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Land Tenure Stories in Central Mindanao Copyright Š 2009 Local Governance Support Program in ARMM (LGSPA) All rights reserved. The Local Governance Support Program in ARMM (LGSPA) encourages the use, translation, adaptation and copying of this material for non-commercial use, with appropriate credit given to LGSPA. Although reasonable care has been taken in the preparation of this manual, neither the publisher nor contributor, nor writer can accept any liability for any consequences arising from the use thereof or from any information contained herein.

Technical Team Advisory Committee Guiamel Alim Atty. Anwar Malang Marilyn Poitras Marion Maceda Villanueva Panel of Reviewers Atty. Gregorio Andolana Dr. Cristina Montiel Prof. Rudy Rodil Dr. Sukarno Tanggol Project and Editorial Direction Myn Garcia

ISBN 978-971-94065-8-7 Printed and bound in Davao City, Philippines. Published by: The Local Governance Support Program in ARMM (LGSPA) Unit 72 Landco Corporate Centre J.P. Laurel Avenue, Bajada 8000 Davao City, Philippines Tel. No. 63 8 2 227 7980-81 www.lgspa.org.ph Kadtuntaya Foundation, Inc. (KFI) Ground Floor, Community Training and Resource Center Building DoĂąa Pilar Street, Vilo Subdivision, Poblacion IV 9600 Cotabato City, Philippines Tel. No. 63 6 4 421 4222 Fax No. 63 6 4 421 2072 www.kadtun.org Mediators Network for Sustainable Peace, (MedNet) Inc. Units 314-316 3/F Llanar Building #77 Xavierville Avenue, Loyola Heights 1108 Quezon City, Philippines Tel. No. 63 2 433 3060 Telefax. 63 2 926 3060 Email: med_net99@yahoo.com.ph

Research Director Brenda Batistiana Deputy Research Director Rachel Aquino-Elogada Research Coordinator and Facilitator Madett Gardiola Writers Brenda Batistiana Atty. Nerissa Dalig Rachel Aquino-Elogada Edwin Golosino Marilyn Poitras Prof. Rudy Rodil Atty. Charina Sanz Zarate

Research Assistants Anthony Aba Suharto Amad Florderick Sanico Esmeralda Simpal Sarato Pasante Rodolfo Pelegrino Abdulkarin Pigkaulan Melanio Ulama Cesar Vergara Technical Coordination Joel Dizon Florderick Sanico Maya Flaminda J. Vandenbroeck Editor Sef Alba Carandang Mags Z. Maglana Photography Bobby Timonera, Cover photos & pp.5,65,75,149 Ted Whitecalf, p.157 Maya Faminda J. Vandenbroeck, p.23 Art Direction and Layout Jet Hermida, creativejet

Legal Researcher Atty. Nerissa Dalig Researchers Dr. Alano T. Kadil Prof. Rey Danilo C. Lacson

This project was undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA).

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stories

LAND TENURE

IN Central Mindanao

This research was undertaken by The Kadtuntaya Foundation, Inc. (KFI) in partnership with the Mediators Network for Sustainable Peace, Inc. (MedNet) and the Local Governance Support Program in ARMM (LGSPA)

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Land Tenure Stories in Central Mindanao


Section 6

Canadian Experiences in Indigenous Land Tenure Conflicts

Section 7

Conclusions and Recommendations

Selected Readings & References Tables

1. Moro, Lumad, Settler Population in the Five Provinces of South Cotabato, Sarangani, Sultan Kudarat, Maguindanao and Cotabato City, with percentage. 2000 Census 2. Public Land Law and Resettlement 3. Resettlement: Case of Cotabato 1918, 1939, 1970 Census

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4. Philippine Land Tenure Status, 2004 5. DAR Land Distribution Accomplishments by Region, in Hectares 1972-December 2006 6. Number of Issued Public Land Patents (Free Patent, Miscellaneous Sales and Homestead Patent) from 2003 to 2007 7. Approved CADTs from 2002 to November 15, 2008 8. Lots in Barangay Rangeban Patented to Christian Settlers 9. Positioning Analysis of Statements of Moro and Christian Settlers on the Causes of Conflict in Midsayap and Isulan Land Disputes 10. Positioning Analysis of Statements of Muslims and Christian Settlers on Conflict Resolution in Midsayap and Isulan Land Disputes 11. Conflicting Utterances of the Rajahbuayan Clan and Heirs of Bagumbayan Abpet

Figure Map 1. Mindanao in 1890

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Foreword

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ddressing the root causes of conflict is one of the six paths which are embodied in the National Peace Plan of the government. Years of pursuing this comprehensive policy show how land, invariably defined as territory and domain, is among the core issues which need to be prioritized in the different tracks of the peace process. In the case of Mindanao, the thorny issue of ancestral domain has made peace efforts more tricky. Thus, a thorough analysis and understanding of the complexity of land problems in the south has become imperative. This land tenure research entitled, Land Tenure Stories in Central Mindanao, is timely as it provides invaluable material which can serve as a reference for members of different government instruments to craft more effective peace strategies in dealing with tenurial conflicts at both the community level and the GRP-MILF peace talks. As the study delves into the histori-

cal background of tenure disputes in the areas of Cotabato, Maguindanao and Sultan Kudarat, sharper analysis and awareness on the current problems can be drawn. Knowledge of the general land tenure situation is important in the generation of appropriate interventions for dispute resolution, and the study helps in this regard as it outlines the laws and issuances, as well as the instruments, that govern land ownership. On the other hand, the social psychological framework which was used to describe competing interests, positions and possible entry points for conflict resolution gives a human face to the dynamics of land tenure conflict. It is our hope that efforts to understand and find solutions to the land problems in Mindanao will continue until we can truly say that peace has indeed come to our land.

Ambassador Rafael E. Seguis Chairperson Government Peace Panel for Talks with the MILF

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Assalamu Allaikum Warahmatullahi Wabarakatuhul!

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he Bangsamoro people have been unwavering in their quest for justice, freedom and self-determination as a birthright. The historical struggle that has been waged at different fronts is based on the legitimate claim to the homeland upon which the Muslim Ummah aspires to flourish. This is the premise that has held the MILF accountable to its people and this is the unchanging foundation of continuing efforts to pursue negotiations for acceptable solutions to the centuries-old conflict in Mindanao. “Land Tenure Stories in Central Mindanao� is laudable in its factual presentation of events and factors that underpin the disposession and marginalization of the Bangsamoro in their own land. As long as this injustice is not rectified, much less acknowledged, the conflict will persist despite all the efforts to improve the tenurial instruments and status of the different protagonists as exemplified in the narratives contained in the study.

In the end, it can be said that the specific land conflicts occuring in the communities among Moro, IP and settler populations, not only in the provinces covered by the study, cannot be dissociated from the struggle for the right to self-determination that has been led by the MILF. The study has in fact succeeded in relating the issues of land tenure to the larger need of recognizing identity and systems that define the Bangsamoro as a people. Strategies to address the recommendations that have been put forward in the concluding chapter of the study should therefore be explored at the levels of policy and implementation and in cooperation with the different sectors of Mindanao. The MILF is of the firm belief that all these can only be achieved in a spirit of genuine dialogue and sincerity among the key players in the peace process.

Ghazali Ja’afar Vice Chair on Political Affairs Central Committee, Moro Islamic Liberation Front (MILF) Land Tenure Stories in Central Mindanao

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Preface

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he Kadtuntaya Foundation, Inc. (KFI), the Mediators’ Network for Sustainable Peace (MEDNet), Inc. and the Local Governance Support Program in the Autonomous Region in Muslim Mindanao (LGSPA) are privileged to partner together in undertaking this important policy research. In consultation with civil society organizations as well as government bodies, land tenure was identified as among the major causes of land conflict in Central Mindanao. But when further probed, it was recognized that this dimension of land conflict was only one part of the problem. This, combined with the other aspects of culture, history, legal systems and political dimensions were ascertained to be at the very root of the problem and must be considered when studying and making conclusions.

the cultural, economic, political and social psychological dimensions of land issues were distilled. A historical account of the significant events and issuances of land laws that have led to the current disputes on land provided a comprehensive background for a deeper analysis of these issues. Experiences of the First Nations in Canada were presented to provide a broader perspective of similar history of struggle, land policies, efforts to resolve land claims and lessons that can be shared.

This collaborative effort aims to contribute to the pursuit of sustainable peace in Mindanao by particularly focusing on the complex issue of land tenure. The study offers recommendations that will help build a comprehensive framework for resolving tenurial conflicts that considers the different dimensions and promotes community-based alternatives to conflict resolution. KFI, MEDNET and LGSPA hope that this modest contribution will be harnessed by partners in enriching the discourse on genuine solutions to resolving the long-standing issue of land and the Moro and indigenous peoples respective rights to self- governance.

“Land Tenure Stories in Central Mindanao” uses multiple lenses to study land conflicts and attempts to unpack and make sense of the complex issues that surround land disputes experienced by the Moro, Christian and Indigenous People. The complexity necessitated the tapping of different perspectives and disciplines to probe the nuances pertaining to land, land use, property rights and agrarian-based institutions in Bangsamoro, Christian and indigenous communities.

Kadtuntaya Foundation, Inc. (KFI) Mediators’ Network for Sustainable Peace (MEDNet), Inc. Local Governance Support Program in ARMM (LGSPA)

Through an analysis of specific cases representing different typologies of property ownership and tenurial arrangements, VII

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Acronyms A&D AFP ARMM BC BJE BOL CA 141 CADT CARL CARP CCCH CENRO DAR DENR GRP IATF ICC IPRA

Alienable and Disposable Armed Forces of the Philippines Autonomous Region in Muslim Mindanao British Columbia Bangsamoro Juridical Entity Board of Liquidators Commonwealth Act 141 Certificate of Ancestral Domain Title Comprehensive Agrarian Reform Law Comprehensive Agrarian Reform Program Coordinating Committee for the Cessation of Hostilities Community Environment and Natural Resources Officer Department of Agrarian Reform Department of Environment and Natural Resources Government of the Republic of the Philippines Inter-Agency Task Force Indian Claims Commission Indigenous People’s Rights Act

LASEDECO LGSPA LMB LMS MILF MNLF MOA-AD NARRA NCIP OIC PEEI PENRO RED RTC RTD TD VOS

Land Settlement Development Corporation Local Governance Support Program in ARMM Land Management Bureau Land Management Sector Moro Islamic Liberation Front Moro National Liberation Front Memorandum of Agreement on Ancestral Domain National Resettlement and Rehabilitation Administration National Commission on Indigenous People Officer-In-Charge Philippine Evangelical Enterprises, Inc. Provincial Environment and Natural Resources Officer Regional Executive Director Regional Trial Court Regional Technical Director Technical Description Voluntary Offer to Sell

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G lossary of Terms ADAT The term literally means custom and usages, or simply customary law embracing all the customs and traditions of the Malayan community which were given through usage, the force of law in the course of time. They were enforced by tribal elders and chiefs. The Adat law resembles the Common Law in England. Like the Common Law, it is based on reason and common sense known in jurisprudence as equity. The adat law is principally unwritten, being a case law and it adapts to change in time. An adat one hundred years ago may no longer be an acceptable adat today. (Musib M. Buat: Survey of Filipino Muslim Adat (Customary) Law: Mindanao Journal/Vol. 111, No. 3-4, p.9, On the Codification of Muslim Customary (Adat) and Qur’anic Laws, Papers of the Sixth Annual Seminar on Islam in the Philippines and Asia, September 20-23, 1973, Ateneo de Davao College, Davao City.)

their respective customs and traditions. (Musib M. Buat: Survey of Filipino Muslim Adat (Customary) Law: Mindanao Journal/ Vol. 111, No. 3-4, p.9, On the Codification of Muslim Customary (Adat) and Qur’anic Laws, Papers of the Sixth Annual Seminar on Islam in the Philippines and Asia, September 20-23, 1973, Ateneo de Davao College, Davao City.)

ANCESTRAL DOMAIN All lands and natural resources in the Autonomous Region that have been possessed or occupied by indigenous cultural communities since time immemorial, except when prevented by war, force majeure, or other forms of forcible usurpation”. It includes “pasture lands, worship areas, burial grounds, forests and fields, mineral resources, except: strategic minerals such as uranium, coal, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy; lakes, rivers and lagoons; and national reserves and marine parks, as well as forest and watershed reservations”. (Article X, Section 1, Republic Act 9054, An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao)

AGAMA The Muslims of the Philippines were governed by Islamic law. They had their own courts which they called agama and their own judges. Also, the Philippine Muslims since the early centuries were already enjoying a relatively high degree of civilization. The sultanates in Sulu and Maguindanao were part of a constellation to Sultanates in Southeast Asia. These sultanates were Muslim outposts, governed by Islamic law and

Ancestral domain does not form part of the public domain but encompasses ancestral, communal, and customary lands, maritime, fluvial and alluvial domains as well all natural resources therein that have inured or vested ancestral rights on the basis IX

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BANGSAMORO The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the indigenous people shall be respected. (The GRP-MILF Draft Memorandum of Agreement on the Ancestral Domain)

of native title. Ancestral domain and ancestral land refer to those held under claim of ownership, occupied or possessed, by themselves or through the ancestors of the Bangsamoro people, communally or individually since time immemorial continuously to the present, except when prevented by war, civil disturbance, force majeure, or other forms of possible usurpation or displacement by force, deceit, stealth, or as a consequence of government project or any other voluntary dealings entered into by the government and private individuals, corporate entities or institutions. (The GRP-MILF Draft Memorandum of Agreement on the Ancestral Domain)

Bangsamoro is the collective identity of the Islamized people in Mindanao, in the islands of Basilan and Palawan, and the Sulu and Tawi-Tawi archipelago in the south of the Philippines. It consists of two words, Bangsa and Moro. Bangsa is a Malay word the political connotation of which means nation, and Moro is the name given by the Spanish colonialists to the Muslim population of Mindanao similar with the name they call the Muslims of North Africa who for centuries ruled the Iberian peninsula. Combining the two words, Bangsamoro means Moro nation. (Abhoud Syed M. Lingga, Chairman, Bangsamoro People's Consultative Assembly, http://democracy.mkolar.org/BangsamoroSelf-Determination.html, Geneva, Switzerland, July 17, 2002)

ANCESTRAL LANDS Lands in the actual, open, notorious, and uninterrupted possession and occupation by an indigenous cultural community for at least 30 years. (RA 9054) The term also refers to land occupied, possessed and utilized by individuals, families and clans who are members of the Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) since time immemorial, by themselves or through their predecessors in interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. (Chapter II, Section 3 (a), Republic Act 8371 “Indigenous Peoples Rights Act�)

BANGSAMORO HOMELAND The Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. (The GRP-MILF Draft Memorandum of Agreement on the Ancestral Domain)

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Passano. 2006. Food and Agricultural Organization (FAO) Land Tenure Alternative Conflict Management. Rome: FAO).

CADASTRAL SURVEY The Cadastral Survey in the Philippines is a survey covering an entire municipality or city consisting of several or many parcels of land undertaken for the purpose of title clearance and land registration. Cadastral Act 2259, which governs the Cadastral Survey, is intended primarily for the purpose of quieting title to any land within a particular area by way of compulsory registration proceedings and thus minimizing land conflicts. The owners of lots surveyed must lay claim to their land holdings and must prove their ownership during the subsequent court proceedings because failure on their part to do so may give the court no choice but to declare these lands as public lands (http://www.cadastraltemplate.org/countrydata/ph.htm).

CUSTOMARY LAWS This refer to a body of written and/or unwritten rules, usages, customs and practices traditionally and continually recognized, accepted and observed by respective ICCs/IPs. (Chapter II, Section 3 (f ), Republic Act 8371 “Indigenous Peoples Rights Act”)

CERTIFICATE OF ANCESTRAL DOMAIN TITLE The term refers to a title formally recognizing the rights of possession and ownership of ICCs/IPs over their ancestral domains identified and delineated in accordance with this law. (Chapter II, Section 3 (c), Republic Act 8371 “Indigenous Peoples Rights Act”)

HOMESTEAD Homestead is a mode of concession designed for frontier areas or virgin lands of the public domain. Used by the Americans to hasten settlements and development of the West, it was incorporated in the first Public Land Act of 1903, and is still provided for in the present Constitution and C.A. No. 141, as amended. (Casanova, Ramon. “Public Land Laws of the Philippines.” In Philippines-Australia Land Administration and Management Project. July 2002. Land Laws and Regulations Policy Study. Final Report. Vols. 1 and 2. (Report A2) http://www.phil-lamp. org/lamp2studies.html)

COMMUNAL OWNERSHIP This is a commonly used term to describe those situations where rights to use resources are held by a community. It often includes communal rights to pastures and forests, and exclusive private rights to agricultural and residential parcels. In such community-based tenure regimes, people may not have the right to transfer their land to others, or may have strictly limited rights to transfer (for example, transfers may be limited to heirs through inheritance, or sales may be restricted to members of the community.) (Herrera, Adriana and Maria Guglielma da

“Ilaga” MOVEMENT The years 1969 to 1972 was a period of indiscriminate encounters between Muslims and Christians, mostly in Central Mindanao, that peaked in 1971 popularized by the media as the “Mindanao crisis”. The Ilaga emerged during this period that was first convened by seven politicians in Cotabato led by Mayor Nicolas Dequina of Midsayap. Muslim leaders later tagged the seven politicians as the Magnificent Seven. In an interview with historian B.R. Rodil, Mayor Dequina claimed that this was organized in self-defense. The Ilaga evolved into self-supporting XI

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paramilitary groups, complete with integral religious rituals, the observance of which would reportedly render the members invulnerable to bullets and other instruments of violence. (Rodil, B.R. 2003. A Story of Mindanao and Sulu in Question and Answer. Davao City: MinCode, pp. 135-136)

the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains. (Chapter II, Section 3 (h), Republic Act 8371 Republic Act 8371 – Indigenous Peoples Rights Act)

INDIGENOUS CULTURAL COMMUNITY Filipino citizens residing in the Autonomous Region who are: (a) Tribal peoples –these are citizens whose social, cultural and economic conditions distinguish them from other sector of the national community; and (b) Bangsamoro people –these are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions. (Article X, Section 3, Republic Act 9054, An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao)

INDIGENOUS PEOPLES There does not seem to be one definitive definition of indigenous people, but generally indigenous people are those that have historically belonged to a particular region or country, before its colonization or transformation into a nation state, and may have different—often unique—cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state. (United Nations Permanent Forum on Indigenous Issues)

INDIGENOUS PEOPLES/INDIGENOUS CULTURAL COMMUNITIES A group of people or homogenous societies identified by selfascription and ascription by others, who have continuously lived as an organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited

LAND DISPUTE Land dispute is a disagreement over land. A land dispute occurs where specific individual or collective interests relating to land are in conflict. Land disputes can operate at any scale from the international to those between individual neighbours. At whatever scale, the dispute is likely to owe as much to the general psychology of neighbourly relations as to actual problems relating to the land. (Herrera, Adriana and Maria Guglielma da Passano. 2006. Food and Agricultural Organization (FAO) Land Tenure Alternative Conflict Management. Rome: FAO).

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LAND TENURE Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. (For convenience, “land� is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e., rules invented by societies to regulate behaviour. Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions. (Herrera, Adriana and Maria Guglielma da Passano. 2006. Food and Agricultural Organization (FAO) Land Tenure Alternative Conflict Management. Rome: FAO).

Guadalupe Formation Center, Balindog, Kidapawan, Cotabato, Philippines. It is the self-ascription and collective identity of the non-Islamized indigenous peoples of Mindanao. The name Lumad grew out of the political awakening among various tribes during the martial law regime of President Ferdinand Marcos. It was advocated and propagated by the members and affiliates of Lumad Mindanaw, a coalition of all-Lumad local and regional organizations, which formalized themselves as such in June 1986 but started in 1983 as a multi-sectoral organization. Lumad Mindanaw’s main objective was to achieve selfdetermination for their member-tribes, or, put more concretely, self-governance within their ancestral domain in accordance with their culture and customary laws. No other Lumad organization has had the express goal in the past.

LAND TENURE SYSTEM The land tenure system in a given jurisdiction comprises the set of possible bases under which land may be used. As such this range encompasses both rural and urban tenures and includes ownership, tenancy and other arrangements for the use of land. (Ciparisse, Gerard. 2003.Food and Agricultural Organization (FAO) Multilingual Thesaurus on Land Tenure)

Representatives from fifteen tribes agreed in June 1986 to adopt the name; there were no delegates from the three major groups of the T'boli, the Teduray and the Subanen. The choice of a Cebuano word was a bit ironic but they deemed it to be most appropriate considering that the various Lumad tribes do not have any other common language except Cebuano. This is the first time that these tribes have agreed to a common name for themselves, distinct from that of the Moros and different from the migrant majority and their descendants. (Wikipedia)

LUMAD The Lumad is a term being used to denote a group of indigenous peoples of the southern Philippines. It is a Cebuano term meaning "native" or "indigenous". The term is short for katawhang lumad (literally "indigenous peoples"), the autonym officially adopted by the delegates of the Lumad Mindanaw Peoples Federation (LMPF) founding assembly in June 26, 1986 at the

NATIONAL MINORITIES Non-Muslim hill tribes referred to under Presidential Decree No. 719 and other non-Muslim national minorities whether referred to as National Cultural Minorities or Cultural Communities under other laws. (Presidential Decree No. 1414- Presidential Assistant on National Minorities or PANAMIN (June 9, 1978) XIII

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NATIVE TITLE The term refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest. (Chapter II, Section 3 (l), Republic Act 8371 Republic Act 8371 – Indigenous Peoples Rights Act)

vation of such patrimony. (Republic vs. Intermediate Appellate Court, 155 SCRA 412; etc.) (Bilog, Gregorio. 2005. Land Titles and Deeds. Manila: Rex Book Store, Inc., p. 12)

RIDO The term used by the Maranao, Iranun, and Maguindanao referring to clan conflicts or violent retaliations. It also refers to a state of recurring hostilities between families and kinship groups characterized by a series of retaliatory acts of violence carried out to avenge a perceived affront or injustice. (Wilfredo Magno Torres III, ed. Rido: Clan Feuding and Conflict Management in Mindanao. 2007. Makati City: The Asia Foundation, p. 12)

PUSAKA The term refers to communal land ownership where the Sultan or the state had no right to alienate these lands because they were ancestral and belonged to the tribes. The members of the tribe may mark the boundaries of their lands with appropriate trees. The claim to a tribal land is usually proven by existence of an ancestor’s tomb (tampat). (Musib M. Buat: Survey of Filipino Muslim Adat (Customary) Law: Mindanao Journal/Vol. 111, No. 3-4, p.9, On the Codification of Muslim Customary (Adat) and Qur’anic Laws, Papers of the Sixth Annual Seminar on Islam in the Philippines and Asia, September 20-23, 1973, Ateneo de Davao College, Davao City.)

RIGHT TO SELF-DETERMINATION Right to self-determination is the right of peoples to freely determine their political status; and freely pursue their economic, social and cultural development. (Article 3, United Nations Declaration on the Rights of Indigenous Peoples) TORRENS SYSTEM The Torrens system of land registration was introduced in the Philippines by Act No. 496, which took effect on February 1, 1903. This law was amended and superseded by Presidential Decree No. 1520, which took effect on June 11, 1978, otherwise known as the “Property Registration Decree.” This is the principal law now governing land registration in the Philippines. The originator of the system was Sir Richard Torrens, 1814-1884, reformer of Australian Land Laws. (Bilog, Gregorio. 2005. Land Titles and Deeds. Manila: Rex Book Store, Inc., p. 9)

REGALIAN DOCTRINE The “Regalian Doctrine” or jura regalia is a western legal concept that was first introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedulas. (Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128). The concept denotes that “all lands of the public domain belong to the State, and that the State is the source of any asserted right to ownership in land and charged with the conser-

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Introduction

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and conflicts are among the top causes of armed clashes in Mindanao (Torres, 2007; Tolibas-NuĂąez, 1997; Muslim, 1994). These are also the topmost causes of rido (i.e., inter-family or inter-clan vendetta conflicts) in Basilan, North Cotabato, Sulu, and the three Zamboanga provinces in Mindanao (Kamlian, 2007). In Lanao del Sur, these problems are said to be second to politics as reason for rido (Matuan, 2007). In North Cotabato and Bukidnon, these same problems are the fourth cause of armed conflicts (Alim et al, 2007). In general, land conflicts are land tenure disputes over ownership or who owns the land.

or governance within their own ancestral domains. This is crucial because it questions the very foundations both of the republic’s landholding system and the basis for governance.

But this is only one dimension of the problem. The other dimensions are ethnic and political which have risen to prominence in recent years; all three are sometimes so closely intermeshed that it has become extremely difficult to see one without the other two. Solutions, too, must be viewed in this broad perspective. Ethnic because a land dispute, fairly recent in origin, inevitably involves a clash of cultures and systems, usually modern (read: government) laws versus customary laws on land ownership and disposition. Political because the Moro and the Lumad, marginalized or displaced by massive governmentsponsored migration and resettlement from the north in the 20th century and finding themselves having nowhere else to go, have launched their respective struggles for self-determination

The Present Study Designed as an initiative to see through this mesh and start a process of finding solutions to the voluminous cases of land ownership disputes, this study was undertaken in two parts. The first part is a survey of land laws that have affected Moro lands since before the coming of Spanish and American colonizers. The second part is focused on five cases of land tenure problems in the provinces of Cotabato, Maguindanao and Sultan Kudarat.

Therefore, it is not just a fight between two claimants within the Torrens system of land ownership; it is also a clash between two concepts, the Regalian Doctrine, and native title. For the Moro, claiming that they possess the fundamental right to determine their final political status, resolution of the problem requires a sovereignty-based settlement between the Moro nation and the Republic of the Philippines.

The five cases of land tenure disputes are: (a) between Moros and Christian Settlers in Impao, Isulan, Sultan Kudarat ; (b) between Moro ancestral land’s claimants and a Christian settler in Barangay Rangeban, Midsayap, Cotabato; (c) between a Chris1

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tian academic institution and a Moro family in Isulan, Sultan Kudarat; (d) between two Moro clans in an area now covered by either Barangay Damacling, Municipality of Paglat, Maguindanao, and Barangay Popoyon, Municipality of Tulunan, of Cotabato, and (e) between a Moro group and the Manobo tribe in Carmen, Cotabato.

macro level analysis is political because it concerns land laws of the State. The micro or community intergroup level analysis can be viewed as a reflection or ramification of the macro situation. In analyzing the land laws and the statements of the parties of the land conflicts during the interviews from the perspective of positioning theory, this study stresses the importance of understanding the social psychological dimension of the conflict to reach resolution.

The cases are merely five faces of land tenure problems in the three provinces of Cotabato, Maguindanao and Sultan Kudarat. But there are more than enough indicators from the events of the 70s to the present that the problem of land tenure in Central Mindanao is widespread, multi-faceted and multi-layered. It had also generated its own share of bloodshed. This is how serious the problem is; studies are mere openings towards possible resolution.

Research Methodology The research methodology is qualitative. For the first part of the study, copies of land laws that have affected the Moro lands were gathered from available documents, including the internet. Content analyses to identify the underlying storylines, positioning of stakeholder groups, and the appearing intent of major land laws were done. For the second part of the study, representatives of the parties of the identified land conflict cases were interviewed. The chronology of events according to each party was summarized and presented, and transcripts of the interviews were content analyzed to identify underlying storylines, positions of self and of the other party, and appearing intent of statements during the interviews.

Conceptual Framework These two parts of the study were woven together by the positioning theory as the analytical framework. As a social psychological analytical lens used to study discourses at an interpersonal, intergroup and societal levels, positioning theory describes the mindsets or perspectives of the people involved, as well as the interaction and transformation of these mindsets during the course of the discourse. This analysis is done by identifying the underlying: a) storyline of spoken and written statements, b) the positions, such as believed rights and duties of the speaker or writer as well as of the intended recipients of the statements, and c) the appearing intentions or outcome of the statements (Harre & van Langenhove, 1999). In using the positioning theory for its two parts, this study is able to provide a macro political and micro intergroup positioning analyses. The

To assist the research team, an advisory group of Moro leaders was formed. A validation workshop and a review by a panel of experts were also held to examine the findings, conclusions and recommendations. It is also important to mention that this research was undertaken based on the recommendations of the participants of focus group discussions with civil society organizations and government agencies.

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Significance of the Study It is not clear how this study will impact on ethnic and political issues at this point, but it is hoped that it will serve as trigger for figuring out a series of solutions, starting from institutionalizing a decisive government policy that will resolve once and for all cases of land disputes, especially those that have bearing on the Lumad and Moro fight for self-determination. If indeed this takes place, it will not only create a positive climate of relationships among the people, it will also contribute concretely to the eventual political settlement between the Government and the MILF.

Contents of the Study To provide a more comprehensive picture of the land conflict situations, this paper begins with an overview of the history of land conflicts in the Provinces of Cotabato, Maguindanao and Sultan Kudarat, where the selected five land disputes are located. Government data on the land tenure situation that are believed to affect the land disputes in the communities, such as the five land disputes in this study, are also included. As well, this study includes a section on the experiences of the aboriginal people of Canada in land tenure conflicts —a good source of a wealth of lessons on conflict resolution and transformation.

Limitations of the Study As in many other studies, this present study has limitations. First, the five land disputes are only a few and may not be a comprehensive and representative sample of the many land disputes in Central Mindanao and in ARMM for that matter. Second, the parties of the featured cases were the ones who selected their representatives to the interviews and focus group discussions. Except for the land disputes between a Christian academic institution and a Moro family, and the conflict between two Moro clans, the interviewed parties of the other three land disputes were males. Thus, the participation of women in the study was very limited. Third, three of four interviewers are Christians, and their identity may have influenced the answers of the informants to the questions. Given these limitations, further studies or multi-stakeholder forums would be helpful to further validate the findings and build on the recommendations of this research. The Moros and other peace stakeholders in Mindanao should be given the paramount position to determine the direction and courses of action to resolve the land conflicts in Mindanao.

In all, this paper is divided into seven sections. Section 1 provides the historical contexts of land conflicts in the three provinces and the general land tenure situation in Mindanao. Section 2 is a survey of land laws that have affected the land rights of the Moro. Section 3 is a positioning analysis of the major land laws cited in Section 2 and of alternative policies such as MOA-AD developed through peace negotiations. Section 4 presents five land conflict stories involving Moros in North Cotabato, Sultan Kudarat, and Maguindanao. Section 5 is a positioning analysis of the land conflicts presented in Section 4. Section 6 presents the success stories related to resolution of land tenure conflicts experiences by the aboriginal people of Canada. And finally, Section 7 consolidates the analyses in the previous sections, and, on this basis puts forward a set of recommendations for a land policy framework in Mindanao and for the resolution or transformation of the land disputes.

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Historical Background of Land Conflicts in the Provinces of Cotabato, Maguindanao and Sultan Kudarat

F

rom 1968 to 1972 Central Mindanao was a world in turmoil. From 1972 to 1976, it was in a state of war. From 1977 to 1996, it was still technically a war zone. From 1997 to the present, the Joint Ceasefire of the Government and the Moro Islamic Liberation Front defined it as conflict-affected areas. And, almost in the very same areas affected by the abovementioned turmoil, war rages between the Government Armed Forces and the MILF guerilla units. Until this conflict is politically settled, no one knows how much longer it will last.

appreciate this complex intertwine, its various dimensions and its depth, and find a way to untangle it, a quick review of Mindanao history is needed.

The Setting: the Empire province of Cotabato The bigger setting of the five cases is within the territory earlier popularly but unofficially known as the empire province of Cotabato. It has since been subdivided into the five provinces of Cotabato, South Cotabato, Maguindanao, Sultan Kudarat and Sarangani, and is traditional home to several indigenous tribes, some of which are Islamized, some not. Those Islamized, now also known as Moro or Bangsamoro are the Maguindanaon, Iranun, and Sangil. Those who have generally retained their indigenous belief system are the Teduray, Manobo, Blaan, T’boli, Dulangan Manobo and Lambangian; they are also known as Lumad, a Bisayan word that means indigenous, a recent selfascription adopted by the indigenous communities of Mindanao in 1986. The choice of a Bisayan name is for pragmatic reasons since it happens to be the lingua franca of Lumads whenever

If Central Mindanao is divided now into the zones of Lanao and Cotabato as in the old days, the five case studies on land tenure stories narrated here would be situated on the Cotabato side. The factors that brought turmoil and war together and the details of the stories of the five case studies have become so closely intertwined in one way or the other that untangling them has become a huge complex problem in itself. To more fully 66

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they come together in big conferences from all over Mindanao. It has become a home, too, to settlers who came in the 20th century and their descendants who were born and grew up here. Now they have no other home.

Table 1 Moro, Lumad, Settler Population in the Five Provinces of South Cotabato, Sarangani, Sultan Kudarat, Maguindanao and Cotabato City PROVINCE

TOTAL Population

According to the 2000 census, the whole region has a total population of slightly over four million, 1.1 million of which or 28.25 percent is Moro, 413,562 or 10.30 percent is Lumad and 2.4 million or 61.45 percent is settler. In the three particular provinces of the case studies, Cotabato, Maguindanao and Sultan Kudarat, the populations vary. In terms of percentages, Cotabato’s population is 19.55 percent Moro, 6.27 Lumad, and 74.17 settler; Maguindanao count is 79.01 percent Moro, 7.37 percent Lumad and 13.62 percent settler; that of Sultan Kudarat is 22.09 percent Moro, 7.80 percent Lumad and 70.12 settler. [See Table 1 for more details]

South Cotabato

Number

LUMAD

Percent

Number

SETTLER

Percent

Number

Percent

1,100,511

50,636

4.60

126,624

11.51

923,251

83.89

Sarangani

410,137

37,633

9.18

120,638

29.41

251,866

61.41

Cotabato

957,294

187,195

19.55

60,062

6.27

710,037

74.17

Sultan Kudarat

585,768

129,373

22.09

45,682

7.80

410,713

70.12

Cotabato City

161,517

97,218

60.19

1,573

0.97

62,726

38.84

Maguindanao

800,369

632,382

79.01

58,983

7.37

109,004

13.62

4,015,596

1,134,437

28.25

413,562

10.30

2,467,597

61.45

Grand Total Source: 2000 Census

The Maguindanaon The indigenous inhabitants in all five cases are Maguindanaon, belonging to the ethno-linguistic group known locally as Maguindanao. They have been professing Islam since the arrival of Sharif Kabungsuan around 1515 AD. They are locally identified and subdivided among themselves as Maguindanao sa ilud or those from downstream of the Pulangi River or Maguindanao sa laya or those from upstream of the Pulangi. Other indigenous Moro groups, smaller in population and occupying smaller territories, are the Iranun and the Sangil.

The Players in the Land Tenure Cases Maguindanaon, Manobo, Ilonggo, corporate groups (King’s college, the municipality, Bureau of Lands, DENR): these are the affiliations carried by the main players in the five land dispute cases of this study. The specific locations of the cases are within the particular provinces of Cotabato, Maguindanao and Sultan Kudarat. The first two of the players are indigenous, Maguindanao and Manobo; the third is settler, Ilonggo and Ilocano, and, of course, one may add the government. Today the parties can also be referred to collectively as Moro or Maguindanao, Lumad or Manobo, and settlers also known as dumagat/homesteaders/ home seekers, and government, respectively.

The Manobo groups The other indigenous inhabitants in Carmen, Cotabato are the Arumanen Manobo –Arumanen for short– and they have retained their native belief system; some of them have adopted Christianity though they continue to identify themselves as Manobo. Traditionally inhabiting the Cotabato area along the Pulangi as far as southern Bukidnon, the Arumanen are subdi7

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vided into at least ten subgroups: Livunganen, Isuruken, Kirinteken, Divevaan, Simuniyen, Mulitaan, Ilianen, Dungguanen, Lehitanen, Direyaan. In Cotabato, their territories are encompassed in the following municipalities: Pigcawayan, Libungan, Alamada, Banisilan, Carmen, Kabacan, Matalam, President Roxas; and in the towns of Damulog, Kadingilan, Kalilangan and Kibawe in Bukidnon. There are also the Arakan Manobo and the Ubo Manobo in the region towards Mount Apo. The Manobos in the Sultan Kudarat area are called Dulangan Manobo and the Lambangian, both close relatives of the Teduray.

the other group, older as a sultanate by almost 169 years, was the Sulu Sultanate, founded in 1450 AD. A third was the Pat a Pongampong ko Ranaw (the four principalities of Lanao).

The Settlers/Dumagat/ Homesteaders/Home Seekers The settlers are 20th century arrivals from northern Philippines, part of the influx of migrants attracted by the resettlement programs of the government from American colonial times. Certain areas of Cotabato became destinations of large groups of settlers belonging to particular ethnic groups, e.g. Koronadal Valley became heavily populated with Ilonggos; Kabacan in Cotabato and Lambayong in Sultan Kudarat were occupied by Ilocanos.

Maguindanao was badly mauled at the end of the Spanish colonization owing to continuous battering during the second half of the 19th century, hence, its leaders were compelled to sign agreements that compromised the sultanate’s sovereignty. However, it remained unbowed and unconquered to the very end. In fact, at the time of the Treaty of Paris in December 1898, there were at least three de facto states in what is known today as the Philippines. The Philippines had declared its independence six months earlier, all of Morolandia, the Sultanates of Sulu, Maguindanao and Pat a Pongampong ko Ranaw, even the un-Islamized indigenous tribes of Mindanao, were still uncolonized. Each one of these was summarily and unilaterally included by Spain in the 20-million dollar cession of the Philippine Islands to the United States. It was a spurious transaction to say the least. But if there was any question about the dubious character of this transaction, it was rendered moot and academic by the American armed conquest of Pilipinas, the sultanates of Sulu, Maguindanao, the Pat a Pongampong ko Ranaw and the other indigenous tribes.

Indigenous Population in Cotabato provinces Even prior to the arrival of the Spaniards in Mindanao, the two principalities of Maguindanao, Maguindanao sa ilud and Maguindanao sa laya had lorded it over the southern region, even as far north as the Visayas. Unified under Sultan Kudarat, the Maguindanao Sultanate became one major bastion of Moro resistance to Spanish attempts to conquer and colonize the Moro;

As the new owners and colonizers of the Philippine Islands, the Americans imposed the regalian doctrine, after the practice in the days of the monarchy when it was the king who owned the land within his kingdom. Though using the regalian doctrine, American democracy is founded on the principle that sovereignty resides in the American people. The American colonial government abolished the indigenous practice of communal owner-

Other Lumad groups in the Cotabato provinces are the Teduray, Blaan and T’boli.

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ship of land and institutionalized the torrens system. Individuals and juridical entities, such as corporations, could now own land. It decreed the implementation of resettlement programs whereby certain sparsely populated areas of the Philippine islands were opened to migrants from the more populated regions.

The land distribution scheme and the public land laws which provided the legal basis for resettlement were discriminatory to say the least: a classic example of class legislation. What happened in the empire province of Cotabato is a very interesting study.

Public land laws, resettlement and marginalization The public land law, in its original and later, amended forms, specified not only how alienable or public lands may be acquired but also how many hectares may be acquired by whom. In the initial version of the public land act of 1903, Public Land Act 926, homesteaders were allowed to own 16 hectares and corporations, 1,024 hectares; there was no provision for non-Christians. In 1919 the law, Public Land Act 2874 was enacted, which increased the hectarage for homesteaders to 24 hectares and retaining 1,024 hectares for corporations. There was a provision for non-Christians this Table 2 time; only they were Public Land Law and Resettlement allowed only smaller HECTARAGE ALLOWED lots of 10 hectares. Year Homesteader Non-Christian Another amendment 1903 16 has. No provision was made in 1936, when 1919 24 has. 10 has. Commonwealth Act 1936 16 has. 4 has. 141 was passed, during the Commonwealth period. The allowable hectarage for homesteaders reverted to 16 hectares, the same 1024 hectares allowed for corporations, but for non-Christians, hectarage was reduced to four. [See Table 2] A classic case of class legislation is the only conclusion one can draw from this. How did it impact on the demographic situation of Cotabato and Mindanao as a whole?

It also institutionalized labels which has deeply affected not only land distribution but also the relationship between the Christian majority and the non-Christian minority. In the 1903 census, the people were neatly divided into two classifications, Christians and non-Christians, the Christians being those who were converts into Catholicism during the Spanish colonial period and the non-Christians being those who were not; this last were the Moro and the “wild tribes�. Worse, the Christians were described as civilized and the non-Christians uncivilized. These labels found their way into the public land laws.

Traditional land grants voided In 1903, the American-dominated Philippine Commission enacted a law, Philippine Commonwealth Act 718, which declared as null and void all land grants made by traditional leaders such as sultans, datus, timuays and the like if done without consent of the government (meaning the American colonial government). The various public land laws classified the lands into inalienable and non-disposable and alienable and disposable. The torrens system prescribed how lands can be owned by individuals and corporate entities. Certain areas of the Philippines were opened to resettlement, such as Cagayan Valley and Nueva Ecija, Mindoro and Palawan in Luzon, and Mindanao. Except for a little portion of Bongao in Tawi-Tawi, the Sulu Archipelago was spared from this land distribution scheme. 9

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Corporation 1024 has. 1024 has. 1024 has.

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The empire province of Cotabato had 25 municipalities in the census of 1918, 32 in the 1939 count, and 48 in the 1970 enumeration. In 1918, 20 of these towns were majority Moro, five majority Lumad, and none were majority settlers.. In 1939, 20 of these towns were still majority Moro, nine were majority Lumad, and three majority settlers. In 1970, less than 60 years after the large scale movement of migrants started in 1913, the settlers’ predominance was felt in 38 towns, majority Moro towns went down to ten, and there were no more that were majority Lumad. [See Table 3]

• •

Table 3 Resettlement: Case of Cotabato 1918, 1939, 1970 Census

Year

No. of Moro Majority Towns

No. of Lumad Majority Towns

No. of Settler MajorityTowns

1918

20

5

0

1939

20

9

3

1970

10

0

38

The resettlement programs listed below facilitated the large scale movement of population from the north, from 1913 to 1971. Still, there were numerous others who came on their own. • • •

1913: Act 2254 Agricultural Colonies Act creating agricultural colonies in Cotabato Valley (Pikit, Pagalungan, Glan) 1914: Commonwealth Act 2280 creating an agricultural colony in Momungan (Balo-i), Lanao 1919: Commonwealth Act 2206 authorizing provincial boards to manage colonies. Zamboanga opened Lamitan; Sulu opened Tawi-Tawi; Bukidnon opened Marilog; Cotabato opened Salunayan and Maganoy to settlers

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• • •

1919-1930: Resettlement implemented by the Inter-island Migration Division of the Bureau of Labor; opened Kapalong, Guiangga, Tagum, Lupon and Baganga in Davao; Labangan in Zamboanga and Lamitan in Basilan; Cabadbaran, Butuan and Buenavista in Agusan; Momungan and Kapatagan valley in Lanao. It brought in more settlers to Pikit and Pagalungan 1935: Act 4197 Quirino-Recto Colonization Act/ Organic Charter of Organized Land Settlement 1939: Act 441 Creating National Land Settlement Administration (NLSA); opened Koronadal Valley (Lagao, Tupi, Marbel and Polomolok), Ala Valley (Banga, Norala and Surala) and Mallig plains in Isabela 1949: Rice and Corn Production Administration (RCPA) created to promote rice and corn production; Opened Buluan in Cotabato and Maramag-Wao in Bukidnon-Lanao border 1950: Land Settlement Development Corporation (LASEDECO); opened Tacurong, Isulan, Bagumbayan, Part of Buluan, Sultan sa Barongis, Ampatuan 1951: Economic Development Corps (EDCOR) for captured and surrendered Huks; opened Arevalo in Sapad, Lanao del Norte; Genio in Alamada, Gallego and Barira in Buldon, all in Cotabato, and two other municipalities in Isabela and Quezon 1954: RA 1160 created the National Resettlement and Rehabilitation Administration (NARRA) 1963: Land Authority inaugurated land reform, also managed resettlement 1971: RA 6389 created the Department of Agrarian Reform (DAR), implemented resettlement thru the Bureau of Resettlement

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Thirty seven (37) settlements were administered all over the country, eighteen (18) of which were in Mindanao in the ten provinces of Tawi-Tawi (Balimbing-Bongao), Zamboanga del Norte (Liloy, Salug, Sindangan), Bukidnon (Maramag, Pangantukan, Kalilangan), Agusan del Sur (Prosperidad, Talacogon), Davao del Norte (Sto. Tomas, Panabo, Asuncion), Lanao del Norte (Sapad, Nunungan, Karomatan), Lanao del Sur (Wao, Lumba-a-Bayabao, Bubong, Butig, Lumbatan, Bayang, Binidayan, Pagayawan, Tubaran), North Cotabato (Carmen, Alamada), Maguindanao (Buldon, Upi-Dinaig) and Sultan Kudarat (Columbio, Tulunan, Isulan, Bagumbayan, Surallah).

Sur and Sibugay; and Cotabato, Sultan Kudarat; South Cotabato and Sarangani were marked as territories of the Infieles or “unbelievers”, those we now call Lumad. Those marked as occupied by the Moro were the solid areas corresponding to Maguindanao, Lanao del Sur and Norte, Basilan and the entire Sulu archipelago. In addition, strips of coastal areas from the mouth of the Pulangi in Cotabato southward to Sarangani and eastward to Davao, all the way to Davao Oriental, were also populated by them. The Cristianos occupied coastal strips from Davao Oriental upward to Surigao, then westward to Agusan del Norte, Misamis Oriental, Iligan, Misamis Occidental, Dipolog and Dapitan and Zamboanga City. These Cristianos were largely converts from the local Bisayan speaking population during the Spanish colonial period, corresponding roughly to the Davaweños, Surigaonon and several similar sub-groups in Surigao, Butuanon, Gingoognon, Cagayanon, Iliganon, Misamisnon, and Dapitanon. The Zamboangueños were said to have originated from Merdicas who were brought in by the Spaniards from the Moluccas.

What could be seen in the above is the process and impact of resettlement in Cotabato. The above also narrates the story of how the indigenous Moro and Lumad communities were reduced to the status of numerical minorities in their own territories by force of law. What happened in Cotabato was also reflected elsewhere in Mindanao – all legally supported by law and relevant government agencies. From 1971 onward, the Department of Agrarian Reform merely managed existing resettlement areas.

By the 1970 census, the radical change in the demographic situation is indicated by the fact that only eight municipalities had remained Lumad-dominated, as follows: Esperanza, Agusan del Sur – 66.35%; Impasugong, Bukidnon – 75.97%; San Fernando, Bukidnon – 61.43%; Sumilao, Bukidnon – 78.26%; Talakag, Bukidnon – 56.93%; Jose Abad Santos, Davao del Sur – 60.57%; Malita, Davao del Sur – 61.90%, and Lapuyan, Zamboanga del Sur – 60.25%. Three more were added afterwards, namely, South Upi, Maguindanao – 62.39% Teduray; Lake Sebu – 58.52% and T’boli – 67.69%, both in South Cotabato, T’boli, for a total of 11.

Mindanao in 1890 In 1890, Ferdinand Blumentritt, an Austrian ethnographer and close friend of Dr. Jose Rizal, produced a map based on data obtained from Jesuit missionaries stationed in Mindanao. This was recently digitized by Dr. Sabino “Abe” Padilla of the University of the Philippines-Manila. It shows that the greater parts of Mindanao corresponding roughly to Davao City, Davao Oriental, Davao del Norte, Compostela Valley and Davao del Sur; Agusan del Norte and Sur; Bukidnon; Surigao del Norte and Sur; Misamis Oriental and Occidental; Zamboanga del Norte11

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Map 1. Mindanao in 1890

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Only the following areas remained predominantly populated by the Moros, Maguindanao - (part of Cotabato); Lanao del Sur - 91.97%; Basilan - 63.29%; Sulu - 97.23%; Tawi-Tawi - (part of Sulu), including 15 municipalities in other provinces: Palawan (1), Zamboanga Norte (2), Lanao Norte (9), Sultan Kudarat (2), and Cotabato (1).

The cost was staggering: in 1971 alone more than 1,000 people were killed in the so-called Central Mindanao crisis; from 1970 to 1996, but mainly from 1972 to 1976, between 100,000 to 120,000 perished, fifty percent of whom were MNLF, thirty percent military, and twenty percent mostly Moro civilians; Php 73 billion were spent on combat expenses alone on the side of the government.

The rest have become predominantly Christian-settler towns and provinces.

Not satisfied with the GRP-MNLF Tripoli agreement of 1976, which established autonomy for the Moros in southern Philippines, and the Final Peace Agreement in 1996 on the implementation of the Tripoli agreement, and convinced that the Bangsamoro problem has not been solved, the Moro Islamic Liberation Front (MILF) launched its own struggle for Moro national self-determination. Figures on casualties between 1997 and 2009 are not available. What can be gathered is the cost during the three-month all out war declared by government on the MILF in the year 2000: 15 to 20 million pesos per day, and evacuees of more than one million all in all.

Marginalization and Rebellion It should be pointed out that marginalization did not only involve the reduction of the indigenous Lumad and Moro communities to numerical minorities in their own lands; it also includes being sidelined in the political sphere, in economic life, in culture. Mainstream Filipino culture and values taught in school is Christian-secular in both private and public institutions. The period 1960s to 1970s attracted the convergence of ingredients in Mindanao and the Philippines that gave birth to the Moro rebellion and martial law. One became the excuse for another: Sabah claim, Jabidah military training, Jabidah massacre, Muslim (later Mindanao) Independence Movement, student activism all over the country, Moro student activism in Al-Azhar University in Egypt, Ilaga, Blackshirts, Barracuda, Central Mindanao crisis, collaboration between Moro traditional political leaders and young Moro activists, training of Top 90 in Sabah. Their coming together triggered the volcanic eruption which the MNLF call the Moro war of national liberation from the clutches of Filipino colonialism.

After 11 years of peace negotiations from January 1997 to August 4, 2008, a political settlement would have been reached had the GRP-MILF Memorandum of Agreement on Ancestral Domain been signed in Putrajaya on August 5, 2008. But that was not to be. Opposition politicians filed for a temporary restraining order with the Supreme Court, obtained it, and prevented what could have been a historic agreement. This became the trigger for the resumption of hostilities between government forces and the MILF. This in turn became the excuse for Government to declare it was no longer willing to sign the document. Instead it proclaimed a change of paradigm on the peace process, a shift 13

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from formal negotiations to authentic community dialogue and DDR: demobilization, disarmament and rehabilitation. Less than three months after the aborted signing, the Supreme Court ruled that the MOA-AD was unconstitutional. So it was back to war.

displacing them in their own lands (read: territory), policies that promoted mainstream Filipino culture and subordinated Moro and other local cultures in both education and media, policies that allowed the Moro less and less opportunity to govern themselves, and the series of violent events all had the collective effect that facilitated their alienation and reinforced the decision to resort to armed rebellion and pursue secession. These were highlighted by the Jabidah massacre in Corregidor, the Central Mindanao crisis of 1971 highlighting the massacres in Manili, Carmen, Cotabato and Tacub, Kauswagan, Lanao del Norte. Central Mindanao was on fire; hardly a day passed without a violent incident in Cotabato, South Cotabato, Lanao del Sur and Lanao del Norte.

It seems that only three MILF base commands were involved in the fighting, not the entire MILF. And it was the three commanders of these commands that the military establishment were ordered to pursue. They have remained at large as of this writing; guerilla encounters still rage.

Land Tenure Problems It was during the Central Mindanao crisis of 1971, when Christian and Muslim populations were severely polarized, that fighting raged between the Ilaga and the Blackshirts in Cotabato, between Ilaga and Barracuda in Lanao del Norte, and between Muslim and Christian civilians that many Moro families left their lands: some sold for a pittance, some simply abandoned for fear of their lives. There were also many instances when Christian families, presumably with Ilaga connections, moved into these lands. Some succeeded in titling them.

The Moro struggle for self-determination immediately implies a number of fundamental ideas. First, Moro is a collective identity, that of a nation adopted by the Moro National Liberation Front (MNLF) for those who should constitute the Bangsamoro – the thirteen (13) Islamized ethnolinguistic groups, the Lumad indigenous communities and Christianized Lumad individuals, and Christians who have adopted the Moro cause as their own. Second, self-determination is the desire to govern themselves. The initial form was a Bangsamoro Republic. But with the Tripoli agreement of 1976, the MNLF agreed to settle down to autonomy under the sovereignty and within the territory of the Republic of the Philippines. Third, the declaration of an ancestral homeland is the broad definition of territory for self-governance. Initially the MNLF referred to the entirety of Mindanao, Sulu and Palawan as their ancestral homeland. In time, through negotiation, this became 13 provinces in the Tripoli Agreement of 1976, and through the plebiscite of 2001, this territory finally

Moro Self-Determination From the establishment of the Mindanao Independence Movement to the creation of the MNLF and the resumption of the Moro struggle by the MILF, the Moro struggle for self-determination is obviously - and this is acknowledged by the National Unification Commission during the term of President Fidel Ramos - a Moro response to the series of discriminatory official policies embarked upon by government, from colonial times to the present. Land ownership policies that had the effect of Land Tenure Stories in Central Mindanao

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settled down to the five predominantly Muslim provinces of Maguindanao, Lanao del Sur, Basilan, Sulu and Tawi-Tawi.

they generally acquired their lands through legitimate means, following the laws of the land. Further, they would like the government to observe democratic processes in dealing with the ancestral domain claims of both the Bangsamoro and the Lumad.

