Environmental Law

P and Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for prohibition
and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective
memoranda in which they reiterate the arguments adduced in their earlier pleadings and during the
hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on
the ground that they amount to an unlawful deprivation of the State’s ownership over lands of the public
domain as well as minerals and other natural resources therein, in violation of the regalian doctrine
embodied in Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in
turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public
lands, bodies of water, mineral and other resources found within ancestral domains are private but
community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and
ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction,
development or exploration of minerals and other natural resources within the areas claimed to be their
ancestral domains, and the right to enter into agreements with nonindigenous peoples for the development
and utilization of natural resources therein for a period not exceeding 25 years, renewable for not more
than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and
conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains" and
"ancestral lands" which might even include private lands found within said areas, Sections 3(a) and 3(b)
violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP
and making customary law applicable to the settlement of disputes involving ancestral domains and
ancestral lands on the ground that these provisions violate the due process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral
domains and which vest on the NCIP the sole authority to delineate ancestral domains and
ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an
ancestral domain and upon notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and Local Governments, Secretary of
Justice and Commissioner of the National Development Corporation, the jurisdiction of said officials
over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples
 shall be applied first with respect to property rights, claims of ownership, hereditary succession and
settlement of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be
resolved in favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used to resolve disputes
involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights
of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1,
series of 1998, which provides that "the administrative relationship of the NCIP to the Office of the
President is characterized as a lateral but autonomous relationship for purposes of policy and program
coordination." They contend that said Rule infringes upon the President’s power of control over executive
departments under Section 17, Article VII of the Constitution.6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP
to cease and desist from implementing the assailed provisions of R.A. 8371 and its Implementing
Rules;
"(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment
and Natural Resources to cease and desist from implementing Department of Environment and
Natural Resources Circular No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to
cease and desist from disbursing public funds for the implementation of the assailed provisions of
R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural
Resources to comply with his duty of carrying out the State’s constitutional mandate to control and
supervise the exploration, development, utilization and conservation of Philippine natural
resources."7
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and
Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of
R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged provisions of the law with
the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules
and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends should be
interpreted as dealing with the large-scale exploitation of natural resources and should be read in
conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted
to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do
not have standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate
opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are
unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law,
which he believes must await the filing of specific cases by those whose rights may have been violated by
the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of
R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the
separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was
redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to
Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

