1
Between Public Interest and Private Good:
Protection of Third Parties in
Environmental Mediation and
Consent Decrees
(With Particular Application to
Mining Conflicts)
In Partial Fulfillment of the Requirements of
the Masters of Law Program
Ateneo Law School
Teresita Asuncion M. Lacandula-Rodriguez
School Year 2013-2014
2
TABLE OF CONTENTS
Abstract ………………………………………………………….………….. i
I.
Chapter One: Introduction ………………………………………… 1
A. Background of the Study ………………………………………… 1
B. Thesis Statement ...………………………………………………. 2
C. Definition of Terms ………………………………………………. 3
D. Objectives …………………………..,………………………….... 3
E. Significance of the Study ………………………………………... 4
F. Organization of the Thesis …………………………..…………… 6
G. Scope and Limitation ……………………………………..……… 6
H. Methodology ……………………..…………………………….... 8
II.
Chapter Two: Right to Environment ……………………………… 9
A. Right to Environment as Human Right …………..……………… 9
B. Right to Environment in the Philippines …………...…………… 13
III.
Chapter Three: Environmental Mediation ………………………. 17
A. Alternative Dispute Resolution in the Philippines …...…………. 17
1. Court-Annexed Mediation …………...……………………... 20
2. Mediation and Philippine Culture ………………...……….... 22
B. Court-Annexed Environmental Mediation in the Philippines …... 25
3
1. Rules of Procedure for Environmental Cases …………..…... 25
2. Nature of Environmental Disputes ……..…………………… 30
3. Definition of Mediation in Environmental Disputes ……..…. 31
C. Experience of Different Countries in Environmental Mediation .. 34
1. United States of America …………………………………… 35
2. Canada ………………..……………………………………... 37
3. Japan …………………..…………………………………….. 38
4. Australia …………………………………………………….. 41
5. Germany ………………………………………………….…. 42
6. New Zealand …………….………………………………….. 44
7. South Africa ….……………………………………………... 45
8. China ………………………………………………………... 45
9. Indonesia ……………….…………………………………… 46
D. International Environmental Mediation ………………….……... 48
IV.
Chapter Four: Environmental Mediation vis-à-vis Environmental
Litigation …………………………………………………………… 56
A. Advantages of Environmental Mediation ……………….……… 56
B. Limitations of Environmental Mediation ………………….……. 63
4
1. Institutional Limitations of Environmental Mediation in the
PMC……………………………………………………….… 67
V.
Chapter Five: Consent Decree ……………...…………………….. 74
A. Nature of Consent Decree ……………………………………..... 75
B. Benefits of Consent Decree ………………...…………………… 82
C. Dangers of Consent Decree …………………………..…………. 84
D. Duty of the Court ………………………..……………………… 86
E. Consent Decrees in the Philippines …………...………………….89
VI.
Chapter Six: A Focus on Mining ……………………...………….. 95
A. State of Mining in the Philippines …………...………………….. 95
B. Relevant Mining Laws …………………………….…………... 101
C. Kinds of Mining ………………….…………………………..... 107
D. Mining Disputes ….…………………………………………..... 109
E. Mining Cases Filed in Court …….…………………………...... 121
F. Mediation of Mining Conflicts: Benefits and Limitations ….…. 124
VII. Chapter Seven: Conclusion and Recommendations ….………... 129
A. Remedies under the 1997 Rules of Civil Procedure ……..…..... 131
1. Joinder ………..……………………………………………. 131
2. Intervention …..……………………………………………. 134
5
B. Recommended Supplemental Rules Governing Approval of
Consent Decrees ……………………………………………..... 137
1. Notice and Third Party Comment .…………..……………. 138
2. Fairness Hearings …………………………..…………….... 140
3. Non-mandatory Protective Measures …………………….... 142
Annex “A” Proposed Supplemental Rules to A.M. No. 09-6-8-SC also
Known as the Rules of Procedure for Environmental Cases ……..…… 145
Bibliography………………………………….…………...………………. 146
6
Abstract
As the Philippines enters into an era of increasing environmental
conflict because of the intensifying effects of natural disasters and the clashing
claims on dwindling resources, the need for a process of environmental dispute
resolution becomes more pressing, especially for the marginalized who are the
most negatively affected by the backlash of acts that have an adverse effect on
the environment. The people need legal remedies that are simple and
inexpensive to enforce their right to the environment when conflicts arise. To
address such need, the Philippine Supreme Court formulated in Rule 3, Section
3 of the Rules of Procedure of Environmental Cases the procedural policy of
environmental mediation which states that environmental civil cases shall
undergo mediation as an alternative to costly and protracted litigation, the
outcome of which can be embodied in a consent decree.
This work explores environmental mediation as a conflict resolution
process wherein the parties themselves, with the assistance of a disinterested
mediator, work out a mutually acceptable solution to their dispute.
Specifically, it studies the arguably anomalous situation of private mediated
agreements being made on matters affecting public interest.
Since
environmental disputes involve public rights and interest and long term
consequences not just for the parties but also for non-parties and future
generations, this thesis poses the question: does judicial oversight of such
settlement agreements in the form of environmental consent decrees serve as
sufficient protection of rights of the parties and broader public interest?
The author addresses this legal issue by first discussing the nature of
the right to environment, its status as a human right under international law
and definition under Philippine law. Next it talks about the concept of
environmental mediation as an alternative dispute resolution mechanism,
particularly court-annexed mediation of environmental disputes, while
exploring how it is practiced in other countries and internationally. Thereafter,
the benefits and limitations of environmental mediation as a legal remedy are
discussed. It also examines how environmental mediation principles are
different from those of environmental litigation. The author then scrutinizes the
nature, benefits and dangers of environmental consent decrees based on
American experience and the duty of the court with such decrees in relation to
the protection of public interest including affected third parties. The thesis also
briefly analyzes the application of environmental mediation and resulting
7
consent decrees to mining conflicts in the Philippine context.
Court-annexed environmental mediation resulting in agreements
approved in consent decrees is a potentially effective dispute resolution
process. It may lead to the just settlement of conflicts as well as peaceful
coexistence among disputing parties which ultimately helps in the preservation
of the environment. However, there is a need for a consistent procedure that
will address the needs of interested key stakeholders who are not parties to the
case. The 1997 Rules of Civil Procedure already provides remedies to involve
all known stakeholders such as Joinder of Parties and Intervention. However,
the author recommends supplemental rules to the Rules of Procedure of
Environmental Cases that will govern the approval of consent decrees. Such
additional provisions requiring notice to third parties, opportunity for such
third parties to file third party comment and fairness hearings can ensure that
public interest is considered and protected in the approval of consent decrees.
Chapter One
Introduction
A.
Background of the Study
The Philippines, as a developing nation prone to natural disasters, has a
host of environmental problems because of the damage brought about by
population growth and the exploitation of natural resources for economic
development, among others. Deforestation, agricultural land degradation,
destruction of coral reefs, loss of biodiversity, large-scale mining and pollution
are continuing environmental concerns.1 It is evident that marginalized or
vulnerable sectors (which include indigenous peoples, farmers, fisher folk,
1
See IBON DATABANK AND RESEARCH CENTER, THE STATE OF THE PHILIPPINE
ENVIRONMENT (3rd ed. 2006).
8
informal settlers, poor communities, women and children)2 are the most
negatively affected by the backlash of environmental violations, e.g. flash
floods, landslides and pollution.3 Usually, these sectors rely on the
environment and natural resources for their subsistence and livelihood.
Because of poverty and lack of access to formal structures and decisionmakers, they are at the losing end of any difference in perspective or
competition on the use of the environment. Hence, to enforce the people’s right
to environment in the Philippine context when conflict arises, particularly their
environmental procedural rights, there is a need for legal remedies which are
effective but are simple and inexpensive. To address such need, the Philippine
Supreme Court recently formulated in Rule 3, Section 3 of the Rules of
Procedure of Environmental Cases4 the procedural policy of environmental
mediation. Under these rules, environmental civil cases shall undergo
mediation as an alternative to costly and protracted litigation. The outcome of
such environmental mediation can be approved by the court in a judicial order
known as a consent decree.
B.
Thesis Statement
Internationally, there is an emerging trend of using mediation to resolve
environmental disputes because of its perceived advantages and benefits
2
3
4
See JOAN MICHELLE M. LEGASPI, ET AL., ACCESS TO ENVIRONMENTAL JUSTICE: A
CAPACITY ASSESSMENT OF THE PILLARS OF THE JUSTICE SYSTEM (2011).
Id. at 1-2.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, A.M. No. 09-6-8-SC, Apr. 13,
2010.
9
compared to litigation.5 In the Philippines, environmental disputes may involve
the determination of the constitutional right to a balanced and healthful
ecology under Article II, Section 16 of the Constitution. This right is a
fundamental right of each person.6 On the other hand, mediation seeks to
harmonize the interests of the parties and not necessarily to protect rights. In
addition, environmental disputes involve public rights and interests because all
are stakeholders in the protection and preservation of the environment.
Considering that mediation is a process wherein parties’ private interests
prevail, are public environmental rights protected or undermined in the course
of settling the dispute? Stated differently, taking into account that
environmental disputes involve public rights and interest and long term
consequences not just for the parties but also for non-parties and future
generations, how can such mediated agreements wherein the parties’ interests
prevail be in the public interest? It is important to note that while parties to a
case may agree to a mutually satisfactory settlement, non-parties and even
future generations will be affected by the consequences of their agreement.
Furthermore, does judicial oversight of such settlement agreements in the form
of environmental consent decrees serve as sufficient protection of rights of the
parties and broader public interest? All these questions shall be discussed in
general and thereafter in the context of a particular set of environmental
5
6
See GEORGE PRING & CATHERINE PRING, GREENING JUSTICE: CREATING
IMPROVING ENVIRONMENTAL COURTS AND TRIBUNALS 61 (2009).
Oposa v. Factoran, Jr., 224 SCRA 792, 804 (1993).
AND
10
disputes, i.e. mining conflicts.
C.
Definition of Terms
For purposes of this thesis, these key terms shall be defined this way:
1. Environmental meditation is the use by parties in environmental
disputes of a neutral third party to resolve their disputes and to
arrive at a negotiated settlement.
2. Environmental disputes are conflicts involving the environment and
natural resources wherein there are opposing rights or interests in
the management, control or use of such resources.
3. Consent decrees are judicially approved settlement agreements of
the parties who have brought a civil case involving an
environmental dispute.
4. Mining is the extraction of minerals from the earth.
D.
Objectives
Given the legal framework of environmental justice wherein the right
to environment is a fundamental right of each human being, this thesis seeks to
study the possibilities and limitations of environmental meditation which is a
novel concept in the Philippines and has not been extensively discussed. Thus,
this research delves into the concept and practice of environmental mediation
11
in the Philippines and draws from the experience of other countries wherein it
already has a history.
In exploring environmental mediation as a dispute
resolution process vis-à-vis the nature of environmental rights and disputes,
this study will look at whether public interest is or can be safeguarded when
self-interested parties reach an agreement. Thereafter, this paper will make
recommendations to ensure that the product of environmental mediation, i.e.
consent decrees, does not undermine the rights of both the parties and affected
third parties.
Specifically, this research will focus on environmental mediation in
mining conflicts. Presently, the Philippine national government sees mining as
an activity that can boost the country’s economy. However, because of
perceived negative impacts on people and the environment, conflicts arise
between or among the concerned parties. This study will look at the application
of mediation and use of consent decrees in such conflicts.
E.
Significance of the Study
This study is significant because as stated, there is a growing
international trend of using mediation to resolve environmental disputes yet
this is uncharted territory in the Philippines and very little legal scholarship has
been devoted to it in the country. In pointing out the challenges faced by the
legal system in assuring environmental justice, civil society listed the “lack of
12
recognition of [Alternative Dispute Resolution] mechanisms”7 as a weakness
of the judiciary. Environmental mediation as a procedural policy is a very
recent development and has yet to be tested. Accordingly, the Philippines’
experience with environmental consent decrees is close to nil.
Environmental justice has been gaining attention in the Philippine
justice system and without effective remedies for the aggrieved, such justice
remains illusory. Mining conflicts were chosen to contextualize the analysis of
environmental mediation because of the prominence of such conflicts in
Philippine national life today.
F.
Organization of the Thesis
Chapter 2 will discuss the nature of the right to environment, its status
as a human right under international law and definition under Philippine law.
Chapter 3 will talk about the concept of environmental mediation as an
alternative dispute resolution mechanism, particularly court-annexed mediation
of environmental disputes. The practice in other countries will also be explored
since different countries have different experiences with and models of
environmental mediation. There will also be a brief look at international
environmental mediation where states are the parties. Chapter 4 will discuss
the benefits and limitations of environmental mediation as a legal remedy. It
7
LEGASPI, ET AL., supra note 2, at 116.
13
will also examine how environmental mediation principles are different from
those of environmental litigation. Chapter 5 will scrutinize the nature, benefits
and dangers of environmental consent decrees based on American experience
and the duty of the court in relation to the protection of public interest
including affected third parties. Chapter 6 will analyze the application of
environmental mediation and resulting consent decrees to mining conflicts in
the Philippine context. Lastly, Chapter 7 will explain the author’s conclusions
and recommendations on the legal issue presented.
G.
Scope and Limitation
This study is limited to court-annexed mediation under the Rules of
Procedure for Environmental Cases and does not extend to other modes or
venues of alternative dispute resolution, excluding likewise the application of
the Special Rules of Court for Alternative Dispute Resolution.8 The firstinstance mediation at trial court level will be examined without going into
appellate mediation.
The study will also not dwell on mediation in
administrative tribunals.
Because of the particular requirements under the Indigenous Peoples
Rights Act of 19979 and international law regime governing them, the situation
8
9
SPECIAL RULES OF PROCEDURE ON ALTERNATIVE DISPUTE RESOLUTION, A.M. No.
A.M. No. 07-11-08-SC, Oct. 30, 2009.
As defined under An Act to Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/Indigenous People, Creating a National Commission of
Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds
Therefor, and for Other Purposes [Indigenous Peoples Rights Act of 1997], Republic
14
of Indigenous Cultural Communities/Indigenous People will not be extensively
touched on in this paper.
Considering the focus on mandatory environmental mediation, the
research will not investigate whether or not mediation is appropriate in
environmental disputes or what kind of environmental disputes should be
mediated. Also, affected third parties in environmental mediation and consent
decrees will not include future administrations of the government. Thus,
although judicial encroachment into policy-making will be discussed as a
danger presented by consent decrees, solutions to the same will not be tackled.
Lastly, environmental mediation and consent decrees will be explored
generally but will be briefly situated within mining conflicts in order to gauge
their applicability to such particular disputes. An extensive discussion of
mining disputes is beyond the scope of this thesis.
H.
Methodology
The thesis will draw from a survey of the relevant laws and rules, both
Act. No. 8371, § 3(h) (1997), they are “[a] group of people or homogenous societies
identified by self-ascription and ascription by other, who have continuously lived as
an organized community on communally bounded and defined territory, and who
have, under claims of ownership since time immemorial, occupied, possessed
customs, tradition and other distinctive cultural traits, or who have, through resistance
to political, social and cultural inroads of colonization, non-indigenous religions and
culture, became historically differentiated from the majority of Filipinos. ICCs/IPs
shall likewise include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country, at the time of conquest or
colonization, or at the time of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of their own social,
economic, cultural and political institutions, but who may have been displaced from
their traditional domains or who may have resettled outside their ancestral domains.”
15
under domestic and international law. Foreign legal journal articles, books and
other papers which have extensively discussed environmental mediation will
be cited while also looking at local scholarly papers, theses and other written
material which have documented the Philippine experience in court-annexed
mediation in general. It will particularly derive insight from judicial decisions
and journal articles involving consent decrees in the United States of America.
There will likewise be a survey of documented mining cases and other
pertinent environmental cases as reported in news articles, case studies and
other materials of organizations handling the same.
Chapter Two
Right to Environment
A.
Right to Environment as Human Right
There is a “growing recognition that the right to the environment is a
fundamental human right which ought to be protected.”10 A great number of
international, regional and national legal instruments have recognized the
interrelationship between human rights and right to environment. In 1948, the
Universal Declaration of Human Rights already articulated the connection of
human rights and right to environment by including the “right to a standard of
16
living adequate for health and well-being.”11 But it was the 1972 Stockholm
Declaration on the Human Environment which first identified the link between
human rights and environmental protection by stating that “[man] has the
fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being.”12 The
Rio Declaration on Environment and Development puts forward 27 principles
on sustainable development and environmental protection,13 stating in
Principle 3 that “[the] right to development must be fulfilled so as to equitably
meet developmental and environmental needs of present and future
generations.”
International environmental law and human rights law have the same
objective which is to improve the quality of life so that each person can live
with dignity. Furthermore, the realization and advancement of human rights
depend on the enjoyment of environmental rights. Thus, environmental
degradation often results in denial or violation of human rights.14 If there is
environmental destruction or deteriorating ecosystems, the rights to life and
10
11
12
13
14
Carolyn A. Mercado & Damcelle S. Torres, Court-Annexed Mediation: Summing Up
the Past and Charting the Future, in A SOURCEBOOK ON ALTERNATIVES TO FORMAL
DISPUTE RESOLUTION MECHANISMS 28 (2008).
G.A. Res. 217A (III) A, U.N. Doc. A/RES/217 (III), Art. 25 (1) (Dec. 10, 1948).
Declaration of the United Nations Conference on the Human Environment, Principle
21, June 16, 1972, U.N. Doc. A/Conf.48/14/Rev. 1(1973), 11 ILM 1416 (1972).
U.N. Conference on Environment and Development, Rio de Janeiro, Brazil, Rio
Declaration on Environment and Development, June 3-14, 1992, U.N. Doc.
A/CONF.151/26 (Vol. I), 31 I.L.M. 874 (Aug. 12, 1992).
Ayesha Dias, Human Rights, Environment and Development: With Special Emphasis
on
Corporate
Accountability,
available
at
http://hdr.undp.org/en/reports/global/hdr2000/papers/ayesha%20dias%20.pdf
(last
17
health (including the right to food, clean drinking water, pollution-free air,
recreation and protection from disease and natural hazards such as floods and
droughts) are compromised. A secure and sound environment is a precondition
to the enjoyment of internationally-guaranteed human rights.15
On the flip side, implementation of environmental rights depends on
the exercise of certain human rights, such as the rights to information, to form
associations, to public participation or consultation in decision-making on
environmental issues and to access to justice and legal remedies particularly by
those directly and potentially affected;16 these are referred to as environmental
procedural rights.17 In particular, the Aarhus Convention18 along with Principle
10 of the Rio Declaration affirm the importance of individual “access to
information concerning the environment that is held by public authorities”,
“opportunity to participate in decision-making processes” and “effective access
to judicial and administrative proceedings, including redress and remedy.”19
The classic and already established civil and political rights are used to
15
16
17
18
19
accessed Oct. 12, 2012).
OFFICE OF THE HIGH COMMISSIONER AND UNITED NATIONS ENVIRONMENT
PROGRAMME, HUMAN RIGHTS AND THE ENVIRONMENT: RIO+20 JOINT REPORT
OHCHR
AND
UNEP
12
(2012),
available
at
http://www.unep.org/environmentalgovernance/Portals/8/JointReportOHCHRandUN
EPonHumanRightsandtheEnvironment.pdf (last accessed June 26, 2012) [hereinafter
OHCHR AND UNEP].
Id.
Dias, supra note 14.
Convention on Access to Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters, 2161 U.N.T.S. 447 (entered into force 30
Oct. 2001).
Rio Declaration on Environment and Development, supra note 13, at principle 10.
18
foster an environmentally-friendly political order. Rights to life, expression,
personal liberty, association, political participation and legal redress would
enable those groups who are threatened with environmental degradation to
voice their objections. Economic, social and cultural rights contribute to
environmental protection by establishing substantive standards of human wellbeing like a healthy environment, safe working environment and decent
standard of living.20
The right to environment is borne by each citizen but it is also a
collective right possessed by peoples, extending even to future generations.21
Despite the progress made in acknowledging the interconnectedness of
human rights and right to environment, there are still
unsettled issues [which] include the need for and
potential content of a right to a healthy environment, the role
and duties of private actors with respect to human rights and the
environment, the extraterritorial reach of human rights and
environment, and how to operationalize and monitor the
implementation of international human rights obligations
relating to the environment.22
On the other hand, there can be a formulation of a new right to an
environment that is not defined in purely anthropocentric terms, i.e., an
environment that is not only safe for humans and useful to human well-being
but one that is ecologically-balanced and sustainable in the long term, with a
20
21
Id.
Philippe Cullet, Definition of an Environmental Right in a Human Rights Context, 13
NETH. Q. OF HUM. RTS. 25 (1995).
19
focus on the intrinsic value of nature and natural resources, including
inanimate objects, animals and plants.23 In other words, environmental rights
can be understood to refer to rights of the environment, i.e. rights that the
environment possesses, rather than the right of humans to a healthy
environment.24
However, the fact that human rights and right to environment have
been described as complementary, indivisible and having related concerns does
not mean that the two are not distinct from each other. Consequently, the two
may clash and result in conflict. Right to environment needs to be balanced
with or can limit human rights, for example, in economic matters. The focus
then is the duty of humans to take care and preserve the non-human aspects of
the environment. To enforce the right to environment, the state has a duty to
preserve and protect the environment by restricting or regulating activities
harmful to the environment.25
B.
Right to Environment in the Philippines
The Philippine Constitution made it a state policy for the State to
protect the right of the people to their environment:
22
23
24
25
OHCHR AND UNEP, supra note 15, at 14.
Salma Yusuf, Pursuing the Right for Today, Securing the Environment for
Tomorrow, available at hawk.ethz.ch/.../UNISCI+DP+29+-+YUSUF.pdf (last
accessed Oct. 12, 2012).
Dias, supra note 14.
CULLET, supra note 21, at 28.
20
Section 16. 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.26
According to the Supreme Court in the internationally-cited case of Oposa v.
Factoran, this provision is self-executory and does not require the passage of
an enabling law. It is as important as the rights under the Bill of Rights,
“predates all government and constitutions” as it relates to “self-preservation
and self-perpetuation” and is “assumed to exist from the inception of
humankind.”27
Closely connected to the right to environment is the right to health. The
Constitution provides that “the State shall protect and promote the right to
health of the people and instill health consciousness among them.” 28
The right to information on matters of public interest is also
constitutionally-guaranteed: “The right of the people to information on matters
of public concern and this includes access to official records and documents
pertaining to official acts, transactions or decisions, subject to limitations
prescribed by law.”29
Under Article XII, Section 3 of the Constitution, Congress should take
into consideration the requirements of ecology in leasing or ceding rights to
lands of the public domain.
26
27
28
PHIL. CONST. art. II, § 16.
Oposa, 224 SCRA at 805.
PHIL. CONST. art. II, § 15.
21
Particularly affected by environmental damage are indigenous cultural
communities or indigenous people (ICCs/IPs). Under the Indigenous People’s
Act of 1997,30 they have the following rights: right to participate fully at all
levels of decision-making in matters which may affect them31 including the
right to make a free and prior informed consent to such activities, 32 right to
determine and decide their own priorities for development,33 right to equal
protection and non-discrimination,34 right to their ancestral domains,35 priority
rights in the harvesting, extraction, development or exploitation of natural
resources within the ancestral domains,36 right to maintain, protect and have
access to their religious and cultural sites37 and right to have an indigenous
justice system,38 among others. The National Commission on Indigenous
29
30
31
32
33
34
35
36
37
38
Id. art. III, § 7.
As defined under the Indigenous Peoples Rights Act of 1997, § 3(h) (1997), they are
“[a] group of people or homogenous societies identified by self-ascription and
ascription by other, who have continuously lived as an organized community on
communally bounded and defined territory, and who have, under claims of ownership
since time immemorial, occupied, possessed customs, tradition and other distinctive
cultural traits, or who have, through resistance to political, social and cultural inroads
of colonization, non-indigenous religions and culture, became historically
differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples
who are regarded as indigenous on account of their descent from the populations
which inhabited the country, at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment of present state
boundaries, who retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains
or who may have resettled outside their ancestral domains.”
Id. §16.
Id. §§59& 3(g).
Id. §17.
Id. §21 & 23.
Id. § 11.
Id. §57.
Id. § 33.
Id. § 15
22
Peoples (NCIP) is primarily tasked to implement this law.39
In 1977, the Philippine Environmental Policy was laid down under
Presidential Decree No. 1151 which states that the right of the people to a
healthy environment and its exploitation should be encouraged but “without
degrading it, or endangering human life, health and safety or creating
conditions adverse to agriculture, commerce and industry.” 40 It likewise
required an environmental impact statement for any action, project or
undertaking “which significantly affects the quality of the environment.”41 The
Philippine Environment Code or P.D. No. 1152 was enacted right after.
Among others, it established quality standards for land, air and water and
provided for the regulation and monitoring of the same.
The lead government agency mandated to enforce environmental laws
and policies is the Department of Environment and Natural Resources
(DENR).42
39
40
41
42
Id. § 38.
Philippine Environmental Policy, Presidential Decree No. 1151, § 2 (b) & (c) (1977).
Id. § 4. This is governed by P.D. No. 1586 entitled Establishing an Environmental
Impact Statement System, Including Other Environmental Management Related
Measures and for Other Purposes (June 11, 1978).
Office of the President, Providing for the Reorganization of the Department of
Environment, Energy and Natural Resources, Renaming it as the Department of
Environment and Natural Resources, and for Other Purposes, Executive Order No.
23
Chapter Three
Environmental Mediation
A.
Alternative Dispute Resolution in the Philippines
Because people are different from each other, conflict is inevitably part
of life. The challenge is to find conflict resolution processes to get past the
disagreement, enable life to move forward and create conditions for human
beings to thrive. While it is very difficult to agree on common values, we can
agree on processes which will make it possible for us to discuss those things
we disagree about.
Presently, the dominant dispute resolution process in the Philippine
192, § 4 (1987).
24
justice system is adversarial. In this system, party-litigants bring their legal
controversies to court. They present their evidence and arguments to a judge.
This judge is expected to be impartial in applying the law to the facts
established. However, this system of justice has been imposed on the people by
colonizers even if most of the country’s indigenous systems were discursive 43
instead of adversarial. Thus, people’s needs for dispute resolution and justice
are not fulfilled. People feel that the justice system only works for those
immersed in or are comfortable with Western adversarial rationality. Majority
are marginalized because they do not understand their own system which
should serve them. The language used by the system and its style alienate them
such that they cannot freely and fairly participate in it.
Policy makers have responded by enacting The Alternative Dispute
Resolution (ADR) Act 44 in 2004. ADR consists of ways of settling disputes by
means other than litigation, e.g., by arbitration or mediation. This law’s aim is
to institutionalize ADR and to actively promote and encourage its use “as an
important means to achieve speedy and impartial justice and to declog court
dockets.”45 The declared state policy under this law is “to actively promote
party autonomy in the resolution of disputes or the freedom of the parties to
43
44
See TANGGOL KALIKASAN, A SOURCEBOOK ON APPROPRIATE DISPUTE RESOLUTION
PROCESSES 20-26 (n.d.).
An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the
Philippines and to Establish the Office for Alternative Dispute Resolution, and for
Other Purposes [Alternative Dispute Resolution Act of 2004] R.A. No. 9285 (2004).
Practitioners prefer to use the term “Appropriate Dispute Resolution” to communicate
the idea that these ADR mechanisms are mainstream and not alternative.
