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UNIVERSITY OF THE CORDILLERAS

College of Arts and Sciences

SOC SCI 102N (Philippine Culture, Heritage, and Indigenous Communities)

Unit 5: Indigenous People’s Rights Act

Topic 2: Natural Dimension of the Indigenous People’s Worldviews
Objectives:

The natural dimension of a worldview consists of the people’s notion of nature or how they picture
the natural environment, their attitudes towards it, and the impact of these attitudes on their way
of life (Jocano, 2001). The selected reading materials aim to shed light on the natural dimension
of the Cordillera IPs’ worldviews some aspects of which were already introduced in the previous
modules.

Learning Outcomes
1. develop an understanding of the Cordillera IPs’ concept of land and the factors that are
changing their attitudes toward it
2. appreciate the indigenous resource management in the light of UN SDG 15

Key Concepts to Understand

circular trap communal land rights customary law
indigenous corporate land rights individual land rights legal pluralism
muyong system opportunity structure tenurial rules

This module does not only introduce the natural dimension of the Cordillera IPs’ worldviews
but also aims to present the fact that even before the UN adopted SDG 15, the Cordillera IPs, like
other IPs in the Philippines and other countries, had been observing practices that promote
sustainable use of their natural resources. It is therefore suggested that as you read the following
excerpts, you also try to appreciate the indigenous resource use and management practices in
relation to UN SDG 15, which the unstats.un.org (2016) describes as:
… Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably
manage forests, combat desertification, and halt and reverse land degradation and halt
biodiversity loss
Preserving diverse forms of life on land requires targeted efforts to protect, restore
and promote the conservation and sustainable use of terrestrial and other ecosystems.
Goal 15 focuses specifically on managing forests sustainably, halting and reversing land
and natural habitat degradation, successfully combating desertification and stopping
biodiversity loss. All these efforts combined aim to ensure that the benefits of land-based
ecosystems, including sustainable livelihoods, will be enjoyed for generations to come.

Reading 1: (Excerpt) Local territorial boundaries and resource control. Prill-Brett, J. (2015). Tradition
and transformation: Studies on Cordillera indigenous culture. UP Baguio: Cordillera Studies Center

Tenurial Rules
Tenurial rules refer to a system of patterns of behavior that specifically serve to control a
society's use of environmental resources ... There are different social relationships which have
developed over time between Cordillera groups and their perception of land. Since there is no
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existing land tenure system that bestows all rights over any parcel of land to a single party, it is
instructive to examine the tenure system by referring to the various types of rights
and duties that are recognized and the parties which hold these ...
"Property" and "ownership" do not refer to property per se, but to rights in relation to
properties that are owned. Popular usage may, however, speak of property itself as being owned.
Thus, ownership of land refers to the possession of a right or rights in respect to that land, and
ultimately the legal or customary power to exclude other persons from exercising such rights
(ibid.).

Types of Land Rights

There are generally three types of rights to land which are exercised among the indigenous
Cordillera communities … : (1) communal land rights, (2) indigenous corporate land rights, and (3)
individual land rights. The three types may be
found to operate simultaneously in certain Cordillera communities, especially in the areas
embraced by the present Mountain Province; other groups may work with only two types of land
rights. Upland communities which have shifted to a predominantly commercial agriculture display
a strong tendency toward the acquisition of individual rights ...
Communal land rights. These are exercised by all citizens of a village community within a
defined territory, in relation to the exploitation of resources. These communal lands are usually far
from the village but are found within the boundaries of the community. These are usually forests
where no permanent improvements on the land have been made by any of the villagers. Any
member of the community has equal right to exploit the forest for lumber, firewood, forest
products, and wild game; this is according to custom law pertaining to the exploitation of forests.
The cutting of trees is limited only to household and village construction needs. Lumber may not
be taken out of the village or used for commercial purposes (i.e., for sale). Communal rights to
land do not allow the alienation of land to non-citizens of the village. This rule also prevents non-
citizens from exploiting any natural resources without the permission and consent of the villagers.
Fines are generally imposed on the offender by the community through the elders and barangay
officials.
Indigenous corporate rights. These are rights to common land belonging to a descent
group, family, or ward (see Prill-Brett 1987b). These kinds of land are called tayan among the
Bontok and saguday among the northern Kankana-ey groups. Corporate land may include areas
that were originally swidden gardens but were reforested by a particular individual. In some cases
the land may have been originally communal forest cleared by a founding ancestor who made
improvements such as stone-wall fences, ditches, wooden fences, or tone monuments to mark
the boundaries. If the arable area is close to any water source, the land may be continuously
cultivated from generation to generation. This land could also be converted into rice terraces. The
continuous occupation by the same descent group members legitimizes prior rights. Thus, rights
are devolved to all the descendants of the founder, with usufruct rights. Corporate land may not
be alienated by individual members since it belongs to the group in common. Any member who
wishes to cultivate a portion of land or to gather wood from the area is free to do so without asking
anyone's permission. However, non-members may exploit corporate property
only with the permission of right-holders. There are rules which cover informal contracts of the latter
sort, ownership of produce, permanent improvements, and the planting of trees on corporate
land. Sale of corporate land is only possible during an emergency situation. On
such an occasion, anyone from the descent group is given the first opportunity to purchase the
land in exchange for the needs which the corporate group has to fulfill (i.e., sacrificial animals,
death paraphernalia, cash, and the like). In this case the rights become restricted to the
purchaser, with the dissolution of rights of the rest of the members of the descent group in relation
to the property. The property transferred then becomes individual property.
Individual rights. These refer to rights over land (such as irrigated rice terraces, residential
lots, and hillside tree lots) which have been devolved to individuals. Rice terraces are generally
perceived by the Cordillera groups as the most valuable type of land. Where there is an input of
considerable labor and materials including the building of irrigation canals to divert water from a
source to the pond field …, this kind of property is inherited by individuals (usually upon marriage)
and later on managed by the family. In the inheritance pattern, the more common rule is that the
eldest child (primogeniture), regardless of sex, is given the right (under customary law) to acquire
the lion's share of inherited property. Thus, the order of birth is important in defining who has prior
rights to parentally inherited property. Childless couples may, upon divorce, get back their own
individual properties; when one spouse dies, his/her property reverts to any of his or her own
kinsmen, generally on the basis of whoever shoulders the mortuary expenses.
Sale of property is only resorted to during an emergency and upon securing the consent
of the parent who inherited the property. However, in the sale of rice fields, it is a pan-Cordilleran
practice to offer the property first to close relatives before it is offered to more
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distant relations or to others outside the kin group. Rice terraces are traditionally alienated to meet
mortuary requirements which the family of the deceased was unable to produce. Other reasons
for the transfer would be the need to raise the required fine for violation of
customary law, and the need for cash to pay hospital bills. At present, property is also sold to pay
for children's education or to buy land elsewhere, for example, in Tabuk, Baguio, or Nueva
Vizcaya. The preceding section briefly describes Cordillera land resources, how they are
perceived, and the rules that govern their management. The following section will discuss how
these indigenous land concepts have come into conflict with national laws on land management.

