Wednesday, May 21, 2008 [ philstar.com ]
A regional trial court in Kalibo, Aklan has recently upheld the position of the Department of Environment and Natural Resources, junking the petition of a developer, who is currently constructing a posh hotel and convention center on a reclaimed wetland area in Boracay.
In a two-page order, a copy of which was obtained by The Star, the RTC Sixth Judicial Region Branch 5 in Aklan denied the restraining order sought by J. King & Sons Company Inc., which earlier protested the DENR’s cease and desist order against the development and construction of the Boracay Crown Regency Hotel and Convention Center.
The DENR has previously issued a Notice of Adverse Finding against the project, as it also had earlier denied the application of the project proponents for an environment compliance certificate.
The DENR noted that the project “has no clear and positive right to cause environmental degradation and destruction” on a portion of the premier resort island, especially by reclaiming a wetland area that serves as the recharge area of the aquifer that maintain the balance and quality of the groundwater of Boracay.
“The petitioner has utterly failed to show any clear and positive right to occupy the area where the Boracay Crown Regency Hotel and Convention Center was being constructed with petitioner merely relying upon a tax declaration which is not an evidence of ownership,” the DENR further said.
“The issuance of the Notice of Adverse Findings and Cease and Desist Order are pursuant to law and therefore, cannot be taken as a violation of any right of the petitioner (J. King & Sons Company Inc.),” it added.
According to the court, the requisites of injunction include that the invasion of the right is material and substantial, that the right of complainants is clear and unmistakable, and that there is an urgent and permanent necessity for the writ to prevent serious damage.
Presiding Judge Elmo Del Rosario upheld the stand of the DENR on the matter, and denied the petition of the developer through an order he issued on April 22.
The court even pointed out that, “(I)njunction will not lie where the acts sought to be enjoined have already become a fait accompli or an accomplished or consummated act.”
On May 15, the DENR charged before the Office of the Ombudsman Malay municipal Mayor Ceciron Cawaling, a municipal engineer, and J. King & Sons Company Inc. amidst reported continuing construction of the project in the area.
In a press conference, DENR Secretary Lito Atienza said they filed the case against Cawaling and Engr. Elizer Casidsid because they “miserably failed to control the construction frenzy” in Boracay despite the moratorium imposed by the municipal government through a Resolution signed by Cawaling himself.
“We have exhausted all possible means to let him do his task as protector of the environment, as mandated by the law, (but) illegal construction and reclamation of mangrove and wetland areas persisted in Boracay,” Atienza said.
Based on the four-page DENR complaint, Cawaling appeared to have given “undue advantage” to J. King & Sons Company Inc., as he issued building permits for the project even when the Municipal Resolution, which called for a six-month moratorium on construction in Boracay has already been enacted.
Cawaling issued the permits to J. King on Oct. 10, 2007 while the Resolution for the moratorium on construction in the island was enacted on Oct. 6, 2007. The DENR even raised suspicion over Cawaling’s signing of the Resolution only on Oct. 24, 2007.
The DENR also noted that aside from the obvious violation of the Resolution, the ambitious construction of the project is on the portion of the resort island that was a timberland and wetland, thus, causing unwarranted harm to the government and the public.
The developer has attempted to secure an ECC from the DENR’s Environmental Management Bureau in Region 6 for the construction of the project, but its application was “returned without approval” by the environment agency in view of the moratorium.
In the meantime, on Jan. 2, Cawaling issued a memorandum that would enforce the municipal council resolution, which was an offshoot of Atienza’s warning on the local council to immediately cause the passage of a measure to address the rapid environmental degradation in Boracay in August last year.
Atienza even reminded the municipal officials of Malay that they could be held liable under the law for “non-performance of duty” and “negligence” to protect the world-famous island resort amid reports he received that construction of big houses, inns, and resorts in the Boracay continues.
The DENR said the six-month moratorium is supposed to be implemented from Jan. 2 to July 2, 2008 in Boracay. The ban, however, excludes government construction projects related to public utilities that have complied with procedures, laws, and ordinances.
“But the construction (in Boracay) is in full swing there are reclamation of mangrove areas, wetland areas, tree-cutting, etc.,” Atienza said. “This is simple banditry, stealing the natural resource of the island.”
“Boracay is not owned by Cawaling. Boracay is a pride of the country, and therefore, owned by all Filipinos for that matter,” he also said.
Records show that on March 7, DENR regional executive director Lormelyn Claudio wrote Cawaling regarding the filling up of the wetland area by the Boracay Crown Regency project. Claudio reiterated to Cawaling that no building permits should be issued to the project without the necessary ECC.
Records further show that on May 7, another letter was sent to Cawaling to stop the development on the site and the filling up of the wetland area by the project developer, and to suspend the building permits for the project.
All these efforts, however, apparently fell on deaf ears, according to Atienza.
“The concerted acts of Mayor Cawaling, his building official Engr. Casidsid, and the owners of the Crown Regency are in utter disregard of environment laws, specifically P.D. 705 (Forestry Code) and P.D. 1586,” the DENR complaint noted. (P.D. 1586 is on the establishment of an environmental impact assessment).
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