MOVING ON MANGROVES : 4 Take-Aways from the Recent National Mangrove Policy Forum

CURRENT BIODIVERSITY CONCERNS
Elpidio V. Peria
5 April 2015

The NGOs for Fisheries Reform, Aksyon Klima Pilipinas, Zoological Society of London with the Biodiversity Management Bureau of the DENR and other stakeholders recently held last 4 March 2015 in Quezon City a National Mangrove Policy Forum which tackled urgent issues concerning the conservation and protection of the country’s mangroves and the role they play in a healthy coastal ecosystem. Based on the discussions during the day’s presentations and a workshop, the following can be some of the possible take-off points that stakeholders may follow through for further action :

1. Review the issuance of Aquasilviculture Stewardship Contracts (ASC) and examine whether it defeats the purpose of sec. 49 of the Fisheries Code (Republic Act 8550)

Fisheries Administrative Order (FAO) 197-1 issued in 2012 by the Bureau of Fisheries and Aquatic Resources (BFAR) provides for three types of legal instruments that may be availed of in areas released for fishpond development, namely : gratuitous permit, aquasilviculture stewardship contract (ASC) and fishpond lease agreement.

What was discussed in the Forum was that the ASC may go beyond the parameters of sec. 49 of Republic Act 8550 as it keeps the abandoned, undeveloped and underutilized fishponds within the scope of the authority, or jurisdiction, of BFAR, when they should already be reverted to mangroves through rules that will be issued by the Department of Environment and Natural Resources (DENR).

If we examine sec. 49 of the Fisheries Code, it reads as follows:

Section 49. Reversion of All Abandoned, Undeveloped or Underutilized Fishponds. – The DENR, in coordination with the Department, LGUs, other concerned agencies and FARMCs shall determine which abandoned, underdeveloped or underutilized fishponds covered by FLAs can be reverted to their original mangrove state and after having made such determination shall take all steps necessary to restore such areas in their original mangrove state.

The law, while giving the authority for reversion to the DENR, does not really intend for the DENR to exercise such power alone, since the DENR is tasked to coordinate, with the Department of Agriculture, the local government units or LGUs and the Fisheries Aquatic Resource Management Councils (FARMCs).

Strangely, when one examines the legal mandate for the issuance of FAO 197-1, nowhere does it mention sec. 49 of the Fisheries Code at all, though it enumerated key provisions such as sec. 45 of the Code governing disposition of public lands for fishery purposes, which is done through fishpond lease agreements; sec. 65 which elaborates the full scope of the powers of the BFAR, and the all-important catch-all provision under which BFAR may justify its policy actions, which states :

(s) perform such other related functions which shall promote the development, conservation, management, protection and utilization of fisheries and aquatic resources.

We also have sec. 107 which gives authority to the BFAR to further promulgate Administrative Orders related to fishery and aquatic resources.

Section 107. Promulgation of Administrative Orders. – For purposes of fishery regulation or other fishery adjustments, the Department in consultation with the LGUs and local FARMCs, shall issue Fishery Administrative Orders or regulations for the conservation, preservation, management and sustainable development of fishery and aquatic resources.

So, with this quick rundown of the legal basis for the ASC under FAO 197-1, can it be said that the ASC is a proper legal instrument that are contemplated within the powers of BFAR under the Fisheries Code?

It appears that the ASC is outside the scope of the powers of the BFAR under the Fisheries Code especially when the ASC is meant to cover areas released for fishpond development such as those abandoned, undeveloped and underutilized fishponds. The meaning given by FAO 197-1 to “areas released for fishpond development” particularly as it is interpreted to refer to abandoned, undeveloped and underutilized fishponds does not have legal basis in the Fisheries Code as nowhere is sec. 49 of RA 8550 ever mentioned. That is the sole provision which gives BFAR authority over abandoned, undeveloped and underutilized fishponds, but that authority is exercised in partnership with the DENR and other players, such as the LGUs and the FARMCs.

2. Examine how DENR’s legal mandate over mangrove ecosystems may be strengthened in accord with relevant international instruments

The problem within the DENR how they can assert over-all authority on mangroves is that such authority lies with another DENR staff bureau, the Ecosystems Research and Development Bureau or ERDB, under a Marcos-era policy measure, and not the Biodiversity Management Bureau (BMB) itself, the one engaged with the group that organized the Policy Forum. When one comes to think of it, perhaps such Martial Law-era measure is something that may already be superseded by EO 192, a Cory-era issuance which gives over-all authority to the DENR as such. If one examines closely ERDB’s mandate under Executive Order 292, another Cory-era issuance, while it is stated there that the ERDB has explicitly absorbed the powers and fuctions of the former National Mangrove Committee, a reading of the ERDB’s functions under said EO focuses it merely on :

(1) Formulate and recommend an integrated research program relating to Philippine ecosystems and natural resources such as minerals, lands, forests, as holistic and interdisciplinary fields of inquiry;
(3) Provide technical assistance in the implementation and monitoring of the aforementioned research programs;
(4) Generate technologies and provide scientific assistance in the research and development of technologies relevant to the sustainable uses of Philippine ecosystems and natural resources; and
(5) Assist the Secretary in the evaluation of the effectiveness of the implementation of the integrated research programs.

