Legal Context for REDD+ in the Philippines

THE PHILIPPINES has passed initial legislation to facilitate REDD-plus planning and initial implementation of the PNRPS. Many of the elements needed for its operationalization are also subsumed within existing laws on the environment and forested areas. These regulations are highlighted in this section.

  • Climate Change and Forests
  • Environmental Conservation and Enforcement
  • Safeguards
  • Benefit Sharing
  • Payment for Ecosystem Services

  • Regulations Influencing Climate Change and Forests

    The Climate Change Act (RA 9729)

    - passed in late 2009 established the Climate Change Commission. The Commission is a the sole policy-making body of the government on climate change, tasked to develop a National Framework Strategy on Climate Change (NFSCC) and coordinate, monitor and evaluate government adaptation and mitigation plans. It is empowered to mainstream climate change adaptation and mitigation into national and local sectoral and development plans and related policy through recommendations, capacity building, and coordination with diverse stakeholders. The Implementing Rules and Regulations (IRR) has also been signed.

    The National Framework Strategy on Climate Change

    - passed in 2010, was developed by the Climate Change Commission and is a 12-year plan for climate change adaptation and mitigation (mitigation is primarily viewed as a strategy for enhancing adaptation). It is a broad strategy, considers all sectors and highlights REDD-plus as a mitigation strategy. Section 8.5 specifically references a National REDD-plus Strategy, and is based heavily on the PNRPS. It lists the following strategic priorities:

    • Review, harmonize, and where necessary formulate, enabling policies towards enhancing the forestry sector’s ability to reduce emissions from deforestation and forest degradation and enhance forest carbon stocks, in the process, identifying and ensuring social and environmental safeguards are observed in the implementation of REDD+.
    • Strengthen governance mechanisms in REDD+ coordination and implementation by establishing appropriate institutional arrangements with which to meaningfully engage stakeholders and ensure equitable benefit sharing with local government units and communities.
    • Promote a watershed approach towards REDD+ planning, implementation, and enforcement, pursuing options to improve the protection and sustainable management of forests, and the enhancement of forest carbon stocks and biodiversity.
    • Collaboratively establish a broad science-based REDD+ research and development (R&D) agenda which, among others, identifies relevant national baselines, the drivers of deforestation and degradation in the country, and t he social, policy, and carbon-cycle aspects of REDD+ in the Philippines.
    • Establish and implement a sub-national REDD+ measurement, reporting, and verification (MRV) system, scaling up to a national-level system commensurate with the improvement of capacities and resources.
    • Formulate and implement a national REDD+ communication plan and capacity building program with which to facilitate engagement, dialogues, and training for stakeholders towards REDD+ development.
    • Explore and capitalize on opportunities for financing REDD+, establishing long-term financial sustainability and resilience by seeking multiple funding sources, establishing contingencies and investing in self-sustaining local-level programs.
    Executive Order 881

    In 2010, this Executive Order authorized the Climate Change Commission to coordinate existing climate change initiatives, including REDD-plus initiatives and other similar mechanisms. As such, the Commission is the primary body through which to institutionalize the PNRPS policies. The Order further designates the Department of Environment and Natural Resources (DENR) as the operation arm for REDD-plus activities, and as manager of REDD-plus resources acquired by the government. This provides initial structure for development of REDD-plus decision-making and carbon and non-carbon accounting, though further, more specific legislation will be necessary.

    Regulations Influencing Environmental Conservation and Enforcement

    The Constitution of the Philippines

    The Constitution of the Philippines provides a primary legal basis for the implementation of REDD-plus in the country.

    The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

    All lands of the public domain, waters, minerals, coal petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State.

