Comparative Analysis of Philippines Legal Framework and Involuntary Resettlement Safeguards in the ADB Safeguard Policy Statement

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1 Comparative Analysis of Philippines Legal Framework and Involuntary Resettlement Safeguards in the ADB Safeguard Corresponding Provisions in National and Legal Involuntary Resettlement Safeguards Objectives: To avoid involuntary resettlement wherever possible; to minimize involuntary resettlement by exploring project and design alternatives; to enhance, or at least restore, the livelihoods of all displaced persons in real terms relative to pre-project levels; and to improve the standards of living of the displaced poor and other vulnerable groups. Constitution Article II Declaration of Principles and State Policies State Policies Section 10. The State shall promote social justice in all phases of national development. Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Article III Bill of Rights Section 1. No person shall be deprived of property without due process of law Section 6. The liberty of abode shall not be impaired except upon lawful order of the court. Article XIII Social Justice and Human Rights Section 1. the State shall regulate the acquisition, ownership, use, and The Constitution, laws and Executive Orders provide a general foundation for involuntary resettlement safeguards as well as a basis for individual key elements. 1 All text is direct citation from the official versions of the policy documents and legal instruments except where otherwise indicated by annotation. Highlighted text is used to indicate key terms that demonstrate extent of equivalence. Legally-binding provisions are cited first, followed by citations to non-legally-binding policies and guidelines. 2 Full Equivalence denotes that the national policy documents and legal instruments are in complete harmony with the corresponding Objective, Scope and Trigger, Principle or Key Element thereof. Partial Equivalence denotes that the national policy documents and legal instruments are in partial harmony with the corresponding Objective, Scope and Trigger, Principle or Key Element; and No Equivalence denotes that no policy provision or legal requirement can be found that corresponds to the particular Objective, Scope and Trigger, Principle or Key Element. It is intended that the referenced text of the national policy documents and legal instruments be sufficiently clear to demonstrate the findings of Full Equivalence or No Equivalence without further explanation, except in those instances where an explanation would appear necessary and is given. A finding of Partial Equivalence normally requires the explanation provided. In some cases, there may be full equivalence for one issue, but only partial equivalence or no equivalence for one or more of the other issues governed by a particular legal instrument. In such cases, the degree of equivalence for each issue is indicated. 1 As of March 2016

2 Corresponding Provisions in National and Legal disposition of property and its increments. Executive Order No. 1035, s. 1985, Providing the Procedures and Guidelines for the Expeditious Acquisition by the Government of Private Real Properties or Rights thereon for Infrastructure and other Government Development Projects (EO 1035 Acquisition 1985) Section 1. Scope and Applicability. The provisions of this Executive Order shall govern all acquisitions of private real properties or rights-ofway (ROW) thereon needed for infrastructure projects and other development projects of the government which are undertaken by any ministry, agency, office or instrumentality of the government, including government-owned or controlled corporations and state colleges and universities. Key element (1): Avoid involuntary resettlement wherever possible Republic Act No. 6389, Code of Agrarian Reforms of the Philippines, 1971 (RA 6389 Agrarian Reform Code 1971) 3 Sec. 2. Declaration of. - It is the policy of the State: (5) To provide a more vigorous and systematic land resettlement program and public land distribution Constitution Article XIII Urban Land Reform and Housing Section 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. Full equivalence DENR Administrative Order No Implementing Rules and Regulations (IRR) for the Philippine Environmental Impact (EIS) System (DENR AO EIS) Article I Basic, Operating Principles, Objectives and Definition of Terms Section 1. Basic and Operating Principles Sec. 3. Definition of Terms For the purpose of this Order, the following definitions shall be applied: h. Environmental Impact Assessment (EIA) -process that includes designing appropriate preventive measures addressing these 3 Amends RA No. 3844, Agricultural Land Reform Code, As of March 2016