25
make their own arrangement to resolve disputes.”46
But even before the ADR Act was formulated, Philippine laws already
provided for alternative modes of settling disputes. In fact, such modes, like
mediation, have been seen to be rooted in Filipinos’ historical experience
before the entry of colonizers and can be found in indigenous dispute
resolution systems.47 Even before the Spaniards came, the local rulers (datus)
or respected village elders settled disputes in their communities. 48
Thus when Philippine laws were formalized, ADR was incorporated.
For example, the Civil Code encourages parties to come to a compromise even
if litigation has already started.49 For suits between members of the same
family, it mandates that earnest efforts toward a compromise should have been
made and failed before such can be filed.50 Since the 1950s, the Arbitration
Law51 had already been in place. International arbitration is also recognized as
a system of settling commercial disputes of an international character. 52 The
45
46
47
48
49
50
51
52
Id., § 2.
Id.
Philippine
Mediation
Center,
JURIS
Primer,
available
at
http://pmc.judiciary.gov.ph/downloads/JURIS_Primer.pdf (last accessed Sep. 30,
2012).
Marthe Lois V. Cordia, Alternative Dispute Resolution in the Philippines: Wave of the
Future or the Road Less Traveled? 51 UST L. REV. 185, 187 (2006-2007).
An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE] R.A.
No. 386 (1949), art. 2029.
Id. art. 222.
An Act to Authorize the Making of Arbitration and Submission Agreements, to
Provide for the Appointment of Arbitrators and the Procedure for Arbitration in Civil
Controversies, and for Other Purposes [THE ARBITRATION LAW] R.A. No. 876
(1953).
The Philippines Adhered to the United Nations Convention on the Recognition and
the Enforcement of Foreign Arbitral Awards of 1958 (adopted Jun. 7, 1959, 330
26
Local Government Code of 1991 has provisions on Katarungang
Pambarangay (Barangay Justice) where residents of the same city or
municipality who have disputes are required to confront each other before the
barangay officials and look into the possibility of amicable settlement before
going to court.53 Under the procedural Rules of Court, judges are required to
take advantage of the pre-trial conference to arrive at settlements and
compromises between the parties and to ask the latter to explore the possibility
of submitting their cases to any of the alternative modes of dispute resolution.54
In labor or industrial disputes, the 1987 Constitution itself encourages the
preferential use of “voluntary modes” in settling disputes in order to foster
industrial peace.55 Even in administrative bodies in the executive department,
the use of ADR processes is being promoted.56
1.
53
54
55
56
Court-Annexed Mediation
U.N.T.S. 3.) under the 10 May 1965 Resolution No. 71 of the Philippine Senate,
which gave reciprocal recognition and allowed enforcement of international
arbitration agreements between parties of different nationalities within a contracting
state [Gonzales v. Climax Mining Ltd., 512 SCRA 148, 166-167 (2007), citing
National Union Fire Insurance Company of Pittsburgh v. Stolt-Nielsen Philippines,
Inc., 184 SCRA 682, 688-689 (1990)].
An Act Providing for a Local Government Code of 1991 [LOCAL GOVERNMENT CODE
OF 1991], R.A. No. 7160, § 408 (1991).
1997 RULES OF CIVIL PROCEDURE, rule 18, § 2 (a).
PHIL. CONST. art. XIII, § 3; see also A Decree Instituting a Labor Code Thereby
Revising and Consolidating Labor and Social Laws to Afford Protection to Labor,
Promote Employment and Human Resources Development and Insure Industrial
Peace Based on Social Justice [LABOR CODE], P.D. No. 442, art. 211 (a) (1975).
Office of the President, Revoking Executive Order No. 523 (s. 2006) and Conferring
upon the Office for Alternative Dispute Resolution the Management, Development,
Coordination, and Oversight Of Alternative Dispute Resolution Programs in the
Executive Department, and for Other Purposes, Executive Order No. 97, Series of
2012 [E.O. No. 97, s. 2012] (Oct. 18, 2012).
27
The judiciary, realizing the potential of ADR in improving its systems
and in carrying out its constitutional mandate to promulgate rules that shall
provide a “simple and inexpensive procedure for the speedy disposition of
cases,”57 has come up with its own initiatives, specifically in the promotion of
mediation as a way of settling cases already filed in court. As early as 1999,
the judiciary tested the efficacy of mandatory mediation in the Regional Trial
Courts and Metropolitan Trial Courts of Mandaluyong City and Valenzuela,
Metro Manila as pilot courts. Since this is mandatory, it being part of pre-trial,
the trial court is empowered to impose sanctions in case of abusive conduct
during the proceedings or absence of a party. 58 This is referred to as courtannexed mediation (CAM).
In CAM, the court refers the mediatable cases to an accredited
mediator. The mediator, who is ideally a neutral third party chosen by the
disputants from a list provided to them, facilitates the discussion of the parties
and assists them in negotiating and reaching a voluntary agreement regarding
their dispute. In 2001, the Supreme Court designated its educational arm, the
Philippine Judicial Academy (PHILJA) as the component unit of the Court for
CAM and other ADR mechanisms, likewise creating the Philippine Mediation
Center (PMC) to be the center of mediation initiatives. 59 PMC units were then
57
58
59
PHIL. CONST. art. VIII, § 5, ¶ 5.
CUSTODIO O. PARLADE, ALTERNATIVE DISPUTE RESOLUTION OF 2004 (ANNOTATED)
15 (2004).
Supreme Court, Re: Various Resolutions of the Board of Trustees of the PHILJA
28
established in the different courts nationwide. Mediation proceedings were
expanded to the appellate court in 2002.60 The early results of mediation in the
PMC units were encouraging with approximately 80% of the cases mediated
being successfully settled.61 This is of vital importance in view of the huge
backlog of cases pending in the court system. To illustrate, as of 2009, there
were a total of 618,613 pending cases in the trial courts according to the Office
of the Court Administrator of the Supreme Court. As of 2011, a total of
136,150 out of 209,336 cases were successfully mediated, with a success rate
of 65.04%.62
The PMC is mandated to handle CAM, train and accredit the mediators
and promote and ensure quality mediation processes. There are currently 113
PMC units in courts in 10 judicial regions encompassing Luzon, Visayas and
Mindanao63 or 1,496 PMC units in 2,045 courts as of 2011, which is 73.15
percent.64
Amicable settlements and arbitral awards are favored by the courts
because it unclogs judicial dockets. Thus, the latter will only interfere with
60
61
62
63
64
Approved During its Meetings on 18 September 2001 and 1 October 2001, SC
Administrative Matter No. 01-10-5-SC-PHILJA (Oct. 16, 2001).
Supreme Court, Re: Pilot Testing of Mediation in the Court of Appeals, SC
Administrative Matter No. 02-2-17-SC [A.M. No. 02-2-17-SC] (Apr. 16, 2002).
Id.
According to an unpublished Court-annexed Mediation Statistical Report from the
PMC for 2002-2011.
Philippine Mediation Center, About the Philippine Mediation Center,
http://pmc.judiciary.gov.ph/about-the-philippine-mediation-center.htm (last accessed
Sep. 3, 2012).
PHILIPPINE JUDICIAL ACADEMY, 2011 PHILIPPINE JUDICIAL ACADEMY ANNUAL
29
great reluctance to invalidate or set aside such compromise agreements or
action of the arbitrator.65 As the Supreme Court stated:
Alternative dispute resolution methods or ADRs ― like
arbitration, mediation, negotiation and conciliation ― are
encouraged by this Court. By enabling the parties to resolve
their disputes amicably, they provide solutions that are less
time-consuming, less tedious, less confrontational, and more
productive of goodwill and lasting relationships.66
2.
Mediation and Philippine Culture
Noted social scientists have observed that traditionally, Filipinos have
had and continue to have an inclination towards mediation. There are studies
showing that Filipino values and culture support mediation as a preferred way
of conflict resolution:
In the Philippines, Frank Lynch’s (1968) essay on Social
Acceptance regards the use of a go-between or third party to
maintain or preserve smooth interpersonal relations as an
important means which is highly and traditionally valued in
Philippine society. The use of a go-between is not only done to
avoid possible embarrassment or bad feeling but it is also used
to remedy an existing state of conflict or tension. He notes the
extended negotiations carried through various third parties in an
effort to reconcile major political figures in the Philippines. In
family disputes as well, he maintains the same pattern is
observable where often a relative who is not involved in the
difficulty becomes a middle-man for the two fellow-kinsmen
who are not on speaking terms with each other. This, in fact, is
considered the relative’s duty.
Similarly, Hollsteiner (1963) makes the observation that
65
66
REPORT 18 (2012).
Home Bankers Savings and Trust Company v. Court of Appeals, 318 SCRA 558, 568
(1999).
LM Power Engineering Corporation v. Capitol Industrial Construction Groups, Inc.,
399 SCRA 562, 571-572 (2003).
30
the Philippine society makes widespread use of intermediaries
to approach a person on behalf of another person for soliciting
favors, reconciling feuding parties, and generally getting things
done in the community. She notes that “the average barrio man
seldom works through constituted legal authority, such as his
barrio lieutenant in an official capacity, except when he knows
that the barrio lieutenant has some special ties with a person or
official who might be able to help or when the situation requires
the official sanction of that barrio lieutenant for formality’s
sake.”
Two political scientists (Silliman 1982 and Machado
1980) studying dispute processing in the country emphasize
cultural and social characteristics in understanding the
prevalence of amicable settlements in the Philippines.67
In stating that “[amicable] settlement (areglo) is the favored form of dispute
processing among Filipinos,” one expert explains that
[at] the heart of this is the notion that justice is
negotiable, that is, that the terms of restitution can be lowered so
that the offender does not suffer an extreme disadvantage. It is
true that he has contracted a debt to another party, but the latter
is being implicitly asked to understand his situation.68
An author, who is also a practicing lawyer, has these comments and
observations about the Filipino way of conflict management:
The great majority of disputes could be settled before trial if
serious efforts are made to resolve them either through
negotiation, mediation or arbitration. Filipinos keep
communication lines open to tone down hostility through
pakikiusap (request) and pakikisama (companionship). Several
factors that impede the settlement of cases are cultural or
67
68
Agnes Marcella C. Lorenzana, Social Capital in Community Mediation,
Characteristics of Disputants and Mediators as Efficacy Factors, at 14-15 (2009)
(unpublished M.S. thesis, Ateneo de Manila University) (on file with Rizal Library,
Ateneo de Manila University).
FERNANDO N. ZIALCITA, NOTIONS OF JUSTICE: A STUDY OF AN ILOCOS AND A
BILACAN BARANGAY 63 (1989).
31
psychological in nature. Amor Propio (self-respect), pasiklaban
(one-upmanship), bahala na (fatalism), and gantihan
(retaliation) play key roles in clogging the courts with frivolous
suits that are brought just to “save face” or to give a “lesson” to
the opposing party.… Fortunately, there are positive aspects of
Philippine culture, such as the kamag-anak network (close
family ties and kinship), tulungan (mutual aid), bigayan (give
and take), palabra de honor (word of honor), and bayanihan
(cooperative behavior), that may tend to mitigate the Filipino’s
propensity to litigate disputes.
xxx
xxx
xxx
More distinct Filipino cultural traits, such as hiya
(shame or painful feeling of having done something wrong),
utang na loob (recognition of a debt or obligation), awa (mercy
or pity), paggalang (respect or honor), and the kompadre
(godfather) system are factors that could help propel the faster
resolution of cases. Similarly, the Filipino suki (old or regular
customer) relationship between seller and purchaser of all kinds
of goods and commodities may foster settlement. Another trait
that helps Filipinos avoid or manage conflict is delicadeza
(which means “being proper”) is the norm indicating refinement
of behavior or acts of propriety… As long as constructive
attitude is cultivated and positive points of agreement are
emphasized, most Filipinos will be inclined to choose
nonlitigative
procedures
(consensus)
over
litigation
(confrontation). Filipinos place a premium value on social
tranquility and smooth interpersonal intercourse. The culture of
pakikisama encompasses the values of brotherhood, group
obligation, camaraderie and togetherness.69
Thus, believing how meditation complements Philippine culture,
former Chief Justice Hilario G. Davide had actively encouraged its
development as a dispute resolution mechanism:
For the Filipino society, mediation rekindles the culture
of neighborliness and the spirit of bayanihan that used to
pervade the Filipino way of life. Mediation relies on the
69
JIM V. LOPEZ, THE LAW ON ALTERNATIVE DISPUTE RESOLUTION 57-58 (2004).
32
goodwill of the parties involved in a dispute to arrive at a
mutually acceptable solution from their opponent’s perspective.
In this sense, each party helps the other as if the other’s problem
were his or her own to bear. It vivifies a spirit of cooperation
and solidarity, which is the cornerstone of a society’s
foundation for peace, progress and prosperity. 70
B.
Court-Annexed Environmental Mediation in the
Philippines
1.
Rules of Procedure for Environmental Cases
Very recently, the Supreme Court formulated the Rules of Procedure
for Environmental Cases (Rules). The objectives of the Rules are:
(a) To protect and advance the constitutional right of the people
to a balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure
for the enforcement of environmental rights and duties
recognized under the Constitution, existing laws, rules and
regulations, and international agreements;
(c) To introduce and adopt innovations and best practices
ensuring the effective enforcement of remedies and redress
for violation of environmental laws; and
(d) To enable the courts to monitor and exact compliance with
orders and judgments in environmental cases.71
In line with these objectives, under Rule 3, Section 3, the court is
required to refer environmental civil cases to CAM before trial starts:
Section 3. Referral to mediation – At the start of the pre70
71
Hilario G. Davide, Jr., Mediation: The Court’s Partner for Justice in the New
Millennium, 4 PHILJA Judicial J., 62, 63-64 (Jan. – Mar. 2002).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part I, rule 1, § 3.
33
trial conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall immediately
refer the parties or the counsel, if authorized by their clients, to
the [PMC] unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher
for mediation.
The mediation should be terminated after 30 days from the referral.72 The
mediation report from the PMC must be submitted to the court within 10 days
from the expiration of the 30-day period. Even after mediation in the PMC unit
fails, the court may refer the case to the branch clerk of court to further assist
the parties in reaching a settlement.73 Thereafter, the judge is likewise tasked to
mediate and assist the parties in reaching an amicable settlement.74 The parties
are also allowed to “compromise or settle in accordance with law at any stage
of the proceedings before rendition of judgment.” 75 The Rules, however,
provide parameters as to what the court can approve by way of compromise
agreement, i.e. it must be “in accordance with law, morals, public order and
public policy to protect the right of the people to a balanced and healthful
ecology”76 and shall be judicially approved in a consent decree.77 It is clear
therefore that under the Rules, environmental mediation is now a policy in the
courts. The Rules are applicable to environmental courts also known as “green
72
73
74
75
76
77
Id. part II, rule 3, § 3.
Id. §4 (a).
Id. § 5.
Id. § 10.
Id. § 5.
Id. § 4.
34
courts” which were designated to handle environmental cases. 78
Under the Rules, even after CAM fails, “the judge shall exert best
efforts to persuade the parties to arrive at a settlement of the dispute.” 79 This is
referred to as Judicial Dispute Resolution (JDR) wherein after CAM, the JDR
judge will continue to assist the parties in reaching an agreement regarding the
dispute. This is done by another judge through raffle and not the environmental
court judge unless the parties agree that this court shall conduct the JDR. 80 The
judge acts like a mediator and not adjudicator. Even after termination of pretrial and already in the trial stage, the case may be referred back to JDR while
trial is suspended should at least one of the parties desire to do so.81
The Rules categorizes environmental cases into three: ordinary civil
actions,82 special civil actions83 and criminal actions.84 Special civil actions
include the Petitions for Writ of Kalikasan85 and Writ of Continuing
Mandamus which are new and innovative remedies pioneered under the
78
79
80
81
82
83
84
85
Supreme Court, Re: Environmental Courts and Forestry Courts, SC A.M. No. 07-1112-SC (amended on Jan. 22, 2008), as implemented by SC Administrative Order No.
23-08, Designation of Special Courts to Hear, Try and Decide Environmental Cases
(Jan. 28, 2008).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part 2, rule 3, § 5.
RE: CONSOLIDATED AND REVISED GUIDELINES TO IMPLEMENT THE EXPANDED
COVERAGE OF COURT-ANNEXED MEDIATION [CAM] AND JUDICIAL DISPUTE
RESOLUTION [JDR]), A.M. No. 11-1-6-SC-PHILJA, Part Three, III, 4.
Supreme Court, Consolidated and Revised Guidelines to Implement the Expanded
Coverage of Court-Annexed Mediation [CAM] and Judicial Dispute Resolution
(JDR), SC A.M. No. 11-1-6-SC-PHILJA, part Three (IV) (Jan. 11, 2011).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II.
Id., part III.
Id., part IV.
Id., part III, rule 7.
35
Rules.86 The Petition for Writ of Kalikasan is a remedy filed in the Court of
Appeals or Supreme Court
available to a natural or juridical person, entity
authorized by law, people’s organization, non-governmental
organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons
whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual
or entity, involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in two or
more cities or provinces.87
On the other hand, the Petition for Writ of Continuing Mandamus is
filed in the Regional Trial Court, Court of Appeals or Supreme Court by a
person personally aggrieved
[when] any agency or instrumentality of the government
or officer thereof unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an
office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right
therein, or unlawfully excludes another from the use or
enjoyment of such right….88
The writ is continuing in that
[it] permits the court to retain jurisdiction after judgment in
order to ensure the successful implementation of the reliefs
mandated under the court’s decision. For this purpose, the court
may compel the submission of compliance reports from the
respondent government agencies as well as avail of other means
to monitor compliance with its decision.89
86
87
88
89
Id., part III, rule 8.
Id., part III, rule 7, § 1.
Id., part III, rule 8, § 1.
Abigail T. Sze, SC Unveils Landmark Rule of Procedure for Environmental Cases,
36
Under these petitions (both of which are exempt from payment of filing
fees),90 the petitioner may also pray for an Environmental Protection Order
(EPO) “directing or enjoining any person or government agency to perform or
desist from performing an act in order to protect, preserve, or rehabilitate the
environment.”91 When an EPO is prayed for, the petitioner may also ask for a
Temporary Environmental Protection Order (TEPO) as a provisional remedy.
The TEPO is issued if “the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury”. 92 No bond is required for its
issuance.93
Another highlight of the Rules is the provision on citizen suits wherein
“[any] Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations
under environmental laws.”94
2.
Nature of Environmental Disputes
As previously defined, environmental disputes are conflicts involving
the environment and natural resources wherein there are opposing rights or
interests in the management, control or use of such resources. The nature of
90
91
92
Benchmark,
Apr.
2010,
available
at
http://sc.judiciary.gov.ph/publications/benchmark/2010/04/041001.php (last accessed
May 8, 2013). See RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II, rule 5,
§§ 3 & 4.
Id., part III, rule 7, § 4 & part III, rule 8, § 3.
Id., part I, rule 1, § 4 (d).
Id., part II, rule 2, § 8.
37
environmental disputes is unique and such are not easy to resolve for the
following reasons: First, public interest is involved considering that the
environment is shared by all. Environmental conflicts are not private disputes
because they affect and concern the public interest, including non-parties and
future generations.95 Also, environmental rights are common and shared
because the environment is an interconnected system and environmental
damage affects and is ultimately felt by all, whether directly or indirectly.
Second, such disputes are complex in that they consist of scientific and
technical issues which may involve several parties with groups or communities
as affected parties who may or may not be organized or represented. Third,
because the issues are not simple, they are not easy to define. Because of the
complexity, the dispute is long-term and its resolution protracted thus leading
to strained relationships and polarization of the parties. Fourth, because of the
public nature of the dispute, it may attract more publicity than other kinds of
disputes. Fifth, it may involve power imbalance between or among the parties
because those who wish to exploit the environment are usually corporate
entities with resources whereas those who are vulnerable to environmental
destruction are oftentimes poor and marginalized as stated earlier. Lastly,
because of the effects on life and health of environmental issues coupled with
93
94
95
Id.
Id., part II, rule 2, § 5.
In Oposa, the Court famously ruled that with the right to a balanced and healthful
ecology, there is a corresponding duty to preserve the environment for future
generations (224 SCRA at 805).
38
the scientific uncertainty as to such effects, the affected parties feel strongly
about their cause while the other party has a different perspective and has
competing interests it wants to pursue.96
3.
Definition of Mediation in Environmental Disputes
For purposes of this paper, environmental mediation is defined as a
process of resolving environmental disputes with the aid of a neutral or
unbiased person called the mediator. Such third person is independent and
impartial, having no direct interest in the outcome of the dispute and no
relationship with the parties. He or she is not there to say which side is right.
The environmental mediator helps the parties communicate with each other,
particularly, to identify issues of mutual concern and develop proposals to
settle their disputes, suggest solutions thereto, and finally, to reach a negotiated
settlement which maximizes benefits for all sides. Thus, parties negotiate with
each other while the neutral mediates such process. This entails drawing out
what the parties agree on and what matters still need to be addressed, their
proposals to resolve the issues for their mutual advantage, explaining such
proposal and the arguments in support thereof to the other party and providing
information so that each party understands the other party’s views. In the
96
Stephen Higgs, The Potential for Mediation to Resolve Environmental and Natural
Resources
Disputes,
available
at
http://www.acctm.org/docs/The%20Potential%20For%20Mediation%20to%20Resolv
e%20
Environmental%20_CONNOR-Higgs_.pdf (last accessed Oct. 13, 2012) [hereinafter
Higgs, The Potential].
39
course of negotiation, the parties may accept, modify or withdraw the terms of
such proposals until they reach an agreement or consensus. The job also
includes diffusing heightened emotions or hostilities so that the parties can
move along with the discussion. Environmental mediators facilitate the
achievement of solutions advanced by the parties themselves and thus are
acceptable to them.
Mediation can either be facilitative or evaluative. In facilitative
mediation, the parties are merely assisted in reaching a settlement by an
independent and impartial third party. In evaluative mediation, the mediator
expresses an opinion on the strengths and weaknesses of the position of each
party in relation to its chances for success if litigation proceeds. The evaluative
mediator may also assess the reasonableness or fairness of the settlement
reached by the parties.97 In the Philippines, the focus is on facilitative
mediation. This is also referred to as conciliation.98
Often, environmental mediation is a voluntary procedure wherein the
parties can choose from an accredited list of mediators. Even here in the
Philippines where it is mandated as part of court pre-trial, it is non-compulsory
in the sense that the parties can opt out of the process after undergoing such in
good faith and can choose to bring their dispute back to court. Because the
97
98
Rhys Clift, Introduction to Alternative Dispute Resolution: A Comparison Between
Arbitration
and
Mediation,
available
at
http://www.simsl.com/Articles/MedArbComp0307.pdf (last accessed Feb. 11, 2013).
CARRIE J. MENKEL-MEADOW, ET AL., DISPUTE RESOLUTION: BEYOND THE
40
process is based on voluntariness, the environmental mediator cannot impose
on the parties, except to shape the process by laying down the ground rules for
their participation so that the conversation remains polite and respectful.
In environmental mediation, the mediator has no authority to decide the
dispute. He or she merely assists the parties in reaching a settlement. The
parties voluntarily cooperate with each other in order to reach a consensus
regarding their conflict, instead of the court or administrative tribunal imposing
its judgment. This collaboration entails a direct or “face-to-face” interaction
wherein they negotiate a mutual agreement which all parties find acceptable as
opposed to court litigation where the parties through their counsels advocate
for their respective positions and the judge adjudicates. The mediation process
likewise involves the sharing of information and use of experts.99
In many countries, environmental mediation has been found to be an
effective legal remedy despite its limitations. Its characteristics such
voluntariness, dialogue, exploration of a win-win solution and preservation of
harmony are appropriate in handling environmental conflicts where the issues
may be complex or highly technical and several groups are affected.
C.
Experience of Different Countries in Environmental
Mediation
99
ADVERSARIAL MODEL 44 (2005).
JAMES E. CROWFOOT & JULIA M. WONDOLLECK, ENVIRONMENTAL DISPUTES:
COMMUNITY INVOLVEMENT IN CONFLICT RESOLUTION 19 (1990).
41
The countries with a long history of environmental mediation are the
United States of America, Canada and Japan. To a lesser degree, Australia also
has a mature environmental mediation movement. In Europe, environmental
mediation is still in the infancy stage and is not as commonly used thus this
paper shall give attention to Germany which has an expanding practice of
environmental mediation. The paper shall also briefly discuss the situation in
New Zealand and South Africa, both of which have enacted statutes promoting
court-connected or annexed environmental mediation. The experience of China
will be skimmed though considering its rising prominence as a superpower.
Lastly, Indonesia will be examined as a fellow developing country with a
growing environmental mediation practice.
1.
United States of America
Environmental mediation started in the United States in the 1970s. The
first success story recorded was in 1973 when Gerald W. Cormick and Jane E.
McCarthy carried out mediation proceedings in relation to a proposed
construction of a flood control dam in Snoqualmie River in the Washington
State.100 Later, state-sponsored mediation offices were founded in various
states.101 Following decades of use, environmental mediation is now wellestablished and thriving in the United States as evidenced by the abundance of
100
101
SCOTT MERNITZ, MEDIATION OF ENVIRONMENTAL DISPUTES: A SOURCEBOOK 89-94
(1980).
Lawrence E. Susskind & Sarah Mckearnan, The Evolution of Public Policy Dispute
Resolution, 16 (2) J. OF ARCHITECTURAL AND PLANNING RESEARCH 96, 102
42
literature written on the topic,102 professionalization of the role of
environmental mediator and launching of numerous institutions providing
environmental mediation services. It has been used in site-specific
environmental disputes (typically involving proponents of project, the local
community and environmental interest groups) and in regulatory negotiations
in government agencies tasked with formulating environmental rules, policies
and standards and deciding administrative cases involving regulations.
Environmental mediation’s popularity followed the nation- and state-wide
promotion of ADR in settlement procedures for different kinds of negotiations
and disputes:
Since the beginning of the eighties the US congress has passed a
number of acts to promote the use of negotiation and mediation
procedures, the most outstanding of which is the Administrative
Dispute Resolution (ADR) Act of 1990 which gives federal
authorities extensive scope for using their powers of discretion
in deciding to use an ADR procedure and in choosing an
appropriate form. A number of federal states also encourage the
use of procedures for alternative dispute resolution; states have
set up offices to promote these procedures in cases of conflicts
under public law. Numerous procedures have been initiated to
mediate between departments or institutions of the political and
administrative system that are in competition or conflict. 103
(Italics in the original)
102
103
(Summer, 1999).
Robert F. Blomquist, Some (Mostly) Theoretical and (Very Brief) Pragmatic
Observations on Environmental Alternative Dispute Resolution in America, 34 (2)
VAL. U. L. REV. 343, 347-348 (2000).
Helmut Weidner & Hans-Joachim Fietkau, Environmental Mediation: The Mediation
Procedure on the Waste Management Plan in the District of Neuss, North RhineWestphalia—Initial Results of the Companion Social Science Research (An
Unpublished Paper Submitted to the Wissenschaftszentrum Berlin Für
Sozialforschung) 62, available at http://skylla.wzb.eu/pdf/1995/ii95-303.pdf (last
accessed Mar. 23, 2013).