Conflict of Laws
There is a widespread notion that the indigenous communities do not have a clear
concept of land ownership. This notion, aside from being misleading, is totally false. The national
land laws, specifically those pertaining to land "ownership," are premised on the Regalian
Doctrine, which asserts that all lands in the Philippines belong to the State. State lands are classified
into three categories: private, public, and reservations. Private rights to land are acquired from
the State through grants, purchase, and/or other forms of transfer which are
recognized and covered by State laws. The symbol of "ownership" resides in a piece of paper or
document called a "title." Lands not covered by paper titles fall under the classification of "public"
land and "reservation." Following the above line of reasoning, virtually all lands occupied by
indigenous communities would therefore be classified as "public" land or "reservation." Under
certain provisions of the law, most of these are non-alienable and non-disposable. Such provision
is found in PD 705, otherwise known as the Revised Forestry Code, which states that no land in the
public domain 18% in slope or over can be classified as alienable or disposable for agricultural
and settlement purposes.
The 18% slope rule is inapplicable to the Cordillera where rice-terraced agricultural lands
are primarily found in lands that are from 70% to 100% slopes ... Furthermore, many settlements are
located in lands which are certainly over 18% in slope. These are, therefore, non-alienable and
non-disposable for paper titling to members of the cultural communities, but are often open to
exploitation by those favored by the State. (Ancestral Domain title and Ancestral Land title are
now allowed by the IPRA.)
During the height of the Chico Dam issue, a new presidential decree was released, P.D.
1559 of 1979, stating that" tribal Filipinos shall, whenever the best land use of the area so demands
as determined by the Director, be ejected and relocated to the nearest accessible
government resettlement area." While such lands, "as determined by the Director," cannot be
titled by the indigenous occupants due to the provisions of P.D. 705, such lands can be (and have
been) awarded to government or private entities and other exploitative groups. The decree
further empowers the government to establish "agro-industrial" projects in ancestral territories. The
decree and its implementing order also established a cumbersome bureaucratic procedure
whereby ethnic minority citizens living in un-exempted ancestral land can acquire "Land
Occupancy Certificates."
There are certain decrees which appear to recognize and, in theory, protect ancestral
rights such as the Ancestral Land Decree (P.D. No. 410 of 1974). This declares all agricultural land
occupied and cultivated by members of the national cultural communities since 1964 as alienable
and disposable, although it has not been implemented. In fact there are certain provinces that
have been exempted from this decree, such as Benguet, Abra, Panay, Negros,
Quezon, and Camarines.
There are other confusing and conflicting laws affecting the indigenous land tenure system.
These laws state, on the one hand, that land rights of tribal or cultural communities are recognized
by the State, and yet the reality is contrary to what is stated. For instance, the Bureau of Forestry
Administration Order No. 11 of 1970 states that all forest concessions "shall be subject to the private
rights of cultural, minorities within the concession or licensed area as evidenced by the
occupation existing at the time a license is issued by the government, or other muniments of title
and the area on which such private rights exist shall be deemed excluded from the concession or
license area." Another law which should reinforce the above is found in Sec. (g) of P.D. No. 1414
of 1978, prohibiting the granting of forest concessions in provinces populated by ethnic minorities,
unless the Office of Muslim Affairs and Cultural Communities (formerly PANAMIN) certifies that
there are no ethnic minorities living within or having a claim to any portion of the area being
applied for. This law has been, if ever, rarely applied. It apparently was not applied to the
Cordillera communities in Abra which were affected by the Cellophil Resources Corporation.
In 1973, the Department of Agriculture and Natural Resources awarded to the Cellophil
Resources Corporation Timber and Pulpwood License Agreement No. 261 covering 99,565
hectares, and another 99,230 hectares to a sister company covering the provinces of Abra,
Kalinga-Apayao, Mountain Province, Ilocos Sur and Ilocos Norte. Although the concession areas
are located within the territorial boundaries of Cordillera indigenous communities, the government
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and the Cellophil Resources Corporation (CRC) apparently considered the occupants as non-
existent. Another aspect of the grant is that the area covered is largely within the Cordillera Forest
Reservation, which is supposedly non-alienable. No effort was ever made to reclassify the
reservation so as to justify the grant.
What is disturbing about these "development" enterprises is that the communities affected
by their activities become more "underdeveloped" from the ecological, social, and economic
standpoints. The ecological effects took their toll on the Tingguian communities (Abra) affected
by the CRe. In exchange for the "low-level" employment offered the community by the CRC, the
affected community realized that they were giving up an economy based on sufficiency of
agricultural production, river and brook water supply, forest products, and pasture lands. In return,
they faced floods, landslides, pollution of their rivers, degradation of their forests, and drought ...
It appears from the picture we get of Filipino indigenous groups and their struggle against
the encroachment and usurpation of their lands, that this problem of usurpation may have been
facilitated and sanctioned advertently or inadvertently by the offices supposedly
responsible for the management of their natural resources. One of the most notorious violators of
the rights to ancestral land of indigenous communities, from northern Luzon to the Mindanao
region, is the Department of Environment and Natural Resources." This Department awarded all
kinds of concessions which affected indigenous rights to land, water, minerals, and forest
products. Most of the lands proclaimed as Forest Reserves have within their confines
centuries-old villages, agricultural lands, and private forests, held in private ownership by the
Cordillera indigenous communities.
The most disturbing part of this scenario is that these land laws completely disregard the
prior rights of the indigenous groups to their ancestral domain. Thus, the people get classified as
"squatters" on "public" land. Although this is the current popular assumption, the fact is that as far
back as the early Spanish colonial period, there were indeed laws (Laws of the Indies) which
recognized Native Title ... The existence of native rights to ancestral land was again emphasized
during the early American colonial period when this was challenged all the way to the U'S,
Supreme Court (… Carino v Insular Government, …). In this case, the colonial and U.S. government
claimed the land in question was public and opposed Carino's efforts to obtain recognition of
private ownership and acquire a paper title. In a 1909 decision of the U.S. Supreme Court, penned
by Justice Oliver Wend ell Holmes, the court ruled that ... every presumption is and ought to be
against the government in a case like the present... when as far back as testimony or memory
goes, the land has been held under a claim of private ownership it will be presumed ... never to
have been public land.
Justice Holmes further remarked that Spanish decrees and laws "indicate pretty clearly
that the natives were recognized as owning some lands, irrespective of any royal grant." Lynch …
informs us that the validity of the time immemorial presumption has been reiterated at least six
times by the Philippine Supreme Court, most recently in June 1982. The strongest private property
right to "public" lands is possessed by indigenous groups who, along with
their predecessors-in-interest, have continually occupied and utilized an area since time
immemorial.
It appears then that national laws recognize four distinct tenurial rights as well as a variety
of correlative rights which benefit indigenous occupants. Lynch … points out that each of the
rights emanates from the national laws recognized by the Philippine legal community as valid and
in force as of May 1985. Unfortunately, these laws are often not effective, since tenurial rights which
upland citizens acquire by virtue of national laws are often not recognized by national and local
governments.
What then is the validity of the "time immemorial" presumption and of "native titles?" Since
ancestral land has never been "public," is it necessary for legal power to classify this land as
agricultural, forest, timber, or mineral? The national law considers only agricultural land
as alienable and disposable. It is disheartening to know that after the Carino decision, the
executive and judiciary branches have not only ignored the time immemorial presumption, but
have illegally extinguished the private property rights of many.

