Mr. Benjamin A. Cabrido Jr., LLB, LLM-C Professor, Environmental LawUniversity of San Jose-Recoletos

College of LawCebu City, Philippines

WHY DOLPHINS MAY SUE IN THE PHILIPPINES

Dolphins v. Secretary Reyes, et al, Dolphins v. Secretary Reyes, et al, SC-G.R. No. 180771SC-G.R. No. 180771

PETITIONERSPETITIONERS

• Resident Marine Mammals of Tañon Resident Marine Mammals of Tañon Strait Protected Seascape, e.g. Strait Protected Seascape, e.g. Toothed Whales, Dolphins, Porpoises Toothed Whales, Dolphins, Porpoises & other cetacean species.& other cetacean species.

• Legal Guardians: Gloria Estenzo Legal Guardians: Gloria Estenzo Ramos and Rose-Liza Eisma Osorio.Ramos and Rose-Liza Eisma Osorio.

• President Arroyo, Unwilling GuardianPresident Arroyo, Unwilling Guardian

RESPONDENTSRESPONDENTS

• Energy Secretary ReyesEnergy Secretary Reyes

• Environment Secretary AtienzaEnvironment Secretary Atienza

• Japan Petroleum Exploration Co., Ltd.Japan Petroleum Exploration Co., Ltd.

BATTLEGROUND:BATTLEGROUND:Tañon StraitTañon Strait• A narrow body of sea A narrow body of sea

separating the separating the Philippine Islands of Philippine Islands of Negros and CebuNegros and Cebu

• It is home to 11 out of It is home to 11 out of the 24 known the 24 known cetacean speciescetacean species

• Declared as Protected Declared as Protected Seascape in 1998Seascape in 1998

• Estimated Oil Reserve: Estimated Oil Reserve: 1B barrels; 1B barrels; recoverable: 100 recoverable: 100 million barrelsmillion barrels

Resident Cetaceans in Tañon Resident Cetaceans in Tañon StraitStrait• Spinner dolphins Spinner dolphins (Stenella longirostris)(Stenella longirostris)• Spotted dolphins Spotted dolphins (Stenella attenuata)(Stenella attenuata)• Common bottlenose dolphinsCommon bottlenose dolphins• Risso’s dolphinsRisso’s dolphins• Fraser’s dolphinsFraser’s dolphins• Indo-Pacific bottlenose dolphins Indo-Pacific bottlenose dolphins (Tursiops (Tursiops

aduncus)aduncus)• Pilot whalesPilot whales• Pymy killer whalesPymy killer whales• False killer whalesFalse killer whales• Dwarf sperm whale Dwarf sperm whale (Kogia sima)(Kogia sima)• Melon Headed Melon Headed (Peponocephala electra)(Peponocephala electra)

THE PROBLEM CREATED BY THE PROBLEM CREATED BY THE PHILIPPINE GOVERNMENTTHE PHILIPPINE GOVERNMENT

• Phil. Gov’t awarded Service Contract No. Phil. Gov’t awarded Service Contract No. 46 to JAPEX (Dec. 21, 2004)46 to JAPEX (Dec. 21, 2004)

• Coverage area: 2,850 sq.km. (almost the Coverage area: 2,850 sq.km. (almost the entire Tañon Strait)entire Tañon Strait)

• May 2005: M/S Veritas Searcher of JAPEX May 2005: M/S Veritas Searcher of JAPEX started the 751-km multi-channel sub-started the 751-km multi-channel sub-bottom profiling surveybottom profiling survey

• Nov.10, 2007: JAPEX started exploration Nov.10, 2007: JAPEX started exploration drilling of 3,150m depthdrilling of 3,150m depth

AFTER-SEISMIC SURVEY AFTER-SEISMIC SURVEY FINDINGSFINDINGS

• Reduced Fish Catch (50-70%)Reduced Fish Catch (50-70%)

• Fish KillsFish Kills

• Lack of public participation from Lack of public participation from stakeholders in the preparation of stakeholders in the preparation of ECCECC

MAJOR ISSUESMAJOR ISSUES

• LOCUS STANDI OF DOLPHINS, ET AL.LOCUS STANDI OF DOLPHINS, ET AL.

