encourage abuse and avoidance. According to Barber

(1997), the reasons generally stem from a lack of funding and weak, overstretched and often

corrupt administrative and judicial systems. Thus, Zarsky and Tay conclude that the traditional

Command and Control regulatory approaches to the environment are notoriously costly and are

often difficult to implement effectively and that under such approach, the government is the

primary instigator, designer and enforcer of environmental regulation, therefore, in East Asia,

the command and control model has not been very effective.

Perry and Singh (2005) disclosed that the adoption of market-based approaches should be looked

into. It has been argued that other market based instruments, voluntary initiatives and informal

regulation arrangements can be more effective than, and provide a useful addition to EIA in East

Asia. Geron (1999) writes that one example would be the Environmental User Fee System

(EUFS), an effluent taxes based on presumptive discharges which has been on pilot testing in the

Laguna Lake, in the Philippines. However, “since the implementation of the EUFS in the Laguna

de Bay Region in 1997, there has been no comprehensive evaluation of its impacts particularly at

the regulated firm level” (Catelo, 2007). Catelo therefore attempts to generate empirical evidence

that could explain the differential behavior of regulated firms toward the EUFS. The emphasis of

analysis is at the firm level, since firms are crucial stakeholders whose cooperation spells the

difference between pollution or non-pollution, or between acceptable levels of pollution and

excessive levels.177

176 Zarsky L. and Tay, Simon S.C. “Civil Society and the Future of Environmental Governance in Asia”. In Asia’s Clean Revolution: Industry, Growth and the Environment, edited by David Angel and Michael Rock. U.K.: Greenleaf Publishing Ltd. 2000. 177 Catelo, Maria Angeles, Impact Evaluation of the EUF System: A Stakeholders Perspective, 2007. Visit http://ideas.repec.org/p/eep/tpaper/tp200707t2.html. Accessed on May 17, 2013.

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1.4 Sustainable Development

Sustainable development is a broad issue that has been applied and considered useful to so many

topics. It is also germane to the interest of the future generation. Thus, this thesis argues that the

interest of future generations should be taken into account in legal and policy analysis involving

sustainable development. Nevertheless, nothing has been written about sustainability in golf

courses. This thesis therefore seeks to bridge this academic gap in literature and policy about

sustainable golf courses. In this thesis, Case Studies (Part III, Chapter I) have been conducted to

determine sustainable practices in golf courses. Are these practices comprehensive enough to

achieve sustainability? These are but one of the many issues involving golf course sustainability.

To reiterate, this dissertation aims to answer the question of how the law can further the objectives

of sustainable development. This thesis also emphasizes that the concept, principles and

philosophy behind sustainability actually protect, promote and guide development activities of

golf courses. Does sustainable and best course practices help reduce the level of impact of

ecological degradation brought about by “unsustainable” activities? Is sustainability in golf

courses achievable? Are there sustainable golf courses in the region? What are the failures and

weaknesses introduced by “traditional” or conventional golf courses? Thus, crucially, this chapter

theoretically considers whether the development and operation of sustainable golf courses in the

ASEAN region are achievable or not.

This research undertakes to answer a significant question whether Sustainable Development

practically applies in golf courses. Can golf course development and operation be sustainable?

Does law and regulation play pivotal roles in attaining sustainability? Are there legal or regulatory

processes, tools or mechanisms which must be utilized to realize sustainability? These are but

some of the questions answered in this chapter. A review therefore, of existing literature on

Sustainable Development and its sustainability thread must be set out. In the next succeeding

chapters, this dissertation comprehensively review the laws and regulations of the four subject

countries to determine whether the legislation actually support the construction and development

of sustainable golf courses. Are these laws and regulations adequate, coherent and effective to

regulate the construction and development of golf courses? There are case studies included in this

thesis that will show which of the golf courses has the most sustainable practices and are good

examples to study sustainability.

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A. Definition of Sustainable Development

It has been stated many times that Sustainable Development (SD) has not been properly defined

and to this day, there is no conclusive definition of the phrase. The Brundtland Commission (1987)

definition is a classic example of an anthropocentric interpretation178. The anthropocentric version

of SD suggests that we should control pollution because we should leave the environment in an

acceptable condition for future generations of humans (Hilson, 2000). Although many critics

consider the sustainable concept as flawed and vague, and that the concept of needs is subjective,

the Brundtland definition is the most influential version - mostly adopted by countries and the

United Kingdom. Meanwhile, the Caring for the Earth definition for SD is “improving the quality

of life while living within the carrying capacity of supporting ecosystems”.179

Pearce (1993) asserts that, “humans have a moral duty to sustain the overall capital stock for

future generations, with man-made capital”. And with human beings as the central focus

(Principle 1, Rio Declaration), Pearce argues that sustainability “implies something about

maintaining the level of human well-being so that it might improve but never declines”. In fact,

Pearce said that there is some truth in the criticism that SD has come to mean whatever suits the

particular advocacy of the individual concerned. Beckerman (1995) notes however that, “it is not

clear how this version of sustainability is any different from the ordinary moral imperative of

welfare economics, which, as we have seen is welfare maximization”.

Meanwhile, Kurian and Bartlett (2003) points out that “Sustainable development is actually a set

of ideas generated by modern environmentalism which continues to consist of contentious

dimensions founded in differing historical movements, ideas and concerns of justice”. Deep

ecologists define SD in terms of the imperatives of the preservation of the ecosystem rather than

the satisfaction of ‘human needs and aspiration’.180 Although the term SD itself began to appear in

Multi-lateral Environmental Agreements (MEAs) during the early 80s, the general principle has

initially been referred to in a treaty - in a preamble to the 1992 European Economic Area

Agreement. 181 During the United Nations Conference on Environment and Development

178 The Brundtland Commission defines sustainable development as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. 179 IUCN/UNEP/WWF, Caring for the Earth: A Strategy for Sustainable Living, Gland, Switzerland, 1991. 180 See Devall and Sessions, 1985 and Naes, 1973. 181 See Preamble to the European Council Fifth Environmental Action Programme, referring to the call in the June 1990 EC Declaration of Heads of States and Government. See also Philippe Sands, Principles of International Environmental Law, Second Edition 2003, Cambridge University Press at Chapter 15, p. 747.

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(UNCED) in Rio de Janeiro, Brazil, in 1992, the world leaders undertook to “[c]ooperate in the

essential task of eradicating poverty as an indispensable requirement for sustainable development,

in order to decrease the disparities in standards of living and better meet the needs of the majority

of the people of the world” (Principle 5, Rio Declaration).

Consequently, Agenda 21 - the programme of action for Sustainable Development was adopted,

the implementation of which was intended to involve action at international, national, regional and

local levels, by assigning priority to national lawmaking.182 Both the Brundtland Report and the

Rio Convention were influenced by conflicting claims of the underdeveloped and developed

nations as to what should be sustained as their interests collide on the question of the weight to be

given to economic growth, like who should pay for environmental protection and safety.183 Alder,

et al, also asserts that SD is regarded as an empty platitude intended to provide a formula

acceptable to most ethical and political points of view. Thus, both authors assert that Sustainable

Development is probably too broad a concept to be binding as a customary international law and

at best has the status of a soft law.

B. Sustainable Development in Golf Courses

The Royal and Ancient (R & A) Golf Club of St. Andrews, Scotland184 is the world’s rules and

development body for the game of golf. The R & A embraces the principle of sustainability,

defining that development and management means “[o]ptimising the playing quality of the golf

course in harmony with the conservation of its natural environment under economically sound and

socially responsible management”. Meanwhile, the United States Golf Association (USGA), the

game of golf’s governing body for the United States of America and Mexico has not specifically

adopted the principles of SD but seeks to “minimize environmental footprint”.185 Since general

182 See Agenda 21, Chapter 28 recommended that national and state governments have legislated or advised that local authorities take steps to implement the plan locally. 183 Alder and Wilkinson explains that “these countries have different needs and attitude to the environment, as Developed countries having achieved high standards of material well being, look to the environment for health, convenience and entertainment; while Developing countries stress immediate survival problems claiming that it would not be equitable for them to reduce pollution until their living standards are raised to the levels of the rich nations whose wealth has been generated by pollution. 184 The R & A operates with the consent of more than 125 national and international, amateur and professional organisations, from over 110 countries and on behalf of an estimated 28 million golfers in Europe, Africa, Asia Pacific and the Americas (outside the USA and Mexico). Visit http://www.theroyalandancientgolfclub.org/ for club history and principles. Accessed on May 17, 2013. 185 The USGA writes the Rules of Golf for US and Mexico and conducts equipment testing and funds research for better turf development. The USGA’s most visible role is played out each season in conducting 13 national championships, including the U.S. Open. Visit http://www.usga.org/default.aspx, accessed on May 17, 2013.

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membership in these golf organizations is voluntary the adoption of sustainable practices is

necessarily not mandatory. Compliance rests on the judicious and responsible care program of

independent golf clubs or federation of golf clubs. Moreover, the R & A obviously settles for the

balancing of interest between playability, nature conservation, as well as financial and social

management.

C. The Debates and Contestations

Seminal works have been written about Sustainable Development. The SD debate, in fact, has

“come to pervade environmental policy discussions for years” (Alder and Wilkinson, 1999). Its

“meaning and value are hotly contested, obviously due to conflicting interests, such that (1)

developed countries, having achieved high standards of material well-being look to the

environment for health, convenience and entertainment and stress firmly, long-term global

survival, (2) while developing countries stress immediate survival problems such as water

pollution, the cost of energy and oil degradation” (Alder et al, 1999). There is a large literature

analyzing and criticizing the concept of Sustainable Development. Opinions range from rejecting

the concept as meaningless or a cloud for self-interest, to enthusiastic endorsement as a moral

lodestar (Reed, 1995), (Redclift, 1992), (Dobson, 1995), (Malanczuk in Ginther, 1995), (Jacobo,

1989) and (Beckerman, 1994). Much of the criticism stems from the tension between the idea of

sustainability and that of development.

Beckerman (1995) criticizes the Brundtland definition, “such that it is useless, as the needs are

subjective, – that people at different points in time or in different income levels or with different

cultural or national backgrounds differ with regard to what needs they refer as important”.

Beckerman asks whether Sustainable Development is a useful concept, as it has been “defined in

such a way as to be either morally repugnant or logically redundant”. Beckerman argues that

although economic policy tended to ignore environmental issues, it is correct that they should now

be given proper attention – but not at the expense of elevating sustainability to the status of over-

riding criterion of policy. Beckerman thus concludes that an absolutist or “strong” concept of SD

should be “treated as a purely technical concept.186 Basically, Beckerman grounded his arguments

on the cost of the task and the vast resources needed to preserve and conserve the environment - In

its entirety? At what price, he argues. He asks - does everybody lose sleep over the loss of some

186 Beckerman maintains that the concept is “flawed because it mixes up together the technical characteristics of a particular development path with a moral injunction to pursue it”.

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species? Beckerman also argues that resources could in fact channeled to more environmental

concerns, e.g. increasing access to clean water or sanitation in developing countries.

Daly (1995) replied to Beckerman’s Critique of Sustainable Development, arguing that SD is an

indispensable concept and that “strong” sustainability is neither morally reprehensible nor

operationally impractical. Daly reiterates that, “strong sustainability assumes that man-made and

natural capital are basically complements”. Daly however rejects the definition of SD in terms of

the welfare of future generations, as it is beyond control. On the one hand, Jacobs (1999)

enumerates the three forms of resistance to SD, namely, (1) frustration or irritation usually

expressed from policy-technocratic standpoint, (2) outright rejection from the ultra-greens, and (3)

resistance from cultural critics, principally from the academia. Jacobs asserts that SD is “never

properly defined and asks how can the term be adopted as policy objective unless it’s meaning is

clarified and agreed upon”. Jacobs explains that the second resistance sees SD as a smokescreen

put up by business and development interest to obscure the conflicts between ecological integrity

and economic growth while the third sees the discourse representing an inappropriate response to

the “environmental problematic”. Thus, Jacobs concludes that the search for a unitary and precise

meaning of SD is misguided and that SD is actually a “contestable concept”.

Dasgupta and Mäler (1997) argue that most writings on Sustainable Development “start from

scratch and some proceed to get things hopelessly wrong”. Brooks (1992) also argues that, “for

the concept of sustainability in the process of development to be operationally useful it must be

more than just an expression of social values or political preferences disguised in scientific

language”. Brooks asserts that, “SD should be defined so that one could specify a set of

measurable criteria such that individuals and groups with widely differing values, political

preferences, or assumptions about human nature could agree whether the criteria are being met in

a concrete development program”.

Alder and Wilkinson (1999) writes that the main criticisms about sustainable development include

the extreme view - that SD is “regarded as a useful policy guide though no one believes that the

concept is capable of being directly applied in law”. Other criticisms include that “the

contradiction in terms - growth and environmental protection are enemies” (Dobson, 1995); “the

concept of need has no ethical basis and that the “needs of urban rich who can insulate themselves

from environmental degradation and who regard environmental assets such as the countryside as

entertainment, are different from the needs of the rural poor, who may need to despoil the

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environment to survive” (Jewell and Steele, 1996); Sustainable Development “penalizes the poor”

(Redclift, 1992) and that SD is “narrowly anthropocentric - treating the environment solely as a

support system for human beings” (Alder and Wilkinson, 1999). Passmore (1980) argues, that the

“duty to future generations is a limited one based on the present benefit of love for immediate

posterity – our children and our grandchildren. Passmore also stressed that this “duty is based

upon doing what can make the world a better place now since it will benefit future generations, in

which the same duty applies”. Jewell (1996) writes that the concept of Sustainable Development is

“an attempt to produce an internationally accepted formula that embraces the competing interests

of economic development and environmental protection”.

D. Achieving Sustainability

The means of achieving SD is through “environment, futurity and equity”; that a “policy, which

leaves more wealth for future development is important; and that SD is about making people better

off” (Pearce, 1999). Pearce asserts that, “if one generation leaves the next with less wealth then it

has made the future worse off”. Thus, Pearce asserts that fundamental to an understanding of SD

is the fact that the economy is not separate from the environment – that these are interdependent,

and that, “the way we manage the environment impacts the economy and environmental quality

impacts on the performance of the economy”. Explaining further, Pearce expounds that the “SD

idea was encapsulated in the proposition that the future should be compensated by the past” - this

is the so-called discounting phenomenon (time preference or discounting the future), which means

that, “a problem postponed maybe better than a problem tackled now if only because costs

incurred later on are preferable than costs incurred now”.

It is important to note that the 1992 UNCED Convention pursues several principles aimed to

attain Sustainable Development, e.g. Right to Development, Right to intergenerational equity,

environmental needs (Principle 3); public participation, access to information, effective access to

judicial and administrative proceedings (Principle 10); states should enact effective environmental

legislation (Principle 11); and specifically mandated an Environmental Impact Assessment to be

submitted for proposed activities (Principle 17). These principles do not exclusively propose to

achieve sustainability but are guideposts in realizing its goals. The 1992 Rio Declaration

recognizes the right to development as one of its 27 principles, which “must be fulfilled so as to

equitably meet developmental and environmental needs of present and future generations”

(Principle 3).

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The right to development has been debated upon, whether it is a right or an obligation on the part

of the State. Sengupta (2000) asserts that, “although the right to development is described in detail

in the 1986 UN Declaration, like all constitutional documents, it is open to interpretations which

may sometimes be conflicting.187 In fact, the right to development was introduced in the 1970’s

and 1980’s as one of several rights belonging to a third “generation” of human rights (Marks,

1981). Marks explains that the first generation consisted of civil and political rights conceived as

freedom from state abuse; the second generation consisted of economic, social, and cultural rights,

claims made against exploiters and oppressors, while the third generation consisted of solidarity

rights belonging to peoples and covering global concerns like development, environment,

humanitarian assistance, peace, communication, and common heritage.

E. Sustainable Development Perspective of this Thesis

For purposes of this dissertation, the author will adopt the Brundtland definition of Sustainable

development – the kind of development that sustains the golf course and its surrounding habitat

for the next generation to value and enjoy. Thus, it is but fitting that the sustainability principles

adopted by the Royal and Ancient Golf Club of St. Andrews, Scotland will be critiqued owing

primarily to its pursuit of the optimization of playing quality. The R & A seeks to harmonize the

playing quality and the natural environment but it has imposed a condition precedent that it must

be economically sound and socially responsible management. In this day and age, development

goals and environmental agenda have polarizing effects, which necessitate balancing of interests.

In this manner, environmental costs will have to be considered in determining the sustainable

development goals of the golf courses.

187 Arjun Sengupta, The Right to Development as a Human Right, 2000. Also visit http://www.harvardfxbcenter.org/resources/working-papers/FXBC_WP7--Sengupta.pdf. Accessed on July 22, 2012.

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CHAPTER II, PART III FRAMEWORK OF ANALYSES

1.1 Introduction 1.2 Explanations and Elaboration 1.3 Benchmarking the Elements/Determinants

1.1 Introduction

This dissertation uses law and governance as a framework for analyses, specifically building on

Robinson’s (1998) comparative environmental law framework and Maria Francesh-

Huidobro’s (2008) environmental governance theory.

A. Robinsons (1998) Comparative Environmental Law Framework of Analysis

Robinson (1998) suggests that the sub-field of comparative environmental law involves asking

the following research questions: First, which jurisdictions can be compared? Second, what are

the elements of a comprehensive environmental law regime to identify and compare? Third, how

can environmental laws be harmonized and integrated among states in order to give better effect

to their objectives? Finally, how can one locate and verify environmental laws of different

states? This dissertation therefore advances the literature on comparative environmental law

using Robinson’s approach.

B. Francesch-Huidobro (2008) Environmental Governance Framework

Francesch-Huidobro proposes a framework for analysis as a way of viewing the world of

politics and government that helps to focus attention on things that happen and the way they

happen. Francesch-Huidobro’s “governance theory” perspective focuses on state adaptation to

the external environment and new forms of coordination and collaboration between government

and civil society to tackle new societal problems. She designed a framework of analysis as a

way of viewing the world of politics and government that helps to focus attention on things that

happen and the way they happen. Thus, Francesch-Huidobro sees governance as a multi-

dimensional phenomenon – sensitive to context by being applicable in various guises to different

political systems in developed and developing countries alike.

C. Definition of Terms

As not all persons are familiar with the game of golf and the golf industry, it is necessary to

introduce and define some legal and technical terms utilized in this paper, namely:

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1. Best Practices refers to those practices that have produced outstanding results in

another situation that could be adopted. Management’s best practice is considered an important

tool in corporate governance reform because it raises awareness and helps build consensus and

ownership of reform processes and outcomes. 188 These are non-binding rules observed

voluntarily by members, which aims to encourage innovation so as to raise levels of efficiency

and competitiveness of corporations.

2. Construction and Development Stage includes the construction of the golf course and

facilities, approval and issuance of planning licenses, EIA compliance, issuance of

Environmental Compliance Certificates, water permits for ground water extraction, licenses,

urban or local zoning compliance, development permit, Local Government Units (LGUs)

approval, nursery preparation, installation of deep well units, site clearing and grading activities,

etc.

3. Golf tourism is the term used to describe trips undertaken by persons the main purpose

of which is to play golf. This type of activity is more difficult to measure, and whilst it can be

important for the golf courses themselves it has little significance for tour operators189.

4. Industry Norms are informal guidelines in a particular group, which have ripened as

practices of the industry because of popular adoption, e.g. self-regulation, best practices,

transparency, sustainable management, good governance, etc.

5. Industry standards are a set of criteria within an industry relating to the functioning

and carrying out of operations in their respective fields of production. It is the generally accepted

requirements followed by the members of an industry. It provides an orderly and systematic

formulation, adoption, or application of standards used in a particular industry or sector of the

economy.

188 The Principles of Best Practices and Codes of the World Bank is available at http://rru.worldbank.org/PapersLinks/Codes-Best-Practice/. Accessed on December 28, 2008. 189 The global golf tourism market is worth over USD17 Billion, according to the International Association of Golfing Tour Operators (IAGTO). Visit http://www.onecaribbean.org/content/files/Golf.pdf and IAGTO portal at http://www.iagto.com/. Both sites were accessed on May 18, 2013.

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6. Maintenance and Operation Stage includes the monitoring and supervision of the

golf course, submission of reportorial requirements, compliance to water and chemical

regulation, wastewater treatment, registration and licensing of securities to be sold as

membership shares, operation and maintenance of turf grass, rehabilitation and repairs, etc.

7. Planning Stage includes the conceptualization of the project, preparation of business

plan and feasibility study, procurement of development permits and licenses from various

government agencies, preparation of detailed design work, contractor selection, construction

inspection, financial evaluation and approval, outlining layout plan, project inspection, etc. It is

also during this stage that the project proponent submits the planning or EIA application to

relevant agencies.

8. Regulation is defined as the act of regulating; a rule or order prescribed for

management or government; a regulating principle; a precept.190 At its broadest, regulation is

used to refer to any governmental rules, which seek to organize or control behavior.191 At its

narrowest focus, regulation is a sustained and focused control exercised by a public agency over

activities that are valued by a community.192

9. Self-Regulation (self-regulating), adj. means regulating itself without outside

interference, controls or regulations.193 In the context of golf course management, it is the

voluntary act or restraint of the industry or the golf club itself, to control or regulate their

development activities by utilizing best management, sustainable practices and standards, e.g.

substantial reduction of the use of water, chemicals, sand and ethical use of the land.

10. Sustainable Golf Courses maybe defined as golfing complexes that are perceived to

work with nature, which, among others, utilizes, adopts and promotes the minimal or marginal

use of chemicals, water, sand, hybrid turf grasses for turf management; growing of fruit-bearing

trees and vegetables in open spaces; protecting ecosystem and wildlife habitat; utilization and

development of adequate (standard) land area; promotes best practices, transparency, good

governance and sustainable turf management. 190 Black’s Law Dictionary, p. 1009. 191 See, C. Harlow and R. Rawlings, Land and Administration, 2nd edn, London, Butterworths, 1997, at p.295. 192 P. Selznick, “Focusing Organizational Research on Regulation” in R. Noll (ed), Regulatory Policy and the Social Sciences (Berkeley, Cal. University of California Press, 1985), p. 363. 193 Webster’s Desk Dictionary, 2001, Page 411

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11. Traditional/Conventional Golf Courses are golf courses, which uses the “traditional”

or standard method of turf grass management, conveniently called “turf science”; regular or

standard application of chemicals, also known as “cultural practices”; use of water, use of hybrid

grass; construction or integration of hotels and residential estates in the golf course, which

necessitates the utilization of a large tract of land and massive consumption of water194.

1.2 Explanations and Elaboration of the Analyses

Currently, no legal scholarship exists involving law and governance in golf courses. Thus, for

purposes of this dissertation, I propose that law and governance in golf courses should be

understood to include the (1) enactment or codification of laws and regulations; (2)

implementation and enforcement, (3) institutional governance, which include the administration

by state administrative bodies based on monitoring, compliance and enforcement regimes, (4)

internal governance in the golf course industry, i.e., industry norms and self-regulation, which

include self regulation, transparency, good governance, benchmarking, best practices, market

demand, incentives and disincentives (“carrot and stick”), voluntary undertakings to conduct

Biodiversity Assessments; certifications as wildlife and bird sanctuaries, among others, and (5)

NGO and civil society participative governance.

Self-regulation and best management practices are non-binding rules observed voluntarily,

which aims to encourage innovation so as to raise levels of efficiency and competitiveness of

corporations. However, involuntary regulation is more policy than law yet more private

enforcement results in more compliance because it raises the probability of detection and

prosecution of violations.195 Civil society and the NGO sector are included owing to issues about

public participation and consultation, and how the government addresses these rights and

concerns.

Building on the Robinson’s and Francesch-Huidobro’s framework of analysis, the following

questions are addressed, namely:

A. First Question: What are the elements or determinants of law and governance in golf

courses?

194 Golf course resorts have been in vogue in other countries a long time ago. It is a recent phenomena in Southeast Asia. 195 W. Naysnerski, and T. Tietenberg, “Private Enforcement of Environmental Law”, Land Economics. 1992, 68 (1): 24-28.

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This thesis argues that the elements or determinants of law and governance can be examined

from the existence of (1) golf course related laws, which includes hard, soft, international,

regional, national or local; (2) institutional governance or government administration based on

monitoring, enforcement and compliance regimes, (3) industry norms or golf course

management, which can be gleaned from industry norms best practices, benchmarking, good

governance, corporate social responsibility measures, sustainable management, ethical and

responsible utilization of land, water, sand, chemicals, hybrid turf grass, etc., and 4) Public

consultation through NGO and civil society participation.

In Chapter III, Part I and II (Comparative Evaluation and Analyses of Environmental

Frameworks), the golf related laws are discussed and evaluated extensively, from the existence

of relevant and applicable MEAs to regional instruments, and specifically, the national laws and

regulations of the four subject countries. Policy can be reviewed through white papers issued by

the government. Government administration is identified through the existence of government

agencies or bodies tasked to implement and enforce laws and regulations involving golf courses,

including local government control, supervision and administration. These agencies are named

and the delegated authorities are discussed and critically analyzed and evaluated. Collaboration

and cooperation mechanisms are reviewed and analyzed based on outcomes and results of

governance, i.e., jurisdictional overlaps, conflicts and turf wars.

B. Second Question: How can we locate/verify the law and governance practices in golf

courses?

This thesis proposes that these practices may be verified when we compare traditional and non-

traditional golf courses in terms of planning, construction/development and

operation/maintenance of golf courses. Domestic enforcement and compliance plays a pivotal

role in golf course governance. Empirical research disclosed these practices, particularly during

visual inspections and personal interviews of golf course operators, managers, suppliers and

players in the Philippines, Thailand, Viet Nam, Singapore and the United States of America.

News accounts about these golf courses maybe reviewed online, through websites of particular

golf clubs and national golf associations and federations, including from the formal golf world

bodies, the Royal and Ancient Golf Club of St. Andrews and the United States Golf Association

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(USGA). Some government agencies have published the names of golf clubs, which were fined

or imposed penalties for violations of law and regulations196.

C. Third question: How can we compare these practices?

This thesis proposes that golf practices may be compared in terms of enforcement, compliance

and/or application outcomes, for example, Adequacy, Coherence, Effectiveness or

Fragmentation, by using the cases of Philippines, Thailand, Viet Nam and Singapore. Case

studies of three (3) golf clubs in each subject country are supplemented by evaluation of laws

and regulations, as well as government administration.

1.3 Benchmarking the Elements or Determinants

The elements or determinants actually provide the benchmark or standard with which to

measure or gauge the adequacy, coherence, responsiveness and effectiveness of law and

governance in golf courses. These may be applied by using the classification of the stages of golf

course development and operation, which was designed for this thesis. This writer, in the course

of her decades-long involvement with the golf course industry, has devised, collected or

gathered numerous information and data, which have been used for this classification.

This writer suggests that during the Planning stage, various laws and regulations MUST apply

to ensure that permits, certifications and licenses are obtained before golf courses are developed,

i.e. an Environmental Impact Assessment/Study (EIA/EIS) is prepared; feasibility study (FS) or

cost-benefit analysis (CBA) is submitted; as well as the archeological impact assessment (AIA)

(where relevant); biodiversity identification of ecosystems and assessment; identification of

species, monitoring and protection; including a preliminary review and assessment of the land

use planning laws, planning application, land use zoning and classification; land utilization and

re-zoning requirements, among others.

This writer also suggests that various laws and regulations MUST also apply during the

construction and development stage to ensure that there is a considerable reduction in the

removal of top-soil or earth moving; no forests or trees are felled un-necessarily; fewer habitats

and eco-systems are destroyed; riverine and water sheds are protected, secondary forests are

maintained; fewer ornamental plants are grown, fruit-bearing trees are planted; water catchments

196 Minh Tam, “Golf Courses Faced Green Grilling”, Vietnam Investment Review, August 29, 2010. Visit http://www.vir.com.vn/news/business/golf-courses-face-green-grilling.html. Accessed on April 15, 2013.

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are built; waste treatment facilities are installed; coastal and marine areas are not reclaimed in a

manner that damages the intertidal flats, corrals and reefs; conservation systems for habitat are

maintained; stewardship of biodiversity is ensured, among others.

Finally, this writer suggests that the laws and regulations during the maintenance and

operation stage MUST require the minimal use of chemicals (fertilizers, pesticides, herbicides,

fungicides;) marginal use of hybrid turf grass (limited to tees and greens); minimal use of

freshwater for irrigation and watering of fairways; standard water use for greens and tees; sand-

capping only of tees and greens, minimal use of sand (silica, crushed shell or marbles) for top-

dressing; construction of rain-water catchments, lakes or ponds; installation of flow-meters for

groundwater extraction; and the growing of fruit-bearing trees and vegetables in open spaces.

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CHAPTER II, PART IV CASE STUDIES

1.1 Introduction 1.2 Comparison and Evaluation 1.3 Summary

Abstract Three golf courses have been pre-selected and identified in each subject countries. For an empirical collection of data, the case subjects were all inspected and the managers or course superintendents were interviewed personally during ocular inspection. 1.1 Introduction

Case study is an ideal methodology adopted in this thesis, the specific types of which are

Exploratory, Explanatory, Descriptive197 and Collective.198 Thus, three golf courses have been

visited in each subject country, and personal interviews were conducted with golf course

managers and course superintendents for more than seven weeks. The golf courses were chosen

owing to their regulatory, as well as ecological, historical, ethical, social and cultural importance

and particularly, their impact on the environment. The course maintenance activities, whether

traditional or sustainable, have been identified in this dissertation.

In this Chapter, the following information and data gathered or collected from the twelve (12)

golf courses have been identified, examined and evaluated for purposes of establishing existing

and prevalent trends and practices in golf courses, which would point out the “traditional” or

conventional nature of golf courses, as against sustainable ones. The characteristics or features

also reveal the nature of the ecological, historical, ethical and cultural impact of the golf courses,

namely: (a) The extent and location of the land area for development and operation; (b) Former

land use classification of the area (forest, agricultural, marginal); (c) Type of turf grass used

(hybrid or indigenous) for the tees, greens, fairways and roughs; (d) Types of trees planted on

the fairways (ornamental, hard wood or fruit bearing); (e) Identification of architect, landscape

and design (local or foreign companies); (f) Number of lakes, ponds and lagoons; (g) Number of

197 In exploratory case studies, fieldwork, and data collection are undertaken which are considered as a prelude to social research. See Winston Tellis, Introduction to Case Study, The Qualitative Report, Vol. 3, No. 2, 1997. Also available at http://www.nova.edu/ssss/QR/QR3-2/tellis1.html/. Accessed on December 15, 2010. Explanatory case studies may be used for doing causal investigations. While Descriptive cases require that the investigator begin with a descriptive theory, which must cover the depth and scope of the case under study. See Robert K. Yin, Applications of Case Study Research. Newbury Park, 1993, CA: Sage Publishing, at pages 3, 29. 198 Robert A. Stake, The Art of Case Research. Newbury Park, 1995, CA: Sage Publications, at pages 1, 49.

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sand bunkers, classification and source of sand used for bunkers; (h) Chemicals used or applied;

(i) Establishment of waste treatment facilities and treatment of wastes; (j) Water resource and

supply (ground water, surface water, rain-water catchments); (k) Compliance with laws and

regulations, permitting and license system; (l) Historical and archeological sites located within

the premises of the golf course; (m) Incorporation of hotel or residential estates; (n) Ownership

status of developers and operators (local or foreign owned); (o) Biodiversity assessments; (p)

Establishment of vegetable garden, butterfly farms, bird sanctuaries; (q) Norms of the industry

and self-regulation, e.g. sustainable and best practices, good governance, among others. The

enumeration is non-exclusive.

Thus, the golf courses/clubs have been selected and identified owing to regulatory, ecological,

economic, ethical and social significance. This thesis also looks into “cultural practices” or turf

grass management and inquires about “traditional practices”, e.g. grant of honorary

memberships to Heads of States and other high-ranking government officials. An empirical

research, this paper conducts personal interviews of club managers and courses superintendents.

The series of interviews, counter-checking and discussions in golf conferences provide a healthy

avenue for sharing and validation of data on turf grass management.

The limitations of the case studies should also be noted - there are club executives and managers

who refuse to share “confidential” information albeit data are verifiable through the various

agencies of the government with direct and indirect dealings with golf clubs, e.g. water

consumption and usage, water bills, water quality tests; chemical suppliers for purchases of

pesticides, fertilizers, fungicides, herbicides and similar chemicals, registration of chemicals and

applicators. Another research should look into this aspect, including a study on the impacts and

consequences of chemical use on the health and wellness of ground maintenance workers and

the players.

1.2 Comparisons and Evaluation

A. Philippines

Three golf clubs in the Philippines have been selected owing to regulatory, ecological, social,

ethical and cultural impact to the environment, specifically, compliance with PD 1586, as

amended and expanded, on EIA/EIS. Eastridge Golf Club appears to have not complied with the

Environmental Compliance Certificate (ECC) requirements for its man-made water catchments.

It appears to have violated various archeological protection laws after a tunnel was carved on the

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protected Petroglyphic Rockshelter. Meanwhile, Santa (Sta.) Elena Golf Club did not obtain the

mandatory water permit from the water agencies owing to the admission of their management

executive that the club draws water from the National Irrigation water dikes, which under the

law are intended for the use and enhancement of agricultural production.

The third case study, the TAT Filipinas Golf Club, was constructed in 1962. At the time of the

construction no ECC requirements were imposed by the regulatory agencies of the government.

However, the transformation into a sustainable golf course in 2008 has placed the golf club in

the international limelight, and has become the model for sustainability in golf courses.

Table 1.16 Philippines Case Studies

Golf Course Area Features Type of Grass Course

Design Component

TAT Filipinas

Golf Club (1962)

• 79 has (195.213 acres)

• 18 holes • 72 tees • silica sand for

bunkers • 79 sand taps 2 practice greens

• Greens - paspalum - tifdwarf - tifeagle - zoysia • fairways are

planted with indigenous (local)

grass

• Sei-ichi Inoue • Stand alone golf course

Eastridge Golf Course

(1990)

• 80 has • (197.6 acres)

• 18 holes and greens • 72 Tees • Powdered white sand traps • Driving range • pitching and putting greens

• Tifeagle Hybrid for the greens

James Martell (USA)

• Hotel • Residential • Casino

Sta. Elena Golf Course (1990)

• 260 has (642.5 acres)

• 27 holes and greens • 108 Tees • white sand • driving range

• Wall-to-wall Bermuda grass for fairways

• Dwarf Bermuda (Tiff eagle) for the greens

Robert Trent Jones Jr.

• Residential estate

1. TAT Filipinas Golf Club199

The Club is situated in San Pedro, Laguna and was built in 1962. It is one of the most

challenging 18 holes and par 72 layouts in the country. TAT Filipinas was rehabilitated as a

199 Visit the golf club website at http://www.tatfilipinas.com/. Accessed on March 25, 2013.

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privately owned golf club in 1992 exclusively hosting Japanese expatriates. There are two major

lagoons integrated in its design and landscape, as well as twenty-one (21) ponds for water

impounding purposes. These ponds and lagoons are tributaries to nearby Laguna Lake.

Meanwhile, the Club grants honorary membership to the President of the Philippines.

In July 2008, TAT Filipinas introduced sound ecological practices and sustainable management.

The transformation resulted in major reduction of groundwater extraction200 and lesser chemical

dependency.201 A professional group was commissioned to conduct the Biodiversity Assessment

of the entire golf course, which became the basis for the monitoring, management and protection

of the identified flora and fauna found in the seventy-nine (79) hectares (195.21 acres) golf

course, such as migratory birds, monitor lizards, uncommon and endemic plant species.202 Fish

are also grown organically in the water-tested ponds for consumption of the club’s employees

and the informal settlers residing nearby. The open spaces have been planted with organic

vegetables while the rest are naturalized habitats – declared by Management as “no go” areas for

players and maintenance workers. For its groundbreaking and pioneering efforts on

sustainability, TAT Filipinas Golf Club received the Inaugural Asia-Pacific Golf Course

“Custodian of the Environment Award”, which was underwritten by the government of the

Royal Sultanate of Brunei, presented by the Asia-Pacific Golf Conference Organization and

certified by the International Sustainability Council and Audubon Lifestyles, in Brunei

Darussalam on December 11, 2012203.

TAT Filipinas complies with the SEC reportorial requirements204 and pays proper corporate,

property and income taxes.205 It is also one of the few courses with complete groundwater

200 Normal requirement for 18 holes is 600,000 gals per day. TAT’s groundwater Production is 13.3% of the requirement and usage is only 73% of the production. There is 90.3% water conservation through reduction of irrigated areas. 201 The management of TAT Filipinas adopts the biological approach to treatment and care of the greens. 202 Copy of 2008 Biodiversity Assessment is attached as Appendix “4”. 203 Proof of non-traditional golf course http://www.bruneimipr.gov.bn/index.php?option=com_content&view=article&id=555:asia-pacific-golf-summit-dinner-and-award-presentation-for-the-inaugural-custodian-of-the-enviromment-award&catid=79:news-highlights http://www.theborneopost.com/2012/12/12/call-to-make-golf-courses-environmentally-sustainable/ 204 Visit Securities and Exchange Commission to check status of all registered Philippine corporations at https://ireport.sec.gov.ph/iview/index.html. Accessed on March 26, 2013. 205 TAT Filipinas has been named by the Bureau of Internal Revenue (BIR) to be within the Top 10,000 private corporations in the Philippines for Expanded Withholding Tax (EWT) in 2007, Top 100 Corporation of San Pedro, Laguna and Top 35 Taxpayer of San Pedro, Laguna. Read Personal interview with Jose P. Dagdagan, Operations Manager. Transcript of interview is attached as Appendix “5” and Sustainable Turfgrass Management Program, with Water Comparative Study as Appendices “5-A”.

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extraction and operation permits from the NWRB206. It has consistently paid groundwater

production assessment207, while the rest of the golf clubs await the decision on the legality of the

provision before the Supreme Court.208

2. Eastridge Golf and Country Club209

Formerly comprising secondary forests, marginal and agricultural land, the Club is situated in

Binangonan, Rizal Province. It is an 18-holes par 72 golf course, constructed in 1990 by carving

out rock formations and mountain ridges. The course’s distinct features are two man-made

lagoons - in the front 9 holes, spanning 1.3 hectares (3.2 acres) and at the back 9 holes at 2.3

hectares (5.7 acres). The club hosts a few national tournaments. The Armed Forces of the

Philippines - Retirement and Separation Benefit System (AFP-RSBS) invested in Eastridge Golf

Club amounting to PHP 877.5 Million. As part of the tradition, the Club grants honorary

membership to the President of the Philippines.

There is a law210, which requires project proponents of golf courses to prepare and submit an

Archeological Impact Statement (AIA) in order to obtain certification or clearance from the

National Historical Commission (NHC).211 Thus, the NHC certification or clearance must state

that, “no historical or archeological sites will be affected by the development of the proposed

project”, otherwise, the EIA, and subsequently, the project will be disallowed.212 The AIA

mechanism is instructive and maybe considered for the protection of heritage sites in golf

courses.

206 TAT Filipinas has the following Water Permits Nos. 1516, 1517, 15708 and 15717; Flow Meter Serial Nos. 001491, 001492, 001493 and 001494. 207 Section 39, PD 198 (1973), Local Operation and Control of Water Systems and the formation of Local Water Districts Act imposes fees and charges for extraction of groundwater. Most golf clubs oppose the imposition and has filed a case in court questioning the legality of Section 39. The case has reached the Supreme Court in Dasmarinas Water District Case. 208 In Dasmarinas Water District v. Monterey Foods, 565 SCRA 624 (2008), the Supreme Court remanded the case to the lower court for continuance of proceedings. Copy of Supreme Court decision is available at http://sc.judiciary.gov.ph/jurisprudence/2008/september2008/175550.htm. Accessed on May 13, 2013. 209 Visit the official website of Eastridge Golf and Country Club at http://www.eastridgegolf.com/. Google map shows the golf course at http://maps.google.com/?t=k&om=0&ll=14.532929,121.186693&spn=0.002534,0.003862&z=18. Both sites accessed on May 17, 2013. 210 EIA Law, PD 1586 and related Administrative Orders. 211 The Commission was established under the National Historical Commission Act, Republic Act 4368. 212 There are changes in the procedural requirements under the 2007 Revised Manual of Procedure for DAO 2003-30. Nonetheless, the certification or clearance is still required. A thorough discussion of the new process is discussed Chapter III.

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The Angono Petroglyphs213 - considered as a site of historical importance and declared a

national cultural treasure, was carved on the wall of the Rock shelter within the golf estate.

While it is not included as a World Heritage site, the Petroglyph Rockshelter is a highly

significant cultural landmark included in the list of National Cultural Treasure and World

Inventory of Rock Art.214 Human and animal-like figures are engraved on the rock wall made of

volcanic tuff and these figures are considered as the oldest known art work in the Philippines

dating back to circa 3,000 BC.215 The World Monuments Watch and the World Monuments

Fund also declared the Petroglyphs as one of the most imperiled historic sites in the world.216

This writer conducted a visual inspection of the area and discovered that the Rock shelter

separates the front and the back nine holes of the golf estate. There is a Petroglyphs Museum

situated adjacent to the Rock shelter cave. The Museum history details, in pictures mounted on

the wall, that in 1994, a tunnel was dug 185 feet from the Rock shelter, blasted by dynamite.217

From the main entrance of the tunnel (front nine holes) to the petroglyphs the distance is

approximately 435 feet. The entire length of the tunnel is 250 yards and the diameter of the

mouth of the cave is approximately 8.5 x 120 yards, at both entrances, shrinking into

approximately 7 x 100 yards after around ten yards from each mouth. Protruding blue-colored

PVC pipes can be seen embedded on the ground cutting across the tunnel. Upon verification, the

person 218 detailed at the Museum disclosed that the “irrigation system runs through the

connecting PVC pipes to the other side of the tunnel”.

The Philippines is a signatory to the World Heritage Convention in 1985. Although the

Petroglyphs is not listed as a World Heritage site, the blasting of the Rock shelter is clearly a

violation of several historical and archeological preservation laws, which will be discussed in the

213 The Petroglyphs are specifically identified in the Site and Shrine Law, PD 260 (1973), as amended. It is also declared a national culture treasure by Presidential Decree 260 (1973). 214 The Nation Museum of the Philippines – Angono Petroglyphs, available at http://www.nationalmuseum.gov.ph/nationalmuseumbeta/ASBMD/Angono.html. Accessed on May 17, 2013. 215 Id. 216 Visit World News at http://wn.com/Angono_Petroglyphs. Accessed on May 17, 2013. 217 Photos of blasting in 1994 were posted inside the Petroglyphic museum. Recent pictures of petroglyphs are attached as Appendix “6”, “6-A”, “6-B”, “6-C”, “6-d”, “6-E”, “6-F”, “6-G”, “6-H” and “6-I”. 218 Security Officer refused to give his name and identity, for fear of retaliation by officers of the golf club.

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immediately preceding chapters. 219 Since the petroglyphic cave has been specifically

identified220, the destruction thereof by the golf club has administrative, civil and criminal

consequences. The Department of Natural Resources and Environment implements the law on

EIA/EIS law.221 The ECC requirements under PD 1586, as amended and expanded, has

specifically included the obligatory submission of certification from the National Historical

Institute (NHI) that would state that the “proposed golf course site is not a protected historical

area” hence, the golf course project will be allowed to proceed. The non-submission of the

certification will result in the denial of the EIA application. As to how the ECC certifications

and NHI clearances were obtained by the Eastridge Golf Club in 1990’s despite the clear

violation of laws are separate issues beyond this research.

Another ecological concern involves the groundwater extraction without the requisite NWRB

water permit222. Moreover, the two man-made impounding lakes were built by the golf club high

up in the foothills of the golf course. An official of the National Water Resources Board

(NWRB) admits that the dams are operated without the necessary groundwater extraction

permits.223 When this writer went to DENR-EMB to verify whether the dams were built with an

Environmental Compliance Clearance (ECC), the answer was in the negative. Considering the

length, depth and the volume of water stored in the impounding dams, these pose risks and

endanger the residential areas located below the dam.

It is clear that the DENR-EMB officials failed to monitor the activities of the golf club before

the issuance of the ECC. There were no cases filed against those responsible for the destruction

of the Petroglyphic Rockshelter. There were no recorded protests or complaints filed by various

environmental NGOs in the country. In fact, an Environmental Compliance Certificate was

issued to the golf club! It would appear that criminal, civil and administrative sanctions can be

brought against the officers of the Club224 who authorized the blasting of the Rockshelter and the

219 National Historical Commission Act, RA 4368 (1965); Cultural Properties Preservation and Protection Act, RA 374 (1974), Sites and Shrines Law, PD 260 (1973), National Museum Law, RA 8492 (1998) and Sections 12 and 16, General Welfare, Local Government Code, RA 7160, (1991). 220 Site and Shrines Law, PD 260, s.1 221 DENR-DAO 2003-30 implements the EIA Law, PD 1586 (1978). . Note however, that under the 2007 Revised Manual of Procedure for DAO 2003-30, the NHI certification is still required although prior submission to DENR has been modified. 222 NWRB List did not include the name of Eastridge Golf Course. 223 Personal interviews of Emmie Ruales, Policy Analyst, and Engr. Gino Mangosing, NWRB on March 22, 2009. Transcript of interviews are attached as Appendix “7”. 224 Cultural Properties Preservation and Protection Act, RA 4846, s.57. This is a flagrant violation of Executive Order 192 (1987) and the EIA Law, PD 1586, etc. The NWRB is also remiss in its duty by not

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construction of the water catchments, as well as against the officials225 of DENR-EMB who

failed to regulate, monitor and inspect the premises of the club despite numerous reports about

the destruction. As to reportorial compliance for the yearly submission of the General

Information Sheet and Financial Statements to the Securities and Exchange Commission (SEC)

the club has not updated its reports.226

3. Santa (Sta.). Elena Golf Course227

The golf course constructed in 1990 is located in Sta. Rosa, Laguna. It was built on a former

sugar cane plantation and now comprises a combination of three nine holes. The club received

an Audubon Cooperative Sanctuary Program Certification. Sta. Elena is a private club and many

magazines and newspapers consider the club as one of the best-maintained courses in the

country by magazines and newspapers. Sta. Elena claims that it adopts “turf grass science

principles” geared to improve the turf conditions. The club also hosts national tournaments and

similarly grants honorary membership to the President of the Philippines.

This research finds that Sta. Elena Golf Club has no record of groundwater extraction permit

from the NWRB228 as required under PD 198, the Local Water District Code. The Club Manager

explains that they do not extract ground water and admits that it sources water from the National

Irrigation Administration (NIA) dikes.229 Under the Irrigation Law, RA 3601, as amended, the

issuing a Cease and Desist Order (CDO) against the Club as mandated by the Water Code, PD 1067 (1976). 225 See The Administrative Code of the Philippines, EO 292 (1987). Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with the utmost responsibility, integrity, loyalty and efficiency and with patriotism and justice and live modest lives. (Section 1, Art. XI, Constitution. Section 32, Chapter 9, Book I, Administrative Code states that, “no subordinate officer or employees shall be civilly liable for acts done by him in good faith in the performance of his duty. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of its superior (Sec. 39). In one case, the High Court ruled that, “respondent's misconduct, misfeasance, or malfeasance in the performance of his official duties consisting of dishonesty, inefficiency and incompetence in the performance of official duties and conduct prejudicial to the best interest of the service are grounds for dismissal under Section 11 (b), pars. 1, 8 and 27, Civil Service Law (P.D. 807). Unknown Municipal Councilor of Domingo, Nueva Ecija v. Almonioa, 212 SCRA 330). 226 Supra, note 204. 227 Visit official website of the golf club at Sta. Elena Golf Club at http://staelena.com/. Accessed on May 17, 2013. 228 In an email dated March 27, 2009, Engr. Gino Mangosing Jr, NWRB provided a list of water permits issued to golf clubs/courses. Sta. Elena Golf Course has no record of water permit from the agency. See Appendix “8”. 229 Questionnaire signed by Mr. Junie Ledesma, General Manager of Sta. Elena Golf Club, whereby he admitted that the golf course is a recipient of water supply from the National Irrigation Authority (NIA). Copy of Reply to written questionnaire is attached as Appendix “9”.

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NIA dikes are built for purposes of agricultural production230. Moreover, to address the national

water crises, which the National Capital Region (NCR) has been declared to be in a “critical”

water level, the National Water Crises Act, RA 8041 mandates that the taking of water, in this

case the NIA dike, shall be considered pilferage.231

As to how the Club was able to connect to the NIA dike is a significant issue that must be

resolved in a separate investigation. The unauthorized and irregular drawing of water from the

NIA dikes is more inappropriate given the fact that Sta. Elena Golf Club is a very exclusive

private golf club, which sells Playing Membership Shares at hefty prices. Farmers in Central

Luzon have incessantly complained about the lack of supply of water during the dry season and

the high prices of irrigation fees being charged for agricultural activities while a very rich club

gets water from the dikes for free. Sta. Elena charges higher monthly assessments from its

members than other regular golf clubs. There have been no investigations conducted and no

prosecutions were made. The “illegal connection” to the NIA dikes has been on-going since the

construction of the golf course in 1994, according to unnamed industry sources”. Meanwhile,

with regard to the submission of the yearly General Information Sheet and Financial Statements

to the Securities and Exchange Commission as required under the Securities Regulation Code,

RA 8799, the golf club has not been complying with the annual reportorial requirements232.

230 The relevant laws violated in this case include the Irrigation Law, RA 3601 (1963), the Irrigation Crisis Act, RA 6978 (1991) and the National Water Crisis Act, RA 8041 (1995). 231 National Water Crises Act, Sec. 8 on Anti-Pilferage. - It is hereby declared unlawful for any person to: Destroy, damage or interfere with any canal, raceway, ditch, lock, pier, inlet, crib, bullhead, dam, gate, service, reservoir, aqueduct, water mains, water distribution pipes, conduit, pipes, wire benchmark, monument, or other works, appliance, machinery buildings, or property of any water utility entity, whether public or private. Section 11 further provides that the Water utility concerned shall have the right and authority to disconnect the water services, five (5) days after-service of written notice to that effect, except on Sundays and holidays, without need of a court or administrative order, and deny restoration of the same, when a prima facie evidence of theft or pilferage shall have been established in accordance with Section 8 hereof: Provided, That a notice shall have been issued even upon discovery for the first time of the presence of any of the circumstances herein enumerated: Provided further, That the water service shall not be disconnected or shall be immediately restores upon deposit, by the person concerned, of the concerned, of the difference in the billing made by the water utility concerned: Provided, finally, That the deposit shall be credited against future billings , with legal interest thereon where the alleged theft, pilferage or current diversion has not been committed, without prejudice to being indemnified for damages in accordance with the Civil Code and other existing laws. A written notice of seventy-two (72) hours is necessary to effect water service disconnection upon the discovery for the second time of any of the circumstances enumerated in Section 8 hereof. 232 Supra, note 204.

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B. Thailand

The three golf clubs are chosen for the case study owing to their regulatory, ecological, social,

and cultural impacts to the environment. Thailand was also selected because many golfing

magazines and newspapers consider Thailand, as the ultimate golfing destination in Asia. The

three golf clubs likewise utilize vast tracks of land, complementing residential estates. Foreign

golf course architects also design the three case studies. Table 1.17 shows the case studies of

golf courses in Thailand.

Table 1.17 Thailand Case Studies

Golf Course Area Features Type of Grass Course Design Component

Navatanee Golf Club

(1975)

80 has (197.6 acres)

• 18 holes • 72 tees

sand bunkers

• hybrid 419 on the fairways TifDwarf on the greens

Robert Trent Jones Jr.

320 has (790.7 acres)

residential estate

Royal Golf & Country Club

(1993)

320 has (790.7 acres)

• 18 holes • 72 tees, par 72 • 39 sand traps • 18 greens • 72 tees • driving range

• Hybrid turf grass

Chohei Miyazawa

Hotel Residential

Thai Country Club

(1996)

50 has (125 acres)

• 18 holes • 72 tees • 70 sand traps • Driving Range

• Seashore Paspalum

Denis Griffifths 800 has (1,987.8 acres)

residential

1. Navatanee Golf Club233

The Club is situated in Khet Kannayao, Bangkok. It is an exclusive club built specifically to host

the 23rd World Cup of Golf in 1975. The golf course transformed the agricultural paddy fields

into a 6,902-yard championship course of international standard. There are 1,093 members

holding “playing rights” only. Navatanee has a huge freshwater resource, with lakes and lagoons

supplying freshwater for irrigation or watering of the golf course. During rainy season, heavy

flooding results in pumping of water out of the golf course into open canals. The club also hosts

national tournaments.

Pracha Bansoompong, the Course Superintendent, grows vegetables in his nursery area, thus

making some efforts towards sustainability practices. He also claims that the club complies with 233 Visit the website of the golf club at http://www.navatanee.com/. Accessed on May 17, 2013.

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the applicable chemical laws and regulations of Thailand and that the Club “buys only registered

chemicals and subscribes to low maintenance program 234 since fertilizers have become

expensive in Thailand”. This statement is treated with caution since Thailand is generally known

for its tax-free chemical importation policy, i.e. taxes, duties, VAT, etc. Compared to

Philippines, Viet Nam and Singapore, chemicals are cheaper to procure in Thailand. During the

visual inspection, this writer noted the use of colorants on the greens, tees, fairways and roughs.

This was pointed out and was admitted, owing to players demand for lush greenery in the golf

course235.

2. Royal Golf & Country Club236

The Club is located in Bangsaothong, Samutprakarn. The wide, undulating fairways and

spacious greens consist of sparkling lakes and lush greens. It opened in April 1993 with 18 holes

and par 72, with 39 large sand traps/bunkers. Thus, the golf course requires a considerable

supply of sand for replenishment and topdressing of the greens, tees and fairways. The tees and

fairways are planted with hybrid turf grass, which is kept to roll year round at ten on

stimpmeter.237 In golf course “language”, a lower height of 10 at stimpmeter means a faster roll.

As the green speed increases, so does the chance of stress to the turf grass. These necessitate a

considerable application of chemicals, which might impact on a number of lakes and ponds

inside the golf course, as well as their outflow to major rivers and tributaries.

As the club host regular national tournaments, it is expected that the club is adopting massive

chemical application program. The club also grants honorary membership to heads of

government.

234 Pracha Bansoompong disclosed that “the club reportedly spends 18 Million Baht (USD596,619) (SGD769,998) for annual maintenance cost”. He also complies with the requirements of Hazardous Substance Act, B.E. 2535 (1992) and the Fertilizer Act, B.E. 2518 (1975). Transcript of personal interview of Pracha Bansoompong is attached as Appendix “10”. 235 One of the suppliers of colorants is Colorbiotics. Visit http://www.colorbiotics.com/GolfCourse.html.. Accessed on May 28, 2013. 236 Official website of the golf club available at http://www.royalgolfclubs.com/web/th/index.php. Accessed on May 17, 2013. 237 Read at http://www.golf2thailand.com/Samutprakarn-golf/the-royal-golf-country-club.asp. Read USGA Stimpmeter Booklet at http://en.wikipedia.org/wiki/Stimpmeter. http://www.usga.org/course_care/articles/management/greens/Stimpmeter-Instruction-Booklet/. Accessed on May 17, 2013.

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3. Thai Country Club (TCC)238

The Club is located in the Bangpakong District, Chacheongsao. It was originally a flat

agricultural land before the construction of a golf course in 1996. It is a joint venture between

the Phataraprasit Group and the Hong Kong and Shanghai Hotels.239 The 7,157 yards golf course

designed under United States Professional Golf Association (USPGA) standards was opened in

1996 as a private membership club. It is considered as one of the best-maintained and serviced

courses in Asia with computer-designed hybrid greens, abundant water and sand hazards. The

club hosts national and international golf tournaments. Thai Country Club is one of the eight

premier golf clubs being promoted by the Tourism Authority of Thailand (TAT) for the “Golf in

a Kingdom, the Thai Golf Experience” package.240 The club undertakes to get Audubon

Cooperative Certification.

The Club is chosen as a case study owing to its massive use of hybrid turf grasses in its fairways,

tees and greens, which form a large swathe of seashore paspalum imported from Hawaii.241 The

abundance of turf grasses meant heavy water and chemical dependency for turf management.

The club has 1000 members242 consisting of 60 per cent Japanese, 20 per cent locals, 18 per cent

Koreans, while other international guests comprise at least two per cent. The club’s chemical

rate of application consists of eighty (80) per cent inorganic insecticide and fertilizer imported

from US. General Manager Jean Pierre Schneider disclosed that TCC “mixes fertilizer with

twenty (20) per cent cultured worms”. He also agrees that “to be green not only is fashionable

but it is a good marketing tool”, a ‘“win-win” situation since one gets good profit, decrease

operating costs and have a better eco-system’. The Club’s green program is in its initial stages,

which started initially as damage control project in 2009 but had gradually increased the build-

up of “environmental zoning” and naturalized habitats for wildlife. TCC is engaged in golf

tourism (22 per cent of players are tourists) with an annual average round of play at 60,000.

238 Visit the official website of the golf club at http://www.thaicountryclub.com/scripts/default.asp. Accessed on May 17, 2013. 239 The Phataraprasit Group is a Thai-owned business conglomerate with extensive business interests, primarily in the distilling industry, banking, ceramics, property development, investment, and retailing while the Hong Kong and Shanghai Hotels’ principal business is the ownership and management of luxury hotels, such as the Peninsula Group. 240 Available at http://www.golfinakingdom.com/. Accessed on May 17, 2013. 241 Personal Interview with Jean Pierre Schneider, General Manager, 88 Moo 1, Bangna-Trad Km. 35.5, Thambon Pimpa, Bangpakong District, Chacheongsao 24180, Thailand, Transcript of interview is attached as Appendix “11”. 242 Schneider disclosed that the club sells “playing rights” only.

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C. Viet Nam

The three golf courses in Viet Nam were selected owing to regulatory, ecological and social

impact to the environment. Foreign golf course architects likewise built the three case studies.

Tam Dao Golf and Resort was fined by the Ministry of Natural Resources and Environment for

failure to comply with the water treatment facilities regulation. The Ministry of Natural

Resources and Environment and the Ministry of Planning and Investment have placed a cap on

golf course construction until 2020. However, news reports disclosed that more golf courses are

being developed in Viet Nam.

Table 1.18 Viet Nam Case Studies

Golf Course Area Features Type of Grass Course

Design Component

Dalat Palace Golf Course (1922)

7,009 yards

• 18 holes • 72 tees, sand

traps, par 72 • practice greens

• bentgrass greens

Brent Stensen Stand-alone golf course

Chi Linh Star Golf & Country Club (2003)

324 has (800.6 acres)

• 18 greens • 72 tees, sand

traps, driving range

• two 18 holes

• Wintergreen Bermuda for fairways

• TifEagle for the greens

Independent Golf Course

Services

• 5 star-Hotel • 300 villas

Tam Dao Golf & Resort (2005)

350 has (865

acres)

• par 72 • 18 greens, 72

tees, sand traps • driving range

• Saalam Paspalum Greens

• Seashore Seaisle Paspalum 2000

IMG Management

Company

• Resort Hotel • Residential

1. Dalat Palace Golf Club243

The Club was built for Viet Nam’s last emperor in 1922. It is widely known for its classic

design, terrain and bent grass conditions. The course was abandoned twice during the

tumultuous history of the country and initiated its second comeback in 1993 with a multi-million

dollar restoration and expansion by a group of American investors, which introduced the US

standard of turf management and operation.244 Hybrid turf grasses were planted and ornamental

plants were grown. Dalat Palace Golf is a semi-private membership club and is engaged in golf

243 Visit the website of the golf club at http://www.dalatpalacegolf.vn/. Accessed on May 17, 2013. 244 On May 24, 2009, T.W. Hughes, Managing Director of Dalat Palace Golf was interviewed for this paper at the club in Dalat. Transcript of interview is attached as Appendix “12”.

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tourism. Dalat Palace has been hosting national championship games. The club grants honorary

membership to Heads of government.

Managing Director T.W. Hughes laments that Dalat “has only 250,000 residents hence the golf

club mainly rely on tourist golfers”. He also complained that the thirty (30) per cent Consumer

Tax imposed on a round of golf hurts the industry. Hughes also expresses doubt on the wisdom

of environmental campaigns in golf clubs stating that “doing the bird count is good for PR

reasons and mainly for free publicity” and that in general, “people play golf because they want

to play golf”. He also asserts that golf owners are revenue driven industry.

2. Chi Linh Star Golf & Country Club245

The Club is located in Chi Linh, Hai Duong Province. It is spread over a golf estate, carved on a

hill and nestling beside two large lakes surrounded by rolling forest hills. The golf course

opened in 2003. Chi Linh Star’s turf grasses for the tee areas and fairways are sourced from

Australia - the “Wintergreen Bermuda” specie is an extremely strong turf grass type”.246 It is

claimed to “withstand severe weather and soil conditions while second generation "Tiff Eagle

grass” is being used on the greens.247 The club hosts national tournaments. The club grants

honorary membership to Heads of government.

The golf course is sited within the industrial and economic zone in Hai Duong. Ben Styles,

Director for Operations, discloses that the club has 1000 members but only 800 are active; it is a

privately owned club managed by a General Manager with 1000 employees including 400 all-

female caddies who are regularly paid with security of tenure as provided under the Labor laws

of the country. Styles also claimed that the course does not utilize chemicals more than what is

required than conventional practices. He also said that chemical wash- bay areas for machineries

have been installed.

245 Visit the golf club website at http://www.chilinhstargolf.com.vn/. Accessed on May 17, 2013. 246 Personal interview with Ben Styles, Director for Operations on May 3, 2009. Transcript of interview as Appendix “13”. 247 Id.

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3. Tam Dao Golf and Resort248

The Club is located in the mountain resort area of Tam Dao, Vinh Phuc Province. The Club

features a championship golf course of 7,200 yards (6,600 meters) with challenging par 72

layouts. The 18 holes championship golf course was designed by IMG249, a sports management

company. Tam Dao showcases lakes, running streams and sand bunkers. The club hosts national

tournaments. The club grants honorary membership to Heads of government. The golf course

was constructed adjacent to the Tam Dao National Park, “winding itself through the natural

terrain of the park’s lowlands”.250

Robert Bicknell, the General Manager, disclosed that the Club has a Waste Treatment Facility

but he did not allow ocular inspection of the area after a request was made, claiming he has other

commitments that day. Nevertheless, Bicknell revealed that, “flash flood occurred a few years

back with waters rushing from the mountains down to the resort”. Tam Dao sells only “playing

rights”. It has 450 employees including caddies who are actually regular employees. Bicknell

claims that the club exercises best practices management with projects such as scholarships for

caddies and training for junior golf. Bicknell notes the low number of players in Viet Nam, as

well as the increasing speculative investments in golf estate development. He also complained

that golf is classified as a luxury in Viet Nam and a round of golf is taxed at 30%.

This paper has chosen Tam Dao Golf Resort because of its massive use of turf grasses, both on

the fairways and on the greens. Recently, Tam Dao was penalized due to non-compliance.251 The

Decree imposed sanctions for violation of environmental protection regulation252 after the

248 The golf club website is available at http://www.tamdaogolf.com/. Accessed on May 17, 2013. During the April 29, 2009 visit to Tam Dao, Robert Bicknell, General Manager and Director of Golf was interviewed. Bicknell writes a column in Teed Off, a newsletter sponsored by the Professional Golf Association of Viet Nam. Visit at http://www.pgavietnam.com/COLUMNS/FTPS%202007/teed_off_25%20November%202007.htm. Accessed on May 17, 2013. Transcript of interview is attached as Appendix “14”. 249 IMG designed over 400 premier private and resort golf courses throughout the world with 191 in Asia alone. IMG managed Tam Dao for several years. It is now independently managed by the Golf Club itself. IMG website at http://www.imggolfcourseservices.com/project/detail.aspx?PID=138. Accessed on May 17, 2013. 250 A nationally declared protected site in Viet Nam, Tam Dao supports 21,982 hectares of natural forest and 1,351 hectares of plantation forest. Visit http://www.activetravelvietnam.com/nationalparks/north_eastern_national_parks.html. Accessed on May 17, 2013. 251 The violation involves Articles 8 and 17, Governmental Decree 117/2009 ND-CP. 252 This is the second time Tam Dao was imposed a fine. In 2009, the Club was fined US$1,000. On August 18, 2010, Tam Dao was fined US$6,000. It is the first golf course to be cited for environmental

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Ministry of Environment and Natural resources (MNRE), through an inspection taskforce253

inspected various golf course projects in Hanoi, Hai Duong, Haiphong, Ninh Binh, Hoa Binh

provinces to verify the implementation of environment, land and water source regulations. The

taskforce actually inspected 19 licensed projects, including the four operating golf courses

located in Hanoi’s Soc Son, Dong Anh, Ba Vi and Chuong My districts and discovered the

violation of environmental protection laws, including non-use of water treatment plants installed

by the golf clubs.

D. Singapore

The golf courses were also chosen owing to regulatory, ecological and social impact to the

environment. All golf courses in this case study are designed and built by foreign golf course

architects and uses a considerable amount of hybrid turf grasses. The lands occupied by the

courses are state properties, leased on long-term basis (30 years). Marina Bay Golf Course was

built on reclaimed land and Kranji Sanctuary sits on wildlife habitat area. Nevertheless, Warren

Golf Club, located inside the Kranji reservoir, is a model for rainwater collection. Thus, the

development and operation of golf courses, within the premises of state properties, which

contain water bodies or man-made reservoirs, have environmental impacts, particularly, in the

release of chemicals to treat and enhance turf grasses. Moreover, there is no EIA legislation in

Singapore that sets the parameters of development activities in water bodies or reclaimed marine

or coastal areas.

Table 1.19 Singapore Case Studies

Golf Course Area Features Type of Grass Course Design Component

Warren Golf & Country Club

(1960, but moved to new

site 2000)

6,234 meters

• 18 holes • par 71, 18 greens, 72 tees • sand traps, driving range, practice greens

Hybrid turf grass

Nelson and Haworth

• Stand-alone golf course • Long term lease from the State

Kranji Sanctuary Golf Course (2004)

43 has (106.3 acres)

• 18 holes • par 72, 18 greens • 72 tees, 64 sand traps • driving range, practice greens

• Hybrid Bermuda for the fairways • TifEagle for the greens

Gary Player • Stand-alone golf course • Long term lease from the State

violation in Viet Nam. Report is available at http://timeout.vir.com.vn/Client/VIR/index.asp?url=content.asp&doc=17547. Accessed on May 17, 2013. 253 The Task Force was created under Governmental Decree 1239/QD-BTNMT (2010)

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Marina Bay Golf Course (2006)

6,542 meters

• 18 holes • par 72, 18 greens, 72 tees • 91 pot bunkers, practice greens, chipping greens, practice bunkers

• Hybrid Greens and fairways

Phil Jacobs • Stand-alone golf course

Source: http://www.golfdigestsingapore.com (2012)

1. Warren Golf and Country Club254

The Warren Golf and Country Club started in Folkstone Road in 1962 as a nine (9) holes golf

course with a driving range. In 1993, the Club moved to make way for the extension of the

National University of Singapore in Kent Ridge. The Warren Golf & Country Club is now

located in 81 Choa Chu Kang Way. It is sited within the Kranji reservoir, a Public Utility Board

(PUB) controlled water catchment. Meanwhile, General Manager Ian Gray255 reveals that golf

club observes and complies with the Workplace Health and Safety Act (2006). The club is trying

to get Audubon Society’s help for an environmental certification while a recycling and

composting program is about to commence. Warren Golf Club observes best practices

management, including the sustainable use of water for watering purposes. It has five water-

impounding dams256, which are used to collect rainwater through an intricate drainage system. It

is estimated that the collected rainwater can last from one to one ½ months. Warren has a pre-

programmed computer system for turf grass watering as it monitors and limits water use,

“according to the needs of the day”. The golf course consumes approximately 564,000 gallons

per day and that during the dry season and in case of critical water level in the impounding

dams, Warren is allowed to tap water from the PUB reservoir for a fee. Owing to Warrens’

location, the PUB randomly monitors water use and quality tests. Warren is in fact covered by

the 2008 PUB Guidelines, which limits chemical usage in golf courses near water catchments.

Warren grants honorary membership to Heads of government.

Warren does not employ caddies instead the club instills discipline and integrates player’s

responsibility by making them carry sand refills for divots, clear bunkers by raking and score

254 The website of Warren Golf Club is available at http://www.warren.org.sg/. Accessed on May 17, 2013. 255 Personal interview with Ian Gray, General Manager and Michael Cabel, Golf Course Superintendent. Transcript as Appendix “15”. 256 There are five water catchments built by Warren Golf Club, as Appendix “16”, namely, Lake A – 180 m, Area – 2,119 m2 and volume capacity of 4,874 m3; Lake B – 350 m, Area -6,608 m2 and volume capacity 15,198 m3; Lake C – 810 m, Area 13,044 m2 and volume capacity of 30,001 m3.; Lake D – 320 m, Area -6,392 m2 and volume capacity of 14,702 m3 and, Lake E – 350 m, Area – 5,490 m2 and volume capacity of 12,627 m3. Total: 2,020 m in Length; 33,653 m2 in Area and 77,402 m3 in Volume.

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themselves. The Club constitution grants honorary membership to the President of Singapore,

Prime Minister of Singapore, Chief Justice and the Founder Shareholder257 although the

Management Committee may invite other distinguished people to become honorary members as

appropriate. As a private golf club, Warren sells membership shares to the public. A Committee

elected by the general membership is managing the Club.

2. Kranji Sanctuary Golf Club258

The Club is located along Neo Tiew Lane 3, Singapore. The National Service Resort and

Country Club (NSRCC) built the Kranji Sanctuary Golf Course (KSGCC) for the national

servicemen of Singapore. Gary Player designed the course, which “emphasized the conservation

and the re-creation of natural habitats”, with new ponds, marshes and water bodies added as

integral part of the course. The club preserves a total of about 18 hectares marshland within the

72 hectares sanctuary.259 It is an Audubon Cooperative certified Sanctuary. There is public

access via a nature trail to designated bird-watching sites while large stretches of swampland in

its natural state are preserved. The club has a waste treatment facility where recycled and

effluent water are used for irrigation. There are lakes inside the golf course, which serve as

rainwater impounding dams. The Kranji Club leases the land from the PUB, and the golf course

occupies 43 hectares (106.3 acres) of the total land area. Thirteen (13) members of the

Management Committee manage the Club. Kranji course registers more than 6,000 players per

month, thus the heavy traffic of players has ecological impact, specifically on turf grasses. The

club hosts national tournaments. The club grants honorary membership to Heads of government.

The Kranji Course was chosen owing to ecological importance - the golf course is situated

within wildlife sanctuary and marshland. The construction of Kranji course in 2002 encountered

strong opposition especially from the Nature Society of Singapore.260 The opposition was

anchored on the fact that the site had been previously proposed for the conservation of the Kranji

Marshes in 1990, which eventually resulted in the designation of the marshland as a Nature Area

in the Singapore Green Plan (1993). The development of the Kranji Course ostensibly reduced

257 Warren Golf and Country Club Constitution, Sections 9.5.1 and 9.5.2. Accessed on August 28, 2010. 258 Visit the website of the golf club at http://www.nsrcc.com.sg/about-the-club/national-service-resort-country-club. Accessed on May 17, 2013. 259 A series of personal interview and e-mail exchanges with Rodney McKeown, Golf Course Superintendent were made in 2009. Transcript of interview is attached as Appendix “17”. 260 See Nature Society of Singapore compromise talks with NSRCC at http://habitatnews.nus.edu.sg/pub/naturewatch/text/a102d.htm . Accessed on May 17, 2013.

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the declared nature areas of Singapore. It also reveals that golf course development is preferred

over nature conservation and habitat protection.

3. Marina Bay Golf Club

The Club is located at 80 Rhu Cross, Singapore. Marina Bay Golf Course is Singapore’s first

and only public golf course. It is located strategically in the heart of the city. The Marina Bay

Golf Club boasts a championship course. It is built on reclaimed land by a wholly owned

subsidiary of the National Trade Union Congress (NTUC) Club - the NCI Golf Private

Limited.261 NCI Golf owns the Marina Bay Golf course, and operates the Tanglin Public Golf

Course and Tennis Courts. The club grants honorary membership to the President or Head of the

government.

The Marina Bay golf course actually sits on reclaimed land. The development of a golf course

on a reclaimed marine land poses ecological concerns. The destruction of a marine area to make

way for a golf course needs cost-benefit analysis in order to quantify the environmental cost of

destruction. The stakeholders - those whose interests are affected if the activity with critical

environmental impact pushes through - should necessarily be consulted. In some countries, the

stakeholders are identified, i.e. those who live within the 5 – 10 kilometer radius of the proposed

activity or environmentally critical areas. Singapore is a city-state. Thus, it can be inferred that

the stakeholders are actually the entire Singapore citizenry. Singapore did not provide for EIA

legislation, where the mechanism for public consultation is included, thus stakeholders

participation in decision-making processes should be introduced.

261 Visit http://www.mbgc.com.sg/about/management.htm. Accessed on April 10, 2013.

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1.3 Summary of Comparative Evaluation

Table 1.20

Summary of Comparison and Evaluation

Critical Issues Findings 1. Most golf courses are built on vast tracks of lands, specifically agricultural lands.

Yes, but not in Singapore

2. Most golf courses are built mostly by USA and Australian architects adopting United States Golf Association (USGA) standards.

Yes

3. Almost all golf courses use hybrid turf grasses for their green, tees and fairways.

Yes

4. Most golf courses have large number of sand traps, tees, practice greens, thus sand consumption is high.

Yes

5. Golf courses have high chemical consumption owing to hybrid turf grass usage.

Yes

6. All golf courses have high daily water requirements, particularly those courses with massive hybrid turf grass usage.

Yes

7. Most golf courses host national and international tournaments. Yes 8. Most golf courses grant honorary membership to Heads of government.

Yes

9. Most golf courses enjoy investment incentives from the government. Yes

10. Regulatory framework Inadequate, Fragmented Incoherent Ad Hoc Basis

11. EIA application Golf Courses do not fall within EIA legislation in Thailand. Singapore has no EIA law. Philippines has lax EIA regulatory framework Viet Nam’s EIA law only applies to 18 holes projects

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CHAPTER III COMPARATIVE EVALUATION AND ANALYSES OF ENVIRONMENTAL

LEGAL FRAMEWORKS

Part I International Environmental Legal Frameworks Part II Regional Environmental Legal Frameworks Part III National or Domestic Environmental Legal Frameworks

CHAPTER III, PART I INTERNATIONAL ENVIRONMENTAL LEGAL FRAMEWORKS

1.1 Introduction 1.2 Relevant MEAs Abstract

Golf course development and operation are governed under national laws and regulations. The national laws either are codified locally or may have been transplanted from Multilateral Environmental Agreements or regional instruments, which have been signed and ratified, or acceded to by Contracting Parties. The Multi-lateral Environmental Agreements (MEAs) contain principles and philosophies, which promote, inform, enhance and guide environmental protection and management.

1.1 Introduction

In 1995, Birnie and Boyle wrote about global governance, which includes “formal institutions

and regimes empowered to enforce compliance, as well as informal arrangements”.262 However,

today, there is no global governance in golf courses as they are regulated under domestic laws

and regulations. There are no international or regional legal frameworks for golf courses.

International and regional treaties, or the so-called Multi-lateral Environmental Agreements

(MEAs) inform domestic regulation, but golf courses are not directly discussed or included in

these agreements. Rose writes that the MEAs actually “form the predominant source of norms

262 Patricia W. Birnie and Alan Boyle, International Law and the Environment, Chapter 2, “International Governance”, Second Edition, Oxford University Press, at page 34, quoting the Commission on Global governance, Our Global Neighbourhood, Oxford University Press, 1995, at pages 2-4. See also P Birnie, A Boyle and C Redgwell, International Law & the Environment (Oxford University Press, 3rd edition, 2009), 851pp.

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for global environmental law”.263 MEAs are legally binding instruments and are regarded as

“hard law”. However, they need to be implemented at the national level. In the context of

sustainable golf courses, the following MEAs are of relevance, namely the Convention on

Wetlands of International Importance, Especially As Waterfowl Habitat (“Ramsar”), 1971; the

Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972;

Convention on the Conservation of the Migratory Species of Wild Animals (CMS) Bonn

Convention, 1979; Convention on Biological Diversity (CBD), 1992; Cartagena Protocol on

Bio-safety, 2000; Biosafety Compliance; Stockholm Convention on Persistent Organic

Pollutants (POPs), 2001; Rotterdam Convention on the Prior Informed Consent Procedure For

Certain; Hazardous Chemicals and Pesticides in International Trade (Revised in 2008); Aarhus

Convention on Access to Information, Public Participation in Decision-Making and Access to

Justice in Environmental Matters, 1998; Environmental Impact Assessments (EIA), such as the

United Nations Economic Commission for Europe (UNECE); Convention on Environmental

Impact Assessment in Trans-boundary Context (“Espoo Convention”), 1991 and Protocol on

Strategic Environmental Assessment (SEA), 2003.

This thesis hypothesize that MEAs can be developed as normative approaches to inform

domestic regulation, particularly about golf courses, e.g. agreements for the protection of

biodiversity and bio-safety, wetland protection, chemical pollution and heritage sites, etc. In fact,

in relation to environmental obligations Sands (2003) writes that, “certain treaties of potentially

global application might be considered to have ‘law-making’ characteristics, particularly where

they have attracted a large number of ratifications”.264 Have these general obligations provided

under MEAs become customary international law owing to universal usage or practices (e.g.

EIA, polluter pays principle, precautionary principle)? Universal practice among the 190

members in the league of nation is difficult to quantify or measure, much more, to determine

whether the obligations are legally binding or not to the members. Rose (2011) argues that the

“normative content of general international rules are often vague or obscure”. Professor Sands

(2003) explains however, that, “customary law rules have played a secondary role, although they

can establish binding obligations and maybe relied upon in the codification of obligations”.

263Gregory L. Rose, National and Global Environmental Laws, Dichotomy and inter-linkages as examined through the implementation of multilateral environmental agreements, First Preparatory Meeting of the World Congress on Justice, Governance and Law for Environmental Sustainability, 12 - 13 October 2011 - Kuala Lumpur, Malaysia. 264 Philippe Sands, Principles of International Environmental Law, Second Edition, 2003 Cambridge Press, page 127. Professor Sands mentions the Convention on Biological Diversity, 1992; Chemicals Convention, 1998; Persistent Organic Pollutants Convention, 2001.

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The national laws apply for permitting, licensing and clearance procedures in relation to golf

courses albeit international and regional environmental frameworks have played a significant

role in their growth and elaboration. This thesis critically evaluates and analyzes a number of

relevant and applicable MEAs, with direct or indirect impact on golf courses. This dissertation

proposes that principles or philosophies embedded in a number of these agreements must be

pursued or promoted for adequate, coherent and effective environmental protection and

governance.

In several submissions to the Secretariats of various Conferences of the Parties (COPs), the

subject countries have presented National Implementation Plans (NIPs) and National Reports

(NRs) summarizing the measures taken to implement the Conventions and their objectives265.

There are implementation challenges and constraints presumably because the MEAs are couched

in general terms and do not provide legal regimes for non-compliance. Contracting Parties are

merely required to submit NIPs and NRs, and no sanctions are imposed in case of non-

submission of said documents. 266 Thus, the so-called national implementation “gaps” in

fulfilling international obligations are extensive.

Implementation and enforcement becomes relevant since only states are recognized as primary

actors under public international law. Unless State consent is given there is actually no single,

international body, which can compel responsibility, more so, State liability. States themselves

must expressly allow or waive sovereign authority to be held responsible or liable for the

consequences of their harmful activities. Sunkin and Ong (2001) stressed that the international

265See National Reports to the Secretariat of the Convention on Biodiversity at http://www.cbd.int/reports/search/. Meanwhile, par. 1 (a), Art. 7, Stockholm Convention (POPs) requires each Party to “develop and endeavour to implement a plan for the implementation of its obligations under the Convention” while par. 1 (b) states that each Party shall “transmit its implementation plan to the COP within two years of the date on which Convention enters into force”. Visit POPs website for National Reports at http://www.pops.int/Copy%20of%20Art15-22April2010/ListNationalReports.aspx and CMS website for National Reports at http://www.cms.int/bodies/COP/cop8/National_Reports.htm. All accessed on August 12, 2011. 266 The Cartagena Protocol on Biosafety, 2003 provides for compliance mechanism yet there are no sanctions imposed for non-implementation; the Convention on Biodiversity, 1992 established mechanism for implementation of objectives, nonetheless the Contracting Parties are only required to submit National Biodiversity Strategies and Action Plans (NBSAP), as well as NRs; the Convention on Migratory Species, 1979 likewise require the submission of NRs and has prepared a list of focal points in Contracting States yet there is no compliance mechanism introduced by the Convention in case of non-implementation; the World Heritage Convention, 1972 merely provides for Periodic and Reactive Monitoring Facility for Reporting by World Heritage Centers regarding the stage of conservation of heritage properties that are under threat; Article 17, Stockholm Convention on Persistent Organic Pollutants (POPs) requires Conference of the Parties (COP) to develop and approve procedures and institutional mechanisms for determining non-compliance and for the treatment of Parties found to be in non-compliance.

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legal rules are “generally framed in terms of obligations and the international legal

framework”.267 Thus, respect for and observance of the principles of national sovereignty

highlights the failure of international organizations to adopt sanctions against states.

Consequently, many environmental agreements allow States to have greater flexibility in their

submissions of NIPs and NRs. A compliance review system should be introduced, wherein

feedback mechanisms or assistance are provided, and in some cases, sanctions are imposed. But

this can be implemented under the domestic arena.

A. International (Hard and Soft) Law Instruments

This thesis identifies and evaluates both hard and soft law international and regional

environmental agreements that have relevance to golf courses. It also looks into the vital roles

played by various United Nations agencies, conferences and meetings of the parties in the

drafting, formulation and implementation of a number of significant agreements or instruments.

Hard laws establish “legally binding obligations”, while “soft law instruments are not binding

per se but . . . point to the likely future direction… by informally establishing acceptable norms

of behavior, and by ‘codifying’ or possibly reflecting rules of customary international law”

(Chinkin, 1989). 268 Sands (1998) highlights that, “once a State has formally adopted an

international environmental obligation it will usually need to develop, adopt or modify relevant

national legislation, or give effect to national policies, programmes of strategies by

administrative or other measures”. 269 Thus, many States adopt into national or domestic

legislation the various agreements, which have been signed, ratified or acceded by them.

