land use conflict in the resources industry
TRANSCRIPT
Land Use Conflict in the Philippine Resources Industry Land use is associated with human rights issue. Resource developers must respect the rights of host communities affected including farmers and indigenous peoples. They should obtain permission not only from landowners but also from occupiers or users before commencing development and be aware of the obligation to protect sources of food and water. In consultation with the community, both government and project proponents must engage a process to compensate fairly for adverse effects, identify strategies to manage environmental and social consequences, and if possible, avoid displacement or resettlement of people Land and natural resource issues often times are the main causes of conflict. Land conflicts especially when related to access to land or insecurity of tenure commonly become violent when linked to wider processes of political exclusion, social discrimination, economic marginalization, and a perception that peaceful action is no longer a viable strategy for change. The globalization of economies has generated a surge in investments related to land and other natural resources The Philippines is no stranger to violence in relation to land and natural resources conflict. (Toolkit and Guidance for Preventing and Managing Land and Natural Resources Conflict, 2012). The exploitation of natural resources and the concomitant environmental degradation exacerbated by climate change intensify the perceived ‘land scarcity’. Unresolved disputes will continue to prevent the resources from being developed sustainably creating uncertainty and prolonged conflicts.
Land and Resource Governance
The World Bank-‐supported 2013 report entitled “Improving Land Sector Governance in the Philippines: Implementation of Land Governance Assessment Framework” (“LGAF”) aims to provide a tool for diagnosis of land governance issues, establishment of benchmarks and monitoring progress over time. The report identified several key challenges that were expected to highlight the importance of improving land governance in the Philippines. These are: First, the country has one of the fastest growing population in Asia, which is expected to place undue pressure on the use of land and its rational and equitable allocation among competing uses. Second, investments in agriculture and property development are being stymied by continuing property rights problems and inconsistent policy. Third, smaller sized farms resulting from completion of land redistribution pose challenges in improving productivity to meet food security. Fourth, degradation of the country’s forests and natural resources has continued, affecting the poor greatly, due to their dependence on these resources. Fifth, as the country scales up public investments in infrastructure to promote inclusive growth, it becomes more crucial to set clear and equitable policies on expropriation and safeguards for those whose properties would be affected. Finally, the challenges of creating an improved environment for private investments are associated with having a well-‐functioning land market that is backed up by access to reliable land information, an efficient and complete registry, and clear and transparent procedures for rights registration and transactions on real property. According to the LGAF report, the Philippines fared high on the strength of its legal framework for land rights recognition. In the rural areas, the Comprehensive Agrarian Reform Act of 1988, Commonwealth Act 141 or the Public Land Act, Republic Act 636 and the recently issued Republic Act 10023 put in place the policies for recognition of rights of more than 90% of the country’s rural population. The Indigenous Peoples’ Rights Act (“IPRA”) on the other hand, laid out the policy for recognition of customary rights and the systems and procedures for mapping and registration of ancestral lands relying on both documentary and non-‐documentary forms of evidence. The Forestry Code and National Integrated Protected Areas System Act both recognize the public goods aspects of forestlands serving as the rationale for maintaining these lands under the public domain. The report also noted that there is strong public participation in the formulation of land policies, owing to the vibrant civil society sector, and the democratic space created by the legislative process. In the Philippines the key land administrative agencies are: 1) the Land Management Bureau under the Department of Environment and Natural Resources (“DENR”) recommends policies/programs for the administration of alienable and disposable lands; 2) the Land Registration Authority (“LRA”) under
the Department of Justice (“DOJ”) issues patents and certificates of title and registers land transaction documents (a Registry of Deeds is attached to the LRA in every city and province); 3) the Department of Agrarian Reform (“DAR”) implements the comprehensive land reform program of the government by providing land tenure security to landless farmers through land acquisition and distribution of Certificates of Land Ownership Award; 4) the National Commission on Indigenous Peoples (“NCIP”) assists indigenous cultural communities in securing title to their lands and approves any proposed disposal, utilization, management or appropriation of ancestral lands and processes Certificate of Ancestral Land Titles and Certificate of Ancestral Domain Titles; and 5) local government units develop land-‐use and development plans and zoning ordinances. However according to the LGAF study, among the areas where Philippines is struggling to meet good governance criteria is the strong horizontal overlaps in mandates of key agencies including the DAR, DENR, LRA, and NCIP in issuing original titles, review and approval of survey plans, and maintenance of land records. This overlap