ERDB’s mandate is focused on research and development and the generation of technologies, but these are not regulatory functions. Such regulatory functions are found in PAWB, since renamed BMB last year, as stated in its powers and functions under E0292, as follows:

(1) Formulate and recommend policies, guidelines, rules and regulations for the establishment and management of an Integrated Protected Areas Systems such as national parks, wildlife sanctuaries and refuge, marine parks, and biospheric reserves;
(2) Formulate and recommend policies, guidelines, rules and regulations for the preservation of biological diversity, genetic resources, the endangered Philippine flora and fauna;
(4) Assist the Secretary in the monitoring and assessment of the management of the Integrated Protected Areas System and provide technical assistance to the Regional Offices in the implementation of programs for these areas; and
(5) Perform such other functions as may be provided by law or assigned by the Secretary.

Given that the BMB is also the focal institution for the implementation of Ramsar Convention which includes mangroves within its scope, there appears to be sufficient legal authority from which the BMB may base its regulatory issuances towards dealing with mangrove ecosystems. Perhaps to be clear, it may be necessary for the DENR Secretary to issue a Special Order for this purpose, with the ERDB maintaining its focus on mangroves along the lines of its mandate.

3. Explore further options on how to deal with fishponds established through tax declarations

A major item tackled in the Policy Forum involved the matter of fishponds being controlled through tax declarations and considering that such efforts are voluntary on the part of interested land-owners who may want to take over certain parts of the public domain in coastal areas, some measures tackled in the Forum involved developing model ordinances either increasing the idle land tax or increasing the assessment levels for these types of properties for LGUs to adapt so as to discourage the holding of tax declared fishponds, though for those who may have secured land titles over these fishponds through tax declarations, an appropriate case may be filed in these instances, especially when there is clear evidence that such fishponds belonged to the public domain or are strong candidates for reversion under the Fisheries Code. A further argument may be made that given the strong ecosystem services provided by mangroves, these ecosystems provide the basic right to life of communities, which may be easily recognized by the courts as it is a basic right guaranteed in the Constitution.

4. Explore how the role of mangrove ecosystems in climate change mitigation can be put into effect and included in the country’s INDC

While the Forum considered looking closely at mangroves as possible “carbon sinks” where it may be part of what can be included in the country’s submission to the UN Framework Convention on Climate Change (UNFCCC) as the country’s Intended Nationally Determined Contribution (INDC), a UNFCCC term for what countries may do to contribute to the over-all goal of limiting the rise of average global temperature so that it will go beyond 2 degrees centigrade, there was not enough time available to further clarify how the key agencies would go about it.

Back in 2013, Hutchinson reviewed the ability of mangroves to absorb carbon dioxide and found that above-ground biomass of mangroves, is one aspect of mangrove ecosystems that can be measured, though he focused on Indonesia and Malaysia in SEAsia, perhaps to him it is these countries in this region that had significant mangroves that were already studied, as his study was a meta-study of previously made studies.

In 2008, Suratman (in F. Bravo et.al. eds, Managing Forest Ecosystems: the Challenge of Climate Change, © Springer Science + Business Media B.V. 2008) reported that Southeast Asian mangroves recorded the highest diversity of all the world’s mangroves, where the region contains 6.1 million hectares of mangroves, approximately 35% of the world’s area for mangrove vegetation. In terms of species diversity, Southeast Asia holds 75% of the world’s mangrove species with Indonesia having the most diverse, having the highest number of mangrove species at 45, Malaysia at 36, Thailand at 35. The Philippines only has 30 species and surprisingly, Singapore has more mangrove species at 31.

Suratman also mentioned that mangrove forests may play an important role in the carbon cycle in removing CO2 in the atmosphere and storing it as carbon in plant materials and soils in a process called sequestration. As about half of mass of trees is carbon, large amounts of carbon are potentially stored in mangrove forests, and they may be the largest stores of carbon in coastal zones. To better understand the dynamic of organic matter cycling in mangroves, it is important to know the productivity of mangrove forests mainly in terms of primary production, biomass, litter production, carbon accumulation and burial.

The work then is cut out for interested groups and scientists to pick or designate a relatively healthy swathe of mangrove ecosystems in the country and start the task of calculating how much of the above mentioned parameters (primary production, biomass, litter production, carbon accumulation and burial) may be derived and compare the result with the emerging methodology for estimating the amount of carbon sequestered for these types of ecosystems, and there perhaps may be one indicator on what the mangrove ecosystems of the Philippines may contribute as one sub-sector among all the other sectors that may be presented as providing carbon sequestration functions, to fulfil the task of climate change mitigation in the country’s INDC.

oOo

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