LAND AND THE GREEN

ENVIRONMENT

Forestry Code

Philippine Mining Act

National Integrated Protected Areas System (NIPAS) Act

LAND CLASSIFICATION – Sec. 6, Public land act (C.A. 141 as amended)

The President upon the recommendation of the Secretary of the

Department of Environment and Natural Resources, shall from time

to time classify the lands of the public domain into:

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands

And may at any time in a like manner transfer such lands from one

class to another, for the purposes of their administration and

disposition.

PD 705 AS AMENDED

FORESTRY CODE

PHILIPPINE FOREST COVER (By REGION, Area in Hectares) As of December 31, 2003

REGION CLOSED

FOREST

OPEN

FOREST MAN- GROVE

PLANTATI

ON

FOREST

TOTAL

FOREST

NCR

National Capital Region 0 2,790 30 * 2,820

CAR

Cordillera Administrative Region 384,877 246,848 0 40,595 672,320

R-01

Ilocos Region 37,723 117,217 151 34,710 189,801

R-02

Cagayan Valley Region 503,149 604,473 8,602 33,621 1,149,845

R-03

Central Luzon Region 226,241 304,214 368 58,672 589,495

R-04a

Calabarzon Region 117,162 161,165 11,346 * 289,673

R-04b

Mimaropa Region 484,866 604,246 57,567 48,465 1,195,144

R-05

Bicol Region 50,618 90,284 13,499 2,075 156,476

PHILIPPINE FOREST COVER (By REGION, Area in Hectares) As of December 31, 2003

REGION CLOSED

FOREST

OPEN

FOREST MAN- GROVE

PLANTATI

ON

FOREST

TOTAL

FOREST

R-06

Western Visayas Region 105,873 104,686 4,600 49,355 264,514

R-07

Central Visayas Region 2,231 43,026 11,770 17,842 74,869

R-08

Eastern Visayas Region 36,473 410,111 38,781 34,483 519,848

R-09

Zamboanga Peninsula Region 29,652 126,790 22,278 3,474 182,195

R-10

Northern Mindanao Region 107,071 226,400 2,492 1,530 337,493

R-11

Davao Region 177,503 240,986 2,010 536 421,035

R-12

Soccsksargen Region 126,385 218,858 1,350 2,641 349,234

R-13

Caraga Region 64,729 431,832 26,731 * 523,292

ARMM

Autonomous Region in Muslim

Mindanao

106,319 96,661 45,786 1,580 250,346

PHILIPPINES 2,560,872 4,030,588 247,362 329,578 7,168,400

* Plantation Forest boundaries have not been provided.

FORESTRY CODE DEFINITIONS–

sec. 3, P.D. 705

a) Public forest is the mass of lands of the public domain which has not

been the subject of the present system of classification for the

determination of which lands are needed for forest purposes and

which are not.

b) Permanent forest of forest reserves refer to those lands of the public

domain which have been the subject of the present system of

classification and declared as not needed for forest purposes.

c) Alienable and disposable lands refer to those lands of the public

domain which have been the subject of the present system of

classification and declared as not needed for forest purposes.

d) Forest lands include the public forest, the permanent forest or forest

reserves and forest reservations.

FORESTRY CODE DEFINITIONS–

sec. 3, P.D. 705

e) Grazing land refers to that portion of the public domain which has been

set aside, in view of the suitability of its topography and vegetation, for

the raising of livestock.

f) Mineral lands refer to those lands of the public domain which have

been classified as such by the Secretary of Natural Resources in

accordance with prescribed and approved criteria, guidelines and

procedure.

g) Forest reservations refer to forest lands which have been reserved by

the President of the Philippines for any specific purpose or purposes.

h) National park refers to a forest land reservation essentially of primitive

or wilderness character which has been withdrawn from settlement or

occupancy and set aside as such exclusively to preserve the scenery,

the natural and historic objects and the wild animals or plants therein,

and to provide enjoyment of these features in such a manner as will

leave them unimpaired for future generations.

FORESTRY CODE DEFINITIONS–

sec. 3, P.D. 705

o) Mangrove is a term applied to the type of forest occurring on

tidal flat along the sea coast, extending along stream where

the water is brackish.

p) Kaingin refers to a portion of the forest land which is

subjected to shifting and/or permanent slash-and-burn

cultivation.

q) Forest product means timber, pulpwood, firewood, bark, tree

top, resin, gum, wood, oil, honey beeswax, nipa, rattan, or

other forest growth such as grass, shrub, and flowering plant,

the associated water, fish, game, scenic, historical,

recreational and geologic resources in forest lands.

t) Industrial tree plantation refers to any forest land extensively

planted to tree crops primarily to supply raw material

requirements of existing or proposed wood processing plants

and related industries.

u) Tree farm refers to any small forest land or tract of land

purposely planted to tree crops.

FORESTRY CODE DEFINITIONS–

sec. 3, P.D. 705

v) Agro-forestry is a sustainable management for land which increases overall

production, combines agricultural crops, tree and forest plants and/or animals

simultaneously or sequentially, and applies management practices which are

compatible with the cultural patterns of the local population.

w) Multiple-use is the harmonized utilization of the land, soil, water, wildlife,

recreation value, grass and timber of forest lands.

x) Selective logging is the systematic removal of the mature, over-mature and

defective tress in such manner as to leave adequate number and volume of

healthy residual trees of the desired species necessary to assure a future crop

of timber, and forest cover for the protection and conservation of soil, water

and wildlife.

aa) Sustained yield management implies continuous or periodic production of

forest products in a working unit for the purpose of achieving at the earliest

practicable time an approximate balance between growth and harvest or use.

This is generally applied to the commercial timber resources and is also

applicable to the water, grass, wildlife, and other renewable resources of the

forest.

