ADR Adoption in Environmental Disputes

Constitutional and ADR-Act legal basis

The order is issued pursuant to the Constitution’s mandate to protect and advance the right of the people to a balanced and healthful ecology and to guarantee equitable access to natural resources (preamble).
The order is consistent with the Alternative Dispute Resolution Act of 2004 (Republic Act No. 9285), which declares state policy to promote ADR as a means to achieve speedy and impartial justice and unclog court dockets (preamble).
The Department adopts ADR principles and procedures for appropriate environment and natural resources disputes within its jurisdiction (Section 1 and Section 7).

Policy and objectives

The Department actively promotes party autonomy in resolving disputes, meaning parties are free to make their own arrangements to resolve their conflict (Section 1).
The Department encourages and actively promotes ADR as an important means for speedy and impartial justice and for de-clogging cases filed with the Department (Section 1).
The Department provides means for ADR to serve as an efficient tool and alternative procedure for resolving appropriate cases (Section 1).
The Department enlists active civil society and private sector participation in settlement of disputes through ADR (Section 1).
The order’s objective is to facilitate environmental disputes through ADR (Section 2).
The order uses a two-pronged strategy: (1) facilitating mutually acceptable solutions for appropriate cases, and (2) minimizing the number of cases raised for formal administrative or judicial resolution (Section 2).
The measure is intended to enhance public confidence in the Department as an institution of good governance (Section 2).

Core ADR definition adopted

An “ADR system” has the same meaning as in Republic Act No. 9285, meaning any process or procedure to resolve a dispute or controversy other than by adjudication of a presiding judge of a court or an officer of a government agency, with a neutral third party assisting in resolution of issues (Section 3).
An ADR system includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof (Section 3).

Coverage and identification of ADR-suitable cases

ADR coverage is determined by the respective DENR bureaus, attached agencies, and regional offices, and by determinations of an Oversight Committee under Section 5, last paragraph (Section 4).
All DENR bureaus, attached agencies, and regional offices must make an inventory of the types and nature of disputes and cases presently filed with them (Section 4).
Based on the inventory, these offices must identify disputes and cases now and hereinafter that may be subject to ADR (Section 4).

Exceptions and mandatory referral

ADR must not be used for cases where applicable regulations conflict and would require resolution by a body higher than the bureau, attached agency, or regional office (Section 5(a)).
ADR must not be used for cases where resolution would require a policy change (Section 5(b)).
ADR must not be used for cases that involve criminal liability (Section 5(c)).
ADR must not be used for cases involving the issue of jurisdiction of the Department or the courts (Section 5(d)).
ADR must not be used for administrative cases against DENR officials and employees (Section 5(e)).
ADR must not be used for cases that by law cannot be compromised (Section 5(f)).
Disputes that have assumed national significance, involve national officials, or have reached national media attention, and cases arising as a direct outcome of Presidential directives, must be referred directly to the Oversight Committee to determine if ADR is appropriate (Section 5, last paragraph).

Party autonomy and respect for settlement

Parties may resort to traditional or customary modes of settlement that are not contrary to law (Section 6).
The Department must take into account a mutually acceptable solution reached by the parties that is not contrary to law as a basis for its decisions or orders (Section 6).
A party settlement used as basis for Department action is done without prejudice to the rights of persons who were not parties to the solution or settlement (Section 6).

Integration into DENR procedures and quasi-judicial bodies

All DENR bureaus, attached agencies, and regional offices must adopt ADR principles consistent with relevant laws in their current procedures for resolving environment and natural resources conflicts (Section 7).
Where appropriate, offices must adapt an applicable ADR system as provided in Republic Act No. 9285 (Section 7).
Department bureaus, attached agencies, regional offices, and quasi-judicial bodies such as the Panel of Arbitrators, Mines Adjudication Board, and Pollution Adjudication Board must create or modify their respective rules of procedure, where appropriate, to incorporate ADR principles or steps in addressing conflicts of hearing cases under their jurisdictions (Section 7).