The Rio Declaration (1992) is a classic example of a soft law instrument yet its principles

gained general acceptance particularly, the precautionary principle (Principle 15), the polluter

pays principle (Principle 16), inter-generational equity (Principle 8), intra-generational equity

(Principle 7), the need for EIAs to be undertaken for proposed activities that are likely to have a

significant adverse impact on the environment” (Principle 17) while Principle 21 promotes

267 Maurice Sunkin, David M. Ong and Robert Wight, Sourcebook on Environmental Law, Second edition, Cavendish Sourcebook Series, 2001, at page 2. 268 C.M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 International and Comparative Law Quarterly, 850 (1989) in Id. 269 Philippe Sands presents that “States implement their international obligations, first, by adopting national implementing measures; secondly, by ensuring that national measures are complied with, and thirdly, by fulfilling obligations, such as reporting”. See generally, D. Victor, K. Raustiala and E. Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments, MIT Press (1998).

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“sustainable development”. Some academics have argued that Sustainable Development is now

part of customary international law and thus, it applies even to non-state parties270. These

principles find application and relevance in the regulation of golf courses.

B. The United Nations

The United Nations (UN) was established in 1945 to “promote international peace and security”

but the UN Charter did not include environmental consideration in its goals. Environment was

not a relevant issue at that time. Nonetheless, the UN and other international organizations,

subsequently, made valuable contributions through its “ability to influence international policy-

making agenda”, and “to initiate or facilitate many of the most important law-making

developments”.271 The UN organizational framework includes the main organs, including the

Economic and Social Council (ECOSOC), Commission on Sustainable Development (CSD),

UN Development Programme (UNDP) and the UN Environment Programme (UNEP).272

Through Agenda 21 (Chapter 39), UNEP has a role in the development of international

environmental law and its implementation.273

According to Professor Sands (1995), “disasters have played a significant part in the

development of environmental law and policy”274 and “disasters frequently demonstrate the

inadequacy of existing laws, practices and institutional arrangements” (Tay, 1999).275 This thesis

may add that the threat of environmental disasters in the near future plays a significant role in

shaping the discussion and formulation of environmental agreements, declarations or reports in

various global meetings, conferences. Thus, countries held the United Nations Conference on the

Human Environment (UNCHE), 1972; World Commission for Environment and Development

(WCED), 1987; United Nations Conference on Environment and Development (UNCED),

270 Read Owen Mcintyre, “The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Freshwater Resources”, available at http://lawlibrary.unm.edu/nrj/46/1/06_mcintyre_customary.pdf. Accessed on May 28, 2013. 271 Id. 272 Visit the United Nations Portal at http://www.un.org/en/. Accessed on March 9, 2011. 273 Timoshenko and Berman in Werksman (ed) Greening International Institutions (London, 1996) at page 43. Agenda 21, Chap. 38, para. H (1) (h); UNGA Res. S/19-2 (1997) and UNGA Res. 53/242 (1999). 274 Philippe Sands, Principles of International Environmental Law, 1 Manchester University Press 25 (1995). 275 Simon SC Tay, Southeast Asian Fires: The Challenge for International Environmental Law and Sustainable Development, The Georgetown International Environmental Law Review, Volume XI, Issue 2, Winter 1999, pages 241-305.

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1992276, World Summit on Sustainable Development (WSSD), 2002 and the Earth Summit 2012

(Rio+20 Conference).

1.2 Relevant Multi-lateral Environment Agreements (MEA)

This thesis reviews and evaluates the relevant MEAs, which contain principles and philosophies,

which promote, inform, enhance and guide environmental protection and management, and

which are of particular relevance to the governance and management of sustainable golf courses.

They are arranged according to their dates.

A. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (“Ramsar”), 1971 (in force in 1975).

The Ramsar Convention is an inter-governmental treaty providing framework for “national

action and international cooperation for the conservation and wise use of wetlands”.277It was

presented for signature in 1971 and came into force in 1975. Philippines acceded to the

Convention on November 8, 1994, Thailand on September 13, 1998 and Viet Nam acceded on

January 20, 1989. Singapore is not a party to the Convention, although it has the Sungei Buloh

Wetlands Reserve as legally protected under the Park and Trees Act. Philippines, Thailand and

Viet Nam submitted its list of wetland areas of international importance278.

Ramsar was adopted under the auspices of UNESCO. The preambular provision mentions that

wetlands “fundamentally function as regulator of water regimes; as habitat supporting a

characteristic of flora and fauna; a ‘resource of great economic, cultural, scientific, and

recreational value’, and that the protection of wetlands is necessary as its loss would be

irreparable”. “Ramsar” also seeks to “stem the progressive encroachment on and loss of

wetlands, as the waterfowl in their seasonal migrations may transcend frontiers”.

276 The UNCED 1992 adopted four instruments namely: a) Rio Declaration on Environment and Development – a set of 27 Principles; b) Agenda 21 – a programme of action covering issues ranging from poverty alleviation to strengthening national and international ability to protect the environment; c) Framework Convention on Climate Change (FCCC); d) Convention on Biodiversity (CBD); and e) Statement of Principles for the Sustainable Management of Forests, which were all adopted by consensus (without vote). 277 For a list of States that are party to the “Ramsar” Convention, see http://www.ramsar.org/cda/en/ramsar-documents-official-docs/main/ramsar/1-31^7761_4000_0. Accessed on August 19, 2010. Article 1 of the Convention defines Wetlands as areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters, while waterfowl are birds ecologically dependent on wetlands. 278 Singapore has no wetland area of international importance.

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The Contracting Parties are imposed substantive obligations “to designate suitable wetlands for

inclusion in the List of Wetlands of International Importance, with boundaries precisely

described and de-limited” {(Article 2) Italization provided}. Parties are obliged to “incorporate

riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper

than six meters at low tide lying within the wetlands” (Article 2.1). Wetlands are selected on

account of international significance in terms of ecology, botany, zoology, limnology or

hydrology (Article 2.2). Meanwhile, contracting Parties have secondary obligation to formulate

and implement planning to promote its conservation and wise use (Article 3).

The implementation of Ramsar affects the national and local land use planning systems (Article

3 stipulates that, “wetlands must be difficult to modify, alter or re-classify unless relevant

authorities adopt specific planning mechanisms”). The Ramsar Convention also imposes upon

the parties the secondary obligation to report to the Secretariat measures taken to implement the

Convention and its objectives. The submissions or reports bind the Parties, and any alteration,

modification or re-classification of classified and identified wetlands will have to be reported.

Article 4.1 also requires Parties to “establish nature reserves on wetlands, listed or not”. And

where any Party, owing to national interest, deletes or restricts the boundaries of a Listed

wetland it should compensate for the loss, or create additional nature reserves and protect an

adequate portion of the original habitat” (Article 4.2).

Article 4.3 encourages research, exchange of data and publications while Article 4.5 promotes

training of personnel competent in the field”. A Conference of the Parties (COP) discusses,

reviews and promotes implementation, as well as additions to and changes in the List”. The COP

is advisory in character and may submit recommendations regarding conservation, management

and the wise use of wetlands. The COP has the subjective obligation to “request relevant

international bodies to prepare reports and statistics on matters essentially international in

character affecting wetlands” (Article 6).

Golf courses have wetland areas or are generally constructed in large wetland areas. The

existence of water catchments, lakes, ponds and lagoons in golf courses not only provide fish,

waterfowl and wildlife habitat but also enhance and promote water quality protection. Artificial

wetlands integrated in golf courses develop as habitat for threatened or endangered species when

these areas are conserved and protected. The principles underlying wetland protection may be

adopted to promote the conservation and preservation of wetlands in golf courses. The golf

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course sector has the capability to conduct its own assessment, monitoring and protection of

wetlands. It will be also instructive for the golf course industry to participate in the conservation

of wetlands. Nonetheless, wetlands are not referred to collectively and directly in too many laws

and regulations.279 Most states do not have wetland protection laws and regulations. Instead,

countries regulate, through scattered and fragmented regulations, e.g. access to natural resources,

jurisdictions over territory and management, or prohibit certain acts relating to the areas

themselves.280. Viet Nam, for example, has not enacted a wetlands law although wetland

protection is included in scattered legislation, e.g. 2005 Law on Environmental Protection and

the 2003 Land Law.

Article 4.1, which requires a choice whether to establish/list or not, nature reserves on wetlands,

is relevant and instructive. A case study in point, which possibly could be replicated in other

countries, is a swampland in Singapore where the Kranji Sanctuary Golf Course was

constructed. The swamps shelter various bird species and insects. Singapore is not a party to

Ramsar and the Kranji swampland is not on the List of Wetlands of International Importance.

However, it is significant to point out that the National Service Resort and Country Club

(NSRCC) and the Nature Society of Singapore (NSS) forged conservation and protection

arrangement by identifying and setting aside buffer zones281. These are actually “no go” areas for

the players or “no development” area for the golf course. Thus, partnerships for nature

conservation may be developed between stakeholders and the golf clubs. This may even hold

true with the Sungei Buloh Wetland Reserves 282, which have become a feeding spot for

migratory species. Together, these marshes (Kranji and Sungui Buloh) could form a site worthy

of protection.

279 Ma. Paz G. Luna, Review of Legislation and Policies on Philippine Wetlands, UNEP/GEF Project: Reversing Environmental Degradation Trends in the South China Sea and the Gulf of Thailand, 2005, Department of Environment and Natural Resources, Philippines, pp.24. Luna writes that, “Provisions and regulations that affect wetlands can be classified into those with direct or indirect impact to wetland areas, e.g. resource access provisions of the Constitution, water code, congressional acts dealing with water bodies that comprise wetlands. 280 A few of these laws in the Philippines include: Proc. No. 2146 (1981), environmentally critical areas; RA 293 (1948), Sale of Marsh lands or lands under water bordering shores; RA 3931 (1964), National Water and Air Pollution Control Commission; RA 4850 (1966), Laguna Lake Development Authority Act; RA 7160 (1991), Local Government Code; RA 7161 (1991), Tax Laws in the Revised Forestry Code; RA 7586 (1992), National Integrated Protected Area System Act; RA 7942 (1995), Mining Act; RA 8041 (1995), National Water Crisis Act; RA 8371 (1997), Indigenous Peoples' Rights Act; RA 9003 (2001), Ecological Solid Waste Management Act. 281 Kranji Reservoir Marsh Adoption at http://www.nss.org.sg/project.aspx?id=2. Accessed May 18, 2013. 282 The Sungei Buloh Wetland Reserve at https://www.sbwr.org.sg/. Accessed May 18, 2013.

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It would be instructive if the COP recommends the inclusion of golf courses in its discussions,

requesting Parties to submit or include in their National Reports the conservation and protection

of wetlands inside golf courses. There have been no discussions or reportorial submissions about

wetlands protection in golf courses. Collaboration and cooperation may be developed and

statistical data may be referred to, e.g. number of golf courses in a country, total area, number of

waterfowls cyclically inhabiting the wetlands, number of flora and fauna assessed in the area,

etc. This will ensure that even if these are not wetlands of international importance that merit

listing under Ramsar, at least they deserve protection under national laws.

B. Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 This Convention was adopted under the auspices of the UNESCO during the 17th General

Conference in Paris, 1972.283. Philippines signed and ratified the Convention on September 19,

1985; Thailand acceded on September 17, 1987 while Viet Nam acceded on October 19, 1987.

Singapore has just acceded to the Convention in August 10, 2007 and it appears that they may

propose the Botanic Gardens for inclusion in the UNESCO list.284

The preambular provision states that the Convention285 seeks “to protect and preserve the

cultural and natural heritage, including those of outstanding interest”. It calls for the

international community “to collectively participate in the protection of identified heritage

sites”. The Preamble also mentions that the heritage sites are “increasingly threatened with

destruction by traditional causes of decay and by changing social and economic conditions”, and

that “the deterioration or disappearance constitutes a harmful impoverishment of the heritage”. It

also bewails the fact that the “protection at the national level remains incomplete owing to the

scale of required resources - economic, scientific and technical”. Articles 1 and 2 identifies

"cultural and "natural heritage", respectively. It mentions that State Parties have the substantive

obligation to identify and delineate different properties (Article 3). A State also has the primary

duty “to ensure the identification, protection, conservation, presentation and transmission to

future generations of heritage sites, through its own resources, and with international assistance

and cooperation” (Article 4). 283 It was signed on November 18, 1972 and entered into force on December 17, 1975. 284 Singapore Botanic Gardens Eyes UNESCO World Heritage Site Listing at http://www.nhb.gov.sg/NHBPortal/content/conn/ucmnhb/path/Contribution%20Folders/NHBPortal/Contents/Press/Press%20Releases/2013/8Apr2013_Singapore_Botanic_Gardens_as_UNESCO_World_Heritage_Site_Factsheet_for_Media_Brief.pdf. Accessed on May 18, 2013. 285 Visit the UNESCO portal available at http://whc.unesco.org/en/statesparties/. Accessed on August 19, 2010.

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Moreover, States are encouraged to “adopt general policy to integrate the protection into

comprehensive planning programmes” (Article 5). Article 6 emphasizes the duty of the

international community to cooperate, establish a system of co-operation and assistance”. A

World Heritage Committee’ (WHC) was established (Article 8) and “tasked to establish, keep up

to date and publish a ‘World Heritage List’ and a ‘List of World Heritage in Danger’ to be done

every two years”. The WHC shall be assisted by a Secretariat appointed by the Director-General

of the UNESCO (Article 14). Collaborative efforts from international organizations include that

of the International Council for Monuments and Sites (ICOMOS), International Center for the

Study of the Conservation and Restoration of Cultural Heritage (ICCROM), the International

Centre for the Study of the Preservation and Restoration of Cultural Property (the Rome Centre)

and the International Union for Conservation of Nature (IUCN). The Director-General and the

Rome Centre, the ICOMOS and the IUCN prepare the WHCs documentation and agenda of its

meetings, as well as the implementation of its decisions.

A few principles embedded in the relevant provisions of this Convention may be cited. The

reportorial mechanism may be used to include golf courses in National Reports. Article 11 is

significantly important. It requires State Parties “to submit a non-exhaustive inventory of

heritage properties situated in its territory, which may be suitable for inclusion in the list”.

Article 22 speaks about assistance granted by the WHC, e.g. studies concerning the artistic,

scientific and technical problems; provisions of experts, technicians and skilled labor and

training of staff and specialists. The golf course industry, may seek guidance under these

provisions, particularly on the aspect of research, documentation and conservation. The

Convention encourages State Parties to conduct educational and information programmes”

(Article 27). Meanwhile, the reportorial mechanism is a substantive obligation (Article 29), e.g.

submission of information on the legislative and administrative provisions adopted. It is through

this reportorial mechanism that golf courses may be monitored, inspected and supervised.

This Convention is highly important and relevant. A case study in this research – the Angono

Petroglyphs, situated inside the premises of the Eastridge Golf Club in Binangonan, Rizal

Province, has been identified and declared protected and conserved heritage site in the

Philippines. Chapter II, Part IV Case Studies of this thesis lists the violation of various laws,

namely; National Historical Commission Act, RA 4368 (1965); Cultural Properties Preservation

and Protection Act, RA 374 (1974), Sites and Shrines Law, PD 260 (1973), National Museum

Law, RA 8492 (1998) and Sections 12 and 16, General Welfare, Local Government Code, RA

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7160, (1991) and DENR-DAO 2003-30, which implements the EIA Law, PD 1586 (1978). The

development activities of the Eastridge Golf Club have destructive impacts on the petroglyphs.

Thus, it is vital that the golf course industry document and submit annual reports on the status of

conservation and protection of heritage areas situated within golf courses, to the UNESCO

Office in the country where the historical site is situated. The practice in the Philippines of

submission of Archeological Impact Assessment (AIA) for development projects should be

looked into. There is a detailed discussion under Comparative evaluation (Chapter III, Part III,

National Environmental Legal Framework – Construction Stage, Natural Heritage and

Archeological Preservation (Item E.1 Philippines).

C. Convention on the Conservation of Migratory Species of Wild Animals (CMS), Bonn Convention, 1979

This Convention was signed on June 23, 1979 and entered into force on November 1, 1983. The

preambular provision states that the Convention seeks to “protect all migratory species286, a

significant proportion of which habitually moves across national boundaries”. Out of the four

subject countries in this dissertation, the Philippines is the only signatory to the Convention.287

The Preamble further states that, “wild animals are an irreplaceable part of the earth's natural

system, which must be conserved for the good of mankind”, and that they have an “ever-

growing value from the environmental, ecological, genetic, scientific, aesthetic, recreational,

cultural, educational, social and economic” standpoint. Thus, Contracting Parties acknowledge

the “importance of Range States288 by agreeing to take action, individually or in co-operation, to

conserve such species and their habitat” (Article II). Article III identifies the Endangered

Migratory Species while Appendix I lists them. Appendix II lists migratory species with

unfavorable conservation status and requires international agreements for their conservation and

management. Article VII provides for a Conference of the Parties (COP) to review the

286 Migratory species refers to the “entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries” while Habitat is any area in the “range of a migratory species, which contains suitable living conditions” (Article 1). 287 Philippines signed on February 1, 1994. Visit http://www.cms.int/about/index.htm. Accessed on August 19, 2010. 288 Art.1, CMSW defines "Range State" in relation to a particular migratory species, which means any State that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species.

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implementation, to assess conservation status and review progress of those in the list”. Article

VIII mandates the COP to establish Scientific Council “to provide advice on scientific matters”.

Golf courses have secondary forests or wetland areas where migratory species inhabit during the

winter months. It has been reported that migratory waterfowls have been sighted in the four

subject countries. The protection, conservation and effective management of migratory species

of wild animals require the concerted action of all States within the national boundaries of which

such species spends any part of their life cycle. There have been reports of migratory waterfowls

seeking shelter in golf courses, specifically in water catchments and naturalized habitat areas in

Singapore and Philippines. 289 These identified temporary habitats should be monitored,

conserved and protected, until the next cyclical migration of the wild animals. There is also an

utmost need to protect these waterfowls during their cyclical migration, e.g. legislation should

declare that it is a criminal violation to kill waterfowls. The COP therefore should require State

Parties to include in their National Implementation Reports (NIPs) and National Reports (NRs)

discussions about migratory waterfowls that shelter in golf courses. The Convention experts may

also share conservation approaches, scientific advice, as well as the benefits derived from these

practices.

This Convention has similar objectives as the Convention on Biological Diversity (CBD), pre-

dating the CBD for thirteen (13) years – that of the protection, conservation and effective

management of specific migratory species of wild animals. Thus, there is sometimes an

encompassing scope or coverage between the two Conventions. This writer discovers the

importance and relevance of “Biodiversity Assessments”, which contain a list of flora and fauna

found inside the golf courses.290 Therefore, this writer proposes for the mandatory preparation of

Biodiversity Assessments to enhance and promote regulatory measures and to help educate the

employees of the club, their members and guest players, the citizenry, the government

regulators, as well as the civil society and the environmental NGOs. Assessments also provide

scientific or biological guidance to conservation and protection approaches. Benchmarks include

biological approaches to the reduction of chemical usage in turf grass maintenance so as not to

289 For the Philippine report, see Biodiversity Assessment, attached as Appendix “4”. Visit the website of Keppel Golf Club about birds seeking shelter in Labrador Park and Mount Faber at http://gogreen.keppelclub.com.sg/. Accessed on August 12, 2011. 290 In 2008, as an experiment for the TAT Filipinas Golf Club, this candidate commissioned the conduct of biodiversity assessment of the flora and fauna inside the premises of the golf club.

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harm habitats and migratory waterfowls. Biodiversity assessments are discussed extensively

under the Philippine case studies.

D. Convention on Biological Diversity (CBD), 1992 (in force 2003)

The UNEP spearheaded the adoption of this Convention 291 , which was signed by 150

government leaders at the 1992 Rio Earth Summit. It came into force on December 29, 1993.

The preambular provision states that the CBD is designed “to protect the earth’s biodiversity by

promoting ‘sustainable use’ and ensuring that its benefits are shared equitably between

developing and developed worlds”.292 The Preamble also mentions the “intrinsic value of

biological diversity, its ecological, genetic, social, economic, scientific, educational, cultural,

recreational and aesthetic importance”. And that, “the conservation of biological diversity is a

common concern of humankind”. The Convention affirms Principle 21, Stockholm Declaration

on the “sovereign right of States to exploit resources”293 (Article 3) and Principle 15, Rio

Declaration “Precautionary Principle” 294 . Article 2 defines "Biological diversity" 295 and

"Sustainable use"296 while Article 5 mentions “cooperation through competent international

organizations in respect of areas beyond national jurisdiction and mutual interest”. The

substantive obligation (Article 6) mandates the adoption of national strategies, plans or

programmes. Article 10 provides for the “sustainable use of the components of biological

diversity”.

Large golfing complexes have the capacity and the resources to grow and propagate native

plants and species that shelter, produce and propagate wild life. There is a multitude of

biodiversity activities, which can be initiated, developed and promoted sustainably inside golf

291 Philippines signed in 1992 and became a Party to the Convention in 1993; Thailand signed in 1992 and became a Party in 2004; Viet Nam signed in 1993 and became a Party in 1994. Singapore signed in 1992 and became a Party in 1995. Visit the CBD portal for a list of Contracting Parties and dates of ratification at http://www.cbd.int/countries/. Accessed on August 19, 2010. 292 Philippe Sands and Paolo Galizzi, Documents in International Environmental Law, Second Edition, Cambridge University Press, 2004, at page 696. 293 Prin. 21, Stockholm Dec. specifically provide for the sovereign right of States to exploit resources pursuant to environmental policies, as well as the responsibility to ensure that activities within jurisdiction and control do not cause damage to another State. 294 Prin. 15, Rio Dec. states that, “when there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat” (Precautionary Principle). 295 Art. 2, CBD defines Biological Diversity “as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes”. 296 Art.2, CBD defines Sustainable Use as the use of components in a way and at a rate that does not lead to the long-term decline of biological diversity, maintaining its potential to meet the needs and aspirations of present and future generations.

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courses. Golf courses could even provide a “large laboratory for research and training” (Article

12) and more importantly, under an EIA process, the impact of development should be publicly

considered and discussed by stakeholders during the planning stages (Article 14 on Impact

Assessment and Minimizing Adverse Impacts). Public participation is integrated in the EIA

process, which ensures that stakeholders are consulted on matters directly affecting them - their

livelihood and environment.

Article 17 is a procedural obligation for “exchange of information from all publicly available

sources, i.e. result of technical, scientific and socio-economic research, and repatriation of

information” (Article 17 {2}). A COP is established (Article 23) to review the implementation of

the Convention while a Secretariat arranges and services the meetings of COP, prepares reports

and presents them (Article 24). A subsidiary body provides scientific, technical and

technological advice (Article 25). Article 26 is a substantive obligation mandating submissions

of NRs and NIPs.

The CBD contains provisions, which may enhance, develop and protect biodiversity and their

habitat, particularly the phrase “sustainable use” and the requirement of EIA for development

projects. Submissions to the COP of NIPs and NRs may also be utilized to include reports about

golf courses and efforts on biodiversity assessment, monitoring and protection. Substantive

obligations should include conservation efforts about unique features, secondary or mini-forests

and water bodies, in order to identify, enhance and conserve habitat for biodiversity. Company-

initiated programs should therefore be encouraged, promoted and recognized by the government.

The national government should likewise lead efforts to institutionalize Biodiversity

Assessments, which has gained ground among golf clubs. These assessments started from the

establishment of Bird and Butterfly Sanctuaries inside the golf complexes.297 Biodiversity

Assessment, Monitoring and Protection are consistent with Article 7, 8 and 9, which speak of in-

situ (Article 8) and ex-situ (Article 9) conservation by imposing State obligations.

Through submissions, the golf course industry should be included - backed up by scientific

information about ecological and health impacts of course development and operation,

particularly, chemical and hybrid turf grass use. It is now high time that the operational activities

297 Various golf clubs in the Philippines established Butterfly Gardens in early 1990’s, such as the Manila Southwoods Golf Club and the Boracay Fairways and Bluewaters Golf Resort. Refer to Chapter 4, Species Management, Guidelines for Maximizing Biodiversity in Golf Courses, at page 3-41. The Guideline is attached as Appendix “18”.

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of golf courses are discussed, deliberated and considered by the COP of the CBD through

country reports. The importance and intrinsic value of biodiversity demand greater conservation

and protection from the golf course industry. Large areas of the earth have been developed for

golfing complexes that sustain and support immeasurable numbers of flora and fauna. Golf

courses therefore play a vital role in biological diversity development, monitoring and

protection. National governments therefore should recognize and regulate golf course activities.

Thus, this Convention informs domestic regulation.

1. Cartagena Protocol on Bio-safety, 2000 expands the Convention of Biological Diversity

This Protocol to the CBD governs the trans-boundary movement of living modified organisms

(LMOs) resulting from modern biotechnology. It is a supplementary agreement to the

Convention on Biological Diversity, which was adopted on January 29, 2000 and entered into

force on September 11, 2003.298 The preambular provision re-affirms commitments to the

precautionary approach, and “expresses awareness over the potential adverse effects of trans-

boundary movements of LMOs”. The Protocol seeks to “ensure an adequate level of protection

on the safe transfer, handling and use of LMOs (Article 1). It requires Contracting Parties “to

take necessary and appropriate legal, administrative measures to implement its obligations that

prevents or reduces risks” (Article 2.1). This provision is relevant and may be instructive

particularly the implementation mechanism adopted by the Parties.

This Protocol established a procedural obligation to set up an Advance Informed Agreement

(AIA) “to ensure that countries are provided with information necessary to make informed

decisions before agreeing to the import of such organisms” (Article 7). This procedure “requires

an exporter to seek consent from an importing country prior to the first shipment of an LMO

intended for introduction into the environment, e.g. seeds for planting, and microorganisms for

bio-remediation”. There are substantive and secondary obligations to establish a Bio-safety

Clearing-House to facilitate the exchange of information. Article 8 procedurally provides for the

“notification of information with legal accuracy to competent national authority of the

intentional trans-boundary movement”. This provision is crucially important, particularly in

developing countries with governance issues and lax regulatory frameworks. Article 9 governs

the “acknowledgment of receipt of notification”.

298 Philippines signed on May 24, 2000 and ratified on October 5, 2006. Thailand ratified on November 10, 2005. Viet Nam ratified on January 21, 2004. Singapore did not sign the Protocol. The list of parties to the Protocol is available at http://bch.cbd.int/protocol/parties/. Accessed on August 19, 2010.

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Article 15 provides for Risk Assessment “to take into account techniques based on information

and scientific evidence to identify and evaluate the possible adverse effects of LMOs”. Article

16 speaks of Risk Management “to regulate, manage and control risks identified in the risk

assessment”. Thus, applying these procedures to golf courses, the twin requirements of risk

assessment and management will ensure that hybrid turf grasses may only enter the importing

State under identified and managed circumstances. The Protocol further requires that State

Parties must “safely regulate subsequent handling and storage of identified LMOs” and

emphasizes “public awareness, education and participation” (Article 23). There is a COP that

reviews the implementation of the Protocol and a Secretariat (Article 31). Article 33 is a

procedural obligation requiring each Party “to monitor and report the implementation of its

obligations” while Article 34 provides that “COP consider and approve cooperative procedures

to promote compliance”.

The massive use of hybrid turf grasses signals a growing concern over the potential adverse

effects on bio-safety in golf courses. Hybrid turf grasses are maintained under chemical-based

programs and are considered as invasive and potentially harmful species, which can propagate,

proliferate and breed wherever stolons/clippings are disposed. The Cartagena Protocol provides

regulatory guidance, specifically on the importation of hybrid turf grasses.

2. Biosafety Compliance

Philippines reported to UNEP that it has “conducted several research and development (R&D)

projects geared towards developing transgenic crops; and that modern biotechnology techniques

are basically used to address pest problems, postharvest concerns, and quality improvement in

crops.299 The Report added that, “most of the genetically engineered products, particularly

pharmaceuticals, enzymes, food, and feed preparations, as well as plants used in the country are

imported from other countries”. Philippines also prepared a National Framework on Biosafety in

2004, as mandated under Executive Order 514 (2006). To date however, there is no national law

on Biosafety. Instead, the country uses existing guidelines of the International Plant Protection

Convention (IPPC)300 to regulate LMOs, but these covers only those LMOs in transit.

299 Philippine Report to UNEP, available at http://www.unep.org/biosafety/files/PHNBFrep.pdf. Accessed on July 20, 2011. 300 Visit IPPC portal at https://www.ippc.int/. Accessed on July 20, 2011. IPPC regulates plant and plant products that are pests or pose risks to humans and the environment whereby plant quarantine clearance is required prior to importation of LMOs.

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Similarly, Thailand did not enact a Biosafety law and relies on several existing Biosafety

Guidelines301, which illustrates the steps in seeking approval to introduce transgenic plants

(seeds) into the country. The Department of Agriculture (DOA) has made a Ministerial

Declaration under the Plant Quarantine Act that “all transgenic plants are prohibited from

entering the country, unless the Director General of DOA grants permission, but only for

experimental purpose”.

Meanwhile, Viet Nam’s legal framework on Biosafety includes the following: Law on

Environmental Protection, 2005 302; Ordinance on Plant Varieties, 2004, Article 6, which

provides that, “the research into, selection, creation, field trial, production, trading, use,

international exchange of, and other activities related to, genetically modified plant varieties

shall comply with the Government’s regulations”; Decree on Labeling, 2006; Regulation on

management of biological safety of GMOs; products and goods originating from GMOs, 2005;

Decision No 79/2007/QD-TTg, 2007; Promulgating National Action Plan on Biodiversity 2010-

2020 implementing CBD and Cartagena Protocol on Biosafety; Decision No102/2007/QD,

2007, Promulgating Overall Project on Strengthening Biosafety Management of genetically

modified organisms, products and goods originating from genetically modified organisms.

Although Singapore did not sign the Protocol it issued Biosafety Guidelines303 for Research on

GMOs, 2006. The Genetic Modification Advisory Committee (GMAC) was established in 1999

“to oversee and advise on the issues relating to genetic modification and GMOs”. The

Guidelines cover experiments that “involve the construction and/or propagation of all biological

entities (cells, organisms, prions, viroids or viruses), which have been made by genetic

manipulation and are of a novel genotype and which are unlikely to occur naturally, or which

could cause public health or environmental hazards”.

301 Thailand Biosafety Regulations at ftp://ftp.cgiar.org/isnar/ibs/thailand.pdf. Accessed on July 20, 2011. 302 Art. 87 on Biosafety states that “Organizations and individuals engaged in production, business and service activities related to GMOs and products must observe the provisions of law on biodiversity, food safety and hygiene, cultivated plant varieties and live-stock breed, and other relevant laws. Organizations and individuals may only research into, experiment, produce, trade in, use, import, export, store and transport GMOs and products on the list of those permitted by law must meet all conditions on biological safety and procedures”. 303 Biosafety Guidelines for GMO Research in Singapore, available at http://dbtbiosafety.nic.in/act/Biosafety_Guidelines_GMO_Research_2006may_Singapore.pdf. Accessed on July 20, 2011.

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3. General Laws on Plant, Plant Products, Species

Despite the absence of Biosafety laws in the four countries, there exist general laws, which

protect plant, plant products and species. In the Philippines, Republic Act 9168 (2002)

established the National Plant Variety Protection Board (NPVPB), which is placed under the

Department of Agriculture. However, RA 9168 aims “to protect and secure the rights of breeders

with respect to plant varieties only “(Section 2). Thus, the law merely deals with intellectual

property rights protection over the new plant varieties. Executive Order 247 (1995) established a

regulatory framework on Biological and Genetic Resources to protect and conserve biological

resources.

The Plant Protection Department in Viet Nam was established “to carry out plant protection

extension activities; administer plant quarantine activities at the national level; conduct pesticide

management including pesticide registration and residue control, and deal with food safety”304.

Viet Nam issued the following decrees and regulations for plant protection, namely: Decree

02/2007/ND-CP on plant quarantine; Decision No.34/2007/QD-BNN on publishing the list of

regulated articles subject to pest risk analysis before importing into Vietnam; Decision

No.48/2007/QD-BNN, Regulation Procedure for issuance of the phytosanitary import permit for

articles subject to pest risk analysis before importing into Vietnam; Decision No.89/QD-BNN of

the Minister of Agriculture and Rural Development promulgating regulations on state

management on fumigation practice for regulated articles; Circular No.13/2011/TT-BNNPTNT

guiding the food safety control for imported foodstuffs of plant origin. A new Law on Plant

Protection is being drafted and will be submitted to the National Assembly in 2013.

Singapore has a general law under Rule 4, Section 48, Control of Plants Act, Cap. 57A, Plant

Importation Rule, which regulates the “importation of plant, plant product or material free of

quarantine pests”. It also provides that, “any person who imports any plant, plant product or

material shall ensure that the same and the container or any other package thereof is free of any

quarantine pest”. Rule 5A provides that “no person shall import any regulated plant, regulated

plant product or regulated material except under a permit issued by the Director-General of

Agri-Veterinary Authority”. Section 17, Part IV, Control of Plants Act, Cap. 57A mentions

about prohibited plants but these are not identified under the specific provision nor defined

properly under Section 2, Interpretation. Nonetheless, the Second Schedule of the Plant

304 Viet Nam Country Report on Plant Protection. Available at https://www.ippc.int/file_uploaded/1310182292_26_vietnam.pdf. Accessed on July 25, 2011.

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Importation Rules, under Section 48, Cap. 57A enumerates the prohibited plants to include

under item 17 “all living plants that have acquired novel genetic materials by techniques of

modern technology”; item 22 “all living modified organisms” and item 23 “all biological control

agents”. The Second Schedule stipulates that these “items may be imported to Singapore under

permit issued by the Director-General, AVA”.

The Cartagena Protocol is relevant with respect to the trans-boundary movement of hybrid turf

grasses, the seeds of which are developed, bio-engineered and researched mostly in USA and

Australia. The products of biotechnology must be treated with adequate level of handling and

transfer. Biotechnology has been defined as “the application of biological systems or organisms

to technical and industrial processes, including such technique as recombinant DNA,

monoclonal anti-bodies and cell fusion”.305 It has been reported that, “significant advances have

been made in methods of handling DNA in the laboratory and in ways of introducing genes into

crop plants thus providing new opportunities to modify world crops”.306 It is even possible “to

produce plants that have enhanced resistance to pests and diseases with opportunities to protect

crop plants against environmental stress, such as drought, high salinity or cold”.307

Academic reports and treatises argue that genetic selection and re-combination resulted in the

introduction of new and improved cultivars among species of warm and cool season turf

grasses308, thus creating concerns regarding the commercialization of transgenic turf grasses and

the possibility of trans-gene escapes to the wild. But with respect to biotechnological research,

the “fundamental question is what limitations, if any, maybe placed on the search for scientific

knowledge”.309 What extent of control and regulation must be introduced to ensure safety and

prevent health risks brought by biotechnology? Transgenic crops are a subset of a large number

of living organisms that are being genetically engineered by agricultural, pharmaceutical, food

305 Joseph Fiksel, Vincent T. Covello, The Suitability and Applicability of Risk Assessment Methods for Environmental Application of Biotechnology, in Bio-technology Risk Assessment, Issues and Methods for Environmental Introductions, Edited by Joseph Fiksel, Vincent T. Covello, Pergamon Press, 1986, at page 1. See also Office of Science and Technology Policy, 1984, Proposal for Coordinated Framework for Regulation of Biotechnology, Par II Federal Register 49 (25): 50856-50906. Also, see Arthur D. Little, Federal Biotechnology Policy Issues, Report to the National Science Foundation, Division of Policy Research and Analysis, February 1984. 306 Philip J. Dale & Julian Kinderlerer, Safety in the Contained Use and the Environmental Release of Transgenic Crop Plants, in Genetically Modified Organisms, A Guide to Biosafety, edited by George T. Tzotzos, UNIDO and Centre for Agriculture and Biotechnology International, 1995. 307 Id. 308 Supra, note 16 and 17. Craig W. Edminstern and H. Luo. 309 Office of Technology Assessment, Congressional Board of the 97th Congress, U.S., on constitutional constraints on Regulation, page 230.

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processing, and other industries in a range of purposes from food and fiber production to toxic

waste degradation.310 Meanwhile, “plant tissue culture is the in vitro (literally under glass)

manipulation of plant cells and tissues, which is the keystone in the foundation of plant

biotechnology”.311

The Protocol therefore finds application in golf courses. It would be instructive if the COP

recommends to the Contracting Parties to look into the relationship of hybrid turf grasses and the

LMOs. Thus, scientific and biological information regarding these types of crop plants must be

disclosed to the importing State to prevent mishandling of trans-genes. Golf courses are known

for its widespread use of hybrid turf grasses. Unless the stolons/grass clippings are disposed

properly they have the capacity to potentially harm native species, e.g., they clog canals and

waterways. These hybrids are mostly bio-engineered, scientifically researched, experimented

and developed, and are often patented by multi-national companies. Access to such resource are

limited and controlled by patentees, subject to payment of royalties.

Very few people know that hybrid turf grasses are actually invasive and harmful to the

environment. It also requires massive chemical support for growth and propagation. The grass

clippings or stolons312 have the capacity to grow and propagate when disposed or spread on soil

surfaces after aeration or topdressing activities. Technically, if the grass is disposed or

transferred through contact by turf equipment’s, spiked golf shoes, etc. each cell of a genetically

modified organism carry a trans-gene. Although there is a low probability that it could easily

transform and contaminate other species, in a way the gene has been released, thereby posing a

threat to the environment. Bio-engineered microorganisms, which are deliberately released “will

have unanticipated adverse health and environmental effects”.313

310 Read Jane Rissler & Margaret Mellon, The Ecological Risks of Engineered Crops, The MIT Press, 1996. 311 C. Neal Stewart Jr., Editor, Plant Biotechnology and Genetics, Principles, Techniques and Applications, University of Tennessee, Wiley Press, 2008, at page 113. 312 Stolons or clippings are shoots that bend to the ground or that grow horizontally above the ground and produce roots and shoots at the nodes. The term is often used in describing the botany of lawn grasses. See http://landscaping.about.com/cs/lazylandscaping/g/stolon.htm. Accessed on May 25, 2011. 313 Lawrence W. Banthouse & Anhony V. Palumbo, Assessing the Transport and Fate of Bio-engineered Microorganisms in the Environment, in Bio-technology Risk Assessment, Issues and Methods for Environmental Introductions, Edited by Joseph Fiksel, Vincent T. Covello, Pergamon Press, 1986, at page 109. (Italics supplied).

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The Advance Informed Agreement (AIA) mechanism is also vitally relevant as the massive use of

hybrid turf grasses in golf courses is a growing concern, particularly over the potential adverse

effects on biological diversity, taking into account the risks to human health. Hybrid turf grasses

are maintained under chemical-based programs; are considered as invasive and potentially

harmful species. It can even become harmful weed. The Cartagena Protocol provides regulatory

guidance and procedures, specifically on the importation of hybrid turf grasses – which are

actually genetically modified. Contracting parties need only to implement this Protocol. Thus,

even with the existence of general laws regulating plant, plant products and other products, there

is a necessity to enact Biosafety laws to control and regulate the massive use of hybrid turf

grasses, particularly those species, which have been genetically modified. The Cartagena

Protocol may provide regulatory guidance and procedures, specifically on the importation of

hybrid turf grasses.

E. The Stockholm Convention on Persistent Organic Pollutants (POPs), 2001 (in force 2004)

This Convention aims “to protect human health and the environment from persistent organic

pollutants (POPs), and imposes measures to reduce or eliminate releases from its production and

use” (Article 1). The Convention was signed on May 22, 2001 and entered into force on May 17,

2004 (Article 26.1). Philippines signed on May 23, 2001 and ratified on February 27, 2004.

Thailand signed on May 22, 2002 and ratified on January 21, 2005. Viet Nam signed on May 23,

2001 and ratified on July 22, 2002. Singapore signed on May 23, 2001 and ratified it on May 24,

2005.

This Convention314 is precautionary in approach (Article 1) and re-affirms Principle 7 (Common

But Differentiated Responsibilities) and Principle 16 (Polluter Pays Principle)315 of the Rio

Declaration. This Convention initially targets twelve POPs with Annex A containing the list of

POPs targeted for elimination and Annex B listing those to be restricted”.316 The Convention

reports that POPs are “organic chemical substances that are carbon-based, possessing a

particular combination of physical and chemical properties”, and that “once released into the

314 For a complete POPS status of ratifications, visit http://chm.pops.int/Countries/StatusofRatification/tabid/252/language/en-US/Default.aspx. Accessed on August 19, 2010. 315 Prin.16, Rio Dec. provides that “national authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution”. 316 On the Fifth Meeting of the COP (April 25 - 29, 2011), endosulfan is included as the 22nd POPs to be eliminated.

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environment POPs remain intact for exceptionally long periods of time”; “become widely

distributed as a result of natural processes involving soil, water and, most notably, air”.317 POPs

also “accumulate in the fatty tissue of living organisms, and are found at higher concentrations at

higher levels in the food chain”.318

Article 3 is a substantive obligation, which mandates measures “to reduce or eliminate releases

from intentional production and use”, mandating each Party “to prohibit and/or take legal and

administrative measures necessary to eliminate production and use, import and export of the

chemicals listed in Annex A, as well as restrict production and use of the chemicals listed in

Annex B”. Parties are being asked under Article 7 “to develop, prepare and transmit

implementation plans of its obligations to the COP, on periodic basis”. This procedural

obligation also requires Parties “to cooperate directly or through global, regional and sub-

regional organizations, consult national stakeholders to facilitate the development,

implementation and updating of national plans”.

Article 9 speaks of “exchange of information relevant to the reduction or elimination” while

Article 10 provides for “public information, awareness and education”. There is research,

development and monitoring (Article 11), technical assistance (Article 12) and financial

resources and mechanism (Article 13). Article 19 established the COP with a Secretariat (Article

20) where national reports are submitted and measures are taken to implement the Convention.

Parties are also required “to submit statistical data on its total quantities of production, import

and export of each of the chemicals listed in Annex A and Annex B; periodic report from which

it has imported and exported each substance”. Article 17 imposes substantive obligation for the

COP to “develop and approve procedures and institutional mechanisms for determining non-

compliance and for the treatment of Parties found to be in non-compliance”.

The use of chemicals to cultivate and maintain turf grasses in golf courses is a public concern.

The pesticides, fertilizers, herbicides, fungicides used are toxic chemicals that are harmful to

biological diversity and the health of people. More importantly, the blending and re-formulation

317 Id. 318 For reference and guidance, visit the POPs portal at http://chm.pops.int/Convention/ThePOPs/tabid/673/language/en-GB/Default.aspx. Accessed on May 25, 2011. Specific effects of POPs can include cancer, allergies and hypersensitivity, damage to the central and peripheral nervous systems, reproductive disorders, and disruption of the immune system. Some POPs are also considered to be endocrine disrupters, which, by altering the hormonal system, can damage the reproductive and immune systems of exposed individuals as well as their offspring.

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of registered chemicals, and its consequent sale and distribution to golf courses without approval

by regulating agencies must be looked into. It is therefore instructive for the international

community, through this Convention, to guide and develop regulatory policies, as well as foster

cooperation and collaboration to control the use of the active ingredients in POPs in golf

courses.

The growing public concern over the massive use of chemicals on turf grasses necessitates a

review by signatory countries of their respective national policy and legislation. This is in

compliance with their general commitments under the Convention. The NIPs and NRs must

reflect the state of the environment; compliance and non-compliance; challenges and major

drawbacks of implementation. The submissions must include a report on the increasing trend in

the unauthorized blending and re-formulation activities resorted by dealers/suppliers, which

reportedly are un-controlled and un-regulated. The NIPs and NRs must also include the actions

taken by national governments to address these concerns. Parties must also pursue the principles

embedded in Principle 21 on precautionary approach. Finally, this thesis strongly argues that

turf grass maintenance is not an agricultural activity. State Parties must look into this argument

and consider new policies or legislation that would include the golf sector within the ambit of

chemical regulation. The Convention therefore opens an avenue for scientific discussions and

evaluation of turf activities.

The principles embedded could develop, strengthen, promote, enhance and inform national

frameworks or domestic legislation. However, lessons maybe drawn from the implementation

and compliance of the Convention. The POPs provision on registration of chemicals states that it

“seeks to ensure the reduction and elimination of the production, importation, use and release of

the listed chemicals”. There is no regulatory mechanism for new or unlisted chemicals that are

mixed, re-blended and re-formulated by dealers-suppliers. The danger and the risks to health

brought by these unregistered and unregulated chemicals necessitate a second fresh look into the

coverage and scope of the Convention. There should be mandatory registration of new chemicals

within the time frames established under the law. Thus, national governments must formulate

and adopt a regulatory mechanism or a policy framework to address these concerns.

F. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1998 (in force 2004 )

This Convention was adopted at a Conference of Plenipotentiaries in Rotterdam on September

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10, 1998. It entered into force on February 24, 2004. Philippines signed on September 11, 1998

and ratified on July 31, 2006. Thailand ratified on February 19, 2002. Viet Nam ratified on May

7, 2007 and Singapore ratified on May 24, 2005.

The preambular provision states that the Convention seeks “to address the harmful impact on

human health and the environment from certain hazardous chemicals and pesticides in

international trade”. The preamble also states that Principle 15, Rio Declaration and Chapter 19,

Agenda 21 underlie the principles on “environmentally-sound management of toxic chemicals,

including prevention of illegal international traffic in toxic and dangerous products”. The

Convention emphasizes the specific need for information on transit movements, and the

promotion of good management practices for chemicals in all countries (Preamble).

Article 2 defines Chemical as a “substance whether by itself or in a mixture or preparation and

whether manufactured or obtained from nature, but does not include any living organism”. The

Convention applies “to banned or severely restricted chemicals and severely hazardous pesticide

formulations” (Article 3).319 Article 4 provides for designated and authorized national authorities

while Article 5 is the procedural obligation for banned or severely restricted chemicals. There

are provisions on general information exchange and technical assistance, including

implementation (Articles 14-16). Article 18 provides for a COP to review and evaluate

implementations, assisted by a Secretariat” (Article 19). The COP appoints members of the

Chemical Review Committee and establishes non-compliance mechanism (Article 17-19).

The dramatic growth in chemical production, use and trade, as well as the massive proliferation

of golfing complexes in Asia, raised both public and official concern about the potential risks

posed by hazardous chemicals. Countries lacking adequate legal and administrative

infrastructure to monitor and regulate the import and use of these chemicals are particularly

vulnerable. The golf course sector is one of the major purchaser/importer of chemicals. The

prohibitive costs of fertilizers and pesticides open floodgates to cheaper alternatives, sourced

from unscrupulous distributors and dealers. There are those who resort to blending and re-

formulation and this type of arrangement has been in existence for a long time. Some persons

point to suppliers from Taiwan for the distribution and sale of reformulated chemicals. However,

319 Art. 3, PIC Con. does not apply to Narcotic drugs and psychotropic substances; Radioactive materials; Wastes; Chemical weapons; Pharmaceuticals, including human and veterinary drugs; Chemicals used as food additives; Food; Chemicals in quantities not likely to affect human health or the environment provided they are imported.

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due to the extreme sensitivity of the illegal trade, no one has allowed himself to be interviewed

to confirm the story. Meanwhile, Singapore is also a major producer and exporter of chemicals

in the region according the Singapore Chemical Industry Council (SCIC).320

Information exchange between exporters and importers about hazardous chemicals helps reduce

incidence of illegal international trade and usage. The golf sector should be included in this

information mechanism. Information exchange among exporters, importers and end-users (golf

courses) enlighten both the suppliers and the users of these toxic chemicals, particularly

pesticides, fertilizers, herbicides and fungicides. There are risks involved when chemicals are

blended and re-formulated without the knowledge and approval of regulatory agencies. The new

characteristics, shelf life and toxicity of the resulting formulation pose risks to both health and

safety of applicators and handlers. Naturally, there are ecological impacts when these unknown

and un-registered chemicals are applied in golf courses. Access to information on hazardous and

toxic chemicals, should be made available to the public, who should be served with a notice and

warning of the risks and health consequences. Henceforth, the golf course industry should take

guidance from this Convention.

With the inclusion of the golf course sector in the submissions of NIP, the nefarious activities of

un-authorized blending and re-formulation will be curtailed, and the “black market” or illegal

trade of restricted chemicals will be eliminated. The NIPs will also highlight turf grass activities

and chemical application, identified popularly as “cultural practices”. It is also important that the

International Council of Chemical Associations321 has issued the Responsible Care Initiative to

promote “continuous improvement in health, safety and environmental performance through an

open and transparent communication with stakeholders.” As the program is a voluntary

undertaking of members, there are compliance issues and implementation constraints. The

initiative has general application and has not provided for specific application to the golf course

sector.

Golf courses are known to use Dichlorodiphenyltrichloroethane (DDT) - an organochlorine

contact insecticide that kills by acting as a nerve poison, and considered as the first synthetic

320 Visit http://www.scic.sg/. Also read http://www.apic-online.org/countrydata_singapore.htm. Accessed on August 25, 2012. 321 Responsible Care Initiative, International Council of Chemicals Associations, available at http://www.icca-chem.org/en/Home/Responsible-care/. Accessed on July 20, 2011.

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pesticide before it was banned under the Convention.322 There are reports that stockpiles of DDT

are still being maintained in some parts of Asia. Yet owing to the sensitivity of the subject

matter no one has allowed himself to be interviewed to support the allegation. Nonetheless,

Thailand submitted a National Report to the POPs Convention with admissions about stockpiles

of DDT in government warehouses.323

Dow Chemicals has reported the impact of the Convention on its business activities324 ,

particularly that “of the chemical substances listed as POPs, one - DDT - was used by the

company until 2006 as a chemical intermediate to make one product, while three additional

POPs are unintended by-products of certain manufacturing processes, i.e. dioxin,

hexachlorobenzene and polychlorinated biphenyls (PCBs)”. Dow mentioned in its report that “it

has made significant reductions in the emissions of the three compounds and is committed to

continual reductions”. Nevertheless, the report did not mention any knowledge, information or

probability of an existence of DDT stockpiles in government or private warehouses.

G. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998 (in force 2001)

The Aarhus Convention was adopted on June 25, 1998 and entered into force on October 30,

2001. The adoption of the Convention was spearheaded by the United Nations Economic

Commission for Europe (UNECE) during the Fourth Ministerial Conference ‘in the

Environment for Europe’ Process.325 The theme of the Convention is very specific. It is

applicable to the European Community, European Union and Central Asian countries, as well as

States having consultative status with the UNECE pursuant to paragraphs 8 and 11, Economic

and Social Resolution 36, dated March 28, 1947. None of the subject countries of this research is

a Party to the Convention nor has signified any interest to become a Party thereof. However,

under Article 19.3, the Convention allows any Member State of the United Nations to accede to

the Convention upon approval by the Meeting of the Parties”.

322 The insecticidal properties of DDT were discovered by the Swiss scientist Paul Müller, working for J.R. Geigy (now Novartis) in 1942. Visit http://www.pan-uk.org/pestnews/Actives/ddt.htm, Accessed on July 20, 2011. 323Read the 2008 National Implementation Plan (NIP) of Thailand to POPs Secretariat. 324 Impact of POPs to Dow Chemicals and Legal Position on the Convention, available at http://www.dow.com/sustainability/debates/dioxin/regulations/pops_pbts/stockholm.htm 325About the Convention, UNECE portal, available at http://www.unece.org/env/pp/welcome.html. Accessed on July 8, 2011.

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The preambular provision states that it “pursues public participation based on Principle 10, Rio

Declaration”. It is “built on three pillars, namely: access to information, public participation in

environmental decision-making and access to justice in environmental matters” (Article 1). The

Convention substantively obliges parties “to ensure that public authorities make available to the

public, within the framework of national legislation ‘environmental information’” (Article 4.1).

A “refusal to disclose information is subject to review” (Articles 4.7 and 9) and “in the event of

any imminent threat to human health or the environment, public authorities must immediately

disseminate all information to enable the public to take measures to prevent or mitigate the

harm” (Article 5.1.c). The Convention further provides that if any person who considers that his

request of information has been ignored or wrongfully refused, that person will have access to a

review procedure before a court of law or another independent body (Article 9.1). Article 15

requires parties “to establish a non-confrontational, non-judicial and consultative procedure to

review compliance”

Before golf courses are allowed to be developed information as to environmental impacts, socio-

political and economic consequences should be considered and carefully evaluated. Moreover,

public participation is vital in golf course development whereby stakeholders are included in

decision-making processes involving projects that have impact on their lives and sources of

livelihood. Golf course construction and operation pose development challenges. Thus, the right

of the people to information in relation to environmental impacts and consequences must be

secured. The right to be consulted, on matters affecting their life and source of livelihood is

crucially important and must be respected. The Convention is cognizant of that right and when

such right is denied or refused, there is access to justice. The procedural and substantive

mechanism of judicial appeal and review is a hallmark of environmental justice. Hence, the

Convention instructs, enhances or provides guidance for the ASEAN, as well as other regional

organizations, to pursue these imperatives.

H. Environmental Impact Assessment (EIA) 1. United Nations Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Trans-boundary Context (“Espoo Convention”), 1991 (in force 1997)

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This Convention was elaborated under the auspices of the UNECE326. The preambular provision

seeks “to promote cooperation between States with environmental, cultural or socio-economic

conditions that are likely to be affected by another’s activities”. It was signed on February 25,

1991 and entered into force on September 10, 1997. The Parties to the Convention include

European, Central Asian States and States with consultative status under ECE. Not one of the

subject countries is a signatory to the Convention although United States of America signed the

treaty but has not ratified it.327 Canada signed and ratified the Convention.328 Thus, there is a

likelihood or opportunity that the subject countries of this thesis may accede to the treaty in the

future.

The Convention “sets out the obligations of parties to assess the environmental impact of certain

activities at an early stage of planning”. It also lays down the general obligation “to notify and

consult each other on all major projects that are likely to have a significant impact across

borders”. Under Article 2.2, the Convention requires States “to carry out an EIA procedure for

all activities listed in Appendix I that are likely to have a “significant adverse trans-boundary

impact”’. The EIA process allows public participation and must result in the submission of EIA

documentation (Article 2.2). Article 3 speaks of “notification by the Party of origin of a proposed

activity”. An EIA documentation prepared by the Party of Origin shall be furnished to the Party

affected for submission of comments (Article 4) while consultations must be made on the basis

of the EIA (Article 5).

Article 5 speaks of the “final decision on the proposed activity, which must be provided to the

Affected Party along with the reasons and considerations it is based”. A post-project analysis is

included (Article 7), as well as the surveillance and the determination of any adverse trans-

boundary impact. There is a Secretariat (Article 13) and a Meeting of the Parties (Article 11),

which shall review the policies and methodological approaches to EIA. Under the List of

Activities in Annex 1, there is no mention of golf courses. However, under Appendix I, List of

Activities, groundwater abstraction (in cases where the annual volume of water to be abstracted

amounts to 10 Million cubic meters or more) requires an EIA.

326 The UNECE portal at http://www.unece.org/press/pr2011/11env_p27e.html. Accessed on July 25, 2011. 327 Contracting Parties of the ESPOO Convention, available at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4&chapter=27&lang=en 328 Canada signed in 1991 and ratified in 1998.

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Data shows that golf courses utilize at least 600,000 gals. of water daily for irrigation purposes.

Therefore, golf courses must submit to the EIA process if it will resort to water abstraction

amounting to 10 Million cubic meters annually. It is unlikely though that 18 holes golf courses

would utilize that much water unless massive golfing complexes (four 18 holes) are developed

in larger areas. Although not one of the subject countries is a signatory of the Convention, the

States may take guidance from the application of the principle of public participation whereby

stakeholders are consulted on activities that have environmental impacts -particularly Article 7

on post-project analysis and Article 2.2 on EIA and public participation.

2. Protocol on Strategic Environmental Assessment (SEA), 2003

The Protocol was signed on May 21, 2003 and is not yet in force. It was adopted at an Extra-

ordinary Meeting of the Parties to the EIA Convention during the Ministerial “Environment for

Europe”, Conference in Kiev, Ukraine. The Protocol seeks to “ensure that environmental,

including health considerations are taken into account in the development of plans and

programmes, policies and legislation” (Article 1.a and1. b). The general objective of the

Protocol is “to establish clear, transparent and effective procedure for SEA, public participation

and sustainable development” (Article 1.c, 1.d and 1.e). Under this Protocol, there is a

mandatory screening process – a case-by-case examination or by specifying types of plans and

programmes or by combining both approaches (Article 5); Scoping – establishing arrangements

for the determination of relevant information to be included in the environmental report (Article

6); and the submission of environmental report (Article 7). Public participation is likewise

emphasized (Article 8). Trans-boundary consultation is likewise included (Article 10). Under

Annex 1, List of Projects – in case of groundwater abstraction where the annual volume of water

to be abstracted amounts to 10 Million cubic meters or more, SEA is required.

It is instructive therefore, that golf courses have to be included in the coverage of SEA.

However, not one of the subject countries is a signatory to the Protocol. The Protocol applies

regionally specific to European community and Central Asia, as well as UNECE Members. Of

all the subject countries, only Viet Nam has adopted a Strategic Environmental Impact

Assessment (SEA) under the 2005 Law on Environmental Protection. Unfortunately, there is no

record of SEA prepared for golf courses in any of the Contracting Parties. This thesis was able to

locate a report on SEA by Taiwan entitled “Integrated dynamic policy management

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methodology and system for strategic environmental assessment of golf course installation

policy in Taiwan329, which the subject countries may take guidance and instruction.

EIA is an important tool for decision-making. It guides development plans and programmes and

informs stakeholders of the extent of development and its impact on the environment. The

principles and policies involving EIA processes inform, promote and enhance national

frameworks. Therefore, it is important that an EIA legislation or regulation should be adopted to

predict the likely impact of golf courses to be constructed. The EIA should require the

submission of ecological baseline studies, geological features, land use, historical and natural

classification of the land.

329 Ching-Ho Chen, Wei-Lin Liu, Shu-Liang Liaw, “Integrated dynamic policy management methodology and system for strategic environmental assessment of golf course installation policy in Taiwan, Environmental Impact Assessment Review, ELSEVIER, Science Direct, 31 (2011), at pages 66-76.

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CHAPTER III, PART II

REGIONAL ENVIRONMENTAL LEGAL FRAMEWORK

1.1 Introduction 1.2 Regional Environmental Agreements 1.3 Evaluation

1.1 Introduction

A. Association of Southeast Asian Nation (ASEAN)

In South East Asia, there is the Association of South East Asian Nations (ASEAN), an inter-

governmental organization composed of ten member-states, which aims to “accelerate economic

growth, social progress and cultural development”.330 The ASEAN legally started with the

adoption of the 1967 (Bangkok) Declaration by five member-countries331 for “collaboration and

mutual assistance . . . in the economic, social cultural technical, scientific and administrative

fields”. The territorial disputes among and between the neighboring States of Indonesia,

Malaysia and Philippines, as well as “fragmented economies with each country pursuing its own

limited objectives and dissipating meager resources, have precipitated the establishment of

regional cooperation”. 332 Thus, ASEAN was informally organized with a simply worded

document containing five articles. The 1967 Bangkok Declaration did not provide nor mention

the protection of the environment in the region.

The ASEAN practices “non-legal yet consensual decision-making and non-interference in the

internal affairs of member’s States”.333 In fact, the “Declaration did not have the usual legal

formulations such as effectivity clauses, ratification requirements, watertight stipulations or

provisions for amendments nor did it set up compliance bodies, any kind of supra national

authority or a dispute-settlement mechanism”. 334 “The relative rarity of legally binding

agreements in ASEAN is a product of the member-states’ preference for caution and gradualism

in developing regional institutions, ‘at a pace comfortable to all’”.335

330 The History of the ASEAN, at http://www.asean.org/asean/about-asean/overview. Accessed on May 18, 2013. 331 The original members of ASEAN are Indonesia, Malaysia, Thailand, Philippines and Singapore. Subsequent member-States include Brunei Darussalam, Cambodia, Laos, Myanmar and Viet Nam. 332 The Founding of ASEAN, available at http://www.asean.org/11835.htm. Accessed on July 8, 2011. 333 The ASEAN Regional Forum at http://aseanregionalforum.asean.org/files/library/Terms%20of%20References%20and%20Concept%20Papers/ARF%20Concept%20Paper%20of%20Preventive%20Diplomacy.pdf. Accessed on May 18, 2013. 334 Severino, Rodolfo C., Southeast Asia in Search of an ASEAN Community, Insights from the former ASEAN Secretary-General, Institute of Southeast Asia Studies, 2006, at page 3. 335 Id., at page 19

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However, the ASEAN now freely uses the word ‘integration’ in signifying the object of its

economic cooperation”.336 It is hoped that the “creeping” transformation would include a special

interest to pursue a concerted effort towards environmental protection, as “this region presents

perhaps the most promising pattern for inter-state cooperation on sustainable development”.337.

NUS Professor Emeritus Koh Kheng Lian notes that, “due to environmental concerns, the

member-States share their experiences in preparing national implementation plans, as well as the

crafting of institutional and legal frameworks”. Although the ASEAN established the

institutional framework for environmental management and cooperation it is perceived to be

weak owing to the fact that “there is no ASEAN parliament to issue laws, regulations or

directives and there are no enforcement agencies, which are established to ensure

compliance”.338

In one regional health-related incident the ASEAN was perceived to have facilitated the

implementation of the Convention on Biodiversity, the “Ramsar” Convention on Wetlands and

the Convention on Migratory Species to contain the pandemic spread of SARS, Avian Flu and

the H1N1 virus. Measures, particularly the precautionary approach in the culling of birds and

prevention of diseases is relevant issue in the containment of the spread of zoonotic diseases.339

Zoonotic diseases are diseases of animals that are transmitted to humans. The interface between

animals, human health, the effects of diseases to “domesticated” wild species and other “natural

reservoirs”, and the virulent viruses which includes Highly Pathogenic Avian Influenza

(HPAI)340 resulted in collaboration and cooperation among the ASEAN members States, the

World Health Organization (WHO), the 2006 COP on the Convention on Biodiversity, the 2008

COP of “Ramsar” Convention on Wetlands and international NGOs, to address the issue and

deal with it as a working group. In this aspect, the ASEAN has shown that it can implement

and/or facilitate the implementation of MEAs, with urgency and decisiveness.

336 Speech delivered by Rodolfo C. Severino, former ASEAN Secretary General, Joint INSEAD and Asia-Europe Foundation on “Regional Integration in Europe and Asia, Pasts, Presents and Futures”, in Singapore on July 7, 2003. Severino mentions that the “fifteen page joint communiqué issued by the foreign ministers in 2002 mentions the word “integration” or ‘integrate’ twenty-four times 337 Koh, Kheng Lian and Robinson, Nicholas, A, in “Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the ASEAN Way” (2002) 6 Singapore Journal of International and Comparative Law, 640 at 641. 338Capacity Building for Environmental Law in the Asian and Pacific Region, Approaches and Resources, Volume II, Edited by Donna G. Craig, Nicholas A. Robinson and Koh Kheng Lian, Asian Development Bank, 2000, page 2. 339 See generally, Kheng Lian Koh, “One World - One Health”, Avian Flu and SARS: The Policy and Legal Challenges of Zoonotic Diseases, Asia Pacific Centre of Environmental Law (APCEL), 2005. 340 Id.

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1. ASEAN Agreements and Instruments on the Environment

The ASEAN established the Centre for Biodiversity (ACB) in Laguna, Philippines, which

installed a Database of Protected Areas.341 The ACB claims that the ASEAN region “occupies

only 3 per cent of the earth's surface yet it boasts of globally significant terrestrial and marine

biodiversity that include an astonishing 18% of all species” 342 yet “in the context of

environmental governance, the ASEAN way is generally typified by soft rather than hard

laws”343. There are reasons why many environmental instruments take the form of soft laws344

but ASEAN needs hard laws to be adopted or signed. Nevertheless, the hard laws, which have

been effective, include the Agreement on Trans-boundary Haze Pollution, 2002; Tourism

Agreement, 2002; and the Agreement for the establishment of the ASEAN Centre for

Biodiversity, 2005.

2. ASEAN Institutional Framework

Prior to the adoption of the ASEAN Charter, various institutions contribute to the development

of environmental instruments in the region. But under the ASEAN Charter, the institutional

framework includes the following: a) ASEAN Summit, comprising the Heads of States or Heads 341 Data from the Biodiversity Information Sharing Services, ASEAN Centre for Biodiversity, available at http://bim.aseanbiodiversity.org/biss/index.php?option=com_wrapper&view=wrapper&Itemid=8. Accessed on July 8, 2011. 342 The assessment was made by the International Union for Conservation of Nature (IUCN), according to the ACB. 343 Some of the ASEAN instruments include the following: 1) Policy Guidelines on the Environment, specifically the Manila Declaration on the ASEAN Environment, 1981 which seeks “to ensure the protection of the ASEAN environment and the sustainability of its natural resources” . . . “that environmental consideration is taken into account in development efforts”; 2) Jakarta Consensus on ASEAN Tropical Forestry, Third Meeting, ASEAN Economic Ministers on Agriculture and Forestry, 1981, which declares “Common Forestry Policy for the establishment/consolidation of adequate, permanent forest estates for protection, production, and conservation/recreation; 3) Bangkok Declaration on the ASEAN Environment, 1984, which aims to “foster the development of macro-economic cum-environmental development plans”, which can be accommodated by the environmental carrying capacity of the region to continue and strengthen the use of the EIA process and extended Cost-Benefit Analysis, and 4) Singapore Resolution on Environment, 1992, which states that ASEAN “work closely on the inter-related issues of environment and development”. Meanwhile, the ASEAN soft law instruments include the a) Manila Declaration on the ASEAN Environment, 1981; b) Bangkok Declaration on the ASEAN Environment, 1984, reiterated in 2003; c) ASEAN Declaration on Heritage Parks, 2003; Jakarta Resolution on Sustainable Development, 1987; d) Kuala Lumpur Accord on Environment and Development, 1990; e) Singapore Resolution on Environment and Development, 1992; f) Bandar Seri Begawan Resolution on Environment and Development, 1994; g) Jakarta Declaration on Environment and Development, 1997; h) Yangon Resolution on Sustainable Development, 2003, and i) Cebu Resolution on Sustainable Development, 2006. The ASEAN leaders adopted the Concord II (Bali Concord II) in Bali, Indonesia on October 7, 2003 to “establish the ASEAN Community in 2020”, and reiterating the three pillars on political and security cooperation, economic cooperation and socio-cultural cooperation. Again, there is no pillar on environmental cooperation. 344 Weiss, Edith Brown (ed), International Compliance with Non-binding Accords, American Society of International Law (ASIL), 1997.

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of Government of Member States, as the supreme policy-making body (Article 7, Chapter IV);

b) ASEAN Coordinating Council, comprising the ASEAN Foreign Ministers, which meet twice

a year (Article 8); c) ASEAN Community Councils comprising the Political-Security

Community Council, Economic Community Council, and Socio-Cultural Community Council

(Article 9); d) ASEAN Sectoral Ministry Bodies and e) the Secretary General and the

Secretariat.

The ASEAN Charter did not establish an environment council, presumably to pursue greater

economic development in the region. The environment portfolio has been relegated to participate

with minor roles, such as the Working Groups. There are no explanations why the fourth pillar

has not been established but the ASEAN has clarified that the environment has been subsumed

in the socio-cultural pillar. In her new book, Professor Koh, Kheng Lian writes about the

ASEAN's progressive development of environmental law, policy and governance. She shares

that the ASEAN has grown in stature and has an important role to play in developing global

environmental sustainability. Regional organizations such as the European Union and

governments of countries like the United States, Australia, China and India are partners in

ASEAN's endeavours to develop a green planet.345.

3. The ASEAN Charter (2007)

The ASEAN Charter is the constitution for the ASEAN, providing legal status and institutional

framework for ASEAN. It also codifies ASEAN norms, rules and values; sets clear targets for

ASEAN; and presents accountability and compliance.346The ASEAN Charter entered into force

on 15 December 2008. Thus, the ASEAN operates under a new legal framework and establish a

number of new organs to boost its community-building process. The ASEAN Charter has

become a legally binding agreement among the 10 ASEAN Member States.

It is noteworthy to discuss that the Charter’s preambular provision directs ASEAN to “ensure

sustainable development and the protection of the region’s environment, the sustainability of its

natural resources . . . and the preservation of its cultural heritage” (Article 1.9). Article 2.1

substantively mandates member-States to “re-affirm and adhere to the fundamental principles

contained in the declarations, agreements, conventions, concords, treaties and other instruments

345 Kong, Kheng Lian, ASEAN Environmental Law, Policy and Governance: Selected Documents, May 9, 2013. 346 Visit http://www.asean.org/asean/asean-charter/asean-charter

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of ASEAN”. Aside from the purpose clause identifying sustainability and the protection of the

region’s environment, there is no clear environmental protection program mandated in the

Charter. Various community councils have been set up, specifically, for political affairs,

economic and socio-cultural (Article 9) but none on the environment. The ASEAN has clarified

that the environment pillar has been included in the socio-cultural council. Thus, this thesis

looks into various instruments forged under the ASEAN arrangements and evaluates their

application.

It is hoped that ASEAN Member-States would be more decisive to ratify the pending

environmental agreements and create a fourth pillar in the ASEAN community - the

environment pillar. Prior to the adoption of the ASEAN Charter, the ASEAN did not provide for

a central bureaucracy for member-states and the burden of implementation lies on member-states

itself. This has been addressed under the ASEAN Charter, which provides legal status and

institutional framework; codifies norms, rules and values; sets clear targets and presents

accountability; promotes sustainable development and regional solidarity.347 Thus, the Charter

has become a legally binding agreement.

1.2 Regional Environmental Frameworks – Institutional and Legal

A. ASEAN Agreement on the Conservation of Nature and Natural Resources, 1985

This Agreement348 was signed by the then six Member-States and shall enter into force on the

30th day after the deposit of the sixth instrument of ratification. Only three member-States have

ratified the Agreement.349 Thus, it still lacks the necessary ratification requirement, although

Brunei reported that it had initiated the process of ratification while Malaysia and Singapore are

considering the process of ratification.350 NUS Professor Emeritus Koh Kheng Lian discloses

that the Agreement was adopted after a series of meetings by the ASEAN Working Group on the

Environment, which eventually resulted in the Legal and Technical Experts Meeting Workshop

in Manila where the IUCN Environmental Law Centre and the Commission on Environmental

347 The ASEAN Charter, visit http://www.aseansec.org/21861.htm and http://www.aseansec.org/publications/ASEAN-Charter.pdf. Accessed on March 9, 2011. 348 Visit ASEAN website at http://www.aseansec.org/1490.htm. Accessed on August 19, 2010. 349 Philippines (September 4, 1986), Thailand (May 19, 1986) and Indonesia (July 10, 1986) submitted the instruments of ratification. 350 Koh Kheng Lian, A Study in Environmental Governance, ASEAN Agreement on the Conservation of Nature and Natural Resources 1985, Paper Presented before the World Parks Congress, 2003 in Durban, South Africa.

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Policy and Administration provided the technical assistance in drafting the Agreement. The draft

Agreement was adopted and signed by Member-Countries on July 9, 1985.

The preambular provision mentions that it seeks the “conservation of wild flora; fauna and

renewable resources through the protection of the ecosystems, habitat and endangered species

and by ensuring the sustainable use of harvested ones”. Basically, the Preamble points out the

“importance of natural resources for present and future generations and their ever-growing

scientific, cultural, social and economic value”. Article 1 mentions the substantive obligation of

Contracting Parties within the national legal framework to “adopt singly, measures necessary to

maintain essential ecological process and life-support systems”. Meanwhile, Parties are tasked to

develop national conservation strategies”. Specifically the Agreement stipulates about the role of

soil (Article 7), water (Article 8), Air (Article 9), land use planning (Article 12), protective areas

(Article 13) and impact assessment (Article 14), among others.

This Agreement mandates the Parties to ensure conservation and management of nature (Article

2); to develop, adopt and implement management plans based on scientific studies” (Article 4);

“conservation of the vegetation and forest cover on plants” (Article 6); “conservation of

underground and surface water resources, as well as to regulate and control water utilization”

(Article 8). The Parties have the secondary obligation to “maintain and promote proper and

sound agricultural practices such as controlling the application of pesticides, fertilizers and other

chemical products” (Article 10). The Agreement likewise provides for “natural resource

conservation into land use planning process” (Article 12); “establishment of terrestrial,

freshwater, coastal or marine protected areas” (Article 13). This Agreement speaks of “national

supporting measures for scientific research” (Article 15) and “education, information and public

participation” (Article 16), “cooperation concerning conservation and harmonious utilization of

shared resources” (Article 19) and “responsibility of ensuring activities do not cause damage to

the environment or the natural resources whereby an EIA shall be necessary before engaging in

any activity” (Article 20).

The Agreement promotes relevant ecological principles and policies such as biodiversity

protection, EIA, land use planning, etc. However, this Agreement is not yet in force owing to

lack of required ratification. It is important to highlight that this Agreement has more

comprehensive scope and coverage than the relevant MEAs. There are provisions on water and

water resources, soil, EIA, land use, air, protective areas, etc. It clearly mentioned the inter-

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relationship between conservation and socio-economic development to ensure sustainability of

development. The adoption of the phrase “sustainability of development” even precedes that of

the Report of the Brundtland Commission, “Our Common Future” in 1987, which deals with

sustainable development. The Agreement has been viewed as “remarkable” and “progressive”.351

In the Foreword to Legislation for implementation of this ASEAN Agreement, the Country

Report mentioned that, “the provisions reflect the most advanced state of the art of the

conservation and natural resource management at that time, containing a number of concepts,

which were unfamiliar in international agreements and which will call for a high degree care in

their transformation into national legislation”.

On the whole, it would be instructive and beneficial for the ASEAN Community to revise,

improve and enhance this Agreement, by updating the provisions with modifications to include

climate change, Strategic Environmental Assessment, Biodiversity Assessment, Protection and

Management, Chemical Usage, Land Use Planning, among others. A Working Group must

likewise be created to facilitate the meeting of the State-Parties to ensure the adoption of the

revised or modified Agreement. The Member-States must ensure the adoption and ratification of

this Agreement, as well as the subsequent national implementation. The principles embedded,

particularly the provisions on EIA, protective areas, etc. supports ecological programs that

benefit golf courses. It is recommended that the revised Agreement incorporate significant items

from the ASEAN Guidelines on Maximizing Biodiversity in Golf Courses prepared by the

ASEAN Centre for Biodiversity, particularly the provisions on reduction of chemical and water

usage, with revisions on critical issues and emphasis on setting standards and benchmarks.

B. ASEAN Tourism Agreement, 2002

The Agreement was signed on November 4, 2002 in Cambodia and entered into force on

February 21, 2007. Article 1 set the objectives “to cooperate in facilitating travel into and within

ASEAN”; “enhance cooperation in tourism”; “improve efficiency and competitiveness”;

“substantially reduce restrictions to trade in tourism and travel services”; and “to establish an

integrated network of tourism and travel”. It also seeks “to enhance the development and

promotion of ASEAN as a single tourism destination, to create intra-ASEAN travel and

investment in tourism services and facilities” (Article 5).

351 Id. Koh Kheng Lian.

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This Agreement is relevant owing to the massive development of complexes intended for golf

tourism. Any improvement on the competitiveness and efficiency in tourism activities benefit

the golf sector. With the facilitation of travel within the region, the golf course industry will

benefit from the Agreement. The goal to achieve efficiency and competitiveness serve as an

opportunity for golf clubs to improve services and turf grass activities since competition

enhances development activities. This Agreement likewise informs domestic legislation by

including standards or benchmarks for infrastructure support to promote tourism, and eventually,

golf tourism.

C. ASEAN Declaration on Heritage Parks, 2003

This Declaration is a soft law instrument and replaces the 1984 ASEAN Declaration of Heritage

Parks and Reserves, which was signed by then six member-States (eleven parks and reserves

were named as ASEAN Heritage Parks and Reserves). In 2003 a new Declaration was passed to

update the additional membership of the ASEAN, which include a list of Heritage Parks and

Reserves. The Declaration was made in consideration of “the uniqueness, diversity and

outstanding value of certain national parks and reserves of ASEAN Member Countries that

deserve the highest recognition so that their importance as conservation areas could be

appreciated regionally and internationally”. The 2003 Declaration speaks of the “necessity to

conserve national protected areas, as well as the uniqueness, diversity and outstanding value of

certain national protected areas”.

Appendix I, Declaration lists the following Heritage Parks in Philippines, as Mt. Apo National

Park and Iglit-Baco National Park; in Thailand, Khao Yai National Park, Kor Tarutao National

Park, Ao Phangnga - Mu Koh Surin – Mu Koh Similan Marine National Park and Kaengkrachan

Forest Complex; in Viet Nam, the Hoang Lien Sa Pa National Park, Ba Be National Park, Kon

Ka Kinh National Park and Chu Mom Ray National Park; and in Singapore, the Sungei Buloh

Wetland Reserve and Bukit Timah Forest Reserve.

ASEANs Declaration of Heritage Parks benefits mankind. Golf courses situated inside heritage

areas or adjacent thereto must be preserved and protected. There have been numerous reports of

golf courses constructed within the premises of heritage parks or adjacent thereto, e.g. Tam Dao

Golf Course, a case study in this research, is located next to Tam Dao National Park (Viet

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Nam)352, Eastridge Golf Club (Philippines) dug a tunnel to connect its back and front nine holes,

thus damaging the Petroglyphic Rockshelter353. There have been reports of incursion and re-

direction of rivers and streams from the national parks to the golf courses. This kind of

development activity must be curtailed particularly in the four subject countries, which are

signatories to the Declaration. A hard law involving Heritage Parks must be adopted by the

ASEAN in view of the necessity to protect important heritage parks of regional and national

importance from destructive development activities.

D. Agreement on the Establishment of the ASEAN Centre for Biodiversity, 2005

The preambular provision of this Agreement mentions the immense importance of the rich

diversity of biological resources in the region; highlights the commitment of the Members to

conserve and sustainably use the resources, in accordance with national priorities, regional and

international imperatives. Article 1 established the ASEAN Centre for Biodiversity (ACB) in the

Philippines in order to “facilitate cooperation and coordination among members, relevant

national governments, regional and international organizations on the conservation and

sustainable use of biological diversity, fair and equitable sharing of benefits”. Philippines host

the ACB and continue to facilitate the ASEAN program. The ACB also issued the ASEAN

Guidelines on Maximizing Biodiversity in Golf Courses in 2004, which can be considered as

internationally precedent setting.

1. ASEAN Guidelines on Maximizing Biodiversity in Golf Courses, 2004

The ASEAN Centre for Biodiversity (ACB) released the Guidelines354, which deals with the

management of the in-play (Chapter 2) and out-of-play areas (Chapter 3) in golf courses,

particularly on water conservation (Item 2.1), water quality (Item 2.2), use of chemicals (Item

2.3) and control of special problem creatures (Item 2.4). It also provides for habitat and species

management (Chapter 4) and promotes conservation ethics among the membership (Chapter 5).

The Guidelines provide three guiding principles “to reduce activities that are negative to the

environment, increase biological richness and ecosystem complexity to create greater stability

352Tam Dao National Park, visit at http://en.skydoor.net/entry/Tam_Dao_forest_to_become_entertainment_site/114. Accessed on April 15, 2013. 353 Angono Petroglyphs and Eastridge Golf Course at http://www.eastridgegolf.com/about.html. Accessed on April 15, 2013. 354 Biodiversity Guidelines is attached as Appendix “18”. The Biodiversity Guidelines was prepared by John R. MacKinnon, ARCBC (Now ACB) and Ma. Cheryll T. Manzano-Patulot of Manila Southwoods Golf and Country Club, 2004.

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and natural control and to use indigenous rather than exotic species whenever possible”.

The Guidelines proposed under Chapter 1 “to minimize water needs and recycle water”;

“minimize the use of toxic control agents, develop a waste management programme suitable to

the site”; “allow natural flora and fauna to colonize water hazards and water courses”; “minimize

the use of burning as a management tool, encourage diverse natural vegetation on of course

areas, declare course a wildlife sanctuary”; “seek advice from local wildlife experts”; “prepare a

biodiversity management plan for the course”; “control and minimize introduction of Invasive

Alien Species”; “develop special habitat conditions to encourage rare local species”; and

“document biological data and trends or changes”.

A critical evaluation of the Guidelines shows that it was not properly studied, discussed and

analyzed as the discussions and recommendations were limited and restrictive. It is unclear

whether turf grass experts or golf course executives were hired or consulted to supervise the

preparation of the Guidelines. The recommendations either are unclear, generalized and did not

set standards or benchmarks to ensure the maximization of biodiversity in golf courses. The

proposal to “minimize” water, toxic chemicals, burning, etc. is not well defined. There is also a

proposal to control and minimize the introduction of invasive alien species (IAS). There is no

specific recommendation on how to address this problem. The Guidelines should have identified

these IAS, such as hybrid turf grasses, trees, and ornamental plants, which are not endemic in the

area. IAS does not belong to golf courses, not even for aesthetic reasons, since these IAS are

destructive species that could threaten the very core of turf grass growth and cultivation.

Many golf courses choose to grow ornamental plants to cut on clean up and clearing costs. Even

golf course architects recommend these non-fruit bearing plants to avoid incursion of wild

animals and birds in the golf course. Moreover, no specific recommendations were proposed to

reduce water usage through groundwater extraction and no specific chemical rate of application

has been recommended. No benchmarks or standards were proposed, i.e. volume of production

by reduced watering of fairways and rough areas; reduced chemical application in fairways and

tees. There were no discussions on how to regulate water extraction, e.g. use of flow meter. The

Guidelines merely mentioned general guidelines and recommendations “whenever possible”.

Nonetheless, the Guidelines initiated the first step towards the protection of biodiversity in golf

courses and the ASEAN, as a regional body, laid down the first norm to protect and maximize

biodiversity in golf courses.

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1.3 Evaluation

It is submitted that the principles behind the regional environmental frameworks help to pursue,

strengthen and enhance the formulation or adoption of national frameworks for the protection of

the environment, specifically in relation to golf courses. It is however important to point out, that

this research finds the ASEAN environmental framework more pronounced and expansive than

the MEAs, specifically the ASEAN Agreement on the Conservation of Nature, 1985. The

Agreement contains more relevant provisions on EIA process, soil, air, water, protected areas

and cultural heritage areas. There are more issues covered by this single instrument unlike a few

MEAs, which have specific application. Yet the Agreement must be revised and submitted for

adoption, by incorporating new discoveries and recent developments on conservation and

environmental protection, and some salient points raised by the Guidelines on Maximizing

Biodiversity in Golf Courses. The ASEAN must therefore adopt a common approach to

environmental protection with regional mechanism for compliance and implementation.

Professor Koh points out that, “the role of ASEAN in developing an ecosystem management

approach must begin with a recognition that the region is to be considered as one ecosystem.355

355 Kheng Lian Koh, Ecosystem management approach to biodiversity conservation: The Role of ASEAN. The first ASEAN Environmental Forum, September 20-24, 1999, Hanoi.

