La reconnaissance des droits fonciers ancestraux sur l'île de Palawan (Philippines) a-t-elle un avenir?
La façon dont le développement est encouragé sur l'île de Palawan (dernière frontière des Philippines) montre que les injustices historiques subies par la population autochtone de l'archipel se répètent au nom du progrès et de la conservation de la biodiversité. Il existe une divergence d'intérêts entre les désirs et les besoins des communautés locales et les objectifs du gouvernement et des défenseurs de l'environnement qui cherchent à conserver les habitats naturels. Un examen des lois récemment promulguées aux Philippines en matière d'environnement fait apparaître que le zonage des aires protégées en fonction de critères liés à la biodiversité fait obstacle aux pratiques de subsistance locales tout en renforçant l'efficacité du contrôle gouvernemental sur ces pratiques. D'autre part, même la nouvelle loi pour la reconnaissance des droits fonciers ancestraux devrait être revue pour refléter les modes de pensée et les priorités des autochtones.
El reconocimiento de las reclamaciones territoriales ancestrales en la isla de Palawan (Filipinas): ¿existe algún futuro?
El modo en que se está fomentando el desarrollo en la isla de Palawan (última frontera de Filipinas) muestra que las injusticias históricas padecidas por la población indígena del archipiélago se están repitiendo en nombre del progreso y de la conservación de la biodiversidad. Hay una divergencia de intereses entre los deseos y necesidades de las comunidades nativas y los objetivos del Gobierno y de los ambientalistas de conservar los hábitats naturales. Un examen de las leyes sobre medio ambiente promulgadas recientemente en Filipinas indica que la división de las zonas protegidas, sobre la base de criterios relacionados con la biodiversidad, está obstaculizando las prácticas locales de subsistencia y aumentando el poder y el control que el Gobierno ejerce sobre ellas. Por otra parte, sería necesario mejorar incluso una nueva ley para que se reconocieran las reclamaciones territoriales ancestrales y los planteamientos y prioridades indígenas.
D. Novellino
Dario Novellino is the International Coordinator for Bangsa Palawan, Indigenous Alliance for Equity and Well-Being, Puerto Princesa City, Palawan, the Philippines.1
Development on Palawan island (the Philippines' last frontier) is being fostered in a way that repeats the historical injustices suffered by the indigenous people of the archipelago, in the names of progress and the conservation of biodiversity. There is a divergence of interests between the desires and needs of the native communities and the government and environmental objectives of conserving natural habitats. A review of recently enacted environmental laws in the Philippines indicates that the zoning of protected areas based on biodiversity criteria is curtailing local subsistence practices while increasing the efficacy of government power and control over them. In addition, the new law for the recognition of ancestral domain claims needs to be improved in order to reflect indigenous notions and priorities.
An analysis of the history of natural resources' exploitation in the Philippines from the colonial period up to the present (DLAC, 1990; D.B. Gatmaytan, 1992; G.B. Gatmaytan, 1992; Leonen, 1998; Novellino, 1990; Royo, 1988; Vitug, 1993) shows the persistence of juridical ambiguity over the management and utilization of forest land. Often, such ambiguity has been coupled with the widely shared assumption that indigenous practices (especially swidden farming) are a major cause of environmental degradation nationwide.
The conflict of interests among indigenous people, government and conservationists has continued to be analysed on exclusively pragmatic grounds in terms of, for instance, natural resources being viewed as a commodity, the ownership of such resources and the economic value of surface and below surface land rights. As a result, technical solutions have been proposed, which neglect the deeper philosophical roots of the problem (i.e. the conceptual incompatibility of local perceptions of the human-nature relationship and the domination of the terms "resource", "environment", "landownership", "title", etc., which were coined by outsiders). Attempts have been made to mitigate the conflict of interests by merging the concept of genetic erosion with that of cultural extinction. Because biodiversity is regarded as a public good, indigenous people are either expected to become the guardians (not the users) of such a good or are themselves transformed into a public commodity, a readily available resource for developers and project proponents.
On closer inspection, it would appear that recent government attempts to promote indigenous rights have more to do with defending a particular notion of the State as the supreme owner of the public land than with a genuine interest in recognizing the value of ancestral domain. In fact, procedures for claiming rights over ancestral domains are so cumbersome that they may ultimately extinguish indigenous rights to land and resources rather then protecting and validating them. At the same time, by appealing to concepts that are perceived as universal, such as "living in harmony with nature", conservationists are promoting a kind of relativism that neglects the epistemology of the peoples they claim to represent and stand for. As a result, the whole debate over ancestral domains and forest conservation is caught up in Western notions and categories.
Palawan, the study area, is the fifth largest island in the Philippines and has the highest percentage of forest cover in the archipelago, at between 38 and 44 percent of the total land surface (Kummer, 1992; Serna, 1990). Almost all of the productive forest and about 66 percent of the available commercial timber area is included in existing timber concessions, which are not operating at the moment because of a moratorium on commercial logging. According to figures quoted in the Strategic Environmental Plan (SEP), settled and shifting agriculture account for 8 percent (less than 100 000 ha) and 23 percent (about 250 000 ha), respectively, of the total land area of the main island. The population of mainland Palawan was estimated to be 318 000 in 1983, but has risen at an annual rate of 4.64 percent as a result of increasing numbers of migrants and landless farmers from all parts of the archipelago. Today the population has reached nearly 600 000. The real indigenous peoples can be divided into three main ethnic groups: the Batak, the Tagbanuwa and the Pälaqwan. They all have a heterogeneous mode of food procurement, based mainly on shifting cultivation integrated with hunting-gathering and the commercial extraction of non-timber forest products (NTFPs).