SEPARATE OPINION
PUNO, J.:
PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the Uses
and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard Posner1 wrote:2
"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,'
of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient
texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a
method of recovering history. It is suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy
and brashness of youth. These ingrained attitudes are obstacles to anyone who wants to re-orient law in a
more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms with
history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into
the Philippine legal system which appear to collide with settled constitutional and jural precepts on state
ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated
without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret
IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by
Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities'
right to their ancestral land but more importantly, to correct a grave historical injustice to our
indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies
B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).
A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not
constitute part of the land of the public domain.
1. The right to ancestral domains and ancestral lands: how acquired
2. The concept of native title
 (a) Cariño v. Insular Government
(b) Indian Title to land
(c) Why the Cariño doctrine is unique
3. The option of securing a torrens title to the ancestral land
B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited
form of ownership and does not include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in
Section 2, Article XII of the 1987 Constitution.
1. The rights of ICCs/IPs over their ancestral domains and lands
2. The right of ICCs/IPs to develop lands and natural resources within the ancestral
domains does not deprive the State of ownership over the natural resources, control and
supervision in their development and exploitation.
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7(a) of the law on ownership of ancestral domains and
is ultra vires.
(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is
allowed under Paragraph 3, Section 2, Article XII of the 1987 Consitution.
(c) The large-scale utilization of natural resources in Section 57 of the IPRA may be
harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's power of dominium.3 This was the
foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regaliais a Western legal concept that was first introduced by the Spaniards into the
country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy of
the Spanish Crown with respect to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal
crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be
restored to us as they belong to us, in order that after reserving before all what to us or to our viceroys,
audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in those
places which are peopled, taking into consideration not only their present condition, but also their future
and their probable increase, and after distributing to the natives what may be necessary for tillage and
pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said
lands may remain free and unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts designate at such time
as shall to them seem most expedient, a suitable period within which all possessors of tracts, farms,
plantations, and estates shall exhibit to them and to the court officers appointed by them for this purpose,
their title deeds thereto. And those who are in possession by virtue of proper deeds and receipts, or by
virtue of just prescriptive right shall be protected, and all the rest shall be restored to us to be disposed of at
our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the
exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took charge of
distributing the lands by issuing royal grants and concessions to Spaniards, both military and
civilian.5 Private land titles could only be acquired from the government either by purchase or by the
various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory
claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880. The Royal Decree
of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as well as the Laws of the
Indies, as already amended by previous orders and decrees. 8 This was the last Spanish land law
promulgated in the Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise
the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the
United States all rights, interests and claims over the national territory of the Philippine Islands. In 1903, the
United States colonial government, through the Philippine Commission, passed Act No. 926, the first
Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for ownership of land: long-time occupation or
paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860. Defendant's
predecessor-in-interest, on the other hand, purchased the land from the provincial treasurer of Tarlac in
1892. The lower court ruled against the plaintiffs on the ground that they had lost all rights to the land by
not objecting to the administrative sale. Plaintiffs appealed the judgment, asserting that their 30-year
adverse possession, as an extraordinary period of prescription in the Partidas and the Civil Code, had
given them title to the land as against everyone, including the State; and that the State, not owning the
land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which
from earliest time have regulated the disposition of the public lands in the colonies." 10 The question posed
by the Court was: "Did these special laws recognize any right of prescription as against the State as to
these lands; and if so, to what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the
Philippines. However, it was understood that in the absence of any special law to govern a specific colony,
the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed that
until regulations on the subject could be prepared, the authorities of the Philippine Islands should follow
strictly the Laws of the Indies, theOrdenanza of the Intendentes of 1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court
interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the
Crown which have not been granted by Philip, or in his name, or by the kings who preceded him. This
statement excludes the idea that there might be lands not so granted, that did not belong to the
king. It excludes the idea that the king was not still the owner of all ungranted lands, because some
private person had been in the adverse occupation of them. By the mandatory part of the law all the
occupants of the public lands are required to produce before the authorities named, and within a time to be
fixed by them, their title papers. And those who had good title or showed prescription were to be protected
in their holdings. It is apparent that it was not the intention of the law that mere possession for a length of
time should make the possessors the owners of the land possessed by them without any action on the part
of the authorities."12
The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the
kings who preceded him, belonged to the Crown. 13 For those lands granted by the king, the decree
provided for a system of assignment of such lands. It also ordered that all possessors of agricultural land
should exhibit their title deed, otherwise, the land would be restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal
subdelegate to issue a general order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the promulgation
and publication of said order, shall have occupied royal lands, whether or not x x x cultivated or tenanted,
may x x x appear and exhibit to said subdelegates the titles and patents by virtue of which said lands are
occupied. x x x. Said subdelegates will at the same time warn the parties interested that in case of their
failure to present their title deeds within the term designated, without a just and valid reason therefor, they
will be deprived of and evicted from their lands, and they will be granted to others."15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by
private individuals in the Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs' case
fared no better under the 1880 decree and other laws which followed it, than it did under the earlier ones.
Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession for a
sufficient length of time, yet it has always insisted that he must make that proof before the proper
administrative officers, and obtain from them his deed, and until he did that the State remained the
absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these Islands
by which the plaintiffs could obtain the ownership of these lands by prescription, without any action by the
State."17Valenton had no rights other than those which accrued to mere possession. Murciano, on the
other hand, was deemed to be the owner of the land by virtue of the grant by the provincial secretary. In
effect, Valenton upheld the Spanish concept of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government from
earliest times, requiring settlers on the public lands to obtain title deeds therefor from the State,
has been continued by the American Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the Philippine Bill
of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and regulations
for the homesteading, selling, and leasing of portions of the public domain of the Philippine Islands, and
prescribed the terms and conditions to enable persons to perfect their titles to public lands in the Islands. It
also provided for the "issuance of patents to certain native settlers upon public lands," for the establishment
of town sites and sale of lots therein, for the completion of imperfect titles, and for the cancellation or
confirmation of Spanish concessions and grants in the Islands." In short, the Public Land Act operated on
the assumption that title to public lands in the Philippine Islands remained in the government; 19 and that
the government's title to public land sprung from the Treaty of Paris and other subsequent treaties between
Spain and the United States.20 The term "public land" referred to all lands of the public domain whose title
still remained in the government and are thrown open to private appropriation and settlement, 21 and
excluded the patrimonial property of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was
passed under the Jones Law. It was more comprehensive in scope but limited the exploitation of
agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same
privileges.23 After the passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land Law and it
is essentially the same as Act 2874. The main difference between the two relates to the transitory
provisions on the rights of American citizens and corporations during the Commonwealth period at par with
Filipino citizens and corporations.24
Grants of public land were brought under the operation of the Torrens system under Act 496, or the
Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and
private lands in the Philippines under the Torrens system. The law is said to be almost a verbatim copy of
the Massachussetts Land Registration Act of 1898, 25 which, in turn, followed the principles and procedure
of the Torrens system of registration formulated by Sir Robert Torrens who patterned it after the Merchant
Shipping Acts in South Australia. The Torrens system requires that the government issue an official
certificate of title attesting to the fact that the person named is the owner of the property described therein,
subject to such liens and encumbrances as thereon noted or the law warrants or reserves. 26 The certificate
of title is indefeasible and imprescriptible and all claims to the parcel of land are quieted upon issuance of
said certificate. This system highly facilitates land conveyance and negotiation.27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating objectives
of the 1935 Constitutional Convention was the nationalization and conservation of the natural resources of
the country.28 There was an overwhelming sentiment in the Convention in favor of the principle of
state ownership of natural resources and the adoption of the Regalian doctrine. 29 State ownership of
natural resources was seen as a necessary starting point to secure recognition of the state's power to
control their disposition, exploitation, development, or utilization.30 The delegates to the Constitutional
Convention very well knew that the concept of State ownership of land and natural resources was
introduced by the Spaniards, however, they were not certain whether it was continued and applied by the
Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming the
Regalian doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural
Resources," reads as follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall
be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial
use may be the measure and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy
and the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong
to the State. With the exception of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five years, renewable for not more
than twenty-five years,except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be the measure and the limit
of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy
and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens.Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may be provided
by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein,
whether on public or private land, belong to the State. It is this concept of State ownership that
petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples,
Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is
simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and defines the extent of these lands
and domains. The ownership given is the indigenous concept of ownership under customary law
which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to
customary laws and traditions of the community concerned;
b. the right to redemption for a period not exceeding 15 years from date of transfer, if the
transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or
if the transfer is for an unconscionable consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and
empowerment,34 social justice and human rights,35 the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the right to develop their own sciences and
technologies.36
To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples
(NCIP). The NCIP is an independent agency under the Office of the President and is composed of seven
(7) Commissioners belonging to ICCs/IPs from each of the ethnographic areas- Region I and the
Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon, Panay and
the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central
Mindanao.37 The NCIP took over the functions of the Office for Northern Cultural Communities and the
Office for Southern Cultural Communities created by former President Corazon Aquino which were merged
under a revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers. 39 The NCIP's
decisions may be appealed to the Court of Appeals by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or
unlawful intrusion upon ancestral lands and domains shall be punished in accordance with customary laws
or imprisoned from 9 months to 12 years and/or fined from ₱100,000.00 to ₱500,000.00 and obliged to pay
damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs)
or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the
contemporary international language in the International Labor Organization (ILO) Convention 169 41 and
the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have continuously lived
as organized community on communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such territories, sharing common
bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance
to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are
regarded as indigenous on account of their descent from the populations which inhabited the country, at the
time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of their own social, economic, cultural
and political institutions, but who may have been displaced from their traditional domains or who may have
resettled outside their ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or
homogeneous societies who have continuously lived as an organized community on communally
bounded and defined territory. These groups of people have actually occupied, possessed and utilized
their territories under claim of ownership since time immemorial. They share common bonds of language,
customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and
cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated
from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the
time of conquest or colonization, who retain some or all of their own social, economic, cultural and political
institutions but who may have been displaced from their traditional territories or who may have resettled
outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro,
Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110 tribes and
are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao,
Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of
Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya,
Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or
Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro;
Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of
Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the
Pullon of Masbate and Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros
Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the
Kalibugan of Basilan, the Samal, Subanon and Yakat.
 8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon,
Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del
Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur,
Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan provinces, and the
Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon,
Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur;
Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo
Blit of South Cotabato; the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del
Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur
and South Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to
30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos,
Indonesians and Malays.44 The strains from these groups eventually gave rise to common cultural features
which became the dominant influence in ethnic reformulation in the archipelago. Influences from the
Chinese and Indian civilizations in the third or fourth millenium B.C. augmented these ethnic strains.
Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and traders. Indian
influence found their way into the religious-cultural aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became supplementary
activities as reliance on them was reduced by fishing and the cultivation of the soil.46 From the hinterland,
coastal, and riverine communities, our ancestors evolved an essentially homogeneous culture, a basically
common way of life where nature was a primary factor. Community life throughout the archipelago was
influenced by, and responded to, common ecology. The generally benign tropical climate and the largely
uniform flora and fauna favored similarities, not differences.47 Life was essentially subsistence but not
harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form. They had languages
that traced their origin to the Austronesian parent-stock and used them not only as media of daily
communication but also as vehicles for the expression of their literary moods.49 They fashioned concepts
and beliefs about the world that they could not see, but which they sensed to be part of their lives. 50 They
had their own religion and religious beliefs. They believed in the immortality of the soul and life after death.
Their rituals were based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of
other deities, in the environmental spirits and in soul spirits. The early Filipinos adored the sun, the moon,
the animals and birds, for they seemed to consider the objects of Nature as something to be respected.
They venerated almost any object that was close to their daily life, indicating the importance of the
relationship between man and the object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores.52 The barangay was basically a
family-based community and consisted of thirty to one hundred families. Each barangay was different and
ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his subjects and promote
their welfare and interests. A chieftain had wide powers for he exercised all the functions of government. He
was the executive, legislator and judge and was the supreme commander in time of war.53
Laws were either customary or written. Customary laws were handed down orally from generation
to generation and constituted the bulk of the laws of the barangay. They were preserved in songs and
chants and in the memory of the elder persons in the community. 54 The written laws were those that the
chieftain and his elders promulgated from time to time as the necessity arose. 55 The oldest known written
body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old codes are the
Muslim Code of Luwaran and the Principal Code of Sulu. 56 Whether customary or written, the laws dealt
with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment,
property rights, family relations and adoption. Whenever disputes arose, these were decided peacefully
through a court composed by the chieftain as "judge" and the barangay elders as "jury." Conflicts arising
between subjects of different barangays were resolved by arbitration in which a board composed of elders
from neutral barangays acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private property in land. The chiefs
merely administered the lands in the name of the barangay. The social order was an extension of the family
with chiefs embodying the higher unity of the community. Each individual, therefore, participated in the
community ownership of the soil and the instruments of production as a member of the barangay. 58 This
ancient communalism was practiced in accordance with the concept of mutual sharing of resources so that
no individual, regardless of status, was without sustenance. Ownership of land was non-existent or
unimportant and the right of usufruct was what regulated the development of lands. 59 Marine
resources and fishing grounds were likewise free to all. Coastal communities depended for their economic
welfare on the kind of fishing sharing concept similar to those in land communities. 60 Recognized leaders,
such as the chieftains and elders, by virtue of their positions of importance, enjoyed some economic
privileges and benefits. But their rights, related to either land and sea, were subject to their responsibility to
protect the communities from danger and to provide them with the leadership and means of survival.61
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by Tawi-
tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction: Sama,
Tausug, Yakan and Subanon.62 The Sultanate of Maguindanao spread out from Cotabato toward Maranao
territory, now Lanao del Norte and Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but
was private in use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a
provision on the lease of cultivated lands. It, however, has no provision for the acquisition, transfer, cession
or sale of land.64
The societies encountered by Magellan and Legaspi therefore were primitive economies where most
production was geared to the use of the producers and to the fulfillment of kinship obligations. They were
not economies geared to exchange and profit.65 Moreover, the family basis of barangay membership as
well as of leadership and governance worked to splinter the population of the islands into numerous small
and separate communities.66
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in
barangay settlements scattered along water routes and river banks. One of the first tasks imposed on
the missionaries and the encomenderos was to collect all scattered Filipinos together in a reduccion.67 As
early as 1551, the Spanish government assumed an unvarying solicitous attitude towards the
natives.68 The Spaniards regarded it a sacred "duty to conscience and humanity to civilize these less
fortunate people living in the obscurity of ignorance" and to accord them the "moral and material
advantages" of community life and the "protection and vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and convent would be
constructed. All the new Christian converts were required to construct their houses around the church and
the unbaptized were invited to do the same. 70 With the reduccion, the Spaniards attempted to "tame" the
reluctant Filipinos through Christian indoctrination using the convento/casa real/plaza complex as focal
point. The reduccion, to the Spaniards, was a "civilizing" device to make the Filipinos law-abiding citizens of
the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and civilization.71
All lands lost by the old barangays in the process of pueblo organization as well as all lands not
assigned to them and the pueblos, were now declared to be crown lands or realengas, belonging to
the Spanish king. It was from the realengas that land grants were made to non-Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of
public domain were the most immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of everything of value in the Indies or
colonies was imposed on the natives, and the natives were stripped of their ancestral rights to
land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the
Filipinos according to their religious practices and beliefs, and divided them into three types . First were
the Indios, the Christianized Filipinos, who generally came from the lowland populations. Second, were
the Moros or the Muslim communities, and third, were the infieles or the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and
was allowed certain status although below the Spaniards. The Moros and infieles were regarded as the
lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila and
the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them into
the deep interior. The upland societies were naturally outside the immediate concern of Spanish interest,
and the cliffs and forests of the hinterlands were difficult and inaccessible, allowing the infieles, in effect,
relative security.77 Thus, the infieles, which were peripheral to colonial administration, were not only able
to preserve their own culture but also thwarted the Christianization process, separating themselves from
the newly evolved Christian community.78Their own political, economic and social systems were kept
constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of suspicion,
fear, and hostility between the Christians on the one hand and the non-Christians on the other. Colonialism
tended to divide and rule an otherwise culturally and historically related populace through a colonial system
that exploited both the virtues and vices of the Filipinos.79
President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the
existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous practices and introduce
civilized customs."80
Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the
American government chose "to adopt the latter measure as one more in accord with humanity and with
the national conscience."81
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos. The term "non-Christian" referred not to religious belief, but to a geographical area, and more
directly, "to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship
apart from settled communities."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act No. 253
creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the Interior, the BNCT's
primary task was to conduct ethnographic research among unhispanized Filipinos, including those in
Muslim Mindanao, with a "special view to determining the most practicable means for bringing about their
advancement in civilization and prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest in Philippine cultural minorities and
produced a wealth of valuable materials about them.83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue then
was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and complete
manner the economic, social, moral and political advancement of the non-Christian Filipinos or national
cultural minorities and to render real, complete, and permanent the integration of all said national cultural
minorities into the body politic, creating the Commission on National Integration charged with said
functions." The law called for a policy of integration of indigenous peoples into the Philippine mainstream
and for this purpose created theCommission on National Integration (CNI).84 The CNI was given, more
or less, the same task as the BNCT during the American regime. The post-independence policy of
integration was like the colonial policy of assimilation understood in the context of a guardian-ward
relationship.85
The policy of assimilation and integration did not yield the desired result. Like the Spaniards and
Americans, government attempts at integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands and wide
open spaces in Mindanao.86Knowledge by the settlers of the Public Land Acts and the Torrens
system resulted in the titling of several ancestral lands in the settlers' names. With government
initiative and participation, this titling displaced several indigenous peoples from their
lands. Worse, these peoples were also displaced by projects undertaken by the national government in the
name of national development.87
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in
the formulation and implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were
addressed by the highest law of the Republic, and they were referred to as "cultural
communities."More importantly this time, their "uncivilized" culture was given some recognition and their
"customs, traditions, beliefs and interests" were to be considered by the State in the formulation and
implementation of State policies.President Marcos abolished the CNI and transferred its functions to
the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to integrate the
ethnic groups that sought full integration into the larger community, and at the same time "protect the rights
of those who wish to preserve their original lifeways beside the larger community." 89 In short, while still
adopting the integration policy, the decree recognized the right of tribal Filipinos to preserve their
way of life.90
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the national
cultural communities who were given up to 1984 to register their claims. 91 In 1979, the Commission on
the Settlement of Land Problems was created under E.O. No. 561 which provided a mechanism for the
expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and
Bontoks of the Cordillera region were displaced by the Chico River dam project of the National Power
Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries
Company (BUSCO). In Agusan del Sur, the National Development Company was authorized by law in 1979
to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in Agusan del
Sur. Most of the land was possessed by the Agusan natives.93 Timber concessions, water projects,
plantations, mining, and cattle ranching and other projects of the national government led not only to the
eviction of the indigenous peoples from their land but also to the reduction and destruction of their natural
environment.94
The Aquino government signified a total shift from the policy of integration to one of
preservation.Invoking her powers under the Freedom Constitution, President Aquino created the Office of
Muslim Affairs, Office for Northern Cultural Communities and the Office for Southern Cultural
Communities all under the Office of the President.95
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to
preserve their way of life. 96 This Constitution goes further than the 1973 Constitution by expressly
guaranteeing the rights of tribal Filipinos to their ancestral domains and ancestral lands. By
recognizing their right to their ancestral lands and domains, the State has effectively upheld their
right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are
non-Christians. They live in less accessible, marginal, mostly upland areas. They have a system of self-
government not dependent upon the laws of the central administration of the Republic of the Philippines.
They follow ways of life and customs that are perceived as different from those of the rest of the
population.97 The kind of response the indigenous peoples chose to deal with colonial threat worked well to
their advantage by making it difficult for Western concepts and religion to erode their customs and
traditions. The "infieles societies" which had become peripheral to colonial administration, represented,
from a cultural perspective, a much older base of archipelagic culture. The political systems were still
structured on the patriarchal and kinship oriented arrangement of power and authority. The economic
activities were governed by the concepts of an ancient communalism and mutual help. The social structure
which emphasized division of labor and distinction of functions, not status, was maintained. The cultural
styles and forms of life portraying the varieties of social courtesies and ecological adjustments were kept
constantly vibrant.98
Land is the central element of the indigenous peoples' existence. There is no traditional concept of
permanent, individual, land ownership. Among the Igorots, ownership of land more accurately applies to the
tribal right to use the land or to territorial control. The people are the secondary owners or stewards of the
land and that if a member of the tribe ceases to work, he loses his claim of ownership, and the land reverts
to the beings of the spirit world who are its true and primary owners. Under the concept of "trusteeship," the
right to possess the land does not only belong to the present generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land except the gods and
spirits, and that those who work the land are its mere stewards. 100 Customary law has a strong
preference for communal ownership, which could either be ownership by a group of individuals or
families who are related by blood or by marriage, 101 or ownership by residents of the same locality who
may not be related by blood or marriage. The system of communal ownership under customary laws draws
its meaning from the subsistence and highly collectivized mode of economic production. The Kalingas, for
instance, who are engaged in team occupation like hunting, foraging for forest products, and swidden
farming found it natural that forest areas, swidden farms, orchards, pasture and burial grounds should be
communally-owned.102 For the Kalingas, everybody has a common right to a common economic base.
Thus, as a rule, rights and obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions individual
ownership. The residential lots and terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the right to use and dispose of the property,
he does not possess all the rights of an exclusive and full owner as defined under our Civil Code. 103 Under
Kalinga customary law, the alienation of individually-owned land is strongly discouraged except in marriage
and succession and except to meet sudden financial needs due to sickness, death in the family, or loss of
crops.104 Moreover, and to be alienated should first be offered to a clan-member before any village-
member can purchase it, and in no case may land be sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system. The concept of
individual land ownership under the civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon indigenous claims to ancestral lands.
Communal ownership is looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth
Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous
Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills- Senate Bill No. 1728 and
House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of four
proposed measures referred to the Committees on Cultural Communities, Environment and Natural
Resources, Ways and Means, as well as Finance. It adopted almost en toto the comprehensive version of
Senate Bill Nos. 1476 and 1486 which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.108 At the Second Regular Session of the Tenth
Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous
peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance
and neglect of government controlled by the majority. Massive migration of their Christian brothers to their
homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting
the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural
resources by the elite among the migrant population, they became marginalized. And the government has
been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities
(ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive
during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine
first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law,
the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant
of lands to migrant homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long
before any central government was established. Their ancestors had territories over which they ruled
themselves and related with other tribes. These territories- the land- include people, their dwelling, the
mountains, the water, the air, plants, forest and the animals. This is their environment in its totality. Their
existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural
and spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it.
Otherwise, IPs shall cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two
postulates: (1) the concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated in
Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the State
have "made exception to the doctrine." This exception was first laid down in the case of Cariño v. Insular
Governmentwhere:
"x x x the court has recognized long occupancy of land by an indigenous member of the cultural
communities as one of private ownership, which, in legal concept, is termed "native title." This ruling has
not been overturned. In fact, it was affirmed in subsequent cases."111
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D.
1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly
or implicitly, and liberally or restrictively, recognized "native title" or "private right" and the existence of
ancestral lands and domains. Despite the passage of these laws, however, Senator Flavier continued:
"x x x the executive department of government since the American occupation has not implemented the
policy. In fact, it was more honored in its breach than in its observance, its wanton disregard shown during
the period unto the Commonwealth and the early years of the Philippine Republic when government
organized and supported massive resettlement of the people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral land.
The bill was prepared also under the principle of parens patriae inherent in the supreme power of the
State and deeply embedded in Philippine legal tradition. This principle mandates that persons suffering
from serious disadvantage or handicap, which places them in a position of actual inequality in their relation
or transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and
none against, with no abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote,
recognize the rights of indigenous cultural communities within the framework of national unity and
development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that
these rights shall be well-preserved and the cultural traditions as well as the indigenous laws that remained
long before this Republic was established shall be preserved and promoted. There is a need, Mr. Speaker,
to look into these matters seriously and early approval of the substitute bill shall bring into reality the
aspirations, the hope and the dreams of more than 12 million Filipinos that they be considered in the
mainstream of the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the
Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cariño v. Insular
Government which recognized the fact that they had vested rights prior to the establishment of the
Spanish and American regimes.115
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do
Not Constitute Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral
lands.Ancestral lands are not the same as ancestral domains. These are defined in Section 3 [a] and [b] of
the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim
of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other
voluntary dealings entered into by government and private individuals/corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by
individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or
through their predecessors-in-interest, under claims of individual or traditional group ownership,
continuously, to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential lots, rice terraces
or paddies, private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or
possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time
immemorial, continuously until the present, except when interrupted by war, force majeure or displacement
by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with
government and/or private individuals or corporations. Ancestral domains comprise lands, inland
waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture,
residential, agricultural, and other lands individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They
also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except
that these are limited to lands and that these lands are not merely occupied and possessed but are also
utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but
are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department
of Environment and Natural Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the delineation of
ancestral domains by special task forces and ensured the issuance of Certificates of Ancestral Land Claims
(CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA
on the National Commission on Indigenous Peoples (NCIP).119 The guiding principle in identification and
delineation is self-delineation.120 This means that the ICCs/IPs have a decisive role in determining the
boundaries of their domains and in all the activities pertinent thereto.121
The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and 52
of the IPRA. The identification, delineation and certification of ancestral lands is in Section 53 of said law.
Upon due application and compliance with the procedure provided under the law and upon finding by the
NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title (CADT)
in the name of the community concerned.122 The allocation of lands within the ancestral domain to any
individual or indigenous corporate (family or clan) claimants is left to the ICCs/IPs concerned to decide in
accordance with customs and traditions.123 With respect to ancestral lands outside the ancestral
domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in
the place where the property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes: (1) bynative title over both ancestral lands and domains; or (2) by torrens title under the
Public Land Act and the Land Registration Act with respect to ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as memory
reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands
and are thusindisputably presumed to have been held that way since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands are deemed never to have been public lands and
are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of
ICCs/IPs to their ancestraldomains (which also include ancestral lands) by virtue of native title shall be
recognized and respected.127Formal recognition, when solicited by ICCs/IPs concerned, shall be
embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned
ICCs/IPs over the territories identified and delineated.128
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is
a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The
IPRA categorically declares ancestral lands and domains held by native title as never to have been public
land. Domains and lands held under native title are, therefore, indisputably presumed to have never been
public lands and are private.
(a) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular
Government.130Cariño firmly established a concept of private land title that existed irrespective of any
royal grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares of
land in Baguio Municipality, Benguet Province. He claimed that this land had been possessed and occupied
by his ancestors since time immemorial; that his grandfather built fences around the property for the
holding of cattle and that his father cultivated some parts of the land. Cariño inherited the land in
accordance with Igorot custom. He tried to have the land adjusted under the Spanish land laws, but no
document issued from the Spanish Crown.131In 1901, Cariño obtained a possessory title to the land under
the Spanish Mortgage Law.132 The North American colonial government, however, ignored his possessory
title and built a public road on the land prompting him to seek a Torrens title to his property in the land
registration court. While his petition was pending, a U.S. military reservation 133 was proclaimed over his
land and, shortly thereafter, a military detachment was detailed on the property with orders to keep cattle
and trespassers, including Cariño, off the land.134
In 1904, the land registration court granted Cariño's application for absolute ownership to the land. Both the
Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of Benguet which
reversed the land registration court and dismissed Cariño's application. The Philippine Supreme
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the case to the U.S. Supreme
Court.136 On one hand, the Philippine government invoked the Regalian doctrine and contended that
Cariño failed to comply with the provisions of the Royal Decree of June 25, 1880, which required
registration of land claims within a limited period of time. Cariño, on the other, asserted that he was the
absolute owner of the land jure gentium, and that the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held
from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as
entitled to the treatment accorded to those in the same zone of civilization with themselves. It is true, also,
that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may
assert, as Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the
Philippines, the United States asserts that Spain had such power. When theory is left on one side,
sovereignty is a question of strength, and may vary in degree. How far a new sovereign shall insist upon
the theoretical relation of the subjects to the head in the past, and how far it shall recognize actual facts,
are matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new
colonizer. Ultimately, the matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American constitutionalist's concept of "due process" as
well as the pronounced policy "to do justice to the natives." 138 It was based on the strong mandate
extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the United States.
Whatever consideration may have been shown to the North American Indians, the dominant purpose of the
whites in America was to occupy land. It is obvious that, however stated, the reason for our taking over the
Philippines was different. No one, we suppose, would deny that, so far as consistent with paramount
necessities, our first object in the internal administration of the islands is to do justice to the natives, not to
exploit their country for private gain. By the Organic Act of July 1, 1902, chapter 1369, section 12 (32
Statutes at Large, 691), all the property and rights acquired there by the United States are to be
administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the attitude thus
assumed by the United States with regard to what was unquestionably its own is also its attitude in
deciding what it will claim for its own. The same statute made a bill of rights, embodying the safeguards of
the Constitution, and, like the Constitution, extends those safeguards to all. It provides that 'no law shall be
enacted in said islands which shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws.' In the light of the declaration that we
have quoted from section 12, it is hard to believe that the United States was ready to declare in the next
breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that
which had become such by ceremonies of which presumably a large part of the inhabitants never had
heard, and that it proposed to treat as public land what they, by native custom and by long association,- of
the profoundest factors in human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a case like the present. It might,
perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the
land has been held by individuals under a claim of private ownership, it will be presumed to have
been held in the same way from before the Spanish conquest, and never to have been public
land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the
applicant the benefit of the doubt."140
The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory
went, and (2) under a claim of private ownership. Land held by this title is presumed to "never have been
public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904
decision ofValenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees
did not honor native title. On the contrary, the decrees discussed in Valenton appeared to recognize that
the natives owned some land, irrespective of any royal grant. The Regalian doctrine declared in the
preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were admitted
to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it
was bad by that law as to satisfy us that he does not own the land. To begin with, the older decrees
and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives
were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into trespassers or even into tenants at will.
For instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias, cited for a contrary
conclusion in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others, when it
seems proper, to call for the exhibition of grants, directs them to confirm those who hold by good grants
or justa prescripcion. It is true that it begins by the characteristic assertion of feudal overlordship and
the origin of all titles in the King or his predecessors. That was theory and discourse. The fact was
that titles were admitted to exist that owed nothing to the powers of Spain beyond this recognition
