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Supreme Court Issues Writ of Kalikasan Against DENR and Mining Operators in Mt. Mantalingahan, Palawan

August 16, 2023

The Supreme Court has issued a writ of kalikasan against the Department of Environment and Natural Resources (DENR), Mines and Geosciences Bureau (MGB), Ipilan Nickel Corporation (INC) and Celestial Nickel Mining and Exploration Corporation (Celestial Mining), ordering them to file a verified return of the writ within a non-extendible period of 10 days from receipt of the order.

During deliberations on August 15, 2023, the Supreme Court En Banc resolved to grant the Petition for Writ of Kalikasan, under the Rules of Procedure for Environmental Cases, filed by the Indigenous Cultural Communities (ICCs) of BICAMM Ancestral Domain, Brooke’s Point, Palawan against the DENR, MGB, INC, and Celestial Mining.

In 1993, the Republic of the Philippines and Celestial Mining entered into a Mineral Production Sharing Agreement (MPSA) covering 2,835.06 hectares of land located in Brooke’s Point, Palawan, with INC as the designated mining operator. The original MPSA had a term of 25 years.

According to the ICCs, who are indigenous peoples (IPs) with ancestral domains in the areas of Barangay Barongbarong, Uoulan, Calasaguen, Aribungos, Mambalot, and Maasin in Brooke’s Point, Palawan, the MPSA covered areas within the National Integrated Protected Areas System, specifically the area within the Mt. Mantalingahan Mountain range.

When notified by then DENR Secretary Regina Paz L. Lopez that its Environmental Compliance Certificate (ECC) expired in October 2015, INC and Celestial nevertheless continued with their tree-cutting activities which the ICCs claim have caused the deforestation of Mt. Mantalingahan.

Similarly, in 2018, after INC failed to secure a Certificate Precondition from the National Commission on Indigenous Peoples (NCIP) for the renewal of the MPSA, INC still continued with its mining operations.

On December 21, 2020, then DENR Secretary Roy Cimatu issued an order reckoning the effectivity date of the MPSA to the year it was amended in 2000, and not the year it was originally executed in 1993. The order, in effect, extended the MPSA until April 10, 2025.

On May 30, 2022, the DENR Community Environment and Natural Resources Office issued a cease-and-desist order directing INC to halt its port construction for the lack of a valid Miscellaneous Lease Agreement approved by the DENR MIMAROPA Regional Office. This was followed by a resolution by the Sangguniang Bayan of Brooke’s Point requesting the MGB to investigate the mining areas claimed by INC and recall issued permits pending investigation. However, no action was taken by the MGB on the request.

This prompted the Sangguniang Bayan to issue another resolution urging President Ferdinand R. Marcos, Jr., through the DENR Secretary, to investigate INC’s operation despite the absence of the following crucial government permits: (1) clearance from the Protected Area Management Boards; and (2) Certificate of Precondition from NCIP, as well as the extension of the MPSA without the endorsement of the various local government units of Brooke’s Point.

On September 19, 2022, the Sangguniang Bayan, in a resolution, urged the Palawan Council for Sustainable Development to recall INC’s Strategic Environmental Plan Clearance System due to numerous violations committed by INC, such as illegal cutting of trees, absence of public consultation, unsupervised cutting of trees, use of unregistered chainsaws, and excavation and hauling of minerals, all of which adversely affect the life and health of Brooke’s Point’s residents.

On June 20, 2023, the NCIP ordered the suspension and deferral of the free and prior informed consent process of INC and Celestial Mining due to complaints from the ICCs and reports of bribery by INC to elicit support from IPs.

All these prompted the filing by the ICCs before the Supreme Court of the present petition for the issuance of writ of kalikasan on the following grounds: (1) the MPSA contract area overlaps a protected area not open to mining operations; (2) the MPSA was illegally extended to 2025; (3) INC and Celestial Mining are guilty of illegal cutting of trees without permit and even with the expiration of its ECC; (4) INC and Celestial Mining engaged in illegal mining operations without Certificate Precondition from NCIP; and (5) the environmental destruction was caused by the inaction and omission of the DENR and the mining activities of INC and Celestial Mining.