FORESTRY CODE DEFINITIONS

– sec. 3, P.D. 705

cc) Lease is a privilege granted by the State to a person to occupy and possess, in

consideration of specified rental, any forest land of the public domain in order to

undertake any authorized activity therein.

ff) Permit is a short term privilege or authority granted by the State to a person to

utilize forest resources within any forest land with the right of possession and

occupation thereof to the exclusion of others, except the government, but with the

corresponding obligation to develop, protect and rehabilitate the same in accordance

with the terms and conditions set forth in said agreement.

gg) Annual allowable cut is the volume of materials, whether of wood or other forest

products, that is authorized to be cut yearly from a forest.

hh) Cutting cycle is the number of years between two major harvests in the same

working unit and/or region.

mm) Private right means or refers to titled rights of ownership under existing laws,

and in the case of national minority to rights of possession existing at the time a

license is granted under this Code, which possession may include places of abode

and worship, burial grounds, and old clearings, but exclude productive forest

inclusive of logged-over areas, commercial forests and established plantations of

forest trees and trees of economic values.

FORESTRY CODE,

DECLARATION OF POLICIES

a) The multiple use of forest lands shall be oriented to the

development and progress requirements of the country,

the advancement of science and technology, and the

public welfare;

b) Land classification and survey shall be systematized and

hastened;

c) The establishment of wood processing plants shall be

encouraged and rationalized; and

d) The protection, development and rehabilitation of forest

lands shall be emphasized so as to ensure their

continuity in productive condition.

Sustainable forest management (SFM) –

e.o. 318 9 June 2004; GUIDING PRINCIPLES

1) Delineation, classification and demarcation of State

forestlands

2) Holistic, sustainable and integrated development of

forestry resources

3) Community-based forest conservation and development

4) Incentives for enhancing private investments, economic

contribution and global competitiveness of forest-based

industries

5) Proper valuation and pricing of forestry resources and

financing Sustainable Forest Management

6) Institutional support for Sustainable Forest Management

COMMUNITY BASED FOREST

MANAGEMENT (CBFM) – DENR

Administrative order no. 96-29

GUIDING PRINCIPLES 1. CBFM shall be the primary strategy in all forest conservation and

development and related activities, including joint ventures,

production sharing and co-production. It shall be encouraged in all

private sector forestry enterprises and ventures.

2. CBFM shall be collaborative undertaking of the national government

and the LGUs, local peoples, community organizations, civil society

organizations (CSOs) and private business entities.

3. Local cultures, values, traditions, religious beliefs and the rights of

indigenous peoples to their ancestral lands and domains as

promoted and/or defined by existing legislation shall be recognized

and respected in all forestry undertakings of the State and the

private sector.

PRODUCTION SHARING

AGREEMENT PEOPLE’S ORGANIZATION/CBFM holders inside government

owned forest plantations Forest Plantations owned by the government:

1. Reforestation/forest plantation projects administered/established by DENR

2. Reforestation plantations established by TLA holders and other permittees in compliance with the terms and conditions of the TLA or permit

3. Plantations established by holders of IFMA, SIFMA, ITP, CBFMA, and other tenurial instruments which were cancelled for cause

4. Other reforestation or plantation projects established with government funds

• Utilization is included in affirmed Community Resources Management Framework and Annual Work Plan

• Income derived from gross sales shall be shared as follows –

Government share = 12.5%

People’s organization = 75%

CBFM Fund = 12.5%

Why would GOP & PO’s enter into

PSA?

INTEGRATED FOREST

MANAGEMENT PROGRAM

(IFMP) – DENR AO 99-53 POLICIES a) The protection and advancement of the right of the

people to a balanced and healthful environment;

b) The equitable distribution of opportunities, income and

wealth, sustained increase in the amount of goods and

services produced by the nation for the benefit of the

people, and an expanding productivity from natural

resources as keys to uplift the quality of life; and

c) The promotion of industrialization and creation of

employment opportunities based on sound resource

development through industries that make full and

efficient use of human and natural resources.

INTEGRATED FOREST

MANAGEMENT PROGRAM

(IFMP) – DENR AO 99-53 0BJECTIVES a) To attain a balanced, productive and efficiently

functioning forest ecosystem through the sustainable

management of forests and the rehabilitation of

degraded forestlands;

b) To ensure a continuous supply of wood and non-wood

products for the country by encouraging all sectors to

engage in the development of industrial plantations;

c) To improve the economic well-being of upland people

and communities dependent on forest resources by

ensuring equitable opportunities and access to forest

resources

R.P. vs Pagadian city timber, 16 Sept. 2008

- Comprehensive development management plan (CDMP)

DENR EVALUATION TEAM – grounds for cancellation:

1. Failure to implement the approved CDMP: (a) only 365 has. planted out of 1,597

has or 22.8%; (b) only 1 out of 4 look-out towers was put up; (c) only 1 out of 2

forest nurseries developed; (d) constructed 6 km foot trail = 27%

2. Failure to implement or adopt agreements made with communities and other

relevant sectors: (a) Subanen communities protested against IFMA – constantly

harassed and threatened by armed men.

DENR Secretary Cerilles ORDERED the CANCELLATION of the IFMA. The Office

of the President affirmed the CANCELLATION.

Court of Appeals reversed OP and ruled that the IFMA was a contract that could not

be unilaterally cancelled without due process and impairment of contracts.

IFMA holder should have been given 30 days after due notice to remedy any breach

or default of the provisions of the IFMA; dispute should have been submitted for

arbitration.

R.P. vs Pagadian city timber, 16 Sept. 2008

- Comprehensive development management plan (CDMP)

Sec. 20 of the Forestry Code – “that when the national interest so requires,

the President may amend, modify, replace or rescind any contract,

concession, permit, licenses or any other form of privilege granted herein.”

All licenses may thus be revoked or rescinded by Executive Action. It is not

a contract, property or a property right protected by the due process clause

of the constitution. (Tan vs. Dir. Of Forestry, 125 SCRA 302, 325 [1983])

All Filipino citizens are entitled, by right, to a balanced and healthful

ecology as declared under the Constitution. Correlative duty to refrain from

impairing the environment. The DENR is the instrumentality of the State

mandated to actualize this policy.