3 Corresponding Provisions in National and Legal consequences to protect the community's welfare. l. Environmental Management Plan/Program (EMP) section in the EIS that details the prevention measures to enhance positive impacts and minimize negative impacts and risks of a proposed project or undertaking. Republic Act No. 8371, The Indigenous Peoples Rights Act, 1997 (RA 8371 IPRA 1997) Chapter III Rights to Ancestral Domains Section 7. Rights to Ancestral Domains. The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: c) Right to Stay in the Territories. The right to stay in the territory and not to be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. Section 10. Unauthorized and Unlawful Intrusion. Unauthorized and unlawful intrusion upon, or use of any portion of the ancestral domain, or any violation of the rights hereinbefore enumerated, shall be punishable under this law. Furthermore, the Government shall take measures to prevent non-iccs/ips from taking advantage of the ICCs/IPs customs or lack of understanding of laws to secure ownership, possession of land belonging to said ICCs/IPs. Section 22. Rights During Armed Conflict. ICCs/IPs have the right to special protection and security in periods of armed conflict. The State shall not force indigenous individuals to abandon their lands, territories and means of subsistence, or relocate them in special centers for military purposes under any discriminatory condition. Section 58. Environmental Considerations. no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent. DENR Administrative Order No Revising DENR Administrative Order No. 21, Series of 1992, to Further Strengthen the Implementation of the Environmental Impact (EIS) System (DENR AO EIS) Article I Basic, Objectives and Definition of Terms Sec. 3 Definition of Terms 3 As of March 2016

4 Corresponding Provisions in National and Legal For purposes of this Order, the following terms shall mean: o. Environmental Management Plan (EMP) - a section in the EIS that details the prevention measures to enhance positive impacts and minimize negative impacts of a proposed project or undertaking. Republic Act No. 7279, Urban Development and Housing Act, 1992 (RA 7279 Urban Development 1992) Article VII Urban Renewal and Resettlement SEC. 28. Eviction and Demolition. Eviction or demolition as a practice shall be discouraged. Article IV Land Use, Inventory, Acquisition and Disposition SEC. 10. Modes of Land Acquisition. expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act The Local Government Code of the Philippines 1991 (LGC 1991) Book I General Provisions Title One. - Basic Principles Chapter 2. - General Powers and Attributes of Local Government Units LGC 1991 Book I General Provisions Title One. - Basic Principles Chapter 2. - General Powers and Attributes of Local Government Units Section 19. Eminent Domain. - A local government unit may exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted... Key element (2): Minimize involuntary Republic Act No. 6657, Comprehensive Agrarian Reform Law, 1988 (RA 6657 Agrarian Reform 1988) Section 2. Declaration of Principles and Policies.The State may resettle landless farmers and farmworkers in its own agricultural estates, which shall be distributed to them in the manner provided by law. LGC 1991 Book I General Provisions Title One. - Basic Principles Full equivalence 4 As of March 2016

5 resettlement by exploring project and design alternatives Corresponding Provisions in National and Legal Chapter 3. - Intergovernmental Relations Article One. - National Government and Local Government Units Section 27. Prior Consultations Required.- 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. RA 7279 Urban Development 1992 Article I Title,, Program and Definition of Terms SEC. 3. Definition of Terms. For purposes of this Act: (l) On-site development refers to the process of upgrading and rehabilitation of blighted and slum urban areas with a view of minimizing displacement of dwellers in said areas, and with provisions for basic services Article V Socialized Housing SEC. 18. Balanced Housing Development. The Program shall include a system to be specified in the Framework plan whereby developers of proposed subdivision projects shall be required to develop an area for socialized housing equivalent to at least twenty percent (20%) of the total subdivision area or total subdivision project cost, at the option of the developer, within the same city or municipality, whenever feasible, and in accordance with the standards set by the Housing and Land Use Regulatory Board and other existing laws. The balanced housing development as herein required may also be complied with by the developers concerned in any of the following manner: (b) Slum upgrading or renewal of areas for priority development either through zonal improvement programs or resettlement programs; Article VII Urban Renewal and Resettlement SEC. 26. Urban Renewal and Resettlement. This shall include the resettlement of Program beneficiaries in accordance with the provisions of this Act. On-site development shall be implemented whenever possible in order to ensure minimum movement of occupants of blighted lands and slum areas. The resettlement of the beneficiaries of the Program from their existing places of occupancy shall be undertaken only when on-site development is not feasible and after compliance with the procedures laid down in Section 28 of this Act. SEC. 28. Eviction and Demolition. Eviction or demolition, however, may be allowed under the following situations: 5 As of March 2016