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CHAPTER III, PART III NATIONAL OR DOMESTIC ENVIRONMENTAL FRAMEWORKS

1.1 Legal Systems 1.2 Structure of Government and National Governance 1.3 Government Agencies Responsible for the Regulation of Golf Courses 1.4 Legal and Regulatory Frameworks 1.5 Relevant Constitutional Provisions 1.6 Cross-National Comparative Analyses and Evaluation 1.7 Industry Norms and Self-Regulation Abstract This chapter looks into the laws and environmental governance of the four countries, classified into three stages of golf course development, namely, (1) planning stage, (2) development and construction stage, and (3) operation and maintenance stage. This chapter also provides a cross-national comparison of these frameworks.

1.1 Legal Systems

This chapter takes a look into the laws and environmental governance of the four subject

countries in relation to the three stages of golf course development and operation. The legal

system of the Philippines has been influenced by the Spanish civil system and Anglo-American

common law tradition. Thailand is based on the civil law system with influences of common

law from European countries (French and German) and Japan. Viet Nam’s legal system is based

on communist legal theory and the French civil law system. Meanwhile, Singapore is a

sovereign republic with a legal system based on the English common law.356 Therefore, this

thesis indirectly considers whether the legal system has a bearing on the protection and

management of the environment in golf courses.

1.2 Structure of Government and National Governance

In the Philippines, the President is the Head of State and the government357, directly elected in a

popular election for a term of six years (Article VII, Section 4, 1987 Philippine Constitution).

The President presides over a Cabinet whom he appoints with the consent of the Commission on

Appointments (Article VII, Section 16). The bicameral Congress358 comprises the Senate and the

356 Kevin YL Tan, Editor, The Singapore Legal System, Second Edition, Singapore University Press, National University of Singapore, 1999, at page 26. 357 Phil. Const. (1987), art. VII, s.1 states that, “executive power shall be vested in the President of the Philippines” while s.17 provides that “the President shall have control of all the executive departments, bureaus and offices and shall also ensure that the laws be faithfully executed”. 358 Phil. Const., art. VIII, s.1 states that, “[L]egislative power shall be vested in the Congress, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.”

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House of Representatives and is the supreme law-making authority in the country. The members

of Congress are directly elected through a system of popular voting (Article VI, Section 2).

Judicial power is vested in one Supreme Court and in such lower courts established by law

(Article VIII, Section 1). The Judicial Reorganization Act, Batas Pambansa Blg. 220 (1981)

provides for four main levels of courts and special courts.359 Meanwhile, the structure of

governance is divided into central, provincial, city, municipal, and barangay governments360.

The President exercises general supervision over local governments (Article X, Section 4).

Thailand is a constitutional monarchy with the King as the Head of State (Royal Thai

Constitution, 2007, Chapter I, Section 1-2). The democratic form of administration divides the

governing power into three equal branches of the government, to wit: executive, legislative and

judiciary. The Prime Minister leads the government, and presides over a Council of Ministers

(Chapter IX, Section 171). The Council of Ministers sets policies and goals and the individual

ministers and subordinates carry them out within their designated agencies (Chapter IX, Section

176). The supreme law-making authority is the National Assembly (Part I, Chapter VI, Section

88), consisting of the Senate361 and the House of Representatives, whose members are elected

for four-year terms (Chapter VI, Section 104). The judicial branch consists of all the courts,

which are independent bodies classified into three levels consisting of the Courts of First

Instance, the Courts of Appeal, and the Supreme Court (Chapter X, Section 218). A

Constitutional Court362 has been created to resolve issues of laws, regulations and governmental

decisions.

Decentralization of central power, as a policy of the government, is currently practiced in

Thailand, which actually emanates from Section 78 of the abrogated 1997 Royal Thai 359 BP 220 provides at the local level metropolitan trial courts, municipal trial courts, and municipal circuit trial courts. The next level consists of regional trial courts, which exercises original and appellate jurisdiction. The Special courts include Muslim circuit and district courts in Moro (Muslim Filipino) areas, the Court of Tax Appeals, and the Sandiganbayan, which tries government officers and employees charged with violation of the Anti-Graft and Corrupt Practices Act. At the national level are the Court of Appeals and the Supreme Court, the apex of the judicial system consisting of a chief justice and fourteen associate justices. 360 RA 7160, Local Government Code, book I, chap. I, s.4 (1991) provide that, “the code shall apply to the provincial, city, municipal and barangay governments”. The “barangay” or a village is a basic political unit in the Philippines. 361 Sec.111 states that, “the Senate shall consist of 150 members acquired upon the basis of election in each Changwat (one elected senator for each Changwat) and upon the selection based in an amount equal to the total number of senators”. 362 Thai. Const, part. II, chap. X, s.204. Read generally, Andrew Harding and Penelope Nicholson, Editors, New Courts in Asia, 2010, Routledge Law in Asia, Chapter 6, The Constitutional Court of Thailand, 1998-2006, at page 121.

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Constitution albeit decentralization is limited up to the level of local administration and

constitutional “independent agencies”.363 The decentralization of local administration is different

from local autonomy whereby local authority involves the power to control, administer and

officiate local concerns. Decentralization is Thailand is actually a delegation of powers from the

central office to local administration.

The Thai Administrative structure is made up of three systems: central administration, local

administration and local autonomy under the State Administration Act, 1991. The central

administration comprises the Ministries and departments, while local administration is composed

of provinces and districts. The central ministries have their branch offices in local

administration, at provincial halls and district offices, which exercises authority delegated to

them. Thus, structure of governance is divided into national, provincial and district levels, with

the provinces headed by Governors and the districts by Chiefs.364 The city of Bangkok has its

own governmental authority known as the Bangkok Metropolitan Authority. Currently, there are

seventy-six provinces or changwats, six types of local governments, three urban (Bangkok

Metropolitan Administration, special self-governing municipalities, and the City of Pattaya) and

three rural (districts, tambons, and sukhapiban or "sanitary districts").

In Viet Nam, the President is the Head of State (1992 Viet Nam Constitution, Article 101),

elected from among the National Assembly representatives and is responsible and accountable

thereto (Article 102). The Prime Minister is the head of the Government (Article 110). Executive

powers are vested largely in the Prime Minister, the Ministers and other officials of ministerial

rank (Article 109-110). The National Assembly is the supreme law-making body that elects

senior governmental figures (Article 83). It is the only body vested with constitutional and

legislative powers and exercises the right of supreme supervision of all State activities (Article

83-84). At the apex of the judiciary is the Supreme People’s Court (SPC), which is the highest

court for appeal and review (Article 134). The SPC reports to the National Assembly, which

controls the judiciary’s budget and confirms the president’s nominees (Article 135). Below the

SPC are district and provincial people’s courts, military tribunals, and administrative, economic,

363 “Decentralization was geared towards self-determination in local affairs, development of local economies . . . in accordance with the demands of the local population”. Visit the portal of the Ministry of Foreign Affairs at http://www.mfa.go.th/multimedia/E_Book/b2.pdf. Accessed on October 30, 2010. 364 Thailand at a Glance by the Ministry of Foreign Affairs at http://www.mfa.go.th/multimedia/E_Book/a1.pdf. Accessed on October 30, 2010.

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and labor courts (Article 127-129). All members of the judiciary are elected by and held

accountable to the local government.365

The structure of national governance comprises the central government in Hanoi and the

subsidiary levels of government at the provincial, city, town and local levels. 366 At the

provincial level - there are fifty-nine provinces and four municipalities - the People’s

Committees367 are the effective organs that implement and enforce laws. The administrative

framework at the central level is made up of several core ministries, state agencies, line

ministries, and other national agencies and committees, such as the Ministry of Planning and

Investment, the Ministry of Agriculture and Rural Development, etc. The Provincial People’s

Committee is the highest administrative office at the provincial level, headed by a chairperson.

At each level, the People’s Committee controls the local specialized services such as industrial

development, tourism and environment. 368 There is local administration brought by

decentralization to the people’s committees.

In Singapore, the Constitution lays down the fundamental principles and basic framework for

the three organs of state, namely, Executive, Legislative and Judiciary. The Executive comprises

the Cabinet responsible for the general direction of the Government (1992 Singapore

Constitution, Chapter 2, Section 23) and is accountable to Parliament Section 24, Clause 2). The

President appoints the Prime Minister (Article 25, Clause 1) and acting on the advice of the

latter, also appoints other Ministers from among the Members of Parliament. The Prime Minister

is the effective head of the executive branch of government and chairs the Cabinet (Article 24).

The Legislature comprises the Parliament (Article 38) while full Judicial power is vested in the

Supreme Court and the subordinate courts (Article 93), consisting of the Court of Appeal and the

365 Const., art. 128 states that, “the provision on the appointment, removal, dismissal and term of office of judges, on the election and term of office of people’s assessors of the People’s Courts at all levels are determined by law”. 366 Const., art. 118 stats that, “the country is divided into provinces and cities directly under the central authority. Provinces are divided into districts, provincial cities and municipalities; cities directly under central authority are divided into precincts or districts and municipalities. Districts are divided into communes and townships; provincial cities and municipalities are respectively divided into wards and communes; districts are divided into wards”. 367 Const., Art. 118 also state that, “People’s Councils and People’s Committees in administrative units are regulated by Law”. Art. 123 provides that, “the People’s Committees are elected by People’s Councils and are the executive agencies of the respective People’s Councils”. 368 Phan Nguyen Toan, Vietnam: Overview of the Vietnam Legal System, Environmental Law and Enforcement in the Asia-Pacific Rim, Terri Mottershead, at pages 547-550.

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High Court.369 The Chief Justice, Judges of Appeal, Judicial Commissioners, and High Court

Judges are appointed by the President from candidates recommended by the Prime Minister

(Article 94, Clause 5).

1.3 Government Agencies Responsible for the Regulation of Golf Courses

This sub-topic identifies the primary, secondary and affiliate agencies of the government, which exercises, either direct or indirect supervision and control over the activities of golf courses in the four subject countries. A. Philippines

Golf course developers and operators have to deal with various agencies of the government in

order to obtain permission to commence development and to operate golf courses through a

licensing, clearance or permitting system.370 Under Executive Order 192 (1987), the Department

of Environment and Natural Resources (DENR) is the primary implementing agency for

environmental protection and management, including the preservation of cultural and natural

heritage”.371 The DENR sits at the top of the institutional framework and functions “to regulate

all natural resources use; assess environmental impacts; control pollution and manage toxic

chemicals”, among others.

This legal structure has been changed with the enactment of Republic Act (RA) 7160, Local

Government Code of 1991, which provides for “genuine and meaningful local autonomy and

decentralization” (Section 2.a). Consequently, central power has been devolved to the local

government units (LGUs) under the operative principle of decentralization (Section 3.i), thus

LGUs “share the responsibility with the national government in the management and

maintenance of ecological balance”. The LGUs ensure and support the “preservation and

enrichment of culture; promote health and safety, enhance the right of the people to a balanced

ecology” (Section 16).

Section 17 defines "devolution" as the act by which the national government confers power and

authority upon various LGUs to perform specific functions and responsibilities. Section 26,

particularly mentions the duty of the National Government to maintain ecological balance and

369 Const, s. 94, cl.1 provides that the “Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court exercises both original and appellate criminal and civil jurisdiction”. 370 Regulatory agencies impose clearance or licensing requirements such as the DENR, Laguna Lake Development Authority, Securities and Exchange Commission, etc. 371 EO 192, s.5, cl.b (1987) re-organized the DENR offices.

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obliges the central government to consult (Section 27) LGUs, non-governmental organizations,

and other sectors concerned involving matters with ecological impact, as well as the measures

undertaken to prevent or minimize the adverse effects. This means that the duty to maintain

ecological balance is actually a shared responsibility.

Environmental Protection as Shared Responsibility

Environmental protection is a shared responsibility between the DENR and the LGUs. This

collaborative responsibility was an offshoot of the decentralization policy embodied under the

Local Government Code. Nonetheless the decentralization results needlessly in regulatory

conflicts, as LGUs tend to assert their authority over natural resource policy issues.372 In fact, the

devolution 373 of central authority to LGUs resulted in the creation of two Provincial

Environment and Natural Resources Office (PENRO)374, two Community Environment and

Natural Resources Office (CENRO)375 and two Municipal Environment and Natural Resources

Office (MENRO) making one PENRO/CENRO/MENRO under the operational and budgetary

authority of DENR and the other PENRO/CENRO/MENRO under the administrative, political

and financial responsibility of the LGU. This unique set up creates jurisdictional overlap, turf

wars and conflicts, which are more pronounced and prominently felt by the golf course industry.

The environment officers under the LGUs are mandated to be appointed under the Local

Government Code, particularly, Section 443 (b), Chapter 2, wherein a Mayor may appoint a

Municipal Environment and Natural Resources Officer (MENRO). Section 454 (b), provides for

the appointment of City Environment and Natural Resources Officer (CENRO) (Section 444 {e})

and Section 463 (b) for the appointment of a Provincial Environment and Natural Resources

Officer (PENRO) subject to (Section 463 {e}) on budgetary limitations. This thesis argues that

although the LGU counterparts have specific delegated authority, there is duplication regarding

environmental protection tasks376. Frontline tasks for these LGU environment offices include

provision on technical assistance to component city/municipalities in the compliance of 372 Local Government Code, ss.18, 19, 20 (1991) states that “LGUs have the power to generate and apply resources, eminent domain, re-classify land uses, locate waste management and disposal sites”. 373 The local government functions identified under DAO 30-92 pertains to the rules and regulations implementing the transfer to concerned LGUs of personnel, assets and records in relation to devolved functions of national government agencies. 374 The LGU PENRO adopts varied names in different provinces, such as Provincial Environment Management Office (PEMO). 375 The LGU CENRO adopts the name Municipal Environment and Natural Resources Office (MENRO). 376 See generally, website of South Cotabato Provincial Government, Office of the Provincial Environment and Management Office, regarding frontline services, at http://southcotabato.gov.ph/main/?p=3388. Accessed on April 12, 2012.

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environmental laws, ordinances and polices, as well as for the request of

inspection/validation/monitoring of Solid Waste Management, Air and Water Quality

Management. It is in this aspect of compliance that duplication and conflicts exist, more so with

their inspection powers.

The duplication of work and the creation of similar yet disparate entities under the supervision of

different agencies (DENR and LGUs) result in confusion as to which agency are responsible to

implement a particular task or program. There were instances in the past where golf operators

would receive two letters requesting inspection and reportorial compliance from the two

agencies. Sometimes two notices of violations are sent out to developers or operators by two

different agencies and there is also a possibility that two separate entities will be investigating

the project proponent for any violation that may arise. There are instances when fourth-class

municipalities377 without budgetary allocation for MENRO counterpart refuse to establish said

office as LGUs with very low income and lower Internal Revenue Allotment (IRA)378 from the

national government may not be able to afford its operation. A few fourth class municipalities

actually do not have MENROs. Nonetheless, no study has been conducted to determine whether

the absence of the LGU counterpart of MENRO works better or not in terms of regulation.

Primary and secondary Environmental Agencies

Within the DENR are natural resource management bureaus, such as the Environmental

Management Bureau (EMB)379, Forest Management Board (FMB)380, Land Management Bureau

(LMB)381, Protected Areas and Wildlife Bureau (PAWB)382 and Natural Resources Development

Corporation (NRDC).383 Other agencies attached to DENR include the National Mapping and

Resource Information Authority (NAMRIA),384 which serve as the central mapping authority385

377 Local Government Code, ss.6, 7 speaks of the creation and conversion of LGUs. 378 Local Government Code, s.284 provides for the Allotment of Internal Revenue Taxes. Specifically, it states that LGUs shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal. 379 EO 192, s.6 stipulates that EMB is a staff sectoral bureau tasked with the principal responsibility of implementing the country’s environmental laws. 380 EO 192, s.13 381 EO 192, s.14 382 EO 192, s.18 383 The Natural Resources Development Corporation (NRDC) was created under Executive Order 786 (1982) “to promote and undertake the development and use of technologies and systems that complement the utilization of natural resources”. See generally, the COA Audit Report about NRDC at http://www.coa.gov.ph/1998_AAR/GOCCs/NRDC/NRDC_aar98es.htm. Accessed on August 14, 2010. 384 NAMRIA is the central mapping agency responsible for map-making services; depository and distribution facility of natural resources data in the form of maps, charts, texts, and statistics. Established

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and conducts research on remote-sensing technologies, satellite imagery, and similar

technologies; and the Laguna Lake Development Authority (LLDA)386 - a government-owned

corporation which serve as regulatory authority in the Laguna de Bay Region.387

The secondary national agencies with collaborative and coordinating jurisdiction – occasionally

with overlapping competencies, include the Department of Agriculture (DA)388 and two of its

attached agencies - the Pesticide and Fertilizer Authority (FPA)389 and the Bureau of Soils and

Water Management (BSWM)390; the Department of Agrarian Reform (DAR)391; the Department

of Interior and Local Government (DILG) 392 and the provincial, city and municipal

governments. For investment purposes, other secondary agencies include the Department of

Trade and Industry (DTI)393, the Board of Investments (BOI)394 and the Securities and Exchange

under AO 31, series 1988, which prescribed the guidelines implementing EO 192, s.22, cl.a. Available at http://www.namria.gov.ph/. Accessed on August 16, 2010. 385 A NAMRIA certified topographic map is a pre-requisite for land use conversion. An area, which shows more than 18 degrees slope, is exempted from land reform coverage and distribution under RA 6657, Agrarian Reform Law, s.10 (1988). 386 RA 4850 (1966) established LLDA with the primary authority for the development of the Laguna De Bay Region. Available at http://www.llda.gov.ph/. Accessed on August 16, 2010. 387 LLDA requires golf developers to pay a one-time Clearance/Regulation fee of PHP 7.20 (USD .16; SGD .23), based on the total land area (per square meters) as mandated under RA 4850, as amended by Presidential Decree 813 and EO 927, Series 1983 and LLDA Resolution 176, Series 2002. Developers complained about the astronomical charges (a hectare of land consists of 10,000 square meters; at PHP 7.20/sq.ms, the fees could go as high as PHP 72,000{USD 1,750; SGD 2,202}) per hectare, at foreign exchange rate as of May 22, 2033. For LLDA Clearance Requirement and Fees, Visit http://www.llda.gov.ph/index.php?option=com_content&view=article&id=144&Itemid=497. Acceseed on May 22, 2013. 388 The Department of Agriculture is the principal agency responsible for the promotion of agricultural development (EO 116 {1987}). Visit at http://www.da.gov.ph/, accessed on August 16, 2010. 389 PD 1144, Fertilizer and Pesticide Authority (1977) mandates to assure adequate supplies of fertilizers and pesticides; rationalize the manufacture and marketing of fertilizers; protect the public from the risks inherent in the use of pesticides; and educate the agricultural sector in the use of these inputs. Visit at http://www.fpa.da.gov.ph/. Accessed on August 16, 2010. 390 The BSWM is responsible for advising and rendering assistance relative to the utilization of soils and water as vital agricultural resources. Available at http://www.bswm.da.gov.ph/. Accessed on August 16, 2010. 391 The Department of Agrarian Reform is the lead implementing agency of the Comprehensive Agrarian Reform Program, RA 6657 (1988), as amended. Visit http://www.dar.gov.ph/. Accessed on August 18, 2010. 392 The DILG assists the President in the exercise of general supervision over local governments. The Local Government Code ensures the autonomy of local government units. Available at http://www.dilg.gov.ph/. Accessed on August 16, 2010. 393 Visit the website of the Department of Trade and Industry at http://www.dti.gov.ph/splash.html. Accessed on August 15, 2010. 394 The BOI portal is available at http://www.boi.gov.ph/. Accessed on August 16, 2010.

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Commission (SEC)395 for the registration and licensing of proprietary membership shares to be

sold to the general public.

Golf course developers are required to obtain water permits396 from the National Water

Resources Board (NWRB)397, which was charged as the lead government agency in the water

sector (PD 1067, Water Code [1976]). The National Irrigation Administration (NIA) is a

government-owned and controlled corporation primarily responsible for development and

operation of all irrigation systems”.398 Meanwhile, the Environmental Impact Assessment

Review Committee (EIARC)399 evaluates the Environmental Impact Study (EIS)400 and makes

appropriate recommendations regarding the issuance or non-issuance of an Environmental

Compliance Certificate (ECC)401. Within the DENR network is a relevant quasi-judicial body,

the Pollution Adjudication Board (PAB).402

Executive Power of Control

As discussed under the structure of government (Sub-Topic 1.3, Philippines), the President

appoints the members of the Cabinet. In the case of Carpio v. Executive Secretary (1992), the

Supreme Court held that “the respective departments of the government under the Office of the

395 Visit Securities and Exchange Commission at http://www.sec.gov.ph/. Accessed on 12 August 2010. 396 PD 1067, Water Code, art.13 states that, “except as otherwise provided, no person, including government instrumentalities or government-owned or controlled corporations, shall appropriate water without a water right, evidenced by a water permit”. This has been emphasized under the Implementing Rules and Regulations (IRR), rule.1, s.1 of the Water Code. 397 NWRB was reconstituted under EO 123 (2002) and is responsible for ensuring the optimum exploitation, utilization, development, conservation and protection of water resource. It is an adjunct agency of the Office of the President. Visit at http://www.nwrb.gov.ph/. Accessed on August 16, 2010. 398 NIA was created under RA 3601 (1963, amend.). NIA is an attached agency of the Department of Agriculture (DA) under AO 17 (1992) - tasked to “develop and manage water resources; provide necessary services consistent with the agricultural development program; develop and rehabilitate irrigation systems in support of the national food production. Visit http://www.nia.gov.ph/. Accessed on August 16, 2010. 399 Per DENR-DAO 2003-30 (IRR, EIS System), the EIA Review Committee (EIARC) is a body of independent technical experts and professionals of known probity from various fields organized to evaluate the EIS, other related documents and to make appropriate recommendations on the issuance or non-issuance of Environmental Compliance Certificate (ECC). 400 DAO 2003-30, s.3, cl.k defines EIS as a “document, prepared and submitted by the project proponent and/or EIA Consultant that serves as an application for an ECC”. It is a comprehensive study of the significant impacts of a project on the environment. It includes an Environmental Management Plan/Program that the proponent will fund and implement to protect the environment 401 DAO 2003-30, s.3, cl.k defines ECC as a “document issued by the DENR-EMB after a positive review of an application, certifying that the proposed project or undertaking will not cause significant negative environmental impact”. It also certifies that the proponent has complied with all the requirements of the EIS System. 402 The PAB is a quasi-judicial body created under EO 192, s.19 for the adjudication of pollution cases. Portal is available at http://www.emb.gov.ph/pab/template/mainpab.htm. Accessed on August 6, 2010.

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President exercises quasi-political agency function and that the acts of the heads of the

departments are deemed the acts of the President, unless reversed, approved or reprobated”.

Thus, the doctrine is corollary to the control power of the President (Article IX, Section 4).

Moreover, the peril of losing the trust and confidence of the appointing authority (who may

likewise bring a number of bureaucrats and technical staff with them) contribute to the insipid

performance and confusing implementation of laws and regulations, as the official concerned

would sometimes replicate unwarranted policies laid down by the executive authority whom he

derives his appointment. There is also the possibility that the policies laid down by the executive

department clashes with various legislations. The Joint Legislative and Executive Development

Advisory Council (LEDAC) reconcile the implementation of laws and the programs of the

government.403

The department heads of DENR, DA, DAR, DILG, etc. exercising direct or indirect authority

(control or supervision) over the golf course industry are actually members of the official

Cabinet.404 The Department heads serve at the pleasure (co-terminus) of the President – the

appointing authority, with the approval of the Commissions on Appointment.405 Meanwhile, the

General Managers, Executive Directors and Bureau Chiefs supervise or manage subordinate

government agencies such as the LLDA, NWRB, and NAMRIA.

Rules of Procedures for Environmental Cases (2010)

The Rules govern procedures in civil, criminal and special civil actions before the Regional,

Metropolitan, Municipal Trial Courts in Cities and Municipal Circuit Trial Courts involving

enforcement or violations of environmental and other related laws, rules and regulations”.406 The

Rules designated 117 courts to handle environmental cases all over the country as provided

under Administrative Order No. 23-2008 (Re: Designation of Special Courts to Hear, Try, and

Decide Environmental Cases). The Rules likewise established the “right of citizens to file

403 RA 7640 (1992) created the Legislative-Executive Development Advisory Council (LEDAC) as a consultative and advisory body to the President, who is the head of the national economic and planning agency. LEDAC is intended to help the President to integrate his legislative agenda with the national development plan. 404 See generally, Office of the President portal at http://www.president.gov.ph/cabinet/default.aspx. Accessed on August 14, 2010. 405 Read Carpio v. Executive Secretary, 206 SCRA 290, 295-296 (1992) on the doctrine of quasi-political agency and confirmation Process at http://comappt.gov.ph/ on the powers of the Commission on Appointment. Accessed on February 25, 2013. 406 Rules of Procedure for Environmental Cases, rule 1, s.2

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suits”407 - an innovative provision, which can be considered as recognition of the Oposa

Minors408 ruling on “the right of generations yet unborn to file a suit”. Under the Rules, the right

to sue is recognized without any qualification as to the legal personality or capacity of the citizen

filing environmental suits. Moreover, Section 8, Part II provides for Temporary Environmental

Protection Order (TEPO) 409 while Section 1, Part III, Rule 7 provides for a “writ of

Kalikasan”410 - a legal remedy available to persons whose constitutional right to a balanced and

healthful ecology is violated, or threatened as to prejudice his life, health or property.

Consultation, Stakeholders Participation

Section 2.c, Local Government Code requires national agencies to conduct periodic

consultations with appropriate LGUs, non-governmental and people's organizations, and other

concerned sectors of the community before any project or program is implemented. Thus, the

LGUs have the indispensable role, with the participation of the local stakeholders in promoting

responsible environmental protection. Although it maybe claimed that endorsements of golf

course projects by the LGUs or the Regional Development Council (RDCs) are required under

the EIA process there is a need for greater participation of civil society in decision-making

processes. Thus, while jurisdiction over EIA under the EIS Law (PD 1586) lies with the DENR,

LGUs and the stakeholders from civil society are empowered to stop any project that destroys

ecological balance, despite issuance of permit by the DENR. This is pursuant to Article XIII,

Section 16, Philippine Constitution on the right of the people and their organizations to effective

and reasonable participation at all levels of social, political, and economic decision-making”.

The public consultation mechanism has been judicially interpreted in support of the powers of

the LGUs and the local community to craft their sustainable future, namely; 1) Tano v. Socrates,

278 SCRA 154, August 21, 1997, in which the Supreme Court said that “the centerpiece of the

Local Government Code is the system of decentralization as expressly mandated by the

Constitution. The decision also states that “indispensable thereto is devolution, which is the act

by which the National Government confers power and authority upon the various LGUs to

perform specific functions and responsibilities”; 2) Alvarez v. PICOP, G.R. No. 164516,

December 3, 2009, in which the High Court said that, “the approval of the Sangunian concerned 407 Rules of Procedure, Part. II, s.5 408 Oposa Minor, et al. v. Fulgencio Factoran, 224 SCRA 792 (1993) 409 Rule 1, s.4 stipulates that the TEPO “directs or enjoins any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment”. 410 “Kalikasan” is a Filipino word for environment.

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is required by law not because the local government has control over such project, but because it

has the duty to protect its constituents and their stake in the implementation of the project”.

The principle of local autonomy operates in the Philippines. Thus LGUs and stakeholders may

refuse to allow the development or operation of golf courses in their territory if there is danger to

the environment, public health and safety after the conduct of public consultation. However, this

argument has been articulated best on paper rather than in practice. The failure of the LGUs and

local communities to assert its powers and responsibilities, despite the legal participatory

framework, can be perhaps a subject of another thesis.

B. Thailand

The primary implementing agency in-charge of the environment is the Ministry of Natural

Resources and Environment (MONRE) 411 but the responsibility over natural resource

management resides with the sectoral ministries.412 The Ministry of Agriculture and Cooperative

(MOAC) is the central agency of the Royal Irrigation Department (RID) and the Department of

Agriculture (DA). Among the powers and duties placed under the DA is pesticide regulation.

The Ministry of Interior is tasked to oversee land management and planning. There is

decentralization through delegation of powers from the central agency to local administration.

The MONRE is divided into several departments, divisions and regional offices with specific

environmental concerns. The relevant agencies include the Department of Groundwater

Resources (DGR)413, Office of the National Environment Board (ONEB)414, Office of Natural

Resources and Environmental Policy and Planning (ONEP)415, Environmental Impact Evaluation

411 MONRE was established by virtue of B.E. 2545, Royal Decree on Transfer of Governmental Agencies Authority and the Restructuring Act (2002). Among the agencies attached include the Department of Marine and Coastal Resources; Department of Mineral Resources; Department of Water Resources; Department of Groundwater Resources; Department of Environmental Quality Promotion; National Park, Wildlife and Plant Conservation Department; Office of Natural Resources and Environmental Policy and Planning; and Royal Forest Department. 412Visit http://www.moac.go.th/eng/inside.php?pages_id=7. Accessed on August 18, 2010. 413 The Department of Groundwater Resources was established to oversee the development and management of integrated groundwater resources. See http://www.dgr.go.th/en/main.htm. Accessed on August 18, 2010. 414 The ONEB is tasked to submit policy or to propose amendment for enhancement and conservation of national environmental quality and to supervise the enactment of royal decrees and issuance of Ministerial regulations, local ordinances, notifications as mandated under NEQA 1992, s.13. 415 ONEP is an agency under the MONRE, which is in charge of the EIA process. Visit http://www.onep.go.th/onep_en/ and http://www.onep.go.th/eia/ENGLISH/eia_eng_index.htm Accessed on August 18, 2010.

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Bureau (EIEB)416, Department of Quality Environment Promotion (DEQP)417 and Pollution

Control Department (PCD)418, among others. The PCD adopts the Polluter Pays Principle

(PPP)419; Strict Liability420 and the policy of decentralization where local officials are deputized

as pollution control officials and local authorities are responsible for taking action for their own

provincial environmental management plans through the annual budgeting process.

The secondary agencies exercising direct and indirect regulation of the golf course industry

include the Ministry of Agriculture and Cooperatives (MOAC)421, Ministry of Commerce

(MOC)422, Ministry of Interior (MOI)423, Office of the Natural Culture Commission (ONCC)424,

Land Development Department (LDD) 425 , Board of Investments (BOI)426 , Securities and

Exchange Commission (SEC)427 and the Tourism Authority of Thailand (TAT). TAT was

established “to promote tourism, culture and sports”, and “to initiate development of

infrastructure and other facilities for tourists” (Tourism Authority Act, Section 8). It has capital

consisting of money and properties from budgetary appropriations for operation or expansion

(Section 10), as well as income accrued from assets and government subsidies from tourist

industry operation (Section 11). The Prime Minister exercises general supervision over the

affairs of TAT while the Board lays down policies and supervises generally the affairs of the

416 EIEB is responsible for specifying the types and sizes of projects required to conduct EIA reports; issuance and renewal of permits to EIA consulting firms; monitoring the environmental performance of projects after EIA approval, etc. It is an attached agency of the ONEP. Visit http://www.onep.go.th/eia/ENGLISH/about_eieb/about_eieb.htm. Accessed on August 19, 2010. 417 The Department of Environmental Quality Promotion (DEQP) disseminates environmental data and information; acts as the national information center support public participation protection, among others. Visit http://www.deqp.go.th/website/52/. Accessed on August 19, 2010. 418 PCD is empowered to control, prevent, reduce and eliminate pollution, conserve and rehabilitate the environment. Visit PCD at http://www.pcd.go.th/indexEng.cfm. Accessed on August 19, 2010. 419 The Polluter Pays Principle states that, “the owner or possessor of the pollution source is held responsible for all costs of construction and operation of their treatment facilities or paying service fees to send their waste to the government's central treatment/disposal plant”. 420 The doctrine states that, “the owner or possessor of the pollution source must be responsible for all costs of damage resulting from their operation”. See Patricia Birnie and Alan Boyle, International Law and the Environment, 2nd Edition, Oxford University Press, at page 183. 421 Office of Pesticide Regulatory Sub-division, Department of Agriculture – MOAC. 422 The Department of Business Development is an agency of the MOC. 423 The Ministry of Interior is in charge of local administration, internal security, Thai Police, etc. The Ministry portal is maintained in Thai language at http://www.moi.go.th/portal/page?_pageid=193,626326,193_626374&_dad=portal&_schema=PORTAL. Accessed on September 2, 2010. 424 The Natural Culture Commission is an attached agency of the Ministry of Education. 425 The Land Development Department - MOAC 426 The BOI assists in investment services. 427 The Corporate Affairs Department is an office under the Securities and Exchange Commission.

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agency through a system of audit and control (Section 33). There are budgetary appropriations

by the government for TAT (Section 42).

The Department of Local Government, Ministry of Interior (MOI) is in charge of local

administration while provincial governments directly supervise the activities of local authorities.

Thailand has historically centralized power within the national government. However, in 1992

the local administration was allowed to play a role in formulating the annual environmental

provincial action plan under the NEQA (1992). There is also decentralization of central power to

local administration in Thailand (Section 78 of the abrogated 1997 Royal Thai Constitution but

which continue to be valid and applicable). The decentralization mechanism is actually a

delegation of task to local administration, which is distinct from decentralization with local

autonomy or independence in other jurisdictions.

C. Viet Nam

The Ministry of Environment and Natural Resources (MNRE) is tasked to manage and protect

the environment.428 Governmental Decree No. 91/2002/ND-CP (2002) regulates the functions,

tasks, powers and organizational structure of MNRE429 while Decision No. 45/2003/QD-TTg

(MHA) issued by the Prime Minister established the provincial Departments of Natural

Resources and Environment (DNRE). Circular No. 01/TTLT-BTNMT-BNV (2003) provides

guidelines to the authority designated to assist the Provincial People’s Council (PPCs) in

addressing issues of natural resources and environment within the provincial level.

The Department of Environment (DOE) assists in environmental protection in terms of policy-

making, legislation and planning.430 The Department of Appraisal and EIA (DAEIA) assists in

the implementation of EIA and appraisal.431 The Viet Nam Environmental Protection Agency

428 The Ministry is also designated as the national focal point of national councils in water resources, clean water supply and environmental sanitation. The website is maintained in Vietnamese language at http://www.monre.gov.vn/monreNet/Default.aspx?tabid=231. Accessed on August 20, 2010. 429 Resolution No. 02/2002/QH11 (9th Congress, August 5, 2002) passed by the National assembly stipulated the list of ministries and ministerial bodies of the Government, including the MNRE. 430 The DOE also supervises compliance; conduct the investigations and surveys on the impacts of environmental policies and legislations, etc. 431 The Department of Appraisal supervises the implementation of environmental protection activities as committed in the appraised EIA reports; appraisal of EIA reports of special development projects; EIA appraisal for large projects; EIA appraisal of environmental technologies; provide guidelines and professional training for EIA appraisal. Visit http://www.nea.gov.vn/english/organization/Department/Dep-EIA-Eng.htm and http://mkb.slu.se/publikationer/projarb/mfs_vietnam.pdf. Accessed on 2 January 2009.

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(VEPA) was established under Decision No. 14/2005/QD – BTNMT to assist the MNRE in the

examination, supervision, prevention, mitigation and remediation of environmental pollution,

among others432. VEPA also examines and supervises post-EIA operations.433 When MNRE was

established, it was designated to manage natural resources excluding water management

functions, such as public water services delivery434 and water-related responsibilities. Today,

water resource management was removed from the irrigation and drainage services of the

Ministry of Agriculture and Rural Development (MARD), as well as other water-related services

under other ministries. The Department of Water Resource Management (DWRM) was set up in

2003 within MNRE, to carry out state management of water resources. The DWRM has been

conferred with the responsibility for surveying and licensing basic water resource allocation;

inventory and assessment of water resources, establishment of database; implementation of

measures to protect water resources.

The Ministry of Planning and Investment (MPI) is charged with the role of planning and

investment, as well as providing comprehensive advice on the country-level socio-economic

development strategies, programs and plans.435 The Ministry of Agriculture (MA) is responsible

for agricultural activities, fertilizer use and regulation. The National Historical Institute (NHI) is

in charged of the preservation of historical or archeological sites. Affiliate agencies, such as the

Land Use Planning Council (LUPC) is in charged of land use planning, zoning, land

compensation and clearance. The Securities and Exchange Commission (SEC) is charged of

securities regulation while the Provincial People’s Committees (PPCs) in fifty-nine provinces

and four municipalities are the effective organs that implement and enforce the laws laid down

by the central authority.

D. Singapore

A few line ministries and government agencies exist to govern the city-State. The Ministry of

Environment and Water Resources (MEWR) is the primary implementing and enforcement

agency for pollution control and water management. The ministry has two statutory boards, the

432 VEPA website at http://www.nea.gov.vn/en/Pages/homepage.aspx. Accessed on August 21, 2010. 433 As of December 2001, VEPA has inspected more than 6000 reports on EIA in which at the national level there are 720 applications and 5,300 at the regional level. 434 The Ministry of Agriculture and Rural Development (MARD) and other ministries then carried out state water management. 435 The MPI advises on economic management mechanisms and policies for specific sectors, on domestic and foreign investments, and management of official development assistance (ODA) sources. Visit the portal at http://www.mpi.gov.vn/portal/page/portal/mpi_en. Accessed on August 21, 2010.

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National Environment Agency (NEA)436 and the Public Utilities Board (PUB)437. Aside from

MEWR, there is the Ministry of National Development (MND), which directs the formulation

and implementation of policies related to national development. The attached/affiliate agencies

of MND include the Urban Re-development Authority (URA), Agri-Food and Veterinary

Authority (AVA)438, National Parks Board (NPB)439, Building and Construction Authority

(BCA)440, and Housing Development Board (HDB), which is the public housing authority,

which plans and develops public housing towns that provide quality homes and living

environments.441

The Ministry of Manpower (MOM) and the Ministry of Health (MOH) exercises collaborative

regulation of the golf course industry and its activities, specifically on the implementation of

Workplace Safety and Health Act, Cap. 354A.442 The AVA was established to ensure a resilient

supply of safe food, to safeguard the health of animals and plants and, facilitate agri-trade for the

well being of the nation.443 The Singapore Land Authority (SLA) is a statutory board under the

Ministry of Law with main focus on land resource optimization, sales, leases, acquisition,

allocation, and maintaining the national land information database. It is also the national land

436 The NEA is in-charge of pollution control, solid waste management, public hygiene and cleanliness, prevention and control of vector-borne diseases. The Pollution Control Department assists NEA in pollution control, at http://app2.nea.gov.sg/index.aspx. Accessed on February 5, 2010. 437 The PUB is the national water agency, responsible for the collection, production, distribution and reclamation of water. It has three broad structural divisions for water supply, sewerage and drainage systems. Visit http://www.pub.gov.sg/Pages/default.aspx. Accessed on May 8, 2010. 438 AVA provides agricultural, fishery, animal and plant health, veterinary public health, and food safety services. Available at http://www.ava.gov.sg/. Accessed on August 24, 2010. 439 The National Parks Board (NParks) is the custodian responsible for nature areas and parks, providing and enhancing greenery of the Garden City. See http://www.nparks.gov.sg/cms/. Accessed on August 24, 2010. 440 The Building and Construction Authority is an agency under the Ministry of National Development tasked to develop the built environment. Available at http://www.bca.gov.sg/index.html. Accessed on August 24, 2010. 441 Housing and Development Authority portal is available at http://www.hdb.gov.sg/. Accessed on August 24, 2010. 442 During the personal interviews of Warren Golf Club General Manager and Golf Course Superintendent, the issue of workplace safety was mentioned. Golf courses have a high number of workplace accidents and safety issues. 443 AVA administers a total of nine Statutes, namely, the Agri-Food and Veterinary Authority Act, Cap. 5 (2000, amend.); Animals and Birds Act, Cap. 7 (1965, amend.); Control of Plants Act, Cap. 57A (1994, amend.); Endangered Species (Import and Export) Act, Cap. 92A (2006, amend.); Feeding Stuffs Act, Cap. 105 (1966, amend.); Fisheries Act, Cap. 111 (1969, amend.); Sale of Food Act, Cap. 283 (1973, amend.); Wholesome Meat and Fish Act, Cap. 349A (1999, amend); Wild Animals and Birds Act, Cap.350 (1965, amend), including subsidiary legislations. Visit http://www.ava.gov.sg/Legislation/ListOfLegislation/. Accessed on August 24, 2010

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registration authority.444 There is also the Ministry of Community Development, Youth and

Sports (MCYS)445, which has included in its portfolio the supervision and control of sports

policies and infrastructure development. A statutory board, the Singapore Sports Council (SSC),

is the lead agency tasked with developing sports in Singapore.446

Singapore used to be a centralized government but local government has been devolved to Town

Councils (TCs) and to Community Development Councils (CDCs), which are government-

sponsored organizations. The Ministry of National Development (MND) through the Urban

Redevelopment Authority (URA) implements the comprehensive land use planning system in

the country447. The URA is the national planning authority as provided under the Urban

Redevelopment Authority Act, Cap. 340 (1989. Singapore pursues a policy of land reclamation.

The URA notes that, “the future reclamation {currently done} can increase the existing land size

by another 15%, however there is a limit to how much it can reclaim as Singapore's shoreline is

not far from the boundaries of its neighbors”.448 Singapore’s land reclamation policy is widely

criticized by neighboring Malaysia.449 The soundness of reclamation, specifically its wise use,

including for golf course development450 is an important issue to be evaluated.

Singapore recently adopted the 2011 Concept Plan451, which was submitted by the Focus

Group452 to the URA for final recommendation.453 Nevertheless, the Plan did not formulate a

444 Singapore Land Authority website at http://www.sla.gov.sg/htm/hom/index.htm. Accessed on September 4, 2010. 445 The MCYS portal is available at http://app1.mcys.gov.sg/. Accessed on August 24, 2010. 446 The Singapore Sports Commission (SSC) was formed in 1973. Visit at http://www.ssc.gov.sg/publish/Corporate/en.html. Accessed on March 30, 2009. 447 The MND directs the formulation and implementation of policies related to national development. It oversees six statutory boards - the URA, AVA, National Parks Board, Building and Construction Authority, Housing Development Board and three Professional Committees – the Board of Architects (BOA), the Professional Engineers Board (PEB) and the Strata Titles Board. 448 Preliminary statement, 2001 Concept Plan, see http://www.ura.gov.sg/conceptplan2001/. Accessed on February 18, 2010. 449 International Tribunal for the Law of the Sea (ITLOS) Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor, 2003. Malaysia complained that the reclamation caused serious erosion, siltation, decreased flushing, hindrance to flood flow, etc. Available at www.itlos.org/case_documents/2003/document_en_225.doc. Accessed on May 3, 2010. 450 The Tanah Merah Country Club and the Marina Bay Golf Course sit on reclaimed land while a portion of Serapong course of Sentosa Golf Club was built on reclaimed area. 451 The Concept Plan is a “key national planning process to help allocate limited land resources to achieve economic, environmental and social sustainability outcomes holistically. The review is carried out once every ten years”. URA website available at http://www.ura.gov.sg/pr/graphics/2010/pr10-97a_SDRpt.pdf. Accessed on December 19, 2010. 452 The Focus Group appointed to study the Concept Plan consists of two co-chairmen, and twenty-five members representing various sectors, e.g., academe, business.

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national policy for golf course development. Neither has it adopted a comprehensive public

participation or general consultation mechanism. Singapore has no EIA legislation and there was

no mention of EIA in the 2011 Concept Plan Report, despite various calls for the adoption of the

same454. Golf courses surprisingly were not mentioned unlike in the 2001 Concept Plan455 where

golf was specifically included. Based on the Report by the Focus Group, it appears that very few

citizens participated in the public consultation. This brings to the fore the issue of pressure for

greater participation and consultation with the grassroots and not only with the more educated

class.

1.4 Legal and Regulatory Frameworks

A. Philippines

There is hierarchy of laws, which include the 1987 Constitution; Republic Acts (RAs) passed by

Congress; Presidential Decrees (PDs) issued by former President Marcos (Martial Law era-

1972-1981), which were not revoked or repealed and are still valid and effective. Other

regulatory measures include Executive Orders (EOs) passed by the Executive branch of

government; Department Administrative Orders (DAOs) issued by relevant Departments;

Proclamations 456 , Memorandum Circulars/Orders issued by government institutions with

specific regulatory authority, Implementing Rules and Regulations (IRR) and Ordinances,

among others. Meanwhile, LGUs have their own legislative competence over matters of local

concern, particularly in areas devolved by the Local Government Code. The local government

apparatus is the major implementing machinery of the executive government owing to its grass

root capacity, reach and competence.

453 The Focus Group reports that “the Plan was finalized after extensive site visits and discussions…. took into account the diverse views of the Focus Group members (comprising representatives from academia, grassroots, non-governmental organizations and professional institutions); the report also incorporated the views of the public obtained from the Lifestyle Survey 2009 and Online Survey 2010; the Public Forum held on May 6. 2010 and the online feedback website that was opened to the public from 6-25 May 2010”. The Focus Group’s Report is available at http://www.ura.gov.sg/pr/text/2010/pr10-97.html. Accessed on August 24, 2010. 454 There is administrative implementation of EIA in Singapore. Read at http://www.unescap.org/drpad/vc/orientation/legal/2D_std_sgp.htm. Accessed on May 19, 2013. EIA will be required for major projects in Singapore. Visit http://www.straitstimes.com/breaking-news/singapore/story/budget-2013-environmental-impact-assessments-major-projects-are-public. Accessed on May 19, 2013. 455 The clause on Recreation of the 2001 Concept Plan states “to provide a variety of sports facilities . . . land will be set aside for a wide range of recreational activities, from swimming pools and badminton courts to public golf courses and marinas, depending on future demand. Available at http://www.ura.gov.sg/conceptplan2001/recreation.html. Accessed on December 19, 2010. 456 A Proclamation is an act of the President fixing a date or declaring a status or condition of public moment or interest, i.e., proclamation of a working day as a holiday. Read Antonio A. Oposa Jr., A Legal Arsenal for the Philippine Environment, Batas Kalikasan Foundation, 2002, at page 2.

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The Philippines457 provide for the protection of water and water resources through a licensing and

permitting system, including the issuance of a policy recommendation for usage of water by golf

courses in critical areas458; sanitation and pollution control459; registration and regulation of usage

and application of chemicals.460 The laws provide for environmental impact assessment (EIA)461

and prohibit incineration.462 There are laws for the protection of archeological sites and heritage

parks, in cases where golf courses encroach on these areas463, nature conservation and biodiversity

protection464. Notwithstanding the plethora of environmental legislation, the Philippines encounter

enforcement problems.

457 The statutes include Presidential Decrees (PD), Republic Acts (RA), Executive Orders (EO), Proclamations (Procs.), Letters of Instructions (LOI). The agencies issue Administrative Orders (DAO), Memorandum Circulars (MCs), Resolutions (Res.) and Policy Recommendations. 458 PD 1067 {1976}, National Water Code; RA 9275 (2004), Clean Water Act; RA 8041 (1995), National Water Crisis Act; RA 6716 (1989), Rainwater Collection and Spring Protection Act; RA 6978 (1991), Irrigation Crisis Act; RA 4850 (1966), Laguna Lake Development Authority Act; RA 3931 (1964), National Water & Air Pollution Control Commission; NWRB Policy Recommendation for Golf Courses in Critical Areas, Res. No. 003-0109 459 PD 856 (1975), Sanitation Code; RA 6969 (1990), Control of Toxic Substances, Hazardous and Nuclear Wastes; PD 984 (1976), Pollution Control Decree; RA 8749 (1999), Comprehensive Air Pollution Control; RA 8749 (1999), Clean Air Act; DENR AO 26 (1992), Appointment of Pollution Control Officers (PCOs) 460 PD 1144 (1977), Fertilizer and Pesticide Act; Guidelines on Fertilizer Product Registration (Implementing Circular 96 - 08 {1996} 461 PD 1586, EIS System; DAO 2003-30 (2003), Implementing Rules and Regulations (IRR) of PD 1586, and revising DAO 21(1992) and DAO 37 (1996); DENR–DAO 2003-30 implements PD 1586; DENR-DAO 300 (1996), clarifies the authority to grant or deny the issuance of ECCs; DENR-DAO 96-37 (1996), Revises the rules and regulations for implementation; elucidating public participation in EIA; DENR-DAO 42 (2002), Rationalized the implementation of EIS and streamlined the processing system by delegating the authority to approve EIA application and issuance of ECC to the Secretary of the DENR, Director and Regional Directors of the EMB; DENR-DAO 2005-10, Implementing Rules and Regulations (IRR) of RA 9275; DENR-MC 2002-15 (2002), Identifies the scope of violations and Guidelines for the imposition of Penalties under the Philippine EIS system and specifically provides criteria for the reduction of the maximum penalty imposed by Section 9, PD 1586; DENR-MC 2007-08 (2007), Simplifies the requirements for ECC or Certificate of Non-Coverage Application; DENR MC 21, Series 2003, Guidelines on the availment of the reduction of penalties for projects operating without ECC in violation of PD 1586 462 RA 9003 (2000), Ecological Solid Waste Management Act 463 RA 4368 (1965), National Historical Commission Act; PD 260 (1973), Sites and Shrines Law; PD 374 (1966), Cultural Properties Preservation and Protection Act; RA 9072 (2001), Manage and Protect Caves and Cave Resources 464 RA 7586 (1992), National Integrated Protected Area System Act; RA 9147 (2001), Conservation and Protection of Wildlife Resources and their Habitats; EO 247 (1995), Established the regulatory framework on Biological and Genetic Resources; PD 953, Tree Planting Law; RA 3571 (1963), Prohibiting the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants, Shrubs or Plants of Scenic Value along Public Roads, Plazas, Parks, etc. and in Certain Places Act

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B. Thailand

In Thailand, the hierarchy of laws is as follows: the 2007 Constitution; Acts passed by

Parliament465; Regulations and Notifications466 enacted by the respective Ministries to clarify or

lay down a policy with particularity. The Ministry of Natural Resources and Environment was

established in 1992 with broad centralized powers and authority for environmental management

and protection. There is decentralization of authority to local administration geared towards self-

determination in local affairs and development of local economies467. The decentralization

policy was built under the 1997 Royal Thai Constitution yet despite its abrogation, the 2007

Constitution has not undermined but continues to significantly observe the local administration

system.

The main legal framework for environmental protection and management is the Enhancement and

Conservation of the Natural Environmental Quality Act, (NEQA,) B.E. 2535 (1992), which

subsumed the regulation of EIA, pollution control, sanitation, water quality standards, air quality

and noise standards, etc. However, there are sectoral issues, which have been regulated under

various statutes and guidelines, such as water resources468, wildlife preservation and protection469,

public health and hazardous substances470, land use, reform and development471, waste utilization

and biosafety.472 Thailand has EIA law but golf courses are not required to prepare an EIA for

development. In relation to golf courses, the environmental regime is also fragmented, while the

institutional governance is weak and captured by the regulated industry.

C. Viet Nam

The frameworks include the 1992 Constitution of the Socialist Republic, as amended in 2001;

Laws and Codes passed by the National Assembly; Resolutions, Ordinances and Acts passed by 465 Thai. Const., part. 6, chap. VI, s.138 466 Regulations and notifications are issued by the administrative agencies, such as the line Ministries headed by Members of the Council of Ministers. 467 Read generally, State Administration Act of Thailand (1991); 1997 Royal Thai Constitution, s.78 (definition of decentralization); revision of various Local Government Acts in 1999, e.g., Thesaban Act of 1953, Tambon Administration Act (TAO) Act of 1994, Pattaya Administration Act. For Trends and Developments in Decentralization in Thailand, visit http://www.jica.go.jp/english/publications/reports/study/capacity/200807/pdf/002.pdf. Accessed on April 8, 2012. 468 The 2003 Draft Water Law has not been submitted to the general public for consultation. 469 Wildlife Protection and Preservation Act B.E. 2535 (1992) 470 B.E. 2535, Hazardous Substances Act (1992); B.E. 2535, Public Health Act B.E. (1992) 471 B.E. 2518, City Planning Act (1975); B.E. 2526, Land Code (1983); B.E. 2497, Land Code (1954); B.E. 2542, Land Development Act (LSADA), (1999) established the Land Development Committee; B.E. 2518, Land Reform for Agriculture Act (1975) 472 B.E. 2535, Biosafety Guidelines of Thailand (1992); B.E. 2507, Plant Quarantine Act, (1952)

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the Standing Committee of the National Assembly; Government Decrees issued by the Prime

Minister or the Vice Prime Minister; Regulations, Rules, Directives and Ordinances issued by

the relevant Minister; and Regulations passed by local/provincial governments. There is

administrative decentralization in Viet Nam, which focuses on the delegation of power from one

administrative level to another. Thus, there is only decentralization in a limited sense – which

means that there is only a limited delegation of tasks from the central to local government

units.473 The main law for the environment is the 2005 Law on Environmental Protection. Viet

Nam has also provided through legislations, instructions, ministerial decisions and decrees for

the following; water resources 474 , pollution control, chemicals 475 , environmental impact

assessment476, biosafety477, nature conservation478, biodiversity protection479, cultural heritage480,

and land usage.481 Viet Nam probably is the first country in the world to adopt a 2020 National

Golf Course Development Plan. 482 It is also one of the largest recipients of Overseas

Development Assistance (ODA), hence legal reforms as conditionalities thereof ushered the

creeping transformation of Viet Nam.

D. Singapore

The Constitution of Singapore has no provision on the environment. However, various

framework laws were enacted for environmental protection and management. There are likewise

no provisions on health in the Constitution albeit there are statutory enactments, which regulate

473 The Public Administration Reform (PAR) Program endorsed by the Eight Plenum of the Central Committee (1995) focused on the restructuring of the government bureaucracy. See also Decentralization in Viet Nam, prepared by Australian Agency of International Development, available at http://www.ausaid.gov.au/publications/pdf/decentralisation_vietnam.pdf. Accessed on April 8, 2012. 474 Law on Water Resources, No. 8/1998/QH10 (1998); Decree No. 179/1999/ND-CP mandates the implementation of the Law on Water Resources. Decision of the Prime Minister, No. 67/2000/QD-TTg (2000) established the National Water Resources Council (NWRC) 475 Law on Chemicals, No. 06/2007/QH12 476 2005 Law on Environmental Protection; Circular No. 08/2010/TT-BNNPTNT (2010) providing for the elaboration of national environmental reports, reports on environmental impacts of branches and sectors and provincial level reports on environmental conditions. 477 Ordinance on Plant Varieties, Order No. 03/2004/L-CTN 478 1992 Decision by the Chairman of the Council of Ministers on Policies for the Use of Bare Land, Denuded Hills, Forests, Alluvial Flats, and Water Bodies (327CT); 1993 Instruction by the Prime Minister on Policies and Methods for Continued Economic and Social Development in Mountainous Areas (525TTG) 479 Biodiversity Law, No. 20/QH12 (2008); Decision No 79/2007/QD-TTg, 2007, Promulgating National Action Plan on Biodiversity 2010-2020 implementing CBD and Cartagena Protocol on Biosafety 480 Law of Cultural Heritage (2001) 481 Land Law, No. 13-2003-QH11 (2003); Land Use Law, 1993 (amend. 1998; 2003) 482 Decision No. 1946/QD-TTg (2009), which approved the 2020 National Golf Course Development Plan

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public health and safety, including the healthcare profession, healthcare practices, the

establishment of statutory boards charged with these responsibilities.483

In the hierarchy of legislation, the Constitution comes first, followed by Acts enacted by

Parliament. Subsidiary legislation issued by the Ministers also forms part of the legal system.484

Due to time constraints and other practical considerations Parliament delegates legislative power

to the Executive.485 And to prevent abuse by the Executive, all subsidiary legislation is made

pursuant to a parent Act and under the ultra vires doctrine the Minister cannot promulgate

legislation, which is not substantially or procedurally provided for in the parent Act.486 Various

instruments of regulation are likewise issued to carry out government functions, among which

are Directions, which detail specific instructions to institutions or other specified persons to

ensure compliance.487

Singapore enacted a comprehensive set of environmental legislation and policy guidelines488,

water and water resources489, chemical registration and application for agricultural activities490,

483 There is Environmental Public Health Act, Cap. 95 (amend. 2002); Workplace Safety and Health Act, Cap. 354A (amend. 2009). The Health Promotion Board Act, Cap. 122B (2001, amend) established, incorporated and constituted the Health Promotion Board to implement the Act. Visit http://www.moh.gov.sg/mohcorp/legislations.aspx?id=214. Accessed on August 24, 2010. 484 The Interpretation Act, Cap. 1, s.2, cl.1 (1965, amend) defines subsidiary legislation to mean any order in council, proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect 485 Kevin YL Tan, Chapter 4: Parliament and the Making of Law. The Singapore Legal System, at page 144. Also read Sections 35 and 35 Interpretation Act, Cap. 1 486 Id. 487 Directions may consist of the following: Directives, which primarily impose legally binding requirements on an institution or a specified person; Notices primarily impose legally binding requirements on a specified class of institutions or persons; Guidelines set out principles or “best practice standards” that govern the conduct of specified institutions or persons. Codes set out a system of rules governing the conduct of certain specified activities, which are non-statutory and do not have the force of law. A breach of a Code may attract certain non-statutory sanctions like private reprimand or public censure; Practice Notes are meant to guide specified institutions or persons on administrative procedures relating to, among others, licensing, reporting and compliance matters. Circulars are documents which are sent to specified persons for their information or are published on the agency website for public information. Visit the Monetary Authority of Singapore (MAS) portal at http://www.mas.gov.sg/legislation_guidelines/Explanation%20of%20MAS%20Instrument.html. Accessed on November 2, 1010. 488 Environmental Protection and Management Act (EPMA), Cap. 94A (1998, with amendments) 489 Public Utilities Act, Cap. 261 (2001, with amendments); 2008 Guidelines on Allowable Chemical Usage (List of Fertilizer/Chemicals (Common Names/Trade Names) allowed for use in Golf Courses within Water Catchments, WSP 90504/442008 490 Control of Plants Act (CPA), Cap. 57A (1994, with amendments); Control of Plants Act, Cap. 57A, Plant Importation Rules; Control of Vectors and Pesticides Act, Cap. 59 (1998); Agri-Food and Veterinary Authority Act, Cap. 5 (2000, amend.)

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biosafety guidelines491, land use Planning492, nature conservation493, biodiversity protection494,

national heritage protection495, sanitation and waste management.496 There is no EIA legislation in

Singapore albeit it may be required on an ad hoc basis. The nearest approximation to EIA are

Sections 26 and 36 of the Environmental Protection Management Act (EPMA), Cap. 94A, which

mentions impact analysis study, however it is considered as inadequate as complete environmental

impact assessment. Thus, golf courses are generally constructed without the benefit of EIA.

Singapore’s environmental legislation and standards for golf courses must be refined and

improved. A second hard and fresh look into Singapore’s policy on golf courses is therefore

necessary.

1.5 Relevant Constitutional Provisions

A. Philippines

Section 15, Article II, Declaration of Principles and State Policies, 1987 Philippine Constitution

provide for “the right to health and the duty of the State to instill health consciousness” while

Section 16 stipulates “the right to protect and advance the right to a balanced and healthful

ecology.” There are provisions for the “preservation and protection of cultural heritage” (Article

4); “pursuit of economic development” (Section 19) and “development of self-reliant and

independent national economy and incentives to needed investments” (Section 20). Foreign

investments are allowed albeit with ownership restrictions against unfair foreign competition and

trade (Section 1). “All lands of the public domain, waters, forests or timber, wildlife, flora and

fauna, and other natural resources are owned by the State”497. In case of water rights for

irrigation, “beneficial use may be the measure and limit of the grant”. Agricultural, forest or

timber, mineral lands and national parks are considered as “lands of the public domain” (Article

XII, Section 3). Section 15, Article XIII supports the “role and rights of people’s organizations to

491 Biosafety Guidelines for Research on GMOs, 2006 492 Planning Act, Cap. 232 (1998, with amendments); Urban Redevelopment Authority Act, Cap. 340 (1989, with amendments); Singapore Land Authority Act, Cap. 301 (2001, with amendments); State Lands Act, Cap. 314 (1985, with amendments); State Lands Encroachment Act, Cap. 315 (1970, with amendments); Concept Plans 2011; Singapore Green Plan 2012; 493 National Parks Board Act, Cap. 198A (1996, with amendments); Parks and Trees Act, Cap. 216 (1997, with amendments) 494 Wild Animals and Birds Act, Cap. 350 (1965, amend), including subsidiary legislations 495 National Heritage Board Act, Cap. 196A (1993, with amendments); Preservation of Monuments Act, Cap. 239 (2009) 496 Sewerage and Drainage Act, Cap. 294 (1999, with amendments) 497 Phil. Const., art. XII, s.2 states that “with the exception of agricultural lands, all other natural resources shall not be alienated”.

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promote public interest” while Section 16 amplifies the “right to effective and reasonable

participation at all levels of social, political, and economic decision-making”.

The right to a healthful ecology originated from the codification of the PD 1151, Philippine

Environment Policy (1977) and the PD 1152, Philippine Environment Code (1977) - two decrees

described as forming the basic framework on environmental protection. Although it may be

argued that the right has been written into the Constitution, suffice it to say that there are

assertions of its “diminished significance” on the ground that the said right to healthful ecology

is merely provided in the directory provision of the Constitution. Engaged academic debates498

assert that being outside of the enumerated Bill of Rights, Section 16 is not a source of

enforceable right unless an implementing statute is enacted.499

The provisions of the constitution either are “self-executing” or “non-self executing”. A ‘self-

executing’ provision by itself is directly or indirectly applicable without need of statutory

implementation, while ‘non-self executing’ provision remains dormant unless it is activated by

legislative implementation.500 The case of Oposa Minors, et al v. Fulgencio Factoran, G.R. No.

101083 (1993) held that, “Section 16, Article II did not require implementing legislation to

become a source of operative rights”, and that “while the right is to be found under the

Declaration of Principles and not under the Bill of Rights, it does not follow that it is less

important, for such a right belongs to a different category . . . and concerns nothing less than

self-preservation and self-perpetuation”.501

To this date, no similar legal issue has been presented before the High Court, which merits

further enlightenment of the court’s argument. Yet as an elaboration of Section 16, Article II, the 498 Antonio G.M. La Vina, The Right to a Sound Environment in the Philippines: The Significance of the Minors Oposa Case, Vol. 3, Issue 4, 1994, Review of European Community and International Environmental Law (RECIEL), pages 246-252. La Vina writes that, “Oposa Minors is an unprecedented decision of the Philippine Supreme Court”. 499 An enabling statute (18.c) creates new powers especially a congressional statute conferring powers on an executive agency to carry out various delegated tasks. See generally, Black’s Law Dictionary, Bryan A. Garner, Editor in Chief, 9th Edition, West (A Thomson Reuters Business) 2009. 500 Isagani A. Cruz, Interpretation of the Constitution, Constitutional Law, 2007 Edition, Central Books Supply, p. 9. Cruz writes that “unless the contrary is clearly intended the provisions of the constitution should be considered self-executing, as a contrary rule would give the legislative discretion to determine when, or whether they shall be effective”. 501 The Oposa decision reads that, “the right is to be found under the Declaration of Principles and not under the Bill of Rights . . . does not follow that it is less important. These basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. Visit http://www.chanrobles.com/scdecisions/jurisprudence1993/jul1993/gr_101083_1993.php. Accessed March 14, 2011.

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case of Metropolitan Manila Development Authority v. Concerned Citizens of Manila Bay, 574

SCRA 661, (2008) declares that “the Ecological Solid Waste Management Act, RA 9003 (2000)

is a sweeping piece of legislation enacted to radically transform waste management, . . . and that,

it implements Section 16, Article II”. This decision merely confirms the argument that directory

provisions need enabling law to make it enforceable. It is instructive to note however that in

Heirs of Attorney C. Reyes v. Republic of the Philippines, 497 SCRA 520, (2006), the Supreme

Court assures that “it is committed to the cause of protecting the environment in accordance with

the principles enshrined in the fundamental law”.

B. Thailand

Section 85, Part 8, Chapter III, 2007 Constitution mandates the State to promote, conserve and

protect the environment”502. The Constitution also recognizes the right to “standard public health

service”503; “access to public information with exceptions” (Part 10, Chapter III, Section 56);

“receive information, explanation and justification from the government” 504 ; “public

consultation”505; “participation in decision-making processes” (Section 58); “present petition and

be informed of the result of its consideration” (Section 59), as well as “to sue any government

agency for an act or omission” (Section 60). Significantly, no project or activity, which seriously

affect the environment, shall be permitted unless its impact has been studied and evaluated, with

prior public consultation (Section 67). The Constitution also provides that the rights and liberties

recognized (explicitly, by implication or by decision of the Constitutional Court) shall be

protected and directly binding” (Part 1, Chapter III, Section 27). More detailed provisions

concerning human rights, e.g. the right of communities in safeguarding the environment is

expanded, and these communities as collectives will be entitled to take action in courts.506

502 Unofficial English translation of Thai Constitution is available at http://www.asianlii.org/th/legis/const/2007/1.html. Accessed on August 19, 2010. 503 Thai. Const., part. 9, chap. III, s.51 provides that “a person shall enjoy an equal right to receive appropriate and quality public health services. Indigents shall have the right to receive free medical treatment from public health centers of the State”. Meanwhile, B. E. 2550, National Health Act (2007) protects the right to life and health. 504Thai. Const., part.10 chap. III, s.56 mentions that the “right shall be availed before permission is given for the operation of any project or activity, which may affect the quality of the environment, health and sanitary conditions”. 505 Thai. Const., part. 10, chap. III, s.5 applies before the making of social, economic, political and cultural development plan, land use, town and country planning. 506 Vitit Muntarbhorn, Deconstructing Thailand’s New 18th Constitution, Thailand Journal of Law and Policy, 2009 Spring Issue, Issue 1, Volume 12, at http://www.thailawforum.com/articles/Thailand-Eighteeth-Consititution.html. Accessed on November 3, 2010.

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The afore-stated Section 85 mentions “the protection of the environment in compliance with land

use, natural resources and environment policies”.507 It failed to mention law. Does this mean that

the protection rests on environmental policies and not in law? Or is this an inappropriate English

translation of the Thai provision? It is noteworthy that the Constitution recognizes the right of

access to public information (Part 10, Section 56) but there are exceptions, specifically the

“interests of other persons”. The latter phrase is ambiguous and needs to be clarified as to who

these “other persons” are. The mandate to conduct public consultation under Section 5, Part 10,

Chapter III is quite comprehensive albeit it is necessary that this provision should find specific

application under an EIA law or procedure. Public participation is actually a component of the

EIA process.

C. Viet Nam

The 2001 Constitution is the fundamental law of the State and has supreme legal force.508 The

land, forests, rivers and lakes, water sources, underground natural resources, resources in the

territorial waters belongs to the State and falls under the ownership of the entire people (Chapter

II, Article 17). Organizations and individuals are responsible for the protection, replenishment,

rational exploitation and economical utilization of the land (Article 18, Clause 3). Article 29

mandates that State organs, units of the armed forces, economic and social bodies, and all

individuals must abide by State regulations on the rational use of natural wealth and

environmental protection. It also mentions that, “all acts likely to bring about exhaustion of

natural wealth and cause damage to the environment are strictly forbidden”.

The State encourages foreign organizations and individuals to invest capital and technology in

Viet Nam (Article 25) and states that, “legal ownership of capital, assets and other interest shall

not be nationalized”. The Constitution also creates favorable conditions for Vietnamese who

live abroad to invest in the homeland (Article 25, Clause B). It also preserves and develops the

national cultural heritage, cultural relics and works of art. All acts causing damage to or

prejudicial to historical or revolutionary monuments, works of art and beauty spots are strictly

prohibited (Article 34). Viet Nam invests, develops and ensures the unified administration and

507 Webster’s Desk Dictionary 2001 defines “policy” as a course of action adopted and pursued by the government. 508 The Preamble states that, “the present Constitution determines Viet Nam's political, economic, socio-cultural, military and security system, the basic rights and obligations of citizens, the structure, organizing and operating principles of State offices”. The primacy of the Constitution is being asserted thus all other legal documents are required to be consistent with the Constitution.

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protection of the people’s health.509 Article 61, Chapter V specifically states that, “citizens are

entitled to health care and have the obligation to comply with regulations on disease prevention

and public hygiene”. Further, the State and society seeks to develop tourism and tourist

activities (Article 42).

The Constitution has incorporated the protection of the environment under Article 29 albeit it

appears that it is second in priority only to economic development (rational exploitation and

economical use) as Article 18 par. 3 takes precedence over Article 29. Land ownership and land

use rights is constitutionally protected and prominently pursued in Viet Nam. Moreover, Article

29 speaks of “the rational use of natural wealth and environmental protection” and obviously,

this explains the massive industrialization path Viet Nam has taken over concerns on the

growing environmental degradation. Coming out from a centrally planned economy with state-

owned pollutive industries Viet Nam tries to put in place the mechanisms of a capitalist

framework susceptible of regulatory capture. Nonetheless, several legal frameworks support the

fundamentally mandated protection of the environment.

D. Singapore

The Constitution of Singapore has no provision on the environment. There are likewise no

provisions on health in the Constitution albeit there are statutory enactments, which regulate

public health and safety, including the healthcare profession, healthcare practices, the

establishment of statutory boards charged with these responsibilities.510 Nonetheless there are no

specific laws relating to the regulation of golf courses.

1.6 Cross-National Comparisons and Evaluation in Relation to the Three Stages of Golf

Course Development and Operation

This thesis compares and evaluates the applicable laws and regulations during the three stages of

golf course development, namely the Planning stage, the construction and development stage, and

the operation and maintenance stages. The Planning stage covers the investment laws, land use

planning and the EIA Laws. The Construction stage includes the laws on national heritage and 509 Viet. Const., chap. III, art.39 aims “to build and develop a prevention-oriented Vietnamese medicine with traditional medicine and pharmacology; combines the development of public along with popular health care”. 510 The Health Promotion Board Act, Cap. 122B (2001, amend) established, incorporated and constituted the Health Promotion Board to implement the Act. Visit http://www.moh.gov.sg/mohcorp/legislations.aspx?id=214. Accessed on August 24, 2010.

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archeological preservation, as well as biodiversity protection and nature conservation. The

Operation stage covers the law on water and water resources, chemical usage, environmental

protection, health and sanitation, and lastly, the prevention of corruption.

A. The Planning Stage

1. Investment Laws

During this stage, project proponents for golf course development search for better investment opportunities and seek favorable incentives This sub-topic discusses the constitutional provisions, laws, regulations and policies on investment opportunities, fiscal and non-fiscal incentives granted to golf courses or clubs, including tax breaks, subsidies and other non-fiscal privileges.

1.1 Philippines

There is no single code regulating investment activities in the Philippines. Statutes governing the

type of investment activities are often accompanied inter alia by a set of implementing rules and

regulations, administrative orders, circulars or memoranda guiding their implementation. In case

of conflict or inconsistencies, legal questions arise thus, necessitating judicial interpretation. One

has to really see the complex system of laws and regulations, correlate each related provisions

and reconcile conflicting interpretations. In this sub-topic, this paper provides a critical analysis

and evaluative discussion of identified frameworks, which governs various activities of the golf

clubs from its juridical formation, development, construction and sale of membership shares.

Allowable Foreign Equity Participation

During the planning stage of development, investors - whether local or foreign, evaluate the

national investment laws of the host country in order to ascertain opportunities and restrictions,

to wit; allowable equity participation, fiscal and non-fiscal incentives, subsidies and tax

breaks.511 Admittedly, golf course development is capital intensive, and local investors seek out

foreign capital infusion to finance projects. Since the early 90’s, Japanese, Taiwanese and

Korean investors have partnered with Filipino companies. Nonetheless, it must be taken into

account that the 1987 Constitution reserves to Filipino citizens or to 60% Filipino-owned

corporations or associations certain areas of investments, including water rights (Article 12,

Section 2). Thus, the Constitution limits up to 40% the allowable foreign investment. The State

also regulates and exercises authority over foreign investments within its national jurisdiction 511 This thesis finds that currently more than 140 incentives are offered by various investment promotion agencies, special incentive laws targeted at specific sectors and industry groups, and those granted to government-owned and controlled corporations under their charters. Visit BOI for opportunities at http://www.boi.gov.ph/index.php?id1=2. Accessed on September 1, 2010. The Tourism Act, 2009 also provides additional fiscal and non-fiscal incentives to investments in Tourism Enterprise Zones.

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(Article 12, Section 10). Therefore, anyone, regardless of nationality, is welcome to invest in the

Philippines, subject to constitutional limitations.

Investors' Lease Act, RA 7652 (1993)

An 18-holes golf course needs at least forty-five hectares (111.20 acres) of land. However, land

acquisition cost can be prohibitive necessitating domestic investors to infuse additional

capitalization. Foreign capital infusion becomes absolutely important yet there is a constitutional

proscription on foreigners from owning land.512 The allowable foreign equity participation of

40% is perceived as protectionist thus providing legal and economic challenge to foreign

investors. The Lease Act allows foreign companies to lease land for fifty years renewable for a

period of not more than twenty-five years (Section 4).

Citizenship Retentions and Re-Acquisition Act, RA 9225 (2003)

The Act allows natural-born Filipinos who had undergone naturalization as citizens of a foreign

country to re-acquire citizenship and entitles them to a dual-citizenship with full rights of

possession of land and property, and to engage in business. This law thus opens up

opportunities for former citizens to buy lands, including for golf course development. The law is

silent as to limitation of acquisition thus it may be safe to assume that former citizens enjoy the

same rights and privileges as before – no limits as to area to be owned.

Anti-Dummy Law, Commonwealth Act (CA) 108 (1936), (amend. RA 421, RA 134, RA 6084 and

PD 715)

With equity restriction, many foreign companies resort to dummy ownership whereby nominees

allow their names to be registered, on paper, as owners of foreign shareholdings. There is

however the Anti-Dummy Law, which “punishes acts of evasion of laws on the nationalization of

certain rights, franchises or privileges”513, specifically, “any citizen who allows his name or

citizenship to be used to evade proscription, and any foreigner profiting therefrom shall be

512 Phil. Const., art. XII, s.17 states that, “Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.” 513 CA 108, Anti-Dummy Law (1975) s.1 consider the onus (burden) that “the alleged violator at the time of the acquisition of the holdings has no real or personal property, credit or other assets the value of which shall at least be equivalent to said holdings”.

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punished”. The simulation of minimum capital stock for the purpose of evading the law is also

punishable.514

Foreign Investment Act, RA 7042 (amend. RA 8179) (1991)

The Act regulates foreign investment in corporations engaged in business up to 100% of the

capital stock of a domestic corporation, as long as the proposed activity is not included in the

Negative List.515 The Negative List, which is updated every two years, enumerates business

activities in which foreign ownership or participation in a domestic corporation is limited. The

Negative List shows that restaurant operation is excluded.516 Therefore, foreigners are allowed to

own 100% of restaurant operation in golf clubs yet the Constitutional restriction persists regarding

ownership of land by foreigners. RA 7042 is considered landmark legislation, which liberalizes the

entry of foreign investments into the country. Nonetheless, land ownership restrictions discourage

foreign investment in golf courses.

In the Philippines, all investors are mandated (Section 11), regardless of nationality of ownership,

to comply, protect and conserve the environment and meet applicable environmental standards.

Administrative sanctions (Section 14) and fines are imposable to any person who violates laws and

regulations. Additionally, the SEC has the power to impose administrative sanctions for the same

violation, i.e. dissolution of company.517

Omnibus Investments Code, EO 226 (1987) - Incentives, Subsidies, Tax Rebates

The Board of Investments (BOI) was established to assist foreign and domestic investors with

regulatory requirements, incentives, and market guidance under the Code, which lists a number of

incentives to qualified firms engaged in preferred sectors and geographic areas included in the

annual Investment Priorities Plan (IPP) administered by the BOI. The IPP is a policy tool to

channel the flow of investments to identified desirable areas of activities for growth and

development, and at the same time it is a policy instrument that encourages development of a

514 CA 108, s.2 provides that “the president or managers and directors or trustees of corporations or associations convicted shall be punished by imprisonment and a fine”. 515 If the activity is included in the Negative List foreign investments are not allowed or limited by equity ownership, i.e., 30%, 40%, 50%. The Primer on “Doing business in the Philippines” is available at http://www.boi.gov.ph/publications/primer2010.pdf. Accessed on December 3, 2010. 516 Hotels and golf courses operate restaurants inside their establishments. 517 The SEC is tasked to administer the Securities Regulation Code, RA 8799 (2000). S.5 states that, “the SEC shall have jurisdiction and supervision over all corporations, partnerships or associations who are the grantees of primary franchises and/or a license or permit issued by the Government”.

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critical mass of investments in a particular sector/industry.518 Any activity or project identified

under the IPP is allocated incentives, particularly the tourism sector, which this thesis strongly

argues include golf courses engaged in golf tourism.519 The tourism industry remains a very

promising area of investment generating huge revenue to the government.

The basic rights and guarantees under EO 226 include protection of investment (Article 38), i.e.

repatriation of investments, remittance of earnings, foreign loans and contracts, freedom from

expropriation and requisition of incentives. Over all, EO 226 provides fiscal incentives (Article

39) to BOI-registered enterprises, e.g. income tax holiday; exemption from taxes, duties, impost

and fees; tax credits; additional deductions from taxable income for labor expense. In most areas,

the national government supports the construction of road networks, bridges and other

infrastructures520, and these have largely benefited some golf clubs. The non-fiscal incentives

include employment of foreign nationals in supervisory, technical or advisory positions for five

years from the date of registration; simplification of customs procedure for the importation of

equipment, spare parts; importation of consigned equipment, etc.

Memorandum 229, approved the 2009 Investments Priority Plan (IPP)

Tourism projects are allowed to lease lands for fifty (50) years and renewable for another twenty

five (25) years, under EO 226 provided there is an investment in the amount of not less than

USD5 Million (SGD 6,201,000) (PHP 205,525,000)521, 70% of which shall be infused within

three years from the signing of the lease contract. Memorandum 229 approved the 2009 IPP with

provision on Sports and Recreational Centre in the Tourism category, specifically, Part I on

priority investment areas, under preferred activities, sub.clause B, Regular list, No. 4 – Tourism,

which covers the establishment of tourist accommodation facilities and resorts. Golf resorts

engaged in golf tourism theoretically are included.

518 Dennis Anthony P. Caronan, “What’s in store in the 2009 Investment Priorities Plan”, April 16, 2009. Visit http://www.pwc.com/ph/en/taxwise-or-otherwise/16-april-2009.jhtml. Accessed on May 7, 2010. 519 Golf tourism is the term used to describe trips undertaken by persons the main purpose of which is to play golf. This type of activity is more difficult to measure, and whilst it can be important for the golf courses themselves it has little significance for tour operators. The global golf tourism market is worth over USD17 Billion, according to the International Association of Golfing Tour Operators (IAGTO). Visit http://www.onecaribbean.org/content/files/Golf.pdf and IAGTO portal at http://www.iagto.com/. Both sites were accessed on October 30, 2010. 520 Roads and bridges were constructed including airports by the Department of Public Works and Highways (DPWH), which functions as the engineering and construction arm of the Government. Several road, loops or interchanges connects several golf clubs. 521 Currency exchange as of May 17, 2013.

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Tourism Act of the Philippines, RA 9593 (2008)

The Act declares tourism as an “engine of investment, employment, growth and national

development”. RA 9593 provides fiscal and non-fiscal incentives (on top of the BOI Priority

Program incentives) to registered Tourism Enterprise Zones (TEZ). Section 4 enumerates tourism

enterprises as “facilities, services and attractions involved in tourism, such as, but not limited to . .

. sports and recreational centers”. This thesis argues that the operation of golf courses is deemed

subsumed in this classification, provided these are registered as a TEZ and engages in golf

tourism. However, the Board of Investment (BOI) clarified522 that for the golf courses to qualify

for incentives the project “must be a new investment registered in a tourism enterprise zone (TEZ)

and theoretically, must be involved in golf tourism”.

Executive Order 63 (1999)

EO 63 grants incentives to foreigners investing at least USD50,000 in tourist-related project or

any tourist establishment523. The Special Investor’s Resident Visa (SIRV) is granted for as long as

the investment subsists. EO 63 also grants investors the right to remit earnings from their

investment in the currency the investment was originally made and at the exchange rate prevailing

at the time of remittance. Local government units may also provide for additional tax incentives,

exemptions or relief.524 The Government may also provide any form of direct or indirect support

or contribution, e.g. cost sharing and credit enhancements, direct government subsidy, government

equity.

Build-Operate-Transfer (BOT) Law, RA 6957 (1994) (amend. RA 7718)

The Law authorizes the financing, construction, operation and maintenance of infrastructure

projects by the private sector. Tourism estates including related infrastructure facilities and

utilities are among the priority projects eligible for BOT implementation. Golf courses maybe

developed under the BOT scheme under tourism estates.

522 Personal interview with Ma. Corazon Halili-Dichosa, Director, Policy and Planning Department, BOI, October 21, 2010, Makati City. Transcript of interview is attached as Appendix “21”. 523 SGD62,010; PHP2,055,250, as of May 19, 2013. 524 RA 7160, Local Government Code, Chap. 4, Book II, s.192 (1991)

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Retail Trade Liberalization Act, RA 8762 (2000) repealed the Retail Trade Nationalization Act, RA 1180 (1954)

The Act repealed the Retail Trade Nationalization Act525 thus, opening up the retail trade business

up to 100% foreign equity participation in restaurants and enterprises with a paid-up capital of

USD2.5 Million (SG 3,100,500) (PHP 102,762,500).526 Golf clubs/courses operate restaurant

businesses to service members, customers and guests. Golf clubs also operate golf specialty stores.

Hence, foreigners can own and operate restaurant and specialty stores up to 100% in golf courses

but restrictions on land ownership persist.

Securities Regulation Code (SRC) RA 8799 (2001)

Most golf clubs in the Philippines are owned and operated by members who buy Proprietary

Membership Shares (PMCs) and Non-Proprietary Membership Shares (NPMCs). Very few clubs

are privately owned and operated. Golf clubs are registered with the Securities and Exchange

Commission (SEC) as corporations with separate and distinct juridical personality. The SEC

regulates the registration and sale to the public of PMCs and non-PMCs. (Section 8, Chapter

III). The golf shares can be sold only after a Certificate of Registration and License to Sell

Certificates are issued to the Club. PMCs are considered as securities in most jurisdictions, the

sale of which in the secondary market theoretically makes golf clubs publicly held companies

imbued with public interest. RA 8799 mandates the registration of securities before it can be

offered for sale in the Philippines (Chapter III, Section 8).