    The Revised Forestry Code (PD 705)

    The revised Forestry Code (PD 705) provides for a system of land classification,12 basis for utilization and management (including reforestation and forest protection),13 and penalties for illegal logging and other forms of forest degradation14. Thus PD705 could provide the foundation for good forest rehabilitation and governance required by REDD. However PD 705 is essentially utilization-oriented and also the main source law for commercial timber extraction, and details regulations for permitted cutting. The focus on utilization has been somewhat counterbalanced by rules and regulations on forest stewardship and resource management. The policy needs to be harmonized with efforts to reduce the drivers of deforestation and enhance sustainable forest management.

    The National Integrated Protected Areas System (NIPAS)

    The National Integrated Protected Areas System (NIPAS) Act aims to preserve the Philippine environment through a system of protected areas in order to maintain essential ecological processes and lifesupport systems, preserve genetic diversity, ensure the sustainable use of resources, and to maintain natural conditions to the greatest extent possible. The NIPAS Act also presents features such as structures of management (e.g., Protected Areas Management Boards), and planning and management processes which lend themselves to REDD+ requirements. The Act further clearly articulates the need to counteract the major drivers of Philippine deforestation. However, only a handful of protected areas have been proclaimed. There are opportunities for REDD-plus implementation to draw on the provisions of this Act in order to extend protected areas coverage.

    The Strategic Environmental Plan (SEP)

    The Strategic Environmental Plan (SEP) for Palawan is a national legislation with a specific focus on the province of Palawan. It seeks, among others, the protection of natural resources in Palawan Province, which hosts a majority of the Philippines’ remaining forests, and identifies all natural forests of Palawan as areas of maximum protection. The plan articulates a zonation mechanism and provides for a governing body called the Palawan Council for Sustainable Development.

    The Local Government Code (LGC)

    The Local Government Code (LCG) gives local government units an array of powers on environmental protection and governance. It allows the local government units (LGUs) to pass local ordinances oriented towards environmental protection among other provisions and provides a strong legal basis for LGU support for REDD implementation.

    Regulations Influencing Safeguards

    The United Nations Framework Convention on Climate Change (UNFCCC)

    SOCIAL AND ENVIRONMENTAL SAFEGUARDS form a significant part of the public debate regarding REDD-plus implementation. At the 15th Session of the United Nations Framework Convention on Climate Change (UNFCCC) Conference of Parties, the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention17, which presented much of the text regarding REDD-plus currently under consideration by the parties, stated that, among others, the:

    …following safeguards should be [promoted] [and] [supported];

    …Respect for the knowledge and rights of indigenous peoples and members of local communities, by taking into account relevant international obligations, national circumstances and laws, and noting that the General Assembly has adopted the United Nations Declaration on the Rights of Indigenous Peoples;

    …Full and effective participation of relevant stakeholders, including in particular indigenous peoples and local communities in actions referred to in paragraphs 3 and 5 below;

    …Actions that are consistent with the conservation of natural forests and biological diversity, ensuring that actions referred to in paragraph 3 below are not used for the conversion of natural forests, but are instead used to incentivize the protection and conservation of natural forests and their ecosystem services, and to enhance other social and environmental benefits (Taking into account the need for sustainable livelihoods of indigenous peoples and local communities and their interdependence on forests in most countries, reflected in the United Nations Declaration on the Rights of Indigenous Peoples and the International Mother Earth Day;

    Many deemed that the Copenhagen Accord fell short in ensuring safeguards; the Philippine Representative to the UNFCCC negotiations, while supporting the Accord, expressed the need for stronger safeguards and protection for Indigenous Peoples. However, domestic safeguards already offer much of the needed strengthening.

    The Bill of Rights of the Philippine Constitution

    The Philippine Constitution, particularly the article on the Bill of Rights can be invoked to ensure that safeguards are properly observed, including the right to a healthy environment. The Constitution also includes governance safeguards, such as for public participation, access to justice, access to information, transparency, public accountability and the like. Nevertheless, the Constitution though may require implementing laws and are subject to legal limitations.