6 Corresponding Provisions in National and Legal (a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks, and playgrounds; (b) When government infrastructure projects with available funding are about to be implemented; or (c) When there is a court order for eviction and demolition. Department of Environment and Natural Resources Memorandum Circular No.: Standardization of Requirements and Enhancement of Public Participation in the Streamlined Implementation of the Philippine EIS System (DENR MC Public Participation in EIS) Annex 1-D Outline for Programmatic Environmental Impact Assessment (PEIA) Reports for Expansion/Modification Projects Draft Main PEPRMP 4.1 Impact Assessment & Mitigation 4.4 People DENR AO EIS Article I Basic, Operating Principles, Objectives and Definition of Terms Section 1. Basic and Operating Principles Sec. 3. Definition of Terms For the purpose of this Order, the following definitions shall be applied: h. Environmental Impact Assessment (EIA) -process that includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the community's welfare. l. Environmental Management Plan/Program (EMP) section in the EIS that details the mitigation measures to enhance positive impacts and minimize negative impacts and risks of a proposed project or undertaking. o. Environmental Management Plan (EMP) - a section in the EIS that details the mitigation measures to enhance positive impacts and minimize negative impacts of a proposed project or undertaking. Article III Procedural Flow of the EIS System B. Projects within Environmentally Critical Areas Sec Contents of the IEE Subject to the EIS Procedural Manual, an IEE shall at least contain the 6 As of March 2016

7 Corresponding Provisions in National and Legal following basic items: c. a brief description of the environmental impact of the project or undertaking, including its socio-economic impact; d. a matrix of mitigation and enhancement measures; Key element (3): Enhance, or at least restore, the livelihoods of all displaced persons in real terms relative to pre-project levels Key element (4): Improve the standards of living of the displaced poor and other vulnerable groups Article IV Public Participation and Social Acceptability Sec. 1.0 Social Acceptability The acceptability of the environmental impact of a project or undertaking can only be fully determined through meaningful public participation and a transparent EIS process. In determining social acceptability, the DENR shall consider, among others, the following factors: f. proposed mitigation and enhancement measures. RA 8371 IPRA 1997 Chapter III Rights to Ancestral Domains Section 7. Rights to Ancestral Domains. The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: d) Right in Case of Displacement. In case displacement occurs as a result of natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems Provided, furthermore, That basic services and livelihood shall be provided to them to ensure that their needs are adequately addressed; DENR AO EIS Article IV Public Participation and Social Acceptability Sec. 1.0 Social Acceptability The acceptability of the environmental impact of a project or undertaking can only be fully determined through meaningful public participation and a transparent EIS process. In determining social acceptability, the DENR shall consider, among others, the following factors: f. proposed enhancement measures. RA 6389 Agrarian Reform Code 1971 Section 16. Section 51 of the same Code is hereby amended to read as follows: Sec. 51. Powers and Functions. - It shall be the responsibility of the Department: "(3) To help bona fide farmers without lands or agricultural ownercultivators of uneconomic size farms to acquire and own economic family-size farm units of not more than six hectares each; Partial equivalence The only national law that even partly provides for restoring the livelihoods of displaced persons is RA 8371 IPRA The laws that apply to all other citizens do not include this. The EIS system requires considering proposed enhancement measures, but does not specifically require such measures to be put in place. Partial equivalence RA 6389 Agrarian Reform Code 1971 provides for improving the living standards of landless farmers, but does not address the displaced rural poor. Amend RA 7279 Urban Development 1992 and RA 8974, 2000, Acquisition, and/or their implementing regulations to specifically require restoring the livelihoods of displaced persons in real terms relative to preproject levels. Amend DENR AO No EIS, Article IV, Sec. 1, to specifically require the EIS process to address restoring the livelihoods of all displaced persons in real terms relative to preproject levels. Amend RA 7279 Urban Development 1992 and RA 8974, 2000, Acquisition, and/or their implementing regulations to specifically require improving the standards of living of the displaced 7 As of March 2016

