Proposed NLUA

8/19/2019 Proposed NLUA

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A Critique &

Counter-Proposal


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The ProposedNational Land Use & Management Act(HB 6545 & SB 3091)

1. Principal Authors – Party-list Rep. Kaka Agbao;and Sen. Gregorio Honasan.

2. Fast-tracked & approved on Third Reading in bothHouse of Reps and the Senate, with inadequatepublic consultation and no legislative debate

2. Given precedence over long-awaited bill on theproposed Department of Housing and UrbanDevelopment, and other urgent bills.


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It mandates the completion and updating of existing

cadastral surveys.

It provides for the creation of a National SpatialDatabase Information and Mapping System with aNational Spatial Data Information and MappingInter-Agency Support System headed by the NationalMapping and Resource Information Authority(NAMRIA).

It seeks to determine the scope and nature ofresponsibilities of national government agencies, andaddress the long-overdue task of determining anddelineating the country’s permanent forest line.


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It mandates the institutionalization of

land use and physical planning as amechanism for identifying, determiningand evaluating appropriate land use andallocation patters that promote andensure, among others, the:

Maintenance and preservation of environmentalintegrity and stability; Disaster-risk reduction andclimate risk-based planning;

Protection of prime agricultural lands for foodsecurity in basic food commodities;


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It provides for the creation of the National LandUse Policy Council (NLUPC) as the highest policy-making body on all matters pertaining to land useand management.

Instead of a full-fledged line agency, the NLUPC,as proposed, is practically the NEDA itself, to beheaded by the NEDA secretary. It will operate virtually as one of various committees under theNEDA umbrella, with a secretariat to attend to itsday-to-day functions.


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Characterization of theProposed NLUA by

Land Use IndustryPlanners &

Practitioners


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1. A veiled Omnibus Bill on Land Use which appears redundant, over-reaching, and ignorant of the real issueson the ground relative to land useplanning and management.

2. Product of ivory-tower academics andleft-of-center ideology, pandering topopulist political groups and grassrootsorganizations.


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3. Sends the wrong signals toinvestors in land development andimperils the current growth trends

of the national economy.

4. Betrays a lack of appreciation ofthe technical and budgetary issuesbehind the current problemsbedeviling land use in the country.


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5. Ignores substantivelegislation and importantpolicies that have gone beforeit, i.e., various specific laws which entrusted specific landuses to the care of specificagencies to implement .


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6. By assigning land use andmanagement responsibilities tothe NEDA as one of its adjunct

operating units with a meresecretariat to support itsfunctions, the NLUA unwittingly

trivializes the importance andcomplexity of national land useand management.


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SOME OF THE SECTORAL CONCERNS addressed by NLUMA:

4.1 Environmental Integrity4.2 Disaster Risk Reduction and Climate-Risk

Planning4.3 Food Security

4.4 Water Resources4.5 Energy Self-Sufficiency4.6 Affordable Housing4.7 Rights of Indigenous Peoples4.8 Conservation of the Country’s Natural Heritage 4.9 Permanent Forests4.10 Critical Watersheds4.11 Biodiversity4.12 Others


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A quick review of Philippinelegislation will show thatsuch concerns are alreadyaddressed by the PhilippineConstitution and a variety ofspecific laws on Land Use forspecific sectors.


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The Constitutionupholds the Principle of EquitableLand Access for all sectors.

Congresshas passed various laws that specify which lands

may be used for which purposes, and at thesame time identify which governmentinstrumentalities are conferred jurisdictionover which lands.


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Principal Laws on Land UseRA 6657, or the Comprehensive Agrarian Reform Lawof 1987, specifies the lands which are to be used foragrarian reform purposes , and confers upon the

Department of Agrarian Reform (DAR) jurisdiction overthe same; and

RA 9700 – Extension of the CARP

RA 8435, or Agriculture & Fisheries Modernization Actof 1997, specifies the lands which are set aside foragricultural development , and confers jurisdiction uponthe Department of Agriculture (DA);


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RA 7279, or the Urban Development & Housing Act of 1992, and PD 399 specify the lands set aside forurban development, housing and humansettlements, and place these lands under the jurisdiction of housing agencies and localgovernments;