DENR followed regular procedure regarding the assessment of the IFMA –

Evaluation Team was created and submitted its report. IFMA holder did not

contest the report. Self-serving Accomplishment Reports cannot prevail

over the actual inspection stated in the document [Evaluation Report].

FOREST FIRE

FOREST FIRE How to STOP FOREST FIRE?

How to PREVENT FOREST FIRE?

MANGROVES A mangrove area refers to the area found along the seacoast and estuaries whether sparsely or thickly vegetated with true and/or associated mangrove species, or open swampy areas, including brackish fishponds, extending along stream where the

water is brackish. – DENR AO 15-90

MANGROVES TO FISHPONDS

FISHPOND LEASE

AGREEMENTS & MANGROVE

PLANTATIONS – DENR AO 15-90 • Local organizations may be

awarded certificates of

stewardship contracts to

undertake sustainable

activities based on an

approved Management Plan

which cannot include:

Fishpond development

Saltworks

Paddy cultivation

• Maximum area = 50 hectares

for corporations, cooperatives,

associations; 10 hectares for

individuals.

• Planted trees may be cut with

permit but at least 40 healthy

trees, spaced regularly and

representative of the species in

the area shall be retained

when trees are cut.

Mangrove tenure assessment – zamboanga sibugay – Atty. ASIS PEREZ, BFAR Director

• What happens when a fishpond is abandoned by the holder of a Fishpond Lease Agreement?

• All areas not fully producing within 5 years from the date of approval of the lease contract shall automatically revert to the public domain for reforestation. The DENR in coordination with the DA, LGUs, other concerned agencies and FARMCs shall determine which abandoned, undeveloped or underutilized fishponds covered by FLAs can be reverted to their original mangrove state and after having made such determination, shall take all steps necessary to restore such areas.

• DA-DENR Gen. Order No. 3-1991: segregate vegetated portion not suitable for fishponds, un-developed areas to revert to DENR.

ANCESTRAL DOMAINS – sec. 7b, Indigenous Peoples Rights Act , RA 8371

• Right to develop land and natural resources – Subject to Section 56

hereof, the right to develop, control and use lands and territories

traditionally occupied, owned, or used; to manage and conserve

natural resources within the territories and uphold the responsibilities

for future generations; to benefit and share the profits from allocation

and utilization of the natural resources found therein; the right to

negotiate the terms and conditions for the exploration of natural

resources in the areas for the purpose of ensuring ecological,

environmental protection and the conservation measures, pursuant to

national and customary laws; the right to an informed and intelligent

participation in the formulation and implementation of any project,

government or private, that will affect or impact upon the ancestral

domains and to receive just and fair compensation for any damages

which they may sustain as a result of the project; and the right to

effective measures by the government to present any interference with,

alienation and encroachment upon these rights;

ALCANTARA vs. DENR

• Petitioner may not enjoy possession and use of the land up

to the expiration of FLGLA No. 542 based on alleged

residual rights. P.D. 410 sec. 1 states that all un-

appropriated agricultural lands forming part of the public

domain are declared part of the ancestral lands of the

indigenous cultural groups occupying the same, and these

lands are further declared alienable and disposable, to be

distributed exclusively among the members of the

indigenous cultural group concerned. FLGLA was illegally

issued.

• No grave abuse of discretion in the implementation of

COSLAP decision. FLGLA is a privilege, not a property or

property right; it does not create a vested right; as such, no

irrevocable rights are created in its issuance.

SMALL ISLANDS MANAGEMENT

& DEVELOPMENT DENR AO 2000-83 OBJECTIVES

a. To ensure that environmental considerations are incorporated in all

development activities within small islands;

b. To properly value benefits derived as well as damages incurred from

the utilization and development of natural resources for proper

decision making;

c. To encourage the community, NGOs and other government

agencies in the rehabilitation, improvement and sustainable use of

resources of small islands; and

d. To ensure equitable access of individuals, associations, and

communities to benefits derived from the development and

utilization of small islands.

SMALL ISLANDS MANAGEMENT

& DEVELOPMENT DENR AO 2000-83 DEFINITIONS, sec. 3

b. Coastal area is a band of dry land and adjacent ocean space (water

and submerged land) in which terrestrial processes and uses directly

affect oceanic processes and uses, and vice versa; its geographic extent

may include areas within a landmark limit of one kilometer from the

shoreline at high water tide to include mangrove, swamps, brackish water

ponds, nipa swamps, estuarine rivers, sandy beaches and other areas

within a seaward limit of 200 meters isobath to include coral reefs, algal

flats, seagrass beds and other soft-bottom areas (as defined by RA 8550).

g. Foreshore – a string of land margining a body of water; the part of a

seashore between the low-water line usually at the seaward margin of a

low tide terrace and the upper limit or wave wash at high tide usually

marked by a beach scarp or berm.

j. Small Islands – refer to islands/islets with an area of not more than

50,000 hectares.

SMALL ISLANDS MANAGEMENT

& DEVELOPMENT DENR AO 2000-83 island Physical framework plan, sec. 3

a. Islands/islets less than 500 has. shall be under strict

conservation areas and such shall not be alienated nor

disposed for any purpose.

b. Islands/islets 500 has. up to 5,000 has. shall be under

restricted use. Land titling shall be limited to those with

pending applications on classified A & D lands as of the

effectivity of this Order.

c. Islands/islets above 5,000 has. up to 50,000 has. shall be

open to sustainable development. Land titling may be

undertaken in certified A & D lands.

SMALL ISLANDS MANAGEMENT

& DEVELOPMENT DENR AO 2000-83 DEFINITIONS, sec. 3

k. Small Islands Management Agreement (SIMA) – a production-sharing

agreement between a qualified person, association and/or corporation

and the government to develop, manage and utilize small islands.

TYPHOON SENDONG

This was how a University of the

Philippines geologist described the

flash floods that hit Iligan City at the

height of Tropical Storm “Sendong”

which left more than 400 dead in the

city alone.

