The MPA Experience

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BRILL 5 (2020) 99-117

N IJ H O F F brillcom/apoc

Area-Based Marine Protection in the Philippines

The ^MPAExperience

JacquelineJoyce E Espenilla

Senior Legal Associate, University of the Philippines Institute for Maritime Affairs and Law of the Sea (UP-IMLOs) and Senior Lecturer, University of the Philippines College of Law, Taguig City, the Philippines

[email protected]

Abstract

The Philippines has had a long history of using marine protected areas (MPAs) to achieve fishery and biodiversity conservation goals. MPAs are "clearly defined geographical spaces, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values." Within the scope of these definitions, Philippine MPAs have taken the form of "no-take" marine sanctuaries, marine reserves where both extractive and non-extractive activities are allowed but regulated, and marine parks and protected seascapes, where various uses are relegated to defined zones. Interestingly, the country was able to develop a unique legal framework that took into consideration both national and local contexts for marine environmental governance. This article thus aims to shed some light on the Philippine experience, emphasizing the various issues and concerns caused by the unique regulatory and governance set up of the country's MPAs.

Keywords

Philippines - marine environment - marine protected areas -fisheries

i Introduction

The Philippines has had a long history of using area-based management tools to achieve fishery and biodiversity conservation goals. The establishment of marine protected areas (MPAs) is one such tool. MPAs are "clearly defined

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geographical spaces, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values."¹It may also be defined as

"any area of intertidal or sub-tidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been re- served by law or other effective means to protect part or all of the enclosed environment."²Within the scope of these definitions, MPAS may take a variety of forms, including "no-take" marine sanctuaries, marine reserves where both extractive and non-extractive activities are allowed but regulated, and marine parks and protected seascapes, where various uses are relegated to defined zones.³

This article aims to shed some light on the Philippines' experience with all forms of MPAS at both national and local levels. Particular emphasis is given to the applicable legal framework, as well as to the various issues and concerns caused by the unique regulatory and governance set up of the country's MPAS.

2 Overview of the Philippines

The Philippines is an archipelago comprised of 7,641 islands featuring over 37,ooo km of coastline.⁴In fact, more than 50% of its provinces and municipalities are situated on the coast.⁵This unique geographic configuration means that the ocean plays a particularly significant role in the economy, culture, and identity of the country. The Philippines, for example, has the 12th largest fishing industry in the world, with 40-60% of the total catch coming from subsis- tence fishers operating in coastal waters.⁶

According to reports, Philippine waters are "ranked third in the world in terms of marine biodiversity, hosting more than 460 reef-building coral species,

I IUCN definition under 2008 Guidelines. See Nigel Dudley (Ed.), GuidelinesforApplying Pro- tected Area Management Categories (Gland, Switzerland, IUC N, 2008).

2 See MARINE PROTECTED AREAS: WHY HAVE THEM?, available at https://www.iucn.org/

content/marine-protected-areas-%E2%80%93-why-have-them.

3 Reniel Cabral, et. al, The Philippine Marine Protected Area Database, 7(2) Philippine Science Letters (2014), p. 300.

4 G. Lasco, From 7,707 to 7,647, INQUIRER.NET, 30 March 2017, available at https://opinion.inquirer.net/102845/from-7107-to-7641.

5 See MANAGING PHILIPPINE COASTS AND SEAS: UNDERSTANDING THE CHALLENGE, available at http://www.oneocean.org/flash/thephilippineseas.html.

6 In theCoralTriangle:BuildingCapacityforMarineProtectioninLocalGovernmentUnitsinthePhil- ippines, Global Environment Facility (4June 2017), available athttps://www.thegef.org/news/

coral-triangle-building-capacity-marine-protection-local-government-units-phillipines.

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the global epicenter of shorefish diversity, and a wide range of habitats that include 123 marine key biodiversity areas (KBAs), which are recognized as be- ing of international importance for biodiversity conservation."⁷The Philip- pines also sits at the apex of the coral triangle region.⁸This means that its coastal and marine waters "contain a wider range of species of corals, reef fish- es, seagrasses, and mangroves than anywhere else in the world."⁹

Unfortunately, the Philippines is also considered one of 35 biodiversity

"hotspots". This is because vast areas of the Philippines continue to face rapid degradation as a result of various human activities.¹⁰ Coastal and marine ecosystems, in particular, continuously face tremendous strain due to illegal, unregulated and unreported (iuu) fishing, fishing overcapacity, destructive fishing practices, land-sourced pollution, increased sedimentation from defor- estation activities and poorly regulated mining, and unsustainable develop- ment and overpopulation in coastal areas. In addition, climate change also exacerbates the overall impact of anthropogenic activities. All of these factors taken together means that the Philippines is "one of the most environmentally vulnerable countries in Southeast Asia."¹²