Toward a New Regime of Property

The concept of territory and boundaries appear to have been established by most
Cordillera communities through prior exploitation, continuous occupation, and the defense of
their territories from outside encroachment. Through this process, most indigenous communities
have established their ancestral domain. The collective interest of each community lies in its ability
to keep the territory intact so that they will continue to provide the territorial base for the
community for future generations. Within this territorial base, community members exercise their
self-determination in the control of their land and other resources for the benefit of community
members ...
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Indigenous tenurial rules allow everyone in the village access to land. Thus, virtually no
families in the indigenous communities are landless. There are several rights to land access which
belong to individuals, families, groups in-common, and communal holdings of the village.
Indigenous land tenure laws are generally flexible and more concerned with minimizing inequality
among citizens of these indigenous communities through the tenurial rules which prevent land
concentration in the hands of a few. This is controlled by the rules where land is sold in favor of
relatives, or rarely sold to non-villagers. Although there is inequality where the wealthier members
of the community control the most productive resources such as rice fields,
the indigenous law balances this out through the ritual process. The wealthy members are
traditionally obliged to perform numerous public feasts where their surplus produce (animals and
grain) are redistributed to community members, usually in the form of food and drink. These
community feasts are also important occasions for reinforcing village consciousness and solidarity.
Thus, in the traditional communities, the tenurial patterns point to two important postulates. First,
land is generally not alienable to those from beyond the community. It is a source of life - it has
mystical and sacred elements. Without land, a family or community
has no complete existence. Land, including house sites and burial sites, is the anchor and the soul
of the community ... These perceptions are not common only to Cordillera groups, but could apply
to most of the indigenous communities of the Philippines and Southeast Asia.
Landlessness has been suggested as an artifact of civilization. The establishment of legal
codes by colonial governments in the Philippines has transformed whole communities and their
land resources into properties of the state. The introduction of paper titles has been responsible for
viewing land as a commodity to be bought and sold, or otherwise exploited for the profit of
individuals with paper titles. This has been clearly demonstrated in the Benguet region, most
especially in Baguio and surrounding areas.
The introduction and encouragement of individual paper titling of common property
among the Cordillera communities should be reassessed as to its possible implications. This move
may result in unintended effects. Would this not encourage individuals to title
communal lands or corporate common lands in order to render the other right-owners landless?
This would upset the indigenous system where lands which have not been improved cannot be
owned by individuals, since this would deprive community members of their usufruct rights to the
land.
Furthermore, with paper titles, there is the tendency to freely transfer lands to outsiders in
transactions which would go against the customary law. Land could then be sold to non-villagers,
even without the knowledge of other right-holders. Indigenous groups in the Central Cordillera
traditionally have no paper titles to their lands because they feel that the acquisition of
paper titles would be negating their "time immemorial" ownership of right to their ancestral land in
favor of the national government. This has been stated clearly and publicly in a unanimous
decision collectively reached by four elders (including Macliing Dulag) from Kalinga and Bontok
during the height of the Chico Dam issue:
If we accept, it will be as if we ever doubted that we belong to the land; or that we question
our ancient law which constituted for us Kalinga (land) and Bontok (land) our ili, which
includes the entire reaches marked bugis (tribal territory) by our vochong (peace pact). It
designates our domain of responsibility, it is our native land... Long experience has shown us
that outsiders' law is not able to understand us, our customs and our ways. Always it is unjust,
right what is not right ...
The non-recognition of native titles has definitely led to exploitation by favored groups who
profit from indigenous community lands at the expense of the minority groups. People who are
deprived of their land are also deprived of their means of livelihood-their means of self-sufficiency
and self-reliance-and of their dignity, pride and identity. The forced displacement of indigenous
communities from their ancestral domain is a painful experience which produces
not only physical but also psychological damage. Ironically, and unfortunately, such
psychological damage cannot be statistically measured and rendered into monetary
equivalents.
Land is said to be the basis of wealth and social position, therefore, people have low status
if they have no land. Since the landless are poor and of low status, they are under-represented in
political, economic and social matters of importance to themselves
and their communities. Since the landless are under-represented, they are powerless to do much
to improve their condition. Cool … has referred to this condition of poverty and landlessness as
"circular trap."
There is a need for a new regime of property congenial to indigenous cultural communities.
Central to such a new regime of property should be the concept of ancestral domain. The effect
of such a domain is to vest control, possession, and enjoyment of the domain in a corporate body.
The ancestral domain should be in perpetuity, and should not be transferred or alienated, even
by the community itself … as enshrined in Cordillera customary law.
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Within the ancestral domain, the people should be allowed to continue practicing their own
customary laws which they consider important to the functioning and continuance of their social
system as part of the larger Philippine Republic. Should they, however, so decide in the future to
adopt the laws of the larger society to apply to their domain, this should be truly a community
decision, pursued as a true application of self-determination. …