A closer look at Philippine legislation from colonial times to the present reveals that the history of indigenous rights to land has been characterized by a tragic alternation of concessions and denials. When colonization began, the Spanish regime recognized both individual and communal rights to indigenous land. In a document known as "Laws of the Indies" (lib 4, tit 12, ley 18, 1642-1649) it is stated that: "the sale, benefit and prescription of lands be made with such care that there be amply left to the Indians those that belonged to them, whether individually or in communities, and that the waters and springs, and the lands that they have cultivated by their personal industry, be reserved in the first place, and that they cannot in any case sell or alienate them, and the judges who shall be sent shall specify the Indians who shall be found upon lands, and the lands that shall be left to each one of the elders, chiefs, headmen, caciques, governors, absentees and communities" (quoted in D.B. Gatmaytan, 1992: 45).
It was only when the Maura Law was enacted on 13 February 1894 that the Spanish crown denied customary rights, claiming ownership of all the lands and natural resources of the archipelago. For the first time, the dispossession and displacement of indigenous people were legally sanctioned. Since then, Philippine legislation has adhered to the legal system imposed by the colonizers, classifying two-thirds of the country's area as public land, including all forests and most of the ancestral domain of the indigenous communities.
Alongside the enactment of punitive laws, there is evidence that indigenous rights have been either recognized or at least mentioned in other pieces of legislation. However, only in 1909, did the notion of "native title" become an object of legal debate. In that year, the United States supreme court in the Philippines acknowledged the rights of indigenous people to own their land, provided it had been occupied since time immemorial. This ordinance was enacted in response to a specific case filed by Mateo Cariño, an Ibaloy tribesman, against the United States colonial government, and stated that: "It might ... be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of ownership, it will be held by individuals under a claim of ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land" (quoted in G.B. Gatmaytan, 1992: 13).
Legal foundations for indigenous peoples' rights to their culture, land and resources are found in other parts of Philippine legislation. In 1963, an amendment to the Public Land Act (Commonwealth Act no. 141) established indigenous communities as being among the claimants of portions of the public domain, occupied and cultivated since 1955. More specifically, section 48 (c) of the act states that "members of the national cultural minorities who, by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of lands of the public domain suitable to agriculture, whether disposable or not, under a bona fide claim of ownership for at least 30 years shall be entitled to the rights granted above" (i.e. the rights to possession and occupation of agricultural land).
Section 48 of the Public Land Act seems to convey that the prerequisite for possession and occupation over a certain portion of the public domain depends on its suitability for agriculture. It is worth mentioning that, according to the most widely accepted interpretations of this provision, "suitability to agriculture" refers mainly to land that is legally classified as agricultural land and not yet declared as alienable and disposable (cf. G.B. Gatmaytan, 1992). Thus, there is no evidence that the provision applied also to indigenous swidden fields found on those portions of the public domain classified as forest land.
In 1963, a Senate Committee Report on the problems of Philippine cultural minorities, prepared by Senator Manuel P. Manahan, identified security of tenure over land and resources as a fundamental priority of indigenous people in the Philippines. New hopes for the recognition of indigenous land claims were raised in 1974, under the Marcos regime. Through Presidential Decree no. 410, the indigenous minorities of 27 provinces were given a prescribed period of ten years to apply for land occupancy certificates in order to secure their land rights. Again this decree did not explicitly include forest lands but mainly only those "... lands of the public domain that have been in open continuous, exclusive and notorious occupation and cultivation by members of the National Cultural Communities by themselves or though their ancestors under a bona fide claim of acquisition of ownership according to their customs and traditions for a period of at least 30 years before the date of approval of this decree". Presidential Decree no. 410 was never implemented, owing to insufficient publicity and lack of political will.
Unfortunately, all such attempts to give some sort of recognition to indigenous peoples were abruptly cancelled by subsequent laws, the most repressive ones being enacted during the 1970s. Starting in 1975, with the aim of reducing forest loss (about 172 000 ha per year in 1971), the Government began to implement the Forest Occupancy Management Program to relocate nomadic farmers and forbid the clearing of forested areas for agriculture.
During the same year, the Revised Forestry Code (also known as Presidential Decree no. 705) was enacted. It states that: "No land of the public domain on a slope of 18 percent or more shall be classified as alienable and disposable, nor any forest land on a slope of 50 percent or more as grazing land. Lands on a slope of 18 percent or more that have already been declared as alienable and disposable shall be reverted to the classification of forest lands". The same law specifies that: "when public interest so requires, steps shall be taken to expropriate, cancel defective titles, reject public land application, or eject occupants thereof". The corollary of this is that the "18 percent slope rule" deprived indigenous upland communities of all rights to acquire any form of security over their land and settlements. Interestingly, in section 38 of Presidential Decree no. 705 swidden farming (kaingin) is defined as a threat to the forest, along with "illegal entry, unlawful occupation, kaingin, fire, insect infestation, theft, and other forms of forest destruction".
The enduring concern that all natural resources, including water, are the property of the State is clearly spelled out in the Water Code of 1976. Indigenous customary practices are also affected by other minor laws such as Presidential Decree no. 705 (1975), sections 55 and 72 regulating hunting and punishing the cutting of timber from private lands unless a licence, lease or permit is obtained from the concerned authorities (section 66). Last, but not least, Presidential Decree no. 463 (1974) section 38 allows prospectors and mining firms to acquire rights to surface resources on private land, independently of the will of the owner.