RA 7916, or the PEZA Law, specifies the areas set

aside for mixed development purposes under theEcozone program, and confers upon the President,through the PEZA, jurisdiction over the same


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RA 7160 - The Local Government Code of 1991 confers

upon the LGUs the primary authority and responsibility todetermine land use in their respective localities,through their comprehensive planning and zoning powers;

The charter of the Department of Environment andNatural Resources (DENR) and various laws confer uponthis agency exclusive jurisdiction over lands of the publicdomain and endow it with authority to implement lawsintended for environmental protection; and

Certain laws designate certain specific lands or areas for tourism development and confer upon theDepartment of Tourism jurisdiction over the same.


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Other Existing Laws & Policies

Related to Land Use

Public Land Act (CA 141) of 1936– first (public)

land use management policyPD705 - Revised Forestry Code (1976)RA 7076 - People’s Small Scale Mining Act of 1991 RA 7586 – National Integrated Protected Areas System Act of 1992RA 7942 - Mining Act of 1995RA 8371– Indigenous Peoples’ Rights Act of 1997


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RA 8435– Agriculture & Fisheries Modernization Act of

1997RA 8550 - Revised Fisheries Code of 1997PD 1067 - Water Code of the PhilippinesPD 1084 - Creation of Public Estates Authority(PEA)

CA 452 - Pasture Land ActRA 9729 - Climate Change Act of 2009RA 9275 - Clean Water Act of 2009RA 10121 - Disaster Risk Reduction and Management Actof 2010RA 7161 - Banning of cutting of mangroves/forestchargesRA 10066 - National Cultural Heritage Act of 2009


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EO 263 - Adoption of CBFM as country’s sustainableforest policyEO 72 & MC 54 (1993); EO 204 (2000); E0 841 (2009) – on Compliance with CLUPs by LGUs


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To repeat , there are already lawsthat address the above-listedsectoral concerns.

There are also specific agencies to

which such concerns have beenassigned by appropriate laws.


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1 st Objection : NLUA app ears to be m ere ly anelabor ate cam ou flage to p erpetuate the CARP.Under i t s p rov i s ions :

“Protection” land use prevails over “production”land use (Sec. 5).

Agricultural lands are protected areas (Sec. 4fff).

Agricultural land is any land suitable to agriculture(Sec. 4a). [Note: Any land can be now made suitableto agriculture with appropriate use of technology.]


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DAR has the exclusive authority toapprove conversion of allagricultural lands (Sec. 4b, 4bb,

Sec. 13).

DAR has the over-archingauthority to approvereclassifications by LGUs (Secs.4jjj & 4iii).


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QUESTION:

What happens if an LGU or NGAdeems the land critical for

infrastructure or other non-agricultural socio-economicdevelopment purposes, but theDAR thinks otherwise?


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2nd Objection:Only two (2) representatives in the NLUPC are allowed to the privateland sector, i.e., landowners,developers, investors, andprofessionals ), as opposed to theeight (8) representatives assignedto the basic sectors (i.e., theurban poor, fisherfolk, peasants,and indigenous peoples) (Sec. 56)


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HB 6545 provides “…two (2) representatives each from thefour (4) basic sectors directly involved in land use ,namely: the urban poor , the peasants , the fisherfolkand the indigenous peoples who shall be appointed bythe respective National Anti-Poverty Commission (NAPC)sectoral councils .”

SB 3901 allows only two (2) developers to represent theentire private land sector. What about the other majorplayers in the sector who are also directly involved inland use, i.e., owners, investors, and professionals?

Why only two representatives for the entire sector?


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3rd Objection :

LGU powers over the proper planningand management of itsland use have beensignificantly diluted or virtually abrogated.


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NLUA takes away the Power of Re-Classification of converted land from theLGUs (notwithstanding RA 7160, or the LocalGovernment Autonomy Code).

To add insult to injury, Land Use Planningand Management Boards under the NLUPCare created in LGUs, while the LGUs’ Planningand Development Offices are mandated toprovide Secretariat support (presumably atthe expense of the LGU (Sec. 54).


