Second of 3 parts

THE complexity of the landscape being confronted by the different stakeholders in the Masungi Georeserve conflict is not just biophysical, or in terms of its biodiversity and the ecological services it renders not only to the Greater Manila Area, but even to neighboring regions. It also applies to the complex legal landscape, one that can ultimately lead us to conclude that the problem is largely the creation of government itself.

The history of legal declarations relevant to Masungi started as early as 1904, when Executive Order (EO) 33 was issued establishing the Mariquina Watershed with an area of 27,980.22 hectares. The area was enlarged by EO 14 signed on Feb. 19, 1915, to now include portions of San Rafael and Wawa in Montalban in addition to the original parcels located in Teresa and Baras, all in the province of Rizal.

On June 26, 1969, the Kaliwa River Forest Reserve, covering an area of 27,608 hectares, was established by virtue of Proclamation 573. On Oct. 29, 1973, President Ferdinand E. Marcos, using his legislative powers, issued Presidential Decree (PD) 324, which excluded 1,729 hectares from the Mariquina Watershed Reservation, thereby rendering it as alienable and disposable (A and D), which meant it could be subjected to exploitation and use under the provisions of the Public Land Act.

However, on April 8, 1977, Marcos issued Proclamation 1636 which effectively converted the 1,729 hectares previously declared as A and D by PD 324 back to a protected area as part of a larger area declared as a national park, wildlife sanctuary and game preserve. While Proclamation 1636 declared the area covered as 46,310 hectares, the actual area when plotted using the technical metes and bounds is much larger at 146,311.14 hectares.

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On June 1, 1992, Republic Act (RA) 7586 establishing the National Integrated Protected Area Systems (Nipas) became law. The law provided for the inclusion of the protected area established by Proclamation 1636.

One year after on May 10, 1993, and pursuant to RA 7586, Angel Alcala, who was the secretary of the Department of Environment and Natural Resources (DENR), signed DENR Administrative Order (DAO) 1993-33 which proposed that the Masungi Rock and its surroundings be declared as a Strict Nature Reserve and Wildlife Sanctuary. As such, the area would be managed strictly for protection purposes, and would not be used for mining and other activities that could have adverse environmental and ecological impacts.

On Sept. 28, 2011, the DENR Regional Office in Calabarzon (Region 4A) entered into a memorandum of agreement (MoA) with the municipality of Tanay in connection with the co-management of the Masungi Rock, which was then named as lot 10. Two months later, on November 24, President Benigno S. Aquino 3rd issued Proclamation 296 which declared the Marikina Watershed Reservation as Protected Areas pursuant to RA 7586, henceforth to be named the Upper Marikina River Basin Protected Landscape (UMRBPL).

A year after in 2012, the municipality of Tanay issued Order 2012-02-01 which created the Masungi Rock Management Council (MRMC). The Blue Star Construction and Development Corp. (BSDC) was designated as the private sector partner in the undertaking. A year after in 2013, Tanay issued Municipal Ordinance 1 which declared Masungi Rock as a local protected area.

In 2017, the DENR, through then Environment Secretary Gina Lopez, signed a MoA with the Masungi Georeserve Foundation Inc. (MGFI), an entity whose organizers were associated with BSDC, granting the latter rights to manage the protection, conservation and sustainable development of 2,700 hectares of land, which included Masungi Rock or Lot 10.

On June 22, 2018, RA 11036, or the E-Nipas Law, expanded the coverage of Nipas, and has tacitly included UMRBPL as a legislated protected area.

Ordinary readers of this column who are not used to reading laws and their acronyms can be overwhelmed and intimidated by this plethora of policy statements from the executive and the legislative branches of government, and even from a local government unit, for good reason. But what can be reasonably asserted despite the relative diversity of policy statements is the glaring fact that the DENR entered into a valid agreement with MGFI in 2017. A MoA was executed in good faith and must be presumed to have legal cover under the presumption of regularity.

Having said this, the DENR has every right to question the implementation of the MoA, as it has done so officially in congressional hearings conducted for the said purpose. DENR has alleged that MGFI now appears to privilege its commercial interests in ecotourism over its commitment to conservation advocacy. It is even alleged that the MoA is legally infirm, and could even be voided since it was bereft of legality, as it may have ran afoul not only of RA 7586 but even with the Constitution, with the grant of perpetual trust being the main bone of contention. MGFI is even now accused of violating the rights of indigenous peoples and of tenured migrants residing within the UMRBPL.

However, the burden to prove not only the legal infirmities of the MoA, but also the alleged violation committed by MGFI, lies with those who assail the legality, and compliance with the terms, of the agreement. A perusal of the 2017 agreement reveals, as stipulated in item 7, that only a final judgment by the court can cause its termination. As a party to the MoA, the DENR, when it agreed to this provision, may have undermined its unilateral power to rescind the agreement without judgment of a court. Even the claim that the contract was void ab initio because it is constitutionally infirm cannot be made unilaterally by the DENR without judicial intervention, considering that final determination of constitutionality and legality is the province of the judiciary, and not the executive branch.

The DENR can opt to unilaterally rescind the contract, but it will not solve but instead create more problems. But certainly, there are other options that it can explore, including submitting to a mediation process.