With the resumption of the Bangsamoro struggle by the MILF and the entry of ancestral domain into the agenda of the GRPMILF negotiations, the term came to include not only the traditional lands of the various Moro ethnolinguistic groups but also portions of those territories which used to be encompassed within the political domain of the sultanates. Among other things, the MILF negotiating panel expressed the Bangsamoro desire to settle disputes or claims over those lands Moros lost by force majeure from 1968 onward.

General Implications of Moro and Lumad Struggles for Self-Determination A number of issues were surfaced by MNLF’s political position. One, it questions the very foundation of the Republic of the Philippines - that of one country, one territory, one people. Formed from the sovereign states of the Sulu and Maguindanao sultanates and the Pat a Pongampong ko Ranao, the Bangsamoro is said to have been appended to the Philippines through the Treaty of Paris, and later in the formation of the Republic of the Philippines, without their plebiscitary consent. They are Bangsamoro, not Filipino. The good part of this position is that the proponents, MNLF and MILF, open themselves to negotiation and compromise.

Lumad Self-Determination The Lumad struggle for self-determination is less complex. Lumad is their collective identity; they have their own right to self-determination; and they wish to govern their own lives using their customary laws within their own ancestral domains – within the national territory and under the sovereignty of the republic of the Philippines.

Two, the Lumad communities, threatened by this political stand, later came forward with their own assertion of selfdetermination. They express respect for the Bangsamoro identity and the Bangsamoro struggle for self-determination but they assert that they are Lumad; they too have their own right to self-determination, and they have their own respective ancestral domains distinct from that of the Bangsamoro. Besides, their ancestors and those of the Bangsamoro entered into agreements (variously called safa, pakang, dyandi, khandugo, tampuda hu balagon) on territory (read: border agreements); these agreements are still in effect and they would like these recognized by the present generation of Bangsamoro. A renewal

In response to Bangsamoro claims that the Lumad communities form part of the Bangsamoro and their ancestral territories form part of Bangsamoro ancestral domain, Lumad leaders have repeatedly made manifest their official position in several written statements. More on this is shared below.

Settlers’ Proprietary Claims The general position of the settlers is that they are aware that they migrated from outside Mindanao, mostly from the northern and central Philippines; they resettled in Mindanao, but that 15

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of these agreements is certainly desirable. This statement of position was contained in the manifesto printed in Bisaya and in English, put together and signed by 200 Lumad leaders from all over Mindanao and Palawan who assembled in Cagayan de Oro City on August 24-27, 2008, to assess their situation and express their views on the GRP-MILF Memorandum of Agreement on Ancestral Domain. The English version is entitled “The Cagayan de Oro Declaration on the Memorandum of Agreement on Ancestral Domain of the GRP-MILF Peace Panel.”

they have relatives in government, they have relatives among the Ilaga. One eruption can easily trigger another. Settling these five cases will have a symbolic value. Not only will it create a positive climate of relationships among the people, it will also contribute concretely to the eventual political settlement between the Government and the MILF. Lumad ancestral domain claims can be satisfied with greater facility, and their Certificate of Ancestral Domain Titles (CADT) can be accomplished and delivered if the Indigenous Peoples Rights Act is appropriately funded and implemented in earnest. Even the ancestral domain claims of small groups of Moros can be secured —this has been done recently in Basilan.

Three, the settlers are definitely threatened by both ancestral domain claims and feel very insecure by these political developments. Aside from the formal peace talks between the Government and the Moro Fronts, there is an obvious need for the Lumad, the Moro and the settlers and their descendants to talk to each other and figure out a modus vivendi as citizens of the Philippine state.

Settling these five cases can create a climate of peace, the space may be small in the beginning but it will surely trigger the settlement of other cases. Who does not want peace: peace among the Lumad, the Moro and the settlers? As a Manobo Timuay from Carmen has reportedly stated (as noted in Rudy Rodil’s “A Story of Mindanao and Sulu in Question and Answer”, 2003), “Mindanao is like a kolon or a clay pot. These three groups are like the three stones that support the clay pot: remove one stone and the pot topples and breaks.”

The Five Case Studies The five cases are micro-histories; the main players are identifiable and seem to be open to settlement. And, most important, their cases can be settled by a simple arrangement, the usual government interagency task force. But these are undoubtedly only the tip of the proverbial iceberg. The wildfire that hit Central Mindanao in 1971 and the war that raged thereafter, until today, are more than enough indicators that there are other cases like these waiting to be attended to. The players in many other cases are not islands in themselves. They have relatives in the MILF; they have relatives in the MNLF; they have relatives in the AFP; they have relatives in the Philippine National Police,

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Land Tenure Situation in Central Mindanao Apart from an understanding of the historical background of the land tenure disputes in the provinces of Cotabato, Maguindanao and Sultan Kudarat, knowledge of the general land tenure situation in Mindanao is also deemed to be important in the generation of appropriate interventions for dispute resolution. This section provides a glimpse of the current land tenure situation. 16

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Titled and Untitled Alienable and Disposable Lands The total alienable and disposable land area of Mindanao, as shown in Table 4, is divided into 4,503,520 parcels (LEI, 2004). This represents 18.61% of the total number of land parcels in the Philippines, which is 24,200,575. Of this total number of land parcels in Mindanao, only more than half or 50.18% are titled as of 2004. In Central Mindanao, 51.05% of parcels of land remain untitled as of 2004. However, tax parcels or parcels with tax declaration in Central Mindanao comprise 92.88%. The difference of 43.93% from the percentage of titled parcels (48.95%) refers to a portion of untitled lands, in which “owners” or claimants use tax declaration as land tenure instrument. This big percentage of untitled lands in Central Mindanao can make land tenure insecure and land ‘ownership’ contentious, and can lead to land disputes.

Table 4 Philippine Land Tenure Status, 2004

Region

1

Total Land Parcels (A) 2,348,361

% Titled Parcels (B/A)

Untitled Parcels (C)

922,071

39.26

1,426,290

Titled Parcels (B)

% Untitled Parcels (C/A)

Tax Parcels (D)

% of Tax Parcels (untitled) (D/A-B/A)

60.74

2,067,127

88.02

48.76

2

1,370,566

863,199

62.98

507,367

37.02

1,282,782

93.60

30.62

3

2,458,399

1,616,531

65.76

841,868

34.24

2,245,129

91.32

25.56

4

4,275,886

2,743,366

64.16

1,532,520

35.84

3,978,019

93.03

28.87

5

1,339,289

541,520

40.43

797,769

59.57

1,164,154

86.92

46.49

NCR

1,549,636

1,389,904

89.69

159,732

10.31

1,496,102

96.55

6.86

CAR

960,464

527,018

54.87

433,446

45.13

667,032

69.45

14.58

LUZON

14,302,601

8,603,609

60.15

5,698,992

39.85

12,900,345

90.20

30.05

6

1,615,431

823,543

50.98

791,888

49.02

1,440,791

89.19

38.21

7

2,392,839

928,332

38.80

1,464,507

61.20

2,100,678

87.79

48.99

8

1,386,184

435,813

31.44

950,371

68.56

1,248,706

90.08

58.64

VISAYAS

5,394,454

2,187,688.00

40.55

3,206,766

59.45

4,790,175

88.80

48.24

9

918,923

522,420

56.85

396,503

43.15

566,958

61.70

4.85

10

983,030

435,545

44.31

547,485

55.69

841,065

85.56

41.25

11

684,797

428,822

62.62

255,975

37.38

654,815

95.62

33.00

12

721,756

353,268

48.95

368,488

51.05

670,360

92.88

43.93

13

667,574

181,740

27.22

485,834

72.78

598,554

89.66

62.44

94.23

30.14

85.02

34.84

88.92

34.99

ARMM 527,440 338,039 64.09 189,401 35.91 497,025 Land Records MINDANAO 4,503,520 2,259,834.00 50.18 2,243,686 49.82 3,828,777 According to the 2007 records of the Land PHILIPPINES 24,200,575 13,051,131 53.93 11,149,444 46.07 21,519,297 Management Bureau (LMB), seven municiSource: Land Administration and Management Project (LAMP) - DENR palities (of 17 municipalities and two cities) in North Cotabato have not yet been cadastrally 10 municipalities. In Maguindanao, only four of the 22 municisurveyed. In Sultan Kudarat, two municipalities (of 11 municipalities in the list of LMB have been cadastrally surveyed. palities and one city) have also not yet been cadastrally surveyed. This situation is also true for seven municipalities and DENR Administrative Order 2007-29 entitled Revised Regulatwo cities in South Cotabato, which has two cities and a total of tions on Land Surveys defines cadastral surveys made to deter17

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% Tax Parcels (D/A)

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mine the metes and bounds of all parcels within an entire municipality or city for land registration and other purposes.� This survey is necessary to define the boundaries of parcels of lands, including political boundaries of barangays, municipalities, cities and provinces. A former official of the Land Management Bureau cited various reasons for the delay in the cadastral surveying not only of lands in Mindanao but also of many areas in the country. One reason is lack of resources because surveying requires human resources, equipment, and funds. Another reason is lack of cooperation of local government officials, who fear that their area of jurisdiction will be reduced, and with it their internal revenue allotment (IRA), after defining the political boundaries. Another reason is the refusal of land occupants to let surveyors enter their properties. Many are also afraid that surveying and titling of lands may trigger rather than resolve conflicts within families and communities.

Table 5 DAR Land Distribution Accomplishments by Region, in Hectares 1972-December 2006 Region

Scope (Hectares)

Accomplishment (Hectares)

% Accomplishment

No. of ARBs

PHIL

4,428,357

3,826,214

86

2,201,934

CAR

77,856

86,777

111

67,587

I

140,340

127,690

91

103,333

II

300,055

325,217

108

183,066

III

405,290

387,083

96

244,970

IV-A

204,818

147,298

72

93,059

IV-B

170,817

151,183

89

107,289

V

453,769

258,068

57

153,731

1,752,945

1,483,316

85

953,035

VI

559,688

342,550

61

238,914

VII

166,802

132,518

79

99,608

VIII

385,505

374,522

97

163,578

849,589

76

502,100

LUZON

VISAYAS

1,111,995

IX

158,469

190,717

120

107,884

X

269,799

266,636

99

150,064

XI

202,279

207,714

103

144,456

XII

431,035

438,181

102

186,750

CARAGA

200,262

198,926

99

96,444

CARP Implementation ARMM 301,573 191,135 63 61,201 In one of the land disputes in this study, an heir of a MINDANAO 1,727,086 1,622,517 94 789,733 land survey claimant developed interest in land which Source: Department of Agrarian Reform 2006 Accomplishment Report their family had left decades ago and have not occupied since because of the benefits of registering it under According to DAR (2000), the land transfer component of the the Voluntary Offer to Sell (VOS) scheme of the Comprehensive Comprehensive Agrarian Reform Program is almost complete in Agrarian Reform Law (CARL). Because of this, a discussion of Mindanao, with 94% of the target land area distributed to qualiCARP implementation is included in this section. fied agrarian reform beneficiaries. This is significantly higher than in Luzon and the Visayas, with 85% and 76% accomplishLand Tenure Stories in Central Mindanao

Land Tenure Book 1001.indd 18

18

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ments, respectively. As shown in Table 5, the high percentage of distributed lands in Mindanao is due to the reported over-thetarget accomplishments of the Department of Agrarian Reform (DAR) in Regions IX, XI and XII. However, Rodriguez and Borras (2004, pp.31-33) argued that “although these data suggest that the land problem in Mindanao is nearly fully resolved, realities at the ground level reveal contradictory symptoms. This requires us to examine official reports on land redistribution with a critical eye.” They especially cited the reduction of the original scope of CARP in Regions 10, 11, and 13, where “nearly 9 of every 10 hectares deducted from the scope came from the category of private land marked for compulsory acquisition – suggestive of the political, not merely administrative, nature of the basis for deducting these landholdings from the DAR scope” (p. 33).

Table 6 Number of Issued Public Land Patents (Free Patent, Miscellaneous Sales and Homestead Patent) from 2003 to 2007 REGION/ PROVINCE PHILIPPINES

311,934

%

Female 61

197,921

%

Total

39

509,865

1,419

59

998

41

2,417

CAR

19,548

62

12,083

38

31,641

1

24,701

59

17,384

41

42,085

2

27,156

66

13,766

34

40,922

3

20,220

61

13,184

39

33,404

4A

28,500

61

18,488

39

46,988

4B

26,099

69

11,955

31

38,054

11,598

57

8,775

43

20,373

159,241

62

96,633

38

255,884

6

12,178

52

11,163

48

23,341

7

17,797

57

13,157

43

30,954

8

31,492

58

22,664

42

54,156

Luzon

Visayas

61,467

57

46,984

43

108,451

9

13,066

59

9,249

41

22,315

10

24,793

63

14,430

37

39,223

11

16,475

65

8,896

35

25,371

12

13,328

63

7,858

37

21,186

13

23,564

63

13,871

37

37,435

Mindanao

91,226

63

54,304

37

145,530

% of Total 100%

50.19%

21.27

28.54%

* Data from Region IX and X for 2006 are not sex-disaggregated. * No data from Region V for 2006. * No data from ARMM. Source: Department of Environment and Natural Resources (DENR)

Implementation of the Indigenous Peoples’ Rights Act The distribution of Certificates of Ancestral Domain Titles (CADTs) from 2002 to November 15, 2008 appears to be equally vigorous in Luzon and Mindanao. Although the number of

CADTs in Luzon (46 CADTs) is four CADTs higher than in Mindanao (42 CADTs), the total size of land area covered and the number of individual beneficiaries are higher in Mindanao 19

Land Tenure Book 1001.indd 19

Male

NCR

5

Disposition of Alienable and Disposable Public Lands The total number of public land patents (i.e., free patents, homestead patents and miscellaneous sales patents), issued from 2003 to 2007 is 509,865, of which 28.54% is located in Mindanao. This is significantly lower than the proportion of patents issued in Luzon (50.19%) and a little bit higher than in Visayas (21.27%). This implies that the issuance of public land patents has been more vigorous in Luzon than in Mindanao and Visayas. This is alarming because the application for land patents was one of the few mechanisms provided by the Public Land Act for non-Christians to use and own alienable and disposable public land.

2003-2007

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(1,248,970.2027 hectares with 245,186 individual beneficiaries) than in Luzon (1,029,744.6881 hectares with 216,342 individual beneficiaries). With the approval of their CADTs, the rights of at least 21 tribes in Mindanao over their respective ancestral domains have been recognized by the government. This has been made possible by the enactment and implementation of the Indigenous People’s Rights Act (IPRA) of 1997 or Republic Act 8371.

related to the national struggle of the Moros for the recognition of Bangsamoro rather than for their separation into distinct tribes. However, the NCIP said that Moro tribes can still avail of CADTs, if they opt to. If the tribe is within their mandate (i.e., included in their list of 110 tribes), the NCIP can act on this Moro tribe’s application for CADT in coordination with the Office of Southern Cultural Communities-Autonomous Region in Muslim Mindanao (OSCC-ARMM). For instance, a CADT has been issued to the Sama-Bangingi tribe in Lantawan, Basilan.

The Moros do not appear to be included in the above list of tribes. According to the National Commission on Indigenous People (NCIP), this was because they did not categorize themselves as an indigenous people or tribe during the preparation and enactment of the IPRA law, and therefore excluded themselves from its coverage. This situation may be

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The five land disputes of this study cannot be understood if divorced from its historical and situational contexts. Some of the recommendations for the resolution of land tenure disputes, as discussed in the Conclusion Section, were thus drawn from this first section.

20

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Table 7 Approved CADTs from 2002 to November 15, 2008 Region

No. of CADTs

Area (in Hectares)

CAR

12

210,933.0116

No. of Individual Beneficiaries 119,847

Tribes/IPs that Benefited Bago, Kankanaey, Ibaloi, Isnag, Kalanguya, Ayangan, Tuwali, Karao

1

4

21,222.1352

17,174.00

2

9

399,338.72

35,423.00

Aeta, Ichbayat-Ivatan, Kalanguya-Ikalahan, Ibatan, Ayangan, Tuwali, Agta, Kalanguya-Ayangan

Kankayana-ey, Bago, Ibaloi

3

6

66,315.9378

10,356.00

Aeta, Dumagat, Kalanguya,

4B

7

103,347.0942

8,205

Mangyan Tagabukid, Tagbanua, Iraya-Mangyan, Tadyawan-Mangyan, Tau-Buid Mangyan, Tadyawan,

5

5

28,670.8897

9,274

1 & 2*

1

5,484.1101

248

Agta-Cimarron/Tabangnon, Agta/Agta-Tabangnon, Agta, Kabihug,

2 & 3*

2

194,432.7889

15,815.00

LUZON

46

1,029,744.6881

216,342

6

3

16,416.0343

3,271.00

7

1

3,981.2501

4,140

VISAYAS

4

20,397.2844

7,411

9

6

86,746.6278

21,424

Subanon, Subanen, Bajau, Talaandig, Manobo, Higaonon, Bukidnon

Iwak Bugkalot & Ilongot, Agta

Panay-Bukidnon/Sulod, Iraynon-Bukidnon, Bukidnon/Mangahat Bukidnon-Karulanos

10

7

64,918.45

13,476

11

11

574,825.74

68,420

Mandaya, Manobo, Mangguangan & Dibabawon, Mandaya-Mansaka, Bagobo-Tagabawa, Dibabawon, B’laan, Mansaka, Ubo-Manuvu

12

7

196,081.42

79,648

Aromanon-Manobo, Obo-Menuvu, Bagobo-Tagabawa, T’boli & Blaan, T’boli. Manubo, Tasaday, Blaan-Tagakaulo, Ubo-Manobo

13

9

221,399.88

34,331

Manobo, Mamanwa, Mandaya, Banwa-on

ARMM

1

2,673.2682

3,482

10 & 12*

1

102,324.8186

24,405.00

MINDANAO

42

1,248,970.2027

245,186

PHIL

92

2,299,112.1752

468,939.00

Sama Bangingi Matigsalug-Manobo

* CADT covers two regions. Source: National Commission on Indigenous People (NCIP)

21

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Laws and Issuances Affecting the Moro Lands

T

he Bangsamoro people, like the other indigenous peoples in the Philippines, were not spared by the havoc of colonization. The Bangsamoro natural resources, their posterity and wealth fell in the hands of their colonizers whether through the effect of the marginalization, occupation by foreign colonizers, or what Moro author Salah Jubair called the “legalized land grabbing” effected by the laws and issuances purposely enacted or issued to give way to the government-sponsored acquisition of Moro lands (Jubair, 1999). Rudy Rodil also described “legalized land dispossession”, initiated and nurtured in colonial times as a fatal aspect in their story of minoritization (Rodil, 2003).

tinued to hold them since time immemorial. Even long before the ascension of the Spanish regime in what is now the Philippines, the Bangsamoros believed that they already had concrete bases to claim their ancestral domain based on “original pre-conquest vested rights” and Moro sultanate dominion based on “treatybased rights and “prior possession of territory” (Mastura, 2008). Before the Islamization of Mindanao, indigenous laws called adat or customary law formed the basis of landownership and use among the Bangsamoro ethnolinguistic groups. When the first Muslim missionary landed on Philippine shores in the 13th century, he brought with him a new faith. With this new faith were new laws, and the natives who embraced Islam came within the fold of Islamic law. As years passed, more and more inhabitants became Muslims, until most of the archipelago of the Philippine islands lived under the banner Islam. Thus as centuries passed, a greater number of people were governed by Islamic law. However, Islamic law was in a sense infused with the adat or customary law. The laws of Islam and the age-old

The Bangsamoro has fought centuries of bloody wars in their struggle for the full recognition of their right to self-determination and to remain free from foreign colonialism. They demand rights over their ancestral domain which they believe have con24

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customs of the place were therefore mingled. Still, Islamic law prevailed over customary laws in cases of conflict (Abbas, 1977).

ing to the Sultan, by virtue of his office, may be equivalent to our concept of state land. The Sultan had the right to lease or grant this land. The other concept of land ownership was the so-called communal (Pusaka) land ownership. The Sultan or the state had no right to alienate these lands because they were ancestral land and belonged to the tribes. The members of the tribe may delineate the boundaries of their lands with markers. The claim to a tribal land is usually proven by existence of an ancestor’s tomb or tampat (Buat, 1973).

The Philippine Muslims since the early centuries were already enjoying a relatively high degree of civilization (Abbas, 1977). The sultanates in Sulu and Maguindanao were part of a constellation of Sultanates in Southeast Asia. These sultanates were Muslim outposts, governed by Islamic law and their respective customs and traditions (Abbas, 1977). They had their own courts which they called agama and their own judges. For many centuries, Islamic law prevailed in the islands of Mindanao and Sulu, and with it, the customs of the respective Sultanates governed and regulated the lives of these people. Not even the recognition of the externally imposed Philippine state laws in Bangsamoro areas, a result of the inclusion of Mindanao-Sulu to the Philippine territory with the Treaty of Paris of December 10, 1898, stopped these practices.

The adat among the Moros is based on the notion that there can be no absolute ownership of land. Islamic principles hold that land and all creation belong to God and that human beings are trustees or stewards of God’s creation. Thus, among Moros, land-holding was based on the right to the produce of the land (Muslim & Cagoco-Guiam, 1999). In Islam, while the right of property is sanctioned, it is far from being the absolute right prevailing in the capitalist system, where, as a rule property is managed according to the ultimate discretion of the owner. In Islam, an individual is a mere trustee of all property in his or her possession, bound to comply with all the duties of a wise and honest trusteeship. Everything in the universe is owned by God; and humans are only the interim owner. As such, humans, with respect to all properties in their possession, are bound by certain obligations.

Adat, which literally means custom and usages, or simply customary law, embraces all the customs and traditions of the Malayan community which were given, through usage, the force of law in the course of time. They were enforced by tribal elders and chiefs. The Adat law resembles the Common Law in England. Like the Common Law, it is based on reason and common sense known in jurisprudence as equity. The adat law is principally unwritten, being a case law adapting to changes in time. An adat one hundred years ago may no longer be an acceptable adat today (Buat, 1973).

1.

Land ownership was recognized by the Adat law. The land was owned either by the Sultan or the tribes. The land belong25

Land Tenure Book 1001.indd 25

They must devote all their energy, intellect and ability to the task of utilizing their property in such a way as to contribute to the advancement of the interest of the community. This obligation is based on Islam’s abhorrence of

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poverty and exhortation of Muslims to be industrious in promoting their material welfare. 2. They must assign a definite annual portion of their capital wealth to the benefit of the needy classes in their community. If one is reluctant to fulfill it, it can be enforced by the state. This is called Zakat. Charity is an obligation in Islam, enforceable by law. 3. They must give endowments for the cause of “public good”. This obligation is also based on the owner’s allotted share of state taxes, required for the upkeep of the community (Abbas, 1977, p. 130).

Spanish Colonial Period 1. Law of the Indies (Book 4, Title 12, Law 14) The Royal Decrees and Orders of the Spanish colonial government did not fully recognize the indigenous people’s concept of land and ownership, and effectively disregarded the rights of the indigenous peoples they had conquered over their ancestral domains. The Laws of the Indies, a compilation of Spanish laws implemented during the time of colonization, more specifically Law 14, Title 12, Book 4, of the Novisima Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with respect to the lands they were to colonize later on. This section provides that:

The economic effect of this concept of private ownership in Islam is well summed up in these words of Dr. Muhammad Abdullah El-Araby:

We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds or grant be restored to us according as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and governors, may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking into consideration not only their present condition, but also their future and their probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming them in what they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may wish.

In Islam, the institution of private property is directed to the benefit of the owner of the property thus maintaining the incentive of self-interest, an essential requisite of economic growth. At the same time, the institution, through its duties based on the theory of trusteeship, is directed jointly to the service of the community. This harmonious balance of conflict of interests eliminates class hatred, affirms social cohesion, reduces the possibilities of accumulation of wealth in the hands of a limited group, and develops a more equitable distribution of national income (Abbas, 1977 p. 131). The following are brief discussion of the laws, rules, regulations and issuances relevant to the land tenure study and those that contributed to the land tenure problem of the Bangsamoro people. Land Tenure Stories in Central Mindanao

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We therefore order and command that all viceroys and presidents of praetorial courts designate, at such time as shall to them seem more expedient, a suitable period within which all possessors of tracts, farms, plantations, and estates shall exhibit to them, and to the court officers appointed by them for this purpose, their title deeds thereto. And those who are in possession by virtue of proper deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be restored to us to be disposed of at our will.1

emphasized that the Regalian Doctrine is both a “feudal theory” and a “Western legal concept”: The capacity of the State to own or acquire property is the state’s power of dominium. This was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The “Regalian Doctrine” or jura regalia is a Western legal concept that was first introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedula.5

Then Philippine Supreme Court Associate Justice (now Chief Justice) Reynato S. Puno2 in his Separate Opinion to the case Cruz vs. Secretary of Environment and Natural Resources,3 recounted that private land titles could only be acquired either by purchase or by the various modes of land grant from the Crown:

But credible writers assert that the Regalian Doctrine is nothing but a Spanish legal fiction. Rodil dubbed it “legal fiction because no such law ever existed”.6 Rodil claimed that Regalian Doctrine was the basis of the Spaniards in selling to the Americans the territories of Las Islas Filipinas and the independent Moro sultanates which Spain did not conquer. Regalian Doctrine allegedly regarded all Spanish-occupied lands as property of Spain. Rodil explained that (Rodil, 2003, pp 103-104):

The Philippines passed to Spain by virtue of “discovery” and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took charge of distributing the lands by issuing royal grants and concessions to Spaniards, both military and civilian. Private land titles could only be acquired either by purchase or by the various modes of land grant from the Crown.4

It is said that Spain’s discovery of the Philippine archipelago gave the Spanish crown, as was the practice among European expansionists in the 15th and 16th centuries, possessory rights over the islands. Since the King stood for the Spanish State, it was understood that his dominion was also state dominion, and the King or the State reserves the right and the authority to dispose of lands therein to its subjects and in accordance with its laws.

2. The Regalian Doctrine Also known as “Jura Regalia”, this Western legal concept refers to the state’s power of dominium or the state’s capacity to own or acquire property. In his Separate Opinion to the case Cruz vs. Secretary of Environment and Natural Resources, Justice Puno

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The Regalian Doctrine is regarded as a legal fiction because no such law ever existed. In any case, it was on the basis of this authority that the Spanish crown handed down a law in 1894 commanding its subjects in the Philippine colony to register their lands. It was presumably on the basis of this authority that Spain ceded the entire Philippine archipelago to the United States through the Treaty of Paris of 10 December 1898).

June Prill-Brett (2003) also believed that the Regalian Doctrine is a legal fiction: “The problem confronting indigenous claimants to ancestral lands can be traced back in Philippine history to the legal fiction called the Regalian Doctrine. In 1521 the Portuguese explorer Ferdinand Magellan claimed the Philippine archipelago for the Spanish Crown, by virtue of erecting the Christian cross on one of the more than 7000 islands”. Historical accounts show that prior to the Spanish colonization, indigenous communities held lands collectively. With the coming of the Spaniards, however, the colonial government— while protecting pre-existing communal holdings under certain conditions—began to distribute land grants to private individuals on the basis of this doctrine, which created the assumption that all lands in Luzon and Visayas were owned by the King of Spain.

Fergus MacKay explained that Regalian Doctrine is just a “fiction of Spanish colonial law wherein all lands discovered and colonized by Spain belonged to the Crown” (Colchester, 2001): The Regalian Doctrine, also known as “jura regalia”, is a fiction of Spanish colonial law that has been said to apply to all Spanish colonial landholdings. It refers to the feudal principle that private title to land must emanate, directly or indirectly, from the Spanish Crown with the latter retaining the underlying title. Lands and resources not granted by the Crown remain part of the public domain over which none but the sovereign holds rights.

The American colonial administration, which succeeded Spain by virtue of the Treaty of Paris of December 10, 1898, did not, however, recognize nor give importance, to the Regalian Doctrine. In managing the affairs of the Philippine Islands, the Americans based their right and title from conquest and the treaty of cession and not from Regalian Doctrine. In deciding the celebrated case Cariño vs. Insular Government in 1909, the US Supreme Court speaking through Associate Justice Oliver Wendell Holmes ruled out Regalian Doctrine and declared it as mere “theory and discourse.”7 The US Supreme Court awarded the controversial 146-hectare land in Baguio to Mateo Cariño who belonged to the Igorot tribe, which was never brought under the civil or military government of Spain. Justice Holmes wrote that: “It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has

In their Comment-in-Intervention Senator Juan Flavier, Bennagen, and 112 Indigenous Peoples in the case Cruz vs. Secretary of Environment and Natural Resources, asserted that the Regalian Doctrine was a “mythical and historically fallacious principle that permeates the thinking but has prompted little reflection within the Filipino legal profession” and that “The Regalian Doctrine is a legal fiction” (Flavier et al, 2001, p.225). Land Tenure Stories in Central Mindanao

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been held by individuals under a claim of private 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.”

land in good faith since 1870. In order to be considered owners of lands claimed, the decree required voluntary registration or “adjustment” of ownership.

Justice Holmes further ruled that the Regalian Doctrine was “an almost forgotten law of Spain”:

The Royal Decree of June 25, 1880 imposed certain regulations pertaining to “royal lands” or terrenos realengos in Las Islas Filipinas of which the Mindanao-Sulu-Palawan region was not a part. This royal decree defined royal lands as (Peña, 1961):

Upon a consideration of the whole case we are of opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what by the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten law of Spain.8

Art. 1. For the purposes of these regulations and in conformity with law 14, title 12, book 4 of the Recompilation of Laws of the Indies, the following will be regarded as royal lands: All lands whose lawful ownership is not vested in some private person, or, what is the same thing, which have never passed to private ownership by virtue of cession by competent authorities, made either gratuitously or for a consideration.

By the passing of time, the American colonial government did not recognize communal landholdings; instead, it applied a new system of land acquisition, registration and titling by individuals in the Philippines, which exists until today, known as the Torrens system of land registration.

This royal decree which dealt with “royal lands” definitely excluded the Moro territories in Mindanao and Sulu. For, by the time it was issued in 1880, Spain failed to conquer the Moros. Certainly, Governor-General Fernando Primo de Rivera9 failed to totally implement it for his administration was “marked by corruption in public offices” which led to his dismissal and the assumption of Emilio Molins10 as governor ad interim effective March 10, 1883 (Blair & Robertson, 1903-1909, p. 310).

3. Royal Decree of June 25, 1880 Published in the Gaceta de Manila on September 8, 1880, the Royal Decree of June 25, 1880 is said to have marked the beginning of modern Spanish land legislation in the Philippines (Vargas & Manalac, 1936). But this Royal Decree was in force only from its publication until April 17, 1894.

In his Separate Opinion in Cruz vs. Secretary of Environment and Natural Resources, Supreme Court Associate Justice

The Decreto del Gobierno General de 1880 underscored that all persons in possession of real property were to be considered owners provided they had occupied and possessed their claimed 29

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Santiago M. Kapunan11 wrote that the Royal Decree of 1880 and 1894 “did not extinguish native title to land in the Philippines”:

4. Royal Decree of February 26, 1886 (Zaide & Zaide, 1990, pp. 346-347) Issued by Spain’s Queen Regent Maria Cristina, this Real Decreto de 26 de Febrero de 1886 (Royal Decree of February 26, 1886) enumerated nineteen (19) provinces that come under the effective administration of the Spanish Crown. These provinces were all situated in Luzon and the Visayas regions. The Moro territories were excluded from the territorial jurisdiction of Las Islas Filipinas as defined under the decree.

The royal decrees of 1880 and 1894 did not extinguish native title to land in the Philippines. The earlier royal decree, dated June 25, 1880, provided that all those in “unlawful possession of royal lands” must legalize their possession by means of adjustment proceedings, and within the period specified. The later royal decree, dated February 13, 1894, otherwise known as the Maura Law, declared that titles that were capable of adjustment under the royal decree of 1880, but for which adjustment was not sought, were forfeited.12

In some writings, this is usually cited as the basis for affirming the exclusion and independence of the Moro territories from the Spanish-held territories of Luzon, Visayas, and some Pacific islands; and for asserting that the area of the Moro is a free state and a free nation.

The Royal Decree of June 25, 1880 which declared ownership over the land possessed by anybody for an uninterrupted period of 10 years by virtue of a good title and in good faith, had not been imposed upon the Moros by virtue of the Moro-Spanish war. It must be noted that during the Spanish regime in Las Islas Filipinas, i.e. Luzon and the Visayas, the land titles granted by the Spanish colonial government varied in forms, according to the circumstances under which they were acquired. Thus the Spaniards imposed upon the Indios the following modes of land titling as mandated by the Royal Decree of June 25, 1880: (a) titulo real (Royal grant); (b) concesion especial (special grant); (c) composicion con el estado (adjustment title); (d) titulo de compra (title by purchase); and (e) informacion posesoria (possessory information title) (Peña, 1961).

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As stipulated in the Royal Decree, those 19 civil provinces which were ruled by the Spaniards were composed of the following: Manila, Albay, Batangas, Bulacan, Ilocos Norte, Ilocos Sur, Laguna, Pampanga, Pangasinan, Bataan, Camarines Norte, Camarines Sur, Mindoro, Nueva Ecija, Tayabas, Zambales, Cagayan, Isabela, and Nueva Viscaya. The issuance of this Royal Decree only proved that the Moro territories of Mindanao and Sulu remained outside of Spanish sovereignty. Ramon Reyes Lala wrote in his book The Philippine Islands that under the Royal Decree of February 26, 1886, only 18 civil provinces, each headed by a Spanish governor, formed part of the Spanish colony. Lala explained that when Sulu was included in the Royal Decree even though Spain was not able to

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colonize it, the originally 18-province Spanish-held territories became 19 provinces, thus:

partly amended the Mortgage Law as well as the Law of the Indies. The Maura Law was the last Spanish land law promulgated in the Philippines. It required the “adjustment” or registration of all agricultural lands, otherwise the lands would revert to the state.

In the new order of things instituted by a decree from the Queen-Regent Maria Cristina, the 26th of February, 1886, 18 Civil Governorships were created, and the Alcaldes’ functions were confined to their Judgeships. And thus the former frightful distortion of justice was overcome and banished. So, too, under this law of 1886 each Civil Governor has a Secretary, who serves as a check upon his chief, if he be illegally inclined. Accordingly, two new official safeguards were thus erected in the fabric of Colonial Administration in these 18 different provinces.

6. Royal Decree of May 19, 1893 (Maura Law) In an effort to reform the local government administration in Luzon and the Visayas, Queen Regent Maria Cristina promulgated on May 19, 1893, the Real Decreto de 19 de Mayo de 1893 which was penned by Spain’s Colonial Minister and later Prime Minister Don Antonio Maura y Montañer. This royal decree, later called the Maura Law of May 19, 1893 , defined the scope and power of local governments in the 19-province Filipinas pursuant to the earlier issued Royal Decree of February 26, 1886.

The colony was then divided into 19 civil provinces, including Sulu, and into three grand military divisions (Lala, 1899, pp 58-60).

Article I, Section 2 of the Maura Law, provides: Art. 2. Habrá un Tribunal municipal en cada pueblo de las Islas de Luzon y de Visayas que, no habiéndose constituido en Ayuntamiento, según lo que ordeno el Real decreto de 12 de Noviembre de 1889, contribuya al Estado con mas de mil cedulas al año.

5. Ley Hipotecaria or the Spanish Mortgage Law of 1893 The Ley Hipotecaria or the Spanish Mortgage Law of 1893 provided for the systematic registration of titles and deeds as well as possessory claims. In the case Collado vs. Court of Appeals promulgated on October 4, 2002, the Supreme Court explicitly stated that:

The English translation of that provision runs as follows:

The Laws of the Indies were followed by the Ley Hipotecaria or the Mortgage Law of 1893. The Spanish mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims. The Royal Decree of 1894 or the “Maura Law”

Section 2. There shall be a Municipal Tribunal in each town of Luzon and the Visayas which, not having constituted itself into a municipality, as prescribed by the Royal Decree of November 12, 1889, contributes to the State more than one thousand cedulas a year. 31

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One can conclude from that provision that the Maura Law was only applicable to Luzon and the Visayas islands and not to Mindanao and Sulu.

regime denied any effective recognition of ancestral property rights. More significantly, the philosophy behind the Maura Law provided the legal foundation for the prevailing twentieth-century version of the Regalian Doctrine” (Lynch, 1988, p. 109).

But the new municipal set-up stipulated under the Maura Law due to take effect on January 1, 1894 did not materialize because of the detection of Katipunan-led Andres Bonifacio the Maniolo revolt of Emilio Aguinaldo. On account of this, Governor-General Camilo Polavieja issued Order on December 24, 1896 suspending the local elections in Luzon and the Visayas that was to be held in December 1896 pursuant to Section 10 of the Maura Law.

Judging from Lynch’s legal opinion, therefore, the Bangsamoro people assert that the decree did not take effect on them since they were never in fact conquered by the Spaniards. If this rule will apply to them, it would mean loss of almost the entire lands of the Bangsamoro to the State solely by reason that the Moro people did not bother to register under the system or, in most cases, did not recognize the authority of the Spaniards.

By the time Governor-General Blanco started enforcing the Maura Law, James A. LeRoy wrote, it was “somewhat altered and revised, and many of its more promising provisions for local autonomy had in most towns remained in reality dead letters up to the time when revolt broke out in the Tagalog provinces in 1896; elections under the new law were suspended, and martial law established” (LeRoy, 1903-1909).

7. Treaty of Paris (December 10, 1898) By virtue of the Treaty of Paris of 1898, Spain ceded the Philippine Islands to the United States. It relinquished all its rights, interests, and claims over territories delimited in Article III of the treaty in consideration of Twenty Million Dollars (USD 20 million) payable to Spain within three months after the exchange of its ratification. In the delimitations, the territories of the Moros of Mindanao and Sulu were “illegally and immorally annexed.” The late MILF Chairman Salamat Hashim divulged this view to Carolyn O. Arguillas when she interviewed him on April 15, 2000 in Camp Abubakre As-Siddique:

Laurel explained that although a belated measure of Spain to reform Las Islas Filipinas, the Maura Law was a “creditable piece of legislation intended to transplant into Luzon and Visayas the democratic institutions that were beginning to develop in Spain” (LeRoy, 1903-1909, p. 51). Laurel expounded further that the intent of the Maura Law “was to confer upon the towns and provinces of Luzon and the Visayan Islands a greater measure of autonomy”.

When the Philippine government annexed our homeland, it was illegal and immoral. And since the annexation of the Bangsamoro homeland was illegal and immoral, then we’re not dismembering the country. This is not originally part of the Philippines. Annexation is a violation of human rights. This will

American legal scholar Owen J. Lynch, Jr., opined that: “The Maura Law provided the legal basis by which the US colonial Land Tenure Stories in Central Mindanao

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show the Philippine government is a barbarous government, a perpetrator of human rights violations. Now we ask the Philippine government to pave the way for the peaceful and democratic return of independence to our people or we will fight forever. History has shown our people fought for over 300 years the Spaniards and the Americans. If our ancestors managed to fight that long, the present generation can fight the Philippine government forever. So which is better? Fight forever or solve the problem democratically?

and which now requires a prompt termination, I beg you, in the name of this Commission, to be pleased to propose to that worthily headed by you whether it is willing to accept, by way of compromise in re the sovereignty of the Philippine Archipelago, any of the three propositions following: A. “Relinquishment by Spain of her sovereignty over Cuba and cession of Porto Rico and other Antilles, Island of Guam in the Ladrones and the Philippine Archipelago, including Mindanao and Sulu, to the United States, the latter paying to Spain the sum of one hundred million ($100,000,000) dollars as compensation for her sovereignty in the Archipelago and the works of public utility she has executed during her rule in all the islands of the East and West the sovereignty over which she relinquishes and cedes.”

The Bangsamoro people contend that Spain and the United States regarded the treaty as including the Bangsamoro homeland, without consulting their Sultanates and notwithstanding the fact that Mindanao and its islands did not become part of the properties belonging to the Spanish crown. Thus, Salamat Hashim’s viewpoint may have been an offshoot of the revelation of Don Eugenio Montero Rios, President of the Spanish Commission which negotiated the Treaty of Paris, that Mindanao and Sulu “never formed a part of the Philippine Archipelago proper.” The letter of Rios to his counterpart, American Commissioner William R. Day, reads in full as follows:

B. “Cession to the United States of the Island of Cusaye in the Carolines, of the right to land a cable on any of these or of the Marianas, while they remain under Spanish rule, and (cesion) of the Philippine Archipelago proper, that is, beginning on the North, the Islands of Batanes, Babuyanes, Luzon, Visayas, and all the others following to the south as far as the Sulu Sea, Spain reserving to the south of this sea the Islands of Mindanao and Sulu which have never formed a part of the Philippine Archipelago proper. (Emphasis supplied)

Hon. WILLIAM R. DAY, President of the American Commission for Peace with Spain. MY DEAR AND ESTEEMED SIR, In order to push to the utmost the work which has been entrusted by the two Governments to one and the other Commission 33

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“The United States, as compensation for said islands, for the right to land cables and for the public works executed by Spain in said islands during her rule, will pay to Spain the sum of fifty million ($50,000,000) dollars.”

which, according to the answer of the American, must depend the continuation or termination of these conferences. I remain, with the greatest consideration, your obedient servant.

C. “Spain relinquishes her sovereignty over Cuba and gratuitously cedes to the United States the Philippine Archipelago proper, besides Porto Rico, the other West Indies and the Island of Guam, which she cedes as compensation for the expenses of the war and as indemnity to American citizens for injuries suffered since the beginning of the last Cuban insurrection.

Signed: E. MONTERO RIOS. PARIS, November 23, 1898. Dr. Onofre D. Corpus (2005) argued that: By the time treaty negotiators were parleying in Paris, there was no longer any vestige of Spanish control, possession or government in Filipinas (that is to say the Christian part of the archipelago). And Spain never had control, government nor possession of the Moro territory. It did not have any “suspended sovereignty” because its sovereignty had been terminated.

“The United States and Spain will submit to an arbitral tribunal what are the debts and obligations of a colonial character which should pass with the islands the sovereignty over which Spain relinquishes and cedes.”

At the time of the negotiations in Paris, the Moros were then engaged in war with the Spaniards. Thus, the Spaniards could never impose titling of Moro lands in the same way as it had done in the Visayas and Luzon areas. President William McKinley said in his Benevolent Assimilation Proclamation issued on December 21, 1898 that the US’s “rights of sovereignty” emanating from the Treaty of Paris “is to be extended with all possible dispatch to the whole of the ceded territory,” which means Luzon and Visayas plus the Moro territories which were annexed without the plebiscitary consent of the Moros. And thus proclaimed McKinley:

I beg you that said Commission be pleased to deliberate over each of these propositions so that, should it consider anyone of them acceptable, it may be communicated to me, should you be so disposed, before Monday next, the 28th instant, or your mind being already made up, on that day (which is the one set in the last proposition of the said Commission) when the two Commissions may meet jointly at the usual hour of two, p. m., at which session this, the Spanish Commission, will give its final reply, upon Land Tenure Stories in Central Mindanao

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The destruction of the Spanish fleet in the harbor of Manila by the United States naval squadron commanded by Rear-Admiral Dewey, followed by the reduction of the city and the surrender of the Spanish forces, practically effected the conquest of the Philippine Islands and the suspension of Spanish sovereignty therein. With the signature of the treaty of peace between the United States and Spain by their respective plenipotentiaries at Paris on the 10th instant, and as a result of the victories of American arms, the future control, disposition, and government of the Philippine Islands are ceded to the United States. In the fulfillment of the rights of sovereignty thus acquired and the responsible obligations of government thus assumed, the actual occupation and administration of the entire group of the Philippine Islands becomes immediately necessary, and the military government heretofore maintained by the United States in the city, harbor, and bay of Manila is to be extended with all possible dispatch to the whole of the ceded territory. In performing this duty the military commander of the United States is enjoined to make known to the inhabitants of the Philippine Islands that in succeeding to the sovereignty of Spain, in severing the former political relations, and in establishing a new political power, the authority of the United States is to be exerted for the securing of the persons and property of the people of the islands and for the confirmation of all their private rights and relations.

By the defeat and conquest of Spanish forces in Manila, McKinley asserted that Spanish sovereignty, which perhaps included the Regalian Doctrine, if ever, was suspended. Notice that the phrase used by McKinley in asserting control over the Philippine Islands was “rights of sovereignty” and not Regalian Doctrine.

American Government in Moro Land (1898-1946) 1. Kiram-Bates Treaty of August of 1899 Brig. General John Bates, representing the United States, and Sultan Jamalul Kiram II of the Sultanate of Sulu, signed this treaty on August 20, 1899. The treaty defined the relations of the American Government and the Sulu Sultanate as that of a protectorate state and provided that there should be no direct interference in the affairs of the Sulu Sultanate. Under the treaty provisions, the sovereignty of the American over the whole archipelago of Jolo and its dependencies shall be acknowledged; while the Sulu Moros were not to be interfered with on account of their religion and all their religious customs were to be respected. This treaty was, however, declared null and void by US President Roosevelt in 1904. This abrogation of the treaty enabled the American government to shift from military to civilian rule. 2. Philippine Bill of 1902 – Philippine Organic Act The Philippine Bill of 1902 or the Philippine Organic Act (also, Cooper Act of July 1, 1902) was the first organic law for the

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Philippine Islands enacted by the United States Congress. It provided for the creation of the Philippine Assembly and other instrumentalities of the colonial government. It must be noted that Philippine Bill of 1902 did not apply to the Moros because they were still at war with the Americans at that time. Section 7 of such law provided that the census of the population to be undertaken for the purpose of the elections for the Philippine Assembly shall only be done “in areas not inhabited by Moros and other non-Christian tribes.” As such:

Specifically on property rights, the Act in essence contained the following provisions: • Classification of agricultural lands as well as lease, sale, and disposition of public lands other forest and mineral lands, provided, “That a single homestead entry shall not exceed sixteen hectares in extent.” (Section 13); • Perfection of title to public lands and issuance of patents to any native of the Philippine Islands, “conveying title to any tract of land not more than sixteen hectares in extent, which were public lands and had been actually occupied by such native or his ancestors prior to and on the thirteenth of August, eighteen hundred and ninety-eight” (Section 14); • Grant, sale, or conveyance to actual occupants and settlers of portions of public domain other than forest and mineral lands “not exceeding sixteen hectares to any one person and for the sale and conveyance of not more than one thousand and twenty-four hectares to any corporation or association of persons.” (Section 15); • Preference to actual occupants and settlers in all such grant or sale of any part of the public domain, as well as prohibition against sale of any such public lands in the actual possession or occupancy of any native without obtaining their prior consent to the sale, “Provided, That the prior right hereby secured to an occupant of land, who can show no other proof of title than possession, shall not apply to more than sixteen hectares in any one tract.” (Section 16); • Inalienability of forest and timber lands, “and the said Government may lease land to any person or persons holding such licenses, sufficient for a mill site, not to

Sec. 7. That two years after the completion and publication of the census, in case such condition of general and complete peace with recognition of the authority of the United States shall have continued in the territory of said Islands not inhabited by Moros or other non-Christian tribes and such facts shall have been certified to the President by the Philippine Commission, the President upon being satisfied thereof shall direct Commission to call, and the Commission shall call, a general election for the choice of delegates to a popular assembly of the people of said territory in the Philippine Islands, which shall be known as the Philippine Assembly. After said Assembly shall have convened and organized, all the legislative power heretofore conferred on the Philippine Commission in all that part of said Islands not inhabited by Moros or other non-Christian tribes shall be vested in a Legislature consisting of two Houses—the Philippine Commission and the Philippine Assembly.

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exceed four hectares in extent, and may grant rights of way to enable such person or persons to get access to the lands to which such licenses apply.” (Sections 17 and 18) Inalienability of mineral lands, free and open exploration of mineral resources, and procedures on mineral claims (Sections 21 to 46)

Philippine Commission on November 6, 1902, the Act placed all public and private lands under the Torrens system. The law almost copied word for word the Massachusetts Land Registration Act of 1898, which, in turn, followed the principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who patterned it after the Merchant Shipping Acts in South Australia.

The above provisions have also been enshrined in the relevant provisions of the 1935, 1973, and 1987 Constitutions.

The Act, which was later amended by Presidential Decree No. 1529 or the Property Registration Decree of 1978, primarily sought to determine the extent of private landholdings in the country, promote voluntary registration of individual ownership of private lands.

But even after the effectivity of the Philippine Bill of 1902, the Moros were still not pacified and their areas not subjected to census or even land titling. Thus while Emilio Aguinaldo was already defeated on April 19, 1901 by virtue of his surrender to the Americans, the Moros were still waging war against the Americans. And so on July 4, 1902, US President Theodore Roosevelt issued a Proclamation formally ending the Aguinaldo insurrection but which Proclamation did not apply to the Moros:

The Torrens system requires that the government issue an Official Certificate of Title (OCT), popularly known as the Torrens Title, attesting to the fact that the person or corporations whose name appears on the Title is the owner of the property described, subject only to liens and encumbrances that may be noted or to any warrant or reservation made under the law. The Torrens Title or Certificate of Title is “indefeasible, and imprescriptible” (cannot be defeated and does not end) and all claims to the parcel of land are quieted upon issuance of the said certificate. Sec. 21 of the Act provides that:

Whereas, the insurrection against the authority and sovereignty of the United States is now at an end, and peace has been established in all parts of the archipelago except in the country inhabited by the Moro tribes, to which this proclamation does not apply;…

“The application shall be in writing, signed and sworn to by the applicant, or by some person duly authorized in his behalf. All oaths required by this Act may be administered by any officer authorized to administer oaths in the Philippine Islands.”

3. Act No. 496, Land Registration Act (November 6, 1902) and Torrens System Under Act No. 496, otherwise known as the Land Registration Law of 1902, all grants of public land were brought under the operation of the Torrens System of Titling. Enacted by the 37

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Rodil (2003, p. 105) stressed that the very matter of registration was not only totally alien to the indigenous communities, most of them would have been unable to comply, illiterate that they were, even if by some miracle they acquired the desire to register. Also, what would they register? There was no room for registration of communal lands. Salah Jubair (1999) expounded that “By a simple piece of legislation, the Moros became landless and were deprived of their land holdings. Under this Act, a Moro was allowed to apply for a piece of land, not exceeding four hectares, while a Christian was entitled to own up to 24 hectares, and a corporation, wholly owned by non-Moros, was permitted to get 1,024 hectares” (p. 103).

All grants, deeds, patents, leases, or other instruments of conveyance purporting to convey from Moro sultans or dattos, or from chiefs of non-Christian tribes, lands situated in the Philippine Archipelago or rights of property, privileges, or easements appertaining to or growing out of land therein, made without the authority of the Spanish Government while the Philippine Archipelago was under the sovereignty of Spain, or without the consent of the United States Government or of the Insular Government since the sovereignty of the Archipelago of the Philippines was transferred by the Treaty of Paris from Spain to the United States, and not based on any lawful patent or grant of the Government of Spain or the United States or of the Insular Government, whether such grants, deeds, patents, leases, or other instruments of conveyance were made before the passage of this Act or shall be made after its passage, being made without any lawful authority or ownership, are hereby declared to be illegal, void, and of no effect.

As a consequence of the titling requirement to prove individual ownership, the Moros, like the indigenous peoples in other parts of the country, assert that this system of titling contravened their traditional modes of land ownership and use. Aside from outright defiance to colonial laws, ignorance of the legal procedure, lack of money, real estate taxation, and other consequences of land tilting, most Moros did not secure land titles. Most Moros, therefore, lost their communal lands in this way.

The provisions of this Act were considered to be an open, adverse, specific, definite and obvious legalized land deprivation of the native inhabitants’ property rights over their lands. It operated to disregard any property rights of the Moro and “non-Christian tribes” whose title to their lands were acquired in their own ways. This also assailed the authority of indigenous political structures and deprived the Moros of their land ownership and use rights that are based on the indigenous way of passing lands from one generation to another.

