Illegal win-wins

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Monday, May 26, 2014

WIN-WIN solutions. Fine. As a court-annexed mediator, I could agree to that.

But in court-annexed mediation and in concurrence with the parties, we add a rider that the compromise agreements are “not contrary to law… public policies and public order.

In other words, win-win solutions should not violate any law or disrupt the public order.


In the context of the Northern Negros Natural Park, that means in consonance with Republic Act 7586, or the National Integrated Protected Areas System (Nipas) Act.

The implementing rules and regulations of R.A. 7586 require that the Department of Environment and Natural Resources (DENR) holds consultative meetings to discuss, among things, strategies for recognizing ancestral domain and addressing other tenure issues; and the relationships of biodiversity conservation to livelihood in protected areas.

Records on the consultation as well as the names of participants and any written comments presented shall be submitted to the DENR Secretary.

Lawyer and Salvador Benedicto mayor José Max Ortiz should of course know this. “We want to come up with a win-win solution, any order for action in the multiple use zone should come from the Protected Area Management Board (PAMB).”

Spoken like a mediator. Except Ortiz is not a neutral mediator but a biased party to the conflict between the DENR and Gov. Alfredo Marañon Jr. and those who were listed as building those illegal structures.

Ortiz said this in the context of resolving the conflict between those who build structures like him and the DENR who had issued a cease-and-desist order on the encroachers.

However, those implicated in the illegal structures cannot qualify for land tenure inside NNNP’s protected zone, according to Rose Pablico, head of Protected Areas, Wildlife and Coastal Zone Management Services.

Moreover, PAMBs establish multiple-use zones in protected areas to provide social fences to prevent encroachment into the protected area by outsiders. Land tenure may be granted to occupants who qualify with prior rights.

Prior rights are enshrined and ensured in tenurial instruments. In forestlands, including protected areas, this means migrants and indigenous people that are protected by community-based forest resource management agreements or protected area community-based resource management agreements.

There of course wouldn’t be any hoopla if Ortiz and the rest of those accused of building illegal structures are included in these instruments. Obviously they bought use rights that don’t even exist.

The nature of the conflict is civil and interest-based, not on conflicting legal rights. Issues on residences, boundaries among farms, allowable livelihoods, and so forth is negotiable.

So I can understand the riposte of José María Valencia, Task Force Ilahas executive officer, to the statement of Salvador Benedicto Mayor José Max Ortiz that any order from an individual or government organization for the demolition of structures within the multiple use zone will be defied.

“We will see what the Protected Area Management Board decides. I cannot comment on a future and speculative statement,” said Valencia.

He need not speculate, though. The law is clear. The PAMB and the Salvador Benedicto cannot decide on “win-win” solutions that are contrary to law. To do so is to condone and become a party to an illegal act.



Published in the Sun.Star Bacolod newspaper on May 26, 2014.


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