In granting the ICCs’ petition, the Supreme Court held that the following must be present for the grant of a writ of kalikasan: (1) Petitioner must sufficiently allege and prove the actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) The actual or threatened violation should stem from the unlawful act or omission of a public official or employee, or private individual or entity; and (3) The actual or threatened violation should be shown to lead to an environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.

In the case of the ICCs, the Court found that all of the requisites are present: (1) The mining operations by INC and Celestial Mining may cause irreparable environmental damage to the Mt. Mantalingahan protected area and the ICCs’ ancestral domain; (2) The mining operations of INC and Celestial Mining, as exacerbated by the lack of action by the DENR and  MGB,  place the residents of Brooke’s Point in peril; and (3) The Mt. Mantalingahan Mountain range covers several municipalities of Batarza, Brooke’s Point, Sofronio Española, Quezon, and Rizal, and the continued mining operations and excavation of nickel minerals lead to environmental damage in the said mountain ranges, as exhibited by extreme flooding and contamination of fishing areas, which continually prejudice the life, health, and property of the residents.

The Court also applied the precautionary principle, as laid down in the 2021 case of PTK2 H20 Corp. v. Court of Appeals. Under the principle, a project proponent is required to provide evidence to dispel concerns regarding potential harmful impact of a project to the environment, shifting the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo.

In the present case, the Court found that there is a possibility of serious and irreversible harm on the environment and the inhabitants of Brooke’s Point located in the Mt. Mantalingahan Mountain Range. Thus, with the Court’s issuance of a writ of kalikasan, the project proponents, INC and Celestial, are required to provide evidence to dispel concerns regarding potential harmful impact of a project to the environment.

The same applies to the DENR and MGB, whose inaction over the strong pleas of the residents of Brooke’s Point shows their indifference to the rights of the ICCs to a balanced and healthful ecology, said the Court. 

Full text of the Resolution in G.R. No. 268140 (Indigenous Cultural Communities of BICAMM Ancestral Domain, Brooke’s Point, Palawan v. Office of the Secretary of the DENR, et al.) at: [xxx] (Courtesy of the Supreme Court Public Information Office)

Judicial Committee on Sustainability and Environmental Concerns

2024 National Summit

About the Committee

Activities

Resource Materials

Contact Us:

Phone number: (63) 968 998 8149
E-mail address: kalikasan@judiciary.gov.ph

Gia Ibay

With over twenty years of experience working on climate change, energy, and environmental issues, Atty Ibay presently heads the Climate Change and Energy Programme of the World Wide Fund for Nature (WWF) Philippines and concurrently serves as Earth Hour Philippines’ National Director, working for the organization for the past fourteen years on renewable energy and the clean energy transition, sustainable cities, and climate resilience. For five years, she chaired the National Renewable Energy Board’s subcommittee on Public Relations and IEC. Last March 2022, she was elected to the Board of Directors of the Climate Action Network (CAN) International, the world’s largest climate network made up of over 1,900 civil society organizations in over 130 countries, driving collective and sustainable action to fight the climate crisis and to achieve social justice. She is currently serving her 2nd term on the CAN International Board and was elected Co-Chair of the Board last February 2024. 

Her expertise includes environmental law and policy, climate change, climate finance, pollution, hazardous waste, renewable energy legislation and policy. The first Climate Change Attaché of the British Embassy Manila, she also worked at the Manila Observatory, the Department of Environment and Natural Resources and Environmental Management Bureau, and served as legal counsel for the Pollution Adjudication Board and Mines Adjudication Board. She has peer-reviewed co-written papers on environmental issues. She has been a Philippine delegation member to the United Nations Framework Convention of Climate Change (UNFCCC) Conference of Parties (COP), having attended COP3, COP9, COP16, COP21 AND COP22. Since COP27 in Sharm el-Sheikh, Egypt, COP28 in Dubai, UAE and COP29 in Baku, Azerbaijan, Atty. Ibay served as a Technical Adviser to the Philippine delegation on climate finance, mitigation, loss and damage, and just transition. 