Remarkably it seems that, in spite of its relocation policy, the Philippine Government has always been aware that any attempt to evict and stabilize households and communities settled in forest areas would have been logistically and economically impossible. In fact, according to official estimates, about 18 million people (migrant and indigenous) live in upland forest areas. Over the years the idea of resettlement was replaced by a number of programmes for the management of forest resources characterized by specific agreements between the local communities and the Department of Environment and Natural Resources (DENR). Through such programmes (e.g. the Integrated Social Forestry Program, the Community Forestry Program and the Contract Reforestation Program) the State allows the applicants beneficial use of the land, usually for a renewable period of 25 to 50 years, in exchange for certain environmental services (e.g. preserving the forest cover, planting degraded and open areas with trees, guarding the area from illegal exploiters of forest resources). The key point here is that such agreements do not provide any assurance for the continuation of swidden farming on the leased land. Conversely, some of the environmental services requested by the Government are not compatible with indigenous land management practices.
Such agreements do not grant ownership rights over land and resources to indigenous people. Rather, the indigenous people's acceptance of such agreements implies their recognition that the State is the sole owner of the land and, unless government permission is granted, they have no rights at all. Given this, such agreements invalidate the very premises of the ancestral domains concept. With respect to this, G.B. Gatmaytan argues that "the right to ancestral domains arises not from contract but from the people's historical association or relationship with the land and its resources. If any contract or agreement is pertinent in this issue it is that between the land and the people, the terms of which find articulation in cultural rather than strictly legal terms, and not between the Government and the community" (G.B. Gatmayan, 1992: 25).
It would appear that, while legislation has fluctuated between the repressive and the pro-indigenous, the Constitution of 1987 has clearly favoured the former. In fact, it reaffirms that: "All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all source of potential energy, fisheries, forest, timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural land, all natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State ...". It is easy to recognize that forest occupants' rights are completely alienated under the 1987 Constitution. Meanwhile, the DENR and Congress have become the only authorized legal entities in charge of deciding who owns the land. What is crucial here is that untitled land is treated as part of State land, and that both indigenous people and landless migrants become "squatters" on public land, further stigmatized as kaingineros (a local term for slash and burn shifting cultivators).
In the same year (1987), under the new Secretary of the DENR, Fulgencio Factoran, a new bill was enacted for the creation of a commission responsible for establishing indigenous ownership over ancestral lands. The bill, which would have been of benefit to more then 6 million people, was strongly opposed by influential families, and after months of debate it died out completely.
Legislation regarding ancestral land remained vague until the enactment of DENR Administrative Order no. 2 in 1993. For the first time, the concept of ancestral land included rights to both land and the resources found thereon. It is important to recognize that previous legislation covered only the surface rights to land, and not necessarily the rights to resources found on such lands. The innovation brought by DENR Administrative Order no. 2 was to allow the indigenous peoples themselves to document, prepare and submit their own land claims. However, the law does not specify how the documentation of claims to a certain ancestral territory can lead to the suspension of other activities, such as mining and logging on that land. In other words, Government recognition of the validity of indigenous claims is not supported by any mechanism to ensure the actual enforcement of such claims.
The last step towards the recognition of indigenous rights came with Republic Act no. 8371, also known as the Indigenous People's Rights Act (IPRA), which was signed on 29 October 1997 and incorporated into the Social Reform Agenda proposed by former President Fidel Ramos.
On 15 January 1993, the Philippines' DENR enacted Special Order no. 25 for the creation of a task force responsible for identifying, delineating and recognizing ancestral lands and domain claims. Subsequently, in 1997, the IPRA was enacted with the primary objective of recognizing, protecting and promoting the rights of indigenous cultural communities. Chapter 4 of the IPRA provides indigenous peoples with the rights to self-governance and empowerment. It includes the rights to use local juridical systems, conflict resolution mechanisms and other customary laws and practices as long as these are compatible with the national legal system and internationally recognized human rights. Furthermore, chapter 5, section 21 provides for equal protection and non-discrimination of indigenous people, in addition to the recognition of their distinctive characteristics and identity. More significantly, chapter 6, section 29 sets out that "the State shall respect, recognize and protect the right of Indigenous Cultural Communities (ICCs) and Indigenous Peoples (IPs) to preserve and protect their culture, traditions and institutions. It shall consider these rights in the formulation and application of national plans and policies". In a similar vein, section 33 of chapter 6 stresses that "ICCs/IPs shall have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies". This is a crucial point of the law, since in Palawan, as elsewhere in the Philippines, different religious sects, often established in the same villages, struggle to obtain the highest number of followers, which leads to social friction and community fragmentation.
The IPRA also distinguishes and provides specific definitions for indigenous "tenurial" rights over ancestral domains and ancestral lands. Within the former set of rights people are allowed to claim ownership over their land and the resources thereon. They have the right to occupy and develop their territory and natural resources and the right to oppose displacement, regulate the entry of migrants, etc. The rights to ancestral land, on the other hand, include the recovery of land-property rights obtained by members of non-indigenous communities through vitiated consent or other questionable means within a period not exceeding 15 years from the date of transfer. In the same chapter, indigenous people acquire the right to transfer the property rights to land to other members of their own community.
The law also allows IPs to secure individual land rights over those territories that have been occupied for not less than 30 years prior to the enforcement of the IRPA. Peoples can receive such rights though the issuance of a Certificate of Title under Commonwealth Act no. 141, or the Land Registration Act 496. It is interesting to note that this provision includes as alienable and disposable even those areas with a slope of 18 percent or more.