The SEC administers the Code and regulates the registration of securities. Among the pre-

conditions imposed in the registration proceedings is the submission of the Environmental

Compliance Certificate (ECC) issued by the DENR to the project proponent527. The pre-

condition is imposed specifically under the Amended Implementing Rules and Regulations

(IRR), Rule 12.1 (Requirement for Filings Pursuant to the SRC and the Corporation Code, Item

8, Additional Registration Requirements for Proprietary and Non-Proprietary

Shares/Certificate), which states that “(E) the following documents shall be submitted with the

registration statement as exhibits thereof; Copy of the ECC from DENR covering the location of

the project”. (Underscoring and italicization supplied). Without the ECC, the golf shares cannot

be registered and licensed for sale. 525 RA 1180, Retail Trade Nationalization Act (1954.) restricts several investments to Filipinos, specifically in retail business. 526 Currency exchange as of May 19, 2013. 527 ECCs will be discussed lengthily under the EIA discussions.

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To avoid the cumbersome and expensive SEC registration procedure, a few golf clubs ties up the

sale of PMCs with residential lots located within the golf estate. This scheme involves the sale of

residential lots with golf club membership as part of amenities528. The SEC is currently looking

into these activities and will come up with a new policy regulation. Nonetheless, the mandatory

submission of ECC529 introduces a system of control over pre-selling activities of unregistered

securities, which are highly proscribed under the Securities Code. The pre-condition theoretically

prevents the pre-selling of shares, which is aimed at raising capitalization for the project.

Numerous pre-selling incident during the golf boom in 1990s resulted in massive complaints

before the Brokers and Exchanges Department (BED) 530 and the Prosecution Enforcement

Department (PED)531 of the SEC.

The 1997 Asian economic meltdown also resulted in the collapse of the golf industry. Many

projects have not been completed while shareholders are left holding worthless, unregistered

shares. These have actually spawned the filing of cases against golf clubs, prompting the SEC to

issue Notices of Violations (NOV) and Cease and Desist Orders (CDO) to erring companies. The

SEC Orders of Revocation were issued against Lakewood Golf and Country Club (CFD Case No.

15, 2008) for failure of the Club to submit registration requirements and YNC Corporation (CED

Case No. 05-2831, August 11, 2005) for selling securities without registration and license to sell in

violation of RA 8799, s.8 in relation to s.3, 12 (2003.).532

There are additional mandatory reportorial requirements for SEC registered corporations, the non-

compliance of which is punishable under the law, either by imposition of fines, suspension or

revocation of certificate of registration.533 In fact, the SEC disclosed that the majority of golf clubs

528 A trading company sells the shares of golf clubs separately with the housing lots, which is proscribed under the SRC, RA 8799. Visit the portal of the company, which resells unregistered membership shares at http://www.ggaclubshares.com/. Accessed on 27 October 2010. 529 Issued upon approval of EIA under PD1586 and LOI 1179 (1981) 530 The Brokers and Exchanges Department (SEC-BED) handles the registration, licensing, regulation and supervision of stock exchanges, commodity futures exchange, stockbrokers/dealers, etc. 531 The Prosecution and Enforcement Department (SEC-PED) investigate possible violations of SEC laws, rules and regulations; files and prosecutes civil or criminal cases before the SEC or other courts of justice involving violations of the statutes administered by the SEC and its rules and regulations. 532 Visit Securities and Exchange Commission, Archives: Companies with CDOs at http://www.sec.gov.ph/ for a complete list of companies with Cease and Desist Orders (CDOs). 533 SEC Guidelines on the Imposition of Fines or Penalties for Non-Compliance with Reportorial requirements. July 31, 2002. Available at http://www.sec.gov.ph/Documents/guidelines.pdf. Accessed on August 6, 2009.

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have not been complying with reportorial requirements534, such as the submission of the annual

General Information Sheet, Financial Statements535, etc. Another innovation introduced by the

Securities Code involves the requirement that the management certify the company's financial

statements (Rule 68). Current rules536 also require rotation and accreditation of external auditors of

companies bestowed with public interest i.e. publicly listed firms and other secondary licensees, of

which golf clubs are included.

The SEC should be faulted for the unauthorized and fraudulent pre-selling of unregistered

securities, specifically the PMCs of several golf clubs. The laxity in regulation has been identified

to originate in the reportorial requirement system, which has remained chaotic and disorganized.

Thus, violations – criminal or civil- are discovered only after the companies have hugely

defrauded investors. The SEC has admitted that the agency is faced with various constraints,

namely, inadequate financial resources, bureaucratic system and shortage of technically skilled

manpower.537

Section 315 (1) b, Chapter VI, Revised Penal Code (Swindling and Other Deceits)

Once the application for SEC registration is approved the applicant is issued a certificate of

registration and license to sell. Violation of the requirement for registration under Section 8,

Chapter III, SRC is punishable under Section 51, which speaks of liabilities of controlling persons

of the corporation, aiders and abettors, while Section 57 imposes civil liabilities arising in

connection with violation of Chapter III. Meanwhile, another law, under Section 315 (1) b,

Chapter VI, Revised Penal Code penalizes pre-selling of unregistered securities. The criminal

complaint has been legally known as syndicated estafa538 because of the number of transactions

involved in the sale of unregistered securities.

534 Visit the electronic website of SEC to get the reportorial compliance of all registered corporations in the Philippines, at https://ireport.sec.gov.ph/iview/login.jsp. Accessed on August 15, 2010. 535 Section 17 (1) (2), Periodic and Other Reports of Issuers, Securities Regulation Code (2003) 536 In June 2002, SEC issued Memorandum Circular No. 5, outlining "Accreditation and Reportorial Requirements of External Auditors of Public Companies", thereby instituting a system of accreditation for external auditors of firms that issue securities to the investing public. Available at http://www.sec.gov.ph/circulars/cy,2002/sec-memo-5,s2002.htm 537 In a Congressional hearing on March 2009, SEC Chair Fe Barin has repeatedly explained that the agency does not have the budget, manpower or expertise to oversee the pre-need industry. See “SEC Moved to DTI After Pre-need Mess, Abs-CbnNEWS.com, May 27, 2009, available at http:www.abs-cbnnews.com/business/05/27/09/sec-moved-dti-after-pre-need-mess and http://pepcoalition.wordpress.com/2009/05/27/sec-moved-to-dti-after-pre-need-mess/ Accessed on May 19, 2013. 538 Estafa is committed by a person who defrauds another causing him to suffer damage, by means of unfaithfulness or abuse of confidence, or of false pretense or of fraudulent acts. For the existence of the

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Bases Conversion and Development Act (BCDA), RA 7227 (1992)

The Act converts military reservations into other productive uses – thus, creating the Bases

Conversion and Development Authority. Clark, Subic and John Hay military reservations were

transformed as economic zones. The Subic Special Economic and Free Port Zone receive

incentives ranging from tax and duty-free importations, exemption of businesses from local and

national taxes. RA 7227 expressly authorizes the President to create through executive

proclamation and subject to the concurrence of the local government units other Special Economic

Zones (SEZ) in the areas covered respectively by the Clark military reservation, the Wallace Air

Station in San Fernando, La Union, and Camp John Hay in Baguio.

Meanwhile, Proclamation 420 (1994) established the Special Economic Zone (SEZ) inside Camp

John Hay, granting tax exemption and incentives to the Camp John Hay Development Corporation

(CJHDC), operator of the Camp John Hay Golf Club. In the case of John Hay People’s

Alternative Coalition v. Lim, 414 SCRA 356 (2003), Proclamation 420 was challenged and was

declared unconstitutional in part by the Supreme Court sitting en banc 539 saying that “only the

Subic SEZ was granted tax exemption and investment incentives by Congress, and there is no

express extension of the aforesaid benefits to other SEZs, still to be created at the time”. The High

Court also said that “the assailed privilege is one of tax exemption and it is the legislature, unless

limited by a provision of the state constitution that has full power to exempt”. Consequently,

CJHDC stands to pay540 more than PHP 3 Billion (USD 72,984,000) (SGD 90,516,000) in unpaid

rent541, and is facing at another PHP 2 Billion (USD 48, 656,000) (SGD 60,344,000) back taxes,

which are originally, part of the fiscal incentives promised by Proclamation 420.

Therefore, the set of investment laws paved the way for the entry of major investments in the

country. Nonetheless Section 2, Article XII, Constitution restricts land acquisition by foreigners

and requires 60% - 40% equity participation on key industries. Foreign capitalists assailed the

crime of estafa, two elements are indispensable: fraud and damage. The essential elements of estafa are: (1) The deceit employed to defraud another; and (2) the injury or damage caused. Read Nierras v. Hon. Auxencio Dacuycuy, 181 SCRA 1 (1990) and Lao v. Court of Appeals, 274 SCRA 572 (1997). 539 Read the complete text of the case at the portal of the Supreme Court, at http://sc.judiciary.gov.ph/jurisprudence/2003/oct2003/119775.htm. Accessed on March 15, 2011. The issue revolves around s.3, second sentence regarding the “Investment Climate in John Hay Special Economic Zone”. The Supreme Court declared the provision “as null and void and of no legal force and effect”. Proclamation 420, without the invalidated portion, remains valid and effective. 540 Read Nordis Weekly, May 29, 2005 Issue, Artemio A. Dumlao, available at http://www.nordis.net/news/2005/ndw050529/ndw050529_05cjh.htm. Accessed on March 16, 2011. 541 CJH Development Corporation v. Bureau of Internal Revenue, et al., 472 SCRA 114 (2008). At foreign exchange rate as of May 19, 2013.

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restrictive conditions by setting their sights on nearby Thailand and Viet Nam for liberal equity

arrangements. Animated debates to amend or revise the economic provisions of the Constitution

divided the nation542. Economic managers consider the existing restrictions as protectionist and are

pushing for more foreign equity in nationalized industries, which they consider should be in tune

with globalization.

In the case of golf courses, the restriction to own land and the 60%-40% equity ownership are

considered barriers to trade. It is imperative to address the restriction as the public has a general

notion that the constitutional prohibition as well as the anti-dummy legislation has been eroded by

persistent reports of fraudulent schemes of dummy and/or nominee arrangements. It can also be

claimed that the current framework for investment is a mixture of outdated and sometimes

inconsistent laws, enhanced by confusing judicial pronouncements543. Investors also see that the

implementation and enforcement of laws and regulations have different facets altogether as

foreign investors decry regulatory inconsistency and lack of transparency. These reflect an “elbow

room” for interpretation and execution of delegated authority, as regulators complain about

ambiguity in statutes. The regulatory authority therefore remains weak.

It is therefore safe to conclude that the investment laws of the Philippines have limited impact on

the protection of the environment in golf courses. The BOI incentives are likewise unclear since

the golf sector has not been specifically mentioned in the list of registered activities. It is even

unclear whether the golf industry can be included under the tourism sector since BOI clarified that

for golf to be included in the tourism industry the golf course must be registered as a new

investment in a “Tourism Enterprise Zone” and, obviously, must engage in golf tourism544. There

is no government policy on golf course development. Thus, the government has not considered

coherently the investment promotion aspect for golf courses. The unfortunate issuance of

542 Calls for charter change, specifically on the economic provisions of the constitution continue to hound the government, Paolo Romero, Philippine Star, January 12, 2011, also available at http://beta.abs-cbnnews.com/nation/01/12/11/charter-change-advocates-unfazed. See also TJ Burgonio, Philippine Daily Inquirer, January 11, 2011, at http://newsinfo.inquirer.net/breakingnews/nation/view/20110111-313919/Senators-remain-cold-to-Charter-change-overturesAccessed on March 16, 2011. 543 Read generally, La Bugal B-laan Tribal Association v. Victor O. Ramos, DENR et al., 421 SCRA 148-179 (2004) in which the Supreme Court reversed its previous ruling by stating that “there is a need for an appropriate balancing of interests and needs” thereby declaring constitutional the Philippine Mining Law, RA 7942. The decision was hailed as an “emotional discourse to justify the exploration, utilization and operation of natural resources by foreign investors” despite the constitutional prohibition under Phil. Const., art.XII, s.2. 544 See Appendix “21”, interview of Dichosa-Halili. Golf tourism has not been defined with exactitude. However, it refers to tourism business packaged with the golf game. Visit the portal of the International Association of Golf Tour Operators at http://www.iagto.com/. Accessed on March 16, 2011.

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Proclamation 420 reveals a disorganized government bureaucracy. Ostensibly, there was a lack of

coordination between the legislative and executive departments when the measure was being

legislated.

Nonetheless, the golf industry is not always at the losing end. Some golf clubs have massively

benefited from the government through infrastructure development and capital infusion albeit the

unfortunate investment of the military pension fund to various golf courses is now an on-going

subject of criminal investigation. The review of investment laws disclose the extent of

opportunities, incentives (fiscal and non-fiscal), tax exemptions, subsidies and financial assistance

proffered to the golf course industry, as well as the penalties, charges and disincentives imposed

for every violation of environmental laws and regulations.

1.2 Thailand

In Thailand, the procedure for establishing a company includes registration with the Ministry of

Commerce (MOC). Corporations have the corresponding duty to do mandatory accounting and

financial reporting.545 As a matter of procedure for foreign businesses there are “two doors” in

which investors could come in. One, through the BOI for promoted industries and, two, through

the Department of Business Development (DBD) for ordinary investments546 . The MOC

regulates and monitors all registered business establishments, including golf courses, which

entails the procurement of land (by purchase or lease), depending on the financial capability of

the project developer, and subject to legal restrictions and allowances on land ownership.

Generally, non-Thai businesses and citizens are not permitted to own lands. Discussions about

land use planning and classification will follow in succeeding sub-topic.

Foreign Business Act, B.E. 2542 (1999)

The Act547 requires foreign companies to obtain Cabinet approval or Foreign Business License

prior to commencing operations. In Thailand, golf clubs may be set up either as private, closely

545 Procedures vary for companies registered as private or public limited company, foreign company, etc. Commercial Register Act (Issue No. 2) B.E. 2549, s.9, as amended provides “that the Department of Business Development - MOC shall have the duty to supervise commercial registration”. 546 Personal interview with Worawit Sing-In, Trade Officer, Office of Secretary of Foreign Business Committee, Department of Business Development, MOC, June 30, 2009, 44/100 Nonthaburi 1 Rd., Amphur Muang, Nonthaburi 11000 Bangkok. Transcript of interview is attached as Appendix “22”. 547 B.E. 2542, Foreign Business Act, s.5 states that “in permitting foreigners to operate business, the advantages and disadvantages to the nation's safety and security, economic and social development, public order, natural resource conservation, energy and environment . . . shall be taken into account”.

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held limited company or as public limited company.548 Private limited companies are formed

through a process that leads to the registration of a Memorandum of Association and Articles of

Association as its constitutive documents. In 2006, the Commercial Registrar issued an Order

prescribing new rules for registration of limited companies, particularly requiring sources of

investment of Thai nationals to be scrutinized.549 The order also mandates that each Thai

national must disclose sources of investment funds.550

The Act regulates activities, which foreign companies may engage in certain industries. If a

company is registered with the Board of Investment (BOI), it can own land in Thailand.551

However, Section 6 and 7 provides a list of aliens allowed or prohibited from engaging in

business, respectively, e.g. foreigners deported, foreigners with pending deportation or

foreigners staying without permission, there are other activities, which maybe allowed with prior

approval, and some do not require any special approval at all. The BOI offers two kinds of

incentives to promoted projects, regardless of location: tax and non-tax incentives. The tax-

based incentives include exemption or reduction of import duties on machinery and raw

materials, and corporate income tax exemptions while the non-tax incentives include permission

to bring in foreign workers, own land and take or remit foreign currency abroad552. In the case of

golf courses, the BOI has clarified that it is not one of the promoted industries hence there are no

existing record that would show that golf courses have enjoyed these incentives.

Securities and Exchange Act, B.E. 2535 (1992)

The Act established the Securities and Exchange Commission (SEC) to develop and supervise

the capital market including primary and secondary markets, securities553, businesses, market

participants and the prevention of unfair securities trading practices. Section 32 proscribes the 548 See generally B.E. 2544, Public Limited Company Act (No. 2) (1992), Royal Thai Gazette. Vol. 55, No. 11 (November 2001). 549 It applies specifically to companies in which shareholding by foreigners, are at least 40% but less than 50% but in which a foreigner is a director with power to bind the company. Visit BOI at http://www.boi.go.th/english/how/company_establishing.asp. Accessed on August 19, 2010. 550 Business Guide to Thailand, Board of Investment, Ministry of Industry, 2007. Available at http://www.boi.go.th/english/services/bizzg.pdf. Accessed on October 30, 2010. 551 Land ownership in Thailand is governed by B.E. 2947, Land Code (1954), the Civil and Commercial Code, Land Reform for Agriculture Act, BE 2518 (1975) and the regulations set forth by the Ministry of the Interior. As a general rule, Non-Thai cannot own freehold lands except under the BOI incentive program under Investment Promotion Act, s.27 which authorizes BOI to grant a foreign owned company permission to own land for the purpose of conducting the promoted activity. 552 For a complete list of incentives, visit the BOI portal at http://www.boi.go.th/english/about/basic_incentive.asp. Accessed on March 20, 2011. 553 B.E. 2535, Securities and Exchange Act (1992) s.4 states that, “securities” shall mean treasury bills, bonds, bills, shares debentures, etc.

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promoter of a public limited company to offer newly issued shares for sale to the public unless

approval is obtained. Section 65 mandates that the offer for sale of securities to the public may

be made only when the registration statement and the draft prospectus have become effective.

Penalties554 may be imposed on those who contravene Section 32.

In Thailand, there is no record or information of the pre-requisite registration of golf shares

before they can be offered for sale555. There is no information about golf shares or Proprietary

Membership Certificates sold by golf clubs. In fact, the majority of golf clubs does not sell

proprietary shares but offer “playing rights”, which take the form of a privilege to play a round

of golf, for a definite price and term. The “playing right” concept is known to have prospered in

Japan, which is distinct from the Western concept where members are considered as

shareholders with power of control over the management and operation of the golf club.

Investment Promotion Act (IPA) (No. 3) B.E. 2544 (1992)

Thailand invites foreign investments by promising fiscal and non-fiscal incentives. Relatively,

this is the objective of the Act556 in providing incentives, guarantees and protection to foreign

investors including tax and non-tax guarantees, tax privileges557, other fiscal and non-fiscal

incentives558. The fiscal and tax incentives include exemption or reduction of import duties on

machinery (Section 28-29), reduction of import duties for raw or essential materials (Section 30),

exemption of the juristic person’s income tax and dividends (Section 31, 34), 50% reduction of

the juristic person’s income tax (Section 35, Clause 1), double deductions from the costs of

transportation, electricity and water supply (Section 35, Clause 2), additional 25% deduction of

the cost of installation or construction of facilities (Section 35, Clause 3). The non-tax and non-

fiscal incentives include the grant of permit to enter the Kingdom to study investment

554 B.E. 2535, art. 268 555 Personal interview with Setthapong Leelerdpong, Executive Officer, Corporate Affairs Department, SEC, June 29, 2009 at 15th Floor, Diethelm Towers B, 93/1 Wireless Road, Lumpini, Patumwan, Bangkok 10330. Transcript of interview is attached as Appendix “23”. 556 B.E. 2520, IPA (amend.), Royal Thai Government Gazette. Vol. 56, No. 4, April 2002. 557 Sunee Mallikamari, Enforcement of the Environmental Law in Thailand: A Case study of Pollution at Lamphun Industrial Estate, Environmental Law and Policy in Asia, Edited by Yoshihiro Nomura and Naoyuki Sakumoto, Institute of Developing Economies – Japan External Trade Organization (IDE-Jetro), Development and the Environment Series, No. 4, 1997, at page 37. See also Vipon Kittitasnasorchai and Panat Tasneeyanond, “Thai Environmental Law”, Singapore Journal of International and Comparative Law, 2000, available http://law.nus.edu.sg/sybil/downloads/articles/SJICL-2000-1/SJICL-2000-1.pdf. Accessed on May 19, 2013. 558 Industrial operators are granted special incentives and privileges, including the right to own land in the industrial estate area… exemption from export duties, value added tax, and excise tax. Visit BOI portal at http://www.boi.go.th/english/about/law_and_regulations.asp. Accessed on March 25, 2011.

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opportunities (Section 24), permit to bring skilled workers and experts to work in investment

promoted activities (Section 25-26), permit to own land subject to restrictions, permit to take out

or remit money abroad in foreign currency (Section 37). The government also guarantees that it

will not nationalize the activity of the promoted person (Section 43) nor undertake a new activity

in competition with the latter (Section 44). Again, there are no data available from the Board of

Investments or the Ministry of Commerce whether golf courses have enjoyed these privileges.

Industrial Estate Authority Act, (No. 3) B.E. 2539 (1996)

The Act establishes the general industrial estate or export industry area whereby incentives are

given to companies that sets up businesses therein. The 18 holes Amata Springs Country Club is

being developed in South of Bangkok’s Amata Nakorn Industrial Park. However, the BOI could

not provide data whether the golf course received incentives based on the Act. Nonetheless,

Thailand’s set of investment laws favorably benefits foreign investors albeit with strong

protective laws for local entrepreneurs.

Thus, there are very few investment laws, which directly or indirectly apply to the golf industry.

This is supported by the letter-reply sent on July 3, 2009 by the Investment Services Centre, BOI

regarding a June 27, 2009 inquiry about activities eligible for promotion. The reply-email states

that, “golf courses are not in the list of activity to get promotion”559; that BOI do not have any

officer in-charge of golf course development in the country and that “golf courses are not

included as a promoted industry”.560 As of this writing, no golf club has volunteered information

on the extent of fiscal and non-fiscal benefits granted to them by the government, specifically by

the Tourism Authority of Thailand. There is extreme difficulty in getting the aforementioned

information, which in hindsight could provide an opportunity for future thesis research and data

collection. During interviews conducted with some golf managers in Thailand, no one has given

information about fiscal incentives given to the sector.

1.3 Viet Nam

Various laws regulate investments and related commercial enterprises in Viet Nam. The statutes

governing the type of investment activities are often accompanied by set of decrees or circulars

559 Personal interview with Wannee Poomprapun, BOI, June 29, 2009, at 555 Vibhavadi Rangsit Rd., Chatuchak, 10900 Bangkok. Transcript of interview as Appendix “24” and Email as Appendix “24-A”. See list of activities eligible for promotion at http://www.boi.go.th/english/about/eligible_activities.asp. Accessed March 21, 2011. 560 Visit http://www.boi.go.th/english/about/eligible_activities.asp. Accessed on March 31, 2011.

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guiding its implementation. As a general rule, foreigners are not allowed to own lands in Viet

Nam.561 However, there are two ways a foreign investor may acquire land. One, by a direct lease

from the State for the duration of the investment, in which case rent is being paid, and two, a

Vietnamese partner may forge a joint venture with a foreign partner and lease land from the State

for the period that the project is approved562.

Law on Investment, No. 59-2005-QH11 (2005)

The Law regulates domestic563 and foreign564 investment activities, and enumerates the rights and

obligations of investors. It guarantees lawful rights and interests, encourages investment and

provides incentives to identified sectors and geographical areas (Article 14). Several policies565

were laid down to encourage investment, to wit; permission to invest in all sectors, industries and

trades which are not prohibited by law; right to autonomy and to make decisions on investment

activities; equal treatment; recognition and protection of ownership of assets, invested capital,

revenue; implementation of international treaties concerning investment of which Viet Nam is a

member.

The government of Viet Nam guarantees that lawful assets and invested capital of foreign

businesses shall not be nationalized or confiscated by administrative measures”.566 It assures that

the remittance of capital and assets abroad after a foreign investor has discharged fully its

financial obligations shall be permitted.567 There is uniform application of prices, fees and charges

during the process of an investment activity (Chapter II, Article 10). There are investment

561 Viet. Const., chap. II, art. 17 (amend. 2001) states that “all lands belong to the State and falls under the ownership of the entire people”. The State “manages the land on behalf of the people”. The “people receive land use rights and not land ownership”. Foreigners are therefore not allowed to own lands (land-use rights). 562 Basic Land Regulations in Viet Nam. Available at http://vietnamembassy-usa.org/basic-page/land-regulations. Accessed on May 18, 2013. 563 No. 59-2005-QH11, Law on Investment (LOI), art. 2 states that “domestic investment may include state investments and that State capital could be funded by the State Budget, by credit facilities guaranteed by the State, by credit facilities for investment and development of the State, and other investment capital of the State”. 564 LOI likewise defines a foreign investor as “any foreign organization or individual using capital in order to carry out an investment activity in Viet or a Vietnamese enterprise with foreign investors”. 565 No. 59-2005-QH11, chap.1, art.4 566 No. 59-2005-QH11, chap. 2, art. 6. It also states further that “{e}xcept on national defence, security and national interest, the State shall acquire compulsorily or requisition an asset of an investor. However the investor shall be compensated or paid damages at market prices at the time of announcement”. 567 No. 59-2005-QH11, art.9 allows remittance of payments received from technology, services and intellectual property; principal of and any interest on foreign loans; invested capital and proceeds from the liquidation of investments; other sums of money and assets lawfully owned by the investor.

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guarantees in the event of changes in law or policies.568 Various fiscal and non-fiscal incentives

are provided (Article 27), including tax incentives wherein investors having projects within the

categories stipulated in Article 32 shall be entitled to preferential tax rates569 with duration of

entitlement to rates and exemption; reduction of tax in accordance with law and land use

incentives.570

No.5/1998/QH10, Law on Special Consumption Tax (1998)

In 2008, golfers and golf clubs in Viet Nam complained about the imposition of a 30% Special

Consumption Tax (SCT) for golf business, sale of membership cards and golf playing tickets.571

Viet Nam is the only country, which imposes this kind of regulatory “luxury” tax. A Ministry of

Planning and Investment (MPI) officer572 disclosed that, “the agency has actually recommended to

the Ministry of Finance (MOF) the imposition of additional 10% SCT (over and above the existing

20%) for a round of golf. The increase is considered as a ‘luxury tax’, which was strongly opposed

by the golf sector. The MPI argue that “there is a mounting perception that the game is elitist”,

consequently, the government “ordered the rich to pay higher taxes to offset the poor people’s

sacrifices for parting away vast agricultural lands, including paddy fields for golf courses”573. The

MPI also stressed that, “the rich must suffer for the luxuries due to major concerns involving golf

development, such as land use rights, land conversion and the environment”.

Circular No. 230/2009/TT-BTC, Tax Relief for Environmental Protection

In case of investment in development projects encouraged in any economic zones, the

Government may make submissions to the National Assembly for its consideration and issue

resolution on investment incentives (Article 39). Recently, Circular No. 230/2009/TT-BTC

provides tax relief for environmental protection efforts. An Inspectorate for Investment Activities

is likewise established, which shall have the duty to inspect the implementation of the law and

568 No. 59-2005-QH11, art. 11 speak about the retroactive application of the law 569 No. 59-2005-QH11, art. 33 provides that “investors shall be entitled to tax incentives on that portion of income which is distributed to them being a capital contribution or purchase of shareholding in an economic organization after such organization has paid in full corporate income tax”. 570 No. 59-2005-QH11, art. 36 stipulates that the “term of land use of an investment project shall not exceed fifty years and maybe extended”. Investors in incentive sectors and geographical areas shall be entitled to an exemption from payment of or a reduction of land rent and land use fees. 571 No.5/1998/QH10, The Law on Special Consumption Tax (1998) provides that the taxable objects under art.1 include services, such as golf business, sale of membership cards, golf playing tickets. Refer to personal interviews of Robert Bicknell of Tam Dao Golf and Resort; Kenny Saunders of Ocean Dunes and T.W. Hughes of Dalat Palace Golf Course. 572 The Foreign Investment Agency (FIA) is in charge of trade and foreign investment promotion as well as the approving agency to dispense tax holidays and subsidies. 573 Appendix “19’. Personal interview with Nguyen Thi Bich Ngoc of MPI.

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policies on investment574, specifically on those sectors in which investment is prohibited.575 Again,

Viet Nam is the first country to provide tax relief for environmental projects. Other countries

should look into this practice to encourage and promote environmental activities.

The Enterprise Act (1999)

The Enterprise Act provides for the establishment, organization, management, and operation of

companies, partnerships, and private enterprises of all economic sectors.

Commercial Law, No. 36/2005/QH11 (2005)

The Commercial Law governs commercial activities conducted in Viet Nam, as well as those

conducted outside the country - in cases where parties agree either to the application of the

Commercial Law, or a foreign law or a treaty to which the government is a contracting party

(Article 1, Section 1).

Securities Law (2007)

The State Securities Commission (SSC) 576, a government agency overseen by the Ministry of

Finance (MOF) implements the Securities Law, which requires registration of securities before it

can be sold to the public. However, proprietary golf membership shares are not considered as

securities in Viet Nam.

Therefore, the golf course industry, comprising local or foreign investors, ostensibly receives

fiscal and non-fiscal incentives, tax holidays and other economic opportunities from the

government. Thus, the investment laws favor the development and operation of golf courses. The

golf course industry however has been charged a 30% Special Consumption Tax. The proliferation

of golf courses attracted severe criticism and public condemnation especially from farmers and

NGOs who see golf courses as a waste of land, with less economic impact than agriculture.577 Data

574 No. 59-2005-QH11, art. 85 empower the Inspectorate for Investment Activities to detect, prevent and deal with breaches of the law on investment. 575 No. 59-2005-QH11, art. 30 enumerates the prohibited projects that are detrimental to national defense, security, and public interest; historical and cultural traditions and ethics, fine customs; harm the people’s health, or destroy natural resources and the environment. 576 Visit the State Securities Commission portal at http://www.ssc.gov.vn/portal/page/portal/ssc_en. Accessed on August 21, 2010. 577 Long S. Le, Anger on the Farm: The Displacement of Rural Vietnam, Global Asia, March 2010. Available at http://www.globalasia.org/l.php?c=e271. Accessed on 21 August 2010.

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obtained from the Viet Nam Golf Association (VGA)578 and from interviews of course Managers

conducted in Ho Chi Minh, Phan Thiet, Dalat, Tam Dao and Hanoi revealed that there are

approximately 10,000 rounds of play in Viet Nam for one year579. Thus, the massive development

of twenty-four golf complexes is perceived to be unrealistic and the impending construction of

more than a hundred golf facilities is therefore unconscionable. Anti-golf campaigners also assail

that speculative investment in golf estates caused the escalation of land prices, specifically the

construction of resort hotels. These explain the placement of golf courses within close proximity

in major city centers where industrial parks and economic zones are situated, especially in the Ho

Chi Minh City area where five golf courses580 are being operated. In Dalat Province, there is a

second golf course to be built581 while Sea Links Golf Resort is a second course built in Phan

Thiet582, which has severe freshwater concerns. A detailed discussion of land use planning laws nd

regulations follows.

1.4 Singapore

Singapore became one of the highly developed economies in Asia by building a financial hub in

the region. As such, the Monetary Authority of Singapore has tightly enforced the country’s

investment laws. The Ministry of Trade and Industry, which was carved out of the development

division of the Ministry of Finance has coordinating authority on investment matters. Together,

these agencies ensure the stringent regulation of all economic activities in the country.

Correspondingly, Singapore established a robust legal system, which can speedily and

substantively of dispose cases, complete with a dynamic regional arbitration court.583 The golf

course industry has been vigorously promoted and developed in Singapore mainly because of the

extensive popularity of the game. Sixteen golf clubs were established to operate golf courses of

varying sizes and number of holes. The golf clubs either have separate legal personality – as a

corporation or as an organization, governed by various laws in the country.

578 Viet Nam Golf Association website is available at http://www.vga.com.vn/?lg=1. Accessed on January 5, 2010. 579 Personal interview of Robert Bicknell from Tam Dao Golf Course and T.W. Hughes of Dalat Palace Golf Course. 580 Golf courses include the 36 holes Viet Nam Country Club, 27 holes Song Be Golf Resort, 36 holes Long Thanh Golf Club and the 27 holes Dong Nai Golf Resort. 581 Dalat Province is home to Dalat Palace Golf Club, a seventy-five year old golf club built by the Bao Dai. A second golf course received a license to build a golf course. 582 The first Golf Course in Phan Thiet is the Ocean Dunes Golf Club. 583 The Singapore International Arbitration Centre (SIAC). Available at http://www.siac.org.sg/cms/. Accessed on August 24, 2010.

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Business Registration Act, Cap. 32 (1974) Companies Act, Cap. 50 (2005) Limited Liability Partnerships Act, Cap. 163A (2005) Societies Act, Cap. 311 (1987)

The Business Registration Act, require all corporations, before it can engage in business

activities, to be registered as a company under the Companies Act or under any corresponding

previous legislation or register as a limited liability partnership under the Limited Liability

Partnerships Act (Section 2, Clause 1). A body corporate formed or incorporated outside

Singapore, and foreign corporations can engage in business in Singapore.584

In Singapore, sports organizations are formed as clubs or societies and sometimes as

incorporated entities585. There is the Societies Act (Cap 311), which governs the registration of

societies (Article 4A). On the other hand, corporate law regulates sports organizations that are

incorporated, and the law relating to clubs and societies governs sporting clubs and societies. In

Singapore, governmental and quasi-governmental involvement comes mainly by way of the

Singapore Sports Council, the Ministry of Community Development and Sports and the

Singapore National Olympic Council.

Economic Development Board Act, Cap. 85 (1961)

The Act constituted the Economic Development Board586 to stimulate the growth, expansion and

development of the economy and to identify key enterprises (Section 6). Foreign investment587

accounts for a significant share of total investment in the country. However there are restrictions

on identified inward foreign investment.588 To encourage foreign direct investment (FDIs)589, the

584 The government of Singapore “espouses economic openness, free trade and free market”. Visit EDB at http://www.edb.gov.sg/edb/sg/en_uk/index.html. Accessed on January 12, 2011. 585 The Regulation of Sports in Singapore at http://www.lawgazette.com.sg/2002-12/Dec02-focus2.htm. Accessed on May 20, 2013. 586 Economic Development Board Act (EDBA), Cap. 85, s.5 provides that the EDB shall consist of a chairman and members not less than five or more than fifteen. 587 Bilateral and multilateral arrangements have been forged granting fiscal and non-fiscal incentives to investments sited in Singapore. Under the Singapore-Australian Foreign Trade Agreement (SAFTA) Australian investors and investments are treated on the same basis as Singapore businesses (national treatment) i.e. establishment, acquisition, expansion, management, conduct, operation, liquidation, sale, transfer and expropriation of investments. See Department of Foreign Affairs and Trade Fact Sheet at www.dfat.gov.au/. Accessed on October 5, 2009. 588 Restrictions apply specifically in broadcasting, domestic news media, legal and other professional services, multi-level marketing, property ownership and retail banking. Read Broadcasting Act, Cap. 28, s.44 (1994, amend.); Newspaper and Printing Presses Act, Cap. 206 (1975, amend.), and Legal Profession Act, Cap. 161 (1967, amend.). 589 Locknie Hsu, “Inward FDI in Singapore and its Policy Context”, Vale Columbia Centre on Sustainable International Investment, 2012. Available at

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government grants exemption of corporate tax on profits from pioneer activity up to ten years;

double deduction for qualifying research and development expenses against income; operational

headquarters’ income from the provision of approved services is taxed at 10%; innovation

development projects may obtain grants of 30%-50% of approved direct development costs,

including tax reliefs. 590 Two areas specifically identified for further development are

environmental and water technologies591.

Securities and Futures Act, Cap. 289 (2002)

The Monetary Authority regulates dealings of securities. However, the sale of proprietary

membership shares in golf clubs is not regulated in any manner under the Act. In cases of intra-

corporate conflicts in club memberships, the cause of action maybe brought in regular courts for

resolution of legal controversies.

Income Tax Act, Cap. 134 (1948)

The Act provides that, “to be tax resident in Singapore, the control and management of the

business of a company must be exercised in the country” (Section 2). This means that the tax

situs or the place of exercise of the control and management is the place of residence of the

company.592 Under Section 10 (1), “a tax is chargeable on income accruing in or derived from

Singapore”. However, capital gains are not taxable in Singapore as the gain is derived from the

sale of a property. Hence, proprietary shares of stocks in golf clubs are not taxable because it is

not a capital gain.593 It is “only when a person is trading in properties or securities that the gains

from the sale is “income” and is therefore taxable”.594 To determine if a person is trading in

properties, the Inland Revenue Authority of Singapore (IRAS) applies a set of guidelines known

http://www.vcc.columbia.edu/files/vale/documents/Singapore_IFDI_-_FINAL_-_31_May_2012.pdf. Accessed on May 20, 2013. 590 Income Tax Act, Cap. 134 and Economic Expansion Incentives (Relief from Income) Act, Cap. 86 591 Also read articles on Investment regimes in ASEAN countries, available at http://asialaw.tripod.com/articles/lawaninvestment10.html. Accessed on September 2, 2010. 592 Generally, read, “The Private Wealth and Private Client Review”, John Riches, Editor, Sim Bock Eng, for Chapter 23, “Singapore”, Law Business Research by Wong Partnership LLP (2012). Available at http://www.wongpartnership.com/files/download/460. Also read Margaret Fordham, updated by Liu Hern Kuan and Marina Capel, Tax Incentives for Investment in Singapore, 1997, Third Edition, Financial Times Law and Tax, Asia Pacific, at page16. 593 What is taxable Income in Singapore? Visit http://iras.gov.sg/irasHome/page04_ektid440.aspx. Accessed on August 24, 2010. Read the Singapore Revenue Regulation 2004, LexiNexis, specifically, the Economic Expansion Incentives (Relief from Income Tax) Act, Cap. 86, (2001 Edition). 594 For gains from sale of property, visit http://www.iras.gov.sg/irasHome/page04.aspx?id=152. Accessed on August 24, 2010.

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as the "badges of trade"595 where it considers all facts of each case to determine whether the

gains are taxable, i.e. frequency of transactions (buying and selling of properties); reasons for

acquiring and selling of property; financial means to hold the property for long term, and

holding period.

Therefore, it can be argued that the government of Singapore similarly extends fiscal and non-

fiscal incentives, subsidies and tax breaks to the golf sector, as the other subject countries do in

this thesis. State lands are leased out on long-term basis, i.e. thirty years, particularly lands

owned by the Public Utilities Board and the Singapore Land Authority. The lease maybe

extended also depending on the hierarchy of needs of the state596. Golf clubs in Singapore are

owned mainly by local investors or clubs, which sold membership shares to the general

public.597 When membership shares are sold, capital gains tax598 accrue unless the club is

established for non-profit purpose. Hence, commercial golf clubs pay corporate income taxes599.

B. The Planning Stage 1. Land Use Planning and Control In this planning stage proponents for golf course development search and procure suitable lands for their project. Decisions are made whether large tracks of land will be leased or purchased. This sub-topic discusses the constitutional provisions, laws, regulations, decrees and policies involving land use, classification, planning, control and land user grants, including leases and ethical use of public land for golf course development.

595 Visit http://www.iras.gov.sg/irashome/page04.aspx?id=152. Also see BJ Ooi, “Determining the Nature of Profit, KPMG Singapore (2012) at http://www.kpmg.com/sg/en/pressroom/pages/mc20120808.aspx. Accessed on May 20, 2013. 596 This is one of the guides on lease approvals, at http://www.sla.gov.sg/htm/new/new2004/new0233.htm. Accessed on May 20, 2013. Also read, “Golf Courses make way for housing needs”, ST Property, available at http://www.stproperty.sg/articles-property/singapore-property-news/golf-courses-to-make-way-for-housing-needs/a/103250. Accessed on May 20, 2013. 597 There are different types of club memberships in Singapore – majority of which are the so-called Non-Proprietary or traditional shares. The Singapore Island Country Club sells Term and Ordinary Memberships, visit SICC at http://www.sicc.org.sg/membershipmembership_type.asp. Warren Golf and Country Club sells corporate and golfing transferable shares, visit at http://www.warren.org.sg/membership.html. Marina Bay operates a public course hence it sells no shares to the players. Keppel Club has corporate, ordinary and social membership shares, read at http://www.keppelclub.com.sg/theclub.aspx?id=membership. Accessed on July 12, 2011. 598 Capital Gains Tax is a tax imposed on capital gains. But generally, in Singapore, profits or losses derived from the buying and selling of shares or other financial instruments under a person’s own account is viewed as personal investments. Capital gains are not subjected to tax. If a person buys and sells shares or other financial instruments at a profit, the profit is not subjected to tax. Gains from Sale of Shares and Financial Instruments, Read at http://www.iras.gov.sg/irasHome/page04.aspx?id=152 599 Tax Rates and Exemption Schemes at http://iras.gov.sg/irasHome/page04_ektid410.aspx. Accessed on December 20, 2010.

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1.1 Philippines

The national government has undertaken to provide land use planning through decentralized

system under the Local Government Code. However, there is no national comprehensive land use

planning system in the country. The lack thereof resulted in chaotic implementation of

inconsistent local laws on land utilization. Thus, the Forestry Reform Code, Comprehensive

Agrarian Reform Code, Indigenous Peoples Rights Act and the Agriculture and Fisheries

Modernization Act aim to ensure that land is utilized properly. Section 3, Article XII, Philippine

Constitution stipulates that, “lands of public domain are classified into agricultural, forest or

timber, mineral lands and national parks”, and that, “agricultural lands of the public domain may

be further classified according to the uses to which they may be devoted”. Correlate this with

Section 20, clause c, 1991 Local Government Code, which allows reclassification of land,

according to usage, and Section 65, 1988 CARP Law, which allows land use conversion. There is

therefore development and environmental protection conflict involving land use, and this also

brings to the fore the issue of land use conversion.

Table 1.21 shows the summary of the approved applications for land use conversion. From the

data of the Centre for Land Use Policy, Planning and Implementation of the Department of

Agrarian Reform (CLUPPI), the approvals peaked in 1994-1999, and increased again in 2003.

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Table 1.21 Approved Applications for Land Use Conversion, As of September 2005

Year Area (has.)

1979-1987 27.41

1988 335.27

1989 551.18

1990 1,790.60

1991 3,230.94

1992 1,992.76

1993 1,534.20

1994 4,189.01

1995 2,443.44

1996 3,248.96

1997 2,997.22

1998 5,889.30

1999 3,469.20

2000 2,362.50

2001 1,096.59

2002 1,091.38

2003 4,353.78

2004 1,129.30

Undated 239.79

Total 43,141.64

Source: Center for Land Use Policy Planning and Implementation (CLUPPI)

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Chart 2 Land Use Conversion by Area/Land Size, As of September 2005

Source: CLUPPI, DAR

Table 1.22 shows the summary of approvals for land use conversion, by purpose.

Table 1.22 Approved Applications for Land Use Conversion,

By purpose as of September 2005

Purpose Area Percentage (%)

Residential 15,864 36.77

Commercial 534.32 1.24

Recreational 2 0.00

Mixed Use 2,375.13 5.51

Mixed Use with Residential 13,591.31 31.50

Industrial 6,731.70 15.60

Institutional 1,356.25 3.14

Agro-industrial 669.17 1.55

Agri-industrial 15.83 0.04

Others 2,001.14 4.64

Source: CLUPPI, DAR

0  

1,000  

2,000  

3,000  

4,000  

5,000  

6,000  

7,000  

Hectares  

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Chart 3 is the graphic chart of approved applications for land use conversion, by purpose.

Chart 3 Summary of Approved Applications for Land Use Conversion,

By purpose as of September 2005

Source: DAR CLUPPI

The CLUPPI – DAR released the latest land use conversion master data as of March 3, 2011,

disclosing that there are 968 applications approved (34,632.7447 ha) and 195 disapproved

(7,152,4536 ha). In terms of percentage of approvals, around 83% of the application for land use

conversion has been approved and only 17% has been denied.

Table 1.23 reflects the summary of approved and disapproved applications all over the

Philippines, as of March 2011.

Residential  36.77%  

Commercial  1.24%  

Recreational  0.00%  

Mixed  Use  5.51%  

Mixed  Use  with  Residential  31.50%  

Industrial  15.60%  

Institutional  3.14%  

Agro-­‐industrial  1.55%  

Agri-­‐industrial  0.04%  

Others  4.64%  

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Table 1.23 Summary of Land Use Conversion (Approved or Disapproved)

As of March 3, 2011

Region/Province Approved Disapproved Total

No. Area (Ha) No. Area (Ha.) No. Area (Ha)

CAR 17 173.3062 4 41.6707 21 214.9769

Benguet 16 166.0222 4 41.6707

Kalinga 1 7.2290

CARAGA 5 140.3290 3 153.5101 8 293.8391

Agusan Del Norte 1 106.1756 1 4.2158

Agusan del Norte 4 34.1534

Surigao del Sur 2 149,2943

REGION I 15 1,626.6722 0 0 15 1,626.6722

Ilocos Sur 2 19.4573

La Union 2 14.2574

Pangasinan 11 1,592.9575

REGION II 14 197.7785 0 0 15 197.7785

Cagayan 6 87.4548

Isabela 5 102.0395

Nueva Viscaya 3 8.2842

REGION III 165 7,792.6655 42 1,120.6195 207 8,913.2859

Bataan 20 2,058.0371 6 315.0830

Bulacan 52 1,033.5505 12 145.243

Cabanatuan 1 17.9972

Nueva Ecija 9 98,4750 8 98.1993

Pampanga 60 3,242.9361 5 254.0275

Tarlac 19 1,101.8609 7 189.8603

Zambales 5 257,8059 2 100.2089

REGION IV-A 308 11,309.6305 68 2,592.1799 376 13,901.8104

Batangas 100 3,659.3298 20 523.1335

Cavite 99 4,342.9967 26 1,043.1297

Laguna 59 2,273.6447 16 962.5274

Quezon 37 640.2751 5 41.0942

Rizal 12 379.3786 1 22.2951

Tagaytay 1 14.0056

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REGION IV-B 9 192.8485 3 146.4080 12 339,15565

Oriental Mindoro 3 51.9182

Palawan 3 94.7490 1 120.3306

Romblon 2 5.2294 1 1.96555

Marinduque 1 40.9519 1 24.0119

NCR 1 113.8469 1 2.2622 2 116.1091

Metro Manila 1 113.8469 1 2.2622

REGION V 59 1,895.1665 10 235.7865 69 2,130.9530

Albay 19 441.9247 5 50.6802

Camarines Norte 5 53.5577

Camarines Sur 26 889.1260 3 131.3212

Masbate 2 277.9565

Naga City 4 159.9334

Sorsogon 3 72.6682 2 53.7851

REGION VI 144 2,584.9609 17 584.5264 161 3,168.5873

Aklan 9 63.1610 1 48.7198

Antique 1 1.2278

Bacolod 2 7.5000

Capiz 21 300.7737 2 28.2626

Guimaras 2 195.1572 1 67.7980

Iloilo 68 1,058.5750 6 56.8715

Negros Occidental 41 956.6662 7 383.8745

REGION VII 30 913.5026 8 518.6263 38 1,432.1289

Bohol 1 8.7308

Cebu 24 775.8594 7 259.0039

Negros Oriental 5 128.9124 1 259.6624

REGION VIII 23 490.6606 9 423.0228 32 913.6834

Leyte 12 176.5277 5 123.8681

Northern Samar 2 20.5851

Ormoc City 1 80.4524 3 116.9926

Samar 5 194.1924 1 182.1621

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Tacloban 1 5.5439

Western Samar 2 13.3591

REGION IX 6 66.5319 2 3,300 8 69.8319

Zamboanga del Sur 3 27.3458

Zamboanga del Norte 3 39.1861 2 3.3000

REGION X 26 1,993.2754 165 1,005 31 2,158.3759

Bukidnon 8 255.1864 2 116.8199

Cagayan de Oro 1 2.0000

Lanao del Norte 2 88.3822

Misamis Occidental 3 91.4625

Misamis Oriental 12 1,556.2443 3 48.2806

REGION XI 102 3,768.4712 19 991.9521 121 4,760.4223

Compostela Valley 3 63.8851 1 6,3709

Davao City 53 1,177.3903 1 2.4871

Davao del Norte 33 2,093.1949 12 762.8955

Davao del Sur 9 327.2291 3 38.5877

Davao Oriental 4 106.7718 2 181.6109

REGION XII 44 1,373.9983 4 173.5886 48 1,547.5869

Cotabato 5 91.7533

General Santos City 15 616.0556 2 163.9853

North Cotabato 2 24.0116 1 4.9929

South Cotabato 20 565.0278 1 4.6104

Sultan Kudarat 2 77.1500

TOTAL 968 34,632,747 195 7,152,4536 1,163 41,785,1983

Source: DAR, CLUPPI

Local Government Code, RA 7160 (1991) - Land Use and Zoning Classification

The Code 600 authorizes LGUs to reclassify lands according to use. LGUs are particularly

constituted with substantial control over its own affairs and given more powers, responsibilities

600 RA 7160, Local Government Code (LGC) mandated the decentralization of authority to LGUs. S.20, cl.c states that LGUs shall continue to prepare their respective comprehensive land use plans enacted through zoning ordinances.

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and resources. “Power, which used to be highly centralized in Manila is thereby de-concentrated

enabling especially the peripheral LGUs to develop not only at their own pace and discretion but

also with their own resources”.601 The planning function of the local government is embedded in

its dual status as a political unit and as a corporate body.602 LGUs specifically prepare respective

comprehensive land use plans (CLUP)603 enacted through zoning ordinances - considered as the

primary and dominant basis for the future use of land resources. The CLUP process requires that

the zoning ordinance must be submitted to the regional or provincial land use committee for

procedural review and forwarded to the Housing and Land Use Regulatory Board (HLURB)604 for

final review and ratification.

Important provisions of the Code include Section 54 on the approval of ordinances, which may

include zoning and land use, and Section 27 on prior consultations required for projects and

programs. Section 106 relates to the Local Development Councils at the provincial, city,

municipality or barangay level, which assists the corresponding Sangunian605 in setting the

direction of economic and social development, and coordinating development efforts within its

territorial jurisdiction. Through the system of decentralization, the LGUs pass local ordinances,

which became the basis for the approval of development projects. However, problems arise when

large projects involving vast tracks of lands straddle two municipalities or cities, i.e. golf courses.

When these LGUs clash in their development perspectives, the project gets stalled, and

decentralization becomes a hindrance to progress. Thus, the enactment of comprehensive national

land use plan is necessary which should guide development plans for the LGUs.

601 Miriam Defensor-Santiago, Local Government Code Annotated, Central Professional Books, 2000, at page 6. 602 Refer also to RA 7160, chap. 2, s.20, par. c and s.447, cl.viii and title.6, s. 106, 109 (1991) on Comprehensive Development Plans and Land Use Plans. 603 The Comprehensive Land Use Plan (CLUP) is a document that articulates the aspirations, development goals, objectives and policies of the city into a spatial plan elucidating the modes in which land assets can be put into optimum use. Visit the official website of the Department of Interior and Local Governments for Joint Memorandum Circular No. 001, Series 2009 regarding Guidelines for the Harmonization of CLUP and Comprehensive Development Plan Preparation at http://www.dilg.gov.ph/attachments/0000/1986/JMC2009-001.pdf. Accessed on August 17, 2010. 604EO 648, s.1981 declared the HLURB as the planning, regulatory and quasi-judicial instrumentality of the government for land use development. Among the powers and duties conferred to HLURB is to assist LGUs in the preparation of CLUPs and Zoning Ordinances. 605 A “Sanggunian” is the local legislative assembly under the local government administration. RA 7160, s.48 states that “local legislative power shall be exercised by the sangguniang panlalawigan for the province; the sangguniang panlungsod for the city; the sangguniang bayan for the municipality; and the sangguniang barangay for the barangay”.

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Executive Order 124 (1993) Memorandum Circular 54 (1993) Executive Order 72 (1993)

EO 124 establish priorities and procedures in evaluating areas for land conversion in Regional

Agricultural/Industrial Centers, Tourism Development areas and sites for Socialized Housing.

Memorandum Circular 54 prescribes guidelines for Section 20, RA 7160, which specifically

authorizes Cities and Municipalities to reclassify lands into Non-Agricultural Uses.. Executive

Order 72606 mandates cities and municipalities to continue formulating or updating their respective

comprehensive land use plans and submit the same to the local council for approval as a zoning

ordinance.

Fortich v. Corona, 298 SCRA 679, (1998) Patalinhug v. Court of Appeals, 229 SCRA 534, (1994)

The Supreme Court expounded on the power and authority of the LGUs in Fortich case, and held

that “LGUs need not obtain the approval of the Department of Agrarian Reform to convert or re-

classify lands from agricultural to non-agricultural use”, and in Patalinhug ordered that the

“declaration of the area as commercial zone through a municipal ordinance is an exercise of police

power to promote the good order and general welfare”. It further stated that, once an LGU has re-

classified an area as commercial, the determination for zoning purposes must prevail.

Proposed National Land Use Act

There are various administrative land use controls in the Philippines, which include zoning, land

development control and monitoring, Housing and Land Use Regulatory Board (HLURB)

regulations, declaration of nuisances, environmental controls, etc.607 “There is therefore not only

an abundance of law but a panoply of government institutions, which in one way or another, is

involved in land use planning”.608 Yet the fact remains that the existing land use planning system

is chaotic and that a comprehensive national land use law has not been enacted. There has been a

606 EO 72 provides for the preparation and implementation of the comprehensive land use plans of LGUs. Cities and Municipalities of Metropolitan Manila shall continue to formulate or update their respective CLUP, in accordance with the land use planning, zoning standards and guidelines prescribed by the HLURB pursuant to EO 392, s.1990, and other pertinent national policies. EO 392 is an act constituting the Metropolitan Manila Development Authority (MMDA). 607 Myrna S. Feliciano, Amado S. Tolentino Jr, Eduardo A. Labitag, Alfredo E. Gloria, Antonio A. Oposa Jr., Environmental Law in the Philippines, Institute of International Legal Studies, UP Law Centre, 1992, at pages 311,343, 345-356. 608 Id.

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strong lobby to pass the National Land Use Act609, which remains pending before the lower house

of Congress as House Bill No. 2190 (2007) and No. 3637 (2007).

The proposed Act specifically mentions the lack of national land use policy framework in the

country that would help minimize environmental degradation yet it likewise recognizes the

competence of the LGUs over land use planning. It also calls for the creation of a centralized body

called the Land Use Policy Council (LUPC) 610 composed of various government agencies

involved in land use, and classifies land according to use - protection land use, production land

use, settlements development and infrastructure development. Section 25, Proposed Act provides

for a National Geo-Hazard Mapping Program initiated jointly through the LUPC by various

agencies of the government, such as PHILVOLCS611, PAGASA612, NAMRIA613, Mines and Geo-

Sciences Bureau 614 , BSWM 615 and DOE 616 , in coordination with the National Disaster

Coordinating Council (NDCC), the Regional Development Council (RDCC) and concerned

government agencies. It also provides that a geo-hazard map shall be incorporated and integrated

in the Comprehensive Land Use Plan and that all infrastructure activities, including real estate and

subdivision projects and the development of tourist spots requiring ECC, shall be required to

submit an Engineering Geological and Geo-Hazard Assessment Report.

The geographical distribution617 of golf courses in the Philippines shows massive concentration in

city centers largely because residential subdivisions are being developed side by side with golf

courses. The provision regarding the Geo-Hazard program tries to seek resolution of the issue of

land development in potentially hazardous areas, e.g. identified fault lines, weak river deltas,

lakeside ravines, as there have been many incidents in the past where accidents, such as soil

609 The proposed Act has been pending since 2003. It was sponsored and endorsed separately by Representatives Rufus Rodriguez and Ana Theresia Hontiveros-Baraquel during the 14th Congress. 610 House Bill Nos. 2190 and 3637, s.14 proposed “the creation of LUPC which shall exercise the powers and responsibilities of the National Land Use Committee and the powers and functions vested by law to the HLURB on land use planning. The LUPC shall act as the highest policy making body”. 611 Philippine Institute of Volcanology and Seismology (Philvolcs) 612 Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAGASA) 613 National Mapping and Resource Information Authority (NAMRIA) 614 Mines and Geo-Sciences Bureau (MGB) is an attached agency to the Department of Environment and Natural Resources. 615 Bureau of Soils and Water Management (BSWM), Department of Agriculture. 616 Department of Energy (DOE). 617 See Map 1, Philippines

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erosion and landslides have buried entire communities and destroyed the livelihood of residents.618

Nonetheless, Congress has not acted on the Proposed National Land Use Act.

There has been no explanation from Congress why a comprehensive national land use plan was

not passed. It can be presumed however that due to the decentralization of authority to re-classify

land usage under Section 20, RA 7160, there is an “apparent” reluctance by LGUs to relinquish

power to enact zoning ordinances. Arguably, LGUs have the competence to identify specific areas

for growth and development, and to determine external factors, e.g. political, economic and

social619, which pose enormous challenge to local governments. LGUs are therefore expected to

enact land use/zoning ordinances according to the development needs of the local government and

the landowners but corruption is a major issue confronting local administration. The worst

allegation involves the sale of zoning/re-zoning ordinances 620 , Land Use Clearances or

Certification of Land Uses to project developers by unscrupulous local Planning and Development

Officers621. The price, according to unnamed sources ranges from a few thousands to millions of

pesos.

Land use classification is necessary to identify the nature of development that is allowed for every

piece of land. An agricultural land will not be allowed for residential development unless it has

been re-classified as residential land. Hence, a few investors would spend money to bribe local

officials to make new zoning and re-zoning ordinances to suit their development needs.

Moreover, the issuance of land use classification certificate is necessary before the Office of the

Mayor issues development permits.622

618 Foremost of these tragedies include the Guinsaungon landslide, available at http://www.usatoday.com/news/world/2006-02-17-landslide_x.htm and the Cherry Hills Incident available at http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100804-284982/Cherry-Hills-11-years-later-Still-no-justice. Both sites were accessed on December 3, 2010. 619 Informal settlers are known to provide massive political votes come election time. 620 Land use conversion is a major source of corruption. Read Dabet Castaneda’s “LGU’s Power to Reclassify land helps landowners evade CARP”, ABS-CBN News, April 14, 2008, http://www.abs-cbnnews.com/special-report/04/14/08/lgus-power-reclassify-land-helps-landowners-evade-carp. Accessed on May 20, 2010. 621 The Office of the Local Planning and Development is statutorily mandated under RA 7160, LGC, art. 6, s.476.b, item no.5, “(T)o prepare comprehensive plans and other development planning documents for consideration of the Local Development Council”. 622 The Mayor is the Chief Executive Officer of a local government unit (LGU).

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Republic Act No. 9485, Anti-Red Tape Act (2007)

Obviously, the local Sangunian are being pinpointed as the source of the “commodification of

certificates” whereby applicants are accommodated for a price while favorable zoning ordinances

are enacted based on land developer’s necessities. When development projects straddle two

municipalities or cities, the lack of coordination between the LGUs would result in conflicting

zoning classifications at the border. Therefore, a comprehensive national land use plan is

necessary in order to identify and properly site the golf courses in the country. The Anti-Red Tape

Act seeks “to improve the efficiency in the delivery of Government service to the public by

reducing bureaucratic red tape, preventing graft and corruption”.

Comprehensive Agrarian Reform Law, RA 6657 (1988)

The Law implements the comprehensive rural development and agrarian reform623 by mandating

the Department of Agrarian Reform under Section 65 to reclassify or convert land use from

agricultural to commercial or industrial624, provided the conditions are satisfied.625 Historically

speaking, decades-long social conflicts involving landlessness and poverty marginalized huge

sectors of the society. In order to solve the simmering social unrest, separatist war and communist

threats, Philippines enacted RA 6657.

During the short-lived Estrada presidency (1998-2000), more than 100,000 hectares of prime

agricultural lands have been applied for conversion for commercial or industrial uses.626 The land

conversion (legal or illegal)627 around Regional Industrial Centers (RICs), according to a 2003

study of the Institute of Strategic Planning and Policy Study (ISPPS), University of the Philippines

623 RA 6657, s.2 states that “agrarian reform program is founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a share of the fruits thereof”. 624 When agricultural lands are converted, golf course development is allowed. 625 RA 6657, s.65, Conversion of Lands provides that “After the lapse of five years from its award, when the land ceases to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition”. 626 Genuine Agrarian Reform: Still a Distant Dream for the Philippine Peasantry, Kilusang Magbubukid ng Pilipinas Conference Paper “Land in Sight? The Philippine Agrarian Reform – Conflicts, Perspective, Solidarity.” Germany, 31 March 2001. 627 Land use conversion is the act or process of changing the current physical use of a piece of agricultural land into some other use, as approved by the Department of Agrarian Reform. See Primer on Land Conversion, DAR, Series 2007.

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(Los Banos) have reached more than 166,940 hectares (412, 518 acres).628 Most of these lands are

utilized as golf estates triggered by the unprecedented economic growth during the Ramos

presidency (1992-1998). Fifteen years following the implementation of RA 6657, the DAR

reported a cumulative accomplishment of land distribution to farmer-beneficiaries.629 The report630

nonetheless failed to mention how many hectares of distributed lands have been sold, transferred

or assigned631 to real estate developers, among them golf clubs, by farmers-beneficiaries.632

The circumvention of RA 6657 was severely criticized by affected landowners and progressive

farmer’s organizations, specifically Section 65, which allows land use conversion of farmlands

awarded to beneficiaries, for economic reasons.633 This is significantly an absurd if not an

impractical provision, which precisely defeats the very purposes land reform was adopted, which

is the social distribution of agricultural lands to ensure sufficiency in food production. The policy

of allowing the conversion of croplands into non-agricultural uses places at risk the food security

of the nation. In 2008, the rice shortages have proven the misplaced priorities of the government.

There is also laxity in approving conversion applications – from agricultural to commercial or

industrial, as evidenced by the unmitigated approvals by DAR. The approved land conversions

have reached more than 43,000 hectares as of 2005.634 A certificate of land use classification

issued by various government agencies, such as the LGU, Department of Agriculture, Housing

and Land Use Regulatory Board is a pre-requisite document for the grant of Land Use Conversion

Order/ Exemption issued by DAR. When agricultural land is converted for golf course

development, the aforementioned process must be complete. Land use conversion refers to the

628 State's Failure to Fulfill and Defend its Citizens' Right to Food: The Philippine Experience, Conference Paper prepared by Aurora A. Regalado and the Philippine Group for Asian Consultation on Economic, Social and Cultural Rights, 27-28 January 2000, Quezon City, Philippines. 629 There is land distribution of 6,404,559 hectares with 3,825,142 farmer beneficiaries over the 1972-June 2005 period. See Sonny Africa, IBON Features, IBON Foundation. An Independent Research think tank in the Philippines. Vol. XII, No. 25, June 2006. 630 “The Philippine Agrarian Reform at a Glance”. Senate Economic Planning Office Report, June 2006. 631 Transfer by sale is subject to restriction under Section 73, RA 6657, as amended. Read generally Marife Ballesteros and Alma De La Cruz, Land Reform and Changes in Land Ownership Concentration, Philippine Institute for Development Studies, December 2006, at pages 9-13. 632 RA 6657, Comprehensive Agrarian Reform Act, s.73 prohibits the sale, transfer and conveyance of awarded land. 633 RA 6657, s.65 also speaks about a 5-year limitation against sale, transfer, conveyance of awarded land. 634 A summary of approved land use conversions as of March 11, 2011 was released by the Centre for Land Use Policy Planning and Implementation (CLUPPI). Refer to Table 1.25. See generally, the Senate Economic Planning Office, Requisites of a Land Use Policy, Policy Insight, October 2005 Issue, P1-05-05, at page 2. Visit http://www.senate.gov.ph/publications/PI%202005-09%20-%20Requisites%20of%20a%20Land%20Use%20Policy.pdf. Accessed on December 4, 2010.

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process of changing the use of agricultural land to non-agricultural. It is a very tedious and costly

process and is generally known to be a major source of corruption.

Thus, the land use planning and control laws in the Philippines do not adequately protect the

environment in golf courses. In fact, the unmitigated land conversion aggravates environmental

degradation. The absence of a national land use policy results in confusing land utilization.

Therefore, a sound land use policy, which is integrated into the national development program,

should be adopted by the national government. However, the zoning classification should be clear,

programmatic and easy to implement. There must also be stakeholder’s participation in the

crafting of the policy where transparency and public accountability are respected and upheld. A

participatory planning process must therefore be pursued such as the adoption of short, medium

and long-term development strategies. In the Philippines, most land resource allocations are still

performed by the national government - through the DENR. But in 1997, DENR reported that

“while institutional roles are fairly well defined for land use plans the involved agencies are

generally weak or almost non-existent due to structural, administrative and political factors”.635

Unless a comprehensive national land use planning system is implemented, land use conversion of

agricultural lands will be difficult to regulate and control reasonably.

1.2 Thailand

City Planning Act, B.E. 2518 (1975)

Thailand has no national comprehensive land use plan. However, the City Planning Act

introduced a zoning concept but for Metropolitan Bangkok only. The Comprehensive Land Use

Plan of Bangkok (1992) was established yet a specific plan with stronger controls on land use

has not been established for the entire country. The “Bangkok Land-Use Plan 2006-2011” is the

current five-year plan for land use. Note however, that the existing land use planning system

pertains to urban centers only and the rural areas have not been included. The Office of the

Permanent Secretary under the Ministry of Interior (MOI)636 and the Department of Public

Work’s and Town and Country Planning (DPT)637 are responsible for urban development and

planning; assignments on town and country planning at every level, public works, among

635 Department of Environment and Natural Resources, Integrated Environmental Management Programme, Guidebook on Sustainable Land–Use Planning and Management, Vols. 1-6, 1997. 636 The portal of the Ministry of Interior is maintained in Thai language at http://www.moi.go.th/portal/page?_pageid=193,626326,193_626374&_dad=portal&_schema=PORTAL. Accessed on December 4, 2010. 637 Visit http://www.dpt.go.th/dpteng/. Accessed on August 19, 2010.

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others638. DPT also carries out and support local administrative authorities by formulating and

supervising land use policies, relocation system and infrastructure. In 2002, the Thai Cabinet

mandates DPT to develop a comprehensive land use planning system in the country639.

Land Code, B.E. 2526 (1983) and the Land Development Act (LSADA), B.E. 2542 (1999), as amended by LSADA, B.E. 2547 (2004)

The laws established the Land Development Committee with powers and duties, inter alia, to

consider land classification, planning, development and determination of areas for land

utilization to be submitted to the Council of Ministers for approval and implementation (Section

4). LSADA, B.E. 2547 (2004)640 governs land systematization641 while Section 5 creates the Land

Development Commission, composed of the Minister of Interior as Chairman and the Permanent

Secretary of the MOI as Vice-Chairman with a total of five members “to approve a master plan

and target area for development as proposed by the provincial commission; issue regulation

concerning principles and procedures for land systematization and the approval of projects”

(Section 6). Section 84 stipulates the penalties imposed on those who obstruct the operation of

the Provincial Commission or the Association Inspector, with imprisonment or fine (Section 84).

Agricultural Economics Act, B.E. 2522 (1979)

The Act established a Committee on Agriculture and Cooperative Development Policy and

Planning642 with power and duty to consider formulating agriculture policy (Section 5). Yet the

conversion of agricultural areas for land development persists mainly because there are no

standards or parameters laid down for approval or denial of land use conversion applications.

The planning system is therefore chaotic as urban and industrial development encroach

agricultural areas. Massive constructions of golf estates in urban centers specifically in the

metropolitan area of Bangkok643 and the seaside cities, pose threat to the environment. In the

countryside, development for speculative investment results in the land use conversion of 638 The portal of DPT is available at http://www.dpt.go.th/dpteng/relations/roles_re.html. Accessed on December 31, 2010. 639 Urban Planning Policies in Thailand. Visit http://www.ghb.co.th/en/Journal/Vol2/15.pdf. Accessed on August 19, 2010. 640 Royal Thai Gazette, Vol. 59, No. 10, October 2005. 641 B.E. 2547 states that, “land systematization means proceeding to develop many plots of land, laying layout to systematize land, improving or constructing infrastructures”. 642 The Committee is composed of the Minister and the Under-Secretary of MOAC as Chairman and Vice Chairman, respectively; the Under-Secretary of Commerce, Under Secretary of Industry, Secretary – General, Office of the National Economic and Social Development as members. 643 There are seventy-seven golf courses in Metropolitan Bangkok. Visit http://www.golf-tours-thailand.com/golf-course/Golf-Courses-Bangkok-All.htm. Accessed on September 2, 2010.

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agricultural lands thus placing at risk the food security of the nation. Are there agricultural lands,

distributed through the land reform program, which have been converted for golf course

development? There are no data available for review and assessment in this thesis.

In sum, Thailand has no national comprehensive land use plan. Consequently there is no policy

or regulatory control in the construction of golfing complexes in city centers and those

encroaching agricultural areas, specifically paddy fields. Agriculture is the main source of

revenue in Thailand. Recently however, industrial and residential developments have eroded

many agricultural fields. The considerable proliferation of golfing complexes with large

residential estates pose a major challenge in the enactment of a comprehensive national land use

plan and control system that would rationalize the initiatives and activities of development

planners, delineate the areas allowable for commercial and industrial development, notably the

areas for golf course development. There is likewise a need to regulate and control land use

conversion of agricultural lands for commercial, industrial or residential use with the

introduction of coherent procedures and workable standards.

1.3 Viet Nam

Land use policy and agrarian reform played crucial roles in national development and re-

construction of Viet Nam. Article 17 and 18, Constitution mandates that “lands are owned by the

entire Vietnamese people and managed by the state on its behalf” and that citizens have the “right

to transfer their lands use rights but not the land itself. The Constitution also entrusts the land to

organizations and individuals for stable and long term use” The maximum period allowable for the

transfer of land use rights, by way of lease to foreign-funded or owned projects, is from fifty to

seventy years644 in some special cases, e.g. land user rights (Chapter II, Article 17).

Land Law, No. 13-2003-QH11 (2003)

Viet Nam’s Land Law provides for the management and use of land, enumerates the powers and

responsibilities of the State as representative of the land645, the “uniform administration of land”

(Article 6) and the regime for administration and use of land, which includes the right of disposal

644 No. 59-2005- QH11, Law on Investment, art. 36 provide that, “the term of land use of an investment project shall not exceed fifty years and maybe extended. Investors in incentive sectors and geographical areas shall be entitled to an exemption from payment of or a reduction of land rent and land use fees”. 645 No. 13-2003-QH11 (2003), Land Law, art. 1 provides that the “State is the representative of the entire people’s ownership of land and exclusive management of land, use of land, rights and obligations of land users”. Meanwhile, art.5 states that, “land belongs to the entire people, with the state as the representative owner”.

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and the right to regulate sources of income for land use.646 The Ministry of Natural Resources and

Environment is responsible for ensuring that land is used in compliance with the approved land

use plan (Article 6-7). The Land Law also spells out the rights and obligations of land users647 as

well as the prohibited acts.648 It also revised land use planning, which includes classification and

zoning. More importantly, Article 74 provides that the State promulgates policy to protect rice

land cultivation and restrict its use for non-agricultural purposes. This is probably the basis for the

subsequent regulation of golf courses encroaching agricultural areas.

Meanwhile, Article 98 mandates that “land having historical and cultural relics, landscapes and

places of interest shall be strictly managed”. This provision makes up for the requirement to

protect historical sites. There is likewise a Decree providing for the Implementation of Law on

Land, under Decree No. 181-2004/ND-CP. Consequently, land-related administrative procedures

have been established and operated under the “one-stop shop” mechanism albeit this has not

prevented land users from assigning their land use rights to speculative investors.649 Such

prohibited acts actually invite the use of coercive power of the state to curtail the nefarious

practices, including the cancellation of land-use rights. In recent years, various land use conflicts

have increased, such as non-payment of assigned land use rights (LURs)650. Some individual

households have acquired a large percentage of their land through buying or renting activities, as

distinct from land that has been allocated or inherited hence, a more active market appears to be

646 Per Government Decree No. 91/2002/ND-CP, the MNRE is charged of land use planning in Viet Nam. Land Law, art. 2 provides that “the State shall exercise the right of disposition with respect to land by deciding on the land use purposes, examining land use zoning and land use plans”, etc. 647 See No. 13-2003-QH11 (2003), art. 9. Meanwhile, Art. 10 provides that “land users are issued land rights certifications” while arts.105-106 state that “the general right of land users includes the right to exchange, assign, lease, sub-lease, inherit, make gifts of Land Use Rights, mortgage, guarantee, right to receive compensation when land is recovered by the State, among others”. 648 No. 13-2003-QH11 (2003), art. 15 enumerates the prohibited acts, e.g., encroaching on or illegally occupying land; failing to use land or using land for incorrect purposes; breaching proclaimed land use zoning or planning; failing to perform or performing inadequately the obligations and responsibilities of land users. 649 National Assembly Deputies decry the use of golf courses to build villas, Viet Nam Net August 6, 2009. Available at http://english.vietnamnet.vn/reports/2009/06/851864/. Accessed on September 9, 2010. 650 Over the last decade the Vietnamese government has instigated land reforms that recognize the household as the basic unit of production and allocate land use rights to households. Under the 1993 Land Law these rights can be transferred, exchanged, leased, inherited, and mortgaged. This Land Law provided the foundation for the development of a market for land use rights. See, Sally P. March and T. Gordon MacAulay, “Farm Size and Land Use Changes in Vietnam Following Land Reform”, Department of Agricultural and Resource Economics, University of Sydney. Read at http://ageconsearch.umn.edu/bitstream/57919/2/2003_marshmacaulay.pdf

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associated with opportunities for land use changes which lead to more profitable production

activities651.

Housing Law (2005) Revised Land Law (1998) The Housing Law is the first law to set out a comprehensive legal framework for the ownership,

lease, use and management of houses, including apartments, by local and foreign individuals and

organization. It is relevant in the sense that it relaxed restrictions brought by the Revised Land

Law652 for the “Viet Kieu” or overseas Vietnamese. The change would allow more overseas

Vietnamese to own residences in Viet Nam and liberalize the conditions of ownership and also

provide the right to use the land attached to residences, nonetheless restrictions on the use of

residences as security for raising capital subsist. The Revised Law though is silent as to the

allowable residence area to be owned and what restrictions, if any, are imposed on the actual use

of the land attached to the residences.

Basic Law on Food, Agriculture and Rural Areas (2007)

Viet Nam also struggles with the issue of displacement from its transition to an industrialized

economy. Some people complain that, “the farmers are being displaced and farmlands have been

confiscated to feed the addiction of real estate tycoons to building golf courses while speculators

allow cleared land to remain unused in order to drive up land prices”.653 Viet Nam has also put in

place the necessary frameworks to allow foreign capital to invest in the country. The socio-

economic concerns are therefore attributed to both local and foreign investors. On the hand,

Article 1 seeks to “stabilize and improve people’s lifestyle and to develop the national economy

through comprehensive and systematic implementation policies”. It is about securing stable food

supply for Viet Nam.

Decision No. 1946/QD-TTg (2009)

Very recently, the Prime Minister approved the 2020 National Golf Course Development Plan

with the objective to build golf courses in appropriate locations in all regions throughout the

country. It aims to “use land economically and effectively . . . to promote economic, tourist, sport .

. . to create jobs and increase state budget revenues” (Section 1, Clause 1). The Plan recommends

that, “golf courses should not use lands planted with rice or vegetables . . . and forest lands”. It

651 Id. 652 Housing Law, art. 126 (2005) 653 Le Huy Ngo served as Minister of Agriculture and Rural Development from 1997 to 2007.

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likewise decreed that, “golf projects are not entitled to financial support from the state budget for

the construction of infrastructure facilities inside and outside functional areas”.654

The Plan stipulates that: (a) projects must be in line with local socio-economic development

master plans and land use planning; (b) meet requirements on wastewater treatment; (c) maximum

land area for 18 holes project is 100 hectares; (d) project must not use more than five hectares of

one-crop low yield rice fields; (e) submission of pre-feasibility reports and EIA; (f) that the

project must neither affect nor cause harm to tangible and intangible cultural heritage; (g) it is

strictly prohibited to use land allocated for golf courses to build houses or villas for sale or

transfer; (h) permission for groundwater extraction is needed; (i) PPC shall coordinate with

concerned ministries and branches in considering the need for golf courses”; (j) golf courses must

apply modern technical solutions in chemical spraying, plant nurturing; (k) projects must be

implemented twelve months after date of licensing and completed within forty-eight months after

issuance of license. The Plan allows only eighty-nine golf courses nationwide until 2020.

Apparently, this last condition could not be enforced as more golf courses were issued licenses

and are undergoing construction prior to the issuance of the National Plan.

It would appear that Viet Nam has no national comprehensive land use planning and control

system. The decentralization policy in the issuance of golf licenses resulted in chaotic

implementation of land utilization program by the Provincial People’s Committees and various

Ministries of the government. Thus, the Land Law should be amended, to include a regulatory

provision on land utilization. The National Golf Course Development Plan will not resolve the un-

controlled land conversion. In fact, it institutionalized the conversions previously allowed. Since

the state owns the land and grants only land use rights, the regulation and restriction on land

utilization will be easier to enforce.

1.4 Singapore

Urban Redevelopment Authority Act, Cap. 340 (Revised 1990) Planning Act, Cap. 232 (Revised 1998)

Golf course development require vast tracks of land, and in Singapore, land utilization requires

planning permission. The Urban Redevelopment Authority Act established the Urban Re-

development Authority (URA) - the national planning authority in Singapore. Meanwhile, the 654 Decision No. 1946/QD-TTG, s.1, cl.2 provides that “state budget capital maybe used to support the construction of golf courses for the community on a case - to - case basis”.

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Planning Act provides a “system of application for planning permission” wherein conservation

or subdivision permission is made to the competent authority (Section 13, Planning Act) and that

applications are likewise determined with reference to a “Master Plan” in case of an application

for written permission (Section 14). Land use is controlled by zoning and density/plot ratios, and

all land is zoned for a particular use.655 Section 34 imposes civil penalties for the grant of any

written permission of any development of land or any works within a conservation area.656

Concept Plans and Development Guide Plans

Concept Plans are strategic plans whereas more detailed plans are required657 to take the form of

Development Guide Plan (DGPs) that would show permissible land use and density for every

parcel of land.658 The Concept Plan is a strategic land use and transportation plan, which guides

the physical development of Singapore. Although the URA conducts public consultation in the

preparation of the Concept Plans, this paper takes notice of the fact that there was minimal

public consultation for the 2001 Concept Plan.659 Public participation can be achieved through

general consultation whereby stakeholders and interested parties are given the chance to

participate in discussions involving development programs that have impact on their lives.

Applying the Concept Plans to golf courses, the URA has set aside fifteen golf courses for

development and construction in the 1991 Concept Plan. So far, from 1991 to 2007, more than

five golf courses have been constructed in Singapore. Prior to 1991, there were only twenty-one

golf courses. Seletar Golf Club moved to its current location in 1995, New Warren Golf Club

655 Lin Heng Lye "Land Use Planning, Environmental Management and the Garden City as an Urban Development Approach in Singapore" Chapter 21, Land Use for Sustainable Development Series: IUCN Academy of Environmental Law Research Studies, vol.2, Nathalie Chalifour, John Nolon, Lye Lin-Heng; Patricia Kameri Mbote, eds., (New York:Cambridge University Press, 2007) pp 374-396 at p 377 656 Cap. 232, s.34 provides that “penalty shall not exceed fifty times the fee prescribed for an application for planning permission, conservation permission or subdivision permission or $150,000, whichever is the lesser amount”. 657 The Concept Plan at http://www.ura.gov.sg/gallery/mainT4_Concept.html. Accessed on December 20, 2010. 658 Id. Presently, there are fifty-five DGPs for the entire Republic including eleven in the central area. Each DGP that is completed is gazetted and replaces the corresponding part of the Master Plan. 659 In the preparation of the 2001 Concept Plan, the Focus Groups reported in December 2000 that “it has consulted resource groups, questioned assumptions and projection figures, gathered data, brainstormed ideas and studied feedback from more than 200 members of the public and invited individuals, who participated in the resource group discussions” and “that the recommendations were presented at a Public Forum where broad public discussion and feedback were obtained before the focus group finalized its recommendations”. However, there was no mention of the exact number of participants in the public forum as compared to the number of resident citizens in the country. Final Report on Land Allocation is available at http://www.ura.gov.sg/interim/report1.pdf. Accessed on May 3, 2009.

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moved to a bigger area in 1999, Kranji Sanctuary Golf Club opened in 2001, the Singapore

Island’s Millennium course was set up in 2001, Marina Bay Golf opened in 2006. The 2001

Concept Plan however, did not categorically mention the number of golf courses, which could be

developed yet it generally designated areas depending on future demand. The 2011 Concept Plan

entirely left out discussions on golf courses.

It is material to point out that the URA, the Ministry of National Development (MND) and the

Ministry of Environment and Water Resources (MEWR) allowed and justified the construction of

a public golf course in Marina East based on the Singapore Sport’s Council’s (SSC) assessment

that there is an increase in demand for golf, and hence there is a need to set up affordable golfing

facilities. Thus the Marina Bay Public Golf Course was built on reclaimed land, without the

preparation of an EIA, a feasibility study or a cost-benefit analysis, which could have revealed the

environmental impact of golf course development to coastal or marine areas.

Public Utilities Act, Cap. 261 (Revised 2002)

The Act reconstituted the Public Utilities Board (PUB) to “provide, construct and maintain

catchment areas and reservoirs for the collection, supply and use of water for public and private

purpose” (Section 3). The PUB is also tasked with the management and maintenance of public

sewerage system, public sewers, storm water drainage systems, drains and drainage reserves.660

Section 7 speaks about the “powers of the Board to carry on such activities as appear to be

advantageous, necessary or convenient to carry on, for or in connection with the discharge of its

functions and duties”. Could this section be the legal basis to lease out vast tract of PUB lands to

several golf clubs for 30 years? Previously, the government would only issue Temporary

Occupation Licenses (TOLs) to golf courses. But these were converted to 30-year leases at

market rates with a one-off discount of 50% in land valuation, which was granted to the then

existing golf clubs to help them adjust progressively to market rentals, according to PUB. But in

a recent press release, the PUB has announced, together with the Singapore Land Authority

(SLA) that “it will not proceed with the early extension of lease with the Singapore Island

Country Club”, a major golf club with five golf courses661. It also appears that leases of most

golf clubs will not be extended upon expiration after the government identified priorities for

housing development. This recent turn of events would show the strength of leadership and

660 Sec.6 states that PUB shall also regulate the construction, maintenance and improvement of sewerage and land drainage systems; regulate the discharge of sewage and trade effluent, etc. 661 PUB Press Release, March 19, 2013. Available at http://www.sla.gov.sg/htm/new/new2004/new0233.htm

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political will of the Singapore government to implement the most challenging task to close and

retire golf courses.