4. Act No. 718 (1903) Enacted on April 4, 1903 by the Philippine Commission, Act No. 718 declared illegal, null and void, all grants, deeds, patents, leases or other instruments of conveyance made by Moro sultans or datus or by chief of non-Christian tribes covering lands situated in the Philippine Archipelago or any rights of property that they may have made without the consent of the concerned Spanish or American officials. Section 1 of this Act stipulated that:

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5. Public Land Acts and the Torrens System Act No. 926 was the first Public Land Act, passed on October 7, 1903, in pursuit of the provisions of the Philippine Bill of 1902. It provided, among other stipulations, that all lands not registered under Act No. 496 were deemed public lands and therefore may be applied with homestead. The law governed the disposition of all lands of the public domain. It set forth the rules and regulations for homestead, sale, and lease of portions of the public domain; prescribed the terms and conditions to enable persons to perfect their titles to public lands; provided for the issuance of patents to qualified native settlers on public lands, establishment of town sites and sale of lots within the sites; and defined procedures for completion of imperfect titles and for the cancellation or confirmation of Spanish concessions and grants in the Philippine islands.

twenty-four hectares of land in said Islands or has not had the benefit of any gratuitous allotment of more than twenty-four hectares of land since the occupation of the Philippine Islands by the United States, may enter a homestead or not exceeding twenty-four hectares of agricultural land of the public domain. But the Moros or non-Christian Tribes were only allowed to own up to a maximum of four hectares. Section 22 states: Section 22. Any non-Christian native desiring to live upon or occupy land on any of the reservations set aside for the so-called “non-Christian tribes” without applying for a homestead, may request a permit of occupation for any tract of land of the public domain open to homestead entry under this Act, the area of which shall not exceed ten hectares. It shall be an essential condition that the applicant for the permit cultivate and improve the land, and if such cultivation has not been begun within six months from and after the date on which the permit was granted, the permit shall ipso facto be canceled. The permit shall be for a term of five years. If the expiration of this term or at any time therefore, the holder of the permit shall apply for a homestead under the provisions of this chapter, including the portion for which a permit was granted to him, he shall have the priority, otherwise the land shall be again open to disposition at the expiration of the five years.

Public Land Act No. 926 allowed individuals to acquire homesteads not exceeding 16 hectares each, and corporations 1,024 hectares each of, unoccupied, unreserved, unappropriated agricultural public lands” as stated in Section 1. Nothing was said about the unique customs of the indigenous communities (Jubair, 1999, p. 95). Act No. 2874 or the second Public Land Act passed by the Senate and the House of Representatives on 29 November 1919 provided that the 16 hectares allowed earlier to individuals was increased to 24 hectares. Section 12 provides: Section 12. Any citizen of the Philippine Islands or of the United States, over the age of eighteen years, or the head of a family, who does not own more than 39

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The third Public Land Act or Commonwealth Act No. 141, as amended, was issued on November 7, 1936. Rodil noted that the law “withdrew the privilege earlier granted to the settlers of owning more than one homestead at twenty-four hectares each and averted to only one not exceeding sixteen hectares. But the nonChristians who were earlier allowed a maximum of ten hectares were now permitted only four hectares” (Rodil, 2003, p. 107).

bato, Davao, Lanao, Sulu, and Zamboanga (as the capital). The Moro Province was clothed with executive power, a legislative council, judicial and revenue systems, which are all separate and distinct from the rest of the administration of the Indios/Filipinos of Luzon and Visayas. The Act subdivided the Sultanates of Sulu and Magindanaw, and the pat-a-pangampung u Ranao into the districts of Sulu, Cotabato, Davao, Lanao and Zamboanga. Zamboanga City was designated as the capital of the Moro Province.

The Public Land Acts and the Torrens System further bolstered the presumption of State ownership over all lands in the country and that any other land claim or right will have to emanate from it. Hence, ancestral domains occupied since time immemorial by indigenous peoples belong to the State, unless the occupants apply for recognition of their rights through a grant. This gives conditional recognition of ancestral land claims that is based on legislative grace, and not on the principle of original vested rights.

Major General Wood, Military Commander of Mindanao and Sulu, was appointed as its first Governor. American Generals succeeded in heading the Moro Province from 1903-1913. It was during this period that Filipino Indios slowly replaced American officials in Moro lands. The creation of the Moro Province allowed the American government to control the Moro lands, which was a violation of the Kiram-Bates Treaty (later declared null and void in 1904). The United States wanted to prepare the integration and assimilation of the Moros into the body politic. Custom regulations, tax levy, land survey, mapping, and exploration of natural resources were enforced.

As a consequence of the titling requirement to prove individual ownership, the Moros, like the indigenous peoples in other parts of the country, assert that this system of titling contravened their traditional modes of land ownership and use. Aside from outright defiance to colonial laws, ignorance of the legal procedure, lack of money, real estate taxation, and other consequences of land tilting, most Moros did not secure land titles, and therefore lost their communal lands in this way.

7. Act No. 253 (1903) – Bureau of Non-Christian Tribes This Act created the Bureau of Non-Christian Tribes (BNCT) which was tasked to “conduct systematic investigations with reference to the non-Christian tribes of the Philippine Islands, in order to ascertain the name of each tribe, the limits of the territory which it occupies, the approximate number of individuals

6. Act No. 787 (1903) – Creation of the Moro Province The Philippine Commission issued this Act to create the “Moro Province”, which was organized into five districts, namely, Cota-

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which compose it, their social organizations and their languages, beliefs, manners, and customs, with special view to determining the most practicable means for bringing about their advancement in civilization and material prosperity”. The Bureau was also mandated to conduct investigation on the operation of all laws with reference to non-Christian tribes.

The law paved the way for American corporations to own large areas of public land in the country, including in Mindanao and those held as ancestral lands by indigenous peoples. As a consequence, many indigenous peoples were effectively evicted from their ancestral lands and deprived of their sources of livelihood. 10. Act No. 2259 (Cadastral Act of 1913) This law, passed by the Philippine Commission on February 11, 1913 as the Cadastral Act of 1913 (Peña, 1994), provided a vehicle to bring more lands under the operation of the Torrens system. It introduced the cadastral system, an offspring of the system of registration under the Land Registration Act of 1902, which facilitated the acquisition of new landholdings. It was also a response to the slow, protracted, and expensive registration proceedings under the Land Registration Act of 1902, and the apparent lack of initiative on the part of the landowners to register their properties.

The Act regarded the case of the Moro and other nonChristianized people differently from the rest of the Philippine islands. Most Moros believe that this has relegated the Bangsamoro nation into a mere sector to be governed by a bureaucratic branch. It further classified the Bangsamoro as belonging to non-Christian tribes and diminished the status of the sovereign Bangsamoro people into a mere tribe. 8. Act No. 1148 (1904) - Forest Act of 1904 This Act aimed to regulate the use of the public forests and forest reserves in the Philippines. It contained provisions that restrict the utilization and exploitation of forest resources to those with licenses issued by the government. No license was however required for residents “within or adjacent to a government authorized forest concession” to cut or remove timber, firewood, other forest products or earth for domestic purposes.

To hasten and accelerate the registration of lands, the Philippine Legislature enacted this law to carry out a compulsory survey of all lands, with survey costs shouldered by the government. It was also conceived to minimize possible land conflicts. With government initiative, titles for all the land within a stated area were adjudicated as to whether the people living in such areas desire to have titles issued in their names.

9. Mining Act of 1905 The Mining Act of 1905 declared all public lands open to mining exploration, occupation and purchase even by the Americans (Jubair, 1999). It allowed ownership by Filipinos and foreign citizens.

The law was criticized for utilizing complicated bureaucratic processes that only enabled foreign investors and the local ruling elites to seize enormous properties by submitting fraudulent land surveys.

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11. Resettlement Programs and Agricultural Colonies Acts: Act Nos. 2254 (1913) and 2280 (1913) – Agricultural Colonies. These Acts created agricultural colonies and encouraged Filipino migrants from the North to settle in the so-called public lands located in Mindanao and Sulu. These Acts created agricultural colonies and encouraged Filipino migrants from the North to settle in the so-called public lands located in Mindanao and Sulu. The laws purportedly aimed to equalize population distribution in the country through these first government-sponsored programs on migration and resettlement into the South. Act No. 2254 specifically awarded the Filipino settlers 16-hectare lot areas, while Moros were allowed to own only eight hectares.

Jubair dubbed the law as “a glaring instance of injustice.” While this law awarded each Filipino settler with a 16 hectare lot, the Moro was permitted to own only eight hectares, despite his prior birthright to the place. He believes that this was a consequence of the previous laws that already deprived him of his ancestral land holdings (Jubair, 1999). The creation of the said colonies was effected with the aim of the colonial policy of ensuring the ‘the amalgamation or blending “ (Philippine Commission Report) of the Christian settlers and Maguindanaon natives. In 1914, Act 2280 was passed creating the Momungan Agricultural Colony in Lanao in what is now Baloi-Lanao del Note. Its purpose was to give relief to American soldiers and employees who married Filipinos and who did not wish or could not return to the United States. The Colony also hoped to unite Muslims and Christians

These pieces of legislation resulted to further occupation of lands of the Bangsamoro, this time by migrants from Luzon and the Visayas. Many of these lands included ancestral lands and rich agricultural lands of Mindanao. As stated in the reports of the Philippine Commission, the objectives of the program were the following: 1) To increase food production.; 2) To equalize the distribution of population in the Philippines; 3) To bring under cultivation extensive wild public lands; 4) To afford an opportunity for the colonists to become land proprietors.

12. Act No. 2309 (1914) - Department of Mindanao and Sulu This Act changed the name of the “Moro Province” into the “Department of Mindanao and Sulu”, an agency of the American colonial administration in the country which was tasked to administer all Muslim-dominated areas. The provinces then included Agusan, Bukidnon, and Surigao, but excluded Lanao.

The five sites selected were Pilit, Silik, Ginatilan, Peidu Pulangi and Pagalungan, all in Cotabato Valley, and Glan at the present South Cotabato.

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13. Jones Law or the Philippine Autonomy Act of 1916 Entitled as An Act to Declare the Purpose of the People of the United States as to the Future Political Status of the People of the Philippine Islands, and to Provide a More Autonomous Government for those Islands, the law replaced the Philippine Organic of 1902 (Philippine Bill of 1902) that served as the de facto initial constitution of the Philippines after the country was ceded by Spain to the United States by virtue of the Treaty of Paris.

15. Act No. 2878 (1920) – Abolishing the Department of Mindanao and Sulu and Transferring its Responsibilities to the Bureau of Non-Christian Tribes This law abolished the Department of Mindanao and Sulu and transferred its responsibilities to the Bureau of Non-Christian Tribes under the Department of Interior. The law was passed to establish mutual understanding and fusion of Moros and Lumads to form with the majority of the Filipinos. The law was cited as furthering dissatisfaction among the Moros as power shifted to the Christianized Filipinos.

By virtue of the Jones Law, legislative power over the Moro Province was given to the Philippine Legislature.

16. Act No. 4197 - Quirino-Recto Colonization Act of 1935 Issued on February 12, 1935, the law declared Mindanao as a special target for building more settler colonies. It invited massive arrival of settlers from Luzon and Visayas with the added support from the government. This encouraged the influx of more settlers into Mindanao, which resulted to further colonization by Filipino settlers of the territories occupied by the Moros and indigenous peoples.

14. Act No. 2711 (Revised Administrative Code of 1917 Forest Law provisions) The provisions of this law reiterated the basic forest policy of the government, which states that: “The public forests of the Philippines shall be held and administered for the protection of the public interest, the utility and safety of the forest, and the perpetuation thereof in productive condition by wise use.” Under State control, this law established communal forests and pastures for the use of communities. The Director of Forestry was in charge of classifying communal forests based on certain guidelines. Over 300,000 hectares were eventually set aside by the Director of Forestry as communal. As of 1983, however, most communal forests were in disuse. Many are within forest concessions or areas leased to agri-business concessionaires.

It is noted that on 18 March 1935, Hadji Abdulmajid Bongabong led 120 Maranao chieftains in passing a manifesto (known as the Dansalan Declaration) to the US President opposing the annexation of Mindanao to Luzon and Visayas. They expressed their appeal not to be included to the Philippine Independent nation, their predicament on the state of their traditional landholdings as well as their aspirations to acquire them by legal process and respect for their practices, laws and religion, as stated below:

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“Should the American people grant the Philippine Independence, the islands of Mindanao and Sulu should not be included in such independence. Our public land must not be given to other people other than the Moros. We should be given time to acquire them, because most of us have no lands. Our people do not yet realize the value of acquiring those lands by the process of law. Where shall we obtain the support of our family if our lands are taken from us? It will be safe to us that a law should be created restricting (the acquisition) of our land by other people. This will avoid future trouble.

following laws issued during the Commonwealth Period may provide the background to such dispossession: 1. Commonwealth Act No. 141 (1936) – Public Land Act of 1936 This law amends and compiles all the laws relative to lands of the public domain. Essentially containing the same provisions as its predecessor public land acts, this law continues to be the governing law on public lands to this date. Philippine Commonwealth President Manuel L. Quezon signed this Public Land Act known as Commonwealth Act No. 141 into law on November 7, 1936, taking effect on December 1, 1936. This law in Section 84 declared as public land all the lands of the Moros:

Our practices, laws and decisions of our Moro leaders should be respected…Our religion should not be curtailed in any way. All our practices which are incidental to our religion of Islam should be respected because these things are what a Muslim desires to live for…Our religion is no more, our lives are no more” (Silva, 1979, pp. 27-28).

That all grants, deeds, patents, and other instruments of conveyances of land or purporting to convey or transfer rights of property, privileges or easements appertaining to or growing out of lands granted by sultans, datus, or other chiefs of the so-called non-Christian tribes, without the authority of the Spanish Government while the Philippines were under the sovereignty of Spain, or without the consent of the United States Government or of the Philippine Government since the sovereignty over the Archipelago was transferred from Spain to the United States, and all deeds and other documents executed or issued or based upon deeds, patents and documents mentioned are hereby declared to be illegal, void and of no effect.

Commonwealth Period and the Moros (1935-1946) Until the end of the Spanish colonial period at the turn of the 20th century, 75% of the population of Mindanao still consisted of indigenous Moros, a testament to the Moro people’s successful struggle to defend their ancestral lands. However, the Commonwealth Period was characterized by increasing dispossession of Moros such that today, less than 17% of Mindanao territory is currently occupied by the Moro people, much of it desolate and barren lands situated in far-flung highlands. The

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Among the guidelines that the law provides for relate to the following: • Classification, delimitation, and survey of lands of the public domain into alienable and disposable, timber, and mineral lands; • Forms of concession of agricultural lands: (a) sale; (b) lease; (c) homestead; (d) confirmation of imperfect or incomplete titles.

lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty (30) years immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter.

Section 48, Article VII on Judicial Confirmation of Imperfect Titles allows certain citizens who are “occupying lands of the public domain or claiming to own such lands or an interest therein, but whose title have not been perfected” to apply in court for confirmation of their claims and the issuance of a certificate of title under the Land Registration Act (Torrens Title). Eligible citizens include:

Section 12 of this law provides: SECTION 12. Any citizen of the Philippines over the age of eighteen years, or the head of a family, who does not own more than twenty-four hectares of land in the Philippines or has not had the benefit of any gratuitous allotment of more than twentyfour hectares of land since the occupation of the Philippines by the United States, may enter a homestead of not exceeding twenty-four hectares of agricultural land of the public domain.

(a) Those who prior to the transfer of sovereignty from Spain to the United States have applied for the purchase, composition or other form of grant of lands of the public domain under the laws and royal decrees when in force and have instituted and prosecuted the proceedings in connection therewith, but have with or without default upon their part, or for any other cause, not received title therefor, if such applicants or grantees and their heirs have occupied and cultivated said lands continuously since the filing of their applications.

Section 12 of this law states that non-Christian tribes, to include the Moros, can own only up to four hectares: SECTION 21. Any non-Christian Filipino who has not applied for a homestead, desiring to live upon or occupy land on any of the reservations set aside for the so-called “non-Christian tribes” may request a permit of occupation for any tract of land of the public domain reserved for said non-Christian tribes under this Act, the area of which shall not exceed four hectares. It

(b) Those who by themselves or through their predecessors in interest have been in open, continuous, exclusive, and notorious possession and occupation of agricultural 45

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shall be an essential condition that the applicant for the permit cultivate and improve the land, and if such cultivation has not been begun within six months from and after the date on which the permit was received, the permit shall be cancelled. The permit shall be for a term of one year. If at the expiration of this term or at any time prior thereto, the holder of the permit shall apply for a homestead under the provisions of this chapter, including the portion for which a permit was granted to him, he shall have the priority, otherwise, the land shall be again open to disposition at the expiration of the permit.

2. Act No. 441 (1939) – National Land Settlement Administration This Act created the National Land Settlement Administration, which was mandated to facilitate the acquisition, settlement, and cultivation of lands acquired from government or from private parties. It afforded opportunity to those who have completed military training to own farms and encouraged migration to sparsely populated regions like Mindanao. It further disposed of reserved, held, surveyed or subdivided lands to persons qualified under the Constitution and the Public Land Act.

This law has perpetuated the same discrimination of the earlier Public Land Acts against the Moros and other indigenous peoples. There were discrepancies in terms of allowable number of hectares that may be claimed between individuals and corporations, and with respect to non-Christian tribes. The law, for instance, reduced allowable Moro land ownership from 10 to four hectares, while the settlers retained 24 hectares. Corporations not owned by Moros were also permitted ownership of up to 1,024 hectares.

The National Land Settlement Administration (NLSA) created by Commonwealth Act No. 441 in 1939 introduced new dimensions into resettlement. Aside from the usual objectives, there was the item providing military trainees an opportunity to own farms upon completion of their military training. The Japanese menace was strongly felt in the Philippines at this time and this particular offer was an attempt by the government to strengthen national security. Under the NLSA, three major resettlements in Cotabato, namely, Koronadal Valley made up of Lagao, Tupi. Marbel and Polomolok and Ala (now spelled Allah) Valley consisting of Banga, Norallah and Surallah. By the time the NLSA was abolished in 1950, a total of 8,300 families had been resettled.

Rodil (2003, p. 111) elaborated that:

The law further facilitated the establishment of vast plantations and industrial companies that permitted Christian settlers and migrant workers from Luzon and Visayas to work in Mindanao as laborers. Such influx of migrants to Mindanao was so rapid that it eventually made the Moros and other indigenous communities a minority in the process. The cases of displacement of the Moros from their lands led to varied land-related conflicts and violent clashes. Land Tenure Stories in Central Mindanao

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Philippine Republic (1946 - Present)

cor both in Buldon, Maguindanao. In 1976, Paredo, Catanauan, Arevalo and Gallego were turned over to the Land Authority and in 1972, Genio and Barira to DAR (Silva, 1979).

After a short period of Japanese rule, in which the majority of the Moros also fought against the new invaders, the US returned and officially annexed Mindanao and Sulu to the territory of the Philippines with the grant of independence on July 4, 1946. The Moro problem was handed over to the new Filipino rulers. After the establishment of the Philippine Independence, the problems of land tenure remained. These became worst in certain areas, including in Mindanao.

Ironically, however, many of those resettled in Mindanao, especially in Cotabato and Lanao, were not former Huks. In fact, many former soldiers were deliberately mixed with the former rebels in order to function as stabilizers (Paderanga, 1955). 3. Republic Act No. 1160 (1954) – National Resettlement and Rehabilitation Administration This law abolished the LASEDECO and established the National Resettlement and Rehabilitation Administration (NARRA) to resettle dissidents and landless farmers. It was particularly aimed at rebel returnees by providing home lots and farmlands in Palawan and Mindanao.

1. Executive Order No. 355 (1950) – Land Settlement Development Corporation This executive order, issued by President Elpidio Quirino, replaced the National Land Settlement with the Land Settlement Development Corporation (LASEDECO). It continued the government’s resettlement program.

4. Republic Act No. 1199 - Agricultural Tenancy Act of 1954 This law governed the relationship between landowners and tenant farmers by organizing share-tenancy and leasehold system. The law provided the security of tenure of tenants. It also created the Court of Agrarian Relations.

It was able to open Tacurong, Isulan, Bagumbayan, part of Buluan, Sultan sa Barongis and Ampatuan, all in Cotabato and had been able to resettle 1,500 families (Silva, 1979). 2. Economic Development Corporation (EDCOR) In 1951, when Ramon Magsaysay was the Secretary of National Defense, he initiated the establishment of the Economic Development Corporation (EDCOR) Farms for captured and surrendered Huks. Administered by the Armed Forces, EDCOR opened six resettlement areas: Peredo Edcor In Isabela, Catanauan Edcor in Quezon, Arevalo Edcor in Sapad, Lanao del Norte, Genio Edcor in Alamada, North Cotabato, Gallego Edcor and Barira Ed-

5. Republic Act No. 1400 - Land Reform Act of 1955 This law created the Land Tenure Administration (LTA) which was responsible for the acquisition and distribution of large tenanted rice and corn lands over 200 hectares for individuals and 600 hectares for corporations.

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6. Republic Act No. 1888 (1957) – Commission on National Integration This law aimed “to effectuate in a more rapid and complete manner the economic, social, moral, and political advancement of the non-Christian Filipinos or national cultural minorities, and to render real, complete, and permanent the integration of all said national cultural minorities into the body politic” through the creation of the Commission on National Integration (CNI).

7. Republic Act No. 3844 (1963) – Agricultural Land Reform Code This law ordained the agricultural land reform code to institute land reform in the country. It abolished share tenancy, institutionalized leasehold, set retention limit at 75 hectares, invested rights of pre-emption and redemption for tenant farmers, provided for administrative machinery for its implementation, and institutionalized a judicial system of agrarian cases. It created the Land Authority which took over the functions of NARRA.

Powers of the CNI include: • Engagement of the national cultural minorities in industrial and agricultural enterprises, processing plants and cottage industries • Construction of irrigation systems and dams, power structures, electric transmission and distribution systems to furnish light, heat, and power to the inhabitants not receiving such services • Settlement of all landless members of national cultural minorities by procuring homesteads for them or by resettling them in government resettlement projects • Establishment of more public schools in areas where national cultural minorities inhabit and to also encourage them to attend such schools • Establishment of civic centers, fairs, and other communication programs to promote community life among national cultural communities • Training of national cultural communities in different fields of education and assistance in securing employment in private establishments and the civil service; and • Promotion of local and international scholarships for national cultural minorities Land Tenure Stories in Central Mindanao

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For the first time, resettlement became a part of the land reform program (Rodil, 2003). 8. Republic Act No. 3872 (June 18, 1964) –An Act to Amend Sections Forty-Four, Forty-Eight and One Hundred Twenty of Commonwealth Act Number One Hundred Forty One, as Amended, Otherwise known as the “Public Land Act”, and For Other Purposes. The law states that conveyances of land made by illiterate ethnic minorities are null and void, unless approved by the appropriate government official. On the other hand, conveyances made by literates must be written in an intelligible language to be valid. (Section 120) A new paragraph is hereby added to Section 44 of Commonwealth Act No. 141, to read as follows: Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares and who since July fourth, nineteen hundred and twenty-six or prior thereto, has continuously 48

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occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or who shall have paid the real estate tax thereon while the same has not been occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent issued to him for such tract or tracts of such land not to exceed twenty-four hectares.

Philippines, occupying lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title therefor, under the Land Registration Act, to wit:

A member of the national cultural minorities who has continuously occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this section: Provided, That at the time he files his free patent application he is not the owner of any real estate secured or disposable under this provision of the Public Land Law. (Section 1, RA 3872).

(a) Those who prior to the transfer of sovereignty from Spain to the United States have applied for the purchase, composition or other form of grant of lands if the public domain under the laws and royal decrees then in force and have instituted and prosecuted the proceedings in connection therewith, but have, with or without default upon their part, or for any other cause, not received title therefor, if such applicants or grantees and their heirs have occupied and cultivated said lands continuously since the filing of their applications.

Note that a Moro may apply for a Free Patent only once over his landholdings upon the effectivity of this act while any natural born citizen may be entitled to issuance of more than one free patents, provided that the land applied is not to exceed twenty-four hectares. A Member of the national cultural minorities may apply for a free patent over a tract or tracts of land, whether disposable or not while any natural born citizen may only apply for free patents over alienable and disposable agricultural lands.

(b) Those who by themselves or through their predecessors-in-interest have been, in continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title, except when prevented by war of force majeure. Those shall be conclusively presumed to have performed all the conditions essential to a gov-

A new sub-section (c) is hereby added to Section 48 of the same CA 141 to read as follows: “Sec. 48. The following-described citizens of the 49

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ernment grant and shall be entitled to a certificate of title under the provisions of this chapter.

In addition, the law states that conveyances of land made by illiterate ethnic minorities are null and void, unless approved by the appropriate government official. On the other hand, conveyances made by literates must be written in an intelligible language to be valid.

(c) Members of the national cultural minorities who by themselves or through their predecessors-ininterest 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 in sub-section (b) hereof�. (Section 2, RA 3872)

9. Republic Act No. 6389 (September 10, 1971) – Code of Agrarian Reform of the Philippines This law created the Department of Agrarian Reform (DAR), which took over the settlement projects of the government. It is reported that the DAR through its Bureau of Resettlement administered 37 settlements all over the country, 18 of them in Mindanao in the ten provinces of Tawi-Tawi, Zamboanga del Norte, Bukidnon, Agusan del Sur, Lanao Del Norte, Davao del Norte, Lanao del Sur, North Cotabato, Maguindanao, and Sultan Kudarat.

A Moro or a member of national cultural communities is conclusively presumed eligible to be issued a grant and consequent certificate of land title from the government. It required that they or their predecessors-in-interest must have been in open possession and occupation of lands of the public domain suitable to agriculture, regardless of whether the lands are alienable and disposable, under a bona fide claim of ownership for at least 30 years.

As of the end of 1975, DAR administers 18 settlements in Mindanao all over Mindanao covering 454,078 hectares of land inhabited by 26,493 settlers/families (Castaneda cited in Silva, 1979). A product of the Land Reform Code, Land Authority took over from NARRA in 1963. For the first time, resettlement became a part of the land reform program. The creation of the Department of Agrarian reform in 1971 also brought about the existence of the Bureau of Resettlement.

This amendatory law added a new subsection to Section 48 of CA 141 by providing members of national cultural communities with conclusive presumption of eligibility to be issued a grant and consequent certificate of land title from the government. It required that they or their predecessors-in-interest must have been in open possession and occupation of lands of the public domain suitable to agriculture, regardless of whether the lands are alienable and disposable, under a bona fide claim of ownership for at least 30 years. Land Tenure Stories in Central Mindanao

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Moreover, the Economic Development Corps (EDCOR), a special program of the government to counter the upsurge of the Huk rebellion, a brainchild of Ramon Magsaysay, then Secretary of National Defense under President Elpidio Quirino- must also be mentioned. This program was responsible for opening reset50

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tlement areas for surrendered or captured Huks (insurgents) in such areas as Isabela and Quezon in Luzon, and Lanao del Norte, North Cotabato and Maguindanao and Maranao ancestral territories. The resettlement efforts of the government continued to dispossess the Moros of their landholdings.

Martial Law Period (1972- 1981) 10. Presidential Decree No. 410 (March 11, 1974) – Ancestral Land Decree This law declared ancestral lands occupied and cultivated by national cultural communities as alienable and disposable. On reading of the decree, however, the following caveats are noted: • On the scope of the declaration. All unappropriated agricultural lands forming part of the public domain at the date of the approval of the Decree which are occupied and cultivated by members of the national cultural communities for at least 10 years before the effectivity of the law, particularly in certain enumerated provinces, were declared as ancestral lands of the occupant national cultural communities and were further declared as alienable and disposable. This may be construed that if an agricultural land occupied by a national cultural minority is already “appropriated” at the time of the law, then this is no longer within the scope of the declaration • On excluded public domain. The law explicitly states that lands of the public domain that have been (a) reserved for settlement purposes under the administration of the DAR and (b) other areas reserved for other public or quasi-public shall not be subject to disposition in accordance with the provisions of this law

It is noted that the implementing rules and regulations promulgated by the Secretary of Agriculture and Natural Resources were so cumbersome, particularly for indigenous cultural communities who were unfamiliar with the law.

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In addition, the Ministry of Natural Resources General Administrative Order No. 1 of 1974 excludes forest reserves, watersheds, national parks, wildlife sanctuaries, national historic sites and other areas essential to scenic, recreation, fish or wildlife purposes On permission to put Agro-industrial projects in ancestral lands. The law further gives the government the option to establish agro-industrial projects in these areas for the purpose of creating conditions for employment On issuance and limits of Land Occupancy Certificates. These were supposed to be issued to all members of the national cultural communities presently occupying and cultivating lands of the public domain within ancestral lands (as defined in the Decree). However, it required that the recipient of the lands allocated under this law should first be a member of a farmer cooperative within his community before the Certificate can be issued. Once issued, its holders are prohibited from making any sale or transfer of such land within 10 years after acquisition except in favor of the cooperative of which the owner is a member or in favor of the government. No mortgage or other encumbrances on such lands, rights, or interests are also allowed unless approved by the Secretary of Agriculture and Natural Resources

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•

Period to perfect title. The law gave the occupants of ancestral lands a period of 10 years from the date of approval of the law within which to file applications to perfect their title. Otherwise, they are deemed to have lost their preferential rights to the land and that the land shall be declared open for allocation to other deserving applicants. Occupants had until March 11, 1984 to perfect their claims.

or business projects in social and/pr economic fields in agriculture, power, infrastructure, education, energy, public utilities, housing, land development, manufacturing, exploration and/or utilization of natural resources; and generation and encouragement of mass active participation and cooperation of members of national cultural communities in its activities. 12. Presidential Decree No. 705 (1975) – Revised Forestry Code This revised an earlier Forestry Reform Code (P.D. 389) by providing for the classification, management, and utilization of the lands of the public domain and re-assessing multiple uses of forest lands and resources. The decree considered as forest lands (a) those areas of the public domain 18% in slope and over; and (b) certain areas which may be below 18% in slope but needed for forest purposes.

This provision is very reminiscent of the Maura Law, which sought to extinguish vested ancestral land rights for failure to register within the prescribed period. Legal scholar Owen Lynch, Jr. elucidated that even eight years after its promulgation, no Tribal Filipino has acquired a title pursuant to this Ancestral Land Decree. 11. Presidential Decree (PD) No. 690 (1975) – Southern Philippines Development Authority The law abolished the Commission on National Integration, Mindanao Development Authority, the Presidential Task Force for the Reconstruction and Development of Mindanao, and the Special Program of Assistance for the Rehabilitation of Evacuees, and created the Southern Philippines Development Administration (SPDA).

In both cases, these areas, being forest lands, could not be classified as alienable and disposable. Should there be any such lands that have already been declared as alienable and disposable, these will be reverted to the classification of forest lands and will form part of forest reserves, unless covered by existing titles, approved public land application, or actually occupied openly, continuously, adversely, and publicly for a period of 30 years where the occupants is qualified for free patent under CA 141. The law also states that when public interest requires, steps shall be taken to expropriate, cancel defective titles, reject public land application, and eject occupants of such forest lands.

The SPDA was envisioned as a unified responsive agency that will foster and accelerate the balanced growth of Mindanao, Sulu archipelago and Palawan within the context of national plans and policies. Its primary functions include the promotion of the development of the region by initiating development and/

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The law defines private right of national minority as referring to rights or possession already existing, such as places of abode 52

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and worship, burial grounds, and old clearings, but excluding productive forest, commercial forests, and established plantations of forest trees and trees of economic values. It does not however contain any provision for the recognition of private ancestral land rights.

No. 719 and other non-Muslim national minorities whether referred to as National Cultural Minorities or Cultural Communities under other laws”. 15. Presidential Decree No. 1529 – Property Registration Decree (June 11, 1978) This decree amended and codified the laws relative to the registration of property. The following persons were allowed to file in the court an application for registration of title to land: (a) those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier; (b) those who have acquired ownership of private lands by prescription under the provision of existing laws; (c) those who have acquired ownership of private lands or abandoned river beds by right of accession or accretion under the existing laws; and (d) those who have acquired ownership of land in any other manner provided for by law.

13. Presidential Decree No. 1073 (1977) – Extending the period for application for Free Patents and Judicial Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable Lands This law extended the period for filing applications for administrative legalization (free patent) and judicial confirmation of imperfect and incomplete titles to alienable and disposable lands of the public domain under CA 141, as amended, for 11 years commencing on January 1, 1977, or until 1988. As a consequence, however, this law prevented the judiciary from recognizing ownership to ancestral lands which has not yet been declared or certified as “alienable and disposable” by the Bureau of Forest Development.

This law provided the settlers in Mindanao a leeway to register even those lands that have already been applied, surveyed, and approved for titling by the Moros, who by reason of the wars in the 1970s have left their lands and failed to consummate titling of their lands due to presumed abandonment of claims. As a consequence, large tracts of lands previously occupied by Moros were granted to and titled in favor of the migrant settlers.

14. Presidential Decree No. 1414- Presidential Assistant on National Minorities or PANAMIN (June 9, 1978) The law defines the powers and duties of the Office of the Presidential Assistant on National Minorities (PANAMIN), in view of the State’s policy to integrate into the mainstream of Philippine society certain ethnic groups who seek full integration into the larger community.

Steps in Land Registration under the Torrens System: • Survey of Land – undertaken by the Lands Management Bureau or a duly licensed private surveyor

The term “national minorities” is defined under this decree as “non-Muslim hill tribes referred to under Presidential Decree 53

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• •

• • • •

• • •

Filling of Application for Registration – filed with the Clerk of Court of the Regional Trial Court (RTC) of the province or city where the land is located; Setting of the Date for Initial Hearing – the Court sets the initial hearing of the application Transmittal of Application – from the Clerk of Court to the National Land Titles and Deeds Registration Administration (formerly Land Registration Commission) Publication of Notice – this is a notice of the filling of application and date and place of hearing that is published once in the Official Gazette and once in a newspaper of general circulation in the Philippines by the Administrator of the Land Titles and Deeds Registration Administration Service of Notice – notice is given to contiguous owners, occupants, and those known to have interest in the property by the Sheriff Filing of Answer or Opposition – this may be filed by any person, whether named in the notice or not Hearing – sessions when the Court hears the case; Promulgation of Judgment – by the Court Issuance of Decree – by the court declaring that the decision is final and instructing the National Land Titles and Deeds Registration Administration to issue a decree of confirmation and registration Entry of Decree of Registration – in the National Land Titles and Deed Registration Administration Sending of Copy of Decree of Registration – to the corresponding Register of Deeds Transcription of Decree of Registration – in the registration book

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Issuance of Original Certificate of Titles – by the Registrar of Deeds upon payment of prescribed fees. [Peňa, Land Titles and Deeds, 1988 Rev. pp. 30-31]

16. Executive Order No. 561 (1979) - Commission on the Settlement of Land Problems This executive issuance created the Commission on the Settlement of Land Problems under the Office of the President, which was tasked to expeditiously settle land-related conflicts among settlers, landowners, and members of cultural minorities. The land problems or disputes contemplated here were those that are critical and explosive in nature considering, for instance, the large number of parties that are involved, the presence or emergence of social tension or unrest, or other similar critical situations requiring immediate action. The resolution, order, or decision of the Commission has the effect of a regular administrative decision or order which was binding upon the parties. It was observed, however, that most cases settled by the Commission were in favor of the migrants, either by compromise or by force of circumstances.

Post-Martial Law Period 17. Executive Order No. 122-A– Creating the Office of Muslim Affairs; Executive Order No. 122-B (1987) – Creating the Office for Northern Cultural Communities; and Executive Order No. 122-C –Creating the Office for Southern Cultural Communities (all dated January 30, 1987)

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The Office of Muslim Affairs (OMA), Office for Northern Cultural Communities (ONCC), and Office for Southern Cultural Communities (OSCC) were created by separate executive issuances in line with the Freedom Constitution’s provision on government reorganization and the perceived need to promote efficiency and effectiveness in the delivery of public services.

However, reports abound on how OMA has merely served as the government’s justification of integrating the Muslims, but has never addressed the Muslim’s sentiments on their ancestral lands. 17. Republic Act No. 6657 ((June 10, 1988) – Comprehensive Agrarian Reform Law (CARL) This Act institutes a comprehensive agrarian reform program (CARP) as a social justice and industrialization measure in the country. Compared to earlier land reform laws, CARP is regarded as a comprehensive measure because it covers all public and private agricultural lands and other lands suitable for agriculture regardless of tenurial arrangements. The law, however, contains several provisions on exemptions, retention limits, non-land transfer options which were highly favorable to land owners. The law was instrumental in distributing lands to numerous farmers, but it also deprived other poor peasants of the same aspiration of owning lands. It has not yet resolved the problem of landlessness and poverty in the country.

The OMA, in particular, expressed the State’s policy to ensure the rights and well-being of Muslim Filipinos with due regard to their beliefs, customs, traditions, and institutions, as well as to ensure their contribution to national goals and aspirations and to make them active participants in nation-building. OMA was granted several functions, three of which are as follows: • Provide advice and assistance to the Office of the President in the formulation, coordination, implementation, and monitoring of policies, plans, programs, and projects affecting Muslim communities • Undertake and coordinate development programs and projects for the advancement of Muslim communities • Act as primary government agency through which Muslim Filipinos can seek government assistance and redress, and serve as medium through which such assistance may be extended to Muslim Filipinos

In theory, qualified farmer beneficiaries under the CARP include: (a) agricultural lessees and share tenants; (b) regular, seasonal, and other farm workers; (c) actual tillers or occupants of public lands; (d) collective or cooperatives of above beneficiaries; and (e) others directly working on the lands.

The ONCC and OSCC basically have the same functions as the OMA, except only in terms of the members over which they have mandate. The ONCC and OSCC both contemplate “nonMuslim hill tribes and ethnolinguistic minority groups”. ONCC covers all members of such tribal groups in Regions I, II, and III in the northern part of the Philippines; and OSCC encompasses those in Regions IV, V, VI, VII, IX, X, XI, and XII in the southern regions of the country.

The Department of Agrarian Reform has various modes of distributing lands covered by CARP to qualified farmer beneficiaries: • Physical distribution of lands. This includes the Operation Land Transfer (OLT) for tenanted rice and corn lands originally under an earlier land reform program

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Compulsory acquisition. This is where government expropriates the land holding regardless of whether the landowner cooperates with the program or not, and then is paid via staggered bonds-cash payment spread over ten years Voluntary Offer to Sell (VOS). This scheme encourages landowner cooperation by giving them incentives when they voluntarily cooperate under the program (additional 5% in cash portion of the payment with corresponding decrease of 5% in bonds payment) Voluntary Land Transfer (VLT). Also referred to as the Direct Payment Scheme, this is a “land transfer” transaction that is directly made between the landlord and peasants, and where the government’s role is minimal and merely facilitative Non-land transfer schemes. Examples of this mode include stock distribution option, production and profit sharing, and leasehold operation

It added that any provision of law to the contrary notwithstanding, the implementation of this Act maybe suspended with respect to ancestral lands for the purpose of identifying and delineating such lands: provided, that in the autonomous regions, the respective legislatures may enact their own laws on ancestral domain subject to the provisions of the Constitution and the principles enunciated in this Act and other national laws. 19.Republic Act No. 6734 (August 1, 1989) – Organic Act for the Autonomous Region in Muslim Mindanao The purpose of the Organic Act is to establish the Autonomous Region in Muslim Mindanao (ARMM), to provide its basic structure of government within the framework of the Constitution, national sovereignty, and territorial integrity of the Philippines, and to ensure peace and equality before the law of all people in the region. With respect to ancestral domain and ancestral lands of indigenous cultural communities, the Organic Act mandates the Regional Government to undertake measures to protect this subject to the Constitution and national policies.

The law defined ancestral lands of each indigenous cultural community to include, but not be limited to, lands in the actual, continuous and open possession and occupation of the community and its members and provided that the Torrens Systems shall be respected.

In the context of the Act, ancestral domain is understood as “all lands and natural resources in the Autonomous Region that have been possessed or occupied by indigenous cultural communities since time immemorial, except when prevented by war, force majeure, or other forms of forcible usurpation”. It includes “pasture lands, worship areas, burial grounds, forests and fields, mineral resources, except: strategic minerals such as uranium, coal, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy; lakes, rivers and lagoons; and

Under this law, the right of these communities to their ancestral lands shall be protected to ensure their economic, social and cultural well-being. In line with the principles of self-determination and autonomy, the systems of land ownership, land use, and the modes of settling land disputes of all these communities must be recognized and respected. Land Tenure Stories in Central Mindanao

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national reserves and marine parks, as well as forest and watershed reservations”. Ancestral lands, on the other hand, refer to “lands in the actual, open, notorious, and uninterrupted possession and occupation by an indigenous cultural community for at least thirty (30) years.”

The Organic Act further provides for the implementation and enforcement of the customary laws, traditions, and practices of indigenous cultural communities on land claims and ownership and settlement of land disputes among the members of such community. Corporations, companies and other entities within the ancestral domain of the indigenous cultural communities whose operations adversely affect the ecological balance shall be required by the Regional Government to take the necessary preventive measures and safeguards in order to maintain such a balance.

The Organic Act provides for judicial affirmation of titles to ancestral lands. It states that “the constructive or traditional possession of lands and resources by an indigenous cultural community may also be recognized subject to judicial affirmation, the petition for which shall be instituted within a period of ten (10) years from the effectivity of this Act. The procedure for judicial affirmation of imperfect titles under existing laws shall, as far as practicable, apply to the judicial affirmation of titles to ancestral lands”. Nonetheless, the Act clarifies that “titles secured under the Torrens system, and rights already vested under the provisions of existing laws shall be respected”.

Other provisions related to ancestral domain are as follows: • Unless authorized by the Regional Assembly, lands of the ancestral domain titled to or owned by an indigenous cultural community shall not be disposed of to nonmembers; and • No portion of the ancestral domain shall be open to resettlement by non-members of the indigenous cultural communities

The phrase indigenous cultural community was also defined under the Act. It refers to “Filipino citizens residing in the Autonomous Region who are: (a) tribal peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and (b) Bangsamoro people regarded as indigenous on account of their descent from the populations that inhabited the country or a distinct geographical area at the time of conquest or colonization and who, irrespective of their legal status, retain some or all of their own socioeconomic, cultural and political institutions”.

Finally, the Regional Assembly is mandated to enact an Agrarian Reform Law suitable to the special circumstances prevailing in the Autonomous Region, subject to the Constitution and national law. 20. Republic Act No. 7586 (1992) – National Integrated Protected Areas System or NIPAS Act This law establishes a national integrated protected areas system (NIPAS) which shall encompass outstanding remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic 57

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zones, and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as protected areas.

Consistent with previous mining laws, the 1995 Mining Act has also been criticized for easing the eviction of the indigenous peoples from their lands, facilitating the acquisition of minerals on these lands by foreign-owned corporations, and paving the way for the destruction of the environment.

Under this law, the following categories of protected areas shall be established: strict nature reserves, natural park, natural monument, wildlife sanctuary, protected landscapes and seascapes, resource reserve, natural biotic areas, and other categories that may be established by law.

22. Republic Act No. 8371 (October 21, 1997) – Indigenous People’s Rights Act This law was passed pursuant to the constitutional policy that the State shall recognize and promote all the rights of indigenous cultural communities/indigenous peoples (ICC/IP) within the framework of the Constitution.

Since many of the areas targeted under the NIPA system are also occupied by indigenous communities or are claimed as their ancestral lands, the law expressly recognizes ancestral lands and customary rights and interest.

As provided under Chapter II, Section 3 (a) of the Act, ancestral domain refer to all areas generally belonging to ICCs/ IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities,

21. Republic Act No. 7942 (1995) – Philippine Mining Act of 1995 This law reiterated the Regalian Doctrine that all mineral resources in public and private lands within the Philippine territory are owned by the State. As such, the State under this Act will undertake the exploration, development, utilization, and processing of all mineral resources. With respect to ancestral lands, the law states that “no ancestral lands shall be opened for mining operations without prior consent of the indigenous cultural community concerned.” In the event that an agreement (with prior consent) has been made with the indigenous cultural community, royalty payments shall be agreed upon by the parties upon utilization of the minerals. The royalty shall form part of a trust fund for the socio-economic well-being of the indigenous cultural community.

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particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; • Ancestral Land, on the other hand refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors in interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots;

• •

• The law includes provisions on: • Ancestral domain rights, which includes the following rights: (a) rights of ownership; (b) rights to develop lands and natural resources; (c) rights to stay in the territories; (d) rights in case of displacement; (e) rights to regulate entry of migrants; (f ) rights to safe and clean air and water; (g) right to claim parts of reservation; and (h) right to resolve conflict • Formal recognition of the ancestral domains by virtue of Native Title, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICC/IP over the territories identified and delineated. Native Title refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are

Section 8 of the Act provides for the following Ancestral land rights: a) Right to transfer land/property among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned b) Right to Redemption in cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a nonmember of the concerned ICCs/ 59

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thus indisputably presumed to have been held that way since before the Spanish Conquest Rights to self-governance, including rights to use own commonly accepted justice systems; rights to fully participate in decision-making; and rights to determine priorities of development that affect their lives Responsibilities of IP/ICC to their ancestral domains Creation of the National Commission on Indigenous Peoples (NCIP), which shall be the primary government agency responsible for the formulation and implementation of plans to promote and protect the rights of the IP/ ICCs and the recognition of their ancestral domains and rights. The NCIP shall be composed of commissioners belonging to IP/ICCs. It also has quasi-judicial powers Process of delineation and recognition of ancestral domains Option to secure Certificate of Title under CA 141 as amended, or the Land Registration Law (Act No. 496) for individual members of cultural communities, with respect to individually owned ancestral lands. This option must be exercised within 20 years from the approval of the IPRA law or on November 22, 2007

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IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer

• Professor Marvic Leonen in his lecture entitled, “The IPRA: An Overview of its Contents” , delivered at the 1st Judicial Seminar on Indigenous Peoples Rights Act (Region III & IV), on February 18, 2002 at PHILJA, Tagaytay City explained that there are three kinds of ancestral lands.)

The law further merged the ONCC and OSCC as organic offices of the NCIP.

“First, there are ancestral lands that, are stand-alone or not within an ancestral domain, and covered by Section 3(b) of the IPRA law. Second, there are ancestral lands that are also stand alone, but can be acquired through Section 12 of the IPRA, or the option to secure a certificate of titled under C.A. No. 141, as amended, or Land Registration Act No. 496…And third, there are ancestral lands within an ancestral domain.”

23. Republic Act No. 9054 (March 31, 2001) – Strengthening and Expanding the Organic Act for the ARMM Amending Rep. Act No. 7634 (1989), this Act seeks to strengthen and expand the Organic Act for the ARMM. It provides that all lands and natural resources in the autonomous region that have been possessed or occupied by indigenous cultural communities since time immemorial, except when prevented by war, force majeure or other forms of forcible usurpation, shall form part of the ancestral domain. Such ancestral domain shall include pasture lands, worship areas, burial grounds, forests and fields, mineral resources, except strategic minerals such as uranium, coal, petroleum, and other fossil fuels, minerals, oils, and all sources of potential energy; lakes, rivers, and lagoons.

“He clarified further that, if ancestral lands that are standalone are transferred or sold to non-indigenous people, then it is valid, except that there is a right to redemption. Within fifteen (15) years, the indigenous group living within that area has the right of redemption. This however does not govern ancestral lands within an ancestral domain. Lands within ancestral domain cannot be sold; they are inalienable.” The law also provides the following: • Existing property rights regimes. Property rights within the ancestral domains already existing and/or vested Land Tenure Stories in Central Mindanao

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upon effectivity of the IPRA law shall be recognized and respected.( Sec. 56) Communal rights. Subject to existing property rights, areas within the ancestral domains, whether delineated or not, shall be presumed to be communally held. (Sec. 55) Natural resources within ancestral domains. The IP/ICC shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. (Sec. 57)

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The law was apparently objected to by the some Moro groups as an arbitrary and unilateral act of the Philippine government. One of the most controversial provisions of the law is the removal of the scope of ancestral domain of the Bangsamoro people and the jurisdiction of the ARMM government over strategic minerals, all sources of potential energy, lakes and other water forms, national reserves and marine parks found within the area of autonomy.

• •

It has been widely denounced as to have been passed without proper and sufficient consultations with the people of the ARMM and other stakeholders and that public hearings conducted for the same were hastily done.

• • •

Present major laws governing public land disposition and land registration of Moro ancestral lands: • Act No. 2259 Cadastral Act which provides for the cadastral survey and institution of compulsory and mass judicial proceedings for the settlement and adjudication of claims to all kinds of land in a particular municipality, city or specific tract of land initiated by the Director of Lands upon order of the President whenever public interest requires it

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P.D. 1529 known as the Real Property Registration Decree. Commonwealth Act No. 141 as amended or the third Public Land Act. Although was in enacted 1936, it is still being implemented up to this time as amendments have been made therein from time RA 3872 or An Act to Amend Sections Forty-Four, FortyEight and One Hundred Twenty of Commonwealth Act Number One Hundred Forty One, as Amended, Otherwise known as the “Public Land Act”, and For Other Purposes RA 6371 or Indigenous People’s Rights Act (IPRA of 1997) Comprehensive Agrarian Reform Law of 1998 (RA No. 6657) RA 9054 or Strengthening and Expanding the Organic Act for the ARMM (2001)

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Endnotes: “EMILIO MOLÍNS—Segundo cabo of Philippines; governor (ad interim), March 10-April 7, 1883.” “Becomes governor (ad interim), for second time, and rules three days, April 1-4, 1885.” Quoted in “List of Philippine Governors,” Blair and Robertson, ibid., Vol. 17, p.310. 11 Associate Justice from January 5, 1994 to August 9, 2004. 12 Cruz v. Secretary of Environment and Natural Resources, Separate Opinion, Kapunan, J. (347 SCRA 128) 13 390 SCRA 343, G.R. No. 107764 (October 4, 2002). 14 Full Spanish text of the Maura Law of May 19, 1893 is found in Don Felix Mauricio Roxas y Fernandez, Commentarios al Reglamento Provisional para el Regimen el Gobierno de las Juntas Provincials, creadas por Real Decreto de 19 de Mayo de 1893. Manila: Tipografia y Almacen Amigos del Pais, 1894, pp.XII-XXXVI. 15 For the English text of the Maura Law, see Jose P. Laurel, Local Government in the Philippine Islands. Manila: La Pilarica Press, 1926, pp.317-338. 16 Ibid., p.317. 17 Ibid. 18 “CAMILO POLAVIEJA—General; becomes governor, December 13, 1896 (Algue); Rizal executed, December 30, 1896; Tagal republic proclaimed, October, 1896; insurrection spreads; operations against insurgents by General Lachambre, 1897; Polavieja issues amnesty proclamation, January 1, 1897; efficient service of loyal Filipino troops; term as governor, December 13, 1896-April 15, 1897.” Quoted in “List of Philippine Governors,” Blair and Robertson, op. cit., Vol. 17, p.311. 19 The Order of Polavieja can be found in John Roger Meigs Taylor, The Philippine Insurrection Against the United States (5 vols.). Pasay City: Eugenio Lopez Foundation, 1971, Vol. I, Exhibit 63, pp.275-276. 20 Former MILF Chairman Salamat Hashim to Carolyn O. Arguillas (Philippine Daily Inquirer, April 20, 2000 issue) 10

Valenton v. Murciano, 3 Phil. 537 (March 30, 1904). Associate Justice from June 28, 1993 to December 7, 2006 and Chief Justice from December 8, 2006 to present. 3 347 SCRA 128 (December 6, 2000). The case GR No. 135385 was decided by the Supreme Court on a 7-7 split vote on December 6, 2000. The Supreme Court upheld the constitutionality of the Indigenous Peoples Rights Act (IPRA) based on the Rules of Civil Procedure, thus: “As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.” 4 Cruz v. Secretary of Environment and Natural Resources, Separate Opinion, Puno, J. (347 SCRA 128). 5 Cruz v. Secretary of Environment and Natural Resources, Separate Opinion, Puno, J. (347 SCRA 128). 6 Ibid. 7 Phils. 936 (February 23, 1909). 8 Phils. 936 (February 23, 1909). 9“ FERNANDO PRIMO DE RIVERA—Marquis of Estella; becomes governor, April 15, 1880; cable opened between Luzón and Spain, 1880; royal decree orders repeal of tobacco monopoly, 1881; term marked by corruption in public offices; term as governor, April 15, 1880-March 10, 1883.” Quoted in “List of Philippine Governors,” Emma Helen Blair and James A. Robertson (eds.), The Philippine Islands, 1493-1898. Explorations by Early Navigators, Descriptions of the Islands and Their Peoples, Their History and Records of the Catholic Missions, as Related in the Contemporaneous Books and Manuscripts, Showing the Political, Economic, Commercial and Religious Conditions of Those Islands from Their Earliest Relations with European Nations to the Close of the Nineteenth Century (55 volumes). Cleveland: The Arthur H. Clark Co., 1903-1909, Vol. 17, p.310. This voluminous collection will be cited as Blair and Robertson. 1

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Annex 3 to Protocol No. 16, in Senate Document No. 62, Part I, 55th Congress, 3rd Session, A Treaty of Peace between the United States and Spain. Washington: Government Printing Office, 1899, p.221. 22 The English and Spanish texts of the surrender message of Aguinaldo are found in Arthur MacArthur, Address to the Filipino People by Emilio Aguinaldo. Manila: Office of the Military Governor in the Philippine Islands, 1901, pp.1-4. 23 Full copy of the Proclamation is available at http://www.msc.edu.ph/centennial/tr020704.html. 24 Act No. 718 is AN ACT MAKING VOID LAND GRANTS FROM MORO SULTANS OR DATTOS OR FROM CHIEFS OF NON-CHRISTIAN TRIBES WHEN MADE WITHOUT GOVERNMENTAL AUTHORITY OR CONSENT. Full text of the Act is found in Guevarra, Public Laws Annotated, op. cit., Vol. 3, pp.219-220. 25 Chapter IV, Sec. 12, Act No. 2874. Full text of Act No. 2874 can be found in Public Land Laws of the Philippine Islands in Force and Effect July 1, 1920. Washington: Government Printing Office, 1920, pp.22-41. 26 Chapter IV, Sec. 22, Act No. 2874. Full text of Act No. 2874 can be found in Public Land Laws of the Philippine Islands in Force and Effect July 1, 1920. Washington: Government Printing Office, 1920, pp.22-41. 27 Commonwealth Act No. 141 was AN ACT TO AMEND AND COMPILE THE LAWS RELATIVE TO LANDS OF THE PUBLIC DOMAIN. Copy of which can be found in Public Laws of the Commonwealth, op. cit., Vol. 1, pp.572-616. 28 Owen James Lynch, Jr. “Native Title, Private Right and Tribal Land Law: An Introductory Survey, Vol. 5, Philippine Law Journal) 29 (page 53, PHILJA Judicial Journal, Volume 4, Issue No. 13, July-September 2002) 21

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Positioning Analysis of Land Laws Affecting the Moro Lands

I

n positioning theory, statements given unilaterally (e.g., laws, policies, speeches, etc.) or in exchanges (e.g., conversations, discourses, etc.) are analyzed by: a) describing their underlying storyline, b) highlighting the positions of people in the storyline (i.e., what the speakers believe to be their own rights and duties vis-à-vis those of other people), and c) surfacing the apparent social meaning or intentions of the statements. Together, these three interrelated elements of statements (i.e., storyline, position, and meaning) are called “Positioning Triangle” (Harre & van Langenhove, 1999).

