Atty. Johnny CaguiatEnvironmental Law

Question: CAN WE APPLY INTERNATIONAL ENVIRONMENTAL LAWS in our country absent any NATIONAL LAW? Ofcourse. And what are the International Environmental LAWS? TOO MANY TO MENTION

PHCA VS DUQUE

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.APPLICATION BY INCORPORATION

Under the 1987 Constitution, International law can become part of the sphere of domestic law either by transformation or by incorporation, Transformation requires that an International law be transformed into domestic law through a constitutional mechanism, such as local legislation. The INCORPORATION method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law1. Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is a multilateral treaty adopted by a diplomatic meeting of ICAO member states in 19992. Kyoto Protocol - is an international treaty that sets binding obligations on industrialized countries to reduce emissions of greenhouse gases.3. UNCLOS preservation of marine life

4. Vienna Convention for the Protection of Ozone Layer 5. International tropical timber agreement of 1983Question: What are the SALIENT FEATURE of the new Rules that are adapted by the Supreme Court for the promotion of Environmental Justice?OPOSA VS FACTORAN

LOCUS STANDI LIBERALIZED (SUITS ARE Encouraged)

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Right to self-preservation and self-perpetuation (intergenerational responsibility)Rules of Procedure for Environmental Cases (RPEC) A.M. no. 09-6-8-SC Provision have been made to minimize delay (Disallowing certain delay-prone pleadings)

Writ of Kalikasan (Immediate Desistance from undertaking the activities complained of and to take steps to preserve, rehabilitate and restore the environment)

Discovery measures ( Inspection and production order)

Writ of Continuing mandamus

Rule on Citizens Arrest

Rules Integrating the Caveat that the judge shall be guided with the Precautionary Principle ( Full Scientific Certainty shall not be required)Question: What are the objectives of these rules?

Section 3. Objectives. - The objectives of these Rules are:

(a) To protect and advance the constitutional right of the people to a balanced and healthful ecology;

(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements;

(c) To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and

(d) To enable the courts to monitor and exact compliance with orders and judgments in environmental cases. Question: What the hell is this long sh*t right down here? What is its purposes? Should I memorize it? Well thats a catch-all provision. Nothing much just catches it all. Nah your too lazy.Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. (THIS PART PROVIDES FOR The constitutional basis of the Regalian Doctrine and Alienation and Disposition of Public Lands and Exploration, Development and utilization of the Natural resources) Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of waterpower, beneficial use may be the measure and limit of the grant. (Contraints)The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. (Priority for Filipino Citizens)The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays, and lagoons. (Preferential Right given to Small call miners and Marginal Fisherman)The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. (State entering into agreements with foreign corporations as opposed to 1st paragraph which is a local corporation that must have 60% Filipino capital stockholders to be qualified)The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. (notice of Contract)Question: and what is this?

Thats for Indigenous Cultural Communities which is the constitutional basis for the Indigenous Peoples Right ACT, it is the Policy of the Constitution to protect and uphold their rights (SUPERIOR RIGHTS when the land involved in the controversy is their ancestral lands, which is another classification of lands)Section 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

FUNCTION OF THE DENR SECRETARY Exercise supervision and control over forest lands, alienable and disposable lands, and mineral resources and impose appropriate payments, fees, charges, rentals and any such form of levy and collect such revenues for the exploration, development, utilization or gathering of such resources; Promulgate rules, regulations and guidelines on the issuance of co-production, joint venture or production sharing agreements, licenses, permits, concessions, leases and such other privileges and arrangement concerning the development, exploration and utilization of the country's natural resources and shall continue to oversee, supervise and police our natural resources; to cancel or cause to cancel such privileges and arrangements upon failure, non-compliance or violations of any regulations, orders, and for all other causes which are in furtherance of the conservation of natural resources and supportive of the national interest; Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and shall continue to be the sole agency responsible for the classification, sub-classification, surveying and titling of lands in consultation with appropriate agencies;

Promulgate rules and regulations necessary to:

a. Accelerate cadastral and emancipation patent surveys, land use planning and public land titling:

b. Harness forest resources in a sustainable manner, to assist rural development, support forest-based industries, and provide raw materials to meet increasing demands, at the same time keeping adequate reserves for environmental stability; and

c. Expedite mineral resources surveys, promote the production of metallic and non-metallic minerals and encourage mineral marketing.