3 The Philippines MPA Experience

MPAs are the most extensively implemented fisheries management tool in the country. The Philippines' very first "MPA" was in the form of a municipal ma- rine park/sanctuary which was established on Sumilon Island in the Province of Cebu in 1974. Because all fishing in the area was prohibited for a period of io years, the coral reef and its related fisheries were able to recover. Marine scien- tists studying the area observed the following: "First, the coral reef substrate condition improved remarkably because all destructive fishing practices were halted. Living coral cover more than doubled to about 50%; Second, the fish abundance on the reef, as measured in terms of individuals per 50om², more than doubled with the most significant increase among those fish targeted by fishers; Finally, the yearly fish catch to fishers fishing on the Sumilon Island

7 Ibid

8 See STATE OF THE CORAL TRIANGLE: PHILIPPINES, available at https://www.adb.org/

publications/state-coral-triangle-philippines (last visited r December 2018).

9 Ibid

10 See STATUS OF PHILIPPINE BIODIVERSITY available at http://bmb.gov.ph/388-protec tion-and-conservation-of-wildlife/facts-and-figures/786-status-of-the-philippine-biodi versity (last visited 2 December 2018).

11 Cabral, supra note 3, at 300.

12 Supra note 8, at xiv.

ASIA-PACIFIC JOURNAL OF OCEAN LAW AND POLICY 5 (2020) 99-117

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Reef, but not in the sanctuary, increased from about 14t/km²."^{1 3}The Apo Island Marine Reserve was established soon after in 1985. It was the first successful community-based MPA because the entire Apo Island fishing community ac- tively participated in its development and enforcement.^{1 4} Since then, hundreds of other locally-managed as well as national-level MPAs were established throughout the country. Moreover, what began in the 1970s as simple measures to preserve community fishing grounds have since evolved into a variety of protections that vary in objectives, modes of establishment, and management arrangements. Despite or perhaps because of the prevalence of MPAs, comprehensive and precise data about their condition, effectiveness and enforcement status is difficult to come by. While information concerning national-level

MPAs are centralized and kept by the Department of Environment and Natural Resources (DENR), no such counterpart agency maintains similar records for locally-managed MPAs. In general, MPA data is not well-documented and ar- chived. There is also a high likelihood that they are only stored as easily- misplaced print copies that have very limited distribution. This means that critical MPA data may not be readily available to the local government units (LGUs) that need them in order to craft policies for ensuring MPA effectiveness.

Of course, some attempts have been made to put together a comprehensive and easily accessible database of information. In fact, scientists in academia came up with the country's first comprehensive online MPA database¹⁵in 2014.

This database contains information from over

1,8oo

national and local MPAs,

including their size, location, and management effectiveness. Two interesting observations can be made from this treasure-trove of information:

First, it can be seen that of the over i,8oo MPAs on record, about i,6oo are locally-managed.¹⁶Of these, locally-managed MPAs, approximately

go%

of them are quite small: less than i hectare in size. This is due to the fact that MPAs were traditionally established by the local fishing community for their own benefit. It thus stood to reason that the size of the MPA only corresponded

13 A. White, P. Alino, and A. Meneses, Creating and Managing Marine Protected Areas in the Philippines, Fisheries Improvedfor Sustainable Harvest Project, (Coastal Conservation and Education Foundation, Inc. and the University of the Philippines Marine Science Insti- tute, Cebu City, 2006) 3.

14 Ibid., at p. 4.

15 See MPA DATABASE, available at http://www.mpa.msi.up.edu.ph.

16 A. Maypa, A. White, et al., Marine Protected Area Management Effectiveness: Progress and Lessons in the Philippines, 40(5) Journal of Coastal Management (2012), available at https://www.tandfonline.com/doi/citedby/o.o80/08920753.2o12.709465?scroll=top&ne edAccess=true.

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to the reach of their activities. Newer national-level MPAs, on the other hand, were designed to be significantly larger in order to meet more ambitious conservation objectives. Two well-known examples of this are the Tafion Strait MPA^{1 7}(518,221 hectares) which separates the provinces of Cebu and Negros in the Visayas region, and the Cagayancillo MPA¹⁸(1,013,340 hectares) in the Prov- ince of Palawan.