8 Corresponding Provisions in National and Legal (6) To give economic family-size farms of not more than six hectares to landless citizens of the Philippines who need, deserve, and are capable of cultivating the land personally, through organized resettlement, under the terms and conditions the Department may prescribe, giving priority to qualified and deserving farmers in the province where such lands are located; poor and other vulnerable groups. Amend DENR AO No EIS, Article IV, Sec. 1, to specifically require the EIS process to address improving the standards of living of the displaced poor and other vulnerable groups. Scope and Triggers: The involuntary resettlement safeguards cover physical displacement (relocation, loss of residential land, or loss of shelter) and economic displacement (loss of land, assets, access to assets, income sources, or means of livelihoods) as a result of (i) involuntary acquisition of land, or (ii) involuntary restrictions on land use or on access to legally designated parks and protected areas. It covers them whether such losses and involuntary restrictions are full or partial, permanent or temporary. DENR MC Public Participation in EIS 3. Public Participation in the EIA Process 3.1 proponents of proposed [environmentally critical projects] ECPs are required to consult the community on the Scope of the EIA Study to be conducted in a Scoping meeting. Scoping identifies the most significant issues/impacts of the proposed projects and then delimits the extent of baseline information to those necessary to evaluate and mitigate the impacts. The need for and scope of the Environmental Risk Assessment (ERA) is also done during the scoping session. DENR AO EIS Article I Basic, Operating Principles, Objectives and Definition of Terms Sec. 3. Definition of Terms For the purpose of this Order, the following definitions shall be applied: h. Environmentally Critical Project (ECP) - a project that has high potential for significant negative environmental impact and is listed as such under Pres. Proc. No. 2146, Series of 1981 and Pres. Proc. No. 803, Series of 1996, as well as other projects which the President may proclaim as environmentally critical in accordance with Section 4 of P.D j. Environmental Impacts - the probable effects or consequences of proposed projects or undertakings on the socioeconomic environment that can be direct or indirect, cumulative, and positive or negative. Partial equivalence There is no explicit legal requirement to consider involuntary resettlement in project scoping. DENR AO EIS defines environmental impact to include socio-economic impacts and defines environmentally critical project as one with high potential for significant environmental impacts. There does not appear to be any legal presumption, even in RA 8371 IPRA 1997, that a project that involves involuntary resettlement is an environmentally critical project. Up to 1 March 2016, there had been no Presidential Proclamation declaring that a project involving involuntary resettlement is an environmentally critical project. Amend DENR AO No EIS to stipulate that involuntary resettlement must be considered in the scoping, or pre-scoping, phase of EIS for a project that is likely to involve involuntary resettlement. See Principle 2, Key element 7. 8 As of March 2016

9 Corresponding Provisions in National and Legal Article III Procedural Flow of the EIS System A. Environmentally Critical Projects Sec. 1.0 Objectives of Scoping Scoping shall be initiated by the proponent at the earliest possible stage of project development to define the range of actions, alternatives and impacts to be examined. The objectives of scoping shall be to: b. allow stakeholders to make their concerns known to ensure that the EIA adequately addresses the relevant issues; c. establish an agreement at the outset of the EIA between the proponent, the DENR and stakeholders on what issues and alternatives are to be examined; f. determine and agree on the process of dealing with issues relating to social acceptability. The Procedural Manual for DAO indicates that EIS is mandatory when a project will have significant socio-cultural impacts (section 4.5.B.2). B. Projects within Environmentally Critical Areas Sec Scoping Should the RED decide that an EIS is further required, he or she shall likewise determine whether the IEE process was sufficient for scoping purposes or not. If the RED finds that scoping is still necessary, the procedure outlined in Article III shall be followed.the RED s decision to forego scoping shall not preclude the proponent from voluntarily undergoing scoping. Principle 1: Screen the project early on to identify past, present, and future involuntary resettlement impacts and risks. Determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks. Key element (1): Partial equivalence Screen the project early on EO 1035 Acquisition 1985 Title A Activities Preparatory to Acquisition of Property Section 2. Feasibility Studies. Feasibility studies shall be undertaken for all major projects, and such studies shall, in addition to the usual technical, economic and operational aspects, include the social cultural impact of the project. Section 4. Detailed Engineering/Surveys. The implementing government agency/instrumentality concerned shall, well in advance of the scheduled construction of the project, undertake detailed engineering, including parcellary surveys to indicate the location and size of the sites and to determine ownership of the land to be acquired, including the status of such land ownership. DENR MC Public Participation in EIS Annex 4 There is no legal requirement for screening a project early on to determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks. The only specific requirement for advance surveys is in EO 1035 Acquisition DENR AO No EIS mentions Amend DENR AO No EIS to explicitly require the scoping phase of a project that will likely involve involuntary resettlement to determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks. 9 As of March 2016