43
The Administrative Dispute Resolution Act of 1990 104 mandates that
agencies consider ADR in rulemaking, litigation, enforcement actions and
licensing and permitting. The Negotiated Rulemaking Act of 1990 105 is a
federal law that promotes the use of mediation, among other ADR processes,
in rulemaking of federal agencies, e.g. Environmental Protection Agency. The
Alternative Dispute Resolution Act of 1998106 requires federal district courts to
implement ADR programs, 107 including mediation services. Several states have
followed suit and passed their own Negotiated Rulemaking and ADR Acts 108
or provisions into their environmental statutes. For example, California,109
Hawaii110 and New Jersey111 have court-related or ordered environmental
mediation. For example, the Vermont Environmental Court in 2005 started a
court-ordered mediation program.112
104
105
106
107
108
109
110
111
112
Administrative Dispute Resolution Act of 1990, 5 U.S.C. §§ 571-583 (1990),
amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320,
§ 3 (1996).
Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570 (1990).
Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651-658 (1998).
Alex Halem, Are Environmental Issues Suitable Subject Matter for Alternative
Dispute Resolution Methods? (An Unpublished Paper Submitted to the Rutgers
Conflict
Resolution
Law
J.)
4,
available
at
http://pegasus.rutgers.edu/~rcrlj/articlespdf/halem.pdf (last accessed Mar. 25, 2013).
Susskind & Mckearnan, supra note 101, at 111.
Jennifer Harder, Environmental Mediation: The Promise and the Challenge, 19 (1)
ENVIRONS 29, 35 (Dec. 1995).
Bruce Barnes, Mediation in the Pacific Pentangle (An Unpublished Paper Submitted
to the Programme on Conflict Resolution, Matsunaga Institute of Peace, University of
Hawaii) 92-93, available at http://www.peaceinstitute.hawaii.edu/2-site-media/6-pdfdownloads/5-papers/Mediation-in-the-Pacific-Pentangle.pdf (last accessed Mar. 25,
2013).
Halem, supra note 107, at 9.
TUN LIN & CANFA WANG, ET AL., GREEN BENCHES: WHAT CAN THE PEOPLE’S
REPUBLIC OF CHINA LEARN FROM ENVIRONMENT COURTS OF OTHER COUNTRIES? 13
(2009).
44
2.
Canada
The Canadian Environmental Assessment Act of 1992 113 is a federal
law providing for the use of ADR processes, including mediation, in resolving
environmental conflicts at any stage of the assessment process which is a
planning tool to determine the environmental and social impacts of a project.114
Mediation is used in administrative environmental tribunals of Canada in
connection with the settlement of disputes and the enforcement of
regulations.115 Most of the provinces have likewise incorporated mediation in
their environmental assessment statutes.116
3.
Japan
Like the Philippines, Japan is a civil law country. It is often described
as a non-litigious society which puts the highest importance to preserving
harmony in relationships. Because of this centuries-long cultural tradition of
consensus where litigation is not preferred, the country has an advanced ADR
system.117 Article 21 of the Japanese Basic Law of Environmental Pollution
113
114
115
116
117
Canadian Environmental Assessment Act of 1992, S.C. 1992 c 37 (1992) (Can.).
Jennifer Girard, Dispute Resolution in Environmental Conflicts: Panacea or
Placebo?, (An Unpublished Paper Submitted to the Canadian Forum on Civil
Justice), available at http://www.cfcj-fcjc.org/sites/default/files/docs/hosted/17465dr_environmental.pdf (last accessed Mar. 25, 2013).
See Matthew Taylor, et al., Using Mediation in Canadian Environmental Tribunals:
Opportunities and Best Practices, DALHOUSIE L. J. 51 (2000), available at
http://www.eab.gov.ab.ca/pub/Dalhousie%20Law%20Society%20Final.pdf
(last
accessed Mar. 21, 2012).
Girard, supra note 114.
Katja Funken, Alternative Dispute Resolution in Japan (An Unpublished Paper
Submitted to Social Science Research Network Electronic Paper Collection) 3 & 9,
45
1967 provides that the State shall take necessary measures for the proper
implementation of mediation and other ADR mechanisms in connection with
environmental pollution disputes. Thus, commissions, central and local ones
attached to local governments, were created to settle pollution disputes using
mediation, among others.118 The state has a public fund to cover the costs of
factual investigations and taking of expert opinion.119
Court-connected mediation (called "chotei") is the most used and
established ADR method in Japan.120 It is a mediation procedure before
litigation proper conducted through the summary and district civil courts
located throughout the country. 121 Specifically, mediation of environmental
disputes pertains to issues under the Pollution Dispute Settlement Law enacted
in 1970, e.g. “environmental pollution and infringement of interests, such as
access to sunlight and wind.”122 It is not, however, a pre-condition to the filing
of an environmental civil case.
The court appoints a mediation committee, which is usually composed
of a presiding judge, who will act as a mediator, and one or two non-judge
118
119
120
121
122
available
at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=458001&download=yes
(last
accessed Mar. 25, 2013) [hereinafter, Funken, ADR].
Barnes, supra note 110, at 39.
Id.
Katja Funken, Comparative Dispute Management: Court-connected Mediation in
Japan and Germany (An Unpublished Paper Submitted to the German L. J.), available
at http://www.germanlawjournal.com/article.php?id=130 (last accessed Mar. 24,
2013) [hereinafter, Funken, Comparative]. Other writers refer to this as conciliation.
Civil Conciliation Act, art. 3 (1951) (Japan).
Id. art. 33.
46
mediators, or just the judge but this is seldom the case.123 Mediators who are
non-judges are trained and thereafter appointed for two years on a part-time
basis. They come from different backgrounds. The parties can ask that the case
be referred to mediation at any stage of the dispute, upon payment of a fee. The
judge can unilaterally refer the case for mediation only during the start of the
proceedings.124 The parties (or their authorized counsel) are summoned to
appear and unjustified non-attendance is sanctioned with a fine.125 The
mediation committee has the power to examine the person or inspect the places
involved, summon witnesses, or require expert opinions.126 As long as the
committee allows it, the mediation can proceed as long as there is a possibility
of settlement. If the parties reach a settlement, the court can render judgment in
accordance with the mediated agreement as long as it is not contrary to law or
public policy. Otherwise, the court can choose to adjudicate between the
parties’ proposals. Or it can deem the proceedings as unsuccessful if the parties
cannot agree or the agreement reached is illegal or improper. 127 In these
situations, the committee refers the case back to litigation. The decision of the
committee based on settlement agreement can be appealed; otherwise, it is
binding on the parties.128
In such mediation proceedings, “legislatively enforceable rights are not
123
124
125
126
Id. arts. 5 ¶1, 6 & 7.
Id. arts. 2 & 20.
Id. art. 34.
Funken, Comparative, supra note 120.
47
necessarily recognized, and the committee is not bound by law or formal
weight of evidence. Rather, the conciliators will look more to standards such
as reason, common sense, equity and morality.” 129
The Environmental Dispute Resolution Committee, which is a
government administrative commission, is also mandated to provide
environmental mediation services under the 1970 Pollution Dispute Settlement
Law.130
Recently, in 2004, the promotion of ADR was again officially
recognized in The Act on Promotion of Use of Alternative Dispute
Resolution.131
4.
Australia
Mediation in Australia started in the 1980s with government-run
community justice centers found throughout the country. 132 There are also
government-subsidized organizations offering mediation services. 133 The
National Alternative Dispute Resolution Advisory Council established in 1995
127
128
129
130
131
132
Civil Conciliation Act, art. 14.
Id. arts. 18 & 21.
Funken, ADR, supra note 117, at 43.
Izumi Chibana, Environmental Dispute Settlements in Japan (An Unpublished Paper
Submitted to the Institute of Developing Economies) 2, available at http://darch.ide.go.jp/idedp/IAL/IAL001100_013.pdf (last accessed Mar. 26, 2013).
Act No. 151 of 2004 (2004) (Japan) .
Nadya Alexander, Mediation in Practice: Common Law and Civil Law Perspectives
Compared, (An Unpublished Paper Submitted to the University of Queensland) 3,
available
at
http://espace.library.uq.edu.au/eserv.php?pid=UQ:8886&dsID=Mediation_in_Pra.pdf
48
is the federal government’s policy making center for ADR. Environmental
mediation, in particular, began in the 1990s. The New South Wales Land and
Environment Court started offering mediation services in 1991.134 In certain
cases, mediation is mandatory before judicial proceedings can be initiated. 135
From 2006 when the current ADR system was implemented, the percentage of
cases being settled has risen.136 Specifically, civil enforcement proceedings are
referred to mediation, with mediators being court-appointed or outside
mediators chosen by the parties.137 The issue in civil enforcement is the alleged
lack of compliance with a statutory obligation and the remedy that should be
granted to enforce compliance, e.g. the amount of civil penalty. 138 This is
usually settled through mediation with a high settlement rate. 139 The Court has
the authority to check the propriety of the agreement entered into.140
In State of Queensland, there is a Planning and Environment Court
133
134
135
136
137
138
139
(last accessed Mar. 23, 2013) [hereinafter Alexander, Mediation in Practice].
Id. at 4.
Created under the Land and Environment Court Act 1979, Act 204 of 1979 (1979)
(Austl.). Neil Sipe, Environmental Mediation in Australia: Comparisons and
Contrasts with the US, ADR BULLETIN, Vol. 2, No. 4, Art. 2, Sep. 1999, at 1,
available at http://epublications.bond.edu.au/adr/vol2/iss4/2 (last accessed Mar. 30,
2013).
Brian J. Peston, The Use of Alternative Dispute Resolution in Administrative
Disputes (An Unpublished Paper Submitted to the Symposium on “Guarantee of the
Right to Access to the Administrative Jurisdiction” on the Occasion of the 10th
Anniversary of the Supreme Administrative Court of Thailand 9 March 2011) 12,
available
at
http://www.lec.lawlink.nsw.gov.au/agdbasev7wr/_assets/lec/m420301l721754/presto
n_use%20of%20alternative%20dispute%20resolution%20in%20administrative%20di
sputes.pdf (last accessed Mar. 30, 2013).
Id. at 14.
Id. at 20.
Id. at 18-19.
Id. at 20.
49
which also provides mediation service which is not mandatory and utilizing a
highly trained mediator.141 A similar mediation service exists in Tasmania.
5.
Germany
Germany is a civil law country like the Philippines and Japan.
Attention and interest in mediation only started in the 1990s following its first
environmental mediation case involving waste management initiated in
1984.142 Environmental mediation is often initiated by local or regional
authorities
with
services
offered
by
government-subsidized
private
organizations and not by the courts.143 The practice of environmental
mediation is growing as shown by the creation of a national association of
public and private groups of practitioners in 1998 called Forderverein
Umweltmediation e.V.144
In Germany, judges have traditionally been required to try to settle civil
disputes and encourage the parties to reach a settlement before trial starts145 or
at every stage of the case.146 This is not the same as mediation because it is not
necessarily interest-based and the same judge will hear and adjudicate the
140
141
142
143
144
145
146
Id.
PRING & PRING, supra note 5, at 64.
Martina Handler et al., Promoting Environmental Mediation as a Tool for Public
Participation and Conflict Resolution: A Comparative Analysis of Case Studies from
Austria, Germany and CEE Countries (Final Report (2004) 8, available at
http://archive.rec.org/REC/Programs/PublicParticipation/Mediation/PDF/promoting_
mediation_and_collaborative_conflict_resolution.pdf (last accessed Aug. 1, 2011).
Id. at 18.
Alexander, Mediation in Practice, supra note 132, at 10.
Code of Civil Procedure, § 278 (Ger.).
Id. § 279.
50
matter if no agreement is entered into.147 A new law promoting mediation
became effective in 2012 where the judge has the option of referring the
dispute to another judge for mediation or to an expert private mediator.148
6.
New Zealand
Under the Resource Management Act 1991,149 the Environmental Court
is a “specialist court” which hears appeals of decisions from the regional and
local councils.150 Its members are called Environmental Judges and
Environmental Commissioners,151 the latter being experts in technical
environmental matters. It encourages the use of its mediation service with the
consent of the parties at any stage during the hearing of the case. 152 The
mediation service is run by the Environmental Commissioners.153 The number
of environmental cases going through court-annexed mediation has been
147
148
149
150
151
152
153
Nadya Alexander, et al., Mediation in Germany: The Long and Winding Road,
available
at
http://espace.library.uq.edu.au/eserv.php?pid=UQ:8895&dsID=Global_Trends_Me.p
df (last accessed Mar. 22, 2013).
Axel Volkery, et al., Study on Environmental Complaint-Handling and Mediation
Mechanisms at National Level Final Report (An Unpublished Paper Submitted to the
European
Commission)
125-126,
available
at
http://www.ieep.eu/assets/1180/Environmental_mediation_and_complainthandling.pdf (last accessed July 12, 2013).
Public Act 1991 No. 69 (1991) (New Zealand).
Marlene Oliver, Implementing Sustainability – New Zealand’s Environment CourtAnnexed Mediation (An Unpublished Paper Submitted to the Indian Society of
International
Law)
12,
available
at
http://www.leadr.co.nz/db/images/M_PDFs/marlene%20oliver%20paper.pdf
(last
accessed Mar. 25, 2013).
Resource Management Act 1991, Public Act 1991 No. 69, § 248 (New Zealand).
Id. § 268.
Jan Crawford, Evaluating Mediation in the Environment Court (An Unpublished
Paper Submitted to the Resource Management Law Association of New Zealand Inc.)
15
(2008),
available
at
51
steadily increasing from the 1990s.154 Also, environmental mediation is more
commonly done in the court and only rarely conducted through private
organizations.155 When an agreement is reached, the court may approve a
consent order taking into consideration its legality and public interest.156
7.
South Africa
Although the Independent Mediation Service in South Africa has been
established since 1984, recognition of environmental mediation there is a
relatively recent phenomenon which came with the passing of the National
Environmental Management Act 1998.157 Under Section 17 thereof, the proper
government official facing a conflict in an environmental matter in relation to
his or her functions, in disagreements between government offices or between
the government and private parties, may refer such to mediation. Likewise, a
court or tribunal hearing an environmental dispute may suspend the
154
155
156
157
http://www.rmla.org.nz/upload/files/rmla08_jancrawford_evaluatingmediation.pdf
(last accessed Mar. 25, 2013).
Id. at 16.
Id. at 4.
Id.
Act to Provide for Co-operative, Environmental Governance by Establishing
Principles for Decision-making on Matters Affecting the Environment, Institutions
that will Promote Co-operative Governance and Procedures for Co-ordinating
Environmental Functions Exercised by Organs of State; and to Provide for Matters
Connected therewith [National Environmental Management 1998], Act No. 107
(1998) (South Africa). Jürg Alder, The Use of Mediation to Resolve Environmental
Disputes in South Africa and Switzerland, at 49 (2005), (unpublished thesis,
University
of
Cape
Town),
available
at
http://www.publiclaw.uct.ac.za/usr/public_law/LLMPapers/alder.pdf (last accessed
Mar. 23, 2013).
52
proceedings and refer the parties to mediation.158 As of 2005, the provisions on
mediation have not yet been implemented.159
8.
China
The Chinese, who adhere to the Confucian philosophy which gives
emphasis to preservation of social harmony, generally view litigation as a last
resort hence mediation has since ancient times been a favored mode of dispute
resolution.160
China has court-performed or managed mediation, people’s
mediation and administrative mediation. In court-performed mediation, the
judge acts as mediator and the mediated agreement has the effect of a
judgment.161 People’s mediation, which is handled by People’s Mediation
Committees under the supervision of local courts, deals with environmental
civil disputes, usually noise pollution cases.162 The resulting settlement
agreements are considered civil contracts. In the administrative level, the local
environmental protection bureau can mediate between the parties.163
9.
158
159
160
161
162
163
Indonesia
Id. at 54.
Id. at 54-55.
Stefanie Beyer, Environmental Law and Policy in the People’s Republic of China, 5
(1) CHINESE JIL 185, 190 (2006).
Jingjing
Liu,
Environmental
Dispute
in
China,
available
at
http://www.vermontlaw.edu/Documents/032108-naelsChinaPanelLiu.pdf
(last
accessed July 19, 2013).
Beyer, supra note 160.
Adam Moser & Tseming Yang, Environmental Tort Litigation in China, 41 ELR
10895, 10898 (2011), citing 1989 Environmental Protection Law, art. 41 (China).
53
In Indonesia, environmental mediation in or out of court is allowed
under the Environmental Management Act No. 4 of 1982,164 as amended in
1997.165 Mediation has long been practiced in the country by ethnic groups
though a tradition called musyawarah wherein the community leader facilitates
dispute resolution between the parties by drawing out common interests and
encouraging compromise.166 To ensure that the mediator in out-of-court
settlement is neutral, the law authorizes the “creation of an environmental
dispute settlement service by the government or community.” 167 In 2003, the
Indonesian
Supreme
Court
enacted
rules
governing court-connected
mediation.168
Many developing countries have no or little experience in
environmental mediation. It is interesting to note that one developing country,
Brazil, has federal and state environmental courts169 but has no tradition of
164
165
166
167
168
169
Principles of Environmental Management, Environmental Management Act 1982 No.
4, State Gazette 1982 Number 3215 (1982) (Indon.).
Law Concerning Environmental Management, Environmental Management Act 1997
No. 23, Supplement to State Gazette Number 3699 (1997) (Indon.).
David Nicholson, Environmental Dispute Resolution in Indonesia, at 165-166 (2005)
(unpublished
thesis,
Leiden
University,
available
at
https://openaccess.leidenuniv.nl/bitstream/handle/1887/580/Thesis_Nicholson.PDF?s
equence=12 (last accessed July 20, 2013).
Id. at 169; Environmental Management Act 1997 No. 23, art. 33 (Indon.).
Mariana Sutadi, The Implementation of ADR in Indonesia (An Unpublished Paper
Submitted to ASEAN Law Association) 2, citing Supreme Court Regulation (Perma)
Number 02 Year 2003 on Court Connected Mediation Procedure, available at
http://www.aseanlawassociation.org/9GAdocs/w4_Indonesia.pdf (last accessed July
22, 2013).
Lal Kurukulasuriya &Kristen A. Powell, History of Environmental Courts and
UNEP’s Role. 3 (1) JOURNAL OF COURT INNOVATION 269, 274-276 (2010).
54
using mediation and other ADR processes in environmental conflicts.170 India
has a newly passed law171 creating Special Green Courts but such did not
provide for mediation in resolving disputes despite the fact that there is courtannexed mediation for other disputes in the country. 172 In Thailand, there is an
Environmental Division of the Supreme Court but mediation is employed for
environmental disputes only in the administrative level, .i.e. in the Department
of Environmental Quality Promotion, Ministry of Natural Resources and
Environment.173
D.
International Environmental Mediation
Environmental problems can have transboundary effects. When the
environmental dispute is international in character, the international
community’s policy is to encourage and promote peaceful and voluntary
means of dispute settlement, including mediation,174 so that States do not resort
170
171
172
173
174
Celso Simoes Bredariol & Alessandra Magrini, Conflicts in developing countries: a
case study from Rio de Janeiro, 23 ENVIRON. IMPACT ASSES. REV, 489, 491 (2003).
An Act to provide for the establishment of a National Green Tribunal for the effective
and expeditious disposal of cases relating to environmental protection and
conservation of forests and other natural resources including enforcement of any legal
right relating to environment and giving relief and compensation for damages to
persons and property and for matters connected therewith or incidental thereto
[National Green Tribunal Act] (2010) (India).
Ashish Kumar, The Potentials of Mediation in the Settlement of Environmental
Disputes (An Unpublished Paper Submitted to World Mediation Organization) 7
&16, available at http://www.world-mediation.org/education/paper-12.pdf (last
accessed July 20, 2013).
Sorawit Limparangsri, Alternative Dispute Resolution in ASEAN: A Contemporary
Thai Perspective (An Unpublished Paper Submitted to the ASEAN Law Association)
6, available at http://www.aseanlawassociation.org/9GAdocs/w4_Thailand.pdf (last
accessed July 19, 2013).
Lisa B. Bingham & David Cameron Prell, Arbitration of Environmental Disputes that
Cross National Boarders, available at http://www.eolss.net/Sample-Chapters/C14/E1-
55
to force.
Mediation, as one of the cooperative ways of settling disputes, is
preferred to resolve international disputes. It is seen as a mode of settlement
that does not compromise the sovereignty of States and the voluntariness in
participation ensures or at least increases the possibility of voluntary
compliance with any settlement agreed upon.
Mediation has a better success rate than conflict-oriented
processes; one study of United Nations - led mediation efforts
found that the likelihood of an agreement being reached is two
to five times greater in mediated conflicts than in those where
mediation is not utilized.175
It is in the nature of environmental disputes to cross national
boundaries. Hence, it makes sense to resolve such in an international setting.
Nation-states and their peoples are passionate about environmental problems
because damage to the environment affects their quality of life or even their
very survival. Everyone’s concern, wherever one lives in the globe, is the
viability of the ecosystem so that life can continue. Such less confrontational
and party-controlled procedures are preferred because their lack of
contentiousness contributes to the ultimate goal of preservation of the
environment through cooperative effort and at the same time prevents resort to
violence or armed conflict. This is essential given the difference in cultures,
175
40-03-04.pdf (last accessed Feb. 24, 2013).
Bradley L. Roth, A Call for Mediated Solutions to Arctic Region Disputes, 19 (3)
CARDOZO J. OF INT’L & COMP. L. 851, 868 (Summer 2011).
56
worldviews, perspectives and values of the parties to the dispute.
International environmental disputes can come about when there is
non-compliance with treaty obligations. Mediation is useful when there is
difficulty in determining what particular treaty is applicable because there is no
need to determine rights and obligations under the international law regime.
Considering that environmental disputes are often multilateral and not just
bilateral in nature, mediation is appropriate.176 In international regimes which
are usually shaped by the dominant Western rationality, mediation can draw
forth indigenous or native perspectives, which may not have been given
importance, in resolving the conflict. The mediator can assist the parties in
bridging the parties’ differences in culture and value-systems to find a
workable solution. The parties can choose a neutral venue to prevent any
perception of bias of a “home court” advantage to any party.
Environmental problems between States can cause and escalate
tensions and even violence when the environmental impact causes severe
hardships. Thus there is a need for peaceful mechanisms to diffuse such
tension. Below are some of these international environmental mediation
mechanisms:
The United Nations Charter encourages the use of mediation in
176
World Trade Organization Committee on Trade and Environment, Compliance and
Dispute Settlement Provisions in the WTO and in Multilateral Environmental
Agreements, WT/CTE/W/191 (June 6, 2001).
57
resolving international disputes:
The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of
their own choice.177 (Italics supplied)
In 1992, the United Nation Conference on Environment and
Development (UNCED) Agenda 21 encouraged skills training in mediation:
Such training should address both the effective application and
the progressive improvement of applicable laws, the related
skills of negotiating, drafting and mediation, and the training of
trainers.178
The 1986 Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region (Noumea Convention)179 which is a
regional agreement states:
Article 26
Settlement of disputes
1. In case of a dispute between Parties as to the interpretation or
application of this Convention or its Protocols, they shall seek a
settlement of the dispute through negotiation or any other
peaceful means of their own choice. If the Parties concerned
cannot reach agreement, they should seek the good offices of, or
jointly request mediation by, a third Party. xxxx
In 1993, the North American Free Trade Agreement (NAFTA) member
governments adopted the North American Agreement on Environmental
177
178
179
U.N. Charter art. 33, ¶ 1.
Rio Declaration on Environment and Development, supra note 13, annex II, Agenda
21, ¶ 8.20.
Convention for the Protection of the Natural Resources and Environment of the South
58
Cooperation180 which is an environmental side agreement to the NAFTA. It
established the Commission for Environmental Cooperation (CEC) which may
use mediation to resolve disputes between parties.181
International environmental mediation mechanisms may also be
contained in Multilateral Environmental Agreements. A Multilateral
Environmental Agreement (MEA) has been defined as a “legally binding
agreement between two or more countries containing commitments to meet
specific environment-related objectives.”182 Most of the dispute settlement
mechanisms found in these agreements are not compulsory and require the
consent of the parties.183 The mediator or neutral may be a third party which is
also a party to the agreement, the secretariat or a designated committee.184
Some environmental agreements recommend mediation in order
to facilitate cooperation between the Parties concerned. The role
of the mediator is usually assigned to another Party to the
agreement, the Secretariat or a specific Committee of the
Convention. For example, the Montreal Protocol and the
Convention on Biological Diversity state that if the Parties
concerned cannot reach agreement by negotiation, they may
jointly seek the good offices of, or request mediation by, a third
180
181
182
183
184
Pacific Region, adopted Nov. 24, 1986, 26 I.L.M. 38.
North American Agreement on Environmental Cooperation, 32 I.L.M. 1480 (adopted
Sep. 14, 1993).
Id. art. 23.
UNITED NATIONS ENVIRONMENT PROGRAMME POST-CONFLICT AND DISASTER
MANAGEMENT BRANCH, MULTILATERAL ENVIRONMENTAL AGREEMENTS: A
HANDBOOK FOR AFGHAN OFFICIALS 8 (2008).
United Nations Environment Programme, Draft Manual on Compliance with and
Enforcement of Multilateral Environmental Agreements 90, available at
http://www.ippc.int/file_uploaded/1182346786718_meas_draft_manual_nov24_fullv
ersion.pdf (last accessed Feb. 27, 2012).
BALAKRISHNA PISUPATI, ET AL., ISSUES OF COMPLIANCE: CONSIDERATIONS FOR THE
INTERNATIONAL REGIME ON ACCESS AND BENEFIT SHARING 26 (2010).
59
Party. Rather than providing for mediation as a second step after
negotiation has failed, some MEAs provide mediation as an
alternative choice.185
For example, the Convention for the Conservation of Antarctic Marine
Living Resources which was concluded in 1980 and entered into force in 1982
provides:186
Article XXV: [Dispute settlement]
1. If any dispute arises between two or more of the Contracting
Parties concerning the interpretation or application of this
Convention, those Contracting Parties shall consult among
themselves with a view to having the dispute resolved by
negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement or other peaceful means of their own choice.
xxx
xxx
xxx
There are agreements which state that if the Parties are unable to reach
an agreement by negotiation, they may jointly seek good offices of, or request
mediation by, a third Party and if still unresolved, any Party may consent to
compulsory arbitration. These include The Montreal Protocol on Substances
that Deplete the Ozone Layer 187 which was adopted pursuant to the 1985
Vienna Convention for the protection of the Ozone Layer 188 (entered into force
185
186
187
188
Compliance and Dispute Settlement Provisions in the WTO and in Multilateral
Environmental Agreements, supra note 176, at 4.
Convention for the Conservation of Antarctic Marine Living Resources, adopted Dec.
1, 1959, 402 U.N.T.S. 71.
The Montreal Protocol on Substances that Deplete the Ozone Layer, opened for
signature Sep. 16, 1987, 1522 U.N.T.S. 3.
Vienna Convention for the Protection of the Ozone Layer art. 11, opened for
signature Mar. 2, 1985, 153 U.N.T.S. 293.
60
on September 22, 1988) and the Convention on Biological Diversity189
(entered into force on December 29, 1993). Others make mediation an
alternative along with the rest of the peaceful mechanisms with no hierarchical
or progressive order and likewise not a secondary step after negotiation, e.g.,
The Agreement for the Implementation of the Provisions of the UN
Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks or the UN Fish Stocks Agreement 190 (in force as of
December 11, 2001).