• VIOLATION OF PHIL. CONSTITUTION & VIOLATION OF PHIL. CONSTITUTION & INTERNATIONAL CONVENTIONSINTERNATIONAL CONVENTIONS

• NON-CORFORMANCE TO EIA LAWNON-CORFORMANCE TO EIA LAW

I. LOCUS STANDI (Legal Standing of I. LOCUS STANDI (Legal Standing of Dolphins & Whales)Dolphins & Whales)

LOCUS STANDILOCUS STANDI

• A right of appearance in a court of A right of appearance in a court of justice on a given question.justice on a given question.

• Mere procedural technicality.Mere procedural technicality.

• Court Discretion.Court Discretion.

Two Classes of Locus Standi in Two Classes of Locus Standi in The PhilippinesThe Philippines

• Private SuitsPrivate Suits

• Public SuitsPublic Suits

PRIVATE SUITSPRIVATE SUITS

• Section 2, Rule 3, Rules of Court: Section 2, Rule 3, Rules of Court: “Every action must be prosecuted or “Every action must be prosecuted or defended in the name of the real defended in the name of the real party in interest.” party in interest.” 

• Real Party In Interest: Real Party In Interest: “The party who “The party who stands to be benefited or injured by stands to be benefited or injured by the judgment in the suit or the party the judgment in the suit or the party entitled to the avails of the suit.”entitled to the avails of the suit.”

PUBLIC SUITSPUBLIC SUITS

•Citizen’s SuitCitizen’s Suit

- Concerned Citizen’s suit- Concerned Citizen’s suit

- Voter’s Suit- Voter’s Suit

- Legislator’s Suit- Legislator’s Suit

•Taxpayer’s SuitTaxpayer’s Suit

CITIZEN’S SUITCITIZEN’S SUIT

• Matter of mere public right;Matter of mere public right;

• People are real parties-in-interest; People are real parties-in-interest; andand

• Right & Duty of every citizen to Right & Duty of every citizen to interfere and see that public offence interfere and see that public offence be properly pursued and punished be properly pursued and punished and grievance remedied.and grievance remedied.

TAXPAYER’S SUITTAXPAYER’S SUIT

• Right of a citizen and a taxpayer to Right of a citizen and a taxpayer to maintain an action in courts; maintain an action in courts;

• To restrain the unlawful use of public To restrain the unlawful use of public funds to his injury.funds to his injury.

DIRECT INJURY TESTSDIRECT INJURY TESTS

• A personal and substantial interest in A personal and substantial interest in the case; andthe case; and

• Has sustained, or will sustain direct Has sustained, or will sustain direct injury as a result injury as a result

DOCTRINE ONDOCTRINE ONTRANSCEDENTAL IMPORTANCETRANSCEDENTAL IMPORTANCE

• Applies if Petitioners fail in showing direct Applies if Petitioners fail in showing direct injury;injury;

• Allows ordinary citizens, members of Allows ordinary citizens, members of Congress, and civic organizations to Congress, and civic organizations to prosecute actions involving the prosecute actions involving the constitutionality or validity of laws, constitutionality or validity of laws, regulations and rulings;regulations and rulings;

• Due to far-reaching implications.  Due to far-reaching implications. 

Chavez v. Public Estates Chavez v. Public Estates AuthorityAuthority

• The enforcement of the constitutional The enforcement of the constitutional right to information and the equitable right to information and the equitable diffusion of natural resources are diffusion of natural resources are matters of transcendental matters of transcendental importance which clothe the importance which clothe the petitioner with petitioner with locus standi.locus standi.

Oposa v. FactoranOposa v. Factoran

• (T)he right to a balanced and healthy (T)he right to a balanced and healthy ecology belongs to a different category of ecology belongs to a different category of rights altogether for it concerns nothing less rights altogether for it concerns nothing less than self-preservation and self-perpetuation, than self-preservation and self-perpetuation, the advancement of which predate all the advancement of which predate all government and constitution.government and constitution.

