Reading 12: Local territorial boundaries and resource control [Part 2]

Prill-Brett, J. (2015). Tradition and transformation: Studies on Cordillera indigenous culture. UP Baguio: Cordillera Studies Center
xxx

Some Problems Arising in the Awarding of CADCs

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 (Prill-
Brett 2002,8).
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
(Magana, 2003). 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 (Prill-Brett 1994; Wiber 1993, 13-15; Wiber and Prill-Brett 1988). 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 (Prill-Brett 1994).

 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 (Delson, 1989) 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 (Prill-Brett, 1994, 1995). This defined physical and cultural territory is referred to
as the ancestral domain of a distinct community.
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 (see Aquino 2003, for example), 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 (see also Wiber
1993, 98, 108), 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 xxx.
The decentralization and devolution programs that transferred responsibility for resource
management to local government (Colongon, 2001; Rood & Casambre, 1994) 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 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 (NIPAP 2000; Prill-
Brett, 2002). 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 (Prill-Brett, 2002). 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])
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
(Wiber & Prill-Brett, 1988). 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 pasturelands, inheritance disputes, murder, theft, destruction of property, and violation of
sacred sites (Prill-Brett 1995).
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 (see Prill-Brett 1994, 2002). 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 (1983) 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.
I have argued elsewhere (Prill-Brett, 1994, 11) that 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 (see also Bromley and Cernea 1989; Berkes 1986). 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 (see Delson, 1989). 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 (1993) 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
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 (see Prill Brett, 2005a, 2002). 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 (see McKay, 1993,53). 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 (1983) 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 (Bacdayan, 1980). 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 (Prill-Brett 1992; chap. 7 this volume) 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.
The preference for individual rights (titles) over collective rights has been the choice of
some IPs who believe that their claims to ancestral domain will not benefit them, given their
present experience with land disputes. Castro (2000, 49), for example, relates the reaction
of an Ayta who was critical of ancestral domain titles, preferring individual land titles. This
particular Ayta group has experienced permanent occupation by lowlanders of their ancestral
domain.

Summary and Conclusion

This paper begins by examining the paradigm shift that has occurred in the State's
position on indigenous community land tenure and natural resource management. It gives a
short background on the state's recognition of ancestral land rights and the rationale for
awarding CALCs and CADCs. It describes the indigenous characteristics and identification of
ancestral domains in the Cordillera region, and then looks at the issues and problems arising
from the implementation of the IPRA, and the awarding of ancestral domain titles to larger
geographic units such as municipalities, and the unintended consequences, such as: conflict
over resource ownership, boundary conflicts, and conflicts between political jurisdictions
involving ethnic boundaries and those having political boundaries, or between local government
officials and community elders forming councils of elders; the conflicting perspectives of the
different agencies involved in the identification and delineation of ancestral domains; and the
breakdown of customary rules and contested rights to resources. It then examines the
recognition and use of customary law as provided for in the IPRA and the question of
the general applicability of customary law to IP communities given the increasing operation of
legal pluralism, especially in access to land, water, and forest resources. It presents cases
where individuals and groups try to manipulate the legal system by using either the national law
or the customary laws, or both. It also argues against the awarding of ancestral domains to
geographic areas larger than what the community recognized and managed as their traditional
domain.
I have argued elsewhere (Prill-Brett, 2002, 2005a) that such awarding of ancestral domain
titles to areas larger than the traditional territories of communities, will result in serious
problems. This widespread practice may appear to be efficient in simplifying the application
process. However, it is not matched with a traditional mechanism for managing such a supra-
community domain and will not be an effective strategy to foster sustainable resource
management, community equity, and social justice.
By itself, land security through communal tenure or collective control may not
necessarily guarantee sustainable resource use, as observed from some of the cases
presented (e.g., those of conversion of mossy forests into commercial farming communities).
Successful environmental management is most likely to be found where the management of
resources such as land, water, and forest are controlled by a community that exhibits traditional
institutions that are accountable to its members, and that respects the principle of equity.
However, these qualities are most unlikely to be found at the collective municipal level. Issues
and/or problems faced by the respective communities are not uniform, and such diversity of
issues should be resolved within the political, cultural and economic context of the particular
community. However, under the existing conditions, it would appear that the decisions regarding
resource management will increasingly be shifted to the municipal level LGUs rather than to the
community, since the municipal government has its own management plans which often involve
supra-community level political decisions. On the other hand, sustainable resource use and
management practices in indigenous communities are most likely to be continued where
community members believe their future lies in continued dependence on the land and on
continued benefits derived from the land.
While some IPRA organizations have tried with varying degrees of success to use IPRA
as an instrument to legalize IP claims to their ancestral lands and domain, the IPRA has been
criticized for its inherent flaws and emergent implementation problems. Based on experiences
in the operation of the CADCs awarded, many issues and challenges have been encountered.
It is recommended that the IPRA be studied seriously, in order to identify its basic weaknesses
as well as strengths, and, drawing on diverse experiences on the ground, propose ways to
improve, modify, and amend the law. Finally, the success or failure of the IPRA in enfranchising
ICCs not only in the Cordillera, but also in similar areas elsewhere depends on the full
understanding of the context of the plural jural situation surrounding the management and
allocation of natural resources in changing communities. Otherwise, this law and other forms of
policy on land and resource rights may miss the mark (Prill-Brett, 2002,18).