Monday, January 2, 2012

The Iligan Brief

Subject: CASE BRIEFING ON THE POSSIBLE SUIT AGAINST LGUs FOR ENVIRONMENTAL RECKLESSNESS

I. THE ANTECEDENT FACTS

1. On December 13, 2011, Tuesday, PAG-ASA notified its media partners of tropical cyclone formed near Guam, which was still too far to affect the Philippines.

2. On December 14, 2011, Wednesday, PAG-ASA forecasted that a tropical depression over the Pacific was expected to enter to enter the Philippine Area of Responsibility (PAR) by December 15 Thursday morning. It warns that it will affect Visayas and Mindanao. It warned to take all precautionary measures.

3. On December 15, Thursday, PAG-ASA issued the following advisories:

2:00 A.M.: The tropical depression was at 1,100 km east of Mindanao with maximum winds of 55kph.
10:00 A.M. : Weather Bulletin No.1 – the tropical depression has entered the PAR and was named “SENDONG.”
11:00 A.M.: Severe Weather Bulletin No. 1 – 840 km Eaast Southeast of Hinatuan, Surigao del Sur (Expected to be 300 km East Southeast of Surigao City on Friday morning)

(At the same time, NDRRMC echoes/posts Advisory on PAG-ASA SWB No. 1.)

5:00 P.M.: Severe Weather Bulletin No. 2 – Sendong has intensified into a tropical storm as it moves to Northeastern Mindanao

Public Storm Warning Signal no. 1 was in effect at Surigao del Norte, Surigao del Sur, Dinagat prov., Agusan provice and Misamis Oriental.
11:00 P.M.: Severe Weather Bulletin No. 3 –Signal No. 1 was in effect at Lanao Provinces, Misamis Occidental and Zamboanga Provinces.

4. Also on December 15, at 11 A.M., NDRRMC issues flood advisory to all chairmen, RDRRMCs, PDRRMCs, OCDRCs I, II, III, IV-A, IV-B, V, VI, VII, VIII, IX, X, XI, XII, CAR, CARAGA, ARMM and NCR. NDRRMC ordered the Local DRRMCS to undertake precautionary measures in their Areas of Responsibility. It emphasized on proactive actions – initiate pre-emptive evacuation of families rather than rescue, particularly, of families in low-lying and mountainous areas if situation warrants."

(Source: Official Gazette: PAG-ASA & NDRRMC Sendong advisory timeline)

5. On December 16, Friday night, Storm Sendong was slashing through northern Mindanao, with unsuspecting residents fast asleep in their homes. There was no known "pre-emptive evacuation" that took place.

6. On December 17, early Saturday morning, the full force of Sendong in the major population centers of Cagayan de Oro and Iligan City began to be felt.

7. Sendong unleashed flashflood on river communities affecting thousands of Iliganons. As of December 30, 2011, the Disaster Command Center of Iligan City has accounted the following:

Death - 490
Missing - 390
Families affected - 19,449
Dependents affected - 91,015
Houses totally damaged - 4,444
Houses partially damaged - 11,263

(See Updated Summary Report prepared by the Disaster Command Center of Iligan City)

8. Aside from the heavy rainfall brought by Sendong, other factors were blamed that aggravated its effect, making it the world’s deadliest storm for 2011. Some of which are the local government’s complacency and lack of disaster preparedness, and mining and logging operations.

9. The City Government’s complacency and lack of disaster preparedness was raised because of the fact that it failed to take serious attention to the geo hazard map that was distributed by the Mines and Geosciences of the DENR. Sec. Paje said in the news that:
“The maps are there to increase the LGUs’ competence on hazards, vulnerability and risk assessment activities and enable them to establish their LDRRM system to effectively comply with RA 10121,” Paje said.
“Paje reiterated the call to LGUs, noting the apparent lack of a system that could have identified flood risk areas that led to the hundreds of people killed and missing in the flashfloods triggered by the heavy rains of storm “Sendong” last Saturday.” (Source: PhilStar.com)
10. It is also noted that three years ago the Philippine Imperative on Climate Change came up with a simulation showing coastal areas in the country, where flooding risks and climate change impacts are high. They had shown that Cagayan de Oro and Iligan, among 25 other “vulnerable climate hotspots” around the archipelago, were prone to storm surges and flooding. While some local officials and sectors were receptive, others called them “alarmists.”

