Session 4 Legal Frameworks and Jurisdictions

1. Session 4Legal Frameworks and Jurisdictions

2. Session Objectives and Outputs • By the end of this session, we will be able to: • Identify relevant legal frameworks to the conservation strategy of the campaigns.  • Communicate the political and institutional structures, including the levels of government, political process, and the roles of academia and the private sector in coastal resource management.

3. Session Objectives and Outputs • Identify and apply relevant legal frameworks to the conservation strategy of the campaigns.  • Communicate the political and institutional structures, including the levels of government, political process, and the roles of academia and the private sector in coastal resource management.

4. Selected Philippine Legal Frameworks related to CRM • Pre-colonial period • Philippines under Spain • The American period • The Martial Law Period • Post-EDSA Period • Present Regime

5. Session Objectives and Outputs • Part One • Identify relevant legal frameworks to the conservation strategy of the campaigns. 

6. Pre-colonial Philippines • Concept of communal property under a datu/village chieftain • Customary laws on fishing

7. The Spanish Period • Jura regalia: the Philippines under the Spanish Crown “Law of Waters” of 1866, extended by the Spanish Royal Decree of August 8, 1866 during the reign of Queen Esabella II, which made classifications of public waters or of public ownership

8. Protection of Fish and Game Act of 1916 The first legislation on biodiversity protection in the Philippines

9. The American Period • Republic Act 3915 of 1932 Proc. No. 552 on 23 February 1933

10. The American Period • Fisheries Act of 1932 (Act No. 4003) Classified public fisheries according to their government and disposition: national, municipal and reserve fisheries. Falling under national fisheries are: 1) deep sea or offshore fishing; 2) marine mollusca fisheries; 3) sponge fisheries; 4) hawksbill turtle fisheries; and 5) inland fisheries. Under municipal fisheries is within three nautical miles at most from the shoreline of the municipality. Lighthouse at the mouth of Pasig River & Filipino Salambao fishing boats From the University of Michigan, Special Collections Library

11. The Martial Law Period Fishery Code of 1975 (PD 704) Promoted and encouraged the maximum economic utilization of fishery resources. Encouraged and promoted the exportationof fish and fishery aquatic products. Mandated a policy of accelerated fishpond development and promoted the decline of mangrove forests. Parallel trends in declining mangrove area (A) and municipal fisheries production (B) and increasing brackishwater pond area (A) and aquaculture production (B) in the Philippines, 1976-1998 (Primavera, 2004)

12. The Post-EDSA PeriodFisheries Code of 1998 (Republic Act No. 8550) Declared policy to limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens. Principle of policy is the protection of municipal fishermen. The law stipulated that fishery and aquatic resources shall be managed in a manner consistent with the concept of integrated coastal area management.

13. Fisheries Code of 1998 (Republic Act No. 8550) • Fisheries are classified in municipal fisheries, i.e. fishing in municipal waters, and commercial fishing. • The Department of Fisheries (sic) may designate areas in Philippine waters beyond 15 kilometers of the shoreline as fishery reservation or fish refuges and sanctuaries in bays, foreshore lands, continental shelf or any fishing ground to be set aside for the cultivation of mangroves to strengthen the habitat and the spawning grounds of fish. • The Code therefore mandates the setting aside of at least 15% of municipal waters for fish sanctuaries and allows at least 25 but not more than 40% of fishing grounds beyond municipal waters for fish sanctuaries or mangrove reserves (Uychiaoco, Arceo, Aliño and Cheung, 2002).

14. Post-EDSA PeriodRepublic Act 7586 The National Integrated Protected Areas System (NIPAS) Act, 1992 Fundamental law that defines the processes in establishing and managing protected areas Since the enactment of the NIPAS Act in 1992, only 12 protected areas have been finally declared by the Congress.  Gatumbato, 2010 pers. comm.

15. CRM FrameworksFrom 1975-2000

16. EO 533 – Integrated Costal Management (ICM) ICM and related approaches shall be the national policy framework. ICM shall be implemented in all coastal and marine environment and resources in order to achieve food security, sustainable livelihood, poverty alleviation and reduction.

17. Institutions and Jurisdictions in Coastal Zone Management [1] National Commission on Indigenous Peoples [2] National Mapping and Resource Information Authority [3] refers to local government unit, such as municipality or city [4] Fisheries and Aquatic Resources Management Council [5] refers to national government agency, such as DENR or DA [6] Philippine Council for Aquatic and Marine Research and Development, one of the sectoral planning councils under the Department of Science and Technology (DOST) [7] Bureau of Agricultural Statistics [8] Philippine National Police-Maritime Group [9] Philippine Coastguard [10] Department of Agrarian Reform [11] Department of Transportation [12] Land Management Bureau under the DENR [13] Environmental Management Bureau [14] Philippine Estates Authority [15] Philippine Fisheries Development Authority [16] Philippine Ports Authority Module 3, Unit 1

18. Historical perspective on laws affecting zoning of municipal waters

19. Session Objectives and Outputs Part 2 Communicate the political and institutional structures, including the levels of government, political process, and the roles of academia and the private sector in coastal resource management.