• These basic rights need not even be written These basic rights need not even be written in the Constitution for they are assumed to in the Constitution for they are assumed to exist from the inception of humankind.exist from the inception of humankind.

LEGAL THEORIESLEGAL THEORIES

• Stipulations Pour AutruiStipulations Pour Autrui

• Incorporation of International LawsIncorporation of International Laws

• Hard Look DoctrineHard Look Doctrine

STIPULATION STIPULATION POUR AUTRUIPOUR AUTRUI

• A stipulation conferring a clear and A stipulation conferring a clear and deliberate right or benefit to a third deliberate right or benefit to a third ‘party’ in a contract.‘party’ in a contract.

• Beneficiary may demand its Beneficiary may demand its fulfillment before revoked.fulfillment before revoked.

• Acceptance.Acceptance.

Requisites for Application ofRequisites for Application ofStipulation Pour AutruiStipulation Pour Autrui

• Intent by the promise to secure some Intent by the promise to secure some benefit to the third party ;benefit to the third party ;

• Privity between the promise and the party Privity between the promise and the party to be benefited;to be benefited;

• Obligation or duty due from the promisee; Obligation or duty due from the promisee; andand

• Legal or equitable claim to the benefit of Legal or equitable claim to the benefit of the promise or an equivalent from him the promise or an equivalent from him personally. personally.

INTERNATIONAL INSTRUMENTS INTERNATIONAL INSTRUMENTS CONFERRING BENEFITS TO CONFERRING BENEFITS TO DOLPHINS & WHALESDOLPHINS & WHALES

• United Nations Charter for Nature United Nations Charter for Nature

• Chapter 15, Agenda 21 at the United Chapter 15, Agenda 21 at the United Nations Conference on Environment and Nations Conference on Environment and Development Development

• 1992 Convention on Biological Diversity 1992 Convention on Biological Diversity

• 1979 Bonn Convention on Conservation 1979 Bonn Convention on Conservation of Migratory Species of Wild Animals of Migratory Species of Wild Animals

PRECAUTIONARY PRINCIPLEPRECAUTIONARY PRINCIPLEUN Charter for NatureUN Charter for Nature• Respect of nature and non-impairment of its Respect of nature and non-impairment of its

essential processes.essential processes.• Not to compromise the genetic viability on the Not to compromise the genetic viability on the

earth.earth.• Safeguard the habitats of all life forms, Safeguard the habitats of all life forms,

whether wild or domesticated in order that whether wild or domesticated in order that their population levels would at least be their population levels would at least be sufficient for their survivalsufficient for their survival..

• Special protection to unique areas, to representative Special protection to unique areas, to representative samples of all the different types of ecosystems and samples of all the different types of ecosystems and to the habitats of rare or endangered species.to the habitats of rare or endangered species.

• Maintain sustainable productivity that would not in Maintain sustainable productivity that would not in any way endanger the integrity of those other any way endanger the integrity of those other ecosystems or species with which they coexist. ecosystems or species with which they coexist.

Agenda 21 UNCTADAgenda 21 UNCTAD

• Government must take action for the Government must take action for the conservation of biological diversity.conservation of biological diversity.

• In situ conservation of ecosystems and In situ conservation of ecosystems and natural habitats, as well as primitive natural habitats, as well as primitive cultivars and their wild relatives. cultivars and their wild relatives.

• Maintenance and recovery of viable Maintenance and recovery of viable populations of species in their natural populations of species in their natural surroundings, and implement ex situ surroundings, and implement ex situ measures.measures.

1992 Bonn Convention on 1992 Bonn Convention on Biological Diversity Biological Diversity

• In situ conservation: Promote the In situ conservation: Promote the protection of ecosystems, natural habitats protection of ecosystems, natural habitats and the maintenance of viable populations and the maintenance of viable populations of species in natural surroundings.of species in natural surroundings.