11. Moreover, the City Government’s issuance of small-scale mining permits/agreements was also blamed because of the large volume of loosed land that came along with the rainfall contributed to speeding up the rush of the “hyper-concentrated floods”. Mahar Lagmay, a UP professor and geologist stated that:

"Hindi lang siya tubig na rumaragasa.It contains a lot of sediments. Kung may laman iyang sediments, then it's flowing when it comes in contact with anything it erodes it, and picks up more — kasama na ang land, sediments, gravel and it becomes more masive,"

"Nagdo-double ang volume niya, sometimes one-is-to-twoang ratio... Habang bumababa, it incorporates more materials and sediments”


12. Currently, it still not clear whether the Local Government has indentified the geo hazard areas in the City, and how it is handling settlers within the Geo Hazard Map. In the same vein, it has not stopped the issuance of mining permits, and revoked the existing permits.


II. POSSIBLE CAUSES OF ACTION

Failure to perform its duty to provide safety to its inhabitants when it:

1st: Unjustifiably disregarded the Geo Hazard Map prepared by the DENR and the provisions of the Climate Change Act of 2009; and

2nd: Violated the Trust Doctrine and Principle of Guardianship for its illegal issuance of mining permits causing rampant operations of irresponsible small-scale mining.

III. RELEVANT PROVISIONS OF LAW AND DOCTRINES

FOR DISREGARDING THE GEO HAZARD MAP AND PROVISIONS OF THE CLIMATE CHANGE ACT

1. Legal duty to promote safety to its inhabitants

General Welfare. ― xxx Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (SECTION 16 OF LOCAL GOVERNMENT CODE)

The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. (G.R. No. 92389 September 11, 1991, BINAY vs. DOMINGO)

Section 15. General powers and duties of the Board. – Except as otherwise provided by law, and subject to the conditions and limitations thereof, the Municipal Board shall have the following legislative powers:

nn) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the propensity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix the penalties for the violation of ordinances, which shall not exceed a two hundred-peso fine or six months’ imprisonment, or both such fine and imprisonment, for a single offense. (REPUBLIC ACT NO. 525 – AN ACT CREATING THE CITY OF ILIGAN)

2. Duty to formulate, plan and implement a local climate change action plan

Section 14. Local Climate Change Action Plan. – The LGUs shall be the frontline agencies in the formulation, planning and implementation of climate change action plans in their respective areas, consistent with the provisions of the Local Government Code, the Framework, and the National Climate Change Action Plan.

Barangays shall be directly involved with municipal and city governments in prioritizing climate change issues and in identifying and implementing best practices and other solutions. Municipal and city governments shall consider climate change adaptation, as one of their regular functions. Provincial governments shall provide technical assistance, enforcement and information management in support of municipal and city climate change action plans. Inter-local government unit collaboration shall be maximized in the conduct of climate- related activities.

LGUs shall regularly update their respective action plans to reflect changing social, economic, and environmental conditions and emerging issues. The LGUs shall furnish the Commission with copies of their action plans and all subsequent amendments, modifications and revisions thereof, within one (1) month from their adoption. The LGUs shall mobilize and allocate necessary personnel, resources and logistics to effectively implement their respective action plans.

The local chief executive shall appoint the person responsible for the formulation and implementation of the local action plan.

It shall be the responsibility of the national government to extend technical and financial assistance to LGUs for the accomplishment of their Local Climate Change Action Plans.