Paradigm Shift and the IPRA

The passage of the IPRA law is the result of paradigm shifts in the attitude of government
agencies toward the ICCs/IPs on two counts. First is the paradigm shift in the state legal centralist
ideology …, where the state holds a monopoly on the exercise of the law, administered by a single
set of state institutions ... The IPRA law has finally challenged the legal fiction called the Regalian
Doctrine … in relation to IPs' rights to their ancestral domains and ancestral lands, as well as the
customary laws that guide resource management. The state now recognizes the existence of
another system of law, particularly customary law."
Second is a shift in the general perception that indigenous forest dwellers were the
degraders of the natural environment through their unsustainable resource management
practices, i.e., swidden farming or shifting cultivation. Indigenous people are now viewed as
natural resource conservers through their sustainable indigenous knowledge practices, guided by
their customary law. Therefore, the rights to the land that they have protected and managed
sustainably should be recognized, and furthermore their rights should be protected by law.
The Philippine government's recognition and granting of ancestral land rights and
ancestral domain rights to IPs and communities through the passage of the IPRA has been the
result of policy conflict over land access, use, and control. The seeming inability of government to
control and manage natural resources under the classification of public domain has led to a
general perception that these resources are open access resources." The resulting intensification
of forest degradation and unsustainable forest extraction has prompted the government to
change its policies towards IPs/ICCs that inhabit the forest.
The IPRA law also provides for the creation of the NCIP, which is an independent agency
directly under the office of the President. It is the primary government agency responsible for the
formulation and implementation of the policies covered by the IPRA. Among the responsibilities
of the NCIP is the mandate to issue Certificates of Ancestral Land Titles (CALTs) and Certificates of
Ancestral Domain Titles (CADTs) over areas that have been earlier awarded CALCs and CADCs
by the DENR (IPRA, section 11, "Recognition of Ancestral Domain Rights").
Up until this time, colonial and post-colonial governments had never recognized indigenous
collective land rights, and most especially ancestral domain claims. But in fact, many ancestral
lands should actually be classified as private, and should not have been designated
as public lands, as was decided in a 1909 landmark decision of the United States Supreme Court"
... The IPRA allows the titling of individually owned land under the provisions of the Land Registration
Act No. 496 of 1902. While all lands with slopes of 18% and above are classified as Public Land,
and therefore, non-alienable and non-disposable, under the IPRA, individually owned lands which
are classified as agricultural, residential, pasture, and tree farming, including those with slopes of
18% or more, are alienable and disposable agricultural lands ... This law therefore allows the titling
of agricultural lands such as the Cordillera rice terraces, some with slopes ranging from 60 to 80
degrees.
In the Cordillera experience a singularly important characteristic of an ancestral domain is
the effective control of a distinct community over a territory … However, this concept is not
universal to all communities applying for a CADC. DAO 02 simply prescribes possession/
occupation as the primary requisite for eligibility to a claim of ancestral domain. By itself, this
provision does not distinguish indigenous communities as to levels of integration, especially as
these still possess concepts of territory and territorial control, which are indicators that correlate
positively with the observed sustainability of resource management.
A second important characteristic of an ancestral domain is the existence of operational
concepts of territory and resource control. This is evidenced through the existence of jural rights,
duties, and obligations that govern the management of common property resources within an
ancestral domain. The communities that have exercised the concept of domain include the rule
of exclusion, which is evidence of territorial and cultural integrity. Sustainable indigenous resource
management practices are indicators of an integrated socio-cultural system ... The domain
historically covered only the territory of a distinct community in the Cordillera context, and most
likely this is so elsewhere among most of the Philippine ICCs. Operational concepts of territory and
resource control have evolved over time in the socio-ecological context of each community, but
traditional ancestral domain generally covered only the territory of one distinct community, each
village/community being an autonomous socio-economic and political unit.

Some Problems Arising in the Awarding of CADCs

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Thus, the awarding of a CADC over an entire administrative area (i.e., a municipality or a
province) has no fit with any traditional regional mechanism for managing such an ancestral
domain. I have argued elsewhere that this could create serious problems of conflicting users,