10 Key element (2): Identify past 4, present, and future involuntary resettlement impacts and risks Corresponding Provisions in National and Legal Guidelines for Stakeholder Identification identified stakeholders in both direct and indirect impact areas need to be informed of, and consulted on, the project proposal at the earliest EIA stage as possible. DENR MC Public Participation in EIS Annex 1-A Annotated Outline for EIA Reports for Proposed (New) Single Projects II. Analysis of key environmental impacts 2.4 People Discuss how the project would affect existing properties in the area in terms of relocation and devaluation Annex 1-C Annotated Outline for EIA Reports for Single Project Expansion/Modification 1.7 Development Plan, Description of Project Phases and Corresponding Timeframes Phases to be described in terms identifying specific activities (w/ special attention on those with significant environmental impacts) and corresponding projected implementation timeframes: Pre-construction (planning, acquisition of rights to use land,) II. Analysis of key environmental impacts 2.4 People Discuss how the project would affect existing properties in the area in terms of relocation and devaluation screening three times, but does not specify when it should be done. Partial equivalence There is no explicit legal requirement to identify past, present, or future involuntary resettlement impacts and risks. DENR MC Public Participation in EIS includes analysis of key environmental impacts in annexes which provide outlines for EIA reports. DENR AO No EIS specifies only that an IEE Checklist Report must assess impacts. DENR AO EIS does not require the EIS process to identify impacts at all. Amend DENR AO No EIS to explicitly require, when a project is likely to involve involuntary resettlement, that identifying past, present, and future involuntary resettlement impacts and risks must be part of the EIS process. DENR AO No EIS Article I Basic, Operating Principles, Objectives and Definition of Terms Section 1. Basic and Operating Principles Sec. 3. Definition of Terms For the purpose of this Order, the following definitions shall be applied: 4 ADB s 2012 draft Involuntary Resettlement Safeguards: A Planning and Implementation Good Practice Sourcebook Draft Working Document, Section III.A.1, paragraph 28, explains: Past impacts refer to involuntary resettlement activities that may have been undertaken by the borrower/client in the proposed project area in anticipation of an ADB project. These activities may not have been in conformity with the ADB's involuntary resettlement safeguard requirements under the SPS. A due diligence exercise should be carried out for such incidents as part of the impact assessment and appropriate mitigation measures proposed in a corrective action plan. However, the past impacts are often not necessarily the result of anticipation of an ADB project and may have come about for other reasons, such as, incomplete resettlement efforts. ADB s 1998 Handbook on Resettlement A Guide to Good Practice did not address past impacts. 10 As of March 2016

11 Key element (3): Determine the scope of resettlement planning through a survey and/or census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks Corresponding Provisions in National and Legal t. Initial Environmental Examination (IEE) Checklist Report - simplified checklist version of an IEE Report, prescribed by the DENR, to be filled up by a proponent to identify and assess a project's environmental impacts and the mitigation/enhancement measures to address such impacts. RA 6389 Agrarian Reform Code 1971 "Sec. 50-F. Creation of Bureaus; Functions. - "(3) The Bureau of Resettlement which shall be responsible for the taking of a census of all proclaimed and unproclaimed resettlements; DENR AO EIS Article III Procedural Flow of the EIS System B. Projects within Environmentally Critical Areas Sec Contents of the IEE Subject to the EIS Procedural Manual, an IEE shall at least contain the following basic items: f. a brief discussion of indigenous peoples concerns and possible socioeconomic, political and cultural impacts of the proposed project or undertaking on such people for projects or undertakings located in ancestral lands or domains of indigenous communities; g. a brief discussion of gender issues for projects or undertakings with significant impact on women; h. a brief discussion of the relationship among population, development, and the environment for projects or undertakings with significant impact on population; Partial equivalence There is no explicit legal requirement to determine the scope of resettlement planning. The EIS process requires only brief discussions of possible socioeconomic impacts at the IEE stage. Amend DENR AO No EIS to explicitly require, when a project is likely to involve involuntary resettlement. that the EIS process: Require the project proponent to prepare a Resettlement and Compensation Plan; and Specify that the scope of resettlement planning must be determined by using surveys and/or a census of displaced persons, including a gender analysis, specifically related to resettlement impacts and risks. DENR MC Public Participation in EIS Annex 4 Guidelines for Stakeholder Identification 2. persons/households/communities within the smallest Unit of local government where project facilities are to be sited shall be considered the direct/primary stakeholders of the project. They shall be covered at the minimum by the project's social preparations/lec and shall comprise the reference/coverage of socio-economic/perception surveys. Principle 2: Carry out meaningful consultations with affected persons, host communities, and concerned nongovernment organizations. Inform all displaced persons of their entitlements and resettlement options. Ensure their participation in planning, implementation, and monitoring and evaluation of resettlement programmes. Pay particular attention to the needs of vulnerable groups, especially those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land, and ensure their participation in consultations. Establish a grievance redress mechanism to receive and facilitate resolution of the affected persons concerns. Support the social and cultural institutions of displaced persons and their host population. Where 11 As of March 2016