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4th Objection : NLUMA pretends to promote an equitableallocation of land resources; but since all“agricultural” lands are defined as“Protected Areas” (Sec. 4fff), placed underthe DAR’s jurisdiction and protected fromconversion, practically nothing is left of theland pie to allocate to settlements,

infrastructure and other non-agriculturaldevelopment – notwithstanding the provisions that make it appear otherwise.


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5 th Objection :

NLUA is c lass legis la t ion th at v iola tes th eConstitution’s “equal protection” and “ non-impai rment ” clauses :

Agricultural lands are banned fromconversion while they are in the

hands of landowners, but may beconverted once they are awardedto ARBs Sec. 13).


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The NLUA imposes heftypenalties on landowners and/ordesignated developers or dulyauthorized representatives who or whichfail/s to commence and/or complete thedevelopment plan defined in the DAR’sconversion order.

They shall be jointly and severallypenalized. (Article Two, Sec. 82)


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Fines based on the zonal value of the land at

the time the fine shall be imposed include thefollowing:

For failure to commence within one (1) yearfrom the date of the conversion order:

Six percent (6%) for the first three (3) hectares;

Fifteen percent (15%) for the next three (3)hectares;Thirty percent (30%) for the remaining area.


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In such case , the order of conversionshall be revoked by operation of law .

The land shall revert to its original useas agricultural land shall be covered bythe DAR through compulsoryacquisition for distribution toqualified beneficiaries.


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Failure to complete sixty percent (60%) of theapproved conversion plan within a specified timeframe shall result to the automatic revocation bythe DAR of the conversion plan on theundeveloped portion.

The land shall be reverted to its original use as

agricultural land and shall be covered underthe CARP for land distribution.


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Persons and/or entities initiating,

causing, inducing or abetting illegalconversion (under this law) shall bepunished with imprisonment or fines including :

Dismissal from service (for publicofficials),Forfeiture of all benefits andentitlements andPerpetual disqualification to run orapply for any public office (Sec. 83).


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For juridical persons (corporations andinstitutions) , the penalty ofimprisonment shall be imposed on

the president, chief executiveofficer, manager, chairperson and allthe members of the Board, and other

responsible officers thereof.


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Imposable fine = equivalent to the zonal valueof the land or forty percent (40%) of theshareholders equity, whichever is higher.

Furthermore, the land shall be forfeited infavor of the State and sold through publicauction.

The proceeds of the sale shall automaticallyaccrue to the Agrarian Reform Fund.


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6 th Objection :

The non-impairment clause ismade applicable only to

marginalized sectors (Sec.100).


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The NLUA may bebarking up the wrongtree!


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The Problem is not thelack of another Law, oran Omnibus Law, onLand Use.

The Problem is Poor &Ineffective Enforcementof already existing laws.


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As an example, consider the importance of TechnicalIssues that have to be addressed effectively in order tosolve, or minimize, many land issues in the country.

One key issue is the fundamental determination of:1. Exactly where are the geographic and

jurisdictional boundaries of the lands allocated bylaw for this or that purpose?

2. Exactly what are the specific attributes of those

lands that make them suitable for one purpose asagainst another? and3. Exactly who owns or is entitled to which lands?


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1. No government agency can pinpointon the ground exactly where theboundaries of “prime agricultural lands” or“irrigable lands” or “lands suitable foragriculture” are , and exactly whatparameters or criteria were

used , if any, in identifying these lands assuch.


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On the mere say-so of a DAR functionaryin a town or province, lands have been placed underCARP coverage, denied conversion, and locked againstreclassification by LGUs for non-agricultural use.

2. No government agency canpinpoint exactly where theterritorial boundaries of each LGUsare.


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3. No government agency can pinpointexactly where the marked boundaries of allforest or timber lands, mineral lands, naturalparks, wildlife preserves, watersheds, waters of the

public domain, ancestral domains, public lands,and environmentally critical areas are.

This gives rise to arbitrary application ofregulatory restrictions on developmentalactivities.


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4. The government has no land information

system worthy of the name. To each his own,and one agency’s information is inconsistent with the rest.

