EXEMPTION FOR BEING A PROTECTED AREA
I. INTRODUCTION
This template shall serve as a guide in deciding cases where the main issue is whether the agricultural landholding subject matter of the case is exempted on the ground that it is within the protected areas enumerated in Section 10 of RA 6657, namely, parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves; and those classified as protected areas under RA 7586, 1 namely, strict nature reserve, natural park, natural monument, wildlife sanctuary, protected landscape and seascapes, resource reserve, natural biotic areas, and other categories established by law, conventions or international agreements which the Philippine Government is a signatory.
Logically, only government may apply for this exemption as it is assumed that lands within the protected areas are public lands. A private person may apply for exemption if it happened that his landholding is inside a proclaimed protected area and the proclamation came after the subject property was declared alienable and disposable and subsequently titled to a private person. Usually, when the presidential proclamations are issued, there is a provision in the law which provides "subject to private rights."
II. CHECKLIST OF DOCUMENTARY REQUIREMENTS
1. FOR STANDING
A. General Requirements
1. Official Receipt showing proof of payment of filing and inspection fees.
2. In case of titled land:
[ ] True copy of the Original Certificate of Title (OCT) or Transfer Certificate of Title (TCT) of the subject land, certified by the Register of Deeds not earlier than thirty (30) days prior to application filing date.
3. In case of untitled land, the following shall be required in lieu of a title:
[ ] Certification from the DENR Community Environment and Natural Resources Officer (CENRO) that the landholding has been classified as alienable and disposable; and
[ ] Certification from the DENR CENRO (for administrative confirmation of imperfect title) or the Clerk of Court (judicial confirmation of imperfect title) that the titling process/proceedings has commenced and there are no adverse claimants;
B. Specific Requirements
1. If the registered owner/applicant is a corporation, cooperative, or other juridical entity:
[ ] Articles of Incorporation, Cooperative, or Partnership, as the case may be.
[ ] Notarized Secretary's Certificate or a Board Resolution authorizing the filing of the exemption case and appointing an officer of the corporation to represent the corporation.
[ ] Latest notarized General Information Sheet (GIS) which must comply with the pertinent requirements of the Securities and Exchange Commission.
2. If the applicant is not the registered owner nor one of the co-owners of the property:
[ ] Notarized Special Power of Attorney executed by the landowner/s within one (1) year from the date of filing of the application for exemption.
2. FOR SUBSTANCE
[ ] Copy of Republic Act, Presidential Proclamation, Presidential Decree, Executive Order, or Municipal Ordinance, as the case may be, classifying the land as one of the protected areas.
[ ] Land Classification Certification — Certification from the proper authority within Protected Areas and Wildlife Bureau (PAWB)/DENR or government agency based on their own rules which has administrative jurisdiction over the protected area that the subject land is classified as protected area.
[ ] Certification from the DENR/PAWB/Protected Area Management Bureau (PAMB) that the subject land is actually, directly, and exclusively used for those classified as protected areas.
[ ] Certified True Copy of Land Survey Maps issued by DENR, National Mapping and Resource Information Authority (NAMRIA), Bureau of Lands, or Protected Areas and Wildlife Bureau (PAWB) with legal and technical descriptions of boundaries.
[ ] Lot plan prepared by a duly-licensed geodetic engineer indicating the lots being applied for and their technical descriptions.
[ ] If applicable, a Certified True Copy of the General Management Planning Strategy of the Protected Area.
[ ] Photographs of the subject landholding. (see DAR A.O. No. 04, Series of 2003)
Additional Requirement for Protected Areas under RA 7586:
[ ] Certification from the DENR that the subject property has not been disestablished as a protected area under Section 7 of RA 7586.
The facts certified in these documents shall be verified through a joint ocular inspection conducted by the representatives from DAR and DENR.
III. JURISDICTION
The Regional Director of the region where the subject land is located has the primary jurisdiction to hear and decide cases involving applications for exemption of protected areas from the coverage of Comprehensive Agrarian Reform Program (CARP).
IV. STANDING
The following persons can file the application for exemption:
a. The landowner/s; OR
b. The authorized representative of the landowner/s
V. TIMELINESS
If the application for exemption is filed on the ground that the subject landholding is a protected area as enumerated in RA 6657, DAR AO No. 03, Series of 2003 and DAR AO No. 02, Series of 2009 shall apply.
Date of Receipt of NOC Applicable Rules
Before 01 July 2009 2 No prescription period (DAR AO No. 03, Series of 2003)
• The effect on the processing of CARP
coverage varies depending on the date of
filing of the application for exemption.