The World Trade Organization (WTO) is tasked to settle trade disputes
and administer the Understanding on Rules and Procedures Governing the
Settlement of Disputes for conflicts which may arise under the WTO
agreements. Such disputes, which may involve environmental issues, are
referred to mediation:
Dispute settlement is identified as a principle function of the
[WTO]. The WTO dispute settlement process begins with
consultations and proceeds with [General Agreement on Tariffs
and Trade] conciliation or mediation services. A party may
request that the dispute be heard by a panel, which receives
submissions from all interested parties and issues a report. The
Dispute Settlement Body (DSB) adopts the panel’s report unless
there is joint opposition to such adoption. Any of the parties to
the dispute may appeal the panel’s decision to the Appellate
Body, a standing body of seven members. Parties are required
to implement the panel ruling within a “reasonable period of
189
190
Convention on Biological Diversity art. 27, opened for signature June 5, 1992, 1760
U.N.T.S. 79.
G.A. Res. A/CONF.164/37, part VIII, art. 27, U.N. GAOR, 6th Sess. (Sep. 8, 1995).
61
time.” If ruling is not implemented, the injured party may be
compensated and retaliatory measures may be undertaken.191
However, it has been observed that mediation is seldom resorted to by
States or by private entities with a claim against States because they would
prefer that a decision be imposed, as in litigation:
The main reason seems to be that states want to externalize
responsibility in order to appear in a better light before their
constituencies. They want a binding decision by a tribunal or
court in order to be able to say to the people: Look, we have
fought hard for our position, now we can’t help the result. It is
not our fault, we have to abide with the decision of the
arbitrators or judges.192
With respect to enforcement of an internationally mediated agreement,
the parties shall voluntarily comply with its terms which may be incorporated
in a court order of the appropriate fora, and in case they do not, court remedy is
available to enforce the same. However, international instruments do not
provide guidance regarding the enforceability of the settlement.
There is a view that outcomes resulting from dispute settlement
provisions of treaties and other agreements in relation to the environment can
be enforced in domestic courts which have actual control over and access to
the relevant persons and resources:
191
Dionysia – Theodora Avgerinopoulou, The Role of the International Judiciary in the
Settlement of Environmental Disputes and Alternative Proposals for Strengthening
International Environmental Adjudication (An Unpublished Paper Submitted to the
Yale Center for Environmental Law and Policy) 7, available at
http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/Avgerinopoulou.pdf
(last accessed Feb. 18, 2013).
62
The right to enforce international laws through domestic court
need not be included in a treaty. This right exists as one of the
enforcement mechanisms of international law and, as such, it
may be used to enforce any rule, treaty, or custom, where the
domestic court would otherwise permit it…. Even if a treaty has
a mandatory dispute settlement provision, only rarely will it
include enforcement arrangements. Accordingly, domestic
courts are rarely closed out of the enforcement task.193
Chapter Four
Environmental Mediation vis-à-vis Environmental Litigation
Socially, basic difficulties arise from the deceptions of some in government and the agenda of
some organizations, but at a deeper level, they stem from the social outrcry that goes largely
unheeded, and from the personal burdens, frustrations and hardships of the poor. The primary
problem is one of deep mistrust, aggravated by the feeling of not being heard, of not being
listened to, of one being respected, of being pushed aside by lack of time and understanding,
and by preconceptions of the other. This is the result of a long-term absence of any meaningful
political participation; it takes more than a ballot box to make a functioning democracy. It is a
result of a lack of real dialogue in which a meaningful consensus is painstakingly forged, a
neglect of, almost a contempt for, the marginalized people, and failure to develop the latent
194
but rich human potential for which the country is all the poorer.
A.
Advantages of Environmental Mediation over Litigation
In the Philippine context, litigation is an involuntary, formal and public
process for dispute resolution where a government-appointed judge determines
192
193
194
Anne Peters, International Dispute Settlement: A Network of Cooperational Duties,
14 (1) EUR. J. OF INT’L L. 1, 7 (2003).
Mary Ellen O’Connell, Enforcement and the Success of International Environmental
Law, 3 (1) IND. J. GLOBAL LEGAL STUD. 47, 65 (Fall, 1995).
ENVIRONMENTAL SCIENCE FOR SOCIAL CHANGE, MINING REVISITED: CAN AN
63
facts and decrees an outcome to legal causes of action based on adversarial
presentations of arguments and evidence by each party and after applying laws
and rules.195 Litigation is seen as a rights-based approach wherein a verdict is
made in accordance with the rights protected under laws and rules whereas
mediation is an interests-based approach of dispute resolution which seeks to
unearth and deal with the interests of the parties.
Culling from experience of other countries and the Philippines’ own
familiarity with mediation in general, the following are the potential benefits of
mediation in environmental disputes over litigation in the country if it is
practiced well and the parties engage the process with good intentions:
Appropriate to Filipino Culture. Mediation resonates with the Filipino
values of neighborliness and solidarity. It relies on the goodwill of the parties
involved in a dispute to arrive at a mutually acceptable solution. Each party
strives to consider what is good for both parties and resolve the other’s
problem. Such resonance necessarily can contribute to the success of the
process.
Decongesting Court Dockets. One of the policy objectives of courtmandated mediation in environmental cases is to divert court cases from
proceeding to a full-blown trial. Hence, it helps relieve court dockets.
195
UNDERSTANDING OF PERSPECTIVES HELP? i-ii (1999).
MENKEL-MEADOW, ET AL., MEDIATION: PRACTICE, POLICY,
[hereinafter MENKEL-MEADOW, MEDIATION].
AND
ETHICS 14 (2006)
64
Resultantly, the reduction of caseload can have the effect of improving the
quality of work of judges.
Comprehensive Process and Outcome. The parties explain the reasons
behind their positions. These strongly felt interests are presented to the other
party. Thus, in discussing what their real issues are, the parties are not limited
by the legal definition of their dispute, i.e. the cause of action or elements of
the crime and legal defenses.196 The process allows them to thresh out what
truly matters to them, even related non-legal concerns. Thus the resulting
agreement is more comprehensive. Possibly, it addresses even the underlying
or root causes of the conflict. Furthermore, the mediated solution may integrate
not only the needs of the disputants but of the ecosystem as a whole.
Efficient and Economical. It is speedier and more efficient because it
does away with a protracted trial. Consequently, it is less costly and more
convenient because the parties need not spend much on paying lawyers and
going to the court to attend trial. Counsels’ participation is not indispensable in
mediation because the parties themselves can speak on their own behalf. This
is significant because “the filing of environmental cases has ‘increased tenfold
from 1996 to 2008.’”197
Informal and Understandable. Since it is an informal process without
196
197
Antonio M. Martinez, Mediation in the Courts and the Barangay Justice System, 4
THE PHILJA JUDICIAL J., 67, 71 (Jan. - Mar. 2002).
Francis N. Tolentino, An Environmental Writ: The Philippines’ Avatar, 35 (1) IBP J.
65
the rigidity of procedural rules and esoteric or legalese language of court
practitioners, proceedings are more casual and understandable where parties
can participate meaningfully in the process.
Flexibility of Process. The process of mediation is flexible so as to
respond to the peculiar difficulties in reaching an agreement. Thus, meetings
between parties can be arranged on a time and in a place most convenient for
them unlike trials which the court sets. The meetings would still most likely be
during the office hours of the mediation officers but there is more leeway in
fixing the time as compared to court hearings.
Creative and Contextual Resolutions. The parties can explore creative
options and a greater variability of solutions that are not available or cannot be
produced through court remedy. The settlement reached by the parties can be
tailored to their particular situation. More inventive solutions that are
responsive to specific interests of the parties can emerge. This is because the
group discussion “enables participants to broaden the range of possible
alternatives. Freed from the narrowness and restrictions of a purely legal
challenge, solutions can be very creative.” 198
Mutually Satisfactory and Stable Outcome. Since the objective is to
voluntarily reach a consensus, the successful outcome is acceptable to both
198
117, 131 (Aug. 2010).
CROWFOOT & WONDOLLECK, supra note 99, at 257.
66
sides. Unlike in litigation, no one loses and assignment of blame is not
necessary. The parties make concessions because of the uncertainty of the
result if litigation proceeds. Also, the outcome is implementable, realistic and
practical since it came from the parties themselves and they voluntarily bound
themselves to abide by it. The parties have a sense of ownership of the
agreement and feel more responsible over it. Furthermore, if their needs or
interests are met, they are more likely to be committed to abide by the terms
that they themselves worked out. Thus the solution is more enduring than one
that is imposed by a third party/judicial decree.199 It also makes it possible for
dialogue to continue even after the particular dispute has been settled such that
long-term solutions can be further worked out.
Empowerment and Control of Outcome.
The central values of
mediation are self-determination and empowerment which means that the
parties retain control over the process and outcome.200 The parties’ views are
affirmed and they gain the capacity, resources, knowledge and skills to solve
their own problems.201 When the outcome is vital to their lives, people
generally desire to directly participate and have a say in the decision-making
process. Empowerment also means that the weaker party is assisted during the
process while being fair to the stronger group.
199
200
201
Martinez, supra note 196.
MENKEL-MEADOW, MEDIATION, supra note 195, at 94.
EDWARD W. SCHWERIN, MEDIATION, CITIZEN
TRANSFORMATIONAL POLITICS 62-70 (1995).
EMPOWERMENT,
AND
67
Improved Communication. Communication is without animosity
because it is non-confrontational and non-adversarial, discouraging the
demonization of the other party. Hence, rapport, trust and understanding are
increased and tension defused. Stress is lessened and cordial relations are made
possible. This results in the parties becoming more willing to share relevant
information and collaborate with each other. Such direct or face-to-face
interaction of parties who may have been alienated from each other paves the
way for real problems to be uncovered and solutions reached.202 The parties
may bring in any information they wish, not limited by cumbersome rules of
evidence and procedure.203
Relationships are Preserved. The dialogue between the parties mends
rifts, preserves or even improves their relationship, or at the very least does not
damage it because trust and respect are developed. Eventually, it fosters
harmony and cultivates a culture of peace in the community. Some say that
mediation sooner or later leads to social transformation by peaceful relations.
Maintenance of relationships of stakeholders is valuable for the present and
future protection of the environment.
Discovery of Common Ground. Frequently, parties in an environmental
dispute have different values and views when it comes to environmental
202
203
Gail Bingham & Lee M. Langstaff, Alternative Dispute Resolution in the NEPA
Process, available at http://www.resolv.org/wp-content/uploads/2011/02/nepa.pdf
(last accessed June 24, 2012).
MENKEL-MEADOW, MEDIATION, supra note 195, at 27.
68
protection. This is why mediation would be preferred over the adversarial
process: in mediation, the parties are assisted in finding and establishing
common ground from which they can move forward.
Expertise of a Mediator. To help steer them towards an agreement,
parties can choose a third party who has an expertise on environmental dispute
resolution whereas a judge, who they did not choose, may not be as
knowledgeable or skillful. Such expert neutral party can help them understand
the scientific and technical issues. In contrast, judges of green courts who must
adjudge environmental cases may not be as familiar considering that they are
duty-bound to be knowledgeable about all fields of law and need not be experts
in environmental law. Also often, there is scientific uncertainty when scientists
disagree or have different findings with respect to the environmental effects of
an activity. The mediator can help parties to agree upon an expert whose
opinions will be trusted in the course of reaching an agreement. This helps in
lowering expenses and prevents a “battle of the experts” which is usual in
environmental litigation.204 It also avoids the selective use of facts to support
partisan positions.
Capacity to Resolve Future Disputes. Because the parties learn a new
process of dispute resolution, this skill is instilled and can be put to use in
resolving future disputes. In addition, since the parties have already talked and
204
Higgs, The Potential, supra note 96.
69
worked together to solve mutual problems, they can avoid a repeat of past
pitfalls and establish new ways of amicably dealing with each other.
Multi-party Disputes. Environmental mediation is appropriate in multiparty disputes where diverse interests need to be addressed whereas this can be
too cumbersome in a court trial.
Confidentiality. Mediation provides for a more private atmosphere
where the parties are assured of the confidentiality of the proceedings. To
encourage an open and honest disclosure of relevant information to aid in the
resolution of the conflict, matters discussed during the CAM and JDR are
considered confidential information which shall be inadmissible as evidence
for any purpose in any other proceedings. 205 The proceedings are conducted in
private and the persons shall not divulge information communicated therein. 206
This is unlike court trials which are open to the public and court decisions
which are mandated to be published for the public to be informed.
Furthermore, a party is allowed to communicate privately to the mediator
without the presence of the other party as long as this other party knows.
Considering the interest involved in environmental disputes, confidentiality
minimizes the publicity generated which in turn facilitates a successful and
peaceful resolution of the conflict.
205
206
RE: CONSOLIDATED AND REVISED GUIDELINES TO IMPLEMENT THE EXPANDED
COVERAGE OF COURT-ANNEXED MEDIATION [CAM] AND JUDICIAL DISPUTE
RESOLUTION [JDR]), A.M. No. 11-1-6-SC-PHILJA, part Four.
Id.
70
Procedural Democracy. Even where specific solutions to problems are
not found or commitments not reached, dialogue and discourse during
mediation enhances democracy.207
Moving Forward. Although mediation may fail, the parties would not
have sacrificed their claims and can still pursue rights-based dispute resolution
mechanisms.
B.
Limitations of Environmental Mediation
But even proponents admit that environmental mediation has its
difficulties:
Agreement is Voluntary. Obviously, the parties cannot be forced into a
settlement and may end up with a stalemate. In a formal rights-based approach,
the decision is imposed on the party.
Investment of Time. Because environmental disputes are complex, the
parties have to commit a substantial amount of time, effort and resources to the
process. Thus, there is the challenge of keeping the parties, their
constituencies, other stakeholders and the general public interested and
involved.208
Lack of Skills. The parties and their representatives may not have the
207
MENKEL-MEADOW, DISPUTE PROCESSING AND CONFLICT RESOLUTION: THEORY,
PRACTICE AND POLICY 32 (2003) [hereinafter, MENKEL-MEADOW, DISPUTE
71
necessary skills in negotiating a fair and acceptable agreement.
Timing is Relevant. In the Philippines, there is a question as to its
effectivity when hostilities already exist as in instances where environmental
clashes result in a long history of bad relations or even violence and bloodshed.
No Precedent. The process does not create precedents. There is no
consistency in the treatment of environmental problems, thus outcomes cannot
be predicted. This may negatively impact on environmental governance.
Social Norms Not Protected. It can be said that such approach to
conflict resolution does not create, refine or enforce agreed upon societal
norms for behavior209 in relation to the environment. In contrast, the judge
decides based on formal rules which bind people and communities together in
generally accepted understanding of what they value. 210
Rights Undervalued. A public trial may be necessary to establish
important legal principles or to ensure that parties or communities do not
negotiate below their legal entitlement. Because of the focus on interests,
legitimate rights which should be enforced are undermined. When rights are
not fully enforced, the status quo of the parties, which may be unjust, is
maintained. A party or community which is a victim of injustice who had been
208
209
210
PROCESSING].
Id. at 259
MENKEL-MEADOW, MEDIATION, supra note 195, at 16 & 92.
MENKEL-MEADOW, DISPUTE PROCESSING, supra note 207, at 22.
72
seriously wronged may need to have his, her or its rights vindicated through a
public process and not a confidential settlement just for the sake of harmony,
which may set back legitimate environmental advocacies or movements.
Lack of Transparency. Because of the broader public interest involved,
critics want the proceedings and outcome to be more transparent and open to
public scrutiny.
Power Imbalances Exacerbated. There is also a concern as to whether
parties can really negotiate as equals when there is a power imbalance (like a
multinational corporation versus a poor community). For a settlement to be
successful, it is assumed that the parties have relatively equal status or
bargaining powers which may not be the case in reality. Although the resulting
agreement is not illegal,211 the poorer, informal or weaker party may have been
forced to just acquiesce to a disadvantageous settlement by the dominant party
or by the process itself because of such party’s desperation, limitations or
inadequacies. Even if the parties and the third party assisting them attempt to
ensure a leveled playing field, it may not overcome structural inequalities or
historical injustices which have disempowered the underrepresented,
marginalized and vulnerable sectors. Factors that can affect the balance of
power in the process are class, gender, education, social status, age, religion,
211
In Philippine alternative dispute resolution processes, the compromise agreement is
required to be one that is not contrary to law, morals, good customs, public policy and
public order (CIVIL CODE, art. 1306) so that the court approves the same and orders
all parties to comply with the terms and conditions under pain of writ of execution
73
sexual orientation, values and mental or psychological condition of the
participants.212
Third Party is Never Neutral. When parties are assisted by a mediator,
the process may be unwittingly skewed towards an outcome even if such third
party is well-intentioned. This is because no one, not even the mediator, is
exempt from prejudices and subconscious preconceived ideas of fairness or of
how things should be.
Needs of the Public Overlooked. The disputing parties may be satisfied
with the solution but the broader community or general public’s welfare may
be disadvantaged if the violator of environmental laws is also allowed to be a
winner in a mediated settlement.213
Ensuring Representation of All Affected Parties. Some affected
stakeholders may not be represented because they are marginalized. Some may
be represented but the representative may not be adequately representing their
interest. In order to have sustainable agreements, there is also the question of
who represents those who cannot be present at the negotiating table, i.e. future
212
213
[Gasaino v. Akol, 652 SCRA 378, 381 (2011)].
Eleanor Conda, Traversing Boundaries and the No-Man’s Land: On Mediation,
Gender, Rights and Justice, in A SOURCEBOOK ON ALTERNATIVES TO FORMAL
DISPUTE RESOLUTION MECHANISMS 133 (2008).
See Peter H. Kahn, Jr., Resolving Environmental Disputes: Litigation, Mediation, and
the
Courting
of
Ethical
Community
available
at
http://faculty.washington.edu/pkahn/articles/Resolving_ Environmental_ Disputes.
pdf (last accessed Oct. 13, 2012).
74
generations – who will be their advocate?214
1.
Institutional Limitations of Environmental Mediation in the
PMC
Aside from inherent constraints of the mediation process, the following
are some of the institutional, organizational and financial limitations of the
PMC which is mandated to implement court-annexed environmental
mediation:
No Special Rules on Environmental Mediation. There may be concerns
and issues in environmental mediation which cannot be addressed by the
general rules on CAM.
Budget Constraints. A lot of the weaknesses of the system can be traced
to a lack of sufficient budget to make environmental mediation efficient and
effective. The budget of the judiciary is merely around 1% of the national
budget215 and it lacks the resources to adequately fund its programs. Piloting of
CAM was actually funded by foreign funding agencies, 216 not by the
government. There is also lack of personnel since the PMC has less than 200
214
215
See Alexis Gensberg, Mediating Inequality: Mediators’ Perspectives on Power
Imbalances
in
Public
Disputes,
available
at
http://dspace.mit.edu/bitstream/handle/1721.1/66400/52971312.pdf?sequence=1(last
accessed Oct. 13, 2012).
DPK Consulting & CPRM Consultants, Inc., Final Report to the Asian Development
Bank on a Long-Term Justice Sector Development Strategy for the Republic of the
Philippines (An Unpublished Report Submitted to Asian Development Bank) 14,
available at http://www2.adb.org/Documents/Reports/Consultant/38277-PHI/3827702-PHI-TACR.pdf (last accessed Oct. 5, 2012).
75
personnel to oversee all kinds of CAM.217 Court facilities are inadequate
considering that not all courts can afford to have a proper mediation room
conducive for environmental mediation. In fact,
PhilJA’s experience has shown that local stakeholders (e.g.
local government, Chamber of Commerce) play a crucial role in
the establishment and operation of PMC units. In Leyte, for
instance, PMC units were established through support from the
Congresswoman and Governor who allocated funds for the
construction of the PMC Building. 218
Mediation Fee. Under Rule 141, Section 9 of the Rules of Court, as
amended,219 the fee of Php 500.00 is necessary to fund the PMC units but
many disputants, especially those who strongly feel aggrieved, do not want to
pay the mediation fee resulting in their non-appearance during the
proceedings.220 It is only free if the complainant applies to litigate as a pauper
litigant which has to be approved by the court. However, the requirement for
mediation fee is necessary until the mediation program is totally subsidized by
the government.
Low Compensation. Environmental Mediators (just like any general
mediator) in the PMC are not given competitive compensation and merit
216
217
218
219
220
Mercado & Torres, supra note 10, at 27.
PHILIPPINE JUDICIAL ACADEMY, supra note 64, at 69.
Mercado & Torres, supra note 10, at 27, at 29.
Supreme Court, Guidelines for Collecting Fees for the Mediation Fund Under Section
9, Rule 141, SC A.M. No. 4-2-04-SC (July 20, 2004).
Often, complainants’ say: “Agrabyado na nga, magbabayad pa ako para
makipagkasundo.” (“I am the aggrieved party and yet I am the one who has to pay in
order to settle with the other party.”)
76
incentives to encourage them to improve. They earn only Php 2,500.00 for
every successfully mediated case and Php 1,500.00 for an unsuccessful one,
the latter limited to three unsuccessful cases per month.221 These rates are low
considering the amount of time and effort necessary for a successful
environmental mediation.
Lack of Information. Because of a court’s work load and lack of
information that can be accessed by disputants, the latter may go to the
environmental mediation process not knowing what to expect. The process
may not have been properly explained to them and they do not fully understand
what is happening in a process that should have been under their control. Thus,
the process seems alienating and unacceptable, defeating its purpose.
Office Hours. Mediation in general, like court trials, is still done within
office hours so disputants still have to excuse themselves from work or family
duties in order to attend. To deliver the flexibility promised and offered by
environmental mediation, the mediator should be open to suggestions and exert
best efforts to accommodate the schedules and time considerations of the
parties.
Stakeholders’ Attitudes. There is resistance from the litigants’
advocates/lawyers or the implementing judges in undertaking the process.
221
Supreme Court, Re: Collection of Mediation Fees/Fund and Payment of Mediators'
Fees, SC A.M. No. 04-8-12-SC (July 31, 2012).
77
They may believe that environmental mediation merely adds another layer to
court trial that will just prolong an already delayed and burdensome
administration of justice. On the part of the lawyers, they may be threatened by
its effect on their livelihood because litigation is discouraged and their
presence is not necessary and depends upon the discretion of the environmental
mediator. Lawyers need a “paradigm shift” because they are used to the
principles and values of litigation and not of mediation. Both lawyers and
judges have not been ingrained with the core values of the ADR nor have they
been trained or equipped with skills to assist in a process where the parties are
encouraged to reach a mutually beneficial solution during their “formative”
years in the law school.
Non-attendance of Parties. The parties do not take the process seriously
and absent themselves during the scheduled conferences. The mediators
usually do not recommend to the judge any sanctions for such non-appearance
and just report the mediation as having failed.
Lack of Monitoring. The reports of the trial courts do not give detailed
information and statistics regarding environmental mediation thus it is difficult
to analyze the system and provide recommendations to fix problems.
No Accredited Environmental Mediators. PMC’s mediators have a
general accreditation and not specifically as environmental mediators.
Presently, accredited mediators are preachers, teachers, former judges, lawyers,
78
businessmen and women, media practitioners, military and peace officers,
barangay councilors and other government officials, doctors, bankers and
social workers.222 They practice as general mediators who do not focus on
environmental disputes. This makes it difficult for them to develop an
expertise in environmental mediation. Because of this lack of expertise, they
may not have the competence, knowledge or skills to help the parties
understand their environmental issues.
Pressure to Settle. Mediators are paid more if the parties reach a
compromise agreement thus they might consciously or unconsciously push for
a settlement which the parties are compelled to accept for various reasons.
What constitutes successful mediation should not be limited to the signing of a
compromise agreement.
Nondisclosure of Information. Considering that the process is noncoercive and purely voluntary where the environmental mediator has no
authority to compel disclosure, a party may not share information relevant in
achieving an optimal agreement.
Lack of Environmental Courts. Environmental disputes often occur in
remote places where access to courthouses is difficult.
Untested Environmental Mediation. Most of the environmental cases
222
Hector D. Soliman, Preface, in A SOURCEBOOK
DISPUTE RESOLUTION MECHANISMS xix (2008).
ON
ALTERNATIVES
TO
FORMAL
79
filed consist of crimes with no private offended parties which cases are not
mediatable.
Need for Court Case. Under the Rules, mediation only happens if the
conflict is already a case in court. The PMC does not provide environmental
mediation services for disputes which are not yet in court. Yet typically, before
a case can even be filed, the parties need a neutral party to assist them in
threshing out and discussing their issues, including conflict mapping and
guidance in organizing as a group. Additionally, because of the nature of an
environmental dispute, it may be continuing or may sprout other disputes. This
would entail filing court cases every time in order to undergo mediation which
may become burdensome.
80
Chapter Five
Consent Decree
When an agreement is reached, whether through CAM or JDR, the
judge where the case was filed is tasked to approve the compromise agreement
if it is not contrary to law, morals, good customs, public order and public
policy.223 This takes the form of a consent decree. The Rules define a consent
decree as “a judicially-approved settlement between concerned parties based
on public interest and public policy to protect and preserve the
environment.”224
223
224
CIVIL CODE, art. 1306.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part 1, rule 1, § 4 (b).
81
The Philippines has not had much experience with consent decrees.225
But in the United States, the very first consent decree appeared in the 1859
case of United States v. Peralta.226 Consent decrees were first heavily utilized
in anti-trust litigation.227 Thereafter, it had been used for public interest
disputes involving civil rights and environmental issues.228 Thus, the American
doctrines on consent decrees will be used as a guide for this study. Likewise,
this study shall draw on existing Philippine jurisprudence on general principles
applicable to consent decrees, in particular case law on compromise
agreements under civil and labor laws.
A.
Nature of Consent Decree
A consent decree is both contract and judgment or court order.229
According to the framers of the Rules:
The designation of a consent decree as a mode of
settlement gives emphasis to the public interest aspect in
environmental cases and encourages the parties to expedite the
resolution of litigation. A consent decree derives its contractual
nature from the fact of their being entered into by the parties
themselves through which they arrive at a certain compromise
225
226
227
228
229
Rommel J. Casis, Green Rules: Gray Areas and Red Flags, 86 PHIL. L.J. 765, 772773 (2012).
27 F. Cas. 502 (N.D. Cal. 1859). Frank J. Macchiarola, The Courts in the Political
Process: Judicial Activism or Timid Local Government?, 9 ST. JOHN'S J.L. COMM.
703, 707 (1994).
Timothy K. Webster, Protecting Environmental Consent Decrees from Third Party
Challenges, 10 VA. ENVTL. L.J. 137, 140 (1990).
Id. at 140.
Jeremy A. Rabkin & Neal E. Devins, Averting Government by Consent Decree:
Constitutional Limits on the Enforcement of Settlements with the Federal
Government, 40 (1) STAN. L. REV. 203, 207 (Nov. 1987), citing United States v. ITT
Continental Baking Co., 420 U.S. 223, 236 n.10 (1975); Webster, supra note 227, at
139.
82
with respect to the issues involved in the case, whereas their
judicial feature is acquired through the approval of the court.230
The contract aspect pertains to the compromise agreement between the two
parties “whereby the parties, by making reciprocal concessions, avoid a
litigation or put an end to one already commenced.” 231 Such reciprocal
concessions where all parties benefit mean that parties give up claims or
defenses that they could have advanced if trial ensued. They are bound by what
they have agreed upon and not what they may be entitled to under the law. The
agreement is prepared by the parties and signed by them. Just like any contract,
to be valid, the following elements must concur pursuant to Article 1318 of the
Civil Code: (a) consent of the contracting parties; (b) object certain that is the
subject matter of the contract; and (c) cause of the obligation. Consent means
that the parties voluntarily, freely and intelligently executed the agreement
with full knowledge. It is “manifested by the meeting of the offer and cause
which are to constitute the agreement.”232 The object is what is specifically
stated in the agreement, including other objects by necessary implication.233
The cause or consideration consists of the reciprocal concessions.