affects efficiency in service delivery and prohibits access by the public and government agencies to complete and reliable land records. Furthermore, the current state of records and overlapping mandates create confusion among the public and create long-‐standing disputes owing to contradictory rulings issued by the agencies. An example is the ongoing dispute in Baguio City resulting from conflicting land titles issued by the LRA and the NCIP covering the same property. This is clearly a case of legal pluralism, which occurs when different land tenure regimes, each with their own legal framework, have legal authority over land rights and are each legitimized to resolve conflict. It gives rise to situations where there are contradictions, ambiguities or ignorance over statutory and customary rules and legal norms. Legal pluralism causes confusion as to which legal system should be and can be appealed to in a given conflict. (Food and Agriculture Organization, 2006) The LGAF study also revealed that the processes for appeal of land dispute rulings are lengthy and expensive. Cases decided by the Supreme Court in 2012 showed that in more than 90% of the cases it took more than 20 years for cases to be resolved with finality. Land-‐related cases take a very long time to be resolved, in many cases spanning decades, and in some, outliving the parties involved. The study also noted a lack of reliable data on property markets where record systems are unsystematic and unreliable as to land ownership, locations, boundaries, actual land uses and land values. There is no complete set of cadastral maps that shows titled and untitled properties on alienable and disposable lands. The USAID Country Profile on Property Rights and Resource Governance Philippines (2010) made similar observations that despite legislation and various
land reforms, the majority of rural people remain landless and there is a swelling urban population living in informal settlements. The country profile noted:
“Outdated land administration laws, an inefficient land administration and adjudication infrastructure, and a poor land information system have resulted in problems of fraudulent, overlapping and duplication of land titles and to widespread land-‐grabbing. They have also contributed to high transaction costs in securing, registering and transferring property rights, and to tenure insecurity. Inconsistent legislation and policy declarations have led to unsustainable land use and conflict over competing land uses.
Resolving Land Conflicts Land tenure conflicts are characterized as multilayered and multidimensional and best understood in the light of their historical, social, environmental, economic and political contexts. They are often nested within bigger conflicts that may be difficult to see and temporal in nature, changing over time. (Food and Agriculture Organization, 2006) The Lincoln Institute of Land Policy (2013) identified three principal approaches to resolving disputes:
• Rely on power. Use one’s leverage to force or coerce someone to act.
• Adjudicate rights. Rely on an arbiter to decide who is right. Set up adjudicatory processes to determine who has legally enforceable right and who does not.
• Reconcile interests. Try to satisfy needs, concerns, and fears of every-‐one involved.
Power-‐ and rights-‐based systems are designed to adjudicate rights, not reconcile interests. Such systems are less likely to produce durable outcomes because results can be overturned when the power balance changes. In local communities, the power balance in the local government units is always shifting with new elections and court challenges. While such approaches may allow for quick decisions, the results of those decisions are not likely to last or satisfy many of the people involved, and they might be challenged through administrative and judicial appeals. The Lincoln Institute proposes the mutual gains approach, which is based on all stakeholder interests as well as the necessary technical information. It involves stakeholders along with appointed and elected decision makers and generates information relevant and salient to stakeholders. The approach requires strong community and public engagement skill along with strong technical planning skills, and engages the public above and beyond sharing information and views. The mutual gains approach to preventing and resolving land use disputes is not a single process or technique. It draws from the fields of negotiation, consensus building, collaborative problem solving, alternative dispute resolution, public participation, and public administration. The result is a more public, collaborative process designed to tease out the range of interests and criteria, compare various alternatives, and determine which of those alternatives meet the most interests. Similarly the US Bureau of Land Management (Collaborative Stakeholder Engagement and Appropriate Dispute Resolution, 2009) adopts a collaborative stakeholder engagement and appropriate dispute resolution (“ADR”) for preventing or resolving disputes outside the conventional arenas of administrative adjudication, litigation, or legislation. Bureau policy is to seek to use collaborative stakeholder engagement and ADR processes as standard operating practice for natural resources projects, plans, and decision-‐making. By preventing, managing, and resolving conflicts or disputes through these processes, the Bureau and stakeholders can realize savings of time, budget dollars, and public resources. The existing land use system in the Philippines relies on the adjudication of rights, not the reconciliation of interests. On the other hand, the mutual gains approach which have yet to be adopted in the country, encourages contending parties to focus on mutual interests and strive to achieve mutual gains, minimizing the destructive nature of land use conflicts.
