Session 4 Legal Frameworks and Jurisdictions

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9 Νοε 2013 (πριν από 3 χρόνια και 9 μήνες)

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Session 4

Legal Frameworks and Jurisdictions

By the end of this session, we will be able
to:



Identify relevant legal frameworks to the conservation strategy of
the campaigns.





Communicate the political and institutional structures, including the
levels of government, political process, and the roles of academia and
the private sector in coastal resource management.

Session Objectives and Outputs




Identify and apply relevant legal frameworks to the conservation
strategy of the campaigns.





Communicate the political and institutional structures, including the
levels of government, political process, and the roles of academia and
the private sector in coastal resource management.

Session Objectives and Outputs


Selected Philippine Legal
Frameworks related to CRM



Pre
-
colonial period


Philippines under Spain


The American period


The Martial Law Period


Post
-
EDSA Period


Present Regime



Part One



Identify relevant legal
frameworks to the
conservation strategy of
the campaigns.



Session Objectives and Outputs


Pre
-
colonial Philippines


Concept of
communal property
under a
datu
/village chieftain



Customary laws on fishing

7

The Spanish Period

Jura regalia: the Philippines under the Spanish Crown

“Law of Waters” of 1866, extended by the Spanish Royal Decree of August 8,
1866 during the reign of Queen
Esabella

II, which made classifications of
public waters or of public ownership

8

Protection of Fish and
Game Act of 1916


The first legislation on biodiversity
protection in the Philippines

9

The American Period

Republic Act 3915 of 1932

Proc. No. 552 on 23 February 1933

10

Lighthouse at the mouth of Pasig River & Filipino
Salambao

fishing boats

From the University of Michigan, Special Collections Library


Classified public fisheries according to
their government and disposition:
national, municipal and reserve
fisheries. Falling under national fisheries
are: 1) deep sea or offshore fishing; 2)
marine
mollusca

fisheries; 3) sponge
fisheries; 4)
hawksbill turtle
fisheries
; and 5) inland fisheries.


Under municipal fisheries is within
three nautical miles
at most from
the shoreline of the municipality.

The American Period

Fisheries Act of 1932 (Act No. 4003)

11

The Martial Law Period

Fis
hery

Code of 1975 (PD 704)


Promoted and encouraged the
maximum economic utilization
of fishery resources
.


Encouraged and promoted the
exportation

of fish and fishery
aquatic products
.


Mandated a policy of
accelerated
fishpond development and
promoted the decline of mangrove
forests.




Parallel trends in declining mangrove area (A) and municipal fisheries
production (B) and increasing
brackishwater

pond area (A) and
aquaculture production (B) in the Philippines, 1976
-
1998 (Primavera,
2004)


The Post
-
EDSA Period

Fisheries Code of 1998 (Republic Act No. 8550)

12


Declared policy to limit access to the fishery and aquatic resources of the
Philippines for the
exclusive use and enjoyment of Filipino citizens.





Principle of policy is the protection of municipal fishermen. The law stipulated that
fishery and aquatic resources shall be managed in a manner consistent with the
concept of integrated coastal area management.





Fisheries Code of 1998 (Republic Act
No. 8550)

13






Fisheries are classified in municipal fisheries, i.e. fishing in municipal
waters, and commercial fishing.




The Department of Fisheries (sic) may designate areas in Philippine
waters
beyond 15 kilometers of the shoreline as
fishery reservation or
fish refuges and sanctuaries in bays, foreshore lands, continental shelf or any
fishing ground to be set aside for the cultivation of mangroves to strengthen
the habitat and the spawning grounds of fish.




The Code therefore mandates the setting aside of at least
15% of
municipal waters for fish sanctuaries
and allows
at least 25 but not
more than 40% of fishing grounds
beyond municipal waters for fish
sanctuaries or mangrove reserves (
Uychiaoco
,
Arceo
,
Aliño

and Cheung, 2002).



Post
-
EDSA Period

Republic Act 7586 The National
Integrated Protected Areas
System (NIPAS) Act, 1992


Fundamental law that defines the

processes in establishing and

managing protected areas

14

Since the enactment of the
NIPAS Act in 1992, only 12
protected areas have been
finally declared by the
Congress.


Gatumbato
, 2010 pers. comm.

CRM Frameworks

From 1975
-
2000

15

EO 533


Integrated Costal
Management (ICM)


ICM and related approaches shall be the
national policy framework. ICM shall be
implemented in all coastal and marine
environment and resources in order to
achieve food security, sustainable livelihood,
poverty alleviation and reduction.