State Lands Act, Cap. 314 (Revised 1996)

The Act regulates662 the alienation and occupation of State lands and authorizes the President to

make rules for the disposal or temporary occupation of state lands663, i.e. mode of application,

terms and conditions on which grants, leases or other dispositions are issued. Some state

properties managed by PUB and SLA has been leased for 30 years to various golf clubs, in the

country.

State Lands Encroachment Act, Cap. 315 (Revised 1987)

The Act confers a duty to the Magistrate’s Court, upon the submission of a sworn information of

the Commissioner of Lands or any land revenue or other public officer, to charge any person

with being in unlawful occupation of any State land (Section 2).

Singapore Land Authority Act, Cap. 301 (Revised 2002)

The Act established the Singapore Land Authority664 to “optimize land resources, with power to

do anything it may consider advantageous, necessary or convenient, and in particular, may

formulate and implement policies to optimize land resources and build up the supporting

infrastructure” (Section 7). The Act also authorizes the SLA to participate in the formation of

any company or joint venture, to share profits and to lease, develop or utilize any property, i.e.

provide recreational facilities and promote recreational activities conducive to the welfare of

officers and employees of the Authority and members of their families. Could this be the legal

basis for the lease of SLA lands to SICC665 and the Keppel Club?

Foreshores Act, Cap. 113 (Revised 1987)

The Act allows the government “to construct, work and to reclaim foreshore or seabed, dredge

the sea-bed; and erect buildings upon any areas of land reclaimed from the sea” (Section 4 {1}).

It also authorizes the government, subject to the approval of Parliament, “to reclaim any part of

662 States Land Act 314, s.4, cl.1 provides that “every grant or lease of State land issued shall be in the prescribed form and shall be signed by the Collector of Land Revenue”. 663 Cap. 314, s.3, cls.1-2, sub-cls.a-c 664 Land Authority Act, Cap. 301, s.3 665 Press Release involving the lease agreement with Singapore Island Country Club (SICC), available at http://www.sla.gov.sg/htm/new/new2004/new0233.htm. Accessed on March 28, 2011. Read also, http://marinabaysands.me/singapore-golf-association-says-it-understands-singapores-land-constraints.html

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the foreshore or seabed” (Section 4 {2}). The Act serves as the basis for the massive coastal land

reclamation program of Singapore. However, there is no law, regulation or policy in Singapore,

which requires the preparation of an Environmental Impact Assessment (EIA), cost-benefit

analysis (CBA)666 or Feasibility Study (FS)667 to determine the ecological impact of marine or

coastal land reclamation development. This thesis believe that planning tools are important as

few golf courses were constructed on costal reclaimed lands or part of costal reclaimed areas,

e.g. Serapong Course of Sentosa Golf Club, Marina Bay Public Golf Course. Thus, “ethical

questions on the wise use of government land have been raised in relation to the management of

public land in Singapore – land owned and managed by the State and its agencies”.668

Actually, Section 3 (1, 2 {a, b, c}), State Lands Act authorizes the President to make rules for the

disposal or temporary alienation of state lands. Thus, the pivotal participation of the MND and

the URA in the approval process of golf course projects should be evaluated. Obviously, the

Office of the President makes the decision – whether to approve or deny the application – upon

the advice of the various agencies of the government, including that of the MND and URA. The

decision therefore has an enormous impact on the land use and planning laws being pursued for

national development.

Thus, the Land Use Planning System in Singapore is comprehensive but lacks the necessary

element of general public consultation in the preparation of the Concept Plans. Public

consultation processes must be amplified to ensure general participation in decision-making. The

EIA, Cost-Benefit Analysis and Feasibility studies must also be included in the preparation of

Concept Plans. Noticeably, the 2011 Concept Plan had minimal consultation and people’s direct

666 Cost–Benefit Analysis (CBA) is an analysis of the cost effectiveness of different alternatives in order to see whether the benefits outweigh the costs. Read also, Nas S. Tevfik, Cost-Benefit Analysis: Theory and Application, Thousand Oaks, California, Sage Publications, c1996 and Anthony Boardman, et. al., Cost-Benefit Analysis: Concepts and Practice, New Jersey, Prentice Hall, c1996. 667 Feasibility studies aim to objectively and rationally uncover the strengths and weaknesses of the existing business or proposed venture, opportunities and threats as presented by the environment, the resources required to carry through, and ultimately the prospects for success. Generally, feasibility studies precede technical development and project implementation. See also, Lloyd D. Handford, Feasibility Study Guidelines, Chicago, Institute of Real Estate Management, 1972. 668 Joseph Chun, Beyond Real Estate: Sowing the Legal Seeds for an Ethical Public Land Stewardship in Singapore, Volume 3, No. 1, 2006, Macquarie Journal of International and Comparative Law. Also available at http://www.law.mq.edu.au/html/MqJICEL/vol3/vol3-1_chun.pdf. Chun argued that, “like private land law, public land law in Singapore empowers but does not oblige the State and its agencies to protect the health of ecological systems”.

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participation.669 In this aspect, Singapore has to improve its public consultation process. It must

also disclose the number of participants who approved the development of critical projects with

ecological impact. Singapore must also introduce a planning mechanism that enhances greater

transparency and accountability through new legislation, either as an amendment to the planning

law, or as an integral part of a new Environmental Impact Assessment (EIA) law. In particular,

the need for transparency and accountability must be ensured.670

Lately, the URA has been very aggressive in its development pursuits 671 - allowing the

construction of hotel room facilities in golf clubs672, in addition to chalets and guesthouses

currently operating to serve as accommodation for members.673 The construction potentially

adds more stress to the environment. Moreover, the wisdom and necessity of the construction is

being put in issue owing to the existence of integrated resorts with hotel facilities in nearby

areas. Another contentious issue that will test the policy judgment of the MND and the URA is

the soon-to-expire land lease 674 of the Keppel Club - the oldest golf club in Singapore.675 The

Port of Singapore Authority has sizable shareholdings in the club and the Singapore Land

Authority leases the land to the club. In less than seven years the golf club will have to move to a

new location since the government has intimated that it will develop the current site into a prime

residential estate.676 The Prime Minister likewise declared that Singapore would start to close

669 Id. See also the published Lifestyle Survey 2009, conducted from periods August 2009- March 2010 where a total of 1,221 online responses were received by the URA, available at http://spring.ura.gov.sg/conceptplan2011/results/Report%20-. Accessed on December 22, 2010.%20Lifestyle%20Survey%20and%20Online%20Survey.pdf 670 Agenda 21, Section IV, Chapter 36 seeks to promote education, public awareness and training, for effective public participation in decision-making. 671 Good Use of Marina Bay, News Release, a published reply by Michael Koh, Director for Urban Planning, URA, to Shin Min Daily News, September 4, 2005, quoted from the URA website, 2005. “URA is always mindful of the need to meet Singapore’s long-term land-use requirements”. The public golf course at Marina East was leased on a short-term - twenty years. Based on the Sports Council’s Assessment, there is an increase in demand for golf and affordable golfing facilities. 672 Circular No. URA/PB/2007/08-PPD, Ref: DC/ADMIN/CIRCULAR/PB_07 covering qualified persons, developers, golf course operators and hotel operators, dated July 2, 2007. The lease for hotel rooms will be tied to the lease of the golf course. Available at http://www.ura.gov.sg/circulars/text/dc07-08.htm. Accessed on August 20, 2007. 673 According to URA, it has carried out a review of the current guidelines for accommodation facilities in golf clubs and has decided to give golf club operators some flexibility on the type of accommodation that could be allowed within golf clubs. 674 Lease of the property will expire in 2021, roughly eight years from 2012. Time is of the essence if the lease will be extended since it takes at least five years to build a new 18 holes golf course. 675 The course was built in 1904. In 1973, the Port of Singapore Authority took over the running of the golf club but the Singapore Land Authority owns the land. 676 In an interview with Keppel Club Deputy Manager Desmond Chua, he disclosed that the lease would expire soon. Also read “Time May Run Out for Keppel Club”, The Business Times, June 13, 2009.

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golf course in order to put to good use public lands as part of growth plans677.

C. Planning Stage 1. Environmental Impact Assessment System This sub-topic discusses the EIA processes in the subject countries. Thus, this thesis will review the constitutional basis, the laws, regulations, decrees and proclamations about EIA and related impact studies.

Environmental Impact Assessment (EIA) procedure and system vary from country to country.

Philippines, Thailand and Viet Nam have passed laws mandating EIAs for certain projects.

However, Singapore still does not have a law on EIAs and government agencies have

commissioned EIAs in a number of cases but the reports are usually confidential and there is little

public participation. These issues will be examined below for each state. Historically, the

development of EIA as a regulatory mechanism is a result of converging influences, i.e. rational

planning, technology assessment, risk assessment, environmental lobbying, technical feasibility

and cost-benefit analysis.678 Most of the time, EIA is used to conduct methodical assessment of

environmental impacts, and for others, to enhance planning and guide decision-making. This

makes public consultation a relevant component of the EIA process.

1.1 Philippines

The following laws relate to EIA and its implementation in the Philippines.

Philippine Environmental Policy, PD 1151 (1977) Philippine Environment Code, PD 1152 (1977) Environmental Impact Statement Law, PD 1586 (1978) Proclamation 2146 (1981) Letter of Instruction 1179 (1981) Office Circular # 3, Series 1983 EO 603 (1996)

The EIA was first required through the Philippine Environmental Policy in 1977.679 Subsequently,

in 1978, the Environmental Impact Statement Law was passed mandating that “no person,

677 “Singapore PM Defends Growth Plan that Includes Building on Golf Courses”, Toh Hanh Shih, 02 February 2013, South China Morning Post, Asia. Accessed on February 8, 2013. 678 B. Clark, Aims and Objectives of EIA, Paper presented at the International Seminar on Environmental Impact Assessment, 14-17 July 1985, University of Aberdeen, Scotland. Visit http://pdf.usaid.gov/pdf_docs/Pnade426.pdf. Accessed on May 25, 2010. 679 PD 1151, s.3 requires that “all agencies and instrumentalities of the national government, including government owned or controlled corporations, as well as private corporations, firms and entities shall

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partnership or corporation shall undertake or operate any project declared as environmentally

critical or located within an environmentally critical area without first securing an Environmental

Compliance Certificate (ECC)”. An ECC is issued after the EIA application is approved by the

Office of the Secretary of the Department of Environment and Natural Resources, upon the

recommendation of the Environment Management Bureau. Section 9 provides penalties for

violation of the EIS law.680

It was only in 1981 through Proclamation 2146 that a listing was released classifying

“environmentally critical areas (ECAs)”681 and “environmentally critical projects (ECPs)”.682

Letter of Instruction 1179 (1981) imposes the requirement of proof of compliance called ECC.683

Office Circular # 3, Series 1983 identified the technical definitions and scope of the ECPs and

ECAs. Golf course construction was included as an environmentally critical project (ECP) that

must undergo the EIA process under EO 603 (1996).

Administrative Order (AO) 300 (1996) Department Administrative Order (DAO) 96-37 (1996) Executive Order 190 (2003) AO 300 (1996) clarifies the authority to grant or deny the issuance of ECCs while Department AO

96-37 revises the rules and regulations for implementation; elucidating that public participation in

EIA was conceived as an essential means of achieving social acceptability. EO 342 (1996)

established the Golf Course Construction and Development Committee (GCCDC) in order to

“adopt and promulgate standards for the construction, development and operation of golf courses

and to assist in the evaluation of all applications for ECC”. The GCCDC was eventually abolished

under EO 190 (2003)684 after the ECC process was streamlined and the GCCDC has become

“functus officious”.

prepare, file and include in every action, project or undertaking which significantly affects the quality of the environment a statement on the environmental impact of the proposed action”. 680 PD 1586, EIA Law, Section 9 states that “any person, corporation or partnership found in violation shall be punished by the suspension or cancellation of his/its certificate or and/or a fine in an amount not to exceed Fifty Thousand Pesos (PHP50,000) (USD 1,215; SGD 1,529) for every violation thereof, at the discretion of the National Environmental Protection Council.” At foreign exchange ate as of May 22, 2013. 681 The list of ECAs covers twelve classes of sites according to their characteristics. 682 Three classes of ECPs were listed: heavy industries, resource extractive industries and infrastructure projects. 683 In 1992, a new and comprehensive administrative regulation was issued which devolved the issuance of the ECC for Environmentally Critical Areas to the DENR Regional Offices. Visit http://www.denr.gov.ph. Accessed on May 4, 2009. 684 EO 190 (2003) abolished the Golf Course Construction and Development Committee, and transferring its powers to the DENR. Visit the Supreme Court electronic library at

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Department Administrative Order (DAO) 42 (2002) DAO 21 (1992) DAO 37 (1996) DAO 2003-30 (2003), Implementing Rules and Regulations of PD 1586 DAO 42 (2002) rationalized the implementation of EIS and streamlined the processing system by

delegating the authority to approve EIA applications and issuance of ECC to the Secretary of the

DENR, Director and Regional Directors of the EMB. In effect, DAO 42 rendered the Golf Course

Development and Construction Committee (GCDCC) as “functus officious”, which eventually

became the reason for its abolition. This was a welcome relief for the golf course industry because

the delegated tasks to the GCDCC were a duplication of the work of the DENR (Environmental

Management Bureau) EMB. In fact, this writer was the first to seek clarification on the status of

the GCDCC after the issuance of AO 42685. There were many issues raised against the GCDCC,

including that of corruption and extortion by some members of the Committee. In fact, the

creation of the GCDCC did not arrest the rise in the construction of golf courses without an

approved EIA application.

DAO 42 likewise mandated that Feasibility Studies and EIS must be conducted simultaneously.

Meanwhile, DAO 2003-30 is the Implementing Rules and Regulations (IRR) of PD 1586, and

revises DAO 21 and DAO 37. Nonetheless, some important features of DAO 21 remain,

specifically on matters of public participation. Endorsement of golf course projects by the LGUs

or the Regional Development Council (RDCs) is required under the EIA process. DAO 2003-30

(IRR) explains that, “social acceptability could be achieved through informed decision-making

processes . . . whereby stakeholders are empowered to decide for themselves, while those involved

in the project considers the risks and related responsibilities, as well as accept them”. The

participation of LGUs and the stakeholders are therefore necessary. Public participation is an

important component of the EIA process.

The Philippine EIA system is strong in the area of public consultation mainly because freedom of

speech and expression is guaranteed in the Constitution (Article III, Section 4). In fact, there is

mandatory scoping under DAO 96-37, the outcome of which gives the project proponent an

indication whether or not the project is acceptable to the stakeholders. Scoping therefore is an

http://elibrary.judiciary.gov.ph/index10.php?doctype=Executive%20Orders&docid=a45475a11ec72b843d74959b60fd7bd645f5d596b1929. Accessed on July 26, 2011. 685 In a letter to the then DENR Secretary Elisea Gozun in December 2002, this writer sought clarification about the status of the GCDCC and had raised the issue that the Committee had become “functus officious”. Consequently, the Secretary issued an Administrative Order clarifying that the GCDCC is no longer existent.

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important planning tool, which helps the proponent to consider whether to proceed or not with the

preparation of the costly EIS. The EIA application686 requires project description, which identifies

baseline environmental conditions, specifically the physical, biological and socio-economic and

cultural environment. In which case, the geology, pedology, hydrology, water quality,

meteorology or climatology, air quality and noise of the physical environment, terrestrial, site,

methodology for flora and fauna are identified and its results are discussed. The EIA must also

contain an inventory of trees planted at existing or developed land area in order to determine

change, area and demography, health, insurgency/crime rate profile, other social services/utilities

such as water supply and demand, transportation, power supply and demand, and includes

housing. The proponent must also conduct public consultation to determine the social

acceptability of the project.

DAO 2003-30 implements PD 1586

Under DAO 2003-30 687 , the EIA application process includes submission of pre-requisite

documents from various government agencies. This process is very cumbersome, time consuming

and expensive. This thesis has compiled at least sixteen of the requirements imposed by the

DENR-EMB through an administrative order, namely; (a) certification from the Municipal

Agrarian Reform Office (MARO) showing that the land is untenanted and has not been issued

notice of acquisition for agrarian distribution; (b) certification from the Department of Agriculture

(DA) stating that the land is marginal and not economically suitable for agricultural crop

production688; (c) certification from the National Water Resources Board (NWRB) stating that the

project is located in an area where groundwater is adequate; (d) certification from the DENR

showing that the proposed project is outside of the National Park Wildlife Sanctuary and Game

Preserve under Proclamation 1636; (e) certification from the Department of Tourism (DOT)

showing evaluation of the Initial Project Description Report (IPDR) and approval; (f) locational

clearance issued by the Municipal Planning Development Officer (MPDO) stating that the project

is located in a commercial or recreational area; (g) certification that a Local Government (LGU)

Resolution endorses the project with the approval of the Provincial legislative government; h)

endorsement of the project by a provincial NGO; (i) certification from the National Historical

686 The enumerated conditions are listed in the ECC issued by DENR-EMB to golf course developers in the Philippines. 687 DAO 2003-30 Manual of Procedure for EIA has been revised by the 2007 Revised Manual of Procedure for EIA. 688 List of requirements for Land Use Conversion is available at http://invest.cfo.gov.ph/pdf/part2/conversion-of-land-to-commercial-and-industrial-use.pdf. Accessed on May 20, 2013.

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Institute (NHI) stating that the project is not located within a historical site; (j) clearance from the

Laguna Lake Development Authority (LLDA) showing that beneficial use of surface water of

Laguna de Bay has been fully paid689; (k) certification from the National Irrigation Administration

(NIA) showing that the land is not covered by an irrigation system; (l) Certification from the

Bureau of Soils and Water Management (BSWM) stating that the soil is marginal and

unproductive 690 ; (m) certification from the LGU supporting the zoning classification; (n)

certification from the National Mapping and Resource Information Authority (NAMRIA) stating

that the land has more than 18 degrees slope; (o) certification from the Housing and Land Use

Regulatory Board (HLURB) stating that the land has been re-classified as residential land before

1988 (date of the passage of agrarian law), among others.

Thus, the EIA process is considered as cumbersome and a waste of time and money by most

investors. Some chose to ignore the process and pay the penalty for violating PD 1586, the EIS

Law (penalty not to exceed Php50,000 for every violation). The imposable penalty is vague and is

not clear whether the amount is counted per violation – on a daily or hourly basis. PD 1586 did not

define the phrase “every violation”. Project proponents therefore find it cheaper to pay the

penalties imposed by the law rather than to prepare an expensive and cumbersome EIA. If

government regulators choose to conduct an inventory of golf courses today, they will discover a

handful of violators without an approved ECC from the DENR.

Revised Manual of Procedure for DAO 2003-30 (2007)

The procedure under DAO 2003-30 has been substantially changed. The Revised Manual of

Procedure (Revised Manual) derives its legal basis from Section 8.1, DAO 2003-30 on the

processing of applications within the timeframes specified in DAO 42. Clause 6, Revised Manual

stipulates that, “no permits and/or clearances issued by other national government agencies and

LGUs shall be required in the processing of ECC or CNC application”. Clause 11 further provides

that the “findings and recommendations of EIA shall be transmitted to the relevant government

agencies, for them to integrate in their decision-making” while Clause 19 states that, “the issuance

689 Supra, note 382. LLDA imposes a Certification fee before any projects are allowed development on a per square area basis at Php7.20. 690 Land use conversion is allowed only if the agricultural land is certified as marginal and non-productive to ensure that productive agricultural lands are spared from development activities. Before the Department of Agriculture (item b) endorses that the land is suitable for conversion, the certification from the BSWM (item l) should be procured first. Nonetheless, the 16 listed documents should be simultaneously submitted to DENR-EMB for the EIA application.

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of ECC or CNC does not exempt the proponent from securing other government permits and

clearances, as required by other laws”.

The Revised Manual integrates new policies, foremost of which is the “segregation from the EIA

process of the practice of prior submission of permits, clearances, licenses, endorsements,

resolutions and other government approvals within the jurisdiction of other National Government

Agencies and LGUs, which can pre-empt the EIA evaluation process”. Thus, it is the “EIA

findings and recommendations, which shall be transmitted through the ECC for consideration of

other agencies prior to the issuance of government documents under their mandates”.691 In effect,

the Revised Manual recognizes “the primacy of jurisdiction of these entities over a project’s

implementation”. 692 The Revised Manual likewise requires the EIA to be prepared simultaneously

with the Feasibility Study and marks the beginning, rather than the end of the integration of

environmental concerns throughout the project cycle.

Under DAO 2003-30, the EMB requires as condition precedent the submission of clearances,

licenses and certifications from various national agencies of the government. Therefore, the

Revised Manual practically is an inversion of DAO 2003-30. Ironically, this scheme will only

succeed with development projects other than golf courses or those projects, which do not require

enormous financial capitalization. Practicality necessitates prior submission. The preparation of

EIA is technically cumbersome where expert preparers or consultants are hired with astronomical

fees, not to mention voluminous documentation and data collection to support the application. For

instance, if clearances or certifications are not obtained from the national or local agencies after

the ECC has been secured, e.g. agrarian clearances and LGU endorsements, the project necessarily

will not be allowed to proceed. Thus, this thesis maintains that certifications or clearances must be

procured before the application is submitted to DENR-EMB for ECC processing. DAO 2003-30

(IRR) is therefore, more practical and reasonable.

691 The Revised Manual states that the “findings of the EIA Review Committee, through the ECC, will become the basis for the issuance or the non-issuance of government certifications or clearances, whether to allow the project to push through or not. Hence, if the project is non-viable, the government agencies are necessarily advised of the environmental impact before it can make any decision”. 692 Anthony R. Ouano, DENR-OIC Director, explained the new procedure in the Foreword of the 2007 Revised Procedural Manual for DAO 03-30 on August 21, 2007.

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Understandably, the policymakers involved in the revision seeks to dispense with the “practice” of

securing expensive certifications and clearances 693 or to discontinue the practice of

“commodification” of the EIA process, which open a floodgate of corrupt practices. Yet the

Revised Manual did not resolve the procedural aberration but merely transferred the anomaly to

another process. The revision even makes the clearances more “expensive” as the project

proponent becomes “desperate” to get them after an ECC has been issued. There is also the

likelihood that project developers with enough cash would easily get an ECC and LGU clearances,

and thus may fast track the construction of golf courses. Therefore, the Revised Procedure should

not be applied in golf course projects, as it is being inappropriate and unrealistic. The prior

submission of clearances should be reinstated, with the introduction of control mechanisms for the

procurement of documents.

New ECCs Released

Several ECCs for golf courses have been released under the Revised Manual. On record, there are

more than sixty - four golf courses, which have remained non-operational, are unfinished or

undeveloped in various areas in the country, However, new projects were constructed and issued

ECCs, namely; a) the New Asia Golf and Spa Resort Project by Shin Hankook Development

Corporation- Phase 2, Capas, Tarlac (ECC Reference Code 0609-010-8494{2007}); and b)

Queen’s Castle Golf Club Project in Medellin, Cebu City (ECC No. 0808-023-9241 {2010}). The

newly opened The Cliffs Golf Course by Thunderbird Resorts in Porro Point, San Fernando City

(2007), La Union appears to have no ECC per record of the DENR-EMB.694

Existing and Unfinished Golf Courses

There are unfinished projects, which remain unproductive and undeveloped since the 1997 Asian

crisis. Landowners and project developers are concerned that any development introduced, which

would appear inconsistent with the Land Use Conversion Order and ECC license previously

obtained could result in land use reversion to be initiated by the Department of Agriculture and

the Department of Agrarian Reform. Article 65, Agrarian Reform Law provides for the automatic

reversion of land in case of failure to develop land from issuance of the order of conversion.

693 Industry practice revealed that price ranges from PHP1.00 per square meters. So, if the project is 100 hectares, the “illegal” charges could go up as high as (1 peso multiplied by 1 million square meters {1 hectare is 10,000 sq.ms) = PHP1 Million per document/certificate (USD 24,257; SGD 30.473) at foreign exchange rate as of May 20, 2013. 694 This was later confirmed in several conversations and emails with Elsie Cesar, Officer-in-charge, EIA Division, DENR-EMB. Transcript is attached as Appendix “25”.

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Landowners are also worried that the SEC registration and license to sell securities previously

obtained might be cancelled or revoked if land use reversion occurs. It would have been wiser and

prudent for DENR-EMB to withhold the issuance of new ECCs. It would also be practical and

rational for DENR-EMB to order project proponents to proceed developing those pending or

incomplete golf courses. Clearly, the expedited procedure under the Revised Manual provides

impetus for developers to construct new golf courses easily, thus inviting more environmental

concerns.

While the delegation of power to the Environmental Management Bureau (EMB) and the

Regional Environment Directors (RED), which have concurrent authority to approve or deny EIA

application under AO 42, may have expedited the EIA process, the lack of expertise and

competence on golf course development by regional officials could lead to abuse of authority.

There are manpower shortages in both the national and regional offices of the DENR and the EIA

review process necessitates special attention to many details in the application, e.g. baseline

studies on environmental, biological and geological conditions, etc. Moreover, the grant of

absolute discretionary or independent power of approval or disapproval may open the floodgates

of unmitigated abuse of authority. Numerous ECCs have been unnecessarily issued in the past and

the practice remains unabated as evidenced by the latest issuances and grants by the Regional

Offices. In fact, the DENR-EMB could not even identify nor pinpoint the ECC issued to The

Cliffs Golf Resort in San Fernando, La Union. Thus, although the previous centralized system

may have caused unnecessary and bureaucratic delays at least there is centralized competence,

transparency and accountability in one central agency – the central office of the EMB.

This thesis finds that the EIA Law, PD 1586 is too general, outdated and insufficient, and is

currently being supplemented by administrative orders (AOs) and memorandum circulars (MCs).

Most companies request re-computation of penalties imposed by using the “vagueness and

ambiguity” interpretation of Section 9, PD 1586. In the process, the decree becomes “toothless”,

having been watered down by the reduction of mandated penalties, as Memorandum Circulars695

695 1) DENR Memorandum Circular (MC) No. 2002-15 (2002) identifies the scope of violations and Guidelines for the imposition of Penalties under the Philippine EIS system and specifically provides criteria for the reduction of the maximum penalty imposed by s. 9, PD 1586 from 5% to 80%! 2) DENR MC 21, Series 2003 provides guidelines on the availment of the reduction of penalties for projects operating without ECC in violation of PD 1586. This Memorandum provides for a PHP6,000 (USD 145.81) (SGD 183.5) “administrative relief penalty”, instead of the mandatory PHP50,000 (USD 1,215) (SGD 1,529.) provided under sec.9 for every violation of the EIS law, 3) EMB MC (2005) issued to clarify the provisions of Section 11, Procedural Manual for DAO 2003-30 on “Fines, Penalties and

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were issued reducing up to 80% the mandatory penalties laid down by the said decree. From 1990-

1998, around 100 golf courses were developed with no approved ECC.

In the Philippines, once the EIA is approved the ECC is issued either by the DENR Secretary or

the EMB/RED, which contains several mandatory stipulations.696 Therefore, the EIA process

should be simplified and the ECC conditions should be spelled out in every stage of golf course

development and operation. The DENR therefore needs a strong and clear regulatory framework

to ensure environmental compliance and protection. It is said that, “when firms violate any

provisions of law or statutes, violators do not necessarily face a certain and deterministic penalty,

instead they will face the probability of a penalty”.697 This is mainly due to the fact that there is a

likely chance that the violation will not be detected or if detected, there is a chance that the penalty

will not be imposed.698

Montenegro (2009) explains that, “it is even strange that the EIA Law specifies the imposition of

the maximum penalty instead of the minimum”. She argues that, “when government regulatory

agencies set the maximum penalty, basically the cap is set unlike when the minimum is imposed

there is a chance that the expected penalty can be very high”. Montenegro further stated that,

“expected penalty means the penalty as defined by law times the probability that the violation will

be detected and the violator is punished”. Montenegro asserts that to ensure the imposition of

higher expected penalty in the face of low probability of detection it is necessary to impose high

penalties. She concludes that, “if you set the minimum penalty, you are opening the possibility of

a much higher penalty such that even if the probability of detection and enforcement is low, the

expected penalty will still be high enough to deter violations”.

Sanctions”695, and 4) DENR MC 2007-08 (July 13, 2007) simplified the requirements for ECC or Certificate of Non-Coverage Applications. 696 In the Philippines, the ECC conditions imposed include; the implementation of an information, education and communication (IEC) program to explain mitigating measures embodied in the EIS; annual detailed IEC program prepared and submitted by project proponent; implementation of social development plan/program; establishment of buffer zone; prevention of surface and groundwater contamination; implementation of storm water run-off management program; submission of comprehensive hydrological assessment program; establishment of sewage treatment plant, etc. 697 Lourdes O. Montenegro, Inspections, Enforcement and Water Pollution Discharges in Laguna De Bay, Philippines: A Panel Data Analysis, Department of Economics, University of San Carlos, Philippines, 2006. Available at www.idrc.org.sg/uploads/user-S/11624361241montenegro.pdf. Accessed on October 3, 2009. 698 Id.

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When an ECC is revoked due to identified violations, there is an appeal mechanism provided

under DAO 96-37, including an appeal to the Court of Appeals after an adverse decision is handed

by the Office of the President, which exercises the power of control over the Department Head.

The final arbiter of the controversy is the Supreme Court. Thus, the EIA system in the country is

weak, aggravated by the issuances of various administrative orders and memorandum circulars,

which practically reduced the amount of penalties imposed by PD 1586. A weak EIA framework

will not protect the environment.

1.2 Thailand

Enhancement and Conservation of the Natural Environmental Quality Act, (NEQA,) B.E. 2535 (1992) The NEQA is the environmental framework law and provides for EIA procedure. It also

recognizes the right to information and compensation, as well as enumerates the civil liabilities

of violators (NEQA, Section 96). NEQA 1992 cites the duty of individuals “to assist and

cooperate in enhancing and protecting the environment, recognizing the role and standing of

environmental NGOs” (Section 7). NEQA 1992 is instrumental in ensuring environmental

protection, particularly Section 46, which stipulates that the Ministry of Natural Resources and

the Environment (MONRE) with the approval of the National Environment Board (NEB), has

the power to specify notification (notices) for the types and sizes of projects or activities

requiring EIA. The NEQA is currently being revised and the commissioned members of the

revision committee will come out with the new NEQA soon. There is no specific provision on

public participation in NEQA 1992. Neither is it provided under the 1996 EIA Regulations.

Nonetheless, the 2007 Constitution of Thailand provides for this right (Section 5, Part 10,

Chapter III).

The NEQA 1992 is a substantive piece of environmental legislation and is currently undergoing

revision699 but preliminary discussions revealed that golf courses remain excluded from the EIA

process. Anecdotal evidence and personal interview of resource persons from the MONRE

disclose that there are no proponents pushing for the inclusion of golf courses in the EIA

process. The subject matter has not even been discussed nor included in any of the discussions.

Thus, the continued refusal to acknowledge the environmental impact of golf courses is an issue

699 Personal interview with Raweewan Bhuridej, PhD, Director, Office of the Minister, MONRE, June 24, 2009, 10:00 am, Office of the Minister, MNRE, 92 Phaholyothin 7 Rd., Phayathai District, Bangkok 10400, Thailand. Transcript of interview is attached as Appendix “26”.

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that must be addressed. Director Bhuridej, Office of the Minister, claims however that MONRE

is monitoring the activities of golf courses in Thailand. As to how monitoring is done when no

law or regulation currently applies to regulate the industry are issues that must be addressed.

Notification (August 24, 1992), Types and Sizes of Projects or Activities of Government State Enterprises or Private Persons Required to prepare an EIA Report

Under NEQA 1992, the projects or activities required to undergo the EIA process are categorized

into seven groups, namely; industry, residential building and service community, transportation,

energy, water resource, watershed area and mining (NEQA, Section 46-47). Under the

Notification issued by MONRE, golf courses are not mentioned nor included in any of the

categories. Meanwhile, different EIA procedures apply for government and private projects.

Government Information Act, B.E. 2540 (1997)

In Thailand, the EIA process is applied as a tool for environmental planning and management.700

To complement NEQA 1992, the Information Act provides for disclosure of information701,

however, the official information must be in the possession or control of a State agency. The law

on disclosure does not cover information held by private individuals and institutions. The Act

also provides for Disclosure Tribunal702; requires that a Ministerial Regulation should define the

extent to which an alien may enjoy the right Section 9, 14-15); provides legal remedy703

available to any person who fails to get the information requested. However, official information

deemed to jeopardize the Royal Institution704 is controlled.

Public Health Act, B.E. 2535 (1992)

The Act has been invoked as the basis for monitoring the activities of golf courses by MONRE.

Nonetheless no evidence was offered to prove that water quality testing are conducted in golf

700 EIA Profile of Thailand, ESCAP Virtual Conference, available at http://www.unescap.org/drpad/vc/conference/ex_th_47_eia.htm. Accessed on October 30, 2010. 701 B.E. 2540, Government Information Act (GIA) (1997), s.7 mandates the publication of official information in the Government Gazette. 702 B.E. 2540, GIA, chap. VI, s.35 states that “there shall be Information Disclosure Tribunals in appropriate fields, having the power and duty to consider and decide an appeal against an order prohibiting the disclosure of information; order dismissing an objection, and order refusing the correction, alteration or deletion of personal information”. 703 B.E. 2540, s.13 states that, “any person, who considers that a State agency fails to publish and make the information available for public inspection, etc., is entitled to lodge a complaint with the Board”. 704 B.E. 2540, s.14 mandated that “a State agency or State official may issue an order prohibiting the disclosure of official information if the disclosure thereof will jeopardize the national security, international relations, or national economic or financial security”.

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courses in the absence of a specific agency designated to regulate the industry. The Public

Health Act covers a wide range of environmental health programs as it control activities that

cause adverse effects to human health. Golf courses fall within the definitive scope of the

activity, which endanger human health yet as to how and why golf courses have been classified

as a “covered activity”705 when no data or record has been collected is again another issue to be

resolved. There was even no mention of any notification or guideline issued to regulate the golf

course industry.

Therefore, the EIA process under the NEQA 1992 does not cover golf courses in Thailand.

Meanwhile, NEQA provides for feasibility studies, which is intended to assess the

environmental impacts of proposed projects to prevent any damage to environmental quality,

public health and welfare. However, there is no notification or regulation, which requires the

preparation of feasibility study for golf courses. Ironically, the requirement of feasibility study

refers to other projects required to undergo the EIA process, and not for golf courses. The

Ministry does not keep data on golf courses and its impact on the environment. There were

instances though that Provincial governments through local legislative competence require

activities to undergo the EIA process i.e. landfill and disposal sites, however, no one from

MONRE or PCD knows whether the authority has been used to require golf courses to do EIA in

any provinces in Thailand.

Apparently there is no mechanism that would demonstrate that the golf industry is being

regulated, directly or indirectly. This argument can be deduced from personal and written

interviews of Ministry of Agricultural Cooperatives (MOAC) and Board of Investments (BOI)

officials706, who admit confusion on how to properly address the issue. Ostensibly, there is no

law, which specifically regulates golf course development in Thailand despite the fact that there

exist several agencies, which deals with environmental issues from central, regional and local

administrative level. Director Buridej summarizes the problems faced by the agency, stating that,

“bureaucratic failings and institutional weaknesses have eroded MONRE’s limited authority due

to issues of sectoral competence and approach to environmental protection”. She hastened to add

that, “environmental goals are even more difficult to implement, as the environment agencies

705 Director Bhuridej used the word “covered activity” in describing the coverage of the law. 706 Interview of MOAC’s Leleerdpong as Appendix “23” and MONRE Director Buridej as Appendix “26”.

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generally have to work with other government bodies to enforce the laws707”. This is quite a

lamentable observation and evidently, it is a co-ordination or collaboration issue in which

various agencies with sectoral competence refuse to work with another agency to enforce or

implement the law.

It has been suggested by Director Piyapanpong of the Pollution Control Division (PCD) -

MONRE that “since golf tourism provide additional revenue to the economy in general, a Code

of Conduct should be passed so that the golf industry self-regulate its activities while the inter-

agencies are exploring avenues to formulate policies and address the matter”708. This is a

workable alternative however Codes of Conduct have no sanctioning power unless rendered

mandatory. Many Thai legal scholars assert the need to amend the basic environmental law

(NEQA 1992) – as the national economic and social development plans and policies of Thailand

are deemed formulated differently on different occasions to suit the circumstances709. Moreover,

after the country’s economy had been developed due to industrial development, environmental

problems and natural resources destruction or natural pollution became critical - inflicting

damage to the population in vast areas.710 The laws currently in place are not adequate to provide

the quality of environment being sought to achieve.

1.3 Viet Nam

Law on Environmental Protection (LEP), 52/2005/QH11 (2005) Decree 80/2006/ND-CP (2006) The LEP711 is considered as the main legal framework for the protection of the environment in

Viet Nam. The LEP 2005 establishes and sets up policies and measures, as well as recognizes

the rights and obligations of organizations, households and individuals in environmental

707 Director Buridej likewise claims that, “one agency may have the power only to formulate policies and standards, another has the power to inspect and report the result, and a third agency arrests and punishes violators”. 708 Transcript of personal interview of MNRE-PCD Director Sunee Piyapanpong attached as Appendix “27”. 709 Environmental Law and Enforcement in the Asia-Pacific Rim, Terri Mottershead, General Editor, 2002, “Environmental Protection under the Enhancement and Conservation of National Environmental Quality Act, B.E. 2535 (A. D. 1992) in Thailand”, Timothy Wales and Rick Levinthal. Sunee likewise wrote that the, “article also states that the NEQA, in practice, was not adequate to bring back the quality of environment. 710 See Sunee Mallikmari, Case Study on Lamphun Industrial Estate : Environmental Law and Policy in SEAsia : Issues of Enforcement, Institute of Developing Economies, Japan, (1998) pp 26-38 711 LEP took effect on July 1, 2006.

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protection.712 However, the LEP 2005 should be read in conjunction with Decree 80/2006/ND-

CP (2006)713, which details and guides the implementation of a number of articles regarding

environmental standards714, such as Strategic Environmental Assessments (SEA)(Article 14);

Environmental Impact Assessments (EIA) (Article 18) and Environmental Protection

Commitments (EPC). Both LEP 2005 and Decree 80/2006 apply to state agencies, domestic

organizations, households and individuals; overseas Vietnamese, foreign organizations and

individuals engaged in activities in Viet Nam. Article 4, LEP 2005 emphasizes harmony with

economic development in accord with natural, cultural and historical laws (Article 4, Clause 4)”.

Article 5, Decree 80/2006 speaks about public participation or consultation concerning

environmental protection.

It is noteworthy that Article 14, LEP 2005 provides for SEA. Of all the subject countries in this

research, only Viet Nam has provided for the SEA process. Article 16, LEP 2005 requires that

the SEA Report must contain “an overview of the project’s objectives, size and characteristics

related to the environment; a general description of natural, socio-economic and environmental

conditions with forecast for possible bad impacts”. Appraisal Councils organized for national

and inter-provincial projects appraises the SEA report. The description of “bad” in this provision

is quite broad. Does “bad” mean negative or adverse or destructive as it refers to impacts? Could

this be another case of an inappropriate use of English word in the translation of the Vietnamese

Law?

The elaboration of EIA report is required for projects of national importance that have impact on

natural sanctuaries and parks, historical and cultural relic sites, natural heritage or ranked

beautiful landscapes (Article 21). Article 102, LEP 2005 provides for published environmental

statistics and archive of data and information collected from monitoring programs, organizations

and individuals715. There is also a specialized Environmental Protection Inspectorate (Article

125) in charge of investigating and handling violations716. There are administrative sanctions or

712 LEP, art. 2 identified the scope of regulation. Order No. 29/2005/L-CTN of December 12, 2005 provides for the promulgation of the Law on Environmental Protection. 713 Decree 80/2006/ND-CP was issued on August 9, 2006. 714 No. 05/2008/TT-BTNMT, Dec. 8, 2008 is the circular or guideline for strategic environmental assessment, environmental impact assessment and environmental protection commitments 715 LEP, arts.103, 104 are exemptions from the provision on state secrets. The publication of environmental information and data include EIA reports, decisions approving EIA reports, and plans for implementation of such decisions. 716 LEP, art. 127 provides for the Office of an Inspectorate.

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penal liability for environmental pollution, degradation or incidents, as well as remediation

measures including compensation for such damage. The participation of civil society is

recognized (Article 28) as organizations and individuals are allowed to lodge complaints or

initiate lawsuits in Court against violation of environmental protection laws.

Appendix I, Decree 80/2006/ND-CP provides a list of projects subject to EIA report, namely: (a)

projects using land areas, regardless of size, adversely affecting nature conservation zones,

national parks, historical-cultural relic areas, natural heritage and famous scenic places, whether

ranked or not ranked but are protected under the decision of People’s Committees (Clause 2,

Decree); (b) projects involving water sources in river basins, coastal areas and protected eco-

systems, regardless of size(Clause 3, Decree); (c) exploitation of groundwater with design

capacity of 1,000 m3 or more of water per day and night (Clause 53, Decree); (d) exploitation of

surface water with design capacity of 10,000 m3 or more of water per day and night; Clause 54,

Decree) (e) construction of reservoirs and irrigation lakes with capacity of 1,000,000 m3 of

water or more (Clause 76, Decree); (f) projects on building tourist and entertainment resorts

from an area of five hectares or more Clause 90, Decree); and more importantly, (g) Item No. 91

speaks about building of golf courses, 18 holes or more.

The legal cap at 18 holes is unrealistic, and at most, unwarranted, that could potentially

encourage developers to avoid compliance with the EIA mechanism, as there is always a chance

or likelihood of construction in different phases of front Nine holes and back Nine holes. In

which case, an EIA process could be avoided. There should have been no qualification as to the

number of holes in the submission to EIA process, so long as the project is for golf course

development, because ultimately, EIA is expensive and cumbersome, which developers would

rather avoid than comply with. However, item a) could be utilized to demand EIA compliance

for golf courses, regardless of size, as the construction involves land area affecting nature

conservation zones, national parks, etc. But this thesis finds this argument indefensible, owing

to the existence of a specific provision requiring EIA for 18 holes or more golf courses.

Decree 21/2008/ND-CP

Decree 21/2008/ND-CP717 amended and supplemented a number of articles of Decree 80/2006.

Although the list of projects subject to the making of EIA Reports increased up to 162, the cap

at 18 holes for golf courses remains. More importantly, the Decree included Article 6a, which 717 Issued on February 28, 2008.

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requires the consultation of commune, ward or township People’s Committees and community

representatives in the process of making EIA reports. This mechanism invoking direct

participation by stakeholders affected by the project is unique as it gives the local agencies

concerned at least fifteen working days to give their opinion in writing and make them public to

local people. However, there are projects, which do not require consultation in the process of

making EIA reports.718

It must be noted that the LEP 2005 mandates under Point b, Clause 1, Article 13 that a project

should be executed only after twenty-four months following the date of approval of its EIA

report. The waiting time is a bit too long before the applicant/proponent can actually proceed

with the development. Article 17, LEP 2005 provides for registration and certification719 of

written Environmental Protection Commitments (EPCs) for projects not required to undergo the

EIA process. EPCs720 are provided under Section 3, Article 24 of the LEP. Registration and

certification must be complied with before submission of the application for construction

permits. However there are exceptions to the rule (Article 17, Clause a, LEP), which provides

for the appraisal and approval of EIA reports and certification of written EPCs for investment

projects in economic zones, industrial parks, export processing zones and hi-tech parks.

Article 17 (a), clause 1 and 2, LEP 2005 authorizes State agencies “to delegate to management

boards of economic zones the appraisal and approval of EIA reports and certify written EPCs of

investment projects in economic zones, provided that the management boards have units or

sections with specialized competence in environmental protection”. This is practically a

delegation of authority. No guideline has been issued on the exercise thereof and it would be

logical to assume that the delegation would entail the exercise of “discretionary power”. The

718 There is no need of commune consultation for investment projects located within industrial parks, export processing zones or hi-tech parks, if the projects on construction of infrastructure of these industrial parks, export processing zones or hi-tech parks have had their EIA reports approved by competent state agencies under Decree 21/2008/ND-CP, art.6, cl.a, sub-cl.4 (2008) 719 The registration of written EPCs for investment projects must be executed in two or more rural districts, urban districts, towns or provincial cities. 720 Section 3, Article 24.- Subjects obliged to make written environmental protection commitments: Household-based production, business or service establishments and entities not defined in Articles 14 and 18 of this Law must make written environmental protection commitments. Article 25.- Contents of environmental protection commitments 1. Location of execution. 2. Type and scale of production, business or service and materials and fuel used. 3. Kinds of wastes generated. 4. Commitments to apply measures to minimize and treat wastes and strictly comply with the provisions of law on environmental protection.

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“discretionary” exercise of authority opens wide latitude for management boards in the appraisal

and approval of EIA. The absence of a standard is another issue and raises concern over the

competence in the appraisal system. There are golf courses being developed in economic zones

and industrial sites and the likelihood that the same management board will appraise an EIA of

the golf course proponent arises.

Over and above the authority of Provincial People’s Committees to issue golf licenses, it is

required to submit golf project proposals to MNRE for EIA appraisal but this was ignored in

practice.721 In the case of management boards envisioned in Article 17, clause 1 and 2, the

authority is absolute since there is no mechanism whereby its decision is reviewable by the

MNRE. Again, this is a negation of the application of the EIA process, as there appears to be a

multi-sectoral implementation of appraisal and approval. The delegation of authority to the

board, in what appears to be a vague stipulation, would be difficult to implement since there is

no requirement that a singular agency should keep track of applications and approvals of EIA.

To avoid confusion, an implementing guideline is therefore necessary to lay down in specific

detail the extent of the delegation, the mechanism and recording of appraisal and approval by

one single agency under Article 17.

The EIA in Viet Nam is a process which must be complied with under Decree No. 21/2008/ND-

CP722 and the country has a written regulation for all projects. There is only one EIA process for

all kinds of projects, including golf courses.723 If an EIA application is approved the Agency

will issue a Decision with the attached requirements or conditions, which the successful

applicant must comply. Government policymakers raised concerns over the massive

proliferation of golf courses encroaching agricultural lands - the significant increase of which

prompted the central government to order a careful review of the process. In fact, the Prime

Minister mandated the PPCs to stop the issuance of golf licenses as of late 2008.

Decree No. 37/2010/ND-CP (2010)

Recently, the National Assembly passed Decree No. 37/2010/ND-CP (2010), which provides for

the formulation, evaluation, approval and management of urban planning. Decree No.

19/2010/ND-CP (2010) amended and supplemented Points c, d, g, h and i, Clause 5, Article 2,

721 Personal interview of Le Hoai Nam, Deputy Director for EIA, MNRE at #83 Nguyen Chi Tanh, Dong Da, Hanoi Viet Nam. Transcript of interview is attached as Appendix “28”. 722 Official Gazette, Issue February 2008. 723 Id.

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Government’s Decree No. 25/2008/ND-CP (2008) defining the functions, tasks, powers and

organizational structure of the MNRE724. Various circulars were issued by the MNRE, namely;

Circular No. 08/2010/TT-BNNPTNT (2010) providing for the elaboration of national

environmental reports, reports on environmental impacts of branches and sectors and provincial

level reports on environmental conditions. Circular No. 30/2009/TT-BTNMT (2009) provides

procedures and economic-technical norms for developing a natural resources and environment

databases.

Law on Access to Information (2012)725

The Law on Access was patterned from the Freedom of Information Law726 however it exempts

information pertaining to national security. It applies to the state agencies, namely; (a)

Ministries, ministerial equivalents, government subordinated agencies; (b) The People's

Councils and the People’s Committees at all level; and (c) Agencies and organizations

established by the Prime Minister. It also applies to organizations, namely (a) State funded

organizations, associations, federations and state-owned enterprises and (b) National funds

financed from state budget and local funds contributed by community (Article 1). The

application principles (Article 2) oblige the publication of information pursuant to the provisions

of the Law as well as other related regulations and legislation with the exception of state secrets.

The principles behind the disclosure include; ensuring transparency, accuracy and

comprehensiveness of information; equality in information access; social order and national

security and, protecting privacy related information.727 The Law has been adopted by the

National Assembly and became effective on June 1, 2012. There is also Decree No.

102/2008/ND-CP, which seeks to build a national database on natural resources and

724 Decree 25/2008/ND-CP, Cl.c states that “MNRE is to assume the prime responsibility in formulating and submitting to the Government for the promulgation and adjustment of price brackets for land of different categories, to guide methods of determining land prices; and guide the settlement of problems in the formulation, adjustment and application of land price tariffs at the request of the provincial-level People’s Committees; to guide the provision of land price-related information for financial agencies to examine, inspect and settle complaints and denunciations on the determination of specific land prices”. 725 The Law becomes effective on June 1, 2012. Visit http://www.caluniv.ac.in/Global%20mdia%20journal/WINTER%202010%20DOCUMENTS/Document%205.pdf. Accessed on May 20, 2013. 726 The Draft law was prepared by ARTICLE 19, which has been working with the Vietnamese Ministry of Justice in drafting a right to information law. The organization belongs to Right2Info.org based in UK. Available at http://www.righttoinformation.org/. Accessed on July 6, 2011. 727 Law on Access to Information, art. 4 provides that the right to access to information means the right designated to review, observe or inspect products, documents, records; the right to transcribe, cite, reproduce or obtain records, documents and information.

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environment. Presently, access to natural resources data is still limited due to the absence of a

national database.

During the field research in Viet Nam for three weeks covering Ho Chi Minh City, Tan An,

Long An Province, Phan Thiet, Dalat, Hanoi, Tam Dao and Chi Linh, it has been noted that a

number of golf courses have varying sizes and holes, which ranges from 9, 18, 27 (18 +9), or

double 18 (18+18) or three 18’s (18+18+18). How many of these courses obtained an approved

EIA from MNRE? Le Hoai Nam, Deputy Director for EIA - MNRE could not give specific data

claiming that some projects obtained their licenses from the PPCs independently from the

MNRE. There is therefore a disorderly procedure, which the central government should resolve

with the use of database of information. Likewise, the supervisory authority of the MNRE

should be strengthened.

It is important to take notice that a regulation length 18 holes golf course maybe constructed in

forty hectares (98.8 acres) of land yet in Viet Nam developers designate large areas for

development, ranging from 300 to 500 hectares. Thus, developers are presumed to actually

engage in speculative investments, such as residential development interspersed with golf

courses. This has been confirmed during field visits. Therefore, a limit to development should

be imposed in order to curb land speculation and unnecessary land development. Under the

2020 National Golf Course Development Plan, a maximum of 100 hectares is allowed for golf

course development. The authority of the Provincial People’s Committees to issue golf licenses

has also been revoked by the said Plan. Viet Nam is one of the largest recipients of foreign aid

in the world, so it made considerable progress in developing the EIA system728 and it will be

adaptable to stringent regulation

1.4 Singapore

It is said that, “EIA provides systems to institutionalize foresight”.729 However Singapore has no

EIA legislation. The Singapore Constitution did not mention the word environment, protection

of the environment nor public consultation. Neither is there a statute requiring public

participation in decision-making processes, particularly, on matters of national concern. Public

728 Environment in Transition: Cambodia, Laos PDR, Thailand, Viet Nam, July 2000, Asian Development Bank. Visit http://www.adb.org/Documents/Books/Environments_in_Transition/chap_01.pdf. Accessed on May 1, 2010. 729 Nicholas A. Robinson, EIA Abroad, The Comparative and Transnational Experience, Pace University School of Law, New York, EIA Analysis, The NEPA Experience, at page 679.

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consultation is one of the hallmarks of an EIA, the absence of which makes Singapore

vulnerable to criticism. Although public consultation does take place in Singapore, e.g. review of

the Singapore Green Plan, Concept Plans, there are reservations regarding the conduct thereof,

owing to its “restrictive” application. It is observed that very few stakeholders participate in the

process leaving most decision-making to government officers, who may sometimes consult

some members of the academe, civil society and NGOs, like the NSS, SEC730. Many people see

that government projects are implemented without the preparation and submission of EIA and

that the mechanism is resorted only on an ad hoc basis. If the government decides to withhold

the process, the citizens have no legal recourse but to submit the issues to public discussions.

Singapore has no EIA legislation with the nearest approximation to impact analysis study are

mentioned under Sections 26 and 36 of the EPMA. Singapore adopted development goals as a

national policy yet it has to consider the right of every citizen to have informed decision-making

processes established under the law. These are the goals of Agenda 21, which is actually a guide

in making choices for less environmentally destructive developments. In the absence of any

organic act that fundamentally ensures the enjoyment of a right by stakeholders to be consulted,

there is no guarantee that the government will always consult them on matters of national

concern. Therefore, an EIA law must be enacted.

In the past, several controversies arose involving the proposed development of nature areas, e.g.

Chek Jawa731, Lower Peirce Reservoir’s Proposed Golf Course732, Kranji Sanctuary Golf

Course 733 . Yet only the timely intervention by civil society prompted the modification,

withdrawal or deferment of the proposed projects. Kranji Sanctuary Golf Course proceeded to be

developed and while some pragmatic planning decisions were and are necessary, there is

considerable scope for more preventive action to be taken in the early stages of project design

730 Information campaigns at http://app.mewr.gov.sg/web/Contents/Contents.aspx?ContId=1342. Accesed on May 20, 2013. 731 National Parks website for Chek Jawa available at https://www.nparks.gov.sg/cms/index.php?option=com_visitorsguide&task=attractions&id=78&Itemid=73. Accessed on May 22, 2013. 732 National Parks website for the Lower Peirce Reservoir Park where the proposed golf course was supposed to be constructed. Available at https://www.nparks.gov.sg/cms/index.php?option=com_visitorsguide&task=naturereserves&id=50&Itemid=75. Accessed on May 22, 2013. 733 National Park website for Kranji Reservoir Park at https://www.nparks.gov.sg/cms/index.php?option=com_visitorsguide&task=parks&id=86&Itemid=73. Accessed on May 22, 2013.

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and planning.734 Significantly, an incident in the past highlighted the need for EIA and public

consultation when the PUB proposed the construction of a golf course in a nature reserve area

and a forested site adjacent to the Lower Peirce Reservoir. The NSS prepared an EIA and shared

it with the public735. Meanwhile, the PUB claimed it has prepared its own EIA, kept it

confidential and restricted for government use. The controversy prompted Hesp (1995) to write

that “in Singapore, the EIAs are not available to the public as they are ‘submitted in confidence’

for assessment by the Pollution Control Department”.736 Hesp argues that the “confidential

treatment of EIA reports has actually led to a degree of cynicism amongst the public which

indicates that the Government has a very poor record in creating effective feedback channels”.

The issue on “confidentiality” still holds true today. No EIAs are actually “officially published”

by the government even after the Lower Peirce controversy. When the three golf courses were

built, namely; Warren Golf and Country Club (1993); Kranji Sanctuary Golf Course (2003) and

Marina Bay Public Golf Course (2006), not one EIA was published by the authorities, if ever an

EIA was submitted. Were there EIA’s prepared? Were these golf clubs required to prepare and

submit EIAs on an ad hoc basis? Were Singaporeans consulted on these projects? There were

instances in the past whereby PUB published the EIA prepared for Lower Peirce nevertheless, as

of the writing of this thesis, the same is not available for general access to the public737. “In

reality, EIAs are done on an ad hoc basis but increasingly access has been given to NGOs”738.

The current posts of NSS mention the “confidential” treatment of EIA on the Lower Peirce.

734 Clive Briffett, C. & L.C. Malone-Lee, 1992, The case for environmental impact assessments in Singapore, Proc. Infrastructure: Impact on Development and Environment. The 1992 Convention of the Institute of Engineers, 28-30 May 1992. 735 The EIA prepared by NSS is no longer available online. However, NSS reports the same as one of their achievements in environmental advocacy. Visit http://www.nss.org.sg/about.aspx?id=2. Accessed May 22, 2013. 736 Patrick A. Hesp, The EIA Process in Singapore with Particular Respect to Coastal Environments and the Role of NGOs, Department of Geography, Massey University, Private Bag 11222, Palmerston North, New Zealand, Journal of Coastal Conservation, 1:134-144. Also available at http://spicosa-inline.databases.eucc-d.de/files/documents/00000447_C1.135-144.pdf. Accessed on December 20, 2010. 737 Website referred is http://www.egazette.com.sg/Document/gg/2006/065016.pdf and http://habitatnews.nus.edu.sg/news/pulauhantu/2006/01/call-to-view-marine-eia-for-proposed.html. Accessed December 20, 2010. 738 Lin Heng Lye, Nature Conservation Laws, The Legal Protection of Flora and Fauna in Singapore, The Singapore Red Data Book. Available at http://www.nparks.gov.sg/cms/docs/redbook/RDB_Nature%20Conservation%20Law_LLH.pdf. Accessed on December 20, 2010.

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D. Construction Stage 1. Biodiversity Protection and Nature Conservation This stage discusses the laws that apply during construction stage, i.e. laws on national heritage and archeological preservation, biodiversity protection and nature conservation. During this stage, golf courses are prepared for the construction and development where nature areas and wildlife habitat are possibly removed, destroyed or abandoned. 1.1 Philippines National Reports to the Secretariats of the “Ramsar” Convention and the Convention on Biodiversity Asian Development Bank’s 2008 Country Environmental Analysis

Philippines has passed various biodiversity protection and nature conservation laws. It also

identified, marked and set aside protected sites, wetlands, parks and reserves. It has four listed

“Ramsar” Wetland Sites, with a total area of 132,032 hectares, namely; Agusan Marsh Wildlife

Sanctuary, Mindanao (14,836 ha); Naujan Lake National Park, Oriental Mindoro (14,568 ha),

Olango Island Wildlife Sanctuary, Cebu (5,800 ha) and Tubbataha Reef National Marine Park,

Sulu Sea (96,828 ha).739 There are National Parks and Marine Protected Areas.740 Meanwhile,

the List of ASEAN Heritage Parks includes Mt. Apo National Park, Mts. Iglit-Basco National

Park741 and the recently listed Mt. Kitanglad Range National Park.742

The ADB’s 2008 Country Environmental Analysis has identified more than 65% of described

species. However the ADB Report mentions that the country is considered a biodiversity

“hotspot” - an area where the Earth’s biological wealth is most distinctive and rich but where

losses could also be severe if conservation efforts do not succeed. The report also mentions that

the common causes of the loss of biodiversity are unsustainable land-use practices, hunting and

wildlife trade, low awareness of biodiversity, and poor enforcement of regulations. 739 Ramsar List is available at http://www.ramsar.org/cda/en/ramsar-pubs-annolist-annotated-ramsar-16085/main/ramsar/1-30-168%5E16085_4000_0__. Accessed on March 18, 2011. Also see http://www.ramsar.org/pdf/cop10/cop10_nr_philippines.pdf. Accessed on March 22, 2011. 740 For List of Protected Areas is available at http://www.denr.gov.ph/index.php/component/content/article/17.html. The NIPAS List of Marine Protected Areas is available at http://www.coast.ph/userfiles/NIPASareas_database.pdf. Accessed on May 22, 2013. 741 The ASEAN Heritage Act and List are available at htmhttp://www.asean.org/15524 and htmhttp://www.aseanbiodiversity.org/index.php?option=com_content&view=article&id=343&Itemid=138. Accessed on March 18, 2011. 742 A known Bird Watch site is now listed as the 28th ASEAN Heritage Park, available at http://globalnation.inquirer.net/news/breakingnews/view/20100124-249152/RP-bird-watch-site-a-Asean-Heritage-Park. See also the portal of the ASEAN Centre for Biodiversity for reference, at http://bim.aseanbiodiversity.org/biss/index.php?option=com_wrapper&view=wrapper&Itemid=188. Both sites accessed on March 18, 2011.

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As a Contracting-Party to the Convention on Biodiversity, the Philippines regularly submit its

National Report to the Secretariat summarizing the measures taken to implement the Convention

and its objectives. The First Report (1998)743 mentions that “measures were implemented for the

period 1992-1998 to include (1) identification and monitoring, (2) in-situ and ex-situ

conservation, (3) sustainable use of biological components, (4) incentive measures, (5) impact

assessments, and (6) minimizing adverse impacts and technical and scientific cooperation”. The

Report also includes general information on current capacity to implement the measures in terms

of research, training, public awareness and information exchange”. The Fourth Report (2009)

discusses various threads, threats and cross-cutting issues involving forest and mountain

biodiversity, agricultural and inland waters biodiversity, coastal, marine and island biodiversity.

It also states that “thematic reviews indicate a pattern of continuing degradation with some

significant gains in other areas”. The 2010 National Assessment has not been submitted.

Prohibiting the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants, Shrubs or Plants of Scenic Value along Public Roads, Plazas, Parks, etc. and in Certain Places Act, RA 3571 (1963)

The law mandates that the cutting, destroying, or pruning of trees shall be under the supervision

of a Committee. Nonetheless, it is not clear whether the Committee was actually established and

the activities are regulated (Section 1). There were instances in the past where only the DENR

Regional Director ordered the cutting of trees744, and not the Committee mentioned under RA

3571.

Tree Planting Law, PD 953 (1977)

The Law “requires the Planting of Trees in certain Places and Penalizing Unauthorized Cutting,

Destruction, Damaging and Injuring of Certain Trees, Plants and Vegetation”. It expressly

requires that the “cutting of trees along public roads can only be done when necessary for public

safety” and pruning is “necessary to enhance beauty and only upon the approval of the duly

authorized representative of the head of agency or political subdivision having jurisdiction

therein”.

743 The First National Report is available at www.cbd.int/doc/projects/gef/gef-ph-2010-nr4-p1-req-en.doc. Accessed on December 28, 2010. The Second National Report was submitted during the 6th Conference of Parties on 7-19 April 2002. The Third National Report was submitted in April 2006 while the fourth report was submitted in 2009. See http://www.cbd.int/doc/world/ph/ph-nr-04-en.pdf. 744 Tree Cutting in Manila with permission, at http://www.manila.gov.ph/presstatement0319.htm. See other tree cutting incidents at http://bmpm.abs-cbnnews.com/blogs/nia-indiscriminately-cutting-trees-along-their-service-roads-without-a-permit.html. Accessed on March 19, 2011.

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Revised Forestry Code, PD 705 (amend. 1975)

The Code establishes a license and permit system to manage and utilize forest resources (Section

19). Section 69 proscribed the unlawful occupation or destruction of forestlands while Section 72

provides that the destruction of wildlife resources shall be punishable by a fine or penalty, or

both.745

National Integrated Protected Areas System (NIPAS), RA 7586 (1992)

The NIPAS establishes a national integrated protected areas “encompassing outstandingly

remarkable areas and biologically important public lands” that are habitats of rare and

endangered species of plants and animals. Consequently, “Natural Monuments” are

established.746 The NIPAS Act also defined various categories of protected areas including strict

nature reserves, natural parks, natural monuments, wildlife sanctuaries, protected landscapes and

seascapes, resource reserves and natural biotic areas. Around 107 areas (3.3 million hectares)

have been proclaimed as protected areas under the NIPAS Act.747

Conservation and Protection of Wildlife Resources Act, RA 9147 (2001)

The Conservation and Protection of Wildlife Resources Act protects and conserves wildlife

resources, species and their habitats, promotes ecological balance and enhances biological

diversity (Section 2).

In the Philippines, biodiversity assessment is usually done during the EIA application process in

compliance with the mandatory requirements imposed by DENR-EMB on golf courses. But

generally, nature conservation received less attention from golf clubs owing to massive

development activities. Improvements in conservation works are very recent, apparently brought

about by the spread of environmentalism all over the world. However, very few golf clubs

implement biodiversity protection programs in order to save on operational cost. Most golf

courses prefer to plant ornamental trees. The absence of fruit-bearing trees, shrubs and flowering

plants diminish wildlife habitation since food is essential for wildlife to flourish and survive. In

745 Any violation shall be fined not less than one hundred (PHP100.00) (USD 2.3) (SGD 3.2) for each violation and in addition shall be denied a permit for a period of three years from the date of the violation. Currency exchange as of May 21, 2013. Clearly, from the amount of fine imposed, the law is antiquated and has not been updated. 746 RA 7586, National Integrated Protected Areas System, s.3, cl.c. (1992). Natural Monuments are defined as a “relatively small area focused on the protection of small features to protect or preserve nationally significant natural features on account of their special interest or unique characteristic”. 747 Visit the portal of the Protected Areas and Wildlife Bureau at http://www.pawb.gov.ph/. Accessed on December 29, 2010.

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compact areas, golf courses utilize every square foot of the land thus wildlife resources are

constrained to grow. Chemical application also drives away or kills wildlife that inhabits the

area. And since the majority of golf courses are built on pristine lands, the forests are sometimes

destroyed to make way for fairways, greens and tees.

Most golf courses integrate in their design new ornamental trees and plants for remediation.

Reforestation also compensates for the cutting of “non-essential” trees. Others have reduced the

number of trees not only for aesthetic reasons but to minimize cost on maintenance or clean up

of areas. Thus, a stringent legal framework is necessary to curtail destructive activities. It would

be significant if project proponents are required to commit in the EIA application to set aside at

least five per cent of the golf course area as naturalized habitats, which must be designated as

“out of play” or “no go” areas. This scheme has been experimented, as a voluntary undertaking

by TAT Filipinas Golf Club, a case study in this thesis, to preserve wildlife habitat.748 However,

this may not prosper in other golf courses with land constraints. There are no guidelines imposed

by any government agency on these yet the designation should be replicated in other golf

courses.

Finally, the laws on biodiversity protection and nature conservation must be given more “teeth”,

in order to prosecute violators. There has been no record or report about harmful development

activities, specifically, the destruction of forested and swamp areas, which have been penalized

or halted. Not one golf course, or its officers have been brought to Court to be made responsible

for the massive grading and top soil removal activities, which entails cutting of many trees and

plants. The penal provisions must be fine-tuned and stiffer penalties must be imposed for every

violation. A stringent regulatory mechanism is important. The protection of biodiversity shall

include assessment, monitoring and development of the identified flora and fauna.

1.2 Thailand

National Reports to “Ramsar” and CBD Secretariats

According to the Third National Report to the CBD Secretariat (2005), Thailand “lies in hot and

humid climatic zone supporting a variety of tropical ecosystems”. The conservation of

“protected areas” is necessary especially those designated as national parks (144 sites), wildlife

sanctuaries (53 sites), forest parks (42 sites), wildlife non–hunting areas (52 sites), biosphere

reserves (1 site), World Heritage Natural sites (2), watershed class (1 site) and conserved 748 See Appendix “4”

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mangroves749. Thailand “has approximately 15,000 species of plant, which accounts for 8% of

estimated total number of plant species found globally and at least 292 species of mammals.750

The Report disclosed that the cause of the reduction of biodiversity is usually over exploitation,

illegal trading of animal and plant species, disturbance to natural habitat, loss of habitat and

environmental pollution. The Report also pointed out that the most serious threat to biodiversity

is human disturbance to natural habitats and ecosystems such as forest land reform (trees are

felled and burned in order to grow food crops), construction of water reservoirs and hydro–

electric dams, mining, urbanization, tourism and pollution. Thailand has eleven “Ramsar”

registered sites751 or a total of 372,800 hectares of wetlands.752 It also made enormous progress

since its accession to the Convention in 1998, with its National Wetlands Committee and

National Wetlands Policy now in place, and a comprehensive wetlands inventory has been

completed.753 Meanwhile, Thailand has listed in the ASEAN Heritage Parks the following; Khao

Yai National Park, Kor Tarutao National Park, Ao Phangnga - Mu Koh Surin – Mu Koh Similan

Marine National Park and Kaengkrachan Forest Complex.

Article 66, 2007 Constitution provides that local or traditional communities are required to

participate in the balanced and sustainable management, maintenance, and utilization of natural

resources and the environment. This is actually recognizing the role of local communities in the

traditional way of preserving nature and natural resources. Meanwhile, Article 85.4 provides

plans for systematic management of water and other natural resources. On the other hand, there

are various laws, which protect biodiversity.

National Park Act B.E. 2504 (1991)

This concerns national park areas, the objectives being to protect, control, and oversee the

ecology and natural habitat of plants and animals in national park areas. It forbids collecting,

harming and bringing out wood, natural resources, animals and plants, orchids, including

749 First National Report of Thailand to the CBD Secretariat (2003), available at http://www.cbd.int/doc/world/th/th-nr-01-p2-en.pdf. Accessed on March 25, 2011. 750 Id. 751 Visit http://www.ramsar.org/cda/en/ramsar-documents-list/main/ramsar/1-31-218_4000_0__. Accessed on March 31, 2011. 752 Data on Wetlands List for Thailand is available at http://www.ramsar.org/cda/en/ramsar-news-archives-2009-workshop-in-thailand-for/main/ramsar/1-26-45-84%5E17193_4000_0__ and http://www.ramsar.org/cda/en/ramsar-news-archives-2004-ramsar-visit-to-thailand/main/ramsar/1-26-45-54%5E19049_4000_0__. Accessed on March 22, 2011. 753 Id.

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flowers, leaves, and fruits754. The Act755 mentions that, national parks play significant roles in

maintaining ecological stability and preserving biological diversity. Thus, the Department of

National Parks, Wildlife and Plant Conservation established 144 national parks all over the

country756. The Minister of the Ministry of Agriculture and Cooperatives is designated to have

charge and control of the execution of the Parks Act with power to issue Ministerial Regulations

(Section 5). The law also states that national parks must not be owned or legally possessed by

any person other than a public body” and to extend or cancel the whole or a part of the national

park, only the issuance of a Royal Decree may be allowed to do so (Section 6).

National Conserved Forest Act (1964) This Act forbids personnel to collect wood and cut forest trees and plants in national park areas,

and to seek permission from the officer in-charge in order to identify and declare specific forests

as national conservation forests, even with a view to maintaining the forest and various natural

resources in good condition. This can be done based on ministerial regulations from the Ministry

of Agriculture and Cooperatives757.

First and Second Plant Storage Act (2008) These Acts, including a notification from the Ministry of Agriculture and Cooperatives, entitled

“Determination of Plants, Pests, or Carriers from Specified Sources that are Forbidden”,

provides that genetically engineered plants, which resulted from bio-technology, are forbidden.

Their import and transfer require permission from the Department of Agriculture. Permission is

restricted to experimental and research activities.

Animal Species Maintenance Act (1966) Export and Import to the Kingdom Act (1979) Plant Species Protection Act (1999) The Wildlife Conservation and Protection Act, B.E. 2535 (1992)758

This revised version of the Wildlife Conservation and Protection (1960) is concerned with

wildlife conservation areas, with a view to protecting natural habitats. It lists 15 types (formerly

754 Fourth National Report of Thailand to CBD Secretariat (2009). Visit http://www.cbd.int/doc/world/th/th-nr-04-en.pdf. Accessed on May 22, 2013. 755 The National Park Act seeks “to protect, control, and oversee the ecology and natural habitat of plants and animals in national park areas and forbids harmful and destructive activities”. 756 Visit the portal at http://www.dnp.go.th/parkreserve/nature.asp?lg=2. Accessed on January 1, 2011. 757 Id. 758 Fourth National Report of Thailand to CBD Secretariat (2009)

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nine types) of rare wildlife. It seeks to improve the Act and make it in harmony with the current

situation, in accorda3nce with the Convention on International Trade in Endangered Species of

Wild Fauna and Flora (CITES). It also concerns import and export control, encouraging the

breeding of certain wildlife species with a goal to increasing the wildlife population as well as to

conserve breeding and reduce the pressure from hunting wildlife. Other laws related to the

protection of biodiversity and nature conservation759 provides for the preservation of wildlife

habitat and the creation of Wildlife Conservation Division within the Royal Forest Department,

MOAC.

Community Forest Act (2007)

The Act is a framework for the sustainable utilization of natural resources in order to protect the

forest’s ecosystem. Clause 7, Chapter I supports the role of communities that protect, use and

develop forests in traditional ways. The Forest Plantation Act, B.E. 2535 (1992) requires

registration of land for planting restricted timber.

Biodiversity Policy (2009)

Thailand issued the Policy focusing on the protection and restoration of conservation areas that

are important to the preservation of ecology. Meanwhile, the Country Management Plan (2008 –

2011) promotes conservation, development, and sustainable utilization of biodiversity in order to

yield better economic benefits.

In sum Thailand’s biodiversity is protected by various laws, above discussed. However, these

are not adequate and enforcement is another problem. Thailand also faces various challenges to

implement conservation laws due to its prioritizing development. A stringent regulatory

mechanism should be introduced to regulate the massive cutting and filling of soil for golf

course construction. The destruction of habitat begins when golf courses are sculpted on land.

More action and initiatives are therefore required to ensure biodiversity protection and nature

conservation, e.g. legislation and crafting of stringent regulation, implementation mechanism.

An EIA, as a planning tool and the regulation of golf courses would secure nature conservation

and habitat protection.

759 The Act is concerned with wildlife conservation areas with a view to protecting natural habitats. It lists fifteen types (formerly nine types) of rare wildlife. It seeks to improve and make the Act in harmony with CITES.

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1.3 Viet Nam

National Reports to the “Ramsar” and CBD Secretariat

In 1995, the First National Biodiversity Action Plan (NBAP) of Viet Nam was approved by the

Prime Minister, which became the legal document for biodiversity conservation in the

country. 760 The Third National Report (2006) discloses that, “the country’s terrestrial

ecosystems contain more than 13,200 floral species and about 10,000 faunal species”. It also

mentions that “for the past two decades, many new floral and faunal species have been

discovered, and new creatures continue to be discovered and announced”. A system of 128

protected areas has been established and developed in all eco-regions nationwide covering an

area of 2.5 Million hectares or about 7.6% of the territory. Viet Nam also registered two World

Natural Heritage sites, four ASEAN Natural Heritage parks, two “Ramsar” Wetlands and six

Biosphere Reserves areas, which have been internationally recognized.

Viet Nam recognizes the many threats to biodiversity, i.e. increase of population and

consumption leads to resource overexploitation; rapid socio-economic development leads to

changes of natural landscapes and mass development of infrastructure, rising ecological

fragmentation, and damage wildlife habitats.761 The total number of endangered wildlife species

is now 882.762 In its Fourth Country Report (2008), specifically on the National Implementation

Plan, Viet Nam discloses that despite increases in the number and coverage of protected areas,

the management of the areas is compromised by lack of proper institutions, lack of funds and

limited manpower support. Thus, institutional and legislative reform targeting conservation and

the sustainable use of biodiversity have been introduced, in which various laws were

promulgated.

Viet Nam has registered three “Ramsar” Sites consisting of 35,807 hectares, namely; Ba Be, Bac

Kan (10,048 ha); Bau Sau (Crocodile Lake) Wetlands and Seasonal Floodplains, Dong Nai

(13,759 ha) and Xuan Thuy Natural Wetland Reserve, Nam Ha (12,000 ha). Viet Nam registered

four ASEAN Heritage Parks763 namely; Hoang Lien Sa Pa National Park, Ba Be National Park,

Kon Ka Kinh National Park, Chu Mom Ray National Park. Viet Nam is one of the most

“prioritized” countries for global conservation due to its richness in biodiversity, and wildlife is

760 The NBAP was included in the Third National Report to CBD Secretariat (2006). 761 Id. 762 Viet Nam Red Data Book, 2007 763 ASEAN Heritage Parks, available at http://www.aseansec.org/15524.htm. Accessed on March 22, 2011.

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considered a valuable resource (Fourth Country Report). The government therefore seeks to

protect wildlife by conserving nature, biodiversity, habitat and environment with the number and

total area of protected areas increased from 0.4% of the total land area in 1992 to 7% in 2005.764

Forest Protection and Development Law (2004) Article 1 stipulates that the Law provides for the management, protection, development and use

of forests (hereinafter referred collectively to as forest protection and development); and forest

owners’ rights and obligations. The Law applies to State agencies, domestic organizations,

households and individuals, overseas Vietnamese as well as foreign organizations and

individuals involved in forest protection and development in Vietnam. It also mentions that the

State uniformly manages and disposes of natural forests and forests developed with the State’s

capital, forests being planted forests over which the ownership right has been transferred from

forest owners to the State; forest wild animals; forest microorganisms; forest landscapes and

environment.

Land Use Law, 1993 (amend. 1998; 2003) Environmental Protection Law, 1993 (amend. 2005) Fishery Law, 2003 Biodiversity Law, No. 20/QH122008 Law on Forest Protection and Development (1991)

There is a Biodiversity Law in Viet Nam765 speaks about biodiversity conservation, including ex-

situ and in-situ conservation. Article 4 states that conserving biodiversity is the duty of the State,

all organizations and individuals. Article 5 gives priority for the conservation of natural

ecosystems, which are important, specific or representative for an ecological region and the

conservation of species on the list of endangered precious and rare species prioritized for

protection; ensuring control of access to genetic resources.

Resolution 18-HDBT, January 17, 1992 lists the rare and precious species of wild fauna and

flora in order to regulate, manage and protect wildlife. As the natural habitats are also protected,

the Law on Forest Protection and Development was enacted, as “forests are a precious resource,

an important component of ecological environment with large value in national economy”. The

law also seeks to protect, manage, utilize and develop the forests.

764 Id. 765 Biodiversity Law No. 20/QH12, art. 2 (2008)

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1992 Decision by the Chairman of the Council of Ministers on Policies for the Use of Bare Land, Denuded Hills, Forests, alluvial Flats, and Water Bodies (327CT)

This Decision766 mandates the re-greening of the major part of the degraded hills; protection of

forests and the environment; utilization of bare land in hilly areas, and of water bodies for

production of goods and supply of industrial raw materials.

1993 Instruction by the Prime Minister on Policies and Methods for Continued Economic and Social Development in Mountainous Areas (525TTG)

This Instruction provides policies and methods for continued development and seeks to change

the economic structure for mountainous areas and takes the national objective of

industrialization. The justification that the new structure must adapt to the demands from the

national and international market is a signal that the protection of the environment will be

secondary to national development. Obviously, this explains the government policy of allowing

development in mountain areas where wildlife habitat is valuable. There are golf courses in Viet

Nam, which are situated near mountainous or forested areas, e.g. Tam Dao Mountain Resort sits

on the slope of the Tam Dao National Park. Therefore, biodiversity in Viet Nam is being

threatened despite several conservation measures taken by the Government.

Ordinance on Plant Varieties, Order No. 03/2004/L-CTN (2004)

There is an Ordinance767 issued by the State President, which provides for the management and

conservation of plant gene sources, research into the selection, creation, recognition and

protection of new plant varieties. Chapter 2, Article 10 stipulates that the plant gene sources

constitute a “national asset” uniformly managed by the State. This law, in effect, provides for the

protection of local or indigenous species in the country. The Ordinance should be considered in

the importation of hybrid turf grasses for golf courses.

The Central Communist Party through Resolution No. 41-NQ/TW (2004) admits the following:

a) that the country’s natural resources are over exploited without planning in many cases; b) that

biodiversity is seriously threatened as State management system for conservation is weak; c) that

the legislation for biodiversity conservation are unsystematic and inconsistent; d) that since

1995, the government released more than 140 legal documents for biodiversity conservation and

management yet some contents are found overlapping, inconsistent or even conflicting. 766 Based on the Law on the Organization of the Council of Ministers, July 4, 1981. 767 Ordinance was published in Official Gazette No. 16, April 24, 2004, at pages 3-20.

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Presumably, the overlap pertains to issues between central or local administration, and between

sectoral agencies. Local competence, coupled with budgetary constraints has been pointed out as

the source of non-implementation or weak enforcement.

1.4 Singapore

National Report to CBD Secretariat

The National Parks Board (NParks)768 is designated the scientific authority on nature conservation

and assumes the role of national focal point for the Convention on Biodiversity. The NParks

manages the four Nature Reserves, two National Parks, a network of over 100 km of park

connectors, 24.16 km2 of roadside plantings and some 320 parks, totaling about 13% of the land

area of Singapore.769 Rich biodiversity can be found within Singapore’s twenty-two nature sites,

which include Bukit Timah Nature Reserve, Central Catchment Nature Reserve, Labrador Nature

Reserve, and Sungei Buloh Wetland Reserve, and eighteen Nature Areas. Singapore has not

registered any site for the Ramsar List of Wetlands of International Importance. However, it has

listed under the ASEAN Heritage Park the Sungei Buloh Wetland Reserve, which is protected

under the Parks and Trees Act.770

The Fourth National Report (2010) to the CBD Secretariat states that the Singapore takes a

pragmatic approach in balancing development with biodiversity conservation. The Report also

states that Nature Reserves are legally protected areas with key representative indigenous

ecosystems and all four Nature Reserves cover 33.26 km2 or about 4.7% of total land area. There

are also managed terrestrial habitats comprising roadside plantings, public parks, gardens, golf

courses and farms. The twenty-two sites that were reflected in the Parks and Water bodies Plan of

the URA Master Plan 2003 were all retained in the 2008 plan and are recognized as sites with

significant biodiversity and will be kept for as long as possible. The Report also recognizes the

country’s land, water and energy constraints.

768 Singapore signed the CBD on June 12, 1992 and became a party on December 21, 1995. The National Biodiversity Strategy and Action Plan (NBSAP) is Singapore’s blueprint for biodiversity conservation. Copy of report is available at http://www.cbd.int/doc/world/sg/sg-nr-04-en.pdf. Accessed on March 28, 2011. 769 NParks Report, 2008. Also visit NParks portal at http://www.nparks.gov.sg/cms/index.php?option=com_content&view=article&id=44&Itemid=27. Accessed on March 28, 2011. 770 Lin Heng Lye, Nature Conservation Laws, The Legal Protection of Flora and Fauna in Singapore, at http://www.nparks.gov.sg/cms/docs/redbook/RDB_Nature%20Conservation%20Law_LLH.pdf. Accessed on March 28, 2011.

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Singapore Green Plan (SGP) (1992)

The SGP identifies four targets for nature and biodiversity conservation. The first target is to keep

Nature Areas for as long as possible.771 Nature Areas (terrestrial, marine or coastal areas) support

natural ecosystems and are recognized for their significant biodiversity. This is reflected in the

Special and Detailed Controls Plan of the URA Master Plan for 2008. Thus, nature areas maybe

developed for other purposes.

Wild Animals and Birds Act, Cap. 351 Animals and Birds Act, Cap. 7 Control of Plants Act, Cap. 57A Endangered Species (Import and Export) Act, Cap. 92A Fisheries Act, Cap. 111

The core functions of the Agri-Veterinary Authority (AVA) are directly relevant to biodiversity.

AVA regulates the import of animals and plants, their related products and the protection of wild

animals and birds, island-wide and for controlling the trade in wildlife. AVA is the national

authority responsible for the implementation and enforcement of the Convention on International

Trade in Endangered Species of Wild Fauna and Flora, administers and enforces five laws

pertaining to biodiversity, namely; Wild Animals and Birds Act; Animals and Birds Act; Control

of Plants Act; Endangered Species (Import and Export) Act, and Fisheries Act.

