El debido proceso en nuestra legislación

INTRODUCTION

The paper describes the implementation of the Certificate of Ancestral Domain Claim (CADC), the tenurial instrument issued through the Department of Environment and Natural Resources (DENR) department administrative order (DAO) no. 2 series of 1993 that recognized the rights of indigenous peoples to their ancestral lands, awarded to the Bugkalots, an indigenous people in Northeast Luzon. The Bugkalots formed a people’s organization (PO) as the required recipient for the CADC and with whom the government, through the DENR, signed a Community-Based Forest Management Agreement (CBFMA). With the ultimate goal of forest conservation, one salient feature of the policy is for indigenous peoples to apply indigenous knowledge and practices in the use and management of natural resources within their ancestral domain.

With the implementation of the CADC program in the Bugkalot domain as the case study, the paper evaluates the implementation of the CBFMA and analyzes these field realities and the PO’s performance in relation with policy provisions in terms of the attainment of its goals. The paper cites on-site situations and raises issues of congruence and disparity between policy and accomplishments, from where recommendations to improve policy implementation were derived. Since the National Commission on Indigenous Peoples (NCIP) took jurisdiction over indigenous peoples and ancestral lands from the DENR as provided by the Indigenous Peoples Rights Act (IPRA) of 1997, the commission processed the conversion of CADC to Certificate of Ancestral Domain Title (CADT). The paper raises issues on which CADC conversions to CADT should be based, given the initial conversion process results and the experiences during the CADC implementation.

BACKGROUND

With the irreversible effects of accelerated forest deforestation during the twentieth century, highlighted by catastrophic natural disasters and calamities, Philippine government policies on forest conservation and controlling deforestation evolved from the earlier regulatory and punitive approaches to the people-centered approaches towards the end of the 1980s. The most innovative among these socially-oriented government policies is DAO no. 2 promulgated by the DENR in 1993 where indigenous peoples were awarded the rights to a specifically-delineated area within their ancestral domain through a CADC. Although the recognition of indigenous peoples’ rights was mandated by the Constitution of 1987, no law to this effect was passed by Congress after five years so the DENR policy was an ground- breaking move; partly a result of a long process of lobbying and advocacy by indigenous peoples.

Ten years after the adoption of the Constitution, as preempted by the CADC policy, the Philippine Congress enacted the IPRA of 1997. The law created the NCIP which has jurisdiction over indigenous peoples and their ancestral lands. Mandated to undertake the delineation of ancestral domains and issue CADT, the commission was held back with

constitutionality issues in its initial years. Overcoming these legal battles, the NCIP was burdened with the conversion of the 181 DENR-issued CADCs into CADTs subject to the tedious process in accordance with the IPRA law. The NCIP proceeded in converting CADCs to CADTs following generally the same process and methodology as in the earlier DENR- issued CADCs. With some initial conversions completed and CADTs issued, the NCIP is apparently encountering difficulties which resulted in deficiencies not unlike those committed by the DENR in the issuance of CADCs.

It is in this context that this paper presents the experiences in the CADC implementation, using the CADC awarded to the Bugkalot of Quirino as the case, and highlight issues that needs to be addressed for better policy implementation on ancestral domain rights. With more than hundred CADCs still to be converted to CADTs, these issues raise important considerations that should be addressed in pursuing this objective so that the purported objectives of the policy shall be attained.

This paper, although lacking in scientific discourse and theory, strives to contribute to the practical aspects of ancestral land rights and the role of indigenous peoples in natural resources management. It deals with the implementation of policies on indigenous peoples and the field realities in such implementation. The paper starts with a brief description of DAO 2, the policy that started it all. The Bugkalot ancestral domain is briefly presented to describe the environmental situation in the Bugkalot domain and later the various CADC areas awarded to the Bugkalots. Building on the experiences on these areas, policy provisions against field implementation, with focus on the CBFMA, are discussed. Recommendations on the CADC system are forwarded for considerations in the improvement of the CADT implementation.