• Ex situ conservation: Adopt measures for Ex situ conservation: Adopt measures for the recovery and rehabilitation of the recovery and rehabilitation of threatened species and for their threatened species and for their reintroduction into their natural habitats reintroduction into their natural habitats under appropriate conditions. under appropriate conditions.

APPLICABILITY OF INTERNATIONAL APPLICABILITY OF INTERNATIONAL LAWS IN THE PHILIPPINESLAWS IN THE PHILIPPINES

• Doctrine of Incorporation: Sec. 2, Art. II, 1987 Doctrine of Incorporation: Sec. 2, Art. II, 1987 Philippine ConstitutionPhilippine Constitution

• Santos III vs. Northwest Orient Airlines, 210 SCRA Santos III vs. Northwest Orient Airlines, 210 SCRA 261 [1992]: “Convention which is a Treaty 261 [1992]: “Convention which is a Treaty commitment voluntarily assumed by the Philippine commitment voluntarily assumed by the Philippine government has the force and effect of law in this government has the force and effect of law in this country.”country.”

• Tanada vs. Angara (272 SCRA , 1997): “In the Tanada vs. Angara (272 SCRA , 1997): “In the event that a treaty obligation conflicts with local event that a treaty obligation conflicts with local legislation, such a state is “bound to make in its legislation, such a state is “bound to make in its legislations such modifications as may be legislations such modifications as may be necessary to ensure the fulfillment of the necessary to ensure the fulfillment of the obligations undertaken.”obligations undertaken.”

VIOLATIONS IN THE VIOLATIONS IN THE CONSTITUTION & LAWSCONSTITUTION & LAWS

• Jura Regalia (Sec. 2, Art. XII, 1987 Jura Regalia (Sec. 2, Art. XII, 1987 Constitution)Constitution)

• R.A. 9147 (Wildlife Resources R.A. 9147 (Wildlife Resources Conservation & Protection Act)Conservation & Protection Act)

• Fisheries Code of 1998 (R.A. 8550)Fisheries Code of 1998 (R.A. 8550)

Regalian DoctrineRegalian Doctrine

• The exploration, development, and The exploration, development, and utilization of natural resources shall be under utilization of natural resources shall be under the full control and supervision of the State.the full control and supervision of the State.

• State’s direct undertaking; orState’s direct undertaking; or

• co-production, joint venture, or production-co-production, joint venture, or production-sharing agreements with Filipino citizens, or sharing agreements with Filipino citizens, or corporations or associations at least sixty corporations or associations at least sixty per centum of whose capital is owned by per centum of whose capital is owned by such citizens. such citizens.

Mineral Exploration in Tañon Mineral Exploration in Tañon Strait is IllegalStrait is Illegal

SEC. 27, R.A. 9147SEC. 27, R.A. 9147

• It shall be unlawful for any person It shall be unlawful for any person to undertake the following acts:to undertake the following acts:

c. effecting any of the c. effecting any of the following acts in critical habitat(s):following acts in critical habitat(s):

- mineral exploration and/or - mineral exploration and/or extraction.extraction.

Fishermen’s Preferential Use Fishermen’s Preferential Use Over Tañon Strait Over Tañon Strait

Sec. 2(d), R.A. 8550:Sec. 2(d), R.A. 8550:

• Protect the rights of fisher folks.Protect the rights of fisher folks.

• By giving them preferential use of By giving them preferential use of the municipal waters.the municipal waters.

• Consistent with international treaties Consistent with international treaties and agreements.and agreements.

HARD LOOK DOCTRINEHARD LOOK DOCTRINE

• All agencies "to the fullest extent All agencies "to the fullest extent possible" must provide a detailed possible" must provide a detailed environmental impact statement (EIS).environmental impact statement (EIS).

• Courts should carefully check every Courts should carefully check every EIS for completeness of information EIS for completeness of information and detail, soundness of analysis, and detail, soundness of analysis, thorough discussion of alternatives, thorough discussion of alternatives, and disclosure of sources and disclosure of sources

On Behalf of My Clients:On Behalf of My Clients:Thank youThank you