12 Corresponding Provisions in National and Legal involuntary resettlement impacts and risks are highly complex and sensitive, compensation and resettlement decisions should be preceded by a social preparation phase. Key element (1): Carry out meaningful consultations with affected persons, host communities, and concerned nongovernment organizations Constitution Article XIII Urban Land Reform and Housing Section 10. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. Full equivalence DENR MC Public Participation in EIS 3. Public Participation in the EIA Process 3.1 proponents of proposed [environmentally critical projects] ECPs are required to consult the community on the Scope of the EIA Study to be conducted in a Scoping meeting. Annex 1-A Annotated Outline for EIA Reports for Proposed (New) Single Projects II. Analysis of key environmental impacts 2.4 People Identify settlers that will be displaced from among the existing settlers Discuss the in-migration patterns impact as a result of project implementation Annex 1-C Annotated Outline for EIA Reports for Single Project Expansion/Modification 1.7 Development Plan, Description of Project Phases and Corresponding Timeframes II. Analysis of key environmental impacts 2.4 People Identify settlers that will be displaced from among the existing settlers Discuss the in-migration patterns impact as a result of project implementation Annex 1-D Outline for Programmatic Environmental Impact Assessment (PEIA) Reports for Expansion/Modification Projects Draft Main PEPRMP 2.7 EIA Public Participation Initiatives (if any) Annex 4 12 As of March 2016

13 Corresponding Provisions in National and Legal Guidelines for Stakeholder Identification 1. Public participation of the stakeholders, particularly in the direct impact areas, is to be sustained during the EIA Study and in the conduct of multi-sectoral monitoring of EIS-based projects during the project implementation. 2. At the pre-eia Study stage, persons/households/communities within the smallest Unit of local government where project facilities are to be sited shall be considered the direct/primary stakeholders of the project. They shall be covered at the minimum by the project's social preparations/lec and shall comprise the reference/coverage of socioeconomic/perception surveys. Executive Order No. 708 s. 2008, Amending Executive Order No. 152, Series of 2002, and Devolving the Function of the Presidential Commission for the Urban Poor as the Clearing House for the Conduct of Demolition and Eviction Activities Involving the Homeless and Underprivileged Citizens to the Respective Local Government Units (LGUs) Having Territorial Jurisdiction over the Proposed Demolition and Eviction Activit[i]es of Government Agencies (EO 708, 2008 and EO 152, 2002, Eviction) EO 708, 2008, Eviction Section 1. Devolution of Clearinghouse functions. The clearinghouse functions of the PCUP stated in Section 1 of Executive Order No. 152, series of 2002, are hereby devolved to the respective cities and municipalities in whose territorial jurisdiction the proposed demolition and eviction activities of government agencies are to be undertaken. Section 2. Creation of Local Housing Boards. The Local Government Units must create their own Local Housing Boards or any similar body through an appropriate ordinance before conducting the clearinghouse functions granted to them in this Executive Order. DENR AO EIS Article I Basic, Operating Principles, Objectives and Definition of Terms Section 1. Basic and Operating Principles The following are the key operating principles in the implementation of the Philippine EIS System: d. The review of the EIS by EMB shall be guided by three general criteria: (3) that social acceptability is based on informed public participation; f. The social acceptability of a project is a result of meaningful public 13 As of March 2016

14 Corresponding Provisions in National and Legal participation; Sec. 3. Definition of Terms For the purpose of this Order, the following definitions shall be applied: aa. Public Participation -open, transparent, gender-sensitive, and community- based process aimed at ensuring the social acceptability of a project or undertaking, involving the broadest range of stakeholders, commencing at the earliest possible stage of project design and development and continuing until post-assessment monitoring. Article II ECC Application Processing and Approval Procedures Sec. 5. Requirements for Securing Environmental Compliance Certificate (ECC) and Certificate of Non-Coverage (CNC) Environmental Impact (EIS). The EIS should contain at least the following: h. Supporting documents, including proof of consultation with stakeholders; 5.3 Public Hearing/Consultation Requirements For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB. Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. The public hearing/ consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA process. EO 152, 2002, Eviction Section 1. Clearing House for Demolition and Eviction. The [Presidential Commission for the Urban Poor] PCUP shall exercise, among others, the following powers and functions: 2. Require the concerned departments and agencies, including concerned local government units (LGUs), proposing to undertake demolition and eviction activities to submit to the [Presidential Commission for the Urban Poor] PCUP the completed checklist, attested to under oath by the proponent and indicating that: 14 As of March 2016