This section presents a positioning analysis of land laws affecting Moros’ access to their ancestral lands. This analysis points to three episodes.

The First Episode: The Moro Positioning in Adat or Customary Land Laws The first episode happened for centuries until before the 20thth century when customary land laws or adat determined the land rights of the Moro, as well as the land ownership and disposition processes in Mindanao. These customary land laws had two underpinning storylines. The first storyline was that lands were owned by the sultans and their chiefs of tribes. In this storyline, the sultans and chiefs of tribes were positioned as having the right to lease or grant ownership of lands, and their constituents and all other people as obliged to seek their permission or their generosity to occupy or acquire lands within the sultan’s or tribe’s area of control. The social meaning was the portrayal of the authority and preeminence of the sultans and the chiefs of tribes.

This “Positioning Triangle” is dynamic in that it transforms if its elements change, such as when the people depicted in the storyline reject the way they are being positioned and push for their repositioning. Each phase of the transformation of the positioning triangle is called an episode. A new episode ushers in when storylines change, repositioning of people happens, and new meanings and intentions emerge. 66

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The second storyline of customary laws was that lands are communally owned. In this storyline, no individual person was positioned to have the right to own land and to assume control over its disposition. The apparent social meaning was the depiction of the importance of the collectives over the individual and of the lands as a collective possession. Thus, individual landownership was an incompatible, foreign concept and practice among the Moro. Everyone enjoyed equal access and use of lands owned by the tribe.

to till land with a maximum size of four hectares. Also, this law, which was a reiteration of an earlier Act 718, made illegal and void all lands granted “by sultans, datus or other chiefs of the socalled non-Christian tribes, without the authority of the Spanish government while the Philippines was under the sovereignty of Spain, or without the consent of the United States Government or of the Philippine Government since the sovereignty over the Archipelago was transferred from Spain to the United States.” This second episode was carried on during the Commonwealth period with the crafting of Commonwealth Act 141 as an almost complete adoption of Act 2874. The same law persisted for more than 70 years until the amending of its provisions pertaining to non-Christians in the 1980s and 1990s. Though amended or repealed, these provisions on non-Christians continue to be found in the current version of CA 141.

In rejecting the Spanish rule and its Regalian Doctrine, the Moro were able to preserve their centuries-old adat or customary laws, and protect their selves and their lands from being placed by the Spanish colonizers under the control of the Spanish Crown.

The Second Episode: The Moro Positioning in Public Land Laws of the American Colonial Government, Commonwealth Period, and the Republic of the Philippines The positioning of the Moro in the first episode, however, changed when the American colonizers in the early 20th century deceptively established sovereignty over the Moro lands and subjected these lands under their public land laws for the Philippines. The land laws of the US government were compiled in Act 2874, otherwise known as the Public Land Act of 1919. As shown in the previous section of this paper, under this law the Christians may apply for homestead patent for a public agricultural land not exceeding 24 hectares, whereas the Moro or non-Christian tribes were only allowed to apply for a permit

Three storylines can be drawn from Public Land Act or CA 141. The first storyline is related to the assigning of unequal land rights to Christians and non-Christians. The second storyline pertains to the bias of the law against female non-Christians. The third storyline is on the abrogation of the customary power of non-Christian tribes’ leaders to grant lands. Storyline 1: CA 141’s conferment of unequal land rights to Christians and non-Christians Section 21 allows a non-Christian Filipino to acquire a permit of occupation in a tract of land not more than four hectares with a condition to cultivate and improve the land within six months. Otherwise, the permit will be cancelled. Sections 44 and 48c

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also entitle members of ‘national cultural minorities’, who have occupied their land since July 4, 1955 or for at least 30 years, to confirm their land rights through application for free patent or application for a certificate of title before the Court of First Instance of the province where land is located.

The storyline that can be drawn, therefore, from these sections of CA 141 is: Because Christians are more ‘civilized’ than non-Christians, then Christians deserve more land rights than non-Christians. Along this storyline, the Christians are positioned as entitled to acquire bigger tracts of lands than the non-Christians and enjoy the full benefits of the law. On the other hand, the non-Christians are positioned as obliged to prove that they have advanced in civilization before they can qualify for the same benefits that the law provides to all other citizens (Christians).

On the other hand, CA 141 entitled all other citizens (presumed to be Christians) to own and use more hectares of land. Sections 12, 19, and 44 allow this citizen at least 18 years age or head of the family to acquire a patent (homestead or free patent) for a tract of land not more than 12 hectares (24 hectares in the original version). Section 22 also allows this citizen of lawful age or head of family to purchase a maximum of 144 hectares of land if individual or 1,024 hectares if corporation or association with at least 60% of capital stock Filipino-owned. Section 33 furthermore allows this citizen and corporation or association to lease 1,024 hectares. But if the purpose of the lease is for grazing then, then this individual or corporation is allowed to lease a maximum of 2,000 hectares.

In this positioning, the assigning of unequal land rights (positions) to non-Christians and Christians in CA 141 was assessed to have an effect of segregating the non-Christians from the Christians and of treating non-Christians as people of lower level of civilization. This may have a further effect of pressuring the non-Christians to acknowledge the authority of the State and to conform to the standards or requirements of the State with regard to land ownership.

Nonetheless, Section 84 gives non-Christian Filipinos hope to enjoy the same benefits as all other citizens. Section 84 states that if the Secretary of the Interior certifies that the majority of non-Christian inhabitants are “advanced sufficiently in civilization”, then the President may order that such lands of the public domain within the reservation be granted to them. Also, nonChristian inhabitants “may at any time apply for the general benefits of this Act provided the Secretary of Agriculture and Natural Resources is satisfied that such inhabitant is qualified to take advantage of the provisions of the same”.

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Storyline 2. Unequal land rights of male and female nonChristian Filipinos Another element of CA 141 is the gender qualification of a nonChristian inhabitant to acquire a permit of occupation in a tract of land not more than four hectares. The middle portion of Section 84 states: “… granting to each member not already the owner, by title or gratuitous patent, of four or more hectares of land, the use and benefit of only of a tract of land not to exceed four hectares for each male member over eighteen years of age or the head of a family…”

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Thus, from this statement of qualification, a gender-related storyline can be drawn, that is: because the male is the head of the family, then he has prior right to acquire land than the female member of the family. In this storyline, the male nonChristian is positioned as a leader, tiller and provider of the family, whereas the female non-Christian is positioned as having no right to own land. With this positioning, the gender qualification of a non-Christian land patent applicant has an effect of fostering gender inequality in landownership.

Philippine Government since the sovereignty over the Archipelago was transferred from Spain to the United States, and all deeds and other documents executed or issued or based upon the deeds, patents, and documents mentioned, are hereby declared to be illegal, void, and of no effect.” The storyline of Section 84 can be interpreted as: only the State has the power to decide on how to dispose and use public lands; therefore, all chiefs of non-Christian tribes are obliged to act in accordance with the land rules of the State. In this storyline, the State is positioned as the ruler, superior, and landowner; whereas the chiefs of non-Christian tribes are positioned as ruled, inferior, and tenants or non-landowners and therefore have no control over the lands occupied or claimed by their members.

Storyline 3: Abrogation of the customary power of nonChristian tribes’ leaders to grant lands CA 141 established state control over all lands in the Philippines and declared as illegal, void and of no effect all land grants, transfers, and donations done by sultans, datus, and chiefs of non-Christian tribes. In effect, CA 141 did not only abrogate the customary land-related power of the chiefs of the non-Christian tribes, but also marginalized and negated their customary land laws. As Section 84 of CA 141 states:

With this storyline and positioning, Section 84 will therefore have an effect of establishing the control of State and removing the authority of the non-Christian tribal chiefs in the disposition of land, even those undertaken during the time when the Moro successfully thwarted Spanish colonization.

“… all grants, deeds, patents, and other instruments of conveyance of land or purporting to conveyor transfer rights of property, privileges, or easements appertaining to or growing out of lands granted by sultans, datus or other chiefs of the so-called non-Christian tribes, without the authority of the Spanish government while the Philippines was under the sovereignty of Spain, or without the consent of the United States Government or of the

In sum, the storylines and positioning of Christians and nonChristians in CA 141 reflect an orientation that is prejudiced against all non-Christians, especially females. In positioning the non-Christians, who successfully opposed Spanish colonization, as such, it can be said that historical injustice was committed against them.

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Because this injustice continued even after the American colonization with the Philippine State’s adoption of Act 2874 in CA 141, which was effective for around seven decades, this leaves us to hypothesize on the impact of CA 141 on land conflicts and asymmetrical relations between Muslims and Christian settlers in Mindanao in the present time. This appears to be confirmed in two of the land conflict stories of this study.

The Third Episode: Equal Acquisition of Land Ownership Rights among Moro and Christian Citizens Alongside the Continued Moro Struggle for Restorative Justice The 1986 EDSA peaceful revolution led to the 1987 Philippine Constitution, which guarantees equality of all citizens. Article III Section 1 of the Constitution states, “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” In light of this principle of the Constitution, the discriminating provisions of CA 141 are presumed to have been repealed.

Under this second episode, Moro groups, such as the Moro National Liberation Front (MNLF) and the Moro Islamic Liberation Front (MILF), emerged and fought for justice and for their right to self-determination. As a result, the Moro rebels were able to push for the crafting and signing of the Tripoli Agreement of 1976, which could have effected into their repositioning.

Thus, the non-Christians need not be certified to be “advanced sufficiently in civilization” to qualify for the full benefits of CA 141. Being a non-Christian is also not a hindrance to becoming a beneficiary of the Comprehensive Agrarian Reform Law of 1988. As such, the 1987 Philippine Constitution can be said to have repositioned the non-Christians, including the Moro, as citizens with rights equal to all other citizens of the country.

The 1976 Tripoli Agreement provides for the establishment of an autonomous government for the Muslims in southern Philippines within the territorial integrity and sovereignty of the Republic of the Philippines, specifically in 13 provinces and all cities and villages situated therein. This autonomous government shall have powers on Shariah, education, administrative system, economic and financial system, special regional security forces, legislative assembly and executive council, and mines and mineral resources. However, a repositioning of the Moro did not happen because of the non-implementation of the Tripoli Agreement.

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The 1987 Philippine Constitution includes a specific provision for the creation of an Autonomous Region in Muslim Mindanao (ARMM). For its enabling legislation, the Congress passed in 1989 RA 6734, entitled “An Act Providing for the Autonomous Region in Muslim Mindanao” and subjected it to a mandated plebiscite. In this plebiscite, four of the thirteen provinces, but none of the nine cities, within the proposed autonomous region voted to join the ARMM (May, 2002). These four provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. However,

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the Moro National Liberation Front (MNLF) rejected RA 6734 because it contravened the 1976 Tripoli Agreement.

effect after approval by a majority of the votes cast in the above four provinces that constituted the ARMM. Aside from the approval of the new ARMM law, the plebiscite also paved the way for the inclusion of Basilan and Marawi City in ARMM.

Upon his assumption of the Presidency in 1992, President Fidel Ramos revived the negotiations with the MNLF. The eventual outcome was a peace agreement, signed in Jakarta on September 2, 1996 by Prof. Nur Misuari and Ambassador Yan (as chair of the GRP Peace Panel). The 1996 Peace Agreement was supposed to facilitate the implementation of the unresolved stipulations of the 1976 GRP-MNLF Tripoli Agreement. Similar to the fate of the 1976 Tripoli Agreement, however, the 1996 Peace Agreement was not truly implemented. According to Atty. Randolph C. Parcasio Al Haj (n.d.):

The next and most recent Moro attempt at securing restorative justice through peace negotiations with the Government of the Republic of the Philippines (GRP) was undertaken by the Moro Islamic Liberation Front (MILF). A year after the allout-war launched in 2000 by then President Joseph E. Estrada against the MILF and two months after taking the presidency through people’s power in January 2001, President Gloria Macapagal-Arroyo (PGMA) signed an agreement with the MILF on March 2001 for the resumption of peace talks. Then on June 2001, the Government of the Republic of the Philippines (GRP) and the MILF signed the Agreement on Peace in Tripoli, Libya.

“The legal processes used by the GRP in the implementation of the Agreement were unilateral acts done without any consultation with the other High Contracting Parties i.e., the OIC and the MNLF. These legal processes involved a combination of executive and legislative fiats. The executive fiat was Executive Order 371 signed by former President Fidel Ramos for the purpose of implementing Paragraphs 1-20 of the Peace Agreement and the other subsequent executive actions affecting the constituents in the Bangsamoro homeland. The legislative fiat was Republic Act 9054.”

This agreement defined the major areas for discussion in the formal peace negotiations between the GRP and the MILF, namely, security, humanitarian, rehabilitation and development, and ancestral domain. On July 2008, after seven years of off-and-on negotiations, the panels of negotiators of the MILF and GRP finally reached an agreement on the last and most contentious issue of their peace negotiation process. This was the Bangsamoro ancestral domain, which evolved into the Bangsamoro Juridical Entity (BJE). Official representatives of both parties signed a joint statement dated July 27, 2008 for the formal signing of the Memorandum of Agreement on Ancestral Domain (MOA-AD) in early August 2008.

In 2001, the Congress passed RA 9054, entitled “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao,” amending RA 6734. This law took

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The concepts and principles that are stated in the introductory section of the MOA-AD clearly show its storyline, positioning and intent. The storyline is: the Bangsamoro people “have a definite historic homeland. They are the ‘First Nation’ with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.” Along this storyline, the panel of negotiators of both parties positioned the Bangsamoro as having the authority over their ancestral domain and ancestral land. Concepts and Principle #6 states:

These concepts and principles are given flesh in the three major sections of the MOA-AD, namely: Territory, Resources and Governance. Under the Territory section, the areas that will be covered by the Bangsamoro Juridical Entity (BJE) through a plebiscite to be conducted by the Government are identified. This section states that the BJE shall have authority and jurisdiction over the ancestral domain and ancestral lands of the Bangsamoro in the barangays to be included in the expanded ARMM through a plebiscite.

“Both Parties agree that the Bangsamoro Juridical Entity (BJE) shall have the authority and jurisdiction over the Ancestral Domain and Ancestral lands, including both alienable and non-alienable lands encompassed within their homeland and ancestral territory, as well as the delineation of ancestral domain/lands of the Bangsamoro people located therein.”

Moreover, “the BJE shall have jurisdiction over the management, conservation, development, protection, utilization and disposition of all natural resources, living and non-living within its internal waters extending fifteen (15) kilometers from the coastline of the BJE area.” The latter is reiterated in the Resources section, which states that “The Bangsamoro People through their appropriate juridical entity shall, among others, exercise power or authority over the natural resources within its territorial jurisdiction.”

The last paragraph of Concepts and Principles #4 articulates the intent of MOA-AD, that is to secure restorative justice for the Moro. The paragraph states:

This second section also states that there will be “wealthsharing based on a mutually agreed percentage ratio in favor of the BJE through an economic cooperation agreement or arrangement over the income and revenues that are derived from the exploration, exploitation, use and development of any resources for the benefit of the Bangsamoro people.” The

“The Parties concede that the ultimate objective of entrenching the Bangsamoro homeland as a territorial space is to secure their identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people.”

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Governance section, on the other hand, stipulates that “the relationship between the Central Government and the BJE shall be associative characterized by shared authority and responsibility…”

On October 14, 2008 the Supreme Court ruled that the MOAAD is unconstitutional. This effectively stopped the administration of President Gloria Macapagal-Arroyo (PGMA) from entering into this deal with the MILF.

This repositioning of the Moro over their ancestral domain, however, did not happen because the supposed signing of the MOA-AD on August 5, 2008 in Kuala Lumpur, Malaysia was aborted. A day before the scheduled signing of the MOA-AD, the Philippine Supreme Court, responding to petitions from local government officials, issued a temporary restraining order (TRO) against the signing of the MOA.

In sum, with the non-implementation of the 1976 Tripoli Agreement and the 1996 Peace Agreement between the MNLF and GRP, and the aborted signing of the MOA-AD between the MILF and GRP, restorative justice issues have not been addressed and the assertion of the Moro for the recognition of their right to self-determination has remained unfulfilled.

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Five Land Conflict Stories of Moros in Central Mindanao

STORY 1 A Land Dispute between Moro Claimants and Christian Settlers in Impao, Isulan, Sultan Kudarat Background The land dispute in the municipality of Isulan, Sultan Kudarat is a case where government land policies once united two groups: one original inhabitants of Mindanao and the other, settlers from Visayas and Luzon. When the war in Mindanao in the 70’s cleaved these groups, government land policies which were implemented in abnormal and difficult circumstances created a contest for a parcel of land to which both groups are claiming rightful ownership.

In May 1952, the Bureau of Lands (now Land Management Bureau of the Department of Environment and Natural Resources) awarded some 500 hectares to Caram Development Corporation, Inc. (Caram), a private corporation said to be holding office in Makati, Metro Manila. The award was based on a sales application (SA No. V-2445 (#-7134) filed by Caram in 1946 on an area which was later found to be situated within Lot 26. Also in 1952, Christian settlers began to arrive in Isulan, particularly in the sitio which later became Barangay Impao where Datu Talipasan Impao has established a settlement. The Moro and Christian communities co-existed harmoniously until war in Central Mindanao in the 1970s displaced the heirs of Datu Talipasan and other Moro residents in Barangay Impao and neighboring barangays.

The disputed area is located in Isulan’s northern portion, spanning the contiguous barangays of Impao, Mapantig and Dansuli. It is described as Lot 26 of a survey referred to as Special Work Order (SWO) 17260 conducted on June 21 to December 2, 1941 and approved on October 10, 1956. Based on its approved Technical Description (TD), Lot 26, SWO 17260 comprises 606.3550 hectares. The land described in the TD is named under Datu Talipasan Impao, a local Moro leader as claimant. 76

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In 1988, the Bureau of Lands in Manila ordered the revocation of the land patent it gave to Caram on the ground of violation. The order was based on a petition made by Bagua Mama (also known as Datu Sanggutin, son of Datu Talipasan Impao) and 33 other petitioners. The order also directed the Bureau of Lands in Tacurong, South Cotabato to distribute land awarded to Caram to actual qualified claimants. In compliance, the Provincial Environment and Natural Resources Office (PENRO) in Tacurong conducted a confirmatory investigation on Lot 26. The investigators recommended a survey be conducted on the area to identify actual occupants. In 1990, the PENRO conducted the survey referred to as Isulan Group Settlement Survey (Gss-12-000064).

In 2005, Rakman and Nasser Talipasan, representing the heirs of Datu Talipasan Impao, started to reassert legitimate ownership of Lot 26 based on SWO 17260 Survey and on the 1988 decision of Bureau of Lands which precipitated the Isulan Group Settlement Survey. They filed a complaint before the DENR, demanding the nullification of the execution of the 1988 Order on the ground of actual fraud and misrepresentation. They named as respondents the PENRO and the beneficiaries of Isulan Group Settlement Survey. They demanded that the Land Management Bureau of the DENR nullify the Isulan Group Settlement Survey and distribute lands awarded to Caram to them. They have tried to re-occupy some parts of Barangay Impao but were stopped by the town mayor who convinced them to hold re-occupation in abeyance and settle matters diplomatically.

The Isulan Group Settlement Survey covered about 312 hectares, the remaining area of which no surveys were made subsequent to SWO 17260 to which Lot26 was part. The survey yielded 162 lots, of which 147 were occupied by Christian settlers, 10 by Muslim claimants. The area occupied by Christian settlers constitutes about 263 (84% of 312) hectares, including six lots which the survey had categorized as public lands. Muslims, on the other hand, occupy about 32 (10% of 312) hectares.

The beneficiaries of Isulan Group Settlement Survey are yet to be informed formally that a complaint had been filed against them regarding their claims on Lot 26. But they are confident that the way by which they acquired lands from the previous Moro occupants were legal and without malice. Because of this they are prepared to defend their rights, first in a peaceful manner. However, they have intimated that they are also prepared for other means.

The remaining lots were alloted for public use such as barangay facilities and school sites. Based on the records of the Assessor’s Office of the municipality of Isulan, only about 36% (96 out of 262 hectares eligible for titling) of areas claimed by settlers had been titled. On the other hand, about 52% (16 out of 32 hectares eligible for titling) of areas are claimed by Moros. In Barangay Impao, where most of the claims made by the settlers are located, about 25% have been titled.

The DENR, on the other hand, acted on the complaint of the heirs and ordered a re-investigation of whether the PENRO executed the 1988 Order irregularly. The result of the investigation is yet to be communicated to the heirs. The parties to the dispute are maintaining the status quo.

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The Parties

Christian residents who are beneficiaries of Isulan Group Settlement Survey Settlers, mostly Christians from the Visayas and Luzon, came in droves when they availed of a government-sponsored resettlement program in Mindanao in the 1950s. Some of them landed in what is now the municipality of Isulan, particularly in Barangay Impao and its neighboring barangays. Like their counterparts in other areas, these settlers began and later established themselves economically, befriended and lived harmoniously with the inhabitants. In Barangay Impao, prominent among these are settlers from Panay Island such as Antonio Lozada, Gregorio Graza, Gregorio Lacuesta, Bautista Rosal, Jose Legario Sr., Eliseo Hasigan Sr., Jesus Poras, former Leokadio Leysa, Sopredo Embajador (dec.) and Felimon Arellano, Sr.

Heirs of Datu Talipasan Impao, represented by Nasser and Rakman Talipasan Datu Talipasan Impao, originally from Cotabato, was one of the pioneering Moro settlers in Kalawag (now Isulan). He settled in what is now Barangay Impao and rose in the ranks to be one of the leaders of the Moro community. As one of the tribal leaders, he was ‘awarded’ by the American government 600 hectares of land for him and his troops. In the subsequent survey (SWO 17260) initiated by government, the land awarded to him was described as Lot 26.1 Datu Talipasan passed on his leadership role to his son, Datu Sanggutin who became the first Punong Barangay of Impao. He presided over the heirs of his father and a number of Christian settlers who had come and settled in the barangay. At the outbreak of the war between the so-called Ilaga and Blackshirts in the 70s, the Moros evacuated from Barangay Impao, leaving behind, among others, their properties and land claims.

The settlers grew in numbers. When a controversy over the ownership of the lands they had been occupying arose in the 1980s, they organized a group of petitioners which eventually led to the distribution of a large portion of the barangay. The distribution followed the survey conducted by the DENR in 1993 and referred to as Isulan Group Settlement Survey (Gss-12000064) on the same lot claimed by Datu Talipasan Impao.

When the Moros returned to Isulan, brothers Nasser and Rakman Talipasan, nephews of Datu Sanggutin, embarked on recovering the land that was ‘awarded’ to their grandfather, Datu Talipasan Impao. Nasser and Rakman are both practicing civil lawyers. Nasser is a legal officer of the Department of Environment and Natural Resources in ARMM, while Rakman is a member of the Philippine National Police detailed in Datu Odin Sinsuat, Maguindanao. Because of the level of their education and professional experience, they have been tasked by the heirs to pursue efforts of recovering land claims of Datu Talipasan, their grandfather. Land Tenure Stories in Central Mindanao

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The beneficiaries of the Isulan Group Settlement are composed of more than a hundred land occupants most of whom are Christian settlers and few Moros families, all of whom were led by Antonio Lozada who was then Punong Barangay. These beneficiaries have their respective claimed lots identified in the Gss -12-000064 Subdivision Plan. They are now led by Noel Lozada, Antonio’s son and presently Punong Barangay of Impao.

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Lands Management Bureau-Department of Environment and Natural Resources The Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR) is also a stakeholder as it was a respondent in a case filed by the heirs of Datu Talipasan Impao. The DENR through the Lands Management Bureau and DENR Field Offices is mandated to administer, survey, manage, and dispose alienable and disposable (A&D) lands and other government lands not placed under the jurisdiction of other government agencies.2 The field offices in Tacurong and Isulan implemented the distribution of public lands in the municipality of Isulan, including the lands claimed by Datu Talipasan Impao.

old Cotabato Empire. He was also chosen as the tribal leader in Kalawag area. During World War II, he was said to have fought on the side of the Americans against Japanese and had been imprisoned in Surala, while his companions were all killed.4 After the war, Datu Talipasan Impao, being the leader and chieftain of the tribes, acquired a parcel of land situated at what is now barangays Dansuli and Impao in Isulan, Sultan Kudarat. He occupied the land by openly and continuously.5 In the 1960’s, the Talipasans had already established a harmonious relationship with a number of settlers from Visayas and Luzon who had come and taken residence and farm in Kalawag. In fact, one of them, Antonio Lozada, became their very close family friend. The Talipasan gave some parcels of land to Lozada in addition to what he already had purchased at that time. According to one of the heirs, Lozada was a principal of the Lyceum School in the area and had made himself landlord to some Christian settlers.

Chronology of Events According to Each Party Chronology of Events according to the Heirs of Talipasan According to his heirs, Talipasan Impao was one of the pioneering Moro settlers of Isulan. He was believed to have arrived in the area in the early 1930s. He, together with his four brothers, travelled from an indeterminate location along the Matampay River (a place now part of Cotabato City) and went upriver via the Rio Grande de Mindanao, then to the Bakat or Buluan River. He proceeded to Isulan and stayed in what is now Barangay Impao. He later married a woman who belonged to the local royalty who made him one of their leaders.3

Datu Talipasan Impao worked towards having his land claims distributed exclusively to his direct descendants, close relatives and some Christian settlers.6 He advised nephew Datu Suma Ampatuan (first mayor of Isulan, Sultan Kudarat) to create a new and separate barangay where the heart of his claimed area is located. Datu Talipasan donated a portion of his land claims for the Barrio Site of Barangay Impao. He intended the site exclusively for residential purposes with separate areas for the Muslim and Christian residents. He also donated an area dedicated exclusively for the school site. With these developments, the area was later elevated into a barangay. His eldest son

During the presidency of Sergio OsmeĂąa (1944-46), Datu Talipasan Impao was appointed District President of Dansuli, Dulawan (then part of the Cotabato Empire) by the late Congressman Salipada K. Pendatun who was then serving as governor of the 79

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Datu Sanggutin Talipasan was made the first Capitan del Barrio. Lozada was appointed as Datu Sanggutin’s secretary.

the same time, the landowners in the area were our relatives, my father’s siblings.”8 Other heirs remained in evacuation for almost fifteen years and consequently, “everything was lost from the family: permanent sources of income, permanent home, and access to education”. Among the things they lost touch of was the land claims of their grandfather.9 Feeling hopeless, the heirs of the Datu Talipasan Impao longed to seek justice against the perpetrators who burned their houses and mosques.

As age was taking its toll on Datu Talipasan, he put his son Datu Sanggutin in charge of the distribution of his lands. But before the latter was able to fully distribute as tasked, he discovered that a certain Caram Development Corporation of Manila claimed 500 hectares within the portion of the Lot 26. On behalf of Datu Talipasan Impao, he, under the name Bagua Mama Impao, and 33 others filed their opposition against the miscellaneous sales application of the said corporation.

In 2005, Rakman Talipasan, one of the grandchildren of Datu Sanggutin and heir of Datu Talipasan Impao, learned of their grandfather’s history and land claims at a family gathering.10 A copy of the old survey plan was shown to him containing several lots, one of which bore the name of his grandfather, described as Lot 26, SWO 17260.

At the outbreak of the Martial Law in 1972, the heirs of Talipasan, including Datu Sanggutin, upon the instruction of a close relative, Datu Akilan Ampatuan, moved out of the barangay. This was purely based on the hearsay that lawless elements believed to be members of the Ilaga would cut their ears off and mutilate their bodies. Abandoned houses and mosques were burned and destroyed by these lawless elements and they carted away all personal belongings they could find left behind by those who fled. Muslims thought the government was no longer able to provide services such as security for its citizens even if at that time, Barangay Impao was not affected by the war.7 7

Rakman secured in October 2006 a certified copy of the approved survey plan including technical description from the DENR XII Office. Along with other documents gathered from different sources, he discovered the following: • Area of Lot 26 claimed by his grandfather was comprised of 607.0064 hectares situated in now Bgys, Impao, Dansuli and Mapantig, Isulan, Sultan Kudarat • A survey was conducted on June 21 to December 2, 1941 and approved by the Bureau of Lands Manila on October 10, 1956 • A case was filed by Bagua Mama Impao (aka Datu Sanggutin Talipasan) and 33 others against Caram Development for the cancellation of Sales Application V-2445 (E-7134); • A decision was made on January 4, 1988 by the Bureau of Lands Manila favoring Bagua Mama Impao

It was not until 1978 that Datu Sanggutin and other heirs returned to Isulan. They landed in Dansuli where most of their relatives lived. Dansuli is a barangay adjacent to Barangay Impao. Datu Sanggutin narrated that some stayed near the barracks of the Philippine Constabulary in Kalawag II “to cool things off, in a place where it is relatively safe; even during military operation. At that time, Muslims were protected there, and Land Tenure Stories in Central Mindanao

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A survey was conducted on October 28, 1990, identified as Isulan Group Settlement Subdivision (Gss-12-00064) comprising of 312 hectares in 160 lots; the survey plan contained the notation “This survey covers portion of lot 26, SWO-17260 formerly claimed by Datu Talipasan and the Caram Development Co., Inc. As per decision dated January 4, 1988 of LMB, Director Abelardo G. Palad Jr., the award dated May 10, 1952 in favor of Caram Development Corporation is ordered revoked and Sales Application No. V-2445 (#-7134) ordered cancelled”11

5. Whether or not said office was used as instrument by the lawless elements of the “land grabbing association” 6. The barangay site of Impao was an initiative of their uncle (Datu Sanggutin Talipasan Impao) intended and exclusively used for residential lots of the Moro and Christian residents in separate areas. However, the entire area, including those alloted for the Muslims, was now fully occupied by the Christian residents. Several attempts to get back such portion for the Muslims were refused by barangay officials for unknown reasons

On October 3, 2005, Rakman Talipasan wrote to the Secretary of the DENR, questioning the execution of the decision on the case filed by his uncle, Datu Sanggutin. His main argument: if the decision had been made in favor of his grandfather, why didn’t his grandfather benefit from such a decision? His letter contained the following issues for investigation:

The letter also requested the Secretary to extend efforts for a part of Lot 26 to be given to the direct heirs. On October 16, 2005, Rakman wrote to the Regional Executive Director of the DENR XII, reiterating the issues he raised in his earlier letter to the DENR Secretary. He furthermore raised objections on the public land classification of lots surveyed under Gss-12-000064, claiming these as “private property”12 of the original claimant (Datu Talipasan), and as such must be given immediately to the original claimant’s heirs. He was referring to parcels labeled as Lots 97, 157, 56, 120 and 157. In this letter, Rakman sought the assistance of the duly constituted authority in determining whether or not their rights over the claims of Datu Talipasan still existed. He requested the following action to be taken:

1.

Why said office did not conduct an ocular investigation over Lot 26, SWO No. 17260 prior to the evacuation of the heirs of the owners of said property 2. Why said office conducted hearing/ocular investigation over Lot 26, SWO No. 17260, when in fact that they knew that direct heirs of the owners were no longer in the place 3. Why said office proceeded with the public hearing when in fact they knew the heirs were no longer in that place, thus, effectively depriving them of the right to testify and to defend their right to the property 4. Why said office distributed Lot 26 to the claimants on the basis that they are the present occupants of the lot and deliberately excluded all direct heirs of the owner of said lot;

1.

Subdivide the whole Lot 26, SWO-17260 in favor of the heirs of the claimant, Datu Talipasan Impao 2. Distribute Lot 26, SWO-17260 in favor of the Datu’s heirs, now numbering more than 200 members 81

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3. Re-investigate all the occupants of Lot 26 with respect to their modes/legal basis of acquisition of the land 4. Recall the Isulan Group Settlement Subdivision (Gss-1200064) and other subdivisions made on the basis of Lot 26 and to deny all future applications for land titles with respect to this lot, until the heirs’ rights over the abovementioned claim will be finally denied by the duly constituted authority of the government with due process of law 5. Deny applications for titles by the Barangay Council of Impao with subdivision plan of Lot 160, Gss-12-00064 containing an area of 4.1199 hectares until the allotted lot for Muslims within the Impao Barrio Site shall be completely given to them 6. Help the heirs of the claimant/s recover possession of the allotted lot intended for the Muslims in the portion of Impao Barrio Site now occupied by the Impao Barangay Hall and several residents 7. Help the heirs of the claimant/s recover possession of the portion of the Impao School Site now being used by an individual for farming

SWO 17260. The complaint named as respondents the DENR – Sultan Kudarat Province and Isulan Group Settlement Subdivision led by Mr. Antonio Lozada, et al. He demanded from the RED the following actions: 1. Issue an order directing all the occupants affected or involved in the fraudulent execution of the above mentioned order to show cause why their respective rights, titles, or interests shall not be considered null and void 2. Issue an order directing the agency or department concerned to desist from issuing permits, clearances or documents relative to any application involving the land subject of this investigation 3. Direct the local register of deeds of Isulan, Sultan Kudarat to defer issuance of any certificate of title involving any portion of the land subject of the investigation 4. Direct the respondent DENR Tacurong City to produce or provide the official document, report, inventory of the land subject of this investigation in relation to the control, administration and distribution of the abovementioned land, in consonance with the decision dated January 04, 1988

On Oct 18, 2006, Undersecretary Manuel D. Gerochi wrote Rakman that he had issued a memorandum instructing the Regional Executive Director (RED) of the DENR XII to take appropriate action on the matter he raised in his letter.

In early 2007, the heirs paid a visit to Mr. Lozada, bringing along their uncle Datu Sanggutin Talipasan, the old friend of the Lozada family. They were warmly welcomed by the Lozada family, and even gave thanks that they were able to return home safely. They were also told that their houses were burned by the members of the so-called Ilaga. The two families set a covenant that they will build a muti-purpose building right at the boundary segregating the Christian and Moro residents. The building was to serve as a mark of equal right of the two

In November 23, 2006 Rakman filed a complaint before the office of the RED of the DENR XII, Koronadal City and demanded for the nullification of the execution of the decision of Bureau of Lands in Manila dated January 04, 1988 on the ground of actual fraud and misrepresentation in the distribution of Lot 26, Land Tenure Stories in Central Mindanao

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communities over the barangay. The Muslims ordered 500 hollow blocks and two truck loads of sand and gravel for the project. After laying the foundation of the building, posts and several piles of hollow blocks, a notice of suspension was handed over to the heirs. The notice came from the municipal government of Isulan, and contained an order of suspension for the construction of the building. The heirs and the barangay officials were called to the office of the municipal Mayor to resolve the dispute.

and conducting the investigation on the ground that said officer (David C. Ines, Chief, Land Administration Unit) are respondents in their complaint pending in the DENR office. In same letter, Rakman in the “interest of justice and to come up with a more comprehensive fact-finding report,” proposed an alternative composition of an investigating team namely, RED-DENR XII, Head/Chair of Committee and/or Hon. Abraham Luminog, RTD for Lands; any officer of the DENR XII representative; NBI-Central Mindanao, Cotabato City; Office of the PresidentOffice of Muslim Affairs12; and representative of the heirs of the late Talipasan Impaor13. To date, Rakman is still awaiting the response of DENR to his protest.

At the municipal hall, the heirs reiterated their interest that the construction of said structure would usher in the resolution of dispute and restore the Moro-Christian peaceful coexistence which reigned before the Muslims went into evacuation. They reminded the barangay officials present that the construction had been discussed in earlier meetings where Datu Sanggutin and Antonio Lozada agreed to rebuild Datu Sanggutin’s house where it once stood. The heirs were offended by the order with which Atty. Aurelio Preires, the legal officer of the municipality of Isulan, issued to the heirs to hold construction in abeyance. Nevertheless, the Moro heirs obeyed the order of the local government unit, pending future dialogues to resolve dispute.

Chronology of Events according to the Settlers The settlers started to arrive in present-day Isulan in 1952. They came to Kalawag, Isulan’s Poblacion which was then already an established settlement. From there, they quickly explored the mostly forested and sparsely populated area to look for income and place in which to settle. Following are accounts of some of those who came and eventually settled in Barangay Impao: 1. Antonio Lozada (as recounted by his son Punong Barangay Noel Lozada) “My father Antonio is originally from Lambunao, Iloilo. Before coming to Mindanao, he had just earned a degree in Education. He felt bad that he was rejected in a job because of other reasons than his professional capacities. Because of this, he sold the properties he inherited from his parents. With the inheritance money, he bought ten carabaos and with some workers sailed to Mindanao to begin a new life. Upon arriving,

On March 12, 2007, Rakman wrote the RED DENR XII, manifesting doubt regarding the composition of a Technical Working Group formed to investigate the dispute to come up with objective findings. He had been furnished a copy of an order made by DENR office in Tacurong City, forming and directing the TWG to attend to the matters related to the complaints filed by the heirs of the claimant of Lot 26. Because of this, Rakaman requested that the CENRO/PENRO inhibit himself from heading 83

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he discovered that land can be acquired in exchange for a carabao. He bought lands from Datu Sanggutin and a certain Sampulna. Aside from buying lands and setting up farms, he also taught in Kalawag Institute, Isulan and Quezon Colleges of Southern Philippines, Tacurong, Sultan Kudarat.”

Until now, we are thankful that we encountered no problems with our land. There are no other claimants. We had this land surveyed and a title was issued in 1987. Aside from this land which my siblings divided among us, I also acquired land I bought after it was mortgaged to me. I have also applied for and later acquired a title to that land.”

2. Celedonio Graza “I am an Ilocano. We came from Sta. Rosa, Nueva Ecija in Central Luzon. We landed in Kalawag II. In 1952, I attended high school at Kalawag Institute. My father came here in Barangay Impao to look for areas where we could farm. At that time, this area was called by Muslims as “Palaw” (hill). This was then vacant. There were plenty of big trees; there were no roads, only trails. When we had started clearing and working the land, someone came forward to tell us the land was theirs. We later found out that the claimant was a member of the Talipasan Family. It was Kagi Ali who actually gave us permission to settle here. Kagi Ali was Datu Sanggutin’s elder brother. Their family owned vast tracts of land here and in Lower Dansuli. My father secured permission to settle in exchange for a carabao. At that time, land was not expensive because the area was still forested. At that time also, there was no subdivision of lots. They just pointed out the boundaries of the area that they were giving. The basis was what they termed as “Taman sa mailay, laki (as far as the eyes can see, land is mine).” Kagi Ali gave us an area comprising nine hectares.

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3. Gregorio Lacuesta “I am an Ilonggo who came to Mindanao in search for a better life. When I arrived, I found that carabaos were not popularly used in farming. I brought in a carabao from Iloilo, and with it, started to cultivate lands of Moros on a “partida” (sharecropping) basis. After about seven years, I was able to accumulate savings to buy land that was initially mortgaged but later sold to me. The transactions were witnessed and approved by Datu Sanggutin, who at that time was said to attest legitimacy of land transactions between the settlers and Moros. Aside from securing Datu Sanggutin as witness, I also sought services of the local fiscal and judge to make the transactions legal.” 4. Jose Hasigan “My father arrived here in the 1950’s. There were no roads then; instead, big trees stood where they are now. My father was one of the pioneers in this place. It was about 1960 when the school was built there, the roof of which came from the tall grasses. The school was primary school. According to my father, they came here without any capital aside from their labor, and that 84

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rights were violated,” according to Tyrone Rosal. 14 The community helped one another in cases where someone needed shelter for the night, women giving birth, etc.

the lot where we are sitting in now, he had bought from Datu Sanggutin. My father secured a title to this land in the 1960s during Magsaysay’s presidency. In that title it said that the adjoining lot was public lands.

Because of the growing number of residents, a school was established in 1962 mainly through their collective efforts. A certain Mr. Pablo Ko donated a two-room schoolbuilding. Mrs. Herminigilda Rosal and Miss Dolores Diaz were the names of the first teachers.15There was 50-50 distribution of MuslimChristian classroom population; students maintained harmonious relationships, and religion did not affect school activities such as Christmas parties and Boy Scouting, where Christian and Muslim students equally participated.

I was born in 1960. I was born here, which makes me a native of Impao. It was here where I was born, where blood was spilled at my birth. I grew up here. We cultivated the land my father acquired; and we are still cultivating same land to the present. My father told us to take care of the land because he said it was his only property which we were able to own by our efforts. This is the very land we are cultivating now.”

On October 29, 1962, President Diosdado Macapagal signed Executive Order 164 creating Barangay Impao out of the former Benaba-e, a sitio of Barrio Dansuli. The name “Impao” was given in honor of the late chieftain, Datu Talipasan Impao, who donated the barrio site.16 In acknowledgment of Datu Talipasan’s generosity and his family’s influence in the barangay, his eldest son, Datu Sanggutin became the recognized leader, and first Punong Barangay.

5. Santos Torreñas “I came in 1956 as a young man. I left my parents in Catanduanes and went with migrants to Mindanao. I worked as farmhand and later bought lands from my savings. I brought in my parents in 1963 when I was able to establish a way of living here.” Other residents of Barangay Impao underwent similar experience in coming to and acquiring land in Isulan. When they arrived, they found the area with little or no development whatsoever. According to them, many started with establishing sharecropping arrangement with Moros who identified themselves as owners of land. Settlers respected the Moros as the original inhabitants of the area. In the succeeding years, they were living in a community with harmony and respect for one another’s rights. “No Muslim or Christian resident felt his/her

During the War in the 1970s, Barangay Impao was relatively unaffected. Although there were sightings of Ilaga members passing through especially in the sitio along the river, there were no encounters taking place in the barangay. Even as atrocities were being committed against the Muslims in other parts of the municipality, the settlers were protective of their Muslim neighbors. In one instance, some of them hid their Muslim friends and confronted pursuing men thought to be Ilaga members. In 85

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another incident, settlers helped some 600 evacuating Muslims who fled on foot from Barangay Daladak, Barangay Langkong in Isulan and from some parts of the neighboring municipality of Esperanza. When they reached the Barangay it was almost about 6 o’clock in the evening. They decided to stay inside the school. The settlers provided beddings for them and posted guard while the evacuees slept. The following morning, the settlers arranged for transportation for the evacuees.

In the early 1980s, word spread about Caram Development Corporation, a company everybody had heard of but very few had known nor actually saw. Up until that time, they only knew that Caram had been the claimant of the land they were occupying. In fact, their area was called “Caram Claim.” But no one cared as everybody did not feel its presence or operation. An aide of the then Governor Duque informed them about the status of their lands and the award given to Caram. The residents began to organize to address tenurial security. During that time, most of the areas previously held by Muslims have already been sold to settler-residents. With then Punong Barangay Antonio Lozada leading, about 133 residents agreed to formally question the sales application and eventual award to Caram in a petition. They sought the help of politicians and hired the services of a lawyer to personally attend to their petition in Manila.

When the Muslim residents in Barangay Impao themselves decided to leave in fear of their safety, their settler-neighbors helped them in arranging transportation to their desired destination. Some went as far as Cotabato and Maguindanao. But most of them did not go far, and instead took refuge near the barracks of the Philippine Constabulary located at nearby Barangay Kalawag. The departure of Muslims caused a significant drop in population of the barangay from about 3,000 to only 700.17 The officials, fearing permanent closure of the barangay school (classes had already been suspended for more than three months) and loss of status as barangay, invited the Muslim residents who fled to the barracks to come back and be assured of the same protection they were given at the height of the war. Most of the Muslims did not come back even when it was already peaceful. Nor did they resume tending their farms. At that time farming was considered not very profitable due to a long drought. Some of them mortgaged or sold their lands in Barangay Impao. Others put up businesses in the town’s market. The houses they left behind were slowly taken over by relatives of settlers who came to work as contract farmers.

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As a response to their petition, an investigation was conducted by the DENR in 1985. Some of the settlers testified against Caram as having no sign of presence or activity the area. In 1987, almost all occupied areas in Barangay Impao had been surveyed and issued titles. In 2005, some 30 Muslims of the Mindal family returned to Impao, along the river where most of them were once concentrated. They asked barangay officials if they could go back to their land. The barangay officials told them that the land being theirs, no one could stand in the way of them returning. Some of these returning families were from Barangays Dansuli and Bual.

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In 2006, the Punong Barangay Noel Lozada invited Rakman Talipasan to a meeting, but the meeting did not push through. Also around that time, some residents received complaints from the Moros protesting the use of “Impao” in the signage at a Christian church in the barangay. The residents felt the protest was made out of anger18, and removed the signage.

with a Deed of Donation, “we cannot say it was a valid document because at that time they were considered by government as claimants to the public land. They probably knew that the Governor was planning to use the land for a gymnasium, they no longer came back because the use of the land was for barangay development. Whether that was the case or they accepted our argument, we do not know since after the meeting there were no further moves and reaction on their part.”19

In March 2007, a Moro group some of whom were identified as nephews of Datu Sanggutin suddenly occupied the vacant homelot near the barangay hall. The Moros claimed the lot was theirs and started building a structure. According to Noel Lozada, his father led the Moros to the spot and pointed at it as that of Datu Talipasan’s. His father did not know that the lot had been bought by the barangay government and had intended it for public facilities.

As to the alternative lot offered by the barangay officials for the Moros to occupy, the heirs signified they were not interested after inspecting it. They informed Tyrone Rosal, barangay secretary, of their disinterest through a mobile text message. Chronology of events according to the DENR20 In July 1946, the then Bureau of Lands received a reconstituted sales application of Caram Development Corporation on an area later identified as portion of Lot 26 SWO 17260. The application was a replacement of the original which was reportedly lost. Caram in the sales application presented its Articles of Incorporation duly approved by the Securities and Exchange Commission on April 12, 1946. On May 23, 1951, Deputy Land Inspector Manuel Suncio reported that the land applied for “is covered with cogon, talahib, second growth forest, patches, permanent trees consisting of bettlenut trees about 20 years old, camachili, jackfruit, bamboo, fruit trees, rice field in various sizes from 3 to 20 hectares owned by different Muslim families, namely, Alay Bukid, Salawah Sibat and others.”21 On May 20, 1952, the application of Caram was approved and subject land was awarded to the corporation.

The incident was settled with the help of Mayor Matias who ordered suspension of construction pending resolution of the dispute. Matias summoned to the municipal hall the barangay officials and the heirs of Datu Talipasan. In that meeting, barangay officials informed the heirs that the lot where they started building a structure was in fact owned by the barangay government, having bought it from another settler-occupant who in turn bought it from a Moro. They also presented the plans for the lot as the site for a future community gym. They then offered other areas in the barangay where the Moros could occupy. After the meeting, the construction was discontinued. The barangay officials assumed that even though the heirs’ patriarch donated the lot in the past, they were aware that the donated lot was still classified as public lands. They also said that even 87

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In 1985, the Depatment of Natural Resources acted on a resolution made by the defunct Batasang Pambansa, urging it to: 1. Investigate, consistent with the Land Reform and land distribution, ownership and development programs of the government, the petition of farmers in the Municipality of Isulan, SK to cancel the award on the sales application of a private corporation over a large tract of land... for alleged violation of the terms and conditions of the award; and, 2. Give due course to (a) their applications over their respective areas of actual possession, occupation and cultivation and the (b) petition of Antonio L. Lozada and 133 others against the Sales Application No. 2445 (E-V-1134) of the Caram Development Corporation, Inc.22

occupants, and, that he (Buencamino) assumed that Caram was willing to pay the people for the rights on the land, including the improvements. He further testified that he refused to grant assistance as requested.23 An ocular inspection was also conducted during the investigation. The findings were: • That the area applied for by Caram refers to Lot26, SWO 17200 comprising some 600 hectares by then a fully developed land • Claimed land is traversed by a three km national highway and criss-crossed by several barangay roads; • Claimed land is subdivided into 131 family-size farmlots, occupied by the petitioners • Several portions claimed land are occupied by government agencies, i.e. Provincial Action Center, etc • Improvements made on claimed land were introduced by the national and local government and the petitioners; • A greater portion of Lot26 is planted to rice and corn with patches of seasonal crops and coconuts and various fruit-bearing trees • Caram has not occupied the land nor introduced improvements on the land • 500 hectares of Lot26 is applied for by Caram Development Corporation under SA V-2445, the boundaries of which cannot be located by inspecting team; • Quite prominent in the area is 50 hectares occupied by Muslims that was segregated from the sales application of the corporation and this portion is along the river where permanent improvement still exists up the present.24

It subsequently conducted an onsite investigation on May 23-25, 1985. The hearings were headed by then Supervising Special Investigator Isagani P. Cartagena of the Legal Division of the Bureau of Lands, and assisted by District Land Officer of Tacurong, Sultan Kudarat. The hearing was attended by, among others, (1) Atty. Alejandro T. Palencia, counsel for petitioners; (2) Municipal Mayor of Isulan, Hon. Conrado Buencamino; (3) Officials of Barangay Impao; (4) petitioners numbering 100 persons, among whom were witnesses, namely: Jose Legario, Tomas Calong, Violeta Saavedra. There were no representatives of Caram. Everyone who attended the hearing testified that they had not met any personnel nor seen any land development made by Caram. Mayor Buencamino testified that sometime in the 1970s, a certain Atty. Tagaraw approached him for assistance in the investigation of a case between Caram and the actual

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Two Muslim witnesses were also interviewed during the ocular inspection. These were identified as Hji. Kasam Lidasan and Mamalangka Bansawan, both 97 years old. They corroborated the testimony settlers had earlier made.

The results of the investigation were forwarded to the Chairperson of the Committee on Natural Resources, Batasang Pambansa, in a report made on October 22, 1985. On January 04, 1988, Abelardo G. Palad, Jr., Bureau of Lands Manila Director ordered the following: 1) revocation of land awarded to Caram; and, 2) for “the District Land Officer at Tacurong, South Cotabato to take active control and administration of the premises until these shall have been distributed to actual qualified applications/claimants in accordance with the attached sketch plan.”26

Based on testimonies made by petitioners, ocular inspection results and documents on record and presented by petitioners, the investigating team concluded that Caram: 1.

Violated the terms and condition of the land award by abandoning the land as it does not have (a) any resemblance of occupation or cultivation, (b) caretaker or representatives in the premises; 2. At the time it filed their application for the land, portions of the land applied for were already occupied and possessed long before the war by Muslims with some of them transferring their rights to the present petitioners.

Aside from the patent violations made by Caram, the Bureau of Lands justified its decision as would “make possible land distribution to [the] greatest number of people without financial burden on the part of the government and will promote the National Reconciliation Development Program (NRDP) of Sultan Kudarat.”27 In compliance with Director Palad’s order, the Provincial Environment and Natural Resources Office in Tacurong conducted a confirmatory ocular investigation which was carried out by Rhawel M. Pamplona, Special Investigator I and David C. Ines, Land Management Examiner/DPLI. Based on the results of the investigation, Pamplona and Ines recommended in its joint report dated Sept. 11, 1990, to the Regional Executive Director of DENR XII a subdivision survey conducted in favor of the actual occupants of Lot 26.28

Engr. Cipriano B. Catudan, District Land Officer of Bureau of Lands, Tacurong, Sultan Kudarat conducted an investigation on the claim of Caram. In the report he submitted to the Bureau of Lands’ Director in Manila dated July 12, 1985, he attached a sketch plan showing the individual occupation of the claimants, a list of claimant-occupants, and list of patented lots within Lot No. 26, Swo-17260.25 The list of claimants indicated the individual who occupied the lot area, improvements therein and individual reference of tax mapping records of the Municipal Assessor’s Office. Based on the list, Lot 26 comprised about 626.4138 hectares located in Bgys Impao, Mapantig and Dansuli. The other list showed 17 lots patented to 17 patentees, with corresponding survey reference, patent numbers and date of issue, the earliest of which was September 8, 1960.