The Wild Animals and Birds Act provides for island-wide protection of almost all wild fauna, with

the exception of six common species of birds. The Wild Animals and Birds (Bird Sanctuaries)

Order provides for certain areas to be set-aside as bird sanctuaries where the killing, taking,

netting or snaring of any bird is prohibited. NParks has been administratively empowered by AVA

to assist in the enforcement of the Wild Animals and Birds Act. On the other hand, the Animals

and Birds Act and the Control of Plants Act empowers AVA to safeguard animal and plant health

and animal welfare.

Parks and Trees Act, Cap. 216

Singapore protects bio-diversity and conserves nature, the extent of which depends on the location

of the flora and fauna.772 Nonetheless, much of the greenery of the city-state is nurtured and

771 Read the Online version of the Red Data Book, available at http://www.nparks.gov.sg/cms/index.php?option=com_content&view=article&id=146&Itemid=128 772 Lin Heng Lye, 9th International Conference on Environmental Law and 10th Brazilian Conference on Environmental Law, Landscape Protection Laws in the Evolution of Modern Singapore, Conference

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manicured.773 The Act provide for the establishment of national parks774 and nature reserves775,

which are set aside for propagation, protection and conservation of trees, plants, animals and other

organisms. Singapore has 1,763 hectares of parks, connectors and open spaces and two national

parks - the Botanic Gardens and Fort Canning Park.776 Section 8 restricts various activities in

respect of trees, plants, etc., in national parks and nature reserves, which causes or may cause

alteration, damage or destruction to any property, tree or plant”.

National Parks Board Act, Cap. 198A

The Act reconstituted the Board (Section 3), which is tasked “to plan, design, develop, manage and

maintain public parks and preserve objects and places of aesthetic, historical or scientific interest”

(Section 6).

When Singapore transformed itself into an economic base in Asia, the government leadership

sought to ensure that the frameworks for the greening of the country were in place. There are

development challenges, such as the proliferation of golf courses and the fragmentation of nature

areas. Yet in written answers to parliamentary questions777 the MND disclosed that, “it has taken

several measures to address the problem of fragmentation to better manage coastal and marine

environment, including the protection of biodiversity”. The MND promised, “to continue to

adopt a pragmatic approach and conserve natural heritage”.778

Singapore has “5 Million people . . . with over 2,000 native plant species, 360 bird and 300

butterfly species, and 100 reptile species . . .and its waters are home to 260 hard coral species,

Paper, June 3, 2005. Published in Antonio Herman Benjamin, ed. Landscape, Nature and Law (Sao Paolo: Laws for a Green Planet Institute, 2005, at pages 119-134. 773 Id. 774 Designated in Part I of the Schedule of Park and Trees Act, Cap. 216, s.7, cls.1-3 775 Designated in Part II of the Schedule of Park and Trees Act, Cap. 216, s.7, cls.1-3 776 “Our Garden City” is available at the http://www.nparks.gov.sg/cms/index.php?option=com_content&view=article&id=78&Itemid=66. Accessed on December 20, 2010. 777 Parliamentary Query dated March 24, 2009 to Minister Mah Bow Tan (MND), who said that “Labrador and Sungei Buloh have been gazetted as nature reserves” and that “other sites of marine biodiversity significance such as Sisters’ Islands have been identified as Nature Areas within Special and Detailed Controls Plans”. He also disclosed that there are “Marine conservation projects, such as the coral nursery established by NParks, NUS, NEA and Keppel Corporation”. Parliament No. 11, Session 1, Volume No. 85 on Sitting date 2009-02-06, at http://www.parliament.gov.sg/reports/public/hansard/title/20090206/20090206_S0003_T0006.html. Accessed on November 1, 2010. 778 Id. The Minister also disclosed that the “MND have in place stringent rules and regulations to guide maritime activities, i.e., the requirement for an Environmental Management and Monitoring Plan (EMMP) to be put in place to ensure that development projects do not adversely affect biodiversity”.

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which is one third of the global number, and 50% of the sea grass species found in the Indo-

Pacific region”779. In fact, Singapore “partnered with the CBD Secretariat and the Global

Partnership on Cities and Biodiversity in developing the Singapore Index on Cities' Biodiversity

where over thirty cities from around the world are now in various stages of test-bedding”.780

The biodiversity protection laws of Singapore are relevant as golf courses provide habitat to all

forms of flora and fauna. Water catchments or bodies also provide habitat for cyclical waterfowls,

which migrate from cold countries during the winter months. Some golf clubs in Singapore have

actually documented and published the presence of migratory birds, e.g. Keppel Club;781 Kranji

Sanctuary golf course provides shelter to several fauna near the catchments. Thus, Singapore must

continue its biodiversity assessments and identification of various species present in golf courses

and should make these known to the general public, for them to appreciate the other uses of golf

courses – as habitat for wildlife.

E. Construction Stage

1. Natural Heritages and Archeological Preservation

In this stage, golf courses are constructed and sites are removed, destroyed or demolished to make way for the large golfing complex. Thus, a review of laws and regulations, decrees, policies and guidelines are necessary.

1.1 Philippines

The Philippines is a signatory of the World Heritage Convention, 1972 and has ratified the

instrument on September 19, 1985.782 Significantly, the Petroglyphic Cave783 of Angono, Rizal

Province, which is located inside the premises of Eastridge Golf and Country Club - a case study

in this research, is included in the Tentative List submitted to UNESCO World Heritage List.

Thus, the laws and regulations on heritage and archeological sites are vitally important to ensure

protection and preservation of these sites.

779 Minister of MND Mah Bow Tan issued a statement during the 10th Conference of the Parties to the Convention on Biodiversity (CBD) on October 27, 2010, Nagoya, Japan. Available at http://www.nparks.gov.sg/cms/index.php?option=com_news&task=view&id=232&Itemid=50 780 Id. 781 The Keppel Club, available at http://www.keppelclub.com.sg/theclub.aspx?id=awards. Accessed on July 12, 2011. 782 Philippines listed for UNESCO three cultural sites, two natural sites and twenty-seven sites in the Tentative List. Visit http://whc.unesco.org/en/statesparties/ph. Accessed on March 18, 2011. 783 The Angono Petroglyphs is included in the UNESCO Tentative list. Visit http://whc.unesco.org/en/tentativelists/519/; http://whc.unesco.org/en/tentativelists/?pattern=philippines and http://whc.unesco.org/en/tentativelists/?pattern=philippines. Accessed on March 18, 2011.

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National Historical Commission Act, RA 4368 (1965) Cultural Properties Preservation and Protection Act, PD 374 (1966, as amended, RA 4846) The Act mandates the Historical Commission to “identify, designate and mark historic places” in

the country, while the Cultural Properties Preservation and Protection Act preserves and

protects important cultural properties (Section 3), as well as the National Cultural Treasures of

intrinsic value. Section 12, PD 374 specifically provides that, “it is unlawful to explore, excavate

or make diggings on archaeological or historical sites for the purpose of obtaining materials of

cultural or historical value without prior written authority”.784 Section 20 provides that upon

conviction the offender pays a fine of not more than PHP10,000.785 (USD 242.84) (SGD305.76)

or serves not more than two years imprisonment, or serves and pays both. Section 21 stipulates

that a division of Cultural Properties of the National Museum is granted police powers to

prosecute violators.

National Museum Law, RA 8492 (1998) Sites and Shrines Law, PD 260 (1973) The Local Government Code mandates that “local government units ensure and support the

preservation and enrichment of culture” (Section 16) while the National Museum Law “pursues

and supports cultural development” by taking to task the National Museum to implement pertinent

provisions of Cultural Properties Preservation for the protection and conservation of cultural

properties786. The Sites and Shrines Law identifies specific areas of historical importance among

which is the Petroglyphic Rock shelter in Angono, Rizal Province, a case study in this research.

The National Museum reports that the Angono Petrohlyphs dates back to circa late Neolithic,

which was carved in a rock formation belonging to the Pleistocene Guadalupe Formation; a

declared historical site and the oldest known work of art in the Philippines with “127 human and

animal figures engraved on the rock wall dating back to 3000 BC”. The “drawings shows stylized

human figures, frogs and lizards along with other designs depicting interesting figures”. The

Museum notes that, “erosion caused by blasting of the Rock shelter made it indistinguishable”.

784 PD 374 further states that “no excavation or diggings shall be permitted without the supervision of an archaeologist certified by the Director of the National Museum, or of such other person competent to supervise the work, and upon completion of the project and deposit with the Museum a catalogue of all the materials found thereon, with a description of the archaeological context”. 785 At exchange rate as of May 22, 2013. 786 RA 8942, National Museum Law, s.7. The Angono Petroglyphs is also listed as an archeological site at http://www.nationalmuseum.gov.ph/National%20Museum/National%20Museum%20-%20Angono%20Petroglyphs%20Site%20Museum.html. Accessed on March 7, 2011.

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National Cultural Heritage Act, RA 10066 (2009)

The Act mandates the protection and conservation of national cultural heritage, based on the

principles and policies under Sections 14, 15, 16, and 17, Article XIV, 1987 Constitution.” Section

3, Article II defines Archaeological Area, Cultural agencies and heritage zones.787 Section 4,

Article III categorized the cultural properties of the country as follows: National Cultural

Treasures; Important Cultural Property; World Heritage Sites; National Historical Shrine;

National Historical Monument; and, National Historical Landmark. Article 4 provides that the

National Historical Institute and the National Museum in consultation with the Commission and,

the Housing and Land Use Regulatory Board or other concerned agencies, designate Heritage

Zones to protect the historical and cultural integrity of a geographical area. Section 13 speaks of

the maintenance of Heritage Zones by the local government unit concerned.

DAO 2003-30 implements PD 1586 (EIA Law) but was revised in 2007

It is noteworthy to mention that DAO 2003-30, which implements PD 1586 (EIA Law)788, requires

golf course proponents to submit a National Historical Institute (NHI) certification in cases of EIA

application. Before the NHI issues the certification, the proponent is required to submit an

Archeological Impact Assessment (AIA). Once satisfied with the compliance, the NHI certifies

that, “archaeological survey for possible artifacts, and/or in case there is an archaeological finding

of artifacts, has been conducted”. The golf course proponent is also required to report the

archeological findings of artifacts to the NHI and submit a plan for recovery or restoration in case

the sites are damaged due to the project development.

However, the 2007 Revised Manual of Procedure altered the EIA process by simplifying the

requirement of prior submission of government certifications. Although, the NHI certification and

clearance are still required to be submitted after the issuance of ECC, it is no longer considered as

a condition-precedent for the approval of EIA/ECC application by DENR-EMB. The DENR-

EMB “still considers the NHI Certification in the review process under the Revised Procedure yet 787 Archeological area is “any place, whether above or under ground, underwater or at sea level, containing fossils, artifacts, and other cultural, geological, botanical, zoological materials which depict and document culturally relevant paleontological, prehistoric and/or historic events”; Cultural Agencies refers to the national government agencies with their specific areas of responsibility: National Museum (cultural property); the National Library (books); National Historical Institute (Philippine history); National Archives (documents) and Cultural Center of the Philippines (culture and the arts). Meanwhile, Heritage Zone refers to historical, anthropological, archaeological, artistic geographical areas and settings that are culturally significant to the country, as declared by the National Museum and/or the National Historical Institute 788 DAO 2003-30 was revised. How the NHI mechanism could be implemented under the 2007 Manual of Procedure is a critical issue.

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the EMB merely provides recommendations based thereof”.789 This argument holds true if the

project proponent prepares altogether the pre and post requirements for ECC approval. In cases of

piecemeal compliance to cut on costs of EIA application, there is no NHI Certification to be

reviewed by DENR. Once the ECC is approved by DENR there is no NHI Certification to be

reviewed. Does this mean that the NHI Certification has been inadvertently omitted in the revised

2007 EIA process? The previous mechanism should be restored in order to avoid golf course

construction in historical and archeological sites.

Proposed National Land Use Act

The Proposed National Land Use Act 790 provides under Section 48 the identification and

declaration of areas for protection, conservation and preservation of cultural heritage sites by the

National Historical Institute and/or the National Museum in coordination with other concerned

agencies, local communities, and the private sector. The provision however, is actually an

enumeration and a replication of the various provisions under the National Historical Commission

Act; the Sites and Shrines Law; the National Museum Law and Cultural Properties Preservation

and Protection Act.

There is an absolute necessity to review and evaluate the EIS system pertaining historical sites.

The destructive activities of the operators of Eastridge Golf Club in Binangonan, Rizal Province -

a case study in this paper involving the Angono Petroglyphs Rock shelter is instructive. This

writer conducted an ocular inspection and discovered that the Rock shelter is located inside the

premises of the golf estate, cutting across the front nine and the back nine holes. In 1994, a tunnel

was dug and upon verification, the person detailed at the Museum revealed that the irrigation

system of the golf course from Hole 11 runs through the connecting PVC pipe to the other side of

the tunnel.

This thesis suggests that in the event any historical or archeological sites are identified, marked or

delineated, such as the creation of Heritage Zones, golf course developers, project proponents or

golf clubs, should be required to post public notices that important sites are located within their

premises. The National Historical Commission must also impose a quarterly or yearly monitoring

and reportorial requirements regarding preservation and conservation programs, with penal

sanctions for failure of compliance. A stringent mechanism is necessary to preserve and protect

789 Personal Interview with Elsie Cezar. Transcript of interview is attached as Appendix “25”. 790 Proposed National Land Use Act of the Philippines.

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historical sites. This also ensures that international and regional commitments on historical

preservation are observed.

1.2 Thailand

National Reports to UNESCO

Thailand acceded to the UNESCO Convention on World Heritage in 1987. It has included in the

UNESCO List three Cultural sites and two natural sites. The cultural sites are Ban Chiang

Archeological Site (1992), Historic City of Ayutthaya (1991) and the Historic Town of

Sukhothai and Associated Historic Towns (1991). The Natural sites include the Dong Phayayen-

Khao Yai Forest Complex (2005) and the Thungyai-Huai Kha Khaeng Wildlife Sanctuaries

(1991). Meanwhile, the properties submitted in the UNESCO Tentative List include the Phimai,

its Cultural Route and the Associated Temples of Phanomroong and Muangtam (2004),

Phuphrabat Historical Park (2004) and Kaeng Krachan Forest Complex (KKFC) (2011).

There is no constitutional provision, which directly mandates the preservation of historical or

archeological sites. There is however, Section 42, 2007 Constitution, which speaks about the

expropriation of ancient monument and historic sites whereby fair compensation shall be paid to

the owner or persons having rights thereto, who suffers loss by such expropriation.

Archaeological Sites, Antiques, Art Objects and National Museum Act, B.E. 2504 (1961)

The Act protects identified archeological sites and defines “ancient monument” as an immovable

property, which by its age or architectural characteristics or historical evidence is useful in the

field of art, history or archaeology, and include places, which are archaeological or historic sites

and historic parks (Section 4). The “Director-General of the Department of Fine Arts under the

Ministry of Education has the power to issue notification in the Government Gazette that any

ancient monument is fit to be registered” (Section 7). Section 7 prohibits any person to construct

any building within the compound of a registered ancient monument except after a permit has

been obtained.791 Section 10 mandates that no person shall repair, modify, alter, demolish, add

to, destroy, remove any ancient monument or excavate to construct any building except by order

or permit” Section 10). Ergo, any golf course projects being developed in these protected sites

must obtain an order or permit from the Director General of Fine Arts. This thesis has no way to

791 Section 7 bis, Archaeological Sites states that “in case a building is constructed without the necessary permit, the Director-General shall have the power to stop the construction and demolish the building or a part thereof”.

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validate the implementation of the law since there is publicly no reported or documented

incident of alteration or destruction of historic sites when golf courses were built.

NEQA 1992

The NEQA provides for the environmental conservation of cultural heritage zones and mandates

that the National Environment Board manage the area. As to how these laws are implemented as

far as golf course development is concerned has not been explored in this research. There is no

specific mechanism whereby golf course development is required to apply for clearances or

permit to develop affected sites except those “ancient monuments” where permit or order must

be obtained from the Director General of the Department of Fine Arts, Ministry of Education.

There is a dearth of data in this subject matter as the law relates much on construction of

buildings in historical sites. In the case of golf courses, the development mainly refers to the

construction of the fairways, greens and tees, and in some measure, the facilities of the golf club.

The law on historical and archeological preservation provide for the protection of identified sites

yet the law is couched in general terms. A specific law or regulation is necessary. There is no

mechanism whereby golf courses are required to obtain permit or license before development or

construction.

1.3 Viet Nam

National Reports to UNESCO

Viet Nam acceded to the World Heritage Convention in 1987 and registered the following

UNESCO Cultural sites, namely; Central Sector of the Imperial Citadel of Thang Long – Hanoi,

(2010); Complex of Hue Monuments (1993); Hoi An Ancient Town (1999) and My Son

Sanctuary (1999). For the Natural sites, it registered Ha Long Bay (1994) and Phong Nha-Ke

Bang National Park (2003). The properties submitted in the Tentative List include the Ba Be

Lake (1997); Area of Old Carved Stone in Sapa (1997); Huong Son Complex of Natural Beauty

and Historical Monuments (1991); Cat Tien National Park (2006); Con Moong Cave (2006) and

Citadel of Ho Dynasty (2006).

Law of Cultural Heritage (2001)

Viet Nam enacted this Law, which indicates the necessity to protect, maintain and develop its

intangible cultural heritage. This Law pertains to the “preservation of intangible cultural

heritage, which has played a significant role in national development” and supported by the

State's policy “to collect, compile, translate, inventory, classify and preserve works of literature,

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art, science, oral tradition and folklore”.792 Meanwhile, Article 98, Viet Nam Constitution

mandates that “land having historical and cultural relics, landscapes and places of interest shall

be strictly managed”. This provision makes up for the requirement to protect historical sites.

There is likewise a Decree providing for the Implementation of Law on Land, under Decree No.

181-2004/ND-CP (2004).

Decree on the Detailed Regulations to Implement Articles of the Law on Cultural Heritage (2002) Further, actions for intangible heritage protection are promoted in this Decree. Article 7 provides

that the State “protects and promotes the values of intangible cultural heritage through research,

collection, inventory, classification, regular and periodical collection and inventory”. There is no

mention that historical or archeological sites affected by golf course development should be

preserved or protected through a license or permit system. Viet Nam therefore has to look into

the licensing and clearance mechanism whereby these sites are conserved and protected from

development imperatives. The preservation of national heritage and archeological sites are

important for the cultural integrity of the nation. The licensing or clearance mechanism for their

preservation and protection should be integrated in the EIA system for golf courses

1.4 Singapore

Singapore acceded to the World Heritage Convention on 2012. It has no heritage site listed

under the UNESCO World Heritage List as yet, although it has been reported that the Botanic

Gardens is a likely site793. It has listed the Sungei Buloh Wetland as an ASEAN Heritage Park

on December 23, 2003. The NParks established Heritage Roads to highlight the tree-scapes, as

well as the Heritage Trees as important green landmarks in 2001.794

National Heritage Board Act, Cap. 196A

The Act established the National Heritage Board795 “to develop and manage museums, archives,

oral history centers”; to collect, classify, preserve and display objects and records” and “to

792 Law on Cultural Heritage, chap. III, art. 23 (2001) 793 Visit UNESCO status of ratification of Singapore at http://whc.unesco.org/en/statesparties/?searchStates=singapore&id=&region=. Also visit http://www.nhb.gov.sg/NHBPortal/content/conn/ucmnhb/path/Contribution%20Folders/NHBPortal/Contents/Press/Press%20Releases/2013/8Apr2013_Singapore_Botanic_Gardens_as_UNESCO_World_Heritage_Site_Factsheet_for_Media_Brief.pdf and http://whc.unesco.org/en/tentativelists/5786/. Accessed on May 22, 2013. 794 Visit http://www.nparks.gov.sg/cms/index.php?option=com_content&view=article&id=75&Itemid=65 795 National Heritage Board Act, Cap. 196A, ss.6-7.

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advise and facilitate the preservation of historic sites and to undertake or sponsor research and

investigation”.

Preservation of Monuments Act, Cap. 239 (2009)

Meanwhile, the Act seeks “to preserve monuments of historic, traditional, archeological,

architectural or artistic interests”. Conservation falls within the mandate of the URA including

the “power to compulsorily acquire and dispose of any land, sites and monuments it has

acquired”796. The conservation of “the built heritage has played an important role in maintaining

the identities and social memories of Singapore . . . where new developments sprout up at an

unrelenting pace”.797 More than 6,500 buildings and whole urban neighborhoods and traditional

streets have been conserved with as many as eighty-six conservation areas, large and small.798

Under the Preservations of Monuments Act, the Director or a Monument Inspector may “inspect

any national monument by investigating into any contravention or suspected contraventions”

(Section 27, Clause 1). Any person who “refuses to give access to, or assaults, obstructs, hinders

or delays the officers in the discharge of his duties shall be guilty of an offence”.799 The Act even

authorizes the Board or its representatives to “enter upon lands to conduct archaeological

investigation or examination of any land, which the Board has reason to believe contains any

ancient monuments” (Section 46).

Singapore passed two heritage protection laws however there is no mechanism, which requires

golf courses to submit to inspection, clearance or certification before any development is

allowed. There are planning and conservation application guidelines in Singapore, which involve

the 3Rs - the principle of maximum retention, sensitive restoration and careful repairs.800

Therefore, before any conservation work commences, a thorough research and documentation

should be carried out on the conservation building and at every stage of the conservation work,

the technical aspects and process of the various activities should be documented.801 Thus, a

certification or clearance system must be introduced for golf course construction and

796 Visit at http://www.ura.gov.sg/conservation/conservation.htm. Accessed on December 22, 2010. 797 Speech by Grace Fu, Minister of State for National Development, available at URA portal at http://www.ura.gov.sg/pr/text/pr06-68a.html. Accessed on December 22, 2010. 798 Id. 799 Monuments Act s.27, cl.3 provides liability on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding six months or both. 800 The 3Rs are contained under the URA principles and approaches of conservation available at http://www.ura.gov.sg/conservation/mod3.htm. Accessed on December 22, 2010. 801 Id. A Conservation Development Checklist is available for submission to the URA.

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development in areas declared as historical sites. There is also a need to enact and implement

stringent regulations to protect historical and heritage sites located within the premises of golf

courses, i.e. exact definition and mathematical delineation of preserved sites.

F. Maintenance and Operation Stage 1. Water Resources In this stage, golf courses seek possible sources of water supply for watering and irrigation requirements. This thesis therefore discusses the laws on water and water resources. 1.1 Philippines Water is the lifeblood of golf courses. For varied reasons and interests, a few golf courses in the

country appropriate or utilize state-owned rivers and lakes. Likewise, most golf courses are

preferably sited near lakes and water catchment areas.802 Philippines also has the highest total

water withdrawals in Southeast Asia and projections up to 2025 show that the country will

continue to have the highest withdrawal in proportion to water resources.803 The Projections also

identified key challenges in water resources, which include monitoring, land-use planning,

protection of water bodies from contamination by domestic waste and industrial effluent,

protection of groundwater quality, and rehabilitation of rivers. Philippines enacted various laws

and tasks government agencies804 for water resource management with mandates including

planning, assessment, water quality, sanitation, pollution control, and watershed management.

Ownership of Water Bodies Local Water Utilities Authority (LWUA) Act, PD 198 (1973, amend. RA 279)

The Act declares a national policy for the “creation, operation, maintenance and expansion of

reliable and economically viable, sound water supply and wastewater disposal systems”.805 The

Act also created the LWUA Board with limited policy-making authority Section 18), power of

802 Splendido Taal Golf Club, Tagaytay Highlands Golf Club, Caliraya Springs Golf and Country Club, Sta. Elena Golf Club, Eastridge Golf Club are known to extract water from the lakes, rivers and dikes. 803 Projections made by the International Water Management Institute (IWMI), Agnes C. Rola, Herminia A. Francisco and Jennifer Liguton (eds.), Winning the Water War: Watersheds, Water Policies and Water Institutions, Philippine Institute for Development Studies (PIDS) and Philippine Council for Agriculture, Forestry and Natural Resources Research and Development (PCAARD), 2004, at page 2. 804 The agencies include DENR, EMB, Department of Health (DOH), Department of Science and Technology (DOST) National Water Resources Board (NWRB), Local Water Utilities Administration (LWUA), National Irrigation Administration (NIA), Laguna Lake Development Authority (LLDA), Manila Waterworks and Sewage System (MWSS) and Local Government Units (LGUs). 805 PD 198, Local Water Utilities Act (1973) sets its policies and goals for the “formulation and operation of independent, locally controlled public water district” - local operation and control of water systems; formation of local water districts, chartering a national administration to facilitate improvement of local water utilities.

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eminent domain806, protection of waters and facilities of districts807, to safeguard and protect the

use of waters. PD 198 provides that “the ground water within a district is necessary to LWUAs

performance of powers, thus it is authorized to adopt rules and regulations subject to the

approval of the National Water Resources Board (NWRB) governing the drilling, maintenance

and operation of wells for purposes other than a single family domestic use” (Section 32).

Section 5 creates the Local Water Districts for purposes of (a) acquiring, installing, improving,

maintaining and operating water supply and distribution systems for domestic, industrial,

municipal and agricultural uses; and (b) providing, maintaining and operating waste-water

collection, treatment and disposal facilities. Section 32 provides for the protection of waters and

includes “power to adopt rules and regulations governing the drilling, maintenance and operation

of wells . . . and any well operated in violation of such regulations shall be deemed an

interference”. “In the event the NWRB finds, after notice and hearing, that the production of

ground water for commercial or industrial uses is injuring or reducing its financial condition, it

may adopt and levy ground water production assessment”.808 Thus, Water Districts have the

power to require reportorial compliance of any commercial or industrial well, including the

installation of flow meters for meter reading of ground water extraction.

Dasmarinas Water District v. Leonardo De Castro, JJ Monterey Foods Corporation, 564 SCRA 624 (2008)

In 1998, Water Districts all over the country imposed production assessments to operators of

deep wells, including golf courses. Numerous complaints were raised and eventually the legal

question reached the High Court specifically the provision on the power to levy production

assessments under Article 39, PD 198. The High Court explained that "Appropriation" as used in

the Water Code, PD 1067 means the "acquisition of rights over the use of waters or the taking or

diverting of waters from a natural source under Article 9, PD 198”. But since the main issue of

levy has not been resolved and the Supreme Court is not a trier of facts, it has remanded the case

to the lower court for further reception of evidence. Five years after the remand of the case, golf

clubs still await the final resolution of this case, which has massive impact on its operation.

806 PD 198, s.26 provides for the acquisition of waterworks whereby the district may purchase, construct, or otherwise acquire works, water, water rights and privileges useful or necessary to convey, supply, store, collect, treat, dispose of or make other use of water for any purpose. 807 PD 198, s.131 on protection of water and facilities of the district. 808 PD 198, s.39 provides that “failure to pay assessment shall constitute an invasion of the waters of the district and shall entitle the water district to an injunction and damages”.

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Water Code, PD 1067 (1976)

The Code provides that “all water from the ground or flowing in rivers is owned by the State”

(Chapter II, Article 5) and that, “water users need to secure permits to use natural water

resources” (Chapter II, Article 13). The Code809 reiterates the constitutional mandate that “all

waters belong to the State”810 and that it is “increasingly necessary for government to intervene

actively to improve the management of water resources” (Section 1). The Code seeks to establish

the basic principles and framework relating to the appropriation, control and conservation of

water resources by allowing the owner of the land where water is found to use the same for

domestic purposes without securing a permit provided such use is registered when required by

the NWRB.811

The Code allows appropriation of water for recreational purposes (Article 10, Clause h) to be

evidenced by water right and water permit (Article 13). Only citizens and juridical persons may

apply for water permit (Article 15), the “measure and limit of appropriation shall be beneficial

use”.812 Water permits may be revoked for non-use, gross violation of the conditions imposed;

pollution, public nuisance or acts detrimental to public health and safety (Article 29) while

Article 41 states that “no person shall develop a stream, lake, or spring for recreational purposes

without first securing a permit”. Finally, Article 67 states that any watershed or any area of land

adjacent to any surface water or overlying any ground water may be declared as a “protected

area”.

Metro Manila Development Authority (MMDA) v. Manila Bay Residents, 574 SCRA 661 (2008)

Ground water contamination cannot be avoided since the Philippines have not established a

system of sewage collection and disposal. In Manila Bay Residents813, “mandamus” as a tool of

809 PD 1067, art.3 provides that “all waters that belong to the State cannot be subject to acquisitive prescription”. 810 PD 1067, art.6, “waters found on private lands belong to the State: Continuous or intermittent waters rising on such lands; Lakes and lagoons naturally occurring on such lands; Rain water falling on such lands; Subterranean or ground waters; and, Water in swamps and marshes”. 811 PD 1067, art.5 states that the State “owns rivers and their natural beds; bontinuous or intermittent waters of springs and brooks running in their natural beds and the beds themselves; natural lakes and lagoons; all other categories of surface waters such as water flowing over lands, water from rainfall whether natural, or artificial, and water from agriculture runoff, seepage and drainage; atmospheric water; subterranean or ground waters; and seawater”. 812 The beneficial use of water is the utilization in the right amount during the period that water is needed for producing the benefits for which the water is appropriated under Article 20. Article 21 sets the standards of beneficial use. 813 A complete text of the decision is available at http://sc.judiciary.gov.ph/jurisprudence/2008/december2008/171947-48.htm. Accessed March 19, 2011.

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judicial review for environmental protection was allowed due to the failure of the administrative

agencies to clean up, rehabilitate and protect Manila Bay from fecal coliform content of the

water brought by the governments failure to set up a sewage system for the Metropolitan City.

Policy Recommendation for Golf Courses in Critical Areas, Resolution No. 003-0109 (2009)

In 2009, the NWRB issued the Policy Recommendation814 and reiterates that golf courses are

identified as users of large amounts of water; its intensive use has adverse impact - groundwater

pollution and scarcity during period of droughts and water use restrictions. The Recommendation

points out that golf course’s irrigation competes with other water uses, and that during water

shortages it is explicitly provided in the Water Code, PD 1067, that the use of water for domestic

and municipal purposes shall have a better right over all other uses. The Recommendation also

mentions the issuance of a Cease and Desist Order (CDO) against golf courses operating water

pumps without the necessary water permits, and that, “immediate closure is implemented within

fifteen days from receipt of order”.

The Recommendation cites the 1998 Master Plan Study on Water Resources Management

whereby nine cities815 were identified either as water critical areas816 or declared critical areas817,

which are imposed water duties for purposes of determining water allocation for turf grasses. It

finally recommends that “all deep wells shall be installed with metering devices (production

meters, flow meters, and/or hour meters) duly tested and sealed and that monthly records of

water extraction shall be submitted on a quarterly basis”.

Beneficial Use of Surface Water Laguna Lake Development Authority Act (LLDA), RA 4850 (amend. 1975) LLDA Reorganization Act (2008) Executive Order 927 (1983)

814 The NWRB Resolution is merely a policy recommendation, which is currently posted for on-line consultation. See the NWRB portal at http://www.nwrb.gov.ph/. Accessed on December 29, 2010. 815 Metro Manila, Cebu, Angeles, Baguio, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. 816 Metro Manila, some parts of Bulacan and Cavite provinces and parts of Metro Cebu were identified as groundwater critical areas. The University of San Carlos – Water Resources Hydraulic Centre, in its 1994 report on “the Water Resources Integrated Developments (REMIND) Project” showed that level and quality of the groundwater in Cebu City and Mandaue City continue to deteriorate progressively. 817 Areas of Metro Manila and parts of Cavite and Bulacan; Metro Cebu, Baguio City, Angeles City, Iloilo City, Bacolod City, Davao City, Cagayan de Oro City, and Zamboanga City.

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The Act818 seeks “to promote and accelerate the development and balanced growth of the Laguna

Lake area819 and the lake region”. EO 927 defines certain functions and powers of the LLDA by

providing for water rights over Laguna de Bay and other bodies of water within the Lake Region

(Section 2, EO 927), thus making LLDA an agency with exclusive jurisdiction to issue permits

for the use of all surface water in or affecting the Lake region, including the power to collect

fees for the beneficial use of the lake waters and its tributaries. The rates of the fees to be

collected shall be subject to the approval of the President upon recommendation of the LLDA

Board (Section 3, EO 927). The phrase “beneficial use” has not been defined nor interpreted by

judicial authorities.820

Administrative Order 61(2004) LLDA Board Resolution No. 234, Series 2004 In 2004, the DENR Secretary issued AO 61, delegating to the LLDA General Manager the

authority to grant or deny the issuance of ECC/Certificate of Non-Coverage for projects located

within the Lake Region, and this Order affects golf course projects. Consequently, the LLDA

adopted the EIA System and its Implementing Rules and Regulations through LLDA Board

Resolution No.234. This has been reversed recently via DAO 2009-14, which requires that new

ECC and CNC applications for projects should be processed at NCR/Region 4 DENR-EMB

Regional Office. However, all golf course projects located within the lake region are still

required to obtain the LLDA Clearance after payment of clearance fees albeit all ECCs/CNCs

are issued by DENR-EMB and not the LLDA anymore.

Irrigation Act, Act 2152 Irrigation Law, RA 3601 (1963), as amended by Presidential Decree 552 and 1702 Irrigation Crisis Act, RA 6978 (1991) National Water Crisis Act, RA 8041 (1995)

818 By virtue of devolution, the administrative supervision of LLDA from the Office of the President was transferred to DENR under EO 149 (1994). 819 The Laguna lake region comprises the provinces of Rizal and Laguna; Cities of San Pablo, Pasay, Caloocan, Quezon, Manila and Tagaytay; towns of Tanauan, Sto. Tomas and Malvar in Batangas Province; the towns of Silang and Carmona in Cavite Province; town of Lucban in Quezon Province; and towns of Marikina, Pasig, Taguig, Muntinlupa, and Pateros in Metro Manila. Some of the towns mentioned have been transformed into cities through legislation. 820 Visit the LLDA site at http://www.llda.gov.ph/wm/index.html. Accessed May 27, 2013.

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The Irrigation Act, Act 2152 (1912) was enacted for the construction, operation and maintenance

of irrigation systems in the country by the government or private persons.821 It authorizes the

Irrigation Division of the Bureau of Public Works to manage the irrigations systems it had built

and to collect fees from water users to cover construction, operation and management costs822. In

1963, RA 3601 created the National Irrigation Administration (NIA), which is primarily

responsible “to provide adequate irrigation project facilities and to increase agricultural

production”.823 Section 3 states that “NIA shall observe the following priorities and guidelines:

1) funds provided shall be used only for the construction of new irrigation projects and that

priority shall be given to the construction of communal irrigation projects; 2) priority shall be

given to the farmer-beneficiaries of the Comprehensive Agrarian Reform Program, RA 6657

(1988), members of the indigenous cultural communities, beneficiaries of farmer-irrigators

associations, and beneficiaries in fifth and sixth class municipalities; 3) the irrigation projects

must be equitably distributed among the provinces and municipalities, giving priority to those

provinces and municipalities without any irrigation system”. Clearly, from these provisions,

agricultural production and farmers are the main beneficiaries of the irrigation program.

Meanwhile, Section 1, Irrigation Crisis Act declares a national policy “to promote the quality of

living of every Filipino through the . . . provision of adequate irrigation projects facilities to

increase agricultural production”.

On the other hand, this same law RA 3601 mandates that “NIA consider any or combination of

related or complementary purposes, including tourism development” (Section 5, Clause g). This

RA 3601 is relevant in this research as one golf course executive admitted in a written

questionnaire that their club draws water directly from the irrigation dikes. The law clearly states

that irrigation water is intended for agricultural production, and although Section 5, sub-clause g,

RA 3601 mentioned “complementary purpose including tourism development”, the club

involved is not engaged in golf tourism - rather, it is a private and exclusive membership club.

More issues are discussed in the chapter on Case Studies.

821 Read C.M. Wijayaratna and Douglas L. Vermillion, Irrigation Management Turnover in the Philippines, in “Short Report Series on Locally Managed Irrigation” (1994), International Irrigation Management Institute. 822 Id. 823 RA 3601, National Irrigation Act, s.2 requires the NIA “to investigate, study, improve, construct and administer all irrigation systems; investigate all available and possible water resources for the purpose of utilizing the same for irrigation, and to plan, design and construct the necessary projects to make the ten to twenty-year period; collect from the users of each irrigation system constructed by it such fees as may be necessary to finance the continuous operation of the system and reimburse within a certain period not less than twenty-five years the cost of construction”.

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There is also a serious breach - a criminal offense under Article 90 (m), Water Code, PD 1067

for the “illegal taking or diversion of water in an open canal, aqueduct or reservoir” and Article

91 (A), which states that “a fine of not exceeding PHP 3,000 (USD 72.85; SGD 91.73)824, or

imprisonment, or both such fine and imprisonment shall be imposed upon any person who

commits an “unauthorized obstruction of an irrigation canal”. Anti-pilferage is punishable under

Section 8, National Water Crisis Act, RA 8041 when a natural or juridical person, “destroy,

damage or interfere with any canal, raceway, ditch, inlet, crib, bullhead, dam, gate, service,

reservoir, pipes, or property of any water utility entity, whether public or private.

The National Water Crisis Act, RA 8041 (1995) also punishes any person who prevent, obstruct,

and interfere with the survey, works, and construction . . . of water mains and distribution

network and any related works of the utility entity; tap, make, or cause to be made any

connection with water lines without prior authority or consent; use or receive the direct benefit

or water service with knowledge that diversion, tampering, or illegal connection, or that the use

or receipt was without the authorization. RA 8041 adopts urgent and effective measures “to

address the nationwide water crisis including supply, distribution, privatization of state-run

water facilities, protection and conservation of watersheds, waste and pilferage of water,

including graft and corruption in all the water agencies” (Section 8). It also provides that “any

person who violates the provision shall be punished by imprisonment (six months to two years)

and fine (amount of the value of water stolen)” and “disconnection of water service” under

Section 11. RA 8041 is interrelated with Irrigation Law and Water Code825, which also mentions

pilferage or unauthorized drawing of water from irrigation dikes, and both are punishable under

the law.

Theoretically, irrigation water is intended for agricultural use and food production. Golf is not an

agricultural activity hence golf clubs are not allowed to pump out irrigation water for their use.

The Irrigation Crisis Act did not even identify golf courses as one of the beneficiaries of water

supply nor mentioned explicitly that it shall be so. Hence, golf courses have no right to extract

water from the irrigation dikes. This problem should be addressed immediately owing to the

rising problem of water supply in the country.

824 At foreign exchange rate as of May 22, 2013. 825 RA 8041, sec.91 speaks of obstruction of irrigation canal with fine. The violation is likewise punishable by imprisonment of not more than three years.

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Water Resource Conservation, Protection, Management and Collection Rainwater Collection and Spring Protection Act, RA 6716 (1989)

In 1989, the government sought to provide a simpler and cost-effective means to preserve water,

reduce flooding, provides water buffer and re-charge aquifers. The Rainwater Act empowers the

Department of Public Works and Highways (DPWH) to “undertake construction in all

barangays826 of water wells, rainwater collectors and spring water development, taking into

consideration . . . the cost of project development and operations, financial and economic factors

and institutional arrangements” (Section 2). Recently, the government sought to revive this Act,

which have been dormant for more than two decades! The Department of Interior and Local

Government (DILG) issued Memorandum Circular 2012-02 to all local government units

(LGUs) to promote the construction of rainwater collectors in all barangays to mitigate the

adverse impact of climate change.

Clean Water Act, RA 9275 (2004)

The Act mandates DENR to implement a comprehensive water quality management program “to

guarantee effective water utilization and conservation in all water bodies by focusing on the

abatement of pollution from land-based sources”. The law provides further that water quality

standards and regulations, the civil liability and penal provisions under the law shall be enforced

irrespective of the sources of pollution” (Section 3). DENR issued DAO 2005-10 as the

Implementing Rules and Regulations (IRR) of RA 9275. DENR also implements a wastewater

charge system in all water management areas, including the Laguna Lake Region and Regional

Industrial Centers, through the collection of wastewater charges/fees. 827 RA 9275 further

provides for a number of prohibited acts828. Meanwhile, LGUs are responsible for the provision

of basic services and facilities as enumerated under Section 17, Local Government Code,

including water supply and sewerage services. In the case of MMDA v. Manila Bay Residents,

574 SCRA 661 (2008), a landmark case on environmental protection, twelve government

agencies were compelled by mandamus to clean up Manila Bay.

It is also important that Article 17, PD 1067 provides that, “the right to the use of water is

deemed acquired as of the date of filing of the application for a water permit in case of approved

826 A Barangay is a village. It is considered as a basic political unit. 827 RA 9275, Clean Water Act, art. 2, s.13 provides for a wastewater charge system. 828 The Acts prohibited include facility discharge without permit; unauthorized transport or dumping of sewage sludge or solid waste into sea waters; chemical dumping; sewerage development/expansion in violation of EIA; and illegal discharges without valid permits.

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permits”. The absence of a water permit by the Malacanang golf course placed the National

Water Regulatory Board - an agency subordinated to the Office of the President, in a highly

questionable situation. NWRB failed to enforce the law from the moment it gained knowledge

and information of the flagrant violation. This non-feasance is actually punishable under the

Revised Penal Code.829

Groundwater Extraction

This thesis finds that the implementation of the Water Code failed owing to many factors,

including lack of public awareness. It is true that many village residents still extract groundwater

through the “traditional” wells without securing a water permit from authorities. Moreover, the

failure of the government to provide basic services, such as piped water, pushed poor

communities to dig shallow wells for water extraction. There are also issues about land

subsidence brought about by massive extraction of groundwater. Various health agencies also

raised the risks of contamination owing to the unregulated construction of wells. The risks of

water contamination are also higher particularly when industrial equipment’s are used for

extractive activities, such as the submersible pumps utilized by golf courses.

Registration of Deep Wells, Installation of Flow Meters

This thesis proposes mandatory registration of deep wells in each district whereby reportorial

compliance are strictly observed. 830 Registration could be delegated to local village

administration called “barangay” or village, which is considered as the basic political unit under

Section 384, Local Government Code. Another scheme could be the installation of flow meters

for every deep well. It is suggested that the registration should be regulated per location/area.

However, due to financial constraints, this scheme will be difficult to implement noting that flow

meters are very expensive and appropriations would be needed for public works. The LGUs

should also impose depth cap for aquifer source to ensure that clean and uncontaminated water

are extracted.

829 Revised Penal Code, (as amended) Book II, Chap. 2, art. 208, s.1 provides for malfeasance and misfeasance in office regarding prosecution of offenses, such as negligence and tolerance. 830 A local water district is established in every municipality or city. These LGUs have barangays or villages as a basic political unit.

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Water Permits

As of September 2007, the NWRB released 19,694 water permits totaling about 6 Million liters

per second (lps) pumpage to domestic, agriculture, power, and commercial users.831 Yet there is

no system of sewage collection and disposal in the country. It must be recalled that in 2004 the

NWRB decided to discontinue the issuance of water permits for deep well extraction in eight

Metro Manila critical areas832, which were identified in a 1994 study conducted by Consultants

for Engineering, Science and Technology (CEST). The said study indicated that the “physical

and chemical qualities of water in these areas had critical levels of lead, which causes

diseases”.833

The CEST study also reported that at least 1000 companies apply for groundwater extraction

permits every year. In 2008 however, the agency again prohibited extraction from deep wells as

the groundwater condition in Metro Manila had become extremely critical.834 In an interview835,

it was disclosed that since 2008 NWRB is no longer processing application permits for deep

wells while those that have been constructed illegally are being issued cease and desist orders

(CDOs). This thesis notes that DENR-EMB still approves EIA applications of golf courses by

issuing new golf development permits through the ECC mechanism. Yet NWRB prohibits

ground water extraction. How these new golf clubs are allowed to extract groundwater from

deep wells without water permits from the NWRB is a serious issue confronting the agency.

NWRB disclosed that only eleven out of the seventy-eight operational golf clubs had procured

water permits. It appears that most of these golf estates have water permits for housing projects

and not for golf courses, based on the nature of the groundwater application and permit

classification. For operating deep wells without water permits, a CDO was issued to Wack-Wack

831 Visit the NWRB website at http://www.nwrb.gov.ph/. Accessed on December 29, 2010. 832 The 1994 CEST study covers Guiguinto, Bulacan; Bocaue and Marilao, Bulacan; Meycauayan, Bulacan; North Caloocan; Navotas West; Quezon City; Makati; Mandaluyong; Pasig; Pateros; Parañaque; Pasay, Las Piñas, Muntinlupa; and Dasmarinas, Cavite. Wack-wack Golf Course in Mandaluyong was issued a CDO by the NWRB, including the Manila Golf Club in Makati City. 833 The study also disclosed that “the diseases include renal and nervous system damage; manganese which stains clothes; skeletal and dental fluorosis-causing fluoride; kidney and brain-damaging mercury; Alzheimer’s-causing aluminum; thyroid brain-damaging cyanide; cancer causing arsenic; and male reproductive tract-toxic boron”. 834 Visit the National Water Resources Board (NWRB) portal at http://www.nwrb.gov.ph/. See also Melody Aguiba M., NWRB Prohibits Deep Well Water Extraction in Metro, Manila Bulletin Online, April 9, 2008, available at http://philippinerealestatenews.blogspot.com/2008/04/nwrb-prohibits-deep-well-water.html. Accessed on June 22, 2010. 835 See NWRB interview as Appendix “7”.

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Golf & Country club836. Yet the NWRB failed to enforce the CDO owing to administrative and

bureaucratic delays, weak regulatory mechanism and legal maneuvers. Meanwhile, other golf

clubs draw water from the lake, i.e. Laguna Lake and Taal Lake, without paying water charges

or seeking permission, e.g. Eastridge Golf Club, Tagaytay Highlands International Golf Club

and Splendido Taal Residential Golf and Country Club.

NWRB Policy Recommendation for Golf Courses (2009)

The adoption and the consequent implementation of the NWRB Policy Recommendation are

widely anticipated albeit with a caveat that it has to pass through general consultation and

acceptance by stakeholders. Likewise, the Policy Recommendation has been prepared and issued

in 2009 yet until today nothing has been heard from the NWRB whether it has been adopted or

not. Public consultations were held by NWRB in 2009 whereby representatives from golf clubs

attended, submitted suggestions and counter-arguments. The NWRB should come out now with

a rationale decision whether to adopt the policy or not.

NWRB Authority

The NWRB has been criticized for laxity or weak enforcement, i.e. issuance of a CDO against

violators; imposition of penalties against illegal water users, and cancellation of permits by those

who use more water than permits would allow. Therefore, a monthly or quarterly reportorial

compliance and monitoring must be established. However, the scheme necessitates employment

of additional technical staff to monitor, inspect and investigate golf courses. As a developing

country, with huge budgetary deficit, public appropriation of funds will definitely stonewall any

proposal to improve water regulation. Article 88 also states that the NWRB shall have original

jurisdiction over all disputes relating to Article 3, while Article 89 provides that the decisions on

water rights controversies may be appealed to the court837 based on grave abuse of discretion;

questions of law or questions of fact and law.

Laguna Lake Development Authority

The LLDA is mandated to manage development activities in the Lake basin and places control

of pollution in the Bay area under its responsibility. Under EO 927, the term 'Laguna de Bay

Region' refers only to provinces, cities and municipalities specifically mentioned. It is vitally

836 The NWRB officials specifically mentioned Wack-wack Golf and Country Club with pending groundwater application for the West Course. A CDO has been issued against the Club. 837 The case maybe filed before the Regional Trial Courts of the province where the subject matter of the controversy is situated.

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important to emphasize that the city of Makati, which is the Philippine’s prime financial district,

together with the cities of Mandaluyong and San Juan were carved out of the continuous mass of

land and excluded from coverage of this law at its inception in 1966. Two major golf clubs are

situated in Makati and Mandaluyong cities - the Manila Golf Club and the Wack-Wack Golf and

Country Club. To this day, this geographic anomaly has not been sorted out and these cities

operate beyond the reach of regulatory control by LLDA. House Bill No. 2963 entitled LLDA

Reorganization Act (2008)838 seeks to include Makati, Mandaluyong and San Juan within the

mandate of the LLDA. The proposed bill has not been acted upon by Congress thus it did not

become a law despite the certification by the House of Representatives that it is a “priority house

bill”.

Another controversy involving the LLDA pertains to the imposition of clearances fees839 for new

projects, which is pegged at PHP7.20 (USD .17; SGD .22) per square meters840. The fees were

imposed by virtue of Resolution No. 41; Series 1997 (amend. Resolution No. 176, Series 2002);

Resolution No. 223, Series 2004 and Resolution No. 224, Series 2004, specifically Item g for

theme parks, malls and golf courses. The LLDA clearance is also required under DENR AO-96-

37 but the imposition of charges has not been mentioned. In the case of golf course projects

within the Lake region the LLDA rate applies even if the project does not draw water from the

Lake nor has any beneficial use of the surface water of the Lake. The mere siting or location of

golf courses in the Lake Region is enough bases for the imposition of the charges. Majority of

golf courses refused to get clearances by choosing instead to pay a yearly penalty of PHP5, 000

(USD 121.42; SGD 152.88). This is clearly an irregularity, which must be contained. An

investigation must be conducted to identify the companies, which violate the LLDA regulation.

On the other hand, a case should be filed before the Supreme Court to question the legality of the

exorbitant clearance fees or charges, as well as to obtain a judicial pronouncement of the

meaning of “beneficial use” of surface water.

Philippines passed a comprehensive set of water resources laws. Water, the lifeblood of golf

courses, must be stringently regulated, especially in golf courses situated in identified water-

distressed areas. Golf courses/clubs must therefore, be mandatorily required to display publicly 838 Authored by Laguna 4th District Representative Edgar San Luis. 839 The LLDA through a series of Board Resolutions required all development projects and activities within the Lake region to secure an LLDA Clearance, upon payment of fees. Before 1997, golf courses are not included in the Resolution. Visit http://www.llda.gov.ph/. Accessed on August 17, 2010. 840 If a golf course project consist of 60 hectares (600,000 m2), the proponent must pay PHP 4.32 Million (USD104,387.3) (SGD 131,483) at exchange rate as of May 22, 2013.

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their groundwater extraction permits and flow meters to monitor activities and compliance.

However, from the list provided by the NWRB, the Office of the President, Malacanang Palace

is found to be operating a golf course without water permit. The operation of Malacanang Palace

Golf Course without the required groundwater extraction permit841 since 1997 is a classic

example of violation and utter disregard of law. More so as the Chief Executive (President) is

constitutionally mandated to enforce faithfully all the laws of the country under the “Take-care

Clause”, 1987 Philippine Constitution (Article VII, Section 17).

1.2 Thailand

Groundwater Act (1977)

Section 85, 2007 Constitution provides for the use of land with due regard to compliance with

environmental condition, as well as the preparation of the systematic management plan for

water. The basic legal text asserting the state’s ownership of water resources can be found in

Article 1304 and 1305, Book IV, Civil and Commercial Code, which establishes that the public

domain of the State includes all kinds of property used for public interest or reserved for the

common benefit. There is no framework law for water resources in Thailand842. Legislators and

water experts claim that the 1977 Groundwater Act is obsolete.843 It was extensively amended in

1992 and 2003 owing to environmental consequences of unplanned large-scale groundwater

utilization, i.e., ground water depletion, land subsidence and saltwater intrusion. 844 Thus,

Thailand instituted a system to control drilling and pumpage845 with groundwater charges and

fees being imposed. However, implementation was weak, thereby necessitating amendments of

water laws.

841 The NWRB list of golf courses with water permits did not include Malacanang Palace Golf Course. Read “Malacanang golf course, 60 others, lack water permit”. Visit http://www.manilastandardtoday.com/. December 2, 1997 Report. Accessed on March 15, 2010. 842 Somkid Buapeng and Stephen Foster, “Controlling Groundwater Abstraction and Related Environmental Degradation in Metropolitan Bangkok-Thailand”, Case Profile Collection No. 20 in Sustainable Groundwater Management Lessons from Practice, World Bank Project (2008), available at http://siteresources.worldbank.org/INTWAT/Resources/GWMATE_CP_20_Bangkok.pdf. Accessed on May 27, 2013. 843 Francis Molle, Water Pricing in Thailand: Theory and Practice, Dora Centre- Delta Project, Kasetsart University (2001), available at http://std.cpc.ku.ac.th/delta/conf/Acrobat/Papers_Eng/pricing.pdf. Accessed on May 27, 2013. 844 Ashim Das Gupta and M.S. Babel, Challenges for Sustainable Management of Groundwater Use in Bangkok, Thailand, International Journal of Water Resources Development, Volume 21, Issue 3, September 2005, at page 453-464. 845 The Webster’s Online Dictionary defines pumpage as “that which is raised by pumps or the work done by pumps” at http://www.webster-dictionary.net/definition/Pumpage. Accessed on July 29, 2011.

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Critically, water regulation in Thailand did not lay down a general framework for integrated

water use, development, management and conservation. A large number of laws relating to

water resources were passed before 1970 when water was relatively abundant albeit these are no

longer relevant.846 Exacerbating the antiquity of laws and its growing irrelevance are some

thirty-four governmental agencies847 under eight ministries848 with separate budget to manage

water, e.g. Ministry of Agriculture and Cooperatives, Royal Irrigation Department, Department

for Energy Promotion and Development, and the Electricity Generating Authority of Thailand.

Consequently, jurisdictional overlaps or turf wars result among the agencies concerned making

water management an exceedingly difficult task. The existing water laws arguably are unable to

tackle water problems efficiently.

1992 Draft National Water Law

The Draft Law applies to the drawing of groundwater below earth, but unfortunately the

regulation is limited only to a distance which shall not be less than 10 meters from the ground to

the water source or aquifer (fixed in 1992 at 15 m in BMA, 20 or 30 in other regions) thus, it

does not cover the tens of thousands of tube-wells exploiting shallow aquifers all over the

country.849 Author Das Gupta also writes that, “the 1992 Draft Water Law provides for the

devolution of decision-making and responsibility over water management from the central

government to the river basin level. He also commented that when “the Draft Water Law was

presented, it was not acceptable to the general public although it re-defined water rights through

the introduction of ‘permit system’ with possible collection of water use fee”.

Since 2002, Thailand is undergoing major institutional and legal reform, specifically with regard

to water management. It has re-organized all of its State agencies and the Department of 846 John Herter, “As Thailand Industrializes, How Can Formalized Water Rights Protect the Interests of the Small Farmers in the Bang Pakong River Basin?” A Thesis Presented in Partial Fulfillment of the Requirements of the Lund University International Master's Programme in Environmental Science, Sweden, November 22, 2004. Visit http://74.125.153.132/search?q=cache:uRX4h8aG_8YJ:www.lumes.lu.se/database/alumni/03.04/theses/herter_john.pdf+new+draft+water+law+of+thailand&cd=10&hl=en&ct=clnk&client=safari. Accessed June 20, 2011. 847 Sergio Feld, Somkiat Prajamwong and Susan Sherman, “Proposed Integrated Land and Water Resources Management System (ILWRMS) for the Bang Pakong river basin: lessons from a user needs assessment”, Journal of Water Supply, Research and Technology-AQUA, 2003, IWA Publishing. 848 Virapol Taesombut, “Regional Study on the Development of Effective Water Management Institutions: A Case Study of the Bang Pakong River Basin, Thailand”, Published by the International Water Management Institute, Library of the Parliament, 2002, available at http://library1.parliament.go.th/search/(3qejse5510erol451x5n1v3h)/resultall.aspx?Callnumber=TD365. Accessed on August 20, 2010. 849 Id.

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Groundwater Resources (DGR) was set up within the MONRE to oversee the development and

management of the integrated groundwater resources.850 The DGR was tasked to implement a

2000 Cabinet Resolution, which commissioned a team of experts from Thammasat University to

prepare another draft water law for water resource utilization, development, management and

conservation with emphasis on public participation.851

As submitted, the main features of the 2003 Draft National Water Law, which has not been

passed or approved to this day, are the recognition of water rights and the introduction of permit

system; creation of the National Water Resources Committee (NWRC) as an apex body and the

establishment of a committee for each river basin. The proposed NWRC is vested with powers

to suggest water policies to the Cabinet; comment on budget allocation to water projects; assign

water right to river basins, issue water permits for large-scale water use, and resolve conflicts

between river basins. There are criticisms that the permit system as proposed is adjusted

according to the Thai social context and is actually based on political compromise (some water

users would be required to apply for a water permit with possible water charges while others,

with less consumption are under no obligation to do so).852 There is no mention or any indication

that groundwater extraction by golf courses is included in the permit and subsidy system. The

2003 Draft Water Law is still undergoing a public hearing process and has been pending for

almost a decade since its drafting.

State Irrigation Act, B.E. 2845 (1942)

The state’s irrigation system includes dams, dikes and canals. The Royal Irrigation Department,

Department for Energy Promotion and Development, and the Electricity Generating Authority

are major agencies responsible for construction and maintenance of the irrigation system.

Nonetheless, it is the Royal Irrigation Department, which implements the State Irrigation Act,

B.E. 2845 (1942). Golf courses, in theory, have been prohibited to withdraw water from

irrigation.853 Although golf courses may, in some rare instances pay a symbolic fee to Royal

Irrigation Department since the Royal Irrigation Act makes it legally possible to charge users for

850 The Department of Groundwater Resources website is available at http://www.dgr.go.th/en/main.htm. Accessed on August 20, 2010. DGR also regulates the utilization and conservation of groundwater through laws and regulations with clear enforcement procedure. 851 Amnat Wongbandit, Water Law Reforms in Thailand, Asian Development Bank Paper, available at http://www.adb.org/Water/Operations/2005/2SEAWF/Reforms-Amanat-Bali-Water-Law.pdf. Accessed on August 20, 2010. 852 Id. 853 Wongbandit, Amnat and J. Worapansopak, Water Resources Allocation and Practices in Thailand, ESCAP, 2000, at page 14.

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water at lower rates, author Wongbandit asserts that the amount collected must constitute a

special fund to be put back into the development of irrigation. Obviously, the collected amounts

are remitted to National Treasury, as a matter of policy.

Thailand has not ratified the new draft water law, which is urgently needed to regulate among

other issues, groundwater extraction854. Golf courses necessarily extract groundwater ostensibly

due to high cost of piped water supplied by the Metropolitan Waterworks Authority of Thailand

(MWA). Since a permit system in groundwater extraction has not been established due to the

pendency of the 2003 Draft Water Law, groundwater extraction will be difficult to regulate and

control. The country must introduce a permit system with mandatory installation of flow meter

that would record ground water extraction as the basis for assessment of water charges. The

average water requirement of an 18 holes golf course could peak at 3,000 liters (792.52 gals.)

everyday, and ground water extraction of these amounts have ecological impact on water

resources.

1.3 Viet Nam

Law on Water Resources, No. 8/1998/QH10 (1998)

Article 17, Viet Nam Constitution mandates that, “all rivers, lakes and water sources fall under

the ownership of the entire Vietnamese people”. The legal framework however is the Law on

Water Resources, which stipulates that, “water is a natural resource of special importance”.855

The Law specifically identified the subject and scope of regulation856; the management (Article

4); the financial policy, such as permitting and licensing system (Article 7); the responsibility to

protect water resource857; the prevention against deterioration and depletion of water source and

the protection of underground water. Article 14 forbids the discharge of wastewater or pollution-

generated substances into the sanitary protection zones while Article 15 protects the quality of

water in agricultural production.

854 Water Governance in Thailand, available at http://www.pacificwater.org/userfiles/file/New%20Thinking%20in%20Water%20Governance/thailand.pdf. Accessed on May 22, 2013. 855 Viet. Const. art. 1 states that, “organizations and individuals are entitled to exploit and use the water resource for life and production”. At the same time they have the responsibility to protect, prevent, combat and overcome the harmful effect caused by water. 856 Viet. Const. art. 2 identifies the water resources such as surface water, rainwater, underground water, sea-water, underground water within the exclusive economic zone and the continental shelf, mineral water and natural thermal water. 857 LWR, art. 10 mandates that the local administration at all levels have the responsibility to protect the water resource in the locality.

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Decision of the Prime Minister, No. 67/2000/QD-TTg (2000)

There are provisions on the protection of water quality for purposes of water communication and

transport, sports and tourism (Article 16, Law on Water Protection). The tasks of the Specialized

Inspector on water resource and its competence858 are likewise provided, including the handling

of violations859 and prescription for permits on water resource issued before the Law takes effect

(Article 72, LWP). The Law mandates the creation of the National Water Resources Council

(NWRC), as well as the River Basin Planning Management Boards. The Decision of the Prime

Minister established the NWRC in order to advise the Government on important decisions

regarding water resources specifically on strategies and policies; projects for the protection,

exploitation and utilization of water resources; and resolution of conflicts regarding water

resources (Article 2, LWP). NWRC is also in charged of issuing water permits to pump or

extract ground water.

Decree No. 179/1999/ND-CP mandates the implementation of the Law on Water Resources. As

the NWRC is a newly created agency, it is expected that new regulations will be issued to

require golf courses to install flow meters in order to record and report the quantity of water

drawn from the ground. In this manner, the groundwater extraction is monitored and reportorial

compliance is observed. The pumpage of water will likewise be recorded and monitored for the

imposition of water charges. There is an adequate framework for water resource regulation in

Viet Nam. Considering however that the National Water Resource Council was established only

in 2000, it is expected that NWRC would gradually introduce and enforce the permit system for

groundwater extraction and consequently require the installation of flow meters.

1.4 Singapore

Singapore has problems with natural or fresh water resources. It has no sufficient fresh water

supply to sustain its domestic and industrial needs. There are rivers and streams in Singapore but

these are not enough to supply the growing demand for freshwater. A lingering territorial dispute

involving Piedra Branca with Malaysia necessitates that Singapore should find ways to sustain

its fresh water needs, as the second supply (bilateral) agreement will expire in 2061, according to

858 LWR, art. 67 states that, “the Inspection Team and the Inspector have the power to ask concerned organizations and individuals for documents and information”. 859 LWR, art. 71 states that, “any person who violates any of the provisions of the Law shall be subjected to discipline, administrative fine or penal liability”.

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PUB. The PUB however reports that, “in just four decades Singapore overcame the shortages”860

since the country has been investing in research and technology by building a “robust,

diversified and sustainable water supply from different sources known as the four National

Taps.861 Delegates during the Dialogue Session of the inaugural Singapore International Water

Week (June 2008) were told that, “(water) dominated every other policy (and that) every other

policy had to bend at the knees for water survival”.862

To ensure water sufficiency, the PUB built massive infrastructures for drainage development,

sewerage, used water treatment facilities, deep tunnel sewerage system, incineration plants, an

offshore landfill island, facilities for the separation of storm and waste-water.863 The constructed

reservoirs and/or water catchments cover half of the total land area of Singapore and has

increased to 2/3 after the new Marina Reservoir and the first phase of the Seletar-Serangoon

Reservoir schemes were completed in 2003. Generally, groundwater extraction is prohibited

unless permit is obtained (Section 31, Cap. 294). Singapore also adopts a multi-pronged

approach in managing water demand through pricing measures, mandatory water conservation

requirements, encouraging ownership and volunteerism in water conservation.864 In fact, the

Singapore Green Plan 2012 targets to lower the per capita domestic water consumption of

Singapore from 158 liters per day to 155 liters by 2012.

The Singapore inland water standards and quality is regularly monitored by the Pollution

Control Department under the National Environment Agency (NEA).865 Singapore has thirty-two

rivers and seventeen reservoirs jointly monitored by PCD and PUB.866

Environmental Protection and Management Act (EPMA), Cap.94A (Revised 2002) 860 See the portal of PUB at http://www.pub.gov.sg/about/Pages/default.aspx on history of PUB. Accessed on December 22, 2010. 861 Id. 862 Yong Soon Tan, Tung Jean Lee, Karen Tan, Clean, Green and Blue, Singapore’s Journey Towards Environmental and Water Sustainability, Introduction, Institute of Southeast Asian Studies, 2009, page xxiii, quoting Minister Mentor Lee Kuan Yew. Lee Kuan Yew was the first Prime Minister of Singapore and the chief architect of modern Singapore. 863 Top five Most Popular Frequently Asked Questions. MEWR portal, available at http://www.ifaq.gov.sg/mewr/apps/fcd_faqmain.aspx. Accessed on September 11, 2010. 864 This strategy has worked well as per capita domestic water consumption has decreased from 176 litres per day in 1994 to 157 litres per day in 2007. In 2006, PUB embarked on the ‘10-Litre Challenge’ programme for Singaporeans to save ten litres of water a day. Visit PUB website at http://app.mewr.gov.sg/data/imgcont/1233/040-051%20Water.pdf. Accessed on May 20, 2010. 865 Visit http://app2.nea.gov.sg/topics_waterpollution.aspx. Accessed on December 23, 2010. 866 Data available at http://www.pub.gov.sg/water/Pages/LocalCatchment.aspx. Accessed on May 27, 2013.

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Twenty rivers and streams in non-water catchment areas are also monitored quarterly for

pollution and quality under the EPMA and the Sewerage and Drainage Act and their subsidiary

laws.867 These laws and regulations are used to control the discharge of wastewater from

domestic, industrial, agricultural and other premises into public sewers and watercourses.

Public Utilities Act, Cap. 261 (Revised 2002)

The Act created the PUB, inter alia to “provide, construct and maintain catchment areas and

reservoirs for the collection, supply and use of water for public and private purposes”. The

Board is also authorized “to reduce the supply of water, to enter premises to examine pipes

(Section 31) and order the removal of obstructions by written notice (Section 33) with power of

arrest” (Section 68).

Sewerage and Drainage Act, Cap. 294 (Revised 2001)

The Act prohibits the extraction of water (Section 31) without the approval of the Board, such as

“to construct any works for taking or intercepting water from any place or sea”. Section 31,

clause 5 also states that “any person who contravenes shall be guilty of an offence and shall be

liable on conviction to a fine not exceeding SGD 20,000 or to imprisonment for a term not

exceeding three months”.

Generally, groundwater extraction is prohibited in Singapore yet rainwater collection is not

sufficient to support domestic and industrial water needs of all golf courses. In Singapore,

freshwater is scarce and expensive. The government has to install a rainwater collection system

“to catch and collect rainwater and to recycle wastewater”. Golf courses in Singapore therefore

have incorporated large water catchments/hazards in their design and landscaping.868 Rainwater

collection has become common in the eastern part of Singapore yet it is a serious issue in the

drier western seaboard due to lesser rainfall. Desalinated water is available nonetheless few

hybrid turf grasses actually withstand high salinity, like the SeaIsle paspalum 2000. 869

Freshwater from nearby Johor, Malaysia is also available but is expensive. In the future,

Singapore plans to charge fees for rainwater collection stored in water catchments by golf

courses. 867 See relevant subsidiary legislation, namely: EPMA Hazardous Substances Regulations (Revised 2008) and Sewerage and Drainage Act (Sanitary Works) Regulation (Revised 2007). Read 2011 Environmental Protection Division Report at http://cms.nea.gov.sg/data/cmsresource/20130305819715945660.pdf. Accessed May 27, 2013. 868 Warren Golf & Country Club built five lakes to catch storm water. 869 See the website at http://www.seaisle1.com/. Accessed on December 24, 2010.

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G. Maintenance and Operation Stage 1. Chemical Pollution (Pesticides, Fertilizers, Fungicides, Herbicides, etc.) Golf courses utilize chemicals for turf maintenance and management of the tees, greens, fairways, and putting surfaces. This thesis reviews the laws on application of chemicals in golf courses.

Within the golf industry little is known about the environmental issues relating to chemical

application, as the potential effect of chemicals, particularly if large quantities are applied or if

they are applied incorrectly, has long-term consequences on the health of people exposed

thereat. Developed and developing countries adopt different approaches in chemical regulation.

The lack of information and scientific knowledge result in the mistaken belief that the use of

more fertilizer will result in higher crop yield or increased profits. More so in the golf industry

where golfers demand a very “lush”, very “green” and very “fast” turf grass for better roll and

playing quality.

In addition to issues on quantity of application there are health concerns resulting from improper

use, handling and application of chemicals. It has been disclosed by golf executives that some

golf clubs hesitate to impose voluntary reduction of chemical usage despite negative effect on

human health mainly because of the demand for excellent playability (turf grass quality) by

some members of the club. These are the type of players who are not necessarily exposed to

affected or contaminated areas, except when they come and play golf. Ground maintenance staff,

caddies and the club employees are directly exposed and are constantly in danger and in health

risk. In other developed countries, there is a mandatory requirement for the registration of

pesticide applicators or handlers in golf courses. While reportorial compliance is likewise

observed and mandated by law. In this manner, the chemical application is regulated, controlled

or supervised and the danger is contained. Chemical handling and rate of application are not the

only problem. Turf equipment or implements for chemical application need to be cleaned after

each use, in which case, the Ground Maintenance Department is required to isolate the chemical

wash bay areas and clean up the runoff water before it is dislodged. Therefore, government

authorities must address the issue on chemical use properly with mandatory inventory of all golf

courses, collection of data on chemicals use, water quality test, soil analysis, etc. Suppliers of

chemicals in golf courses must register and comply with reportorial requirements. The chemical

usage in golf courses must therefore be regulated. And the Workplace, Health and Safety Laws

must be enforced.

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1.1 Philippines

National Reports to POPs Secretariat

Philippines signed and ratified the Stockholm Convention on Persistent Organic Pollutants

(POPS) on May 23, 2001 and January 21, 2004, respectively. The POPs Convention “calls for

government’s commitment to eliminate or reduce the releases of identified chemicals”. The

Convention obliges nations to “establish national mechanisms to formulate and implement their

own blueprint of action for a sustainable healthy environment”. Article 15 stipulates measures

each country has taken to implement the Convention. In 2006, Philippines reported to the POPs

Secretariat that a National Implementation Plan (NIP), which outlines the national objectives for

the reduction and elimination of the production, importation, use and releases have been

prepared and submitted.870

The NIP 2006 is largely based on the findings of studies, relevant comments and inputs received

from public consultations, to wit; a) incomplete inventories of POPs (import, transport, use, and

disposal); b) identification and management of POPs-contaminated sites; c) screening,

enforcement, and monitoring of present and future POPs control and use; d) insufficient

legislation for dioxins and furans; e) lack of understanding and knowledge on unintentional

POPs; and f) options for reductions. The NIP 2006 also acknowledged constraints in the

implementation and regulated communities attribute issues to weak enforcement resulting in

lack of compliance. Meanwhile, weak enforcement has been attributed to lack of resource –

particularly financial resources The NIP 2006 admitted that the low level of compliance is

rooted to the lack of awareness, knowledge and competence of the regulated communities.

There are agencies, which provide the necessary enforcement support such as the Bureau of

Customs (BOC) - enforces border controls in regulating the entry of banned pesticides; Bureau

of Plant Industry (BPI) - monitors residual pesticides and evaluate pesticide application practices

and to ensure acceptable level of residues in agricultural products; and the Inter-agency

Committee on Environmental Health, Department of Health - coordinates and monitors various

activities of different agencies related to environmental health, including chemical safety.

870 2006 National Implementation Report submitted to the POPs Secretariat at http://chm.pops.int/Countries/National%20Implementation/tabid/253/language/en-US/Default.aspx. Accessed on December 29, 2010.

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The incomplete inventory of POPs is a critical issue, which must be addressed by the

government, and by the regulatory agencies on pollution control. There are reports that re-

blending and re-formulations are massively prepared by various suppliers and dealers of

chemicals and these remain undetected and unregulated. Information dissemination is absolutely

necessary so that the affected communities are better informed about the toxicity, characteristic

and shelf life of the chemicals, and POPs.

Control of Toxic Substances, Hazardous and Nuclear Wastes, RA 6969 (1990) An Act Providing for a Comprehensive Air Pollution Control, RA 8749 (1999) Ecological Solid Waste Management Act, RA 9003 (2000) Fertilizer and Pesticide Authority Act, PD 1144 (1977)

The above-mentioned legislations provide regulatory framework for chemical usage, application,

control and reduction. The Fertilizer and Pesticide Authority (FPA) is the agency tasked to

regulate fertilizer and pesticide use and is attached to the Department of Agriculture. It is vitally

important that PD 1144 specifically identified the agricultural sector as the beneficiary of the

regulation. Section 1 provides for the “creation of the FPA for the purpose of assuring the

agricultural sector of adequate supplies of fertilizer and pesticide at reasonable prices,

rationalizing the manufacture and marketing of fertilizer, protecting the public from the risks

inherent in the use of pesticides, and educating the agricultural sector in the use of these inputs”.

Section 9 provides for Registration and Licensing, and states that “no pesticides, fertilizer, or

other agricultural chemical shall be exported, imported, manufactured, formulated, stored,

distributed, or offered for sale, transported, delivered for transportation or used unless duly

registered or covered by a numbered provisional permit issued for use”. However, the scheme

introduced by unscrupulous dealers includes re-blending and re-formulation, which is not

covered by the regulation. Section 9 further stipulates that, “separate registrations shall be

required for each active ingredient and its possible formulations in the case of pesticides or for

each fertilizer grade”.

PD 1144 provides assistance to the agriculture sector in line with the national objective of

increasing food production and states that, “fertilizers and pesticides are vital inputs in food

production and must be supplied in adequate quantities”. The Act warned that, “improper

pesticide usage presents serious risks to users, handlers and the public in general because of the

inherent toxicity of the compounds, which are potential environmental contaminants”. However,

it must be noted that it is actually the Bureau of Plant Industry (BPI), which is designated to

monitor residual pesticide, evaluate pesticide application practices and to ensure acceptable level

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of residues in agricultural products. This designation alone supports the view that only

agricultural activities are regulated with regard to chemical usage.

Guidelines on Fertilizer Product Registration871 (Implementing Circular 96- 08 {1996}

The Guidelines872 are issued pursuant to the provisions of PD 1144. The implementing rules of

the Guidelines govern the registration of commercial fertilizers, soil conditioners/amendments,

microbial inoculants, fertilizer raw materials, and plant growth regulators prior to their

distribution and sale to farmers and end-users. The FPA publishes the List of Fully Registered

Fertilizer (Finished Products/Raw Materials), as well as the twenty-eight banned and restricted

pesticides.873 Scientific studies show that the active ingredients of these chemicals are used to

blend or re-formulate and produce new chemical combinations, which eventually find its way in

golf courses. Further study and investigation should be made by the responsible agencies of the

government to curb this type of irregular activities.

This thesis argues that turf grass management is not agriculture thus it is not covered by existing

chemical regulations enacted to regulate agricultural activities. Research has shown that the golf

industry have always treated its activity as agriculture, and so does the FPA. The Bureau of Plant

Industry, designated under the law to monitor residual pesticide, evaluate pesticide application

practices and ensures acceptable level of residues in agricultural products has not inspected golf

courses nor monitored their chemical application. Since turf maintenance is not an agricultural

activity, compliance to the regulation cannot be enforced since the industry can always claim

non-inclusion from coverage. Voluntary compliance may be withdrawn, depending on the

necessities of the regulated industry. It is therefore crucial that the golf course industry should be

adequately regulated.

Research discloses that chemical suppliers and dealers of golf courses go to FPA to apply for

license to sell and to register chemicals for sale and distribution. Nonetheless, the list of

871 The products covered by the guidelines are limited to inorganic and organic fertilizers. Available at http://fpa.da.gov.ph/mc%209608.pdf. Accessed on March 20,2011. 872 The products covered by the guidelines are limited to inorganic and organic fertilizers. Available at http://fpa.da.gov.ph/mc%209608.pdf. Accessed on March 20,2011. 873 The List of Registered Fertilizer includes 2, 4, 5-T, HCH/BHC, Aldrin, Heptachior, Azinphos Ethyl, Leptophos, Chlordane, Mercuric Fungicides, Chlorodimeform, Parathion-Methyl, Copper Aceto-Arsenic (Paris Green), Parathion-Ethyl, DBCP, 1-Naphthylthiourea (ANTU), DDT, Nitrofen, Dieldrin, Organotin, EDB, Sodium Fluoroacetate, Elemental Phosphorus (White & Yellow), Sodium Fluoroacetate (1801), Endrin, Strychnine, EPN, Thalium Sulfate, Gophacide and Toxaphene. The list is published at http://fpa.da.gov.ph/. Accessed on March 30, 2011.

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fertilizers registered with the FPA874 did not show the names of all chemicals dealers or

distributors for golf courses, except for two companies. What FPA mainly posted is a list of

suppliers and dealers of fertilizers for agricultural crops.

If these practices and treatment continue, the golf course industry will not be forced to comply

with the law that is inapplicable to them. The government regulators must amend the existing

agricultural regulations to include commercial activities, such as turf grass management. Golf

courses are not required to register or report their chemical rate of application before the

Fertilizer and Pesticide Authority (FPA) nor to the Bureau of Plant Industry (BPI), but

agricultural activities do submit reports. In a phone call875 to the Pesticides Division of FPA, the

agency confirmed that, “there is no list of registered chemicals and dealers/distributor for turf

grasses”. In the case of TAT Filipinas Golf Club, a case study in this thesis, chemicals are just

pre-ordered, delivered and applied, without any registration and reporting procedure to adhere

to.876 There is also no mechanism to regulate the formulation, reformulation or “blending” of

active ingredients. The re-packers “re-formulate” or “blend” chemicals without the necessary

licensing requirements. Further research must be taken on this report.

This thesis obtained a copy of a certificate or license of a turf grass supplier, which incidentally

was not included in the list of registered suppliers/dealers posted on the website of the FPA.877

Does this mean that there is actually a registration process but the FPA employees are not aware

thereof? Is this not a case of regulatory incompetence whereby the regulators lacks knowledge of

the scope of power and authority of the agency? From the FPA Guidelines,878 pesticides for turf

use are required to be registered and the registrant product must be identified, as well as the

manufacturing process, bio-efficacy and toxicology report. The Guidelines even requires the

supplier or dealer to obtain an Environmental Compliance Certificate from the DENR before it

874 List of Fully Registered Fertilizers at http://fpa.da.gov.ph/List%20of%20Fully%20Registered%20Fert%20as%20of%2031%20December%202010.pdf; the List of Provisionally registered Fertilizers, 2010, at http://fpa.da.gov.ph/List%20of%20Fully%20Registered%20Fert%20Finished%20and%20Raw2010.pdf and the List of Pesticides as of December 2010 at http://fpa.da.gov.ph/List%20of%20registered%20pesticides%20as%2001January%202010.pdf. Accessed on March 20, 2011. 875 Phone call to Bella Carmona, Pesticide Registration Division, FPA, dated March 20, 2011, 3:30 pm. 876 Copies of FPA registration of chemical supplier of TAT Filipinas Golf Club are attached as Appendix “29”. 877 List of fertilizers and pesticides used by TAT Filipinas Golf Club as Appendix “30”. 878 Guidelines on Fertilizer Product Registration (Implementing Circular 96- 08 {1996} issued pursuant to the provisions of PD 1144 and its IRR. Available at fpa.da.gov.ph/PESTICIDE%20REGULATORY%20POLICIES.doc. Accessed on March 20, 2011.

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is allowed to sell chemicals. Therefore, with regard to turf grass use for golf courses, there is no

clear pesticide or fertilizer registration to speak of. Is this is a classic case of regulatory laxity or

is this a manifestation that generally, the golf course industry does not see itself as an

agricultural activity and would occasionally comply with some regulations, and hence not

covered by PD 1144? Clearly, the law needs refinement. It has been enacted more than thirty

years ago, thus necessitating policy review and consequently, revision.

Philippines import various chemicals, primarily for use in agricultural production. However

there is limited information about the types and quantities imported or purchased.879 Lack of

information has resulted in the mishandling of chemicals, e.g. blending, re-formulation, lack of

safe storage facilities, as well as the disposal thereof. A few dealer/handler companies lack

proper facilities for segregating or storing the hazardous chemicals, as most dealers or handlers

maintain small stalls or stores. According to the 2008 ADB Country Environmental Analysis,

illegal disposal is rampant and little research has been done on chemical use and contamination

in agriculture, drinking water, soil, and groundwater to identify hot spots and to support stricter

waste management policies. A study880 detected concentrations of the pesticide dieldrin above

the drinking-water quality standard of 0.00003 milligrams per liter at four operational wells and

two back-up wells. The dieldrin could not be definitely traced to its source but it was thought to

be a breakdown product of the related pesticide aldrin, which may have been used to control

insects in golf courses, and the wells containing dieldrin were near or down-gradient of a golf

course.881

In the Philippines, most golf courses do not install waste treatment facilities due to the absence

of a statutory requirement. The only instance it is required is through the ECC condition

imposed after the EIA application is approved by the DENR-EMB. Thus, golf clubs

unnecessarily dump untreated chemical wastes (fertilizer and pesticide residue) into water bodies

endangering bio-diversity and the source of livelihood of communities residing nearby. No

wash bay areas are set up and rinse water is dumped into open canals. The application of

879 Data from FPA on fertilizer supply and demand is limited to Urea, available at http://fpa.da.gov.ph/1970-2008fertSDandaveprices.pdf. Accessed on March 20, 2011. 880 Weston International at the former Clark Air Base in Pampanga in August 1997 conducted a study on chemical usage. Read Background Information at www.emb.gov.ph/pops/NIP/Section%202.3%20Assessment_031405.doc. Accessed on August 12, 2011. 881 There are a number of golf courses in the former US military facility in Clark Field, owned and managed by the Philippine Tourism Authority, a government agency.

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chemicals is a major component of golf course operation. The rate of application varies from one

course to another and from one area to another. Climatological and weather conditions also

demand different treatment of turf grasses. As more water are applied vulnerability to fungi and

other viruses’ increases necessitating a total approach to pest management or treatment? In

developing countries, chemicals are expensive yet there are financially capable clubs with

members who can afford to pay for playability and aesthetic requirements. Tradition and

practice treated turf grass management as an agricultural activity. It is now high time to

officially re-classify turf grass management distinctly from agriculture, so that the chemical

regulation of the golf industry will be specifically addressed.

1.2 Thailand

National Reports to POPs Secretariat

There are many ministries that have roles and responsibilities in controlling chemical pollution

in Thailand882 namely: MONRE; MOAC; Ministry of Public Health (MOPH); Ministry of

Finance (MOF); Ministry of Commerce (MOC) and Ministry of Industry (M-IND); Ministry of

Interior (MOI) and the Local Administration (LA). With the objective of protecting human

health and the environment, Thailand signed and ratified the Stockholm Convention on POPs on

May 22, 2002 and January 31, 2005, respectively. As Party to the Convention, Thailand prepares

National Implementation Plans (NIPs) to demonstrate how the obligations contained in Article 7,

Convention are implemented.

