AR-ENR Updates

Recent decisions and/or issuances of special significance in agrarian reform and environment and natural resources.

Agrarian Reform

Issue: Does the DAR Adjudication Board (DARAB) have jurisdiction over petitions for certiorari?

Held: In general, the quantum of judicial or quasi-judicial powers which an administrative agency may exercise is defined in the enabling act of such agency. In other words, the extent to which an administrative entity may exercise such powers depends largely, if not wholly, on the provisions of the statute creating or empowering such agency. The grant of original jurisdiction on a quasi-judicial agency is not implied. There is no question that the legislative grant of adjudicatory powers upon the DAR, as in all other quasi-judicial agencies, bodies and tribunals, is in the nature of a limited and special jurisdiction, that is, the authority to hear and determine a class of cases within the DAR’s competence and field of expertise. In conferring adjudicatory powers and functions on the DAR, the legislature could not have intended to create a regular court of justice out of the DARAB, equipped with all the vast powers inherent in the exercise of its jurisdiction. The DARAB is only a quasi-judicial body, whose limited jurisdiction does not include authority over petitions for certiorari, in the absence of an express grant in R.A. No. 6657, E.O. No. 229 and E.O. No. 129-A. (DARAB vs Lubrica, G.R. No. 159145, April 29, 2005, emphasis supplied.)

 

Environment & Natural Resources; Mining

Issues:1) Are Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 – granting holders of mining rights entry into private lands and concession areas – violative of constitutional prohibition on taking of property except for public use and with just compensation?

           2) Are Service Contracts prohibited by the Constitution?

Held: 1) The entry referred to in Section 76 is not just a simple right-of-way which is ordinarily allowed under the provisions of the Civil Code.  Here, the holders of mining rights enter private lands for purposes of conducting mining activities such as exploration, extraction and processing of minerals.  Mining right holders build mine infrastructure, dig mine shafts and connecting tunnels, prepare tailing ponds, storage areas and vehicle depots, install their machinery, equipment and sewer systems.  On top of this, under Section 75, easement rights are accorded to them where they may build warehouses, port facilities, electric transmission, railroads and other infrastructures necessary for mining operations.  All these will definitely oust the owners or occupants of the affected areas the beneficial ownership of their lands.  Without a doubt, taking occurs once mining operations commence.

x x x  x x x  x x x

While this Court declares that the assailed provision is a taking provision, this does not mean that it is unconstitutional on the ground that it allows taking of private property without the determination of public use and the payment of just compensation.

x x x  x x x  x x x

Irrefragably, mining is an industry which is of public benefit.

That public use is negated by the fact that the state would be taking private properties for the benefit of private mining firms or mining contractors is not at all true. In Heirs of Juancho Ardona v. Reyes, petitioners therein contended that the promotion of tourism is not for public use because private concessionaires would be allowed to maintain various facilities such as restaurants, hotels, stores, etc., inside the tourist area.  The Court thus contemplated:

    The rule in Berman v. Parker [348 U.S. 25; 99 L. ed. 27] of deference to legislative policy even if such policy might mean taking from one private person and conferring on another private person applies as well in the Philippines.

x x x  x x x  x x x

There is also no basis for the claim that the Mining Law and its implementing rules and regulations do not provide for just compensation in expropriating private properties.  Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 provide for the payment of just compensation:

x x x  x x x  x x x

Implementing Section 76 of Rep. Act No. 7942, Section 105 of DAO 96-40 states that holder(s) of mining right(s) shall not be prevented from entry into its/their contract/mining areas for the purpose of exploration, development, and/or utilization.  That in cases where surface owners of the lands, occupants or concessionaires refuse to allow the permit holder or contractor entry, the latter shall bring the matter before the Panel of Arbitrators for proper disposition.  Section 106 states that voluntary agreements between the two parties permitting the mining right holders to enter and use the surface owners’ lands shall be registered with the Regional Office of the MGB.  In connection with Section 106, Section 107 provides that the compensation for the damage done to the surface owner, occupant or concessionaire as a consequence of mining operations or as a result of the construction or installation of the infrastructure shall be properly and justly compensated and that such compensation shall be based on the agreement between the holder of mining rights and surface owner, occupant or concessionaire, or where appropriate, in accordance with Presidential Decree No. 512.  In cases where there is disagreement to the compensation or where there is no agreement, the matter shall be brought before the Panel of Arbitrators.  Section 206 of the implementing rules and regulations provides an aggrieved party the remedy to appeal the decision of the Panel of Arbitrators to the Mines Adjudication Board, and the latter’s decision may be reviewed by the Supreme Court by filing a petition for review on certiorari.

 

     2) The mere fact that the term service contracts found in the 1973 Constitution was not carried over to the present constitution, sans any categorical statement banning service contracts in mining activities, does not mean that service contracts as understood in the 1973 Constitution was eradicated in the 1987 Constitution.  The 1987 Constitution allows the continued use of service contracts with foreign corporations as contractors who would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State; this time, however, safety measures were put in place to prevent abuses of the past regime.  We ruled, thus:

    To our mind, however, such intent cannot be definitively and conclusively established from the mere failure to carry the same expression or term over to the new Constitution, absent a more specific, explicit and unequivocal statement to that effect.  What petitioners seek (a complete ban on foreign participation in the management of mining operations, as previously allowed by the earlier Constitutions) is nothing short of bringing about a momentous sea change in the economic and developmental policies; and the fundamentally capitalist, free-enterprise philosophy of our government.  We cannot imagine such a radical shift being undertaken by our government, to the great prejudice of the mining sector in particular and our economy in general, merely on the basis of the omission of the terms service contract from or the failure to carry them over to the new Constitution.  There has to be a much more definite and even unarguable basis for such a drastic reversal of policies.

(Didipio Earth-Savers’ Multi-Purpose Association vs. Gozun, G.R. No. 157882, March 30, 2006, citations omitted).

Peñaflor & DeGuia is the sole owner of the information contained in this website. We will only gather information we need to serve you better and will not - without proper consent, sell, share, or rent this information to others in ways different from what is disclosed in this statement, except in cases where, in good faith we believe that the law requires us to do so, and it is necessary to protect Peñaflor & DeGuia’s rights and/or property, or if circumstances necessitate acting to protect the personal safety of our staff or of the public. All information on this website is copyright of Peñaflor & DeGuia

[Home] [About Us] [Services] [AR-ENR Updates] [Publications]