Holding a Bachelor of Arts in Economics from the Ateneo de Manila University and a Juris Doctor degree from the University of the Philippines College of Law, Atty. Ibay has received training from the Beahrs Environmental Leadership Program, University of California, Berkeley, U.S.A., and the Renewables Academy (RENAC), Berlin, Germany. 

Privacy Notice for the
Supreme Court website

Statement of Commitment to Data Privacy and Security

The Supreme Court of the Philippines respects your privacy and your data privacy rights, as well as employs reasonable measures to protect your personal data in accordance with Republic Act No. 10173 or the Data Privacy Act of 2012 (DPA), its Implementing Rules and Regulations, and the various issuances of the National Privacy Commission (NPC) (collectively, the Data Privacy Regulations).

Brief Service Description and Its General Purpose

Use of the Supreme Court Website

The Supreme Court website serves as the online repository of Supreme Court information, references, and resources accessible to the public. By agreeing to use the Supreme Court website, you agree to the collection, use, disclosure, processing, and storage of your non-personal identification information to enable the Supreme Court to monitor the website’s engagement.

What personal data do we collect?

The Supreme Court website, other than the Email Form (see separate Privacy Notice – Email Form), does not collect personal data or cookies. The following non-personal identification information, however, are collected and stored by WordPress Statistics, a third-party service, to enable the Supreme Court to monitor the website’s performance through its engagement with visitors:

(a) Browser;

(b) Device; and

(c) Internet Protocol address.

The information collected by WordPress Statistics are limited to the foregoing.

For further understanding, please see the brief discussion on WordPress Statistics below.

Why do we collect your non-personal identification information?

The information collected through WordPress Statistics shall be processed to enable the Supreme Court, not only to effectively manage its website, but also to efficiently disseminate information to the public.

How do we process your non-personal identification information?

Where you have provided us with your non-personal identification information, you agree to our collection, use, disclosure, storage, and other processing for the purposes and in the manner set forth in this Privacy Notice.

WordPress Statistics

The Supreme Court website uses a third-party website, WordPress Statistics, to gather anonymous statistical information from site visitors and analyze the web traffic data. Such data is not shared with any other party. WordPress Statistics collects the following:

  • Browser;
  • Device; and
  • Internet Protocol address.

For more information, you may visit: https://wp-statistics.com/2018/08/16/wp-statistics-gdpr/

How do we protect your non-personal identification information?

The foregoing information, which are encrypted, shall be captured, stored, and retrieved by the Supreme Court through the third-party server, WordPress Statistics, solely for the specific purposes stated in this Privacy Notice, i.e., for reference in helping the Supreme Court in effectively managing its website. The data shall be processed and stored with utmost security and confidentiality.

Only authorized website administrators of the Supreme Court have access to the collected data stored and reported in WordPress Statistics as installed in the Supreme Court website, which in turn are subject to strict security protocols.

How long will we keep your non-personal identification information?

The collected information shall be stored in the Supreme Court website database. The Public Information Office (PIO) directly administers and maintains the database and the Supreme Court website. Only the PIO website administrators and authorized personnel shall be granted access to the database of the Supreme Court website. Sharing of any information that are contained in the said database with unauthorized persons is strictly prohibited.

The non-personal identification information collected by WordPress Statistics is stored in its database and is accessible to the Supreme Court at any time via statistics reports until WordPress Statistics is uninstalled.

In all cases, the information will be stored in a secure manner to ensure its confidentiality, integrity, and availability.

Upon expiration of the period of retention, the information collected through the Supreme Court website shall be disposed of and discarded in a secure manner that would prevent further processing, unauthorized access, or disclosure of your data.

Changes to our Privacy Notice:

The Privacy Notice may be updated from time to time. If material changes are required, any revisions shall be published on the Supreme Court website under the News and Announcements page for your immediate guidance. Therefore, we encourage you to review this Privacy Notice periodically so that you are up to date on our most current policies and practices.