The recommendation to conduct the survey was approved and on October 5, 1990 Dir. Dacilo M. Adap, the Regional Technical Director (RTD) of DENR XII authorized Engr. Vicente 89

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B. Militante, Chief Survey Party of DENR XII’s Land Management Sector (LMS) in Palimbang, Sultan Kudarat to execute the subdivision survey referred to as Gss-12-00003729. The survey was conducted from October 10 to December 28, 1990. It was however met with “some technical problems and adverse claims made by other persons”30 and was not completed. The adverse claims were settled by Engr. Cipriano B. Catudan, then PENRO of Sultan Kudarat and other personnel. The settlement was reached thru a series of dialogues and negotiations.

with corresponding claimant-occupants located on the premises of Lot 26 of SWO 17260. Documents submitted included, among others, a List of Claimants, each with lots surveyed and identified correspondingly in the Subdivision Plan. The list also bears corresponding claimant Free Patent Application (FPA) reference. On October 13, Engr. Catudan submitted the same set of survey returns to RTD DENR XII.32 On October 18, 2006, Manuel D. Gerochi, DENR’s Undersecretary for Lands, wrote to Rakman Talipasan, saying that he issued a memorandum to DENR XII’s RED to address Rakman’s complaints against the DENR actions.

The survey was resumed three years later by CENRO Tacurong’s Acting Chief of Survey Unit Elias D. Domider. Under the supervision of Sultan Kudarat PENRO Engr. Catudan, the survey which later was referred to as Gss-12-000064 was started January 04, 1993 and successfully completed on September 30, 1993. Its results were verified by CENRO-Tacurong personnel Geroncio S. Sumogod, Special Investigator I and Macalaba Hadjitaib, Deputy Public Land Inspector. In their report dated October 08, 1993, the investigators recommended the adaption of the survey results. Among the cited bases were the following findings: 1) the survey-claimants were on their actual possession and occupation, and the same claimants made therein developments including, among others, crops planted and permanent structures such as residential houses, rice mills and bodegas; and, 2) the entry of the actual occupants over the subject lots was in good faith thru their predecessor-in-interest.

In compliance with Gerochi’s directive, the CENRO Tacurong Officer-in-Charge Jerry B. Dalauta created a Technical Working Group on February 21, 2007. He picked the following CENRO personnel to the TWG: David C. Ines, Chief, Land Administration Unit as Team Leader; Julius Cesar Y. Tugade, Chief Investigation Unit; Rogie D. Hagoriles, Chief Survey Unit; Montaniel Salip, Al Haj, public lands investigator; and Kayao B. Hadji Taha, public lands investigator. Their mission was to conduct an exhaustive verification and investigation of the issues lodged by Rakman Talipasan, specifically on: 1.

The facts that led to the issuance of decision dated January 4, 1988 2. The process of conducting the subdivision surveys up to its approval, including the entries to the list of Survey Claimants as approved 3. The process of accepting public land applications up to issuance of their individual patents

On October 12, 1993, CENRO of Tacurong Abraham D. Lominog submitted for approval the completed survey returns to the Regional Technical Director of the DENR XII.31 The survey contained some 312 hectares subdivided into a total of 161 lots Land Tenure Stories in Central Mindanao

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The TWG returned findings in a report they submitted to the CENRO on March 03, 2007. These findings were:

whom in the words of the late President Ramon Magsaysay deserved a little more food in their stomachs, a little more shelter over their heads, and a little more clothing on their backs” 4. Ocular inspection conducted “affirms the indisputable and incovertible rights of the occupants whose claim were long ago been completed, vested and must, hence, be respected and accorded with the fullest protection of the law. Furthermore, several portions thereof are also occupied by the government, to the exclusion of Datu Talipasan or his representative neither of whom have substantiated their claim thereon in any manner whatsoever”

1.

Land under consideration had already been disposed of in favor of various claimants who are actually residing in and cultivating the area, and who have successfully substantiated their rights pursuant with the requirements set forth under CA 141, as amended, and that about 95% of them have already obtained patent covering their respective portions 2. All the actions rendered emanated from Resolution No. 254 of the then Batasang Pambansa; thus, action rendered by then District Land Officer (now PENRO) based on mandate under R.A. 6516, were neither “surplusage and void ab initio (to be treated as invalid from the outset) vitiated by lack or excess of jurisdiction” as the plaintiff in the complaint substantially charged; it is within the bounds of existing laws and subsequent laws, rules, regulations and standing instructions relating to public land disposition, a matter falling within the exclusive jurisdiction of the Bureau of Lands (now Land Management Bureau) 3. That the main principle pursued by DENR action: “for the sake of social justice, to avoid agrarian unrest and to dispel the notion that the law grinds the faces of the poor, the office finds ways and means for the accommodation of some of the actual occupants aside from the listed petitioners who were landless and actual tillers and who found it difficult to make both ends meet and suffering privation of the universal struggle of existence

The report of the TWG is yet to be forwarded to the regional office.

Parties’ Perspectives on their Land Rights The Talipasan Heirs’ Perspective on their Land Rights The heirs of Datu Talipasan Impao assert rightful ownership of land commenced upon the approval of technical description found on the survey instrument. With that instrument, ownership takes on legal entity, without which there is no proof of ownership. Nasser, one of the heirs’ designated representatives said that his “grandfather had been long in possession of land prior to World War II until barangay government in Impao was organized. When political subdivisions were set after WWII, his son, Datu Sanggutin Talipasan became Punong Barangay of Impao. Datu Sanggutin resided in Impao. His residence is where the barangay hall is located. The fact that Datu Talipasan Impao had land surveyed is evidence of his intent to have it titled. Some 91

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people suspect that a title was issued but lost in Manila. His other landholdings are titled.”33

Lately the heirs began to piece together what to them were facts based on the documents in their possession, oral accounts from their older relatives and their own personal experience with the current barangay officials in Barangay Impao. These experiences include the incident in March 2007 when they attempted to help Datu Sanggutin return to his former lot in Barangay Impao. With these, they started believe that Antonio Lozada was in connivance with the lawyers and DENR personnel. In an interview with one of the heirs, he cited the following as evidence of manipulation: • Lozada stood to gain the greatest there; he also initiated installation of people in the area; • Bureau of Lands tampered the name of Datu Talipasan Impao to Caram Development Corporation which is a ghost corporation. We didn’t know anything about Caram. It is a dummy corporation which probably belongs to the group of the Lozadas in Negros; • The decision was handed down when we were in the evacuation area;

The land claim as evidenced by lot assignment in a legitimate government survey plan was not cancelled. According to the heirs, no one has the authority to cancel the property of the State or private property without legal proceeding.34 Their departure did not extinguish those rights either; hence they are entitled to recover claimed lands. In recovering these lands, the heirs prefer that settlers give back their land peacefully or else they suffer punishment from Allah. “Don’t be like those who seek trouble, be thankful you are in our land because we are not oppressive people unlike other Muslims. Even if they are our tenants, we do not take their poultry or other animals. For us, you make a living here, send your children to school because you will not be here all throughout your lives because there are plenty of us heirs. My grandfather’s land is not enough to divide among us.” The heirs however acknowledge the development introduced by the Christian settlers. According to Nasser: “Settlers developed the land, no question about this. Hence, they must be compensated for their efforts. In conscience, I acknowledge it is their right to be compensated.”

The same heir said that they also received word from some Christian residents of the barangay who said that they did not have interest in the lands of his grandfather. But the large portions of his (Datu Talipasan) that he had not sold are occupied by Tony (Lozada). If you want proof, you can have these surveyed. He also pitied some Christians were victims of sweet talk, having been convinced that fabricated papers were authentic and there are no claimants.”35

Originally, the Moro families continually claim that they do not consider the Ilonggo families as their enemy. They did not suspect their Christian neighbors to have done the burning (of their houses), although they believe that the burning was done in order to prevent the Muslims from coming back.

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If the heirs consider the Christian settlers as partly victims of deception, this is because they hold the DENR, especially some 92

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personnel of the Bureau of Lands, responsible for dispossessing them of their grandfather’s land. They believe the DENR betrayed them in favor of Christian settlers when it was tasked to distribute the land after the cancellation of land award to Caram Development Corporation in 1988. They believe they are the recipients because Bagua Mama was their uncle and the party litigant in whose favor the DENR decided with regard to his and 33 others’ petition against the sales application of Caram. Even if the decision was to their favor, no land was awarded to them. They know that under “DENR Administrative Rules, non-party litigants have no room for the availment of the fruit of the decision. Nowhere in the law is it provided that you can give it to non-original owners.36

especially by the DENR Tacurong Office are insufficient if not downright stupid. They question the composition of a technical working group formed to look into their concerns, as incapable of coming up with objective and truthful findings for the simple reason that some of these were, having been personally involved in the anomalous distribution of their land, named respondents in one of their complaints. Finally, in the midst of their current efforts to recover land, they are concerned their relatives who belong to the landed and politically influential sector would intervene in their favor. They fear intervention might be violent, as these relatives are wont to. Settlers’ Perspective on their Land Rights The settlers (mostly Christians) who benefited from the decision of the DENR to distribute land identified as Lot 26 Swo 17260 claim themselves as legal owners. They base this claim on several pieces of evidence, the chief of which is the possession of the land titles given by Government. They acquired land titles after undergoing a process administered by the DENR who required them to present proof legitimate claim such as deed or receipt of sale, length of occupation and tax declaration. If they have not acquired land titles, they base their ownership on land rights claim for which they pay real taxes and their length of actual occupation which for most of them is at least 20 years.

They accuse DENR of subdividing land to actual occupants to the total disregard the petitioners whose favor it was decided. They also accuse DENR of intentionally withholding information about the decision made in 1988 which copy they had to personally secure in Manila. The Bureau of Lands maneuvered land awards to Christians even if they knew the Muslims were original claimants and were in evacuation at the time of distribution. They suspect these maneuvering led to the kidnapping of Engr. Catudan and his wife and to their subsequent fleeing to the US to avoid conflicts. They have taken DENR to task in resolving the dispute in a barrage of complaints filed before the regional and national offices. They expect Government will resolve conflict since it is bound to protect property of citizens as parens patriae.37 But they are dismayed over how the DENR had been handling their complaints. They feel that the current actions being undertaken

Because of the number of years of stay, they have taken root and their children (the first generation of whom are at least 30 years old) consider themselves “natives” having been born in the area. Furthermore, they are migrant settlers, have called the area as their home and have very little ties, if any, with their rela93

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tives in Visayas or Luzon. They have raised their families on the income from the land. They have developed deep attachment to land they acquired in good faith and hard work.

how turned with regards to their relationship with the Moros. If at the start they were at the receiving end of benevolence, in the last thirty years they have returned the favor and have somehow turned the table around, now extending assistance to whenever their Moro brothers and sisters are in need. The settlers provided protection for the Moros during the Ilaga wars. They also attempted to persuade them to return to the barangay when it was relatively peaceful already. Finally, the settlers accommodated requests of additional payment for the lands they have either sold or mortgaged.

While they admit the Moros claimed ownership of the area, they acquired these lands from them through sale or mortgage. They did so without intimidation or violating seller rights. For most of them, land ownership changed hands, the legitimacy of which has not been challenged as far as they can remember. While they acknowledge the Moros as inhabitants of the area before them, the land were classified as Public Land and as such may be titled to qualified actual occupants.

When some Moros attempted to occupy a lot owned by the barangay government, the settlers maintained a calm demeanor in approaching the Moros and in talking with them at the Mayor’s Office. They believe in diplomacy in resolving disputes. They also believe the same goes for Moros.

Settlers believe it is their obligation is to protect land they legally acquired, have invested, developed and for many of them, the only source of income from for their families. For them, blood will flow if someone will take it away, even if it is a government program.

Similarities and Differences in Storylines As far as the Moros are concerned, the conflict situation would have been avoided if the DENR handled, based on the principles of parens patriae, the distribution of land (Lot 26, Swo 17260) previously awarded to Caram. It is known to the DENR that the descendants of Datu Talipasan were the orginal claimants, that there were descendants of Datu Talipasan who was the original claimant. In fact, the DENR order to distribute Lot 26 was a decision in favor of a petition filed by Talipasan’s son, Bagua Mama (Datu Sanggutin) to whom land should have been awarded. It would not also be unknown to DENR, upon investigation to find no descendants were actual occupants because these were forced out of the claimed land by the war. Hence, for the Moros, the DENR is accountable for the mishandling the distribution.

For the settlers, the Moros are their brothers and sisters. When they arrived in Impao, they experienced Moro generosity and accommodation which became the foundation of their harmonious relationship. They looked up to them with respect as original inhabitants and had been careful to maintain goodwill. They recognized the dominance of the Moros and subscribed to Datu Sanggutin as their leader. For many, Datu Sanggutin was a legitimizer of land-related transactions taking place between the settlers and the Moros. The succeeding years of hard work afforded economic upliftment for some settlers. For some settlers, the tables have someLand Tenure Stories in Central Mindanao

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On the other hand, as far as the Christian settlers are concerned, the DENR acted in accordance to procedures set by law. When they were found to be actual occupants of Caram lands, Christian settlers supported their occupation with proof that their respective lands were all purchased from the descendants of the original claimants, and that most of sales transactions were completed even before the claimants’ departure. In addition, actual occupants included some Muslims who did not sell their rights to occupied lots.

Christian settlers believe they have had satisfactorily substantiated their claims by open, continuous and notorious occupation. As to the manner of land rights changing hands, the settlers contend that these deals were closed without intimidation and violation of the rights of the Moros. The lots they occupy were bought from legitimate owners. These owners were either original Moro or someone to whom original Moro owners sold land. And that sales transactions were attested to and approved by Datu Sanggutin. They offer as proof to these the fact that before the incident in March 2007, there had been no instance where Moros appearing at the scene and claiming ownership of lands. Though transactions of sale are not brought out voluntarily by the Moros, they tend to honor such transactions. At one point of on-site interview, one of the Talipasan elders shared he had voluntarily sold his land (not in Barangay Impao) to survive in the evacuation center. His evacuation days had ended and he had returned to Isulan without trying to recover land. But he was hopeful the settler would “have mercy� and share some of the land he had once given up.

As to land claims, both Moros and settlers assert legal ownership over the disputed tract of land. Their claims are backed by a common basis: the law. The Moros maintain that a technical description named after Datu Talipasan Impao changes status of land from public to private property. Furthermore, the survey that assigned a lot for Datu Talipasan cannot be cancelled without court proceeding. On the other hand, the Christian settlers base their legal ownership either by a patent on which their names appear or by a real property tax declaration. The acquisition of patent underwent a process by which legitimate proof of ownership was a required supporting document. Both Moro and

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STORY 2 A Land Dispute between Moro Ancestral Land’s Claimants and a Christian Settler in Barangay Rangeban, Midsayap, Cotabato Background Barangay Rangeban in Midsayap, North Cotabato has been an arena of violent conflicts that saw displacements of civilians and scores of killings since the 1970s. The incidents of violence stem from a land dispute between several Maguindanaon clans and a group of settlers who had been grantees of homestead patents in the 1930s. The Maguindanaoans claim that the homestead patents issued to settlers were fraudulent and arbitrarily issued by the government without due regard to their ownership and prior occupation. The settlers, on the other hand, assert that they are the legal and rightful owners based on documents alleging ownership.

On January 25 to 27, 2007, tensions over the disputed land again led to an outbreak of violence involving an armed paramilitary group called the “Bantay Bayan” and members of the Moro Islamic Liberation Front39 that escalated into wide-scale conflict.40 They were drawn to the conflict because some MILF members belonging to the Maguindanaoan clans were involved in the conflict while the Bantay Bayan members are themselves farm workers employed by the settler owners. The violence triggered the evacuation of around 6,000 people. Tensions were only diffused with the intervention of the International Monitoring Team, Joint Committee on the Cessation of Hostilities (CCCH) of the government and MILF peace panels, and the Bantay Ceasefire. The CCCH established a Joint Monitoring and Assistance Team (JMAT) in Barangay Rangeban41.

Barangay Rangeban is one of six barangays in Midsayap that declared their areas as “sanctuaries of peace” or the NATULARAN MU Peace Zone. NATULARAN MU stands for the first letters of the six barangays, namely: Nabalawag, Tugal, Lower Giad, Rangaban Nes and Mudseng. The peace zone was established in 2005 following a shooting incident stemming from the land conflicts in the area and which resulted to massive evacuations. To help defuse the conflict and prevent the escalation of these armed hostilities, the NATULARAN MU Peace Council initiated and hosted a peace dialogue where land conflict was identified as the root cause of the hostilities38.

On February 28, 2007, the Office of the Presidential Adviser on the Peace Process under then Hon. Secretary Jesus G. Dureza issued a Memorandum Order constituting an Inter-Agency Task Force (IATF) to resolve the land disputes in Midsayap, specifically Barangays Rangeban and Mudseng. This was supported by Executive Order 174 issued by President Gloria Macapagal Arroyo on March 27, 200742. The Inter-Agency Task Force, headed by the Department of Environment and Natural Resources Region XII, conducted an

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Table 8

Homestead Application No. 191962 (E-106327) issued under the name of David Escarola. (There was no homestead patent issued.) Parcon claims that he bought the lot from one Antonio Diaz who in turn allegedly bought it from the heirs of David Escarola.

Lots in Barangay Rangeban Patented to Christian Settlers Lot No

Area (ha)

222

14

Musilba Unos

Esperidion Jaban

223

20

Sugalao Andoy

Lorenzo Vinican

306

Samama Talusob

Lupo Faranal

309

Sambitol Palacad

Gregorio Orendain

312

Montawal Olimpain

Baltazar Malaga

315

Salik Manial

Felimon Mallorca

316

Blah Palangalan

Mateo Parcon

317

20

Claimants

Title Holders

Mamasalalang Panansang

David Escarola

318

Talusob Balangilan

Teofilo Mallorca

671

Gamotan Lanson

Uni Flauta

Mamasalalang Panansang, a relative of the Lansons, was the intervenor in a petition for cancellation of the homestead application covering Lot 317. The petition was filed by Sumangkang Lanson in 1986 against David Escarola. Lanson later died but Panansang alleged that Engken Lanson, the only surviving heir of Sumangakang Lanson, executed a quitclaim in favor of the heirs of Tipas Panansang, the father of Mamasalalang Panansang.

SOURCE: Inter-Agency Task Force/OPAPP

On August 20, 2004, the DENR Region XII decided in favor of Mamasalalang Panansang canceling the homestead application of Escarola on grounds that no Escarola folder could be found, although the allocation book shows that Lot No. 317, Pls-704 is covered by Homestead Application No. 191962 (E-106327) of David Escarola with Order issuance of patent on April 2, 1937. Escarola, according to the order, also failed to show up during investigations.

inventory and survey on the disputed lots. Sources of information were the DENR Land Management Sector (LMS) Allocation Book and the Tax Map of the Municipal Assessor’s Office of Midsayap. Through the comparative inventory done by the IATF, it was found that out of the 175 lots in Brgy Rangaban (inclusive of two roads lots), 90 lots were in conflict. Their findings, shown in Table 8, indicate that the Maguindanaoan Lanson clan claims ownership over 152 lots in Barangays Rangeban and Mudseng, 10 of which were patented to Christian settlers in Barangay Rangeban.

The DENR also ordered Panansang to file the appropriate public land application on grounds of open, continuous, exclusive possession since 1946 in a concept of a bonafide claim of ownership, interrupted only by the Ilaga-Muslim conflict. It also dismissed an appeal filed by Parcon who, in turn, filed administrative and criminal charges against DENR Director Jim Sampulna for violation of RA 3019, the “Anti-Graft Law.” Parcon alleged that Sampulna’s decision was tainted with manifest partiality and gross negligence.

This case study examines the dynamics of conflict between the Maguindanaoan clans Lanson and Panansang and a settler, Mateo Parcon, disputing over a 24-hectare parcel of homestead lot identified as Lot No. 317, Pls 714. Parcon, who is title holder of Lot No. 316, also claims ownership over Lot No. 317 which is covered by 97

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The Parties

Although the lots of Abdulrakman Lanson and Gardoke Lanson are not the subject of any litigation, they were drawn in the conflict, according to them, because the Panansangs are their relatives and even if it concerns only Lot 317, everyone is affected when violence erupts.

Lanson-Panansang Clan43 The Lansons and Panansangs are among 37 Moro families who are descendants of Datu Lanson Timan, a Maguindanaoan datu who ruled in the 1880s over lands now situated in 3,000 hectares covering two barangays Rangeban and Mudsen, and sitio Suluk in Midsayap, North Cotabato.

Mateo Parcon Mateo Parcon is the present occupant/owner of Lot 317, Pls 704. An Ilonggo who came to Mindanao when he was 20 years old, Parcon purchased the lot from Antonio Diaz on May 5, 1985 who in turn bought it from the heirs of David Escarola, the holder of the homestead patent covering Lot 317. He brought in several tenants to work in the whole area.

Datu Lanson Timan had eight children, two of whom were Engken and Makadali. Engken’s children are Sumangkang and Abdulrakman Lanson, the clan’s designated spokesperson. Makadali’s son is Gardoke Lanson, the current barangay chair of Rangeban. Datu Lanson had a sister named Sambitukan Timan whose daughter, Sulaiba Ulugan, was married to Tipas Panansang.

Chronology of Events According to Each Party Chronology of Events according to the Lanson-Panansang Abdulrakman Lanson, the designated spokesperson of the clan, submitted a written account accompanying his narration. He began his narrative by saying that Balangay Langban, now called Barangay Rangeban, is the ancestral domain of their family. Their grandfather, Datu Lanson G. Timan, used to rule over Langban. They claimed that their ancestral lands were titled under the names of people who have never lived in Rangeban by settlers who started arriving in the 1930s. When they arrived in Langban, they carried with them land titles but Adbulrakman insist that they are mere speculators, as upon closer inspection, the titles do not bear lot numbers. These properties, he wrote in his narrative, “pertain to properties falling under Public Land Act Number 2874 – provided for the manner of acquiring land

The case’s protest-intervenor on record is Mamasalalan Panansang, son of Sulaiba and Tipas. The Lanson-Panansang clan claims that the land now under the scope of Lot 317 was given by Datu Lanson Timan to Tipas Panansang. It was Sumangkang Lanson who filed the protest in 1986 in behalf of Mamasalalan Panansang because at that time they evacuated to another place. The other members of the Lanson clan own other lots in Barangay Rangeban. Abdulrakman’s family owns Lots 361 and 362 totaling around 24 hectares. Gardoke Lanson’s family owns Lots 365 and 366 that have a combined area of about 40 hectares. Lot 318 is owned by Paidumama Matanog, who is an uncle of the Lansons. Lot 224 is owned by the Sugod clan while Lot 669 is owned by Mamalangkay Gumaga. All are descendants of Datu Lanson Timan.

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ownership through the Torrens system (land titling); known as Dulawan Cadastral Survey Number 107, Cadastral Case Number 24, G.L.RO., Cadastral Record Number 598, acquired from 1919, 1920’s, 1930’s, to 1950’s.”

Survey Number 704, Case-1 on April 20 to June 10, 1961, the settlers or Christian claimants never objected to the survey which could mean that their properties were not being traversed by the said Public Land Survey.

In 1957, their elders discovered this fact and so filed a petition for the annulment of the fraudulent titles which the government granted in 1958 thereby establishing Public Land Survey No. 704, Case 1. Unfortunately, they could not produce a copy of the said petition. From April 20 to June 10, 1961, their “ancestral lots” were surveyed and subdivided in favor of the 37 clans under the governsorhip of Datu Udtog Matalam. In their written narrative account, he outlined their legal arguments against the settlers as follows:

These settlers/Christian land claimants, not having occupied the properties for which they were purportedly issued land titles, do not even know the exact locations of their properties due to the fact that they have never been in our “home land” since time immemorial. The stand of the Bangsamoro people (native inhabitants) of Balangay Langban therefore is that even with supposed land titles, the settlers/Christians did not acquire the property because they did not comply with the Public Land Act (Pls 704), which was established by the Philippine Government in 1958. What they complied with was Cadastral Survey 107, which was annulled that same year.

There is a definite and well-defined boundary line between Public Land Act Number 2874 or Dulawan Cadastral Survey Number 107 and Public Land Survey Number 704, Case-1. Therefore, the settlers/Christians title holders should look for their properties within Dulawan Cadastral Survey Number 107 and not inside Public Land Survey Number 704, Case-1.

Lanson asserted that homestead patents issued under Dulawan Cadastral Survey 107 under Public Land Act 2874 are therefore null and void.

Incidentally, when the Ancestral Domain Claim/ Ownership of my late grandfather Lanson G. Timan was surveyed and subdivided into ancestral lots in favor of 37 clans (relatives of Lanson) of Balangay Langban, Midsayap, Cotabato under Public Land

The Lansons claimed that in the years 1970 to 1971, “the Bangsamoro people, native inhabitants of Langban, were treated as foreigners of our “Home Land,” and they were victimized by the claimants through “deceit, fraud, stealth, force, threats, intimidation and massacres.”

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Because of these, they were forced to abandon their ancestral lots in 1971. “During our absence, the claimants occupied the abandoned lots under the guise and pretense of being the lawful owners of the land based upon their patents which they obtained through a purportedly approved homestead plans as early as 1919 to 1950s or thereabouts. The native inhabitants who are considered as first people of Langban, Midsayap, Cotabato felt too disgruntled as [to] the effect of titling their ancestral lands,” the Lansons said through their narrative account. “The concerned Bangsamoro people (native inhabitants) of Balangay Langban, Midsayap, Cotabato naturally resented the illegal intrusions of claimants which was probably misinterpreted by the government as an act of cessation from the Republic of the Philippines.”

On February 2, 1989, an evacuation of both Bangsamoro farmers and Christians from their farm holdings in Balangay Langban occurred on account of “gross bad faith” of one Rodrigo Sorongon and his cohorts in refusing to honor their written agreement with Kamlon Montawal. Montawal, a relative of the Lansons, mortgaged the land to Sorongon who refused to return the three hectares farmholding of the latter despite the lapse of one cropping season on December 1988, a supposed violation of the agreement. Conflict started when Sorongon hired soldiers who managed to have the 35th Infantry Battalion of the Philippine Army conduct operations over the disputed areas on the pretext that they were pursuing Bangsamoro rebels. But the Lansons insist that the operations were in reality intended to “eject the weak and defenseless Bangsamoro people out of their respective ancestral lands.” They said that during the operations, their houses, including the house of Mamasalalan Panansang on Lot No. 317, were burned to ashes. They accused Sorongon to be behind this “lawlessness and brutality.”

In 1978, the Lansons were able to return to the area but they were not able to recover a good portion of their land as these were already occupied by Christian settlers. Some of the areas, however, were recovered. On February 28, 1981, a protest was filed by Sumangkang Lanson against the homestead application of Davil Escarola. On May 19, 1986, Mamasalalan Panansang filed his intervention to the case alleging that his late father Tipas Panansang had been in open, continuous, exclusive, notorious possession and occupation of the said lot since 1946 in a concept of a bonafide claim of ownership interrupted only during the Ilaga-Muslim conflict in the 1970s. It was Sumangkang Lanson who filed the protest in 1986 because at that time, Mamasalalan Panansang and his family evacuated to another area. There was also an agreement between their fathers, Engken Lanson and Tipas Panansang, that the Lansons return Lot 317 to the Panansangs.

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“Besmirching of our mosque and Madrasah, butchering of dogs inside our Mosque, destruction of our Mosque, and finally, taking the roofs (galvanized iron) of our mosque were tremendous violations against the rights of the Bangsamoro peoples (native inhabitants) of Balangay Langban, Midsayap Cotabato. The burned houses, deprived chances of cultivating of our ancestral lands for a very long period of time in an invulnerable misery on the part of the Bangsamoro people (native inhabitants) of Balangay Langban, 100

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Midsayap, Cotabato. However, the people of Langban plead… for just response of the law.”

therefore, both from the standpoint of law and equity, the claim of the Bangsamoro People (native inhabitants) of Langban, Midsayap, Cotabato over the disputed Bangsamoro properties stand on tierra firma or solid ground, regardless of the numerical age of the supposed land titles of the settlers or Christian claimants.”

Lintang Kusa, also a relative of the Lansons, recalled that there were more than 30 houses burned in sitio Tabubok in 1989. “The Christians saw that the Muslims were doing well in their work. Perhaps that’s why they contacted the military to conduct operations in Rangeban to help drive away Muslims. We were gone for a year but by the time we came back, the Christians were already doing the work of the Muslims.”

Their obligation to the land, according to the Lansons, is to “defend our rights to the land, to preserve it for the next generation.” Otherwise, their descendants will no longer have a place of their own. Gardoke Lanson also said that they are obliged to safeguard and ensure the recovery of their land with a clean title so there will no longer be any conflict in the next generation.44

In their written narrative, the Lanson and Panangsang clans believed that Langban (now Rangeban) is their ancestral land, their “homeland,” because their ancestors have lived there since time immemorial. They cited as evidences the burial grounds still existing, and consider themselves as the “first people” of Langban. They believe that they have the “right to live peacefully in their ancestral domain under a rule of justice and reciprocal equity which were emphasized in the framework of the Constitution.” They asserted that among the bases of their rights to the land is the fact that the 37 clans are the actual occupants of the area. They claim that specifically on Lot 317, the homestead patentee (referring to David Escarola) was “never in possession of the land granted to him and was even directed to reconvey the land to the true owners. “

On June 20, 2006, Abdulrakman said that they participated in a dialogue with Christians in the presence of the International Monitoring Team from Brunei. The agreement during the dialogue was that both parties must present evidence and submit documents proving their ownership. “Immediately, on that same day, we found out that our opponents submitted a map with the Bureau of Lands containing lot numbers. We also filed our own maps. But our question is: how come the lots they are holding contain our lot numbers? When we scrutinized the map of the opponents, we discovered discrepancies such as the designation of Barangay Rangeban, Midsayap as part of Maguindanao, Autonomous Region of Muslim Mindanao. So although all lots of Barangay Rangeban are found in their maps, I told the Chief of Bureau of Lands/CENRO in Midsayap, that we would not allow

“The reconveyance is just and proper in order to terminate the intolerable anomaly that patentee should have a Torrens title, for land which they and their predecessor never possessed by the respondents in the concept of owner,” they said in their written narrative. “Clearly 101

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the proposed 350 hectares to be awarded to them, we will not offer. Why? Because this is part and parcel of the ancestral domain of the Moro people of Rangeban. You better send them to Maguindanao province because the map says Maguindanao in ARMM. Barangay Rangeban is part of the province of North Cotabato.”

“To my mind, that started the armed conflict. Muslims have guns. Christians have guns also. At first, the Armed Forces of the Philippines was not involved yet. But when the violence escalated, the AFP intervened. That’s when the conflict later became an armed confrontation between the MILF and the AFP.”

On January 25 to 28, 2007, fighting erupted between the MILF and the armed CVOs, the Bantay Bayan, resulting to the evacuation of around 6,000 people, the violence stemming from the on-going land conflicts in Barangay Rangeban. Some MILF members happened to be relatives of the Maguindanao claimants to the questioned lots. Gardoke cited for example the case of Mamasalalan Panansang whose brothers are MILF members. The Bantay Bayan members are also the farm workers of Christian land owners in Barangay Rangeban who carry with them firearms while tending to the field.

On February 28, 2007, the Office of the Presidential Adviser on the Peace Process under then Hon. Secretary Jesus G. Dureza issued a Memorandum Order constituting an Inter-Agency Task Force (IATF) to resolve the land disputes in Barangays Rangeban and Mudseng. This was supported by Executive Order 174 issued by President Gloria Macapagal Arroyo on March 27, 2007.

Gardoke also narrated that he himself was dragged into the conflict when he tried to talk to the Bantay Bayan and was instead shot by some of their members. Later, a criminal case of frustrated murder was charged against him, forcing him to hide. “I went to the area to talk to the Bantay Bayan members to convince them that the problem can not be solved through force but through dialogue. While there, someone shot me from the left so I jumped into an irrigation canal.”

The Task Force, headed by the Department of Environment and Natural Resources Region XII, conducted an inventory and survey on the disputed lots. Sources of information were the DENR Land Management Sector (LMS) Allocation Book and the Tax Map of the Municipal Assessor’s Office of Midsayap.

Because of the DENR order in 2005 awarding Lot 317 to the Panansangs, the latter wanted to occupy the land which was in the possession of Mateo Parcon but his armed workers securing the area refused.

In addition to the DENR XII, the Task Force was also composed of the following: the Office of the Presidential Adviser to the Peace Process (OPAPP), the Local Government of Midsayap, Department of Agrarian Reform, Philippine Army’s 6th Infantry

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The armed conflict was only diffused upon the intervention of the Coordinating Committee on the Cessation of Hostilities (CCCH) of both the GRP and MILF peace panels, the IMT and other groups. A Joint Monitoring Action Team (JMAT) was set up in the area to help mediate the conflict between the MILF and the AFP.

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Division, the CCCH of both the GRP and MILF panels, Department of Agriculture, the Philippine National Police -Midsayap, Registry of Deeds, Public Attorney’s Office, Integral Development Services, and the Notre Dame of Midsayap College.

“Wa-ay sang tawo da sang pag-umpisa namon. Puro kahoy kag pawas ang erya. Adlaw-adlaw kami gakadto didto kag manghawan kay ti lasang pa” (There was nobody there when we started (farming). The whole area was marshy and full of trees. We used to go there everyday to cut trees and weeds because it was practically a forest). After acquiring Lot 317, Parcon and his tenant farmers developed the area into a productive and agriculturallysustainable wetland rice farm in Rangeban.

The Lansons learned about this when they attended meetings convened by the Task Force in 2007. Key actions taken by the Task Force was the conduct of a relocation survey, inspection of monuments, inventory of claimants and actual occupants based on the DENR Land Management Sector (LMS) Allocation Book and the Tax Map of the Municipal Assessor’s Office of Midsayap. According to the Task Force, through the comparative inventory, work, it was found out that the 175 lots in Barangay Rangeban (inclusive of two roads lots), 90 lots or 51,43 were conflict.45

The conflict in Rangeban was caused by people who got interested in lands that were already cleared and developed by the owners. When they learned that the land remains untitled, a lawyer who is Maguindanaoan filed cases for the cancellation of homestead lots that were not yet titled. The lawyer then advised his relatives to apply for homestead although these lands were already occupied by settlers. What they also did was to “samokon ang Christians” (give trouble to Christians) so they will be forced to leave. He believed that the real motivation behind the filing of cases was really to make money.

The relocation survey was conducted May 2 to 22, 2007 by three DENR XII Survey Teams covering a total of 311 lots equivalent to 1,994.3464 hectares. Boundary monuments were also installed by the survey teams. The Lansons claimed that although the relocation survey was conducted, the conflict remains unresolved because the lots were not awarded to the real owners and there was no action to enforce the results of the survey. Many of the lots in Rangeban overlapped each other and the relocation survey would have made the necessary adjustments46.

He claimed to have gotten a letter purportedly written by the lawyer addressed to a commander named Dante. He kept a copy of that letter dated January 8, 1987 where the lawyer informed Dante that about eight lot numbers including lot 317 in Mudseng, Midsayap, Cotabato are “all without patent and are being protested by my clients.” The lawyer also wrote in that purported letter that he shall have a share in all these eight parcels of land and he is authorizing his uncle, Mr. Pananggaln Magelna, to take possession and cultivate all his shares in these lands. He is then requesting “Comdr. Dante” to help his uncle so that he can peacefully enter his 40 percent shares in all these lots.

Chronology of Events according to Mateo Parcon It was in 1985 when Mateo Parcon bought Lot 317 from Antonio Diaz for P50,000. Antonio Diaz, in turn, bought the property from the heirs of David Escarola who applied for a homestead patent [H.A. no. 19-1962 (E-106327)] over Lot 317 on March 6, 1933 and approved on October 11, 1934. The patent was issued on April 2, 1937. 103

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Parcon believed that the lawyer is the “brains behind” all these claims being filed on already occupied but untitled lands. But because the cases they filed lack evidence, these were dismissed by the Regional Trial Court of Midsayap.

according to him, in order to drive away the Christians so they could take over. It is unfortunate, he said, that although the Christians have complete documents, they are being harassed so they will be forced to leave the area. He alleged that the brother of the barangay captain of Rangeban is an MILF leader whose name is “Commander Manda Lanson”.

Parcon’s right to ownership over Lot No. 317 is a deed of sale between him and Antonio Diaz who, in turn, had a deed of sale with the heirs of David Escarola, the homestead patentee. He said that upon his payment of P50, 000 to Diaz, he immediately took over the property. He has also been paying the taxes ever since he bought the property and even at the time of sale as there could be no government transaction without payment of taxes. In his record also are official receipts of taxes paid by David Escarola since 1937. Escarola, he said, complied with all the government requirements for a homestead application. “How come it would happen that after we complied with all the requirements, suddenly we are being told that we do not have a right over the land?” he asked. As far as he is concerned, there is no need for any action on his part because he believes that there is no actual conflict as the conflict is on paper only. They just made it up that there is conflict. “In fact the court had certified that my land does not have any pending conflict,” he said, showing a certification dated June 19, 1987 and issued by the Regional Trial Court, 12th Judicial Region, Branch 18, Midsayap, Cotabato. It states that Lot 317 “under the name of David Escarola is not involved in any pending civil and/or ordinary land registration case.”

The problem can only be solved by the Bureau of Lands, according to Mateo Parcon. The Bureau should also be neutral, fair and not side with anyone. Everyone should also abide by the decision of the Bureau. Those lands were already given by the government through the Bureau of Lands, and therefore it should be the Bureau which should address the problem. There should be no politics involved and other sectors should not intervene. For Parcon, it is the homestead policy of the government that is central to the resolution of the conflict. One applies for a homestead patent before the Bureau of Lands and it is awarded only when all the requirements are complied with that includes occupation and cultivation of the land and payment of taxes. Since it is the Bureau of Lands that awards homestead patents, it should also be the sole office that should resolve problems arising from a homestead. If it were only up to the Bureau of Lands, the problem would have been solved. A homestead patent is awarded by the government which means that all requirements had been met. The owner then cultivates the place and pays taxes such as in the case of Escarola, who had been paying taxes since 1937. In his experience, one could suddenly find out that the property is not his because one has lost in a court case. Worse of all, one doesn’t even know what case it was that one lost.

Asked about the incidents of violence that were reported in Rangeban, Parcon said that those were effects of the conflict over land between some tenants and residents in the area who have relatives with MILF rebels. They instigate these incidents, Land Tenure Stories in Central Mindanao

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Many homestead patents were issued to settlers from Luzon and Visayas. Parcon said the settlers were brought in Mindanao by the government itself. The settlers who arrived in Barangay Rangeban were mostly Ilocanos and Ilonggos. “Even during peace time, before the war, the government was already going to Cebu to get people, Antiquenos and Ilocanos,” he said. Parcon, an Ilonggo, came to Mindanao when he was 20 years old.

people from Luzon and Visayas to come here in Mindanao, he stressed. Some of the settlers sold their lands in their hometowns, and when they arrived here, they were given lands. When they were able to cultivate the land and made the land productive, they would then be harassed. He cited a landowner in Alamada, North Cotabato, who planted coconut trees on his land. After seven years of developing the land, he said, and with the trees now bearing fruits, suddenly there was a “conflict” on his land and he lost the case because he failed to perfect the processing of his documents. A Muslim claimant on the land became the owner, who eventually sold the property. The owner lost his mind and went back to Luzon.

Had the laws been followed and enforced by the Bureau of Lands, there would not have been any problem. But what happened, he said, was that the Bureau of Lands itself had caused the trouble. The people and the Bureau of Lands itself did not follow the laws of the government. This has made the conflict worse, leading to violence. The right to ancestral domain was not a policy of the government when it lured settlers to go to Mindanao, according to Parcon. “Otherwise, the government should have informed the settlers not to buy lands that are part of the ancestral domain of Muslims,” he said. “Then we, settlers, would have been warned not to buy lands owned by Muslims, and we would not have bought the land.” In fact, he said there was a Commission on National Integration on the sale of lands between Christians and Muslims. The problem here is that the Muslims themselves were the ones who sold the lands to settlers. “Muslims also sell their own lands without the knowledge of their family or relatives,” he said. He could not understand he said why his land is being disputed when in fact he got a court certification in 1987 that the property has no pending case (on ownership). The DENR should instead tell settlers to apply for other lands that do not have owners. The government should not also have encouraged

On the part of Parcon, the Bureau of Lands in Manila must take action and the resolve the case with finality, and whatever would be the decision of the Bureau of Lands should be abided by the parties. The Bureau should be impartial and really check who are the true owners and who are the squatters of the lots.

Recommendations of the Parties on the Resolution of the Conflict Both parties pointed to the Bureau of Lands (Department of Environment and Natural Resources) as the sole agency that could resolve their dispute over ownership with finality. As far as the Lanson and Panansang clans are concerned, they have already won the case and therefore DENR XII should now execute the decision. On the part of Parcon, the Bureau of Lands in Manila must take action and the resolve the case with finality, and whatever would be the decision of the Bureau of Lands should be 105

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abided by the parties. The Bureau should be impartial and really check who exactly the owners and the squatters of the lots.

The resolution of land conflict in the two barangays was seen as the key to a peaceful solution of the recurring armed confrontations in the area. It was agreed that issuance of titles to lot areas with adverse claims will be pending until conflicts will have been resolved. These contentious lots will be turned over to the LGU-Midsayap and the NATULARAN MU Peace Council for resolution. The DENR will process the title as soon as the area is cleared of any conflict as certified by the NATULARAN MU Peace Council and the IDS-Philippines.

Postscript49 Based on the findings of the Inter-Agency Task Force, a relocation survey was conducted from May 2 to 22, 2007 by three survey teams of the DENR XII. A total of 311 lots equivalent to 1,994.3464 hectares were surveyed by the five teams out of the target of 1,500 hectares. Barangay Mudseng was less problematic compared to Barangay Rangeban in the sense that only 19 out of 87 lots or 21.84% of the number of lots were in conflict.

Some recommendations that were being pushed by the IATF are: a. For unresolved cases, titling and reversion cases should be filed in court. For areas with no conflict, the titling process must continue. b. The NATULARAN MU Peace Council should continuously conduct dialogue and the JMAT/AFP to maintain peace and order in the area. c. The LGU of Midsayap and the AFP should work hand in hand to foster a peaceful co-existence between Muslims and Christians in the area. d. Furthermore, the Government should invest more in health, education, livelihood opportunities and infrastructure development in the area. e. Barangay Mudseng and Rangeban can be a show window for the government to win back the hearts of the people and that the administration is sincere in finding lasting peace in Mindanao.

The installation of the rightful owners to their respective lots began as soon as survey and monumenting was accomplished by the DENR surveyors. As of June 20, 2007, 90% and 60% of the residents of Barangay Rangeban and Barangay Mudseng, respectively have returned to their areas. On July 19, 2007, about 28 farmers were awarded land titles at Rangeban Elementary School. By August 2007, a hundred percent of the total population has already returned in Barangay Rangeban and 85 percent in BarangayMudseng. The DENR XII, in partnership with the Registry of Deeds, is still processing applicants for patents from Barangay Rangeban and Barangay Mudseng.

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STORY 3 A Land Conflict Between a Christian Academic Institution and a Moro Family in Isulan, Sultan Kudarat Background This is a land conflict between the heirs of a Moro named Akang Simpal and an American Christian missionary’s family named Barker over two parcels of land totaling 22,226 square meters (2.2 hectares)50 located at the northeastern part of Isulan, Sultan Kudarat. The lots are part of a piece of land where a Christian educational institution, King’s College (formerly, Kalawag Institute) is standing, and used as playground and CMT (Citizen Military Training)51 ground by the school. King’s College is a subsidiary of the Philippine Evangelical Enterprises, Inc., a private corporation.

in favor of the Akang heirs, being the owners on record (despite the dubious titles), on the basis that corporations, while allowed to lease, cannot own public lands, and that PEEI has no standing for reversion52 of the titles obtained by the Akang heirs. This case illustrates the manner with which government personnel and private individuals use Moros on supposed recovery of ancestral landholdings, for rent-seeking activities and to obtain loans using fraudulent documents. The case is now on appeal, and is currently under a reversion case filed by the Solicitor General for cancellation of the fraudulent titles obtained.

The Moro clan claims the lots in question and even the whole area where the school is standing now are all part of an approximately 12-hectare ancestral landholdings owned by Akang Simpal, donated to a Christian couple for the school site. The College’s owners claim it was donated to it by a group of Christian settlers who previously owned the school. While titles were being applied for by the Barkers over the disputed land, titles were obtained by the Akangs in 1996. The Akang siblings subsequently obtained a bank loan on behalf of a third party, using one of the titles on the land as collateral for mortgage. The disputed land became the subject of a court case filed by the PEEI before the Regional Trial Court of Isulan. The RTC in its ruling acknowledged the dubious nature of the titles issued to the Akang heirs, owing to the fact that they were obtained on the basis of forged documents. However, it dismissed the case

The Parties Heirs of Akang Simpal The heirs of Akang Simpal are represented by Baikong Akang Camsa (Bai Nelly). She and her siblings Hadji Abdullah, Ali (married to Patao Talipasan), Kadil Lukaya, Tho, Kalima, Wahni, and Mangelen claim to descend from one of the early families who occupied wide tracts of land by Moro traditional landholding. Bai Nelly is 48 years old. Among her siblings, she is the only one who had studied, and even then did not finish high school. She is an active member of the Bangsamoro Women Committee of the Moro National Liberation Front (MNLF). She was wife to Datu Romeo Camsa (now deceased), State Chairman of the Sebangan State Revolutionary Committee of the MNLF. After the

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signing of the Final Peace Agreement between the GRP and the MNLF in 1996, she became the Chair of the Autonomous TriPeople Central Kutawato Committee. As such, she had access to projects granted to the Bangsamoro Women of the MNLF.

His son, Jabe Barker, 47 years old, now represents PEEI. Jabe was born in Malaybalay, Bukidnon, and is married to an Ilocana from Marbel. His wife assumed management of the school in 1998.

The Akang siblings allege that the present site of the King’s College was donated in 1952 by their father to a Christian couple, Gregorio and Anastacia Cerezo, for use of the then Kalawag Institute, on the condition that all children and grandchildren of the heirs of Akang Simpal will study for free at the Institute. In 1955, the Cerezos moved to General Santos City. Prior to their move, they sold the land to a group of 22 Christians, represented by Felipe Fernandez, a former member of the Board of Directors of King’s College. Upon the Cerezos’ leaving, the school’s administration was taken over by PEEI, headed by Rev. Gerald Barker, Sr., who changed the name of the school into King’s College. The Akangs claim that the close friendship shared by their father with the Cerezos is part of the reason why the land was donated to them. However, no child or grandchild of Akang Simpal has benefited from the school as was originally agreed with the Cerezos. They do not know the Barkers, and therefore would like to reclaim their ancestral landholding.

Jabe asserts that the land where the school is located was originally among those under the administration of LASEDECO53 which was later turned over to the Board of Liquidators. The Board of Liquidators awarded the land to Mr. and Mrs. Cerezo, who started the Kalawag Institute in 1952. He asserts that in his research on the history of the school’s property, he determined that the location of the land donated by Akang Simpal to the Cerezos was somewhere in the vicinity of the municipal site of Isulan, more than a kilometer away from the school campus. He contends that it is impossible for the school site to be the land donated by the Akang Simpal to the Cerezos by virtue of the original technical description of the donated land provided by Baikong Akang Camsa, which also coincides with the sworn deposition of Mrs. Cerezo in which she made it clear that the school site and the property donated by Akang Simpal are completely different properties separated by almost two kilometers. He expressed sympathies for Baikong Akang Camsa for being used by personnel from the Department of Environment and Natural Resources as well as personnel from the PCI Bank in Isulan (now Banco de Oro) in claiming the land owned by the school.

Philippine Evangelical Enterprises, Inc (PEEI) The PEEI is a private, non stock, non profit educational corporation established in 1958. It was founded by Rev. Gerald Barker (now 85 years old), an American Christian missionary who came to Isulan in 1957. In 1958, PEEI assumed the management of Kalawag Institute, and renamed the school King’s College.

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Other Stakeholders

Bagumbayan, Esperanza, Isulan, Mariano Marcos, and Tacurong in Cotabato (now parts of Sultan Kudarat and Maguindanao provinces) with a total area of 103,286 hectares. Previously, however, it was LASEDECO, and later NARRA, who exercised jurisdiction over the said lands, but with the abolition of LASEDECO and NARRA, all their assets were transferred to the Board of Liquidators for disposal. The BOL acts in coordination with the DENR in the disposition and award of the disposable public domain, pursuant with an Agreement between the Bureau of Lands and BOL signed in 1973. Under this agreement, no patents covering LASEDECO lots shall be issued unless certified by the Board of Liquidators.

Municipality of Isulan According to court records, the Municipality of Isulan had donated in 1961 a total of six hectares of land from the then reserved government site to the Kalawag Institute54. These two donations were covered by Municipal Council resolutions passed in June and October that year. However, later on the Municipality of Isulan changed its mind about the donations and took them back, to enable the municipality to donate the lands to the Province of Sultan Kudarat for the Sultan Kudarat Provincial Hospital. (Today, the six hectares is the current site of the Sultan Kudarat Provincial Hospital).

According to the DENR, Gerald Barker Sr. filed for a Miscellaneous Sales Application for the lots in question, using as supporting documents a survey plan conducted for Felipe Fernandez, approved by DENR Regional Director Sultan Liambona, among others. An endorsement of Land Management Officer III Rhawel Pamplona recommended that patent be issued to the applicant. The application was transmitted to the Regional Executive Director of DENR XII on July 11, 1984.

In exchange for the six hectares of land, the Municipality of Isulan instead donated “a certain portion of the government reserved site in another area, adjacent to Kalawag Institute”, although the area is less than six hectares. This area donated in exchange is now the subject disputed land adjacent to the Kalawag Institute and used by the school as its playground and CMT ground. This donation was supported by a Municipal Resolution No. 19 dated August 20, 1974. The former Mayor of Isulan, Conrado Buencamino, upon questioning under oath, testified that during his incumbency from 1968 until 1986, no claims were ever filed by any Muslim family covering the two lots in question.

The heirs of Akang Simpal filed for a free patent application with the DENR-CENRO, Tacurong, Sultan Kudarat. The survey plan used in support of the said application was the plan for the lots as surveyed for Felipe A. Fernandez on August 4, 1984 in behalf of PEEI which was submitted as supporting document to the latter’s Miscellaneous Sales Application covering the two lots in question. The said survey plan and a true copy of the Deed of Donation executed by Akang Simpal in favor of Anastacia Cerezo were the only supporting documents used for the free patent application.

Department of Environment and Natural Resources, Region XII Office (DENR XII) The lots in question are within the jurisdiction of the Board of Liquidators, pursuant to Proclamation No 189 (June 1950) which placed under the BOL’s jurisdiction “lands in Ampatuan, 109

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Baguindali Karim (now deceased), a former employee of the Land Management Bureau of the DENR Regional Office in Cotabato City, processed the Free Patent Application of the heirs of Akang Simpal, even while knowing that there was a prior Sales Application filed by PEEI covering the same lots. He allegedly did not act on the latter on the basis that it is a violation of a Constitutional provision which disallows private corporations to hold alienable lands of the public domain except by lease. He recommended instead for the approval of the Free Patent application of the heirs of Akang Simpal and forwarded it to the PENRO’s office for approval, without going through his immediate superior, the OIC CENRO, who had earlier endorsed the approval of the Miscellaneous Sales Application of PEEI.

ters or 1.275 hectares) to secure the indebtedness of one Joenel Moises (now deceased), by way of a loan in the amount of P2.5 Million55. The PCIB’s Account Officer did not see any encumbrances, nor were there any adverse claims by third parties. Without conducting any interviews of residents or occupants, bank appraisers and inspectors declared the lot vacant when the mortgage was being processed. The mortgage contract was approved and executed on May, 1996 by spouses Joenel and Eilene Moises. The Account Officer was aware of the prohibitions that lands granted homestead and free patent could not be sold and/or encumbered within five years from the issuance of the patent. The bank approved the loan application on the basis of the DENR’s endorsement and approval.