Improving Land Governance in the Philippines Several initiatives are being undertaken by the Philippine government to improve land governance as an effective instrument for addressing the interconnected issues affecting the sector The Senate Economic Planning Office in its Policy Brief “Requisites of a Land Use Policy” (October, 2005) identified five main uses of land: economic and commercial uses, food production, shelter, environment preservation and preservation of indigenous peoples. However, these uses cannot be pursued exclusively. This means that compromises and conflicts arise whenever one implements one specific land use over the other. Economic and commercial use of land may, at times, be in conflict with the food production role of land. For example, indiscriminate land conversions from agriculture to non-‐agricultural purposes that persist around the country pose the danger of food insufficiency for the Filipinos. At present, the growing population of the country has resulted in an increasing demand for housing. Because of the limited space available for mass housing, there is now congestion particularly in urban areas, and this is where the use of land for shelter comes in conflict with other interests. Due to the rapid need of urban centers for housing and the lack of a national land use policy to guide planners, lands allocated for other purposes near these areas (such as agricultural) are utilized for housing. According to the DENR (1997), the Philippines’ natural resources “have been, and continue to be, subjected to numerous yet conflicting uses that include forest production (for wood and other forest products like resin, pulp and paper), food production, human settlements, watershed, tourism/recreation, mineral production, energy production, biodiversity conservation, industrial site, and
other economic activities or any combination of the above.” Increasing population, resource exploitation, hyper-‐urbanization and industrialization have put much pressure on the biological and physical well being of the environment. The enactment of IPRA raised some issues on property rights especially regarding ancestral lands rich with mineral and energy resources. At the House of Representatives, Rep. Kaka Bag-‐ao filed House Bill No. 04382 entitled “National Land Use and Management Act of Philippines” on 12 May 2014. The bill was approved by the House on Third Reading on 02 June 2014 and transmitted and received by the Senate on 04 June 2014. In the Senate, Sen. Loren Legarda filed a corresponding Senate Bill 07 entitled “An Act Instituting a National Land Use Policy” on 01 July 2013. This has been a two-‐decade old proposal to ensure the proper allocation of land to various uses and that land conversion and development are guided by a framework to meet the country’s long term requirements for food security, settlements, industrial and economic development, among others. A long process towards harmonization of implementing policies and procedures of the DENR, DAR, NCIP and DOJ/LRA in the issuance of tenurial instruments in public lands was completed, leading to a Joint Administrative Order in 2012. The order aims to address not only overlapping jurisdiction among the land agencies but also operational issues and conflicting claims in the implementations of their respective programs. The government should also consider setting up of dedicated land courts and/or land adjudication boards to speed up the resolution of land cases. Serious reforms in the administration of justice system including the organization of court records to help in monitoring of land cases are warranted to minimize the social and financial costs of delays. The persistence of strong horizontal overlaps among land agencies will continue to deprive the public access to reliable, up-‐to-‐date records discouraging investments and affects land market activity preventing the realization of the full potential of land and the resources thereat. Conclusion More often concession, exploration and development rights given by the central government through the market economy’s land titling and resource contracting system are inconsistent with other property rights. Government regulators and resource developers must carry out due diligence to be informed as to the laws, regulations, treaties and standards, and also international standards of practice associated with land use and conflict management. Inconsistent legislation and policy declarations have led to conflict over competing land uses linked with overregulation, overlapping policies and jurisdictions and weak monitoring for compliance. The government must strive to secure property rights for land tenure holders and resource contractors, implement consistent land and resources policies, and provide incentives for improved sustainable resource management.
Fernando “Ronnie” Penarroyo is the Managing Partner of Puno and Penarroyo Law ([email protected]). He has negotiated numerous land access agreements with local government units, landholders, indigenous peoples and host communities on behalf of land development, mineral and energy companies.