in their books." (Emphasis supplied).141
The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered
territories. The wording of the Spanish laws were not framed in a manner as to convey to the natives that
failure to register what to them has always been their own would mean loss of such land. The registration
requirement was "not to confer title, but simply to establish it;" it was "not calculated to convey to the mind
of an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank enough,
however, to admit the possibility that the applicant might have been deprived of his land under Spanish law
because of the inherent ambiguity of the decrees and concomitantly, the various interpretations which may
be given them. But precisely because of the ambiguity and of the strong "due process mandate" of
the Constitution, the court validated this kind of title.142 This title was sufficient, even without
government administrative action, and entitled the holder to a Torrens certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem not without
difficulties for courts of a legal tradition. We have deemed it proper on that account to notice the possible
effect of the change of sovereignty and the act of Congress establishing the fundamental principles now to
be observed. Upon a consideration of the whole case we are of the opinion that law and justice require that
the applicant should be granted what he seeks, and should not be deprived of what, by the practice and
belief of those among whom he lived, was his property, through a refined interpretation of an almost
forgotten law of Spain."143
Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio
Municipality in his name.144
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native
title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument,
characterized as a savage tribe that never was brought under the civil or military government of the
Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted
to anyone in that province the registration to which formerly the plaintiff was entitled by the
Spanish Laws, and which would have made his title beyond question good. Whatever may have been
the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights
and was a mere trespasser when the present government seized his land. The argument to that effect
seems to amount to a denial of native titles through an important part of the Island of Luzon, at least, for
the want of ceremonies which the Spaniards would not have permitted and had not the power to
enforce."145
This is the only instance when Justice Holmes used the term "native title" in the entire length of
the Cariñodecision. It is observed that the widespread use of the term "native title" may be traced to
Professor Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law
from the Yale University Law School. In 1982, Prof. Lynch published an article in the Philippine Law
Journal entitled Native Title, Private Right and Tribal Land Law.146 This article was made after
Professor Lynch visited over thirty tribal communities throughout the country and studied the origin and
development of Philippine land laws.147 He discussed Cariñoextensively and used the term "native title" to
refer to Cariño's title as discussed and upheld by the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by
Justice Holmes in Cariño "is conceptually similar to "aboriginal title" of the American Indians.148 This is not
surprising, according to Prof. Lynch, considering that during the American regime, government policy
towards ICCs/IPs was consistently made in reference to native Americans. 149 This was clearly
demonstrated in the case of Rubi v. Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to
remove the Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao, Lake
Naujan. Any Mangyan who refused to comply was to be imprisoned. Rubi and some Mangyans, including
one who was imprisoned for trying to escape from the reservation, filed for habeas corpus claiming
deprivation of liberty under the Board Resolution. This Court denied the petition on the ground of police
power. It upheld government policy promoting the idea that a permanent settlement was the only
successful method for educating the Mangyans, introducing civilized customs, improving their health and
morals, and protecting the public forests in which they roamed. 151 Speaking through Justice Malcolm, the
court said:
"Reference was made in the President's instructions to the Commission to the policy adopted by the United
States for the Indian Tribes. The methods followed by the Government of the Philippine Islands in its
dealings with the so-called non-Christian people is said, on argument, to be practically identical with that
followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is
insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a state of
pupilage." The recognized relation between the Government of the United States and the Indians may be
described as that of guardian and ward. It is for the Congress to determine when and how the guardianship
shall be terminated. The Indians are always subject to the plenary authority of the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But
even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States,
that Indians have been taken from different parts of the country and placed on these reservations, without
any previous consultation as to their own wishes, and that, when once so located, they have been made to
remain on the reservation for their own good and for the general good of the country. If any lesson can be
drawn from the Indian policy of the United States, it is that the determination of this policy is for the
legislative and executive branches of the government and that when once so decided upon, the courts
should not interfere to upset a carefully planned governmental system. Perhaps, just as many forceful
reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation of the
different Indian tribes in the United States."153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is a
part of the public domain set apart by proper authority for the use and occupation of a tribe or tribes of
Indians.154 It may be set apart by an act of Congress, by treaty, or by executive order, but it cannot be
established by custom and prescription.155
Indian title to land, however, is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."156 The aboriginal right of possession depends on the
actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the sense that
such lands constitute definable territory occupied exclusively by the particular tribe or nation.157 It is a right
which exists apart from any treaty, statute, or other governmental action, although in numerous instances
treaties have been negotiated with Indian tribes, recognizing their aboriginal possession and delimiting their
occupancy rights or settling and adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have held
and occupied before the "discovery" of the Americas by the Europeans. The earliest definitive
statement by the U.S. Supreme Court on the nature of aboriginal title was made in 1823 in Johnson
& Graham's Lessee v. M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2)
Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private
persons. The only conveyance that was recognized was that made by the Indians to the government of the
European discoverer. Speaking for the court, Chief Justice Marshall pointed out that the potentates of the
old world believed that they had made ample compensation to the inhabitants of the new world by
bestowing civilization and Christianity upon them; but in addition, said the court, they found it necessary, in
order to avoid conflicting settlements and consequent war, to establish the principle that discovery gives
title to the government by whose subjects, or by whose authority, the discovery was made, against
all other European governments, which title might be consummated by possession.160 The
exclusion of all other Europeans gave to the nation making the discovery the sole right of acquiring the soil
from the natives and establishing settlements upon it. As regards the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely
disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the
rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use
itaccording to their own discretion; but their rights to complete sovereignty, as independent nations,
were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they
pleased, was denied by the fundamental principle that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they asserted
the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants
have been understood by all to convey a title to the grantees, subject only to the Indian right of
occupancy."161
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian
land and extinguish Indian titles. Only to the discoverer- whether to England, France, Spain or Holland- did
this right belong and not to any other nation or private person. The mere acquisition of the right
nonetheless did not extinguish Indian claims to land. Rather, until the discoverer, by purchase or conquest,
exercised its right, the concerned Indians were recognized as the "rightful occupants of the soil, with a legal
as well as just claim to retain possession of it." Grants made by the discoverer to her subjects of lands
occupied by the Indians were held to convey a title to the grantees, subject only to the Indian right of
occupancy. Once the discoverer purchased the land from the Indians or conquered them, it was only then
that the discoverer gained an absolute title unrestricted by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount
to the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession has
never been questioned. The claim of government extends to the complete ultimate title, charged
with this right of possession, and to the exclusive power of acquiring that right."162
It has been said that the history of America, from its discovery to the present day, proves the universal
recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having to
invalidate conveyances made by the government to many U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia
enacted a law requiring all white persons residing within the Cherokee nation to obtain a license or permit
from the Governor of Georgia; and any violation of the law was deemed a high misdemeanor. The plaintiffs,
who were white missionaries, did not obtain said license and were thus charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established
between the United States and the Cherokee nation as well as the Acts of Congress regulating intercourse
with them. It characterized the relationship between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the
supply of their essential wants, and for their protection from lawless and injurious intrusions into their
country. That power was naturally termed their protector. They had been arranged under the protection of
Great Britain; but the extinguishment of the British power in their neighborhood, and the establishment of
that of the United States in its place, led naturally to the declaration, on the part of the Cherokees, that they
were under the protection of the United States, and of no other power. They assumed the relation with the
United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful, not that of
individuals abandoning their national character, and submitting as subjects to the laws of a master."166
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries
and recognize their right of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate trade and intercourse
with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that
protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force,
manifestly consider the several Indian nations as distinct political communities, having territorial
boundaries, within which their authority is exclusive, and having a right to all the lands within those
boundaries, which is not only acknowledged, but guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the soil from time
immemorial,with the single exception of that imposed by irresistible power, which excluded them from
intercourse with any other European potentate than the first discoverer of the coast of the particular region
claimed: and this was a restriction which those European potentates imposed on themselves, as well as on
the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." x x
x.167
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right
to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of
Congress. The whole intercourse between the United States and this nation is, by our Constitution and
laws, vested in the government of the United States."168
The discovery of the American continent gave title to the government of the discoverer as against all other
European governments. Designated as the naked fee,169 this title was to be consummated by possession
and was subject to the Indian title of occupancy. The discoverer acknowledged the Indians' legal and just
claim to retain possession of the land, the Indians being the original inhabitants of the land. The discoverer
nonetheless asserted the exclusive right to acquire the Indians' land- either by purchase, "defensive"
conquest, or cession- and in so doing, extinguish the Indian title. Only the discoverer could extinguish
Indian title because it alone asserted ultimate dominion in itself. Thus, while the different nations of Europe
respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be in
themselves.170
As early as the 19th century, it became accepted doctrine that although fee title to the lands
occupied by the Indians when the colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and the United States- a right of
occupancy in the Indian tribes was nevertheless recognized. The Federal Government continued the
policy of respecting the Indian right of occupancy, sometimes called Indian title, which it accorded the
protection of complete ownership.171But this aboriginal Indian interest simply constitutes "permission" from
the whites to occupy the land, and means mere possession not specifically recognized as ownership by
Congress.172 It is clear that this right of occupancy based upon aboriginal possession is not a property
right.173 It is vulnerable to affirmative action by the federal government who, as sovereign, possessed
exclusive power to extinguish the right of occupancy at will.174 Thus, aboriginal title is not the same as
legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long
time.175 It entails that land owned by Indian title must be used within the tribe, subject to its laws and
customs, and cannot be sold to another sovereign government nor to any citizen. 176 Such title as Indians
have to possess and occupy land is in the tribe, and not in the individual Indian; the right of individual
Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe
generally being held in communal ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate
such lands as are subject to sale or other disposal under general laws. 178 Indian land which has been
abandoned is deemed to fall into the public domain.179 On the other hand, an Indian reservation is a part of
the public domain set apart for the use and occupation of a tribe of Indians. 180 Once set apart by proper
authority, the reservation ceases to be public land, and until the Indian title is extinguished, no one but
Congress can initiate any preferential right on, or restrict the nation's power to dispose of, them.181
The American judiciary struggled for more than 200 years with the ancestral land claims of
indigenous Americans.182 And two things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point of view, certain benefits can be drawn
from a comparison of Philippine IPs to native Americans.183 Despite the similarities between native title
and aboriginal title, however, there are at present some misgivings on whether jurisprudence on American
Indians may be cited authoritatively in the Philippines. The U.S. recognizes the possessory rights of the
Indians over their land; title to the land, however, is deemed to have passed to the U.S. as successor of the
discoverer. The aboriginal title of ownership is not specifically recognized as ownership by action
authorized by Congress.184 The protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are criticisms against the refusal to
recognize the native Americans' ownership of these lands,186 the power of the State to extinguish these
titles has remained firmly entrenched.187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains
and ancestral lands.188 The IPRA, however, is still in its infancy and any similarities between its application
in the Philippines vis-à-vis American Jurisprudence on aboriginal title will depend on the peculiar facts of
each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants
ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is private
and was never public. Cariño is the only case that specifically and categorically recognizes native
title. The long line of cases citing Cariño did not touch on native title and the private character of
ancestral domains and lands. Cariño was cited by the succeeding cases to support the concept of
acquisitive prescription under the Public Land Act which is a different matter altogether. Under the
Public Land Act, land sought to be registered must be public agricultural land. When the conditions
specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is deemed to
have acquired, by operation of law, a right to a grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the mere lapse or completion of the
prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule that all
lands that were not acquired from the government, either by purchase or grant, belong to the public domain
has an exception. This exception would be any land that should have been in the possession of an
occupant and of his predecessors-in-interest since time immemorial. It is this kind of possession that would
justify the presumption that the land had never been part of the public domain or that it had been private
property even before the Spanish conquest.193 Oh Cho, however, was decided under the provisions of the
Public Land Act and Cariño was cited to support the applicant's claim of acquisitive prescription under the
said Act.
All these years, Cariño had been quoted out of context simply to justify long, continuous, open and
adverse possession in the concept of owner of public agricultural land. It is this long, continuous, open and
adverse possession in the concept of owner of thirty years both for ordinary citizens 194 and members of
the national cultural minorities195 that converts the land from public into private and entitles the registrant to
a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by
the option given to individual ICCs/IPs over their individually-owned ancestral lands. For purposes of
registration under the Public Land Act and the Land Registration Act, the IPRA expressly converts
ancestral land into public agricultural land which may be disposed of by the State. The necessary
implication is thatancestral land is private. It, however, has to be first converted to public
agricultural land simply for registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land
Registration Act 496- Individual members of cultural communities, with respect to their individually-owned
ancestral lands who, by themselves or through their predecessors-in-interest, have been in continuous
possession and occupation of the same in the concept of owner since time immemorial or for a period of
not less than thirty (30) years immediately preceding the approval of this Act and uncontested by the
members of the same ICCs/IPs shall have the option to secure title to their ancestral lands under the
provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually
used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of
eighteen percent (18%) or more, are hereby classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the approval of this
Act."196
ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral
lands. This option is limited to ancestral lands only, not domains, and such lands must be individually, not
communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their
predecessors-in-interest, have been in continuous possession and occupation of the same in the concept
of owner since time immemorial197 or for a period of not less than 30 years, which claims are uncontested
by the members of the same ICCs/IPs, may be registered under C.A. 141, otherwise known as the Public
Land Act, or Act 496, the Land Registration Act. For purposes of registration, the individually-owned
ancestral lands are classified as alienable and disposable agricultural lands of the public domain, provided,
they are agricultural in character and are actually used for agricultural, residential, pasture and tree farming
purposes. These lands shall be classified as public agricultural lands regardless of whether they have a
slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the requirements of the
Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands
of the public domain.198 Its provisions apply to those lands "declared open to disposition or concession" x x
x "which have not been reserved for public or quasi-public purposes, nor appropriated by the Government,
nor in any manner become private property, nor those on which a private right authorized and recognized
by this Act or any other valid law x x x or which having been reserved or appropriated, have ceased to be
so."199 Act 496, the Land Registration Act, allows registration only of private lands and public agricultural
lands. Since ancestral domains and lands are private, if the ICC/IP wants to avail of the benefits of
C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless of whether the land has
a slope of eighteen per cent (18%) or over,200 from private to public agricultural land for proper
disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless a
limited period. This option must be exercised within twenty (20) years from October 29, 1997, the date of
approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They
are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of
the 1987 Constitution classifies lands of the public domain into four categories: (a) agricultural, (b) forest or
timber, (c) mineral lands, and (d) national parks. Section 5 of the same Article XII mentions ancestral
lands and ancestral domains but it does not classify them under any of the said four categories. To
classify them as public lands under any one of the four classes will render the entire IPRA law a
nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands. The
IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space are of vital
concern in terms of sheer survival of the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities
to their ancestral lands" and that "Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain." 202 It is the recognition of the ICCs/IPs
distinct rights of ownership over their ancestral domains and lands that breathes life into this
constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited
form of ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership
under thecivil law. This ownership is based on adverse possession for a specified period, and harkens to
Section 44 of the Public Land Act on administrative legalization (free patent) of imperfect or incomplete
titles and Section 48 (b) and (c) of the same Act on the judicial confirmation of imperfect or incomplete
titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares
and who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated, either by himself
or through his predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or
who shall have paid the real estate tax thereon while the same has not been occupied by any person shall
be entitled, under the provisions of this chapter, to have a free patent issued to him for such tract or tracts
of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or
not since July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this
section:Provided, That at the time he files his free patent application he is not the owner of any real
property secured or disposable under the provision of the Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or
claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor, under the Land Registration
Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of agricultural lands of the public
domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately
preceding the filing of the application for confirmation of title except when prevented by war or force
majeure. These shall be conclusively presumed to have performed all the conditions essential to a
Government grant and shall be entitled to a certificate of title under the provisions of this Chapter.
(c) Members of the national cultural minorities who by themselves or through their
 predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to agriculture, whether
disposable or not, under a bona fide claim of ownership for at least 30 years shall be entitled
to the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land was originally public agricultural land
but because of adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial
confirmation), the land has become private. Open, adverse, public and continuous possession is sufficient,
provided, the possessor makes proper application therefor. The possession has to be confirmed judicially
or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of
ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428 and
429. This concept is based on Roman Law which the Spaniards introduced to the Philippines through the
Civil Code of 1889. Ownership, under Roman Law, may be exercised over things or rights. It primarily
includes the right of the owner to enjoy and dispose of the thing owned. And the right to enjoy and dispose
of the thing includes the right to receive from the thing what it produces,205 the right to consume the thing
by its use,206 the right to alienate, encumber, transform or even destroy the thing owned, 207 and the right
to exclude from the possession of the thing owned by any other person to whom the owner has not
transmitted such thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the indigenous concept of
ownership of the ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that
ancestral domains and all resources found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs
private but community property which belongs to all generations and therefore cannot be sold, disposed or
destroyed. It likewise covers sustainable traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the
indigenous concept of ownership. This concept maintains the view that ancestral domains are the
ICCs/IPs private but community property. It is private simply because it is not part of the public
domain. But its private character ends there. The ancestral domain is owned in common by the
ICCs/IPs and not by one particular person. The IPRA itself provides that areas within the ancestral
domains, whether delineated or not, are presumed to be communally held. 209 These communal rights,
however, are not exactly the same as co-ownership rights under the Civil Code. 210 Co-ownership
gives any co-owner the right to demand partition of the property held in common. The Civil Code expressly
provides that "no co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at
any time the partition of the thing in common, insofar as his share is concerned.211 To allow such a right
over ancestral domains may be destructive not only of customary law of the community but of the very
community itself.212
Communal rights over land are not the same as corporate rights over real property, much less
corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years subject to
an extension of another fifty years in any single instance.213 Every stockholder has the right to disassociate
himself from the corporation.214 Moreover, the corporation itself may be dissolved voluntarily or
involuntarily.215
Communal rights to the land are held not only by the present possessors of the land but extends to
all generations of the ICCs/IPs, past, present and future, to the domain. This is the reason why the
ancestral domain must be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold or
conveyed to other persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are communal.
These lands, however, may be transferred subject to the following limitations: (a) only to the members of
the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject to the right of
redemption of the ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the
ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations in determining
the ownership and extent of ancestral domains," 216 the IPRA, by legislative fiat, introduces a new
concept of ownership. This is a concept that has long existed under customary law.217
Custom, from which customary law is derived, is also recognized under the Civil Code as a source
of law.218 Some articles of the Civil Code expressly provide that custom should be applied in cases where
no codal provision is applicable.219 In other words, in the absence of any applicable provision in the Civil
Code, custom, when duly proven, can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to
ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil law. The
indigenous concept of ownership under customary law is specifically acknowledged and recognized, and
coexists with the civil law concept and the laws on land titling and land registration.221
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is
merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral domains by
virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs
concerned shall be embodied in a Certificate of Ancestral Domain Title, which shall recognize the title of the
concerned ICCs/IPs over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the land, being
people of the land- by sheer force of having sprung from the land since time beyond recall, and the faithful
nurture of the land by the sweat of one's brow. This is fidelity of usufructuary relation to the land- the
possession of stewardship through perduring, intimate tillage, and the mutuality of blessings between man
and land; from man, care for land; from the land, sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section
2, Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7
provides for the rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds,
and all improvements made by them at any time within the domains;
b) Right to Develop Lands 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 prevent any
interference with, alienation and encroachment upon these rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed therefrom.
No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means
other than eminent domain. x x x;
 d) Right in Case of Displacement.- In case displacement occurs as a result of natural catastrophes,
the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have
temporary life support systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and
organizations into their domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access to
integrated systems for the management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains which
have been reserved for various purposes, except those reserved and intended for common and
public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary laws of
the area where the land is located, and only in default thereof shall the complaints be submitted to
amicable settlement and to the Courts of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their
ancestral lands shall be recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to transfer land or property
rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the
community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights by
virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the
vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the
transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15)
years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a)
lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d)
traditional hunting and fishing grounds, and (e) all improvements made by them at any time within the
domains. The right of ownership includes the following rights: (1) the right to develop lands and natural
resources; (b) the right to stay in the territories; (c) the right to resettlement in case of displacement; (d) the
right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the right to claim
parts of the ancestral domains as reservations; and (g) the right to resolve conflict in accordance with
customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8
gives the ICCs/IPs also the right to transfer the land or property rights to members of the same ICCs/IPs or
non-members thereof. This is in keeping with the option given to ICCs/IPs to secure a torrens title over the
ancestrallands, but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not
Deprive the State of Ownership Over the Natural Resources and Control and Supervision in their
Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural resources is declared
in Section 2, Article XII of the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may directly undertake such activities,
or, it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the state
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution."223
All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources- are owned by the State. The Constitution provides that in the exploration, development
and utilization of these natural resources, the State exercises full control and supervision, and may
undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-sharing agreements with
Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;
4. For the large-scale exploration, development and utilization of minerals, petroleum and other
mineral oils, the President may enter into agreements with foreign-owned corporations involving
technical or financial assistance.
As owner of the natural resources, the State is accorded primary power and responsibility in the
exploration, development and utilization of these natural resources. The State may directly undertake
the exploitation and development by itself, or, it may allow participation by the private sector through co-
production,224joint venture,225 or production-sharing agreements.226 These agreements may be for a
period of 25 years, renewable for another 25 years. The State, through Congress, may allow the small-
scale utilization of natural resources by Filipino citizens. For the large-scale exploration of these resources,
specifically minerals, petroleum and other mineral oils, the State, through the President, may enter into
technical and financial assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991
(R.A. 7076) the three types of agreements, i.e., co-production, joint venture or production-sharing, may
apply to both large-scale227 and small-scale mining.228 "Small-scale mining" refers to "mining activities
which rely heavily on manual labor using simple implements and methods and do not use explosives or
heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the
natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral domains
includesownership, but this "ownership" is expressly defined and limited in Section 7 (a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements
made by them at any time within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made
by them at any time within the domains." It will be noted that this enumeration does not mention bodies of
water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting
grounds, fish in the traditional fishing grounds, forests or timber in the sacred places, etc. and all other
natural resources found within the ancestral domains. Indeed, the right of ownership under Section 7
(a) does not cover "waters, minerals, coal,petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife,flora and fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with
the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of
the IPRA And is Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural
resources and all improvements made by them at any time within the ancestral domains/ lands. These
rights shall include, but not limited to, the right over the fruits, the right to possess, the right to use, right to
consume, right to exclude and right to recover ownership, and the rights or interests over land and natural
resources. The right to recover shall be particularly applied to lands lost through fraud or any form or
vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural
resources." The term "natural resources" is not one of those expressly mentioned in Section 7 (a) of the
law. Our Constitution and jurisprudence clearly declare that the right to claim ownership over land does not
necessarily include the right to claim ownership over the natural resources found on or under the
land.231 The IPRA itself makes a distinction between land and natural resources. Section 7 (a)
speaks of the right of ownership only over the land within the ancestral domain. It is Sections 7 (b)
and 57 of the law that speak of natural resources, and these provisions, as shall be discussed later,
do not give the ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and
categorically challenged by petitioners. Petitioners actually assail the constitutionality of the Implementing
Rules in general.232Nevertheless, to avoid any confusion in the implementation of the law, it is necessary
to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules
goes beyond the parameters of Section 7 (b) of the law and is contrary to Section 2, Article XII of the
1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the
ICCs/IPs the right to manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to develop,
control and use lands and territories traditionally occupied, owned, or used; to manage and conserve
natural resourceswithin 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;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the
following rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and uphold the
 responsibilities for future generations;
c) the right to benefit and share the profits from the allocation and utilization of the natural
resources found therein;
d) the right to negotiate the terms and conditions for the exploration of natural resources for the
purpose of ensuring ecological, environmental protection and the conservation measures, pursuant
to national and customary laws;
e) 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;
f) the right to effective measures by the government to prevent any interference with, alienation and
encroachment upon these rights.233
Ownership over the natural resources in the ancestral domains remains with the State and the
ICCs/IPs are merely granted the right to "manage and conserve" them for future generations,
"benefit and share" the profits from their allocation and utilization, and "negotiate the terms and
conditions for their exploration" for the purpose of "ensuring ecological and environmental
protection and conservation measures." It must be noted that the right to negotiate the terms and
conditions over the natural resources covers only their exploration which must be for the purpose of
ensuring ecological and environmental protection of, and conservation measures in the ancestral domain. It
does not extend to the exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or
stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization or
negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure that the
natural resources within their ancestral domains are conserved for future generations and that the
"utilization" of these resources must not harm the ecology and environment pursuant to national and
customary laws.234
The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-
scale utilization of natural resources as distinguished from large-scale. Small-scale utilization of
natural resources is expressly allowed in the third paragraph of Section 2, Article XII of the
Constitution "in recognition of the plight of forest dwellers, gold panners, marginal fishermen and others
similarly situated who exploit our natural resources for their daily sustenance and survival." 235 Section 7 (b)
also expressly mandates the ICCs/IPs to manage and conserve these resources and ensure environmental
and ecological protection within the domains, which duties, by their very nature, necessarily reject
utilization in a large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under
Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in
theharvesting, extraction, development or exploitation of any natural resources within the ancestral
domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and
utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not
more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the
ICCs/IPs concerned or that the community, pursuant to its own decision-making process, has agreed to
allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take appropriate
action to safeguard the rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources
within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting,
extraction, development or exploitation" of any natural resources within the ancestral domains
obviously refer to large-scale utilization. It is utilization not merely for subsistence but for commercial or
other extensive use that require technology other than manual labor. 236 The law recognizes the probability
of requiring a non-member of the ICCs/IPs to participate in the development and utilization of the natural
resources and thereby allows such participation for a period of not more than 25 years, renewable for
another 25 years. This may be done on condition that a formal written agreement be entered into by the
non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural
resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or exploitation
thereof. Priority means giving preference. Having priority rights over the natural resources does not
necessarily mean ownership rights. The grant of priority rights implies that there is a superior entity that
owns these resources and this entity has the power to grant preferential rights over the resources to
whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine that
all natural resources found within the ancestral domains belong to the State. It incorporates by implication
the Regalian doctrine, hence, requires that the provision be read in the light of Section 2, Article XII of the
1987 Constitution. Interpreting Section 2, Article XII of the 1987 Constitution237 in relation to Section
57 of IPRA, the State, as owner of these natural resources, may directly undertake the development
and exploitation of the natural resources by itself, or in the alternative, it may recognize the priority
rights of the ICCs/IPs as owners of the land on which the natural resources are found by entering
into a co-production, joint venture, or production-sharing agreement with them. The State may
likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether natural or
juridical, or enter into agreements with foreign-owned corporations involving either technical or
financial assistance for the large-scale exploration, development and utilization of minerals,
petroleum, and other mineral oils, or allow such non-member to participate in its agreement with
the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the National
Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the
agreement shall be protected. The agreement shall be for a period of 25 years, renewable for another 25
years.
To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as
owner of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the
development and exploitation of the natural resources; or (2) it may recognize the priority rights of the
ICCs/IPs by entering into an agreement with them for such development and exploitation; or (3) it may
enter into an agreement with a non-member of the ICCs/IPs, whether natural or juridical, local or foreign; or
(4) it may allow such non-member to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains
merely gives the ICCs/IPs, as owners and occupants of the land on which the resources are found,
the right to the small-scale utilization of these resources, and at the same time, a priority in their
large-scale development and exploitation. Section 57 does not mandate the State to automatically
give priority to the ICCs/IPs. The State has several options and it is within its discretion to choose
which option to pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely
undertake the large-scale development of the natural resources within their domains. The ICCs/IPs must
undertake such endeavour always under State supervision or control. This indicates that the State does
not lose control and ownership over the resources even in their exploitation. Sections 7 (b) and 57 of the
law simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural
resources lie, have traditionally utilized these resources for their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by the following provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall henceforth
be strictly enjoined from issuing, renewing or granting any concession, license or lease, or entering into any
production-sharing agreement. without prior certification from the NCIP that the area affected does not
overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is
conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs
concerned: Provided, further, That no department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing agreement while there is a
pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend,
in accordance with this Act, any project that has not satisfied the requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources
shall not be issued, renewed or granted by all departments and government agencies without prior
certification from the NCIP that the area subject of the agreement does not overlap with any ancestral
domain. The NCIP certification shall be issued only after a field-based investigation shall have been
conducted and the free and prior informed written consent of the ICCs/IPs obtained. Non-compliance with
the consultation requirement gives the ICCs/IPs the right to stop or suspend any project granted by any
department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by the NCIP that the area
subject of the agreement does not lie within any ancestral domain. The provision does not vest the NCIP
with power over the other agencies of the State as to determine whether to grant or deny any concession
or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs have been
informed of the agreement and that their consent thereto has been obtained. Note that the certification
applies to agreements over natural resources that do not necessarily lie within the ancestral domains. For
those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS
INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to
prehistoric times. The movement received a massive impetus during the 1960's from two sources. First, the
decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own
destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human
Rights.238 The rise of the civil rights movement and anti-racism brought to the attention of North American
Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights
and freedoms.
In 1974 and 1975, international indigenous organizations were founded,239 and during the 1980's,
indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first
Asians to take part in the international indigenous movement. It was the Cordillera People's Alliance that
carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they have
since become one of the best-organized indigenous bodies in the world.240
Presently, there is a growing concern for indigenous rights in the international scene. This came as a result
of the increased publicity focused on the continuing disrespect for indigenous human rights and the
destruction of the indigenous peoples' environment, together with the national governments' inability to deal
with the situation.241Indigenous rights came as a result of both human rights and environmental protection,
and have become a part of today's priorities for the international agenda.242
International institutions and bodies have realized the necessity of applying policies, programs and specific
rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a
result of the dismal experience of projects in Latin America.243 The World Bank now seeks to apply its
current policy on IPs to some of its projects in Asia. This policy has provided an influential model for the
projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State
policy the promotion of their rights within the framework of national unity and development. 245 The IPRA
amalgamates the Philippine category of ICCs with the international category of IPs, 246 and is heavily
influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in
Independent Countries"248 and was adopted on June 27, 1989. It is based on the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, and many other international instruments on the prevention of
discrimination.249 ILO Convention No. 169 revised the "Convention Concerning the Protection and
Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries" (ILO No.
107) passed on June 26, 1957. Developments in international law made it appropriate to adopt new
international standards on indigenous peoples "with a view to removing the assimilationist orientation of the
earlier standards," and recognizing the aspirations of these peoples to exercise control over their own
institutions, ways of life and economic development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious
differences. These differences were carried over and magnified by the Philippine government through the
imposition of a national legal order that is mostly foreign in origin or derivation. 251 Largely unpopulist, the
present legal system has resulted in the alienation of a large sector of society, specifically, the indigenous
peoples. The histories and cultures of the indigenes are relevant to the evolution of Philippine culture and
are vital to the understanding of contemporary problems.252 It is through the IPRA that an attempt was
made by our legislators to understand Filipino society not in terms of myths and biases but through
common experiences in the course of history. The Philippines became a democracy a centennial ago and
the decolonization process still continues. If the evolution of the Filipino people into a democratic society is
to truly proceed democratically, i.e., if the Filipinos as a whole are to participate fully in the task of
continuing democratization,253 it is this Court's duty to acknowledge the presence of indigenous and
customary laws in the country and affirm their co-existence with the land laws in our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act
of 1997.