16

Institutions and Jurisdictions in Coastal Zone
Management

COASTAL

ZONE

MANAGEMENT

CONCERNS/ACTIVITIES

JURISDICTIO
N

INSTITUTIONS

MANDATED

TO

ADDRESS

CONCERN/S

Land

tenure

for

local

communities

DENR,

NCIP

(in

the

case

of

indigenous

peoples)

Delineation

of

municipal

waters

and

fishing

grounds

NAMRIA,

LGU,

FARMC

Policy

formulation

LGU,

FARMC,

NGA,

DENR

Resource

assessments

Coastal

and

Marine

DA
-
BFAR,

DENR,

PCAMRD

Statistics

gathering

Fisheries

DA
-
BAS

Mangroves

DENR

Fishponds

DA
-
BFAR

Establishment

of

protected

areas

LGU,

DA
-
BFAR,

DENR,

Congress

Mangrove

reforestation

LGU,

DENR

Fishery

licensing

Municipal

waters

LGU

Offshore

waters

DA
-
BFAR

Aquaculture,

Mariculture

DA
-
BFAR,

LGU

Fishery

law

enforcement

LGU,

PNP
-
MARIG,

PCG,

DA
-
BFAR,

deputized

fish

wardens,

Philippine

Navy,

DENR

Pollution

law

enforcement

LGU,

PCG,

DENR

Land

use

management

LGU,

DENR,

DAR

Tourism

management

LGU,

DOT,

DENR

Reclamation

DENR

(LMB

and

EMB),

PEA

Pollution

monitoring,

including

marine

waters

LGU,

DENR
-
EMB,

PCG

Establishment

of

municipal/fishing

ports

PFDA,

PPA,

LGU

Research

DA
-
BFAR,

DA
-
BAR,

DOST
-
PCAMRD

Foreshore

use

and

occupation

LGU,

DENR

Conflict

Resolution

LGU,

FARMCs



[
1]

National Commission on Indigenous Peoples

[2]

National Mapping and Resource Information Authority

[3]

refers to local government unit, such as municipality or
city

[4]

Fisheries and Aquatic Resources Management Council

[5]

refers to national government agency, such as DENR
or DA

[6]

Philippine Council for Aquatic and Marine Research
and Development, one of the
sectoral

planning councils
under the Department of Science and Technology
(DOST)

[7]

Bureau of Agricultural Statistics

[8]

Philippine National Police
-
Maritime Group

[9]

Philippine Coastguard

[10]

Department of Agrarian Reform

[11]

Department of Transportation

[12]

Land Management Bureau under the DENR

[13]

Environmental Management Bureau

[14]

Philippine Estates Authority

[15]

Philippine Fisheries Development Authority

[16]

Philippine Ports Authority

Module 3, Unit 1

18

Relevant Law

Area assigned to
municipal fishers

Area assigned to
commercial fishers


Commonwealth
Act 4003' (1932)


Less
than 5.5 km from
shoreline


Beyond
5.5 km from
shoreline 200
m
from any fish
coral

PD 704 (1975)

Less than 7 km from
shoreline; less than 7 fathoms
from deep

Beyond 7 km and deeper
than 7 fathoms

RA 7160 (1991)

15 km from shoreline
(
dabatable
)
1


15 km beyond shoreline
(debatable)2

RA 8550 (1998)

15 km from shoreline with
option to allow commercial
fishing from 10.1 to 15km

Beyond 15km with option to
seek permit from 10.1 to
15km

1Also
known as Fisheries Act of
1932

Historical perspective on laws affecting zoning of
municipal waters

Part 2


Communicate the political and institutional structures, including the

levels of government, political process, and the roles of academia and

the private sector in coastal resource management.

Session Objectives and Outputs


Hierarchy of Legal Frameworks

20

The Philippine
Constitution

International
Treatises/Agreements
(
e.g

Republic Acts, Presidential
Degrees issued during Marcos
era and Executive Orders by
C. Aquino prior to 1987
Constitution)

Administrative Issuances
to
Implement National Laws (PD,
LOI, EO, AO, MC)

Ordinances by LGUs
(may
supplement, but must not
contradict any national law)

Philippine Constitution of 1987


Art. II, Sec. 15 & 16: The State shall protect and promote the
right to health of the people; the State shall protect and advance
the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.


Art. XII, Sec. 2: The exploration, development, and utilization of
natural resources shall be under the full control and supervision
of the State. The State shall protect the nation’s marine
wealth,… and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.


Art. XIII, Sec. 7: The State shall protect the rights of subsistence
fishermen, especially of local communities, to the preferential
use of the communal marine and fishing resources, both inland
and offshore. It shall provide support to such fishermen through
appropriate technology and research… and other services.


Art. XIII: The right of the people and their organizations to
effective and reasonable participation at all levels of social,
political, and economic decision
-
making shall not be abridged.