The LGU is hereby expressly authorized to appropriate and use the amount from its Internal Revenue Allotment necessary to implement said local plan effectively, any provision in the Local Government Code to the contrary notwithstanding. (CLIMATE CHANGE ACT OF 2009)

ILLEGAL ISSUANCE OF MINING PERMITS

1. Statutory requirements for small-scale mining under PD 1899 and RA 7076

A. Qualification of Applicants

Under PD 1899, any Qualified Person may apply for a Small-Scale Mining Permit. For this purpose, a Qualified Person shall mean a Filipino citizen, of legal age, and with capacity to contract, or a corporation of partnership authorized to engage in mining, registered with the Securities and Exchange Commission, at least 60% of the capital of which is owned at all times by Filipino citizens.

For RA No. 7076, only a Filipino small-scale mining cooperative organized by licensed and registered small-scale miners may apply

B. Scope of Small-Scale Mining Permits and Contracts

a) Small-scale mining operations in areas not declared as Philippine Small-Scale Mining Areas shall be covered by Small-Scale Mining Permits (SSMPs) issued under PD No. 1899. Small-scale mining operations in Philippine Small-Scale Mining Areas declared under RA No. 7076 shall be covered by Small-Scale Mining Contracts (SSMCs) pursuant to the pertinent provisions thereof.

b) In case, where a PSSMA is declared covering SSMP areas, the term of the SSMPs, including their renewal, shall be recognized unless such SSMPs are revoked, cancelled or terminated with the cause: Provided, that the SSMP shall have the option to shift to a SSMC pursuant to the provisions of DAO No. 34, Series of 1997.

C. Term of a Small-Scale Mining Permit or Contract

a) The two (2)-year term of an SSMP is renewable only once: Provided, that the pertinent application shall be filed prior to the expiration thereof, among other requirements. No SSMP shall be renewed unless its two (2)-year term is full consumed.

b) In the case of an SSMC, no renewal shall likewise be granted unless its two(2)-year term is fully consumed.

D. Environmental, Safety and Health Concerns

The SSMP/SSMC holders shall strictly comply with the environmental, safety and health and social provision of R.A. 7942, the Philippine Mining Act of 1995, the Small-Scale Mining Laws and their implementing rules and regulations, among others.

In particular, the SSMP/SSMC holder shall comply with the following requirements:

I. The Environmental Compliance Certificate (ECC) for a small-scale mining operation shall be secured from the Environmental Management Bureau Regional Office concerned and shall fully conform with the provisions of the Small-Scale Mining Laws, especially with respect to the annual production limit of 50,000 DMT, area of 20 hectares per permit/contact, among others.

II. The following documents shall be required prior to the start of small-scale mining under a SSMP/SSMC:

1. Potential Environment Impact Report, which is a simplified Environmental Protection and Enhancement Program, and a Final Mine Rehabilitation/Decommissioning Plan duly approved by the Mine Rehabilitation Fund Committee concerned.

2. Community Development and Management Program, a simplified Social Development and Management Program, duly approved by the Mines and Geosciences Bureau Regional Office concerned.

III. Small-Scale mining operations shall strictly comply with the provisions of DAO No. 97-30 in re: Small-Scale Mine Safety Rules and Regulations.


2. Duty to protect the environment in accordance with the Trust Doctrine

Underlying all environmental laws is the so called “trust doctrine”. The trust doctrine proceeds from the premise that humankind, allegedly the most intelligent being in the animal kingdom, are only the trustees of the earths natural resources. As a species, we hold these God-given gifts in trust not only for future generations of humankind, but also for the “lesser” forms of animals of which we are supposedly their guardians and stewards. They — future generations of humankind and other life forms — are, in law, the beneficiaries of our trust. If our generation misappropriates for its exclusive use and benefit the natural resources of the earth to the permanent prejudice of future generations and other life forms, we breach that trust.

This misappropriation, if done in bad faith and with knowledge aforethought, is tantamount to generational swindling”, i.e. swindling future generations of what rightfully belongs to them. And because what is damaged is the very life-support system of the rightful beneficiaries, this misappropriation can even result in generational genocide. Finally, the act of misappropriating life-support systems of future generations of life forms (humankind included) violates the highest law of Nature. It offends every living beings right and instinct of self-preservation and self-perpetuation. (ATTY. ANTONIO OPOSA JR.)


LEGAL REMEDIES


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