G.R. No. L-32266 February 27, 1989

THE DIRECTOR OF FORESTRY, petitioner
vs.
RUPERTO A. VILLAREAL, respondent.
The Solicitor General for petitioner.
Quasha, Asperilla, Ancheta, Valmonte, Pena & Marcos for respondents.

CRUZ, J.:
The basic question before the Court is the legal classification of mangrove swamps, or manglares, as they
are commonly known. If they are part of our public forest lands, they are not alienable under the
Constitution. If they are considered public agricultural lands, they may be acquired under private
ownership. The private respondent's claim to the land in question must be judged by these criteria.
The said land consists of 178,113 square meters of mangrove swamps located in the municipality of
Sapian, Capiz. Ruperto Villareal applied for its registration on January 25, 1949, alleging that he and his
predecessors-in-interest had been in possession of the land for more than forty years. He was opposed by
several persons, including the petitioner on behalf of the Republic of the Philippines. After trial, the
application was approved by the Court of First Instance. of Capiz. 1 The decision was affirmed by the Court
of Appeals. 2 The Director of Forestry then came to this Court in a petition for review on certiorari claiming
that the land in dispute was forestal in nature and not subject to private appropriation. He asks that the
registration be reversed.
It should be stressed at the outset that both the petitioner and the private respondent agree that the land is
mangrove land. There is no dispute as to this. The bone of contention between the parties is the legal
nature of mangrove swamps or manglares. The petitioner claims, it is forestal and therefore not disposable
and the private respondent insists it is alienable as agricultural land. The issue before us is legal, not
factual.
For a proper background of this case, we have to go back to the Philippine Bill of 1902, one of the earlier
American organic acts in the country. By this law, lands of the public domain in the Philippine Islands were
classified into three grand divisions, to wit, agricultural, mineral and timber or forest lands. This
classification was maintained in the Constitution of the Commonwealth, promulgated in 1935, until it was
superseded by the Constitution of 1973. That new charter expanded the classification of public lands to
include industrial or commercial, residential, resettlement, and grazing lands and even permitted the
legislature to provide for other categories. 3 This provision has been reproduced, but with substantial
modifications, in the present Constitution. 4
Under the Commonwealth Constitution, which was the charter in force when this case arose, only
agricultural lands were allowed to be alienated. 5 Their disposition was provided for under C.A. No. 141.
Mineral and timber or forest lands were not subject to private ownership unless they were first reclassified
as agricultural lands and so released for alienation.
In the leading case of Montano v. Insular Government, 6 promulgated in 1909, mangrove swamps
or manglareswere defined by the Court as:
... mud flats, alternately washed and exposed by the tide, in which grows various kindred
plants which will not live except when watered by the sea, extending their roots deep into
the mud and casting their seeds, which also germinate there. These constitute the
mangrove flats of the tropics, which exist naturally, but which are also, to some extent
cultivated by man for the sake of the combustible wood of the mangrove and like trees as
well as for the useful nipa palm propagated thereon. Although these flats are literally tidal
lands, yet we are of the opinion that they cannot be so regarded in the sense in which that
term is used in the cases cited or in general American jurisprudence. The waters flowing
over them are not available for purpose of navigation, and they may be disposed of without
impairment of the public interest in what remains.
xxx
Under this uncertain and somewhat unsatisfactory condition of the law, the custom had
grown of converting manglares and nipa lands into fisheries which became a common
feature of settlement along the coast and at the same time of the change of sovereignty
constituted one of the most productive industries of the Islands, the abrogation of which
would destroy vested interests and prove a public disaster.
Mangrove swamps were thus considered agricultural lands and so susceptible of private ownership.
Subsequently, the Philippine Legislature categorically declared, despite the above-cited case, that
mangrove swamps form part of the public forests of this country. This it did in the Administrative Code of
1917, which became effective on October 1 of that year, thus:
Section 1820. Words and phrase defined. - For the purpose of this chapter 'public forest'
includes, except as otherwise specially indicated, all unreserved public land, including nipa
and mangrove swamps, and all forest reserves of whatever character.
It is noteworthy, though, that notwithstanding this definition, the Court maintained the doctrine in the
Montano case when two years later it held in the case of Jocson v. Director of Forestry: 7
...the words timber land are always translated in the Spanish translation of that Act (Act of
Congress) as terrenos forestales. We think there is an error in this translation and that a
better translation would be 'terrenos madereros.' Lumber land in English means land with
trees growing on it. The mangler plant would never be called a tree in English but a bush,
and land which has only bushes, shrubs or aquatic plants growing on it cannot be called
'timber land.
xxx xxx xxx
The fact that there are a few trees growing in a manglare or nipa swamps does not change
the general character of the land from manglare to timber land.
More to the point, addressing itself directly to above-quoted Section 1820, the Court declared:
'In the case of Mapa vs. Insular Government (10 Phil. Rep., 175), this Court said that the
phrase agricultural lands as used in Act No. 926 means those public lands acquired from
Spain which are not timber or mineral lands.
 Whatever may have been the meaning of the term 'forestry' under the Spanish law, the Act
of Congress of July 1st 1902, classifies the public lands in the Philippine Islands as timber,
mineral or agricultural lands, and all public lands that are not timber or mineral lands are
necessarily agricultural public lands, whether they are used as nipa swamps, manglares,
fisheries or ordinary farm lands.
The definition of forestry as including manglares found in the Administrative Code of 1917
cannot affect rights which vested prior to its enactment.
These lands being neither timber nor mineral lands, the trial court should have considered
them agricultural lands. If they are agricultural lands, then the rights of appellants are fully
established by Act No. 926.
The doctrine was reiterated still later in Garchitorena Vda. de Centenera v. Obias, 8 promulgated on March
4, 1933, more than fifteen years after the effectivity of the Administrative Code of 1917. Justice Ostrand
declared for a unanimous Court:
The opposition rests mainly upon the proposition that the land covered by the application
there are mangrove lands as shown in his opponent's Exh. 1, but we think this opposition of
the Director of Forestry is untenable, inasmuch as it has been definitely decided
that mangrove lands are not forest lands in the sense in which this phrase is used in the Act
of Congress.
No elaboration was made on this conclusion which was merely based on the cases of Montano and
Jocson. And in 1977, the above ruling was reaffirmed in Tongson v. Director of Forestry, 9 with Justice
Fernando declaring that the mangrove lands in litis were agricultural in nature. The decision even quoted
with approval the statement of the trial court that:
... Mangrove swamps where only trees of mangrove species grow, where the trees are
small and sparse, fit only for firewood purposes and the trees growing are not of commercial
value as lumber do not convert the land into public land. Such lands are not forest in
character. They do not form part of the public domain.
Only last year, in Republic v. De Porkan, 10 the Court, citing Krivenko v. Register of Deeds, 11 reiterated the
ruling in the Mapa case that "all public lands that are not timber or mineral lands are necessarily agricultural
public lands, whether they are used as nipa swamps, manglares, fisheries or ordinary farm lands.
But the problem is not all that simple. As it happens, there is also a line of decisions holding the contrary
view.
In Yngson v. Secretary of Agriculture and Natural Resources, 12 promulgated in 1983, the Court ruled "that
the Bureau of Fisheries has no jurisdiction to dispose of swamp lands or mangrove lands forming part of
the public domain while such lands are still classified as forest lands.
Four months later, in Heirs of Amunategui v. Director of Forestry, 13 the Court was more positive when it
held, again through Justice Gutierrez:
The Heirs of Jose Amunategui maintain that Lot No. 885 cannot be classified as forest land
because it is not thickly forested but is a 'mangrove swamps.' Although conceding that
'mangrove swamp' is included in the classification of forest land in accordance with Section
1820 of the Revised Administrative Code, the petitioners argue that no big trees classified in
Section 1821 of the said Code as first, second and third groups are found on the land in
question. Furthermore, they contend that Lot 885, even if it is a mangrove swamp, is still
subject to land registration proceedings because the property had been in actual
possession of private persons for many years, and therefore, said land was already 'private
land' better adapted and more valuable for agricultural than for forest purposes and not
required by the public interests to be kept under forest classification.
The petition is without merit.
A forested area classified as forest land of the public domain does not lose such
classification simply because loggers or settlers may have stripped it of its forest cover.
 Parcels of land classified as forest land may actually be covered with grass or planted to
crops by kaingin cultivators or other farmers. 'Forested lands' do not have to be on
mountains or in out-of-the-way places. Swampy areas covered by mangrove trees, nipa
palms, and other trees growing in brackish or sea water may also be classified as forest
land. The classification is descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like. Unless and until the land classsified as
'forest' is released in an official proclamation to that effect so that it may form part of the
disposable agricultural lands of the public domain, the rules on confirmation of imperfect
titles do not apply.'
The view was maintained in Vallarta v. Intermediate Appellate Court, 14 where this Court agreed with the
Solicitor General's submission that the land in dispute, which he described as "swamp mangrove or forestal
land," were not private properties and so not registerable. This case was decided only twelve days after the
De Porkan case.
Faced with these apparent contradictions, the Court feels there is a need for a categorical pronouncement
that should resolve once and for all the question of whether mangrove swamps are agricultural lands or
forest lands.
The determination of this question is a function initially belonging to the legislature, which has the authority
to implement the constitutional provision classifying the lands of the public domain (and is now even
permitted to provide for more categories of public lands). The legislature having made such
implementation, the executive officials may then, in the discharge of their own role, administer our public
lands pursuant to their constitutional duty " to ensure that the laws be faithfully executed' and in accordance
with the policy prescribed. For their part, the courts will step into the picture if the rules laid down by the
legislature are challenged or, assuming they are valid, it is claimed that they are not being correctly
observed by the executive. Thus do the three departments, coordinating with each other, pursue and
achieve the objectives of the Constitution in the conservation and utilization of our natural resources.
In C.A. No. 141, the National Assembly delegated to the President of the Philippines the function of making
periodic classifications of public lands, thus:
Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and Natural
Resources, shall from time to time classify the lands of the public domain into:
(a) Alienable or disposable,
(b) Lumber, and
(c) Mineral lands,
and may at any time and in a like manner transfer such lands from one class to another, for
the purposes of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or disposable
lands, the President, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall from time to time declare what lands are open to disposition or concession
under this Act.
With particular regard to alienable public lands, Section 9 of the same law provides:
For the purpose of their administration and disposition, the lands of the public domain
alienable or open to disposition shall be classified, according to the use or purposes to
which such lands are destined, as follows:
(a) Agricultural;
(b) Residential, commercial, industrial, or for similar productive purposes;
(c) Educational, charitable, or other similar purposes; and
(d) Reservations for townsites and for public and quasi-public uses.
The President, upon recommendation by the Secretary of Agriculture and Natural
 Resources, shall from time to time make the classifications provided for in this section, and
may, at any time and in a similar manner, transfer lands from one class to another.
As for timber or forest lands, the Revised Administrative Code states as follows:
Sec. 1826. Regulation setting apart forest reserves- Revocation of same. - Upon there
commendation of the Director of Forestry, with the approval of the Department Head, the
President of the Philippines may set apart forest reserves from the public lands and he shall
by proclamation declare the establishment of such reserves and the boundaries thereof,
and thereafter such forest reserves shall not be entered, sold, or otherwise disposed of, but
shall remain as such for forest uses, and shall be administered in the same manner as
public forest.
The President of the Philippines may in like manner by proclamation alter or modify the
boundaries of any forest reserve from time to time, or revoke any such proclamation, and
upon such revocation such forest reserve shall be and become part of the public lands as
though such proclamation had never been made.
Sec. 1827. Assignment of forest land for agricultural purposes. - Lands in public forest, not
including forest reserves, upon the certification of the Director of Forestry that said lands are
better adapted and more valuable for agricultural than for forest purposes and not required
by the public interests to be kept under forest, shall be declared by the Department Head to
be agricultural lands.
With these principles in mind, we reach the following conclusion:
Mangrove swamps or manglares should be understood as comprised within the public forests of the
Philippines as defined in the aforecited Section 1820 of the Administrative Code of 1917. The legislature
having so determined, we have no authority to ignore or modify its decision, and in effect veto it, in the
exercise of our own discretion. The statutory definition remains unchanged to date and, no less noteworthy,
is accepted and invoked by the executive department. More importantly, the said provision has not been
challenged as arbitrary or unrealistic or unconstitutional assuming the requisite conditions, to justify our
judicial intervention and scrutiny. The law is thus presumed valid and so must be respected. We repeat our
statement in the Amunategui case that the classification of mangrove swamps as forest lands is descriptive
of its legal nature or status and does not have to be descriptive of what the land actually looks like. That
determination having been made and no cogent argument having been raised to annul it, we have no duty
as judges but to apply it. And so we shall.
Our previous description of the term in question as pertaining to our agricultural lands should be
understood as covering only those lands over which ownership had already vested before the
Administrative Code of 1917 became effective. Such lands could not be retroactively legislated as forest
lands because this would be violative of a duly acquired property right protected by the due process clause.
So we ruled again only two months ago in Republic of the Philippines vs. Court of Appeals, 15 where the
possession of the land in dispute commenced as early as 1909, before it was much later classified as
timberland.
It follows from all this that the land under contention being admittedly a part of the mangrove swamps of
Sapian, and for which a minor forest license had in fact been issued by the Bureau of Forestry from 1920 to
1950, it must be considered forest land. It could therefore not be the subject of the adverse possession and
consequent ownership claimed by the private respondent in support of his application for registration. To be
so, it had first to be released as forest land and reclassified as agricultural land pursuant to the certification
the Director of Forestry may issue under Section 1827 of the Revised Administrative Code.
The private respondent invokes the survey plan of the mangrove swamps approved by the Director of
Lands, 16 to prove that the land is registerable. It should be plain, however, that the mere existence of such
a plan would not have the effect of converting the mangrove swamps, as forest land, into agricultural land.
Such approval is ineffectual because it is clearly in officious. The Director of Lands was not authorized to
act in the premises. Under the aforecited law, it is the Director of Forestry who has the authority to
determine whether forest land is more valuable for agricultural rather than forestry uses, as a basis for its
declaration as agricultural land and release for private ownership.
Thus we held in the Yngson case:
It is elementary in the law governing the disposition of lands of the public domain that until
timber or forest lands are released as disposable and alienable neither the Bureau of Lands
nor the Bureau of Fisheries has authority to lease, grant, sell or otherwise dispose of these
lands for homesteads, sales patents, leases for grazing or other purposes, fishpond leases
and other modes of utilization.
The Bureau of Fisheries has no jurisdiction to administer and dispose of swamp lands or
mangrove lands forming part of the public domain while such lands are still classified as
forest land or timber land and not released for fishery or other purposes.
The same rule was echoed in the Vallarta case, thus:
It is elementary in the law governing natural resources that forest land cannot be owned by
private persons. It is not registerable. The adverse possession which can be the basis of a
grant of title in confirmation of imperfect title cases cannot commence until after the forest
land has been declared alienable and disposable. Possession of forest land, no matter bow
long cannot convert it into private property.'
We find in fact that even if the land in dispute were agricultural in nature, the proof the private respondent
offers of prescriptive possession thereof is remarkably meager and of dubious persuasiveness. The record
contains no convincing evidence of the existence of the informacion posesoria allegedly obtained by the
original transferor of the property, let alone the fact that the conditions for acquiring title thereunder have
been satisfied. Nowhere has it been shown that the informacion posesoria has been inscribed or registered
in the registry of property and that the land has been under the actual and adverse possession of the
private respondent for twenty years as required by the Spanish Mortgage Law. 17 These matters are not
presumed but must be established with definite proof, which is lacking in this case.
Significantly, the tax declarations made by the private respondent were practically the only basis used by
the appellate court in sustaining his claim of possession over the land in question. Tax declarations are, of
course, not sufficient to prove possession and much less vest ownership in favor of the declarant, as we
have held in countless cases. 18
We hold, in sum, that the private respondent has not established his right to the registration of the subject
land in his name. Accordingly, the petition must be granted.
It is reiterated for emphasis that, conformably to the legislative definition embodied in Section 1820 of the
Revised Administrative Code of 1917, which remains unamended up to now, mangrove swamps
or manglares form part of the public forests of the Philippines. As such, they are not alienable under the
Constitution and may not be the subject of private ownership until and unless they are first released as
forest land and classified as alienable agricultural land.
WHEREFORE, the decision of the Court of Appeals is SET ASIDE and the application for registration of
title of private respondent is DISMISSED, with cost against him. This decision is immediately executory.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino, Medialdea and Regalado, JJ., concur.
Fernan, C.J., took no part.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor,
represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents
JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her
parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA.
MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors,
represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY,
GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO
and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors,
represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all
surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN,
MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO
and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors
and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX
and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed
BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which
the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-
generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of
action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock
and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for
the protection of our environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2was instituted as a taxpayers'
class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is impracticable to bring them all before the
Court." The minors further asseverate that they "represent their generation as well as generations yet
unborn."4Consequently, it is prayed for that judgment be rendered:
 . . . ordering defendant, his agents, representatives and other persons acting in his behalf to
—
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine
cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that
in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers,
brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor,
Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately
the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential
destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g)
recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of
the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity
to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice.
This notwithstanding, they expressed their intention to present expert witnesses as well as documentary,
photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as
Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour — nighttime, Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end of this ensuing decade, if not
earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of
this continued trend of deforestation to the plaintiff minor's generation and to generations
yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff
minors and their successors — who may never see, use, benefit from and enjoy this rare
and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and
are entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of
the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity
and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full
and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)
 21. Finally, defendant's act is contrary to the highest law of humankind — the natural law —
and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches
of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the
complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the
said order, not only was the defendant's claim — that the complaint states no cause of action against him
and that it raises a political question — sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3
of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves
a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in
the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of
the complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but
agree with the defendant. For although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent
and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions based on unverified data. In fine,
plaintiffs fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by this
Court without doing violence to the sacred principle of "Separation of Powers" of the three
(3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself
belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the
same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil
and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether
for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by
the petitioners — the advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not be too far when all else would be lost not only
for the present generation, but also for those to come — generations which stand to inherit nothing but
parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and utilization
of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O.
No. 192, 14Section 4 of which expressly mandates that the Department of Environment and Natural
Resources "shall be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all natural resources as may be provided for by
law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and
future generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the
 sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity
of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments of the present as well
as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code)
were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and
improve conditions under which man and nature can thrive in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology;
hence, the full protection thereof requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
 . . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and
act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid
down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a
motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may
thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity
to the Government by providing undue and unwarranted benefits and advantages to the timber license
holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, 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 . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution. In Tan
vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or public welfare as in
this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested right;
nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not
create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54
O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA
302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a
law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally fundamental with
the private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the
other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my
mind, is one of the most important cases decided by this Court in the last few years. The seminal principles
laid down in this decision are likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization of all the natural resources in the
territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to
be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class"
here involved — membership in this "class" appears to embrace everyone living in the country whether
now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the
right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of
the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations
of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16
("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to contemplate action on the
part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the
Court should be understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is
not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no specific, operable
norms and standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and promulgate
those norms and standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof
of breach by the timber companies of one or more of the specific terms and conditions of their concession
agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege,
as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed
wrongful acts or failures to act of public respondent administrative agency. They may also controvert the
appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my
mind, is one of the most important cases decided by this Court in the last few years. The seminal principles
laid down in this decision are likely to influence profoundly the direction and course of the protection and
management of the environment, which of course embraces the utilization of all the natural resources in the
territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to
be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class"
here involved — membership in this "class" appears to embrace everyone living in the country whether
now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the
right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and
other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of
ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of
the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations
of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16
("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
 (iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to contemplate action on the
part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the
Court should be understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is
not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no specific, operable
norms and standards are shown to exist, then the policy making departments — the legislative and
executive departments — must be given a real and effective opportunity to fashion and promulgate
those norms and standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof
of breach by the timber companies of one or more of the specific terms and conditions of their concession
agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege,
as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed
wrongful acts or failures to act of public respondent administrative agency. They may also controvert the
appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision
issued today should, however, be subjected to closer examination.