Alfredo Mahar Lagmay explained that

the rushing waters which came from

the upstream part of the Mandulog

River were so strong that they swept

away everything in their path—from

rocks, mud, to whole trees.

“It was like a tsunami, but with more

debris that made it even more erosive,”

Lagmay said, as he described the

extent of the “hyperconcentrated” flash

flood’s strength.

And while illegal logging in the

mountains above the city may have

been a factor in the destruction,

Lagmay said the primary cause of the

flash floods was the heavy rains.

“Logging—may it be legal or illegal—

may have aggravated the floods, but

the primary reason for this was the

extreme rainfall brought about by

Sendong,” he told a press briefing

yesterday.

- Julio Aurelio, PDI, 31 dec. 2011

ABANDONED LOGS, etc. – DENR AO

2000-78

1. Abandoned logs – logs left within forestlands, A&D lands and private

lands, whose owners or claimants cannot be identified.

2. Drifted logs – logs that are washed out by floods and/or water currents.

3. Fire Damaged trees – trees damaged by forest fires, that are either

dead or living but with nil chance of survival.

4. Sunken logs – logs found at the bottom of a river/stream, sea cove and

other bodies of water

5. Typhoon damaged trees – trees whose tops, branches and trunks were

blown away or destroyed by strong wind that are either dead or living

but with nil chance of survival

6. Uprooted trees – trees that were blown down due to natural causes,

the roots of which are exposed above the ground and have a nil

chance of survival

ABANDONED LOGS, etc. – DENR AO

2000-78

Wood Recovery Permit – a permit issued by the

DENR to gather/retrieve and dispose abandoned

logs, drifted logs, sunken logs, uprooted and

fire/typhoon damaged trees, tree stumps, tops and

branches.

DENR VS. YAP - BORACAY

• What is the land classification of

BORACAY ISLAND?

• Can the DENR be ordered to issue land

titles to the resort owners?

• What is the proper remedy?

R.A. 7942

MINING ACT

MINING ACT – Definitions, sec. 3

• Mining operation – mining activities involving exploration, feasibility, development, utilization and processing.

• Mineral processing – the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to convert the same into marketable products.

• Minerals – all naturally occurring inorganic substance in solid, gas, liquid, or any intermediate state excluding energy materials such as coal, petroleum, natural gas, radioactive materials, and geothermal energy.

• Mine wastes and tailings – soil and rock materials from surface or underground mining and milling operations with no economic value to the generator of the same.

• Offshore – the water, sea bottom, and subsurface from the shore or coastline reckoned from the mean low tide level up to the 200 nautical miles exclusive economic zone including the archipelagic sea and contiguous zone.

• Onshore – landward side from the mean tide elevation, including submerged lands in lakes, rivers and creeks.

MINING ACT – Definitions, sec. 3

• Quarrying – process of extracting, removing and disposing quarry resources found on or underneath the surface of private or public land

• Quarry resources – any common rock or other mineral substances as the Director of the Mines and Geosciences Bureau (MGB) may declare to be quarry resources, such as, but not limited to, andesite, basalt, conglomerate, coral sand, diatomaceous earth, diorite, decorative stones, gabbro, granite, limestone, marble, marl, red burning clays for potteries and bricks, rhyolite, rock phosphate, sandstone, serpentine, shale, tuff, volcanic cinders, and volcanic glass: Provided, that such quarry resources do not contain metals or metallic constituents and/or valuable minerals in economically workable quantities: Provided, further, that nonmetallic minerals such as kaolin, feldspar, bull quartz, quartz or silica, sand and pebbles, bentonite, talc, asbestos, barite, gypsum, bauxite, magnesite, dolomite, mica, precious and semi-precious stones, and other nonmetallic minerals that may later be discovered and which the Director declares the same to be of economically workable quantities, shall not be classified under the category of quarry resources.

MINING ACT – Definitions, sec. 3

• Mineral land – any area where mineral resources are found

• Public land – lands of the public domain which have been classified as

agricultural lands and subject to management and disposition or

concession under existing laws

• Private land – any land belonging to any private person which includes A

& D land being claimed by a holder, claimant, or occupant who has

already acquired a vested right thereto under the law, although the

corresponding certificate or evidence of title or patent has not been

actually issued.

• Ancestral lands – all lands exclusively and actually possessed, occupied,

or utilized by indigenous cultural communities by themselves or through

their ancestors in accordance with their customs and traditions since

time immemorial, and as may be defined and delineated by law.

MINING ACT – Definitions, sec. 3

• Ecological profile – refers to geographic-based instruments for planners

and decision-makers which presents an evaluation of the environmental

quality and carrying capacity of an area.

• Carrying capacity – the capacity of natural and human environments to

accommodate and absorb change without experiencing conditions of

instability and attendant degradation

• Contiguous zone – refers to water, sea bottom, and sub-stratum

measured 24 nautical miles seaward from the baseline of the Philippine

archipelago

• Exclusive economic zone – means the water, sea bottom, and

subsurface measured from the baseline of the Philippine archipelago up

to 200 nautical miles offshore.

MINING ACT – Definitions, sec. 3

• Exploration – the searching or prospecting for mineral resources by

geological, geochemical or geophysical surveys, remote sensing, test

pitting, trenching, drilling, shaft sinking, tunnelling, or any other means for

the purpose of determining the existence, extent, quantity and quality

thereof and the feasibility of mining them for profit.

• Utilization – the extraction or disposition of minerals

MINING ACT – DECLARATION OF POLICY,

sec. 2

• All mineral resources in public and private lands within

the territory and exclusive economic zone of the

Republic of the Philippines are owned by the State. It

shall be the responsibility of the State to promote their

rational exploration, development, utilization and

conservation through the combined efforts of

government and the private sector in order to enhance

national growth in a way that effectively safeguards the

environment and protects the right of affected

communities.