The ancestral land legislation represents a fundamental step in favour of indigenous peoples. However, most of its definitions dealing with land and the environment imply utilitarian criteria of human action, and thus do not represent epistemologically valid concepts for the indigenous societies to whom these notions are applied. Here the main issue is whether Western notions (e.g. land tenure) can have any relevance at all when applied to indigenous peoples' own ways of governing access to land and resources. The term "tenure" does not seem to have any equivalent word in the Pälaqwan, Batak or Tagbanuwa languages. In respect of this, Ingold makes a very relevant point when he claims that the notion of tenure "implies man's subjective transcendence of the natural world: one cannot appropriate that within which one's being is wholly contained" (Ingold, 1986: 135).
It is also true that indigenous ancestral domains cannot be considered as part of government property. As A.B. Gatmaytan points out: "Nemo dat sine quod non habet"; the government "cannot give that which it does not have" (A.B. Gatmaytan, 1992: 14). Ancestral lands must, therefore, be recognized as such and cannot be released, since this would imply government ownership over them. It would appear that the recognition of ancestral domain claims is still perceived by the government as some sort of transfer of land and resources from business-oriented claimants (mining companies, loggers, etc.) to other groups of non-profit claimants (the indigenous people). The simple fact that indigenous communities do not perceive themselves as either claimants or owners and do not refer to their land in terms of tenure, commodity, survey plans, sketch maps and sworn statements does not seem to matter.
Certainly, the use of notions that are alien to indigenous epistemology has serious drawbacks. When indigenous communities are confronted with this terminology they are forced to express their claims using a foreign vocabulary. As a result, they have to adjust their own epistemology in an attempt to make their social and physical world intelligible to outsiders (Novellino, 1998). Therefore, in order to be effective and culturally viable, the recognition of indigenous rights to land and resources should be grounded in people's own ways of defining, perceiving and engaging with the environment. This is far form being the case with the IPRA, which imposes alien and cumbersome submission of proofs for the identification and recognition of ancestral domain (see section 51 of chapter 7). These proofs include "the testimony of elders of the community under oath and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial" and "written accounts of indigenous customs and traditions, political structure, survey plans, anthropological data, genealogical survey, photographic documentation of burial grounds, agricultural improvements, hunting grounds, traditional landmarks, etc.". Paradoxically, indigenous peoples are asked to use Western analytical tools to interpret, document and explain their own culture. Therefore, if local communities want to enforce their land claims, they need to request the assistance of foreign experts, non-governmental organization (NGO) representatives and government officials. Again, it is the authority of Western scientific methods that provides the criteria for what constitutes legitimate ancestral rights over land. On the other hand, local criteria for validating land claims are not fully taken into account.
Furthermore, when outsiders act as mediators between indigenous communities and government authorities they tend to perpetuate the myth of the "noble savage", together with the concept of opposition between nature and culture (Novellino, in press a). This is clearly the case in the application for Certificate of Ancestral Domain Claim (CADC) for the Batak territory, which was prepared by the local NGO, Haribon-Palawan, with assistance from the World Conservation Union (IUCN). The application reads: "The Batak tribe is one of the primitive indigenous people of Palawan and were nomadic in culture (no permanent residence). They moved from one place to another to satisfy their biological needs. To this day, their religious faith continues to be based on the spirits in nature, whom they believe to reside within big rocks and trees". It is perhaps not surprising that, in the environmentalists' imaginary, the Batak have become the archetypal primitives who do not modify their environment in any substantial way; because of their presumed nomadic character and biologically driven way of life, they are still seen as living in the domain of nature. Finally, it seems that it is by virtue of their presumed similarities with animal species that the Batak are given the privilege of claiming rights over their land.
As well as environmentalists' interpretations of indigenous people, there are other sections of the IPRA that need to be revised. Section 57 of chapter 8 specifies that "the ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains". It has been pointed out that "priority rights" are not "absolute rights" (IWGIA, 1988) and this implies that even non-indigenous people can claim rights to indigenous resources. Furthermore, the possible inclusion of such land categories as watersheds, wildlife sanctuaries and protected areas in indigenous ancestral domains (see section 58) may have the effect of weakening indigenous control and access to the resources found within such categories. Another anomaly of the IPRA is that, in the law, the rights of indigenous people to refuse authorized companies (e.g. mining, logging, industrial exploitation) entry into their ancestral domain is not specified. Only in section 7, paragraph C, does it state that "No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain".
It seems almost certain that, in a country where indigenous communities have already been confined to the most marginal and inhospitable areas, the IPRA can do little to reassign the lost territories back to those who were forcibly misplaced. For instance, section 56 states that: "property rights within the ancestral domains already existing and/or vested upon effectively of this act, shall be recognized and respected". This may imply that leases for mining, logging and cattle ranching will continue to exist even when a certain area is declared an ancestral domain under the IPRA.
Taking all these considerations together, the IPRA appears ineffective as a means of doing justice to indigenous people, unless a parallel number of legal tools are put into place. These would include mechanisms for reviewing and monitoring all existing licences, leases (for mining, logging, plantations, etc.) and even conservation areas (e.g. national parks, natural reserves) to see how they affect indigenous livelihoods and whether, or to what extent, they are compatible with the IPRA's prescriptions. When it is no longer possible to restitute indigenous ancestral land to its original inhabitants, the government should institute payments for the communities which are proportional to the damage that they have faced. This is partially specified in chapter 3, section 7b. Here IPs shall have "the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project". In many cases (e.g. road construction), however, it is very difficult to determine the value of damage sustained by the IPs. For instance, in the Rizal municipality, indigenous communities have not received any compensation for the loss of their land to road construction. The road has not directly caused eviction of local communities from their ancestral domain, but it has created conditions that encourage them to abandon their traditional settlements. In fact, local inhabitants are becoming outnumbered by migrants and are now forced to move elsewhere. It seems unlikely that this trend can be reversed.