This Privacy Notice was last updated on February 20, 2024.

How do you contact us?

If you have any privacy concerns or questions about your data privacy rights or our Privacy Notice, please contact us through:

JUDICIARY’S DATA PROTECTION OFFICER
Supreme Court of the Philippines
Padre Faura St., Ermita, Manila
Philippines 1000
+63 3 8552 9566
dataprivacy.sc@judiciary.gov.ph

1987Constitution

The Supreme Court Under
the 1987 Constitution

As in the 1935 and 1973 Constitutions, the 1987 Constitution provides that “[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” (Art. VII, Sec. 1). The exercise of judicial power is shared by the Supreme Court with all lower courts, but it is only the Supreme Court’s decisions that are vested with precedential value or doctrinal authority, as its interpretations of the Constitution and the laws are final and beyond review by any other branch of government.

Unlike the 1935 and 1973 Constitutions, however, the 1987 Constitution defines the concept of judicial power. Under paragraph 2 of Section 1, Article VIII, “judicial power” includes not only the “duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” This latter provision dilutes the effectivity of the “political question” doctrine which places specific questions best submitted to the political wisdom of the people beyond the review of the courts.

Building on previous experiences under former Constitutions, the 1987 Constitution provides for specific safeguards to ensure the independence of the Judiciary. These are found in the following provisions:

    • The grant to the Judiciary of fiscal autonomy. “Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year, and, after approval, shall be automatically and regularly released.” (Art. VIII, Sec. 3).
    • The grant to the Chief Justice of authority to augment any item in the general appropriation law for the Judiciary from savings in other items of said appropriation as authorized by law. (Art. VI, Sec. 25[5])
    • The removal from Congress of the power to deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 of Article VIII.
    • The grant to the Court of the power to appoint all officials and employees of the Judiciary in accordance with the Civil Service Law (Art. VIII, Sec. 5 [6])
    • The removal from the Commission of Appointments of the power to confirm appointments of justices and judges (Art. VIII, Sec. 8)
    • The removal from Congress of the power to reduce the compensation or salaries of the Justices and judges during their continuance in office. (Art. VIII, Sec. 10)
    • The prohibition against the removal of judges through legislative reorganization by providing that “(n)o law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members. (Art. VIII, Sec. 2)
    • The grant of sole authority to the Supreme Court to order the temporary detail of judges. (Art. VIII, Sec. 5[3])
    • The grant of sole authority to the Supreme Court to promulgate rules of procedure for the courts. (Art. VIII, Sec. 5[5])
    • The prohibition against designating members of the Judiciary to any agency performing quasi-judicial or administrative function. (Art. VIII, Sec. 12)
    • The grant of administrative supervision over the lower courts and its personnel in the Supreme Court. (Art. VIII, Sec. 6)

The Supreme Court under the present Constitution is composed of a Chief Justice and 14 Associate Justices. The members of the Court are appointed by the President from a list, prepared by the Judicial and Bar Council, of at least three nominees for every vacancy. This new process is intended to “de-politicize” the courts of justice, ensure the choice of competent judges, and fill existing vacancies without undue delay.

RevolutionaryGovernment

The Supreme Court Under
the Revolutionary Government

Shortly after assuming office as the seventh President of the Republic of the Philippines after the successful People Power Revolution, then President Corazon C. Aquino declared the existence of a revolutionary government under Proclamation No. 1 dated February 25, 1986. Among the more significant portions of this Proclamation was an instruction for “all appointive officials to submit their courtesy resignations beginning with the members of the Supreme Court.” The call was unprecedented, considering the separation of powers that the previous Constitutions had always ordained, but understandable considering the revolutionary nature of the post-People Power government. Heeding the call, the members of the Judiciary—from the Supreme Court to the Municipal Circuit Courts—placed their offices at the disposal of the President and submitted their resignations. President Corazon C, Aquino proceeded to reorganize the entire Court, appointing all 15 members.