PUBLIC LAND ACT

CA 141

Regalian Doctrine All lands of the Public Domain and other natural resources belong to the state Sec 2 of article XII

Ancestral Lands not public land, Carino vs Insular Government institutionalized the recognition of native title to land, or ownership of land by Filipinos by virtue of possession under claim of ownership since time immemorial and independent of any grant from the Spanish Crown, an exception to the doctrine of Jura Regalia

LAND MANAGEMENT BUREAU FUNCTIONS Recommend policies and programs for the efficient and effective administration, surveys, management and disposition of alienable and disposable lands of the public domain and other lands outside the responsibilities of other government agencies; such as reclaimed areas and other areas not needed for or are not being utilized for the purposes for which they have been established;

Advise the Regional Offices on the efficient and effective implementation of policies, programs and projects for more effective public lands management;

Assist in the monitoring and evaluation of land surveys, management and disposition of lands to ensure efficiency and effectiveness thereof;

Issue standards, guidelines, regulations and orders to enforce policies for the maximization of land use and development;

Develop operating standards and procedures to enhance the Bureau's objectives and functions;

Assist the Secretary as Executive Officer charged with carrying out the provisions of the Public Land Act (C.A. 141, as amended), who shall have direct executive control of the survey, classification, lease, sale or any other forms of concessions or disposition and management of the lands of the public domain;

Perform other functions as may be assigned by the Secretary and/or provided by law.

Doctrine of Primary Jurisdiction Courts shall not resolve a controversy involving a question within the jurisdiction of an administrative tribunal

Exhaustion of administrative remedies Before a court action can prosper all admin remedies must be exhausted

CLASSIFICATION OF GOVERNMENT LANDS

CIVIL CODE:

1. Properties of Public Dominion

2. Patrimonial Properties of the states

CONSTITUTION:

1. Public Domain

a. Agricultural

b. Forest or Timber

c. Mineral Lands

d. National Parks

Public land Act

a. Alienable or Disposable

b. Timber

c. Mineral LandsPublic Lands Open to Disposition

a. Agricultural

b. Residential, Commercial, Industrial or for similar Purposes

c. Educational, Charitable, or other similar purposes

d. Reservations for town sites and for public and quasi-public uses

*Classification of Public lands is an Executive Prerogative

*Effect of Compliance with all Legal Requirements grants him a vested interest therein, and is to be regarded as the equitable owner thereof. Even without a patent, a perfected homestead is a property right in the fullest senses, unaffected by the fact that the paramount title to the land is still in the government.

MODES of DISPOSTION

a. For Homestead Settlement

b. By Sale

c. By Lease

d. By Confirmation of Imperfect or Incomplete titles

1. By Judicial Legalization

2. By Administrative Legalization (Free Patent)

Requisites of grantees/applicants:Homestead

1. Citizen

2. 18 years of head of a family

3. Not exceeding 12 hectares

4. Cultivated and Improved 1/5 one fifth of the land continuously SINCE the approval of the application

5. Resided for at least one year in the Municipality where land is located or adjacent to the same

6. Payment of required fee

* may sell/transfer his rights upon the condition

1. he may not continue through no fault of his own2. The purchaser is a qualified to apply for a homestead3. Approval of the Director of Lands

4. He may no longer apply again for a new homestead

Salea. Citizen

b. Lawful age or Head of a familyc. Not to exceed 12 hectares

d. Payment in full or ten equal annual instalments from the date of the award

e. 1/5 cultivation 5 years from the date of award

f. Actual Occupation, cultivation and Improvement 1/5 of the land until the date of final payment