The PENRO acted favorably on the Akang heirs’ free patent application, and a corresponding patent was issued. Baguindali Karim’s participation in the processing of the Free Patent Application of the heirs of Akang Simpal was questioned by the OIC CENRO, Rhawel Pamplona, who said Karim’s acts constitute to a “connivance between the Deputy Public Lands Inspector, the Records Officer, and the LMS Chief (Karim) in order to circumvent office procedure and accommodate the anomalous and illegal scheme”. Karim was later on investigated by the Office of the Regional Executive Director in connection with Pamplona’s complaint.

Chronology of Events According to Each Party Chronology of Events according to Bai Nelly Akang Camsa Based on accounts of the Bai Nelly Akang Camsa, they were one of the early families who came to Isulan who had occupied wide tracts of land by traditional landholding. During the time of the leadership of Datu Sema Ampatuan of Isulan, he was able to gradually have his landholdings titled. When Christian settlers descended to the area in the early 1950s, he developed friendships with some of them. Thus, the donation to the Cerezos. Here are the accounts of Bai Nelly Camsa56: The father of Akang Simpal was a child of one of the earliest occupants in Isulan. This Simpal is the child of Daldal, who is nephew of Sultan Utto57, head of a sultanate at the then adjacent town of Maganoy.

Philippine Commercial International Bank (PCIB)-Isulan Branch (now Banco de Oro) Baikong Akang Camsa mortgaged the parcel of land covered by using the Free Patent obtained from DENR (TCT No 35549 for Lot 3, the second lot in question, measuring 12,757 square meLand Tenure Stories in Central Mindanao

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The Akangs are natives of Isulan, along with the family of Mamantal Mawalaw. The first Christian settlers were named Ramirez, Tolentino, Amison, Aristosa, and Kapunan. The next were the Bakligs. They came here bearing gifts to my father: one can of kalamay hati (sticky rice cake), chickens, and vegetables. They were friendly. That is why the Christians were given land by my father.

Akangs are cousins. There was a time when a Chinese living near the King’s College who put up a gas station but it was foreclosed. He wanted to buy the land from me where his house is located. I told him it is difficult to sell the land, because I do not know the process. I wanted to have everything documented first, and then I would still have the option to donate these lands. When the Christians arrived, Datu Kudanding Kamsa allowed them to settle at the opposite end (“sa kabilang bukid)”. These Christians give portions of their harvests to Datu Kudanding during harvestime.

When Kudanding Kamsa became a sultan, he acted similar to a governor. He creates jurisdictions and appoints himself as its head. He married an Isulanen, who were mostly illiterate at that time. Thus, they simply followed his bidding. All in all he had about 40 wives, and through these marriages, came to own about 50% of the landholdings spanning the areas of Tuka, Kulambog, Saripinang, Pinayaw, Bagumbayan, Sison, Nakan. He had an army of laborers working for him clearing these lands. 58

We lived at the back of the municipal hall before the Japanese arrived. The municipal hall then was located in Dulawan. When the war [with the Japanese] happened, we left Kalawag and lived at the area where the [present day] municipal hall of Isulan is located. Then, tax declarations only amounted to twenty centavos. The assessor then was a person named Gidtem, who hailed from Dulawan, and we paid only 20 centavors per 100 hectares. Barangay Kalawag Uno and Dos were never sold by the Akangs. This was owned by our grandfather, measuring about 150 hectares. Barangay Kalawag Dos was donated by Mamantal, our uncle.

[When the Christians arrived], there were no titles on the lands in Kalawag. “Diyan kami malapit sa Chen-sin, yung sa barangay, yung dating palengke. Sa tatay ko man yan, di ba wala pang titulo yan?” (We were living then near Chen-sin, a Chinese store in the village, the former public market. My father owned that property, and that property has no title). Barangay Kalawag Uno was fully donated by my father; I still have the Deed of Donation. Barangay Kalawag Dos was then owned by Mamantal Mawalaw and was likewise not titled. The Mamantals and the

Because they (the Barkers) have already benefited from King’s College, they should give me what is rightfully mine because they will only lose [in court]. If they wish to pay us, we could move to another land so there will be no more conflict. We are only asking for a small 111

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portion: two hectares from the 12 1/2 hectares donated by my father. So long as everything is clear (‘malinis lang’). “Ang gusto ko, yong gina claim dyan sa amin sa Kings College is 12 hectares yan, kaya lang ang na tituluhan namin, yung two hectares lang, kasi naka titulo sila kaagad nung panahon ng Martial Law” (What I want is only two out of the 12 hectares we are claiming out of the King’s College’s property. We were only able to obtain titles on two hectares, while they were able to get titles on the rest of the property during the Martial Law period).

related to Jabe Barker by other DENR co-workers themselves. Mr. Barker believes these DENR personnel produced fraudulent titles and deeds of donation in favor of the Akangs. Here are Jabe Barker’s accounts of the story60: My father was the director of the school from the early 1960s up to 1976. My father is now 84 years old. I grew up here. My wife is a Filipina, and I am a permanent , resident here. This is the original status of King s College in Isulan, originally named Kalawag Institute, located in what used to be Noralla, Cotabato Province: The Townsite of Isulan was established in 1952. The prior year, a well-educated couple by the name of Cerezo migrated from Luzon to Mindanao, as part of the government plan after World War II to provide lands to the migrating settlers. They first started in Tacurong area (Lambayong) to establish schools, but their school in Tacurong did not prosper. They then put up a school in Kalawag (now Isulan), the Kalawag Institute. LASEDECO61 originally awarded them some 12 hectares for the school. The school operated from 1952 until 1955. These accounts I got from Mrs. Cerezo. In 1955 they decided to move to General Santos, and sold the Kalawag Institute to a group of 22 Christian residents. This group of 22 residents in turn transferred their rights to the Philippine Evangelical Enterprises in 1958. PEEI, from then on, administered the school which became King’s College of Isulan.

Chronology of Events according to Jabe Barker According to the accounts of Jabe Barker59, when Bai Nelly filed claims on the land, he conducted an extensive research on the school property’s history. One of his findings is that the lands of the Akang families are located along or near what is now the national highway, and thus could not have included the King’s College campus. He had seen the deed of donation provided by the Akangs and executed by Akang Simpal to the Cerezo family, and based on what he saw of its technical description, the 12 hectares being alluded to was at that time surrounded by lots belonging to families with Muslim names, located at the 8) western portion of Kalawag poblacion (now Isulan). The school campus on the other hand is more than one kilometer away from the town center, to the east of Kalawag, and is bounded by lots owned by Christians. He came to the conclusion that Bai Nelly was in collusion with or at least being used by elements within the DENR’s Region XII office, facilitating her fraudulent claim the land, while making money out of her ignorance. These DENR personnel have allegedly been involved in anomalous transactions as Land Tenure Stories in Central Mindanao

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Akang Simpal, father of Baikong Camsa, negotiated with Mrs. Cerezo in 1952 or thereabouts. Within that 112

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period, the Cerezos also had transactions with Datu Kudanding62, the Muslim Authority during those days. Datu Kudanding had a daughter and Cerezo had a son and it seems that Datu Kudanding was interested in marriage between his daughter and Cerezo’s son. The Cerezos were not in favor of the union, and they subsequently moved to General Santos [to escape pressure from the Datu]. Included in those transactions was a deed of donation facilitated by Datu Kudanding for the donation of Akang’s land measuring 12 hectares to the Cerezos. That land was donated when the school was already operating. According to Mrs. Cerezo, they have never occupied the 12 hectares of land donated by Akang Simpal. When we asked her why she did not occupy the land, she answered that it was too far from this school [Kalawag Institute]. The land being reclaimed by Baikong Akang is about two kilometers away, according to Cerezo. We asked her what happened to the 12 hectares donated by Akang Simpal, since she did not use the land. Was the donation not consummated? She told us they did not really need the 12 hectares of land because the Kalawag Institute was already established then, and they did not need another 12 hectares of land for another school. We asked her where exactly that Akang piece of land is located. She replied that it was near the Municipal Hall of Isulan. She told me that, as far as she knew, it had since then transferred ownership to a certain Valdez. If you pinpoint the land of the Valdez family, it is where the current Land Bank is situated.

Before the donation was transacted, the school had already been established in its current location, and occupying the land assigned to the Cerezos by the LASEDECO. I have also seen the deed of donation executed by Akang Simpal in favor of Anastacia Cerezo. The technical description of the 12 hectares indicates: a certain parcel of land bounded on the north by a land owned by a certain Muslim name; (thus a Muslim owns it); bounded on the west by a land owned by another Muslim name; bounded on the south by land owned by another Muslim name; and bounded on the east by Kalawag Poblacion. The creek actually served as some sort of boundary; the Christians mainly occupied the east side of this creek and the Muslims tended to stay more on the other side but further to the west. Kalawag Poblacion, per survey in 1952, was and is situated on the west side of Kalawag creek. The creek serves as the eastern boundary of the poblacion. King’s College is east of the creek, and therefore even farther to the east of Kalawag Poblacion. Thus, the 12 hectares donation is somewhere on the opposite side of the creek and beyond the western boundary of the poblacion. So Mrs. Cerezo must be correct in her estimate of the property being located two kilometers away from King’s College. It is impossible to conclude that the land includes the school property because their own deed of donation executed by their father clearly states it is located west of Kalawag Poblacion because the technical description 113

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says it is bounded on the east by Kalawag Poblacion. So it is impossible for this claim to be in the vicinity of the school. Mrs Cerezo, who is still alive, testified to that effect exactly.

denied under oath that he ever executed any transfer of rights in favor of the Akang heirs, in fact he had never met them. Furthermore, his true signature bears no resemblance whatsoever to the signature on the forged transfer of rights. To my knowledge, a certain Baguindali Karim, an official of the DENR, is the mastermind of all this nonsense, but now he is dead.

This property (King’s College) never had the history of being connected to Akang Simpal. Their claim should be near where the municipal building is located; that’s common knowledge, because even the street behind the municipal hall is named Akang Street. So presumably, the Akangs had land somewhere there, but never in this area. The basis of the claim of Baikong Camsa is that according to her, this school area is part of the 12 hectares donated by her father [to the Cerezos]. But that is not true. Even their own technical description indicates that their property is very far from the school.

The case now is at the Court of Appeals because it was dismissed in the Regional Trial Court. But it was not dismissed on the basis of the merits of the case but [because of ] a mere technicality because the school is owned by a corporation and, according to the judge, a corporation cannot acquire public lands. Corporations are barred from acquiring public lands except by lease. A corporation can purchase land which has already been titled but public lands cannot be purchased by a corporation. But there is an exception to that. This property, as with most property in Isulan, was owned by LASEDECO which was subsequently turned-over to the Board of Liquidators63. The Board of Liquidators has the authority to award the property to any entity or corporation or private person. It means that the property, although originated from public lands, has been segregated from the public domain. PEEI completed payments to the BOL for this school site of the Cerezo’s Kalawag Institute that was originally assigned to the Cerezos by the LASEDECO. The Cerezos were not able to acquire a title before they transferred to General Santos, however PEEI has already acquired titles for the seven-plus hectares a long time ago. After

This school property also never had connections with Datu Kudanding. The Cerezos acquired this from LASEDECO. This was not donated to them by any person. [As mentioned], there was a separate 12-hectare parcel of land donated to the Cerezos, but this donation was not consummated. After many years, Baikong must have, through wishful thinking, come to the conclusion that the school grounds were donated by her father to the Cerezos. On that basis, they were motivated to produce fraudulent titles from the DENR. There is a title in the name of Baikong and the heirs of Akang Simpal, but those titles were fraudulently acquired using a forged transfer of rights from the former director of the school to the Akangs. That Director of the school vehemently Land Tenure Stories in Central Mindanao

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the transfer of ownership of the 22 [Christian settlers] to us, only seven hectares was left. Even that serves as the precedent: if that property was awarded to a corporation, why not an area of 1.2 hectares? We have filed an appeal [on the case]. Even the RTC judge himself [who ruled in their favor by dismissing our case] appreciated all the fraudulent [means in the] production of the title in the name of Baikong and her brothers and sisters. The judge acknowledged that they have never occupied this property since 1952. We lost on the technicality concerning corporations, so that is [now] the basis of our appeal. [The land is] now under reversion because the Solicitor General intervened to revert the fraudulent title.

ditional to an original loan of 800,000. An additional 1.7 Million [pesos was obtained] using this property as collateral. The beneficiary of the loan is in the name of Joenel Moises. He benefited from the transaction, using the title of Baikong as collateral. [I heard only] 300,000 [pesos] was given to Baikong [out of this loan]. His wife, who was an employee of PCI that time, facilitated that fraudulent loan. The loan was obviously made in bad faith because PCI knew very well that this property has been occupied by the school ever since, but they did not question [the loan application]. Many of those involved in this fraud, Baguindali Karim, the former manager of PCI Bank of Isulan, and the wife of Joenel are all dead, all of them greedy, corrupt masterminds or participants.

The decision of the RTC was not exactly in [our] favor but that decision, even though we lost, is very negative against the Akang heirs. The findings of fact stated that [there was fraud]. The deposition of Cerezo that was entered there [established] that the property donated to her [by Akang Simpal] had nothing to do with the Kalawag Institute and was not even close to the school site. The decision, based on the findings of fact, also established that there is no record of Akang Simpal or his heirs ever occupying the property in question.

Actually we were quite surprised when all of these things arose. The school has been operating peacefully here since 1958 and the first that we encountered this problem was already in 1996. Before then there was no conflict, no nothing. In 1996, an attempt was made by the Akang heirs to forcibly occupy the property. Then, in 199864, we really had a conflict because they actually did forcibly occupy the area for almost three months. They entered the area and put up some temporary bamboo structures. We had a difficult time ejecting them. Certainly, there was no evidence that shows Akang Simpal [nor his heirs] ever occupied this property. Since 1952, the time of the earliest settlers who were here, there is nobody

It is now a question of applicable laws on corporations. I don’t know [if the Akangs would again figure] because after acquiring the fraudulent title to this property, it was mortgaged immediately to PCI Bank with the total mortgage amount of 2.5 Million [pesos], ad115

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among the old-timers who would say that this property was ever occupied by the Akangs.

Anastacia Cerezo and her husband lived in Kalawag Uno, Isulan, then part of Noralla, Cotabato (now Isulan, Sultan Kudarat) from 1952 to 1955. They acquired the Kalawag Institute school site through an award by LASEDECO. The Kalawag Institute was established in 1952; Anastacia Cerezo was then its Directress. The school site of the Kalawag Institute is on Lot 1375 of the Kalawag Townsite Subdivision consisting of an area of approximately eight hectares (73,742 square meters).

[The Akang heirs and I ] have not seen each other for over two years now. From time to time we see each other in court. Even though I personally was manhandled and subsequently received a variety of threats against my life from some of the Akangs or persons closely associated with them, I hold nothing personally against Baikong or her family. I suppose she was probably somewhat of a pawn. Nevertheless, the fraud which was unjustly perpetrated against the school has wasted and continues to waste so much time and money that would otherwise have been used to further improve the school’s service to the community. Instead, only the lawyers are benefiting.

On June 2, 1955, spouses Gregorio and Anastacia Cerezo executed an Absolute Deed of Conveyance of Rights and Interest on the Kalawag Institute in favor of 22 private individuals, as vendees. King’s College (formerly Kalawag Institute) had occupied the school site since 1958. Said school site is now registered in the name of the Philippine Evangelical Enterprises, Inc (PEEI) under OCT No T4433, pursuant to a LASEDECO Miscellaneous Sales Patent No 4645 issued on November 16, 199065 PEEI is a private corporation established and registered with the Securities and Exchange Commission on February 13, 1958. PEEI had acquired the school site and building of the Kalawag Institute through a purchase from the same group of 22 private individuals that were recipients of the Absolute Deed of Conveyance of Rights and Interest from Anastacia and Gregorio Cerezo. This group of 22 private individuals executed a Transfer and Renunciation of Rights in favor of PEEI dated May 21, 1959, ceding, transferring, conveying, and relinquishing all rights to the land to PEEI. Upon acquiring the school site and building, PEEI changed the name of the school into King’s College.

We have a growing numbers of Muslim students in the school. Last year there were about 12 students and this year 17. There are 600 plus students from Kindergarten to elementary and high school. There is also a 4-year [college] course in Education. If you happen to see the Akang family please tell them they are welcome to send their children to school here.

Chronology of Events according to Court Records and Proceedings Court Records and Proceedings from Civil Case No. 922 filed by PEEI before the 12th Judicial Branch of the Regional Trial Court of Isulan establish the following chronology of events based on the court testimonies of the disputants: Land Tenure Stories in Central Mindanao

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A vacant lot adjacent to and fronting the school (and is now the subject of Civil Case 922) has been used by the school “by tolerance” since 1958 as a playground and CMT ground. It had always been believed that the vacant lot belonged to the Municipality of Isulan, “as part of reservation for public improvements, reserved for open spaces for the Municipality of Isulan based on the Kalawag Institute Townsite Subdivision Plan prepared and surveyed by the then Bureau of Lands”66. The Institute had a verbal agreement with the Municipality of Isulan on the use of the lot in question. Later on, a Deed of Donation was executed by the Municipality in favor of the Kalawag Institute in 1974, on the basis of a municipal legislation, Resolution 19, dated August 20, 1974.

Later on, the Municipality of Isulan wanted to take back the six hectares it donated to PEEI and instead donate it to the Provincial Government of Sultan Kudarat as hospital site. In Resolution 19 dated August 20, 1974, the Municipality of Isulan was authorized to execute a deed of donation in favor of Kalawag Institute over “a certain portion of the government reserved site in another area adjacent to Kalawag Institute though this area may be smaller” than six hectares, for use of the latter exclusively for educational purposes. That parcel of land being referred to is the playground and CMT ground being used by the Kalawag Institute. On the basis of the August 20, 1974 municipal resolution, PEEI through its Board of Trustees, authorized Petronio Cagas (then a member of the Board of Directors of PEEI, and was the school’s Agriculture teacher since 1958) to apply for a title over the vacant lots (playground and CMT ground)68. A Transfer and Renunciation of Rights dated April 2, 1984 was executed by Petronio Cagas in favor of Felipe Fernandez, another member of the Board of Directors of PEEI. Spouses Felipe and Lolita Fernandez later on executed a Deed of Donation dated January 6, 1986 in favor of PEEI over the lots in question. A Miscellaneous Sales Application was filed before the Board of Liquidators on December 23, 199369, which was subsequently approved on July 30, 198970.The Board of Liquidators then recommended for the issuance of a patent in the name of PEEI on October 30, 1989.

This donation was made in exchange for a six-hectare parcel of land that is now the site of the Sultan Kudarat Provincial Hospital. Earlier, PEEI on December 24, 1960 had offered to buy from the Municipality of Isulan an area of four hectares from the Kalawag Townsite Subdivision (reserved as Municipal Government Center and Municipal Building Site)67. Supported by a Municipal Council Resolution (Resolution No. 53, Series of 1961), a Deed of Conditional Sale concerning these four hectares of land was executed between the Municipality of Isulan and PEEI on June 14, 1961. In addition to the four hectares parcel of land, the Municipality of Isulan also donated two hectares of land adjoining the four hectares, which now made the total donated land to six hectares (now the present site of the Sultan Kudarat Provincial Hospital). A deed of donation was executed on October 18, 1961 concerning this two hectares parcel of land, and approved by the Municipal Council through a resolution (Resolution No. 54 Series of 1961) on that said date.

One of the supporting documents used by the PEEI in its Miscellaneous Sales Application was a plan surveyed for Felipe A. Fernandez conducted on August 4, 1984, and approved by

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DENR Regional Director Sultan Liambona71. (This supporting document would later be used by the heirs of Akang Simpal as also one of the documents used in the issuance of a title in their favor over the disputed lots.)

corporations to hold alienable disposable lands of the public domain except by lease. He went on to recommend for the approval of the Free Patent Application of the heirs of Akang Simpal, and forwarded it directly to the PENRO-DENR, Isulan, Sultan Kudarat for final processing, without passing through the office of the CENRODENR Tacurong, Sultan Kudarat. The PENRO acted favorably on the said Free Patent Application, and a corresponding patent was issued.

The Sales Application of PEEI was forwarded to the Regional Executive Director of DENR Cotabato City from the DENRCENRO, Tacurong, Sultan Kudarat on July 11, 1994. While waiting for the result of the Miscellaneous Sales Application, PEEI received information that the said lots had been registered in the names of heirs of Akang Simpal, represented by Baikong Akang Camsa, with Original Certificate of Title No P-16860 issued under Free Patent No 126504-96-10706 dated September 23, 1996, and that said title was later cancelled with the issuance of separate certificates of title for the two lots. One lot (Lot 1) was registered under the names of Hadji Abdullah, Ali, Kadil, Wahni, Lukaya, Tho and Mangelen, all surnamed Akang, under TCT No T-35550 dated October 30, 1996, while the other parcel of land (Lot 3) was registered in the name of Baikong Akang Camsa under TCT No T-35549, also dated October 30, 199672.

Karim’s participation in the processing of the Free Patent Application of the heirs of Akang Simpal was subsequently questioned by OIC CENRO of Tacurong, Sultan Kudarat, Rhawel Pamplona. In a Memorandum dated February 4, 1997, Pamplona asked Karim to submit a written explanation why he should not be administratively charged for non observance of Office Standard Operating Procedures. In the said Memorandum, Pamplona said Karim’s acts “constitute to a connivance between the Deputy Public Lands Inspector (DPLI), Records Officer (Alicia Flores), and the Land Management Serices Chief (Karim) in order to circumvent office procedure and accommodate the anomalous and illegal scheme”. 73 Karim was later investigated by the Office of the Regional Executive Director of DENR Region XII acting on Pamplona’s complaint. (However, court records do not indicate what the outcome of the said investigation was).

Baguindali Karim (now deceased), an employee of the Land Management Bureau of the DENR Regional Office in Cotabato City, was as of March 11, 1996 assigned as Land Management Officer III of the CENRO-DENR, Tacurong, Sultan Kudarat. He had initially processed the Free Patent Application of the heirs of Akang Simpal, filed sometime in 1996. He knew that there was a prior Sales Application filed by the PEEI, covering the same lots, but allegedly did not act upon the latter, citing Article XII Section 3 of the Philippine Constitution, which disallows private Land Tenure Stories in Central Mindanao

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plication could not be ascertained. The Records Officer testified that the Free Patent Application contained as supporting documents (among others) a photocopied copy of the survey plan in the name of Felipe Fernandez, and an alleged Transfer of Rights signed by Felipe Fernandez in favor of Baikong Akang Camsa covering the said lots.

The carpeta of the FP application was taken by Karim in his capacity as Chief of the Land Management Section of the CENRO, Isulan, Sultan Kudarat. The application should have returned to the Records Officer for recording and subsequent transmittal to the CENRO (Pamplona), whether for “approval, patentable, noted or rejected”, with duplicates kept at the Records Office. No such duplicate copies exist, thus the Records Officer concludes that the papers were never returned, and could not have passed through the CENRO.

Felipe Fernandez later testified that he had never seen the alleged deed of transfer of rights covering the lots in question, and that he did not execute said document. He instead said he recalled having donated his rights in favor of PEEI in writing. He said the alleged “transfer of conveyance” in favor of the Akang heirs was completely fraudulent for the following reasons: he does not know them, he never met them, he never entered into any transaction with them, and that he was out of the country for seven years from 1992 until 1999. Karim admitted in his testimony that he did not refer the Free Patent application of the heirs of Akang Simpal to his immediate superior, OIC CENRO Pamplona. He said he was acting in haste on the said FP Application. He could not even ascertain that the heirs of Akang Simpal paid the taxes on the land at the time of their filing of the Free Patent application.

A public land application cannot be assigned a new number if there is an existing land application over the same parcel of land, unless there is a quit-claim deed or transfer of rights over the land in favor of an applicant. However, the Records Officer had assigned a number (FP Application No. 126504-288) for the Free Patent application by the Akang heirs, despite the previous Sales Application by PEEI, allegedly on the basis of the “transfer of conveyance” allegedly executed in favor of the Akang heirs by Felipe A Fernandez. 74 which was later ascertained by Felipe Fernandez as a fraudulent document. The Records Officer had allegedly told Karim to “double check” the said application, since OIC CENRO Pamplona had earlier signed a patentable report relative to the Sales Application filed by PEEI.

During the investigation on the misconduct of Karim, et.al, Alicia Flores, Records Officer of the CENRO-DENR in Sultan Kudarat, declared (in a sworn statement and in direct testimonies in court) that Baguindali Karim took the Free Patent Application of the heirs of Akang Simpal from the Records Office on Sept ember 24, 1994 for processing, but did not return them to her.

Baikong Camsa on December 4, 1996 mortgaged a portion of the parcel of land in dispute (CMT and playground of King’s College), using the Free Patent obtained from DENR (TCT No 35549 for Lot 3, the second lot in question, measuring 12,757 square meters or 1.275 hectares) to secure the indebtedness of one Joenel Moises (now deceased), by way of a loan in the

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amount of P2.5 Million. The PCIB’s Account Officer, Rene Gallega, did not see any encumbrances, nor did he acknowledge any adverse claims by third parties. Without conducting any interviews of residents or occupants, bank appraisers and inspectors declared the lot vacant.

informed him that the said title is a derivative title from Original Certificate of Title No P-16880 pursuant to Free Patent No 126504288 issued on September 23, 1996 under Act 141, in favor of the heirs of Akang Simpal. The Accounts Officer was aware of the prohibitions that lands granted through homestead and free patent could not be sold nor encumbered within five years from the issuance of the patent. The Accounts Officer said he recommended for the approval of the mortgage contract anyway on the basis of the DENR approval. 78

The mortgage contract was approved by DENR and executed on May, 1996 by spouses Joenel and Eilene Moises (now both deceased). The Account Officer was aware of the prohibitions that lands granted homestead and free patent could not be sold and/or encumbered within five years form the issuance of the patent. The bank approved the loan application on December 6, 1996 (within two days after the filing of the loan application) on the basis of the DENR’s endorsement and approval.

On December 5, 1996, Lot 3 was entered by the Akang heirs who took possession of the lots by constructing a fence around the area. PEEI was compelled to file a case of Forcible Entry and Damages, docketed as Civil Case No. 688 against Baikong Akang Camsa with the Municipal Trial Court of Isulan. A decision rendered on the said case on May 22, 1997 restored the PEEI to possession of Lots No 1 and 3, and ordered Baikong Akang Camsa to remove the wire fence she erected on the property at her own expense.79 The court in its ruling on Case 922 on the said lots focused on the issue of whether PEEI, as a private corporation, is qualified to acquire lands of the public domain. The court said that being a private corporation, the PEEI was not qualified to acquire lands of the public domain pursuant to Article XIV Sec 11 of the 1973 Constitution and Article XII Sec 3 of the 1987 Constitution.80

The bank itself secured the DENR approval of the mortgage contract. The mortgage contract used only three supporting documents: TCT 35549, covering Lot 3; Tax Declaration, and Affidavit of non-tenancy, non-claims and conflict and landholding75. The mortgage contract was approved by Hadji Salic B. Macmoud, Land Management Officer III, on December 6, 1996. The mortgage contract was executed on the same date, amending the Real Estate Mortgage dated May 3, 1996 executed by spouses Eileen Rose and Joenel Moises, increasing the loan amount from P800,000 to P2,500,000, an increase of P1,700,000. 76 (Incidentally, the fair market value of said mortgaged lot is only P516,132 with an assessed value of only P84,170 effective 199777).

Resolution No. 19 dated August 20, 1974, issued by the Municipality of Isulan, was therefore unconstitutional. PEEI did not acquire any vested right over the said lots before the effecti-

The Account Officer admitted that he did not bother examining the original source of TCT 35549, which should have Land Tenure Stories in Central Mindanao

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vity of the 1973 Constitution, as said lots were not private land as of August 20, 1974 when Resolution 19 was issued. Moreover, the Municipal Council of Isulan had no right whatsoever to dispose or distribute lands of the public domain, the said right being exclusively vested with the Bureau of Lands.81

nowhere to be found in said lots, but said lots were used and occupied by the Kalawag Institute, and later by King’s College, up to the present, publicly and continuously”. 83 The Akang heirs allege that the two lots in question were portions of the 12-hectare parcel of land allegedly owned by their deceased father, Akang Simpal, which the latter had donated in favor of Anastacia Cerezo, through a “Quit-Claim thru Donation Inter Vivos” executed by Akang Simpal on June 3, 1952. The Akang heirs argue that only 10 hectares of the alleged donated parcel of land were used by Anastacia Cerezo, which is now allegedly the school site of the King’s College. The remaining two hectares of land are now allegedly Lots 1, 2, and 3 (Lots 1 and 3 are the lots in dispute, Lot 2 is a road lot).

Thus PEEI did not at all own or acquire any right over the lots in question as of 1974, except by lease, and therefore had no right to transfer any right over the parcel of land, subject matter of Municipal Resolution No. 19 dated August 1974. Thus, the Board Resolution No 1 Series of 1982 issued by the PEEI, authorizing Petronio Cagas to apply for a title over the lots in his name, the Transfer and Renunciation of Rights executed by Petronio Cagas in favor of Felipe Fernandez, and the Deed of Donation executed by spouses Felipe and Lolita Fernandez dated January 6, 1986 in favor or PEEI were “mere scraps of paper without any legal effect and created no right whatsoever, insofar as the said lots are concerned”.82

However, Anastacia Cerezo in her deposition declared that the 12-hectare parcel of land donated to her by Akang Simpal and referred to by the Quit Claim through Donation Inter Vivo dated June 3, 1952 is a different lot, and not the lot which is now the school site of the King’s College and the adjacent lots being disputed. The 12 hectares of land donated by Akang Simpal were located about two kilometers away from the Kalawag Institute’s school site, towards the location of the Municipal Building of Isulan, Sultan Kudarat. Mrs Cerezo declared that the Kalawag Institute school building already existed on its present site at the time of the execution of the Quit Claim through Donation Inter Vivo.

The court also ruled that “except for the bare testimony of Baikong Akang Camsa, there were no further evidence offered by the Akang heirs that the lots in question were parts of the allegedly private claim of their father. There was no public land application covering the said lots in question. Neither was a patent covering the said lots issued to Akang Simpal, therefore the lots did not become private property of the late Akang Simpal. It was not duly established that the lots in question formed parts of the alleged ancestral land of the Akangs, as members of indigenous cultural communities, neither was it established by sufficient evidence that they have occupied and possessed said lots. Since 1952, the Akangs and their deceased parents were

The court in its ruling said that granting, for the sake of argument, that the two lots in question formed parts of the donated land to the Cerezos by Akang Simpal, the latter and his heirs had 121

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ceased to have any right and interest on the said 12 hectares of land by virtue of the Quit Claim through Donation Inter Vivo. The donation in favor or Anastacia Cerezo was not revoked by Akang Simpal up to the time of his death in 1963. It follows that the heirs of Akang Simpal had no right at all to claim any portion of the donated 12-hectare parcel of land, and that the heirs had never occupied nor were in actual physical possession of any portion of the 12 hectare donated land after June 3, 1952.

While the government may recover lands of the public domain fraudulently awarded, the required action for reversion must be instituted by the Solicitor General. In the meantime, the awardee shall retain possession of the land in question, as the land has already become a private land registered in the person’s name, until the court orders its reversion, which would have the effect of canceling the free patent and the corresponding certificate of title, as well as its derivative titles. The end result is that the land covered will again form part of the public domain.

Thus, the only basis for the Free Patent application of the heirs of Akang Simpal was the alleged Transfer of Rights executed in favor of Baikong Akang Camsa by Felipe Fernandez, which the latter denounced as forged documents.

The court also ruled that being the registered owners of the lots in question, the Akang heirs are entitled under the law to the enjoyment of all the attributes of ownership over Lots 1 and 3. As being owners of Lots 1 and 3, the Akang heirs have the right to recover possession of the said lots, and are entitled to the protection of their rights as to the possession of the lots in question.

On the question of the validity and legality of the deed of mortgage in favor of PCI Bank Isulan Branch used to secure the loan obtained by Joenel and Eileen Rose Moises, the court ruled that it is in violation of Section 118 of the Public Land Act which provides that lands acquired under a Free Patent or homestead provisions shall not be subject to encumbrances for a term of five years from the date of issuance of the patent, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of the said period. Section 24 of the Public Land Act also provides that “any acquisition, conveyance, alienation or other contract made or executed in violation of any of the provisions of Sec. 18 of this Act shall be unlawful and null and void from its execution, and shall produce the effect of annulling and canceling the... patent... and cause the reversion of the property and its improvements to the State”.

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In sum, the court ruled in favor of the Akang heirs, as PEEI is not qualified to hold alienable lands of the public domain except by lease, and for lack of legal standing to file instant action for cancellation/annulment of the Free Patent awarded to the Akang heirs, the instant action being a case of reversion, which only the Solicitor general has the authority to file. PEEI had filed an appeal on the case, and it is currently pending resolution. The focus of its appeal is on its legal standing as a corporation to own lands, using the powers of the LASEDECO to distribute lands as basis of its argument. The Office of the Solicitor General has also reportedly filed a case of reversion on the subject lands to recover the lands in favor of the government.

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STORY 4 A Land Conflict Case between Moros and the Aromanon Manobo Tribe in Carmen, Cotabato

Background This conflict involves a portion of the land once shared by the Manobo and Moro communities in the municipality of Carmen, Cotabato. The Manobo’s tribal leader accommodated into their territory a number of Moro families, who were displaced by the war in Mindanao in the 1970s. The Moro community was given an area within a kilometer stretch along the Muleta River in Sitio Pagalungan in Carmen’s Barangay Kimadzil. Their numbers grew when the war displaced more Moro communities nearby. Upon the Moro people’s request, the Manobos allowed them to occupy the adjoining area comprising of another kilometer stretch, which was subsequently left by Manobos who had fled the war. The entry of Moro communities into the additional area was regulated by an agreement that its occupants would vacate upon the return of the Manobo evacuees.

The Moro community is yet to return to the lands they formerly occupied in Barangay Kimadzil. They claim the area was either given or sold to them by the Manobos. The Manobos, who are yet to recover from the effects of the war, refused the Moros re-entry to the community. Though there is now relatively less possibility of violence erupting between these communities, resolution of the conflict lies on the preliminary negotiations facilitated by their leaders.

The Parties Kimadzil Ilianon Aromanon Manobo Tribe The Manobos are indigenous peoples traditionally living in Central Mindanao, particularly in Cotabato and some parts of Bukidnon. They believe that their ancestors originally occupied the plains in what is now the municipality of Carmen, in Barangay Aroman, which, in their dialect means “wedding place,” from which they also take their unique identity among the Manobo tribes. The Manobos, though having their own political and economic system, had not always known cash economy. They used barter system as a popular practice of trade, until recent years.84 The Manobos in Barangay Kimadzil are descended from their ancestors who came from Ilian and Aroman, all in Central Mindanao.

The Manobo and Moro communities lived in harmony until the outbreak of the conflict between the government and Moro Islamic Liberation Front (MILF) in 2000 which affected Barangay Kimadzil. The two groups were pitted against each other when they were forced to take sides in the conflict. Their erstwhile healthy relationship was broken when they incurred casualties. After government troops overran an MILF camp set up in the barangay, the Moro community was forced to flee. The Manobos gained control over the barangay when it was turned over to them by government troops.

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Damasco Ampalid Sr. is the son of Timuay Pedro Ampalid, the chieftain of the Manobo tribe in all of Carmen. Damasco assumed his father’s position upon his father’s death in August 1992. As the present Timuay, he presides over the Aromanon Manobo Tribe in Carmen. He also administers the transactions his father entered into, such as the entry of outsiders into their territory. He is currently elected barangay kagawad of Kimadzil. He also served as barangay chair of Kimadzil for one term.

of Carmen. Kumander Iskak is in charge of administering MILF assistance to the communities displaced by the war. National Commission on the Indigenous People (NCIP) The NCIP is the primary government agency that formulates and implements policies, plans and programs for the recognition, promotion and protection of the rights and well-being of indigenous peoples with due regard to their ancestral domains and lands, self-governance and empowerment, social justice and human rights, and cultural integrity.85 The NCIP Office that caters to the indigenous peoples in Central Mindanao (Region XII) is based in Libungan, Cotabato. It has processed tenurial instruments for a number of IPs in the region, including that of the Aromanon Manobos in Barangay Aroman, Carmen. At present, it is assisting the tribe led by Timuay Damasco for the titling of the territory of the Ilian Aromanon Manobos of Barangay Kimadzil.

The Moro Community The Moro community is composed of about 186 Maguindanao Muslim families who fled the scourge of the war in Maguindanao and other parts of Mindanao in the 1970s. Through the kindness of Timuay Pedro, they were given access to the ancestral lands of the Manobos in Barangay Kimadzil. They are supporters of the MILF whose camp in the barangay was overrun by the military at the height of the all-out-war between government and Moro rebels in 2000. Being supporters of MILF, they were forced to leave the lands they occupied in the barangay. They are presently staying with relatives around Carmen, living in yet another period of evacuation. Some are in Sitios Matama, Lala, Lepbas in the municipality of President Roxas, while others have returned to Barangay Kibayao. In these areas, they hire themselves out to farming, earning meager incomes but always yearning to return to the lands they have either bought or occupied in Kilabaw and Pagalungan.

Chronology of Events According to Each Party Chronology of Events according to the Ilian Aromanon Manobo Tribe According to Timuay Damasco Ampalid’s personal recollection, Muslims entered their area in peace, bringing gifts such as dried fish, tobacco, and bettle nuts as tokens of goodwill. They called his father, then tribal chief Timuay Pedro Ampalid, “Ama” (father) in deference to his status and leadership. Because the Manobo elders were generous, the Muslims were welcomed to stay and work for their living.

The Moro community is represented by Kumander Iskak, the spokesperson and trusted field operative of Kumander Kineg Inalang, the MILF’s governor for what they call the Kapalawan Province which has command over members in the municipality Land Tenure Stories in Central Mindanao

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Following are Timuay Damasco’s accounts:86 124

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The first Muslim that arrived in Kilabaw was Antig Abang. He was accommodated out of pity by my father Timuay Pedro Ampalid in Sitio Kilabaw where he worked and raised his family. Upon learning of the kindness and the good means of living that the Manobos gave him, Antig’s in-laws and relatives soon followed and stayed with him. Eventually, his in-laws asked Antig to make an appeal before my father to extend to them the same act of kindness.

his problem. My father offered to Amay Kugaw the area which was evacuated by some of his subjects. He said, “in the meantime that my men has not returned in Pagalungan, your men can stay and work there. But when my subjects return, and your area in Muleta would be peaceful, your men must leave the area.” Later, due to the influx of more Muslims who followed their relatives occupying lands in Pagalungan, Amay Kugao requested for additional areas for occupation. My father agreed to extend by another kilometer the stretch of land on which he allowed the Muslims to occupy. My father made it clear to them that the additional area was devoted only for work and not given in the same manner as the first kilometer was given, and that land should be vacated upon the return of the original Manobo occupants.

I had an uncle named Pancho who became a friend of Antig’s. They were close friends for a long time. In their closeness they agreed to have one of their children to become part of each of their families. And so it happened that Pancho’s child, Hemistan, became part of Antig’s family and Kasamela, of Pancho’s family. My uncle gave four out of his 10-hectare land to Antig to help him raise his child. Their friendship deepened and they became good leaders. That was how they were able to occupy lands in our territory. My uncle shared and entrusted these lands to them out of friendship.

That was how the Muslims were able to enter Pagalungan. It was based on an agreement between my father and Amay Kugaw.

When the war erupted in the 1970s, Muslims in the Muleta area became targets of the military operations of the 27th Battalion. These operations forced the Muslims to flee to safer grounds, leaving their farms unattended. Because of this, then MNLF’s area commander Amay Kugaw met with my father. He told my father how the people under his leadership lost their livelihoods due to constant harassment by the Military. He asked my father for assistance to solve

In the 1980s, the Manobos started returning to their communities and demanded the return of their lands. This time, the Moro refused to vacate as agreed and insisted that the land was already theirs. Thus, the Manobos sought the help of their Timuay who thereupon went to Amay Kugao and reminded him about their original agreement. The Moro commander assured the Timuay that he would act on the problem. But the Moro families stayed.

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Timuay Damasco continued to recall the following:

established there. A military detachment was also set up in the area. A series of mortar shelling was directed to the MILF camp. The Moro armed groups suspected the Manobos of having sought military assistance. The Moros accused the Manobos of instigating the military offensive.87

In those days, many returning Manobos had no lands on which they could live on. Without lands to till, they were plunged to difficult conditions. Some had almost nothing to eat and had to ask for food from the Muslims who were then benefiting from their lands. My father asked the Muslims to leave the area, but they refused. So my father told one of his aides, “since they refuse to leave, it might be worthwhile to ask the Muslims there to share their income, even if not on a fixed percentage, so that those who returned have something to live on.” The Muslims verbally agreed to share their income from harvests. But during harvest time they refused to give share as agreed. When the Manobos insisted on their share, the Moro occupants brandished their armalite rifles. With that, we started to fear for our lives.

There had been casualties suffered by both communities as they became participants in the war. But one particular encounter became devastating for the Manobos. It took place after a tactical retreat from Kibayaw camp by the MILF. The following day, with a strength of 300-combatants, they were poised to retake the Kilabao area where the military has put up a detachment. They reportedly attacked the Manobos. They open fired at Timuay Damasco. According to Timuay Damasco: The Muslims started attacking us in 1999 and became successive. At one point, they invaded our area which at that time was deserted because some of us evacuated. I accompanied my people to evacuation areas. Each time I left, I was confident the Muslims would not harm us because I had been one of them.

We realized that the Muslims did not have any intentions of vacating the lands, and that it was not possible to recover our land. Because of these, some of us decided it was better to mortgage lands if we wish to benefit from our rights. Eventually, some of us accepted carabaos as mortgage payment; others agreed to one carabao in exchange for eight to ten hectares of land. Others were left with no option but to accept a carabao as payment because the Muslims would not agree that they just mortgage their land.

At that time war was raging in Kayumangon and Taginting. But we did not evacuate because I thought I had influence among the Muslims. At that time, we hesitated to leave because our corn crops had just started maturing. If we evacuate, where would we get money for food? It was noon, about the same time the Moro rebels were said to come to consult with me. The

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military prepared for combat right at my front yard. They set up M60 artillery. I told them not to do harm because I did not want our village to be in the firing line. I told them our village had been very peaceful.

with a policy of registration which people go through when they want to enter the territory for livelihood and other purposes. After proper screening, entrants are allowed to stay as long as they follow the Manobo tribe’s policies of unity and understanding.

They tortured and killed some of us, including my nephew and first cousin. They killed them not by inflicting a wound. They tortured them. My cousin’s eyes were swollen, his head was soft as a ball. They pulled his nails off and hanged him in a coconut tree. It was very painful. They spilt blood on the very place that gave them means for living.88

For the Manobos, the solution to the conflict is quite simple. They may undergo a process of reconciliation with the Moro group to the extent of allowing them to return to the first kilometer stretch originally given to them. But, as a measure of preventing occurrence of painful experiences, the Moros may no longer return to their lands beyond the first kilometer area. As far as they are concerned, they are willing to commit to history the atrocities the Moros committed against them because these were a result of the war at that time.

When the military made a subsequent operation here, the Muslims were forced to leave. When they left, we returned here in Barangay Kimadzil.

The Manobos have started doing things toward conflict resolution. One of these was a meeting that took place the previous year. Timuay Damasco met with Kumander Kineg, the first after a long estrangement. According to Timuay Damasco, Kumander Kineg apologized for the effects of the war. He said he was just carrying orders.

When there were no more encounters between the AFP and the MILF, and the Manobos were in control of Barangay Kimadzil, they allowed the Moro to return to their original occupied areas located in the first kilometer that Timuay Pedro gave them. But they refused to allow the Moro to reoccupy the second kilometer stretch and the areas in Sitio Kilabaw areas.

Timuay Damasco did not specifically accept apology. He told Kumander Kineg that he was thankful for his effort which made possible a dialogue where the Manobos could express their hurt. He said goodness is what is more valuable; the Manobos are attracted to this, not on wrongdoing. The only problem, he told Kineg was that the Manobos had lost their trust in the Moros. With that, the meeting ended. As of February 2009, no succeeding meetings were held.

According to Timuay Damasco, the Manobos’ refusal to the return of the Moro is “because they attacked us, broke our good relations. They attacked us so that they could take over this place. We can’t say they were out to grab our properties; we had none of those, except our lands.” This prohibition is in effect up to the present. To prevent a repeat of the experience with the Moro, the Manobos came up 127

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Chronology of Events according to the Moro Community In the 1960s, Datu Pedro Ampalid, the Timuay of Carmen, Cotabato and its neighboring areas was a respected leader by both Moro and Manobos. He was appointed as a Datu by then Governor of the undivided empire Province of Cotabato, Datu Udtog Matalam. As datu, he was tasked to be the protector of the Moro in his territory. He loved the Moro and considered them friends.89 He entered into agreement with a Moro leader and his descendants to occupy a portion of their territory. Led by Antig Abang, a Magauindanaon from nearby Barangay Kibayaw, the first batch of about 20 families moved to Barangay Kimadzil.90

The arrival caused the increased number of Moro people in the area. Because of this, the Manobo chieftain set boundaries where the Moros can occupy. The boundaries enclosed a stretch of land between the Matama and Upian Creeks, measuring about one kilometer parallel to the Muleta River going toward the hills. The area was soon known as Sitio Pagalungan. The third batch of Moro evacuees were from Maguindanao and Sultan Kudarat. They sought refuge among their relatives living at the vicinity of Barangay Kimadzil. The MNLF leader in the area, Makaiber Inalang -also known as Amay Kugaw- negotiated with Datu Pedro to accommodate more evacuees into Pagalungan. Because of Datu Pedro’s generosity, they were permitted to enter Pagalungan. Datu Pedro gave an additional kilometer to the land he had allocated for the Moros.92

Soon after, upon the invitation of Datu Pedro, relatives of Antig Abang followed him. But at that time the Moros were afraid of the so-called Ilaga members who had been sighted to still roam Central Mindanao, including Carmen. According to Kumander Iskak, the spokesperson for the Moro community:

Pagalungan at that time, even if unoccupied and covered with cogon, already have Manobo claimants. The proof of claim was what was called “kawalis” (inheritance or rights over property). Some Moros bought these from the Manobos, some for P3, 000, others in exchange of a carabao. Other Moros also acquired lands in Sitio Kilabaw where the Manobos were concentrated.

At that time, there was no one who can act as guarantor for the entry of the Moro except Datu Ampalid. People were then still afraid of the presence of the Ilaga. Also at that time, we saw some natives who were among the Ilaga. If you are not accompanied by a native, you cannot guarantee the safety of Muslims. And Datu Pedro, because of his being an authority, wielded influence among the natives. He guaranteed the Maguindanaos’ safety. He escorted the second batch of about 86 (all from Bgy. Kibayao and Kasapian) Moro families who entered the Manobo territory.91

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When Timuay Pedro died in 1992, his son Damasco took on his functions. Kumander Iskak describes the relationship that ensued between the Moro entrants and the Manobos as follows: There were no unresolved disputes between the Moros and the Manobos. We lived in absolute harmony and peace. All of us looked upon Damasco as our datu. He

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was recognized as an elder. He resolved disputes which were not complicated, not violent, such as marital disputes, and brawls. When a Moro and a Manobo figure in a conflict, Datu Damasco and I were tasked to resolve it.

The following are Kumander Iskak’s account of the incidents:95 If only I saw Damasco, I would not have shot him. I was not able to see that it was Damasco who was inside and emerged from the tent set up by the Marines. The killing of Damasco’s nephew was another case of “missing” (a case of mistaken identity or “friendly fire”). His name was Bebot Ampalid. He was shot near our mosque. When the Marines left, we went to the area. My troops mistook him for a Marine. He was shot from afar; visibility was poor due to morning dew and tall cogon. When we left, we set fire to the cogon grass. We just did not recognize him clearly.

We used the process of resolving disputes according to tradition and according to the MILF system. At that time, Datu Damasco was not yet elected kagawad. He was a ranking member of the MILF.93 We join each others’ activities and celebrations. There were intermarriages between the two groups. There were no segregation in dwellings; Moro and Manobos’ houses were built close to each other. During the all-out-war of 2000, MILF combatants passed by Pagalungan from Muleta on their way to their camp at Kilabaw. This made the Manobos suspect that we sided with the MILF. At that time, there was no chance to explain because of the security condition. We were also afraid to go to the Manobo area because the Manobos were identified with government. Among them were CAFGU members who were targets of MILF men. They believed they fought at the side of government by acting as military guides.94

The Moros left their occupied areas in Barangay Kimadzil due to the subsequent military operations that threatened their lives. They did not want to be caught in the crossfire. They crossed the river Muleta to Sitio Bala, about seven kms from Pagalungan.96 When relative peace returned to Carmen, the Moros did not attempt to return to Kimadzil. Up to the present, they stayed clear of Manobos’ paths for fear of worsening the conflict between them. They were also waiting for word from the MILF leadership on their next moves. Meanwhile, they make a living from their relatives’ farms and other forms of income-generation.97

In one episode of fighting, MILF combatants shot at someone seen inside the tent set up by the Marines. It later turned out that it was Datu Damasco. In another episode, the nephew of Datu Damasco was shot and killed right after the Marines were heard to have left the area.

For the conflict to be resolved, the Moros believe that “justice” must be in place. According to them, justice is achieved when the problem of mutual accusation, i.e. Moros siding with MILF and Manobos becoming CAFGUs, is clarified and the search for solutions to achieve peace is undertaken.98 One way of 129

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achieving justice is to conduct meetings to discuss what happened and to restore mutual respect.

with Kumander Bungalos, Kumander Kineg acts as facilitator to settle the gap between the tribes. Datu Damasco has also pronounced that when the negotiations are completed, he will return land to the Moro and present occupants will leave, provided that the returning Moros promise not to disturb the peace.

The other more important way is for Timuay Damasco and Kumander Kineg to sit down and talk. Whatever results from their talk, the Moros will abide by. They will abide by the decision because they trust their leaders know what is best for them. A peaceful solution is top in the agenda in these talks, as far as the Moros are concerned. They are less concerned about how things will be run politically.

The Moro are enthusiastically waiting for the outcome of the talks. At times, they find it a slow-moving. Because of this, they welcome assistance from civil society groups who could speed up the process.

Parties’ Perspectives on their Land Rights The Manobo tribe’s claim to their ancestral lands in Carmen is well recognized. By this, the Manobo people hold ownership of the lands within its territory. They control the people who would enter it. If needed, they will defend with their lives, the integrity of their tribe and territory.100

The Moros have been very grateful that there are events happening pointing toward the track of justice. They are quick to enumerate these events, foremost of which is the free movement of their and Manobo tribe members. Though they admit more substantial results are yet to be achieved, they are optimistic about these positive activities. According to the Moro, there is a local negotiation initiated by Datu Damasco and is held under very strict confidentiality.99 The Moros suppose that Datu Damasco prefers that the negotiations not be divulged to the public because he is a government official. He is apprehensive of the government’s reaction when they find out he is doing negotiations with the MILF on his own. He is supposed to also avoid unwanted interventions from the politicians and traditional leaders who have vested interests.

The Moros claim ownership of the lands they have occupied inside the Manobo territory because these were given to them by the Manobo leader at least forty years ago. They argue that aside from the tribe grant, the area in Pagalungan is classified as public land. As regards land beyond the Pagalungan area, they claim that these had been acquired through mortgage or direct sales transactions. They support this claim with documents duly signed by Manobo sellers and mortgagors.101

The negotiations are being facilitated by leaders of the Moro and Manobos. Initial reports indicate that Datu Damasco also has expressed openness with the return of the Moro. He has done so in his pronouncements before the go-betweens such as Kumander Bungalos, a Manobo timuay in another town. Together Land Tenure Stories in Central Mindanao

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Because they are legal owners of these lands, they believe it is fair to be allowed to return and evict the squatters who they heard are presently occupying their lands.

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STORY 5 A Land Conflict between Two Moro Families Background This case is a land dispute between Moros over a parcel of land known as Lot 352, PLS-700104 located in an area now said to be covered by either Barangay Damacling, Municipality of Paglat, Province of Maguindanao, or by Barangay Popoyon, Municipality of Tulunan, Province of North Cotabato. These areas are located within the so-called old Empire Province of Cotabato, which is presently divided into five provinces of Cotabato, Maguindanao, Sultan Kudarat and South Cotabato.

a result of war in the 1970’s waged by Moro rebel groups against the government. The case will also illustrate their spiritual, cultural and social practices and concept on land ownership. The case study also documents how the conflict was amicably settled through a dispute resolution process, applying customary and Islamic laws on land ownership, with tribal elders and datus playing a significant role in dispute settlement.

The Cotabato Empire is the traditional home of Maguindanao sultanates and the Maguindanaon people who experienced rapid marginalization and displacement of Moros and other indigenous peoples on their own lands as a result of large scale movement of the population105 accomplished through a series of government resettlement programs beginning 1913 through the 1970s. The programs attracted thousands of settlers who were either sponsored by the government or who came on their own.

