Slide 1 - Asia Pacific by suchenfz

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									    WHY DOLPHINS MAY SUE
      IN THE PHILIPPINES




MR. BENJAMIN A. CABRIDO JR.
Professor, Environmental Law
University of San Jose-Recoletos
College of Law
Cebu City, Philippines
Dolphins v. Reyes, et al.
SC-G.R. No. 180771
PETITIONERS

• Resident Marine Mammals of Tañon Strait
  Protected Seascape, e.g. Toothed Whales,
  Dolphins, Porpoises & other cetacean
  specie.
• Legal Guardians: Gloria Estenzo Ramos
  and Rose-Liza Eisma Osorio.
• President Arroyo, Unwilling Guardian
RESPONDENTS

• Energy Secretary Reyes
• Environment Secretary Atienza
• Japan Petroleum Exploration Co., Ltd.
BATTLEGROUND:
Tañon Strait
• A narrow strip of sea
  separating the Philippine
  Islands of Negros and
  Cebu
• It is home to 11 out of
  the 24 known cetacean
  species
• Declared as Protected
  Seascape in 1998
• Estimated Oil Reserve: 1B
  barrels; recoverable: 100
  million barrels
Resident Cetaceans in Tañon Strait

Spinner dolphins




                         Spotted dolphins
•   Common bottlenose dolphins
•   Risso’s dolphins
•   Fraser’s dolphins
•   Indo-Pacific bottlenose dolphins
•   Pilot whales
•   Pymy killer whales
•   False killer whales
•   Dwarf sperm whale
•   Melon Headed
THE PROBLEM CREATED BY THE
PHILIPPINE GOVERNMENT
• Phil. Gov’t awarded Service Contract No. 46 to
    JAPEX (Dec. 21, 2004)
•   Coverage area: 2,850 sq.km. (almost the entire
    Tañon Strait)
•   May 2005: M/S Veritas Searcher of JAPEX
    started the 751-km multi-channel sub-bottom
    profiling survey
•   Nov.10, 2007: JAPEX started exploration drilling
    of 3,150m depth
Almost all municipal
Waters In the Philippines
are either subject to
or being offered
For oil hunt
                       Location Maps
    SC 46
Area 2580 km2
W.D. 0~600m
 JAPEX 65%
 Kufpec 35%
            Cebu
 Negros
               Bohol
      Tanon
      Strait




                                NORASIA, TRANS ASIA, ALCORN,
                                     PETRO ENERGY
 FORUM NORTH CEBU
    (4,580 KM2)‫‏‬
AFTER-SEISMIC SURVEY FINDINGS

• Reduced Fish Catch (50-70%)
• Fish Kills
• Lack of public participation from
 stakeholders in the preparation of ECC
                            Natural and human-made source noise comparisons

      Noise source            Maximum source level           Remarks                     Reference
Undersea earthquake          272 dB                  Magnitude 4.0 on Richter    Wenz, 1962
                                                     scale (energy integrated
                                                     over 50Hz bandwidth)‫‏‬
Seafloor volcano eruption    255+ dB                 Massive steam explosions    Deitz and Sheehy, 1954;
                                                                                 Kibblewhite, 1965; Northrop,
                                                                                 1974; Shepard and Robson,
                                                                                 1967; Nishimura, NRL-DC,
                                                                                 pers. comm., 1995
Airgun Array (Seismic)‫‏‬      255 dB                  Compressed air discharged   Johnston and Cain, 1981;
                                                     into piston assembly        Barger and Hamblen, 1980;
                                                                                 Kramer et al, 1968
Lightning strike on water    250 dB                  Random events during        Hill, 1985; Nishimura, NRL-
surface                                              storm at sea                DC, pers com, 1995
Seismic exploration          212-230 dB              Includes vibroseis,         Johnston and Cain, 1981;
devices                                              sparker, gas sleeve,        Holiday et al., 1984
                                                     exploder, water gun and
                                                     boomer seismic profiling
                                                     methods
Container ship               198 dB                  Length 274 m; speed 23      Buck and Chalfant, 1972;
                                                     knots                       Ross, 1976; Brown, 1982b;
                                                                                 Thiele and Odegaard, 1983
Supertanker                  190 dB                  Length 340 m; speed 20      Buck and Chalfant, 1972;
                                                     knots                       Ross, 1976; Brown, 1982b;
                                                                                 Thiele and Odegaard, 1983
Effects of Seismic survey to marine life fish, invertebrates, marine
turtles, marine mammals - whales, whale sharks, coral reefs , and
                             others.