On or after 01 July 2009 30-day prescription period (DAR AO No. 02, Series of 2009)
• If the landowner filed an application for
exemption within thirty (30) days from
the date of receipt or publication of NOC,
the application shall be given due course.
Otherwise, the application shall be
dismissed.
If the application for exemption is filed on the ground that the subject landholding is a protected area as defined and enumerated in RA 7586, DAR AO No. 04, Series of 2003 shall apply. If the filing of an application for exemption clearance is in response to a notice of CARP coverage, the DAR shall deny due course to the application if it was filed after sixty (60) days from the date the landowner received a notice of CARP coverage.
VI. DECISION
(Basis: Administrative Order No. 03, Series of 1995 and R.A. No. 6657, as amended)
Approve only if the following elements exist:
1. The subject landholding is classified or proclaimed as a protected area under any of the following:
• Republic Act
• Presidential Proclamation
• Presidential Decree
• Executive Order, OR
• Municipal Ordinance; AND
2. The subject landholding is actually, directly, and exclusively used and found to be necessary for protected areas.
FOR CONTENTIOUS ISSUES
a. If the subject landholding is within the protected area but its use is agricultural (or not actually, directly, and exclusively and not found to be necessary for protected areas)
• If the agricultural use is still consistent with its being a protected area as in agro-forestry, the landholding is exempt from CARP. Otherwise, deny the application for exemption and place the subject landholding under the coverage of CARP.
b. If the subject landholding is within the buffer zone of a protected area
• Deny the application for exemption. The use of the land may still be regulated in order to avoid or minimize harm to the protected area.
c. If there is an allegation that the title of the application is void on the ground that the subject landholding has not been declared alienable and disposable
• The issue is a prejudicial question which cannot be determined by the Regional Director. In such case, the Regional Director shall dismiss the application for exemption (without prejudice) on the ground of lack of jurisdiction.
VII. APPEALS
The Secretary of the Department of Agrarian Reform shall exercise appellate jurisdiction over ALI cases and may delegate the resolution of appeals to any Undersecretary.
The appeals from the decision of the Regional Director may be filed within fifteen (15) days from receipt of said decision in the same regional office which issued the adverse decision.
VIII. APPLICABLE PRINCIPLES, LAWS, RULES, POLICIES, JURISPRUDENCE
A. LAWS
• Section 10 (a), RA 6657
SECTION 10. Exemptions and Exclusions. —
(a) Lands actually, directly and exclusively used for parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves shall be exempt from the coverage of this Act.
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• RA 7586 — An Act Providing For The Establishment and Management of National Integrated Protected Areas System, Defining Its Scope and Coverage and For Other Purposes
SECTION 3. Categories. — The following categories of protected areas are hereby established:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or international agreements which the Philippine Government is a signatory.
SECTION 4. Definition of Terms. — For purposes of this Act, the following terms shall be defined as follows:
1. "National Integrated Protected Areas System (NIPAS)" is the classification and administration of all designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible;
2. "Protected Area" refers to identified portions of land and water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation;
3. "Buffer zones" are identified areas outside the boundaries of and immediately adjacent to designated protected areas pursuant to Section 8 that need special development control in order to avoid or minimize harm to the protected area;
4. "Indigenous cultural community" refers to a group of people sharing common bonds of language, customs, traditions and other distinctive cultural traits and who have since time immemorial, occupied, possessed and utilized a territory;
5. "National park" refers to a forest reservation essentially of natural wilderness character which has been withdrawn from settlement, occupancy or any form of exploitation except in conformity with approved management plan and set aside as such exclusively to conserve the area or preserve the scenery, the natural and historic objects, wild animals and plants therein and to provide enjoyment of these features in such areas;
6. "Natural monuments" is a relatively small area focused on protection of small features to protect or preserve nationally significant natural features on account of their special interest or unique characteristics;
7. "Natural biotic area" is an area set aside to allow the way of life of societies living in harmony with the environment to adapt to modern technology at their pace;
8. "Natural park" is a relatively large area not materially altered by human activity where extractive resource uses are not allowed and maintained to protect outstanding natural and scenic areas of national or international significance for scientific, educational and recreational use;
9. "Protected landscapes/seascapes" are areas of national significance which are characterized by the harmonious interaction of man and land while providing opportunities for public enjoyment through the recreation and tourism within the normal lifestyle and economic activity of these areas;
10. "Resource reserve" is an extensive and relatively isolated and uninhabited area normally with difficult access designated as such to protect natural resources of the area for future use and prevent or contain development activities that could affect the resource pending the establishment of objectives which are based upon appropriate knowledge and planning;
11. "Strict nature reserve" is an area possessing some outstanding ecosystem, features and/or species of flora and fauna of national scientific importance maintained to protect nature and maintain processes in an undisturbed state in order to have ecologically representative examples of the natural environment available for scientific study, environmental monitoring, education, and for the maintenance of genetic resources in a dynamic and evolutionary state;
12. "Tenured migrant communities" are communities within protected areas which have actually and continuously occupied such areas for five (5) years before the designation of the same as protected areas in accordance with this Act and are solely dependent therein for subsistence; and
13. "Wildlife sanctuary" comprises an area which assures the natural conditions necessary to protect nationally significant species, groups of species, biotic communities or physical features of the environment where these may require specific human manipulations for their perpetuation.