resource competitors, and boundary conflicts leading to weak ecological considerations in
resource management practices, as well as inequity in the access and control of resources …
Another problem is the tendency for government to assume that Cordillera communities,
and other Philippine IPs, are homogeneous, which then leads to problems in the awarding of the
CADCs. Thus, some IPs have been awarded their CADCs but the delineation process failed to
include important areas within their ancestral domain. Examples include the Agta of the
Cagayan, and other IPs of Palawan and the Visayas that traditionally have been coastal dwellers
but who failed to gain title to coastal area settlements and to shorelines and the sea ... Other
ancestral domains traditionally identified by the indigenous inhabitants have been permanently
occupied and developed by populations composed of migrants from other
Philippine ethnic groups. There is, therefore, a need for implementers to be well informed, and to
have a good understanding of the historical development of the domain, and the type of
property regimes and resource management practices, in order to enable government and
non-government agencies to effectively assist in the identification, delineation, and awarding of
the appropriate tenurial instruments. There are, for example, several distinct types of property
regimes existing among the IPs that should be taken into consideration in the identification and
delineation of ancestral domains ... Furthermore, it is important for organizations pushing for IP
communities' ancestral domain titles to consider that the development of rights to natural
resources are products of local history, ecology, changes in resource conditions and use, and the
social relationships that are often the outcome of negotiation.
A distinction can be made regarding the types of communities found in the Cordillera in
relation to the concept of ancestral domain.
• Communities that have a homogeneous ethnic population with a long settlement
history (e.g., over several centuries), allowing for the establishment of a strong
attachment to a territory/domain. This includes the residential area, place names of
sacred sites, burial sites, and the natural resources which have been exploited and
managed through rules governing rights and obligations. Non-citizens of the community
are excluded from exploiting natural resources that belong to each distinct community,
without prior permission and consent. These communities are of two kinds: (a) traditional
swiddening (uma), and (b) wet rice agricultural communities, usually with swiddening as
a complementary livelihood activity ...
• Communities that have been more recently established by migrants from neighboring
communities, or from other places in the Cordillera. Most of these newly established
communities have been created by pioneer farmers … who have converted the mossy
forest, second growth pine forest, or dipterocarp forest into agricultural land (e.g., Mount
Data, Mount Pulag lower slopes, Mount Polis lower slopes and areas of Apayao forests).
Most of these highland farms are planted with cash crops, encouraged by the market
demand for temperate vegetables and high value crops. The act of clearing and
improving the forest, often through permanent gardening, is a strategy used in gaining
possession of what is perceived by the claimants as an 'open access' resource. The
property system resulting from this activity, and the preferred tenurial security instrument
is private individual right to areas where the farmers have invested money and labor in
permanent land improvements. Some of these lands have already been tax
declared/registered. It has also been observed that communities engaged in truck
farming usually lack the concept of common property resources, together with the
absence of traditional management practices and the accompanying rituals. Also
observed is the absence of the concept of ancestral domain, since these areas were
only recently settled.
In the wet rice agricultural communities, especially those in the Mountain Province,
southern Kalinga, and northern and eastern Benguet, the ili (village) is the term that refers to a
cultural-geographic area, a unit that is the appropriate entity to exercise rights over an ancestral
domain. The ili is historically inhabited by a homogeneous population that can trace their descent
from common ancestors, who were the original founders of the village, and who share and
manage common property resources, governed by rights and obligations, reinforced through
myths and rituals. Within the ili, people are accountable to one another through long-term
associations of mutual trust. Citizenship is primarily based on relationships of birth traced
through ancestors, and affinal relationships through intermarriage, including the exercise of rights
and obligations in relation to shared common property resources within a well-defined territory ...
This defined physical and cultural territory is referred to as the ancestral domain of a distinct
community.
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While the Philippine state has been well-intentioned in the recognition and awarding of
ancestral domains to indigenous communities, failure to consider cultural diversity in the
identification, delineation, and management of ancestral domain resources may result in
unforeseen and unintended consequences.