The successful resolution and speedy disposition of the case entitled “Heirs of Pasicaman Rajahbuayan versus Datu Bagumbayan Abpet, et. al” lodged at the Department of Environment and Natural Resources of the Autonomous Region of Muslim Mindanao was amicably settled through the initial intervention of the local government unit of Paglat and the mediation conferences conducted by the DENR using combined conflict resolution strategies - customary practices, Islamic principles and DENR rules - on land disposition, sealed with a written compromise agreement.

While classic cases of land problems faced by the Moros of Central Mindanao generally involve displacement from or dispossession of traditional landholdings as a result of the occupation of the settlers on their ancestral lands, this case illustrates how a land conflict could arise even between two Moro groups belonging to the same tribe. Their land dispute arose after the two groups both experienced displacement from their lands as

The Parties Heirs of Pasicaman Rajahbuayan The heirs of Pasicaman Rajahbuayan are Maguindanaon who claim that they and their ancestors have openly, continuously and pacifically occupied Lot 352 since time immemorial until

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they were compelled to flee the area during the 1970s war in Mindanao.

Mangelen. The heirs claim that Datu Mangelen was born in and is a native of Damacling.

Bai Kusan is the granddaughter of Sultan sa Malasila and the great grand daughter of the Sultan sa Damacling. Based on the Maguindanaon tarsilan (genealogy), Sultan Solaiman the Sultan of Malasila married Bai Tonina, daughter of Sultan sa Damacling. They had a daughter named Bai Dayang and a son named Pasicaman.

Specifically, the names of the respondents to the DENR case were Guiaplos Limba, Aleben T. Limba, Abdul Maguid Limba, Teng Bagumbayan, Guiamila Jumuad, Monera Edza Limba, Tito L. Bagumbayan, Tongtong Limba, Buat Abpet, Hana Bagumbayan, Datu Bagumbayan Abpet and Datu Puti Patadon whose names appear in the Subdivision Plan Lot 352, PLS-700 prepared for Datu Bagumbayan Abpet, et. al. on a survey conducted on May 3 to May 11, 1961 by Engr. Lucilo Nazareth; the survey was allegedly approved on October 13, 1982 by Sultan A.P. Limbona for the Director of Lands and was later referred to as the alleged approved Survey Plan CSD-12-002473-D.

Bai Dayang Rajahbuayan then married her first cousin Datu Ampatuan Pasicaman. Bai Dayang had a daughter named Bai Ulat, the mother of Bai Kusan. Bai Sarifa Rajahbuayan, daughter of Bai Kusan, who now represents the heirs of Rajahbuayan in this case, Sarip Rajahbuayan Tambungalan (Bai Kusan’s cousin) and his daughter Pay Tambungalan Dangalao are signatories to the Compromise Agreement signed between the heirs and the heirs of Datu Bagumbayan Abpet.

Datu Mohammadali Mangelen, son of Datu Conte Mangelen, acted as the representative and, as authorized by Datu Guiaplos Limba, signatory to the Memorandum of Agreement between the parties on November 6, 2006, through the assistance of DENR. He claims that his ancestors occupied the land probably as early as 1940s. He said he grew up in Damacling. When he was only 12-15 years old during the war in the 1970s, at the time when most original inhabitants were fleeing to escape the war, his father, Datu Conte Mangelen, went into hiding and his family evacuated Damacling.

The heirs knew of the respondents, Datu Bagumbayan et.al. to be Maguindanaons who are mostly based in Buluan and whom they claim to have never stayed on nor occupied the disputed land. They believe that the respondents are related to Congressman Datu Mangelen Luminog by affinity. Heirs of Datu Bagumbayan Abpet The respondents were the stepbrothers/sisters and relatives of Datu Conte Mangelen, a former Speaker of the Lupong Tagapagpaganap ng Pook (LTP)106, Region XII. He was once appointed Mayor of the Municipality of Paglat by former Governor Nur Misuari and is a nephew of former Congressman Datu Luminog Land Tenure Stories in Central Mindanao

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Only two of the representatives of respondents (Datu Ali Limba and Salem Bagumbayan) present during the interview107 admitted to have lived in Lot 352. Datu Ali averred that he stayed on the land from 1960 to 1976, “during the revolt”. Salem Bagumbayan said he lived there only for two years from 1959 to 132

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1961 because he had to leave to study high school. However, Datu Ali and Salem frequently visited the place. Datu Ali claimed to have several tenants who stay in the land. Many of the respondents’ relatives live within the area.

The heirs say that the area was formerly covered by Sitio Malasila, which later became part of Barangay Damacling and is now presently known to be covered by Barangay Popoyon, Municipality of Tulunan, Province of Cotabato. It consists of between 300 to 400 hectares of land, and lies between Dungos, Ungos River and Damacling creek.

The respondents alleged that they have never met nor seen any of the heirs of Pasicaman Rajahbuayan. They knew the Rajahbuayans to be Maguindanaon natives of Tulunan. The only Rajahbuayan they knew is a certain Datu Bedis. They are not related to the Rajahbuayans. Asked if they are related to the Sultan of Malasila, the alleged ancestor of the Rajahbuayans, they argued that Malasila is very far from Damacling, where Lot 352 is situated.

The heirs describe Lot 352 as inhabited by Moros who are all related to the heirs of Pasicaman Rajahbuayan. Barangay Popoyon’s population however is now comprised of approximately 60% settlers from Luzon and the Visayas and around 40% Moros. They claim to have inherited a number of parcels of land including Lot 352 situated in areas now covered by Barangay Popoyon, Municipality of Paglat from Bai Kusan’s mother, Bai Ulat, who in turn inherited them from her ancestors, the Sultans of Malasila and Damacling.

They describe Bai Sarifa Rajahbuayan as someone who is interested in having lands sold through VOS (Voluntary Offer to Sell)108 under the Comprehensive Agrarian Reform Program (CARP) of the Department of Agrarian Reform (DAR). They say that if only ocular inspection can be conducted, the actual occupants of the area can testify that the land is not owned by the Rajahbuayans but owned by Datu Conte Mangelen and Datu Bagumbayan.

Chronology of Events According to the Parties

The complainants deem that they are the rightful owners of Lot 352 by virtue of being descendants and rightful successors of the said Sultans, which the tarsilan will show. Moreover, they are in possession of Patent Applications on the land. They claim that they are prior occupants and inhabitants of Lot 352 who were only compelled to flee when settlers came and the war broke out in the 1970s.

Chronology of Events according to the Rajahbuayan Heirs According to the heirs of Rajahbuayan, subject Lot 352, PLS-700 is situated at Barangay Damacling, Municipality of Buluan, Province of Cotabato (based on Sketch Plan of Lot 352 PLS-700 as prepared for the Heirs of Pasicaman Rajahbuayan, and approved on April 30, 1971).

Bai Kusan Rajahbuayan’s accounts Bai Kusan claims that she was born, grew up and had her marriage rites performed in Lot 352. She alleges that most of the coconut, mango and libi trees found in Lot 352 were planted by her father and grandfather. Her grandfather the Sultan sa Malasila also used to have tobacco and corn plantations in the place. 133

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According to her, during the old days, the extent of people’s land ownership then were identified and delineated through traditional landmarks such as rivers, various perennial trees, and other traditional boundaries. Bai Kusan also had planted on the land a number of silal or buri and coconut trees herself. A mosque but destroyed during the war was also built by her grandfather in the area. Several tampat, tombs of members of Maguindanaon royalty, whom she claims to be her ancestors, can also be found within the adjacent Sitio Malasila. The Sultan of Malasila was also buried there.

only about seven years old. She was so frightened by the first sight of big numbers of bisaya who first appeared in Barangay Popoyon one night time when her father was still out trading at other towns. She recalled that out of fear, her mother refused to sleep. To feign an excuse not to sleep, she started weaving a mat, and finished by the crack of dawn one big enough to cover their entire home. Her scared Moro yaya (nanny) had removed a few pieces of wood planks of their house and instructed her that should anything happen that night, she should escape through one such opening, run as fast as she could, and leave her to face the settlers alone.

She recalls that when she was still a child, she saw how the Moros lived peacefully in Malasila where Barrio Damacling belonged (now Barangay Popoyon). Her parents, ancestors and the Moros then used to barter trade at Dulawan, Datu Piang and Cotabato City out of their corn and coconut harvests. They would exchange corn for fish fry (uyap). It used to take them seven days by boat to reach Cotabato to trade.

The presence of settlers caused them fear and anxiety because they could not communicate with and understand each other. It was their first time to hear a strange language being spoken. When her father arrived, he tried to drive away the settlers, but the settlers refused to leave. The situation grew more tensionfilled when one day, her father tried to build a new “tabungos” (warehouse) for their rice. The settlers would forcibly topple down and destroy each and every post he put up. They could not understand why they were being prevented by the settlers from constructing any improvement on their own land.

She says that the idea that her ancestors had ever sold lands to others was unthinkable. Due perhaps to the abundance of land, she said that any Moro, usually their relatives and her grandfather’s sakop (constituents/vassals) could occupy and cultivate any unoccupied land but always with the permission of the Datus or Sultan. Lot 352 and their neighboring/adjacent lands which is now part of Baragay Popoyon were inhabited only by Moros and a few Manobo highlanders. Today, majority of the population of Barangay Popoyon are settlers.

Their family found out later that the settlers came into the area because a prominent Maguindanaon Congressman commanded them to enter the area, something that was without their knowledge and consent. He is said to be a Representative of the undivided Cotabato Province during 1950’s. The settlers were allegedly brought in by the said politician to muster more votes during elections110. From then on, Bai Kusan witnessed

Bai Kusan recounts that she would never forget the first time she saw the bisaya109(settlers) in the early 1950s when she was Land Tenure Stories in Central Mindanao

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with great fear and pain how the settlers continually grew in numbers and occupied their lands in Barrio Damacling. When the settlers continued to increase in number and dominate the area, they decided to gradually leave the area and transfer to Malasila. They only went to Lot 352 in the morning to plant, returning at night time to Malasila (now named Sitio La Esperanza), staying with relatives at the big ancestral home of the Sultan sa Malasila called Galawang, a traditional Maguindanaon house built without nails and pieced together with strands of rattan. She described that it was like a mansion for them because it was a very huge house. From then on, their visits to their land became less and less frequent.

ment and Rehabilitation Administration (NARRA) program.113 A Moro teacher named Sendad prodded and guided them to title their land. They were encouraged to have their land surveyed because it would only cost them a peseta or twenty cents.

When Barangay Popoyon and the Municipality of Paglat became virtually “no man’s land” in 1973111, the heirs eventually evacuated their lands, including Lot 352 and stayed at Lutayan.

They started to a conduct a series of inquiries with the office of the Community Environment and Natural Resources Office (CENRO) and the Provincial Environment and Natural Resources Office (PENRO) of the Department of Environment and Natural Resources –ARMM to validate these claims. However, they found out from the said offices that Datu Bagumbayan Abpet et.al. have no Patent applications nor any records pertaining to CSD-12-002473-D. CENRO-ARMM also certified that CSD-12-002473-D “situated at Brgy. Damacling, Buluan, Maguindanao” is not among the approved survey plan that has been recorded in its office 114.

In 2006, the heirs thought of disposing some of their lands through Voluntary Offer to Sell (VOS) under the Comprehensive Agrarian Reform program implemented by the Department of Agrarian Reform. While securing the necessary papers for the VOS, they discovered from the Assessor’s Office of Tulunan that Lot 352 was also being claimed by a certain Datu Bagumbayan Abpet and his heirs.

Bai Sarifa Rajahbuayan’s accounts According to Bai Sarifa, when relative peace was experienced by the people of Paglat and peace and development initiatives (for instance, construction of rehabilitation centers, declaration of the area as one of the peace and development communities) began around the year 2002, the heirs of Pasicaman Rajahbuayan started gathering their documents on their lands.

They then proceeded to the Register of Deeds of Cotabato. To their surprise, they found out that some portions of Lot 352 had already been titled in 1984 allegedly by members or relatives by affinity of Datu Bagumbayan Abpet, and that the following titles were issued:

The heirs of Pasicaman Rajahbuayan assert that Lot 352 was surveyed in the name of the heirs and that the said survey was approved on April 30, 1971.112 A hand written note in the sketch plan indicates “approved PLS 700”. Bapa Sarip Pasicaman Tambungalan, Bai Kusan’s cousin, said that they were able to apply for a Patent over Lot 352 through the government’s National Resettle135

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1. Original Certificate of Title No.P- 05222 (Free Patent No. 599388) dated February 13, 1984. Title issued in the name of Abdul Maguid Limba married to Malepedted Abdulgani over a parcel of land situated in the Barrio of Damacling, Municipality of Buluan, Province of Maguindanao, Philippines, containing an area of Two Hundred Twenty Seven Thousand Nine Hundred and Sixty (227,960) Sq.m. with the following notes: “That the lot is equivalent to lot 370, a portion of Lot 352, PLS-700 and is covered by F.P.A No. (XII-11) 00258. Signed by Eufronio Bautista, Chief, Surveys Division for the Director of Lands and by Silverio V. Tagbo, Land Examiner.”

Land Examiner.” Title contains an annotation of encumbrance that it has been mortgaged to Land Bank of the Philippines for the sum of P140, 652.61; Date of Document : July 8, 1991; Date of Registration: July 18, 1991. The heirs knew of Datu Bagumbayan Abpet and his group only as Maguindanaons based in the Municipality of Buluan and that Congressman Datu Luminog Mangelen, a predecessor of Congressman Salipada Pendatun, is related by affinity to the respondents. They claimed that they never saw Abpet and his group to have stayed nor occupied Lot 352.

2. Original Certificate of Title No. 05221 (Free Patent No. 599357). Title issued in the name of Aleben T. Limba married to Salama Wanday over a parcel of land situated in the Barrio of Damacling, Municipality of Buluan, Province of Maguindanao, Philippines, containing an area of 22 hectares, 79 ares and 60 centares. (Last page missing).

The heirs surmised that while they were probably at evacuation in Lutayan, the respondents Datu Bagumbayan Abpet et. al were able to subdivide Lot 352 and succeeded in having it surveyed, securing an approved Survey Plan in their favor and issued with CSD 12-002473-D for Lot No. 352, PLS-700. Thereafter, they sought the help of the incumbent Mayor of the Municipality of Paglat, Abdulrakim Langkuno who immediately investigated and consulted seven members of Paglat’s council of elders as to the real ownership of the disputed land. They say that the Mayor was able to trace back the history of the land and its ownership to the Sultans, whom he also claims to be his relatives or forefathers. Based on the elders’ accounts, he determined that the heirs of Pasicaman Rajahbuayans have customary rights and legitimate claims over Lot 352. After discussing with the heirs their problem, Mayor Langkuno referred them to the Department of Environment and Natural Resources – ARMM (DENR-ARMM).115

3. Original Certificate of Title No. P-05224 (Free Patent No. 599355) dated February 22, 1984. Title issued in the name of Teng Bagumbayan married to Mila J. Bagumbayan over a parcel of land situated in the Barrio of Damacling, Municipality of Buluan, Province of Maguindanao, Philippines, containing an area of Two Hundred Twenty Seven Thousand Nine Hundred and Sixty One (227,961) sq.m. with the following notes: “That the lot is equivalent to lot 359, a portion of Lot 352, PLS-700 and is covered by F.P.A No. (XII-11) 00257 signed by Eufronio Bautista, Chief, Surveys Division for the Director of Lands, and by Silverio V. Tagbo, Land Tenure Stories in Central Mindanao

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On September 16, 2006, the heirs filed a complaint before DENR-ARMM against Datu Bagumbayan Abpet et. al and prayed for the cancellation of CSD No. 12-002473-D. Bai Sarifa Rajahbuayan, as representative of the heirs, alleged in the complaint that they were surprised by the fact that Lot 352 which is the property of their grandfather Pasicaman Rajahbuayan was in 1982 subdivided by Bagumbayan Abpet et.al, without their knowledge, into 13 lots, three of which were already titled in the names of Guiaplos Limba, Abdulmaguid Limba, and Hadji Moner Limba. She also asked for the cancellation of the subdivision plan and titles issued to the Abpets.116

In the agreement, the parties have acknowledged the fact that Lot 352 PLS-700 which is located at Paglat, Maguindanao had been subdivided into 13 lots, under CSD 12-002473-D in the name of Datu Bagumbayan Abpet et. al. The Abpets committed to relinquish their rights and Patents covering portions of the following eight untitled lots allocated to the following members of their clan, namely: 1. 2.

The DENR-ARMM’s Legal Affairs Office conducted an investigation and ocular inspection of the area117. Through a series of mediation conferences conducted by Director Brahim Andamen of the Land Management Bureau between the Rajahbuayan heirs and Bagumbayan Abpet et.al, represented by Bai Sarifa Rajahbuayan and Datu Guiaplos Limba, respectively, the parties were able to arrive at an extrajudicial settlement.

3.

On November 6, 2006, through the assistance of the DENRARMM, the heirs, represented by Bai Sarifa Rajahbuayan finally entered into a Compromise Agreement with Datu Bagumbayan, et.al, represented by Datu Guiaplos Limba et.al, and Datu Mohammadali Mangelen. In the agreement, the Abpets committed to relinquish any rights over eight of the 13 untitled lots in favor of the Heirs of Pasicaman Rajahbuayan, along with their Free Patent applications.

7.

4. 5. 6.

8.

Since their conflict has already been successfully resolved through the use of customs and traditions, they believe that institutions like the Local Governance Support Program in ARMM (LGSPA) will help in resolving similar conflicts by documenting their methods of conflict resolution.

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Lot 352-C in the name of Guiamila Jumuad with an area of 227,961 sq.m. Lot 352-D in the name of H. Monera Edza Limba with an area of 227,960 sq.m. Lot 352-E in the name of Tito L. Bagumbayan with an area of 227,960 sq.m. Lot 352-F in the name of Tongtong Limba with an area of 227,960 sq.m. Lot 352-G in the name of Buat Abpet with an area of 227,960 sq.m. Lot 352-J in the name of Hana Bagumbayan with an area of 227,960 sq.m. Lot 352-H in the name of Datu Bagumbayan Abpet with an area of 227,960 sq.m. Lot 352-M in the name of Datu Puti Patadon with an area of 227,960 sq.m.

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Chronology of Events according to the Heirs of Datu Bagumbayan Abpet According to the heirs of Datu Bagumbayan Abpet, Lot 352 is an alienable and disposable public land. The respondents described Lot 352 as rich and fertile land. During summer and low tide, rice and corn may be planted thereon and during wet season or high tide, fish, such as tilapia, alwan, and pupuyu are abundant. Some coconut trees and permanent trees are found on the land. Datu Ali said he asked his tenants and his relatives to plant libi trees in some of the areas as early as 1954. Libi trees are said to grow and spread fast but when it dies, people in the area would replant them.

the land is not owned by the Rajahbuayans but by Datu Conte Mangelen and Datu Bagumbayan Abpet. According to Datu Mohammadali Mangelen, his ancestors occupied the land probably as early as 1940s. He himself grew up in Damacling. When he was only 12-15 years old during the war in the 1970s, at the time when most original inhabitants were fleeing to escape the war, his father, Datu Conte Mangelen, went into hiding and his family evacuated in Damacling. Datu Salem Bagumbayan accounts Sometime in 1961, LTP Speaker Datu Conte Mangelen gathered his step brothers, Datu Bagumbayan Abpet and Datu Guiaplos Limba (both deceased), and his nephew, Salem Bagumbayan (son of Datu Bagumbayan Abpet) to discuss matters pertaining to lands in Barangay Damacling they contend to own. He told the three to facilitate the titling of their lands and have the lands subdivided among his brothers and sisters.

The land is situated within Barangay Damacling, Municipality of Paglat and within the vicinity of the Liguasan Marsh. It is inhabited by a purely Muslim populace, majority of whom are relatives of Datu Bagumbayan Abpet and tenants of Datu Ali Limba. Barangay Popoyon is different from Barangay Damacling, and is not part of the Municipality of Paglat. It however serves as boundary between the Municipalities of Tulunan and Paglat.

Salem Bagumbayan narrated that his father, Datu Bagumbayan Abpet, then had Lot 352 surveyed, subdividing it among his brothers and sisters. The subdivision plan was successfully approved in favor of Datu Bagumbayan Abpet, et. al. In the subdivision survey, Lot 352 was apportioned among the following brothers and sisters/relatives of Datu Conte Mangelen: 1) Guiamila Jumuad (deceased); 2) H. Monera Edza Limba; 3) Tito L. Bagumbayan (deceased); 4)Tongtong Limba; 5) Buat Abpet; 6) Hana Bagumbayan; 7) Datu Bagumbayan Abpet (deceased); 8) Datu Puti Patadon; 9) Abdul Limba; 10) Maguid Limba (deceased); 11) Ali Limba; 12) Ben Limba (deceased); 13) Teng Bagumbayan.

The respondents explained that they are owners of the land based on customary and government land laws. They claim that Datu Conte Mangelen is a native of Damacling. They already filed Free Patent Applications and even have titled some portions of the lands. Some of them were able to stay in Lot 352 and introduced several improvements, planting coconut and libi trees thereon. They say that the old libi trees were first planted by their ancestors. The area is now inhabited by their relatives and tenants. They stressed that if only ocular inspection will be conducted, the actual occupants of the area can testify that Land Tenure Stories in Central Mindanao

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Datu Bagumbayan, along with Datu Guiaplos Limba, a former assessor of Buluan, filed the application for Free Patents for Lots 351 and Lot 352 at the DENR-Cotabato office. They admitted however that they could no longer find records of these applications because the old DENR XII office located at the Provincial Capitol Hill in Cotabato City was burned down sometime in 2000.

government of Tulunan. He and other members of their family tried to invite the Rajahbuayan heirs to discuss their differences, but they (the heirs) never came. He wonders why the Rajahbuayan heirs are claiming that Lot 352 measures 400 hectares when the land actually measures 296 hectares only. They also wondered why the Rajahbuayans laid claims over the land only now when their elders Datu Bagumbayan Abpet and Datu Conte Mangelen have already passed away. Although they respect the agreement signed by their elders, they are sad that the heirs disregarded their invitations for a dialogue.

He says that some portions of the lands were eventually titled in the name of Abdul Maguid Limba, Aliben Limba and Teng Bagumbayan. They explained that the lots allocated to Abdul and Maguid were covered by one title and registered in the name of Abdul Maguid Limba, while those allocated to Ali and Ben was titled in the name of Aliben Limba.

Datu Mohammadali Mangelen’s Accounts Datu Mohamadali Mangelen described their first encounter with the heirs of Rajahbuayan Pasicaman as full of tension. However, after a series of mediation conferences facilitated by Land Management Director Brahim Andamen and Legal Officer Nasser Talipasan of DENR-ARMM, the discussion proceeded smoothly and was conducted professionally until they reached an agreement.

In 2006, while they were processing their papers for the titling of Lot 352 and adjacent Lot 351, DENR XII, CENRO Kidapawan informed them that a certain Mohammad Rajahbuayan came to their office and claimed that he and the other heirs of Pasicaman Rajahbuayan are the owners of Lot 352. DENR XII, CENRO Kidapawan invited them to their office regarding the claim of the Rajahbuayan heirs over Lot 352. They were also informed by the said office of the mediation conferences held at DENR-ARMM. Ultimately, they decided to set aside their application over Lot 352 and instead focus on processing the titling of Lot 351.

The respondents admitted that they were informed by Datu Guiaplos Ali that a complaint was filed against them by the heirs at the DENR-ARMM. They were likewise told that as their representative, the son of Datu Conte, Datu Ali Mangelen, had caused the signing of a Compromise Agreement in November 6, 2006 after a series of mediation conferences facilitated by the DENR-ARMM in order to settle amicably the land dispute.

When DENR XII informed them in 2006 about the claim of the Rajahbuayan heirs over Lot 352, Salem Bagumbayan went to validate the claims and the records presented by Bai Sarifa at the various offices of DENR XII (PENRO and CENRO) and the local

Datu Conte (now deceased) was said to have greatly influenced the respondents’ and their representative’s decision to 139

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settle the conflict amicably, and although all the respondents were not physically present during the mediation conferences and the actual signing, they respected the decision of Datu Guiaplos and Datu Conte Mangelen on the settlement because they were leaders and respected elders of the family.

cause they are the descendants of the Sultan of Malasila. They own the land by inheritance. Under government policies, the improvements that they and their ancestors introduced to the land, their prior occupation, patent applications and tax declarations are also evidences of their rightful ownership and claims on the land.

They all agreed that they will respect and abide with the commitment of Datu Guiaplos Limba based on the Compromise Agreement he entered into with the heirs of Pasicaman Rajahbuayan—whether the agreement is favorable to them or not. They have entrusted everything and all their rights to enter into agreement with Datu Guiaplos Limba.

The 69-year old Bai Kusan Rajahbuayan recalled that during the old days, any Moro, usually their relatives and her grandfather’s sakop (constituents/vassals) could occupy and cultivate any unoccupied land in their area but always with the permission of the Datus or Sultan. She said her ancestors never practiced selling lands to anybody. The extent of people’s land ownership then were identified and delineated through traditional landmarks such as rivers, various permanent trees planted and other traditional boundaries. Titling of land was not a practice. Land is passed on from generation to generation.

Datu Salem hopes that other Moro facing land conflicts will resolve their problem the same way that they did it—with due respect to the elders and Moro traditional method of settling land disputes. Based on their customs and traditions, elders are given the final say on major decisions. Majority of the Bagumbayan Abpet heirs believed that had the deceased not signed the agreement, the land dispute between them will continue indefinitely, which they would not like to see happen.

The heirs recount that Moros really have difficulty titling their land and reconciling customary laws and government policies on lands. Asked why Moros including them failed to consummate titling their lands, she and the other heirs enumerated the following as the reasons:

The local government units of Paglat, Buluan and General Salipada K. Pendatun (GSKP) were believed to be of great help in resolving the conflict. The officials of the said LGUs, particularly their Mayors and Barangay Chairpersons, can testify and trace who are the real owners of the land.

1.

Moros are very trustful of others. They are confident that the lands will not be taken by others. They believed that people who will take their lands by stealth will be cursed by Allah. 2. Moros’ ignorance of the law and procedures on land titling. 3. Moros are very generous in giving lands to their relatives.

Parties’ Perspective on their Land Rights The Rajahbuayan heirs believe that under customary laws and based on tarsilan, they are the rightful owners of Lot 352 beLand Tenure Stories in Central Mindanao

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4. Moros usually entrust the recording and titling of their lands to their relatives or some educated members of the community, even to the extent of asking them to register their lands in the names of the said persons.

be owners of a certain land who already died of hypertension because they were cursed by Allah. Majority of the respondents shared the views of Datu Ali. Datus and elders play a major in the traditional way of settling land disputes. Consultation is done before a decision is made. Many will be called to testify and the parties will be given a chance to defend themselves. It is not executed similar to a trial or litigation but conducted through mediation or arbitration facilitated by the Datus and the elders. In Damacling, conflict is usually submitted to the eldest and most respected person in the area. That person will summon the parties to appear for mediation or consultation because there was no Lupong Tagapamayapa ng Barangay118 then.

When Mayor Langkuno intervened to resolve the conflict, the Mayor consulted the elders in the area and refered to their tarsilan to trace and determine the rightful owners of Lot 352. In the series of mediation conferences conducted by Director Brahim Andamen of Land Management Bureau and Nasser Talipasan, Chief of the Legal Affairs Office of the DENR, they and the respondents were encouraged to settle the conflict using combined Islamic principles, customary laws, “tarsilan� and government rules on land dispositions. They believe that the use of Islamic laws, customs and traditions helped them in the speedy resolution of the land conflict. The agreement was later reduced into writing which was notarized by a lawyer.

When the Datu or the elders reach their decision, the parties will then immediately accede. During the old days, the Datus and elders were very honest and impartial because they know that they were always accountable to God for every wrong and unjust decision. They let justice and the best interest of many prevail.

The oldest respondent, Datu Ali Limba, 55 years old, described the Moro customary or system of land ownership in the following manner: customary law is that the ownership of the land will pertain to the one who was born on the land, occupied the land for years until he/she reached his/her old age and planted or introduced improvements/land marks to the land such as acacia, coconut or libi. Credible witnesses will have these facts and such ownership supported.

From his perspective, Chief Talipasan said that the successful resolution of the case is due to their combined use of conflict resolution strategies: Islamic practices integrated in the DENR’s manual of disposition of case, customary practices and coming up with a written and notarized agreement. If the parties are both Moro, they usually apply the Code of Muslim Personal Laws (CMPL).

The land will then be transferred to his/her descendants from generation to generation. Claiming land ownership when one knows he/she is not the rightful owner is sacrilegious. Datu Ali Limba said that he knew many impostors and pretenders to

Both parties respected the decision because of these strategies. An Islamic belief stresses the importance of the speedy 141

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disposition of a case, as justice delayed would be justice denied. Had they strictly implemented the government technical procedure, Talipasan said it would have resulted to enumerable delays and case backlog.119

The respondents believed that policies of the government worsened the land conflict. Because of the VOS under the CARP, many fixers and land speculators would go to Bureau of Lands, check the records of lands and find out if there are registered applicants over the lands.

Majority of the respondents believe that the traditional mode of settling land dispute is better than the present and modern system of resolution carried out by the government. Hence, they think that the traditional mode of settling dispute is still the best way of resolving conflicts. Datu Salem considers Shariah to be the best law because everything is complete in the Holy Qur’an where Shariah is based. The respondents respected every words of the late Datu Conte. When he said that they had to enter into settlement, they readily acceded to him. Based on their customs and traditions, elders are respected and given the final say on major decisions.

There are instances when records of the Bureau of Lands will show that there are no pending applications when in fact, said lands already have pending applications at other DENR offices and are already in the process of titling. In the Rajahbuayan case for instance, a subdivision survey and Lot Data computation from DENR have been approved as early as 1961, but another claimant have appeared and presented purported official documents. Salem said that the VOS program in Maguindanao has been suspended now because of the many fixers and speculators who made business by securing double titles over a certain land, and that even areas under water were sold through VOS. He shared that since the VOS operation had been suspended in Maguindanao areas, some would opt to have the lands situated there applied with patents and titles in North Cotabato in order that they can dispose of their lands through this government program.

Datu Salem hopes that other Moro facing land conflicts will resolve their problem the same way that they did it – with due respects to the elders and Moro traditional methods of settling land disputes.

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Decision by the Bureau of Lands Manila on the subject complaint filed by Bagua Mama Impao and 33 others against S.A. V-2445 (E-V-1134) of Caram Development Company, Inc., dated Jan. 04, 1988. 24 Ibid. 25 Transmittal of documents submitted on July 12, 1985 by Cipriano B. Catudan. 26 Ibid. 27 Ibid. 28 Report made on October 8, 1993 by Geroncio S. Sumogod, Special Investigator I and Macalaba Hadjitaib, Deputy Public Land Inspector. 29 Group Settlement Subdivision. 30 Report by Sumogod and Hadjitaib, ibid. 31 Memorandum for RTD DENR XII by CENRO Abraham D. Lominog on October 12, 1993. 32 Memorandum for RTD DENR XII by PENRO Cipriano B. Catudan on October 13, 1993. 33 Interview with Nasser Talipasan at Grand Menseng Hotel, Dec. 15, 2008. 34 Ibid. 35 Ibid. 36 Ibid. 37 A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf. This authority is intended to further the public trust, safeguard the general and economic welfare of a state's residents, protect residents from illegal practices, and assure that the benefits of federal law are not denied to the general population. States may also invoke parens patriae to protect interests such as the health, comfort, and welfare of the people, interstate water rights, and the general economy of the state. For a state to have standing to sue under the doctrine, it must be more than a nominal party without a real interest of its own and must articulate an interest apart from the interests of particular private parties. http://www.answers.com/topic/parens-patriae. 23

Endnotes Story 1: A Land Dispute between Moro Claimants and Christian Settlers in Impao, Isulan, Sultan Kudarat Key interview with Nasser and Rakman Talipasan, Sept. 11, 2008 in Cotabato City. 2 http://lmb.denr.gov.ph/history.html 3 Draft Case Study “Talipasan Impao vs. Isulan Group Settlement subdivision. fn: Isulan_Talipasan Impao_Matrix on Case Study Questions – submitted by Atty Nerissa Dalig. 4 Letter of Rakman Talipasan addressed to the DENR Secretary dated October 3, 2006, and to the DENR XII RED dated October 16, 2006. 5 Ibid. 6 Letter of Rakman Talipasan to DENR XII RED dated Oct. 16, 2006. 7 Interview with Nasser and Rakman Talipasan September 11, 2008. 8 Ibid. 9 Ibid. 10 Ibid. 11 Letter of Rakman Talipasan, loc. cit. 12 Letter of Rakman Talipasan to DENR XII RED dated October 16, 2006. 13 Letter of Rakman to DENR RED dated March 12, 2007. 14 Remark made by Tyrone Rosal, current barangay secretary during FGD on Jan. 12, 2009. 15 Barangay Impao Profile. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid. 20 Most of the key personnel who were privy to the actions of the DENR related to the tenurial developments in Lot 26 SWO 17260 are no longer connected with the agency. Although the DENR, as a matter of policy does not purge records as other government agencies every five years do, the DENR Region XII had relocated at least twice, making retrieval of documents a daunting task. The reconstruction of this section is based on the available documents and informal interviews made. 21 Decision by the Bureau of Lands Manila on the subject complaint filed by Bagua Mama Impao and 33 others against S.A. V-2445 (E-V-1134) of Caram Development Company, Inc., dated Jan. 04, 1988.. 22 The Decision cited “Bagua Mama and 33 Others” at the subject heading as claimant-complainants. These were not mentioned in the Batasang Pambansa resolution that DENR acted upon. 1

Story 2: A Land Dispute between Moro Ancestral Land’s Claimants and a Christian Settler in Barangay Rangeban, Midsayap, Cotabato “Local Conflict Resolution.” Presentation of Col. Julieto D. Ando GSC (INF) PA, ACUCS for CMO, U7, EASTMINCOM, AFP, delivered Eden Nature Park, 21-24 July 2009 during the occasion of the Training on Conflict Resolution for LGUs. 39 “Kin of MILF members are natives of the barangays while Bantay Bayan members are protecting the interests of settlers who claim ownership of lands there,” according to MILF spokesperson Eid Kabalu as cited by Mind38

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the Government. This provision was used by the RTC Judge in his ruling on Civil Case 922 as basis for saying that the PEEI had no standing to cause the cancellation of the titles obtained by the Akang heirs. Thus, the court ruled in favor of the Akangs as the owner on record on the disputed piece of land. 53 In 1951, the Board of Directors of the Land Settlement and Development Corporation or LASEDECO started the opening of a settlement in an area formerly under the jurisdiction of the National Land Settlement Administration (NLSA) as a reservation. The LASEDECO had surveyed and parceled out home and farm lots and constructed municipal and barrio roads and installed electrical light generators. It had brought in hundreds of farm tractors which uprooted big tress, cleared obstruction, plowed, cleaned and harrowed the wide stretches of the area. What was once a marshy and wild expanse inhabited by snakes, crocodiles, wild cattle, swine and deer had welcomed the first sprouts of seedlings of corn and rice, thus blanketed the horizon in endless green. When a group of 72 World War II Veterans, led by Venancio Magbanua, Post Commander of Norala had come and settled in the area, on September 7, 1950, a Kalawag root crop used as food coloring was found out abundantly growing. Thus, the early settlers decided to call and register the settlement as “Kalawag Settlement District of LASEDECO”. The area comprising the town site covers approximately 400 hectares. (History of Isulan, http://www.isulan.gov.ph, as seen on March 16,2009). 54 Civil Case 922 Judgment of German M. Malcampo, Regional Trial Court Judge, dated March 19, 2001, citing TSN pp. 27-28 May 3, 1999 55 The original loan amount was in the amount of P800,000. Additional loan amount was filed using the Akang’s free patent, TCT 35549. on Lot 3, one of the two lots in question. 56 Transcription of Key Informant Interview of Bai Nelly Akang; interview conducted by Dr. Boy Kadil, Prof. Reydan Lacson, and Tony Aba, April 27, 2008 in Isulan, Sultan Kudarat. 57 This name is associated with the history of Isulan itself. Based on oral histories, at the start of the 19th century, there was a battle between two Sultans. A sultanate in the adjacent town of Maganoy under Sultan Utto with a strong army decided to attack a small principality under the leadership of Sultan Mofac. Outnumbered by twenty to one, Sultan Mofac, astride a white horse, decided to fight with his men notwithstanding the odds against him. The battle cry of Sultan Mofac was”Isu-Silan” which, when translated means “they are there, advance”. This intrepid although suicidal show of force and determination so impressed Sultan Utto that in order to save lives on both sides, he decided to resolve the issue by negotiation, placing Sultan Mofac and his principality under his protection. Isulan then derived its name from “Isu-Silan” which also means by analog “PROGRESS”. In the passage of time “Isu-Silan” was shortened to Isulan which is its present adopted name. The Christian Settlers would have preferred to decide the name of their new town by referendum.

anews in “Hundreds flee as Army, militia clash with MILF in Midsayap.” 27 January 2007. 40 “A four-day armed confrontation forced around 6,000 people to evacuate as both parties were reported to have massed troops, shelled mortals and launched air strikes, Bantay Ceasefire said in its January 29 report.” Source: “Civilian peace group: Land dispute caused Midsayap skirmishes.” Mindanews. 31 July 2007. 41 JMAT is composed of representatives from GRP CCCH, MILF CCCH, IMT and Bantay Ceasefire. 42 Ando, see above (footnote 1). 43 Information gathered from a Focus Group Discussion conducted on 29 December 2008 at Dag’s Resto in Midsayap, North Cotabato. Present were the following: Abdulrakman Lanson, Mamasalalang Panansang, Edsel Digandang, Evelyn Lanson, Barangay Chair Gardoke Lanson, Mosiba O. Ulogan, Lintang Kusa, and Site Lanson.) 44 Interview, Gardoke Lanson, 29 December 2008. 45 Ando, (see footnote 1). 46 Ibid. 47 Act No. 2874 Second Public Land Act in 1919 provides that “Non-Christians or specifically “Moros and the wilds tribes” were only entitled up to 10 hectares while other people (settlers) Filipino allowable hectarage to apply for homestead up to 24 hectares. 48 Act No. 2874 Second Public Land Act in 1919 provides that “Non-Christians or specifically “Moros and the wilds tribes” were only entitled up to 10 hectares while other people (settlers) Filipino allowable hectarage to apply for homestead up to 24 hectares. 49 Ando, (see footnote 1). Story 3: A Land Conflict Between a Christian Academic Institution and a Moro Family in Isulan, Sultan Kudarat Court records refer to these lots as Lot 1 covered by TCT No 35550 (Akang heirs), measuring 9,653 sq. m (.9653 hectares) and Lot 3, covered by TCT No 35549 (Akang heirs). 51 Citizen Military Training is mandated part of secondary school curriculum in the Philippines. 52 Reversion, as defined by the Philippine Law Dictionary, means to overthrow; set aside; make void; annul; repeal; revoke; To change to the contrary, or to its former condition (Hilario v Hicks, 40 Phil 583). In this case, reversion would mean the revocation of the title issued to the heirs of Akang Simpal. Section 101 of the Public Lands Act vests only in the Solicitor General or the officer acting in his stead the authority to institute the action on behalf of the Republic for the cancellation of title and for reversion of homestead to 50

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Liquidators and the lands (whose awards, allocations and/or assignments have been cancelled and/or annulled) shall be disposed of and awarded through negotiated sale to qualified applicants, payable for a period of not more than five (5) years. This Act was the basis for the Miscellaneous Sales Applications, through a negotiated sale with the BOL, by the PEEI over the school site and the adjacent land used for its playground and CMT grounds. Indeed, their Miscellaneous Sales Applications had been issued favorable recommendations by the BOL. The BOL however does not award land titles, but merely recommend issuance of titles to land under its jurisdiction. 64 Court records indicate that this actually happened in December 1996. 65 Exhibit TT-24, as cirted by RTC Judge Macalampong in his ruling on Case 922, page 50. 66 Testimony of Mayor Conrado Buencamino, p.22 of the Judgement on Case NO 922 penned by RTC Judge German Malcampo 67 Evidences presented in court show that PEEI offered to buy this four hectares of land for P2,500. Then Mayor of Isulan, Datu Sema Ampatuan, had counter offered the amount of P3,000 in a letter dated January 10, 1961. The counter offer was accepted by PEEI, hence a Deed of Conditional Sale was executed on June 14, 1961 between the Municipal Government of Isulan, represented by Acting Mayor Dionision Lotilla as VENDOR, and the PEEI, represented by Jared Barker, Sr. as VENDEE. As stipulated in said Deed of Conditional Sale, upon fulfillment of the purchase price of the said four hectares parcel of land, a definite or absolute deed of sale would be executed 68 PEEI Board Resolution No. 1 Series of 1982, which provides that: “ …….the Board of Trustees of the PEEI to authorizes Mr. Petronio Cagas to apply for and in his behalf and in his name the title for a three hectare lot subject of Resolution No. 19 Series of 1974 of the Municipality of Isulan, Sultan Kudarat” 69 Testimony of Alicia Flores, Records Officer of the DENR-CENRO, Tacurong Sultan Kudarat, pp 27-30, of the Judgment on Case No. 922 penned by RTC Judge German Malacampo. 70 Board of Liquidators Resolution No 282 Series of 1989. The total amount to be paid was P15,539.99, paid up on June 22, 1989. 71 Exhibits Q, Q-1, Q-2, and Q-3, Exhibit II-4, as testified by Alicia Flores, cited in the Judgment penned by RTC Judge Malacampo on Case 922. 72 Both lots are part of Lot No 50, SWO-17260, which were subdivided into three lots, Lots 1,2, and 3 containing a total area of 23,648 square meters; Lot 2 is a road lot. 73 Exhibit II, Exhibit TT of Case 922 as cited by Judge Macalampong in his ruling dated March 19, 2001 74 A public land application on a parcel of land cannot be assigned a number if there is an existing land application over the same parcel of land, unless there is a quitclaim deed or transfer of right over the said parcel of land in favor of the applicant.

However, a revered and feared Muslim leader, Datu Kudanding Camsa, had decided to name it by himself. (History of Isulan, http://www.isulan.gov.ph as seen March 16, 2009). Thus, Bai Nelly Akang’s family on her father’s side and on her husband’s side are both respected in the Muslim world. 58 Sometimes referred to as Datu Kudanding by parties. 59 Case write-up written sometime 2008 entitled “Barker vs. Bai Nelly AkangCamsa” by Dr. Boy Kadil, previous researcher on this case contracted by the Local Governance Support Program in ARMM and the Kadtuntaya Foundation, Inc. It is assumed that the case write-up was based on interviews with the Akang family; however, as of this writing, transcription of these interviews were not available to the case writer and were deemed lost. 60 Transcription of Key Informant Interview of Mr. Jabe Barker; interview conducted by Dr. Boy Kadil, Prof. Reydan Lacson, and Tony Aba on April 25, 2008 in Isulan, Sultan Kudarat. 61 The government of President Manuel Quezon established the Rice and Corn Production Administration in 1950 as part of its bid to promote rice and corn production. In the same year, the RCPA and the Agricultural Machinery and Equipment Corporation, whose function was to supply farmers with farm machinery and equipment, were merged to form the LASEDECO. The new agency became the implementor of the resettlement program of the government. By the end of its mandate, it had resettled 1,500 families (Jubair, 1999) 62 Also referred to as Datu Kudanding in some accounts. 63 Commonwealth Act 691 (October 1945) provides for the free distribution, under certain conditions, of lots of 24 hectares each of agricultural land of the public domain. Under this Act, any citizen of the Philippines or of the United States of America more than eighteen years of age and who does not own more than twenty-four hectares of land in the Philippines may apply for the cultivation of and obtain free title of a lot of agricultural land of the public domain, which is neither occupied nor reserved for public purposes, having an area of twenty-four hectares. Republic Act No.1160 (June, 1954) or the NARRA program, further implements the free distribution of agricultural lands of the public domain as provided for in Commonwealth Act 691. It abolished the Land Settlement and Development Corporation (LASEDECO) and created in its place the National Resettlement and Rehabilitation Administration (NARRA). Approximately 20,500 families of former members of the Hukbo ng Bayan Laban sa Hapon (Hukbalahap or People’s Anti-Japanese Army) were resettled from 1954 to 1963. Under this Act, all assets of the LASEDECO, including farm machinery and equipment, shall be turned over to a Board of Liquidators (BOL) to be sold at public auction, the proceeds to be used in paying off its accounts with commercial firms and for loan to settlers or cooperative organizations of settlers. RA 1160’s Sec 10 provision on the Board of Liquidators was later amended by Presidential Decree 671 (March 1975) to read: “assets of the LASEDECO shall be turned over to the Board of 145

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Testimony of Account Officer Rene Gallaga, PCIB, as cited by Judge Macalampong in his ruling on Case 922. 76 Exhibit 10-PCIBank, as cited by RTC Judge Macalampong in his ruling on Case 922. 77 Ibid. 78 TSN p 47 January 27, 2000 as cited by RTC Judge Macalampong in his ruling on Case 922, p 45. 79 Judgment penned by RTC Judge Macalampong on Civil Case 922 penned March 19,2001, page 19. 80 Section 8 of the 1973 Philippine Constitution states that “all lands of public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential, or resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years…” Section 3 of the 1987 Philippine Constitution states that “Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years….” These Constitutional provisions were used by Baguindali Karim, LMS Chief of the DENR, as bases for not acting on the Miscellaneous Sales Application of the PEEI, and in recommending for the approval of the Free Patent Application of the heirs of Akang Simpal instead. These provisions were also cited by the Regional Trial Court as bases in its ruling on Civil Case 922 in saying that 1) the Municipality of Isulan’s Resolution No. 19, dated August 20, 1974, was unconstitutional, and therefore null and void; 2) the Municipality of Isulan had no authority to dispose of/distribute public lands; such authority was vested on the Bureau of Lands; 3) PEEI had not established ownership over the lands before the effectivity of Constitution 81 Judgment penned by RTC Judge Macalampong on Civil Case 922 penned March 19,2001, page 51. 82 Ibid. 83 Ibid, pp. 53-54.

Feb. 3, 2009. Ibid. 88 Interview with Timuay Damasco. 89 Karl Gaspar documented the story of Tabunaway Mamalu, an oral tradition among the T’bolis, Teduray. Kalangan, Arumanen- Manobo in his book “Mapagpakamalinawon.” The story tells of the origins of the original inhabitants of Mindanao as having a common ancestry in the brothers Tabunaway and Mamalu. Tabunaway converted to Islam while Mamalu continued with indigenous religious practices. It sheds light on the closeness and harmonious co-existence of the Lumad and Moro Peoples. It also explains the territories respected by both peoples. (Br. Karl Gaspar, Mapagkamalinawon, published in 2002, Alternate Forum for Research in Mindanao, Catholic Relief Services/Philippines (Davao City, Philippines, Manila, Philippines). 90 Interview with Kumander Iskak on February 21, 2009 in undisclosed MILF stronghold. 91 Ibid. 92 Draft case writeup by Atty. Sanz. 93 Interview with Kumander Iskak. 94 Focus Group Discussion with Moros conducted on February 3, 2009 in Poblacion Carmen, Cotabato. 95 Interview with Kumander Iskak 96 FGD with Moros. 97 Ibid. 98 FGD with Moros. 99 Interview with Kumander Iskak. 100 Interview with Timuay Damasco. 101 FGD with Moros. 102 Interview with Timuay Damasco. 103 FGD with Moros. 104 Based on the Sketch Plan of Lot 352. PLS-700 as prepared for the Heirs of Pasicaman Rajahbuayan and Datu Bagumbayan Abpet et.al , the land situated in Barrio of Damacling (now) Popoyon,, Municipality of Buluan (now) Tulunana, , Province of Cotabato (now) North Cotabato and containing an area of 2,963,483 square meters while based on the Sketch Plan as prepared for the Datu Bagumbayan Abpet et. al,, the land is situated in Barrio District of Damacling, Municipality of Buluan, Maguindanao and containing an area of 2,963,483 square meters. 105 As shown by the 1918, 1930, 1970 Censuses graphically illustrating population shifts in Cotabato as cited by Prof. Rody Rodil in his presentation entitled, “Finding New Paths to Peace: Ancestral Domain and Moro Self-Determination” at the Forum sponsored by the United States Institute of Peace, Asian Institute of Management Conference Center, Makati City, June 19, 2007. 106 The defunct Legislative Assembly for autonomous regions under the Mar-

75

87

Story 4: A Land Conflict Case between Moros and the Aromanon Manobo Tribe in Carmen, Cotabato Documents from ancestral land claim of Aromanon Sinumburan Tindeg Bansa, a Manobo group based in Barangay Aroman, Carmen, Cotabato. 85 Agency Profile, http://ncip.gov.ph/agency_profiledetail.php?id=1. 86 Interview with Timuay Damasco held in Sitio Kilabaw, Barangay Kimadzil on

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tence in 1954 by virtue of RA 1160, the short-lived Land Settlement Development Administration or LASEDECO took over from National Land Settlement Authority and RCPA. It was able to open Tacurong, Isulan, Bagumbayan, part of Buluan, Sultan sa Barongis and Ampatuan, all in Cotabato. (Rodil, Q&A) ( Source: p. 105, B.R. Rodil, A Story of Mindanao and Sulu in Question and Answer). NARRA administered a total of twenty-three resettlement areas: nine were in Mindanao; one in Palawan; five in the Visayas; one in Mindoro; seven in mainland Luzon. (Source:B.R. Rodil, A Story of Mindanao and Sulu in Question and Answer, Publisher: MINCODE, Copyright 2003 by B.R. Rodil and MINCODEPART VII,The Displacement and Dispossession of the Lumad and the Moro people on their own lands. Page 105:) In 1963, it had already resettled 20,500 families at the cost of P44.5 million (Salah Jubair, Bangsamoro: A Nation Under Endless Tyranny (Third edition, updated and expanded). Kuala Lumpur: IQ Marin Sdn Bhd ). When the Agricultural Land Reform Code was signed into law in August 1963, NARRA was replaced by the Land Authority. For the first time, resettlement became part of the general program of the land reform. Under the Land Authority, about 2,400 settlers were resettled from 1963 to 1971. (Source: Castaneda, as cited in the book of Rad Silva, page 45-46 of Two Hills of the Same land). 114 Based on the Certification issued on September 1, 2006, by Datu Nguda Guiampa, Al-Hadj, CENRO 1B, Shariff Aguak, Maguindanao stating that as far as its office is concerned, CSD-12-002473-D situated at Brgy. Damacling, Buluan, Maguindanao is not among the approved survey plan nor no available records has been filed involving the said property of land. Based also on the Certification issued on September 5, 2006 by Abdillah N. Akmad, OIC-PENR Officer, Office of the Prov’l Environment & Natural Resources, Maguindanao Province that the approved Survey Plan CSD-12-002473-D, situated at Brgy. Damacling, Buluan, Maguindanao has no available records on file at its office…The certification was issued upon the verbal request of Board Member Yasser Ampatuan of the 2nd District of Maguindanao. 115 Based on KII with Nasrudin Talipasan, Chief , Legal Affairs Division of DENR-ARMM on May 16,2008, and Mayor Langkuno on June 3, 2008 at the Paglat Municipal Hall. 116 See Letter complaint of Bai Sarifa P. Rajahbuayan filed with the DENRARMM dated September 19, 2006. 117 See Investigation Reports of Nasser Talipasan dated October 5, 2006 and Datu Nguda Guiampaca, CENRO 1B, Sharriff Aguak, Maguindanao dated October 16, 2006. 118 Village mediation system, as provided for by the Local Government Code of 1991. 119 Interview by Atty. Charina Sanz with Nasser Talipasan at his office on May 16, 2008.

cos government. Region IX and Region XII in southern Philippines then each had a Sangguniang Pampook, composed of twenty-seven members and includes seventeen representatives elected from the different provinces and cities of each region, and a sectoral representative each from among the youth, agricultural workers, and non-agricultural workers (industrial labor) of each region whose qualifications and disqualifications are the same as Members of the Batasang Pambansa (National Assembly). 107 The following parties and heirs were present during the focus group discussion conducted by Atty. Nerissa O. Dalig and Esmeralda Simpal on January 6, 2009 at BJN Restaurant, Buluan , Maguindanao: Salem Bagumbayan, 59 years old; Benzayb Limba; Malipedted Limba , 56 yrs old; Kalima Limba (Wife of late Ben Limba), 52 years old; Datuali Limba, 55 years old; Rahib Limba; Yasser Bagumbayan; Hji. Mohammad Ali Limba; Mokammad Ibrahim (Datu Tero or Abdul Limba’s representative); Hji. Nasser Limba, 33 years old; Rocky Salik (Tito Bagumbayan’s uncle); Hji. Suharto Amad, Field Coordinator and relative of the Bagumbayan Abpet. 108 Land holdings covered by the Comprehensive Agrarian Reform Program (CARP) in the Philippines are acquired through different modes of acquisition, among which are Compulsory Acquisition (CA) and Voluntary Offer to Sell (VOS). CA is the mandatory acquisition of all agricultural lands for distribution to qualified agrarian reform beneficiaries. VOS is a scheme wherein landowners come forward and voluntarily offer their agricultural lands for coverage. In any of these modes, landowners receive just compensation from the government, depending on the result of the land valuation. 109 Most Indigenous Peoples in Mindanao, including Moros usually called settlers either from Luzon and Visayas, “bisaya”. 110 From this, it can be inferred that the entry of the settlers took place sometime in the 1950’s when Luminog Mangelen’s political career began. 111 As recounted on Peace and Development Community Popoyon profile of Act for Peace Program, United Nations Development Programme. 112 See sketch plan of Lot 352, Pls-700 as prepared for the heirs of Pasicaman Rajahbuayan represented by Sarifa Rajahbuayan 113 NARRA was created on June 18, 1954 pursuant to RA 1160 to help speed up the free distribution of agricultural lands of the public domain to landless tenants and farm workers who are citizens of the Philippines and to encourage migration to sparsely populated regions pursuant to the fundamental policy of the government to promote the level of production, employment and living standards of the people. In March 1949, the Rice and Corn Production Administration (RCPA) was created by the government to promote rice and corn production. It was also involved in resettlement. It was responsible for opening Buluan in Cotabato, and Maramag and Wao at the Bukidnon-Lanao border. Before the National Resettlement and Rehabilitation Administration (NARRA) came into exis147

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Positioning Analysis of Land Conflict Cases

T

he objective of positioning theory, as a social psychological theory, is to surface and understand the underlying mindsets or perspectives of the sources of written and verbal statements. The process is to identify and analyze the apparent storyline, positioning of self and other people, and intent of the statements. Doing this, one will be able to understand the conflict from the perspectives of all parties, which is critical in bringing the parties to conflict resolution.

divergence is coming from. Though the ultimate outcome of this analysis rests with the parties themselves and their supporters, the desired outcome is the kind of understanding that moves towards transformation of mindsets and relationships, such as a participatory non-violent reconciliatory reconstruction of storylines and positioning. This principle is further discussed in the concluding section of this paper. Section 5 expands the discussion of the land conflict cases in Section 4 by providing a positioning analysis of the statements of the parties during the interviews. All of the land conflicts in Section 4 involve a Moro individual or group as one of the parties. In three of these conflicts, the other parties are Christian settlers. In another conflict, located in Carmen, North Cotabato, the other party is an indigenous people. In the fourth conflict, located in Paglat, Maguindanao, both parties are Moro. The analysis of these land conflicts are presented here in three parts. The first part focuses on two cases where the parties opposed to the Moros are Christian settlers; the second part is on a land

It was from this perspective of positioning theory that the five land conflict stories in Section 4 were gathered and presented. Section 4 presents the chronology of events related to the conflict from the perspective of each party. The description of the versions of the parties on the chronology of the conflicts ends with an analysis of the converging and diverging points of the storylines. The intent of this analysis is not to further fuel up the conflict, but to make people aware of where the conflict or 150

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conflict between Moro and indigenous people; and the third part presents a land conflict where both parties are Moro.

