Public Participation in Environmental

Matters in the Philippines: Overview and

Outlook

Weena Gera, UNU-ISP

International workshop on “Public Participation in Environmental Matters in East Asia: Multifaceted

Perspectives”

18 March 2013

United Nations University Institute of Advanced Studies

Yokohama, Japan

Outline

Rationale

Key Question and Objectives

Framework of Public Participation in Environmental

Governance and the Politics of Engagement

National Context: State of Philippine Environment vis-à-vis

Political Economy Constraints

Institutional Framework

Analysis of Issues

Conclusion

Rationale

1 broad rethinking and reassessment of the potential and capacity of the public and civil society in co-managing the environment

- amid enduring relevance of Public Participation in global sustainability strategies (Rio, Rio+20, Aarhus Convention)

- amid a growing anxiety over environmental crises vis-à-vis weak and patrimonial political systems prevalent in developing countries

2 the imperative to analyze the evolving politics of engagement in developing societies that leverage or constrain public participation in environmental matters

�Key Question

How is public participation in environmental

governance defined by the interplay of the

Philippines’ institutional framework with its political economy constraints and

opportunities?

(How are participatory processes organized and negotiated

amid the broad power relations and socio-economic

production prevailing in society?)

Objectives

1 provide an overview of the broad dynamics,

institutionalization, shifting parameters and demarcations of

public participation in environmental governance in the

country

2 analyze the contextual-institutional factors including webs

of relationships, patterns of dependencies, and

contradictions, that affect the extent of, and changing boundaries of public participation in environmental

governance

Framework

Imperatives and Pillars of Public Participation

normative theory of democracy: people empowerment,

collective action, inclusion, articulation and representation

of public interests, insights and capacities

embedded in the basic precepts of good governance framework: voice, participation, decentralization,

transparency, accountability and responsiveness as new

benchmarks for authority and legitimacy

sustainability of initiatives by creating a sense of identity,

ownership and responsibility among the stakeholders

Framework

Risks and Critique of Public Participation

slows down the process/ endless deliberations/ ending in

paralysis

runs the risk of lowering the quality of decisions by

involving people who are unfamiliar with the science of

environment and its uncertainties/ potential of generating

trivial results or an ill-informed consensus

plural and particularistic nature of groups that make up the civil society/conflicting interests, values, methods and

ideological lines among different stakeholders in society

Framework

The Politics of Engagement

public participation in environmental governance is fundamentally and inherently a political process

operates within a particular political context and modes

of socio-economic production

the design of any public participation process reflects

interests, motivations, value choices, networks, resources and the political power of the players to influence those

choices (power relations)

Framework

Shifting Paradigms: From Government to

Good Governance to Developmental Governance

Governance is still predominated by government: “The State is still the

center of considerable political power…” (Pierre and Peters, 2000)

Government

Civil Society

Business

Gera, 2013

Framework

Examine public participation and the politics of

engagement along the three-pillar framework: 1) access to

information; 2) access to decision-making; and 3) access to

justice

Focus on involvement and interactions between the public

and public authorities in environmental matters

Principle 10, 1992 Rio Declaration on Environment and

Development

Section C Points 42-55 of the Rio+20 document “The Future

We Want”

1998 Aarhus Convention

National Context: A Country of Contradictions

Home to an estimate of 95.2

million people (as of 2012, NSCB)

GDP growth of 6.6% in 2012

(highest in SEA)

“Strongest performing

economy in Asia today”

-- Deutsche Bank AG, 2012

National Context

One of the four Tiger Cub Economies in Southeast Asia along with Indonesia, Malaysia and Thailand

One of the best performing stock markets in Asia (as of 2012 along with Thailand) (20x higher than 2010) attributed to investors who are turning “to domestic-oriented economies”

44th largest economy in the world, projected to be the 16th largest economy by 2050 by HSBC - “The World in 2050” (2011)

categorized as one of 26 “fast-growth” countries expected to register an average expansion of more than 5% per year.

“A Star Performer/ A Stand Out Nation”

National Context

Acute Geographical Vulnerability

High risk from earthquakes and rising sea levels and from a projected

increase in severe tropical storms because of its geography and location.

National Context

Vulnerability to Climate Impact

In 2009, the UNISDR rated the

country “very high” among top

countries with the highest

mortality risks from natural

hazards

The World Disaster Report 2012

Philippines ranks as the third

most disaster-prone country in the

world because of its high

exposure to natural calamities

National Context

Battered by tropical

cyclones ranging from

11-32 per year

In 2009 typhoon Ondoy,

Metro Manila acquired a

month’s worth of rainfall

in 6 hours.