The facts suggest that efforts to survey and delineate indigenous ancestral domains have been slow partly because of a shortage of government funds and staff allocated to the task and partly because of the inability of DENR to implement its own legislation. Not surprisingly, three years after its submission, the documentation for Batak ancestral land claims is still awaiting approval in the DENR regional office. While the documentation for claims to ancestral land is being processed, indigenous territories are being occupied by Philippine migrants and areas with valuable NTFPs are being given in concession to outsiders. As a result, the potential for future income from commercial gathering by indigenous peoples is highly reduced or virtually lost (Novellino, in press a).
Overall, in Palawan, government recognition of indigenous land rights is far from satisfactory (Novellino, in press a; 1998). For instance, in the municipality of Rizal the endorsement of ancestral domain claims has already encountered strong opposition from local authorities. In October 1996, the former mayor stated that the endorsement of ancestral land claims "for a handful of men is contrary to the ideals envisioned in our constitutions for equitable access to the natural resources, and violates our Land Reform Law which allows only 5 ha of land for an individual Philippine". In a similar vein, Willy Jardinico, Secretary-General of the Federation of Land Reform Farmers (FLRF) compares NGOs that support indigenous land claims to an octopus "whose tentacles will engulf the vast land area of our beloved municipality" and claims that "with their success our aspirations for progress will be like a castle in the air that will melt into dust". It is significant that statements of this kind are made by representatives of associations such as FLRF, which are responsible for the ruthless destruction of hundreds of hectares of tropical forest at the expense of the local indigenous communities.
Other attempts to discredit indigenous people's claims to their ancestral domains come from different sources. For instance, the agricultural practices of Palawan communities have been criticized by the Canadian Fenway Resources Ltd, which has vested interests in the economic development of Palawan. The company aimed to establish a large-scale cement project in the south of the zone. In a letter to shareholders, dated 10 June 1997, Leonard Taylor, Vice-President of Fenway Resouces Ltd, writes about the "abuses of the forests by the indigenous people". Furthermore, in a press release, dated 16 June 1997, the company states that "due to the widespread kaingin (swidden farming) by the local tribes, the forest cover within the quarry site has been substantially depleted" and that they "are also studying ways by which to help the local tribespeople to maintain sustainable forestry and agricultural practices".
An even greater source of concern is the implementation of government ordinances that violate flagrantly, and as a whole, the major tenets of the IPRA. There can be little doubt that the imposition of the ban on shifting cultivation in the municipality of Puerto Princesa contravenes chapter 4, section 17 of Republic Act no. 8371 stating that "the ICCs/IPs shall have the rights to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use". In addition, the loss of cultivated plant genetic diversity (over 50 varieties of upland rice and other ancient crops) caused by the ban is in total contradiction to section 34 of chapter 6 of the same law, stating that indigenous communities "shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, ... etc.". Moreover, it could be argued that swidden agriculture through slash and burn techniques may not be perceived by the government as compatible with the responsibilities of ICCs/IPs in their ancestral domains as stated in section 9 of chapter 3. Such responsibilities include the preservation, restoration and maintenance of a balanced ecology in the ancestral domain through the protection of flora, fauna, watershed areas and other reserves, as well as participation in the reforestation of denuded areas. It is well known that most of the areas regarded by DENR as degraded and denuded are in reality indigenous swiddens under cyclical fallow period. This implies that, if such areas are reforested, the people will be forced to clear new fields from secondary and primary forest.
The environment occupies a central role in the political agenda of the Philippines and, recently, the province of Palawan has attracted the interest of local and international conservationists.
Present conservation strategies are mainly articulated on three levels: the protection of single areas (e.g. the St Paul Subterranean National Park) through the prohibition of hunting and gathering and other traditional forms of land utilization; the protection of forest by prohibiting shifting cultivation, including indigenous swidden practices (e.g. the Puerto Princesa municipal government's ban); and the integrated management of assemblies of ecosystems through the creation of land category systems from buffer zones to core zones, as established by two environmental laws (the Strategic Environmental Plan and the National Integrated Protected Areas System). All such approaches tend to view the environment in objective terms (cf. Richards, 1992) and share the common assumption that ecological sustainability and the protection of biodiversity can be attained through restricted and controlled use.
It should be noted that national parks in the Philippines have evolved from the "hands-off" style of environmental preservation to an apparently more benign form of conservation that does not include the eviction of human occupants (Novellino, 1998). Act no. 3915 (1932), section 1 establishes that it is forbidden to settle or occupy an area set aside as a national park. Within the same law, section 4(e) specifies that leases to settlement or use of such areas may be "awarded to the highest bidder, for periods not exceeding 20 years". Republic Act no. 7586 (1992) represents a step forward towards the rationalization of the parks system by establishing that all existing parks become integral components of National Integrated Protected Areas Systems (NIPAS).