15 Corresponding Provisions in National and Legal a. Adequate consultations with the affected families have already been undertaken; DENR AO EIS Article I Basic, Objectives and Definition of Terms Sec. 2 Objectives This Administrative Order (Order) shall have the following objectives: c. Enhance maximum public participation in the EIA process to validate the social acceptability of the project or undertaking so as to ensure the fullest consideration of the environmental impact of such project or undertaking. Sec. 3 Definition of Terms For purposes of this Order, the following terms shall mean: x. Public Participation - a transparent, gender sensitive, and communitybased process involving the broadest range of stakeholders, commencing at the earliest possible stage of project design and development and continuing until post-assessment monitoring which aims to ensure social acceptability of a project or undertaking. Article III Procedural Flow of the EIS System B. Projects within Environmentally Critical Areas Sec Contents of the IEE Subject to the EIS Procedural Manual, an IEE shall at least contain the following basic items: e. a documentation of the consultative process undertaken, when appropriate; Sec [Environmental Management and Protected Areas Sector of the DENR Regional Office] EMPAS Report Within 15 days from completion of review, including public consultations, the EMPAS shall submit a report to the RED. Article IV Public Participation and Social Acceptability Sec. 1.0 Social Acceptability The acceptability of the environmental impact of a project or undertaking can only be fully determined through meaningful public participation and a transparent EIS process. In determining social acceptability, the DENR shall consider, among others, the following factors: b. effective implementation of the public participation process; 15 As of March 2016

16 Corresponding Provisions in National and Legal Sec. 9.0 Process Documentation Report The proponent shall prepare a process documentation report on the public consultation, public hearing Such process documentation shall constitute part of the records of the EIA process. RA 7279 Urban Development 1992 Article I Title,, Program and Definition of Terms SEC. 3. Definition of Terms. For purposes of this Act: (d) Consultation refers to the constitutionally mandated process whereby the public, on their own or through people s organizations, is provided an opportunity to be heard and to participate in the decisionmaking process on matters involving the protection and promotion of its legitimate collective interests, which shall include appropriate documentation and feedback mechanisms; Article VII Urban Renewal and Resettlement SEC. 28. Eviction and Demolition. In the execution of eviction or demolition orders involving underprivileged and homeless citizens, the following shall be mandatory: (2) Adequate consultations on the matter of resettlement with the duly designated representatives of the families to be resettled and the affected communities in the areas where they are to be relocated; LGC 1991 Book I General Provisions Title One. - Basic Principles Chapter 1. - The Code, and Application Section 2. Declaration of. - (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. Chapter 3. - Intergovernmental Relations Article One. - National Government and Local Government Units Section 27. Prior Consultations Required.- No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with Title Six. - Local Development Councils Section 109. Functions of Local Development Councils. - (b) The 16 As of March 2016

17 Key element (2): Inform all displaced persons of their entitlements and resettlement options Corresponding Provisions in National and Legal Barangay development council shall exercise the following functions: (1) Mobilize people's participation in local development efforts; No corresponding legal provision. No equivalence EO 1035 Acquisition 1985 requires an implementing agency to inform local inhabitants that will be affected by a project of the project s objectives and benefits in order to avoid any resistance to or objection against acquiring property for the project (Title A, Section 3). RA 7279 Urban Development 1992 only requires giving effected persons 30 days notice prior to eviction or demolition (Article VII Urban Renewal and Resettlement SEC. 28). Amend DENR AO No EIS to explicitly require, when a project is likely to involve involuntary resettlement, that all displaced persons must be informed of their entitlements and resettlement options and be given a meaningful opportunity to comment on them before the draft IEE and/or EIS report is finalized. Key element (3): Ensure the participation of displaced persons in planning, implementation, and monitoring and evaluation of resettlement programmes DENR AO EIS Article III Procedural Flow of the EIS System A. Environmentally Critical Projects Sec. 9.0 Contents of the EIS h. Supporting Documents, such as documents on social acceptability, process of public participation, technical and socio-economic data used, gathered, or generated; RA 7279 Urban Development 1992 Article V Socialized Housing SEC. 21. Basic Services. resettlement areas shall be provided by the local government unit or the National Housing Authority in cooperation with the private developers and concerned agencies with the following basic services and facilities...the provisions of other basic services and facilities such as health, education, communications, The Procedural Manual for DAO explains simply that a public hearing may deal with the [emphasis added] option, as studied and evaluated (section 5.4.B.3). Partial equivalence RA 7279 Urban Development 1992 ensures that beneficiaries are involved in planning and implementing resettlement programs, but is silent on their participation in monitoring. RA 6657 Agrarian Reform 1988 establishes the principle that beneficiaries must participate in the planning, organization, and management of the program. The EIS process does not specifically Amend DENR AO No EIS to explicitly require, when a project is likely to involve involuntary resettlement. that the EIS process: Require the project proponent to prepare a Resettlement and Compensation Plan and require that potentially displaced persons participate in the planning; and Specify that the 17 As of March 2016

