Tokenism in environment protection: The case of Bukidnon’s major uplands Second of five parts: The policy environment

Laws relating to biodiversity conservation had been enacted in the Philippines as early as the American colonial period. It was only in 1992, however, that it acquired strong legal framework with the passage of the Nipas Act. Two years after, the law underwent an acid test in the Conservation of Priority Protected Areas Project, a seven-year project funded by the Global Environment Facility and administered by the World Bank, and anchored on the precept of conserving biodiversity without necessarily displacing people living in or around ecologically significant areas. Mount Kitanglad Range Natural Park was one of the 10 sites covered by the project, the outcome of which, as envisioned by the Nipas Act, relied much on a strong partnership between the government, local communities and other stakeholders.

Moreover, in 2000, the Congress passed Republic Act 8978 or the Mount Kitanglad Protected Area Act, which President Joseph Estrada signed in November of the same year. The Mt. Kitanglad Act and Nipas Act shall apply in suppletory manner.

On the other hand Mt. Kalatungan became a natural park on May 5, 2000 through Presidential Proclamation 305. On June 12, 2008, then congressman Candido Pancrudo Jr. (Bukidnon 1st District) filed House Bill 4371 declaring the mountain range a protected area. As of April 28, 2009, the House Committee on Appropriations had approved the bill with some amendments. Yet, like the still unapproved bill for Mt. Pantaron, it needs to be filed anew in the new Congress.

As mentioned earlier, former congressman Guingona filed a bill declaring Mt. Pantaron as another protected area, reportedly to protect it from mining firms whose applications have practically covered its entire breadth.

There have been mixed responses to the proposal to make Pantaron a protected area. As it is part of their mandate, the Department of Environment and Natural Resources readily supported Guingona’s initiative. DENR officials said local consultations have been made to explain the purpose of the protected area bill. But as revealed by the NGO tasked to do the social preparation stage, the consultations were area-based, not sector-based, i.e., based on political boundaries.
Local environment related policies

Local government units have enacted ordinances that seek to strengthen environment protection and promote sustainable approaches to development. These ordinances range from cleanliness drives (e.g. Clean and Green Program) to the adoption of projects and programs which include, but are not limited to, waste disposal, reforestation and watershed management, in addition to plans for the implementation of national environment laws (e.g., Solid Waste Management Plan).

In addition, local government units have their own watershed management and development plans. These plans cover a wide array of programs – forest rehabilitation and protection, livelihoods for upland dwellers, among others. Yet these have either lapsed or nearly lapsed and thus need to be updated.

Putting up an Environment and Natural Resources Office is provided for in the Local Government Code. This is optional, however, on the part of the LGUs. Valencia City, Maramag and lately Malaybalay City have put up ENROs. Valencia’s ENRO is under the supervision of the city council’s environment committee chair, not the mayor’s office.

Maramag’s ENRO staff is largely nominal in that it only has an employee assigned to attend to solid waste management functions.
One of Malaybalay’s relative advances is its having passed an environment code (amended in October 2007), which specifies, among others, a ban on mining activities. It remains to be seen if this anti-mining proviso could withstand the influence and pressure of mining interests.
The implementing rules and regulations of the provincial government’s own version of an environment code are still awaiting adoption by the provincial board.

Laws and policies interacting with the PA system

Protected areas serve a special role in the overall development context. However, they are governed not only by RA 7586 and their specific laws where existing – e.g., Mt. Kitanglad – but also by other policies and legislations, including the Local Government Code (RA 7160) and Indigenous Peoples’ Rights Act (RA 8371). Theoretically, these laws are meant to coexist as complementary mechanisms notwithstanding the different reasons for which they were created. Yet actual experiences have been far from ideal, particularly with regard to the perceived conflict between the Nipas Act and Ipra.

At the national level the DENR and the National Commission on Indigenous Peoples had agreed on a set of guidelines meant to harmonize the implementation of both laws in protected areas. Still, there remains the question of who shall have the final say on what in PAs. Whose domains are ancestral domains if these happen to be PAs at the same time? This is the question that lies at the core of the controversy dogging these laws inasmuch as they are based on two doctrines which are poles apart.

Nipas Act subsists on the Regalian Doctrine, which holds “all untitled land in the archipelago was under the control of the Spanish Crown and therefore passed to the US colonial government as public lands before being entrusted in turn to the independent Philippine State.”
Ipra rests on the theory of native title derived from the case of Cariño v. Insular Government, which was decided by the US Supreme Court in 1909. The jurisprudence eventually came to be known as the Cariño Doctrine.

Opponents of Ipra could only shudder at the implications of the law given the following facts: ancestral domains comprise 8-10 million hectares out of 30 million hectares with as much as 80% of remaining natural resources. Hence it was challenged before the Supreme Court through a petition filed by retired SC Justice Isagani Cruz and Davao City-based lawyer Cesar Europa, a move clearly orchestrated by mining interests, as its full implementation would affect interpretations of who shall have the final say over natural resources. By extension, it would affect interpretations of who shall have the final say over national parks inhabited by indigenous peoples since time immemorial.