21

22

Philippine Governance System

23

Court decisions apply to ICM in relation
to the Constitutional authority of courts


Oposa

et al., vs.
Factoran

et al.,
upholding the right to a healthy
environment while applying the
intergenerational equity principle


Tano

et al., vs. Socrates et al.,
recognizing the rights of local
government units to enact ordinances
pursuant to the constitutional right to a

balanced and healthful ecology

Role of the Judiciary

24

Provided several legal remedies:



Writ of
Kalikasan

Immediate and specific set of remedies which may be availed when
constitutional right to a balanced and healthful ecology is violated,
involving environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces
.


Writ of Continuing Mandamus

May be availed of to compel the performance of an act specifically
enjoined by law



Strategic Lawsuits against Public Participation (SLAPP)

Persons or organizations can immediately file a counter case to serve as a
defense against SLAPP which filed by individual, organizations or
corporations.



Precautionary Principle

Courts can issue Environmental Protection Order (EPO) which directs or
enjoins any person or government agency to perform or desist from
performing an act in order to protect, preserve or rehabilitate the
environment.

Judiciary reforms

Rule of Procedure for Environmental Cases, 2010

25

Can dolphins sue?

Yes,

they
may sue.

RA 7160


Local Government Code


Concretizes the constitutional policy on
government decentralization and
democratization.




Gives
primary management
responsibilities to local government units.


Thus,
coastal

municipalities and cities are now at the forefront of
coastal

zone
management
.


Greater fiscal autonomy through various powers to levy certain taxes, fees or
charges.


The law also provides for
people’s direct participation in the planning and
implementation of resource management plans
, thus, establishing a system
where local communities, non
-
government organizations (NGOs), academic and
scientific institutions can become partners of the local government units.


26

Module 3, Unit 1

Role of National Agencies

DENR

Various roles in policymaking, planning, conservation and protection,
permitting and licensing, mapping, rehabilitation, enforcement and
conservation.


DA
-
BFAR

Mandated to develop, conserve and maintain the sustainable fishery and
aquatic resources. Issues commercial fishing licenses, monitors trade of
aquatic resources, enforces fishery laws and formulate policies, rules
and regulations, except municipal waters.


DILG

The Philippine National Police has the general responsibility over the
enforcement of the Fisheries Code and other fishery laws and
regulations.


DOTC

Primary role in prevention and control of marine pollution and in
control over navigational lanes and enforcement of laws in the

high seas
.

Juinio
-
Menez,Butardo
-
Tibio
, Perez,
Pollisco
,
2007

28




Implement the national strategic framework on ICM


Assist with management of resources and areas
under the mandate of BFAR (e.g., fisheries of all
kinds, fishing techniques, stock assessment and
aquaculture)


Provide technical guidance in coastal management
planning and implementation


Assist in training of LGUs and community
stakeholders


Provide legal assistance to LGUs and community
members/stakeholders for fisheries
-
related law
enforcement

Role of the DA
-
Bureau of Fisheries
and Aquatic Resources

29


Coordinate with BFAR on fisheries management and policy
formulation and national strategic framework


Assist with management of resources and areas under the mandate
of DENR (e.g. mangroves, water quality, foreshore management,
quarrying and protected areas)


Provide financial assistance in specific projects of DENR mandate


Provide technical guidance to local government units in coastal
management planning and implementation


Assist in training of LGUs and community stakeholders


Identify and implement alternative or supplemental livelihood for
coastal communities


Provide legal assistance to LGUs and community
members/stakeholders for environmental law enforcement

Role of the Department

of
Environment and Natural Resources

General Responsibilities of LGU in
CRM


Require government agencies to consult them in the
issuance of permits and tenure instruments within
their localities (e.g. Sections 26 and 27, LGC, EIS
System).


Enforce national laws and use local legislative powers
to regulate coastal and marine resources utilization
and development (e.g. RA 8550, RA 9147, RA 7942,
RA7076).


Enact comprehensive land
-
use plan and integrated
zoning ordinances (LGC,HLURB guidelines).


Supplement setback zones with additional safety zones
in the coastal zone (Section 51 of the Water Code).


Prescribe procedure for summary abatement of
nuisance (Articles 694, 699 and 701 of Civil Code) or
building and structures that fail to conform with safety
regulations (Section 214 and 215 of Building Code).