18 Corresponding Provisions in National and Legal security, recreation, relief and welfare shall be planned in cooperation with the beneficiaries themselves. SEC. 23. Participation of Beneficiaries. The local government units shall afford Program beneficiaries or their duly designated representatives an opportunity to be heard and to participate in the decision-making process over matters involving the protection and promotion of their legitimate collective interests which shall include appropriate documentation and feedback mechanisms Program beneficiaries shall also be encouraged to organize themselves and undertake self-help cooperative housing and other livelihood activities In instances when the affected beneficiaries have failed to organize themselves or form an alliance within a reasonable period prior to the implementation of the program or projects affecting them, consultation between the implementing agency and the affected beneficiaries shall be conducted with the assistance of the Presidential Commission for the Urban Poor and the concerned nongovernment organization. require resettlement planning. Resettlement and Compensation Plan must provide for displaced persons to participate in implementing and monitoring it. LGC 1991 Book III Local Government Units Title Five. - Appointive Local Officials Common to all Municipalities, Cities and Provinces Article Six. - The Planning and Development Coordinator section Qualifications, Powers and Duties. - (b) The planning and development coordinator shall take charge of the planning and development office and shall: (7) Promote people participation in development planning within the local government unit concerned; Key element (4): Ensure the participation in consultations of vulnerable groups, RA 6657 Agrarian Reform 1988 Section 2. Declaration of Principles and Policies.The State shall recognize the right of farmers, farmworkers and landowners, as well as cooperatives and other independent farmers organizations, to participate in the planning, organization, and management of the program Constitution Article II Declaration of Principles and State Policies State Policies Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Partial equivalence RA 8371 IPRA 1997 provides for participation of indigenous peoples. RA 6389 Agrarian Reform Code 1971 and RA 7192 Women in Development Amend RA 6389 Agrarian Reform Code 1971 and/or its implementing regulations to specifically provide that landless people must 18 As of March 2016

19 especially those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land Corresponding Provisions in National and Legal RA 8371 IPRA 1997 Section 7. Rights to Ancestral Domains. The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: b) Right to Develop Lands and Natural Resources. the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains Section 17. Right to Determine and Decide Priorities for Development. The ICCs/IPs shall have the right to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use. They shall participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them. Section 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process provide for women s participation. RA 6389 Agrarian Reform Code 1971 does not, however, provide for landless farmers generally to participate in consultations about their resettlement. participate in consultations concerning their resettlement. Amend DENR AO No EIS to explicitly require, when a project is likely to involve involuntary resettlement, that the EIS process specifically involve all vulnerable groups including but not limited to those below the poverty line, the landless, the elderly, women and children, and Indigenous Peoples, and those without legal title to land in consultations about involuntary resettlement and resettlement planning. DENR AO EIS Article III Procedural Flow of the EIS System A. Environmentally Critical Projects Sec. 9.0 Contents of the EIS j. For projects located in ancestral lands or domains of indigenous communities, a specific chapter in the socioeconomic impact assessment shall be devoted to a discussion of indigenous peoples 19 As of March 2016

20 Corresponding Provisions in National and Legal concerns and possible socio-economic, political and cultural impacts of the proposed project on such people. Republic Act No. 7192, Women in Development and Nation Building Act, 1992 (RA 7192 Women in Development 1992) SEC. 2. Declaration of. -- (2) All government departments shall ensure that women benefit equally and participate directly in the development programs and projects of said department, specifically those funded under official foreign development assistance, to ensure the full participation and involvement of women in the development process; SEC. 4. Mandate. The [National Economic and Development Authority] NEDA shall ensure that the different government departments which, directly or indirectly, affect the participation of women in national development and their integration therein: (1) Formulate and prioritize rural or countryside development programs or projects, provide income and employment opportunities to women in the rural areas (2) Include an assessment of the extent to which their programs and/or projects integrate women in the development process and of the impact of said programs or projects on women, including their implications in enhancing the self-reliance of women in improving their income; (3) Ensure the active participation of women and women s organizations in the development programs and/or projects including their involvement in the planning, design, implementation, management, monitoring and evaluation thereof; (5) Ensure that programs and/or projects are designed so that the percentage of women who receive assistance is approximately proportionate to either their traditional participation in the targeted activities or their proportion of the population, whichever is higher. (6) Assist women in activities that are of critical significance to their selfreliance and development. SEC. 5. Equality in Capacity to Act. (2) Women shall enjoy equal treatment in land resettlement programs; RA 6657 Agrarian Reform 1988 CHAPTER X Special Areas of Concern SECTION 40. Special Areas of Concern. As an integral part of the 20 As of March 2016