SECTION 5. Establishment and Extent of the System. — The establishment and operationalization of the System shall involve the following:
1. All areas or islands in the Philippines proclaimed, designated or set aside, pursuant to a law, presidential decree, presidential proclamation or executive order as national park, game refuge, bird and wildlife sanctuary, wilderness area, strict nature reserve, watershed, mangrove reserve, fish sanctuary, natural and historical landmark, protected and managed landscape/seascape as well as identified virgin forests before the effectivity of this Act are hereby designated as initial components of the System. The initial components of the System shall be governed by existing laws, rules and regulations, not inconsistent with this Act;
2. Within one (1) year from the effectivity of this Act, the DENR shall submit to the Senate and the House of Representatives a map and legal descriptions or natural boundaries of each protected area initially comprising the System. Such maps and legal description shall, by virtue of this Act, constitute the official documentary representation of the entire System, subject to such changes as Congress deems necessary;
3. All DENR records pertaining to said protected areas, including maps and legal descriptions or natural boundaries, copies of rules and regulations governing them, copies of public notices of, and reports submitted to Congress regarding pending additions, eliminations, or modifications shall be made available to the public. These legal documents pertaining to protected areas shall also be available to the public in the respective DENR Regional Offices, Provincial Environment and Natural Resources Offices (PENROs) and Community Environment and Natural Resources Offices (CENROs) where NIPAS areas are located;
4. Within three (3) years from the effectivity of this Act, the DENR shall study and review each area tentatively composing the System as to its suitability or non-suitability for preservation as protected area and inclusion in the System according to the categories established in Section 3 hereof and report its findings to the President as soon as each study is completed. The study must include in each area:
1. A forest occupants survey;
2. An ethnographic study;
3. A protected area resource profile;
4. Land use plans done in coordination with the respective Regional Development Councils; and
5. Such other background studies as will be sufficient bases for selection.
The DENR shall:
1. Notify the public of proposed action through publication in a newspaper of general circulation, and such other means as the System deems necessary in the area or areas in the vicinity of the affected land thirty (30) days prior to the public hearing;
i. Conduct public hearings at the locations nearest to the area affected;
ii. At least thirty (30) days prior to the date of hearing, advise all Local Government Units (LGUs) in the affected areas, national agencies concerned, people's organizations and non-government organizations and invite such officials to submit their views on the proposed action at the hearing not later than thirty (30) days following the date of hearing; and
iii. Give due consideration to the recommendations at the public hearing; and provide sufficient explanation for his recommendations contrary to the general sentiments expressed in the public hearing;
2. Upon receipt of the recommendations of the DENR, the President shall issue a presidential proclamation designating the recommended areas as protected areas and providing for measures for their protection until such time when Congress shall have enacted a law finally declaring such recommended areas as part of the integrated protected area systems; and
3. Thereafter, the President shall send to the Senate and the House of Representatives his recommendations with respect to the designations as protected areas or reclassification of each area on which review has been completed, together with maps and legal description of boundaries. The President, in his recommendation, may propose the alteration of existing boundaries of any or all proclaimed protected areas, addition of any contiguous area of public land of predominant physical and biological value. Nothing contained herein shall limit the President to propose, as part of his recommendation to Congress, additional areas which have not been designated, proclaimed or set aside by law, presidential decree, proclamation or executive orders as protected area/s.