The court which approves the compromise agreement renders a
judgment based on such agreement and orders the parties to faithfully comply
230
231
232
233
Secretariat of the Sub-committee on the Rules of Procedure for Environmental Cases,
Annotation to the Rules of Procedure for Environmental Cases 102-103 (2010).
CIVIL CODE, art. 2028.
Regal Films, Inc. v. Concepcion, 362 SCRA 504, 508 (2001).
CIVIL CODE, art. 2036; Chu v. Cunanan, 657 SCRA 379, 387 (2011).
83
with their agreement in good faith. Once approved, it becomes more than a
mere contract between the parties and thereafter has the force and effect of a
judgment.234 As in other decisions based on compromise agreement, the
judgment operates as disposing of the merits of the case. It is already a
determination of the controversy and has the effect of res judicata on the
parties.235 It should not be disturbed and is not appealable except for vices of
consent (e.g. mistake, fraud, misrepresentation, coercion or duress), forgery236
or if the terms of settlement are so palpably unconscionable.237 The rationale is
thus:
Adjective law governing judicial compromises
annunciate that once approved by the court, a judicial
compromise is not appealable and it thereby becomes
immediately executory but this rule must be understood to refer
234
235
236
237
Martir v. Verano, 497 SCRA 120, 126-127 (2006).
Rabkin & Devins, supra note 229, at 207, citation omitted.
CIVIL CODE, art. 2038; Republic v. Florendo, 549 SCRA 527, 536 (2008).
Art. 2038 states:
Art. 2038. A compromise in which there is mistake, fraud, violence,
intimidation, undue influence, or falsity of documents, is subject to the provisions of
Article 1330 of this Code.
However, one of parties cannot set up a mistake of fact as against the other if
the latter, by virtue of the compromise, has withdrawn from a litigation already
commenced.
Clark Development Corporation v. Mondragon Leisure and Resorts Corporation, 517
SCRA 203, 219 (2007), citing Genova v. De Castro, 407 SCRA 165, 172-173 (2003).
Prudence Realty and Development Corp. v. Court of Appeals, 231 SCRA 379, 389
(1994) discusses the remedies of aggrieved parties:
“Where the aggrieved party alleges mistake, fraud, violence, intimidation,
undue influence, or falsity in the execution of the compromise embodied in a
judgment, an action to annul it should be brought before the Court of Appeals, in
accordance with Sec. 9 (2) of BP 129, which gives that court exclusive original
jurisdiction over inter alia actions for annulment of judgments of regional trial courts.
The other available remedy is a motion for relief from judgment, which may
be sought under Rule 38, Secs. 2 to 3, of the Rules of Court, on the ground that the
judgment was obtained through fraud, mistake or excusable negligence. This must be
filed with the court that rendered the judgment, within 60 days after the petitioner is
notified of the judgment and not more than six months after its entry.”
84
and apply only to those who are bound by the compromise and,
on the assumption that they are the only parties to the case, the
litigation comes to an end except only as regards to its
compliance and the fulfillment by the parties of their respective
obligations thereunder. The reason for the rule, said the Court
in Domingo vs. Court of Appeals, is that when both parties so
enter into the agreement to put to a close a pending litigation
between them and ask that a decision be rendered in conformity
therewith, it would only be “natural to presume that such action
constitutes an implicit waiver of the right to appeal” against that
decision. The order approving a compromise agreement thus
becomes a final act, and it forms part and parcel of the judgment
that can be enforced by a writ of execution unless otherwise
enjoined by a restraining order.238
It follows that concessions made by the parties not contrary to law,
morals, good customs, public order and public policy are binding even though
the agreement may have gone beyond the issues of the case. As to the parties,
it is still res judicata because the compromise is not of the claim alone but
even its incidents and ramifications.239
A judicial compromise has the force of law and is conclusive between
the parties.240 A party cannot discard it unilaterally because of a change of
mind thus under Article 2041 of the Civil Code, if one of the parties fails or
refuses to abide by the compromise, the other party may either enforce the
compromise or regard it as rescinded without necessity for a prior judicial
238
239
240
Armed Forces of the Philippines Mutual Benefit Association, Inc. v. Court of
Appeals, 311 SCRA 143, 155 (1999), citing Litton v. Court of Appeals, 331 Phil. 324
& Domingo v. Court of Appeals, 325 Phil. 469.
Salazar, et al. v. Jarabe, 91 Phil. 596, 601 (1952), citing McCarthy v. Barber
Steamship Lines, 45 Phil. 488.
Martir, 497 SCRA at 127.
85
declaration of rescission241 and insist upon his, her or its original demand. The
court has no power to relieve the parties of obligations they voluntarily
assumed “simply because the compromise agreement turned out to be unwise,
disastrous or foolish. It [has] no authority to impose upon the parties a
judgment different from or against the terms and conditions of their
compromise agreement.”242
Because it is generally not appealable, it is immediately final and
executory such that execution is the ministerial duty of the court. Under Article
2037 of the Civil Code, a compromise has the effect and authority of res
judicata upon the parties even if not judicially approved; but when judicially
approved, it is already a judgment subject to execution. A mere contract can be
judicially executed through an action for specific performance but a consent
decree just like any judgment can be enforced in the same proceeding through
a writ of execution.243 In case of default, refusal or failure to abide with its
terms, the aggrieved party is entitled to a writ of execution.244 The obligations
undertaken under the decree for which a writ of execution has been issued
must be obeyed under penalty of contempt.245 Still, it has been held that “the
241
242
243
244
245
Iloilo Traders Finance Inc. v. Heirs of Oscar Soriano Jr., 404 SCRA 67, 73 (2003),
citing Diongzon v. Court of Appeals, 321 SCRA 477 (1999).
Martir, 497 SCRA at 129, citing Choithram Jethmal Ramnani v. Court of Appeals,
413 Phil. 194, 209 (2001) & Manila International Airport Authority (MIAA) v. ALA
Industries Corporation 422 SCRA 603, 610-611 (2004).
Martir, 497 SCRA at 128, citing Dela Rama v. Mendiola, 401 SCRA 704, 713
(2003).
Id.
Under 1997 RULES OF CIVIL PROCEDURE, rule 71; Prudence Realty, 231 SCRA at
86
court may stay immediate execution of a judgment where supervening events
bring about a material change in the situation of the parties which makes the
execution inequitable, or where there is no compelling urgency for the
execution because it is not justified by the prevailing circumstances.”246 As a
judgment, the court retains jurisdiction over the execution of the same.
Under the non-impairment of obligations of contracts clause of the Bill
of Rights,247 the terms and conditions confirmed in a final and executory
consent decree cannot be impaired by subsequent legislation248 in line with the
principle that laws generally have prospective application.
There is
impairment if a subsequent law changes the terms of a contract between the
parties.249 Existing laws are deemed to be read into the compromise agreement
as a contract but the reinterpretation of laws in judicial decisions likewise
should be applied prospectively. 250 However, the non-impairment clause must
yield to the police power of the state.251 Such police power may consist in the
passage of subsequent legislation for the purpose of advancing the right of the
people to a balanced and healthful ecology.
246
247
248
249
250
251
390.
Dalida v. Naguit, 526 SCRA 172, 175-176 (2007), citing Laurel v. Abalos, 140 Phil.
532 (1969) & Hualam Construction and Dev’t Corp. v. Court of Appeals, 214 SCRA
612 (1992).
PHIL. CONST. art. III, § 10.
National Waterworks and Sewerage Authority v. NLRC, 258 SCRA 48, 53 (1996).
Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, 653 SCRA
154, 241-242 (2011).
Cemco Holdings, Inc. v. National Life Insurance Company of the Philippines, Inc.,
529 SCRA 355, 375 (2007), citing Serrano v. National Labor Relations Commission,
346 Phil. 1003, 1010 (1997).
Oposa, 224 SCRA at 813, citations omitted.
87
The consent decree is res judicata and binding only on the parties to the
suit who are signatories to it and their successors in interest.252 Accordingly, it
is not binding on co-litigants who did not sign the same (e.g. a defendant not
mentioned in the agreement),253 more so third parties to the case. It follows that
a non-party cannot be allowed to enforce, modify or amend the agreement.254
Those harmed by it or who feel that the terms are insufficient or inadequate are
not prevented from filing their own suit later on, especially those who are not
organized, have no resources or have no access to information regarding the
proceedings.
Non-parties who want to contest an approved consent decree can do so
in the higher court on the ground of abuse of discretion.255
Where there are, along with the parties to the
compromise, other persons involved in the litigation who have
not taken part in concluding the compromise agreement but are
adversely affected or feel prejudiced thereby, should not be
precluded from invoking in the same proceedings an adequate
relief therefor. A motion to set aside the judgment to the extent
he might feel aggrieved, or might justifiably fear to be at risk by
acquiescence unless timely invoked, is such a remedy. A denial
of the motion to set aside the judgment on the compromise
agreement opens the door for its possible elevation to a higher
court. If the motion is denied, he may, considering the special
finality feature of the compromise judgment, albeit partial, and
its susceptibility to execution, take an appeal from the order of
252
253
254
255
Aromin v. Floresca, 496 SCRA 785, 807 (2006).
Limpo v. Court of Appeals, 482 SCRA 333, 338 (2006).
Periquet v. Intermediate Appellate Court, 238 SCRA 697, 713 (1994), citing J.M.
Tuason & Co., Inc. v. Cadampog, 7 SCRA 808 (1963).
Maimon Schwarzschild, Public Law by Private Bargain: Title VII Consent Decrees
and the Fairness of Negotiated Institutional Reform, 1984 (5) DUKE L. J. 887, 931
(Nov. 1984).
88
denial under Rule 45 or even, when circumstances particularly
warrant, the extraordinary remedy prescribed in Rule 65, of the
Rules of Court. That appeal notwithstanding, the main case still
subsists allowing him to have continued locus standi.256
Because of its nature and being an outcome of mediation, a consent
decree in an environmental case does not adjudicate causes of action which
happened in the past. By focusing on the interests of the parties and the
objective of reaching a mutually workable solution, the decree affects the
present and future not just of the parties but of other third parties which may
include future generations, transboundary communities and even other species.
B.
Benefits of Consent Decree
A consent decree has the advantages of mediation because it is a
product of the negotiations of the parties. The most obvious advantage for
plaintiff is the assurance that compensation will be received and for the
defendant that liability may be reduced than if the court decides the case. 257
Considering its hybrid nature as both contract and judgment, the following are
its additional benefits:
Open to Public Scrutiny. Because it is a judgment, it is published and
accessible to the public.
Judge Protects Public Interest. Even if public interest is not properly
represented and defended during mediation, the judge is responsible for
256
AFP, 311 SCRA at 155-156, citations omitted.
89
ensuring that the consent decree does not contravene public interest.
Compliance. Aside from the advantage of voluntary compliance made
possible by mediated settlements, the court which approved the consent decree
retains jurisdiction over the decree’s execution. In the event of non-compliance
by the parties, such can be remedied through the same court and action without
necessitating resort to a separate action thus saving time. Under the Rules, the
court can monitor the execution of all judgments,258 not just consent decrees.
The supervision of the court and its contempt powers can assist in the
enforcement of the consent decree. The continued supervision of the court is
also valuable in guiding the parties in interpreting and carrying out
complicated agreements.259 It has been held that because a judgment by
compromise is final and executory, it cannot be amended or modified unless
such would “consist only of supplying an omission, or striking out a
superfluity or interpreting an ambiguous phrase therein in relation to the body
257
258
Magbanua v. Uy, G.R. 458 SCRA 184, 196 (2005).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II, rule 5, § § 3 & 4.
Section 3. Permanent EPO; writ of continuing mandamus. - In the judgment,
the court may convert the TEPO to a permanent EPO or issue a writ of continuing
mandamus directing the performance of acts which shall be effective until the
judgment is fully satisfied.
The court may, by itself or through the appropriate government agency,
monitor the execution of the judgment and require the party concerned to submit
written reports on a quarterly basis or sooner as may be necessary, detailing the
progress of the execution and satisfaction of the judgment. The other party may, at its
option, submit its comments or observations on the execution of the judgment.
Section 4. Monitoring of compliance with judgment and orders of the court
by a commissioner. - The court may motu proprio, or upon motion of the prevailing
party, order that the enforcement of the judgment or order be referred to a
commissioner to be appointed by the court. The commissioner shall file with the court
written progress reports on a quarterly basis or more frequently when necessary.
90
of the decision which gives it life.”260
But there is American jurisprudence stating that the court can modify
its terms, even over the objection of a party when crucial to give effect to the
decree.261 This is particularly helpful when the implementation of the
settlement will take some time to complete.262
Non-admission of Wrongdoing. The defendant can be allowed to take
on obligations to the plaintiff without admitting to any wrongdoing 263 hence
avoiding the concomitant negative perception arising from such admission or
adverse decision. A compromise likewise cannot be construed to be an
admission of liability of the parties to a third party. 264
Partial Consent Decrees. In multi-party disputes, some of the parties
can choose to settle the case without affecting the non-consenting parties.265
Future Behavior Affected. Although a consent decree is not precedent,
it may influence future actions of stakeholders including industry players, even
if they were not involved in the case.
259
260
261
262
263
264
265
David L. Callies, The Use of Consent Decrees in Settling Land Use and
Environmental Disputes, 21 STETSON L.REV. 871, 872 (1992).
Heirs of Felicidad Vda. De Dela Cruz v. Heirs of Pedro T. Fajardo, 649 SCRA 463,
472 (2011), citing Inaldo v. Balagot, 203 SCRA 650, 654 (1991).
Schwarzschild, supra note 255, at 895; Rabkin & Devins, supra note 229, at 207-208,
citing United States v. Swift & Co., 286 U.S. 106, 114 (1932).
Macchiarola, supra note 226.
Chavez v. Court of Appeals, 453 SCRA 843, 852 (2005), citing Servicewide
Specialists, Inc. v. Court of Appeals, 257 SCRA 643 (1996).
Servicewide, 257 SCRA at 656.
Webster, supra note 227, at 141.
91
Some of the benefits of consent decrees address the limitations of
environmental mediation: a consent decree is published as a judgment thus it
cannot be criticized for not being transparent and it is enforceable in court
unlike other privately mediated agreements.
C.
Dangers of Consent Decree
There are likewise some misgivings about consent decrees:
Encroachment on Policy-making. Judges are criticized for encroaching
on environmental policy and engaging in judicial rule-making when approving
a consent decree. The idea is that policy formulation is best done by the
political branches of government because they are elected to represent the
people and are accountable to them. These branches have an established
system of providing notice and hearings to the public in the passage of policies
not only to inform them but to come up with well-thought out rules that would
comprehensively address needs. Courts, on the other hand, adjudicate based on
facts which happened in the past through adversarial presentations in a trial. It
is all the more unacceptable that policies are the outcome of negotiations of the
parties which the judge approves without trial. Aside from it being an
encroachment, the effect is often a piece-meal police-making because it is in
the context of a dispute between the litigating parties which may disregard
92
other stakeholders, both present and future.266 Besides, such additional
functions tend to overburden the courts.
It is also argued that the judge assumes an “unfamiliar role” in relation
to the consent decree267 because he or she becomes involved in the execution,
implementation or monitoring of his or her judicial decisions. This may
already be in the sphere of responsibility of the executive branch of
government and going beyond the judge’s usual judicial functions.
No Precedent. Even if a consent decree is a judgment, it is just like any
mediated settlement that does not create precedent for future cases.
Non-parties Affected. The case affects others and not just the parties
who are negotiating and proposing a consent decree to be approved. It cannot
be expected that the parties will draft an agreement that will be beneficial to
third parties thus it may not be possible that everyone will be satisfied with the
solution. Parties may externalize the costs and burdens of their settlement such
that these costs do not affect them leaving it to others (present or future) to
bear them.268
D.
Duty of the Court
266
Macchiarola, supra note 226, at 721.
Id. at 709.
Robert Zeinemann, The Characterization of Public Sector Mediation, 24 ENVIRONS
ENVTL. L. & POL'Y J. 49, 57 (2001).
267
268
93
Mindful of their benefits, compromises are allowed and accepted, even
favored and encouraged by the courts.269 The court can even approve
compromise agreements submitted to it for approval that were executed
outside the court and without its assistance.270 Just like ordinary contracts, in
interpreting the agreement, “the intention of the parties is to be ascertained
from the agreement itself, and effect should be given to that intention. Thus,
the compromise agreement must be read as a whole.” 271 It has even been held
that:
Compromises are generally to be favored and cannot be
set aside if the parties acted in good faith and made reciprocal
concessions to each other in order to terminate a case. This
holds true even if all the gains appear to be on one side and
all the sacrifices on the other.272 (Emphasis in the original)
However, the duty of the court is to ensure that the agreement is not
contrary to law, morals, good customs, public order and public policy to
protect the right of the people to a balanced and healthful ecology.273 It is not
there merely to rubberstamp or to give pro forma approval. The judge should
269
270
271
272
Rañola v. Rañola, 594 SCRA 788, 794 (2009), citing DMG Industries, Inc. v.
Philippine American Investments Corporations, 526 SCRA 682, 687 (2007); CIVIL
CODE, art. 2029 states:
Art. 2029. The court shall endeavor to persuade the litigants in a civil case to
agree upon some fair compromise.
Rule 18, § 2(a) of the 1997 RULES OF CIVIL PROCEDURE:
Sec. 2. Nature and purpose. – xxx.
(a) The possibility of an amicable settlement or of a submission to
alternative modes of
dispute resolutions.
Algabre v. Court of Appeals, 28 SCRA 1130, 1138-1139 (1969).
Chu, 657 SCRA at 387-388, citing Adriatico Consortium, Inc. v. Land Bank, 609
SCRA 403 (2009).
Domingo Realty, Inc. v. Court of Appeals, 513 SCRA 40, 67 (2007), citing Amarante
v. Court of Appeals, 232 SCRA 104, 108 (1994).
94
actively and independently assess and thereafter approve, deny or modify the
agreement in accordance with these criteria. The parties may not be expected
to go beyond their narrow concerns thus it is the judge, with his or her
knowledge of the law, who can look out for this broader interest and scrutinize
the agreement’s conformity with the law. This duty inevitably falls on the
judge because the mediator is not required to be an expert of the law. This does
not require the judge to look into the merits of the case. The court decides
independently of the adversarial proceedings. Nonetheless, the agreement
should be aligned with the objectives of the laws invoked in the dispute.
However, the judge can impose additional terms274 without supplanting
the will of the parties. When needed, particularly in complicated environmental
cases, the unspecialized judge can always seek assistance in obtaining
information independent of the parties and evaluating the proposal by engaging
experts, commissioners275 or amicus curae.276 When appointed by the court,
they are considered officers of the court who are expected to assist it in good
faith. The primordial duty is to ensure that the consent decree will not go
against popular will expressed in legislation.
To repeat, the approved compromise agreement should not be contrary
to law, morals, good customs, public order and public policy to protect the
273
274
275
276
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II, rule 3, § 5.
Webster, supra note 227, at 142.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II, rule 3, § 6 (k).
LEGAL E THICS, rule 138, § 16.
95
right of the people to a balanced and healthful ecology. Otherwise, it is null
and void ab initio; it vests no rights in and creates no obligation for any party
and “produces no legal effect at all.”277 “The void agreement cannot be
rendered operative even by the parties’ alleged performance (partial or full) of
their respective prestations”278 because “all acts performed pursuant to it and
all claims emanating from it have no legal effect”.279 The consent of the parties
does not make it valid and neither does the approval of the court make an
otherwise illegal contract legal because it has no authority to do so for the
court cannot go against the law.280 A void consent decree “can never become
final, and any writ of execution based on it is void.” 281
Traditionally, the judge’s work in the Philippines is characterized as
passive: he or she receives evidence presented by the parties and then decides
in accordance with the applicable laws and rules which he or she merely
applies or interprets as they are and without modification. In approving a
consent decree, he or she must evaluate the proposal which necessitates
sufficient understanding of the factual context of the conflict. Even after the
decree is issued, the judge is active in that he or she supervises its
implementation. Throughout the process, he or she is expected to be impartial
and insulated from political pressures. In Metropolitan Manila Development
277
278
279
Rivero v. Court of Appeals, 458 SCRA 714, 735 (2005), citing Chavez v. PCGG, 307
SCRA 394 (1999).
Uy v. Chua, 600 SCRA 806, 819 (2009).
Id. at 820.
96
Authority v. Concerned Residents of Manila Bay,282 the Philippine Supreme
Court said that in enforcing its decision, the continued jurisdiction of the court
over executive agencies is not an encroachment by the Court over executive
functions.
E.
Consent Decrees in the Philippines
A few consent decrees have been issued by the Philippine courts. In
petitions filed in the Supreme Court, the Court had referred cases to the Court
of Appeals (CA) for reception of evidence and rendition of judgment. In one
case, the Kalinga Anti-Pollution Action Group (Kapag) filed a Petition for
Writ of Kalikasan in the Supreme Court and prayed that the local government
of Bontoc be ordered to close the Caluttit Open Dump. The Court issued a
Writ of Kalikasan against Bontoc on October 17, 2012. In a February 22, 2013
resolution, the CA, which administered the writ,283 issued a consent decree
approving the agreement between the parties.284 In the parties’ agreement, the
Municipality of Bontoc undertook to close and rehabilitate the dump while the
Provincial Government of Mountain Province and the DENR assumed
obligations in relation to the implementation of the agreement. The parties
280
281
282
283
284
Id.
Id.
643 SCRA 90, 105 (2011) [hereinafter MMDA Resolution].
Mt. Province town agrees to decommission dump, PHIL. DAILY INQ., July 9, 2013,
available
at
http://newsinfo.inquirer.net/441751/mt-province-town-agrees-todecommission-dump (last accessed July 16, 2013).
Vincent Cabreza, Appellate court orders Bontoc to close dump, PHIL. DAILY INQ.,
Mar. 14, 2013, available at http://newsinfo.inquirer.net/373865/appellate-court-
97
undertook to submit to the CA monthly progress reports regarding their
compliance.285
Earlier, residents of Irisan, Tadiangan, Sangguniang Bayan of La Union
and Benguet filed a Petition for Writ of Kalikasan against the local
government of Baguio praying that the use of the Irisan dumpsite be stopped.
On January 11, 2012, the CA issued a TEPO and on August 10, 2012, the CA
issued a consent decree.286 In the consent decree, a writ of continuing
mandamus was also issued ordering the Baguio City government to
permanently cease and desist from operating the Irisan dump. 287
On March 12, 2012, some concerned citizens of Norzagaray, Bulacan
filed a Petition for Issuance of Writ of Kalikasan with the Bulacan Governor,
et al. as respondents regarding the alleged illegal quarrying activities along
Angat River, particularly Barangays Matictic and Poblacion. In a consent
decree promulgated on August 23, 2012 by the CA, the parties agreed that
respondents would cease and desist from conducting and/or allowing such
285
286
287
orders-bontoc-to-close-dump (last accessed May 7, 2013).
Kalinga Anti-Pollution Group v. The Municipal Government Unit of Bontoc, CAG.R. SP No. 00016, Feb. 22, 2013.
Cosalan v. Domogan, CA G.R. SP No. 00006, Aug, 10, 2012. Delia Bagni, CA
favored Irisan Residents, nordis.net, Sep. 2, 2012, available at
http://www.nordis.net/?p=13395 (last accessed May 7, 2013).
Joel R. San Juan, CA bans operation of Irisan dump in Baguio, BUSINESS MIRROR,
Aug.
26,
2012,
available
at
http://www.businessmirror.com.ph/index.php/news/regions/5274-ca-bans-operationof-irisan-dump-in-baguio (last accessed May 7, 2013).
98
activities in those areas. The CA made the TEPO earlier issued permanent.288
Also in 2012, the CA issued a consent decree approving the
Memorandum of Agreement among the DENR-Protected Area Management
Board, et al. and Agham Party List in a Petition for Issuance of Writ of
Kalikasan filed by the latter wherein the parties took on obligations for the use
and management of Taal Volcano Protected Landscape. 289 The CA also issued
a writ of continuing mandamus as prayed for.
It is also relevant to note here one reported environmental case in early
2012 where the court ordered that the parties undergo CAM although no
consent decree has yet been approved. In the Regional Trial Court of Mandaue
City, Cebu, Branch 28, a Petition for a Writ of Kalikasan with prayer for
issuance of a TEPO was filed by local ecology groups against private entities
operating a coal ash landfill in Naga City, Cebu and public entities which
allowed such operations290 to stop the dumping of coal ash waste.291
288
289
290
291
Casimiro v. Sy-Alvarado, CA-G.R. SP No. 00010, Aug. 23, 2012.
Agham Party List v. Paje, CA-G.R. SP No. 00007, July 2, 2012.
The petitioners are the Philippine Earth Justice Center, Central Visayas Farmers
Development Center, Central Visayas Farmers Development Center, Central Visayas
Fisherfolks Development Center, and concerned residents of Toledo City and Naga
City while the defendants are Capitol, Salcon Power Corp. (SPC), Korean Electric
Power Corp. (Kepco), Cebu Energy Development Corp., Toledo Power Plant, the
DENR-Region 7 and the local governments of Naga and Toledo Cities [Candeze R.
Mongaya, Coal ash petitioners say no to Balili talks, CEBU DAILY NEWS, Mar. 9,
2012, available at http://newsinfo.inquirer.net/158479/coal-ash-petitioners-say-no-tobalili-talks (last accessed May 6, 2013)].
Court orders mediation to resolve coal landfill case, CEBU DAILY NEWS, Jan. 13,
2012, available at http://cdn.ph/news_details.php?id=12236 (last accessed May 6,
2013).
99
These cases demonstrate that courts allow consent decrees even when
the government is a party. Government may not be compelled to undergo
CAM or JDR but it can be a party to a settlement agreement if it is properly
authorized to enter into such. The courts have used it in petitions for writs of
kalikasan and continuing mandamus. The framers of the Rules, in discussing
the advantages of a consent decree, envisioned that the government as party to
a case can be part of a consent decree:
xxx
xxx
xxx
(1) It encourages the parties (the government and the violators)
to come up with comprehensive, mutually acceptable
solutions to the environmental problem, and since the
agreement was arrived at voluntarily, there is a greater
possibility of actual compliance;292 (Emphasis supplied)
xxx
xxx
xxx
In line with this, Metropolitan Manila Development Authority (MMDA)
v. Concerned Residents of Manila Bay293 which was decided by the Supreme
Court in 2008 before the Rules were issued is noteworthy. This case started in
1999 when the Concerned Residents of Manila Bay (respondent) filed a
petition for a writ of mandamus praying that Manila Bay be cleaned up citing
several environmental laws which were allegedly being neglected to be
implemented by MMDA, et al., the enforcing agencies (petitioners). It was
also prayed that these agencies submit a concrete plan of action for this
292
Secretariat of the Sub-committee on the Rules of Procedure for Environmental Cases,
supra note 230, at 103.
100
purpose. The Supreme Court sustained both the RTC and CA’s rulings that
petitioners have ministerial duties under such laws which they are obliged to
perform and do not require the exercise of discretion. Under the decision, the
DENR was ordered to implement the strategy it came up with for Manila Bay.
