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Session 4 Legal Frameworks and Jurisdictions

Session 4 Legal Frameworks and Jurisdictions

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Session 4 Legal Frameworks and Jurisdictions. Session Objectives and Outputs. By the end of this session, we will be able to: Identify relevant legal frameworks to the conservation strategy of the campaigns.  - PowerPoint PPT Presentation

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Page 1: Session 4 Legal Frameworks and Jurisdictions

Session 4Legal Frameworks and Jurisdictions

Page 2: 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

Page 3: Session 4 Legal Frameworks and Jurisdictions

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

Page 4: Session 4 Legal Frameworks and Jurisdictions

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

Page 5: Session 4 Legal Frameworks and Jurisdictions

Part One

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

Session Objectives and Outputs

Page 6: Session 4 Legal Frameworks and Jurisdictions

Pre-colonial Philippines Concept of communal property

under a datu/village chieftain

Customary laws on fishing

Page 7: Session 4 Legal Frameworks and Jurisdictions

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The Spanish PeriodJura 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

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Protection of Fish and Game Act of 1916

The first legislation on biodiversity protection in the Philippines

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The American PeriodRepublic Act 3915 of 1932

Proc. No. 552 on 23 February 1933

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Lighthouse at the mouth of Pasig River & Filipino Salambao fishing boatsFrom 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 PeriodFisheries Act of 1932 (Act No. 4003)

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The Martial Law PeriodFishery 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)

Page 12: Session 4 Legal Frameworks and Jurisdictions

The Post-EDSA PeriodFisheries Code of 1998 (Republic Act No. 8550)

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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.

Page 13: Session 4 Legal Frameworks and Jurisdictions

Fisheries Code of 1998 (Republic Act No. 8550)

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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).

Page 14: Session 4 Legal Frameworks and Jurisdictions

Post-EDSA PeriodRepublic Act 7586 The National Integrated Protected Areas System (NIPAS) Act, 1992

Fundamental law that defines the

processes in establishing and

managing protected areas

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Since the enactment of the NIPAS Act in 1992, only 12 protected areas have been finally declared by the Congress. Gatumbato, 2010 pers. comm.

Page 15: Session 4 Legal Frameworks and Jurisdictions

CRM FrameworksFrom 1975-2000

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Page 16: Session 4 Legal Frameworks and Jurisdictions

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.

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Page 17: Session 4 Legal Frameworks and Jurisdictions

Institutions and Jurisdictions in Coastal Zone Management

COASTAL ZONE MANAGEMENT CONCERNS/ACTIVITIES

JURISDICTION

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, DENRResource assessments Coastal and

MarineDA-BFAR, DENR, PCAMRD

Statistics gathering Fisheries DA-BASMangroves DENRFishponds DA-BFAR

Establishment of protected areas

LGU, DA-BFAR, DENR, Congress

Mangrove reforestation LGU, DENRFishery licensing Municipal

watersLGU

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, DARTourism management LGU, DOT, DENRReclamation DENR (LMB and EMB), PEAPollution 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

Page 18: Session 4 Legal Frameworks and Jurisdictions

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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

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Part 2Communicate 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

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Hierarchy of Legal Frameworks

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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)

Page 21: Session 4 Legal Frameworks and Jurisdictions

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.

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Philippine Governance System

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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 abalanced and healthful ecology

Role of the Judiciary

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Provided several legal remedies:• Writ of KalikasanImmediate 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 MandamusMay 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 PrincipleCourts 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

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Can dolphins sue?

Yes, they may sue.

Page 26: Session 4 Legal Frameworks and Jurisdictions

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.

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Page 27: Session 4 Legal Frameworks and Jurisdictions

Module 3, Unit 1

Role of National AgenciesDENR

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

DA-BFARMandated 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.

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

DOTCPrimary role in prevention and control of marine pollution and in control over navigational lanes and enforcement of laws in thehigh seas.

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

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• 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

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• 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

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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).

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

Page 31: Session 4 Legal Frameworks and Jurisdictions

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

Page 32: Session 4 Legal Frameworks and Jurisdictions

LGU Governance MechanismThe Municipal/City Fisheries and Aquatic Resources Management Councils (M/CFARMCs).RA 8550 Section 73 mandate the creation in each of the municipalities

and cities abutting municipal waters.

Optional - Barangay Fisheries and Aquatic Resources Management Councils (BFARMCs) and the Lakewide Fisheries and Aquatic Resources Management Councils (LFARMCs)

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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.

Page 33: Session 4 Legal Frameworks and Jurisdictions

Law Enforcement mechanismThe 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.

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Page 34: Session 4 Legal Frameworks and Jurisdictions

• 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

Page 35: Session 4 Legal Frameworks and Jurisdictions

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

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• 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

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• 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

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• 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 non-government organizations (NGOs)

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• 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

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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.

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