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Tuesday, June 5, 2018

Land reform vs reforming land use management in Boracay

First of 2 parts 
PRESIDENT Rodrigo Duterte has stated his intention to declare the entire island of Boracay as a land reform area.

There is a good chance that the President may just be floating a trial balloon, or at his usual game of trolling his critics to drive them crazy. However, if the President is seriously considering this option, then he must be told that unlike the closure of the entire island for rehabilitation, declaring Boracay as a land reform area may not be as easy. The path is littered with legal problems, which ironically are even found in the very provisions of RA 6557 of 1989, or the Comprehensive Agrarian Reform Law, as amended by RA 7881 in 1995, which created the Comprehensive Agrarian Reform Program (CARP).

Section 4 of RA 6557 states that the coverage of CARP will be limited to all alienable and disposable lands of the public domain, as well as private lands, that are actually devoted or suitable to agriculture. RA 7881, which amended RA 6557, specifically exempts forest reserves from coverage of CARP. Furthermore, Section 4a of RA 6557 prohibits the reclassification of forest lands into agricultural lands “until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain.”

It is a fact that Proclamation 1064 issued by President Gloria Macapagal-Arroyo in 2006 classified 400 hectares of Boracay as forestland for protection purposes, while 628.96 hectares were classified as alienable and disposable agricultural land in the public domain. The legality of this proclamation was upheld by the Supreme Court in G.R. 173775 promulgated in 2008.

Thus, and in the absence of a law that sets the limits of the public domain, the President cannot reclassify the portion of Boracay proclaimed as forest reserve into agricultural land for it to be covered by CARP, as it will run contrary to Section 4a of R.A. 6557. Legally speaking then, only the remaining portion which was classified by Proclamation 1064 as agricultural land in the public domain can be redistributed to farmers as part of CARP.

Contained in the land classified as such, however, is a 2.1-hectare area that has already been awarded to the indigenous Ati Tribe under RA 8371 of 1997, or the Indigenous People’s Rights Act (IPRA), and for which a Certificate of Ancestral Domain Title (CADT) was issued by the National Commission on indigenous Peoples (NCIP) in 2011. Both R.A. 8371 and R.A. 6557 are legislated social justice instruments which sought to give land to the landless, with the former awarding communal titles to indigenous peoples over their ancestral domains, while the latter awarding individual titles to landless farmers. To avoid conflict, the Departments of Agrarian Reform (DAR) and Environment and Natural Resources (DENR), the Land Registration Authority (LRA), and NCIP issued Joint Administrative Order No. 1 in 2012 which specifically stated that areas covered by CADTs are no longer available for land redistribution to farmers under CARP. This would then mean that the President may also not include the 2.1 hectares awarded to the Atis as part of his plan to implement CARP.

However, even the remaining areas classified as agricultural by Proclamation 1064—less the 2.1 hectare-lot awarded to the Atis—may not necessarily automatically qualify for coverage under CARP. In law, land classification is not necessarily the same as actual land use, considering that some lands may be classified as forest land but are without trees, or as agricultural land but are in fact devoted to non-agricultural uses. A close perusal of RA 6557 indicates that the intent is to limit land reform to areas that are actually devoted or suitable to agriculture, regardless of land tenure. RA 7881, which amended RA 6557, also provided for other exemptions under specific conditions, including private lands that are devoted to prawn farms and fishponds.

In addition, the Supreme Court, in G.R. No. 86889 promulgated in 1990, declared that lands devoted to poultry and livestock production are excluded from CARP coverage of CARP, and including them would be unconstitutional. The court anchored its ruling on the deliberations of the framers of the 1987 Constitution where agricultural land for CARP purposes was meant to be those that are “arable and suitable agricultural lands, and do not include commercial, industrial and residential lands.”

Thus, while the remaining lands in Boracay are technically classified as agricultural land in the public domain, whether they are actually devoted, or suitable, to agriculture for them to be covered by CARP, and whether their present occupants who, even without judicially recognized titles, can challenge the inclusion in CARP of the lands which they now occupy for commercial or residential purpose, will be matters that will have to be decided by the courts.

Beyond the legal issues that can weigh down any attempt to implement CARP in Boracay is the fact that land reform is supposed to be designed to award titles to farmers over the lands they actually till, or to landless farmers from other areas. There are very few farmers left in Boracay, except perhaps for the Atis. Bringing in landless farmers from other areas to become beneficiaries may also not be advisable, as it may lead to more problems that could even erupt into social conflict and violence. Besides, one has to ask if breaking up Boracay into small landholdings for agricultural purposes is the best way to optimize the economic potential and ecological characteristics of the island’s land resources, considering its current political economic realities as well as the natural productivity of the land in terms of soil fertility, crop compatibility and irrigation water availability.

One option that the President may want to explore, consistent with his pronouncement to make the original inhabitants of the island benefit, is to expand the coverage of the CADT of the Atis and let the provisions of the IPRA law apply. The other option is to ask Congress to pass legislation to declare Boracay as a protected landscape. Either of these options will allow for the present commercial and residential land uses, but would subject them to more rigorous oversight that will institute mechanisms to ensure not only social equity, but also ecological integrity. This would entail reforming the management of land use, and not land reform under CARP. (Next: Boracay as ancestral domain and protected landscape)


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