National Implementation Plan (2008)

The NIP provides policy and strategy frameworks as well as action plans and activities to meet

the objectives specific to Thailand. Thailand reports that there is a demand for agricultural

882 2008 National Implementation Plan of Thailand reports that the following ministries exercises chemical regulation and control, namely: The Pollution Control Department-MONRE is responsible for chemicals management in general and POPs in particular; 2) M-IND is responsible for management and control of production, import, export and having in possession of chemicals in industries; 3) MOAC have managed and controlled production, import, export, and having in possession of chemicals in agriculture (pesticides) under the Hazardous Substance Act B.E. 2535 (1992); 4) MOPH has a role and responsibility to manage and control import, export, and having in possession of toxic substances used in consumer products or some other human health purposes; 5) Ministry of Finance (MOF) is responsible for the control on customs duties and the collection of taxes on imported and exported goods on behalf of other government agencies, such as value added tax, excise tax and municipal tax. The Customs Department is responsible for prevention and control smuggling all goods and other illegal products including import, export and re-export of hazardous substances, chemical products and hazardous wastes; 6) Foreign Trade Department – MOC is responsible for the strict control of goods containing POPs chemicals by using the Export and Import of Goods Act, B.E.2522 (1979); and 7) Local Administration (LA) has a role and responsibility for local authority as assigned by the government.

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productivity and that the expansion of industry caused a rapid increase in the use of chemicals,

organic and inorganic, but imported from industrialized countries”.883 Thailand also disclosed

that in particular, during 1950s-1970s, most of the pesticides imported were organochlorines,

which included such POPs as DDT, toxaphene, endrin and heptachlor, among others. Thailand

likewise disclosed that the importation of almost all specified POPs have now been prohibited

for all uses by final governmental regulatory action for human health and environmental reasons.

Particularly, most of POPs pesticides under the Stockholm Convention have been banned for

importation since 1980s, to wit: endrin (1981), toxaphene (1983), DDT for agricultural use

(1983) and for malaria control (1994), aldrin, dieldrin, and heptachlor (1988), chlordane for

public health use (1995) and for agricultural use (2000,). Around 220 kilograms of products

comprising stockpiles of chlordane, DDT and heptachlor were reported in the inventory of POPs

pesticides and obsolete stockpiles carried out in 2005. However, there is evidence that POPs

pesticide obsolete stockpiles might be found at the old pesticide storage facilities of the local

Agriculture Extension Units (2008 NIP).

Hazardous Substances Act, B.E.2535 (1992)

The Act imposes control criteria (Section 7, 16 and 23) for import, production, transportation,

consumption, disposal and export of hazardous substances. 884 The Act sets up a license

application procedure and establishes principles for the production, location and storage under a

responsible State Agency. In case of violation, the hazardous substances will be seized upon

order of the Court and delivered to the responsible state agency for destruction or management

(Section 54, 88). Hazardous Substances are classified into four types according to their degree of

hazard and for purposes of control under Section 18, Hazardous Act.

Owing to the diverse characteristic and usage of Hazardous Substances, the Act is enforced by

several agencies, which comprised the Hazardous Substance Committee, which can be tapped to

formulate new policies and regulations. On the other hand, while there is mandatory registration

of hazardous substances (Section 23) there is no adequate protection for the workers in the golf

883 The NIP (2008) disclose that the importation has increased from 600,000 metric tones in 1978 to 3,220,000 metric tones in 1996 and to 4,600,000 metric tones in 2003. In 2003, pesticides were the chemicals imported and have increased from 5,000 metric tones of active ingredient in 1971 to 10,000, 15,000, 25,000, 30,651, and 50,586 metric tones in 1981, 1991, 1995, 2000, and 2003 respectively. 884 The term “hazardous substance” includes an explosive; an inflammable substance; an oxidizing agent and a peroxide substance; a toxic substance; an infectious substance; a radioactive substance; a mutagen; a corrosive substance; an irritating substance; other substances, whether chemical or else, which may be harmful to person, animal, plant, property or environment.

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course industry as chemicals for turf grass maintenance have not been included in the regulation.

Turf grass chemicals are classified as toxic substances and must be regulated. Although the NIP

(2008) did not mention golf courses yet some of the banned or prohibited chemicals are active

ingredients of chemicals used in turf grasses. Thailand has to specifically address the matter

since more than 222 golf courses are currently being operated in the country, and an average of

two golfing complexes are being constructed every year.

Fertilizer Act, B.E. 2518 (1975)

The Act regulates the registration, use and application of fertilizers for agricultural activities.

This thesis recommends review of this Act since it is only applicable to agricultural activities. It

is also obsolete having been passed in 1975 while there are new technologies and active

ingredients, which are not in existence when the law was enacted. Fertilizers are said to help

ensure the firmness and the health of turf grasses yet the usage must be reduced and controlled

due to varying application outcomes, i.e. toxicity, persistence and shelf life of chemicals. An

amendment or revision of the Act must be passed so that specific turf grass activity is covered.

Toxic Substances Affecting the Mental and Nervous Systems Act, (Vol. 4) B.E. 2543 (amend. 2000)

The Act provides for the confiscation of all types of substances, machinery and equipment,

vehicles and other substances or materials used in committing an offense involving toxic

substances (Section 116). As an agricultural economy, Thailand is well known for heavy

chemical usage (NIP, 2008). Moreover, Thailand does not impose import duties on fertilizers

and pesticides brought into the country and no Value Added Tax (VAT) is imposed on the

importation of chemical components into the country. 885 The incentives create greater

opportunity for golf course operators to gain access to needed chemicals for turf grass

management.886 A few golf clubs annually hosts various international tournaments887 and to

ensure greater playing quality, large quantities of chemicals are needed to improve turf

condition. Navatanee Golf Club Course Superintendent Pracha Boonsompong counter argues

that golf clubs in Thailand spend less on chemicals due to prohibitive cost, arguing that rich 885 The Revenue Code of Thailand provides for VAT exemptions on certain activities such as the sales and import of unprocessed agricultural products and related goods such as fertilizers, animal feeds, pesticides, etc. and goods exempted from import duties under the Industrial Estate law imported into an Export Processing Zones (EPZs) and under Customs Tariff Act, chap.4. 886 Personal interview with Pracha Boonsompong, Golf Superintendent of Navatanee Golf Club. Transcript of interview is attached as Appendix “31”. 887 The tournaments include the Royal Trophy, Asian Tour International, Thailand Open (golf), etc.

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countries like US, UK and Singapore use chemicals more heavily than developing countries like

Thailand and Philippines.

However, this thesis is of the view that although chemical usage generally is rampant in highly

developed economies there are golf courses in developing countries which hosts both minor and

major golf tournaments. The tournaments necessitate chemical treatments to ensure the optimum

playing quality in golf courses. Moreover, turf grass maintenance is costly and prohibitive and

the financial capacity of the club and its members only places them in a higher probability to

adopt a policy of heavy chemical usage. Therefore, it is absolutely necessary to put in place the

regulatory framework for chemical use and application.

Admittedly, Thailand established a legal framework for pesticide regulation albeit it is limited to

agricultural activities. In fact, the Pesticide Regulation Division (PRD) - Office of Agricultural

Regulation (OAR), Department of Agrarian Reform888 regulates the production and sale of toxic

substances as mandated under the Hazardous Substances Act and the production and sale of

fertilizers under the Fertilizer Act. The Ministry of Agriculture and Cooperatives (MOAC), of

which the Department of Agriculture (DA) is an attached agency, is tasked to oversee the

operation and implementation of agricultural activities, specifically farming and food

production.889 Golf course development and operation is not included under this mandate. There

is likewise no delegated authority to the PRD-DA to oversee golf course regulation except when

manufacturers or suppliers of chemicals apply for approval of product labels for turf grass use,

in which case the PRD-OAR either approves or denies the application.890

The Planning Specialist891 at the Office of Planning and Technical Division for International

Cooperation – Department of Agriculture, admitted that there is no office, which regulates

pesticide usage in golf courses in Thailand. Another specialist from the Planning and Technical

888 Personal interview with Supanon Sirichuaychoo, Chief, Pesticide Regulatory Sub-Division, Office of Agricultural Regulation, Department of Agriculture, 30 June 2009, Chatuchak, 10900 Bangkok. Transcript of interview is attached as Appendix “32”. 889 Id. 890 Sirichuaychoo disclosed that among the chemicals regulated are ingredients or mixed components, to wit; iprodione 50% SC on leaf spot; trinexapac-ethyl 12% ME uses as a Plant Growth regulator (PGR); fipronil 0.1 per cent GR (granular) insecticide for ants. 891 Personal interview with Chawee Lomlek, International Cooperation Group, Planning and Technical Division, Department of Agriculture, June 30, 2009, Paholyothin Rd., Chatuchak, 10900 Bangkok. Transcript of interview is attached as Appendix “33”.

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Division, DA also confirmed the disclosure.892 The Managing Director of Procrop893 disclosed

that his company supplies pesticides, fertilizers, herbicides, fungicides, etc. to more than 181

golf courses in Thailand. He also claims that, “all chemicals are hazardous and toxic to pests or

environment and that the dosage and chemical rate of application must be strictly followed by

applicators”. He likewise claims that, “all Procrop products are imported mainly from the United

States (US) while Thailand does the blending of chemicals to suit specific needs”. According to

Dr. Bijaisoradat, the application outcomes (toxicity, persistence and shelflife) of the blended

formulation vary from country to country depending on the temperature, weather conditions and

other factors.

There are no record or data whether tests are conducted in golf courses that would conclusively

show the outcomes of the application of the blended formulation in Thailand. Also the Thai

Crop Protection Association (TCPA) refuses to share any data on chemical importation

whatsoever by stating that the data is prepared for members of TCPA only.894 This paper was

referred to check the Department of Agriculture for possible data collection. However, the

department denied possession of any chemical application data in golf courses. Meanwhile, due

to lax reportorial system and voluntary submission of chemical rate of application, this paper

failed to obtain data on application outcomes in golf courses.

The Pollution Control Department (PCD) - MONRE exercises control, prevention, reduction and

elimination of pollution in the environment. Nevertheless, there is no pollution control standard

for golf courses in Thailand. The PCD claims that around ten years ago, the agency had

campaigned for the prohibition of POPs in golf courses, which are massively used in turf

grasses.895 As there was no institutional mechanism established for the regulation much less for

monitoring of the industry, the golf courses remained outside of regulation. The Director also

disclosed that golf courses were being mentioned in news accounts as pollutive industry owing

to its heavy chemical usage but since there was no scientific study made about the industry, no 892 Personal interview with Dr. Margaret C. Yoovatana, Policy and Planning Specialist, International Cooperation Group, Planning and Technical Division, Department of Agriculture. Transcript is included in Chawee Lomlek’s interview. 893 Personal interview with Dr. Niddhi Bijaisoradat, Deputy Managing Director, Procrop Group of Companies, July 14, 2009, at Navatanee Golf Club, 22 Navatanee Rd., Kwaeng Kannayao, Khet Kannayao, Bangkok, 10230. Transcript of interview is attached as Appendix “34”. 894 An email was received on September 10, 2009 from Sayang Sawanduan (tcpa@tcpa.or.th) of TCPA. Copy of email is attached hereto as Appendix “35”. 895 Personal interview with Sunee Piyapanpong, Pollution Control Department, Director of Wastes and Hazardous Substances Management Bureau - MONRE, July 3, 2009, 92 Phaholyothin 7 Rd., Phayathai District, Bangkok 10400, Thailand. Transcript of personal interview is attached as Appendix “27”.

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regulatory action was taken by the PCD.896 Despite the fact that MONRE-PCD obtained initial

information on this aspect, MONRE appears to ignore the sector and its impact on the

environment. No government agency was designated to either inspect or monitor nor investigate

the golf courses.

The NEQA 1992 is undergoing evaluation and review as part of the revision process currently

being undertaken, and that there are still many discussions on the exclusions and inclusions on

the EIA process. This could have been an opportunity for the MONRE to conduct policy review

of the golf course industry as a separate and distinct activity from agriculture. However, the PCD

official would not recall if golf courses have been considered in the discussion. Clearly, the

continued exclusion of the industry from policy discussions shows a complete indifference to the

environmental impact of this huge economic activity. Ignorance of the many facets of golf

course development and operation is a disputable issue considering the fact that knowledge

information and advanced technology in this globalized era has reached a stage where

accessibility can be obtained quickly. There are precisely 222 golf superintendents with

expertise in turf grass maintenance in Thailand897 who could be tapped as resource persons of the

MONRE. These are the issues and constraints Thailand must address as the government of

Thailand has both the capacity and expertise to collaborate with the golf course industry to

identify ecological problems. Finally, the mis-classification of turf grass management as an

agricultural activity resulted either in the under-regulation or non-regulation of the golf course

sector. Both the MONRE and MOAC have admitted confusion and/or lack of information about

golf course’s activities.

1.2 Viet Nam

National Report to POPs Secretariat

The Stockholm Convention on POPs was signed by Viet Nam on May 22, 2001, ratified on July

22, 2002 and entered into force on May 17, 2004. To implement the Convention, Viet Nam

896 The Director claims that, “MONRE received unconfirmed reports that golf clubs would spray toxic chemicals, which in just two days the effect disappears with no traces to be seen or tested, and the only persons who can talk about the activity are the applicators and maintenance personnel who sprayed the chemicals or those who were affected”. Obviously, no samples were taken, not enough information obtained and there were no investigations made. 897 Each golf course employs at least one golf course superintendent. Golf Superintendents are required to have a degree in agriculture or any related field. Most of them are also registered or accredited as members of the United States Golf Course Superintendents Association of America (USGCSAA), which regularly hosts actual training and seminar, in collaboration with the R and A and the National Golf Associations.

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developed its National Implementation Plan (NIP) 2006 to safely manage, reduce and finally

eliminate POPs. The NIP 2006 898 seeks to develop and finalize policy, legislative and

institutional frameworks for effective management of POPs in Viet Nam; strengthen

technological and financial capacity and information management for the prevention, control

and safe disposal of POPs. Viet Nam also commits to reduce, treat and finally eliminate

stockpiles of POPs pesticides by the year 2010.

Law on Chemicals, No. 06/2007/QH12

The Law899 regulates chemical activities, including the registration of new chemicals, labeling,

packaging and product usage safety. The National Institute for Soils and Fertilizers (NISF)900

was established with mandate to “conduct research, validation and application of new

technologies to protect, stabilize and improve soil fertility, production, testing and verifying

quality of fertilizers and other nutrient-containing products”.

In Viet Nam, a number of government policies encourage agro-chemical use where chemicals

are seen as production enhancers for agricultural products. Agro-chemicals, both synthetic and

organic, play an important role in agriculture-based economy of Viet Nam.901 However, only

chemical application in agricultural activities is regulated. In fact, the regulation per se is limited

and inadequate, if not weak. The Law on Environmental Protection (2005) mandates all

enterprises to have wastewater treatment facilities902, including golf courses.903 During the

August 2010 inspections conducted by MNRE in golf courses all over the country a few golf

898 NIP 2006 on POPs by Viet Nam is available at http://www.pops.int/documents/implementation/nips/submissions/NIP_Vietnam.pdf. Accessed on January 2, 2011. 899 The Law on Chemicals was approved on November 21, 2007, published in the Official Gazette dated on January 14, 2008 and come into effect since July 1, 2008. 900 NISF is an attached agency of the Ministry of Agriculture and Rural Development. Visit http://www.fadinap.org/vietnam/extension.html. Accessed on February 3, 2010. 901 Pesticide Action Network on Viet Nam Pesticide Registration, available at http://www.pesticideinfo.org/Detail_Country.jsp?Country=Viet%20Nam. Accessed on January 5, 2011. The data presented include only a list of active ingredients legally registered for use in Viet Nam. 902 LEP, chap. II, s.16. Read www.idrc.ca/uploads/user-S/10929855381LQThongRR1.doc. Accessed on January 5, 2011. 903 Report of Viet Nam to UNESCAP, available at http://www.unescap.org/esd/water/publications/CD/escap-iwmi/wastewater_management/Wastewater%20management%20and%20water%20environment%20in%20Vietnam.pdf. Accessed on January 5, 2011.

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clubs were discovered to have failed to operate their existing waste treatment plants and were

imposed penalties.904

Critically, Viet Nam was constructing a coherent institutional framework for environmental

management and policy yet it considers and prioritizes national economic development and

declares that it is much more important than the environment”. 905 But “when these

environmental measures were harming economic growth they were easily set aside by the

government leadership”.906 The golf course industry in Viet Nam is growing and is fast

developing as a major investment arena. In this aspect, Viet Nam should strictly enforce its

chemical pollution laws and formulate new policies to regulate chemical application in golf

courses.

1.4 Singapore

National Report to POPs Secretariat

Singapore deposited its instrument of accession to the POPs Convention on May 24, 2005 and it

came into force on August 22, 2005. In 2007, Singapore submitted to the Secretariat its National

Implementation Plan and commits “to take measures to eliminate or reduce the release of POPs

into the environment”. These measures apply to the import, export, use and disposal of POPs.

The NIP (2007) reports that the ten POPs, namely; aldrin, chlordane, DDT (1, 1, 1-trichloro-2, 2-

bis (4-chlorophenyl)ethane), dieldrin, endrin, heptachlor, mirex, toxaphene, hexachlorobenzene

and PCBs (polychlorinated biphenyls) have been banned from import for use in Singapore since

the mid-1980s.

The NIP (2007) discloses that, “the chemical industry is one of the key pillars of Singapore’s

economy, with a vibrant manufacturing sector where large amounts of chemicals are being

imported and distributed for various purposes. The Environmental Protection Division (EPD) –

National Environment Agency (NEA) is the designated competent authority in charge of the

control of hazardous substances in Singapore while the Pollution Control Department (PCD)

controls environmentally hazardous chemicals.

904 Golf Courses Face Grilling, available Vietnam.Net at http://english.vietnamnet.vn/Environment/201008/Golf-courses-face-green-grilling-928961/. Accessed on March 3, 2011. 905 Frijns, J., Phuong P.T. and A.P.J. Mol, Ecological Modernization Theory and Industrializing Economies: the Case of Viet Nam, In Mol, A.P.J. and Sonnefeld, D.A. (eds) Ecological Modernization Around the World – Perspectives and Critical Debates, London: Frank Cass, 2000. 906 Id.

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Control of Plants Act (CPA), Cap. 57A (Revised 2000) Part III, Control of Cultivation of Plants In Singapore, there is no specific law or regulation on chemical usage for turf grasses in golf

courses. There is no regulation for the use of fertilizers. However, the Control of Plants Act

regulates pesticide use in Singapore. Part III, Control of Cultivation of Plants, Control of Plants

Act provides that “the Act shall not apply to (a) the cultivation of any plant for domestic and

home gardening purposes; and (b) the cultivation of any plant which is not for sale (Section 9).

The exclusionary provision with prerequisites under items (a) and (b), places turf grass

management outside the ambit of pesticide regulation. The aforementioned Act is very specific

in identifying the scope and application of the regulation. As turf grass cultivation in golf

courses is “not domestic or home gardening”, neither it is “cultivation for commercial (for sale)

purpose”, the law therefore is not applicable to the golf course sector. As previously asserted,

turf grass management is theoretically, not agriculture.

It was disclosed in an informal interview907 that chemicals applied in golf courses are, in

practice, registered by AVA and that golf courses are licensed to only apply registered

chemicals, which can be bought in registered and accredited companies. Actually, there is the

Control of Plants (Registration of Pesticides) Rules, which regulates this. Hence, chemical use

in golf courses in Singapore may be considered as inadequately regulated. Although there is a

prohibition on the use of pesticides in the cultivation of any plants without first registering it

with the Director-General - AVA908, the prohibition did not include cultivation of turf grasses in

golf courses. In turf grass management various “cultural practices” are observed, including but

not limited to, chemical application of fertilizers, pesticides, herbicides, fungicides, etc.

907 Rodney McKeown, Golf Course Superintendent, notes that in six years that he has applied under his name and license for the Kranji Sanctuary Golf Course, he discovered other toxic chemicals, which are being sold and used but are not registered or required to be registered in Singapore by AVA. When he inquired about these chemicals, he was advised that, “when chemicals are not required to be registered, it remains as such unless a law is passed”. 908 Cap. 57, s.11, cl.1 states that “no person shall use any pesticide in the cultivation of any plant unless (a) the pesticide is registered with the Director-General; and (b) he is a certified pesticide operator or the use is supervised by a certified pesticide operator. Clause 2 states that, “any person who uses any pesticide in the cultivation of any plant shall ensure that (a) the pesticide is properly stored in the prescribed manner; (b) the pesticide container is disposed of in the prescribed manner; and (c) the pesticide residue on any plant cultivated does not exceed the prescribed level”.

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Likewise, the Act mandates that there should be no cultivation of plants without a license.909 In

Singapore, Section 12, CPA requires the appointment of a pesticide operator910 who must be

certified by the Director General - AVA. However, this provision can be interpreted to apply

only to applicators or operators involving agricultural activities as the Act itself has defined the

scope and coverage of its applicability. Turf grass management is theoretically excluded from

the coverage. In Singapore, AVA exercises regulatory authority regarding pesticide application,

which in practice, golf course operators submit to its control and jurisdiction. It should have not

been the case since turf grass management is theoretically not considered as agriculture, and

hence, the Act does not apply.

Section 48, CPA also offers exemption from the application, and that “the Minister may,

generally or in any particular case, ‘subject to such conditions’, exempt any person from all or

any of the provisions of the Act or any rules made (emphasis supplied). The phrase “subject to

such conditions” is vague as it failed to provide standard in which the power maybe exercised.

The provision likewise left to the Minister the exercise of “discretion” in handing out

exemptions. What are those instances, which may be exempted? Why is there a need to exempt

persons from the application of the law?

Control of Plants (Registration of Pesticides) Rules

Section 48 stipulates that any pesticide not registered with AVA is not allowed in local

agricultural farms.911 Since golf courses are not considered as “agricultural farm” and turf grass

management is not agriculture per se the Rules do not apply. Although the purpose of the

registration of pesticides, together with certification of pesticide operators, is to ensure

environmental and workers’ protection, the scope and coverage of the Rules do not extend to

golf course’s turf management. Therefore, the AVA needs specific legislation in order to

909 Cap. 57, s.12 states that, “no person shall cultivate any plant on any premises except under and in accordance with a license issued by the Director-General of AVA.” 910 The provision states that “a person who desires to be certified as a pesticide operator may make an application to the Director-General, who may certify a person as a pesticide operator if he is satisfied that applicant possesses the prescribed qualifications and practical experience”. Note that the pesticide operator mentioned here is totally distinct from the registered Pollution Control Officer (PCO) in the Philippines, as provided under DENR Administrative Order No. 26, Series of 1992. A PCO may or may not be a registered pesticide operator. 911 Registration of Pesticides Rules, Cap. 57A, s.3, cl. 1 states that “an application for the registration of pesticide for use in the cultivation of plants may be made by any person who manufactures, imports, distributes, supplies or sells the pesticide and carries on business in Singapore”.

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regulate golf courses. The need to separately provide for the regulation, specifically on turf grass

maintenance is absolutely necessary as the activity is unique and totally distinct.

Although the PUB conducts once a month random quality test of water catchments inside the

golf courses, the spot tests reports are not furnished to but are kept confidential, according to

Kranji Sanctuary Golf Course Superintendent McKeown. There is no regulation regarding the

cleanup of equipment used in the application of chemicals, e.g. wash bay areas. This thesis

interviewed golf course officials who raised these concerns, challenging PUB to “conduct water

quality testing in water catchments as high concentration of metals such as zinc and nitrates can

be smelled”.912 For example, a known fungicide Daconil is highly popular among course

superintendents, and are widely used on tees, fairways, greens; non-residential and ornamental

turf grasses, including sod.913 It is considered as the “most effective pesticide yet it is also the

most toxic”.914 It is therefore necessary for golf courses to install wash bay areas and rinse water

treatment facilities to eliminate the toxicity brought by this active ingredient. It has also been

noted915 that the ranges of water chemical properties in samples taken from the ponds on golf

courses in catchment areas are generally “high in phosphorus, and when phosphorus is already

held in the soil, phosphorus fertilization will not cause an improvement to turf grass quality.916

Control of Vectors and Pesticides Act, Cap. 59 (Revised 2002)

This Act requires that pesticides and vector repellents must be registered before it can be sold,

supplied and used.917 It is also mandates that “an application for the registration of a pesticide or

vector repellent shall be made to the Director-General after payment of the prescribed fee,

912 Personal interview with Rodney McKeown, Kranji Sanctuary Golf Course. 913 Daconil controls fourteen diseases, including dollar spot, brown patch, gray leaf spot, algae, leaf spot, melting out, anthracnose, rust, Fusarium patch, Gray snow mold and red thread. Visit Syngenta website at http://www.syngentaprofessionalproducts.com/prodrender/index.aspx?prodid=400. Accessed on November 3, 2009. 914 The active ingredient in Daconil is chlorothalonil. While non-toxic to mammal and bird species, it is toxic to fish and marine life. Visit http://www.gardentech.com/Dac_productinfo.asp. See http://www.pestproducts.com/daconil.htm. Both sites accessed on December 24, 2010. Dr. Niddhi Bijaisoradat, Manager of ProCrop in Thailand, claims that, “all chemicals are toxic, depending on its shelf life”. 915 Micah Woods PhD, Asian Turfgrass Centre, available at http://www.blog.asianturfgrass.com/2009/08/the-2nd-igolfsga-singapore-golf-and-environment-forum-.html. Accessed on February 7, 2010. 916 Id. 917 Control of Vectors and Pesticides Act, Cap. 59, s.5 states that, “no vector control operator, vector control technician or vector control worker shall use any pesticide for the purpose of carrying out any vector control work unless the pesticide is registered”.

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supported by particulars, information and documents and samples”.918 The Act does not apply to

the registration of chemicals used in golf courses. In a letter919, NEA categorically stated that,

“AVA controls pesticide use is confirmed, and that “fertilizers/ chemicals such as fungicides;

herbicides; insecticides etc. used in golf courses are agricultural grade chemicals and are not

under the Environmental Health Departments’ (EHD) purview”. The letter “pointed out to AVA

for further research”.

2008 Guidelines on Allowable Chemical Usage (List of Fertilizer/Chemicals (Common Names/Trade Names) The PUB issued the Guidelines for use in Golf Courses within Water Catchments, WSP

90504/44. 920 The guideline however applies only to golf courses situated within water

catchments. There are only nine out of the twenty-six golf courses in Singapore, which are

located within water catchments.

Singapore provides for the regulation of chemical usage and application in agricultural activities

intended for commercial purpose. There is no law, which regulates chemical usage in golf

courses – an activity, which is not agricultural. Although the PUB issued guidelines for

allowable limit of chemical application for golf courses, it only applies to golf courses situated

within water catchments. Therefore, it can fairly be asserted that Singapore has inadequately

provided for the regulation of chemicals in golf courses.

H. Maintenance and Operation Stage

1. Environmental Protection, Health, Sanitation, Waste Disposal and Management

Golf courses have to manage, collect and properly dispose of their garbage, grass clippings, fallen leaves and twigs, including food wastes from the restaurants. They have to ensure the sanitation, clean air and water in the workplace, the health of the players, guests and workers. Golf courses must also ensure that it will source out turf management materials (sand, grass) and components (equipment and machineries), legally and regularly. This thesis reviews the laws, regulation, decrees and policies of the government as regards golf courses in these contexts.

918 Cap. 59, s.6 speaks of application for registration of pesticides and vector repellents. 919 A Kannan, Environmental Health Executive, Environmental Health Department - NEA wrote to this author in reply to her query that EHD regulates public health pesticides intended for use against the five vectors (namely mosquitoes, flies, cockroaches, rodents and rat fleas). Copy of Email is attached as Appendix “36”. 920 2008 PUB Guidelines is attached as an Appendix “37”.

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1.1 Philippines

Mining Act, Republic Act 7942 (1995) Proclamation 66 Executive Order 200 DENR Administrative Order 2000-39 (2000) Golf courses use sand, silica and crushed corals for bunkers and sand capping. Sand and silica

are taken from quarry sites. In the Philippines, quarrying is regulated under the Mining Act,

which instituted mineral resources exploration, development, utilization and conservation.

Proclamation 66 declares the Lahar-affected921 Rivers and Embankment as Environmentally

Critical Areas (ECA) and as Mineral Reservation directly supervised and controlled by the

government. The proclamation prohibits the quarrying of sand brought about by massive soil

erosion in lahar areas of Central Luzon. Meanwhile, EO 200 authorizes the issuance of Onshore

Special Minerals Extraction Permits to qualified government entities/instrumentalities for

government projects while DENR AO 2000-39 provides Rules and Regulations in the Issuance

of Onshore Special Minerals Extraction Permits (SMEP) to Qua1ified Government

Entities/Instrumentalities for government projects pursuant to Section 4, EO 200.

To be able to quarry a site a Quarry Permit must be obtained under Section 43, RA 7942 while

Section 46 provides for Commercial Sand and Gravel Permit. Any person undertaking

exploration work without the necessary exploration permit shall be penalized by a fine not

exceeding PHP50,000. (USD 1,202.20) (SGD1,531.3)922 as provided under Section 102 on

Illegal Exploration while any other violation of RA 7942 and its IRR shall constitute an offense

punishable with a fine not exceeding PHP5,000.00 (USD120.22) (SGD153.13) as provided

under Section 110.

Sewerage System, Waste Water Ecological Solid Waste Management Act, RA 9003

Water supply and sewerage systems are critical issues. More than 95% of wastewater in urban

areas is discharged untreated into the ground, canals, and waterways, according to the 2008 ADB

Country Environmental Analysis. This makes groundwater supply highly contaminated.

Meanwhile, the Solid Waste Management Act calls for the “institutionalization of national

921 Lahars are volcanic ashes and fragments on the volcano slopes and are subsequently washed out in lowland areas in a giant and fast moving mudflows. Lahar covered several towns and cities, which carried half of the deposits off the volcano. Lahars of Mt. Pinatubo, United States Geological Survey Fact Sheet No. 114-97, available at http://pubs.usgs.gov/fs/1997/fs114-97/. Accessed on May 27, 2013. 922 Foreign exchange as of May 27, 2013.

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program to manage the transfer, transport, processing, and disposal of solid wastes”. It is

considered the most significant legislation on solid waste management. Under RA 9003, the

DENR sets guidelines and targets to reduce the volume of solid waste through various waste

reduction measures (Section 2).

The DENR is designated to be the primary enforcer of the Act, in coordination with LGUs,

private sector groups and waste generators. It also granted citizens the right to sue under Section

55 and this power extends liberally to ordinary people who report violations of illegal garbage

dumping. The filing fee of civil cases in court has been exempted while Section 53 provides for

Suits and Strategic Legal Action against Public Participation (SLAPP). Meanwhile, Section 17,

Local Government Code923 mandates that Barangays shall provide services and facilities related

to general hygiene and sanitation, beautification, and solid waste collection.

The Act is very relevant in this thesis. A standard golf club includes a golf course and a

clubhouse, with restaurants and tee houses. The massive wastes generated by these facilities

necessitate the establishment of treatment facilities whereby wastes are efficiently managed and

treated. Local government units in the country have garbage collection woes, such as lack of

dump sites and collectors, while most golf courses have large areas where they can treat, recycle

and re-use their wastes. Necessarily, golf courses have to compete with domestic waste

management and this creates problem with the public, who perceives golf courses have the

capability to clean their backyards. There is no law, which requires the setting up of waste

treatment facilities in golf courses except the conditionality stipulated in the Environmental

Compliance Certificate (ECC) upon the approval of the EIA application by the DENR The ECC

is issued by the DENR-EMB. At most, golf clubs pay garbage collectors to remove solid wastes.

Some do not even set aside wash bay areas to clean the tools and equipment used during

chemical application. Rinse water laced with chemicals is often dumped in open canals. The

wash bay areas should be connected to a waste treatment facility to be cleaned before it is 923 Section 17 further mandates that the Municipality shall provide for the inter-barangay irrigation system; water and soil resource utilization and conservation projects, integrated social forestry programs; management and control of communal forests; establishment of tree parks, greenbelts, and similar forest development projects, solid waste disposal or environmental management system and services or facilities related to general hygiene and sanitation; communal irrigation, small water impounding projects and other similar projects; artesian wells, spring development, rainwater collectors and water supply systems; seawalls, dikes, drainage and sewerage. On the other hand, the Province provides for the enforcement of forestry laws limited to community-based forestry projects, pollution control law, and other laws on the protection of the environment; infrastructure facilities funded out of provincial funds including, but not limited . . . inter-municipal waterworks, drainage and sewerage, flood control, and irrigation systems; reclamation projects.

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released. Although a few golf clubs in the country have waste treatment facilities these were

established as a voluntary undertaking. There is no law or guideline, which requires waste

treatment plants in golf courses.

Clean Air Act, RA 8749 (1999)

The Act outlines measures to reduce air pollution by incorporating environmental protection into

its development plans. The Act further relies particularly on the polluter pays principles (PPP)

and other market-based instruments to promote self-regulation. It sets emission standards for all

motor vehicles and issues registration only upon demonstration of compliance. It also a) issues

pollutant limitations for industry; b) polluting vehicles and industrial processes must pay a

charge; c) those that installed pollution control devices or retrofitted existing facilities to comply

with emissions standards can apply for tax incentives of accelerated depreciation, deductibility

of R&D expenditures or tax credits, and are also exempt from real property tax on the machinery

or equipment; d) establishes an R&D program for air pollution reduction mechanisms and

technologies; e) bans incineration and smoking in public places.

National Pollution Control Decree, PD 984 (1976) DENR AO 26, Series 1992 Book IV, Labor Code of the Philippines, PD 442 (1974) (Health, Safety and Social Welfare) and the Occupational Safety and Health Standards

DENR AO 26 requires that Pollution Control Officers (PCOs) be appointed and educated on the

different environmental laws, rules and regulations, policies, programs, duties and

responsibilities. Section 1 stipulates a national policy to effectively enforce the Pollution Control

Decree, PD 984 (1976). It mentions that the DENR “establish linkages with industrial

establishments, which are potential and actual sources of pollution and the local government

agencies”. The PCO must be licensed and registered under Section 3, and that industrial,

commercial and manufacturing establishments and private entities, whose activities are potential

and actual sources of water, air, and land pollution, shall each appoint and/or designate a PCO.

Likewise, all provincial, municipal and city governments, shall each appoint/designate the same.

Such appointment/designation shall be subject to accreditation by the Department in accordance

with Section 8.

The Labor Code protects the workingman and ensures workplace safety. Meanwhile, the

objective of Occupational Standard is to protect every workingman against the dangers of

injury, sickness or death through safe and healthful working conditions, thereby assuring the

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conservation of valuable manpower resources and the prevention of loss or damage to lives and

properties, consistent with national development goals and with the State's commitment for the

total development of every worker as a complete human being.

The PCO is an essential complement in the maintenance and operation of golf courses,

particularly on the use of chemicals. Section 7 mandates the periodic reporting by PCOs on the

operation and maintenance of pollution source and control facilities. The submission of false

documents and/or reports results in the suspension or revocation of the accreditation of the PCO

under Section 13. Nevertheless only a few golf clubs operate with registered PCOs. There is

therefore an utmost necessity for the strict enforcement of AO 26 with punitive sanctions

(criminal, civil or administrative) upon failure of compliance. AO 26 however, must be tied up

with the new classification of turf grass management as a commercial activity. Meanwhile, the

outright ban on incineration did not diminish pollution but has in fact aggravated the mounting

garbage in the city centres. Golf courses also face this kind of challenges, particularly the

disposal of waste.

1.2 Thailand

National Health Act, B.E. 2550 (1992

The Act924 provides that every person has the right to live in an environment and condition

favorable to health”.925 It also stipulates that every person has the right to request and participate

in making assessments, which have effects on health. There is also a right to information and to

receive explanation or reasons from government agencies before permission or processing of

project or any activity is given, which may affect health. The impact of chemical activities,

specifically turf grass maintenance, on the health of ground maintenance workers needs to be

addressed. However, there are no scientific studies or data collected in golf courses in Thailand

that would show health risks and issues involving turf grass management and operation. Owing

to the inadequate regulation of golf courses, the government has not initiated any study that

would investigate the chemical usage and its effect on the health of workers in the industry.

Public Health Act, B.E. 2550

924 Royal Thai Gazette, Vol. 61, No. 5, May 2007. 925 Visit the Ministry of Health website at http://eng.moph.go.th/HealthSit/index.php. Accessed on August 20, 2010.

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Section 16 provides for the collection, transportation and disposal of waste and rubbish in local

administration and regulates nuisance activities that cause harmful health effects

Public Cleanliness and Orderliness Maintenance Act, B.E. 2535 (1992)

Thailand also enacted this Act, which prohibits dumping of refuse in waterways. This Act has

been decentralized for implementation to the Local Administration.

Royal Irrigation Act (1992)

The Act also prohibits dumping of garbage or discharging polluted water or chemicals into

irrigation canals. There is no law, which requires the installation of waste treatment and rinse

water facilities in golf courses. It is absolutely necessary that chemical residues are removed and

cleaned up before they are released in open canals and areas, otherwise, the rinse water might

contaminate the ground or poison tributaries of water bodies. Thailand has provided for

environmental protection, health, sanitation, waste disposal and management. However, there is

no mention of mandatory installation of wastewater or rinse water treatment facility for golf

courses.

1.3 Viet Nam

Law on Environmental Protection 2005

The laws of Viet Nam in this sub-topic have been included in the Law on Environmental

Protection, which is the framework law on environmental protection and management. This

thesis argues that waste disposal and management, health and sanitation must be maintained

inside the golf courses. In Viet Nam, organizations and individuals engaged in waste generating

activities have waste management responsibilities as provided under Section 66, Chapter VIII,

Waste Management, Law on Environmental Protection. Golf courses are required to install

waste treatment facilities and are required to operate and use the facility, otherwise the

environment agency will impose penalty for breaches of the law.926

1.4 Singapore

Environmental Protection and Management Act (EPMA), Cap. 94A

926 Tam Dao Golf Course and Resort was imposed penalty for violating waste treatment facility non-use. Visit Vietnam Investment Review (2010) http://timeout.vir.com.vn/Client/VIR/index.asp?url=content.asp&doc=17547. Accessed on May 27, 2013.

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The Act927 regulates air, water and land pollution control, hazardous substances and noise

control. The Director-General or officer has the power “to examine, secure attendance (Section

44) and arrest (Section 45) when he has reason to believe that an offense has been committed”.

The EPMA applies with regard to environmental protection and management. There is no EIA

legislation in Singapore but there are two provisions under the EPMA which are deemed the

“closest approximation” to EIA - Section 26, which mandates “the Director-General to require

the owner or occupier of hazardous installations to carry out ‘impact analysis studies’” and

Article 36 on pollution control where the “Director-General may require any person intending to

carry out any activity that is likely to cause substantial pollution of the environment or increase

the level of such pollution, to carry out a ‘study’ on environmental pollution control and related

matters” .928

This liberal interpretation of Section 26 and 36, EPMA929 will not qualify in the sense that an

EIA necessitates a “representative” public participation whereby stakeholders are consulted in

decision-making processes involving an activity with environmental impact on their lives and

livelihood. At most, the impact study mentioned maybe used as a distinct “mechanism” to

require golf courses to predict the ecological impact of harmful activities, which are eventually

shared to the general public for an informed decision-making. However, the impact study should

not be interpreted as an equivalent of EIA. Not only that, the impact study under the EPMA

could not be considered to have observed Agenda 21’s requirement of transparency and

accountability. Moreover, Sections 26 and 36 of the EPMA does not apply to golf courses since

the EPMA mentions hazardous installations and related matters. The provision on quantitative

risk assessment under the Code of Practice on Pollution Control (Revised 2004) does not apply

927 The Clean Air Act (1972) was replaced by EPCA (1999) and now is renamed Environmental Protection and Management Act (EPMA), Cap. 94A (2008). 928 The complete text of Section 26 states that “by notice in writing served on the owner or occupier of any installation, whether fixed or mobile, which is used or intended to be use to carry out activities involving the storage, handling and use of hazardous substances”. Any person who fails to comply with any notice made under subsection (1), (2) or (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding SGD 20,000. 929 Lin Heng Lye, Summary Assessment, Environmental Pollution Laws in Singapore, International Environmental Law Committee- Newsletter Archive, American Bar Association, Volume 5, No. 1, February 2003. Lye wrote that, the “nearest approximations are contained in Sections 26 and 36, EPMA”. Both provisions are quite different from requiring an environmental impact assessment as they focus only on industries or projects with high polluting capacity whereas EIAs require a comprehensive, integrated and detailed study of all potential impacts on the environment, including ecological and sociological impacts. It is also a hallmark of EIA laws that they allow some measure of public participation, whereas Sections 26 and 36 do not involve third parties at all. Available at http://www.abanet.org/environ/committees/intenviron/newsletter/feb03/singapore/. Accessed on March 2. 2008.

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to golf courses as it mentions hazardous chemicals and toxic gases. These findings merely show

that it is now timely for Singapore to adopt an EIA legislation as the groundswell of support for

public consultation has been increasing930.

National Environment Agency Act, Cap. 195 Sewerage and Drainage Act, Cap. 294 Code of Practice on Sewerage and Sanitary Works Code of Practice on Sewerage and Sanitary Works issued under Section 3, Sewerage and Drainage Act Cap. 294 The National Environment Agency Act created the National Environment Agency (NEA), which

is tasked with pollution control, solid waste management, prevention and control from vector

borne diseases, public hygiene and cleanliness. The Sewerage and Drainage Act, Cap. 294),

provides for the construction, maintenance and improvement of sewerage and land drainage

systems in order to regulate the discharge of sewage and trade effluent. The discharge of

wastewater into public sewers and watercourses is strictly controlled under the EPMA, Cap.

94A; the Sewerage and Drainage Act, Cap. 294, and their subsidiary laws.931 The Code of

Practice on Sewerage and Sanitary Works contains information on the minimum requirements

in the design and construction of sewerage and sanitary works. The requirements stated are also

supplementary to the Sewerage and Drainage (Sanitary Works) Regulations. There is also a

Code of Practice on Surface Water Drainage, which contains information on the basic planning,

design and procedural requirements for surface water drainage, and specifies the minimum

engineering requirements for the provision of functional facilities for surface water drainage.

The PUB acknowledges that Singapore is characterized by “abundant rainfall, high temperature

and humidity thus, coupled with high population density, waterborne diseases can spread easily

and quickly unless a high standard of public health is maintained”. Proper collection, treatment

and disposal of domestic and industrial wastewater are therefore necessary to prevent the

pollution of watercourses, reservoirs, rivers and the sea, and thus, the spread of diseases.932

There is a Code of Practice on Sewerage and Sanitary Works issued under Section 3, Sewerage 930 Read Ho Kai Leong, Citizens Participation and Policy Making In Singapore, Conditions and Predicaments, JSTOR, Asian Survey, University of California Press (2001) available at http://www.jstor.org/discover/10.2307/3021155?uid=2129&uid=3738992&uid=2&uid=70&uid=4&sid=21102258535231. Also read, Remaking Public Participation, The Case of Singapore at Asian Social Science (2008), available at http://www.ccsenet.org/journal/index.php/ass/article/view/1365. Accessed on May 27, 2013. 931 The enactments also include the Environmental Protection Management (Trade Effluent) Regulations (S. 159/99 and S. 265/05 Sing); The Sewerage & Drainage (Trade Effluent) Regulations (S.170/99 Sing); the Sewerage and Drainage (Surface Water Drainage) Regulation (S. 169/99 Sing). 932 PUB at http://www.pub.gov.sg/general/Documents/COPSSW%20nov2004.pdf

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and Drainage Act, Cap. 294, which aims to guide the Qualified Persons in the proper planning

and design of the sanitary and sewerage system. Singapore has adopted a national policy of

waste incineration. Currently, there are five incineration plants operating in Singapore.933

Meanwhile, the Environmental Public Health Act, Cap. 95 also contain provisions on

environmental protection and management by providing for “public cleansing and removal of

refuse”. The Act also provides that the “Director-General of Public Health may provide, acquire,

construct and maintain disposal facilities for the deposit, disposal and treatment of refuse or

waste and make available the facilities to any person upon payment of any fees or charges as

prescribed” (Section 22, Clause 1). The licensing of disposal facilities is granted by the Director-

General as well as licensing of persons carrying on business of collecting, removing, of refuse or

waste (Section 31), as well as the business of collecting, removing, transporting, storing or

importing refuse or waste of any description. There is a penalty for obstruction (Section 82),

with the Director-General having power of investigating (Section 87) offences under Sections 20

and 23. There is also the Workplace Safety and Health Act, Cap. 354A (Revised, 2006), which

provides for protection of workers, at all times when the employee is performing work in

connection with any trade, business, profession or undertaking carried on by his employer,

wherever that work is carried out.

Meanwhile, golf courses operate hotels and restaurants. The refuse and wastes generated by the

operation of these facilities necessitate cleansing and removal of refuse. Singapore has provided

for a stringent regulatory mechanism for environmental protection, sanitation, health, and waste

management.

I. Maintenance and Operation Stage 1. Prevention of Corruption This thesis reviews the ant-graft laws of the subject countries, particularly on the grant of honorary memberships to the heads of states government officials. There are also corruption practices when golf courses are being planned, constructed and operated.

933 See at http://www.letsrecycle.com/do/ecco.py/view_item?listid=38&listcatid=218&listitemid=55981&section= and http://www.keppelseghers.com/keppelite/23/Contract_for_fifth_incineration_plant_in_Singapore. Accessed on December 25, 2010.

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1.1 Philippines UN Convention against Corruption (2003) Anti-Graft and Corrupt Practices, RA 3019 (1960) Ombudsman Act, RA 6770 (1989) Code of Conduct and Ethical Standards for Public Officials, RA 6713 (1989) Anti-Red Tape Act (2007)

Corruption is a pervasive and persistent problem in the Philippines and the country scores

consistently high in Transparency International's annual Corruption Perceptions Index 934 .

Philippines signed the UN Convention against Corruption, which was ratified by the Senate in

2006. There are a number of laws and mechanisms directed at combating corruption, including

the Anti-Graft and Corrupt Practices, which declared that, “public office is a public trust” and

seeks to repress certain acts of public officers and private persons alike which constitute graft or

corrupt practices or which may lead thereto" (Section 1). Section 2.c defines receiving of gifts;

Section 9 provides penalties for violations while Section 13 provides for suspension and loss of

benefits with exceptions under Section 14.

The Ombudsman Act declares that, “the State should maintain honesty and integrity in public

service and take positive and effective measures against graft and corruption” (Section 2). The

Office of the Ombudsman has the power of investigation (Section 23) and preventive suspension

(Section 25). Meanwhile, the Code of Conduct and Ethical Standards under Section 2 states that,

“it is the policy of the State to promote a high standard of ethics in public service”.935 Section 7

enumerates the prohibited acts and transactions, which are declared to be unlawful, to wit:

financial and material interest in any transaction or act requiring approval of the board,

solicitation or acceptance of gifts.

The Anti-Red Tape Act seeks “to improve the efficiency in the delivery of Government service

to the public by reducing bureaucratic red tape, preventing graft and corruption, and providing

penalties”. The Act applies to all government offices and agencies including local government

934 Transparency International (TI) releases every year the Corruption Perceptions Index and ranks 180 countries by their perceived levels of corruption, as determined by expert assessments and opinion surveys. Philippines rank 134th in the world. The CPI ordering of the countries of the world is made according to "the degree to which corruption is perceived to exist among public officials and politicians". A higher score means less (perceived) corruption. Visit this website to check Philippine ranking http://www.transparency.org/news_room/in_focus/2008/cpi2008/cpi_2008_table. Accessed on September 1, 2010. 935 RA 6670, s. 2 states that, ‘public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest”.

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units and government-owned or -controlled corporations that provide frontline services while

those performing judicial, quasi-judicial and legislative functions are excluded from the

coverage (Section 3.)

The set of anti-corruption laws is relevant since corrupt practices have significant impact on

regulatory enforcement. Regulatory capture has been identified as one of the factors leading to

non-enforcement and non-compliance of laws and regulations. Tradition likewise played a vital

role in allowing government officials free access to golf facilities, i.e. grant of honorary

memberships to the highest officials of the land and a free round of golf to governors, mayors

and chiefs of police of cities or municipalities where the golf course is situated. The Supreme

Court even reprimanded and suspended a judge who was found guilty of playing golf during

office time936. Although soliciting or accepting and offering or giving a bribe are criminal

offenses under the law, and in fact punishable with imprisonment (6-15 years) plus a fine and/or

disqualification from public office (RA 3019, Sections 3 and 9), as with many other pieces of

legislation in the country, however, enforcement has been inconsistent. Not only that a free

round of golf, solicited or freely given as a gift, has not been defined and included as part of the

prohibited acts under any of the afore-mentioned anti-graft laws.

The customary practice of giving or granting honorary membership to the President of the

Philippines and other government officials by golf clubs should be discontinued. The Anti-Graft

Law should include in its prohibited practices the customary free round of golf to government

officials in order to curb graft and corruption. There is also the anti-red tape law, which seeks to

improve the efficiency in the delivery of government service to the public.

1.2 Thailand

The 2007 Constitution established a mechanism to ensure accountability and transparency among

public officials, through a system of declaration of assets and liabilities (Chapter III, Part 1,

Section 259) and the creation of an independent and stronger anti-corruption agency, now referred

to as the National Anti-Corruption Commission (NACC) (Chapter III, Part I, Article 246). NACC

is a constitutional organization independent of the government with broad powers of investigation,

936 The Supreme Court En Banc suspended Alberto L. Lerma, Regional Trial Court Judge of Muntinglupa City, (In re Administrative Investigation against Judge Alberto L. Lerma) who was caught playing golf during office hours. Reported by Jomar Canlas, Manila Times, November 7, 2007. Also available at http://findarticles.com/p/news-articles/manila-times-the/mi_8072/is_20071107/court-suspends-golf-playing-judge/ai_n45965044/. Accessed on September 2, 2010.

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power to overrule the Attorney General and independently initiate prosecution. NACC has power

to conduct investigations, motu proprio and to examine assets of politicians or state officials

where an individual is suspected to have accumulated wealth in an unusual manner (B.E. 2550,

Article 250, Clause 3-4). Assets are required to be declared thirty days after taking and leaving

office under Article 259.

Civil Service Act, B.E.2551 (2008)

In 1992, Thailand promulgated the Act, which organizes the conduct of government employees in

office. There are also anti-corruption laws, which address various aspects of corruption.937

Thai Organic Act on Counter Corruption, (No.2) B.E. 2550 (2007) Organic Act on Ombudsmen, B.E. 2542 (1999) Organic Act on Criminal Procedure for Persons Holding Political Positions, B.E. 2542 (1999), as amended by B.E. 2550 (2007).

The Thai Organic Act on Counter Corruption defines “unusual wealth”.938 It also distinguishes

between active (offering) as well as passive (accepting) bribery and even penalizes the promise to

bestow a benefit. There are other constitutional measures to fight corruption, such as the Organic

Act on Ombudsmen, B.E. 2542 (1999), and the Organic Act on Criminal Procedure for Persons

Holding Political Positions, B.E. 2542 (1999), as amended by B.E. 2550 (2007).

As it is, Thailand confers honorary membership to the highest executives of the country and the

conferment of honor and privileges have not been the subject of the anti-corruption law or

regulation. It is also customary in Thailand to accord honorary membership to high-ranking

government officials. There is no provision in all of the anti-corruption laws where distribution of

a free round of golf is considered both as active and passive corrupt practice.

1.3 Viet Nam

Anti-Corruption Law (2006), as amended

The Law officially came into force but in August 2007 the National Assembly amended the Law

with the establishment of an Anti-corruption steering committee at provincial levels headed by

937 The Thai Penal Code, Title.II, Book II, Ss.143-144, 148-150 deals with different types of corruption, including bribery yet the law is limited to acts of public officials or other types of abuse of public office. 938 B.E. 2550 define unusual wealth as having an unusually large quantity of assets, having an unusual increase of assets and decrease of liabilities or having illegitimate acquisition of assets in consequence of the performance of duties or the exercise of power in office or in the course of duty.

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the chairman of Provincial People’s Committee (PPC). The Law states that the PPC has the

responsibility to provide guidance, supervise, speed up and cooperate in implementing anti-

corruption work in his locality. Several decrees were also issued, as follows: Decree No.

102/2007/NĐ-CP, June 14, 2007, which prohibits officials who leave office from conducting

business in the areas covered by their previous office for a specified period of time and; Decree

No. 158/2007/NĐ-CP, October 27, 2007 defines the list of working posts and the time limit for

the job rotation of public officials. There is no law or decree, which proscribes the conferment

and acceptance of honorary membership in golf clubs by government officials. Neither is there

any prohibition or law on receipt of free round of golf by government officials

Viet Nam should also look into the customary practices of conferment of honorary membership

in golf courses to high-ranking government officials, which is actually one of the sources of

corrupt practices.

1.4 Singapore

Prevention of Corruption Act, Cap. 241

The Act provides for a more effective prevention of corruption939 by empowering the Corrupt

Practices Investigation Bureau (CPIB) officers “to investigate and arrest corrupt offenders”.

What is commonly known as a "bribe" is described as a "corrupt gratification", which can take

many forms, and they include: money or any gift, loan, fee, reward, commission, valuable

security or other property or interest in property of any description (Part III). In Singapore, the

anti-corruption program is firm and clear. The country is placed No. 1 with Denmark and New

Zealand in the Transparency International 2010 Corruption Perception Index. 940 CPIB

investigates corruption in the public sector and encourages fair business practices by

investigating corruption in the private sector, which usually involves the payment or acceptance

of illegal commissions or kickbacks. Singapore has very stringent anti-corruption laws.

However, Singapore has to consider the wisdom and propriety of the grant of honorary

membership to government officials. Singapore also observes the custom of extending honorary

membership to high-ranking government officials.

939 The Corrupt Practices Act was amended several times. Punishments for offenders were enhanced and CPIB officers were given more investigative powers to make the fight against corruption easier. 940 Visit the site of Transparency International at http://transparency.org/policy_research/surveys_indices/cpi/2010/results. Accessed on December 25, 2010.

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1.7 Norms of the Industry and Self - Regulation

Some critics support corporate self-regulation as alternative mechanism and some see that

companies know better than governments how to improve their environmental performance.

However, Rowe (2005) stressed that driven by their legally binding quest to generate profits,

corporations fanned out around the globe in search of cheap labor and lax environmental

standards941 . Self-regulation is an alternative means of delivering regulatory goals (Hilson,

2000) 942 . Hilson stresses that few “firms” would advocate self-regulation as a complete

replacement for regulation, in the context of pollution control. Hilson also said that in a

competitive environment, firms would simply not adopt expensive control measures voluntarily;

regulation is needed to ensure a more level playing field.

Finding that the existing frameworks in the four countries have inadequately provided for the

protection of the environment in golf courses, there are questions whether private industries,

specifically the golf course sector should be allowed to regulate their own activities or should be

placed on less regulatory control and supervision by the government? Is government regulation

necessary so that public interest is protected and served in a free-enterprise economy? Are there

alternative quasi-legal mechanisms whereby golf courses are allowed self-regulation owing to

the unique nature and characteristic of their activities?

It is claimed that sometimes, a corporation’s proper regard for its reputation and goodwill along

with the incessant threat of lawsuits from potentially aggrieved customers adequately keeps

them transparent and socially responsible. Nevertheless, there is no unanimity in these beliefs.

With the deregulation of many industries, specifically the oil and energy sector, few corporations

have willingly and successfully accepted the responsibility of “policing” their own ranks through

measures such as information disclosure and adoption of a Code of Corporate Governance.

Nowadays, globalization and the growing trend towards deregulation provide impetus and

synergy for states to adopt less regulatory practices. These sweeping changes actually trigger

policy shifts precipitating more dynamism and formulaic reforms. A few corporate meltdowns,

e.g. ENRON, Lehman Brothers, etc., have in fact spurred the search for a panacea to restore

941 James K. Rowe, Globalization, Governmentality and Global Politics: Regulation for the Rest of Us? (London: Routledge, 2005) 942 Chris Hilson, Regulatory Essentials, Regulating Pollution: A UK and EC Perspective, 2000. Hart Publishing Limited, UK.

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investors confidence. This brought to the fore quasi-legal measures, such as accountability,

transparency, Good Governance, Corporate Social Responsibility, Best Practices, among others.

It is claimed that sometimes, a corporation’s proper regard for its reputation and goodwill along

with the incessant threat of lawsuits from potentially aggrieved customers adequately keeps

them transparent and socially responsible. Nevertheless, there is no unanimity in these beliefs.

Furthermore, with the deregulation of so many industries, specifically the oil and energy sector,

few corporations have willingly and successfully accepted the responsibility of “policing” their

own ranks through measures such as information disclosure, adoption of a Code of Corporate

Governance. Ostensibly, more private enforcement results in more compliance because it raises

the probability of detection and prosecution of violations.943 Management’s best practice is

considered an important tool in corporate governance reform because it raises awareness and

helps build consensus and ownership of reform processes and outcomes.944 These are non-

binding rules observed voluntarily by members, which aims to encourage innovation so as to

raise levels of efficiency and competitiveness of corporations. Moreover, involuntary regulation

is more policy than law.

The majority of golf courses in the four countries have not explored the industry norms and self-

regulation. Competition is very high among golf courses to host tournaments and to ensure the

playing quality of golf courses. Since national golf associations – a conglomeration of various

golf clubs operating in a particular country- do not interfere in the internal affairs of the golf

clubs, self-regulation did not flourish.

A. World’s Golf Bodies

The golf course industry has two world rule development bodies; the Royal and Ancient Golf Club

of St. Andrews, Scotland (R & A) and the United States Golf Association (USGA). Nonetheless,

these organizations govern only the “rules of the game of golf”. The realm of regulatory

compliance has not been advanced nor pursued by its members. Various golf development bodies

embrace and adopt the principles of best practices and encourage observance thereof, such as the

USGA Green Section945, European Golf Association (EGA) Ecology Unit946, and the United States

943 W. Naysnerski, and T. Tietenberg, “Private Enforcement of Environmental Law”, Land Economics. 1992, 68 (1): 24-28. 944 Generally read, The Principles of Best Practices and Codes of the World Bank. Available at http://rru.worldbank.org/PapersLinks/Codes-Best-Practice/. Accessed on December 28, 2008. 945 United States Golf Association (USGA) at http://www.usga.org. Accessed on May 25, 2008.

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Golf Superintendents Association of America (USGCSCAA).947 As the best practice model is

drawn from highly developed countries with stringent environmental laws, adaptability issues will

have to be considered, i.e., voluntary compliance as these development bodies have no sanctioning

authority over independent members.

The R & A recommends best practices in golf course management to help the growth of financial

and environmental sustainability albeit it respects the independence of the golf clubs and national

federations948. The USGA Green Section claims that it “serves as the chief authority in turf grass

management and is directly involved in the control of diseases, insects and weeds, breeding and

release of improved strains of bent grass, Kentucky bluegrass, Bermuda grass, Zoysia grass and

buffalo grass”.949 In fact, the USGA “embarked on the most intensive turf grass and environmental

research effort by funding more than US$10 Million university research projects to achieve a

significant reduction in water and pesticide use, and to investigate the effect of golf courses on the

environment”.

The EGA has a membership restricted to European national amateur golf association, federations

or unions, with 2004 Constitution, which specifically provides that it has no jurisdiction over the

domestic affairs of affiliate-members by recognizing their complete independence. Evidently, the

EGA can only request its members to observe best practice standards and guidelines voluntarily

because of this constitutional limitation. EGA has an Ecology Unit, which was developed in

recognition of the need for a coordinated approach to environmental issues in golf”.950 Finally, the

USGCSAA is a professional association for those who manage and maintain golf courses. It has

established the Environmental Institute for Golf devoted to information collection, research,

education and outreach programs that support environmental stewardship.951 The institute is open

to members of the USGCSAA from all over the world.952

946 European Golf Association (EGA) at http://www.ega-golf.ch/. Accessed on May 27, 2008. 947 United States Golf Course Superintendents Association of America (USGCSAA) at http://www.gcsaa.org/. Accessed on May 25, 2008. 948 The Best Practices recommendations of the R and A are unclear. Visit http://www.randa.org/RandA/The-RandA-Organisation.aspx. Accessed on May 28, 2013. 949 Visit the USGA Green Section at http://www.usga.org/Content.aspx?id=26125. Accessed on March 14, 2011. 950 Id. The EGA serves as a clearinghouse of technical information relating to golf and ecology. It produces and disseminates environmental guidelines for the development of new golf courses. 951 The Environmental Institute for Golf portal at http://www.eifg.org/. Accessed March 14, 2011. 952 There are many Asian golf course superintendents who have registered as members of the USGCSAA. Check membership requirements at https://members.usga.org/join/index.asp?trans_type=Join and http://www.usga.org/clubs_courses/club_history/Club-Membership/. Accessed on March 14, 2011.

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Thus, the best practices guidelines being introduced by these organizations have to yield to the

objectives of sound financial management. The playing quality is likewise prioritized in all the

undertakings. Economic stability for golf courses is therefore important.

B. Civil Society and NGO Participation

Modern NGOs play an important part in contemporary concepts of international governance953

and their “effectiveness lie according to the seriousness of their advocacy, purpose, funding,

depth of research, skills in political advocacy, (manner) of exercising pressure and narrowness of

focus”.954 In the official negotiating process, especially but not exclusively within the UN

system, their activities range from presenting alternatives, setting agendas, lobbying activities,

and monitoring local international agreements and their implementation in local legislation.

NGOs consequently evolved as an important component of environmental politics (Francesch-

Huidobro). One of the important successes of environmental groups is having institutionalized

environmental concerns (Ingram, et al, 1995). This can be seen in legislation passed and the

setting of environmental programs of higher education in many fields 955 . This is an

environmental policy system made up of legislative, administrative and judicial policy makers

and of engineers, lawyers, environmental consultants, and NGOs (Gottlieb, 1993).

In Southeast Asia, government’s inability to effectively deliver environmental policy and

management is often related to a lack of political will, to fiscal constraints, to a lack of

regulatory capacity, and to the pressures of competition in the global arena. (Zarksy and Tay,

2000). Thus, involving civil society in environmental protection requires building the capacity of

civil society. Capacity building refers to strategic planning, organizational improvement, market

principles applied to public growth, and empowerment (Ganesan, 2002). In environmental

issues, it requires raising awareness by facilitating access to information and effective

environmental education, and motivation by giving explicit information about the relations

between the environment, livelihood, and health. Capacity building requires action that is

directly related to the exercise of the civil and political rights of every person in the community

(Zarsky and Tay, 2000). A strong environmental movement from citizens will strengthen the

accountability of government and business on environmental policy and management

953 See Charnovits, Steven, 18 Michigan Journal of International Law (1997), at page 183. 954 Patricia Birnie and Alan Boyle, p. 67. 955 Ingram, H.M., David H. Colnic and Dean E. Mann, “Interests Groups and Environmental Policy”. In Environmental Politics and Policy: Theories and Evidence, edited by James Lester. Durham: duke University Press, 1995.

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programmes that will ultimately benefit the region (Hopkinson, 2000). It is in the interests of

governments and corporations everywhere to capitalize on the intelligence, expertise and talent

that exist in the community (Hopkinson, 2000).

C. Role of NGOs in Environmental Governance

Mori (1999) argues that NGOs play three major roles in environmental governance.956 First is

the presentation and promotion of norms and values. Second, is the direct input into decision-

making negotiating processes where the rules and principles for future environmental behavior

sre being established. And finally, that, NGOs have linkage functions at four levels – local,

regional, national and global. The International Union for the Conservation of Nature (IUCN)

“play catalytic role in initiating and supporting new developments 957 - from biodiversity

protection to nature conservation, climate change”, etc.

D. Advocacy Groups: IUCN, IGOLF, National Audubon Society, GEO, etc.

Various environmental NGOs have also advocated for environment-friendly golf courses while

golf clubs participate or affiliate in voluntary undertakings, which pursue either certification or

designation of wildlife sanctuary, organic pesticide use, etc. Clubs get certified through a

process of membership, application and/or certification. This thesis notes that the

recommendations offered by the NGOs, i.e. “Certification or Accreditation” are not specific or

realistic. The International Golf and Life Foundation (IGolf) merely recommend the “limit” of

chemical use.958 As to what “limits” are desired, the organization failed to explain or set

standards. The National Audubon Society sets its mission “to conserve and restore natural

ecosystems, focusing on birds, other wildlife, and their habitats” and their accreditation.959 Yet

Audubon has not recommended reduction of the chemical rate of application in golf courses

thus, the goal will not be achieved as the habitat itself are being destroyed by the toxic chemical

usage. The Golf Environment Organization (GEO)960 dedicates to “help the global golf industry

to establish leadership in environmental enhancement and corporate responsibility”. 956 Mori, S. “The Role of NGOs in Global Environmental Governance”. Paper Presented at the APO Training Course on Resource Recycle and Environmental Protection. Japan: Japan Productivity Centre for Socio-Economic Development, 5 October 1999. 957 Visit IUCN at http://iucn.org/. Accessed on January 17, 2011. 958 IGolf Charter mentions respect for the environment and on chemical usage, recommend golf courses to limit the use of chemical herbicides, pesticides and fertilizer; seek biological options; and use manual techniques, such as hand weeding, available at http://www.golfandlife.ch/igolf-charter/. Accessed on March 20, 2011. 959 National Audubon Society website at http://www.audubon.org/about-us. Accessed on March 20, 2011. 960 Website of GEO is available at http://www.golfenvironment.org/about/answers/environmental-quality/. Accessed on March 20, 2011.

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Nonetheless, the GEO Charter and programs avoided the discussion of chemical usage and

reduction. This is the same case with the R and A - the world’s golf development body961, which

fail to prescribe any standard or benchmark in its recommendation for sustainability.

Criticisms have been raised against these groups due to perceived difficulties in monitoring the

implementation of certified projects, such as the failure of Audubon Society and IGOLF to

monitor and assess the activities of golf courses – whether the programs or guidelines for

certification are being observed or actually practiced. There is no mechanism introduced to

inventory or assess the flora and fauna before the certification is issued and subsequently, after

the issuance of accreditation and certification. Biodiversity assessment, monitoring and

protection should be a continuing program. Obviously, there are budgetary and logistical

constraints since these organizations appear to conduct minimal inspection and inventory of the

golf courses. Some golf course superintendents complained that these organizations rarely

inspect the golf courses and the issuance of certification is mainly based on the payment of

annual fees.962 The NGOs therefore must spearhead and pursue campaigns for the substantial

reduction of water and chemical usage, and to ensure visibility in monitoring and

implementation of certification projects.

On the contrary, some critics doubt the capacity of golf courses to meaningfully reduce chemical

usage. The chemical industry, as producer and manufacturer of pesticides and fertilizers, is a

multi-billion and powerful sector, providing tournament sponsorship, seminars, trainings, etc. to

the golf course industry. A few chemical companies are actually multi-nationals, e.g. Syngenta-

AG, Monsanto, USA, Dow Chemicals, Aventis, BASF, Bayer, etc. This thesis is of the view that

only a handful of individuals from the golf course sector would attempt to advocate chemical

reduction, much more usage elimination that would eventually antagonize a benevolent sector.

Industry self-regulation must be promoted and pursued, particularly by the golf course industry,

in collaboration with environmental advocacy groups. However, in order to really deliver on the

promise of these programs, third-party verification will become increasingly important.

Advocacy groups and government agencies may be tapped to define and delineate the

parameters of the verification process.

961 Best Course Management at https://www.bestcourseforgolf.org/content/sustainability. Accessed on April 6, 2011. 962 Several golf course superintendents disclosed their reservations regarding the lack of follow through from these organizations in various personal interviews of New Warren and Kranji Sanctuary Golf Course Superintendents.

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E. Incentives and Disincentives to Promote Sustainability

In 2012, the International Sustainability Council (ISC) 963 , Asia-Pacific Golf Conferences

(APGC) and the Ministry of Industry and Primary Resources (MIPR) of the Royal Government

of Brunei964 initiated the recognition of environmental stewardship in golf courses in 2012. The

Royal Government of Brunei has committed that it will make the yearly recognition to ensure

the innovative and green ways of building and maintaining golf courses. The ISC announced that

the “award is anchored to make golf more environmentally friendly and in recognition of golf

courses in the Asia-Pacific region in transforming environmentally sustainable golf facilities and

community to encourage development”, according to the website. A case study in this

dissertation – TAT Filipinas Golf Club is the inaugural awardee of the “Custodian of the

Environment Award” (2010) in golf courses. MIPR Minister Haji Yahya said that, "One of the

ways of moving forward is for golf course designers, owners and operators to become more

aware of environmental issues. The industry gatekeepers need to promote more responsible

environmental stewardship and innovative and green ways of building and maintaining golf

courses."

963 Announcement of Award, available at http://www.thesustainabilitycouncil.org/tat-recieves-award.html. Accessed on May 25, 2013. The announcement of the launch of the Custodian of the Environment Award was made by Pehin Orang Kaya Seri Utama Dato Seri Setia Awang Haji Yahya bin Begawan Mudim Dato Paduka Haji Bakar, the Minister of Industry and Primary Resources yesterday in a keynote address at the opening of the Asia-Pacific Golf Summit, at The Empire Hotel & Country Club. 964 Ministry of Industry and Primary Resources, Royal Government of Brunei at http://www.bruneimipr.gov.bn/index.php?option=com_content&view=article&id=555:asia-pacific-golf-summit-dinner-and-award-presentation-for-the-inaugural-custodian-of-the-enviromment-award. Accessed on May 25, 2013. The minister presented the award as he hosted a dinner at the Royal Berkshire Hall of the Royal Brunei Polo and Riding Club to welcome all the professional golf players, invited speakers and guests who were attending the APGS. The minister said, "Golf is not only a sport but can also be a responsible partner in the protection and sustainability of the environment.

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CHAPTER IV SUMMARY OF CROSS-NATIONAL COMPARATIVE ANALYSES AND

EVALUATION

1.1 Summary 1.2 Cross-national Summary 1.1 Summary This chapter summarizes the cross-national comparative analyses and evaluation of law and

governance in golf courses. The golf-related laws include the relevant constitutional provisions,

legislation, policy, guidelines, decree, proclamations, orders, etc., which have direct and indirect

application to this research. Governance issues are also summarized, both institutional and

internal to the golf course industry. Environmental NGOs and civil society participation is also

discussed and reviewed.

A. Philippines

1. Constitutional Provisions

The relevant constitutional provisions include Section 15, Article II, Declaration of Principles

and State Policies, 1987 Philippine Constitution on “the right to health and the duty of the State

to instill health consciousness”. Section 16 stipulates on “the right to protect and advance the

right to a balanced and healthful ecology.” There are provisions for the “preservation and

protection of cultural heritage” (Article 4); “pursuit of economic development” (Section 19) and

“development of self-reliant and independent national economy and incentives to needed

investments” (Section 20). Foreign investments are allowed albeit with ownership restrictions

against unfair foreign competition and trade (Section 1). “All lands of the public domain, waters,

forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State”.

In case of water rights for irrigation, “beneficial use may be the measure and limit of the grant”.

Agricultural, forest or timber, mineral lands and national parks are considered as “lands of the

public domain” (Article XII, Section 3). Section 15, Article XIII supports the “role and rights of

people’s organizations to promote public interest” while Section 16 amplifies the “right to

effective and reasonable participation at all levels of social, political, and economic decision-

making”.

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2. Institutional Framework

Philippines have established an institutional framework for environmental management and

protection with identified tasks or specific mandates, including budgetary and manpower

support. Various government agencies exercise coordination and collaboration with secondary or

subordinate agencies, such as the DENR and LGUs. However, the inability of these agencies to

properly identify problems and constraints involving golf courses, confounded by the erroneous

classification of turf grass management/ground maintenance as an agricultural activity, resulted

in jurisdictional overlaps and confusion, at worst, regulatory capture. The use of influence to

promote personal interests, particularly by operators of golf clubs through interlocking

directorships965 or use of political power results in inadequate regulation or regulatory capture.

The Philippines may have enacted a plethora of progressive environmental statutes yet a critical

look into some of these laws reveals fragmented or ambiguous provisions susceptible of

different interpretations. The ambiguity has reached a situation where penalties have been

reduced dramatically owing to the existence of “gray areas” and “loopholes” in the provisions,

particularly the various Memorandum Circulars issued, which greatly reduced the penalties up to

80%. The regulatory capabilities of some agencies, e.g. Environmental Management Bureau

(EMB), Fertilizer and Pesticide Authority (FPA), National Water Regulatory Board (NWRB)

have shown regulatory weakness due either to lack of budgetary support, lack of legal expertise

or shortage of qualified staff with technical skills able to conduct scientific tests, data collection

and monitoring. Regulatory capture966 is another constraint as in the case of NWRB, which

failed to issue a Cease and Desist Order against violators of the groundwater permitting system.

A regulatory system can only be effective once authority is constitutionally or statutorily

supported, i.e. establishment of office or agency, adoption of Implementing Rules and

Regulations (IRRs), etc.

A recurring element is the lack of regulatory expertise owing to the fact that government

agencies in the Philippines have few regular employees trained to keep their jobs. Low wages

965 Concurrent directorships in various companies, e.g., privately owned golf clubs; government owned or controlled corporations, where possible conflict of interest could arise. 966 Regulatory capture is a situation in which a government regulatory agency created to act in the public interest instead acts in favor of the commercial or special interests that dominate in the industry or sector it is charged with regulating. Read generally, The Economist: Economic Terms. Available at http://www.economist.com/research/economics/alphabetic.cfm?letter=R#regulatorycapture. Accessed on August 15, 2009.

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also discourage workers to apply for government position. The hurried turnover paralyzes

operation while a lurking danger of pre-mature employee departure is a common occurrence. As

department heads serve at the pleasure of the appointing power there is always a possibility that

the appointive official could be replaced or transferred anytime. Moreover, owing to the political

nature of appointments, a handful of department executives do not possess sufficient

qualification to head the agency967. Lack of security of tenure might also result in lack of policy

continuity. There is also a likelihood that the regulatory decisions of the heads of agencies might

become captive to or heavily influenced by political pressures. Regulatory capture hampers

independent decision-making processes, especially if the companies control the regulators, i.e.

degree, manner and mode of implementation. Further, regulatory agencies are generally not

statutorily independent but these are attached to cabinet departments or the Office of the

President, such as the Department of Environment and Natural Resources (DENR), Department

of Agriculture (DA), Department of Agrarian Reform (DAR), National Irrigation Administration

(NIA), and National Water Resources Board (NWRB).

In the Philippines, the institutional capacity also largely affects regulatory mechanisms.

Developing countries are known to have limited financial and technical resources, hence most

support staff are ill-equipped and have less technical skills to monitor and investigate the

activities of golf courses, specifically mentioning DENR-EMB, which hires mostly contractual

employees with no security of tenure and insurance coverage.968

The DENR recently issued the 2007 Revised Procedural Manual for EIA applications, which

supersedes DAO 2003-30. The Revised Procedure mandates the EMB to proceed with the EIA

process without requiring the applicant to show prior-obtained certifications from other

agencies. Previously, under Section 4, Article II, DAO 2003-30 on ECC Application Processing

and Approval Procedure, sub-clause 4.2 provides that “the issuance of ECC or CNC for a project

under the EIS System does not exempt the proponent from securing other government permits

and clearances as required by other laws”. Thus, certifications and clearances must be submitted

to EMB for consideration, together with the EIS application. However, under the 2007 Revised

Procedure the clearances, permits, licenses will have to be applied and obtained after securing

approval of the EIA, and subsequently after the issuance of the ECC.

967 Reports about ineligible political appointees. Available at http://pcij.org/stories/new-csc-chief-faces-pack-of-ineligible-bureacrats/. Accessed on May 25, 2013. 968 Series of personal interviews with Elsie Cesar, EIA Head, DENR-EMB. See Appendix “25”.

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This paper maintains that confusion will arise should the applicant-developer encounter legal

difficulties in obtaining other licenses or clearances after the ECC has been approved and

released, for example, what if LLDA refuses to issue clearance; If NWRB would not issue water

permits969, the National Historical Institute will certify that the project site is a historical and

protected site? In which case, how shall the project proceed? If the ECC is obtained prior to the

issuance of other clearances, could development proceed now? Would ECC issuance be enough

to start the construction?

Previous to the revision of the procedure, the Securities and Exchange Commission devised a

scheme whereby applications for registration of securities and issuance of a license to sell golf

club shares are rejected if the application is not accompanied by copy of an ECC issued by the

DENR-EMB. This is actually a regulatory mechanism to protect the public from buying

unregistered securities, which is equivalent to an unauthorized pre-selling of shares. Under the

revised scheme, project developers could easily apply for registration of securities from the SEC

since ECC’s are not difficult to obtain. A legal issue might arise if the certificates and clearances

will not be issued by other government agencies after the issuance of the ECC. The revised

procedure therefore may not be applicable to golf course development. The former EIA process

(DAO 2003-30) should be restored.

3. Check and Balances: Judicial Review, NGO and Civil Society Participation

Judicial review is one mechanism to check and balance the interplay or exercise of powers

(executive, legislative and judicial) between the three branches of the government. The Supreme

Court has resolved cases involving environmental protection such as the Oposa Minor’s case,

224 SCRA 792 (1993) and Heirs of Reyes, 497 SCRA 250 (2006). Another mechanism is public

interest litigation being pursued by civil society as well as NGO representation. The 1987

Constitution (Art. XII, Section 15) recognizes and respects the role and rights of independent

peoples’ organizations to enable them to pursue and protect, within the democratic framework,

their legitimate and collective interests and aspirations through peaceful and lawful means.

Meanwhile, the NGO and civil society movement are organized and participatory, among them

Greenpeace Philippines and Eco Waste Coalition, Philippines. The Filipinos generally are

tolerant and receptive of the works of the NGOs due mainly to the democratic space brought

969 Note that under Resolution No. 2004, the NWRB imposed a policy not to issue water permits effective 2004.

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about by political changes in the country since 1986 people power revolution. NGOs wield

significant influence over the shaping of public opinion and even governmental policy, even

though NGOs receive little financial assistance from the government. The bulk of NGO funds

come from foreign sources with advocacy campaigns and this makes NGO’s environmental

work far-reaching and community based. Much remains to be done, as there are no NGO’s

which have embraced the advocacy to regulate golf courses in the country. Participatory

development opens new avenues for NGO/civil society participation, e.g. Solid Waste

Management Board, Bids and Awards Committee, among others.

4. Analyses and Evaluation

Philippines has codified a set of environmental laws and regulations nonetheless; these either are

weak, inadequate or “watered down” – deliberately or through inadvertence. The rest are being

“loosely” enforced or extensively disregarded resulting either in non-implementation or

“regulatory capture”. The golf course industry is no exception having been a recipient of a great

deal of fiscal and non-fiscal incentives, support and preferential treatment from various

government agencies. However, the confusing treatment of golf course maintenance as

agriculture, contributed to its erroneous classification and treatment under the law. Thus it must be

properly classified and regulated with exactness to avoid legal ambiguity in the future.

This paper identifies the rationale behind the inadequacy of laws and regulations in the country,

namely a) sectoral approach to environmental management (there are dispersed competencies

since there is no single agency which regulates the golf course industry, for example, the EIA

process is assigned to DENR-EMB, water permit system to NWRB, pesticide registration to FPA,

land use conversion to DAR, and there is no national land use system, etc.); b) overlapping

jurisdiction between DENR and LGUs; c) insufficiency of technical, human and financial

resources at the national, regional and local government levels; d) ineffective environmental

governance due to weak institutional capacity, particularly with regard to enforcement.

From the analytical evaluation, it has been shown that Philippines enacted a plethora of

environmental laws and regulatory measures yet the environmental regime is incoherent,

corrupted or captured by industry. This in turn is reflective of the political economy of the country

– fragmented policy making, soft state i.e. unable to enforce regulations, rent seeking societies,

state capture, etc. In large part, State capacity is also a reflection of the level of a country’s

economic development and size of the country and the complexity of problems it faces.

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Thus, the Philippines has recorded the most number of violations namely, a) number of golf

courses are operating without water permits in violation of the provisions of the Water Code, PD

1067; b) other courses did not procure an Environmental Compliance Certificate (ECC) in

violation of the Environmental Impact Statement Law, PD 1586; c) there are instances where the

National Water Resources Board (NWRB) and the Department of Environment and Natural

Resources (DENR) failed to issue Cease and Desist Orders (CDO) against erring companies, e.g.

Malacanang Golf Course of the Office of the President, which operates a golf course without

ground water extraction permit; d) in one informal case study, Sta. Elena Golf Club draws water

from the irrigation dikes of the National Irrigation Authority (NIA), which is tantamount to a

criminal act of pilferage as stipulated under the Irrigation Law, RA 3601 and the Irrigation Crises

Act, RA 6978; e) two more clubs, the Tagaytay Highlands International Golf Club and the

Splendido Taal Golf & Country Club, draw water from Taal Lake without paying water fees or

charges; f) Eastridge Golf Club destroyed a portion of the Rock shelter of the Angono Petroglyphs

- a protected artwork under the Sites and Shrines Law, PD 260 and in violation of other historical

preservation laws and the same golf club even constructed huge dams or water catchments for in-

house watering or irrigation needs without an ECC, again in violation of PD 1586.

B. Thailand

1. Relevant Constitutional Provisions

Section 85, Part 8, Chapter III, 2007 Constitution mandates the State to promote, conserve and

protect the environment”. The Constitution also recognizes the right to “standard public health

service”; “access to public information with exceptions” (Part 10, Chapter III, Section 56);

“receive information, explanation and justification from the government”; “public consultation”;

“participation in decision-making processes” (Section 58); “present petition and be informed of

the result of its consideration” (Section 59), as well as “to sue any government agency for an act

or omission” (Section 60). Significantly, no project or activity, which seriously affect the

environment, shall be permitted unless its impact has been studied and evaluated, with prior

public consultation (Section 67). The Constitution also provides that the rights and liberties

recognized (explicitly, by implication or by decision of the Constitutional Court) shall be

protected and directly binding” (Part 1, Chapter III, Section 27). More detailed provisions

concerning human rights, e.g. the right of communities in safeguarding the environment is

expanded, and these communities as collectives will be entitled to take action in courts.

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2. Institutional Framework

In 1991 the Royal Thai Government reformed the environmental laws and administration by

incorporating the national policy of environmental management into economy development. It

therefore revised the 1975 NEQA in 1992. Consequently, the NEB has been restructured to have

a significant role at policy-making level in the formulation of national environmental policy and

plans for national development. In Thailand, there is no government agency, which specifically

and directly regulates golf course development and operation, from planning up to the operation

stages. Paradoxically, few laws and regulations, if any, control, monitor or supervise various

golf course activities, i.e. watering and irrigation, chemical registration and application, rinse

water treatment, land-use planning, etc. Should any regulation exist, albeit indirectly or of

limited application, such pertains to structural requirements and civil works for building

construction rather than on the procedural allowance or disallowance of golf course

development.