Ipra survived the challenge simply because the SC arrived at a tie vote, on December 6, 2000. The Court voted 7-7. But no jurisprudence came out.

Furthermore, the phenomenon of globalization influences the trend of policymaking and the way domestic laws on conservation are being interpreted – or subverted – so as to cater to the demands of foreign investors and markets. The case of the Mining Act of 1995, which the Supreme Court had ruled as constitutional and which bears an impact on the environment and on the rights of indigenous peoples, illustrates the point. The NCIP itself succumbed to pressure. On October 13, 1998, a few days before Ipra’s first anniversary, the commission issued Administrative Order No. 3 exempting all leases, licenses, contracts and other forms of concessions within ancestral domains prior to the effectivity of NCIP AO No. 1 (IPRA’s Implementing Rules and Regulations), from the coverage of IPRA’s provisions on free and prior informed consent

Protection and conservation initiatives by local people leading to policy changes

It is important to note the role of social movements as well as other forms of local people’s initiatives in shaping environment policies at both the national and local levels. For instance, in 1987-88, residents of San Fernando staged sustained protest actions against commercial logging in their town. Initiated by a Redemptorist mission group and with support from church-based organizations and other sectors, the movement snowballed and evolved into a call for a stop to all logging operations in the whole province. Government conceded; then environment secretary Fulgencio Facturan Jr. placed Bukidnon under a logging moratorium for an indefinite number of years.

The active involvement of church people in environment activism led the DENR to deputize some priests as forest protection officers. One of the deputized priests was Nerilito Satur, who was killed on 14 October 1991 in Valencia City by militiamen believed to be engaged in timber smuggling.

The people’s movement to oppose logging would extend to areas outside of the province. In the latter part of 1999, environmentalists backed by the Diocese of Malaybalay mounted barricades in Maramag, Valencia and Malaybalay to prevent logging trucks from Wao, Lanao del Sur from passing through and proceeding to a wood processing plant in Cagayan de Oro City. According to the protesters, allowing logging trucks to pass along Bukidnon’s highways is an insult to the logging moratorium. The barricades were lifted only after the loggers gave up trying to pass through.
Another instance of a successful people’s action for the environment in Bukidnon occurred in Lantapan, in 1997. DENR’s corporate arm, Natural Resources Development Corp., proposed to harvest and sell falcata and mahogany trees at the Cinchona Reforestation Project, which eventually became part of the Mt. Kitanglad protected area. Calling the proposal “sanitation cutting”, the NRDC said it would only harvest aging trees. Local residents opposed the proposal saying it might trigger floods and adversely affect biodiversity in the area.

In addition to these instances of activism for the environment, Lumad communities have shown a commitment toward biodiversity conservation using traditional methods and structures. Malcolm Cairns (1995) wrote that the Lumads practice “judicious wildlife harvest” by prohibiting the killing of immature wildlife or deer heavy with pregnancy.

One of the most striking examples of a conservation approach to resource management, Cairns noted, is the concept of tangkal – a recognized safe haven for wildlife where hunting or trapping is strictly forbidden. If a pursued pig or deer crosses the boundary into the tangkal, the chase must stop and the dogs are called off. Interestingly, this concept is similar to the habitat management zone as defined in many conservation plans. He further noted: “The resolve of the tribes to protect tangkal from encroachment should not be underestimated. When a government program attempted to resettle 350 Iglesia ni Kristo families in a Higaonon tangkal in Barangay Hagpa, Impasugong in 1984, the natives armed themselves to fight to protect it – until the government backed down.”

The Bukidnon tribe in Dalwangan observes a similar conservation measure. In 2006, they delineated a tangkal with a circumference of eight kilometers and declared that hunting is banned therein.

Moreover, community-based forest protection work has gained some headway, particularly in Mt. Kitanglad and Mt. Kalatungan through the Kitanglad Guard Volunteers and Bantay Gubat, respectively. The KGVs originated as tribal guards and were organized based on traditional processes. According to cultural experts, tribal guards were at the forefront of the tribe’s defense system. They were revived with the blessings of the tribal leaders and given the task of protecting the forest against violators. Eventually, they became the main protection arm of the park. Their presence has contributed much to curbing timber smuggling and other illegal activities, a positive outcome considering the absence of government-paid park rangers.

Aside from doing patrols and other protection activities, some tribal leaders in Mt. Kitanglad have made use of the traditional justice system in dealing with violators of park and forestry laws especially if they happen to be Lumads. Violators would be subjected to a sala (cleansing ritual) and made to promise to commit no more violations. If they renege on their promise, their cases would then be referred to the protected area superintendent (PASu) or DENR. As a cultural instrument the sala may appear not as heavy a penalty as imprisonment but in reality, its effect in the community is like that of a scarlet letter hanging on the necks of violators. (Next: How much for the environment?)