Legal pluralism in the Cordillera

BENCHWARMER

by Ramon Dacawi 

Legal pluralism, although often shoved under the rug, is emerging as a major issue y in natural resource ownership, access and management in the Cordillera. Conflicts between traditional or tribal customs and government policy issuances, processes and laws are becoming more pronounced, be it between siblings, kin, neighbors, traditional occupants against land  title holders, sitios, villages, barangays, towns and provinces. Reason enough for this update of a piece we composed after the Regional Development Council meeting in Aprjl, 2011 that coincided with the Lang-ay Festival in Bontoc, Mt. Province.

At the Regional Development Council meeting in April a few years back, we asked the Cordillera policy-making body to factor in the issue of legal pluralism in its efforts to help local government units settle their political and traditional boundary conflicts, some of which remain unresolved for decades now.

Legal pluralism, in the case of the Cordillera, refers mainly to the application of either the legal system of the state or indigenous or traditional law, whichever is deemed agreeable to both parties settling their differences. Conflicts arise when one party invokes the system he finds more to his advantage while the other party demands application of the other system.

The two-legal-system dimension surfaced during the RDC’s discussions on whether boundaries delineation should be based on political or state maps and guidelines or indigenous community mapping of ancestral domains. Under the Local Government Code, boundary tiffs between barangays are to b resolved by the municipal council while those involving two towns in the same province are decided on by the provincial sanggunian. However, as pointed out then by then Mt. Province governor and now congressional Rep. MaximoDalog, then host of the RDC meeting,  municipal councils and provincial boards are reluctant to decide on boundary conflicts lodged before them lest they lose the votes of residents of the local government units that would be adversely affected by their legislative judgment.

A representative of the Department of Budget and Management then also noted the practice of some barangays, towns, cities and provinces to bloat the areas of their political jurisdictions, if not their population figures. She said that a summary of the figures would reflect an expanded land area of this archipelago way beyond what is actually on the ground. Expanding the area is understandable as the share of the government units from the International Revenue Allotment is based on their respective population and geographical area figures.

More critical is the overlapping of boundaries triggered by the rivalry in the ownership, possession and use of resources such as water, mineral, and other natural resources which the Cordillera used to have in abundance. As these resources dwindle and as population rises, the demand for them becomes more pronounced, with parties invoking rights over them based on state or traditional law, whichever gives them the edge.

(On national and global scales, state laws and international treaties being forged tend to allow developed and powerful regions and nations access to the remaining natural resources of developing and undeveloped regions and nations. Most of what remains of the world’s resources lie on still-unexploited domains of indigenous people. While previous laws were tailored by colonizers to allow them access to these resources, rich regions and nations today are pressured more than ever to apply these laws cloaked by euphemism like “responsible mining” and “sustainable development”. In the process of resource exploitation, indigenous peoples are pushed out, some towards extinction, in favour of corporate greed. It’s ironic that while some conservation efforts are aggressively focused on the protection of endangered animal species such as frogs, the onslaught against the survival of the indigenous peoples is sometimes overlooked. The colonizer’s doctrine of terra nullius which justified the occupation of Aboriginal lands by Europeans who settled in Australia, on the pretext that these were un-tilled, un-cultivated by the Aborigines, remains a norm, although in other, more subtle forms.)

Over a decade ago, residents of Gonogon, a barangay of Bontoc, Mt. Province availed of the process provided by state law, particularly the Local Government Code, to protest what they claim was the sudden, unilateral act of neighboring barangays to expand their boundaries to dispossess Gonogon of its traditional water and mineral resources. Gonogon, through then village chief Jackson Paclayan, filed two petitions, one before the Sangguniang Bayan of Bontoc, against a neighboring barangay within the jurisdiction of the capital town, and another before the provincial sanggunian against a barangay of neighboring Sabangan town.

To pre-empt legal pluralism while awaiting (I guess until now) the decisions of the town and provincial councils, Gonogon, chief Paclayan, filed for and obtained from the National Water Resources Board a “water right” covering one of the village’s traditional water sources.

Similar conflicts over access to and ownership of resources are emerging all over the Cordillera. These may be between or among family members and relatives, between neighbours, between sitios, barangays, towns and provinces.

In Sagada, a resident admitted a breakdown in the cultural fabric when he found that the “mohon” or lot boundary monument between his property and that of a relative had been moved inward to his side and disadvantage. In Hungduan, Ifugao, a rice terrace owner found that the adjoining hill serving as buffer and “muyong” or “pinugo” (watershed) to her rice terrace and traditionally recognized as part of her property was recently declared for taxation towards eventual possession by a neighbor. The terraces were originally remote, in an area villagers believed then  was haunted by ghosts. The perception changed to lot speculation and actual occupation without regard to traditional values and customary property law when a highway to the town was built beside the rice fields.  

Would it be the tribal council or the barangay council, or the courts, which would resolve these conflicts? Whichever, would the decision be anchored on tribal or state law?  Reports have it that even forests traditionally deemed “bilid” or common, communal and community property over the generations are being declared as “muyong” or “tayan” by Johnny-come-latelies on pretense of inheritance according to tribal law. Eventually, however, those with tax declarations and other documents issued by the state will prevail, as the old folks, the so-called keepers of village memory who can testify traditional ownership according to customary law pass on from this mortal plane.

I am aware of two cases wherein traditional keepers of community water resources were sued in court for removing hoses recently tapped, without their knowledge and consent, by other villages, thereby  suddenly depriving the original owners of their lifeblood for centuries.  As Cordillerans, we are aware of recent armed conflicts between and among villages in their fight over dwindling water and other natural resources.  More conflicts are developing, giving grounded evidence to that prediction decades back that the next war would be over water.

Before more shooting wars occur, it would do well for our leaders in the region, the provinces, towns, and barangays to take a closer look and factor in legal pluralism in the settlement of boundaries. The issue seems to have been over looked or simply ignored for some time now. It’s getting more critical with each passing day, with the case of traditional owners getting weaker as their witnesses, the village elders who are the keepers of tribal memory needed to validate traditional ownership of resources, are dying.

Time was when tribal practice dictated that water is a shared resource, but never at the expense of traditional developer of the resource. It’s a tall order to restore this wisdom of our ancestors, given the dwindling of water and other natural resources that heightens material acquisitiveness, together with the greed of some of those who are supposed to lead us.

One thing is clear: The rate of erosion of the world-famous but endangered Cordillera rice terraces is directly proportional to the fraying of the culture that built and sustained them – together with the water and forest resources - for generations.

That’s one reason why I agree with those pushing for an autonomous region. They argue that cultural erosion and issues covering traditional ownership of, access to and sharing of resources can be better addressed and resolved through self-rule in these highlands.

Meanwhile, it would be well for local government units to take on the policy adopted years back by the town  Mankayan, Benguet. With support from the Department of Environment and Natural Resources, through then community environment officer Godfrey Cawis, the town council came up with an ordinance with  identified traditional community land, water, forest and other common property resources and declaring them inalienable, exempt from being declared for taxation or titling purposes by individuals.    (e-mail:mondaxbench@yahoo.com for comments.)