ADR training program for DENR personnel

A comprehensive and continuing ADR training must be established for personnel involved in addressing or deciding conflicts brought before their offices (Section 8(a)).
The Undersecretary for Management and Technical Services is responsible for creating and designing a comprehensive ADR Training and Development Program, including an information and educational campaign within and outside the Department (Section 8(b)).
ADR guidelines and training modules must be tailored to the specific sector where applied (e.g., EIA system, adjudication of mining disputes, or pollution cases) (Section 8(b)).
Bureaus, attached agencies, and regional offices must adopt and implement a continuing ADR training and development program in coordination with the Office of the Undersecretary for Management and Technical Services (Section 8(c)).
The Assistant Secretary for Legal and General Services and the Assistant Secretary for Foreign Assisted and Special Projects must provide support for the Department-wide ADR Training and Development Program and related activities, under the direction and supervision of the Undersecretary for Management and Technical Services (Section 8(d)).
The Financial Management Services must allot budgetary support for the ADR Training and Development Program and related activities in the central office, bureaus, attached agencies, and regional offices (Section 8(e).

Support mechanisms and ADR focal points

Every bureau, attached agency, regional office, and the DENR Legal Division must identify and designate an ADR Focal Point to coordinate ADR activities and report to the Oversight Committee (Section 9(a)).
The Office of the Undersecretary for Management and Technical Services must develop, operate, and maintain a Department-wide database on ADR case studies (Section 9(b)).
The ADR case-study database is maintained without prejudice to the parties’ right to withhold confidential information protected by law (Section 9(b)).
Case studies must be included in the DENR website and must be regularly and promptly updated for timeliness and accuracy (Section 9(b)).
The Bureau Directors, Regional Executive Directors, Regional Directors of EMB and MGB, and the Undersecretary for Management and Technical Services must adopt and maintain a reporting procedure on ADR capacity building in their respective offices to the Oversight Committee (Section 9(c)).
The Oversight Committee, bureaus, attached agencies, or regional offices may initiate cooperative undertakings with academic institutions, non-government organizations, or other private sector groups to assess and analyze ADR effectiveness, including efforts initiated prior to the order (Section 9(d)).
Assessments must be considered in improving the training program and DENR rules and regulations, policies, and procedures (Section 9(d)).

Oversight committee governance

An ADR Oversight Committee is established to supervise and monitor the implementation of the ADR program within the Department (Section 10).
The Committee is composed of: (a) the Undersecretary for Management & Technical Services as Chair; (b) the Assistant Secretaries for Legal Services & for Foreign-Assisted and Special Projects; and (c) Bureau Directors and Heads of Attached Agencies (Section 10(a)-(c)).
The Committee may invite a representative from civil society or private sector with relevant expertise or experience to serve as member (Section 10).
The Committee primarily administers and implements the ADR program and is not an appellate body for review of decisions or agreements (Section 10).
The Committee retains an advisory role consistent with Section 5, last paragraph (Section 10).

Transparency, accountability, participation, and due diligence

All DENR personnel and officials involved in ADR activities must maintain the highest standards of transparency, accountability, participation, and due diligence (Section 11).
In appropriate cases, and when parties agree, representatives of non-governmental organizations, affected industries, and community leaders may be invited to be present and observe all ADR processes undertaken by DENR offices (Section 11).
Invited observers may submit reports to the office responsible for the ADR activity/case, whether open or confidential and whether oral or written, covering observations, comments, critiques, and/or recommendations (Section 11).
All ADR Focal Points must submit to the Oversight Committee a quarterly report of their ADR and ADR-related activities (Section 11).
The Oversight Committee must consolidate the reports of ADR Focal Points and submit a report to the Secretary (Section 11).
The DENR Public Affairs Office in the central office, bureaus, attached agencies, and regional offices must make timely announcements and summary reports of ADR activities to the media and interested public (Section 11).

Repeal, separability, and legal continuity

All orders, rules and regulations, or parts thereof, inconsistent with the order are repealed, amended, or modified accordingly (Section 12).
If any part or provision is held unconstitutional or invalid, the remaining parts continue in full force and effect (Section 13).