SUSTAINABLE MINING – denr ao

2010-21, sec. 3

The use of mineral wealth shall be pro-environment and pro-people in sustaining wealth creation and improved quality of life under the following terms:

1. Mining is a temporary land use for the creation of wealth which leads to an optimum land use in the post-mining stage as a result of progressive and engineered mine rehabilitation work done in cycle with mining operations;

2. Mining activities must always be guided by current best practices in environmental management committed to reducing the impacts of mining and effectively and efficiently protecting the environment;

3. The wealth accruing to the Government and communities as a result of mining should also lead to other wealth-generating opportunities for people and to other environment-responsible endeavours;

4. Mining activities shall be undertaken with due and equal emphasis on economic and environmental considerations; as well as for health, safety, social and cultural concerns; and

5. Conservation of minerals is effected not only through recycling of mineral-based products to effectively lengthen the usable life of mineral commodities but also through the technological efficiency of mining operations.

MINERAL AGREEMENTS – sec.

26

MPSA

• Grants to the contractor the exclusive right to conduct mining operations within a mining area and shares in the gross output

Co-production agreement

• Government provides inputs to the mining operations other than the mineral resource

Joint venture agreement

• Joint venture company is organized by the government and the contractor with equity shares. Government earns from equity and a share in the gross output

FINANCIAL or TECHNICAL ASSISTANCE AGREEMENT

FTAA

• Sec. 33. Eligibility. - Any qualified person with technical and financial

capability to undertake large-scale exploration, development, and

utilization of mineral resources in the Philippines may enter into a

financial or technical assistance agreement with the Government

through the Department (DENR).

• Sec. 36. Negotiations. A FTAA shall be negotiated by the DENR and

executed and approved by the President. The President shall notify

Congress of all FTAAs within 30 days from execution and approval

thereof.

Are the MINING ACT and its IRR constitutional?

- Didipio Earth-Savers Multi-Purpose association (DESAMA) et al.,

vs. gozun, et al. (2006)

• Sec. 76. Entry into Private Lands and Concession Areas – Subject

to prior notification, holders of mining rights shall not be prevented

from entry into private lands and concession areas by surface

owners, occupants, or concessionaires when conducting mining

operations therein: Provided, that any damage done to the property

of the surface owner, occupant, or concessionaire as a

consequence of such operations shall be properly compensated as

may be provided for in the IRR: Provided, further, That to guarantee

such compensation, the person authorized to conduct mining

operation shall, prior thereto, post a bond with the regional director

based on the type of properties, the prevailing prices in and around

the area where the mining operations are to be conducted, with

surety or sureties satisfactory to the regional director.

ENTRY INTO LANDS – sec. 105,

DENR AO 2010-21

The holder(s) of mining right(s) shall not be prevented from entry into its/their contract/mining area(s) for the purposes of exploration, development and/or utilization: Provided, That written notice at its registered address was sent to and duly received by the surface owner of the land, occupant, and concessionaire thereof and that a bond is posted in accordance with sec. 108 hereof.

If the surface owner of the land, occupant or concessionaire thereof cannot be found, the permit holder/contractor shall notify the Regional Director concerned, copy furnished the concerned local officials in case of private land or the government agency concerned, attaching a copy of the written notice and a sworn declaration by the holder of mining rights that it had exerted all efforts to locate such surface owner/o/c. Such notice to the RD shall be deemed notice to the surface owner/o/c.

In cases where the surface owner/o/c refuses to allow the permit holder entry into the land despite its receipt of the written notice or refuses to receive said written notice or in case of disagreement over such entry, the permit holder shall bring the matter before the Panel of Arbitrators for proper disposition.

Compensation of surface owner or occupant

– secs. 107, 108

Sec. 107. Any damage done to the property of the surface owner/o/c thereof as a consequence of the mining operations or as a result of the construction or installation of the infrastructure mentioned in Sec. 104 above shall be properly and justly compensated.

Such compensation shall be based on the agreement entered into between the holder of mining rights and the surface owner/o/c thereof or where appropriate, in accordance with P.D. No. 512. In case of disagreement or in the absence of an agreement, the matter shall be brought before the Panel of Arbitrators for proper disposition.

Sec. 108. In all cases mentioned in the preceding section, the permit holder/contractor shall post a cash or surety bond from an accredited surety with the Regional Office concerned. The amount of the bond shall be agreed upon by the parties. In Carrying capacity – the capacity of natural and human environments to accommodate and absorb change without experiencing conditions of instability and attendant degradation

Carrying capacity – the capacity of natural and human environments to accommodate and absorb change without experiencing conditions of instability and attendant degradation

Carrying capacity – the capacity of natural and human environments to accommodate and absorb change without experiencing conditions of instability and attendant degradation

case of disagreement, it shall be determined by the Director for areas inside Mineral Reservations and the Regional Director for areas outside Mineral Reservations based on the type of the land and value of the trees, plants and other existing improvements thereto.

FTAA = SERVICE CONTRACT

“[T]he phrase agreements involving either technical or financial assistance, referred

to in par. 4, are in fact service contracts. But unlike those of the 1973 variety, the

new ones are between foreign corporations acting as contractors on the one hand;

and on the other, the government as principal or “owner” of the works. In the new

service contracts, the foreign contractors provide capital. Technology and technical

know-how, and managerial expertise in the creation and operation of large-scale

mining/extractive enterprises; and the government, through its agencies (DENR,

MGB) actively exercises control and supervision over the entire operation.

The Constitution allows the continued use of service contracts with foreign

corporations – as contractors who would invest in and operate and manage

extractive enterprises, subject to the full control and supervision of the State – sans

the abuses of the past regime. The purpose is clear: to develop and utilize our

mineral, petroleum and other resources on a large scale for the immediate and

tangible benefit of the Filipino people.

– Justice Minita Chico-Nazario, ponente, Didipio (DESAMA) case

SOCIAL DEVELOPMENT MANAGEMENT

PROGRAM – SDMP – sec. 134, IRR

• The Contractor/Permit Holder/Lessee shall assist in the development of the host and neigboring communities in accordance with its SDMP to promote the general welfare of the inhabitants living therein. Host community refers to the barangay(s) where the mining area is located, and neighboring community refers to the barangay(s) adjacent to the host community.