20. Hierarchy of Legal Frameworks

21. Philippine Constitution of 1987 • Art. II, Sec. 15 & 16: The State shall protect and promote the right to health of the people; 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. • Art. XII, Sec. 2: The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State shall protect the nation’s marine wealth,… and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. • Art. XIII, Sec. 7: The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research… and other services. • Art. XIII: The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged.

22. Philippine Governance System

23. Role of the Judiciary Court decisions apply to ICM in relation to the Constitutional authority of courts Oposa et al., vs. Factoran et al., upholding the right to a healthy environment while applying the intergenerational equity principle Tano et al., vs. Socrates et al., recognizing the rights of local government units to enact ordinances pursuant to the constitutional right to a balanced and healthful ecology

24. Judiciary reforms • Provided several legal remedies: • Writ of Kalikasan • Immediate and specific set of remedies which may be availed when constitutional right to a balanced and healthful ecology is violated, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. • Writ of Continuing Mandamus • May be availed of to compel the performance of an act specifically enjoined by law • Strategic Lawsuits against Public Participation (SLAPP) • Persons or organizations can immediately file a counter case to serve as a defense against SLAPP which filed by individual, organizations or corporations. • Precautionary Principle • Courts can issue Environmental Protection Order (EPO) which directs or enjoins any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. Rule of Procedure for Environmental Cases, 2010

25. Can dolphins sue? Yes, they may sue.

26. RA 7160 – Local Government Code • Concretizes the constitutional policy on government decentralization and democratization.  • Gives primary management responsibilities to local government units.  Thus, coastal municipalities and cities are now at the forefront of coastal zone management. • Greater fiscal autonomy through various powers to levy certain taxes, fees or charges. • The law also provides for people’s direct participation in the planning and implementation of resource management plans, thus, establishing a system where local communities, non-government organizations (NGOs), academic and scientific institutions can become partners of the local government units.

27. Role of National Agencies DENR Various roles in policymaking, planning, conservation and protection, permitting and licensing, mapping, rehabilitation, enforcement and conservation. DA-BFAR Mandated to develop, conserve and maintain the sustainable fishery and aquatic resources. Issues commercial fishing licenses, monitors trade of aquatic resources, enforces fishery laws and formulate policies, rules and regulations, except municipal waters. DILG The Philippine National Police has the general responsibility over the enforcement of the Fisheries Code and other fishery laws and regulations. DOTC Primary role in prevention and control of marine pollution and in control over navigational lanes and enforcement of laws in the high seas. Module 3, Unit 1 Juinio-Menez,Butardo-Tibio, Perez, Pollisco, 2007

28. Role of the DA-Bureau of Fisheries and Aquatic Resources • Implement the national strategic framework on ICM • Assist with management of resources and areas under the mandate of BFAR (e.g., fisheries of all kinds, fishing techniques, stock assessment and aquaculture) • Provide technical guidance in coastal management planning and implementation • Assist in training of LGUs and community stakeholders • Provide legal assistance to LGUs and community members/stakeholders for fisheries-related law enforcement

29. Role of the Department of Environment and Natural Resources • Coordinate with BFAR on fisheries management and policy formulation and national strategic framework • Assist with management of resources and areas under the mandate of DENR (e.g. mangroves, water quality, foreshore management, quarrying and protected areas) • Provide financial assistance in specific projects of DENR mandate • Provide technical guidance to local government units in coastal management planning and implementation • Assist in training of LGUs and community stakeholders • Identify and implement alternative or supplemental livelihood for coastal communities • Provide legal assistance to LGUs and community members/stakeholders for environmental law enforcement

30. General Responsibilities of LGU in CRM • Require government agencies to consult them in the issuance of permits and tenure instruments within their localities (e.g. Sections 26 and 27, LGC, EIS System). • Enforce national laws and use local legislative powers to regulate coastal and marine resources utilization and development (e.g. RA 8550, RA 9147, RA 7942, RA7076). • Enact comprehensive land-use plan and integrated zoning ordinances (LGC,HLURB guidelines). • Supplement setback zones with additional safety zones in the coastal zone (Section 51 of the Water Code). • Prescribe procedure for summary abatement of nuisance (Articles 694, 699 and 701 of Civil Code) or building and structures that fail to conform with safety regulations (Section 214 and 215 of Building Code). Juinio-Menez,Butardo-Tibio, Perez, Pollisco, 2007