Second, it appears that only a few MPAs are located in the Philippines' territorial sea, while an even smaller number are found in the Exclusive Econom- ic Zone (EEZ). The vast majority of Philippine MPAs are located in archipelagic waters [See Figure 1], which, under the UNC LOS, pertain to "waters enclosed by the archipelagic baselines drawn in accordance with Article 47 ... regardless of their depth or distance from the coast". It should be noted, however, that most of these archipelagic MPAs are further considered to be situated within "municipal waters". The Philippine Local Government Code¹⁹defines such waters as "marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and third line parallel with the general coastline and 15 kilometers from it."^{2 0}This situation is important from a management perspective: An MPA located within an LGU's municipal waters is subject to that LGU's control insofar as the identification of the covered area, as well as the creation and enforcement of applicable regulations. Any user fees generated by such MPA will likewise pertain to the LGU. On the other hand, an MPA that straddles the municipal waters of two or more LGUS will be jointly con- trolled by all of them. MPAs located in archipelagic waters but outside any

LGU's municipal waters are primarily subject to the control of relevant national agencies.

17 Originally declared as a protected seascape under Presidential Proclamation No. 1234, series of 1998, Declaring the Tanon Strait situated in the provinces of Cebu, Negros Occiden- tal and Negros Oriental as a Protected Area Pursuant to R.A. 7586 (NIPAS Act of 1992) and shall be known as Tanon Strait Protected Seascape.

18 Originally declared as a protected area via an ordinance issued pursuant to R.A. 76n, An Act Adopting the Strategic Environmental Plan for Palawan, Creating the Administrative Machinery for its Implementation, Converting the Palawan Integrated Area Development Project Office to its Support Staff, Providing Funds therefor, and for other purposes.

19 Republic Act No. ₇160 (iggi), An Act for Providing a Local Government Code of 1991.

20 Ibid., Sec.131(r).

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FIGURE 1 MPA locations in Philippine archipelagic waters

4 Regulatory Environment for M PAS in the Philippines

The 1987 Constitution of the Philippines as apex law, contains several provisions that lay the foundation for the establishment and management of MPAs insofar as they relate to the protection of marine resources. Article I - which

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describes the national territory - is the basis for identifying the waters where MPAs can be established and made subject to the jurisdiction of Philippine authorities. It states that:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestri- al, fluvial and aerial domains, including its territorial seas, the seabed, the subsoil, the insular shelves and other submarine areas. The waters around, between and connecting the islands of the archipelago, regard- less of their breadth and dimensions, form part of the internal waters of the Philippines.^{2 1}

Consistent with the goals and purposes of MPAs, the Constitution declares as state policies the protection and promotion of the right to health,^{2 2}and the advancement of the right to a balanced and healthful ecology in accord with the rhythm and harmony of nature.²³Finally, the Constitution also expressly recognizes the right of the people and their organizations to effective and rea- sonable participation at all levels of social, political, and economic decision- making.²⁴This last provision is particularly significant because it contributes to the effectiveness of MPAs insofar as they are required to take into account the views and perspectives of affected communities and other stakeholders.

Apart from these Constitutional provisions, the regulatory environment for MPAs in the Philippines is comprised of three broad categories of legislation:

laws concerning parks and protected areas, laws concerning fisheries, and laws concerning governance. Within these broad categories, relevant agencies from the executive branch of government are often tasked by these laws to create implementing rules and regulations, or to issue administrative orders that would facilitate the proper application of the letter and spirit of the laws by

"filling in" any legal gaps.

4.1 Category : Laws Concerning Parks and Protected Areas

A 1932 law providing for the establishment of national parks²⁵laid the founda- tion for the growth and popularity of MPAs in the Philippines. This landmark

21 Art. I, 1987 Philippine Constitution.

22 Art. II, Sec. 15, 1987 Philippine Constitution.

23 Art. ii, Sec. 16, 1987 Philippine Constitution.

24 Art. x111, Sec. 16, 1987 Philippine Constitution.

25 Republic Act No. 3915 (1932), An Act Providing for the Establishment of National Parks, Declaring Such Parks as Game Refuges and for Other Purposes.

ASIA-PACIFIC JOURNAL OF OCEAN LAW AND POLICY 5 (2020) 99-117

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piece of legislation became the legal basis for the identification of portions of the public domain - both terrestrial and marine - which, because of their pan- oramic, historical, scientific or aesthetic value, are prohibited from being set- tled, occupied, or disposed.²⁶According to one study, the main objective of this law was simply to "remove settlers and other unauthorized occupants from the parks, and to enhance recreation and tourism."^{2 7}Notwithstanding this rather limited objective, the law still had important implications for cov- ered marine ecosystems and the protection and conservation of their biodiver- sity. This is because for the first time ever, Philippine marine national parks are to be treated as absolute sanctuaries where the taking or killing of any fish or shellfish is considered unlawful.²⁸