Department administrative order no. 2

DAO no. 2 series of 1993, although viewed as lacking the clout and effect of a law passed by Congress, was a drastic measure initiated by the DENR. The order provided for the identification, delineation and recognition of ancestral domain claims by awarding them a CADC. Specified in the certificate of award are their rights and privileges as well as their duties and responsibilities. The critical role they play in the management of their ancestral lands was recognized. They were involved in addressing environmental degradation, particularly deforestation, in their domain.

The implementation of the order was spearheaded by a Provincial Special Task Force for Ancestral Domains (PSTFAD) based at the DENR provincial office. The taskforce, with representatives coming from local government units, concerned government agencies, non- government organizations (NGOs), and the concerned indigenous people, followed a very tedious documentation and consultation process including on-site verifications, social surveys, and publication requirements. In its six-year implementation period, many indigenous peoples groups apparently met the criteria and successfully complied with the requirements as evidenced by the issuance of 181 CADCs throughout the country.

THE BUGKALOT ANCESTRAL DOMAIN: THE AREA AND ITS PEOPLE

Although the ancestral domain of the Bugkalot used to cover a wide expanse of land (Salgado 1994; Antolin 1789 translated by Scott 1988), the present domain is restricted within a mountainous area within the provincial boundaries of Quirino, Nueva Vizcaya, and Aurora (see figure 1). It is the headwaters of various rivers draining into the major tributaries of the

Cagayan River in the provinces of Quirino and Nueva Vizcaya and eventually to Isabela and Cagayan. The center of the domain may be accessed from various entry points in Quirino, Nueva Vizcaya, Aurora and Nueva Ecija. One has to travel a circuitous route to travel from one side of the domain to another. The inaccessibility of the area contributed to its relatively pristine state of forest resources where various government pilot projects were implemented. In fact, it is within this same present area that the six CADCs for the Bugkalots were issued by the DENR.

Figure 1: The Bugkalot domain confined within the boundary areas of the provinces of Quirino, Nueva Vizcaya and Aurora (Aquino 2004: p. 126)

Resources in the Bugkalot domain

Resources in the Bugkalot domain are broadly categorized into agriculture, forestry, and water resources. Agricultural areas within the Bugkalot domain are further classified into four interrelated categories: irrigated farms, permanent dry farms, kaingin farms, and backyard farms. The agricultural resource practices of the Bugkalots are very dynamic. There is a growing trend to lengthen the fallow period of their swidden farms, extending their swidden area, and later totally foregoing fallowing thereby eventually converting these swidden farms into permanent dry farms. Likewise, imitating the ingenuity of migrants, some Bugkalots tapped nearby creeks or rivers for gravity irrigation and thus became involved with irrigated farming. Also, some have started to bring their swidden technology nearer to home and started making backyard gardens.

The Bugkalot domain had been the site of various people-oriented forestry programs implemented since the 1970s such as various schemes of contract tree farming. By the 1980s, some of them became recipients of Certificates of Stewardship Contracts (CSC) issued

through the Integrated Social Forestry (ISF) program. Being one of the last forest frontiers in Cagayan Valley, the domain has been the ideal site of various government programs on forest conservation, particularly those funded by international institutions. The relatively intact forest areas within the domain were one of the reasons why the domain area was recognized as the ancestral domain claim of the Bugkalots.

The Bugkalot domain is the location of headwaters of large watersheds located in three regions of the country all emanate from the area: in Region 02 (Cagayan Valley), the upper Cagayan River (the Conwap-Casecnan rivers network), the Addalam River (Diduyon, Tubu, Kasibu) and the upper Magat River (Mangga in Dupax); in Region 03 (Central Plains of Luzon), the upper Pampanga River starting from Alfonso Castañeda (Nueva Vizcaya) and Pantabangan (Nueva Ecija); in Region 04 (Southern Tagalog), the Diaat River and Bazal River systems in Maria Aurora, in the province of Aurora. Endowed with clear running waters, these river systems with numerous tributary creeks are a part of the Bugkalot way of life. To many, these provide the most convenient mode of transport to and from inaccessible villages. For daily subsistence many tap springs in the domain for drinking water as evidenced by even existing networks of hoses, plastic tubes or pipes (polyvinyl chloride) some hundreds of meters long, to tap water into households. Much more, there are now irrigation systems within the domain, which involve the Bugkalots in irrigated agriculture. Fish and other water resources augment household food requirements.