  Seismic blasting can damage the hearing structures, (McCauley et al.
                                2003)‫‏‬
          Cause body tissues to hemorrhage (hastings, 1995)‫‏‬

   And damage reproductive organs in marine organisms (Jensen and
                          Alberdice, 1989)‫‏‬

  Seismic blasting can cause behavioral modifications and reduce or
    eliminate available habitat for breeding / spawning, foraging and
migration (Richardson et al. 1986; Harris et al. 2001; McCauley et al. 2000;
                          McCauley et al. 1998)‫‏‬

Seismic noises can alter fish distribution by tens of kilometers (Slotte et
                      al. 2004; Engas et al. 1996)‫‏‬

   Seismic blasting can elicit physiological stress and neural-immune
responses in Marine organisms (Santulli et al. 1998; Romano et al. 2004)‫‏‬
Water pollution: Oil and Gas drilling
operations generate huge amounts of
waste that is discarded into
water. According to the National
Academy of Sciences, a single well
produces between 1500 and 2000
TONS of waste material.


Debris includes drill cuttings, which is
rock ground into pieces by the bit;
and drilling mud brought up during the
drilling process. This mud contains
toxic metals such as lead, cadmium and
mercury. Other pollutants, such as
benzene, arsenic, zinc and other known
carcinogens and radioactive materials
are‫‏‬routinely‫‏‬released‫‏‬in‫“‏‬produced‫‏‬
water,”‫‏‬which‫‏‬emerges‫‏‬when‫‏‬water‫‏‬is‫‏‬
brought up from a well along with the
oil or gas.
a. Cadmium (Cd) – causes cancer
b. Lead (Pb) – causes mental retardation, other nervous system,
gastrointestinal , blood and      kidney disorders
c. Chromium (Cr) – causes lung cancer; and liver,      kidney and
respiratory damage
d. Arsenic (As) – causes liver, lung and skin     cancers

Mercury is a deadly neurotoxin that causes Minamata Bay Disease

- permanent damage to the central nervous system and kidneys
- congenital disorders, skin, respiratory, heart and eye ailments

(Minamata Disease Municipal Museum. January 2001. Ten Things to Know
     About Minamata Disease. The Minamata Environmental Citation
              Development Project Steering Committee.)
    (Handbook on Child Poisoning, 1st ed. Phil. Pediatric Society, Inc.,
            Committee on Therapeutics & Toxicology. 2000)‫‏‬
Why We Oppose Drilling:

• A single offshore rig
  emits the same
  quantity of air
  pollution as 7000 cars
  driving 50 miles per
  day.
• Routine offshore drilling operations dump
    thousands of pounds of "drilling muds"
    (containing heavy metals like cadmium,
    chromium, arsenic, and lead) into the Gulf of
    Mexico.
•   The routine pollution can cause severe
    disruption to marine environments and health
    and reproductive problems for marine mammals
    and fish species.
• A single exploratory well dumps
  approximately 25,000 tons of toxic metals
  into the ocean.
• A single production platform can have
  between 50-100 wells and can discharge
  90,000 metric tons of drilling fluids,
  wastes, and metal cuttings into the ocean.
• The Gulf of Mexico has a roughly 3000
  square mile "Dead Zone" that is growing.
• Offshore drilling pollution, by smothering
  benthic (shallow water) communities,
  contributes to oxygen depletion and adds
  to the Dead Zone.
• Offshore drilling releases "toxic brines" that are pockets
  of water that are trapped in the geologic pockets where
  gas and oil occur. This toxic brine contains NORMS
  (naturally occurring radioactive materials), cadmium,
  lead, benzene, etc. The petroleum industry admits that
  up to 1.5 million barrels of toxic brine are discharged
  into the Gulf every day.