Leasea. Citizen

b. Lawful age

c. 500 hectares

d. Not exceeding 25 years, renewable for not more than 25 years

e. 1/3 of the land cultivated 5 years after the date of the Approval of the lease (IF Pasture sufficient if lessee lets as many heads of cattles as will occupy one-half of the entire area or 1 head per hectare)OR in the case of Corporations or Associationsa. Sixty percent of the capital stock belongs wholly to the citizens of the PH

b. 1000 hectares

c. Not exceeding 25 years, renewable for not more than 25 years

d. 1/3 of the land cultivated 5 years after the date of the Approval of the lease (IF Pasture sufficient if lessee lets as many heads of cattles as will occupy one-half of the entire area or 1 head per hectare)Judicial Legalizationa. Citizenb. Application filed before the RTC where land is located

c. Land is Alienable public land

d. Adverse possession beginning from June 12 1945

Administrative Legalization (Free patent under RA 10023)a. Citizen

b. Application must be supported by a Survey approved by the DENR

c. Affidavit of 2 disinterested persons who are residents of the Brgy, City or Mun. where the land is located to the effect that the applicant has, by himself or through his predecessor-in-interest, actually resided on, and actually possessed and occupied, the land applied for under a bonafide claim of ownership for at least 10 years Registration of Patent is the operative act to convey land

Title once acquired cannot be defeated by adverse possession, nor collateral attack Statements made in the application shall be considered as essential conditions and parts of any concession, title or permit, any false statements therein or omission of facts altering, changing, or modifying the consideration of facts shall Ipso Facto produce the cancellation of the concession, title, or permit granted.

Action for Reversion whereby lands of the public domain fraudulently awarded to the applicant may be recovered or reverted

Patentee or Grantee is prohibited from disposing lands acquired by virtue of the grant or patent

Prohibition starts from the date of approval up to 5th year

Allowed: after 5 years and before 25 years

Executory sales are also within the prohibition (agreement to sell) Sale of only a part of the land violates prohibition

Right of repurchase by applicants or his heirs within a period of five years from the date of conveyance

Succession, if any time the applicant or grantee shall die before issuance of the patent or the final grant of the land, he shall be succeeded in his rights and obligations with respect to the land applied for

Revised Forestry Code

P.D. no 705SECTION 5. Jurisdiction of Bureau. The Bureau shall have jurisdiction and authority over all forest land, grazing lands, and all forest reservations including watershed reservations presently administered by other government agencies or instrumentalities.

1. It shall be responsible for the protection, development, management, regeneration, and reforestation of forest lands; 2. the regulation and supervision of the operation of licensees, lessees and permittees for the taking or use of forest products therefrom or the occupancy or use thereof; 3. the implementation of multiple use and sustained yield management in forest lands; 4. the protection, development and preservation of national parks, marine parks, game refuges and wildlife; 5. the implementation of measures and programs to prevent kaingin and managed occupancy of forest and grazing lands; in collaboration with other bureaus,6. the effective, efficient and economic classification of lands of the public domain; and 7. the enforcement of forestry, reforestation, parks, game and wildlife laws, rules, and regulations.

8. The Bureau shall regulate the establishment and operation of sawmills, veneer and plywood mills and other wood processing plants and conduct studies of domestic and world markets of forest products.

Timber license is not a contract by a mere privilege which does not create irrevocable rightsCHAPTER IV (P.D. 705) Criminal Offenses and Penalties ( PUNISHED AS QUALIFIED THEFT)SECTION 77. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. Any person who shall cut, gather, collect, removed timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, (Here the offender may raise as a defense the legality of his acts by presenting the authorization issued by the DENR)or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. (Mere possession of forest products without proper documentation consummates the crime.)

Philippine Mining Act

R.A. 7942Evolution of Pertinent Mining Laws1. Spanish Mining Law Before cession of the Phil. To US

2. Philippine Bill of 1902 open and free exploration, occupation and Purchase of mineral deposits and the land where they may be found

3. Act no. 624 regulations to govern the location and manner of recording mining claims and the amount of work necessary to hold possession thereof

4. 1935 Constitution All natural resources are property belonging to the state (not applicable to mining claimants under Philippine bill 1920)

5. CA no. 137 or Mining Act likewise adopted Regalian Doctrine

6. Parity rights amendment citizens of US have equal right in the Exploration, Development and Utilization of natural resources