On March 25, 1986, President Corazon Aquino, through Proclamation No. 3, also abolished the 1973 Constitution and put in place a Provisional “Freedom” Constitution. Under Article I, Section 2 of the Freedom Constitution, the provisions of the 1973 Constitution on the judiciary were adopted insofar as they were not inconsistent with Proclamation No. 3.

Article V of Proclamation No. 3 provided for the convening of a Constitutional Commission composed of 50 appointive members to draft a new constitution; this would be implemented by Proclamation No. 9. Under the leadership of retired SC Justice Cecilia Muñoz Palma as its President, the Constitutional Commission of 1986 submitted its output of to the people for ratification.

By a vote of 76.30%, the Filipino people then ratified the Constitution submitted to them in a national plebiscite on February 2, 1987.

President Aquino, other civilian officials, and members of the Armed Forces of the Philippines, upon the announcement of the ratification of the 1987 Constitution, swore allegiance to the new charter on February 11, 1987 thereby putting an end to the revolutionary government.

1973

The Supreme Court Under
the 1973 Constitution

The declaration of Martial Law through Proclamation No. 1081 by former President Ferdinand E, Marcos in 1972 brought about the transition from the 1935 Constitution to the 1973 Constitution. This transition had implications on the Court’s composition and functions.

This period also brought in many legal issues of transcendental importance and consequence. Among these were the legality of the ratification of a new Constitution, the assumption of the totality of government authority by President Marcos, and the power to review the factual basis for a declaration of Martial Law by the Chief Executive, among others. Also writ large during this period was the relationship between the Court and the Chief Executive who, under Amendment No. 6 to the 1973 Constitution, had assumed legislative powers even while an elected legislative body continued to function.

The 1973 Constitution increased the number of the members of the Supreme Court from 11 to 15, with a Chief Justice and 14 Associate Justices. The Justices of the Court were appointed by the President alone, without the consent, approval, or recommendation of any other body or officials.

Ayuntamiento

The Supreme Court of
the Second Republic

Following liberation from the Japanese occupation at the end of the Second World War and the Philippines’ subsequent independence from the United States, Republic Act No. 296 or the Judiciary Act of 1948 was enacted. This law grouped together the cases over which the Supreme Court could exercise exclusive jurisdiction for review on appeal, certiorari, or writ of error.

SupremeCourt

The Supreme Court During
the Commonwealth

Following the ratification of the 1935 Philippine Constitution in a plebiscite, the principle of separation of powers was adopted, not by express and specific provision to that effect, but by actual division of powers of the government—executive, legislative, and judicial—in different articles of the 1935 Constitution.

As in the United States, the judicial power was vested by the 1935 Constitution “in one Supreme Court and in such inferior courts as may be established by law.” It devolved on the Judiciary to determine whether the acts of the other two departments were in harmony with the fundamental law.

The Court during the Commonwealth was composed of “a Chief Justice and ten Associate Justices, and may sit en banc or in two divisions, unless otherwise provided by law.”

ArellanoCourt

The Establishment of
the Supreme Court of the Philippines

On June 11, 1901, the Second Philippine Commission passed Act No. 136 entitled “An Act Providing for the Organization of Courts in the Philippine Islands” formally establishing the Supreme Court of the Philippine Islands and creating Courts of First Instance and Justices of the Peace Courts throughout the land. The judicial organization established by the Act was conceived by the American lawyers in the Philippine Commission, with its basic structures patterned after similar organizations in the United States.

The Supreme Court created under the Act was composed of a Chief Justice and six Judges. Five members of the Court could form a quorum, and the concurrence of at least four members was necessary to pronounce a judgment.

Act No. 136 abolished the Audiencia established under General Order No. 20 and declared that the Supreme Court created by the Act be substituted in its place. This effectively severed any nexus between the present Supreme Court and the Audiencia.