Over 26 regions

submerged under water,

Almost 500,000 people

affected Metro Manila, a water world

National Context

In December 2011 typhoon Sendong

in Cagayan and Iligan, 50,000 people

were rendered homeless and more

than a thousand died.

National Context

About 20M Filipinos live in slums – World Bank 2010

The vulnerability of its population to natural and climate disasters is

made worse by high poverty levels (26.5% as of 2009)

National Context

Embedded Political Culture: alliances and factions based in villages bound by kinship, patronage, local bossism, personalities, political exchange, cooptation and political machines (3Gs: Guns, Goons and Gold)

Highly patrimonial – predominated by oligarchic forces who use the state apparatus for private accumulation…

National Context

susceptibility and subservience of bureaucratic agencies to central-local political machineries and patrimonial structures

the personal favor and disfavor of those currently in power is a critical determinant of resource and project allocations

A Fractured Bureaucracy

National Context

A society that remains captured by foreign interests

(high dependence on

foreign capital for its

competitiveness), and dominated by powerful

oligarchies, the country’s natural resources continue

to be utilized in a pattern of ownership and control that is devastating to the

environment (IBON 2006;

Caoili 2005; Bello 2004)

National Context

Philippines’ system of resource use/socio-economic production

collusions between government and private

corporations: illegal and corporate logging, large scale open-pit mining, widespread land use conversion for

commercial and residential purposes, expansion of coal-

fired power plants

active promotion of mining and agribusiness to attract

foreign capital posing significant environmental challenges

National Context

government estimates: forest cover for 2010 at 25.6% of the

country’s total land area (FAO)

Conservation International: forest cover of only seven percent,

ranking the Philippines number four in its list of the World’s 10 Most Threatened Forest Hotspots last February 2012 by

Canatuan open-pit mine (photo courtesy

of TVI Resource Development Philippines)

30% of the country’s total land area has been potentially opened up to

mining investments under the Mining

Act of 1995 (CEC, 2008)

National Context

Degradation of watershed areas

According to 2008 figures, 25% of Philippine watersheds are

not performing at optimal levels due to degradation (European Commission, 2009)

Massive soil erosion

45% or around 13 million hectares of arable land in the Philippines are either moderately or severely eroded (2010 report of Department of Agriculture’s Bureau of Soils and Water Management)

Institutional Framework

Article II, Section 16, of the 1987 Constitution mandated:

“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.”

Comprehensive institutional structure described as among the most progressive in environmental legislation

and democratization in Southeast Asia since 1987

Institutional Framework Access to Information

Article II, Section 28, Declaration of Principles and State Policies (Constitution)

Article III, Section 7, Bill of Rights (Constitution)

No enabling law that provides the mechanics for the implementation of the compulsory

duty to disclose transactions of public interest

Section 5 (e) of Code of Conduct and Ethical Standards for Public Officials and Employees of 1989 (Republic Act 6713)

Section 3 (d); 4 (e, f), Philippine Clean Air Act of 1999 (RA 8749)

Section 3 (c, g) of the National Integrated Protected Areas System (NIPAS) Act (RA 7586)

Freedom of Access to Information Act (pending in Congress)

Judicial Remedy: Petition for Mandamus

Institutional Framework Public Participation in Decision-Making

Article II, Section 23, Declaration of Principles and State Policies (Constitution)

Article X, Section 9(Constitution)

Article XIII, Section 16, Social Justice and Human Rights (Constitution)

Sections 2 (c), 26 and 27, Local Government Code of 1991 (RA 7160)

Sec 41 (C) of LGC, Local Sectoral Representation (LSR) system (no enabling law)

Sec 107-108 of LGC, Local Development Council (LDC)

Environmental Impact Assessments (EIA) PD 1586, 1978/ DAO 2000-05

Indigenous Peoples Rights Act of 1997 (IPRA) Republic Act 8371

Institutional Framework Public Participation in Decision-Making

Disaster Risk Reduction and Management Act of 2010 (RA 10121) Section 1 (d, m); Sec 5; Sec 6 (d)

Philippine Mining Act of 1995 (RA7942), Section 16, 70

Philippine Clean Air Act of 1999 (RA 8749), Sec 4(c, d)

National Integrated Protected Areas System (NIPAS) Act of 1992 (RA 7586) Section 3(d); 3 (g); 13

Wildlife Resources Conservation and Protection Act of 2001 (RA 9147) Section 30

Cave Act of 1992 (RA 9072) Section 2; 5 (f)

Philippine Fisheries Code of 1998 (RA 8550) Section 12, 13, 69, 70-78, 124

Strategic Environmental Plan (SEP) for Palawan Act of 1992 (RA 7611) Section 2, 10,11