Unintended Consequences in the Implementation of the IPRA

The enthusiasm of government and some non-government organizations (NGOs) to fast-
track CADCs has resulted in some inappropriate applications of ancestral domain." These
unintended consequences may have implications for policy making, and issues arising in the
implementation of the IPRA.
The DENR's earlier widespread practice of giving CADCs to units larger than the traditional
communities may appear to be efficient in simplifying the application process. However, this may
not be an effective strategy to foster sustainable resource management.
The procedure for application does not always start at the level of the specific community
occupying the domain. A people's organization …, or even the local government unit (LGU), can
submit a claim in the name of the whole barangay, or even the municipality, which is not
necessarily equivalent to the socio-cultural definition of the area covered by the domain.
The IPRA is intended to improve the IPs' quality of life and promote unity and justice among
the indigenous groups, and thereby promote sustainability of indigenous resource management
practices. However, in the implementation of the IPRA, particularly in the
identification and delineation of ancestral domains, some problems have created conflict within
and among the IP communities. This situation has contributed to the increasing breakdown of the
internal jurality, and to the occasional invention or reinvention of custom law …, as well as the
introduction of new structures leading to inequity in access and control of common property
resources. This fosters the emergence of opportunity structures that have been used, and are
being used by elites within and outside the community. Thus, the intended objectives of the
awarding of ancestral domains to ICCs/IPs may not be realized due to certain erroneous
assumptions. The increasing delegation of political functions to the LGUs which has been a very
welcome government move has somehow affected the implementation of the IPRA …
The decentralization and devolution programs that transferred responsibility for resource
management to local government … has resulted from the central government's failure to
effectively manage natural resource systems. However, with devolution, an increasing incidence
of boundary conflict has been observed which involves bordering provinces, municipalities and
barangays. These conflicts have often been caused by overlapping and conflicting programs,
resulting in competition over resources, control, and management. Municipal level programs are
prioritized according to the size of the target population. This encourages the community leaders
to try to expand their territories to include bordering barangays to gain access to more
government resources such as the Internal Revenue Allotment share. At the community-barangay
level, the LGU can independently decide the course or direction for barangay development.
Some of the powers enjoyed by such LGUs include the right to be consulted as stakeholders within
their respective jurisdictions regarding development projects and programs. Thus, there is the
tendency for some local government officials to make unilateral political decisions in matters
concerning the ancestral domain management of resources and thereby inadvertently
undermine the awarding of Ancestral Domain titles to some IP communities. One such example is
the case reported by the regional newspaper Zig-Zag Weekly on January 8, 2006 ("Bakun LGU
Rejects CADT") and February 26, 2006 ("Bakun Folks Dispute Officials Action on CADT"). Bakun
municipality of Benguet province is the first municipality to be awarded a Certificate of Ancestral
Domain Title (CADT) under the IPRA. However, this Domain Title has been rejected by the
Municipality of Bakun through a resolution by its local government officials. This development
came about after the municipal-level officials passed a resolution on December 20, 2005,
rejecting the ancestral domain title offered by the NCIP. The unilateral decision to pass the
resolution was anchored on the allegation that some communities were not included in the survey
conducted by the NCIP. The exclusion could affect the land area of Bakun as well as the Internal
Revenue Allotment share from the national government.
It has been very clearly stated in the IPRA which entity is the appropriate holder of the
Ancestral Domain Title." In the above case, however, it seems to be the Municipality of Bakun, not
the traditionally autonomous communities (ili) discussed earlier in this paper. It appears that the
municipal government officials are in fact the ultimate decision-makers in relation to ancestral
domain matters, since the process involves political boundary jurisdictions. In such a
situation there is a prospect that the communities' ancestral domain governance and self-
determination will be compromised, if the community vs. municipal government issue is not
resolved early in the process.
The above case shows some of the unforeseen and unintended consequences that have
surfaced in the awarding of the CADTs on the municipal level. It has also been observed that the
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indiscriminate awarding of CADTs to whole municipalities could also create an