In 1992, the National Integrated Protected Area Systems ^(NIPAS) Act²⁹was passed. Unlike the earlier law, the NIPAs Act's main goal is biodiversity conser- vation. It provides for "the classification and administration of all designated protected areas to maintain essential ecological processes and life-support sys- tems, to preserve genetic diversity, to ensure the sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible."^{3 0}It did so by establishing a comprehensive system of integrated

"protected areas".3¹Protected areas include "protected seascapes" (areas of na- tional significance which are characterized by harmonious interactions of man and water while providing opportunities for public enjoyment through recreation and tourism within the normal lifestyle and economic activity of these areas^{3 2}) and "strict nature reserves" (areas possessing outstanding eco- systems, features and species of flora and fauna of national scientific impor- tance that should be maintained to protect and preserve nature in its undis- turbed state and to preserve ecologically representative samples of the natural environment³³).

Although the goal of the NIPAs Act was certainly laudable, many aspects of the law were heavily criticized. These included, among others, the unwieldy

26 Ibid, Sec. i.

27 A. La Vina, J. Kho, M. Caleda, Legal Frameworkfor ProtectedAreas: Philippines, 81 IUCN-

EPLP 6.

28 Supra note 27, Sec. 2.

29 Rep. Act No. 7586 (1992), An Act for Providing the Establishment and Management of National Integrated Protected Area System, Defining its Scope and Coverage, and for Oth- er Purposes.

30 Ibid, Sec. 4(1).

31 Sec. ₄(b) of the NIPAS defines a "protected area" as an "identified portion of land and water set aside by reasons of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation".

32 Supra note 29, Sec. ₄(i).

33 Ibid, Sec. 4(k).

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and bureaucratic process for the designation of protected areas. Upon the en- actment of the NIPAs Act, all areas (both terrestrial and marine) which were previously proclaimed, designated or set aside pursuant to a law, presidential decree, presidential proclamation, or executive order as a protected area were automatically designated as the initial components of the NIPAS.34

In contrast, subsequent designations of protected areas involved a much more complex process [See Figure 2]. In all such designations, the unique biodiversity of the area is the main consideration. Furthermore, these areas must be representa- tive of a particular bio-geographic zone and/or have one or more of the follow- ing characteristics: (a) naturalness of the area to sustain ecological processes and functions and to help in climate change adaptation and mitigation; (b) abundance and diversity of species of flora and fauna; (c) presence of threat- ened and/or endemic species; and/or (d) presence of unique or outstanding geological features that support biodiversity.³⁵This strict criteria, coupled with the process described above, often led to the slow pace of protected area des- ignation under the NIPAS Act.

FIGURE 2 Process for designating protected areas under the NIPAS Act

34 Ibid., Sec. 5.

35 Revised Implementing Rules and Regulations of R.A. No. 7586 or the National Integrated Protected Area Systems (NIPAS) Act, DAO 2008-26, Rule 6.5.

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Beyond the problematic protected area designation process, other criti- cisms of the NIPAs Act concerned the lack of representative stakeholder par- ticipation, its ill-conceived penalty scale, and insufficient funding for protect- ed area initiatives.

In June 2018, President Rodrigo Duterte signed into law the Expanded Na- tional Integrated Protected Area Systems Act (E-NI PAS ).36 This landmark piece of legislation addressed many of the outstanding issues of the NIPAS Act. First, it formally brought twenty-three existing protected seascapes and one natural park into the NIPAs as initial components, and placed them under the control and supervision of the DENR through its Biodiversity Management Bureau (BMB) [See Table I]. In doing so, the new law effectively bypassed the complex and time-consuming protected area designation process under the NIPAS Act for these areas in view of the fact that they were already being protected under separate national or local-level legislation. Unfortunately, the E-NIPAS still re- tained the same complex process under the NIPAS Act for future protected area designations. What it did, however, was set a legislative precedent for by- passing said process, provided that the protected area being considered for in- clusion in the NIPAS was already in existence outside of the System, and that bringing them in would facilitate their administration and management.

Second, the E-NIPAS ensured the inclusion and better representation of key stakeholders (e.g., non-governmental organizations, local residents, etc.) in the management of protected areas. This was a significant shift from the original NIPAS Act where there was very little involvement from the community itself, which in turn contributed to the diminution of their concern for the protec- tion of the area. Third, the E-NIPAS contains modifications to the Integrated Protected Areas Fund (IPAF) established under the NIPAS Act.^{3 7}The IPAF is a centralized trust fund that exists to finance the projects of the NIPAS.^{3 8}Previ- ously, all income generated from any of the protected areas (i.e., from user fees, rentals and leased from multiple use areas, contributions from industries and facilities directly benefiting from protected areas, etc.) or the management of wild flora and fauna accrue to the IPAF and may be allocated by the DENR for the maintenance of any protected area.³⁹The problem with this is that it often results in a funding imbalance where high-income generating protected areas

36 Republic Act No. 11038 (2018), An Act Declaring Protected Areas and Providing for their Management, Amending for this Purpose Republic Act No, 7586, Otherwise Known as the National Integrated Protected Area Systems (NIPAS) Act of 1992, and for Other Purposes.