Consider the following situation:

4.1 The country’s topographic maps underthe custody of NAMRIA are outdated – prepared in the 1950s and 1960s – even as legalboundaries are not demarcated;


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4.2 The SAFDZ maps prepared by the DA – delineating the so-called NationalProtected Areas for Agriculture and Agro-industrial Development (NPAAAD) andStrategic Agriculture and FisheriesDevelopment Zones (SAFDZ) – are alsooutdated , having been prepared almost 20 years ago;

4.3 About 40% of the country has not yetbeen subjected to cadastral survey todetermine legal boundaries and rights to landparcels;


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4.4 Many LGUs have not complied with themandate for Comprehensive Land Use Planningand updating – principally because of lack offunds, technical capability and assistance by theNational Government; and

4.5 Many land titles and tenurial instrumentschurned out by the agencies concerned areinaccurate as to the covered lands – in manyinstances these cannot even be located on theground


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DAR itself cannot evenidentify exactly which parcelsof land throughout the

country have already beenissued CLOAs (CARPinstruments), or which have

been programmed foracquisition and redistribution.


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RA 9700 , which extended the lifespan of theCARP for a several more years, mandatedthe DAR to complete an officialcomprehensive list of CLOAs issued since

the beginning of CARP and release it to thepublic within a year from the passage of thelaw.

To date, the DAR has not been able tocomplete, much less release, such a list.


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Without such a prior definitivedetermination, the issue of landallocation and land use is

reduced to nothing more thana battle for turf amonggovernment agencies; and landuse regulation is left entirelyto administrative discretion .


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The proposed NLUA neitherharmonizes nor justly allocates the country’s lands, but is socrafted as to promote principallythe interest of the peasantry – possibly at the expense of the restof the nation.


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Evidences of the NLUA Bias Vs. Other SectorsOutside of Agriculture and Agrarian Reform

1st Evidence:The Declaration of Policies mandates that land

use and physical planning shall ensure protectionof agricultural lands and “highest priority to thecompletion of the CARP”.

Question:Why is CARP implementation singled out andaccorded highest priority?


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2nd Evidence: “Priority areas for agriculturaldevelopment are the CARP, CARPable areas andthe NPAAAD”.

Under the DAR’s rules and procedures, practically all lands are CARPable, even asthe NPAAAD covers virtually all lands.


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As any land can be made suitable foragriculture (with the application oftechnology), any land can be embraced bythe NPAAAD.

Thus, in effect, other than timber lands,mineral lands or natural parks,

practically all of the country’s lands willbe reserved for agriculturaldevelopment .


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What is covered by the NPAAD?

1) All irrigated areas ;2) All irrigable lands already covered by

irrigation projects with firm fundingcommitments ;3) All alluvial plains ;4) Lands highly suitable for agriculture

whether irrigated or not ;


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5) Agro-industrial croplands or lands planted to

industrial crops that support the validity of existingagricultural infrastructure and agro-based enterprises;6) Highlands or areas located at an elevation offive hundred (500) meters or above and have the

potential for growing semi-temperate and high valuecrops;7) All agricultural lands that are ecologicallyfragile the conversion of which will result in serious

environmental degradation; and8) All mangrove areas and fish sanctuaries


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3rd Evidence:

Agricultural lands may bereclassified by LGUs for non-agricultural uses “through the localplanning and zoning process”, but“subject to the requirementsand procedures for conversion”.


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QUESTION :

If the NLUA is truly meant to “harmonize”interests in land, why is the DAR – anadministrative agency whose mandate issolely to promote the interest of the peasantry through the CARP – beingmade the final arbiter of land allocationand planning by LGUs which are, in

contrast to the DAR, mandated to promotethe interests of not just the peasantry butthe entire local citizenry?


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4th Evidence:In “spatial allocation for different land uses, the LGUsshall first exclude areas under protection land use,national parks, energy resource lands, and primeagricultural lands”, the latter having the samedefinition as the NPAAAD.

QUESTION: If all these lands are to be excluded inland use allocation by LGUs, what lands will

remain available or allowed for residential,commercial, institutional and other non-agricultural development?