opportunity structure for elites to claim land under the venue of 'communal' domain, and later
work on privatizing the land through Tax Declarations. Since the CADT covers the domain of
several communities it would be difficult for community members to police the municipal domain
to prevent the encroachment of individuals who might survey unoccupied common property
forestland for land registration. Thus, checks and balances need to be in place to ensure that
local elites or other politically powerful groups do not monopolize benefits and community
decision-making. The process should acknowledge the multiple interests among different groups
and give special attention to the livelihood needs of the poor members of the community,
especially since common property resources have functioned as safety nets for the poorer
members.
The implementation of the IPRA appears to have intensified the problem of political
boundary conflict, which deals largely with issues of overlapping claims to traditional territories
versus political boundaries." This has been largely brought about by resource competition leading
to encroachment and shifting of boundaries by the contesting municipalities to gain more
territorial jurisdiction. Under such conditions, this decentralization scheme will not necessarily be
any more successful in combining the protection of forest and natural resources with the provision
of sustainable livelihoods than the previously centralized system if checks and balances are not
installed.
The implementation of the IPRA has brought about both negative and positive
consequences. Some of these consequences have been triggered by several factors impinging
on these communities, such as the introduction of new structures and rules with the introduction
of new technologies, the increasing commercialization of agriculture and forest resources, the
introduction of commercial crops replacing subsistence crops, infrastructures, different
conservation views, often with conflicting policies introduced by national and international
conservation agencies, and the superimposition of nationalization policies interacting with
population increase. These factors are contributing to the breakdown of traditional institutional
arrangements.

Conflicting Perspectives from Natural Resource Conservation and Protection Agencies

The DENR and the Department of Agrarian Reform (DAR) have both been involved in the
implementation of DAO 02, on the State's recognition of ancestral lands and ancestral domains,
with the DENR as the lead agency. This has inadvertently created problems with the awarding of
overlapping claims to indigenous communities by both departments ... Even among the
government departments themselves, policy formulation is most often uncoordinated because
each department wants to assert its institutional competence and bureaucratic expertise.
However, this appears to be changing with the integrated development approach, and different
government departments appear to have welcomed a collaborative and integrative process.
National and international sustainable forest management and biodiversity conservation
programs and projects have been introduced to areas that have been claimed by indigenous
communities as falling within their ancestral domains. Although most of these programs and
projects are well meaning, problems are often approached exclusively with regard to their
national and international dimension, and the resulting policies thus often fail to consider existing
indigenous resource management practices. Often objectives come into conflict with the
indigenous communities' common property resource management ... Under such conditions,
some indigenous claimants have invoked both the customary and national laws to gain new
access to natural resources, which results in inequity among indigenous community members and
non-sustainable resource management. This resulting discrepancy between indigenous resource
management practices and actual management practices such as commercial logging and the
shift from swidden to commercial farming in mossy forests is illustrated by the following cases.
Issues in the Recognition and Use of Customary Law and the Emergence of Legal Pluralism.
The State law has been criticized for being too general in its applicability and often failing to
address the diversity of issues existing in the indigenous communities. The premise of any national
law is that it can meet local problems with a generalized solution. However, with the
implementation of the IPRA, the state now recognizes the existence of another legal system within
the Philippine state, defined as customary law. 'Customary law,' as defined in the IPRA, refers to a
body of written or unwritten rules, usages, customs, and practices traditionally
observed, accepted and recognized by the respective ICCs/IPs. The law provides that:
The state shall protect the rights of ICCs/IPs to their ancestral domains to ensure their
economic, social, and cultural well-being and shall recognize the applicability of
customary laws governing property rights or relations in determining the ownership and
extent of ancestral domain. (IPRA, section 2[b])
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and declares that their right to Ancestral Domains include:

Right of the IPs to resolve land conflicts in accordance with the customary laws of the area
where the land is located, and only in default thereof shall the complaints be submitted to
amicable settlement and to the Courts of Justice whenever necessary. (IPRA, section 7[h])

Customary law evolved locally, largely in response to the management of natural

resources and in resolving conflicts that arose. It responds to the different property regimes existing
within the particular community" and the social relationships that revolve around these ... It
encompasses the rights and responsibilities of individuals and groups involved in the management
of resources and the rules governing conflict management, including conflict arising from within
the community or across communities such as those pertaining to boundary disputes, ownership
of hunting grounds, forest stands, irrigation water and pasture lands, inheritance disputes, murder,
theft, destruction of property, and violation of sacred sites …
Customary law is found to be strong in its application to communities with the following
characteristics: practicing a subsistence economy with a simple technology, maintaining a
population balance in relation to resources, and being culturally homogeneous, with minimal
exposure to commercial farming and a cash economy, and with a low out-migration record. On
the other hand, customary law is found to be weak, or virtually absent in relatively new
communities that have shifted to commercial crop production and that depend largely on
interaction with the cash economy. The latter communities often exhibit natural resource
management practices that are non-sustainable."
Customary law is able to adjust to gradual changes in resource management, but is unable
to adapt quickly in cases of abrupt changes brought about by government policies that are
incompatible with the existing conditions within the traditional system.
Customary law governing resource management is not uniform for all IPs, since the rules on
property regimes differ according to the economic context (i.e., livelihood strategies such as
hunting and foraging, agriculture involving swidden or irrigated farming, cash crop production,
cattle grazing, or fishing). In the central Cordillera, communal resources such as swidden land
have been the safety net for community members who do not have enough inherited irrigated
rice land ... Thus, usufruct right is generally the rule in common property resource management.
However, with the identification and delineation of ancestral domains, it is the 'communal'
/common property resources that are being contested and claimed by no less than the IPs within
the political boundaries of several municipalities.
As the national law interacts with customary law, it in one way or another transforms both.
Legal pluralism results in what F. von Benda-Beckmann … has called a 'jural jungle' where people
are influenced in complex ways by different legal conceptions and in which they use these
conceptions in various purposive strategies, as illustrated in some of the cases below.