The other petitioners were ordered to perform duties pointed out by the Court
under the laws. They were required on continuing mandamus, which was
invoked for the first time by the Court even before the Rules and adopting the
doctrine from Indian cases,294 to submit quarterly progress reports regarding
the activities they have undertaken in accordance with the decision. During the
execution stage, the Court created the Manila Bay Advisory Committee to
receive and evaluate these reports.295
It may be argued that had this case been brought under the Rules where
the parties underwent environmental mediation which ideally would have
culminated in a consent decree, the Court would not be put in a position where
the decision being monitored is constantly being reviewed by the Court
because there were no clear agreed upon parameters of the activities and time
frame for their completion.296 Difficulties are addressed when they are
encountered upon recommendation of the Committee, e.g. requiring reports or
293
294
295
296
574 SCRA 661 (2008).
Vineet Narain v. Union of India, 1 S.C.R. 226 (India 1998) & M.C. Mehta v. Union of
India, 4 S.C.R. 463 (India 1987).
MMDA Resolution, 643 SCRA at 107, footnote no. 2.
The dissenting opinions of then Associate Justice, now Chief Justice Maria Lourdes
P.A. Sereno, and of Senior Associate Justice Antonio T. Carpio opine that there is
already judicial encroachment of executive functions in the resolution [MMDA
101
lists on specific matters identified the Court. 297 This is all the more made
complicated by the fact that petitioners are numerous having different
mandates under several laws and with no comprehensive plan to be followed.
In effect, it is the Committee which is coordinating the efforts of the petitioners
and smoothing out overlapping functions under the laws. If it were decided in a
consent decree which the Court merely approved, parties can seek relief from
the Court only when there are violations or a need for interpretation. As it is
now, petitioners are reporting to the Court on matters that will continue for
very long period of time with no end in sight.
Chapter Six
A Focus on Mining
[Minerals] play a very important role in our lives. In fact, it would be very difficult to imagine
a world without minerals and without mining. If we look at history, we can see that mining has
been with us a very long time. The history of the human race was divided into ages, named
after the minerals that were mastered. The mastery of certain minerals made it possible for the
human race to advance culturally. Life as we know it today would be impossible without
mining. Almost everything we need and use whether it is on the farm or in the city, in the street
or in the home, our means of transport, our communications system, our homes and offices,
appliances and fixtures – all in part require minerals. About 99% of the people in the world
depend on minerals. Minerals provide us with what our now some of the necessities of life. The
people in favor of mining will contend that mining is here to stay. 298
A.
297
298
State of Mining in the Philippines
Resolution, 643 SCRA at 119 & 132 (JJ. Carpi & Sereno, dissenting opinions)].
MMDA Resolution, 643 SCRA at 108-112.
ENVIRONMENTAL SCIENCE FOR SOCIAL CHANGE , supra note 194, at 54.
102
The Philippines is rich with mineral resources which have been
estimated to be worth trillions of pesos.299 However, such resources are nonrenewable, limited or exhaustible.300 Furthermore, they are often located in
forested areas rich in biodiversity or within ancestral domains of indigenous
peoples.301
There was a mining “boom” in the 1930s and the period of 1960 to
1980 was considered a golden age in mining.302 However, from 1980s until the
present, there has been a slump in the revenues generated by the industry
mainly due to the drop in world prices of minerals. 303 Thus, since the 1990s,
the Philippine government had been making efforts to revitalize mining in the
country by enacting the Mining Act of 1995304 which provided incentives to
mining companies with the end of attracting foreign investment.
With the Mining Act of 1995, the existing Philippine policy is to
encourage mining. Mining operations contribute to government revenue
through taxes paid by mining companies to local governments and export
earnings for the national government,305 create jobs and boosts local economy
299
300
301
302
303
304
305
ATENEO SCHOOL OF GOVERNMENT, MINING, THE PHILIPPINES AND THE FUTURE,
Policy Brief, ¶ 1 (2012).
Id. ¶ 10.
ROBERT GOODLAND & CLIVE WICKS, PHILIPPINES: MINING OR FOOD? 1 (2008).
ISAGANI R. SERRANO, ED., LARGE-SCALE MINING: ITS ENVIRONMENTAL, SOCIAL,
ECONOMIC AND CULTURAL IMPACTS IN THE PHILIPPINES 10-11 (June 2005).
Id. at 11.
An Act Instituting a New System of Mineral Resources Exploration, Development,
Utilization, and Conservation Mining Act [Mining Act of 1995], R.A. 7942 (1995).
JOAN MICHELLE M. LEGASPI, ET AL., ACCESS TO ENVIRONMENTAL JUSTICE: A
SOURCEBOOK ON ENVIRONMENTAL RIGHTS AND LEGAL REMEDIES 9 (2011).
103
through increased economic activities and formation of downstream industries,
and lead to improved infrastructure, e.g. roads and bridges, and the provision
of funding for social development of communities, e.g. health, education,
livelihood, reforestation, watershed management programs and energy supply
(water and electricity).
Because mineral resources are finite, mining operations have a limited
life-span.306 However, its impacts last longer than the operations and can be
non-reversible.307 Communities and existing land uses are displaced to give
way to mining activities. People’s health is affected because of pollution,
whether of land (e.g. contaminants in the soil), air (e.g. dust or particulate
matter) and water (e.g. dumping of waste materials in rivers). A study has also
opined that mining endangers food security because land, which would
otherwise be used for agriculture, has to be cleared.308 Disposal of mine wastes
and tailings and even unintended collapse of tailings ponds result in siltation of
irrigation canals, paddy fields, rivers and lakes resulting in land damage and
reduced crop yield.309
Furthermore, mining affects the land and seabed where the resources
may be found. Extraction of ores means that “thousands of tonnes of earth and
rocks have to be removed, forests cleared, and water and drainage systems
306
307
308
309
ATENEO SCHOOL OF GOVERNMENT, supra note 299.
Id.
GOODLAND & WICKS, supra note 301.
ANTONIO A. TUJAN JR. AND ROS-B GUZMAN, GLOBALIZING PHILIPPINE MINING 122-
104
diverted.”310 It destroys plant life and habitat of animals, possibly causing their
extinction, e.g. birds. Mining equipment and procedures create noise, e.g.
earthworks, machinery or dump trucks plying small roads. It causes denudation
of forests because mining contractors have the right to cut trees and timber in
the mining area.311 It causes soil erosion312 and reduced slope stability or
higher risk of landslides.313 It has resulted in the sinking of communities,
collapse of mountains and subsidence of mining areas due to open- pit
mining.314 It affects biodiversity, damages watersheds315 and pollutes marine
ecosystems. It necessitates huge amounts of water.
Even if mining operators and corporations strive to be responsible,
natural disasters can have devastating effects on mining areas and their
ecosystems (e.g. storms which can wash mineral residues to the sea destroying
coral reefs and killing other marine life316 and earthquakes). The situation is
even more precarious considering the finding that the Philippines is one of the
countries most likely to be affected by climate change.317
The effects on the environment have inevitable effects on people. For
310
311
312
313
314
315
316
317
123 (1998).
Id. at 1.
Mining Act of 1995, § 72.
ATENEO SCHOOL OF GOVERNMENT, supra note 299, at 89 & 124.
Id. at 30.
TUJAN & GUZMAN, supra note 309, at 120.
GOODLAND & WICKS, supra note 301.
ATENEO SCHOOL OF GOVERNMENT, supra note 299, at12.
Kristine L. Alave, Study: Philippines among countries most affected by climate
change,
PHIL.
DAILY
INQ.,
Dec.
5,
2011,
available
at
http://globalnation.inquirer.net/20237/study-philippines-among-countries-most-
105
example, when the soil, water or air is poisoned, the health of humans, animals
and plants that depend on such are likewise adversely affected.
Water
pollution leads to contaminated drinking water sources for humans and
damaged habitats for aquatic resources which humans depend on for food and
livelihood as well. Reduced water availability likewise impacts on irrigation
and farm productivity.318
Upon this backdrop, there had been studies concluding that the
economic benefits of mining are minimal and its costs outweigh all perceived
advantages.319
Nevertheless, considering the basic premise that there will
always be demand for mining in the foreseeable future because of the need for
minerals in addition to the fact that the Philippine national government
supports the continuation of mining activities, Filipinos have to live with
mining and its issues. Local communities, in particular, have to manage its
consequences since its risks and resulting environmental degradation cannot be
prevented or eliminated but only lessened. Not surprisingly, the different
interests of stakeholders wherever there is a mining application or operation
inevitably produce conflicts which have to be resolved.
Historically, large-scale mining has been opposed by communities,
supported by civil society (e.g. nongovernment organizations, people’s
318
319
affected-by-climate-change (last accessed at Oct. 15, 2012).
ATENEO SCHOOL OF GOVERNMENT, MINING, supra note 299, at 30.
Id. at Policy Brief, ¶ 3.
106
organizations, church-based groups), due to the social and environmental
problems they say it causes. They complain that mining companies have a poor
track record in terms of mining “accidents” resulting to massive environmental
damage. They view mining as having a negative impact on livelihoods and
results in human rights abuses.320 There is a perception that benefits of mining
failed to trickle down to the community which is directly affected and bears the
costs of the activities. Past mining conflicts, their effect on the community and
the lack of resolution resulting to ongoing tensions and escalating violence
have resulted to suspicion, mistrust, disenchantment and a more vocal protest
of communities against mining who have come to view mining companies as
an outsider which is a threat to their way of life and future.
In many instances when a mining company just explores
an area, people in the local communities already feel threatened.
Normally people should feel threatened, if at all, only when the
mining operation starts. But the start-up of operations is at least
six years down the line from the beginning of exploration. In
other countries, talks regarding community compensation and
social development would take place when it has been decided
to go ahead with the mining operation. However, here in the
Philippines the communities are already poor, underprivileged
and insecure. Even at the very prospect of a mining operation
being explored, some are convinced that their land, their homes,
and their way of life are endangered. They are not sure about
what is going to happen to them; they are faced with great
uncertainty; the only world they know seems about to be pulled
apart. In many cases, they have never felt that they belong to the
wider society; they are outsiders. Now they feel helpless and
somehow sense that they are about to be further manipulated
and exploited not only by business, but even by some
320
CATHAL DOYLE, ET
(2007).
AL.,
MINING
IN THE
PHILIPPINES: CONCERNS
AND CONFLICTS
8
107
[nongovernmental organizations] who are simply using the
community to further their political agenda.321
One mining disaster which has been etched in the memories of
Filipinos is the 1996 Marcopper case:
When the company finished one of its operations in
Marinduque, it plugged the old pit with concrete so that it could
act as a disposal pond for mine waste. In August 1995, seepage
was discovered in the pit's drainage tunnel. This subsequently
ruptured.
The accident discharged tailings into the MakulapnitBoac (Boac) river system. The incident resulted in the release of
some 1.6 million cubic meters of tailings along 27 km of the
river and the coastal areas near its mouth. The impact on the
river and the people who depend on it for their livelihoods was
massive. The onrush of tailings displaced river water which
inundated low-lying areas, destroying crops and vegetable
gardens and clogging irrigation channels to rice fields. The
release left the Boac River virtually dead. The effects of the
incident were so devastating that a UN assessment mission
declared the accident to be a major environmental disaster.322
According to one report:
As of 2003, there had been at least 16 serious tailings
dam failures in the preceding 20 years and over 800 abandoned
mine sites have not been cleaned up. Clean-up costs are
estimated in billions of dollars and the damage caused will
never be fully reversed.323
But mining companies and their advocates argue that all these are in the
past when the world’s awareness about environmental protection was low.
They assert that past abuses complained about will not be repeated and that
321
322
ENVIRONMENTAL SCIENCE FOR SOCIAL CHANGE, supra note 194, at 79.
Ma. Eugenia Bennagen, Philippine Mining Disaster: Counting the Cost of a Ruined
River, available at http://idl-bnc.idrc.ca/dspace/bitstream/10625/27051/5/117863.pdf
(last accessed Jan. 16, 2013).
108
better technology that minimizes environmental damage has been developed.
B.
Relevant Mining Laws
Under the Philippine Constitution and the Regalian Doctrine, the State
owns all public lands and mineral resources and that the latter’s exploration,
development and utilization shall be under the former’s full control and
supervision.324 But the State may enter into agreements with mining
corporations or entities for such exploitation.
Mining policy in the Philippines is governed mainly by two laws and a
recent executive issuance:
The Mining Act of 1995 provides for an investment package and
incentives for mining operators (e.g. tax holidays and full repatriation of
profits).325 It also has provisions requiring a comprehensive environmental
plan from the mining entities and addressing the negative effects of mining
from the beginning of operations until its end.326 Its Revised Implementing
Rules and Regulations are embodied in DENR Administrative Order (DAO)
No. 96-40327 and the consolidated DAO No. 2010-21.328
323
324
325
326
327
328
DOYLE, ET AL., supra note 320, at 10.
PHIL. CONST., art. XII, § 2.
Hontiveros-Baraquel v. DENR Secretary, G.R. Nos. 181702-3.
ATENEO SCHOOL OF GOVERNMENT, supra note 299, at 31; Mining Act of 1995, at
chapter XI.
DENR, Revised Implementing Rules and Regulations of R.A. 7942, otherwise known
as the Philippine Mining Act of 1995, Administrative Order No. 96-40 [DAO No. 9640] (Dec. 19, 1996).
DENR, Providing for a Consolidated Department of Environment and Natural
109
The constitutionality of the Mining Act of 1995, particularly provisions
allowing the government to enter into financial and technical agreements
involving large-scale mining operations with 100% foreign-owned companies,
had been questioned but ultimately upheld by the Supreme Court in the case of
La Bugal-B'laan Tribal Association, Inc. v. Ramos.329 As of this writing, there
are current petitions again questioning the constitutionality of the same law in
the Supreme Court.
Republic Act No. 7076 or the People’s Small-Scale Mining Act of
1991 regulates small-scale mining referring “to mining activities which rely
heavily on manual labor using simple implement and methods and do not use
explosives or heavy mining equipment.”330 Small-scale mining can only be
conducted on what are called people's small-scale mining areas (PSSMAs) or
“Minahang Bayan”. An earlier law, Presidential Decree No. 1899331 issued in
1984, governs small-scale mining areas which are not declared as PSSMAs. It
regulates small-scale mining which refers to a “mining operation having an
annual production of not more than 50,000 metric tons of ore”.332
329
330
331
332
Resources Administrative Order for the Implementing Rules and Regulations of
Republic Act No. 7942, Otherwise Known as the “Philippine Mining Act of 1995”,
Administrative Order No. 2010-21 [DAO No. 2010-21] (June 28, 2010).
The decision dated January 27, 2004 (421 SCRA 148) nullified some of the
provisions of the Mining Act of 1995 but this was reversed upon Motion for
Reconsideration in an En Banc Resolution dated December 1, 2004 (445 SCRA 1).
An Act Creating a People's Small-Scale Mining Program and for Other Purposes
[People's Small-scale Mining Act of 1991], R.A. 7076, § 3 (b) (1991).
Establishing Small-scale Mining as a New Dimension in Mineral Development, P.D.
No. 1899 (1984).
Id. at § 1. As of the writing of this paper, it is not clear if these two laws co-exist.
110
Executive Order No. 79 (EO 79)333 was issued by President Benigno
Aquino III on July 12, 2012 and states the present administration’s mining
policy. The DENR issued its Implementing Rules and Regulations (IRR)
embodied in DAO 2012-07334 on September 10, 2012 and the amendments,
DAO 2012-07-A,335 took effect on October 25, 2012. EO 79 declared a
moratorium on the award of new mineral agreements “until a legislation
rationalizing existing revenue sharing schemes and mechanisms shall have
taken effect”336 unless “there is an imminent and/or threatened economic
disruption, such as shortage of critical commodities and raw materials, that
could adversely affect priority government projects.”337 Under EO 79, smallscale mining under PD 1899 is no longer allowed because it is limited to
“Minahang Bayan”.338
The State exercises its control and supervision over the country’s
mineral resources through the DENR and more directly through its staff
333
334
335
336
337
338
According to Department of Justice Opinion No. 029, s. 2011, the People's Smallscale Mining Act of 1991 repealed P.D. No. 1899, see Mines and Geosciences
Bureau,
Government’s
Stand
on
SSM
Operations,
available
at
http://www.mgbcar.ph/content/government%E2%80%99s-stand-ssm-operations (last
accessed Oct. 15, 2012).
Office of the President, Institutionalizing and Implementing Reforms in the Philippine
Mining Sector, Providing Policies and Guidelines to Ensure Environmental Protection
and Responsible Mining in the Utilization of Mineral Resources, Executive Order No.
79 [E.O. No. 79] (July 6, 2012).
DENR, Rules and Regulations to Implement E.O. No. 79, DENR Administrative
Order No. 2012-07 [DAO 2012-07] (Sep. 10, 2012).
DENR, Amendment to DAO 2012-07 or the Implementing Rules and Regulations of
E.O. No. 79 [DAO 2012-07-A] (Oct. 8, 2012).
E.O. No. 79 (2012), § 4.
DAO 2012-07-A, § 2.
E.O. No. 79 (2012), §11 (b).
111
bureau, the Mines and Geosciences Bureau (MGB).
The DENR, through the Environmental Management Bureau (EMB),
implements environmental laws, rules and regulations, including mining laws,
to ensure that mining activities are compliant with environmental protection
laws. The EMB implements the Environmental Impact Assessment (EIS)
System wherein the mining proponent must obtain an Environmental
Compliance Certificate (ECC) before commencing with an environmentally
critical project or activity in an environmentally critical area.339 Under the
ECC, it is certified that the project will not cause significant negative
environmental impact.340
Under EO 79, an interagency forum called the Mining Industry
Coordinating Council was constituted to coordinate the efforts in implementing
the order, among others.341
Another law that has a bearing on mining is the Indigenous People’s
Act of 1997. As previously stated, this law gives indigenous peoples the right
to develop lands and natural resources within their ancestral domains and
priority rights in the harvesting, extraction, development or exploitation of
their natural resources.342 Thus, their free and prior informed consent must be
339
340
341
342
P.D. No. 1586, § 4.
DENR, Implementing Rules and Regulations (IRR) for the Philippine Environmental
Impact Statement (EIS) System [DAO 2003-30] (n.d.).
E.O. No. 79 (2012), §§ 9 & 10.
Indigenous Peoples Rights Act of 1997, §§ 7 (b) & 57.
112
secured for projects affecting these rights, including mining operations.
The Philippine Climate Change Act of 2009 mandates government
agencies and instrumentalities to integrate the concept of climate change in all
policy-making.343
Under Section 3, Article X of the Constitution, local government units
(provinces, cities, municipalities and barangays) have local autonomy. As
such, under Section 7, Article X:
Section 7. Local governments shall be entitled to an
equitable share in the proceeds of the utilization and
development of the national wealth within their respective
areas, in the manner provided by law, including sharing the
same with the inhabitants by way of direct benefits. (Emphasis
supplied)
The Local Government Code of 1991 implements such constitutionallyenshrined principle of local autonomy. The local government unit’s share in
the proceeds of mining is operationalized by Section 290 of Mining Act of
1995:
Sec. 290. Amount of Share of Local Government Units. Local government units shall, in addition to the internal revenue
allotment, have a share of forty percent (40%) of the gross
collection derived by the national government from the
preceding fiscal year from mining taxes, royalties, forestry and
fishery charges, and such other taxes, fees, or charges, including
related surcharges, interests, or fines, and from its share in any
343
An Act Mainstreaming Climate Change into Government Policy Formulations,
Establishing the Framework Strategy and Program on Climate Change, Creating for
this Purpose the Climate Change Commission, and for Other Purposes [Climate
Change Act of 2009], R.A. No. 9729, § 2 (2009).
113
co-production, joint venture or production sharing agreement in
the utilization and development of the national wealth within
their territorial jurisdiction.
Additionally, under the Local Government Code of 1991, the national
government shall conduct consultations with the local government units,
nongovernmental and people’s organizations and other concerned sectors of
the community before any mining project is implemented in their
jurisdiction.344 Under Section 27 thereof, the prior approval of the local
legislative body or sanggunian is necessary for such project.345 DENR
Memorandum Order No. 2004-09 in Section 5 requires mining applicants to
present proof of consultation or project presentation.
The other environmental laws affecting mining include the Ecological
Solid Waste Management Act,346 Toxic Substances and Hazardous and
Nuclear Wastes Control Act,347 Clean Air Act,348 Clean Water Act,349 Pollution
344
345
346
347
348
349
LOCAL GOVERNMENT CODE OF 1991, § § 2 (c), 26 & 27.
Sec. 27. Prior Consultations Required. - No project or program shall be implemented
by government unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.
An Act Providing for an Ecological Solid Waste Management Program, Creating the
Necessary Institutional Mechanisms and Incentives, Declaring Certain Acts
Prohibited and Providing Penalties, Appropriating Funds Therefor, and for Other
Purposes [Ecological Solid Waste Management Act of 2000], R.A. No. 9003 (2000).
An Act to Control Toxic Substances and Hazardous and Nuclear Wastes Providing
Penalties for Violations Thereof, and for Other Purposes [Toxic Substances and
Hazardous and Nuclear Wastes Control Act of 1990], R.A. No. 6969 (1990).
An Act Providing for a Comprehensive Air Pollution Control Policy and for Other
Purposes [Philippine Clean Air Act of 1999], R.A. No. 8749 (1999).
An Act Providing for a Comprehensive Water Quality Management and for Other
Purposes [Philippine Clean Water Act of 2004], R.A. No. 9275 (2004).
114
Control Law,350 Water Code,351 Revised Forestry Code352 and the National
Integrated Protected Areas System Act of 1992.353
C.
Kinds of Mining
As discussed, the Mining Act of 1995 governs large-scale mining while
the People’s Small-scale Mining Act regulates small-scale mining.
Under the Mining Act of 1995, mining applicants can be granted an
exploration permit, mineral processing permit and mineral agreement. The
exploration permit grants the right to conduct exploration of all minerals in
specified areas for a period of two years, 354 but is renewable for further similar
periods, not exceeding a total term of four years for non-metallic mineral
exploration or six years for metallic mineral exploration.355
After the exploration stage, the government can enter into the following
modes of mineral agreements for enterprises that are 60 percent owned by
350
351
352
353
354
355
An Act Creating the National Water and Air Pollution Control Commission, R.A. No.
3931 (1964), amended by Providing for the Revision of R.A. No. 3931, Commonly
Known as the Pollution Control Law, and for Other Purposes, P.D. No. 984 (1976).
A Decree Instituting a Water Code, Thereby Revising and Consolidating the Laws
Governing the Ownership, Appropriation, Utilization, Exploitation, Development,
Conservation and Protection of Water Resources [The Water Code of the
Philippines], P.D. No. 1067 (1976).
Revising Presidential Decree No. 389, Otherwise Known as the Forestry Reform
Code of the Philippines [Revised Forestry Code], P.D. 705 (1975).
An Act Providing for the Establishment and Management of National Integrated
Protected Areas System, Defining Its Scope and Coverage, and for Other Purposes
[National Integrated Protected Areas System Act of 1992], R.A. No. 7586 (1992).
Mining Act of 1995, §§ 20 & 21.
Id. § 21; DENR, Revised Implementing Rules and Regulations of R.A.
7942,otherwise known as the Philippine Mining Act of 1995, Administrative Order
No. 96-40 [DENR A.O. No. 96-40], chapter V, § 18.
115
Filipino citizens:
a. Mineral production sharing agreement [MPSA] is an
agreement where the Government grants to the contractor
the exclusive right to conduct mining operations within a
contract area and shares in the gross output. The contractor
shall provide the financing, technology, management and
personnel necessary for the implementation of this
agreement.
b. Co-production agreement is an agreement between the
Government and the contractor wherein the Government
shall provide inputs to the mining operations other than the
mineral resource.
c. Joint venture agreement is an agreement where a jointventure company is organized by the Government and the
contractor with both parties having equity shares. Aside
from earnings in equity the Government shall be entitled to
a share in the gross output.356
These mineral agreements have a term not exceeding 25 years and
renewable for another 25 years. 357
For large-scale mining, the government can enter into a financial or
technical assistance agreement (FTAA) with Filipino and non-Filipino owned
enterprises.358
The area allowed for small-scale mining under the People's Small-scale
Mining Act of 1991 is 20 hectares per cooperative which should be composed
of Filipino citizens for a duration of two years.
Filipinos have been engaged in small-scale mining for at least ten
356
357
Mining Act of 1995, § 26.
Mining Act of 1995, § 32.
116
centuries and in large-scale mining by foreign as well as Filipino companies
for about a century.359
D.
Mining Disputes
Mining has resulted in opposing claims and other conflicts due to
perceived negative impacts on affected stakeholders, if not outright violations
of laws and rules. Mining conflicts can be emotional and volatile. This is
because stakeholders affected are usually poor people in rural areas who feel
strongly about the land they have settled in. Mining results to a disturbance to
the land and environment on which they rely for their way of life and
livelihood.360 Misunderstanding, uncertainty and confusion breed discontent
and conflict.
Mining conflicts arise between or among the following parties: the
mining operator or company against the community or its members, the mining
company along with the national government representative against the
community and local government officials, the community against the operator
and government representatives, both national and local, or among operators.
Local governments may not have carried out sufficient consultations with their
358
359
Id. § 33.
Cordillera Peoples Alliance, Case Study on the Impacts of Mining and Dams on the
Environment and Indigenous Peoples in Benguet, Cordillera, Philippines (An
Unpublished Paper Submitted to the United Nations Department of Economic and
Social Affairs Division for Social Policy and Development) available at
www.un.org/esa/socdev/unpfii/documents/workshop_IPPE_cpp.doc (last accessed
Jan. 18, 2013).
117
constituents. Even among government officials, there is a tension between
national and local policy-makers. These two sides may have divergent or
opposing views or priorities. Also, with respect to indigenous peoples, the
ICCs/IPs may have sentiments and values that are inconsistent with the
policies of national and local officials and regulators. Mining conflicts may
fall under the following areas:
1. Who maintains control of a particular area containing a
valuable mineral resource, especially when there are competing
and incompatible land uses such as mining and agriculture.
2. Who possesses the right to participate in decision making
about the management of the resource and who benefits from
the presence of the mineral (often an issue for local
communities).
3. What means are used to secure capital investment and human
resources to run the mining operation.
4. The social and environmental impacts of mining activities. 361
The specific issues often confronted in Philippine communities are the
following:
Affected Community. The mining application should be acceptable to
the affected community. However, it may not always be clear who the affected
communities are. Or, it can take time to see the effects (especially if
unintended) of a mining activity.
360
361
ANDRE GERARD GARCIA BALLESTEROS, ALL THAT GLITTERS: UNDERSTANDING THE
MYTH OF “SUSTAINABLE MINING” IN THE PHILIPPINES 14 (September 1997).
J.S. Andrew, Potential application of mediation to land use conflicts in small scale
mining, 11 J. OF CLEANER PRODUCTION 117, 118-119 (2003), citing Switzer J. A draft
discussion paper for the Experts Workshop on Armed Conflict and Natural
Resources: the case of the minerals sector. London: Mining, Minerals and Sustainable
Development Project, International Institute for Environment and Development;
118
Land Uses. Mining can be incompatible with current land uses of the
area. Or the community may prefer the alternatives to mining in terms of
economic benefits, e.g. agriculture, fisheries and tourism.
Benefits. There is difficulty in computing the fair distribution or
allocation of the profits to the parties. Is what is given fair? What is the fair
amount? What should be taken into consideration in determining what is fair?
