Advocate’s Overview: Laws affecting IPs: PD 705

October 23, 2011 in columns, Featured, opinion by emendator

By ARTHUR L. ALLAD-IW
www.nordis.net

In my last column, I traced the historical and institutionalization of the colonial Regalian Doctrine into the Philippine system. The feudal conquest theory that by virtue of discovery, declared all the lands and resources in their “newly discovered” territories as owned by the Spanish Crown. Though it is no longer the Spanish crown but the state who owns these resources, the doctrine was contained in the past constitutions: the 1935, 1972 and 1987. Under Section 2, Art XII of the 1987 Constitution, contained the Regalian Doctrine which states: “ All lands of the public domain, waters, minerals, coal, petroleum, and mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the state.”

From the lands of the public domain, the agricultural land, mineral land, national parks and reservations, and forest or timber land, only agricultural land can be alienated and disposed. Mineral, national parks and reservations, and forests or timber lands cannot be alienated and disposed. But these lands can be utilized by the state or leased to private individuals or corporations.

It is good to discuss the laws which reiterates the Regalian Doctrine, particularly on the inalienable and indisposable lands of the public domain. For instance, Presidential Decree 705 reiterates ownership of forest and timber lands, Republic Act 7586 governs the national parks and reservations, and RA 7942 governs the mineral lands.

For this issue, let us discuss how PD 705 affects indigenous peoples.

Passed during the time of Pres. Marcos in 1975, PD 705 is also known as the Forestry Reform Code. It declares that land of the public domain 18 % slope and over (or 10.2 degrees in slope or over) shall be classified as inalienable and indisposable. It also classified forest land as those falling above the said slope. To apply it to the Cordillera and other mountainous areas inhabited by indigenous peoples would mean their areas are forest land with the exceptions of lowland areas, which are below the 18% slope.

This same law provides that land falling under this category which was declared as alienable and disposable (and given Torrens Title) shall be reverted to the classification of forest land. Lands owned by indigenous peoples under the above category forms part of the forest. Hence, indigenous forest land, whether communally or clan owned, also forms part of the forest land and cannot be titled.

While this law recognized IP possession on places and abode and worship, burial grounds, and old clearings, it excludes from them (IP) production forest, commercial forest, and established plantations of forest trees and trees of economic value. By such, large areas of forests by IPs are part of the public domain as forest and can be subject of logging concessions.

Under this law, it criminalized the following acts without license agreement, lease, license or permit: cutting, gathering and/or collecting timber or other forest products; enters and occupies or possesses, or makes kaingin, grazing; pasturing; occupy for any length of time any portion of the national park system.

PD 705 actually criminalizes all IP activities in the declared forest. Yet the law failed to address the issue that the forests had been for years the IPs’ source of supplement for economic survival.

What happens to any person who violates any of the above-prohibited acts? PD 705 provides for a penal provision which provides fines and imprisonment. The cutting, gathering and/or collecting of timber and other forest products from any forest without license or permit are classified as theft or qualified theft and are provided punishment under the Revised Penal Code, as these acts are criminal. Aside the chance of being convicted of a criminal offense, the DENR are mandated to confiscate the forest products including conveyances used in the commission of the offense, which include tools and equipments for cutting such as saw, chainsaw, and bolo. Even motor vehicles used in transporting the forest products will be impounded.

PD 705 automatically declares as illegal the IP activities of cutting trees for firewood. It outlaws the IP system of use, management and utilization of their communal and clan-owned forests. In the Cordillera communities, the IPs had been practicing since the time of their ancestors a sustainable forest management. For instance, member of a clan can utilize their clan-owned forest, such as tayan, muyong, etc., but with the responsibility to ensure its conservation for their future children. For example, a married clan member can gather timber from the tayan for purpose of building a family house. Such is allowed by their clan’s tradition but after he is obligated to replace those trees used. And cutting of trees for building the house will only be allowed by the clan after the tayan has enough matured trees. This is an age-old indigenous system of forest conservation.

On the other hand, the vast forest is considered communally owned by the whole community. A communal forest can be utilized by any community member to supplement their survival, such as hunting and gathering, based on the customs and traditions of the community. However, each has an obligation for its conservation for future generations. This IP viewpoint on forest management is contradictory to the state’s viewpoint wherein forests can be subjected for commercial activities by individuals and corporations through license agreement, license, permit or lease. The forest is being seen by the state more for its commercial value which has led to the sorry state of our forests, and has greatly reduced the ecological balance. # nordis.net

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