The Anglo-American legal system under which the Supreme Court of the Philippine Islands was expected to operate was entirely different from the old Spanish system that Filipinos were familiar with. Adjustments had to be made; hence, the decisions of the Supreme Court during its early years reflected a blend of both the Anglo-American and Spanish systems. The jurisprudence was a gentle transition from the old order to the new.

VillamorHall

The Judicial System During
the American Occupation

After Spain’s defeat in the Spanish-American War in the late 1890s, The subsequent occupation by the Americans of the Philippine Islands paved the way for considerable changes in the control, disposition, and governance of the Islands.

The judicial system established during the regime of the military government functioned as an instrument of the executive—not of the judiciary—as an independent and separate branch of government. Secretary of State John Hay, on May 12, 1899, proposed a plan for a colonial government of the Philippine Islands which would give Filipinos the largest measure of self-government. The plan contemplated an independent judiciary manned by judges chosen from qualified locals and Americans.

On May 29, 1899, General Elwell Stephen Otis, Military Governor for the Philippines, issued General Order No. 20, reestablishing the Audiencia Teritorial de Manila which was to apply Spanish laws and jurisprudence recognized by the American military governor as continuing in force.

The Audiencia was composed of a presiding officer and eight members organized into two divisions: the sala de lo civil or the civil branch, and the sala de lo criminal or the criminal branch.

It was General Otis himself who personally selected the first appointees to the Audiencia. Cayetano L. Arellano was appointed President (equivalent to Chief Justice) of the Court, with Manuel Araullo as president of the sala de lo civil and Raymundo Melliza as president of the salo de lo criminal. Gregorio Araneta and Lt. Col. E.H. Crowder were appointed associate justices of the civil branch while Ambrosio Rianzares, Julio Llorente, Major R.W. Young, and Captain W.E. Brikhimer were designated associate justices of the criminal branch. Thus, the reestablished Audiencia became the first agency of the new insular government where Filipinos were appointed side by side with Americans.

SpanishRegime

The Judicial System Under
the Spanish Regime

During the early Spanish occupation, King Philip II established the Real Audiencia de Manila which was given not only judicial but legislative, executive, advisory, and administrative functions as well. Composed of the incumbent governor general as the presidente (presiding officer), four oidores (equivalent to associate justices), an asesor (legal adviser), an alguacil mayor (chief constable), among other officials, the Real Audiencia de Manila was both a trial and appellate court. It had exclusive original, concurrent original, and exclusive appellate jurisdictions.

Initially, the Audiencia was given a non-judicial role in the colonial administration, to deal with unforeseen problems within the territory that arose from time to time—it was given the power to supervise certain phases of ecclesiastical affairs as well as regulatory functions, such as fixing of prices at which merchants could sell their commodities. Likewise, the Audiencia had executive functions, like the allotment of lands to the settlers of newly established pueblos. However, by 1861, the Audiencia had ceased to perform these executive and administrative functions and had been restricted to the administration of justice.

When the Audiencia Territorial de Cebu was established in 1886, the name of the Real Audiencia de Manila was changed to Audiencia Territorial de Manila.

Map

The Judicial System of the
Pre-Colonization Filipinos

When the Spanish colonizers first arrived in the Philippine archipelago, they found the indigenous Filipinos without any written laws. The laws enforced were mainly derived from customs, usages, and tradition. These laws were believed to be God-given and were orally transmitted from generation to generation.

A remarkable feature of these customs and traditions was that they were found to be very similar to one another notwithstanding that they were observed in widely dispersed islands of the archipelago. There were no judges and lawyers who were trained formally in the law, although there were elders who devoted time to the study of the customs, usages, and traditions of their tribes to qualify them as consultants or advisers on these matters.

The unit of government of the indigenous Filipinos was the barangay, which was a family-based community of 30 to 100 families, occupying a pook (“locality” or “area”) headed by a chieftain called datu who exercised all functions of government—executive, legislative, and judicial—a barangay was not only a political but a social and an economic organization. In the exercise of his judicial authority, the datu acted as a judge (hukom) in settling disputes and deciding cases in his barangay.

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