Environmental Justice Issues Environmental Justice Issues faced by faced by

Civil Society GroupsCivil Society Groups

by: Atty. by: Atty. GrizeldaGrizelda ““GerthieGerthie”” MayoMayo--AndaAndaArea Manager for Area Manager for PalawanPalawan

Environmental Legal Assistance Center, Inc. (ELAC)Environmental Legal Assistance Center, Inc. (ELAC)

ENVIRONMENTAL LEGAL ASSISTANCE CENTER

Standing to SueCosts of

Litigation and Securing Technical Expertise

Harassment suitsagainst

community and civil society

group membersCustody and Release of Seized Articles

Delays in the Investigation and

Prosecution of Cases

Failure of Administrative

Agencies and Local Government Units to

implement Environmental Laws ENVIRONMENTAL

JUSTICE ISSUES faced by civil

society

ENVIRONMENTAL LEGAL ASSISTANCE CENTER

Failure of Administrative Agencies and LGUs to

Implement Environmental Laws

• Absence or lack of implementing regulations or guidelines

– Fisheries Code or RA 8550 (determining municipal waters of island municipalities, quarrying of white sand and pebbles in areas that make up a marine habitat, fisherfolksettlement areas, reversion of abandoned, underutilized or unutilized fishponds)

– Mining Act or RA 7942 (small scale mining by non-cooperatives or large scale corporations)

Failure of Administrative Agencies and LGUs to

Implement Environmental Laws• Weak monitoring mechanisms (eg. MMTs for

mining activities are not transparent, provincial mining regulatory board or PMRB lack funds and monitoring staff)

• Local zoning plans or comprehensive land use plans conflicting with national environmental laws (eg. Mining in natural forests, ancestral domains, community-based forest management agreement or CBFMA areas)

Limestone quarry in Gotok, Sandoval, Bataraza

Small scale mining operations in Narra, Palawan(photo by Palawan NGO Network, Inc.)

(Distant view of small scale mine site; Photo by CI)

Expansion of mining activities are being pursued in the Bulanjao range which is still covered with old growth and second growth forests. (Photo by CI)

Rich and influential businessmen employ local Rich and influential businessmen employ local community members as paid laborers in mangrove community members as paid laborers in mangrove ““debarkingdebarking”” activities.activities.

Mangrove Mangrove Debarking in Debarking in CanipaanCanipaan, , RizalRizal, , Southern Southern PalawanPalawan

Failure of Administrative Agencies and LGUs to

Implement Environmental Laws

• Permits or licenses allowing the use of natural forests or key biodiversity areas (eg. Commercial crop plantation, mining, tourist resort complex)

• Non-participatory/top-down ordinances on marine reserves and protected areas (eg. within ancestral territories)

Standing to Sue

• Need to test the limits of the landmark case on the standing of citizens in environmental litigation (Oposa, et al. vs. Factoran, 224 SCRA 792; 1993)

• Citizen’s suit provided only in Clean Air Act (RA 8749) and Ecological Solid Waste Management Act (RA 9003)

• Discretionary on the part of the judge: There are judges who believe that the Oposa doctrine is applicable only in civil cases.

Standing to Sue

• Determining Offended Party in Criminal Cases– Important for government agencies involved

in the filing of cases to coordinate and come up with a unified position/strategy

• ISSUE: WHO SHOULD BE THE OFFENDED PARTY or WHO SHOULD REPRESENT THE STATE AS OFFENDED PARTY.

Case against Chinese Case against Chinese PoachersPoachers

(Source: PCSDS/Atty. Adel Villena)

Costs of Litigation and Securing Technical

Expertise

• Costs of filing fees, injunction bonds and TROs deter local communities from initiating legal actions

• Need for an available, locally-based science group whose expertise can be tapped, whenever needed

Harassment Suits

• SLAPP (Strategic Litigation against Public Participation) provisions exist only in the Clean Air Act and Ecological Solid Waste Management Act

• Civil Society’s Use of “metalegal”remedies (Media, Multisectoralinvestigations, Community mobilizations,Petitions, Dialogue)

Delays in the investigation and prosecution of cases

• Complaints lodged before the Ombudsman against government officials and personnel take years to resolve

• Lack of prosecutors and judges, especially in island-municipalities

• Waning interest of witnesses• Lack of resources to fund travel, food

and lodging of witnesses

Case Study: Enforcement of Fishery Laws in Calamianes

Region, Palawan

• Out of 14,037 Cases of Dynamite and Cyanide Fishing Detected, only 40 Arrests were made in 4 years

• Only 21 Cases reached the Trial Stage

• 5 Convictions, No Jail Time

Custody and Release of Seized Articles

• Arbitrary release of seized tools, articles and paraphernalia used in environmental crimes

• Can civil society groups who have invested time and resources in enforcement activities be allowed to take temporary custody of certain seized items while cases are pending? ---- need for clear guidelines from DENR and concerned administrative agencies

Some Initiatives

Using Administrative Remedies

• CANCELLATION OF PERMITS OR LICENSE

• REHABILITATION OR RESTORATION• CONFISCATION OF TOOLS and ARTICLES

USED IN ENVIRONMENTAL CRIMES • CEASE AND DESIST ORDERs (CDO),

Orders of Demolition (Eg. illegal fishpond development

Multisectoraldemolition of illegal fishpond dikes

Strengthening Administrative Adjudication

• Local Legislation– Ordinance authorizing the adjudiction of cases by

LGU’s executive branch or by another body created for the purpose

• BFAR licensing system• DENR adjudication (under EIA system,

forestry violations, permits/licenses)• PCSD Adjudication Board

RESEARCH INITIATIVES ONENVIRONMENTAL

ADJUDICATION

[undertaken by Tanggol Kalikasan (TK), Environmental Legal Assistance Center (ELAC) and Paglilingkod Batas Pangkapatiran Foundation (PBPF)]

Current Research Initiatives

• Baseline studies on the number of pending cases, their nature and status

• Studies on specific environmental laws• Studies of offenders• Studies on success rates in prosecuting

environmental crimes • Studies on court procedures and processes• Case study compilations• Studies of court decisions, judicial review• Confiscated Logs and conveyance inventory

study

Some Findings

• PBPF: Courts are not considered a venue for seeking redress for environmental crimes

• ELAC: From a broad perspective, the study shows that only 0.3 percent of violations detected result in court cases; the figure would be much lower if undetected violations are factored in. This implies that, there could be bigger problems in enforcement (detection/prosecution) than in adjudication.

Some Findings

• TK study shows high conviction rate for fisheries crimes; Closer look reveals easy plea bargaining and low fines provides incentive to “settle”case, then commit crime again.

Some Findings

• Several opportunities to improve court procedures to facilitate adjudication of fisheries and forestry cases: – Enforce rules on disposition of logs under litigation

(currently, this is not uniformly applied)– Issue rules on custody of fishing gear [not to be

released – economic disincentive to repeat offense].– Clarify rules on injunction against DENR administrative

proceedings– Court designation of trained judges in high-incidence

areas or environmental crime hotspots– DOJ designation of trained prosecutors in areas of high

incidence of violations or environmental crime hotspots.

Let us protect and conserve our environment

“We did not inherit the Earth and its natural resources from our ancestors. We borrowed these from our

children.” --- Anonymous