The people in the Bugkalot domain

The Bugkalots were known as notorious headhunters having abandoned the practice only in the early 1970s. Then, they were more known as Ilongots, as they are in the comprehensive ethnographic studies of M.Z. Rosaldo (1980) and R.I. Rosaldo (1980), in earlier books (e.g. De Witt Willcox 1912; Anima 1985), in the national dailies, and in a more recent publication (Salgado 1994). It was only after the entry of the missionaries of the New Tribes Mission in the 1960s and the proclamation of Martial Law in the 1970s that outsiders started to venture into the area. Migration into the area increased manifold with the exodus of people from the Cordilleras displaced by the construction of two big hydroelectric dams. All these were greatly facilitated with the construction of roads by concessionaires during the logging boom that ensued. Because of these circumstances, the population in the Bugkalot domain steadily increased. As a consequence, the Bugkalots are now greatly outnumbered by other people within the domain. Various sources show fluctuating Bugkalot population over the years. At present, integrating various considerations and sources, Bugkalot population is around sixty thousand (Aquino 2004: p. 134).

The Bugkalots look no different than any Filipino lowlander (Salgado 1994: p. 45). They cannot be distinguished easily from other ethnic groups. Most of them likewise speak with equal ease national (Tagalog or Pilipino) and the regional languages (Ilocano) to the extent that even among themselves they no longer use Bugkalot. The present Bugkalot houses are not different from the lowland houses. Most houses are already built with reinforced concrete materials as is the common household building materials in the lowlands. Being Bugkalot is a binding force by itself as this gives them sense of attachment and belongingness as a group. Being a Christian convert of the New Tribes Mission is even a closer tie among them.

The Bugkalots however are also members of some organizations other than religious and cultural. Some of them are members of the CADC-recipient PO. Technically, all of them are components of the local government unit of the barangay or the village and many of them occupy elective and appointed positions in these location government units. Half of the

members of the municipal council of Nagtipunan are Bugkalots including the municipal mayor. The Bugkalots also organized a Bugkalot Federation with elected officers from three provinces (Quirino, Nueva Vizcaya, and Aurora), aside form the provincial organizations.

The Bugkalot certificate of ancestral domain claim

From 1994 to 1997, six CADCs with an aggregate area of 205,233 ha were awarded to the Bugkalots (see relative locations in figure 2 and details in table 1). DAO no. 2 was implemented for almost eight years (1993-1998). It was superseded by Republic Act 8371, the IPRA law, but the IRR were issued by NCIP only in June 1998. Found in thirty barangays, in six municipalities, in the three provinces. Each of these CADCs was delineated and awarded to the POs concerned through the facilitation of institutions involved through government programs. The Nagtipunan CADC was facilitated by an NGO funded by the USAID while the five others were helped by the taskforce Casecnan, all with the collaboration of the DENR. The help extended included the preparation of the necessary ancestral domain plans, which are all linked to logging.

Figure 2: The six CADC areas awarded to Bugkalots in six municipalities of three provinces (Aquino 2004: 259)

Table 1: The CADCs of the Bugkalots within six towns in the three provinces

Province Town Number of

barangays covered

Total area

(ha)

Month/year Awarded

Quirino Nagtipunan 12 108,360 June 1994

Nueva Vizcaya

1 Kasibu 4 2,822 January 1996

2 Dupax del Norte 4 17,972 January 1996

3 Dupax del Sur 6 31,113 January 1996

4 Alfonso Castañeda 2 21,842 January 1996

Aurora Maria Aurora 2 23,124 January 1997

POLICY PROVISIONS AND FIELD IMPLEMENTATION

The Bugkalot domain being the site of pilot projects of the DENR was among the earliest recipients the CADC; in fact it was the second issued in the country. All forestry related programs were later put under the Community-Based Forest Management Program (CBFMP) hence the CADC POs in the domain signed a CBFMA with the DENR in accordance with the revised policy. The following analyses on CADC implementation were the result of earlier study on this area. The details related to logging were solely based on those three POs that were able to implement their plans. All other aspects are based on all Bugkalot CADCs.