• The Contractor/PH/L shall allot annually a minimum of 1.5% of the operating costs necessary to implement Subsections (a), (b) and (c) of this Section: Provided, That of this amount, 1.125% shall be apportioned to implement the SDMP in Subsection (a) hereof, .15% for the implementation of the Program for the Development of Mining Technology and Geosciences in Subsection (b) hereof and .225% for the implementation of IEC Program in Subsection (c) hereof: Provided further, That any unspent amount and/or savings, for any given year, allotted for the implementation of the various programs shall be added to the succeeding year’s allotment and may be re-programmed after consultations with host and neighboring communities.

• 5 years (sec. 136-B)

Certificate of environmental management and

community relations record (CEMCRR) – sec. 167-A

• A CEMCRR is one of the requirements in the approval of Mineral Agreements, FTAA, quarry or commercial/Industrial Sand and Gravel Permit and MPP. It is the applicant’s proof of satisfactory environmental management and community relations in its past mineral resource use ventures.

• The CEMCRR shall be issued by the Regional Office concerned upon compliance with the following: payment of the processing fee; and satisfactory environmental management and community relations record from Regional Office(s) concerned of the MGB and EMB.

• Xxx A Certificate of Exemption will be issued by the Regional Director concerned, in lieu of the CEMCRR to an applicant with no past mineral resource use or mining related ventures.

ENVIRONMENTAL WORK

PROGRAM (EWP)

– sec. 168 Applicants for Exploration Permits, as well as those for Mineral Agreements and FTAAs which shall undertake exploration activities, shall submit to the Regional Office(s) concerned an EWP detailing the environmental impact control and rehabilitation activities proposed during the exploration including the costs to enable sufficient financial resources to be allocated to meet the environmental and rehabilitation commitments.

The EWP shall provide a description of the expected and considered acceptable impacts and shall set out the environmental protection and enhancement strategies based on best practice in environmental management in mineral exploration. It shall include a statement on post-exploration land use potential for various types of disturbed land and extend to the completion of the commitments in the rehabilitation of the disturbed land in a technically, socially and environmentally competent manner. Xxx The program shall include implementation schedules, system of environmental compliance guarantees, monitoring, reporting and cost provisions. Where proposed practices are unproven, a research program to prove the impact control and rehabilitation technology shall be required.

Environmental Protection and Enhancement

Program (EPE) – sec. 169

• An EPEP provides the operational link between the environmental protection and enhancement commitments under the IRR, as well as those stipulated in the ECC under PD 1586 and the Contractor’s plan of mining operation.

• Describes the expected and considered acceptable impacts and shall set out the life-of-mine environmental protection and enhancement strategies based on best practice in environmental management in mining. It shall include a statement on post-mining land use potential for various types of disturbed land (pits, waste dumps, tailings-impounding structures…) and extend to the completion of the commitments in the rehabilitation of the disturbed land in a technically, socially and environmentally competent manner. Includes implementation schedules, system of environmental compliance guarantees, monitoring, reporting and cost provisions. Where proposed practices are unproven, a research program to prove the impact control and rehabilitation technology shall be required.

• 10% of total capital/project cost shall be allocated for initial environment-related capital expenditures, or such other amount depending on nature and scale of operations…

Mineral resources rehabilitation

Plan - • Contractors and permittees shall technically and biologically rehabilitate the

excavated mined-out, tailings covered and disturbed areas to the condition

of environmental safety, as may be provided in IRR. – sec. 71, RA 7942

• The Final Mine Rehabilitation/Decommissioning Plan or Mine Closure Plan

shall be integrated in the EPEP… shall consider all mine closure scenarios

and shall contain cost estimates for the implementation of the FMR/DP … to

achieve the objectives of mine closure … decommissioning, rehabilitation,

maintenance and monitoring, and employee and other social costs,

including residual care, if necessary over a 10-year period.

Mine waste and Tailings (mwt)

Fees Reserve Fund – sec. 189

• MWT fees shall be collected semiannually from each operating

Contractor/PH based on the amounts of mine waste and mill tailings

it generated for the said period. Xxx to be used for compensation for

damages caused by any mining operations. Xxx for research

projects duly approved … and deemed necessary for the promotion

and furtherance of its objectives.

QUARRY – area limits – sec. 69,

DENR AO 2010-21

TYPE APPLICANT/HOLDER AREA

Sand and gravel, lahar Individual

Corporation/cooperative

40 hectares

100 hectares

Marble, granite, construction

aggregates

Individual

Corporation/cooperative

200 hectares

500 hectares

Cement raw materials –

limestone, shale, silica

Individual

Corporation/cooperative

1,000 hectares

2,000 hectares

More than 1 mining area, requires approval of Sanggunian; Feasibility

Study; Work Program

RP vs. Rosemoor Mining and Development Corp.,

(2004)

A mining license that contravenes a mandatory provision of the law

under which it is granted is void. Being a mere privilege, a license does

not vest absolute rights in the holder. Thus, without offending the due

process and the non-impairment clauses of the constitution, it can be

revoked by the State in the public interest.

– J. Panganiban, ponente

R.A. 7076

SMALL SCALE MINING

SMALL SCALE MINING – definitions, sec. 3

• Small scale mining – mining activities which rely heavily on manual

labor using simple implements and methods and do not use

explosives or heavy mining equipment.

• Small scale miners – Filipino citizens who individually or in the

company of other Filipino citizens, voluntarily form a cooperative

duly licensed by the DENR to engage, under the terms and

conditions of a contract in the extraction or removal of minerals or

ore-bearing materials from the ground

• Small scale mining contract – co-production, joint venture or mineral

production sharing agreement between the State and a small-scale

mining contractor for the small-scale utilization of a plot of mineral

land.