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5th Evidence: As far as housing and residential use is

concerned, the proposed law allocates merelythose “agricultural lands as designated in theCLUP which are no longer economically feasiblefor agricultural use ”.

QUESTIONS : (a) exactly when does an agriculturalland become no longer feasible for agricultural use;(b) given the population growth rate and demographic

trends and needs, exactly how much and at what ratecan lands be released for the various needs; and(c) what about non-residential use?


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6th Evidence : NPAAAD lands are protectedfrom conversion; irrigated andirrigable lands as well as lands withpotential for high value crops are given

full protection from conversion; and alllands subject to CARP are protected fromconversion pending installation of agrarian

reform beneficiaries, but thereafter may beconverted subject to Section 65 of RA 6657.


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In other words, practically all landscannot be allowed for conversion ordevelopment for non-agricultural uses – including priority infrastructure projects – except when already in the hands of agrarianreform beneficiaries.

WHY?


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QUESTION: Where is equity or justice in a provision thatobviously favors the peasantry while denying the restof the citizenry the right to the beneficial use of land?

Out of the country’s population of close to 100million only some 5.7 million are farmers and fisherfolk.The other 23.8 million live in slums; 40 millionsubsist below the poverty line.

All these citizens need homes and amenities, as well as jobs and livelihood in factories, offices,and commercial and industrial establishments.Where will all these structures be put up?


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7th Evidence : The proposed NLUA concedes that nonational mapping program exists to date.Therefore, one of the immediate tasks still to bedone is to complete and then integrate all themaps in the national framework for physicalplanning. Without accurate maps, land use

cannot be planned correctly, rationally, andequitably.

So, WHY is a blanket conversion ban ormoratorium already to take effect uponeffectivity of the law?


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QUESTION:

Exactly how will a judicious and impartialdetermination be made as to whether or notthe conversion ban is applicable to a

particular piece of land, when there is yet nocredible land information system thatidentifies, locates, demarcates andaccurately determines the attributes of allthe lands which are supposed to be“protected from conversion”?


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The proposed NLUA – ifallowed to pass at this time -poses a grave threat &major disincentive to thecontinuing flow ofinvestments in key sectors ofthe Philippine economy.


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The proposed NLUA sends very disturbing

signals to investors, funds managers,industrialists, and business managers – both foreign and local.

Not only does it disregard and violatethe letter and spirit of the PhilippineConstitution.

Its contains provisions that appearbackward, parochial, and exclusivist.


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The NLUA could negatively affect :

1. Philippine global competitiveness;

2. The sustained real estate and housingboom;

3. The dynamic growth of the BPO

industry;


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4. The confidence that sustains the

continuing inflow of OFWremittances ;

5. The resurgence of tourism and

agribusiness, along with their upstreamand downstream industrial linkages; and

6. Many other enterprises that are

contributing to the vibrancy of ournational economy.


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A NATIONAL LAND USE ACT -

Must be guided by the best and most reliableinformation and knowledge that scienceand technology can make available.

Must also heed the sectors that haveinvested heavily and made it theirbusiness to become familiar with whatscience and technology have to offer regarding the useof Land.


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The Private Land Sector

Deserves to Be Heard!

Beyond ideological and partisan

considerations, a NLUA must bebased on an objective assessment ofthe situation on the ground and an

open mind towards solutionsoffered to us by science, technology,and modern management.


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REJECTIONOR

COMPROMISE?


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Is a compromise possible between the proponents of the NLUA and the Private LandSector?

Can the proposed NLUA be revised in order to:- Uphold and comply with the constitutionalprinciples of equity and fairness (Art. III, Sec. 1);and

- Apply the positive lessons gained from our ownnational experience and the best practices andsuccesses of other progressive nations?


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Key Conditions for any workablecompromise:1st Condition .

Whether or not the land is tenanted, irrigated,irrigable or suitable for crops, the prior review,approval or any clearance by the DAR shall notbe required in the reclassification or

conversion or development of agriculturallands that are located :


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(a) within all cities and all first-classmunicipalities , (cf. RA 7279)

(b) within all areas reclassified and zoned by

local government units for non-agriculturaluses prior to June 15, 1988 ; (cf. RA 7160) provided,that in case the land to be developed is identified asenvironmentally critical, an EnvironmentalClearance Certificate shall be obtained from theDENR.