• In 1982 a 9.6 million gallon spill occurred from a storage
  tank of coastal Panama. This caused massive damage to
  seagrass beds, corals, mangroves, and coastal
  ecosystems much like those occurring Florida. Much of
  the damage from that spill continued for years, and the
  lasting impacts are still seen today.
•Most importantly, it kills dolphins
and whales through the high
decibel of sonar it produces; and
•Destroys their habitat through
disposal of toxic waste.
MAJOR ISSUES

• LOCUS STANDI OF DOLPHINS, ET AL.
• VIOLATION OF PHIL. CONSTITUTION &
  INTERNATIONAL CONVENTIONS
• NON-CORFORMANCE TO EIA LAW
I. LOCUS STANDI (Legal Standing of
         Dolphins & Whales)
LOCUS STANDI

• A right of appearance in a court of justice
  on a given question.
• Mere procedural technicality.
• Court Discretion.
Two Classes of Locus Standi in The
Philippines
• Private Suits
• Public Suits
PRIVATE SUITS

• Section 2, Rule 3, Rules of Court: “Every
  action must be prosecuted or defended
  in the name of the real party in
  interest.”
• Real Party In Interest: “The party who
  stands to be benefited or injured by the
  judgment in the suit or the party
  entitled to the avails of the suit.”
PUBLIC SUITS

• Citizen’s Suit
  - Concerned Citizen’s suit
  - Voter’s Suit
  - Legislator’s Suit
• Taxpayer’s Suit
CITIZEN’S SUIT

• Matter of mere public right;
• People are real parties-in-interest; and
• Right & Duty of every citizen to interfere
 and see that public offence be properly
 pursued and punished and grievance
 remedied.
TAXPAYER’S SUIT

• Right of a citizen and a taxpayer to
  maintain an action in courts;
• To restrain the unlawful use of public
  funds to his injury.
DIRECT INJURY TESTS

• A personal and substantial interest in the
  case; and
• Has sustained, or will sustain direct injury
  as a result
DOCTRINE ON
TRANSCEDENTAL IMPORTANCE

• Applies if Petitioners fail in showing direct injury;
• Allows ordinary citizens, members of Congress,
    and civic organizations to prosecute actions
    involving the constitutionality or validity of laws,
    regulations and rulings;
•   Due to far-reaching implications.
Chavez v. Public Estates Authority

• The enforcement of the constitutional
 right to information and the equitable
 diffusion of natural resources are matters
 of transcendental importance which clothe
 the petitioner with locus standi.
Oposa v. Factoran
• (T)he right to a balanced and healthy ecology
    belongs to a different category of rights
    altogether for it concerns nothing less than self-
    preservation and self-perpetuation, the
    advancement of which predate all government
    and constitution.
•   These basic rights need not even be written in
    the Constitution for they are assumed to exist
    from the inception of humankind.
LEGAL THEORIES

• Stipulations Pour Autrui
• Incorporation of International Laws
• Hard Look Doctrine
STIPULATION POUR AUTRUI