PROVINCIAL/CITY MINING

REGULATORY BOARD

FUNCTIONS -SEC. 24 a) Declare and segregate existing gold rush areas for small-scale

mining

b) Reserve future gold and other mining areas for small-scale mining

c) Award contracts to small-scale miners

d) Formulate and implement rules and regulations related to small-

scale mining

e) Settle disputes, conflicts or litigations over conflicting claims within a

people’s small scale mining area

f) Perform such other functions as may be necessary to achieve the

goals and objectives of this Act

PROVINCIAL/CITY MINING

REGULATORY BOARD – sec. 25

DENR representative as Chairman

Governor or City Mayor

NGO Big-scale

mining representative

Small-scale mining

representative

MINING AREAS INSIDE

ANCESTRAL landS –

SEC. 7, RA 7076 • No ancestral land may be declared as a people’s small

scale mining area without the prior consent of the

cultural communities concerned: Provided, That, if

ancestral lands are declared as people’s small scale

mining areas, the members of the cultural communities

therein shall be given priority in the awarding of small-

scale mining contracts.

Right to develop lands and natural resources – Indigenous

peoples rights act (IPRA, R.A. 8371), sec. 7(b)

• Subject to sec. 56 hereof, right to develop, control and use lands and

territories traditionally occupied, owned, or used; to manage and conserve

natural resources within the territories and uphold the responsibilities for

future generations; to benefit and share the profits from allocation and

utilization of the natural resources found therein; the right to negotiate the

terms and conditions for the exploration of natural resources in the areas for

the purpose of ensuring ecological, environmental protection and the

conservation measures, pursuant to national and customary laws; the right

to an informed and intelligent participation in the formulation and

implementation of any project, government or private, that will affect or

impact upon the ancestral domains and to receive just and fair

compensation for any damages which they may sustain as a result of the

project; and the right to effective measures by the government to prevent

any interference with, alienation and encroachment upon these rights.

Pantukan, Compostela Valley – site of landslide, small-scale mining

community

R.A. 7586

NATIONAL INTEGRATED PROTECTED

AREAS SYSTEM (NIPAS)

NIPAS – DEFINITIONS, SEC. 4

• NIPAS is the classification and administration of all designated protected areas

to maintain essential ecological processes and life-support systems, to preserve

genetic diversity, to ensure sustainable use of resources found therein, and to

maintain their natural conditions to the greatest extent possible;

• Protected area refers to the identified portions of land and water set aside by

reason of their unique physical and biological significance, managed to enhance

biological diversity and protected against destructive human exploitation;

• National park refers to a forest reservation essentially of natural wilderness

character which has been withdrawn from settlement, occupancy or any form of

exploitation except in conformity with approved management plan and set aside

as such exclusively to conserve the area or preserve the scenery, the natural

and historic objects, wild animals and plants therein and to provide enjoyment of

these features in such areas;

• Natural park is a relatively large area not materially altered by human activity

where extractive resource uses are not allowed and maintained to protect

outstanding natural and scenic areas of national or international significance for

scientific, educational and recreational use

NIPAS – DEFINITIONS, SEC. 4

• Protected landscape/seascape are areas of national significance which are

characterized by the harmonious interaction of man and land while providing

opportunities for public enjoyment through recreation and tourism within the

normal lifestyle and economic activity of these areas;

• Resource reserve is an extensive and relatively isolated and uninhabited area

normally with difficult access designated as such to protect natural resources of

the area for future use and prevent or contain development activities that could

affect the resource pending the establishment of objectives which are based upon

appropriate knowledge and planning

• Strict nature reserve is an area possessing some outstanding ecosystem, features

and/or species of flora and fauna of national scientific importance maintained to

protect nature and processes in an undisturbed state in order to have ecologically

representative examples of the natural environment available for scientific study,

environmental monitoring, education, and for the maintenance of genetic

resources in a dynamic and evolutionary state;

• Wildlife sanctuary comprises an area which assures the natural conditions

necessary to protect nationally significant species, groups of species, biotic

communities or physical features of the environment where these may require

specific human manipulation for their perpetuation.

NIPAS - DELARATION OF

POLICY, sec. 2

To secure for the Filipino people of present and future generations the

perpetual existence of all native plants and animals through the

establishment of a comprehensive system of integrated protected areas

within the classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features,

possess common ecological values that may be incorporated into a holistic

plan representative of our natural heritage; that effective administration of

these areas is possible only through cooperation among national

government, local government and concerned private organizations; that the

use and enjoyment of these protected areas must be consistent wit the

principles of biological diversity and sustainable development.

NIPAS shall encompass outstandingly remarkable areas and biologically

important public lands that are habitats of rare and endangered species of

plants and animals, biogeographic zones and related ecosystems, whether

terrestrial, wetland or marine, all of which shall be designated as “protected

areas”.

Protected area management plan – sec. 9

Buffer zone

Fire control

Habitat

Biodiversity management

Community

organizing

Socio-economic & Scientific research

Pest

manageme

nt

Multiple

-Use

Policy

developm

ent

PAMP refers to either

the Initial protected

Area Plan or the

General

Management Plan

which contains the

rationale for the

protected area

establishment;

proposed boundaries

including buffer

zones; and

designation of

management zones,

including buffer

zones, with

purposes, strategies

and allowable uses.

- DENR AO 2004-32

PACBRMA – protected Area Community-Based

Resource Management Agreement

The PACBRMA shall be the tenurial instrument to be issued to the PO in all

NIPAS sites, additional and initial components. The PACBRMA shall provide

tenurial security and incentives to develop, utilize, manage, conserve and

protect CBP (Community-Based Program) areas pursuant to the approved

Community Resource Management Plan.

Rights and responsibilities agreed to in the contract shall remain in effect during

the term of the agreement until its expiry date, unless otherwise modified,

rescinded or amended by agreement of the parties.

CBP is a program that gives opportunities to organized tenured migrant

communities and indigenous peoples to manage, develop, utilize, conserve and

protect the resources within the zones of the protected area and buffer zones

consistent with the PAMP.

Special Use Agreement in

Protected Areas (SAPA) – DENR A.O.