Section 13 stipulates that the government, through the DENR, cannot "evict indigenous communities from their present occupancy nor resettle them to another area without their consent". Zoning has meant that indigenous communities are no longer evicted from their territories, but allowed to stay in selected areas on the condition that they "live in harmony" with nature. They thus become marginalized on their own land. At the same time, however, their culture is redefined by experts in a way that appears ecologically sound and satisfies policy-makers, project planners and funding agencies.
The NIPAS and SEP, also know as Republic Act no. 7611, are relatively new laws, enacted in February and June 1992, respectively. Such laws establish the legal basis for the protection and management of the environment in Palawan (SEP) and nationwide (NIPAS). Protective measures proposed by the laws include the demarcation of areas as off-limits to the population, reserved for local ICCs, or both (Novellino, 1991; 1998; in press a). Local communities are expected to limit or refrain from certain subsistence activities when their territory is divided into management zones with different levels of protection (from strictly non-touchable to available for controlled use only).
Even a cursory glance at NIPAS and SEP land definitions will reveal that each category is somehow viewed as a self-regulating unit whose preservation is ensured, not by its linkages with, but rather by its degree of insulation from the other categories. Such an approach has the ultimate effect of breaking down indigenous peoples' territory and the relationships that link physical attributes of the landscape, animals and plants to people's daily practices and past experiences. As though they were features of the landscape, human communities are converted into components of the environment (as are all other organisms) and, thus, deprived of social life.
As established by the NIPAS, total protection is likely to be enforced in areas defined as strict nature reserves: "possessing some outstanding ecosystem, features and/or species of flora and fauna of national importance"; natural parks, which are: "relatively large areas not materially altered by human activity where extractive resource uses are not allowed"; national parks, which are: "forest reservations essentially of a natural wilderness character which have been withdrawn from settlement, occupancy or any form of exploitation"; and wildlife sanctuaries, which are: "areas that assure the natural conditions to protect nationally significant species, groups of species, biotic communities". On the other hand, human occupancy and resource utilization are contemplated in categories such as protected land- and seascapes, i.e.: "areas of national significance, which are characterized by the harmonious interaction of man and land"; and natural biotic areas, which are: "areas set aside to allow the way of life of societies living in harmony with the environment to adopt modern technology at their pace".
Indigenous communities therefore seem to represent one of the patchwork pieces to be placed in the most appropriate spot (a natural biotic area, for example), provided they continue to live "in harmony with the environment". In other words "the harmonious interaction of man and land" is almost viewed as a precondition for residing in "areas of national significance" (Novellino, 1998). Undoubtedly, a policy such as the NIPAS, treating both indigenous communities and wildlife as species that need protection, is far from being neutral and innocent. It is rather a political act to ontologize cultures; assigning a different existence to indigenous populations has the effect of removing the people from the space they occupy (Fabian, 1983), thus depriving them of agency and history.
The same criticism applies to the SEP for Palawan, as well as to projects pursuing similar objectives (e.g. the European Union-financed Palawan Tropical Forestry Protection Programme). The SEP provides a comprehensive framework for sustainable development and contains a package of strategies for preventing further environmental degradation. The centrepiece of the strategy is the establishment of the Environmentally Critical Areas Network (ECAN), which places most of the province under controlled development. The areas covered by the ECAN include three major components: terrestrial, coastal/marine and tribal ancestral lands. Core zones are defined as areas of maximum protection and consist basically of steep slopes, first-growth forests, areas above 1 000 m elevation, mountain peaks and the habitats of endemic and rare species. The law establishes that core zones "shall be fully and strictly protected and maintained free of human disruption ... exceptions, however, may be granted to traditional uses of tribal communities of these areas, for minimal and soft-impact gathering of forest species for ceremonial and medicinal purposes". Interestingly, the ECAN core zone coincides with significant portions of the indigenous hunting and gathering ground. For instance, the resin of Agathis trees is usually extracted in commercial quantities at and over 1 000 m above sea level. In addition, several game animals, especially flying squirrels (Hylopetes nigripes nigripes), are trapped for food around these altitudes (Novellino, 1998).
Buffer zones represent the most elaborate component of the ECAN and are designed to serve a multiplicity of purposes. According to the SEP, they fall into three categories: restricted use areas, controlled use areas and traditional use areas, where "management and control shall be carried out with the other supporting programmes of the SEP". The only category within the so-called terrestrial component for which agricultural practices are mentioned is that of the multiple/manipulative use zones, which are: "areas where the landscape has been modified for different forms of land use such as extensive timber extraction, grazing and pastures, agriculture and infrastructure development". It is crucial to point out that a large number of indigenous communities occupy marginal upland areas, which fall under the wider definition of buffer zones. Furthermore, the law does not mention indigenous swidden framing practices; hence it could be concluded that only imported methods such as terracing and hillside farming will be allowed in multiple/manipulative use zones. There is no specific indication of where such zones are located, but it seems likely that these areas will be occupied by a vast majority of migrants rather then by traditional indigenous communities.
It is important to point out that section 11 of the SEP includes tribal ancestral lands among its categories. The law specifies that "these areas, traditionally occupied by cultural minorities, comprise both land and sea areas identified in consultation with tribal communities concerned and the appropriate agencies of government". It is frustrating to learn that even these lands "shall be treated in the same graded system of control and prohibitions except for stronger emphasis on cultural consideration". At the same time, "the SEP ... shall define a special kind of zoning to fulfil the material and cultural needs of the tribes, using consultative processes and cultural mapping of the ancestral land". It is clear that the SEP, with a high degree of naivety, proposes to protect indigenous culture, on the one hand, and implement Western zoning criteria in tribal lands, on the other. So far, the law and its promoters have been unable to provide a convincing explanation of how this can be achieved (Novellino, 1998).