7. 1973 Constitution Conditional Application of Regalian Doctrine similar to the 1935 Consti

8. 1987 Constitution no conditional application, state has full control and supervision over natural resources9. RA 7942 Present Mining act Reiterates full Regalian Doctrine* A perfected valid appropriation of public mineral lands operates as a withdrawal of the tract of land from the body of the public domain, thus the property is deemed to be private property

*Mere recording without performing work obligation does not convert land into mineral land

Abandonment of claim

a. Intent to abandon

b. Overt act carrying such intention into effectClassification of minerals1st group Metals or Metalliferous ores

2nd group Precious Stones

3rd group Fuels

4th Group Saline and mineral waters

5th Building stone in place, clays, fertilizer and other non-metals

Authority of the Bureau

The Bureau shall have the following authority, among others:a.To have direct charge in the administration and disposition of mineral lands and mineral resources;b.To undertake geological, mining, metallurgical, chemical and other researches, as well as mineral exploration surveys: Provided, That for areas closed to mining applications as provided for in Section 15 hereof, the Bureau can undertake studies for purposes of research and development;c.To confiscate, after due process, surety, performance and guaranty bonds after notice of violation;d.To recommend to the Secretary the granting of Mineral Agreements or to endorse to the Secretary for action by the President the grant of FTAAs, in favor of Qualified Persons and to monitor compliance by the Contractor with the terms and conditions of the Mineral Agreements and FTAAs. For this purpose, an efficient and effective monitoring system shall be established to ascertain periodically whether or not these objectives are realized;e.To cancel or to recommend cancellation, after due process, mining rights, mining applications and mining claims for noncompliance with pertinent laws, rules and regulations;f.To deputize, when necessary, any member or unit of the Philippine National Police (PNP) and barangay, duly registered and Department-accredited Nongovernmental Organization (NGO) or any Qualified Person to police all mining activities;g.To assist the Environmental Management Bureau (EMB) under the Department and/or the Department Regional Office in the processing or conduct of Environmental Impact Assessment in mining projects; andh.To exercise such other authority vested by the Act and as provided for in these implementing rules and regulations.

The Director may delegate such authority and other powers and functions to the Regional Director.Submission of Work Program when an exploration permit holder determines viability of a project covering a mining area he may submit application

Term of Exploration Permit 2 years from the date of issuance, renewable but not to exceed a total term of 4 for non-metallic and 6 years for metallic mineral exploration

Forms of mineral agreementa. Mineral production sharing agreement is an agreement where the Government grants to the contractor the exclusive right to conduct mining operations within a contract area and shares in the gross output. The contractor shall provide the financing, technology, management and personnel necessary for the implementation of this agreement.

b. Co-production agreement is an agreement between the Government and the contractor wherein the Government shall provide inputs to the mining operations other than the mineral resource.

c. Joint venture agreement is an agreement where a joint-venture company is organized by the Government and the contractor with both parties having equity shares. Aside from earnings in equity, the Government shall be entitled to a share in the gross output.

A mineral agreement shall grant to the contractor the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area. In addition, the contractor may be allowed to convert his agreement into any of the modes of mineral agreements or financial or technical assistance agreement covering the remaining period of the original agreement subject to the approval of the Secretary. Qualifications of Applicant:

a. Citizen

b. Legal age

c. Capacity to contract

Or in case of a Corporation, Partnership, Association or Cooperative

a. Must authorized or organized for the purpose of engaging in mining

b. Duly registered in accordance with law

c. 60% capital stock belonging to Filipino CitizenGrounds for cancellation, revocation and termination of a quarry, sand and gravel, gratuitous, guano and gemstone gathering Permit.a. Failure to comply with the terms and conditions of the permit and ECC

b. Violations of any provision of RA 7942 and its implementing rules and regulations

c. Failure to pay excise tax for 2 consecutive years

d. Misrepresentation of statement

e. Commodity stipulated in the permit is exhausted before the expiry date thereof

f. When national interest and public welfare requires itSettlement of ConflictsPanel of Arbitrators

Members Two lawyers and one Licensed mining engineer or a profession in a related fieldExclusive Jurisdiction over:

1. Disputes involving rights to mining areas

2. Disputes involving mineral agreements or permits

3. Disputes involving surface owners, occupants and claimholders/concessionaries

4. Disputes pending before the bureau

Appeal

Filed before the MAB (Mines Adjudication Board)

Members DENR Secretary, Director of MGB, Undersecretary for operations of the Dept.MAB decisions are appealable to the CAValidity of Mining Contracts within the jurisdiction of the judiciary

CHAPTER XIX PENAL PROVISIONS Section 101 False Statements

Any person who knowingly presents any false application, declaration, or evidence to the Government or publishes or causes to be published any prospectus or other information containing any false statement relating to mines, mining operations or mineral agreements, financial or technical assistance agreements and permits shall, upon conviction, be penalized by a fine of not exceeding Ten thousand pesos (P10,000.00).

Section 102 Illegal Exploration

Any person undertaking exploration work without the necessary exploration permit shall, upon conviction, be penalized by a fine of not exceeding Fifty thousand pesos (P50,000.00).

Section 103 Theft of Minerals

Any person extracting minerals and disposing the same without a mining agreement, lease, permit, license, or steals minerals or ores or the products thereof from mines or mills or processing plants shall, upon conviction, be imprisoned from six (6) months to six (6) years or pay a fine from Ten thousand pesos (P10,000.00) to Twenty thousand pesos (P20,000.00) or both, at the discretion of the appropriate court. In addition, he shall be liable to pay damages and compensation for the minerals removed, extracted, and disposed of. In the case of associations, partnerships, or corporations, the president and each of the directors thereof shall be responsible for the acts committed by such association, corporation, or partnership.

Section 104 Destruction of Mining Structures

Any person who willfully destroys or damages structures in or on the mining area or on the mill sites shall, upon conviction, be imprisoned for a period not to exceed five (5) years and shall, in addition, pay compensation for the damages which may have been caused thereby.

Section 105 Mines Arson

Any person who willfully sets fire to any mineral stockpile, mine or workings, fittings or a mine, shall be guilty of arson and shall be punished, upon conviction, by the appropriate court in accordance with the provisions of the Revised Penal Code and shall, in addition, pay compensation for the damages caused hereby.

Section 106 Willful Damage to a Mine

Any person who willfully damages a mine, unlawfully causes water to run into a mine, or obstructs any shaft or passage to a mine, or renders useless, damages or destroys any machine, appliance, apparatus, rope, chain, tackle, or any other things used in a mine, shall be punished, upon conviction, by the appropriate court, by imprisonment not exceeding a period of five (5) years and shall, in addition, pay compensation for the damages caused thereby.

Section 107 Illegal Obstruction to Permittees or Contractors

Any person who, without justifiable cause, prevents or obstructs the holder of any permit, agreement or lease from undertaking his mining operations shall be punished, upon conviction by the appropriate court, by a fine not exceeding Five thousand pesos (P5,000.00) or imprisonment not exceeding one (1) year, or both, at the discretion of the court.

Section 108 Violation of the Terms and Conditions of the Environmental Compliance Certificate

Any person who willfully violates or grossly neglects to abide by the terms and conditions of the environmental compliance certificate issued to said person and which causes environmental damage through pollution shall suffer the penalty of imprisonment of six (6) months to six (6) years or a fine of Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00), or both, at the discretion of the court.

Section 109 Illegal Obstruction to Government Officials Any person who illegally prevents or obstructs the Secretary, the Director or any of their representatives in the performance of their duties under the provisions of this Act and of the regulations promulgated hereunder shall be punished upon conviction, by the appropriate court, by a fine not exceeding Five thousand pesos (P5,000.00) or by imprisonment not exceeding one (1) year, or both, at the discretion of the court.

Section 110 Other Violations

Any other violation of this Act and its implementing rules and regulations shall constitute an offense punishable with a fine not exceeding Five thousand pesos (P5,000.00).

Section 111 Fines

The Secretary is authorized to charge fines for late or non-submission of reports in accordance with the implementing rules and regulations of this Act. Kitem Duque Kadatuan Jr.

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