30

Juinio
-
Menez,Butardo
-
Tibio
, Perez,
Pollisco
,
2007

Planning and Taxation



Develop a coastal environmental profile with maps for planning;



Implement revenue generation mechanisms through licenses, fees and taxes


Budget and Fund Appropriation


Implement ICM plans through yearly operational plans and budget;



Provide budget and dedicated personnel for planning and implementation;



Networking and
Linkaging



Provide overall facilitation and coordination for planning and implementation;


Collaborate with province, other municipalities or cities and national agencies to
develop multi
-
municipal ICM plans as required for special management areas


Share ICM practices with constituents and other LGU learners


Network and collaborate with local and international funding institutions for ICM
implementation




Evolving Role of the Municipal/City
Local Government

Units

LGU Governance Mechanism

The Municipal/City Fisheries and Aquatic Resources
Management Councils (M/CFARMCs).

RA 8550 Section 73
mandate the creation in each of the municipalities and cities abutting
municipal waters.



Optional
-

Barangay

Fisheries and Aquatic Resources Management Councils (BFARMCs) and the
Lakewide

Fisheries and Aquatic Resources Management Councils (LFARMCs)


32

Functions of the M/CFARMCs

(a) assist in the preparation of the Municipal Fishery Development Plan and submit such
plan to the Municipal Development Council;

(b) recommend the enactment of municipal fishery ordinances to the
sangguniang

bayan
/
sangguniang

panlungsod

through its Committee on Fisheries;

(c) assist in the enforcement of fishery laws, rules and regulations in municipal waters;

(d) advise the
sangguniang

bayan
/
panlungsod

on fishery matters through its Committee on
Fisheries, if such has been organized; and

(e) perform such other functions which may be assigned by the
sangguniang

bayan
/
panlungsod
.

Law Enforcement mechanism

The environmental protection teams


Assisting the LGUs in fishery enforcement
functions, the
Bantay

Dagat

members may be
deputized after receiving formal training in
coastal law enforcement.




In addition, Municipal and/or City Fisheries and
Aquatic Resource Management Council
(M/CFARMC) members may also be deputized
as fish wardens to assist in the enforcement of
fishery laws, rules and regulations in municipal
waters.




33

ADB


Develop and implement policy and planning framework for CRM in
province


Provide technical assistance to municipalities and cities for coastal
management planning and implementation


Monitor all coastal management activities and results in province


Provide financial incentives for coastal management based on results of
monitoring


Assist the national government in developing and implementing policy and
planning framework for CRM in the country



Optional creation of provincial environment office




Evolving role of the
Provincial
Government

Capacity building and support



Develop capability of local DA staff through training and practice;



Conduct information, education and communication and training



Support participatory coastal resource assessments for each
barangay
;



Identify and implement alternative or supplemental livelihood for coastal
communities, and



Support organization and mandate of municipal and
barangay

FARMCs


Policy formulation and enforcement


Develop and adopt a multi
-
year and strategic integrated coastal management
plan;


Support CRM plan implementation through appropriate ordinances;


Incorporate appropriate coastal management best practices in CRM plan;


Enact comprehensive fisheries management ordinance;


Support law enforcement units as required



Possible creation a city/municipal environment office.


Evolving Role of the
Municipal/City Local
Government

Units

36


Data gathering and profiling


Collaborative planning, implementation and monitoring


Participation in FARMC,
bantay

dagat

and other organizations


Formulation of resolutions on CRM and enterprise for
submission to municipality

Evolving role of the
Local Government

Unit
-

Barangay

37


Participate in all ICM planning sessions in all levels of local
government (
barangay
/municipality/city/province)


Provide members to
barangay

and municipal FARMCs


Participate in stakeholder management organizations


Volunteer for coastal management implementation activities (i.e., law
enforcement, fisheries monitoring and sanctuary establishment and
management, etc.)


Initiate IEC activities in the community

Evolving role
of the
community
stakeholders and
people’s organizations

38


Provide assistance at the community and
barangay

level to
organize FARMCs and other resource management organizations


Provide technical services to LGUs for implementing community
level interventions


Provide information and education services at the community and
municipal level


Assist with monitoring biophysical and socioeconomic indicators


Provide a conduit for financial assistance to LGUs for coastal
management.



Provide environmental legal assistance to M/LGU.

Evolving role of the
n
on
-
government
organizations (NGOs)



Assist to analyze information for coastal environmental profiles


Assist to design and implement a monitoring program for biophysical,
socioeconomic and legal
-
institutional indicators in ICM for LGUs


Assist to integrate existing data and information into ICM plans


Assist in formulating CRM/ICM plans and packaging of project proposals


Provide assistance in designing and maintaining a management information system
and database for coastal management


Assist to design coastal management projects for multi
-
municipal management
areas


Assist in training of LGUs and communities


Assist in designing IEC and community development programs and strategies for
LGUs, NGOs and POs

Evolving role the
Academic Institutions

Conclusion


In the
Phils
, there are many agencies doing
ICM activities


As there are many laws, there are some grey
areas.


There are many stakeholders in ICM activities.

40