The SEP created the Palawan Council for Sustainable Development (PCSD) which is mandated with the governance, implementation and policy direction of the SEP. Since its creation, PCSD's performance of its duties has been highly questionable. Indigenous interests have been poorly represented within the council, whose decisions clearly express the view of the government. Not surprisingly, PCSD has been responsible for releasing preliminary approval for the construction of a cement plant in southern Palawan and an environmental compliance certificate for an extension to the infamous Rio Tuba Nickel Mining (RTN), also in southern Palawan.
On a first reading it seems as though environmental laws such as the NIPAS and the SEP are more concerned with the protection of landscapes rather than of land (Novellino, 1998). Land and landscapes are not the same thing. The latter may be constituted by rocks, trees, streams, lakes, caves and so on, or a combination of these, while land is rather "the common denominator of the natural world" (Ingold, 1986: 154) which also includes people. The wider implication of land zoning is that it has the effect of disintegrating the unity of the indigenous country. As stated by Ingold, "to take away a country is to extinguish the sites that enfold the country [so that] it is no longer somewhere but nowhere, and thus utterly devoid of context" (Ingold, 1986: 157). Being isolated from the whole, tribal ancestral lands and natural biotic areas become meaningless to the local indigenous communities. People do not perceive their country as an enclosed and atemporal island, but rather as a continuum of indivisible features (Ingold, 1986) which are a repository of previous experiences and past events (cf. Rosaldo, 1986).
The indigenous groups living on Palawan island do not only hunt and gather but also practise shifting cultivation, which is their major productive activity. Access to swidden land and the clearing of new areas is open to every member of the society. The number of permanent improvements made on the land (e.g. planting of fruit trees) indicates that long-term rights are created. After marriage, children can begin to use plots of land that were originally opened by their parents and have completed the fallow period. They may also decide to open a swidden where none has existed before in living memory. It would appear that old swiddens (abandoned for more than 15 to 20 years) become free for the use of all members of the community, independently of who cleared them in the past. Local customary laws do not envisage the alienation of rights to pieces of communal land through sale. Individuals may claim rights to specific resources, but not to the land where such resources are found (Novellino, 1998). To give an example, an area covered by bäktik (Almaciga philippinensis) trees is managed by several individuals, each in charge of specific trees. However, not all forest products (rattan canes, game animals, fish, etc.) are subject to individual rights. Patches of forest with valuable fruit trees (Novellino and De Matteis Tortora, 1997; Novellino, in press a) such as däräq (Nephelium mutabile), bulnuq (Mangifera caesia), wani (Mangifera odorata), luwäd (Durio zibethinus), dugjan (Durio graveolens), bamboo groves and caves and other land features derive their significance from the relationship that people have established with such features, either in the historical past or through mythological events. Hence, trees may serve to trace back a relationship with members of previous generations who first planted or utilized them. All such features have a time dimension which creates a stable link between past and present, and they constitute the indigenous country.
Both indigenous people and conservationists are concerned with the increasing decline of natural resources. However, they seem to hold different perceptions of the causes of such decline. Conservationists are primarily concerned with the loss of biodiversity induced by habitat alteration, population growth and technological change. Conversely, indigenous people tend to perceive ecological imbalance more as the outcome of a social disorder in the relationships among humans, animals, plants and other entities (Novellino, 1997a; 1999a; 1999b; Novellino and De Matteis Tortora, 1997).
The conversion of forest (talun) into swidden field (uma) through slash-and-burn techniques is certainly the most radical form of environmental modification that the local indigenous communities are capable of. For the Pälaqwan, the forest is believed to be the domain of a large number of demons such as säjtan and länggam, the latter being caretakers of poisonous and biting animals (rämu-rämu) (Novellino and De Matteis Tortora, 1997). Before clearing a forest plot, various entities are consulted and propitiated. According to the author's Pälaqwan collaborators, after trees have been felled, the swidden is occupied or visited by various beings. During the months of November and December indigenous people refrain from walking around fallow fields at sunset, because this is the time when the taw dumadatäng (anthropomorphic creatures inhabiting the limits of the universe) harvest tugbu plants (Saccharum spontaneum), considered as their equivalent of rice. Special offerings are made to establish a friendly relationship with the visitors. The transformation from forest to swidden and the consequent switch in land management practices create the premises for the coming into being of a new set of social relationships (Novellino, 1999b). This does not necessarily imply the transformation of untamed nature into a domestic domain, and thus the switch from supernatural to human sovereignty, rather it activates new patterns of interactions, since the entities inhabiting the tree canopy are different from those occupying or visiting the swiddens, and different entities can cohabit and share overlapping domains. Ultimately, the swidden field becomes imbued with all the social relationships that have characterized its existence, from tree felling, to cultivation and final regression to its original state (the forest).