2007-17 SAPA allows special uses within protected areas, subject to the issuance of

an Environmental Compliance Certificate (ECC) and approval of the DENR

Secretary or his representative. Special uses include, but not limited to:

Ecotourism facilities

Camp sites Communication

facilities Transmission

lines Irrigation

canals/waterways

Right of way Aqua culture Scientific

monitoring stations

Agro-forestry Forest plantation

PROTECTED AREAS INSIDE

ANCESTRAL LANDS – SEC. 13, RA 7586

Ancestral lands and customary rights and interest arising shall be

accorded due recognition. The DENR shall prescribe rules and

regulations to govern ancestral lands within protected areas: Provided,

That the DENR shall have no power to evict indigenous communities

fro their present occupancy nor resettle them to another area without

their consent: Provided, however, That all rules and regulations,

whether adversely affecting said communities or not, shall be subjected

to notice and hearing to be participated in by members of the

concerned indigenous community.

OVERLAPPING ANCESTRAL LANDS & PROTECTED

AREAS = harmonized plan – joint DENR-NCIP MC No. 2007-01

Based on the resources assessment and/or existing plans, the management plan of the protected area shall be prepared jointly by the Technical Working Group to be created at the regional level of the DENR and NCIP with the participation of the concerned ICCs/Ips. The management plan shall include among others, the objectives, strategies, zoning and allowable resource utilization and committed activities of the stakeholders.

In cases where both the Ancestral Domain Sustainable Development and Protection Plan (ADSDPP) and the Protected Area Management Plan (PAMP) on the same land/coverage area are existing, the same shall be reviewed by the TWG concerned to facilitate harmonization of the plans.

Where only the ADSDPP exists, it will be enhanced to ensure the protection and conservation of biological diversity, however, in the absence thereof, the community shall formulate a management plan, taking into consideration any existing PAMP, with the assistance of the DENR and NCIP.

OVERLAPPING ANCESTRAL LANDS & PROTECTED

AREAS = harmonized plan – joint DENR-NCIP MC No. 2007-01

The harmonized plan shall adhere to the existing policies on:

Use of natural resources like wildlife

Access to natural resources for family use and sustenance based on established traditions and customs

Construction of infrastructure in accordance with EIA

Management arrangement and commitment of stakeholders

Monitoring and evaluation

Recognition of existing property rights regime

Wildlife Resources and conservation act

DEFINITIONS – R.A. 9147, sec. 5

• Critically endangered species – species or subspecies that is facing

extremely high risk of extinction in the wild in the immediate future

• Endangered species – species or subspecies that is not critically

endangered but whose survival in the wild is unlikely if the causal factors

continue operating

• Threatened species – general term to denote species or subspecies

considered as critically endangered, endangered, vulnerable or other

accepted categories of wildlife whose population is at risk of extinction

• Vulnerable species – species or subspecies that is not critically endangered

nor endangered but is under threat from adverse factors throughout their

range and is likely to move to the endangered category in the near future

• Economically important species – species or subspecies which have actual

or potential value in trade or utilization for commercial purpose

Wildlife Resources and

conservation act DEFINITIONS – R.A. 9147,

sec. 5

• Bioprospecting – research, collection and utilization of biological and

genetic resources for purposes of applying the knowledge derived

there from solely commercial purposes;

• Captive-breeding/culture or propagation – process of producing

individuals under controlled conditions or with human intervention;

• Habitat – a place or environment where species of subspecies

naturally occur or has naturally established its population

• Indigenous wildlife – species or subspecies of wildlife naturally

occurring or has naturally established population in the country

• Wildlife – wild forms and varieties of flora and fauna, in all

developmental stages, including those which are in captivity or are

being bred or propagated

Wildlife Resources and

conservation act declaration of policy – R.A.

9147, sec. 2

To conserve the country’s wildlife resources and their habitats for

sustainability with the following objectives:

a) To conserve and protect wildlife species and their habitats to

promote ecological balance and enhance biological diversity

b) To regulate the collection and trade of wildlife

c) To pursue, with due regard to the national interest, the Philippine

commitment to international conventions, protection of wildlife and

their habitats; and

d) To initiate or support scientific studies o the conservation of

biological diversity

Mt. Apo protected area act – R.A.

9237 declaration of policy, sec. 2

Considering Mt. Apo’s aesthetic, economic, cultural and ecological importance and its unique biological resources, it is hereby declared the policy of the State to secure its protection and conservation and those of the indigenous peoples and communities residing therein as well as their culture and way of life. The State shall:

a) Ensure the protection and conservation of biodiversity of Mt. Apo through sustainable and participatory development

b) Advance, respect and protect the customs and interests of its legitimate inhabitants, migrants and indigenous peoples alike

c) Foster partnershi pamong government, NGOs, and POs

PNOC GEOTHERMAL POWER

PLANT ON MT. APO • In view of the crucial role of power generation to the national

economy, plans and activities of the PNOC geothermal project

related to support facilities, back-up or new transmission lines,

stabilizing and power-enhancing substations, and other auxiliary

support facilities which are vital to the environmental sustainability

and energy security of Mindanao shall be implemented within

designated buffer zones subject to approval of the Protected Area

Management Board (PAMB) and by appropriate government

agencies in line with the national mandate on the development of

indigenous sources of energy.

MT. APO PAMB –

chaired by DENR REGIONAL EXECUTIVE DIRECTOR (RED)

R-XI

DENR RED R-XII Governor of No.

Cotabato Governor of Davao

del Sur

Davao City Planning &

Development Officer

Cotabato Planning & Development

Officer

Davao del Sur Planning &

Development Officer

Mayor of Magpet Mayor of Makilala Mayor of

Kidapawan Mayor of Bansalan

Mayor of Sta. Cruz Mayor of Digos Mayor of Davao

City

All Barangay Captains within Mt. Apo Natural Park

3 IP representatives

8 NGOs/POs

National Government

representatives to contribute to PA mgt

Other stakeholders