    The Environmental Impact System (EIS) (PD 1586)

    The Environmental Impact System (EIS) (PD 1586) provides a legal basis for determining the environmental impacts of proposed activities that are considered as environmentally sensitive or to be established or conducted in environmentally sensitive areas. In the context of REDD-plus, the EIS would offer a safeguard against the possibility of conversion of natural forests to establish plantations for carbon sequestration. However, the EIS has been severely diminished by recent administrative pronouncements that dilute its effectiveness. Thus additional safeguards to address this concern should be developed.

    The Indigenous Peoples Rights Act (IPRA)

    The Indigenous Peoples Rights Act (IPRA) extends extensive rights to indigenous peoples, which would extend to REDD-plus activities. As a majority of remaining forested areas lie within ancestral domains claims, IPRA is highly significant to REDD-plus implementation. IPRA allows indigenous peoples the ownership rights to ancestral domains, and presents the foundation for decision-making on these lands and local access to benefits from associated natural resources. A key concept in IPRA is the “free and prior informed consent” (FPIC) provision, with which all REDD-plus projects in ancestral domains areas will be required to comply. However, despite these protection measures many indigenous communities continue to be marginalized and would remain vulnerable to irresponsible REDDplus development.

    The Community-Based Forest Management (CBFM) Strategy (EO263)

    The Community-Based Forest Management (CBFM) strategy (EO263) is a flagship DENR program that provides a strong foundation for communities to be primary stakeholders in REDD-plus development. Extractive components of the program could also be replaced with revenue earning streams from REDD-plus activities.

    Local Government Code

    The Local Government Code requires that periodic consultations must be undertaken with all stakeholders.

    SEP Law for Palawan

    The SEP law for Palawan identifies tribal ancestral zones as part of the environmentally critical areas network (ECAN), the main zonation strategy of the law.

    Regulations Influencing Benefit Sharing

    The Indigenous Peoples Rights Act (IPRA)

    IPRA clearly expresses the rights of ownership of IPs over lands, waters, and natural resources and the rights to the fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover ownership, and the rights of interests over land and natural resources. They have the right to benefit from environmental gains and draw redress for social and environmental costs to such activities.

    The Forest Code (PD705)

    The Forest Code (PD705) requires any party that applies for a license or permit to utilize, occupy or possess forest land, or conduct any activity therein, is required to allocate at least 20% of its subscribed capital stock in favor of its employees and laborers, which allows for benefit sharing within corporations.

    The LGC / RA 7160 and Philippine Constitution

    The LGC / RA 7160, along with the Constitution, provides that LGUs are entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, including sharing of the same with the inhabitants19 The NIPAS has the authority to fix and prescribe reasonable NIPAS fees to be collected from government agencies or any other persons or firm or corporations that derive benefits from within a protected area.

    Regulations Influencing Payment for Ecosystem Services (PES)

    REDD-plus is a form of PES, and there are opportunities to link payments for carbon conservation with other forms of PES such as for biodiversity and watershed protection. The PNRPS focuses on carbon valuation and payment as well as community and biodiversity appreciation and valuation. Given this broad scope, there is a need to develop a complementary national strategy on PES. Even so, enabling laws for various ecosystem service payments are already embedded in sector policies linked to the use and management of natural resources, and can be integrated with REDD-plus actions. The Philippines Payment for Ecosystem Services Technical Working Group has identified a number of relevant policies, briefly outlined below and discussed further in Appendix B.

    Legislation ENR 91-1, The Department of Energy Act (RA 7638), and the Electricity Power Industry Reform Act (RA 9136) / The Water Code of the Philippines (PD 1067)

    IPRA clearly expresses the rights of ownership of IPs over lands, waters, and natural resources and the rights to the fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover ownership, and the rights of interests over land and natural resources. They have the right to benefit from environmental gains and draw redress for social and environmental costs to such activities.

    NIPAS Law

    The 2004 Executive Order 318 on Promoting Sustainable Forest Management specified proper valuation of forest resources, collection of fees related to resource use and fair benefit distribution. These regulations provide a basis for REDD-plus and related PES efforts.