• A stipulation conferring a clear and
  deliberate‫‏‬right‫‏‬or‫‏‬benefit‫‏‬to‫‏‬a‫‏‬third‫‘‏‬party’‫‏‬
  in a contract.
• Beneficiary may demand its fulfillment
  before revoked.
• Acceptance.
Requisites for Application of
Stipulation Pour Autrui
• Intent by the promise to secure some benefit to
    the third party ;
•   Privity between the promise and the party to be
    benefited;
•   Obligation or duty due from the promisee; and
•   Legal or equitable claim to the benefit of the
    promise or an equivalent from him personally.
INTERNATIONAL INSTRUMENTS
CONFERRING BENEFITS TO
DOLPHINS & WHALES
• United Nations Charter for Nature
• Chapter 15, Agenda 21 at the United
  Nations Conference on Environment and
  Development
• 1992 Convention on Biological Diversity
• 1979 Bonn Convention on Conservation
  of Migratory Species of Wild Animals
PRECAUTIONARY PRINCIPLE
UN Charter for Nature
• Respect of nature and non-impairment of its essential
    processes.
•   Not to compromise the genetic viability on the earth.
•   Safeguard the habitats of all life forms, whether
    wild or domesticated in order that their
    population levels would at least be sufficient for
    their survival.
•   Special protection to unique areas, to representative
    samples of all the different types of ecosystems and to
    the habitats of rare or endangered species.
•   Maintain sustainable productivity that would not in any
    way endanger the integrity of those other ecosystems or
    species with which they coexist.
Agenda 21 UNCED
• Government must take action for the
    conservation of biological diversity.
•    In situ conservation of ecosystems and natural
    habitats, as well as primitive cultivars and their
    wild relatives.
•   Maintenance and recovery of viable populations
    of species in their natural surroundings, and
    implement ex situ measures.
1992 Convention on Biological
Diversity
• In situ conservation: Promote the protection of
    ecosystems, natural habitats and the
    maintenance of viable populations of species in
    natural surroundings.
•   Ex situ conservation: Adopt measures for the
    recovery and rehabilitation of threatened species
    and for their reintroduction into their natural
    habitats under appropriate conditions.
1979 BONN CONVENTION ON
CONSERVATION OF MIGRATORY
SPECIES OF WILD ANIMALS
• Dolphins & whales are listed in Annex II as
  having unfavorable conservation status.
• Philippines is bound to acknowledge their
  importance.
• Required to take action to avoid their
  becoming endangered.
• Pay special attention to their conservation
  status and protection of their habitat.
APPLICABILITY OF INTERNATIONAL
LAWS IN THE PHILIPPINES
• Doctrine of Incorporation: Sec. 2, Art. II, 1987 Philippine
  Constitution
• Santos III vs. Northwest Orient Airlines, 210 SCRA 261
  [1992]: “Convention which is a Treaty commitment
  voluntarily assumed by the Philippine government has
  the force and effect of law in this country.”
• Tanada vs. Angara (272 SCRA , 1997): “In the event
  that a treaty obligation conflicts with local legislation,
  such a state is “bound to make in its legislations such
  modifications as may be necessary to ensure the
  fulfillment of the obligations undertaken.”
VIOLATIONS IN THE PHIL.
CONSTITUTION & LAWS
• Jura Regalia (Sec. 2, Art. XII, 1987
  Constitution)
• R.A. 9147 (Wildlife Resources
  Conservation & Protection Act)
• Fisheries Code of 1998 (R.A. 8550)
Regalian Doctrine
• The exploration, development, and utilization of
    natural resources shall be under the full control
    and supervision of the State.
•   State’s direct undertaking; or
•   co-production, joint venture, or production-
    sharing agreements with Filipino citizens, or
    corporations or associations at least sixty per
    centum of whose capital is owned by such
    citizens.
Mineral Exploration in Tañon Strait
is Illegal
SEC. 27, R.A. 9147
• It shall be unlawful for any person to
   undertake the following acts in critical
   habitat(s):
     - mineral exploration and/or extraction.
Fishermen’s Preferential Use Over
Tañon Strait
Sec. 2(d), R.A. 8550:
• Protect the rights of fisher folks.
• By giving them preferential use of the
  municipal waters.
• Consistent with international treaties and
  agreements.
HARD LOOK DOCTRINE

• All agencies "to the fullest extent possible"
  must provide a detailed environmental
  impact statement (EIS).
• Courts should carefully check every EIS
  for completeness of information and
  detail, soundness of analysis, thorough
  discussion of alternatives, and disclosure
  of sources
On Behalf of My
Frolicking Clients:
I Thank you
SAVE Tañon Strait Citizens’
Movement
• Golly E. Ramos, Professor, University of Cebu College of Law
   (geramos2008@yahoo.com)
• Lemuel Aragones, Professor on Marine Biology, University of the
   Philippines (lemdva2001@yahoo.com)
• Vince Cinches, Executive Director, Fisherfolks Development and
   Empowerment Center (cvfidec@gmail.com)
• Cherry Ballescas, Professor University of the Philippines
• Liza Osorio, Professor, University of Cebu College of Law
• Benjamin A. Cabrido Jr., Professor, University of San Jose Recoletos,
   College of Law (benzcab@yahoo.com)
• Antonio A. Oposa @www.lawofnature.org.ph
Visit our website at:
http://www.uclaw.org/savetanonstrait/main/index.html

								
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