The Breakdown of Communities' Internal Jurality in Natural Resource Management. … the

increasing marginalization of sustainable traditional common property institutional arrangements,
and their substitution by inefficient government control, has further aggravated the degradation
of forest resources. The superimposition of national law on customary law, not only in the Cordillera
but elsewhere in the Philippines, has resulted in the breakdown of internal jurality, especially in
communities that have shifted from subsistence to a cash economy. Thus, for the period during
which these resources degrade into open access, major depletion and destruction occurs before
any internal jurality has a chance to develop ... Furthermore, with the existence of an external
market, a single user may exhaust much of the common property resources, defying community
sanctions in order to obtain greater cash returns. One example is the commercial vegetable
farming of parts of the Mount Data National Park, where farmers have converted the mossy and
pine forests into commercial temperate vegetable gardens to satisfy a market demand ... The
myths, rituals, and taboos that reinforce the sacredness of the forest have been discarded by such
people. This is also occurring in the lower slopes of the Mount Pulag National Park and Protected
Area, where vegetable farmers engage in individually rational but ecologically unsustainable
activities.
Another case where indigenous resource management rules have been undermined is
recounted by Manuta … in his study on tenurial arrangements and resource management in
Halliap, Ifugao. He argues that the inability of the villagers to enforce their customary rules and
the inability of the local government to protect the indigenous community or enforce the law,
led to the eventual breakdown of indigenous institutions that govern the utilization of forest
resources of the village. This has resulted in institutional limbo, which undermines the protection of
access and property rights, thus eroding the motivation to protect and maintain the indigenous
muyong or pinuchu agro-forestry system.
A strategy sometimes employed by some community members, particularly in the newly
established communities where the forest was originally perceived as open access (while
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considered to be 'public' by the government), is via the misrepresentation of local tenure in order
to secure particular advantages offered by the national law. If the government believes that all
IP 'communities' own ancestral domains, and are the proper entities to apply for titles through
CADTs, then the people will use this belief as an argument to help them secure the CADT. This has
been the case with the ancestral domain claims of communities along the Mt. Data National Park
and the contested areas of Mt. Pulag in Benguet ... However, community members are aware in
these cases that newly established communities with migrant settlers from other parts of the
Cordillera do not qualify for an ancestral domain.
In the interaction of customary law and state law, some indigenous communities have taken
the opportunity to invoke the national law whenever it benefits them. Even before the IPRA was
implemented the indigenous communities were already interacting selectively with the national
law in some cases pertaining to resource competition.
One interesting case comes from Halliap, Kiangan, in Ifugao, where the transition from
communal forest to private property began in the mid-1970s when the price of coffee was at its
peak ... Although the price of coffee then declined, the forest claimed during that time was still
valued for logging and for future agricultural use. Young elite men went to the remote forest areas
in groups and chose areas of land. Acting as witnesses for each other, they secured the claims by
declaring the land for taxes in the municipal office. They planted a few coffee seedlings to mark
the periphery of their claims, and since 1987 they have been cutting the trees for lumber. Other
people followed their example and a race began to secure land which is now perceived to be
'open access' but which had once been perceived as 'communal: Areas previously considered
communal became private property, with or without a coffee plantation. Usually the new owners
were already powerful people and they often reinforced their claim by asserting that their rights
were drawn from the authority of the national, rather than the customary legal system." In this case,
resolving the disputes over individual claims to forest land has been difficult within the community
political system. The preference is usually to take the land dispute to the national courts since the
customary law has been flouted. This particular case shows the role of the purposive seeking out
of alternatives in the
"opportunity structure" - as Franz von Benda-Beckmann … has argued: plurality provides the
necessary leeway for individual actors of interest groups to lift behavior out of the opportunity
structure and reify it in the social structure. The case that follows further illustrates this.
In the case of Tanulong in Mountain Province, the indigenous community showed a
preference for circumventing customary law in relation to resource rights conflicts by recognizing
the jurisdiction of the national law. The community chose to use the national legal
system to assert their right against another village in the competition for ownership of a large water
source for irrigation. The Tanulong people sought government sanction for their irrigation system
as a means of ensuring permanent control of the water source that was being contested by
another community closer to the source ... This case clearly illustrates how some indigenous
communities employ indigenous tenure rights to gain access to land and water and
then reinforce permanent rights through state-granted instruments.
In 1992, DENR personnel in Buguias, Benguet, interviewed Kankana-ey farmers who had
converted a large part of the mossy forest to commercial vegetable farms, as to which tenurial
instruments they preferred (including the choice of ancestral domain). They unanimously
responded that they preferred individual titles to their farms, such as Torrens titles or Free Patents,
over ancestral land and domain certificates. My own research on Ibaloy customary law on
resource management … showed 90% of Ibaloy elder respondents, despite being elders familiar
with customary law, preferred paper titles for security purposes. Although they consider customary
law to be better" for land ownership, they reported that people today do not honor or respect the
customary rules governing property systems, and land-grabbing has become the misfortune of
those who do not have their land registered and titled. This is attributed to the changing context
of social relations pertaining to land, as ICCs are increasingly interacting with the market
economy, where there has been increasing incidence of land grabbing.