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WHY?Under the Constitution, all lands not classified astimber, mineral or natural parks are genericallytermed “agricultural” lands.

Thus, necessarily, lands to be used for residential,commercial, industrial and other non-agricultural

purposes have to be carved out of the

“agricultural” lands pie throughreclassification by law (Congress) or localordinance (LGUs).


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(c) within a strip of one thousand (1,000) meters

along existing national highways and provincialroads , (cf. PD 399) and

(d) within areas identified by Provincial Land Use

Councils for priority infrastructure development projects (cf. RA 7160);

provided , that in case the land to be developed is

identified as environmentally critical, anEnvironmental Clearance Certificate shall be obtained from the DENR.


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Said lands are hereby reserved for settlements and

urban development purposes under RA 7279, andare excluded from all provisions of theComprehensive Agrarian Reform Law as amended .

Any CARP Notice of Coverage or Notice of Acquisition already issued by the DAR coveringthese lands are hereby revoked ; provided, that incase a land to be developed for non-agricultural use isirrigated, the project proponent shall reimburse the government for the irrigation facility;


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provided further , that in case development of the land

will result in displacement of legitimate agriculturaltenants, the project proponent shall pay disturbancecompensation equivalent to five (5) times the averageof the gross harvests on the landholding during the last five (5) preceding calendar years;

provided finally, that if the land is already covered by aduly issued emancipation patent or CLOA issued by theDAR prior to effectivity of this Act, development orconversion shall be subject to Section 65 of RA 6657 asamended.


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In other words, out of the county’s total land area of 30

Million hectares, only some 28.6% is beingrecommended to be categorically reserved forresidential, commercial, industrial, institutionaland all other non-agricultural uses for the entirecountry.

Surely, the remaining agricultural lands of the country, with the application of appropriate technology tomaximize agricultural productivity, as in the case oftiny Israel, would be more than sufficient to meet therequirements of food security for generations.


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To reiterate -

What we need now, and

urgently, is not another law,particularly when it appears tosuffer from the constitutionalinfirmity of class legislation.


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There are more than enough existing laws onland use that have already been passed by theCongress of the Philippines.

The real challenge is how to implement theselaws more reliably, scientifically, systematically,consistently, and equitably.

What we need is political will to make ourlaws work and stick.


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Top priority must be given to acentralized national geographicinformation system equipped with state-of-the-art technology, professionalcompetence and skills, and adequatebudgetary support so that decisions andactions on land use concerns are based on

correct, validated, reliable, and consistentinformation.


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We need a full-fledged anddedicated agency to oversee andmanage land use planning and

management throughout thecountry.

This could be the beefed-up, fully capacitatedHousing and Land Use Regulatory Board that hasthe competence to provide overall coordinativetechnical planning support for all the LGUs in theland.


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The Urgency of the Moment:

the CLUPSIn the meantime, the urgency of the moment is toempower and assist our local government units to

complete their respective Comprehensive Land UsePlans, or update these regularly.

The CLUPs are needed to provide solid and scientificbasis for the development programs and projects thatLGUs will consider and approve in their respective jurisdictions, for the benefit of all their citizens andirrespective of the specific sector to which each citizenbelongs.


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To address this urgent concern, anappropriate Executive Order would besufficient.

If new legislation is at all called for, itshould give the highest importance tothe GIS backbone for effective land

use planning and implementation andthe appropriate administrativestructure for this purpose.


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HLURB As Central Physical Planning Agency

CREBA has long proposed beefing up the Housingand Land Use Regulatory Board (HLURB) withincreased competent professional staff, state-0f-the-art technology, and adequate budgetary support.

CREBA envisions the HLURB as the CentralPhysical Planning Agency that will support theproposed Department of Housing and UrbanDevelopment as well as other national agencies andLGUs in planning the best use, allocation, andmanagement of land and other physical resourcesfor national and local development.


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YES to Responsible andEquitable Land Use Planningand Management!

NO to the Proposed

National Land Use Act(NLUA)!


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Documents

Proposed NLUA