The EIA requirement under NEQA 1992 applies to land development, specifically for hotel or

resort facility with eighty room-capacity or development for residential or commercial purpose

that involves 500 land plots or more and the total developed area exceeds 100 rais (16 ha.).

Obviously, hotel and resort development have been specifically included and mentioned in the

Notifications by MONRE (Notification (August 24, 1992), Types and Sizes of Projects or

Activities of Government State Enterprises or Private Persons Required to prepare an EIA

Report) while golf courses have not been mentioned for the EIA coverage. Would this provision

cover the EIA requirement for golf courses integrated with residential estates? The answer is no,

as the Notification or regulation specifically refers to the development of hotels and resorts. It

did not mention golf courses. Is there a selective exclusionary policy, if there is any, being

implemented by the MONRE?

When a golf course is being planned and subsequently developed in Thailand, there is no EIA

legislation to be enforced, as NEQA 1992970 did not mention that golf courses should undergo

the EIA process. In late 1990s, the attention of the MNRE was called over the non-inclusion of

the golf sector from the EIA coverage.971 However due to limited information and insufficient

scientific study on the impact of golf courses on the environment the issue was not investigated

thoroughly nor pursued extensively. Various advocacy groups have attempted to advance the

discussion and examination of environmental impacts of golf courses due to mounting health

970 The EIA process is being implemented under NEQA, chap.2, (1992). 971 Personal interview with the Director of PCD, Appendix “27”.

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concerns from chemical activities yet there is an apparent avoidance or refusal to address the

issue. 972 It must be recalled that Thailand signed the 1992 Rio Declaration and the

Precautionary Principle contained in Principle 15. The Principle however has not been invoked

nor referred to by MONRE when faced with scientific uncertainty over the activities of golf

courses.

MONRE is currently doing a policy review and revision of NEQA 1992 yet the inclusion of golf

courses from the coverage of EIAs has not been considered nor included in the discussions.973

An EIA process or its equivalent planning mechanism should have been worked out for golf

course projects but internal disagreements among the ministry officials as to the extent and

scope of inclusion and exclusions from EIA coverage did not solve the pending issues.

Anecdotal evidence shows that few environment officials argued that golf course regulation is

relatively a new subject although the first golf course in Thailand has been in existence since

1924.974 Such a restrictive insight is not implausible considering the fact that the golf course

industry has isolated and remained secretive about its turf activities coupled with an elitist

perception and inter-locking connection of club officials with high-ranking government

executives, specifically where customary practices have made heads of states honorary members

of almost all golf clubs in the country.

In the same manner, the Ministry of Agriculture and Cooperatives has not included golf courses

within its regulatory control since turf grass management, theoretically, is not an agricultural

activity. In fact, the MOAC and MONRE have to deal with jurisdictional conflicts specifically

on chemical usage.975 MOAC maintains that its authority is limited to agricultural activities and

in fact, not one agency subordinate thereto has been tasked to exercise supervision, monitoring

or control over the activities of golf courses. It appears that there are instances976 when MOAC,

through the DA, would conduct water testing in golf courses.

972 The anti-golf movement was very popular and aggressive in their campaigns in Thailand in early 1990’s. See generally, http://www1.american.edu/ted/asiagolf.htm. Also read the article on “Mega Resorts, Golf Courses and Food Crises” at http://www.twnside.org.sg/title2/tourism/doc/01.Mega-resorts.golf.courses.and.food.crisis.doc. Anti-Golf Movement at http://www.antigolf.org/english.html. Accessed on December 23, 2009. 973 Personal interview of the Director of PCD-MONRE, Appendix “27”. 974 The first golf course, the Royal Hua Hin Golf Club opened in 1924. Visit the Club’s portal at http://www.golfhuahin.com/royalhuahin.htm. Accessed on July 5, 2011. 975 During the personal interview, it was revealed that officials from the two agencies are confused as to which agency has jurisdiction and authority to regulate the aforementioned activities. 976 This statement cannot be verified for failure of the interviewee-official to show proof of record or documentation of water quality testing.

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Meanwhile, the Department of Groundwater Resource has not issued any regulation or

permitting system for groundwater extraction of golf courses. Nothing was mentioned at all

about golf course activities by the agencies concerned. Finally, the Securities and Exchange

Commission (SEC) does not regulate the sale of proprietary membership shares by golf clubs.

Most golf clubs sell “playing rights” or “playing privileges” only.

3. Checks and Balances: Judicial Review, NGO and Civil Society Participation

Thailand adheres to the principle of checks and balances between the executive, legislative and

the judicial departments of the government. The rule of law is observed and the Courts of Justice

have increasingly developed efficiency in handling cases due to the increase in the number of

courts, the emergence of the division and the branch of courts, and the establishment of the

Constitutional court.977 There are no known cases decided by the Supreme Court involving golf

courses in relation to development and operation or with regard to the environment in golf

courses.

Meanwhile, the environmental NGO movement in Thailand is significant. Section 7 and 8,

NEQA 1992 promotes public participation by allowing environmental citizen groups or

organized as juristic persons under Thai or foreign law to register as an environmental NGO in

order to be eligible for certain government assistance and support. The recognized

environmental rights of the citizens include the right to know, the right to compensation for

environmental damages caused by the government, and the right to commence a criminal action

against any person who is alleged to be in violation of any environmental law while the

environmental duties of Thai citizens are to cooperate and assist the government in protecting

the environment and to observe NEQA’s requirements.978

4. Analyses and Evaluation

In 2010, the International Association of Golf Tour Operators considers Thailand as the

“ultimate golfing destination” in Asia. Thailand likewise continues to build golf courses, at an

average rate of two courses, annually. Despite the enactment of the fairly progressive NEQA

1992, regulatory capture and neglect manifests itself as MONRE, the government agency

responsible for environmental protection and management apparently neglected its responsibility

977 The Constitutional Court was created by virtue of Thai. Const., chap. X, part.2, s.204 978 Vipon Kititasnasorchai & Panat Tasneeyanond, Thai Environmental Law, Singapore Journal of International & Comparative Law, (2000), at pages 1-35.

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to protect the environment in golf courses. There is actually no agency designated to regulate

chemical usage in golf courses. Obviously, the NEQA 1992 in emphasizing pollution control as

its main focus failed to pursue environmental protection from a more holistic and coordinated

approach as one industry with known environmental impact has been completely ignored - the

golf course sector.

While the revision of NEQA 1992 is being discussed, it would be absolutely necessary for the

national leadership and its policy-making authority to acknowledge the dearth of data on golf

courses. MONRE should adopt the precautionary approach to regulation and while it is still

collecting data, conducting scientific study or merely monitoring various activities, it should

consider the inclusion of golf courses in the EIA process. Such approach must be adopted even

in the absence of a scientific finding that harm or danger might ensue.

Thailand aggressively promotes golf tourism and the Tourism Authority extends considerable

bureaucratic support and financial aid to the golf course industry. Obviously, the obsequious

attention or mis-attention to government regulation conclusively supports a less intrusive

institutional policy for golf course development. Thus, Thailand offers an investment climate

favorable to the golf course industry; public infrastructure projects such as airports, roads and

bridges have been constructed, which benefited golf clubs; no import duties and Value Added

Taxes are imposed on the importation of chemicals and their ingredients; golf courses are not

required to submit to the EIA process under the National Environmental Quality Act, NEQA

(1992) and there are no specific chemical regulation in golf courses in Thailand.

C. Viet Nam

1. Relevant Constitutional Provisions

The land, forests, rivers and lakes, water sources, underground natural resources, resources in

the territorial waters belongs to the State and falls under the ownership of the entire people

(Chapter II, Article 17). Organizations and individuals are responsible for the protection,

replenishment, rational exploitation and economical utilization of the land (Article 18, Clause

3). Article 29 mandates that State organs, units of the armed forces, economic and social bodies,

and all individuals must abide by State regulations on the rational use of natural wealth and

environmental protection. It also mentions that, “all acts likely to bring about exhaustion of

natural wealth and cause damage to the environment are strictly forbidden”.

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The State encourages foreign organizations and individuals to invest capital and technology in

Viet Nam (Article 25) and states that, “legal ownership of capital, assets and other interest shall

not be nationalized”. The Constitution also creates favorable conditions for Vietnamese who

live abroad to invest in the homeland (Article 25, Clause B). It also preserves and develops the

national cultural heritage, cultural relics and works of art. All acts causing damage to or

prejudicial to historical or revolutionary monuments, works of art and beauty spots are strictly

prohibited (Article 34). Viet Nam invests, develops and ensures the unified administration and

protection of the people’s health. Article 61, Chapter V specifically states that, “citizens are

entitled to health care and have the obligation to comply with regulations on disease prevention

and public hygiene”. Further, the State and society seeks to develop tourism and tourist

activities (Article 42).

2. Institutional Framework

Various agencies in Viet Nam were established to implement the programs, policies and projects

of the government. These institutions have stated mandates – either constitutionally or

statutorily, to enforce laws and regulations and ensure compliance thereto. This thesis finds that

Viet Nam similarly experiences institutional governance and structural failings, regulatory

capture and rent-seeking behaviors, which resulted in the proliferation of golf courses in such a

short span of time. Nevertheless, the government has shown decisiveness in regulating the golf

course industry. Golf is relatively new in Viet Nam but this has not prevented the government

from evaluating whether its policies, laws and development priorities are anchored on

environmental protection and management.

The State of the Environment Report (2005) discloses that the country pursues international

economic integration by establishing trade relationships with 100 countries and territories;

Foreign Direct Investments attracted seventy countries; Overseas Development Assistance has

been received from seventy-five countries and from international financial institutions. Viet

Nam signed ninety bilateral agreements and forty-six agreements on investment promotion, with

forty agreements on double taxation. The Report mentions that, “enormous achievements

generated pressure on the environment, and shortcomings do exist in the legislation, especially

in enforcement”. The Report also mentions that the MNRE has not established the

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environmental research institutions yet Viet Nam has a unique opportunity to learn from the

experiences of its neighbors”.979

Prior to the adoption of the 2020 National Golf Course Development Plan, the Law of

Environmental Protection 2005 was enacted to strengthen a separate and specialized MNRE.

However the National Party Congress allowed the decentralization of authority to the Provincial

People’s Committee (PPC), thus granting the latter the power to issue golf licenses. The PPCs

therefore concurrently exercises authority with MNRE in the issuance of golf licenses. The

consequent explosion of issuances of golf licenses prompted the Ministry of Planning and

Investment (MPI) to recommend the cancellation of PPCs authority. The Prime Minister first

ordered the review of compliance to socio-economic development plans of the provinces and

second, ordered the MPI to conduct a study of master planning for golf courses. It was

discovered that as of December 2008, more than 123 licenses were issued and a total of more

than 38,000 hectares of agricultural land have been converted for other uses, mostly, for golf

course development with residential component.

When this thesis was being written during the Viet Nam research (between April 22- May 4,

2009) it was anticipated that the MPI - Strategic Development Institute, which was tasked to

conduct the study on golf courses, will submit a master plan with due consideration to recent

developments in golf course regulation. It was also expected that the national government would

recall with finality, the authority of PPCs to issue golf licenses, and review those already

approved. This thesis likewise submits that as Viet Nam was showing its predilection for golf

tourism like its neighboring countries there is a need to control or regulate the development and

operation of golfing complexes to prevent its implosion. The adoption of the Golf Course

Development Plan is the first major step to realize that goal. It is expected that Viet Nam will

amend the EIA mechanism under the Law on Environmental Protection and require golf

courses, from nine holes and above to undergo the EIA process.

There is also the matter of economic constraints – the prohibitive cost of environmental

compliance - the disincentives to golf course operators. It is therefore absolutely necessary for

Viet Nam to adopt a comprehensive national policy on land use and master planning for golf

979 Tran Thi Phuong, Environmental Management and Policy-Making in Viet Nam, Seminar on Environment and Development in Viet Nam, December 6-7, 1996, Australian National University.

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course development. There have been numerous complaints on the compressed groupings of golf

courses near city centers. This can be attributed to the fact that golf courses are integrated with

residential estates, precisely for speculative investment.

The game of golf is progressively getting popular in Viet Nam. The frenzy and the novelty have

unprecedented negative impact on the environment, specifically the land use modification or

conversion of vast track of agricultural lands for golf course development. Ostensibly,

institutional governance and structural failings, weak legal frameworks, as well as constraints

have contributed immensely to the insipid enforcement and implementation of laws and

regulations in Viet Nam. Speculative schemes and legal maneuvering by project proponents can

only be halted once the single yet comprehensive legal framework for the golf industry is

codified with strong institutional support. The adoption of the National Golf Course

Development Plan actually is the first step towards adequate regulation. The provisions of the

Plan have been discussed in Chapter III.

The major players in golf course development in Viet Nam are the five agencies – the Ministry

of Planning and Investment, Ministry of Commerce, Board of Investment, Ministry of

Environment and Natural Resources and Provincial People’s Committees. The MPI is given a

mandate to search for investments with an array of fiscal and non-fiscal incentives to entice

investors - both domestic and foreign. In order to shore up the national economy the MPIs

Foreign Investment Agency Team promised incentives and tax breaks to would-be investors.

Institutional investors, Koreans, Japanese and Chinese businesses came in the hundreds relying

on the commitments and representations. The BOI even set up a “One Stop Shop” to assist in

the business organization. The PPCs approved and issued licenses to foreign investors without

consulting the MNRE. In the case of the golf course industry, 123 licenses were issued in less

than two years. The Province of Long An near Ho Chi Minh City allegedly issued 18 golf

licenses although these have been denied by the PPC Chairman in an interview.

Evidently, the overlap of authority and misplaced priorities of various sectoral agencies with

dispersed or sectoral competencies reflect an inadequate and restrictive protection of the

environment in golf courses. The PPCs being simultaneously able to grant investment licenses

without inter-agency coordination or prior consultation exposed a non-cooperative stance and

independent administrative policy tantamount to arrogation of authority. Such lack of

coordination/lack of consultation could have an injurious effect on Foreign Direct Investments

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as well as on central and local governance since provinces and cities do not have enough time or

capacity to evaluate the environmental and socio-economic development impact of the project.

There is also the widespread issue of limited legal and administrative competence, technical

expertise and technological skills of the local authorities, which must be addressed. The national

leadership therefore, has to specifically identify the authority decentralized to the local

government to avoid unnecessary confusion, specifically, the EIA mechanism currently

designated to the MNRE, which the PPC had sidestepped. A delineation of tasks should be

made.

Viet Nam is known as one of the largest beneficiary of development assistance from multi-

lateral financial institutions. Thus, there is an overwhelming expectation for Viet Nam to

strengthen its legal and regulatory capacity. Although the LEP (2005) was enacted, which

includes the mandatory submission of 18 holes golf course project to the EIA system, the

Provincial People’s Committees were handed delegated authority to issue (approve or deny)

development licenses for golf courses. The delegation resulted in confusion, with PPCs directly

issuing licenses, and subsequently sidestepping the mandated EIA process. The consequent

explosion of approvals prompted the Ministry of Planning and Investment to recommend the

cancellation of PPCs authority, particularly due to rice shortages encountered in 2008. In early

2009, it was reported that more than 123 projects were approved, with a total land area of more

than 38,000 hectares of agricultural land, including rice paddies.

Viet Nam imposed a 30% Special Consumption Tax for golf sales. On August 18, 2010, Viet

Nam adopts the National Golf Course Development Plan, which seeks to regulate the

development of golf courses. The Plan also set off the investigation and ocular inspections of

golf courses all over the country to determine compliance with environmental laws and

regulations. Viet Nam has shown the capacity and decisiveness to regulate the golf course

industry. Viet Nam is actually the first country to specifically implement a policy of regulating

golf course activities. The different branches of the government specifically, the executive,

legislative and judicial departments observe a system of checks and balances. Judicial review is

a major component of the rule of law and currently, the country is introducing administrative

and judicial reforms. Nonetheless, there are no known cases resolved by any judicial bodies in

Viet Nam pertaining to golf courses. It is actually, the MNRE and the Deputies of the National

Assembly, which conducts investigation and ocular inspection of golf courses.

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3. Checks and Balances: Judicial Review, NGO and Civil Society Participation

The Prime Minister issued Decision No. 340/TTG (1996), as Guidelines for the regulation of the

operation of foreign NGOs, which “comes to Viet Nam to conduct development and

humanitarian activities without profit-making purposes, and must get permission to operate”.

There is also a requirement that the representative office of foreign NGOs must be based in

Hanoi, the capital city. The participation by the civil society and the progressive NGOs980

specifically the environmental groups enhanced transparency and accountability in Viet Nam,

e.g. TRAFFIC International and World Conservation Union. However, there is no organization,

which advocates golf course sustainability in Viet Nam. Several international NGOs are active

in the area of environmental protection. MNRE regulates the registration and accreditation of all

NGOs with specific environmental agenda.

3. Analyses and Evaluation

It would appear that vigorous competition among provincial governments for economic

expansionism engendered jurisdictional overlaps and conflicts between MNRE and the Provincial

People’s Committees, specifically on the power and authority to issue golf licenses, which was

previously the sole domain of MNRE through the EIA system. The MPI-FIA981 theorizes that,

“endemic competition among the provinces necessarily brought down standards of compliance”.

Moreover, the devolution of central authority bestowed unintentionally a concurrent authority to

MNRE and PPC, and this resulted in confusion over its implementation, i.e. which agency has

precedence in the development application process, whether it is MNRE - which allows

development only after submission to the EIA process - or the PPC through a decentralized policy

that issue golf licenses without the proponent undergoing the EIA process?

The MNRE maintains that project proponents must undergo the EIA process as provided under the

LEP (2005) before the PPCs issue golf licenses. Although the overlap became moot and academic

after the recall of PPCs authority by the Prime Minister, there are 123 golf licenses, which have

been issued and released to project developers, which remain valid and subsisting, and obviously

had sidestepped the EIA process! No legal barrier therefore exists to prevent a licensee from

proceeding with the golf course construction and development, unless the central government

explicitly revokes the licenses due to environmental, social and economic constraints.

980 The World Conservation Union, Viet Nam. Visit at http://en.wikipedia.org/wiki/World_Conservation_Union. Accessed on May 25, 2013. 981 FIA is the Foreign Investments Agency of the Ministry of Planning and Investment. Appendix “19”. Personal interview of Nguyen Thi Bich Ngoc.

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The National Golf Course Development Plan rendered the golf licenses moot and academic as it

ordered a cap on constructions. However, there are still legal remedies available to the developers’

as prior rights have accrued when they were granted licenses to develop; and initial development

costs have been spent for the projects. Unless there is a final ruling on the controversy, these

licenses remain valid unless withdrawn upon order of the court. 982 Interestingly, recent

investigations show that more golf courses have been developed, which exceeded the cap

established by the Golf Course Development Plan.

This paper visited one of the progressive provinces of Viet Nam on April 22, 2009. The Province

of Long An, in South Viet Nam established seventeen industrialized areas and forty-four industrial

zones. Long An has a population of 1.4 Million with more than 900,000 workforce and 276

investors coming from Taiwan, Korea, UK, US, Netherlands983, among others. The Chairman of

the Provincial People’s Committee granted a personal interview 984 , particularly to clarify

newspaper accounts that 18 golf licenses were issued in a span of two years to various developers.

Chairman Duong denied the allegation claiming, “only one license was actually released while

two applications are awaiting approval from the central government due to the 2008 recall by the

Prime Minister of the PPC authority”. The Chairman explained that the “problem in Long An

Province is not about land scarcity but the growing industrialization necessitating the construction

of more golf courses, especially in the South Area of Ho Chi Minh due to the massive build-up of

industrial estates”. He also claims that “the province established a licensing procedure by citing

the mandatory submission of separate and independent endorsements by various provincial

government agencies, specifically, the PPC, Department of Natural Resources and Environment,

Department of Planning and Investments, etc., before the golf course project is approved”.

Chairman Duong also disclosed that the DPI Provincial Office provides a checklist for

compliance. The checklist was prepared by the PPC for the Long An Province only. First, the

investor-applicant must agree to pay the landowners; second, the investors and the PPC have to

agree to move the current occupants to a relocation site by taking into consideration the effect of

982 News reports are available at http://en.baomoi.com/Info/Ministry-plans-new-golf-courses/3/147262.epi; http://vietnambusiness.asia/country-has-39-golf-courses-too-many-ministry/ and http://english.vietnamnet.vn/en/society/8368/hcm-city-delays-golf-course-projects.html. Both accessed on May 29, 2011. 983 Visit http://www.business-in-asia.com/long_an_province_vietnam.html for promotional data. Accessed on August 22 2010. 984 Duong Quoc Xuan, Chairman of the PPC of Long An Province, spoke through an interpreter, Truong Thuy Ai, on April 22, 2009 at the Provincial Ceremonial Hall in Tan An Town, Long An Province. Transcript of interview is attached as Appendix “38”.

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golf courses on the environment of the area to be developed; third, the applicant must submit a

Master Plan drawn on a 2000% scale map; fourth, if the Master Plan is approved by the PPC and

the DPI, then the project proponent will have to draw the map to scale of 500%, with more

specific details; fifth, that the developer must build the necessary infrastructures, with water and

electric facilities before the Province would allow the development of golf estates, but for big

projects involving national security, the central government possesses the authority to grant or

deny the issuance of a license.

With regard to the implementation of the LEO (2005) Chairman Duong admitted that

“decentralization pose difficulties in terms of enforcement, i.e. submission to EIA process. He also

disclosed that the PPC does not follow the Law, specifically the EIA procedure, reiterating the

importance of local autonomy and its competence to determine its own program of government

and local authority”. He admitted also that, “concerns on compensation and clearances have been

addressed as PPC moves people to new areas under similar condition prior to relocation and that

the process of relocation is specific, i.e. if the place chosen for relocation is unsuitable PPC will

not approve the application for golf license”.

Meanwhile, the Deputy Manager of DPI985 reiterated the statements of the PPC Chairman

claiming that, “one golf course with license operates in the province”. His statements however

contradict Chairman Duong by claiming that, “two more projects were awarded a license in Long

An Province”. He asserts though that there are procedures to be followed before an investor can

build a golf course in Long An. He mentions a “checklist” issued by the DPI to all prospective

investors, which is consistent with the land use planning system in Viet Nam.986 The checklist is

also issued to the MPI, MNRE, DNRE, the Construction Department and Sports Agency. These

agencies participate in the approval process for the issuance of golf licenses. Nevertheless,

compliance with the EIA procedure for golf courses being administered by the MNRE is another

matter.

The admission by the PPC Chairman that it had sidestepped the EIA process in the issuance of

golf licenses reveals jurisdiction overlap. Each agency (MNRE and PPC) asserts it competence 985 Personal interview of Nguyen Than Nguyen, Deputy Manager, Planning & Investment Department, No. 61 Truong Dinh St., Tan An Town, Long An Province, Viet Nam. Transcript of interview is attached as Appendix “39”. 986 The interviewee did not provide a copy of checklist since the previous officer in-charge left and the replacement is re-writing the process.

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over natural resource issues. Other compelling issues include the failure to set the allowable limit

for golf course development, assignment of land use rights and payment of land compensation.

Currently, the PPC decides the compensation and the period of payment, which could lasts six

months, although there is a fee guide for every province and the committees of every district. As

the National Golf Course Development Plan caps the areas allowed for golf course development,

the National Assembly must codify this national policy to make it more enforceable and

obligatory.

In sum, Viet Nam has shown its capacity to address the mistakes committed in the course of its

development activities. Several visual inspections and investigations have been conducted since

2010 when the National Golf Course Development Plan was being drafted. The investigations

have guided government agencies to submit an adequate and coherent regulation of the golf course

industry. Other countries should take a fresh look how Viet Nam formulates its policy to regulate

golf courses, and eventually, the codification of that policy, into law.

D. Singapore

1. Relevant Constitutional Provisions

The Constitution of Singapore has no provision on the environment. There are likewise no

provision in the Constitution on health albeit there are statutory enactments, which regulate

public health and safety, including the health and safety of workers, the healthcare profession,

healthcare practices, the establishment of statutory boards charged with these responsibilities.987

Nonetheless there are no specific laws relating to the regulation of golf courses.

2. Institutional Framework

In Singapore, there is no single agency designated to regulate the development and operation of

golf courses in Singapore. Although the MEWR is charged primarily to protect the environment

and takes charge of pollution, water and climate change, nothing is mentioned which specifically

mandates MEWR “to control and supervise golf courses”. There is no EIA system in Singapore.

The planning system guides development activities in the country. Singapore implements a

planning application process whereby URA is charged with the approval or rejection of

permission. The planning application, to be allowed, must conform both to the Master Plan and

987 The Health Promotion Board Act, Cap. 122B (2001, amend) established, incorporated and constituted the Health Promotion Board to implement the Act. Visit http://www.moh.gov.sg/mohcorp/legislations.aspx?id=214. Accessed on August 24, 2010.

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Development Guide Plans prepared by the URA. Singapore adopted a stringent environmental

policy and has adopted the “top-down approach”988, as well as the sectoral approach to regulation,

which is not dissimilar with the three other subject countries.

In brief, the dispersed competencies of the various agencies tasked with specific programs

discloses that MEWR (NEA and PUB included) is the primary implementing agency for

environmental matters; MND for national development (including URA, which is in-charge of

land use and planning; NParks is in charge for providing and enhancing the greenery. It is also

the lead agency in biodiversity conservation; AVA for pesticide regulation). The MCDS and

SSC for developing sports, etc. Principally, MND coordinates and collaborates with the URA in

the preparation of the Concept, Master and Development Guide Plans. These agencies are

expected to work in collaboration and coordination to achieve the objectives and development

goals of the country.

In other countries, there are EIA legislations, which particularly identify the institution or agency

in-charge of implementation. Singapore has no EIA legislation and apparently, the agency in-

charge of land use planning has the responsibility to approve or disapprove golf course projects.

The URA is the national planning authority. It is a statutory agency of the MND. Thus, by

implication, both MND and URA are the government agencies, which exercise a pivotal role in

the development of the golf course industry. Obviously, this is the most plausible explanation

given the construction of the Marina Bay Public Golf Course by the Singapore Sports

Commission989, which sees the growing need to develop another golf course. It is the MND and

the URA, which actually control the grant or rejection process for planning application. It can

also be inferred that the grant of long-term leases of state land by several government agencies,

such as the PUB, SLA, and the financial support extended by the Ministry of Defense for the

establishment of the SAFRA and the Kranji Sanctuary courses for the National Servicemen and

the military could not have been approved without the explicit support proffered by the MND

and URA.

988 Environmental Law and Enforcement in the Asia-Pacific Rim, Edited by Terri Mottershead, Chapter 13, Singapore by Lin Heng Lye, Sweet & Maxwell Asia, 2002, at page 402. 989 News Release. A Public Reply to a Letter on September 4, 2005 Published in Shin Min Daily News by Michael Koh, Director, Urban Planning and Design, URA. Available at http://www.ura.gov.sg/pr/text/forum05_08.html. Accessed on March 3, 2008.

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It is apparent that although MND and URA recognize that Singapore has land availability

constraints, said agencies show its preference for golf course development. Undeniably, the

preference for golf development is visibly apparent. More than 84% of Singaporeans live in built

tenements occupying only 6% of the total land area while the twenty-six golf courses have

accumulated almost 2,000 hectares, or roughly 2% thereof.990 The URA indeed placed an ironic

stamp of preference for golf course development. The opposition in 1991 generated by the

proposed golf course in the Lower Peirce Reservoir by the Nature Society of Singapore

(NSS)991, as well as the resistance to allow the construction of Kranji Sanctuary Golf Course for

the national servicemen by the MND should have spurred the codification of the EIA legislation.

The EIA could have institutionalized the mechanism for public consultation or stakeholder’s

participation where the sentiment, opinion and perspective of the stakeholders are reflected or

considered. Yet despite all these, the MND nor the URA had not instituted any policy reform nor

initiated moves to enact an EIA law or its equivalent.

An evaluation of the regulatory agencies in Singapore disclosed that the golf course industry is

actually under-regulated, specifically on chemical handling and application during turf grass

maintenance activities. The PUB may have issued guidelines on the allowable limit of chemical

usage but these merely apply to nine golf courses located within water catchments. Likewise,

there has been no mention that golf courses are required to install waste treatment facilities that

would handle the clean up and treatment of chemicals and run-offs used in turf management.

Neither is there a law that imposes compliance. If at all, the NEA and the Pollution Control

Department mandated that industries should, before the planning stage, establish a system for the

generation and disposal of wastes, without which, the proposed project would not be approved.

Singapore has licensed several waste treatment companies to collect for treatment, recycling

and/or disposal of hazardous waste yet golf courses are not considered as an industry included

thereto. The recycling, treatment and or disposal of hazardous wastes are controlled under

990 See infra, the 2011 Concept Plan Final Report submitted by the Focus Groups reported that only 80% reside in public Housing Estates (Clause 3.15) Visit http://www.ura.gov.sg/pr/graphics/2010/pr10-97a_SDRpt.pdf. Accessed on 24 August 2010. 991 United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) Report on the 1991 Proposed Lower Peirce Golf Course and the role of NSS in opposing the project, available at http://www.unescap.org/drpad/vc/conference/ex_sg_17_nss.htm. Accessed on August 24, 2010. The NSS website also published the causes adopted and pursued by the society to a successful conclusion with other like-minded groups, e.g., the prevention of excision of nature reserve land at Lower Peirce Reservoir for an 18-hole golf course proposed by the Public Utilities Board (PUB), following NSS' own Environmental Impact Assessment (EIA) report on the proposal. Available at http://www.nss.org.sg/about_history.html. Accessed August 24, 2010.

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Section 11, Environmental Public Health Act (Environmental Public Health (Toxic Industrial

Wastes) Regulations, Cap. 95.

There is an advisory entitled “Management of Hazardous Waste in Singapore”992 released by the

NEA yet a careful perusal of the document reveals that the chemicals used in turf grass

maintenance are not included in the list of industrial wastes, in the EPH (Toxic Industrial Waste)

Regulations. PUB conducts random water testing993 on lakes and ponds, but these are done only

on courses situated in water catchments. How about the fifteen golf courses, which are located

outside of the PUB-controlled catchments?

There is no clear-cut program designed to regulate the golf course industry, as the AVA, NEA

and PUB have dispersed competencies and jurisdiction. The AVA controls plant cultivation and

agricultural pesticide registration; NEA regulates pesticide use for vector control while PUB

regulates water supply and sewage activities through random water quality testing. The AVA’s

role in relation to golf course maintenance and operation is unclear as the mandate of AVA is

limited, among others, to the control of agricultural pesticides used in the commercial cultivation

of plants under the Control of Plants Act, Cap. 57A994 and the Control of Plants (Registration of

Pesticides, Cap. 57 A, Section 48) Rules.995

The golf course industry therefore has been left out and excluded from AVA’s regulatory

supervision and control since golf course maintenance is not intended for any commercial

cultivation of agricultural products. Neither is it in theory, an agricultural activity. The Control

of Plants Act also stipulates that any pesticides not registered will not be allowed for use in the

local agricultural farms. AVA likewise mandated that the application of pesticides must be

carried out or supervised by a pesticide operator certified by the agency in compliance with the

Control of Plants Act.996

992 Visit http://app2.nea.gov.sg/topics_waste.aspx. Accessed on August 24, 2010. 993 Personal interviews with Michael Cabel, Golf Superintendent and Ian Gray, General Manager of Warren Golf Club. Transcript of interview with golf course profile is attached as Appendix “15”. 994 The Control of Plants Act, Cap. 57A relates to the cultivation, import, trans-shipment and export of plants and plant products, the protection of plants and plant products against pests and diseases, control of the introduction of pests into Singapore, the use of pesticides, among others. 995 Section 3 states that the application for registration of pesticide for use in the cultivation of plants in Singapore maybe made by any person who (a) manufactures, imports, distributes, supplies or sells the pesticide, (b) carries on business in Singapore and is – (i) registered under the Business Registration Act (Cap. 32); or (ii) a company incorporated or a corporation registered under the Companies Act. (Cap.50). 996 AVA, Registration of Agricultural Pesticides. Available at http://www.ava.gov.sg/AgricultureFisheriesSector/AgriculturalPesticides/. Accessed on May 29, 2007.

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This paper argues that golf course maintenance is not in theory and in practice, an agricultural

activity hence the maintenance and operation of golf courses do not fall within the classification

of commercial cultivation of plants. In which case, AVA has no direct or indirect regulatory

authority over golf courses and the afore-mentioned laws have no application to the golf

industry. Therefore, it can be argued that there is no chemical regulation in Singapore for golf

courses. It is noteworthy to mention that PUB issued in 2008 an administrative guideline on

allowable pesticide use for golf courses within water catchments. Note however that the

Guidelines have limited significance since only nine golf courses out of the twenty-six are

situated within water catchments controlled by PUB. The rest are not regulated. Moreover,

Singapore golf courses prefer to grow hybrid carpet turf grasses, turf grass management and

maintenance therefore necessitates stringent regulatory control. A mere guideline would not be

enough since it has no punitive sanction and at most, can easily be ignored by the clubs.

There is actually no agency, which regulates golf course activities (turf grass management) in

Singapore. 997 This observation apparently comes from the confusion brought over its

classification as an agricultural activity. The observation supports the view that golf operation is

a unique activity, which is theoretically a commercial activity and not agriculture. In an

interview with Desmond Chua, General Manager of Keppel Club, the NEA, AVA and PUB have

“pushed around” the industry and that it was only in 2008 when PUB came up with the

allowable pesticide guidance due to the construction of golf courses within water catchments.

These water catchments are precisely controlled by the PUB, which also has major interests998 in

the operation of several golf clubs.

The Singapore Island Country Club narrates in its website that “on 1 January 1992, the Public

Utilities Board (PUB), which owns the club's land, offered a thirty - year lease on the conditions

that the SICC was to introduce transferable membership and the PUB would appoint a chairman

who would have veto powers and who would appoint the club's president, captain and honorary

treasurer”.999 Apparently, a few officers of PUB hold positions in these golf clubs which PUB

997 Personal interview of Desmond Chua, Deputy General Manager, Keppel Club, # 10, Bukit Chermin, 109918 Singapore on March 10, 2009. Transcript of personal interview with golf course profile is attached as Appendix “40”. 998 History of SICC (Last Updated, October 24, 2008). Visit http://www.sicc.org.sg/web/main.aspx?ID=ff293385-7469-42b3-a3f9-338108559e7c,,&TargetPageID. Accessed on October 25, 2008. 999 About SICC, Transferrable Membership. Available at http://www.sicc.org.sg/club_history.asp. Accessed on April 6, 2011.

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leases its land yet there is no study however that would show that PUB makes money out of

these leases or any transaction.

The Singapore Island Country Club (SICC) operates four 18 holes1000 and one nine holes

Millennium Course, with the Sime Course located side by side with MacRitchie Reservoir and

the New Course, which winds along the Lower Peirce reservoir. SICC is one of the largest golf

clubs in Singapore with 7,600 proprietary members1001 and is generally known to engage in

intensive maintenance practices. 1002 The Warren Golf Club is situated within the water

catchment of PUB-controlled Kanji reservoir. During an ocular inspection of the golf course in

May 2009, Ian Gray, General Manager and Michael Cabel, Golf Course Superintendent, pointed

out that despite its location inside the Kanji reservoir area, the golf club built its own five lakes

with a connected drainage system to collect rainwater, the supply of which can last for more than

thirty to forty-five days. Gray shared that “water usage is computer programmed and in case of

critical water level, PUB allows them to pump in water from its catchment for a fee using a

metered devise”. Cabel confirmed that “PUB randomly monitors water use and conducts water

quality tests”1003 although he had complained several times to the PUB that its dikes traversing

the golf course show a high concentration of nitrates in pond or stagnant waters with the

presence of algal blooms, but these are not water coming out from the club but from nearby

HDB residential estates.

There are at least five golf courses in Singapore with identified government interest. First is

Sembawang Country Club1004, which is owned by the Singapore Armed Forces and was built for

the use of military officers in 1967. Second, is the SAFRA Resorts1005 with the Army, Navy and

1000 PUB leases its land to Sime and New Courses. The lease by SICC has been re-negotiated and approved in 2003. Visit http://www.pub.gov.sg/mpublications/Pages/PressReleases.aspx for PUB Press Release: Response to Media Queries – SICC Lease Extension. Accessed on September 3, 2010. 1001 The SICC has a total membership of 17,000. Available at http://www.sicc.org.sg/Web/main.aspx?ID=,37caf7e1-2be7-4747-a171-b5bb5016408c. Accessed on August 24, 2010. 1002 The use of hybrid turf grasses by SICC is necessarily vital in this research, whether it is of common (local) variety or hybrid. 1003 Personal interview conducted during one of the ocular inspections, as Appendix “15”. 1004 The tee mounds are planted with the hybrid Zoysia Matrella and the greens by bermuda tifdwarf (hybrid). Visit http://www.sembawanggolf.org.sg/. Accessed on September 3, 2010. 1005 The three courses and the Kranji have a total membership of 12,000. SAFRA’s courses have 10,000 players every month while Kranji have 6,000. The courses have been rehabilitated and are planted with hybrids, such as the new Seashore Paspalum SeaIsle Supreme grass for the greens.

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Air Force Golf courses built with Ministry of Defense’s financial support1006 and third is the

Kranji Sanctuary Golf Course (KSGC) situated within the PUB-controlled Kranji catchment,

and established to reward the National Servicemen of Singapore1007 with affordable golf courses.

A General Committee composed of representatives from the Ministry of Defense manages the

KSGC.

In relation to golf courses, the MEWR and the PUB is being seen as lagging behind in regulatory

enforcement. A Superintendent complained about the nitrogen build-up in the catchment area

allegedly brought about by farming activities in nearby vegetable, fish and dairy farms.1008

McKeown, Golf Course Superintendent of Kranji Sanctuary Golf Course, challenges the PUB to

enforce its authority by conducting water tests and revealing the results thereof. However,

McKeown disclosed that PUB did not show the results to them. Nonetheless, during the ocular

inspection of the golf course, it was observed that KSGCC uses hybrid turf grasses, such as the

Bermuda for the fairways and tifEagle for the greens though it uses rainwater collected from the

catchments for its irrigation and watering. As previously discussed, hybrid turf grass requires

high maintenance for watering and chemical application. Other golf clubs grow the more

suitable specie for tropical countries – the Zoysia, a genus of creeping grasses, native to South

and East Asia.

There is confusion as to which agency exercises over-all regulation of golf courses due to

insufficient and improper enforcement.1009 McKeown complained that PUB reservoirs are not

cleaned up, although once a month PUB employees conducts random water testing or spot-

checking. However they do not share data with him. There are suggestions coming from the

Course Superintendents “that AVA’s role as a regulatory agency must be reviewed and

evaluated”. They claim that AVA cannot cope with the amount of work and that PUB and AVA

do not coordinate with one another. Current AVA procedure on registration of chemicals must

be revised and must be made in the name of the golf course and not the Superintendent.1010

1006 The President of Singapore is the Patron of SAFRA, while the Board of Governors, chaired by the Deputy Prime Minister and Minister for Defence formulates policies and sets broad directions. Visit http://www.safra.sg/page.aspx?pageid=144. Accessed on September 2, 2010. 1007 There are more than 300,000 National Servicemen in Singapore. 1008 To go to Kranji Reservoir Golf Course, one passes by the Aeroponics vegetable farm, the Pang Long cultured tropical fish farm and the Hay Dairies Goat Farm. 1009 McKeown has been working for KSGC for more than six years. He insists that there must be chemical use and development regulation. He noted that there is no water use regulation in KSGC. 1010 McKeown has been applying for registration of chemicals under his name for the last six years. He said that AVA does not require registration of those chemicals not listed though classified as harmful but

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Other golf courses situated near water catchments include the Seletar Base Golf Course, which

has been redeveloped as a public golf course with nine holes facilities while the Lower Seletar

Reservoir serves as backdrop. The Orchid Country Club is a proprietary club with a hotel inside

the golf course situated adjacent to the Sungei Seletar reservoir and is owned by the Singapore

Labor Foundation, an affiliate of the National Trades Union Congress (NTUC). In 2007, the

URA allowed the construction of hotel facilities inside golf courses and these have been justified

because of limited hotel rooms.

Finally, PUB introduced a program to protect water quality in golf courses through the

Catchment and Waterways Department yet in essence, there is still a huge impact in water

quality on the reservoir as all ponds of the golf courses are linked to the reservoir through

overflow pipes or weirs. When it rains heavily, incidence of pond overflow may occur, as golf

courses generally are sand-based brought about by turf grass cultivation. As such, it lacks the

function in soil filtration. Water run-offs flow straight to the PUB water catchments. To sum up,

the three principal agencies tasked to implement environmental protection and national planning

have inadequately and ineffectively regulated the golf course industry due to the absence of

specific legislation on EIA and chemical application specific to the industry. The three co-equal

departments (executive, legislative and judiciary) of the government exercise checks and

balances and are working efficiently. Nevertheless, there are no legal questions involving the

environment in golf courses, which have been raised before the court for judicial guidance.

3. Checks and Balances: NGO and Civil Society Participation

Meanwhile, the environmental NGO movement is active and working closely with the

government, media and industry. Among the registered NGOs are the Nature Society of

Singapore (NSS)1011 and the Singapore Chemical Industry Council (SCIC). There is also the

are being used in most golf courses. He also disclosed that there is minimal consultation by PUB on its guidelines on chemical usage in controlled reservoirs. He even shared the information that he advised PUB on the use of Dacogreen. Dacogreen is used for the control of dollar spot and brown patch in turf. It has been used on Australian turf for over thirty years. In horticulture, this fungicide is used to control leaf blight, leaf spot, downy mildew, and rhizoctonia related diseases. Its active ingredient is Chlorothalonil. Visit http://www.fertilizers.com.sg/dacogreen-720g-l. Accessed on April 6, 2011. 1011 The Nature Society of Singapore (NSS) is a non-government, non-profit organisation dedicated to the appreciation, conservation, study and enjoyment of the natural heritage in Singapore, Malaysia and the surrounding region, with portal at http://www.nss.org.sg/about.html.

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Nature Trekker Singapore1012 and the Blue Water Volunteers. Both the local and international

NGOS pursue environmental protection and nature conservation.

The Singapore Environment Council (SEC) is the umbrella organization that coordinates the

activities of environmental groups, promoting environmental awareness amongst the citizenry

and constantly organizes public education programmes on the environment. The SEC is an

independently managed, non-profit and non-government organization with the status of an

institution of public character. There are so many golf organizations in Singapore but these have

not been translated into advocacy for the protection of the environment in golf courses.1013

4. Analyses and Evaluation

Singapore has limited land availability. There is no national policy on golf course development

yet it would appear that the government machinery has been very supportive of the industry.

Various government agencies have provided financial and legal support for the construction of

golf courses, such as the Public Utilities Board and the Singapore Land Authority. There are

thirteen golf courses with quasi-public interests owing to the direct or indirect investments of the

government or due to leasehold agreements of State lands by various golf clubs.

Singapore has the highest density of golf courses in the world per ten square miles. The country

has no national policy on golf course development. Questions are validly interposed, as to

whether the government rewards and prioritizes the minor sector of its society (National

Servicemen and the Army, Navy and Air Force) since five golf courses are directly and

indirectly funded and controlled by various military agencies. Moreover, statutory bodies, such

as the Public Utilities Board and Singapore Land Authority have leased on long-term basis

(thirty years) vast tract of state lands for golf course development and operation.

Singapore’s land reclamation policy presumably resolves the dilemma of limited land

availability yet the soundness of which, specifically on the wise use of reclaimed lands,

including for golf course development, is an important issue that must be evaluated. Thus, the

1012 Nature Trekker (Singapore) is a non-profit organisation especially dedicated to all nature lovers and adventure seekers to share and explore. Nature Trekker was established with a mission to cultivate outdoor adventure lovers to learn and appreciate nature, thereby giving our beautiful yet fragile environment the due respect it deserves, available at http://www.naturetrekker.org/. 1013 Meanwhile, the Singapore Environment Council (SEC) aims to educate, inspire and assist individuals, business organizations and environmental group to care for and protect the environment, with website at http://www.sec.org.sg/. Sites accessed on April 6, 2011.

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ethical use of limited public land and natural resource must be reviewed. The proposed golf

course at the Lower Peirce Reservoir in 1991 has been shelved yet it might pose a challenge in

the future, as there is an acknowledged need for more golf courses. Although Singapore is touted

to have the most stringent regulatory mechanism yet inescapably there is a need to legislate an

EIA law with a strong public consultation mechanism. The hallmark of comprehensive public

participation is noticeably absent in the process currently in place. Thus, the limited public

consultation, which is currently observed in Singapore, is a consultative approach but certainly

not fully participatory”.

1.2 Cross-national Summary

To conclude, these fragmentations, incoherence and inadequacies affect or impact the

development and operation of golf courses. Apparently the outcomes disclose a restrictive and

limited protection of the environment in golf courses. There are also institutional limitations,

structural failings, ambiguous policies and weak regulatory mechanisms. Thus, the cross-

national comparison reveals similarities, differences or shared characteristics of the frameworks

albeit the subject countries have different capacities, political conditions, socio-economic

systems and cultural practices. The non-equivalent position and adaptive capacities of the

subject countries are considered for the comparison.

There is also a wide spectrum of constraints affecting the regulation of the golf course industry. It

maybe asserted that the inadequacies can not be solely attributed to lack of information, unsound

legislation or institutional capacity but rather to political considerations, instances of corruption

and the failure to treat golf courses separately and distinctly from the regulation of agriculture. In

developing countries, competing political interests define the nature, quality and outcomes of

statutory enactments. And despite decentralization efforts government agencies have to deal with

jurisdiction overlaps, conflicts or turf wars among sectoral agencies, which exercises collaborative

and coordinating powers. Other laws and regulations are not responsive or relevant to the needs of

the industry.

Golf courses are not explicitly mentioned in many laws and regulations. Arguably, it can also be

mentioned that the legislative and regulatory frameworks governing golf courses is determined

by the country’s political economy and the Kuznets curve. This thesis argues that the curve

applies to the case of golf courses since countries pay more attention to environmental issues as

they become richer but when they are poor, they have many problems to attend to and regulating

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golf courses is not always high in their priorities when they have much more pressing

environmental problems.

There is also a finding of erroneous classification of turf grass management as agriculture. There

is a dearth of capabilities, as the countries presently experiencing the proliferation of golf

complexes are known to have less information, expertise and financial resources to predict

environmental impacts. In most developing economies, specifically those identified within the

first tier of the corruption perception index, lawmaking is sometimes considered as a

“transactional activity” whereby the interplay of opposing political or economic interests result

in the enactment of a “compromise” legislation. Naturally, the existence of ambiguous

provisions in the “compromised” law affects implementation, and ultimately, enforcement and

compliance.

Another cause for concern is the possibility that international golf companies (mostly hotel and

resort corporations) take advantage of regulatory weaknesses by operating in developing

countries with less restrictions or stakeholders’ opposition. It can also be argued that the “rapid

proliferation of golfing complexes in general has not been matched by official efforts and

capacities to put in place the necessary infrastructure for adequate planning, monitoring and risk

containment, especially in regard to chemical use and its adverse effects”1014.

There are questions as to why golf courses have proliferated despite economic downturns and

failing investments. There is also a growing dislike and/or opposition to the proliferation of

golfing complexes, thus it is instructive to analyze the plausible explanation for these. The

evaluation of the National Implementations Plans and National Reports submitted to various

Secretariats of multi-lateral environmental agreements such as the Convention on Biological

Diversity, the Ramsar Convention on Wetlands of International Importance, and the Stockholm

Convention on Persistent Organic Pollutants disclose that there is generally non-compliance by

Contracting Members to the objectives and substantive obligations of the Conventions in the

context of golf courses, e.g. POPs enumerates twenty-two banned chemicals yet some golf

courses uses active ingredients with high toxicity prepared through unauthorized “blending” and

“re-formulation”. There exists government stockpiles of banned chemicals; non-compliance to

1014 Pleumarom, Anita, Cutting Harmful Effects of Golf Course Chemicals, The Nation, February 1995, at page 1.

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Heritage Convention, where golf courses are allowed construction in protected heritage and

archeological sites.

This thesis finds analogous outcomes inter alia sectoral approach to environmental management

(dispersed competencies, no single agency regulates the golf course industry), overlapping

jurisdictions, insufficiency of technical, human and financial resources at the national, regional

and local government levels. The use of political power and influence to promote certain

economic or business interests are also considered. At the other end of the spectrum is the

problem of compliance by the sector being regulated, as well as the mode of “permissible”

compliance. In the subject countries, the basic enforcement approaches are criminal and civil.

This dissertation has shown that the environmental laws that are relevant to golf courses in the

subject countries are fragmented.

This thesis undertook to conduct an in-depth and cross-national (across and within) study to

compare and evaluate the existing environmental governance in the subject countries. By using

the comparative framework this dissertation conducts a critical evaluation and analysis of the

letters of the law, regulation and policy, practices and the constitution. Apparently, there is

limited evaluation of the degree of enforcement and implementation owing to the absence of

data. Very few government agencies, as well as private enterprises, share publicly their

enforcement and implementation reports. This thesis resorts to evaluation of administrative

orders, guidelines, decrees and circulars, notifications and implementing rules and guidelines,

which simplify, clarify or explain certain provisions of law. Most of the data on enforcement

were gathered based on the National Reports and National Implementation Plans submitted by

the four countries to various Secretariats of Conventions. Best practices and sustainable

management are culled from websites of golf clubs, national golf federations, world’s golf rule

bodies and environmental NGOS. Nevertheless, data are not comprehensive enough to be

critically analyzed.

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Table 1.24 shows the Summary of cross-national comparative analyses and evaluation.

Table 1.24 Summary

Features Thailand Philippines

Viet Nam Singapore

Number of golf courses

222 operational 2 under construction, annually

78 operational 64 under construction / non-operational

24 operational 25 under construction

16 golf clubs (26 golf courses operational)

Per Capita Income Middle Income Low-Middle Income

Low income High Income

Political system Liberal democracy Liberal democracy One party rule Illiberal Democracy

Legal tradition Civil Law, with influences of common law

Civil law, with Common law traditions

Socialist, with influences of French Civil system

English Common law

Adoption of MEAs Yes Yes Yes Yes Environmental Agencies

Collaborative between DENR and Local governments, secondary and other affiliate agencies

Collaborative between MENRO and Local governments, secondary and other affiliate agencies

Collaborative between MENR and PPCs, secondary and other affiliate agencies

Collaborative between MEWR, secondary and other affiliate agencies

Application and Enforcement of Law and Environmental Governance for Golf Courses

Incoherent, inadequate and Fragmented

Incoherent, inadequate and Fragmented

Incoherent, inadequate and Fragmented

Incoherent, inadequate, Fragmented and ad hoc basis

Environmental Administration, Supervision and Management

Adopts both Centralized (DENR) and Decentralized (LGUs) administration, supervision and management

Adopts both Centralized (MENRO) and Decentralized (LGA) administration, supervision and management

Adopts both Centralized (MENR) and Decentralized (PPCs) administration, supervision and management

Adopts both Centralized (MEWR) and Decentralized (TCs) administration, supervision and management

Environmental regulations specifically for golf courses

None There is fragmented adoption of top-down approach and use of economic instruments

None There is fragmented adoption of top-down approach and use of economic instruments

None There is fragmented adoption of top-down approach and use of economic instruments

None There is fragmented adoption of top-down approach and use of economic instruments

Rule of law Moderate Moderate Moderate Strong Regulatory capacity

Moderate Susceptible to regulatory capture High ranking in

Moderate Susceptible to regulatory capture High ranking in

Moderate Susceptible to regulatory capture High ranking in

Strong Robust legal and regulatory system

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corruption index by Transparency International

corruption index by Transparency International

corruption index by Transparency International

Presence of NGOs, Civil Society

Yes Vibrant NGO and civil society promoting general environmental protection

Yes Vibrant NGO and civil society promoting general environmental protection

Yes Vibrant NGO and civil society promoting general environmental protection

Yes Vibrant NGO and civil society promoting general environmental protection and specifically opposed the proposed construction of Lower Peirce Reservoir and Kranji Sanctuary Golf Courses

Industry Norms and Practices

Yes Case studies have shown that there is limited and company-initiated self-regulation, best management and sustainable practices

Yes Case studies have shown that there is limited and company-initiated self-regulation, best management and sustainable practices

Yes Case studies have shown that there is limited and company-initiated self-regulation, best management and sustainable practices

Yes Case studies have shown that there is limited and company-initiated self-regulation, best management and sustainable practices

Traditional golf courses

Yes Yes, with one internationally recognized and awarded sustainable golf course

Yes Yes, a few courses observe sustainable and best practices

* Legend: LGA - Local Government Administration LGU - Local Government Units PPC - People Provincial Councils RA - Republic Acts PD - Presidential Decree

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Chapter V CONCLUSION AND RECOMMENDATIONS

1.1 Conclusion 1.2 Theoretical Implication 1.3 Policy Implication 1.4 Legal Implication 1.5 Recommendations 1.6 Contribution to Knowledge 1.7 Guidance for Further Research 1.1 Conclusion

This thesis explores the question of how the law and governance can promote and further the

objectives of sustainable development by using a cross-national comparative study of golf

courses in the Philippines, Thailand, Viet Nam and Singapore- a subject that has not received

adequate attention from legal scholars studying sustainable development or environmental law.

The comparative environmental law literature, for instance, is built on the proposition that there

should be a “common trend, in substance and procedure, across legal traditions (Robinsons,

1998). Meanwhile, the environmental governance framework of analysis was built on

Francesch-Huidobro’s (2008) argument.

Thus, this thesis prepared the following questions:

Question No. 1: Are golf courses in the Philippines, Thailand, Viet Nam and Singapore

coherently, effectively, and adequately regulated under the existing national laws and

governance? Is self-regulation feasible in the four subject countries?

Question No. 2: Do principles or philosophies embedded in Multi-lateral Environmental

Agreements, as well as international and regional hard and soft law instruments, actually guide,

inform, enhance and promote domestic environmental protection and conservation?

Thesis proposes the following:

Hypothesis 1 - that law and governance in golf courses are not coherently, effectively and

adequately enforced in the four countries.

Hypothesis 2 - that self-regulation of golf courses is feasible under certain conditions.

Hypothesis 3 - that the MEAs and hard and soft law instruments actually guide, inform, enhance

and promote domestic environmental protection.

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This thesis concludes:

1. That by using variables, case selection and sources (such as the constitutional and

legislative provisions pertaining to the planning, construction and operation of golf courses

based on secondary sources) this thesis finds that the comparative analyses - across and within

countries (Singapore, Thailand, Viet Nam and the Philippines) have shown fragmentations,

incoherence, ineffectiveness and inadequacies.

a) National law and governance are not able to address a number of thorny

issues that apply to the construction, development and operation of golf courses.

These practical issues cannot be settled due partly to the erroneous classification

of golf course activities as agriculture. Neither can they be resolved by one

legislative enactment. On the whole, these issues can be resolved with the passage

of effective, adequate, stringent and coherent regulation, specifically relating to

land use planning and control, biodiversity protection and nature conservation,

EIA, water and water resources, chemical application, sanitation, health, waste

management, among others. The rule of law is recognized as an effective

approach to prevent uncontrolled activities.

b) The laws and regulations tend to evolve in traditional, fragmented,

compartmentalized and reactive or ad hoc manner. For instance, golf “tradition

and practice” have popularly considered golf course management or turf

maintenance as agriculture. Moreover, the regulation of water quality in golf

courses are derived from regulations targeted at drinking water quality; while

regulation of the use of fertilizers, pesticides, fungicides and other chemicals are

derived from agriculture-related regulations; land use regulations were intended

for urban planning purposes but do not adequately take into account the concerns

of agriculture such as food security, among others. In short, because these

regulations evolved and were designed for purposes other than to regulate golf

courses, they have become incoherent, unresponsive and inadequate for purposes

of regulating its adverse environmental impacts. By implication, this thesis argues

that having an adequate, coherent, effective and responsive legislative and

regulatory framework is necessary to reduce adverse environmental impacts and

to encourage more sustainable golf courses.

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2. That by using variables, data and sources, industry norms and practices (sustainable vs.

traditional golf courses) based on key informant surveys (refer to methodology) and from a

comparison of management practices (sustainable vs. traditional golf courses) - a supervised

approach and benchmarked self-regulation is attainable. However, for sustainable golf courses

to become an industry norm, it is argued that a combination of self-regulation, benchmarking,

public pressure, market demand, incentives and disincentives (“carrots and sticks”) from

regulators and reliable verification and enforcement mechanisms would be needed. Toffel

(2010) concludes that, “in order to really deliver on the promise of these programs, third-party

verification will become increasingly important.”

Admittedly, there is weak adoption of industry norms or self-regulation among golf courses.

Thus, incentives and disincentives must be proffered for the industry to adopt these policies.

From the case studies, this thesis finds that only a few golf courses adopt best practices

management, wildlife certification and accreditation, transparency, corporate social

responsibility, sustainable practices and management. Industry norm becomes widespread

through massive information campaign to be initiated by the government.

This thesis also finds that self - regulation is desirable and feasible under certain conditions.

a) Because the enforcement of regulation tends to be costly and imperfect,

and technology for golf construction and operation is dynamic, i.e. evolving, it

makes sense for environmental policy to promote self-regulation among golf

courses.

b) Self-regulation by golf courses, in terms of adopting sustainable

practices, is feasible under certain conditions. This is because a sustainable

model of golf courses presents golf owners and operators with a competitive or

niche advantage in the industry especially for environmentally conscious

players.

c) A sustainable model also technically and financially makes sense for

golf operators; lessens their reputational risks in addition to helping them

comply with environmental regulations.

d) However, for sustainable golf courses to become an industry norm, it is

argued that a combination of self-regulation, benchmarking, public pressure,

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market demand, incentives and disincentives “carrots and sticks” from

regulators and reliable verification and enforcement mechanisms would be

needed.

3. A comparative analysis (across and within countries) has been conducted to determine

the effectiveness of MEAs in guiding, informing, enhancing and promoting domestic

environmental protection. This dissertation reviewed variables, data and sources such as, MEAs,

international and regional hard and soft law instruments from secondary sources. The ability of

countries to adopt or transplant best practices however, depend on several factors, such as the

country’s economic status, as well as its financial, legal and administrative capacity. It is

hypothesized that developed economies with stronger financial, administrative and legal

capacities are more likely to adopt best and sustainable practices. Conversely, less developed

economies with weaker financial, administrative and legal capacities are likely to have less of

these. These are mere capabilities and may not be adopted by the developed and developing

countries, depending on their development and environmental priorities.

This thesis likewise finds that the MEAs and hard and soft law instruments actually guide,

inform, enhance and promote domestic environmental protection.

a) Robinson (1998) hypothesizes that there should be a “common trend in

substance and procedure across legal traditions.” The common trend therefore

should facilitate the process of learning, adoption and adaptation and that we

should expect to see substantively similar legal procedures across jurisdictions.

The implication of all these is that we should expect to see a common trend in

substance and procedure in environmental law across legal traditions. This

dissertation disclosed that countries have adopted and transplanted the same

MEAs that have relevance to the regulation of the environment. Likewise,

national or domestic legislation of the four subject countries reflect almost

similar laws and regulations on EIA, biodiversity protection, nature

conservation, water resources, chemical application, public participation,

consultation, NGO and civil society consultation, etc. However, these laws

needs to be improved to address fragmentation, incoherence and inadequacy.

4. This thesis likewise finds specific, relevant and critical issues, namely:

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a) There are similar grants of economic and investment opportunities,

fiscal and non-fiscal incentives to local and foreign direct investments in golf

courses. Apparently, these are driven by market demands and globalization

force. This largely attracts foreign investments in the lucrative golf course

sector.

1.2 Theoretical Implication

This thesis will contribute immensely to the literature about law and governance in golf courses.

The theoretical framework of law and governance analysis about sustainable development and

environmental regimes maybe reviewed and evaluated to enhance, guide and develop

discussions about best practices, sustainable management, etc. There has been a gap in the

academic and policy literature about the regulation of golf courses. This theoretical framework

maybe availed of to close this gap.

1.3 Policy Implication

This thesis will contribute to policy formulation, particularly on the extraction of ground water,

utilization of state-owned bodies of water, chemical application, EIA, nature conservation,

national heritage and archeological preservation, waste water treatment facility, etc. The

codification of laws begins with policy formulation. Those countries, which have difficulty in

reconciling their political and legislative interest, may find the issuance of policy guidelines

more acceptable and practical to implement.

1.4 Legal Implication

This dissertation hopes that this thesis will result in the codification of guidelines, policies and

other decrees. It will also result in the strengthening of EIA laws, land use planning laws, etc.

1.5 Recommendations

A. National or Domestic Application

1. This thesis recommends that a stringent law and governance framework must be enacted

and/or enforced, recognizing the role, impacts and consequences of golf courses by taking into

account the issues about EIA, heritage and archeological preservation, chemical usage, water

resources, nature conservation, biodiversity protection, land use planning, public consultation

and stakeholders participation, participation of civil society and like minded groups, etc. Thus,

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golf –related laws and regulations as aforementioned must be strengthened and its scope and

coverage must be enhanced.

2. The institutional framework must also be strengthened to pursue good governance;

promote cooperation, collaboration and coordination among multi-sectoral agencies tasked to

enforce the law and governance measures; ensure that there are no jurisdiction overlaps, conflict

or turf wars, etc.

3. There should be strong emphasis on public and stakeholder’s participation, which are

constitutionally guaranteed in most jurisdictions or subsumed in the EIA legislation in other

States. Those countries without EIA legislation should introduce and make mandatory the public

consultation mechanism in their administrative orders and guidelines.

4. There is also an urgent need to initiate an official study of the impact on health of

chemical usage in golf courses. The impact study should be initiated by the World Health

Organization (WHO) or the national governments of the subject countries in this dissertation.

5. Philippines, Thailand and Viet Nam must adopt a National Land Use Plan that must set

specific benchmarks and standards; scope of coverage; Master Plan identifying specific areas

allowable, regulated and totally prohibited for golf course development. Decentralization laws

should be harmonized with the national land use plan in relation to land use classification and

land conversion. There must also be specific laws and regulations on land conversion and

classification.

6. The existing Chemical application laws for agricultural activities must be enhanced so

as to incorporate commercial activities such as turf grass maintenance and management.

7. An EIA Law must be enhanced or adopted, either as a planning or regulatory tool, with

mechanism for comprehensive public consultation and stakeholder’s participation;

8. The existing Water Resources law must also be enhanced, to include stringent

provisions on groundwater extraction, installation of flow meters and mandatory reportorial

compliance to Water agencies;

9. The conduct and preparation of Biodiversity Assessments must be institutionalized;

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10. The endorsement of a golf course project by the Local Government

Units/Administration, the Regional Development Councils, NGOs and civic-minded groups

must be institutionalized, with mechanisms for greater participation in the decision making

processes, establishment of Multi-partite Committees that would monitor and ensure transparent,

participatory, accountable governance. Most of the LGUs have development and legislative

agenda in place however, there is a need for local governments to strengthen their capacity for

EIA formulation and data banking.

11. Each subject country should designate a particular institution that would supervise and

monitor the activities of golf courses, particularly, the regulation of the development and

operation thereof.

B. International and Regional Application

1. An MEA or a regional agreement should be adopted, e.g. enhancing with

modifications the ASEAN Agreement on the Conservation of Nature and Natural

Resources, 1985, to include an update on the EIA process, biodiversity assessments,

water resources, chemical regulations, transparency mechanism, public consultation and

stakeholders participation, etc. The 2004 ASEAN Guidelines to Maximize Biodiversity in

Golf Courses maybe used as a reference to be improved, with specific recommendation

on standards and benchmarks.

2. The world’s golf rules bodies should adopt and issue guidelines to promote

sustainable management, best course practices, good governance, etc. These recognized

industry norms and self-regulation should be institutionalized, benchmarked and

formulated. Incentives and disincentives must be proffered to encourage the adoption of

this mechanism. The International Sustainability Council, Asia-Pacific Golf

Conferences and the Ministry of Industry and Primary Resources of the Royal

Government of Brunei initiated the recognition of environmental stewardship in golf

courses in 2012. The Royal Government of Brunei has committed that it will make the

yearly recognition to ensure the innovative and green ways of building and maintaining

golf courses.

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1.6 Contribution to Knowledge

The outcome of the research contributes to policy-makers, regulators and legislators in Asia with

prescriptive recommendations for changes in broad legal structures and stringent regulations.

This dissertation will not only assist in enhancing the regulatory capabilities of various

government agencies, particularly the environment sector, but it will help strengthen capacities

and trigger wider benefits. The literature addresses the gap in policy and academic literature

about the regulation of golf courses. Theoretically, it will resolve the issue whether turf grass

maintenance is agriculture or not. This dissertation likewise examines the implications of the

proliferation of golf courses and the land use conversion of agricultural lands, particularly paddy

fields.

1.7 Guidance for Further Research

This dissertation admits limitations as it does not address several wider issues, such as the

inventory of chemicals and sands (total volume), imported or locally sourced, used in golf

courses. The key informants during interviews and surveys have not directly answered the

crucial issues on chemical application and water sources. There is no official record available

about cancer-related deaths being maintained by golf clubs involving employees, caddies and

course superintendents but anecdotal stories are making the rounds in golf courses. The

constraints in this research provides platform for further research in the area of regulatory

regimes as a topic of study. It is expected that this thesis will provide a platform for other

scholars to conduct similar studies with respect to other countries, which allows the proliferation

of golf courses. This will help verify and validate finding in this thesis.

-End-

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http://www.cbd.int/countries/ http://www.chilinhstargolf.com.vn/ http://www.cites.org/eng/disc/parties/chronolo.shtml http://www.cms.int/about/index.htm http://www.commerce.state.wi.us/ http://www.dalatpalacegolf.vn/ http://www.dbm.gov.ph/dbm_publications/nep_2005/details_files/dpwh-programs.txt http://www.dbm.gov.ph/dbm_publications/nep_2005/details_files/dpwh-programs.txt http://www.dgr.go.th/en/main.htm http://www.dhs.wisconsin.gov/ http://www.dilg.gov.ph/ http://www.dnr.state.oh.us/ http://www.dnr.state.wi.us/org/water/dwg/gcc/RTL-2000.pdf http://www.dnr.state.wi.us/org/water/dwg/gw/gw-ans.htm http://www.doa.state.wi.us/section.asp?linkid=133&locid=9 http://www.drl.state.wi.us/ http://www.egazette.com.sg/Document/gg/2006/065016.pdf http://www.epa.gov/lawregs/laws/cercla.html http://www.epa.gov/oppfead1/annual/2000/2000annual.htm http://www.epa.state.oh.us/ http://www.esrcc.com.sg/news/kranji.html http://www.fpa.da.gov.ph/ http://www.gao.gov/new.items/d05458.pdf http://www.gardentech.com/Dac_productinfo.asp http://www.ggaclubshares.com/

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http://www.golf-tours-thailand.com/golf-course/Golf-Courses-Bangkok-All.htm http://www.golf2thailand.com/Samutprakarn-golf/the-royal-golf-country-club.asp http://www.golfinakingdom.com/ http://www.hdb.gov.sg/ http://www.imgworld.com/sports/golf/course_design.sps http://www.keppelclub.com.sg/ http://www.keppelseghers.com/keppelite/23/Contract_for_fifth_incineration_plant_in_Singapore http://www.law.mq.edu.au/html/MqJICEL/vol3/vol3-1_chun.pdf http://www.letsrecycle.com/do/ecco.py/view_item?listid=38&listcatid=218&listitemid=55981&section= http://www.llda.gov.ph/Services_LC.html#Fees http://www.mbgc.com.sg/index.htm http://www.monre.gov.vn/monreNet/Default.aspx?tabid=231 http://www.navatanee.com/ http://www.nea.gov.vn/en/laws/Pages/Golfcoursesfacegreengrilling.aspx http://www.nenepimentel.org/cgi-bin/build.pl?section=bluerib;id=CRF-51 http://www.nss.org.sg/about_history.html http://www.oceandunesgolf.vn/ http://www.ohiogolfguide.com/index.php http://www.onep.go.th/eia/ENGLISH/eia_eng_index.htm http://www.onep.go.th/onep_en/ http://www.opengolf.com/ http://www.owda.org/owda0001.asp?PgID=homepage http://www.panyagolf.com/ http://www.pcd.go.th/about/en_ab_mission.html. Accessed November 30 http://www.pestproducts.com/daconil.htm

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http://www.pgavietnam.com/COLUMNS/FTPS%202007/teed_off_25%20November%202007.htm http://www.pub.gov.sg/about/Pages/default.aspx on history of PUB. http://www.pub.gov.sg/mpublications/Pages/PressReleases.aspx http://www.pub.gov.sg/water/Pages/LocalCatchment.aspx http://www.puco.ohio.gov/ http://www.ramsar.org/cda/en/ramsar-documents-official-docs/main/ramsar/1-31^7761_4000_0 http://www.royalgolfclubs.com/defaults.php http://www.safra.sg/page.aspx?pageid=144 http://www.seaisle1.com/ http://www.sembawanggolf.org.sg/ http://www.sicc.org.sg/web/main.aspx?ID=ff293385-7469-42b3-a3f9-338108559e7c,,&TargetPageID http://www.sodfather.com/turf-grass/platinum-te-golf-courses.asp. http://www.sos.state.oh.us/SOS/PUBLICATIONS/electVoterPubs/muni.aspx http://www.swib.state.wi.us/ http://www.syngentaprofessionalproducts.com/prodrender/index.aspx?prodid=400 http://www.tamdaogolf.com/web/default.aspx?lang=en-US http://www.thaicountryclub.com/scripts/default.asp http://www.thailandgolfcourse.com/GolfCourse/Windmill%20Park%20Country%20Club.htm http://www.thegolfcourses.net/golfcourses/WI/Wisconsin.htm http://www.ura.gov.sg/conservation/conservation.htm http://www.ura.gov.sg/conservation/mod3.htm http://www.usga.org/course_care/articles/management/greens/Stimpmeter-Instruction-Booklet/ http://www.usga.org/news/2010/June/USGA-Names-Erin-Hills-Site-Of-2017-U-S--Open-And-Awards-2018-U-S--Amateur,-2019-U-S--Open-To-Pebble-Beach/ http://www.usga.org/Rules.aspx?id=7788#show=ae24f9d42fea42b89a48cdee24ce9a9b

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http://www.usopen.com/en_US/index.html http://www.uwex.edu/wgnhs/ http://www.uwsp.edu/cnr/weeb/ http://www.vga.com.vn/?show=intro&ic=1&list=6 http://www.warren.org.sg/ http://www.weatherbase.com/weather/weatherall.php3?s=89684&refer=&units=metric http://www.wisconsinhistory.org/ http://www.zoysias.com/ http://www1.american.edu/ted/asiagolf.htm International Association of Golfing Tour Operators (IAGTO) at http://www.onecaribbean.org/content/files/Golf.pdf and http://www.iagto.com/. International Golf and Life Foundation at http://www.golfandlife.ch/ Investment regimes in ASEAN countries at http://asialaw.tripod.com/articles/lawaninvestment10.html IUCN at http://www.iucn.org/themes/WCPA/wpc2003/pdfs/programme/day2/b/changeandpas_sypnosis.pdf. Japan External Trade Organization (JETRO) at http://www.thaitrade.sg/thai_advantage.html Japan’s ODA policy for Viet Nam at http://www.mofa.go.jp/policy/oda/region/e_asia/vietnam.pdf and http://www.mofa.go.jp/policy/oda/longlist/vietnam.pdf Laguna Lake Development Authority (LLDA) at http://www.llda.gov.ph/ Laguna National Golf and Country Club at http://lagunagolf.com.sg/club-profile Lifestyle Survey 2009 at http://spring.ura.gov.sg/conceptplan2011/results/Report%20- Mega Resorts, Golf Courses and Food Crises” at http://www.twnside.org.sg/title2/tourism/doc/01.Mega-resorts.golf.courses.and.food.crisis.doc Ministry of Agriculture Report, 2008 in Vietnamese language at http://www.agroviet.gov.vn/Pages/default.aspx Ministry of Community Development, Youth and Sports (MCYS) at http://app1.mcys.gov.sg/

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Ministry of Environment and Water Resources (MEWR) at http://www.ifaq.gov.sg/mewr/apps/fcd_faqmain.aspx Ministry of Foreign Affairs of Thailand at http://www.mfa.go.th/multimedia/E_Book/b2.pdf Ministry of Health website at http://eng.moph.go.th/HealthSit/index.php Monetary Authority of Singapore portal at http://www.mas.gov.sg/legislation_guidelines/Explanation%20of%20MAS%20Instrument.html National Audubon Society at http://www.audubon.org/ National Economic Development Authority (NEDA) at http://localweb.neda.gov.ph/cgi-bin/st2.cgi?/eds/db/national/population/census_population_a.sc. National Golf Association of the Philippines (NGAP) at http://www.ngapgolf.com National Golf Foundation, Golf Project Glossary of Terms at http://www.ngf.org/cgi/ccglossary.asp National Implementation Plan of POPs by Viet Nam at http://www.pops.int/documents/implementation/nips/submissions/NIP_Vietnam.pdf National Parks Board (NParks) at http://www.nparks.gov.sg/cms/ National Water Resources Board (NWRB) at http://www.nwrb.gov.ph/ Natural Resources Development Corporation (NRDC) at http://www.coa.gov.ph/1998_AAR/GOCCs/NRDC/NRDC_aar98es.htm Nature Society of Singapore at http://www.nss.org.sg/about_history.html. Office of the President portal at http://www.president.gov.ph/cabinet/default.aspx Thailand Office of Natural Resources and Environmental Policy and Planning (ONREPP) at http://www.onep.go.th/eia/ENGLISH/about_eieb/about_eieb.htm PAB at http://www.emb.gov.ph/pab/template/mainpab.htm Parliament No. 11, Session 1, Volume No. 85 on Sitting date 2009-02-06, at http://www.parliament.gov.sg/reports/public/hansard/title/20090206/20090206_S0003_T0006.html PCD at http://www.pcd.go.th/indexEng Pesticide Action Network on Viet Nam Pesticide Registration at http://www.pesticideinfo.org/Detail_Country.jsp?Country=Viet%20Nam Philippine Embassy in Australia at http://www.philembassy.au.com/bus-ynvest.htm. Philippine National Irrigation Administration at http://www.nia.gov.ph/

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Philippine National Mapping and Resource Information Authority (NAMRIA) at http://www.namria.gov.ph/ Philippine National Statistics Office (NSO) at http://www.census.gov.ph/ Philippine National Statistics Office (PNSO) Report at http://www.census.gov.ph/data/sectordata/dataagri.html Philippines First National Report to the Secretariat of the CBD at www.cbd.int/doc/projects/gef/gef-ph-2010-nr4-p1-req-en.doc and http://www.cbd.int/doc/world/ph/ph-nr-04-en.pdf. Pollution Control Department assists NEA in pollution control, at http://app2.nea.gov.sg/index.aspx. POPs Secretariat at http://chm.pops.int/Countries/National%20Implementation/tabid/253/language/en-US/Default.aspx Portal of the Ministry of Interior is maintained in Thai language at http://www.moi.go.th/portal/page?_pageid=193,626326,193_626374&_dad=portal&_schema=PORTAL Protected Areas and Wildlife Bureau at http://www.pawb.gov.ph/ PUB at http://app.mewr.gov.sg/data/imgcont/1233/040-051%20Water.pdf PUB at http://www.pub.gov.sg/mpublications/Pages/PressReleases.aspx?ItemId=255 PUB at http://www.pub.gov.sg/Pages/default.aspx. Report of Viet Nam to UNESCAP at http://www.unescap.org/esd/water/publications/CD/escap-iwmi/wastewater_management/Wastewater%20management%20and%20water%20environment%20in%20Vietnam.pdf Royal and Ancient Golf Club of St. Andrews, Scotland (R & A) Course Management Best Practice Guidelines, at https://www.bestcourseforgolf.org/content/environment. Royal Irrigation Department at http://www.moac.go.th/eng/inside.php?pages_id=7 Sale of Property at http://www.iras.gov.sg/irasHome/page04.aspx?id=152 SEC Corporate Finance Department at http://www.sec.gov.ph/order/cfd/Legacy%20GS%20Fund,%20Inc%20(revoked).pdf SEC Guidelines on Penalties at http://www.sec.gov.ph/Documents/guidelines.pdf SEC reportorial compliance of all registered corporations at https://ireport.sec.gov.ph/iview/login.jsp

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Securities and Exchange Commission Archives: Companies with CDOs at http://www.sec.gov.ph/ Securities and Exchange Commission at http://www.sec.gov.ph/ Securities and Exchange Commission at https://ireport.sec.gov.ph/iview/login.jsp. Siam Stamp Catalogue, “Visit Thailand Year”, 1987 at http://www.siamstamp.com/catalogue/index.php?id=355. Singapore AVA at http://www.ava.gov.sg/. Singapore Department of Statistics at http://www.singstat.gov.sg/stats/keyind.html#keyind. Singapore Economic Development Board (EDB) at http://www.edb.gov.sg/edb/sg/en_uk/index.html. Singapore Final Report on Land Allocation at http://www.ura.gov.sg/interim/report1.pdf Singapore Fourth National Report to the Secretariat of the CBD 2010, at http://www.cbd.int/doc/world/sg/sg-nr-04-en.pdf. Singapore Golf Association (SGA) at http://www.sga.org.sg/Default.aspx?PageID=98. Singapore International Arbitration Centre (SIAC) at http://www.siac.org.sg/cms/. Singapore Island Country Club (SICC) at http://www.sicc.org.sg/Web/main.aspx?ID=,37caf7e1-2be7-4747-a171-b5bb5016408c. Singapore Land Authority at http://www.sla.gov.sg/htm/hom/index.htm. Singapore Public Utilities Board (PUB) at http://www.pub.gov.sg/newater/nationaltaps/Pages/default.aspx. Singapore Sports Commission (SSC) at http://www.ssc.gov.sg/publish/Corporate/en.html. Singapore Weather report at http://app.nea.gov.sg/data/mss/pdf/26March07.pdf Singapore’s 2010 Focus Group’s Report at http://www.ura.gov.sg/pr/text/2010/pr10-97.html. Singapore’s Meteorological Services, National Environment Agency at http://www.weather.gov.sg/wip/web/Marine. Singapore’s National Environment Agencies at http://app2.nea.gov.sg/topics_waste.aspx and http://app2.nea.gov.sg/topics_waterpollution.aspx Sta. Elena Golf Club at http://www.staelena.com/golf.html. State of Wisconsin Board of Commissioners of Public Lands at http://bcpl.state.wi.us/ Status of Ratification of POPs Convention at http://chm.pops.int/Countries/StatusofRatification/tabid/252/language/en-US/Default.aspx

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TAT Filipinas Golf Club at http://www.tatfilipinas.com/. Tax Rates and Exemption Schemes at http://iras.gov.sg/irasHome/page04_ektid410.aspx. Thailand Constitution 2007, unofficial English translation at http://www.asianlii.org/th/legis/const/2007/1.html. Thailand at a Glance by the Ministry of Foreign Affairs at http://www.mfa.go.th/multimedia/E_Book/a1.pdf. Thailand Environment Institute at http://www.tei.or.th/AboutTEI/aboutTEI.htm. Thailand Golf Association (TGA) at http://www.tga.or.th/#suwcontent=golfdbsuwcntsloperatingsuwcntDIV_MAINCONTENTsuwcntsuwcnt1281433687987. Thailand Ministry of Interior at http://www.moi.go.th/portal/page?_pageid=193,626326,193_626374&_dad=portal&_schema=PORTAL. Thailand National Statistical Office at http://web.nso.go.th/. Thailand’s annual rainfall at http://www.nationsencyclopedia.com/Asia-and-Oceania/Thailand-CLIMATE.html. Thailand’s National Implementation Report (2009) to the CBD Secretariat at www.aseanbiodiversity.org/index.php?option=com_docman. The Economist: Economic Terms at http://www.economist.com/research/economics/alphabetic.cfm?letter=R#regulatorycapture. The History of Golf in Thailand at http://www.thailand.com/travel/golf/historyofthai.htm. The Principles of Best Practices and Codes of the World Bank at http://rru.worldbank.org/PapersLinks/Codes-Best-Practice/. Third World Centre for Water Management in Mexico, at http://www.thirdworldcentre.org/english.html. Third World Network at http://www.twnside.org.sg/title/sia-cn.htm. Transparency International (TI) at http://www.transparency.org/news_room/in_focus/2008/cpi2008/cpi_2008_table; http://transparency.org/policy_research/surveys_indices/cpi/2010/results and http://www.transparency.org/policy_research/surveys_indices/cpi/2009. United States Golf Course Superintendents Association of America (USGCSAA) at http://www.gcsaa.org/. URA at http://www.ura.gov.sg/pr/graphics/2010/pr10-97a_SDRpt.pdf. Urban Planning Policies in Thailand at http://www.ghb.co.th/en/Journal/Vol2/15.pdf.

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Viet Nam Environmental Protection Agency (VEPA) at http://www.nea.gov.vn/en/Pages/homepage.aspx. Viet Nam Golf Association (VGA) at http://www.vga.com.vn/?show=intro&ic=1&list=6 and http://www.vga.com.vn/?lg=1. Viet Nam Ministry of Planning and Investment (MPI) at http://www.mpi.gov.vn/portal/page/portal/mpi_en. Viet Nam National Administration of Tourism at http://www.vietnamtourism.gov.vn/english/index.php. Viet Nam State Securities Commission at http://www.ssc.gov.vn/portal/page/portal/ssc_en. Viet Nam National Institute for Soils and Fertilizer (NISF) at http://www.fadinap.org/vietnam/extension.html Viet Nam Fourth Country Report to the CBD Secretariat at www.cbd.int/doc/world/vn/vn-nr-04-en.doc. Wack-wack Golf Club at http://www.wackwack.com/ Water Pollution Control at page 16 of Annual Report 2005 at http://www.nea.gov.sg/cms/pcd/EPDAnnualReport2005.pdf. Wisconsin Legislative Reference Bureau, State of Wisconsin Blue Book 2007-2008, pages 751-758 at http://www.sos.state.oh.us/SOS/PUBLICATIONS/electVoterPubs/muni.aspx. Wisconsin Natural Resources at http://www.dnr.state.wi.us/permitprimer/water/index.html. World Water Assessment Program by (UNESCO) at http://www.unesco.org/water/wwap/case_studies/chao_phraya/index.shtml www.ehs.ohio-state.edu/index.asp?PAGE=envaff.spcc www.frac.info/frac/menu.htm.