37 Supra note 29, Sec. 16.

38 Ibid 39 Ibid

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TABLE 1 Marine protected areas under the E-NIPAS

Protected area Province

1 1 Agoo Damortis Protected Landscape and Seascape 2 2 Palaui Island Protected

Landscape and Seascape 3 Pelablanca Protected

Landscape and Seascape 3 4 Masinloc and Oyon Bay

Protected Landscape and Seascape

4B 5 Apo Reef Natural Park 5 6 Ticao Burias Pass Protected

Seascape

7 7 Alburquerque-Loay-Loboc Protected Landscape and Seascape

8 Panglao Island Protected Seascape

9 Talibon Group of Islands Protected Landscape and Seascape

10 Camotes Island Protected Landscape and Seascape 11 Talon Strait Protected

Seascape

12 Apo Island Protected Land- scape and Seascape

8 13 Cuatro Islas Protected Landscape and Seascape 14 Guian Marine Resource

Protected Landscape and Seascape

15 Biri Larosa Protected Land- scape and Seascape

La Union Cagayan Cagayan Zambales

Occidental Mindoro Albay, Masbate and Sorsogon Bohol

Bohol

Cebu Cebu, Negros Occidental and Oriental Negros Oriental

Leyte

Eastern Samar

10,774.68 ha 8,048.57 ha

118,653.67 ha

7,558.oo ha

15,799.23 ha

414,244.00 ha

1,165.51 ha

2,455.08 ha 6,446.31 ha

1,436.98 ha 534,589.05 ha

691.4o ha 11,407.46 ha

66,725.26 ha

Northern Samar 32,284.14 ha

Region Area

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TABLE 1 Marine protected areas under the E-NIPAS (cont.)

Region Protected area Province Area

9 16 Aliguay Island Protected Landscape and Seascape 17 Great and Little Sta. Cruz

Islands Protected Landscape and Seascape

18 Murcielagos Protected Landscape and Seascape 19 Selinog Island Protected

Landscape and Seascape 20 Dumanquillas Bay Protected

Landscape and Seascape 10 21 Baliangao Protected Land-

scape and Seascape 22 Initao-Libertad Protected

Landscape and Seascape 11 23 Mabini Protected Landscape

and Seascape

24 Pujada Bay Protected Land- scape and Seascape

13 25 Siargao Island Protected Landscape and Seascape

Isabela City Zamboanga City

Zamboanga del Norte

Zamboanga del Sur

Misamis Occidental Misamis

Oriental Compostela Valley

Davao Oriental

1,188.36 ha 1,827.16 ha

100.40 ha 959.41 ha

26,112.21 ha 315.50 ha 921.02 ha

7,292.62 ha 20,873.43 ha Surigao del Norte 283,974.77 ha

often do not get to enjoy its own income for maintenance and development purposes. This setup meant that "non-performing" or poorly managed protected areas had no incentive to improve since they were guaranteed a yearly allocation from the IPAF in any case. The E-NIPAs rectified this situation by ensuring that the protected area that generated the funds get to retain 75% of the income for their own management purposes, while only the remaining 25% would be disbursed to other protected areas via the centralized trust fund.^{4 0}Fourth and finally, the E-NIPAs revisited the list of prohibited acts under the NIPAs Act and, in addition to legislating significantly stiffer penalties as consequence of their violation, included two new acts: (1) using as well as mere possession of fishing and/or harvesting gear in MPAs; and (2) dumping in

40 Supra note 36, Sec. 15.

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MPAs. This particular modification signaled that the Philippine government became much more committed to the protection of MPAs.

4.2 Category 2: Laws Concerning Fisheries

The Fisheries Code^{4 1}was enacted in 1998. One of the key objectives of this law was the conservation, protection, and sustainable management of the coun- try's fishery and aquatic resources.^{4 2}Among other protection measures, it pro- vided for the establishment of fishery refuge/sanctuaries (i.e., designated areas where fishing or other forms of activities which may damage the ecosystem of the area is prohibited and human access is restricted)^{4 3}as well as fishery re- serves (i.e., designated areas where activities are regulated and set aside for educational and research purposes).^{4 4}Under the law, the LGU has the exclu- sive authority to designate MPAs, fishery reserve/sanctuaries. The Fisheries Code further requires that LGUS must, in consultation with the DENR and based on the best available scientific data, automatically designate at least 15%

of their total municipal coastal areas as fish sanctuaries. No specific identifica- tion or designation process is specified by either law.