SECTION 15. Areas Under the Management of Other Departments and Government Instrumentalities. — Should there be protected areas, or portions thereof, under the jurisdiction of government instrumentalities other than the DENR, such jurisdiction shall, prior to the passage of this Act, remain in the said department or government instrumentality; Provided, That the department or government instrumentality exercising administrative jurisdiction over said protected area or a portion thereof shall coordinate with the DENR in the preparation of its management plans, upon the effectivity of this Act.
B. ISSUANCES
• DAR AO No. 02, Series of 2009, Subsection A.
8. Excluded from coverage are lands actually, directly and exclusively used and found to be necessary for the following purposes:
8.1 Parks;
8.2 Wildlife;
8.3 Forest reserves;
8.4 Reforestation;
8.5 Fish sanctuaries and breeding grounds;
8.6 Watersheds;
8.7 Mangroves;
8.8 National defense;
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• DAR AO NO. 04, SERIES OF 2003, 2003 Rules on Exemption of Lands from CARP Coverage under Section 3 (c) of Republic Act No. 6657 and Department of Justice (DOJ) Opinion No. 44, Series of 1990.
• DAR AO No. 10, Series of 1994, Amending Administrative Order No. 13, Series of 1990 Entitled "Rules and Procedures Governing Exemption of Lands From CARP Coverage Under Section 10 of R.A. 6657" to Authorize All RDs to Hear and Decide Applications for Exemption for All Land Sizes.
• DAR AO No. 06, Series of 1994, Guidelines for the Issuance of Exemption Clearances Based on Section 3 (c) of R.A. 6657 and the Department of Justice (DOJ) Opinion No. 44, Series of 1990.
• DAR AO No. 13, Series of 1990, Rules and Procedures Governing Exemption of Lands from CARP Coverage Under Section 10, R.A. 6657.
C. GUIDING PRINCIPLES
• Quantum of Evidence Required: Substantial Evidence
— The quantum of evidence required to establish a fact in quasi-judicial bodies is substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise. (Uniwide Sales Warehouse Club, et al. v. National Labor Relations Commission, et al., G.R. No. 154503, 29 February 2008)
• Section 4, Rule I of the DAR A.O. No. 3, Series of 2003.
. . . the DAR shall not be bound by technical rules of procedure and evidence but shall proceed to hear and decide all cases, disputes or controversies in a most expeditious manner, employing all reasonable means to ascertain the facts of every case in accordance with justice, equity and the merits of the case.
D. JURISPRUDENCE
• Sta. Rosa Realty Development Corporation v. Amante, et al., G.R. No. 112526, 16 March 2005.
As the landholdings of SRRDC subject of the instant proceedings are already developed not only as a community but also as an agricultural farm capable of sustaining daily existence and growth, We find no infirmity in placing said parcels of land under compulsory coverage. They do not belong to the exempt class of lands. The claim that the landholding of SRRDC is a watershed; hence, belonging to the exempt class of lands is literally "throwing punches at the moon" because the DENR certified that "the only declared watershed in Laguna Province and San Pablo City is the Caliraya-Lumot Rivers (Petitioner's Exhibit "A"). A sensu contrario, the landholdings subject herein are not. 41 (Emphasis supplied)
The evidence on record supports these findings, to wit:
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1. Certification dated January 16, 1989 by the OIC Provincial Environment and Natural Resources Office of Laguna that the only declared watershed in the Laguna province and San Pablo City is the Caliraya-Lumot Rivers No. 1570 dated September 1, 1976; 42
2. Map prepared by Agricultural Engineer Rosalina H. Jumaquio showing that: a) the topography of the property covered by TCT No. T-84891 topography is flat to undulating with a 5 to 10% slope; (b) it is suitable to agricultural crops; and (c) the land is presently planted with diversified crops; 43
3. Certification dated August 28, 1989 by APT Felicito Buban of the Department of Agriculture of Laguna that, per his ocular inspection, the subject property is an agricultural area, and that the inhabitants’ main occupation is farming; 44
4. Pictures taken by MARO Belen La Torre of Cabuyao, Laguna, showing that the property is cultivated and inhabited by the farmer-beneficiaries; 45
In order to be exempt from coverage, the land must have been classified or proclaimed and actually, directly and exclusively used and found to be necessary for watershed purposes. In this case, at the time the DAR issued the Notices of Coverage up to the time the DARAB rendered its decision on the dispute, the subject property is yet to be officially classified or proclaimed as a watershed and has in fact long been used for agricultural purposes.
Footnotes
1. An Act Providing For The Establishment and Management of National Integrated Protected Areas System, Defining Its Scope and Coverage and For Other Purposes.
2. Effectivity date of R.A. No. 9700.