31. Evolving Role of the Municipal/City Local Government Units • Planning and Taxation • Develop a coastal environmental profile with maps for planning; • Implement revenue generation mechanisms through licenses, fees and taxes • Budget and Fund Appropriation • Implement ICM plans through yearly operational plans and budget; • Provide budget and dedicated personnel for planning and implementation; • Networking and Linkaging • Provide overall facilitation and coordination for planning and implementation; • Collaborate with province, other municipalities or cities and national agencies to develop multi-municipal ICM plans as required for special management areas • Share ICM practices with constituents and other LGU learners • Network and collaborate with local and international funding institutions for ICM implementation

32. LGU Governance MechanismThe Municipal/City Fisheries and Aquatic Resources Management Councils (M/CFARMCs). RA 8550 Section 73 mandate the creation in each of the municipalities and cities abutting municipal waters. Optional - Barangay Fisheries and Aquatic Resources Management Councils (BFARMCs) and the Lakewide Fisheries and Aquatic Resources Management Councils (LFARMCs) Functions of the M/CFARMCs • (a) assist in the preparation of the Municipal Fishery Development Plan and submit such plan to the Municipal Development Council; • (b) recommend the enactment of municipal fishery ordinances to the sangguniangbayan/sangguniangpanlungsod through its Committee on Fisheries; • (c) assist in the enforcement of fishery laws, rules and regulations in municipal waters; • (d) advise the sangguniangbayan/panlungsod on fishery matters through its Committee on Fisheries, if such has been organized; and • (e) perform such other functions which may be assigned by the sangguniangbayan/panlungsod.

33. Law Enforcement mechanismThe environmental protection teams Assisting the LGUs in fishery enforcement functions, the BantayDagat members may be deputized after receiving formal training in coastal law enforcement. In addition, Municipal and/or City Fisheries and Aquatic Resource Management Council (M/CFARMC) members may also be deputized as fish wardens to assist in the enforcement of fishery laws, rules and regulations in municipal waters. ADB

34. Evolving role of the Provincial Government • Develop and implement policy and planning framework for CRM in province • Provide technical assistance to municipalities and cities for coastal management planning and implementation • Monitor all coastal management activities and results in province • Provide financial incentives for coastal management based on results of monitoring • Assist the national government in developing and implementing policy and planning framework for CRM in the country • Optional creation of provincial environment office

35. Evolving Role of the Municipal/City Local Government Units • Capacity building and support • Develop capability of local DA staff through training and practice; • Conduct information, education and communication and training • Support participatory coastal resource assessments for each barangay; • Identify and implement alternative or supplemental livelihood for coastal communities, and • Support organization and mandate of municipal and barangay FARMCs • Policy formulation and enforcement • Develop and adopt a multi-year and strategic integrated coastal management plan; • Support CRM plan implementation through appropriate ordinances; • Incorporate appropriate coastal management best practices in CRM plan; • Enact comprehensive fisheries management ordinance; • Support law enforcement units as required • Possible creation a city/municipal environment office.

36. Evolving role of the Local Government Unit - Barangay • Data gathering and profiling • Collaborative planning, implementation and monitoring • Participation in FARMC, bantaydagat and other organizations • Formulation of resolutions on CRM and enterprise for submission to municipality

37. Evolving role of the community stakeholders and people’s organizations • Participate in all ICM planning sessions in all levels of local government (barangay/municipality/city/province) • Provide members to barangay and municipal FARMCs • Participate in stakeholder management organizations • Volunteer for coastal management implementation activities (i.e., law enforcement, fisheries monitoring and sanctuary establishment and management, etc.) • Initiate IEC activities in the community

38. Evolving role of the non-government organizations (NGOs) • Provide assistance at the community and barangay level to organize FARMCs and other resource management organizations • Provide technical services to LGUs for implementing community level interventions • Provide information and education services at the community and municipal level • Assist with monitoring biophysical and socioeconomic indicators • Provide a conduit for financial assistance to LGUs for coastal management. • Provide environmental legal assistance to M/LGU.

39. Evolving role the Academic Institutions • Assist to analyze information for coastal environmental profiles • Assist to design and implement a monitoring program for biophysical, socioeconomic and legal-institutional indicators in ICM for LGUs • Assist to integrate existing data and information into ICM plans • Assist in formulating CRM/ICM plans and packaging of project proposals • Provide assistance in designing and maintaining a management information system and database for coastal management • Assist to design coastal management projects for multi-municipal management areas • Assist in training of LGUs and communities • Assist in designing IEC and community development programs and strategies for LGUs, NGOs and POs

40. Conclusion • In the Phils, there are many agencies doing ICM activities • As there are many laws, there are some grey areas. • There are many stakeholders in ICM activities.