Who controls what is given, e.g. the Community Development Fund 362 which
is required under the Mining Act of 1995?363
Risks. In managing the risks present in a mining operation, are they
explained to the community such that they understood the same before the
latter agrees to such?
Costs. Are the costs of mining taken into consideration? Does the
community understand these costs? If the community agrees even knowing the
negative effects, is there a compensation scheme for the environmental damage
and social impacts resulting from mining? The social impacts may include
“disruption of traditional activities”, “introduction of undesirable values and
practices” and “divisions within the community”. 364
362
363
364
2001.
DAO No. 2010-21, § 136-A.
Mining Act of 1995, § 57.
PAMFILO, ET AL., MAPPING OUT CONFLICTS IN MINING AREAS: DRAWING LESSONS
AND SEEKING SPACES FOR BUILDING PRINCIPLED CONSENSUS TOWARDS EFFECTIVE
MINING GOVERNANCE 25-26 (n.d.).
119
Valuation. In making a cost-benefit analysis of a mining operation,
parties need to have an acceptable way of estimating the value of resources that
will be adhered to by them as basis for decision-making. Valuation is
necessary for putting an amount to the costs of mining, particularly involving
non-commercially traded resources (e.g. sacredness of the mountain).365 It is
essential to enter into an agreement regarding this because there is no
government standard to fall back on. Otherwise, this will always be a
contentious issue. If community members are given the choice to sell their
land, there should be a fair process of negotiating a mutually suitable price or
fair compensation and acceptable resettlement area.
Implementation of Agreements. The dialogue does not stop with an
agreement. Community members may, in good faith, have second thoughts
about what they agreed to and they need to be heard about these grievances or
apprehensions.
Militarization. In areas where there is insurgency, mining further
increases military presence. Are human rights being violated, e.g. by security
personnel of the mining company or even by the military?
Conflict with Small-scale Miners. Small scale mining is usually used as
subsistence livelihood by the inhabitants of the place or by indigenous peoples
365
Id. at 12.
120
in their ancestral domain.366 An estimated 300,000 Filipinos are engaged in
small-scale mining.367 Small-scale miners complain about the difficulty in
obtaining the written consent from large-scale mining companies which have
been granted permits by the government.368 When these problems have no
resolution, increased friction between the large-scale mining corporations and
small-scale miners can become inevitable:
According to accounts received (from Canatuan and
elsewhere) [small-scale miners’] tunnels were bulldozed, they
were prohibited from entering their traditional mining areas or
maintaining their houses there, and as a result they have been
displaced. Some have been evicted by force. Protests by smallscale miners have been met with human rights violations,
including blockades to control the entry of goods, food and
people, and a series of shooting incidents, violence and threats
by security firms working for mining corporations.369
Nondisclosure of Relevant Information. Considering that affected
communities are in rural areas, community members lack knowledge and
understanding of what is happening. Often, the communities do not know the
nature, extent, duration, coverage or scope, social and environmental effects
(both positive and negative) and current status of the company’s activities
including plans for future expansion. They likewise do not have a clear idea of
366
367
368
DOYLE, ET AL., supra note 320, at 19.
Id.
The Alternate Forum for Research in Mindanao (AFRIM), A Background Study on
the Small-Scale Gold Mining Operations in Benguet and South Cotabato and their
Impact on the Economy, the Environment and the Community (An Unpublished
paper Submitted to the Bantay Kita/Action for Economic Reforms) 9, available at
http://bantaykita.ph/pdfs/Small%20Scale%20Mining.pdf (last accessed Jan. 9, 2013).
121
the safeguards and mechanisms the company intends to put in place. The
company is always from outside the community thus the people are not
familiar with it and its corporate history, e.g. ownership of the company or any
transfer of ownership.
As with other ordinary Filipinos, they may not
completely understand what the laws say, especially since these relevant laws
are technical and not easy to comprehend.
Broken or False Promises. What are the company’s limitations with
respect to the benefits and concessions it will provide, e.g. employment or
sourcing of raw materials from community members? A common complaint is
that mining companies do not utilize local labor as they may have committed
to do. However, the reality is that members of the community do not have the
necessary skills or expertise that the company needs. The jobs that they are
qualified for are usually dangerous involving heavy manual labor, with low
pay and poor working conditions.
Consent Process. In the process of obtaining local consent, there are
community members who feel that the process is manipulated such that they
feel deceived by the mining companies. In the legislative process of passing a
resolution endorsing the mining activity, some protest the alleged interference
by the companies with local politics, e.g. contributing to candidate’s campaign
and helping mining advocates to win. Communities are unable to take
369
DOYLE, ET AL., supra note 320.
122
advantage of the process or make it effective for themselves because of several
factors, e.g. lack of alternatives for development and historical neglect and
marginalization resulting to conditions of deprivation and lack of access to
basic services.
The same dilemma is faced by ICCs/IPs who as mentioned earlier,
under the Indigenous Peoples Rights Act of 1997, should give their free and
prior informed consent (FPIC)370 before the government can issue permits or
enter into mining agreements in their ancestral domain.371 There are complaints
that The Revised Guidelines on FPIC and Related Processes of 2012372
promulgated by the NCIP are not implemented properly.373
Mining Bans. All these issues have led communities to oppose mining
in their areas and for their local governments to pass ordinances prohibiting
mining (mostly large-scale mining) in their jurisdictions.
According to the MGB, 7 out of 16 mining projects in the
advanced exploration and feasibility financing stages and 25 out
of 28 projects in the development and expansion stages are
facing opposition from local populations and their officials.
Over 20 [local government units (LGUs)] have issued
moratoriums and environmental regulations to prevent mining
firms from causing further damage to the environment, to
370
371
372
373
Indigenous Peoples’ Rights Act of 1997,§ 3 (g) defines Free and prior consent as “the
consensus of all members of the ICCs/IPs to; be determined in accordance with their
respective customary laws and practices, free from any external manipulation,
interference and coercion, and obtained after fully disclosing the intent and scope of
the activity, in a language an process understandable to the community.”
Indigenous Peoples Rights Act of 1997, § 59.
National Commission on Indigenous Peoples, NCIP Administrative Order No. 03
[A.O. No. 03], Series of 2012 (Apr. 13, 2012).
PAMFILO, ET AL., supra note 364, at 20 & 22.
123
livelihoods and to lives in their jurisdictions.374
Some local legislatures have declared mining moratoriums or bans
which has prompted the national government to state in EO 79:
SECTION 12. Consistency of Local Ordinances with the
Constitution and National Laws/LGU Cooperation. The
Department of the Interior and Local Government (DILG) and
the LGUs are hereby directed to ensure that the exercise of the
latter’s powers and functions is consistent with and conform to
the regulations, decisions, and policies already promulgated and
taken by the National Government relating to the conservation,
management, development, and proper utilization of the State’s
mineral resources, particularly RA No. 7942 and its
implementing rules and regulations, while recognizing the need
for social acceptance of proposed mining projects and activities.
LGUs shall confine themselves only to the imposition of
reasonable limitations on mining activities conducted within
their respective territorial jurisdictions that are consistent with
national laws and regulations.375 xxxx
To illustrate, South Cotabato’s Sangguniang Panlalawigan passed an
Ordinance in June 9, 2010 which was its Provincial Environment Code
banning open-pit mining in the province.376 This delayed the Tampakan
copper-gold project by proponent Sagittarius Mines, Inc. (SMI), touted to be
the “single biggest foreign investment in the country” 377 worth $5.9 billion
374
375
376
377
Maita Gomez, Transparency Issues in the Philippine Mining Industry (An
Unpublished Paper Submitted to Action for Economic Reforms) 7, available at
http://www.aer.ph/taxjustice/wp-content/pdf/Mining.pdf (last accessed Jan. 18, 2013).
E.O. No. 79 (2012), § 12.
Provincial Ordinance No. 04, Sangguniang Panlalawigan of the Province of South
Cotabato, An Ordinance Providing for the Environment Code of the Province of
South Cotabato [The South Cotabato Environment Code], § 22 (b) (June 9, 2010).
Rappler.com, Palace rebuffs DENR for denying Xstrata unit’s mining permits,
RAPPLER, Feb.8, 2013, available at http://www.rappler.com/business/specialreport/whymining/whymining-latest-stories/21322-document-palace-rebuffs-denr-for-
124
estimated to contribute an additional one percent to the country’s gross
domestic product.378 SMI is a holder of FTAA which was set to use the openpit mining method.379 On January 3, 2012, the DENR denied its application for
an ECC citing the ban. However, on February 2013, the ECC was finally
granted by the Office of the President.380
The Sangguniang Panlalawigan of Bukidnon has declared in a
Resolution dated May 4, 2011 that it is opposed to large-scale mining.381
Several other LGUs have expressed their official opposition to mining. 382
Some of these mining bans have been challenged in court. On January
10, 2011, the Provincial Governor of Romblon issued Executive Order No. 001
(EO No. 001), series of 2011 which declared an “indefinite moratorium on the
378
379
380
381
382
denying-xstrata-unit-s-mining-permit (last accessed Apr. 29, 2013).
Jonathan L. Mayuga, DENR set to issue ECC to start $5.9-billion Tampakan
operations,
BUS.
MIRROR,
Feb.
7,
2013,
available
at
http://businessmirror.com.ph/index.php/news/top-news/8959-denr-set-to-issue-eec-tostart-5-9-billion-tampakan-operations (last accessed Apr. 29, 2013).
Tampakan
Copper-Gold
Project:
Open
Pit
Mining,
available
at
http://www.smi.com.ph/EN/EnvironmentalImpactAssessment/English%20factsheets/
SMI%20EIS%20Fact%20Sheet%20Open-pit%20eng.pdf (last accessed Apr. 29,
2013).
Office of the President, In Re: Application for the Environmental Compliance
Certificate of the Tampakan Project, O.P. Case No. 12-F-159 (Feb. 4, 2013).
Bukidnon renews opposition to large scale mining, exploration, MINDA NEWS, May
10, 2011, available at http://www.intellasia.net/bukidnon-renews-opposition-to-largescale-mining-exploration-155832 (last accessed May 2, 2013).
According to Alyansa Tigil Mina, among these are the municipalities of Magdiwang,
Cajidiocan and San Fernando, Sibuyan Islands; Sagada, Bauko, Tadian and Sabangan,
Mt. Province; Leyte; Bulacan; municipality of Cantilan, Surigao del Sur; Quezon;
Zambales; municipalities of Loon, Maribojoc, Duero, Guindulman and Buenavista,
Bohol; municipalities of Consolacion and Medellin, Cebu; municipalities of Maria,
Siuijor, Enrique Villanueva, San Juan and Larena, Siquijor; Oriental Mindoro;
Occidental Mindoro; Marinduque; municipalities of Governor Generoso and San
Isidro, Davao Oriental; Samar; Capiz; Iloilo; and Negros Occidental [Alyansa Tigil
Mina, List of local measures opposing large-scale mining (soft copy accessed from
125
exploration, excavation, extraction and utilization of metallic minerals in
Romblon.”383 The MGB also issued on September 2011 a cease and desist
order against Altai Philippines Mining Corporation, the principal of Sibuyan
Nickel Properties Development Corporation (SNPDC), which was granted a
MPSA in 2009. SNPDC filed Special Civil Action Case No. V-1906 which is a
Petition for Declaratory Relief praying that EO No. 001 be nullified on the
ground that it is unconstitutional.384 On January 17, 2013, the RTC, Branch 81
of Romblon Province issued a Resolution declaring EO No. 001 to be
unconstitutional and allowing SNPDC to proceed with its minerals
exploration.385 On February 11, 2013, the Sangguniang Panlalawigan passed
its Environment and Natural Resources Code wherein in Section 64 it is stated:
“Mining shall not be allowed within one (1) kilometer radius from a declared
watershed or watershed areas as identified by the municipality concerned;
Mining shall not be allowed above watershed areas regardless of its distance
from the declared watershed areas; Mining shall not be allowed in tourism and
agricultural areas as designated by the municipality concerned; in areas named
by Presidential Executive Order No. 79, series of 2012; and in Section 19 of
383
384
385
author on May 3, 2013)].
Maricar Cinco, Romblon court rules against mining ban, PHIL. DAILY INQ., Feb. 3,
2013, available at http://newsinfo.inquirer.net/352079/romblon-court-rules-againstmining-ban (last accessed May 1, 2013).
Press Release: Green groups, Romblon governor question regional court ruling
against
local
issuances,
Jan.
29,
2013,
available
at
http://alyansatigilmina.net/2013/01/29/green-groups-romblon-governor-questionregional-court-ruling-against-local-issuances/ (last accessed May 1, 2013).
Fortun, Narvasa & Salazar, FNS Scores Win for Mining in Romblon, available at
http://www.fnslaw.com.ph/PDF%20Files/FNS%20SCORES%20WIN%20FOR%20S
126
Republic Act 7942 as provided shall be applicable within the purview of
Section 64 of this Code.”386
Like in South Cotabato, the Sangguniang Panlalawigan of Zamboanga
del Norte also passed an ordinance on August 15, 2011 banning open-pit
mining. TVI Resource Development (Phils.), Inc. (TVIRD), MPSA holder,
filed a Petition for Relief challenging the constitutionality of the ordinance in
the RTC of Dipolog City which granted it on January 2012 a preliminary
injunction against the implementation of the ordinance.387
The sentiment of local communities is that they are the most affected
yet negotiations for the terms of the agreement with mining companies are at
the national level. It has been observed that:
In declaring the supremacy of national laws over local laws, the
EO opens the mining industry to tedious and unproductive court
litigation. Section 12 provides that local ordinances should be
consistent with the Constitution and national laws, that LGUs
should be confined to the imposition of “reasonable limitations”
on mining activities in their jurisdiction, and that these should
be consistent with national laws and regulations. But who
determines “reasonable limitations”?388
Despite the policy stated in Section 12 of EO 79, there is no sign that LGUs are
386
387
388
IBUYAN-final.pdf (last accessed May 1, 2013).
Romblonanons pass Environment and Natural Resources Code, alyansatigilmina.net,
Feb. 13, 2013, available at http://alyansatigilmina.net/2013/02/13/romblonanonspass-environment-and-natural-resources-code/ (last accessed May 2, 2013).
Marianne V. Go, TVIRD obtains injunction vs Zambo mining ban, PHIL. STAR, Jan.
6, 2012, available at http://www.abs-cbnnews.com/business/01/06/12/tvird-obtainsinjunction-vs-zambo-mining-ban (last accessed May 1, 2013).
Editorial:
Mining
Issues,
Jul.
23,
2012,
available
at
http://opinion.inquirer.net/33271/mining-issues (last accessed Jan. 21, 2013).
127
backing down with their bans since they consider their legislation to be valid
until struck down by the courts.389 Furthermore, the national government,
through the Department of Interior and Local Government, has been
empowered to file cases against LGUs officials who will enact ordinances
conflicting with national laws.390 All these illustrate the divisiveness caused by
mining.
E.
Mining Cases Filed in Court
Not all mining disputes necessarily land in the courts. Plaintiffs may
choose the particular cause of action they want to pursue although there may
be other related conflicts against the same defendant. Some of the mining cases
pending in courts will be briefly narrated hereunder to give an overview of the
nature of cases being presently litigated.
Before the Rules were issued, on February 27, 2008, Didipio
Earthsavers Multi-Purpose Association (DESAMA) filed an injunction suit
against OceanaGold in the RTC of Bayombong, Nueva Vizcaya, Branch 30.
On the same day, a temporary restraining order was issued restraining
389
390
Allan Nawal & Jeoffrey Maitem, Mining ban stays, says S. Cotabato governor, PHIL.
DAILY INQ., Feb. 21 2013, available at http://newsinfo.inquirer.net/362313/miningban-stays-says-s-cotabato-governor (last accessed Apr. 28, 2013).
Department of Justice, DOJ Opinion No. 87, Series of 2012 (Sep. 18, 2012).
128
OceanaGold from demolishing the houses of complainants.391 OceanaGold
filed a motion to dismiss which was denied by the RTC Bayombong. This
denial was questioned by the company in the Court of Appeals which
dismissed the petition for certiorari on February 22, 2010.392
On June 22, 2010, the Anislagan Bantay Kalikasan Task Force, Inc.
(ABAKATAF) and Lower Anislagan Farmers Irrigators Association, Inc. filed
the very first case under the Rules. It was a case for injunction with damages,
with urgent ex parte application for EPO and/or TEPO against Manila Mining
Corp., Kalayaan Copper Gold Resources and Silangan Mindanao Mining, Inc.
in the Regional Trial Court Branch 30 in Surigao City, Surigao del Norte.393
The first-ever TEPO was issued for 20 days against the exploration activities
of the three companies.394
In the Municipality of Cantilan, Surigao del Sur, Jaime “Datu Dagsaan”
Bat-ao, Liquisa Irrigators Association, Nagkahugpong Managatay Para sa
Kalambuan Nan Ayote (NAGMAKAAYO), et al. filed a Petition for
Injunction with Urgent Ex-parte Application for TEPO and/or EPO under the
Rules against Marcventures Mining and Development Corp. (MMDC) in the
391
392
393
Solidarity Philippines Australia Network, UPDATE: Ifugaos Applaud Court of
Appeals Junking of OceanaGold Petition, KASAMA Vol. 24 No. 1 / JanuaryFebruary-March
2010,
Mar.
20,
2010,
available
at
http://cpcabrisbane.org/Kasama/2010/V24n1/Didipio.htm (last accessed June 9,
2013).
Id.
Kailash, Stay order on mining project issued, PHIL. INDIGENOUS PEOPLES LINKS, July
22, 2010, available at http://www.piplinks.org/Judge+Evangeline+Yuipco-Bayana+
(last accessed June 9, 2013).
129
Regional Trial Court, Branch 41 of Cantilan (RTC Cantilan). On November
10, 2010, RTC Cantilan issued against MMDC a TEPO under Rule 2, Section
8 of the Rules which was extended on May 26, 2011, enjoining MMDC from
continuing its mining activities and operation inside the watershed .395 The
LGU earlier refused to grant MMDC, which mines nickel ores, a business
permit. On May 26, 2011, RTC Cantilan issued an Order affirming the
effectivity of the TEPO until there is an order lifting or revoking the same. 396
In June 29, 2011, MMDC filed a petition for “Mandamus/ Certiorari, Damages
and Injunction” in RTC Cantilan, against Cantilan Mayor Genito B. Guardo for
the alleged denial of business permits for the mining operations of MMDC in
accordance with its MPSA. 397 On July 5, 2011, MMDC filed a complaint in the
RTC of Butuan entitled “Damages and Attorney’s Fees” against Cantilan
Mayor Guardo, et al. including members of the civil society groups who
accompanied the Mayor in the conduct of an ocular inspection of the mining
premises.398 The TEPO has not been implemented by the MGB-Caraga Region
394
395
396
397
398
Id.
Protesters want temporary environmental protection order against mine firm, PHIL.
DAILY
INQ.,
Mar.
18,
2013,
available
at
http://newsinfo.inquirer.net/375793/protesters-want-temporary-environmentalprotection-order-against-mine-firm (last accessed Apr. 29, 2013); Vanessa L. Almeda,
Resign, anti-mining groups tell MGB-Caraga chief, MINDANEWS, Apr. 23, 2013,
available at http://www.mindanews.com/top-stories/2013/04/23/resign-anti-mininggroups-tell-mgb-caraga-chief/ (last accessed Apr. 29, 2013).
Balaod Mindanaw, Chronology of the Cantilan Watershed Mining Cases
(Unpublished) 12 (accessed from author June 10, 2013).
Id. at 14.
Id.
130
and MMDC continued its operations.399
In an Amended Decision dated September 13, 2013, the CA Fourth
Division issued a Writ of Kalikasan with a permanent cease-and desist order
against LNL Archipelago Minerals, Inc. from leveling a mountain in Barangay
Bolitoc, Santa Cruz, Zambales.400 Deciding the Petition filed by Agham Party
List, the CA stopped the mining company’s alleged construction of a seaport
for the transportation of chromite-rich soil to China.
F.
Mediation of Mining Conflicts: Benefits and Limitations
Considering the community’s opposition vis-a-vis the incentives
provided in the Mining Act of 1995 primarily aimed at luring mining
companies, it is imperative that there are avenues for dialogue and negotiation
to address inevitable disputes resulting from misunderstandings and/or clash of
interests. This is desirable in order to prevent the escalation of conflicts which
have in the past resulted in violence and bloodshed considering that heightened
tensions may likewise lead to human rights violations.
Mandatory court-annexed environmental mediation is required for
environmental cases including those involving mining laws. Under the Rules,
399
400
Almeda, MGB-13 refuses again to enforce order vs mining firm, MINDANEWS, Feb.
6, 2013, available at http://www.mindanews.com/top-stories/2013/02/06/mgb-13refuses-again-to-enforce-order-vs-mining-firm/ (last accessed Apr. 29, 2013).
Agham Party List v. LNL Archipelago Minerals, Inc. et al., CA-G.R. SP No. 00012,
Sep. 13, 2013.
131
conflicts arising from mining-related laws401 are mediatable in civil cases or
crimes with a civil aspect filed in court. Those violations of the law which are
crimes and with no private offended party are not mediatable and should be
prosecuted, e.g. corruption and illegal mining.
In order to take advantage of the benefits of and expand the use of
environmental mediation, environmental interest groups can assist the
community in filing civil cases which would lead to mediation. The cost of
filing a case is generally minimal and the CAM fee is small and affordable.
The role of a CAM mediator in mining conflicts is useful. As stated, it
is already the expressed policy of the State, through the legislative and
executive departments, to encourage mining. Thus, its agents in the LGUs 402
and DENR are perceived, whether correctly or wrongly, as having a promining and/or pro-mining companies stance. For this reason, they cannot stand
as impartial mediators in conflicts of the community against mining
companies. Although LGU officials are representatives of their constituents
and the DENR are regulators of the industry on behalf of country, they are
implicated in the national government’s policy of active promotion of mining.
The fairness of the process will be put in doubt if the mediator is not accepted
as impartial.
Apart from facilitating the dialogue between the disputing
parties, such independent mediator ensures the credibility of the process.
401
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part I, rule 1, § 2.
132
Although the court cannot encroach on policy-making, the function of
mediating between the parties is also not proper for the political branches
considering that they set the policy, have their own views or concerns to
advance and cannot be perceived as impartial.
It may be inevitable that community members and officials will have
different views about mining. The national and local government regulators
and officials who favor the entry of the mining company and the mining
company itself can dialogue with community members and groups. Their
differences can be voiced out and dialogue can assist in preventing strained
relationships. During the dialogue, those opposing the mining company can go
beyond harping on the violations and disasters of the past to point out the poor
track record of mining companies. This is not adequate particularly if the
company counters that it will implement new processes and technology that
will prevent mistakes made in the past. The discussion can lead to an
understanding by the community of what the mining company intends to do
and the safeguards it plans to implement. On the other hand, the company is
given an opportunity in a neutral proceeding and venue to listen and
understand the community’s concerns and apprehensions.
Instead of adversarial and lengthy court litigation, the benefits of
mediation can be taken advantage of so that a mutually satisfactory solution is
402
See DENR A.O. No. 96-40, chapter II, § 8.
133
reached, which could include a discussion on the “reasonable limitations” and
the terms and conditions for the “social acceptance” of the project under EO
79. Particularly when there are gaps in the law and policy, the parties have to
agree on what is acceptable. Resolution of these conflicts in a voluntary and
peaceful way is indispensable so that the mining industry is also not burdened
by uncertainty and delay.
The importance of capacitating the stakeholders is clear. For example,
training on financial management and technical aspects of mining on the part
of local officials and the community is necessary so that they can meaningfully
engage in the mediation process. However, at present this is already beyond
the services that CAM can offer.
Likewise, the community can have complete, accessible, accurate and
reliable information403 on mining laws and operations and effects of mining
which are all necessary for decision-making.404 For example, the mediator can
arrange that they should be furnished copies of official documents, e.g. the
company’s mining permit. In this process, the parties can clarify facts and
misconceptions. But as stated, the mediator’s role is non-coercive and he or
she cannot compel such disclosure. On the part of the mining company, it can
explain, among others, its costs, investment and the length of time necessary
for exploration to actual mining and how it intends to dispose of mine tailings.
403
PAMFILO, ET AL., supra note 364, at 30.
134
During mediation, both parties should be able to expect good faith and
sincerity from each other. Good faith means that the parties should be honest
and transparent when negotiating so as to cultivate trust and respect between
them. Negatively stated, there should be no lies, fraud, corruption, or bribery,
deception, coercion, manipulation, interference or underhanded methods of
convincing groups, e.g. divide-and-conquer strategy.
Mediation is useful when valuation of land or other resources is
necessary as a solution to the conflict. In this context, the parties can have a
fair negotiation leading to a mutually acceptable amount or relocation.
In mediation, the weaker party (usually the poor community) is assisted
in representing its views. The mediator can explain the legal and technical
aspects of the conflict to the community, or if he or she is not competent to do
so, can facilitate the discussion such that a mutually acceptable impartial
expert (e.g. from a nongovernment organization or academe) can be invited to
enlighten the parties.
The objective is for the parties to sit down and craft a workable and
implementable agreement to resolve contentious issues between or among
them. Agreements should be understandable to both parties, wherein and
technical terms are defined and explained, and in the vernacular whenever
necessary. In the resulting agreement, the different parties should delineate and
404
ATENEO SCHOOL OF GOVERNMENT, supra note 299, at Policy Brief, ¶ ¶ 2 & 131.
135
clarify their respective roles in moving forward, e.g. monitoring compliance
with the agreement.
The resulting agreement should not be contrary to law. For example,
the consent of the community cannot make mining in a prohibited area legal.
Finally, in line with the people’s rights to development, selfdetermination and participation in decision making process, the community has
to the right to be heard if it opposes or rejects the mining activities for various
reasons, e.g. the need for vindication and reparation for wrongs done in the
past or decision to stick to their mining bans. Thus, after undergoing CAM, the
court cannot force them to enter into a mediated agreement if they are not
persuaded to do so.
Chapter Seven
Conclusion and Recommendations
In the Philippines, court-annexed mediation is mandatory in
environmental civil cases. While environmental mediation is a new
requirement, court-annexed mediation in general is already widely used in
Philippine courts as an alternative to litigation. This came about because of the
problems encountered with traditional litigation which leave parties feeling
that justice was not achieved. Although environmental mediation has a longer
history in other countries, there is still skepticism as to how such confidential
136
proceedings where self-interested parties negotiate with each other and the
resultant decree can take into consideration the public interest.405
Any settlement should be “in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful
ecology” for the court to approve it in a consent decree. It is expected that
counsels for the parties, along with the mediator, know how to steer the parties
to an agreement that will be consistent with this standard. But even if there is
an error or lack of expertise on their part, in due course, it is the judge who
makes certain that the standard is followed. This can be a nebulous standard
when faced with the particular context of an environmental dispute before the
court. Given that there is no extensive experience yet with consent decrees, the
court can only be aided by the general guideline it uses when making a
judgment approving a compromise agreement: the agreement should comport
with the objectives of the laws giving framework to the dispute. Once it
negates these objectives, the agreement must be rejected. It is the author’s
submission that if this standard is ensured, public interest is advanced in that
the agreement does not contradict the policy formulated by the political
branches of government, the goal of which is the preservation of the
environment.
405
Higgs, Mediating Sustainability: The Public Interest Mediator in the New Zealand
Environment Court, 37 ENVTL. L. 61, 81 (Winter 2007).