residential Decree No. 1152/Philippine Environment Code

Year of Enacted in June 6, 1977
Enactment and
Implementation
Purpose To achieve and maintain such levels of air quality as to protect public health and to
prevent to the greatest extent practicable, injury and/or damage to plant and animal
life and property, and promote the social and economic development of the country
Control Area Nationwide
Overview • The broad spectrum of environment has become a matter of vital concern to
the government
• The national leadership has taken a step towards this direction by creating
the National Environmental Protection Council
• It is necessary that the creation of the Council be complemented with the
launching of comprehensive program of environmental protection and
management
• Such a program can assume tangible and meaningful significance only by
establishing specific environment management policies and prescribing
environment quality standards in a Philippine Environment Code

Features • Provided a comprehensive program of environmental protection and

management. The Code established specific environment management
policies and prescribes environmental quality standards.
• To achieve and maintain such levels of air quality as to protect public health
and to prevent to the greatest extent practicable, injury and/or damage to
plant and animal life and property, and promote the social and economic
development of the country
• Prescribe management guidelines to protect and improve water quality
through: classification of Philippine waters, establishment of water quality
standards, protection and improvement of the quality of the Philippine water
resources, and responsibilities for surveillance and mitigation of pollution
incidents
• Set guidelines for waste management with a view to ensuring its
effectiveness, encourage, promote and stimulate technological, educational,
 economic and social efforts to prevent environmental damage and
unnecessary loss of valuable resources of the nation through recovery,
recycling and re-use of wastes and wastes products, and provide measures to
guide and encourage appropriate government agencies in establishing sound,
efficient, comprehensive and effective wastes management covering both
solid and liquid wastes

PRESIDENTIAL DECREE No. 1586

ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM, INCLUDING OTHER
ENVIRONMENTAL MANAGEMENT RELATED MEASURES AND FOR OTHER PURPOSES
WHEREAS, the pursuit of a comprehensive and integrated environment protection program necessitates
the establishment and institutionalization of a system whereby the exigencies of socio-economic
undertakings can be reconciled with the requirements of environmental quality;
WHEREAS, the regulatory requirements of environmental Impact Statements and Assessments instituted
in pursuit of this national environmental protection program have to be worked into their full regulatory and
procedural details in a manner consistent with the goals of the program.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers
vested in me by the Constitution do hereby order and declare:
Section 1. Policy. It is hereby declared the policy of the State to attain and maintain a rational and orderly
balance between socio-economic growth and environmental protection.
Section 2. Environmental Impact Statement System. There is hereby established an Environmental Impact
Statement System founded and based on the environmental impact statement required, under Section 4 of
Presidential Decree No. 1151, of all agencies and instrumentalities of the national government, including
government-owned or controlled corporations, as well as private corporations, firms and entities, for every
proposed project and undertaking which significantly affect the quality of the environment.
Section 3. Determination of Lead Agency. The Minister of Human Settlements or his designated
representative is hereby authorized to name the lead agencies referred to in Section 4 of Presidential
Decree No. 1151 which shall have jurisdiction to undertake the preparation of the necessary environmental
impact statements on declared environmentally critical projects and areas. All Environmental Impact
Statements shall be submitted to the National Environmental Protection Council for review and evaluation.
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of government personnel, and their
specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area (s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or protective measures against
calamituous factors such as earthquake, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
Section 5. Environmentally Non-Critical Projects. All other projects, undertakings and areas not declared
by the President as environmentally critical shall be considered as non-critical and shall not be required to
submit an environmental impact statement. The National Environmental Protection Council, thru the
Ministry of Human Settlements may however require non-critical projects and undertakings to provide
additional environmental safeguards as it may deem necessary.
Section 6. Secretariat. The National Environmental Protection Council is hereby authorized to constitute
the necessary secretariat which will administer the Environmental Impact Statement System and undertake
the processing and evaluation of environmental impact statements.
Section 7. Management and Financial Assistance. The Ministry of Human Settlements is hereby
authorized to provide management and financial support to government offices and instrumentalities placed
under its supervision pursuant to this Decree financed from its existing appropriation or from budgetary
augmentation as the Minister of Human Settlements may deem necessary.
Section 8. Rules and Regulations. The National Environmental Protection Council shall issue the
necessary rules and regulations to implement this Decree. For this purpose, the National Pollution Control
Commission may be availed of as one of its implementing arms, consistent with the powers and
responsibilities of the National Pollution Control Commission as provided in P.D. No. 984.
Section 9. Penalty for Violation. Any person, corporation or partnership found violating Section 4 of this
Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the
standards, rules and regulations issued by the National Environmental Protection Council pursuant to this
Decree shall be punished by the suspension or cancellation of his/its certificate or and/or a fine in an
amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the discretion of
the National Environmental Protection Council.
Section 10. Environmental Revolving Fund. Proceeds from the penalties prescribed in the preceding
Section 9 and other penalties imposed by the National Pollution Control Commission as authorized in P.D.
984, shall be automatically appropriated into an Environment Revolving Fund hereby created as an
exemption to P.D. 711 and P.D. 1234. The fund shall be used exclusively for the operation of the National
Environmental Protection Council and the National Pollution Control Commission in the implementation of
this Decree. The rules and regulations for the utilization of this fund shall be formulated by the Ministry of
Human Settlements and submitted to the President for approval.
Section 11. Repealing Clause. The Inter-Agency Advisory Council of the National Pollution Control
Commission created under Section 4 of P.D. 984 is hereby abolished and its powers and responsibilities
are forthwith delegated and transferred to the Control of the National Environmental Protection Council.
All other laws, decrees, executive orders, rules and regulations inconsistent herewith are hereby repealed,
amended or modified accordingly.
Section 12. Effectivity Clause. This Decree shall take effect immediately.
DONE in the City of Manila, this 11th day of June, in the year of Our Lord, nineteen hundred and seventy-
eight.

_________________________________________________________________________________

G.R. No. 196870 June 26, 2012

BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share common
goals in pursuit of certain primordial State policies and principles that are enshrined in the Constitution and
pertinent laws, such as the protection of the environment, the empowerment of the local government units,
the promotion of tourism, and the encouragement of the participation of the private sector. The Court seeks
to reconcile the respective roles, duties and responsibilities of the petitioner and respondents in achieving
these shared goals within the context of our Constitution, laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its
primary purpose is "to foster a united, concerted and environment-conscious development of Boracay
Island, thereby preserving and maintaining its culture, natural beauty and ecological balance, marking the
island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole world." 1 It
counts among its members at least sixty (60) owners and representatives of resorts, hotels, restaurants,
and similar institutions; at least five community organizations; and several environmentally-conscious
residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by Presidential Decree No. 1084,3 which states that one of
the purposes for which respondent PRA was created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation
projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President of the
Philippines issued Executive Order No. 543, delegating the power "to approve reclamation projects to PRA
through its governing Board, subject to compliance with existing laws and rules and further subject to the
condition that reclamation contracts to be executed with any person or entity (must) go through public
bidding."4
Respondent Department of Environment and Natural Resources – Environmental Management Bureau
(DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental compliance certificates regarding projects that require
the environment’s protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and
one of the country’s most popular tourist destinations, was declared a tourist zone and marine reserve in
1973 under Presidential Proclamation No. 1801.6 The island comprises the barangays of Manoc-manoc,
Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique
ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants of an
ancient reef platform. Its beaches, the sandy land strip between the water and the area currently occupied
by numerous establishments, is the primary draw for domestic and international tourists for its color, texture
and other unique characteristics. Needless to state, it is the premier domestic and international tourist
destination in the Philippines.8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port
and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Province operates
both ports "to provide structural facilities suited for locals, tourists and guests and to provide safety and
security measures."9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national government
agencies, local government units (LGUs), and the private sector. Petitioner was one of the organizers and
participants thereto. The Summit aimed "to re-establish a common vision of all stakeholders to ensure the
conservation, restoration, and preservation of Boracay Island" and "to develop an action plan that [would
allow] all sectors to work in concert among and with each other for the long term benefit and sustainability
of the island and the community."10 The Summit yielded a Terminal Report11 stating that the participants had
shared their dream of having world-class land, water and air infrastructure, as well as given their
observations that government support was lacking, infrastructure was poor, and, more importantly, the
influx of tourists to Boracay was increasing. The Report showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding area of the existing port, caused by inadequate
facilities, thus tourists suffered long queues while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to come.
Thus, respondent Province conceptualized the expansion of the port facilities at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814 on April
25, 2008 stating that it had learned that respondent Province had filed an application with the DENR for a
foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong opposition to
said application, as the proposed foreshore lease practically covered almost all the coastlines of said
barangay, thereby technically diminishing its territorial jurisdiction, once granted, and depriving its
constituents of their statutory right of preference in the development and utilization of the natural resources
within its jurisdiction. The resolution further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore lease, which
failure the Sanggunian considered as an act of bad faith on the part of respondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No.
2008-369,16 formally authorizing Governor Marquez to enter into negotiations towards the possibility of
effecting self-liquidating and income-producing development and livelihood projects to be financed through
bonds, debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the
Local Government Code, with the following priority projects: (a) renovation/rehabilitation of the
Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan
foreshore for commercial purposes.17 This step was taken as respondent Province’s existing jetty port and
passenger terminal was funded through bond flotation, which was successfully redeemed and paid ahead
of the target date. This was allegedly cited as one of the LGU’s Best Practices wherein respondent
Province was given the appropriate commendation.18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its
2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty port,
and identified additional areas along the coastline of Barangay Caticlan as the site for future project
expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the necessary
feasibility study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation
of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution
No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim the 2.64 hectares of
foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on
the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old Caticlan
coastline for the rehabilitation and expansion of the existing jetty port, and for its future plans – the
construction of commercial building and wellness center. The financial component of the said study was
Two Hundred Sixty Million Pesos (₱260,000,000.00). Its suggested financing scheme was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the
intended foreshore lease application, through Resolution No. 044, 25 approved on July 22, 2009, manifesting
therein that respondent Province’s foreshore lease application was for business enterprise purposes for its
benefit, at the expense of the local government of Malay, which by statutory provisions was the rightful
entity "to develop, utilize and reap benefits from the natural resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing
Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program
(EPRMP)28 to DENR-EMB RVI, which he had attached to his letter 29 dated September 19, 2009, as an
initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next month, the province hereby assures
your good office that it will give preferential attention to and shall comply with whatever comments that you
may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation of a
portion of the foreshore lease area for commercial purposes in Malay, Aklan through Provincial Ordinance
No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor Marquez to
negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in
the amount not exceeding ₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No.
2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and appropriate the
entire proceeds of said bonds for the project, and further authorizing Governor Marquez to negotiate, sign
and execute contracts or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible expansion from
its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the
utilization of its resources and as a response to the findings of the Preliminary Geohazard Assessment
study which showed that the recession and retreat of the shoreline caused by coastal erosion and scouring
should be the first major concern in the project site and nearby coastal area. The study likewise indicated
the vulnerability of the coastal zone within the proposed project site and the nearby coastal area due to the
effects of sea level rise and climate change which will greatly affect the social, economic, and
environmental situation of Caticlan and nearby Malay coastal communities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to
our request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and
Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result of our discussion
during the [meeting with the respondent PRA on October 12, 2009], may we respectfully submit a revised
Reclamation Project Description embodying certain revisions/changes in the size and location of the areas
to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with the
Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14, 2009.
This will pave the way for the implementation of said project. Briefly, the Province has been recognized by
the Bureau of Local Government Finance (BLGF) for its capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into
such development project with the end in view of protection and/or restoring certain segments of the
shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported by
experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and
tourism-related facilities and for other complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent
PRA in the implementation of the Beach Zone Restoration and Protection Marina Development Project,
which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and
Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and conditions of the
necessary agreements for the implementation of the bond flotation of respondent Province to fund the
renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of the Old Caticlan
shoreline through reclamation of an area of 2.64 hectares in the amount of ₱260,000,000.00 on December
1, 2009.37
Respondent Province gave an initial presentation of the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along
the Caticlan side beside the existing jetty port.40
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III, the
Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and institutional
and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of Barangay
Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of
the campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay –
Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development
Council Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and
Petitioner.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on
June 17, 2010, respondent Province presented the Reclamation Project and only then detailed the actions
that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds; the execution
of the MOA with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study
for the reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its
strong opposition to respondent Province’s project and denied its request for a favorable endorsement of
the Marina Project.51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3,
2010, to request respondent PRA "not to grant reclamation permit and notice to proceed to the Marina
Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation
project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an expert from the
University of the Philippines Marine Science Institute (UPMSI), which he rendered based on the documents
submitted by respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation
project’s likelihood of rendering critical and lasting effect on Boracay considering the proximity in distance,
geographical location, current and wind direction, and many other environmental considerations in the
area. Petitioner noted that said documents had failed to deal with coastal erosion concerns in Boracay. It
also noted that respondent Province failed to comply with certain mandatory provisions of the Local
Government Code, particularly, those requiring the project proponent to conduct consultations with
stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.54
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request for a
favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the implementation of the Reclamation
Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s.
2010, of the Municipality of Malay and manifested its support for the implementation of the aforesaid project
through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No.
4130. Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter to proceed
with the reclamation and development of phase 1 of site 1 of its proposed project. Respondent PRA
attached to said letter its Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was described as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in
two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area
of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area of 3.18 hectares. Sites
1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034, 59 addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the implementation
of the project. Said resolution stated that the apprehensions of petitioner with regard to the economic,
social and political negative impacts of the projects were mere perceptions and generalities and were not
anchored on definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in November 2010 by several marine biologists/experts from
the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to
determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the coastal
erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence with
the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and Commerce,
conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI was
discussed.62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the
Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the
subject project, consisting of 2.64 hectares, would only have insignificant effect on the hydrodynamics of
the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility
that it would affect the Boracay coastline, which includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-065 64 noting
the report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in relation
to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had admitted
that nowhere in their study was it pointed out that there would be an adverse effect on the white-sand
beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on
April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI
Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily tide-
driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent Province would
not significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based on
this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on
environmental grounds.66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ
of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order
(TEPO) and ordered the respondents to file their respective comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
construction activities until further orders from this Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and
regulations in the acquisition of an ECC.
A. The reclamation project is co-located within environmentally critical areas requiring the
performance of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.
C. Respondent Province failed to conduct the required consultation procedures as required by the
Local Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as required by
law and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single instead of co-
located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty port. Petitioner
points out that the reclamation project is on two sites (which are situated on the opposite sides of Tabon
Strait, about 1,200 meters apart):
•36.82 hectares – Site 1, in Bgy. Caticlan
 •3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits,70 is located on the Caticlan
side of a narrow strait separating mainland Aklan from Boracay. In the implementation of the project,
respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40
hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised Procedural
Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30) 71 relating to the
acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical
project) in ECA (environmentally critical area) based on the type and size of the area," and
2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS)72 or
Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP).73 (Emphases
ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based,
which merely requires an Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires,
and respondent DENR-EMB RVI committed grave abuse of discretion because the laws on EIS, namely,
Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146, clearly indicate
that projects in environmentally critical areas are to be immediately considered environmentally critical.
Petitioner complains that respondent Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-
ECP in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly
performed gives a patently erroneous and wrongly-premised appraisal of the possible environmental
impact of the reclamation project. Petitioner contends that respondent Province’s choice of classification
was designed to avoid a comprehensive impact assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to
ensure that the environment is protected from harmful developmental projects because it allegedly
performed only a cursory and superficial review of the documents submitted by the respondent Province for
an ECC, failing to note that all the information and data used by respondent Province in its application for
the ECC were all dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999
for the first jetty port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental
impact to Boracay, which involves changes in the structure of the coastline that could contribute to the
changes in the characteristics of the sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay
side and notes that the declared objective of the reclamation project is for the exploitation of Boracay’s
tourist trade, since the project is intended to enhance support services thereto. But, petitioner argues, the
primary reason for Boracay’s popularity is its white-sand beaches which will be negatively affected by the
project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation
procedures as required by the Local Government Code.75 Petitioner asserts that the reclamation project is
in violation not only of laws on EIS but also of the Local Government Code as respondent Province failed to
enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter
also expressed strong opposition against the project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the
project or program may cause pollution, climactic change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored the LGUs’ opposition expressed as early as 2008. Not
only that, respondent Province belatedly called for public "consultation meetings" on June 17 and July 28,
2010, after an ECC had already been issued and the MOA between respondents PRA and Province had
already been executed. As the petitioner saw it, these were not consultations but mere "project
presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB,
ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental projects
are in line with sustainable development of natural resources. The project was conceptualized without
considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while
it is true that as of now, only the Caticlan side has been issued an ECC, the entire project involves the
Boracay side, which should have been considered a co-located project. Petitioner claims that any project
involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and
Caticlan as they are separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the
ECC and permit issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to the
reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait indicate stronger sediment transport. 77 The white-sand
beaches of Boracay and its surrounding marine environment depend upon the natural flow of the adjacent
waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area, petitioner submits that while the study conducted
by the MERF-UPMSI only considers the impact of the reclamation project on the land, it is undeniable that
it will also adversely affect the already frail ecological balance of the area. The effect of the project would
have been properly assessed if the proper EIA had been performed prior to any implementation of the
project.
According to petitioner, respondent Province’s intended purposes do not prevail over its duty and obligation
to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be done through
other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of 40
hectares is advantageous to the Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section 4.2
of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of
cause of action due to the failure of petitioner to fully exhaust the available administrative remedies even
before seeking judicial relief. According to respondent Province, the petition primarily assailed the decision
of respondent DENR-EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares and
sought the cancellation of the ECC for alleged failure of respondent Province to submit proper
documentation as required for its issuance. Hence, the grounds relied upon by petitioner can be addressed
within the confines of administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO
2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application of a
project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to the
party aggrieved by the final decision on the proponent’s ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to
petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s contention that its
2.64-hectare reclamation project is considered as a "stand alone project," separate and independent from
the approved area of 40 hectares. Thus, petitioner should have observed the difference between the "future
development plan" of respondent Province from its "actual project" being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its original application to respondent
PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its future plan, and
implementation thereof is "still subject to availability of funds, independent scientific environmental study,
separate application of ECC and notice to proceed to be issued by respondent PRA."84
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port expansion
project is a bigger project which is still at the conceptualization stage. Although this project was described
in the Notice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in Caticlan and
3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port expansion
project."85
Respondent Province says that the Accomplishment Report 86 of its Engineering Office would attest that the
actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was even
reduced to 2.2 hectares due to some construction and design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRA’s Evaluation Report 87 dated October 18, 2010, which was in turn
the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the project’s financial
component is ₱260,000,000.00 only. Said Evaluation Report indicates that the implementation of the other
phases of the project including site 2, which consists of the other portions of the 40-hectare area that
includes a portion in Boracay, is still within the 10-year period and will depend largely on the availability of
funds of respondent Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases
in order to determine the period of its implementation. Each phase was separate and independent because
the source of funds was also separate. The required documents and requirements were also specific for
each phase. The entire approved area of 40 hectares could be implemented within a period of 10 years but
this would depend solely on the availability of funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC, which only
approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence the
construction on the other component of the 40 hectares, then it agrees that it is mandated to secure a new
ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was
at present only financially equipped and legally compliant to undertake 2.64 hectares of the project, and
only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary requirements for securing an ECC.
On the issue that the reclamation project is within an ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40 hectares is
only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and authority.
From the beginning, its intention was to rehabilitate and expand the existing jetty port terminal to
accommodate an increasing projected traffic. The subject project is specifically classified under DENR
DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type considered as Minor
Reclamation Projects falling under Group II – Non ECP in an ECA. Whether 2.64 or 40 hectares in area,
the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation
project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-
hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At present, it
has no definite conceptual construction plan of the said portion in Boracay and it has no financial allocation
to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged
component that falls within an ECA is in Boracay. Considering its geographical location, the two sites
cannot be considered as a contiguous area for the reason that it is separated by a body of water – a strait
that traverses between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located project within an ECA. Being a "stand alone project"
and an expansion of the existing jetty port, respondent DENR-EMB RVI had required respondent Province
to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB
RVI, which was the administrator of the EIS system, had the final decision on this matter. Under DENR
DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is conducted,
shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to deny said
application. Its Regional Director could either issue an ECC for the project or deny the application. He may
also require a more comprehensive EIA study. The Regional Director issued the ECC based on the EPRMP
submitted by respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and feasibility studies to embark on another
project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked
within the limits of the ECC.92
With regard to petitioner’s allegation that respondent Province failed to get the favorable endorsement of
the concerned LGUs in violation of the Local Government Code, respondent Province contends that
consultation vis-à-vis the favorable endorsement from the concerned LGUs as contemplated under the
Local Government Code are merely tools to seek advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government projects. Furthermore, such endorsement is not
necessary for projects falling under Category B2 unless required by the DENR-EMB RVI, under Section 5.3
of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have conducted
consultative activities with LGUs in connection with Sections 26 and 27 of the Local Government Code.
The vehement and staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang
Bayan of Malay, according to respondent Province, were not rooted on its perceived impact upon the
people and the community in terms of environmental or ecological balance, but due to an alleged conflict
with their "principal position to develop, utilize and reap benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the Local
Government Code. Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as
Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental
issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code
is to create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the project. The duty to consult does not automatically require
adherence to the opinions during the consultation process. It is allegedly not within the provisions to give
the full authority to the LGU concerned to unilaterally approve or disapprove the project in the guise of
requiring the proponent of securing its favorable endorsement. In this case, petitioner is calling a halt to the
project without providing an alternative resolution to harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found
along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine support
systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge that
the said foreshore area is being utilized by the residents ever since as berthing or anchorage site of their
motorized banca. There will be no possibility of any coral development therein because of its continuous
utilization. Likewise, the activity of the strait that traverses between the main land Caticlan and Boracay
Island would also be a factor of the coral development. Corals [may] only be formed within the area if there
is scientific human intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged environmental
impact of the subject project to the beaches of Boracay Island remains unconfirmed. Petitioner had
unsuccessfully proven that the project would cause imminent, grave and irreparable injury to the
community.95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the TEPO
may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable
damage to the party or person enjoined, while the applicant may be fully compensated for such damages
as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined.
Respondent Province contends that the TEPO would cause irreparable damage in two aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area, including
tourists and passengers serviced by the jetty port, brought about by the abrupt cessation of
development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its creditors as
the financing scheme in funding the present project is by way of credit financing through bond
flotation.
2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold to
investors, which in turn would be paid by the income that the project would realize or incur upon its
completion.
3. While the project is under construction, respondent Province is appropriating a portion of its
Internal Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and
principal amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the project’s
construction.
5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues
or funds as permitted by law; if project is stopped, detriment of the public welfare and its
constituents.96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most
especially that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment that was
deposited on the project has no proper concrete wave protection that might be washed out in the
event that a strong typhoon or big waves may occur affecting the strait and the properties along the
project site. It is already the rainy season and there is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury
or damage from the ongoing project. The petitioner’s perceived fear of environmental destruction brought
about by its erroneous appreciation of available data is unfounded and does not translate into a matter of
extreme urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may be
dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order
No. 543 delegated the power "to approve reclamation projects to respondent PRA through its governing
Board, subject to compliance with existing laws and rules and further subject to the condition that
reclamation contracts to be executed with any person or entity (must) go through public bidding."
Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 200999 regarding Aklan’s proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with the requirements
under the law that respondent PRA, through its Board of Directors, approved the proposed project under its
Board Resolution No. 4094.100 In the same Resolution, respondent PRA Board authorized the General
Manager/CEO to execute a MOA with the Aklan provincial government to implement the reclamation
project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-hectare
reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and
its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the requirements
imposed by existing laws and regulations. It further contends that the 40 hectares involved in this project
remains a plan insofar as respondent PRA is concerned. What has been approved for reclamation by
respondent PRA thus far is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it
approved this reclamation project after extensively reviewing the legal, technical, financial, environmental,
and operational aspects of the proposed reclamation.102
One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no
reclamation work could be started until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part of the required submissions to
respondent PRA includes the drainage design as approved by the Public Works Department and the ECC
as issued by the DENR, all of which the Aklan government must submit to respondent PRA before starting
any reclamation works.103Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter
is required to submit, apart from the ECC, the following requirements for respondent PRA’s review and
approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for
reclamation works, reclamation plans and methodology, plans for the sources of fill materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost
effective and efficient drainage system as may be required based on the results of the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland
reclamation components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for the project;
and,
(g) Project timetable (PERT/CPM) for the entire project construction period.104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly
comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and
international commitments of the Republic of the Philippines to ensure environmental protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate action
petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of
Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that respondent
Province had already met with the different officials of Malay, furnishing respondent PRA with the copies of
the minutes of such meetings/presentations. Governor Marquez also assured respondent PRA that it had
complied with the consultation requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Province’s project and in issuing the necessary NTP
for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization, respondent
PRA gave considerable weight to all pertinent issuances, especially the ECC issued by DENR-EMB
RVI.108 Respondent PRA stresses that its earlier approval of the 40-hectare reclamation project under its
Resolution No. 4094, series of 2010, still requires a second level of compliance requirements from the
proponent. Respondent Province could not possibly begin its reclamation works since respondent PRA had
yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site
1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province pursue the other phases of its project,
it would still require the submission of an ECC for each succeeding phases before the start of any
reclamation works.110
Respondent PRA, being the national government’s arm in regulating and coordinating all reclamation
projects in the Philippines – a mandate conferred by law – manifests that it is incumbent upon it, in the
exercise of its regulatory functions, to diligently evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval. Once the reclamation project’s requirements set forth by
law and related rules have been complied with, respondent PRA is mandated to approve the same.
Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements submitted and
complied with by Aklan, and the attendant careful and meticulous technical and legal evaluation by
respondent PRA, it cannot be argued that the reclamation permit it issued to Aklan is ‘founded upon
numerous irregularities;’ as recklessly and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC
certifies that the project had undergone the proper EIA process by assessing, among others, the direct and
indirect impact of the project on the biophysical and human environment and ensuring that these impacts
are addressed by appropriate environmental protection and enhancement measures, pursuant to
Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing
rules and regulations.113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project is not
located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland
Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation No. 2146
(1981), being within the category of a water body. This was why respondent Province had faithfully secured
an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary
documents as contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No. R6-
1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and Passenger
Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the
issuance of the Order115 dated January 26, 2010, disregarding the claim of the Municipality of Malay, Aklan
of a portion of the foreshore land in Caticlan covered by the application of the Province of Aklan; and
another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No.
060412-43A and FLA No. 060412-43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion and modernization of the old jetty port in Barangay
Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay Caticlan and
Boracay. The previous letter of respondent Province dated October 14, 2009 addressed to DENR-EMB RVI
Regional Executive Director, would show that the reclamation project will cover approximately 2.6
hectares.117 This application for ECC was not officially accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI
looked at the documents submitted by respondent Province and saw that the subject area covered by the
ECC application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64 hectares;
hence, respondent DENR-EMB RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation
project under "Non ECP in ECA," this does not fall within the definition of a co-located project because the
subject project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued ECC
(ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the
EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB),
Central Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in
2009 entitled "Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan
Jetty Port Terminal through Beach Zone Restoration and Protective Marina Development in Malay,
Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a
best professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative impact
with the surrounding environment particularly in Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in the [MERF-
UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width seaward using the tidal and wave
modelling."121 The study showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics
of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated and
processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs
to consider in its decision whether or not to issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB
RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme urgency
that necessitates the granting of Mandamus or issuance of TEPO that put to balance between the life and
death of the petitioner or present grave or irreparable damage to environment."123
After receiving the above Comments from all the respondents, the Court set the case for oral arguments on
September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion 124 praying for the
dismissal of the petition, as the province was no longer pursuing the implementation of the succeeding
phases of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence, the issues and
fears expressed by petitioner had become moot. Respondent Province alleges that the petition is
"premised on a serious misappreciation of the real extent of the contested reclamation project" as certainly
the ECC covered only a total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and
although the MOA spoke of 40 hectares, respondent Province’s submission of documents to respondent
PRA pertaining to said area was but the first of a two-step process of approval. Respondent Province
claims that its failure to comply with the documentary requirements of respondent PRA within the period
provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue the remainder
of the project.125 Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that the
Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the project with a
total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence, the existing
MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor
Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to confirm
the position of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64 hectares, more
or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all along.
Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares as feared.
This completely changes the extent of the Project and, consequently, moots the issues and fears
expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology had become
academic all together.129
The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion, 130 which the Court received on April 2, 2012
stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an
ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative Order
2007-2, which compliance caused respondent PRA’s Board to approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation project
before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of
Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline" 131 and
that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of
2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of
Aklan Located at Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and
PRA that led to the approval of the reclamation project by the said government agencies, as well as the
recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the Municipality of
Malay favorably endorsing the said project, had "categorically addressed all the issues raised by the
Petitioner in its Petition dated June 1, 2011." Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due
proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and academic
II. Whether or not the petition is premature because petitioner failed to exhaust administrative
remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws and
regulations based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the pertinent laws
and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had already been
addressed, and this petition should be dismissed for being moot and academic.
On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they are not
sufficient to render the petition moot and academic, as there are explicit conditions imposed that must be
complied with by respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang
Barangay of Caticlan it is stated that "any vertical structures to be constructed shall be subject for barangay
endorsement."133 Clearly, what the barangay endorsed was the reclamation only, and not the entire project
that includes the construction of a commercial building and wellness center, and other tourism-related
facilities. Petitioner’s objections, as may be recalled, pertain not only to the reclamation per se, but also to
the building to be constructed and the entire project’s perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It reads in
part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for
the Local Government of Malay in terms of income and employment for its constituents, but the fact cannot
be denied that the project will take its toll on the environment especially on the nearby fragile island of
Boracay and the fact also remains that the project will eventually displace the local transportation
operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where
this matter was referred conducted several consultations/committee hearings with concerned departments
and the private sector specifically Boracay Foundation, Inc. and they are one in its belief that this Local
Government Unit has never been against development so long as compliance with the law and proper
procedures have been observed and that paramount consideration have been given to the environment
lest we disturb the balance of nature to the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no
less than transparency and faithful commitment from the Provincial Government of Aklan in the process of
going through these improvements in the Municipality because it once fell prey to infidelities in matters of
governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the end
that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not
beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the
environmental impact of the reclamation project especially during Habagat and Amihan seasons
and put in place as early as possible mitigating measures on the effect of the project to the
environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no
choice but to revoke this endorsement, hence faithful compliance of the commitment of the Provincial
Government is highly appealed for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply
with on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive
study on the environmental impact of the reclamation project, which is the heart of the petition before us.
Therefore, the contents of the two resolutions submitted by respondent Province do not support its
conclusion that the subsequent favorable endorsement of the LGUs had already addressed all the issues
raised and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s failure to
exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the petition
questions the issuance of the ECC and the NTP, this involves factual and technical verification, which are
more properly within the expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt
of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not
be countenanced.
The proponent or any stakeholder may file an appeal to the following:

Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
 DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound
to observe the same and may not be granted recourse to the regular courts for its failure to do so.
We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals, 136 which
summarized our earlier decisions on the procedural requirement of exhaustion of administrative remedies,
to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1)
where the question in dispute is purely a legal one, or (2) where the controverted act is patently illegal or
was performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department
secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter,
unless actually disapproved by him, or (4) where there are circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-
25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy,
(Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45
SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA
637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only
applicable, based on the first sentence thereof, if the person or entity charged with the duty to exhaust the
administrative remedy of appeal to the appropriate government agency has been a party or has been made
a party in the proceedings wherein the decision to be appealed was rendered. It has been established by
the facts that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI.
Petitioner was only informed that the project had already been approved after the ECC was already
granted.138 Not being a party to the said proceedings, it does not appear that petitioner was officially
furnished a copy of the decision, from which the 15-day period to appeal should be reckoned, and which
would warrant the application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision,139 because it claims that the reclamation of land on the Caticlan
side would unavoidably adversely affect the Boracay side, where petitioner’s members own establishments
engaged in the tourism trade. As noted earlier, petitioner contends that the declared objective of the
reclamation project is to exploit Boracay’s tourism trade because the project is intended to enhance support
services thereto; however, this objective would not be achieved since the white-sand beaches for which
Boracay is famous might be negatively affected by the project. Petitioner’s conclusion is that respondent
Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our
environmental laws, and should thus be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner
under the writ of continuing mandamus, which is a special civil action that may be availed of "to compel the
performance of an act specifically enjoined by law" 140 and which provides for the issuance of a TEPO "as
an auxiliary remedy prior to the issuance of the writ itself." 141 The Rationale of the said Rules explains the
writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the
implementation of regulatory programs by the appropriate government agencies.
Thus, a government agency’s inaction, if any, has serious implications on the future of environmental law
enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory
process, will have to rely on such agencies to take the initial incentives, which may require a judicial
component. Accordingly, questions regarding the propriety of an agency’s action or inaction will need to be
analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to ensure
the successful implementation of the reliefs mandated under the court’s decision" and, in order to do this,
"the court may compel the submission of compliance reports from the respondent government agencies as
well as avail of other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent Province to comply with certain environmental laws, rules,
and procedures that it claims were either circumvented or ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the government or
officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching
thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also
contain a sworn certification of non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals
or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Appeals, or
this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the
questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws
and regulations, and whether respondent Province complied with all the requirements under the pertinent
laws and regulations
Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is misclassified as a
single project when in fact it is co-located. Petitioner also questions the classification made by respondent
Province that the reclamation project is merely an expansion of the existing jetty port, when the project
descriptions embodied in the different documents filed by respondent Province describe commercial
establishments to be built, among others, to raise revenues for the LGU; thus, it should have been
classified as a new project. Petitioner likewise cries foul to the manner by which respondent Province
allegedly circumvented the documentary requirements of the DENR-EMB RVI by the act of connecting the
reclamation project with its previous project in 1999 and claiming that the new project is a mere expansion
of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued
by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its application for
reclamation of 40 hectares with respondent PRA was conditioned on its submission of specific documents
within 120 days. Respondent Province claims that its failure to comply with said condition indicated its
waiver to pursue the succeeding phases of the reclamation project and that the subject matter of this case
had thus been limited to 2.64 hectares. Respondent PRA, for its part, declared through its General
Manager that the "Aklan Beach Zone Restoration and Protection Marine Development Project will now be
confined to the reclamation and development of the 2.64 hectares, more or less."144
The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in
the subject reclamation project has been limited to 2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the Court still has to check whether respondents had
complied with all applicable environmental laws, rules, and regulations pertaining to the actual reclamation
project.
We recognize at this point that the DENR is the government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny ECCs to project proponents. 145 It is the DENR that
has the duty to implement the EIS system. It appears, however, that respondent DENR-EMB RVI’s
evaluation of this reclamation project was problematic, based on the valid questions raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear great weight in
this case. However, the following are the issues that put in question the wisdom of respondent DENR-EMB
RVI in issuing the ECC:
1. Its approval of respondent Province’s classification of the project as a mere expansion of the
existing jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the
environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by respondent
DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject to the more rigorous environmental impact study
requested by petitioner, or it is a mere expansion of the existing jetty port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the
"Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified under
Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a separate item from
"transport terminal facilities." This creates the question of whether this project should be considered as
consisting of more than one type of activity, and should more properly be classified as "co-located," under
the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects,
under one or more proponents/locators, which are located in a contiguous area and managed by one
administrator, who is also the ECC applicant. The co-located project may be an economic zone or industrial
park, or a mix of projects within a catchment, watershed or river basin, or any other geographical, political
or economic unit of area. Since the location or threshold of specific projects within the contiguous area will
yet be derived from the EIA process based on the carrying capacity of the project environment, the nature
of the project is called "programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address
the question of whether this could be deemed as a group of single projects (transport terminal facility,
building, etc.) in a contiguous area managed by respondent Province, or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1 and 3
above because the type of EIA study required under the Revised Procedural Manual depends on such
classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as project
proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project (including
cumulative impacts) on the environment during construction, commissioning, operation and abandonment.
It also includes designing appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the community’s welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the
environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of the original
reclaimed land. Furthermore, the area prior to construction merely contained a jetty port, whereas the
proposed expansion, as described in the EPRMP submitted by respondent Province to respondent DENR-
EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal that will
have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project construction
costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost of ₱785 million bringing the total investment
requirement to about ₱1.0 billion.147(Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above,
a significant portion of the reclaimed area would be devoted to the construction of a commercial building,
and the area to be utilized for the expansion of the jetty port consists of a mere 3,000 square meters (sq.
m). To be true to its definition, the EIA report submitted by respondent Province should at the very least
predict the impact that the construction of the new buildings on the reclaimed land would have on the
surrounding environment. These new constructions and their environmental effects were not covered by
the old studies that respondent Province previously submitted for the construction of the original jetty port in
1999, and which it re-submitted in its application for ECC in this alleged expansion, instead of conducting
updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a
narrow strait. This becomes more imperative because of the significant contributions of Boracay’s white-
sand beach to the country’s tourism trade, which requires respondent Province to proceed with utmost
caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the environment
under Presidential Decree No. 1586 in Republic of the Philippines v. The City of Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local
government unit as a body politic and corporate endowed with powers to be exercised by it in conformity
with law. As such, it performs dual functions, governmental and proprietary. Governmental functions are
those that concern the health, safety and the advancement of the public good or welfare as affecting the
public generally. Proprietary functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit. When exercising governmental powers
and performing governmental duties, an LGU is an agency of the national government. When engaged in
corporate activities, it acts as an agent of the community in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s right to
a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to
ensure the quality of the environment, which is the very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate
any such declared environmentally critical project or area without first securing an Environmental
Compliance Certificate issued by the President or his duly authorized representative." The Civil Code
defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local
government units are juridical persons. Undoubtedly therefore, local government units are not excluded
from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to
achieve a balance between socio-economic development and environmental protection, which are the twin
goals of sustainable development. The above-quoted first paragraph of the Whereas clause stresses that
this can only be possible if we adopt a comprehensive and integrated environmental protection program
where all the sectors of the community are involved, i.e., the government and the private sectors. The local
government units, as part of the machinery of the government, cannot therefore be deemed as outside the
scope of the EIS system.149(Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study,
and if it should find necessary, to require respondent Province to address these environmental issues
raised by petitioner and submit the correct EIA report as required by the project’s specifications. The Court
requires respondent DENR-EMB RVI to complete its study and submit a report within a non-extendible
period of three months. Respondent DENR-EMB RVI should establish to the Court in said report why the
ECC it issued for the subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the maintenance of
ecological balance, and requires them to secure prior public consultation and approval of local government
units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the
local government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive
agency of the government to undertake reclamation nationwide. Hence, it was necessary for respondent
Province to go through respondent PRA and to execute a MOA, wherein respondent PRA’s authority to
reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR,
is also a national government institution which is tasked with the issuance of the ECC that is a prerequisite
to projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological balance of
local communities, and is covered by the requirements found in the Local Government Code provisions that
are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be
the duty of every national agency or government-owned or controlled corporation authorizing or involved in
the planning and implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental organizations, and
other sectors concerned and explain the goals and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects
are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to "national
programs and/or projects which are to be implemented in a particular local community" 151 and that it should
be read in conjunction with Section 26. We held further in this manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable
resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal
or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction
of a particular group of people residing in the locality where these will be implemented. Obviously, none of
these effects will be produced by the introduction of lotto in the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as described
above falls under Section 26 because the commercial establishments to be built on phase 1, as described
in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and possible
toxic fuel discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that
there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
thesangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of
th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite fishing and other
forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources
products and of endangered species of flora and fauna, slash and burn farming, and such other
activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological
imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within
the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated
zoning ordinances in consonance with the approved comprehensive land use plan, subject to
existing laws, rules and regulations; establishing fire limits or zones, particularly in populous
centers; and regulating the construction, repair or modification of buildings within said fire limits or
zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and
facilities, …providing for the establishment, maintenance, protection, and conservation of
communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest
development projects …and, subject to existing laws, establishing and providing for the
maintenance, repair and operation of an efficient waterworks system to supply water for the
inhabitants and purifying the source of the water supply; regulating the construction, maintenance,
repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the
water supply of the municipality and, for this purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area of said water supply and within one hundred
(100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in
connection with the water service; and regulating the consumption, use or wastage of water."
 [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national project that
affects the environmental and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is
illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have been
conducted and secured by the respondent Province. Accordingly, the information dissemination conducted
months after the ECC had already been issued was insufficient to comply with this requirement under the
Local Government Code. Had they been conducted properly, the prior public consultation should have
considered the ecological or environmental concerns of the stakeholders and studied measures alternative
to the project, to avoid or minimize adverse environmental impact or damage. In fact, respondent Province
once tried to obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by
the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory
unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless
specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration in the EIA study and the formulation of the
management plan. All public consultations and public hearings conducted during the EIA process are to be
documented. The public hearing/consultation Process report shall be validated by the EMB/EMB RD and
shall constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be
initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this
case, respondent Province had already filed its ECC application before it met with the local government
units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08.
However, we still find that the LGC requirements of consultation and approval apply in this case. This is
because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and
which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng
mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province commenced the
implementation project, it violated Section 27 of the LGC, which clearly enunciates that "[no] project or
program shall be implemented by government authorities unless the consultations mentioned in Sections
2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly achieved at the
urging and insistence of respondent Province. As we have established above, the respective resolutions
issued by the LGUs concerned did not render this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay
and the protection of the environment, lest they kill the proverbial hen that lays the golden egg. At the
beginning of this decision, we mentioned that there are common goals of national significance that are very
apparent from both the petitioner’s and the respondents’ respective pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the aim,
among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement System,
Including Other Environmental Management Related Measures and For Other Purposes," which declared
in its first Section that it is "the policy of the State to attain and maintain a rational and orderly balance
between socio-economic growth and environmental protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of
Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of the
national economy and an industry of national interest and importance, which must be harnessed as an
engine of socioeconomic growth and cultural affirmation to generate investment, foreign exchange and
employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis
ours.)
The primordial role of local government units under the Constitution and the Local Government Code of
1991 in the subject matter of this case is also unquestionable. The Local Government Code of 1991
(Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the local government units.156 (Emphases
ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues
would benefit all the parties. Thus, respondent Province’s cooperation with respondent DENR-EMB RVI in
the Court-mandated review of the proper classification and environmental impact of the reclamation project
is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by
1âwphi1