It is important to point out that, for the Pälaqwan, not only animals but also plants are endowed with human-like attributes and have the capacity of acting as autonomous agents (Novellino, 1997a; 1999a; in press b; Novellino and De Matteis Tortora, 1997). For instance, among some communities, the felling of the gumbja palm (Metroxylon sagu) is preceded by a sort of skirmish mimicking a duel between the gatherer (acting as a warrior) and the gumbja (addressed by the gatherer as kälang taw - the "Big Man"). Symbolically, the spearing of the gumbja represents the death of the kälang taw. One of the people who performs this ceremony has claimed that "the kälang taw would be disappointed if you say `I am going to fell the gumbja', instead you should say `Let's fight the kälang taw'." There is a clear relationship between the productivity of the gumbja (its ability to release starch) and the capacity of the gatherer to accredit the palm with a human identity. It would appear that, by being defined as kälang taw, the gumbja is attributed with human-like qualities and feelings. It is by virtue of the status accredited by the gatherer (the warrior) to the palm (the Big Man) that the latter becomes expendable to humans (Novellino, 1999a; 1999b; in press c)
As the above examples suggest, for the Pälaqwan, neither humanity nor the environment is dominant, rather, ecological and socio-economic aspects of life are intertwined and perceived by the people as indivisible parts of the same domain. It follows that successful dealings with the environment depend on humans' ability to communicate with non-human agents, hence enhancing the behavioural disposition of the latter (cf. Ingold, 1996). This is perceived as the prerequisite for defining the limits and obligations of both human and non-human entities over contiguous and overlapping territories, and thus allows the physical transformation of the environment (e.g. from forest to swidden).
Nearly 100 years of indigenous disagreement appear to have had only a marginal effect on the implementation of pro-indigenous laws. Land zoning has emerged as the new panacea to protect both the environment and indigenous livelihoods. Taking a provocative stand, it could be said that land categories such as natural biotic area and tribal ancestral land are not dramatically different from the outmoded concept of civil reservation, as described in Presidential Proclamation No. 11 (1986). In the words of A.B. Gaytmayan (1992: 30) such reservations were "remnants of that period in the Philippines' legal history which viewed indigenous peoples as incompetent, dependent wards of the State, for whom the government, under the principle of parens patria, had to enact special measures to protect them from themselves and others". A look at environmental legislation such as the NIPAS and the SEP shows that much of that paternalistic attitude has remained unchanged. Today, as in the past, communities inhabiting a natural biotic area or a tribal ancestral land receive government protection as long as they abide by norms established from above and, more important, they receive additional support from conservationists if they continue to live in "harmony with nature". Past evidence shows that protection provided by both government and conservationists against intruders cannot be ensured. To cite an example, the National Museum Reservation (Proclamation no. 1743) issued in 1978 to safeguard the Tau't Batu of southern Palawan is now heavily occupied by migrant settlers from other provinces.
At present, environmental laws represent one of the most serious threats to the indigenous struggle for self-determination and rights over land and resources. Ironically, much of the current impetus to save the Palawan rain forest continues to be based on the allegation that indigenous perceptions of the environment and traditional ways of using natural resources are consistent with Western conservation principles (cf. Conklin and Graham, 1995; Novellino, 1998). However, it is now evident that the relationship between conservationists' and indigenous priorities cannot be taken for granted. In spite of this, environmental laws continue to be seen as representing an acceptable compromise that saves both the people and their environment. Undoubtedly, the political vocabulary used by the NIPAS and SEP is an accommodating one. It was enough for the government to resort to name-changing, substituting obsolete land definitions with ones that sound more ecological and socially acceptable. In the end (and intentionally), notions of what constitutes biodiversity conservation with respect to cultural rights have remained fuzzy.
Unfortunately, the DENR's inertia has reduced indigenous peoples' hopes of having their ancestral domains recognized. The environment is rapidly deteriorating in the southwest portion of the island, which is now open to ruthless colonization. The road linking the north to the southwest coast has been built without the enforcement of any proper environmental protective measures. As a result, hundreds of hectares of forest have been felled, and settlers have entered the indigenous land. In April 1998, the worst forest fire ever seen in the Philippines ravaged the Pälaqwan's ancestral land. During the same period, in Rizal municipality, forest areas that were to be incorporated in new barangay settlement areas were cleared by means of fire, without safety precautions being taken.
So far, the financial crisis in Asia seems to have slowed most of the so-called "growth opportunities" envisaged by the Brunei-Indonesian-Malaysia-Philippine East Association of South-East Asian Nations (ASEAN) Growth Area (BIMP-EAGA), but a resurgence is likely to take place soon. The programme aims at strengthening cooperative ventures that accelerate improvements in trade and investments. This will imply an intensification of extractive activities (mining, logging, oil exploration, plantations) and the expansion of the manufacturing sector (wood and wood products such as plywood, the processing for export of palm oil, cocoa, fruits, copra, etc.). As stated in one BIMP-EAGA report: "Mindanao and the island of Palawan ... remain heavily dependent on agriculture, fishery and other natural resources, such as mining the world's richest nickel deposit, iron and coal reserves, as well as non-metal resources of limestone, gypsum, nitrate, sulphur and kaolin. Therefore, the region offers a wealth of opportunities to make use of these rich resources" (Zainuddin, 1997: 2). BIMP-EAGA priorities are clearly reflected in House Bill no. 6414 which proposes the transformation of southern Palawan into a special economic zone, through the setting up of manufacturing industries (electronics, garments, furniture, plastics, toys, shoes, ships and boat building) and the optimal use of available natural resources.
The future struggle for recognition of ancestral domains is likely to be difficult. A lack of political will is putting the IPRA at risk and, unless international funding is withdrawn from every programme that even hints at exploiting indigenous ancestral domains, hundreds of native communities are likely to be left desolate.
1 Fieldwork in Palawan was carried out while the author was a Visiting Research Associate at the Institute of Philippine Culture (IPC), Ateneo de Manila University, the Philippines. This research was made possible by the Colyer-Fergusson Award generously granted by the Faculty of Humanities of the University of Kent at Canterbury, the United Kingdom.
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