137
Environmental mediation has limitations which can result in its failure
such that the parties will have to resort to litigation. Should it succeed and a
consent decree is approved, the same likewise has limits and poses dangers to
non-parties. Another way to guarantee that the agreement does not work
against broader public interest is to address the needs of affected non-parties.
Even if procedural fairness and substantive justice are attained between or
among the parties, how can the judge ensure that public interest is served such
that the rights of third parties are not disregarded? It is proposed that as much
as possible, all affected groups should be represented and participate in the
discussion of a particular dispute, not just the impleaded parties of the case, so
that the negotiated outcome will be good for everyone and not just some.
Therefore, there is a need for a consistent procedure that will address
the needs of interested key stakeholders who are not parties to the case. At the
same time, the litigants will want assurance that their negotiated settlement
will not be challenged by non-parties in the future. Such threat gives a cloud of
uncertainty that does not encourage good faith settlement efforts. It is essential
that parties are accorded due process: The procedure should be fair in that all
the affected stakeholders who may not be parties to the litigation are given the
opportunity to be heard and participate. Existing rules provide remedies to
involve all known stakeholders such as Joinder of Parties and Intervention.
However, the author likewise will recommend supplemental rules specifically
applicable to environmental cases.
138
A.
Remedies under the 1997 Rules of Civil Procedure
1.
Joinder
When the third party is an indispensable party to the case, compulsory
joinder of parties is the proper remedy. 406 Indispensable parties, i.e. parties
without whom no final determination can be had of an action, should be
impleaded and the court can dismiss the action if the party refuses to do so
despite its order.407 If judgment is rendered despite the non-joinder, the
indispensable party who is not impleaded is not bound by the consent decree 408
and such party’s remedy is to have the judgment annulled under Rule 47 of the
1997 Rules of Civil Procedure. There is jurisprudence that states that joinder
can be allowed even after final judgment if such is necessary to afford full
relief and the delay in filing the joinder motion is excusable.409
Permissive joinder of parties is also allowed when there is a question of
law or fact common to all such plaintiffs or defendants in the action involving
the same transaction or series of transactions such that the same evidence will
406
407
408
1997 RULES OF CIVIL PROCEDURE, rule 3, § 7 states:
Section 7. Compulsory joinder of indispensable parties. — Parties in interest
without whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants.
PepsiCo, Inc. v. Emerald Pizza, Inc., 530 SCRA 58, 67 (2007); 1997 RULES OF CIVIL
PROCEDURE, rule 3, § 11 provides:
Section 11. Misjoinder and non-joinder of parties. — Neither misjoinder nor
non-joinder of parties is ground for dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party or on its own initiative at any stage
the action and on such terms as are just. Any claim against a misjoined party may be
severed and proceeded with separately.
See Garcia v. Garcia, 660 SCRA 1, 13 (2011).
139
be presented to prove a cause of action.410 In joining parties, the provisions on
jurisdiction and venue should be respected.411
The rationale is orderly
administration of justice, practicality and convenience 412 in order to avoid
multiplicity of suits and for unnecessary time, effort, resources and expense to
be spent.
However, this determination of indispensable parties and process of
mandatory joinder can cause delay and costs to the original parties. Also, this
is feasible only if the affected stakeholders are identifiable which in
409
410
411
412
Republic v. Sandiganbayan, 406 SCRA 190, 272-273 (2003).
1997 RULES OF CIVIL PROCEDURE, rule 3, § 6:
Section 6. Permissive joinder of parties. — All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction or series
of transactions is alleged to exist, whether jointly, severally, or in the alternative, may,
except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court may make
such orders as may be just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with any proceedings in which he may
have no interest.
Pantranco North Express, Inc. v. Standard Insurance Company, Inc., 453 SCRA 482,
488 (2005); 1997 RULES OF CIVIL PROCEDURE, rule 2, § 5 states:
Section 5. Joinder of causes of action. — A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he may have
against an opposing party, subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of
parties;
(b) The joinder shall not include special civil actions or actions governed by special
rules;
(c) Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the jurisdiction of said court and the
venue lies therein; and
(d) Where the claims in all the causes action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction.
La Farge Cement Philippines, Inc. v. Continental Cement Corporation, 443 SCRA
522, 543 (2004).
140
environmental cases may be problematic.413 Establishing who might be
affected parties is already a demanding task in itself in view of the latitude
with which courts allow standing to sue in cases of transcendental
importance.414
Joinder is not necessary in class suits. In a class suit, the subject matter
of the controversy is one of common or general interest to many and the parties
are so numerous that it is impracticable to bring them all before the court. 415 In
such a suit, there are unnamed members of the class not personally present
before the court. Because this is an exception to joinder of indispensable
parties, it is construed strictly. 416 Under the doctrine of res judicata, a
judgment in a class suit is binding upon all the members of the class.417 A class
suit shall not be dismissed or compromised without the approval of the
court.418 In this case, in order to protect individual rights, it is important that
the court assures itself that the class members are notified about and
represented in the suit and consented to the settlement. Only when these are in
place that class members should be considered bound to the decree.
2.
413
414
415
416
417
418
Intervention
Webster, supra note 227, at 921
Integrated Bar of the Philippines v. Zamora, 338 SCRA 81, 101 (2005).
1997 RULES OF CIVIL PROCEDURE, rule 3, § 12.
Cadalin v. POEA’s Administrator, 238 SCRA 721, 769 (1994).
Francisco v. House of Representatives, 415 SCRA 44, 138 (2003), citations omitted.
1997 RULES OF CIVIL PROCEDURE, rule 17, § 2.
141
The rule in the Philippines is that intervention is not mandatory, but
only optional and permissive under Section 1, Rule 19 of the 1997 Rules of
Civil Procedure:
Section 1. Who may intervene.—A person who has a
legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so situated
as to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action.
The court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor's rights may
be fully protected in a separate proceeding.
Such intervenors may be affected private third parties, national, regional or
local government regulatory agencies, local government units, concerned
citizens or environmental interest groups.
As for the appropriate timing of the intervention, the 1997 Rules of
Civil Procedure state:
Section 2. Time to intervene.– The motion to intervene
may be filed at any time before rendition of judgment by the
trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties.
It has been held that intervention after the judgment of compromise was final
and executory and already substantially executed is improper.419 The remedy
of the affected third party is to institute a separate action. However, the
419
Magat v. Delizo, 360 SCRA 508, 513 (2001).
142
Philippine Supreme Court has also ruled that intervention may still be allowed
even after the prescribed period in the interest of substantial justice.420
A third party who is an indispensable party421 or who has a direct and
material interest in the approval or disapproval of the compromise agreement
can be allowed to intervene to challenge such agreement.422 Such third party is
not bound and its rights should not be infringed on by the compromise
agreement of the parties.423
The Rules expressly allow for a motion for intervention.424 Moreover, it
contains a particular provision on intervention in a citizen suit:
Section 5. Citizen suit. — Any Filipino citizen in
representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all
interested parties to manifest their interest to intervene in the
case within fifteen (15) days from notice thereof. The plaintiff
may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays
copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No.
9003 shall be governed by their respective provisions. 425
420
421
422
423
424
425
Office of the Ombudsman v. Masing, 542 SCRA 253, 265 (2008).
Uy v. Court of Appeals, 232 SCRA 579, 585 (1994).
Strategic Alliance Development Corporation v. Radstock Securities Limited, 607
SCRA 413, 457 (2009). In this case, the Court declared that a stockholder of the
party-corporation, in a derivative suit, can sue on behalf of such party-corporation to
annul the compromise agreement.
Gubat v. National Power Corporation, 613 SCRA 742, 758 (2010), citing University
of the East v. Secretary of Labor and Employment, 204 SCRA 254, 262 (1991).
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, part II, rule 2, § 1.
Id. § 5.
143
Joinder or Intervention will be denied to those whose interest is deemed
to already be adequately represented by existing parties, e.g. transferees of
interest426 or those representing the same right based on common facts. 427
Likewise, under the principle of laches, third parties, although entitled
to be involved in the case, may be barred from later on questioning a judgment
or the rules on joinder and intervention when because of negligence, they
failed to join or intervene in the action and remained silent despite being given
the opportunity to do so.428
426
427
428
1997 RULES OF CIVIL PROCEDURE, rule 3, §19:
Section 19. Transfer of interest. — In case of any transfer of interest, the
action may be continued by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the action or
joined with the original party.
See David v. Commission on Elections, 271 SCRA 90, 93 (1997) where it stated:
“The Petition for Leave to Intervene filed on March 17, 1997 by Punong Barangay
Rodson F. Mayor was denied as it would just unduly delay the resolution of the case,
his interest like those of all other barangay officials being already adequately
represented by Petitioner David who filed this petition as “president of the Liga ng
mga Barangay sa Pilipinas.”
Avisado v. Rumbaua, 354 SCRA 245, 258 (2001), citing Lim Tay v. Court of
Appeals, 293 SCRA 634, 659 (1998), defines laches, to wit:
There is “laches” when there is failure or neglect, for an unreasonable length of time
to do that which by exercising due diligence could or should have been done earlier.
When there is laches, the presumption arises that the party entitled to assert aright has
either abandoned it or has declined to assert it. Even a registered owner may be barred
from recovering possession of land by virtue of laches. Its elements are:
(1) conduct on the part of defendant, or one under whom he claims, giving
rise to the situation that led to the complaint and for which the complaint
seeks a remedy;
(2) delay in asserting the complainant's rights, having had knowledge or
notice of the defendant's conduct and having been afforded an opportunity to
institute a suit;
(3) lack of knowledge or notice on the part of defendant that the
complainant would assert the right on which he bases his suit; and
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred.
144
B.
Recommended Supplemental Rules Governing Approval of
Consent Decrees
Considering the infancy stage of environmental mediation practice in
the Philippines, these recommendations draw from the more mature
jurisprudence in the United States where consent decrees have been used for
decades. Culling from the American experience, it is recommended that special
rules be put in place to supplement existing remedies and to address the
peculiar needs of parties and stakeholders in environmental cases affected by
consent decrees. Like the Rules, these can be done by the Philippine Supreme
Court under its power under the Constitution to “promulgate rules concerning
the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts.”429
1.
Notice and Third Party Comment
To make the public aware of the case and settlement proceedings,
before approving the compromise agreement reached by the parties, the court
should cause a notice to be posted for affected non-parties to have ample time
429
PHIL. CONST. art VIII, § 5 (5).
Section 5. The Supreme Court shall have the following powers:
xxx
xxx
xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice of
law, the integrated bar, and legal assistance to the under-privileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court.
145
and opportunity to intervene in the case, i.e. time when they could have
reasonably seen the effects of the settlement on their interests ,430 and file a third
party comment. In the United States, this has been called “limited intervention”
wherein the intervenors are permitted to comment on the reasonableness of the
terms of the settlement and suggest alternatives or revisions thereto.
431
Patterning the proposed provision to that required for intervention in citizen
suits under the aforementioned Part II, Rule 2, Section 5 of the Rules, the same
should state:
Notice and third party comment. — Before approval of
the compromise agreement reached by the parties, the court
shall issue an order which shall contain the text of such
compromise agreement, requiring all interested parties to
manifest their interest to intervene in the case and to file their
third party comment on the proposed compromise agreement
within fifteen (15) days from notice thereof. The court shall post
the order in at least one (1) conspicuous place in the court
premises for at least ten (10) consecutive working days. The
parties may be ordered to publish the order once in a newspaper
of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
This recommended rule should not apply in said citizen suits where
interested parties were already required to intervene upon filing of the suit.
They have already been given the opportunity to do so and are precluded at
this stage to belatedly intervene. However, according to the framers of the
Rules, a suit by an individual who can show personal and direct injury can be
430
431
Schwarzschild, supra note 255, at 921.
Id. at 923.
146
filed alongside a citizen suit.432 The framers likewise noted that publication of
the notice to the public is merely “permissive and non-jurisdictional and is
meant only to encourage public participation.” 433
The notice should contain the proposed settlement giving the public an
opportunity to inspect it. This will not violate the requirement of
confidentiality for CAM since only the proceedings are expressly stated as
confidential, not the outcome which is subject to court approval. The
requirement of giving notice will not entail added substantial costs. Moreover,
interested parties can look up these notices in their own environmental courts.
Consequently, taking into account the reach of possible effects of
environmental cases to other parties and to prevent approved decrees from
being prone to attack, those third parties who were identified as stakeholders
and notified actually or constructively of their entitlement to limited
intervention but failed to intervene in the original suit should be barred from
later on challenging the decree.434 As a result, a non-party should prove that it
was denied due process by being prevented from intervening (as when such
stakeholder was not identified as an interested party and could not be
reasonably deemed to have been constructively notified as well as when there
432
433
434
Secretariat of the Sub-committee on the Rules of Procedure for Environmental Cases,
supra note 230, at 110.
Id. at 112.
Webster, supra note 227, at 147 citing Martin v. Wilks, 109 S.Ct. at 2180.
147
are difficulties of communication) before it can be allowed to attack the decree
after establishing its legal standing to do so.435
The intervention should not result in opening the case to litigation or a
“veto power” against an otherwise legitimate settlement 436 thereby delaying the
proceedings and prolonging the uncertainty arising from litigation437 which
ultimately defeats the purpose of CAM and compromise agreements.
2.
Fairness Hearings
In the United States, some courts hold “fairness hearings” wherein
they give notice to affected parties not involved in the case and allow them a
limited amount of time to comment on or object to the proposed agreement
prior to approval and entry of a decree, particularly its effects on them, without
however arguing the merits of the case, i.e. the alleged violation or liability. 438
A similar rule can be adopted here:
Fairness Hearings. – Upon receipt of the third party
comment, the court shall require the original parties to reply
thereto within ten (10) days from receipt of a copy thereof.
After the replies are filed or the time for the filing thereof has
expired, the court may hear the comments-in-intervention and
replies thereto which shall be summary in nature or require the
parties to submit memoranda. The court shall consider such
pleadings and those taken up during the hearings in acting on
the compromise agreement.
435
436
437
438
Id. at 148.
Schwarzschild, supra note 255, at 921.
Clark, 517 SCRA at 219, citing Ramnani v. Court of Appeals, 360 SCRA 645, 654
(2001).
Schwarzschild, supra note 255, at 911.
148
This timeline does not unduly prolong the disposition of environmental
cases considering that at this point, trial had been dispensed with and what
only needs to be completed is action on the proposed agreement.
This enables the court to take into account the views of the public when
approving the agreement.439 In this way, the government’s interest through its
regulatory agency can be presented and explained when necessary. This is
important because by the nature of a settlement agreement, the parties choose a
solution that works for them which can just be among several possible legal
ways of resolving the conflict. In other words, there is no such thing as one
correct solution. The hearings give an opportunity for stakeholders to state
their views on the agreement and for them to be apprised of the benefits of the
decree. These will also elicit relevant information from the expanded pool of
stakeholders which can help in the evaluation of the proposal. This can
facilitate in sorting out conflicting information.
During this time, the action is considered suspended since this stage is
still part of CAM.440
439
440
Id.
1997 RULES OF CIVIL PROCEDURE, rule 30, § 8:
Sec. 8. Suspension of Actions. – The suspension of actions shall be governed by the
provisions of the Civil Code.
CIVIL CODE, art. 2030:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expressed by one or
both parties; or
2. If it appears that one of the parties, before the commencement of the
action or proceeding, offered to discuss a possible compromise but the other party
149
These additional provisions are proposed as Supplemental Rules
attached as Annex “A”.
3.
Non-mandatory Protective Measures
The following are proposed ways to make the process fair for both
parties and non-parties which are just additional safeguards and need not be
mandatory:
While fairness hearings serve a purpose so that exclusion of interested
parties is mitigated as much as possible, with it comes the risk that the
conciliatory nature of proceedings leading to the consent decree will be
negated by the criticisms directed at the proposed decree.441 A remedy can be
to require the intervening parties to likewise undergo mediation along with the
original parties so that the cooperative atmosphere is preserved. This may
discourage litigants from settling because they are opening themselves up to
negotiating even with intervenors but it may be argued that this scenario is still
less costly to them than litigation with various parties.442
Another measure is for the court, in its discretion, to appoint a guardian
ad litem to protect the interests of known but absent or unrepresented third
441
442
refused the offer.
The duration and terms of the suspension of the civil action or proceeding
and similar matters shall be governed by such provisions of the rules of court as the
Supreme Court shall promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
Schwarzschild, supra note 255, at 932.
Id.
150
parties443 and of the environment which duty may be performed by the DENR
as the regulator for environmental concerns. The guardian can present
information and arguments on behalf of the absent party.
These considerations extend to mining conflicts. This study has shown
that the benefits of mediation and consent decrees are applicable to such
disputes.
With this recommended process, the consent decree can withstand
attacks from non-parties. While it may not be possible for the decree to be
acceptable to everyone who could be affected, this procedure enables nonparties to be informed and be included in the dialogue so that the decision can
be justified to a broader public. However, it is important not to make the
procedure so burdensome that it becomes more like litigation than an
alternative to it. It should maintain the advantage of cooperative atmosphere
that should pervade the proceedings leading to a consent decree. This is best
done if the process is responsive to all the parties who make themselves known
although in the end, the judge will make an independent review, assessment
and analysis of everything he or she has heard, in keeping with his or her
judicial training. The court will rule on the comments-in-intervention in the
consent decree and set forth its reasons for its holdings. Ultimately, it will be
the task of the court to balance the rights and interests of parties along with
443
Abram Chayes, The Role of the Judge in Public Law Litigation, 89 (7) HARV. L. REV.
1281, 1312 (May 1976).
151
those of the public including future generations.
In view of the young environmental mediation practice in the
Philippines and the limitations facing it, the consequences of consent decrees
have not been seen. Thus, there are still a lot to be learned as to how to protect
public interest in the process of approving consent decrees. It is expected to
evolve and improve as the country strives to resolve environmental disputes
peacefully.
Annex “A”
Republic of the Philippines
SUPREME COURT
Manila
PROPOSED SUPPLEMENTAL RULES TO A.M. NO. 09-6-8-SC
ALSO KNOWN AS THE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
Section 1. There shall be inserted as Sections 5-A and 5-B of Part II,
Rule 3 of A.M. No. 09-6-8-SC the following subsections:
SEC. 5-A. Notice and third party comment. — Before
approval of the compromise agreement reached by the parties,
the court shall issue an order which shall contain the text of
such compromise agreement, requiring all interested parties to
manifest their interest to intervene in the case and to file their
152
third party comment on the proposed compromise agreement
within fifteen (15) days from notice thereof. The court shall post
the order in at least one (1) conspicuous place in the court
premises for at least ten (10) consecutive working days. The
parties may be ordered to publish the order once in a newspaper
of a general circulation in the Philippines or furnish all affected
barangays copies of said order.
SEC. 5-B. Fairness Hearings. – Upon receipt of the
third party comment, the court shall require the original parties
to reply thereto within ten (10) days from receipt of a copy
thereof. After the replies are filed or the time for the filing
thereof has expired, the court may hear the comments-inintervention and replies thereto which shall be summary in
nature or require the parties to submit memoranda. The court
shall consider such pleadings and those taken up during the
hearings in acting on the compromise agreement.
SEC. 2. Effectivity. - These Supplemental Rules shall take effect
within fifteen (15) days following publication once in a newspaper of general
circulation.
BIBLIOGRAPHY
PRIMARY SOURCES
CONSTITUTION
THE 1987 PHILIPPINE CONSTITUTION
CODES AND STATUTES
The Civil Code of the Philippines (Republic Act No. 386)
Labor Code of the Philippines (Presidential Decree No. 442)
Revised Forestry Code of the Philippines (Presidential Decree No. 705)
153
The Water Code of the Philippines (Presidential Decree No. 1067)
Philippine Environmental Policy (Presidential Decree No. 1151)
Philippine Environment Code (Presidential Decree No. 1152)
Establishing an Environmental Impact Statement System, including other
Environmental Management Related Measures and for Other Purposes
(Presidential Decree No. 1586)
Establishing Small Scale Mining as a New Dimension in Mineral Development
(Presidential Decree No. 1899)
The Arbitration Law (Republic Act No. 876)
Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990
(Republic Act No. 6969)
People’s Small-scale Mining Act of 1991 (Republic Act No. 7076)
Local Government Code of 1991 (Republic Act No. 7160)
National Integrated Protected Areas System Act of 1992 (Republic Act No.
7586)
Philippine Mining Act of 1995 (Republic Act No. 7942)
Indigenous Peoples Rights Act of 1997 (Republic Act No. 8371)
Philippine Clean Air Act of 1999 (Republic Act No. 8749)
Ecological Solid Waste Management Act of 2000 (Republic Act No. 9003)
Philippine Clean Water Act of 2004 (Republic Act No. 9275)
Alternative Dispute Resolution Act (Republic Act No. 9285)
Climate Change Act of 2009 (Republic Act No. 9729)
JUDICIAL DECISIONS
154
SUPREME COURT
Salazar, et al. v. Jarabe, 91 Phil. 596 (1952).
Algabre v. Court of Appeals, 28 SCRA 1130 (1969).
Oposa v. Factoran, 224 SCRA 792 (1993).
Prudence Realty and Development Corp. v. Court of Appeals, 231 SCRA 379
(1994).
Uy v. Court of Appeals, 232 SCRA 579 (1994).
Periquet v. Intermediate Appellate Court, 238 SCRA 697 (1994).
Cadalin v. POEA's Administrator, 238 SCRA 721 (1994).
Servicewide Specialists, Inc. v. Court of Appeals, 257 SCRA 643 (1996).
National Waterworks and Sewerage Authority v. NLRC, 258 SCRA 48 (1996).
David v. Commission on Elections, 271 SCRA 90 (1997).
Armed Forces of the Philippines Mutual Benefit Association, Inc. v. Court of
Appeals, 311 SCRA 143 (1999).
Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).
Avisado v. Rumbaua, 354 SCRA 245 (2001).
Magat v. Delizo, 360 SCRA 508 (2001).
Regal Films, Inc. v. Concepcion, 362 SCRA 504 (2001).
LM Power Engineering Corporation v. Capitol Industrial Construction Groups.
Inc., 399 SCRA 563 (2003).
Iloilo Traders Finance Inc. v. Heirs of Oscar Soriano Jr., 404 SCRA 67 (2003).
Republic v. Sandiganbayan, 406 SCRA 190 (2003).
Francisco v. House of Representatives, 415 SCRA 44 (2003).
155
La Bugal-B'laan Tribal Association, Inc. v. Ramos, 421 SCRA 148 (2004).
La Farge Cement Philippines, Inc. v. Continental Cement Corporation, 443
SCRA 522 (2004).
La Bugal-B'laan Tribal Association, Inc. v. Ramos, 445 SCRA 1 (2004).
Pantranco North Express, Inc. v. Standard Insurance Company, Inc., 453
SCRA 482 (2005).
Chavez v. Court of Appeals, 453 SCRA 843 (2005).
Magbanua v. Uy, 458 SCRA 184 (2005).
Rivero v. Court of Appeals, 458 SCRA 714 (2005).
Limpo v. Court of Appeals, 482 SCRA 333 (2006).
Aromin v. Floresca, 496 SCRA 785 (2006).
Martir v. Verano, 497 SCRA 120 (2006).
Gonzales v. Climax Mining Ltd., 512 SCRA 148 (2007).
Domingo Realty, Inc. v. Court of Appeals, 513 SCRA 40 (2007).
Clark Development Corporation v. Mondragon Leisure and Resorts
Corporation, 517 SCRA 203 (2007).
Dalida v. Naguit, 526 SCRA 172 (2007).
Cemco Holdings, Inc. v. National Life Insurance Company of the Philippines,
Inc., 529 SCRA 355 (2007).
PepsiCo, Inc. v. Emerald Pizza, Inc., 530 SCRA 58 (2007).
Office of the Ombudsman v. Masing, 542 SCRA 253 (2008).
Republic v. Florendo, 549 SCRA 527 (2008).
Metropolitan Manila Development Authority v. Concerned Residents of
Manila Bay, 574 SCRA 661 (2008).
156
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INTERNATIONAL DOCUMENTS
UNITED NATIONS RESOLUTIONS AND REPORTS
Universal Declaration of Human Rights, G.A. Res. 217A (III) A, U.N. Doc.
A/RES/217 (III), Art. 25 (1) (Dec. 10, 1948).
Declaration of the United Nations Conference on the Human Environment,
Principle, U.N. Doc. A/Conf.48/14/Rev. 1(1973), 11 ILM 1416, 21
(June 16, 1972).
United Nations Conference on Environment and Development, Rio de Janeiro,
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Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks or the UN Fish Stocks Agreement, G.A. Res.
A/CONF.164/37, U.N. GAOR, 6th Sess. (Sep. 8, 1995).
TREATIES
United Nations Charter, signed June 26, 1945, (San Francisco) 1 UNTS XV.
United Nations Convention on the Recognition and the Enforcement of
Foreign Arbitral Awards of 1958, adopted June 7, 1959, (New York
Convention) 330 U.N.T.S. 3.
Convention for the Conservation of Antarctic Marine Living Resources,
adopted Dec. 1, 1959, 402 U.N.T.S. 71.
180
Vienna Convention for the Protection of the Ozone Layer, opened for
signature Mar. 2, 1985, 153 U.N.T.S. 293.
Convention for the Protection of the Natural Resources and Environment of the
South Pacific Region, adopted Nov. 24, 1986, (Noumea Convention)
26 I.L.M. 38.
The Montreal Protocol on Substances that Deplete the Ozone Layer, opened
for signature Sep. 16, 1987, 1522 U.N.T.S. 3.
Convention on Biological Diversity, opened for signature June 5, 1992, 1760
U.N.T.S. 79.
North American Agreement on Environmental Cooperation, adopted Sep. 14,
1993, 32 I.L.M. 1480.
Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters, entered into force Oct.
30, 2001, (Aarhus Convention) 2161 U.N.T.S. 447.
WTO MATERIALS
World Trade Organization Committee on Trade and Environment. Compliance
and Dispute Settlement Provisions in the WTO and in Multilateral
Environmental Agreements, WT/CTE/W/191 (June 6, 2001).
FOREIGN MATERIALS
FOREIGN LAWS
Australia
Land and Environment Court Act 1979, Act 204 of 1979 (1979).
Canada
181
Canadian Environmental Assessment Act of 1992, S.C. 1992 c 37 (1992).
Japan
Civil Conciliation Act (1951).
The Act on Promotion of Use of Alternative Dispute Resolution, Act No. 151
of 2004 (2004).
Germany
Code of Civil Procedure (2005).
India
National Green Tribunal Act (2010).
Indonesia
Environmental Management Act No. 4 (1982).
Environmental Management Act No. 23 (1997).
New Zealand
Resource Management Act 1991, Public Act 1991 No. 69 (1991).
South Africa
National Environmental Management 1998, Act No. 107 (1998).
United States
Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570 (1990).
Administrative Dispute Resolution Act of 1990, 5 U.S.C. §§ 571-583 (1990).
182
Administrative Dispute Resolution Act of 1996, Pub. Law 104-320, § 3
(1996).
Alternative Dispute Resolution Act of 1998, 28 U.S.C. §§ 651-658 (1998).
FOREIGN CASES
United States v. Peralta, 27 F. Cas. 502 (N.D. Cal. 1859).
Citizens for a Better Environment v. Gorsuch, 718 F.2d 1117 (D.C. Cir. 1983).
M.C. Mehta v. Union of India, 4 S.C.R. 463 (India 1987).
Vineet Narain v. Union of India, 1 S.C.R. 226 (India 1998).