this Court is hereby converted into a writ of continuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental Management
Bureau Regional Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single instead of a co-located project;
b. its approval of respondent Province’s classification of the project as a mere expansion of
the existing jetty port in Caticlan, instead of classifying it as a new project; and
c. the impact of the reclamation project to the environment based on new, updated, and
comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project
proposal and submit to the latter the appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with non-
governmental organizations and other stakeholders and sectors concerned as required by
Section 27 in relation to Section 26 of the Local Government Code.
 3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented
by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB
(Region VI) are mandated to submit their respective reports to this Court regarding their compliance
with the requirements set forth in this Decision no later than three (3) months from the date of
promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and desist from
continuing the implementation of the project covered by ECC-R6-1003-096-7100 until further orders
from this Court. For this purpose, the respondents shall report within five (5) days to this Court the
status of the project as of their receipt of this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:

___________________________________________________________________________

G.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY ROQUE., JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention
x-----------------------x
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR.
BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL
CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
x-----------------------x
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZLUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY L. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
x-----------------------x
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner,
vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY L. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court are nine (9) Motions for Reconsideration1 assailing the Decision2 dated December 8, 2015
of the Court (December 8, 2015 Decision), which upheld with modification the Decision 3 dated May 17,
2013 and the Resolution4 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00013.
The Facts
The instant case arose from the conduct of field trials for "bioengineered eggplants," known as Bacillus
thuringiensis (Bt) eggplant (Bt talong), administered pursuant to the Memorandum of Undertaking5 (MOU)
entered into by herein petitioners University of the Philippines Los Baños Foundation, Inc. (UPLBFI) and
International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of the
Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the crystal toxin genes
from the soil bacterium Bt, which produces the CrylAc protein that is toxic to target insect pests.
The Cry1Ac protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer, the
most destructive insect pest to eggplants.6
From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the implementing institution
of the field trials, conducted a contained experiment on Bt talong under the supervision of the National
Committee on Biosafety of the Philippines (NCBP). 7 The NCBP, created under Executive Order No. (EO)
430,8 is the regulatory body tasked to: (a) "identify and evaluate potential hazards involved in initiating
genetic engineering experiments or the introduction of new species and genetically engineered organisms
and recommend measures to minimize risks"; and (b) ''formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic
materials for the protection of public health, environment[,] and personnel[,] and supervise the
implementation thereof."9 Upon the completion of the contained experiment, the NCBP issued a
Certificate10 therefor stating that all biosafety measures were complied with, and no untoward incident had
occurred.11
On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-year Biosafety
Permits12 for field testing of Bt talong13after UPLB's field test proposal satisfactorily completed biosafety risk
assessment for field testing pursuant to the Department of Agriculture's (DA) Administrative Order No. 8,
series of 200214 (DAO 08-2002),15 which provides for the rules and regulations for the importation and
release into the environment of plants and plant products derived from the use of modern
biotechnology.16 Consequently, field testing proceeded in approved trial sites in North Cotabato,
Pangasinan, Camarines Sur, Davao City, and Laguna.17
On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), Magsasaka at
Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents) filed before the Court a
Petition for Writ of Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a
Temporary Environmental Protection Order (TEPO)18 (petition for Writ of Kalikasan) against herein
petitioners the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the DA, UPLBFI, and
ISAAA, and UPMFI, alleging that the Bt talong field trials violated their constitutional right to health and a
balanced ecology considering, among others, that: (a) the Environmental Compliance Certificate (ECC), as
required by Presidential Decree No. (PD) 1151, 19 was not secured prior to the field trials;20 (b) the required
public consultations under the Local Government Code (LGC) were not complied with;21 and (c) as a
regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and the environment,
and that there is no independent, peer-reviewed study showing its safety for human consumption and the
environment.22 Further, they contended that since the scientific evidence as to the safety of Bt
talong remained insufficient or uncertain, and that preliminary scientific evaluation shows reasonable
grounds for concern, the precautionary principle should be applied and, thereby, the field trials be
enjoined.23
On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except UPLB25) and UPMFI,
ordering them to make a verified return within a non-extendible period of ten (10) days, as provided for in
Section 8, Rule 7 of the Rules of Procedure for Environmental Cases. 26 Thus, in compliance therewith,
ISAAA, EMB/BPI/FPA, UPLBFI, and UPMFI27 filed their respective verified returns,28 and therein
maintained that: (a) all environmental laws were complied with, including the required public consultations
in the affected communities; (b) an ECC was not required for the field trials as it will not significantly affect
the environment nor pose a hazard to human health; (c) there is a plethora of scientific works and literature,
peer-reviewed, on the safety of Bt talong for human consumption; (d) at any rate, the safety of Bt talong for
human consumption is irrelevant because none of the eggplants will be consumed by humans or animals
and all materials not used for analyses will be chopped, boiled, and buried following the conditions of the
Biosafety Permits; and (e) the precautionary principle could not be applied as the field testing was only a
part of a continuing study to ensure that such trials have no significant and negative impact on the
environment.29
On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of Appeals for acceptance
of the return of the writ and for hearing, reception of evidence, and rendition of judgment. 31 In a hearing
before the CA on August 14, 2012, UPLB was impleaded as a party to the case and was furnished by
respondents a copy of their petition. Consequently the CA directed UPLB to file its comment to the
petition32 and, on August 24, 2012, UPLB filed its Answer33 adopting the arguments and allegations in the
verified return filed by UPLBFI. On the other hand, in a Resolution 34 dated February 13, 2013, the CA
discharged UPMFI as a party to the case pursuant to the Manifestation and Motion filed by respondents in
order to expedite the proceedings and resolution of the latter's petition.
The CA Ruling
In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed petitioners to
pem1anently cease and desist from conducting the Bt talong field trials.36 At the outset, it did not find merit
in petitioners' contention that the case should be dismissed on the ground of mootness, noting that the
issues raised by the latter were "capable of repetition yet evading review" since the Bt talong field trial was
just one of the phases or stages of an overall and bigger study that is being conducted in relation to the
said genetically-modified organism.37 It then held that the precautionary principle set forth under Section
1,38 Rule 20 of the Rules of Procedure for Environmental Cases39 is relevant, considering the Philippines'
rich biodiversity and uncertainty surrounding the safety of Bt talong. It noted the possible irreversible effects
of the field trials and the introduction of Bt talong to the market, and found the existing regulations issued
by the DA and the Department of Science and Technology (DOST) insufficient to guarantee the safety of
the environment and the health of the people.40
Aggrieved, petitioners separately moved for reconsideration. 41 However, in a Resolution42 dated September
20, 2013, the CA denied the same and remarked that introducing genetically modified plant into the
ecosystem is an ecologically imbalancing act.43 Anent UPLB 's argument that the Writ of Kalikasan violated
its right to academic freedom, the CA emphasized that the writ did not stop the research on Bt talong but
only the procedure employed in conducting the field trials, and only at this time when there is yet no law
ensuring its safety when introduced to the environment.44
Dissatisfied, petitioners filed their respective petitions for review on certiorari before this Court.
The Proceedings Before the Court
In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly, affinned with
modification the ruling of the CA.46 Agreeing with the CA, the Court held that the precautionar; principle
applies in this case since the risk of harm from the field trials of Bt talong remains uncertain and there
exists a possibility of serious and irreversible harm. The Court observed that eggplants are a staple
vegetable in the country that is mostly grown by small-scale farmers who are poor and marginalized; thus,
given the country's rich biodiversity, the consequences of contamination and genetic pollution would be
disastrous and irreversible.47
The Court likewise agreed with the CA in not dismissing the case for being moot and academic despite the
completion and termination of the Bt talong field trials, on account of the following exceptions to the
mootness principle: (a) the exceptional character of the situation and the paramount public interest is
involved; and (b) the case is capable of repetition yet evading review.48
Further, the Court noted that while the provisions of DAO 08-2002 were observed, the National Biosafety
Framework (NBF) established under EO 514, series of 2006 49 which requires public participation in all
stages of biosafety decision-making, pursuant to the Cartagena Protocol on Biosafety50 which was acceded
to by the Philippines in 2000 and became effective locally in 2003, was not complied with. 51 Moreover, the
field testing should have been subjected to Environmental Impact Assessment (EIA), considering that it
involved new technologies with uncertain results.52
Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared DAO 08-2002
null and void for failure to consider the provisions of the NBF. The Court also temporarily enjoined any
application for contained use, field testing, propagation, commercialization, and importation of genetically
modified organisms until a new administrative order is promulgated in accordance with law.53
The Issues Presented in the Motions for Reconsideration
Undaunted, petitioners moved for reconsideration,54 arguing, among others, that: (a) the case should have
been dismissed for mootness in view of the completion and termination of the Bt talong field trials and the
expiration of the Biosafety Permits;55 (b) the Court should not have ruled on the validity of DAO 08-2002 as
it was not raised as an issue;56 and (c) the Court erred in relying on the studies cited in the December 8,
2015 Decision which were not offered in evidence and involved Bt corn, not Bt talong.57
In their Consolidated Comments,58 respondents maintain, in essence, that: (a) the case is not mooted by
the completion of the field trials since field testing is part of the process of commercialization and will
eventually lead to propagation, commercialization, and consumption of Bt talong as a consumer
product;59 (b) the validity of DAO 08-2002 was raised by respondents when they argued in their petition for
Writ of Kalikasan that such administrative issuance is not enough to adequately protect the Constitutional
right of the people to a balanced and healthful ecology;60 and (c) the Court correctly took judicial notice of
the scientific studies showing the negative effects of Bttechnology and applied the precautionary principle.61
The Court's Ruling
The Court grants the motions for reconsideration on the ground of mootness.
As a rule, the Court may only adjudicate actual, ongoing controversies. 62 The requirement of the existence
of a "case" or an "actual controversy" for the proper exercise of the power of judicial review proceeds from
Section 1, Article VIII of the 1987 Constitution:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the comis of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
 excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

Accordingly, the Court is not empowered to decide moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other
words, when a case is moot, it becomes non-justiciable.63
An action is considered "moot" when it no longer presents a justiciable controversy because the issues
involved have become academic or dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has been overtaken by
subsequent events.64
Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount public
interest are involved;third, when the constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.65 Thus, jurisprudence recognizes these four instances as exceptions to the mootness principle.
In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of exceptional
character and paramount public interest is involved, and (b) it is likewise capable of repetition yet evading
review. Hence, it was excepted from the mootness principle. 66 However, upon a closer scrutiny of the
parties' arguments, the Court reconsiders its ruling and now finds merit in petitioners' assertion that the
case should have been dismissed for being moot and academic, and that the aforesaid exceptions to the
said rule should not have been applied.
I. On the paramount public interest exception.
Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a case involves
paramount public interest in relation to the mootness principle. However, a survey of cases would show
that, as a common guidepost for application, there should be some perceivable benefit to the public which
demands the Court to proceed with the resolution of otherwise moot questions.
In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the validity of
Republic Act No. (RA) 4880,68 which prohibits the early nomination of candidates for elective offices and
early election campaigns or partisan political activities became moot by reason of the holding of the 1967
elections before the case could be decided. Nonetheless, the Court treated the petition as one for
prohibition and rendered judgment in view of "the paramount public interest and the undeniable necessity
for a ruling, the national elections [of 1969] being barely six months away."69
In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election protest subject of
that case notwithstanding the supervening death of one of the contestants. According to the Court, in an
election contest, there is a paramount need to dispel the uncertainty that beclouds the real choice of the
electorate.71
In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential Proclamation No.
1017, s. 2006,73 which declared a state of National Emergency, even though the same was lifted before a
decision could be rendered. The Court explained that the case was one of exceptional character and
involved paramount public interest, because the people's basic rights to expression, assembly, and of the
press were at issue.74
In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and corrupt practices
under Section 3 (e) of RA 3019.76 One of the accused appealed the conviction, while the other filed a
petition forcertiorari before the Court. While the appellant died during the pendency of his appeal, the Court
still ruled on the merits thereof considering the exceptional character of the appeals in relation to each
other, i.e., the two petitions were so intertwined that the absolution of the deceased was determinative of
the absolution of the other accused.77
More recently, in Funa v. Manila Economic and Cultural Office (MECO),78the petitioner prayed that the
Commission on Audit (COA) be ordered to audit the MECO which is based in Taiwan, on the premise that it
is a government-owned and controlled corporation. 79 The COA argued that the case is already moot and
should be dismissed, since it had already directed a team of auditors to proceed to Taiwan to audit the
accounts of MECO.80Ruling on the merits, the Court explained that the case was of paramount public
interest because it involved the COA's performance of its constitutional duty and because the case
concerns the legal status of MECO, i.e.,whether it may be considered as a government agency or not,
which has a direct bearing on the country's commitment to the One China Policy of the People's Republic
of China.81
In contrast to the foregoing cases, no perceivable benefit to the public - whether rational or practical - may
be gained by resolving respondents' petition for Writ of Kalikasan on the merits.
To recount, these cases, which stemmed from herein respondents petition for Writ of Kalikasan, were
mooted by the undisputed expiration of the Biosafety Permits issued by the BPI and the completion and
termination of the Bt talong field trials subject of the same.82 These incidents effectively negated the
necessity for the reliefs sought by respondents in their petition for Writ of Kalikasan as there was no longer
any field test to enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the reliefs
petitioner sought and granted by the CA were no longer capable of execution.
At this juncture, it is important to understand that the completion and termination of the field tests do not
mean that herein petitioners may inevitably proceed to commercially propagate Bt talong.83 There are three
(3) stages before genetically-modified organisms (GMOs) may become commercially available under DAO
08-200284 and each stage is distinct, such that "[s]ubsequent stages can only proceed if the prior stage/s
[is/]are completed and clearance is given to engage in the next regulatory stage." 85 Specifically, before a
genetically modified organism is allowed to be propagated under DAO 08-2002: (a) a permit for
propagation must be secured from the BPI; (b) it can be shown that based on the field testing conducted in
the Philippines, the regulated article will not pose any significant risks to the environment; (c) food and/or
feed safety studies show that the regulated article will not pose any significant risks to human and animal
health; and (d) if the regulated article is a pest-protected plant, its transformation event has been duly
registered with the FPA.86
As the matter never went beyond the field testing phase, none of the foregoing tasks related to propagation
were pursued or the requirements therefor complied with. Thus, there are no guaranteed after-effects to the
already concluded Bt talong field trials that demand an adjudication from which the public may perceivably
benefit. Any future threat to the right ,of herein respondents or the public in general to a healthful and
balanced ecology is therefore more imagined than real.
In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness of Bt talong - or
GMOs, for that matter - until an actual and justiciable case properly presents itself before the Court. In his
Concurring Opinion87 on the main, Associate Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly
pointed out that "the findings [resulting from the Bt talong field trials] should be the material to provide more
rigorous scientific analysis of the various claims made in relation to Bt talong."88 True enough, the
concluded field tests ·- like those in these cases – would yield data that may prove useful for future studies
and analyses. If at all, resolving the petition for Writ of Kalikasan would unnecessarily arrest the results of
further research and testing on Et talong, and even GMOs in general, and hence, tend to hinder scientific
advancement on the subject matter.
More significantly, it is clear that no benefit would be derived by the public in assessing the merits of field
trials whose parameters are not only unique to the specific type of Bt talong tested, but are now, in fact,
rendered obsolete by the supervening change in the regulatory framework applied to GMO field testing. To
be sure, DAO 08-2002 has already been superseded by Joint Department Circular No. 1, series of
201689 (JDC 01-2016), issued by the Department of Science and Technology (DOST), the DA, the DENR,
the Department of Health (DOH), and the Department of Interior and Local Government (DILG), which
provides a substantially different regulatory framework from that under DAO 08-2002 as will be detailed
below. Thus, to resolve respondents' petition for Writ of Kalikasan on its merits, would be tantamount to an
unnecessary scholarly exercise for the Court to assess alleged violations of health and environmental
rights that arose from a past test case whose bearings do not find any - if not minimal -- relevance to cases
operating under today's regulatory framework.
Therefore, the paramount public interest exception to the mootness rule should not have been applied. 1âwphi1
II. The case is not one capable of repetition vet evading review.
Likewise, contrary to the Court's earlier ruling, 90 these cases do not fall under the "capable of repetition yet
evading review" exception.
The Court notes that the petition for Writ of Kalikasan specifically raised issues only against the field testing
of Bt talong under the premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a) fully inform the
eople regarding the health, environment, and other hazards involved; 92 and (b) conduct any valid risk
assessment before conducting the field trial.93 As further pointed out by Justice Leonen, the reliefs sought
did not extend far enough to enjoin the use of the results of the field trials that have been completed.
Hence, the petition's specificity prevented it from falling under the above exception to the mootness rule.94
More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case from being
one capable of repetition so as to warrant review despite its mootness. To contextualize, JDC 01-2016
states that:
Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling
and use, transboundary movement, release into the environment, and management of genetically-modified
plant and plant products derived from the use of modern technology, included under "regulated articles."