The Fisheries Code is also significant because it criminalized several acts which threatened the biodiversity and ecosystem of Philippine marine areas.

Such prohibited acts include: the act of fishing in fishery refuge/sanctuaries and fishery reserves, fishing using environmentally destructive methods (e.g., explosives, poisonous or noxious substances, electricity, etc.), destruction of coral reefs, and the fishing or taking of rare, threatened or endangered spe- cies.^{4 5}Each of these acts carry the penalty of a fine, imprisonment or both.

Despite this, the Fisheries Code was widely perceived to be "lacking in teeth"

insofar as it proved ineffective against illegal, unreported and regulated (iuu) fishing.

Key amendments to the law were passed in 2014 via Republic Act No.

10654.46 First, it codified the term "marine protected areas"^{4 7}and accorded

41 Republic Act No. 8550 (1998), An Act Providing for the Development, Management and Conservation of the Fisheries and Aquatic Resources, Integrating all Laws Pertinent Thereto, and for Other Purposes.

42 Ibid., Sec. 2.

43 Ibid, Sec. 4(36).

44 Ibid, Sec. 4(37).

45 Ibid, Secs. 88-97.

46 Republic Act No. 10654 (2014), An Act to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Amending Republic Act No. 8550, Otherwise Known as the Phil- ippine Fisheries Code of 1998, and for Other Purposes.

47 Republic Act No. 10654 defines "marine protected areas" as "defined areas of the sea estab- lished and set aside by law, administrative regulation, or any other effective means in

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them the same level of protection as the fishery refuge/sanctuaries and fishery reserves previously identified in the Fisheries Code. Second it changed the na- ture and the degree of the penalty for fishing in M PAs, fishery refuge/sanctuaries and fishery reserves. Under the Fisheries Code, the act was treated as a crime where a penalty could only be meted out after conviction. The problem was that the criminal justice process was slow and often resulted in the acquittal of the alleged perpetrators. This was due to a variety of factors - lack of prosecu- tors, failure of securing evidence, and the absence of witnesses, among others.

Under the new law, the prohibited act is treated first as an administrative offense where, after just a summary finding of liability, the offender will im- mediately be punished with confiscation of catch and gear, and be charged an administrative fine of twice the value of the catch or the amounts indicated in a fee scale indicated in the law, whichever is higher. Interestingly, criminal pro- ceedings run in parallel to these administrative proceedings. Upon conviction, the offender will be punished by imprisonment of 2 to 6 years and a fine of twice the amount of the administrative fine, confiscation of catch and gear, and the cancellation of his/her fishing license or permit. These changes meant that there was a significantly higher chance of holding perpetrators liable for their actions.

4.3 Category 3: Laws Concerning Governance

The Local Government Code (LGC)^{4 8}was passed in 1991 in order to formally devolve some of the powers of the central government to the various local gov- ernment units (LGUs) around the country. The passage of the LGC signaled a shift in the governance of MPAs - instead of the central government wielding sole authority, LGUs were now given far more control marine areas within their jurisdiction. The LGC introduced the concept of "municipal waters" which the

law described as: "marine waters included between two lines drawn perpen- dicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and 15 kilometers^{4 9}from it. Where two municipalities are so situated on the opposite shores that there is less than 15 kilometers of marine waters between them, the third line shall be equally distant from opposite shores of their respective municipalities". Under the LGC, the relevant LGU

order to conserve and protect a part of or the entire enclosed environment through the establishment of management guidelines. It is considered a generic term that includes all declared areas governed by specific rules or guidelines in order to protect and manage activities within the enclosed area."

48 Supra note 19.

49 Approximately 8 nautical miles.

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would have exclusive authority to grant fishery privileges in such municipal waters as well as establish fishery refuges and sanctuaries in the same.^{5 0}The

LGU may also make recommendations to the national government regarding the declaration of fisheries reserves for the government's special or limited use for educational, research and management purposes.^{5 1}

5 Local-Level vs National-Level MPA Management: Issues and Concerns

One of the observations that can be made from the foregoing overview of the regulatory environment is that protected area management in the marine areas of the Philippines occurs on two levels: the local level and the national level. Since the vast majority of MPAs were: (a) small and/or ad hoc in nature, and (b) originally established by LGUs alone or in partnership with local coastal communities for their own specific needs and purposes, it was more practi- cal to place the authority over such areas with the LGU/s in whose jurisdiction/s they were located. It did not make sense to burden the DENR - as the national agency tasked with overseeing the proper implementation of hundreds of terrestrial and marine areas under the NIPAS - with the administration of rela- tively minor MPAs, which nonetheless would still require a certain amount of personnel and resources.