The experiences during the implementation of the CBFMAs in the Bugkalot CADC are cited here only where they relate to some divergence of policy provisions in relation to policy implementation. The intention is to present the experiential circumstances to situate potential remedies and solutions that should be considered for similar undertakings such as the concerns of the NCIP.

Supervision and control of ancestral domains

Supervision of CADC areas and PO operations was under the DENR as provided by DAO 2. The DENR personnel were limited to financial constraints as were the case of government agencies. Field reality was not that no on-site actual supervision and control was undertaken.

As early as the planning stage, the required consultations and involvement of stakeholders were not ideally done. Although an Ancestral Domain Management Plan (ADMP) was prepared, the plan which was supposed to be the overall encompassing guide for the whole domain, this was not followed or implemented; it was prepared just for the sake of compliance. Facilitated by various foreign-funded agencies and NGOs, the plan was reduced and localized (through consultations, site validation and finally translated). However, there is a need to disseminate the contents of the ADMP to the PO members.

The preparation of annual plans was done through the project officer assigned by the DENR to each CBFMA area. The procedures were not followed in coming up with the resource use plan (RUP) where the logging specifications (species, sizes, volume to cut, and the area from where these will be taken, etc.) were supposed to be specified. The respective roles of the DENR and the PO were not dichotomized, in fact the DENR assumed the role of the PO by doing the plans. Of course, the incapability of the PO to do this is partly a cause to this.

For purposes of supervision and control of the CADC particularly with the implemented CBFMAs, monitoring and evaluation could have been better with the significant involvement of municipal local government units, as well as other stakeholders such as NGOs or even the academe. If only the PO officers and the Bugkalots themselves were capacitated as envisioned by the ADMP, then monitoring and evaluation could have been more effective with self-monitoring and evaluation by the PO themselves.

Decision making and the people’s organization

Empowerment of the PO and its members is one of the salient features of the ADMP. The rationale is that empowered people can make rational decisions for themselves and the management of their domain. In fact, self-determination was one of the enshrined policies of the Constitution for indigenous peoples. Likewise, DAO 2 provides that indigenous organizational and leadership systems shall be recognized.

With the PO organized as the recipient of the CADC/CBFMA, a new leadership system was created, solely for the CADC. The organization did not emanate from the Bugkalots themselves. With the very extensive areas covered by the CADCs, the POs can hardly cope with the purported objective by which it was created. The PO is too loose an organization, so instead of a collective decision making process, the officers are the ones making decisions.

Evidently the structure of POs organized is not fit for the management of ancestral domains. In practice, the PO is just the CADC recipient in paper and did not function as it was supposed to. In fact, the envisioned benefits that should accrue to members of the PO did not materialize. Instead, only the elite members of the PO, mostly the officers, materially benefited from the CADC through the CBFMA.

With the biophysical setting of the domain and the prevailing social conditions (people interrelationships, behavior, and leadership structure), the recipient PO is not appropriate for the management of the domain. There is a need for an organization that is socially cohesive, small enough to be manageable, and not with an extensive membership that encompass all people within a very large area. This means that within the domain, small groups with mutual interest, needs and commitment to a particular domain area may be organized for the purpose.

Environmental policy goals versus personal motives

DAO 2 provisions are for sustainable environmental management through the indigenous peoples. The indigenous peoples have the responsibility to protect flora, fauna, watershed areas, and other forest and mineral reserves within the domain area. This is explicitly stated in the CBFMA agreement the PO signed with the DENR. However, various activities within the domain manifest that this is not religiously followed. In the some patches in the forested parts of the domain, there are patches of newly opened swidden farms. Obviously, many people in the domain, Bugkalots and non-Bugkalots alike, do not comply or are not aware of such restrictions. These provisions are likewise stated in the previously prepared and adopted ADMP as well as in the required annual plans. It is apparent that there is a need for PO officers to spearhead the dissemination and implementation of these policy provisions.

The implementation of the CADC and the CBFMA was focused on natural resources extraction particularly timber. Interest in the Bugkalot ancestral domain was generated and sustained due to the expected benefits derived mainly from commercial logging. This general