As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the conduct of
field testing now applies.
Notably, the new framework under JDC 01-2016 is substantially different from that under DAO 08-2002. In
fact, the new parameters in JDC 01-2016 pertain to provisions which prompted the Court to invalidate D'AO
08-2002. In the December 8, 2015 Decision of the Court, it was observed that: (a) DAO 08-2002 has no
mechanism to mandate compliance with inten1ational biosafety protocols; 95 (b) DAO 08-2002 does not
comply with the transparency and public participation requirements under the NBF;96 and (c) risk
assessment is conducted by an informal group, called the Biosafety Advisory Team of the DA, composed of
representatives from the BPI, Bureau of Animal Industry, FPA, DENR, DOH, and DOST.97
Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment, and the DA was
allowed to consider the expert advice of, and guidelines developed by, relevant inteniational organizations
and regulatory authorities of countries with significant experience in the regulatory supervision of the
regulated article.98 However, under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to
govern the risk assessment of activities involving the research, development, handling and use,
transboundary movement, release into the environment, and management of genetically modified plant and
plant products derived from the use of modem biotechnology. 99Also, whereas DAO 08-2002 was limited to
the DA's authority in regulating the importation and release into the environment of plants and plant
products derived from the use of modern biotechnology, 100 under JDC 01-2016, various relevant
government agencies such as the DOST, DOH, DENR, and the DILG now participate in all stages of the
biosafety decision-making process, with the DOST being the central and lead agency.101
JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases involving
field trials and requires applications for permits and permits already issued to be made public by posting
them online in the websites of the NCBP and the BPI. 102 The composition of the Institutional Biosafety
Committee (IBC) has also been modified to include an elected local official in the locality where the field
testing will be conducted as one of the community representatives.103 Previously, under DAO 08-2002, the
only requirement for the community representatives is that they shall not be affiliated with the applicant and
shall be in a position to represent the interests of the communities where the field testing is to be
conducted.104
JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and Technical
Review Panel (STRP), the pool of scientists that evaluates the risk assessment submitted by the applicant
for field trial, commercial propagation, or direct use of regulated articles. Aside from not being an official,
staff or employee of the DA or any of its attached agencies, JDC 01-2016 requires that members of the
STRP: (a) must not be directly or indirectly employed or engaged by a company or institution with pending
applications for pennits under JDC 01-2016; (b) must possess technical expertise in food and nutrition,
toxicology, ecology, crop protection, environmental science, molecular biology and biotechnology, genetics,
plant breeding, or animal nutrition; and (c) must be well-respected in the scientific community.105
Below is a tabular presentation of the differences between the relevant portions of DAO 08-2002 and JDC
01-2016:

DAO 08-2002 JDC 01-2016

1. As to coverage and government participation

WHEREAS, under Title IV, Chapter 4, Section ARTICLE I. GENERAL PROVISIONS

19 of the Administrative Code of 1987, the
Department of Agriculture, through the Bureau
of Plant Industry, is responsible for the
production of improved planting materials and
protection of agricultural crops from pests and
diseases; and
xxxx
PART I
GENERAL PROVISIONS
Section 1. Applicability. This Joint
Department Circular shall apply to the
research, development, handling and use,
transboundary movement, release into the
environment, and management of genetically-
modified plant and plant products derived from
the use of modern biotechnology, included
under "regulated articles."
xxxx

xxxx ARTICLE III. ADMINISTRATIVE

PART I FRAMEWORK
GENERAL PROVISIONS
Section 4. Role of National Government
xxxx Agencies Consistent with the NBF and the
laws granting their powers and functions,
Section 2 national government agencies shall have the
Coverage following roles:

A. Scope - This Order covers the importation A. [DA]. As the principal agency of the
or release into the environment of: 1. Any plant Philippine Government responsible for the
which has been altered or produced through promotion of agricultural and rural growth and
the use of modem biotechnology if the donor development so as to ensure food security
organism, host organism, or vector or vector and to contribute to poverty
agent belongs to any of the genera or taxa
classified by BPI as meeting the definition of alleviation, the DA shall take the lead in
plant pest or is a medium for the introduction addressing biosafety issues related to the
of noxious weeds; or country's agricultural productivity and food
security.x x x.
2. Any plant or plant product altered or
produced through the use of modern B. [DOST]. As the premier science and
biotechnology which may pose significant risks technology body in the country, the DOST
to human health and the environment based shall take the lead in ensuring that the best
on available scientific and technical available science is utilized and applied in
information. adopting biosafety policies, measures and
guidelines, and in making biosafety decision.
B. Exceptions. - This Order shall not apply to
the contained use of a regulated article, which x xx.
is within the regulatory supervision of NCBP.
C. [DENR]. As the primary government agency
responsible for the conservation management,
 development and proper use of the country's
environment and natural resources, the DENR
shall ensure that environmental assessments
are done and impacts identified in biosafety
decisions. x x x.

D. [DOH]. The DOH, as the principal authority

on health, shall formulate guidelines in
assessing the health impacts posed by
modern biotechnology and its applications. x x
x.

E. [DILG]. The DILG shall coordinate with the

DA, DOST, DENR and DOH in overseeing the
implementation of this Circular in relation to
the activities that are to be implemented in
specific LGUs, particulady in relation to the
conduct of public consultations as required
under the Local Government Code. x x x.

2. As to guidelines in risk assessment

PART I ARTICLE II. BIOSAFETY DECISIONS

GENERAL PROVISIONS Section 3. Guidelines in Making Biosafety
Decisions
xxxx
The principles under the NBF shall guide
Section 3 concerned agencies in making biosafety
Risk Assessment decisions, including:

A. Principles of Risk Assessment - No xxxx

regulated article shall be allowed to be
imported or released into the environment B. Risk Assessment. Risk assessment shall be
without the conduct of a risk assessment mandatory and central in making biosafety
performed in accordance with this Order. The decisions, consistent with policies and
following principles shall be followed when standards on risk assessment issued by the
performing a risk assessment to determine NCBP; and guided by Annex III of the
whether a regulated article poses significant Cartagena Protocol on Biosafety. Pursuant to
risks to human health and the environment: the NBF, the following principles shall be
followed when performing a risk assessment
1. The risk assessment shall be carried out in to determine whether a regulated article poses
a scientifically sound and transparent manner significant risks to human health and the
based on available scientific and technical environment.
information. The expert advice of, and
guidelines developed by, relevant international 1. The risk assessment shall be carried out in
organizations and regulatory authorities of a scientifically sound and transparent manner
countries with significant experience in the based on available scientific and technical
regulatory supervision of the regulated article information. The expert advice of and
shall be taken into account in the conduct of guidelines developed by, relevant international
risk assessment. organizations, including intergovernmental
bodies, and regulatory authorities of countries
x x xx with significant experience in the regulatory
supervision of the regulated article shall be
taken into account. In the conduct of risk
assessment, CODEX Alimentarius Guidelines
on the Food Safety Assessment of Foods
Derived from the Recombinant-DNA Plants
shall internationally adopted as well as other
internationally accepted consensus
documents.

x x x x (Underscoring supplied)

3. As to public participation

PART III ARTICLE V. FIELD TRIAL OF REGULATED

APPROVAL PROCESS FOR FIELD ARTICLES
TESTING OF REGULATE ARTICLES
Section 12. Public Participation for Field
xxxx Trial

Section 8 A. The BPI shall make public all applications

and Biosafety Permits for Field Trial through
Requirements for Field Testing posting on the NCBP and BPI websites, and in
the offices of the DA and DOST in the
xxxx province, city, or municipality where the field
trial will be conducted.
G. Public Consultation. - The applicant, acting
through its IBC, shall notity and invite x x xx
comments on the field testing proposal from
the barangays and city/municipal governments
with jurisdiction over the field test sites. The
IBC shall post for three (3) consecutive weeks
copies of the Public Information Sheet for
Field Testing approved by the BPI in at least
three (3) conspicuous places in each of the
concerned barangay and city/municipal halls.
The Public Information Sheet for Field
Testing shall, among others, invite interested
parties to send their comments on the
proposed field testing to BPI within a period of
thirty (30) days from the date of posting. It
shall be m a language understood in the
community. During the comment period, any
interested person may submit to BPI written
comments regarding the application. The
applicant shall submit proof of posting in the
form of certifications from the concerned
barangay captains and city/municipal mayors
or an affidavit stating the dates and places of
posting duly executed by the responsible
officer or his duly authorized representative.
4. As to membership in the Institutional Biosafety Committee
PART I
GENERAL PROVISIONS
Section 1
Definition of Terms
xxxx
L. "IBC" means the Institutional Biosafety
Committee established by an applicant in
preparation for the field testing of a regulated
article and whose membership has been
approved by BPI. The JBC shall be
responsible for the initial evaluation of the risk
assessment and risk management strategies
of the applicant for field testing. It shall be
composed of at least five (5) members, three
(3) of whom shall be designated as "scientist-
members" who shall possess scientific and
technological knowledge and expertise
sufficient to enable them to evaluate and
monitor properly any work of the applicant
relating to the field testing of a regulated
article. The other members, who shall be
designated as "community representatives",
shall not be affiliated with the applicant apart
from being members of its IBC and shall be in
a position to represent the interests of the
communities where the field testing is to be
conducted.For the avoidance of doubt, NCBP
shall be responsible for approving the
membership of the IBC for contained use of a
regulated article.
x x x x (Underscoring supplied)
ARTICLE III. ADMINISTRATIVE
FRAMEWORK
xxxx
Section 6. Institutional Biosafety
Committee
The company or institution applying for and
granted permits under this Circular shall
constitute an IBC prior to the contained use,
confined test, or field trial of a regulated
article. The membership of the IBC shall be
approved by the DOST-BC for contained use
or confined test, or by the DA-BC for field trial.
The IBC is responsible for the conduct of the
risk assessment and preparation of risk
management strategies of the applicant for
contained use, confined test, or field trial. It
shall make sure that the environment and
human health are safeguarded in the conduct
of any activity involving regulated articles.
The IBC shall be composed of at least five (5)
members, three (3) of whom shall be
designated, as scientist-members and two (2)
members shall be community representatives.
All scientist-members must possess scientific
or technological knowledge and expertise
sufficient to enable them to property evaluate
and monitor any work involving regulated
articles conducted by the applicant.
The community regresentative must not be
affiliated with the applicant, and must be in a
position to regresent the interests of the
communities where the activities are to be
conducted. One of the community
regresentatives shall be an elected official of
the LGU. The other community representative
shall be selected from the residents who are
members of the Civil Society Organizations
represented in the Local Poverty Reduction
Action Team, pursuant to DILG Memorandum
Circular No. 2015-45. For multi-location trials,
community representatives of the IBC shall be
designated per site. x x x. (Underscoring
supplied)
 5. As to the composition and qualifications of the members of the Scientific and
Technical Review

Panel

PART I ARTICLE III. ADMINISTRATIVE

GENERAL PROVISIONS FRAMEWORK

Section 1 xxxx

Definition of Terms Section 7. Scientific and Technical Review

Panel (STRP) The DA shall create a Scientific
xxxx and Technical Review Panel composed of a
pool of non-DA scientists with expertise in the
EE. "STRP" means the Scientific and evaluation of the potential risks of regulated
Technical Review Panel created by BPI as an articles to the environment and health. x x x
advisory body, composed of at least three
(3)reputable and independent scientists who xxxx
shall not be employees of the Department and
who have the relevant professional The DA shall select scientists/experts in the
background necessary to evaluate the STRP, who shall meet the following
potential risks of the proposed activity to qualifications:
human health and the environment based on
available scientific and technical information. A. Must not be an official, staff or employee of
the DA or any of its attached agencies;
x x x x (Underscoring supplied)
B. Must not be directly or indirectly employed
or engaged by a company or institution with
pending applications for permits covered by
this Circular;

C. Possess technical expertise in at least one

of the following fields: food and nutrition;
toxicology, ecology, crop protection,
environmental science, molecular biology and
biotechnology, genetics, plant breeding,
animal nutrition; and

D. Well-respected in the scientific community

as evidenced by positions held in science-
based organizations, awards and recognitions,
publications in local and international peer-
reviewed scientific journals.

x x x x (Underscoring supplied)

Based on the foregoing, it is apparent that the regulatory framework now applicable in conducting risk
assessment in matters involving the research, development, handling, movement, and release into the
environment of genetically modified plant and plant products derived from the use of modem biotechnology
is substantially different from that which was applied to the subject field trials. In this regard, it cannot be
said that the present case is one capable of repetition yet evading review.
The essence of cases capable of repetition yet evading review was succinctly explained by the Court
in Belgica v. Ochoa, Jr.,106 where the constitutionality of the Executive Department's lump-sum,
discretionary funds under the 2013 General Appropriations Act, known as the Priority Development
Assistance Fund (PDAF), was assailed. In that case, the Court rejected the view that the issues related
thereto had been rendered moot and academic by the reforms undertaken by the Executive Department
and former President Benigno Simeon S. Aquino III's declaration that he had already "abolished the PDAF."
Citing the historical evolution of the ubiquitous Pork Barrel System, which was the source of the PDAF, and
the fact that it has always been incorporated in the national budget which is enacted annually, the Court
ruled that it is one capable of repetition yet evading review, thus:
Finally, the application of the fourth exception [to the rule on mootness] is called for by therecognition that
the preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence. The relevance of the issues before the Court does not cease with the passage of a
"PDAF-free budget for 2014." The evolution of the "Pork Barrel System," by its multifarious iterations
throughout the course of history, lends a semblance of truth to petitioners' claim that "the same
dog will just resurface wearing a different collar." In Sanlakas v. Executive Secretary, the government
had already backtracked on a previous course of action yet the Court used the "capable of repetition but
evading review" exception in order "[t]o prevent similar questions from re-emerging." The situation similarly
holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds
are spent, if not resolved at this most opportune time, are capable of repetition and hence; must not evade
judicial review.107 (Emphases supplied)

Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF are wanting herein.
To reiterate, the issues in these cases involve factual considerations which are peculiar only to the
controversy at hand since the petition for Writ of Kalikasan is specific to the field testing of Bt talong and
does not involve other GMOs.
At this point, the Court discerns that there are two (2) factors to be considered before a case is deemed
one capable of repetition yet evading review: (1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action.
Here, respondents cannot claim that the duration of the subject field tests was too short to be fully litigated.
It must be emphasized that the Biosafety Permits for the subject field tests were issued on March 16, 2010
and June 28, 2010, and were valid for two (2) years. However, as aptly pointed out by Justice Leonen,
respondents filed their petition for Writ of Kalikasan only on April 26, 2012 - just a few months before the
Biosafety Permits expired and when the field testing activities were already over. 108 Obviously, therefore,
the cessation of the subject field tests before the case could be resolved was due to respondents' own
inaction.
Moreover, the situation respondents complain of is not susceptible' to repetition. As discussed above, DAO
08-2002 has already been superseded by JDC 01-2016. Hence, future applications for field testing will be
governed by JDC 01-2016 which, as illustrated, adopts a regulatory framework that is substantially different
from that of DAO 08-2002.
Therefore, it was improper for the Court to resolve the merits of the case which had become moot in view
of the absence of any valid exceptions to the rule on mootness, and to thereupon rule on the objections
against the validity and consequently nullify DAO 08-2002 under the premises of the precautionary
principle.
In fact, in relation to the latter, it is observed that the Court should not have even delved into the
constitutionality of DAO 08-2002 as it was merely collaterally challenged by respondents, based on the
constitutional precepts of the people's rights to infonnation on matters of public concern, to public
participation, to a balanced and healthful ecology, and to health. 109 A cursory perusal of the petition for Writ
of Kalikasan filed by respondents on April 26, 2012 before the Court shows that they essentially assail
herein petitioners' failure to: (a) fully infom1 the people regarding the health, environment, and other
hazards involved;110 and (b) conduct any valid risk assessment before conducting the field trial. 111 However,
while the provisions of DAO 08-2002 were averred to be inadequate to protect (a) the constitutional right of
the people to a balanced and healthful ecology since "said regulation failed, among others, to
anticipate 'the public implications caused by the importation of GMOs in the Philippines"';112and (b) "the
people from the potential harm these genetically modified plants and genetically modified organisms may
cause human health and the environment, [and] thus, x x x fall short of Constitutional
compliance,"113 respondents merely prayed for its amendment, as well as that of the NBF, to define or
incorporate "an independent, transparent, and comprehensive scientific and socio-economic risk
assessment, public information, consultation, and participation, and providing for their effective
implementation, in accord with international safety standards[.]"114 This attempt to assail the
constitutionality of the public info1mation and consultation requirements under DAO 08-2002 and the NBF
constitutes a collateral attack on the said provisions of law that runs afoul of the wdlsettled rule that the
constitutionality of a statute cannot be collaterally attacked as constitutionality issues must be pleaded
directly and not collaterally. 115 Verily, the policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid, absent a clear and unmistakable
showing to the contrary, in deference to the doctrine of separation of powers. This means that the measure
had first been carefuliy studied by the executive department and found to be in accord with the Constitution
before it was finally enacted and approved.116
All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of the Biosafoty
Permits and the completion of the field trials subject of these cases, and with none of the exceptions to the
mootness principle properly attending, the Court grants the instant motions for reconsideration and hereby
dismisses the aforesaid petition. With this pronouncement, no discussion on the substantive merits of the
same should be made.
WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated December 8, 2015 of
the Court, which affirmed with modification the Decision dated May 17, 2013 and the Resolution dated
September 20, 2013 of the Court of Appeals in CA-G.R. SP No. 00013, is hereby SET ASIDE for the
reasons above-explained. A new one is ENTERED DISMISSING the Petition for Writ of
Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental
Protection Order (TEPO) filed by respondents Greenpeace Southeast Asia (Philippines), Magsasaka at
Siyentipiko sa Pagpapaunlad ng Agrikultura, and others on the ground of mootness.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

OVERVIEW OF THE CASE

On 4 May 2006, Argentina filed an Application instituting proceedings against Uruguay concerning alleged
breaches by Uruguay of obligations incumbent upon it under the Statute of the River Uruguay, a treaty
signed by the two States on 26 February 1975 (hereinafter “the 1975 Statute”) for the purpose of
establishing the joint machinery necessary for the optimum and rational utilization of that part of the river
which constitutes their joint boundary. In its Application, Argentina charged Uruguay with having unilaterally
authorized the construction of two pulp mills on the River Uruguay without complying with the obligatory
prior notification and consultation procedures under the 1975 Statute. Argentina claimed that those mills
posed a threat to the river and its environment and were likely to impair the quality of the river’s waters and
to cause significant transboundary damage to Argentina. As basis for the Court’s jurisdiction, Argentina
invoked the first paragraph of Article 60 of the 1975 Statute, which provides that any dispute concerning the
interpretation or application of that Statute which cannot be settled by direct negotiations may be submitted
by either party to the Court.

Argentina’s Application was accompanied by a request for the indication of provisional measures, whereby
Argentina asked that Uruguay be ordered to suspend the authorizations for construction of the mills and all
building works pending a final decision by the Court ; to co-operate with Argentina with a view to protecting
and conserving the aquatic environment of the River Uruguay ; and to refrain from taking any further
unilateral action with respect to the construction of the two mills incompatible with the 1975 Statute, and
from any other action which might aggravate the dispute or render its settlement more difficult. Public
hearings on the request for the indication of provisional measures were held on 8 and 9 June 2006. By an
Order of 13 July 2006, the Court found that the circumstances, as they then presented themselves to it,
were not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional
measures.

On 29 November 2006, Uruguay in turn submitted a request for the indication of provisional measures on
the grounds that, from 20 November 2006, organized groups of Argentine citizens had blockaded a “vital
international bridge” over the River Uruguay, that that action was causing it considerable economic
prejudice and that Argentina had made no effort to end the blockade. At the end of its request, Uruguay
asked the Court to order Argentina to take “all reasonable and appropriate steps . . . to prevent or end the
interruption of transit between Uruguay and Argentina, including the blockading of bridges or roads
between the two States” ; to abstain “from any measure that might aggravate, extend or make more difficult
the settlement of this dispute” ; and to abstain “from any other measure which might prejudice the rights of
Uruguay in dispute before the Court”. Public hearings on the request for the indication of provisional
measures were held on 18 and 19 December 2006. By an Order of 23 January 2007, the Court found that
the circumstances, as they then presented themselves to it, were not such as to require the exercise of its
power under Article 41 of the Statute.

Argentina filed its Memorial and Uruguay its Counter-Memorial within the time-limits fixed by the Order of
13 July 2006. By an Order of 14 September 2007, the Court authorized the submission of a Reply by
Argentina and a Rejoinder by Uruguay. Those pleadings were filed within the prescribed time-limits.

Following public hearings held between 14 September 2009 and 2 October 2009, the Court delivered its
Judgment on 20 April 2010. With respect to Argentina’s argument that projects had been authorized by
Uruguay in violation of the mechanism for prior notification and consultation laid down by Articles 7 to 13 of
the 1975 Statute (the procedural violations), the Court noted that Uruguay had not informed the
Administrative Commission of the River Uruguay of the projects as prescribed in the Statute. The
Administrative Commission of the River Uruguay — commonly referred to by its Spanish acronym “CARU”
— is a body established under the Statute for the purpose of monitoring the river, including assessing the
impact of proposed projects on the river. The Court concluded that, by not informing CARU of the planned
works before the issuing of the initial environmental authorizations for each of the mills and for the port
terminal adjacent to the Orion (Botnia) mill, and by failing to notify the plans to Argentina through CARU,
Uruguay had violated the 1975 Statute.

With respect to Argentina’s contention that the industrial activities authorized by Uruguay had had, or would
have, an adverse impact on the quality of the waters of the river and the area affected by it, and had
caused significant damage to the quality of the waters of the river and significant transboundary damage to
Argentina (the substantive violations), the Court found, based on a detailed examination of the Parties’
arguments, that there was
“no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due
diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or
caused harm to living resources or to the quality of the water or the ecological balance of the river since it
started its operations in November 2007”.

Consequently, the Court concluded that Uruguay had not breached substantive obligations under the
Statute. In addition to this finding, however, the Court emphasized that, under the 1975 Statute, “[t]he
Parties have a legal obligation . . . to continue their co-operation through CARU and to enable it to devise
the necessary means to promote the equitable utilization of the river, while protecting its environment”.