Neither the Fisheries Code nor the LGC - both of which deal with local-level

MPA management - provide any details about the specific powers and authorities of the LGU. They also do not specific which office or individual within the LGU would be responsible for the day-to-day administration. Such information is usually left to the discretion of each LGU, which they could then formalize in a local ordinance. This means that LGUs are given a lot of flexibility to deter- mine what administrative set up would work best for them. The City of San Carlos in the Province of Negros Occidental, for example, established MPAs

over two reefs (St. John and Camotes Reefs) located within its jurisdiction. For purposes of managing these MPAs, it created an MPA Management Council comprised of at least five individuals designated by the City Mayor.52 The Council's sole task was the formulation of rules and regulations for the management of the M PA.^{5 3}On the other hand, the Municipality of Puerto Galera in

50 Supra note 41, Sec. 81.

51 Ibid, Sec. 8o.

52 Ordinance No. 29, Series of 2005, An Ordinance Establishing the Marine Protected Areas in the Coastal Waters of San Carlos City, Negros Occidental.

53 Ibid

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the Province of Oriental Mindoro went another route and decided to delegate the management of its MPA to the local Fisheries and Aquatic Resources Man- agement Council (FARM C),⁵⁴which, under the Fisheries Code refers to a regis- tered group of fisherfolk organizations/cooperatives and non-governmental organizations in the locality.⁵⁵Interestingly, the ordinance creating the MPA did not specify the scope of the duties and responsibilities of the FARMC in relation to the MPA. The foregoing examples demonstrate that, at least for local-level MPAs, there is no legally prescribed manner for protected area administration and management.

In contrast, the administration and management of national-level M PAs are far more standardized. Under the NIPAS Act, all protected areas are placed under the overall control and administration of the DENR. Thus, the Secretary - as the head of the DENR - is specifically empowered to perform any and all of the following acts:

a. To conduct studies of the characteristics, features, and conditions of the protected areas, to classify and define them into categories and prescribe permissible or prohibited human activities in each category in the

NIPAS;

b. To cause the preparation of and exercise the power to review all plans and proposals for the management of the protected areas;

c. To promulgate rules and regulations necessary to carry out the provisions of the NIPAS Act;

d. To fix and prescribe reasonable NIPAS fees to be collected from government agencies or any person, firm or corporation deriving benefits from the protected areas;

e. To extract administrative fees and fines for violations of guidelines, rules and regulations as would endanger the viability of protected areas f. To enter into contracts and/or agreements with private entities or public

agencies as may be necessary to carry out the purposes of the NIPAS Act g. To accept in the name of the Philippine Government and in behalf of the

NIPAS, funds, gifts or bequests of money for immediate disbursements or other property in interest of the NIPAS, its activities, or its services;

h. To submit an annual report to the President of the Philippines and to Congress on the status of protected areas in the country; and,

54 Municipal Ordinance 5-10, Series of 2006, An Ordinance Establishing the Puerto Galera Marine Protected Area and Development of Appropriate Management Plan Thereof.

55 Supra note 41, Sec. 69.

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i. To perform such other functions as may be directed by the President of the Philippines, and to do such acts as may be necessary or incidental to the accomplishment of the purpose and objectives of the System.^{5 6} The direct management of each protected area under the NIPAS Act is de- volved to a Protected Area Management Board (PAM B), which is comprised of the Regional Executive Director (RED) under whose jurisdiction the protected area is located, the Provincial Development Officer, a representative from the municipal government, a representative from each barangay^{5 7}covered by the protected area, a representative from other departments or national govern- ment agencies involved in protected area management, and at least three rep- resentatives from non-government organizations/local community organiza- tions. If applicable, arepresentative from the autonomous regional government, and a representative from affected tribal communities may also be included.

Some of the management functions of the PAMB include:

a. Approving policies, guidelines, plans and programs, proposals, agree- ments and other related documents for the management of the protect- ed area;

b. Facilitating the delineation and demarcation of the boundaries of the protected area and buffer zone;

c. Ensuring the implementation of programs as prescribed in the protected area management plan;

d. Monitoring and evaluating the progress in the implementation of the management plan;

e. Monitoring and assessing protected area personnel and compliance of partners to the terms and conditions of any undertaking, contract or agreement; and

f. Recommending fees and other charges to the Secretary (of the DENR) for the use of the protected area.^{5 8}

While the current set-up of MPA regulation in the Philippines has generally worked, a number of potential conflicts remain, especially in cases of jurisdic- tional overlap. There are instances where an MPA included in the NIPAS is Situ- ated within the municipal waters of an LGU, such as when a locally-managed MPA, due to its size and ecological significance, is formally brought into the

NIPAS via national legislation. Under the Fisheries Code and the LGC, the con- cerned LGU has primary jurisdiction over the MPA. However, under the NIPAS

Act, all covered protected areas are subject to DENR's overarching authority.