Institutional Framework Public Participation in Decision-Making

Philippine Strategy for Sustainable Development (PSSD) 1987

Philippine Agenda 21, 1996

Philippine Council for Sustainable Development (PCSD), 1996 via EO 399

National Biodiversity Strategy and Action Plan, 1997

National Ecotourism Strategy (NES), 2002 EO 111 (2002)

Inter Agency Committee on Climate Change, 1991 AO 220

Institutional Framework

Access to Justice

Petition for Mandamus

2010, the Supreme Court issued the Rules of Procedure for Environmental Cases

Philippine Clean Air Act of 1999 (RA 8749), Section 4 (g, h)

Section 15 of the Indigenous Peoples Rights Act (IPRA) stipulates the State's recognition of indigenous people's “right to use their own commonly accepted justice systems.”

In December 2007, Supreme Court identified and designated 117 special environmental/green courts within the judiciary in the interest of pursuing “improved environmental adjudication.”

Analysis

Basic Premise:

Weakness in accountability and mandate in

representation have resulted to legitimate

participating CSOs largely overwhelmed by the

patrimonial rule of oligarchic elites dominating the

political economy structure of the country

relative strength in public participation in policy-making, but weak in ensuring and monitoring enforcement and implementation, particularly in challenging violations of

environmental legal provisions

Analysis

Predominantly government-defined participation

opportunities, constraints and demarcations of

engagement significantly shift across varying agenda,

priorities, and openness of changing political regimes

GO-CSO partnerships are often contingent upon how much

a CSO or its network can mobilize a mass base; or how much funds it brings in a program; or how much clout it has in a

particular regime vis-à-vis its competition with other CSOs for

access to representation

Analysis

Access to Information

differently and inconsistently applied across government

agencies due to lack of enabling law that provides the

mechanics for the implementation of the compulsory duty to disclose environmental related transactions, therefore

lack of standard process to respond to requests (PCIJ, 2009;

ATIN 2009)

present judicial remedy of mandamus is not readily

accessible to the public

Analysis

Access to Decision-Making

How much civil society participation in decision-making

holds, in the context of a fragmented bureaucracy and

overlapping agencies (e.g. IACCC vs CCC vs PTFCC)

Participatory land use planning not used for Zoning Ordinance, not integrated into the annual and medium-

term fiscal planning cycle of local governments

government’s extensive use of informal, back channel, under the table, midnight negotiations that are beyond the

reach of civil society

Analysis

Access to Decision-Making

Issues of Representativeness, Civil Society Fragmentation and

Cooptation: competing political factions extend their

differences to their selection of CSO “allies” to partner with. NGOs critical of the administration could sometimes gain

stronghold when politically backed by the opposition.

lack of formal mechanisms for debate and discussions and

lack of clear accountabilities and mandate among

participating groups: who has the right to say over what agenda

or who should be involved at what point in the process of

environmental decision-making

Phenomenon of bogus NGOs/politically manufactured

Analysis

Access to Decision-Making

international NGOs could have more clout in influencing

policy because they have more funding: short-term projects

and thus make environmental programs more ad hoc rather

than institutionalized

Lack of technical know-how among community-based

organizations: poor to lower middle class are more focused on livelihood activities

FPIC as a mechanism of voice and representation for IPs

could only subject them to violence and intimidation: tribal leaders caught in structures of patronage and bribery, fuelling

ethnic tensions

Analysis

Access to Justice

No special procedures for the 117 designated special

environmental/green courts; continue to be loaded with

regular cases; environmental cases dismissed due to failure to

exhaust administrative remedies

General Lack of information about the judicial system

Political intimidation and SLAPP cases against environmental

defenders (particularly by mining corporations)

Judicial deference to the strong powers of executive: reversal

of SC decision on constitutionality of the Mining Act of 1995

Analysis

Access to Justice

Executive interference to legislation: executive and

administrative orders designed to “harmonize” existing laws in conflict with the Mining Act (IPRA, NIPAS, LGC, EIA)

- Philex allowed to resume operations, after it has been shut down due

to a massive tailings spill (20 million metric tons of mine waste) in 2012

- Xstrata, was given an ECC after the Office of the President rebuked

the environment bureau for withholding it

Despite IPRA, 60% of all approved mining applications in the

country covering up to more than one million hectares, are all in

the ancestral lands of indigenous peoples.

Katribu in Northern Dispatch Weekly, 2013

Conclusion

How CSOs can consolidate

their ranks to become more

viable and compelling

counterparts of the government, and gain a

more solid challenge against

oligarchic forces controlling

the state?

CSO resilience vis-à-vis public

participation as an inevitable paradigm in global democratic imperatives