56 Supra note 29, Sec. 10.

57 A barangay is the smallest local government unit in the Philippines.

58 Supra note 35, Rule 12.

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This overlap poses a dilemma for both rule-making and day-to-day manage- ment and so far, no rules or guidelines have been implemented to clarify this problem.

There is no denying that the country's MPA system is fragmented. Each MPA is practically a self-contained universe with little or no relationship to other

MPAs, national or local. The consequence of this isolation is serious: up to 8o%

of MPAs are not effective in terms of maintaining reef health and restoring fish populations. Experts believe that this can be addressed by "scaling up" MPAs

and forming "MPA networks" based on an understanding of the inherent con- nectivity of ocean spaces. An "MPA network" is defined as "a collection of indi- vidual marine protected areas (MPAs) or reserves operating co-operatively and synergistically, at various spatial scales and with a range of protection levels that are designed to meet objectives that a single reserve cannot achieve."⁵⁹For MPA networks to work, both local and national MPA management authorities have to forge alliances that would result in shared resources and accountabili- ty. One potentially successful example is the MPA Network covering the Verde Island Passage (viP) - a coastal and marine area of about 2 million hectares that is home to over 1,736 fish species, 338 coral species, and thousands of other marine species. Established in 2017 via a Memorandum of Agreement between the provincial governments of the provinces of Batangas, Romblon, Oriental Mindoro, Occidental Mindoro, Marinduque, as well as representa- tives from the DENR, the Bureau of Fisheries and Aquatic Resources (BFAR), the VIP MPA Network aims to strengthen the protection and management of a marine corridor that is considered as the "global epicenter or marine shorefish biodiversity".^{6 0}

A final issue relates to the effectivity of MPA management. At present, only 10-15% of MPAs are properly managed.^{6 1}There are numerous reasons for this: weak governance, weak enforcement and prosecution, lack of funds and logistical support, the divergent interests of stakeholders, a poor incentive system, and an inadequate and inconsistent protocol for monitoring and assessment, among others. To counter this, MPA management authorities have tried a variety of measures. The DENR, as the main environmental authority,

59 See ESTABLISHING MARINE PROTECTED AREA NETWORKS-MAKING IT HAPPEN, available at http://www.wwf.eu/?146682/Establishing-Marine-Protected-Area-Networks -Making-It-Happen.

6o K. Agustina, Five Provinces and National Agencies Join Forces to Protect and Conserve the Verde Island Passage, 6 April 2017, available at http://www.coraltriangleinitiative.org/

news/five-provinces-and-national-agencies-join-forces-protect-and-conserve-verde -island-passage.

61 Supra note 16.

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continuously tries to promote initiatives that will help improve current man- agement practices. It hosts regular opportunities that are geared towards en- hancing the capacity of MPA managers (e.g. skills training, opportunities for participation, strategic partnerships, etc.). One of the most effective measures it has supported is the "Para El Mar:^{6 2}Awards and Recognition"^{6 3}- a biannual contest that highlights best practices in MPA management in the Philippines and recognizes outstanding local efforts in conserving and sustainably manag- ing the country's coastal and marine resources. In addition to recognition, LGUs, local fisher communities, and MPA management boards are motivated by the fact that winners receive financial incentives and additional support for the development and maintenance of their MPAs. Beyond these, the DENR also advocates for enabling environments by: (a) formulating sustainable financing mechanisms, and (b) coordinating and pooling resources among LGUS.

6 Conclusion

The Philippines has had a long history of effectively utilizing MPAs for the fur- therance of its conservation goals. This is evident from the steady increase in the number of national and locally-managed MPAs all over the country, and the corresponding improvement in marine ecosystems. A well-established regulatory environment, coupled with strong political and public will, signifi- cantly increases the possibility of long-term success. However, many MPA management challenges remain: Issues concerning jurisdictional overlap, frag- mentation, and isolation continue to hinder the effectiveness of MPAs. None- theless, the system is a work in progress and novel initiatives like the creation of MPA networks are currently being explored. After all, the potential benefits offered by effective area-based management tools certainly warrant serious consideration.

62 Meaning "for the sea".

63 See PARA EL MAR: AWARDS AND RECOGNITION, available at https://mpasupportnet- work.org/.