Table 9 Positioning Analysis of Statements of Moro and Christian Settlers on the Causes of Conflict in Midsayap and Isulan Land Dispute

Land Conflicts between Moro Families and Christian Settlers A review of the transcripts of interviews and focus group discussions of the Muslim and Christian parties of the land conflicts in Isulan, Sultan Kudarat and Midsayap, Cotabato pointed to three common themes. These are: a) Moro/settlers’ (depending on who was speaking) rights to disputed land; b) causes of the conflict; and c) conflict resolution efforts or measures. We merged the first two themes as the statements related to these appeared to project the same underlying storyline. In all, we gathered two sets of positioning patterns.

From Moros’ Statements

Theme 1: Rights to disputed land and causes of the conflict Table 9 presents the contrasting storylines and positioning of the Moro and Christian settlers in two land conflicts with regard to their land claims and perspectives on the causes of the conflict.

Storylines

Muslims were forced by war to leave their ancestral lands. During the war, the Christian settlers occupied Muslims’ lands and connived with the government to title lands to their (Christian settlers) names. Muslims protested against this action of Christians and the injustice done by government. Muslims are back to reclaim their ancestral lands from Christian settlers, and seek justice from government.

By developing the then-forested land, buying the land from Muslims, being its occupants for more than 20 years, and having secured land patents, Christian settlers are now the legal owners of subject lands. Muslims are only after the Christian settlers’ money and Muslims thought Christians do not have land titles over subject land, which was why Muslims are harassing Christian settlers to leave the land. Christian settlers will defend their land rights.

Position of Muslims in the Storyline

Rightful landowners Victims of Christians settlers’ deception and greed, and of government’s injustice;

Intruders Harasser, interested in Christian settlers’ money

Position of Christians

Squatters Deceptive

Rightful landowners Harassed by Muslims to leave occupied land

Intentions or Outcome

Reparation of injustice (i.e., land dispossession) committed by Christian settlers and government to Moro

Clamor for Moros’ recognition of Christian settlers’ right to own land and to be considered as native inhabitants

Theme 2: Conflict Resolution Efforts and Measures The second positioning analysis, which was drawn from the second common theme of the statements of Muslims and Christian settlers, depicts the perspectives of the two parties on how the conflict should be resolved. Converging or compatible meaning is interpreted from these storylines. Table 10 presents a positioning analysis of the statements of both parties regarding conflict resolution.

The positioning analysis shows two contrasting storylines – i.e., Moros’ reclaiming of their ancestral lands on one hand, and Christian settlers’ defense of their occupied lands on the other hand. In these storylines, the parties position the other party in a negative light. Expected is the rejection of these positions. The positioning analysis also shows that the underlying meaning or intentions are not conflicting and can be reconciled.

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From Christian Settlers’ Statements

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Land Conflict between Moros and Indigenous People In the conflict between Moro and the tribe, Ilianon Aromanen Manobo, in Carmen, Cotabato, the Moro group is positioned similarly as the Christian settlers of the two previous cases. Here, the subject land is an ancestral land of the Manobo, whose former leader allowed the Moro group to occupy some portions of their land. Like the Moro in the land conflict cases with the Christian settlers, the Manobo tribe is now claiming back a portion of their lands. This is however not because the Moro were suspected of deceptively claiming landownership through land titling as the Moro accused the Christian settlers in the two previous cases, but because the Moro allegedly attacked a Manobo leader (son and successor of former leader) and killed his cousin during an offensive of the Moro rebels against the Philippine marines. The attacked Manobo leader thus accused the Moro of lack of debt of gratitude. On the other hand, a Moro leader described the incident as an accident and committed to respect the authority of the Manobo leader as a tribal leader. Both expressed openness to a peaceful resolution of the conflict.

Table 10 Positioning Analysis of Statements of Muslims and Christian Settlers on Conflict Resolution in Midsayap and Isulan Land Disputes From Moros’ Statements

From Christian Settlers’ Statements

Storylines

To resolve the conflict nonviolently, Christian settlers should return Muslim lands, and should be compensated by the government; however, if the Christian settlers do not have other place to go, then Muslims and Christians should share lands and establish a climate of trust and understanding.

It was the government who urged Christian settlers, from Luzon and Visayas, to go to Mindanao and occupy lands. The government should resolve this land conflict between Muslims and Christian settlers in accordance with law.

Position of Moro

Benevolent landowners

Victims of government resettlement program

Position of Christian settlers

Recipient of the benevolence of Muslim landowners; Entitled to receive compensation

Victims of government resettlement programs;

Intentions or Outcome

Declaration of disputed land as Muslim land, but openness to non-violent resolution of land conflict

Demanding government action for the resolution of the land conflict

In the above table, the storylines of both the Moro and Christian settlers are interpreted as projecting a message of openness to non-violent conflict resolution. However, if we review the statements of the parties during the interviews, their statements are more loaded with themes on the causes of the conflict, rather than with themes on the process of conflict resolution. This means that all of the parties tended to talk more about the causes of the conflict than on measures to resolve the conflict. This suggests a need to provide more stimuli to drive the parties to talk more about conflict resolution. This can be by providing opportunities for sharing of conflict resolution options between and among parties of land conflict cases in the communities.

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The following thematic and positioning analysis of the utterances of the Manobo and Moro leaders during separate interviews aimed to describe the appearing perspectives and predisposition of both leaders on the conflict during the time of the interviews. The statements of the Manobo leaders can be summarized into eight themes. Of these themes, the most frequently mentioned was related to the Moro’s attack on the Manobo leader and the killing of his cousin, and the betrayal felt by the Manobo. The next two themes were about the events related to the 152

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conflict and the readiness of the Manobos to fight for their land rights and protect themselves from the Moro. From these statements, we inferred their storylines and positioning. The storyline of the Manobo leader is centered on the attack of the Moro rebels and the killing of his cousin as a betrayal of the trust and generosity of the Manobos. In this storyline, the Manobo leaders positioned themselves as the betrayed and aggrieved party, and they positioned the Moro as villains and traitors. Along this storyline, the effect or meaning of their action to claim back their lands from the Moro was an expression of their hurt feelings or grief, and their demand for reparation over the attack and killing of his cousin.

land located in the boundary of Paglat, Maguindanao and Tulunan, North Cotabato. This land conflict is considered a resolved case and is added in this research so as to provide a model of land dispute resolution between and among the Moros. Three factors moved the two Moro clans to resolve their land conflict amicably. First was the cost, in terms of money and time, of bringing their case to the court. Some parcels of land within the disputed area were already titled in the names of the heirs of Bagumbayan Abpet, and the cancellation of these land titles, which were adjudged to be fraudulent, based on evidences of Rajahbuayan and testimonies of LGU officials, would require a court order; this may take years and even decades to reach. Second is the idea that it would be better to lose a portion of the land to other Moro parties rather than to lose the whole to Christian settlers. It was not, however, clear in the discussion how Christian settlers will have access to the land if one of the Moro parties will lose the land case. Perhaps because of this, the heirs of Bagumbayan contended that they would seek for the prioritization of their relatives, rather than of Rajahbuayan, in the listing of the beneficiaries of the registration of their occupied lands under the ‘voluntary offer to sell” (VOS) scheme of the Comprehensive Agrarian Reform Program (CARP). They understood, however, that the compromise agreement entered into by their elders was a done deal. The third factor is related to the latter, which is their respect for the decisions of their elders, whether they agree or not with the provisions of the compromise agreement.

On the other hand, the storyline of the Moro leaders was that the conflict was due to the 2000 all-out-war of the government against the Moro and that the attack on the Manobo leader and the killing of his cousin were not premeditated. In this storyline, they positioned themselves as incapable of deliberately hurting the Manobos. They positioned the Manobos as their kin, who they should not be at war with. They also positioned the cousin of the Manobo leader as a victim of a mistaken identity. Along this storyline and positioning, their statements about the importance of their on-going negotiations, request for the assistance of LGSPA for the success of the negotiations, and their apprehensions on the possible effects of the interviews can be best understood. The meaning or effect of all these actions is their desire to re-establish peace with the Manobos.

Land Conflict between Two Moro Clans Presented here is a dispute between two Moro clans – the Rajahbuayan clan and the heirs of Bagumbayan Abpet—over parcels of

From the interviews with representatives of the two parties, we identified some conflicting utterances that need to be 153

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representatives of the two parties. Positioning analysis follows this table.

worked out for the sustainability of the achieved agreements. Table 11 presents a summary of the conflicting utterances of the Table 11 Conflicting Utterances of the Rajahbuayan Clan and Heirs of Bagumbayan Abpet Themes Location of the disputed land

From the Statements of Rajahbuayan Family Lot 352 is located at Barangay Popoyon, Tulunan, North Cotabato

From the Statements of Bagumbayan Heirs Lot 352 is located at Barangay Damacling, Paglat (formerly Buluan), Maguindanao Popoyon is different from Damacling, and is not part of Paglat. Popoyon is located at the boundary of Tulunan, North Cotabato, and Paglat, Maguindanao. If there is overlap between Damacling and Popoyon, the overlap area is only around 10 to 20 hectares.

Conduct of ocular inspection

DENR did ground inspection and consulted the elders in the community.

Ocular inspection will show that land does not belong to Rajahbuayan. (This statement suggests that ocular inspection was not done and elders in the community were not consulted.)

Knowledge of the Other Party

Bagumbayan clan is from Buluan, not from the contested land.

Rajahbuayan clan is from Tuluan, far from the contested land.

Members of Rajahbuayan clan do not know any of Bagumbayan heirs.

The Bagumbayan heirs know only one member of Rajahbuayan clan, Datu Bides.

Datu Luminog Mangelen, a predecessor of Datu Salipada Pendatun as congressman, is married to Bagumbayan Abpet. Bagumbayan may have been able to obtain titles on the land due to political influence of Datu Luminog.

During the war (disturbance), Rajahbuayan left the area, but they did not own land in the area.

Rajahbuayan also suspected the late Datu Guiaplos Limba and Salim of Bagumbayan clan, who are assessors, to have a hand in the titling of the land. Size of land

Land is 400 hectares, but only 225 hectares of this land is in the name of Bai Kusan.

Lot 352 covers 296 hectares, not 410 hectares as claimed by Rajahbuayans.

Present condition of Lot 352

Present occupants are relatives (cousins) of Rajahbuayan.

Present occupants are the Bagumbayan clan.

Basis of Land Claims

Rajahbuayan were the occupants of disputed land, but they left the area long after Christian settlers came in 1948 but long before the Ilaga came in 1972 (Sarifa said 1968); they were not clear on exact year they left the area.

Bagumbayan clan has been the occupants of Lot 352 since before the Japanese came in the 1940s; they temporarily left the area because of floods.

Rajahbuayan has supporting documents, e.g., 1971 approved land survey with Bai Kusan registered as survey claimant, attached to the land survey is free patent application of Bai Kusan, and LGU (Mayor and barangay chairperson certification of correctness of claims of Rajahbuayan).

Bagumbayan clan developed the area and planted coconut trees, acacia, bamboos, and other permanent trees. When there are no floods, they plant rice and corn in the area. They also catch fish in the Liguasan Marsh, which is part of Lot 352.

Mayor Langkuno of Tulunan, who is a relative of Rajahbuayan, testified in favor of Rajahbuayan and issued certification supporting Rajahbuayan.

Bagumbayan is in possession of a subdivision plan/map, and titles.

DENR Legal Counsel advised Rajahbuayan that they had a strong case because of convincing evidences.

Based on Tarsilah of elders, land belongs to Datu Kunti and not to Rajahbuayan.

Protests against Other Side's Claims

Land documents of Bagumbayan (e.g., subdivision plan/map, titles, Rajahbuayan's waiver of rights) are fabricated and did not pass through DENR. Subdivision plan was issued before the approval of PLS, and therefore was fake.

Why did the Rajahbuayan start to claim land only now, when the Bagumbayan elders have already died?

Compromise Agreement

Bagumbayan will register three titled lands under VOS with Rajahbuayan as beneficiary. Rajahbuayan will pay amortizations with the Land Bank.

13 lots with approved titles will go to Bagumbayan, and 8 lots with unapproved land titles will go to Rajahbuayan.

Rajahbuayan cannot claim the untitled lands, according to LMB Director Danny Andamen.

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From the conflicting statements of the two parties, contrasting storylines can be drawn. The storyline of the heirs of Bagumbayan is that the Rajahbuayan has erroneously identified their occupied land as their (Rajahbuayan) claimed land, and that the heirs of Bagumbayan can prove this if an ocular inspection is undertaken. In this storyline, the heirs of Bagumbayan positioned their selves as the rightful landowner, and they positioned the Rajahbuayan clan as misguided, incorrect, and therefore, not the owner of their occupied lands. Their expression of desire to review the compromise agreement can therefore be taken to mean their non-acceptance of the claims of Rajahbuayan. On the other hand, the storyline of Rajahbuayan is that the Bagumbayan heirs used their political connections to title their claimed lands. Along this storyline, the Rajahbuayan positioned the Bagumba-

yan clan as holders of fraudulent land titles, and positioned their selves as the rightful land claimants. Thus, their actions were meant to position themselves as such. The above conflicting utterances and contrasting storylines necessitate a review of this land conflict case through the conduct of a relocation survey, which will entail field inspection, and consultations with elders of the community to identify the rightful claimants. There is also a need to review the contents of the compromise agreement and to inform the heirs on its contents and their implications. The implications of these positioning analyses of these land disputes are discussed in Section 7.

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The Canadian Experience in the Resolution of Land Conflicts Involving Aboriginal People

C

anada’s role in this study was to provide examples of how land issues for Canadian Aboriginal people are resolved. The commonalities between Canada and Mindanao are basic, experiential, spiritual and cultural: communal ownership, a belief that jurisdiction is held by the land, oppression of one class of people over another, legislative genocide, and the loss of land through direct government intervention; all part and parcel of the legacy of colonization.

There are generations of Aboriginal people who have maintained the struggle for recognition of land rights and the governance and jurisdiction necessarily attached to that. The struggle of Aboriginal people to maintain ties to land and to maintain the right to self-determination came at a cost. There have been many infractions against their people, their families, their governments, their institutions and their land. These infractions are committed to enforce assimilation and divide families and nations, and it has stopped or slowed the meaningful participation of many original inhabitants within Canadian society at large. Discrimination at every level in Canada is alive and well. Susceptibility to disease, something familiar to poverty in every country, is higher for Aboriginal people than within other Canadian demographics. Incarceration is more common than access to education and their governments are often assumed to be inferior and lack capacity for anything more than the most basic administrative functions.

The experience of loss of land in Canada by all groupings of original inhabitants is too large to detail in this paper. It is sufficient to say that Treaties have been broken, people relocated against their will and land sold and/or taken without consent. Some violence and rebellion have also resulted from these violations.

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As well, the fight to maintain domain is ongoing. Aboriginal people want to determine their own destiny through social, economic political and spiritual choice. The connection to autonomy is through land and that is where a lot of time, energy and money are focused.

society in Canada prior to colonization, an application of the rule of law, a presumption of the Crown acting to preserve honor in its dealings and the trust of a process which is not aboriginal. This does not mean the Canadian processes work perfectly, or all of the time, or even that they do not need constant review and overhaul. It does, however, mean that not only Aboriginal people but also Canadians in general expect the system to be accessible, transparent, and reliable, for everyone.

That history of struggle is one narrative of Aboriginal people. Another narrative is that Aboriginal people in Canada are resilient and remain strong and focused in the mission to connect to their traditional lands and to recreate government, social and economic systems and institutions. Although the three groupings of Aboriginal people recognized within the Canadian Constitution represent only a very limited profile of all of the Nations that exist within the country, it is the people within those Nations who continue to speak out and to insist on inclusion. Working within the judicial, political, and social structure available to all Canadians, the Aboriginal voice demands the land be recognized as belonging to the descendents of the people who were there first. The reasons for that assertion are based on values integral to Aboriginal nations. In a Cree nation, for example, respect for the land and everything on it, responsibility to that relationship and therefore to each other, honor, and humility will guide the decisions made on or about all aspects of the land. In the purest traditional cultural perspective, land is the life source and provides sustenance as well as avenues for economic and political participation.

Historic Overview The formal academic model of history is not the best way to tell the story of Aboriginal Nations experience in Canada. If Aboriginal people tell this story it would be in a very different way and would acknowledge and honor the connection of the people to the land. The linear model of describing events in a chronological order and seeing that description as evolutionary does not represent any notion of accuracy in terms of an Aboriginal’s lived experience. The authors of that line of historic text are not Aboriginal so that version is also therefore, objectified. Although time has passed the issue remains, decisions over Aboriginal people and land are made for and about but not with Aboriginal people. This is the crux of the problem that in turn leads to decisions not based on values that are consistent with respect and integrity of the decision maker and of the people who live with the decisions. History cannot however be ignored for it is the dominant governing system which makes the rules of participation for negotiation and recognition of a new order or understanding of boundaries and participation in governance. And through the historic lens of the Canadian Constitution one can see how the

The rest of the narrative -that is the foundation upon which the decisions are made to resolve any Aboriginal issues on land -is founded in the values found throughout the Canadian justice system. Those values include a recognition of a pre-existing 159

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relationship between Aboriginal Nations and the Crown has placed Aboriginal Nations in a position where prior existence holds those Nations in a distinct relationship with the Crown. This is why the Crown has a duty to acknowledge the Nations being there first.

‘A year after Confederation, Parliament passed the first federal Indian Act. This was a cradle-to-grave regime that governed – and in some ways, still governs –the lives of Aboriginal people identified as Indians. The Act defined Indians, and affirmed their entitlement to live on the reserves set aside for them. It gave –and continues to give– certain tax exemptions for Indians residing on reserves. It imposed many restrictions on Indians. At different times these included alcohol prohibitions, claims restrictions, bans on traditional cultural and religious ceremonies such as the potlatch and the sun dance, and limits to the very rudimentary form of local government permitted under the Act. The general idea was to set Indians aside from non-Aboriginal society so they could be exposed to European religion and customs and gradually “civilized”. Despite later reforms, and recent efforts at major change, the Indian Act is still in place today.’ (Elliott 6)

Under the Canadian Constitution, Section 91(24), jurisdiction over “Indians and land reserved for Indians” is with the federal government. This gives the federal government authority to deal directly with Indians, or First Nations. Further, Section 35 of the Constitution embeds the historic reality of the existence of Nations existing prior to colonization. It reads as follows: 1.

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. 2. In this Act, "aboriginal peoples of Canada" includes Indian, Inuit and Métis peoples of Canada. 3. For greater certainty, in subsection (1), "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. 4. Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

‘A key purpose of early legislation defining Indians was to prevent unauthorized persons from encroaching on Indian reserves. These reserves are parcels of land that were set aside for the use and benefit of Indians. They were originally set aside to compensate Indians for the loss of larger areas of land, as places of refuge from baser European influences, and (rather paradoxically), as places where Indians could be gradually converted to European religions and customs. This protective purpose was implemented and added to over the decades by pro-

Prior to the current Constitution, even the earliest declarations, such as the Royal Proclamation of 1763, recognized Indian priority in the land. Seeds of this recognition are found throughout the development of laws, policies and political decisions. The earliest form of decision making by the Crown over “Indians” was in the form of legislation: Land Tenure Stories in Central Mindanao

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visions on alcohol restrictions, taxation immunity, financial management by a government overseer, gradual enfranchisement (ending of status), limited local government, and a host of other matters. By the late 19th century, the Indian Act governed almost all aspects of the lives of those subject to it.’ (Elliott 15).

way in which Indians held the land. This concept of the right to use and occupy the land with the underlying title to the Crown is still relied on by the judiciary today, as is the concept of land cession through treaty. First Nation people are constantly asserting another perspective based on the history and understanding passed down from the elders and the leadership: that of original understanding of the relationship of the people to the land, the responsibility they have to the land and their understanding of a collective holding and dominion over, not only the land, but their own people.

The Indian Act touches on every aspect of the lives of Indians, or who are referred to today as First Nation people. This includes defining who Indians are, election of the leadership, administration of reserve lands, sale of lands, land surrender and land taken for a public purpose, schools, loans, treaty money, taxation, enfranchisement, trespass, wills, mentally competency, guardianship and more. The Act is comprehensive, has been found to be discriminatory, has been subject to reform and still exists today.

Aboriginal leadership had the lead role in the creation of section 35 of the Constitution. Together, the Aboriginal and treaty rights recognized within that section hold all of the legal recognition necessary to maintain the rights of the collective. It is through this kind of protection that modern day claims are provided a space and process to be heard, to be recognized and to be honored. It is through this lens that claims to land, to resources, and to governance are framed.

The land and the people are the subjects of the Indian Act. Another place to find how the relationship between First Nation and the Crown began is through the several Treaties formulated throughout Canada. This included peace and friendship Treaties and the land Treaties but they did nit cover the entire geographical area within Canada. The areas not included in Treaty maintain a claim to Aboriginal title and much of that land is currently under Treaty negotiation.

The struggle for recognition, for respect of the treaties and for the claim to traditional practices and lands are ongoing. There have been court cases, inquiries, commissions, studies, legislative overhauls and many attempts form both the Aboriginal people and others to ensure respect for Aboriginal rights and land are recognized and respected. Adding the Aboriginal perspective recorded in the history and having an Aboriginal voice in the current process are the goal.

Following American jurisprudence like the early cases of Worcester v. Georgia , 31 U.S. 515 (1832) and Johnson v. M'Intosh , 21 U.S. (8 Wheat) 543 (1823) “Indian title, or what is now know in Canada as Aboriginal title, was asserted by the courts as the

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Multiculturalism in Canada How Aboriginal people are treated, and how difference in general is represented within our country is found in our laws and our institutions. Aside from Aboriginal nations, many nation’s people are represented in Canadian citizenship. Multiculturalism within Canada is cemented within the idea that all people are equal, and that the population of Canada consists of a diverse array of races, ethnicities, and cultures that wish to preserve their diversity while also participating in all levels of Canadian society. It was a policy adopted in 1971 by the government in order to ensure ‘management of diversity through formal initiatives in the federal, provincial and municipal domains.’ (parl.gc.ca). In 1971, Prime Minister Pierre Trudeau issued this statement in Parliament:

country in the world. It was agreed that there were three main categories of Canadian citizens, all of which were to have equal rights and freedoms: • Aboriginal people - as the first people here and as defined by the Constitution Act, 1982 as including all status Indians, non-status Indians, Métis and Inuit. • The Charter group -the English and French speaking people that make up the majority of Canada’s population and also whose original settlers were made up of and therefore hold a distinct relationship with the land and the Crown. • The third and final group is the non-Charter group that makes up the rest of the population and includes nonEnglish or non-French speaking peoples, whom are either native or foreign.

“We believe that cultural pluralism is the very essence of Canadian identity. Every ethnic group has the right to preserve and develop its own culture and values within the Canadian context. To say we have two official languages is not to say we have two official cultures, and no particular culture is more ‘official’ than another. A policy of multiculturalism must be a policy for all Canadians.” (Karim 189)

Following the years after Canada’s first multicultural policy, massive influxes of immigrants began, changing the population composition of large urban cities dramatically. In order to adjust to these changes, multiculturalism was referred to in the Canadian Charter of Rights and Freedoms in Section 27, which states: ‘This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.’ It is a clause which can be used as an ‘interpretive prism’ within courts when weighing individual rights against multicultural rights (parl.gc.ca). Emerging racist individuals and groups at this time were eliminated in Section 15(1) of the Charter, which states: ‘Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in

This statement defines Canada’s stance on multiculturalism, and was issued after the adoption of multicultural policy following the Royal Commission on Bilingualism and Biculturalism in 1969, which sought to sort out issues concerning the large French population within Canada. Issues with the term ‘biculturalism’ soon arose, as there were a great number of cultures within Canada, which has the highest immigration rate of any Land Tenure Stories in Central Mindanao

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particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.’

public holidays leading up to Canada Day on July 1. Formal Governor General Romeo LeBlanc announced national Aboriginal Day, designated on June 21, in 1996. This day of recognition had been suggested years earlier by the National Indian Brotherhood in 1982 (now Assembly of First Nations), and was also recommended by RCAP the year before it was implemented, in 1995 (www.ainc-inac.gc.ca). Following this, the Canadian Multiculturalism Day was created in 2002 when a Royal Proclamation was released stating the day as ‘an opportunity to celebrate our diversity and our commitment to democracy, equality, and mutual respect and to appreciate the contributions of the various multicultural groups and communities to Canadian society.’ (http://www.pch.gc.ca)

In 1988 the Multiculturalism Act was adopted by Parliament, making Canada the first country in the world to adopt a multiculturalism law. This act ‘sought to assist in the preservation of culture and language, to reduce discrimination, to enhance cultural awareness and understanding, and to promote culturally sensitive institutional change at the federal level.’ (parl.gc.ca). Following the Multiculturalism Act, (Bill C-93) any government department, agency or Crown corporation is now expected to implement and enhance strategies which allow for the full participation of anyone, regardless of race or culture. In 1996, the Secretary of State for Multiculturalism announced a new program to further Canada’s multicultural mandate, which focused in on three main areas: • Social Justice – the creation of a fair and equitable society for all Canadians • Civic Participation – enabling anyone to participate in shaping their Canadian community on a local and national level • Identity – maintaining diversity and recognition of the ancestral roots of Canadians

Royal Commission on Aboriginal Peoples Although the historic and foundational legislative documents acknowledged Aboriginal Nations, and Aboriginal Nations maintained their convictions of sovereignty, the reality was that there was oppression for Aboriginal people within every nation on every front. Determination over land or even over their own family units was eroded to the point that government was openly requesting legislated assimilation of Aboriginal people into the mainstream society. Aboriginal leadership struggled to maintain a foothold on governance and slowly became the specimen of study, and inquiry and commission.

Other programs have been initiated in other areas as well, including Canada’s Action Plan Against Racism, which received a budget of $56 million over five years in order to demonstrate federal support in the effort of the elimination of racism and hate related crimes. Further efforts include the creation of

Finally, after decades of attempts to deal with a plethora of Aboriginal issues, from land, to housing, to social and economic, political and more, a report on Aboriginal people was commissioned. The Royal Commission on Aboriginal Peoples was given a broad mandate to examine all of the injustices suffered 163

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by Aboriginal people. Consultations began by meeting with the First Nation, Métis and Inuit national political bodies: the Assembly of First Nations, the Native Council of Canada, the Métis National Council, the Inuit Tapirisat of Canada, the National Association of Friendship Centres and the Native Women’s Association of Canada. The Commission wanted the realities of life of Aboriginal people to be understood by all Canadians because all Canadians will have to contribute to possible solutions and support the implementation of these solutions. The ultimate goal, therefore, was to create a public education program. The Commission also wanted to hear the views of all Canadians who wanted to participate in the process and for them all to have an opportunity, so accessibility was front and centre. Details from phone lines through languages were looked after by the Commission and an Intervenor Participation program was established. It was explicitly noted by the federal government that the Royal Commission was not established as a substitute for constitutional reform which the government feels is another avenue to address Aboriginal concerns. (Fredere)

This final report consisted of five volumes, two of which dealt with background history of Aboriginal peoples in Canada, one discussing social issues facing Aboriginal peoples today, and two remaining volumes proposing solutions to many of these issues. These solutions would be implemented over a 20-year period, with increased federal spending on Aboriginal peoples of 1.5 billion dollars annually for the first 5 years, increasing to 2 billion dollars annually for the remaining 15 (parl.gc.ca). Four main areas required early action: healing, economic development, human resources development, and the building of Aboriginal institutions. RCAP recommended hundreds of changes of all kinds, some of which were considerable. One such recommendation called for the creation of an Aboriginal Parliament, first to advise and then, as a third Parliamentary chamber, to supplement the existing House of Commons and Senate’ (Elliott 201). It was found that a Royal Proclamation would be required to cement Canada’s commitment to new Aboriginal relationships and recognition of Aboriginal nations and government forms. Other major findings included establishing a dual Aboriginal/Canadian citizenship, and an Aboriginal constitutional veto for any matter affecting Aboriginal constitutional rights (Elliott 201). The annual government spending would go towards improving various areas of Aboriginal life. Improving housing and water systems, dealing with high suicide rates, small business assistance, and increased assistance in Aboriginal education and training. As Aboriginal populations are growing at twice the rate of Canada’s population, with over 50% of the Aboriginal population being under the age of 25, areas of education and job creation are of increasing concern (parl.gc.ca).

Created on May 31, 1991, the Royal Commission on Aboriginal Peoples was a massive project and over its five-year life span several papers were released discussing various issues affecting the Aboriginal peoples. These issues included topics such as suicide, self-government, extinguishment of Aboriginal title, and Quebec secession among others. In November 1996, the final 3537 page Report of the Royal Commission on Aboriginal Peoples (RCAP) was released.

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RCAP was not released without controversy. The reliance on Section 35, the recommendation for Constitutional reform and the requirement to examine and implement self-government were and are debated in Canada today. This also led to the very slow adaptation and/or implementation of the findings of the Report. However, the amount of information collected, the consistency of the information collected and the inclusion of all participants has given this Report enough force to keep it moving and affecting change. Today, more people, governments, and courts rely on the information and the findings from the report. Aboriginal people had clearly, through the Royal Commission on Aboriginal Peoples, found a mechanism to state the issues they faced, prioritize values and suggest ways and means to begin addressing those identified concerns, like unfulfilled Treaty obligations.

had been funded through the intervenors program. In this third round of the hearings, the central thrust was to include more issue-specific round tables and group discussions rather than just individuals or group presentations. The fourth round was to attend to matters that had not been dealt with in the previous rounds as well as to develop a better understanding of the issues identified as problematic. It would precede the final writing of the Commissions’ report. (Fredere) Round one was an ‘opening’ of the Commission’s hearings, and considerable testimony was heard from many Canadians, particularly from Aboriginals about the social problems facing them and their plans for the future. The hearings were held in communities preselected by the commissioners. The intent was to make sure that all communities in the country would have an opportunity to present their views to the Commission. The Royal Commission then established a number of round tables on selected themes, e.g., health, self-government, education, economic development. These meetings brought together academics, Native leaders, politicians and other interested stakeholders.

Aboriginal people were not the only people pushing for the recognition and the addressing of long standing issues faced by them. It is important to note that the First Minister’s conferences merging out of the Canadian constitutional debut of the eighties focused on Aboriginal self-government issues. In some respect, these conferences, which gathered the provincial leadership, influenced the ethos of both government and Aboriginals as they approached the first round of hearings at the Royal Commission.

The Intervenor Participation Program was created (1992) in order to ensure that individuals and groups who wanted to appear and make submissions to the Commission would be afforded the opportunity. As such, a fund of eight million dollars was set aside in order to enable people to participate in the hearings. The presentations made at each of the four public hearings were transcribed and placed onto CD Rom. Round one consisted of 850 individual and group submissions from 36 different communities across Canada. In late 1992, Round two began which

In the 1991-94 period there were four rounds of public hearings. The strategy for round one was to describe Aboriginal perceptions of ethnic relationships in Canadian society. Round two focused on how to deal with existing relationships. The third was used to hear from the various organizations which 165

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Aboriginal Land Claims and Self-Government Negotiations Broken Treaties and attempts to unilaterally extinguish Aboriginal rights/title moved quickly to the justice system to be resolved, once Aboriginal people were no longer denied access to the courts. After a number of claims were reviewed, different processed were created to pursue those rights. These approaches today include resolution by courts, adjudication before a quasi-judicial tribunal, arbitration, and representations before a legislative body. Of all methods, negotiation is the most common and preferred, although there are some negative impacts on the Aboriginal community concerning the negotiation process. Those impacts include: the large amount of time required to complete any claim, the expense of experts and even some quid pro qou with the federal government in order for them to even go to the table. The advantages seem to outweigh the disadvantages of negotiation, however, and allowed for discussion and settlement of a diverse range of issues with the concerned Aboriginal parties playing a key role within the stages of discussions, ratification of the agreement by elected parties, and permanent constitutional status of an agreement.

added another 600 presenters and 36 additional communities. By the fourth round, over 2,200 groups and individuals had made submissions from more than 112 communities all across Canada. This Report is crucial for a number of reasons; it added the perspective of the Aboriginal people to the discourse. It recognized that even though the problems faced by Aboriginal people are historic, the problems must be worked out within a contemporary, inclusive, Canadian context. Finally, the Report offered a way forward that included and respected the Aboriginal People, the land, the culture and the current realities of the country. Although it was shelved for political reasons almost immediately, it is slowly finding its way into the Supreme Court of Canada decisions and thinking, into the policy making of provincial, territorial and Aboriginal governments and it is a foundational document from which an understanding can begin to transform the relationship between Aboriginal people and government. The Supreme Court of Canada in it 2003 decision in Mitchell v. Minister of National Revenue relied heavily on the Royal Commission on Aboriginal People when examining the question of sovereignty:

In Canada there are two types of land claims: comprehensive or specific. A comprehensive claim deals with issues of Aboriginal title to lands and resources. Specific claims address concerns arising from unfulfilled obligations of the government through Treaty, for example, for land and fulfillment of treaty promises. As mentioned earlier, jurisdiction over Indians and lands reserved for Indians is with the federal government so the claim is made to the federal government; however, there

“What is significant is that the Royal Commission itself sees aboriginal peoples as full participants with non-aboriginal peoples in a shared Canadian sovereignty. Aboriginal peoples do not stand in opposition to, nor are they subjugated by, Canadian sovereignty. They are part of it.� Binnie, J.

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are circumstances in which the provincial government can or should be included.

partiality.’ (Elliott 163). The arbitrator will control all decisions concerning expenditure, which a government may not desire. Either the arbitrator can propose solutions directly, or recommend the action to be taken by the federal government.

In comprehensive claims, it is left to the Aboriginal Nation(s) to provide evidence of past and present land use that is not dealt with by treaty or other lawful methods. Specific claims require proof that a governing body has breached an agreement or obligation required by treaty or law. Once the government accepts a claim, a framework is created for the negotiations.

Both Aboriginal and government bodies submit their respective proposals to a Parliamentary committee, who then review and consider each solution. Such an approach presupposes concrete settlement proposals and a high level of consensus on key issues. Once the legislative body has decided on a specific solution, the government may or may not accept and act on the solution.

The typical handling of a claim within a court process is an incredibly slow, technical process. This method produces both a winning and losing side, with little compromises between the parties involved. It is expensive in nature, and the judge presiding over the case need not answer to any of the parties involved nor to the public.

The most often used method of resolution of Aboriginal claims today is negotiation. It is both a venue sought by the parties and one strongly encouraged by the courts (Delagamuukw v British Columbia, Supreme Court of Canada). Representatives of both the government and the Aboriginal claimant(s) are selected to enter into discussion in order to achieve an acceptable agreement to both parties. Governments contract with people to be the lead negotiators to work within the numerous government departments and with the claimant group. The Claimant, First Nation or Inuit government will have the leadership select representatives to work with their various departments of government and with the interests of the community to reach a Memorandum of Agreement on the issues identified at the outset. Both parties may then have input, and the resulting solution is consensual, rather than imposed on one or both groups from above. Although negotiations can be lengthy, the consensual solutions that they offer make negotiations the preferred method of handling most Aboriginal claims.

Similar to a court process, a tribunal may be set up with specific expertise in the realm of Aboriginal claims. Although they are intended to bypass the technical formality of the courtroom method, often they will become just as limited. The expense of this method is great as well, but as a tribunal is beyond government control the government will have no say in how the money is spent. Understandably, most governments are reluctant to allow this. Another method of claim resolution adopts the use of an impartial third-party in order to resolve an Aboriginal claim. ‘An individual arbitrator may permit greater flexibility than a court or court-like tribunal, while retaining some of their im-

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Whether it is the courts, the quasi-judicial body, the parliamentary review or a negotiated process, the common thread is reliability of the process at a very basic level. In other words, there must be some level of trust within the parties before the type of process can be selected and before a decision is rendered. The federal government’s policy on self-government processes was a public document, the government provided some funds to the Aboriginal claimants, for land and for self-government claims to ensure there was an ability to provide researched, professional accurate information. There was intention to truly resolve the issues at hand- the motivation may vary from the perspective of each level of government (Aboriginal and not) but the urge to move outstanding, generations old-issues, is real for everyone involved.

not actually signing any formal agreement with the mainland groups. The Douglas Treaties, as well as Treaty 8 signed in 1899 that covered the northeastern portion of BC, remained the only formal government agreements of any kind with the Aboriginal people in BC and left a majority of the province uncessioned (parl.gc.ca). The Nisga’a people requested a government land agreement several times in the 1880s, but following the hearings in Nisga’a territory in 1887-88 and the group’s request for land and treaty agreements, the government’s follow-up report dismissed their demands. In 1907 the Nisga’a people set up a formal political organization known as the Nisga’a Land Committee (NLC) in order to secure a land claims agreement. In 1909 the Nisga’a joined with other north and south coast Aboriginals, forming the Indian Rights Association. Finally by 1913, they petitioned the government to agree to reserve traditional land for the Nisga’a people to live on, while also compensating them for any lands they agreed to give up. However, much of the land they requested had been sold by this time.

Modern Day Treaties: Nisga’a Trial and Agreement An Aboriginal Title claim going back to 1881, when a delegation was sent to Victoria to protest the increased settler presence, concerned the Nisga’a., a First Nation dwelling within the Nass River Valley in northern British Columbia. Following the establishment of a British colony on Vancouver Island in 1849, and the delegation of Hudson Bay’s Company Chief Factor James Douglas as Governor in 1851, Douglas began making land purchases from the local Aboriginal people. These Douglas Treaties, 14 in total, covered 358 miles2 on the island. In 1858 the mainland of the now British Columbia (BC) became a British colony, and it was assumed by the government that James Douglas would continue to cession lands from the Aboriginal groups present there. However, Douglas merely set up reserve lands and Indian villages, giving Aboriginals settler’s rights but

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The government then created the McKenna-McBride Commission in order to settle the issue of native land claims, and the Nisga’a people presented their case before the Commission. In 1924, the government partitioned a mere 76 km2 for Nisga’a reserve land, out of 25,000 km2 of traditionally used land. An amendment to the Indian Act in 1927 made it illegal for Aboriginal peoples to raise money to advance land claims (ainc-inac.gc.ca). This amendment remained in place until 1951, preventing the Nisga’a Land Committee and other

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Aboriginal groups from forming any defence of their Aboriginal Title to land in BC, which the provincial government had long considered exhausted despite treaty absence.

people still had right to their lands, but the majority agreed that they had title to the land prior to the creation of British Columbia. This created the precedent that historic occupation of lands, if proven, gave Aboriginal people right to their land, and the extinguishment of this right was dependent on the federal government. It was after this ruling that Prime Minister Pierre Trudeau decided that Aboriginal people had more legal rights than originally declared in the White Paper of 1969 which has been an attempt to force assimilation. He then entrenched Aboriginal rights, without definition, in Section 35 of the Constitution Act 1982, despite protest by provincial premiers (Dickason 333).

When the Indian Act amendment was finally removed in 1951, Frank Calder of the Nisga’a First Nation and elected to the BC Legislature re-established the Nisga’a Land Committee in 1955. Calder was made president of the NLC and worked to resolve the land claim issue, before deciding to pursue an independent claim from other BC Aboriginal groups in 1959. The NLC hired Thomas Berger as their lawyer in 1968 in order to defend their Aboriginal Title in court. This case was known as the Calder case, and Frank Calder repeated the words that had been issued by the Nisga’a during the original 1888 hearings: “What we don’t like about the government is their saying this: ‘ We will give you this much land.’ How can they give it when it is our own? We cannot understand it. They have never bought it from us or our forefathers. They have never fought or conquered our people and taken the land in that way, and yet they say now that they will give us so much land—our own land…it has been ours for a thousand years.” (Dickason, 332). They argued their case to the British Columbia Supreme Court but the court maintained the province’s position that ‘whatever rights Indians might have possessed at time of contact had been overruled by the mere enactment of white man’s law…’ (Dickason, 332). The Aboriginal peoples of BC were considered to have no Aboriginal Title as the Royal Proclamation of 1763 did not apply in British Columbia.

Bilateral negotiations between the Nisga’a and the federal government began taking place in 1976, before a framework agreement was signed on 1989. BC continued to deny Aboriginal Title, but joined in to form tripartite negotiations the following year in 1990. By the end of 1991, a new framework agreement was worked out and signed by all three parties. An Agreementsin-Principle was formed in 1996. It wasn’t until August 4, 1998, that the Nisga’a Final Agreement was initialed and ratified. The real test of the success of the Nisga’a claim will be constantly reviewed. Some have argued it was a divisive process, others claim that the paramouncy of Nisga’a laws will prove to be problematic. Some non-Aboriginal people wanted access to the democratic process of ratification of the Treaty, which they did not get and still others claim that the collective rights claimed are at the cost of individual interests and finally that this was a process that was far too expensive. Other Aboriginal groups had overlapping claims and the issues around that will have to unfold as the Treaty moves through implementation.

The Nisga’a Land Committee took their case to the Canada Supreme Court, where a final ruling was decided in 1973. The court was split four to three on the issue of whether the Nisga’a 169

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The Nisga’a Claim included a land claim and a self-government negotiations process. These negotiated land and governance agreements are two very different agreements and both fit within the parameters of the Canadian Constitution. They fit both in terms of application of laws, and understanding of paramouncy. Again, the processes were available because of a federal recognition of First Peoples, through a Constitutional recognition of Aboriginal and Treaty rights, because of a doctrine of honor of the Crown in dealing with Aboriginal people and because of access to the process, in a meaningful way, by Aboriginal people.

If the federal government does not believe it has an outstanding obligation, the claim is rejected and the Department of Indian Affairs informs the First Nation that it will not negotiate a settlement. The selection of who will participate in the ICC process may have been a political decision but was also based on who would be respected by everyone involved and who had knowledge and experience on land claim issues. The people on the Commission were appointed by government through a mutually agreeable selection process. The Commission’s stated outline of the process was as follows:

Specific Claims to Land already identified as First Nation Lands: The Indian Claims Commission Within Canada, the demand for a process to resolve outstanding land issues was coming from all directions. Claimants needed an impartial and transparent and trustworthy process. The government was spending enormous amounts of dollars and time on litigation and they also needed a process they could funnel the ever-growing list of claims through. The establishment of the Indian Claims Commission (ICC) was a solution to these requests and concerns.

Fairness in Claims Negotiation The Indian Claims Commission is a Commission of Inquiry and was established in 1991 with a double mandate: to inquire at the request of the First Nation into its specific land claim; and to provide mediation services, with the consent of both parties, for specific claims at any stage of the process. As part of its mandate to find more effective ways to resolve specific claims, the Commission established a process to inquire into and review government decisions regarding the merits of a claim and the applicable compensation principles when negotiations have reached an impasse. Since the Commission is not a court, it is not bound by strict rules of evidence, limitation periods and other technical defenses that might present obstacles in litigation of grievances against the Crown. This flexibility removes those barriers and gives the Commission the freedom to conduct fair and objective inquiries in as expeditious a way as possible. In turn, these inquiries offer the parties innovative solutions in

A claim starts within a First Nation. The First Nation researches the claim and submits it with supporting documents to the Indian and Northern Affairs Canada. The Specific Claims Branch of that department does its own research and, with the Department of Justice, assesses the claim to determine if the claim establishes an "outstanding lawful obligation" on the part of the government.

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their efforts to resolve a host of complex and contentious issues of policy and law. Moreover, the process emphasizes principles of fairness, equity and justice to promote reconciliation and healing between Aboriginal and non-Aboriginal Canadians.

would be referred to the panel for resolution. This was done in writing, or the panel asked for oral submissions, that were made at the outset of a further planning conference. Except for this, the panel would not attend a planning conference. Other objectives of the planning conference were to discuss historical documents the parties intend to rely on, determine whether parties intend to call elders, community members or experts as witnesses; and set time frames for outstanding commitments and the remaining stages of the inquiry. In cases where further research was required, the Commission encouraged jointlymandated research.

ICC Inquiry Process Stage 1: Initial Request for Inquiry Upon receiving a request for inquiry and accompanying documents, the Commission will consider the request, and, upon acceptance, form a panel of Commissioners to hear the inquiry, and notify the government of Canada and the First Nation of the inquiry. Both parties will be asked to provide copies of the documents relevant to the claim. All relevant documents are organized in chronological order, compiled digitally in CD-ROM format, and distributed to the parties. Commission research staff assist in identifying any gaps in the historical documents which may require supplementary research.

Stage 3: Staff Visit and Community Session(s) This is a unique and important aspect of the Commission's inquiry process. At this stage, Commissioners and staff attend a session in the First Nation's community to hear directly from elders and other members of the First Nation. The community session encourage a much greater level of participation on the part of the First Nation and is carried out in a manner that is respectful of the First Nation's language, culture and traditions. The testimony and oral tradition of the elders is recorded and transcribed. These transcripts are an important source of information used to supplement the historical documents and promote a broader understanding of the claim from the First Nation's perspective. Questions were posed by the Commissioners or their legal counsel only and no cross-examination of elders was permitted. However, counsel for the Commission consulted with both parties before and during the session to identify relevant questions and lines of inquiry. In some cases, expert witnesses could present evidence in a separate session, provided they had furnished a written report in advance and

Stage 2: Preparation for Inquiry The inquiry process is planned jointly. Briefing materials prepared by the Commission are sent to the parties in advance to facilitate discussion. Counsel for the parties are asked to state issues to be addressed by the inquiry, from which Commission staff attempted, in consultation with counsel for the parties, to generate a single list of issues. A planning conference, at which the parties meet, is arranged and chaired by a Commission Counsel. Some objectives of the conference were to identify the relevant historical and legal issues; openly discuss the positions of the parties on the issues; and to attempt to obtain a single set of issues to be addressed in the inquiry, failing which issues 171

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the Commissioners had requested their attendance in person. Experts could be subject to cross-examination.

tiating parties together face-to-face to discuss the issues and terms of the negotiation and mediation protocol agreements.

Stage 4: Written and Oral Submissions With the benefit of a wealth of information from elders, community members and historical documents, legal counsel for the parties were asked to provide written and oral submissions to the Commissioners on the facts and law to assist them in determining whether the Crown owes an outstanding "lawful obligation" to the First Nation. Again, the oral submissions were recorded and transcribed to assist in the Commissioners' decision-making process.

2. Negotiation Process: The Commission facilitates discussions on compensation, assists the parties by coordinating the gathering of information including land appraisals and joint loss of use studies, and monitors the parties’ decisions and undertakings. 3. Settlement: When and after the negotiating parties reach an agreement in principle, lawyers for the First Nation and Canada work together to draft a final settlement agreement which is initialed by the negotiators and ratified by both parties.

Stage 5: Commissioners’ Final Report Upon careful review of all the evidence – from documentary sources, oral tradition and oral history – and upon consideration of all legal arguments, the Commission panel deliberates and reports on its findings and conclusions. Ultimately, these findings and conclusions will inform the Commission's recommendation regarding the Crown's outstanding lawful obligation. The Commissioners' final report is released to the parties involved in the claim and to the public. The Commissioners' recommendations are not binding on either the First Nation or Canada, but the report is intended to assist in resolving the dispute. After releasing the final report, the Commission's inquiry comes to an end.

4. Final Report: The Commission reports to the federal government, the First Nation and the public on the outcome of the negotiation The Indian Claims Commission provides broad mediation services at any stage of the claims process, and at the request of both the First Nation and the Government of Canada. Together with the mediator, the parties decide how the mediation process would be conducted. This method ensures that the process fits the unique circumstances of each particular negotiation. For many years, First Nation and government negotiators attempted to put an end to deadlocked land claims, but there has been little progress. Negotiations have been slow and difficult, and relatively few settlements have been reached. This backlog of unresolved claims is not acceptable.

ICC Mediation Process 1. Preparation for Mediation: The Commission reviews the claim being negotiated and brings representatives of the nego-

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Before the creation of the Indian Claims Commission, First Nations were unable to challenge government decisions without going to court. As an alternative to court action, the ICC offered a fresh and positive approach for First Nations that desire an independent review of government decisions.

Kawacatoose First Nation – Treaty Four The fourth in a series of numbered treaties by the British Crown. Signed in Southern Saskatchewan in 1874. One Canadian First Nation who believed they had a valid claim for land that was rejected by the federal government’s review process is Kawacatoose First Nation in the province of Saskatchewan. The First Nation had historical evidence of the shortage. They argued that at the time of Treaty when the land allotment was being calculated, several members of two families were not accounted for, nor were those members taken into consideration in calculating the size of the land to be distributed.

The limited mandate of the ICC and a shortage of funding have been identified by many claimants and Commissioners as inhibiting the efficient and timely resolution of claims. Further, RCAP also pushed for a stronger and further- reaching body, recommending legislation for an independent tribunal, to review federal funding to claimants and to monitor negotiations and issue binding orders. Thus there was a movement to create a permanent independent claims body. This new body was to have more authority and to advance the backlog of existing claims and to deal with future claims.

Canada rejected the land claim and Kawacatoose went to the Indian Claims Commission to have their case processed through this independent Commission. As a result of the in-depth review of the Indian Claims Commission the Kawacatoose claim was found to be valid and it was recommended that the Claim proceed through the established provincial Treaty Land Entitlement process.

The result of the request was to create The Specific Claims Resolution Act and it is set to establish a body which is to be known as the Centre for Independent Resolution of First Nations Specific Claims to replace the ICC. This body is legislated and intended to have full-time staff and more authority. It has a set dollar limit for compensation, in the millions, and creates The Canadian Centre for the Independent Resolution of First Nations Specific Claims with tribunal capacity. As it is just being created, a critique of this new body is premature

The Indian Claims Commission found that the First Nation was owed an additional 8526 acres. After the Treaty Land Entitle Process was concluded, Kawacatoose First Nation received 23 million dollars in federal compensation. The funds are to be used to purchase the shortfall in acres owed.

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Conclusion At the centre of this paper is the notion that within Canada our best attempts to resolve the long standing issues over land between the Aboriginal Nations and the federal governments come when the best values of both are represented in the intention, the process and the institutions of governance. That no matter what time frame you use to examine the relationship, the reality is always one of each nation respecting the other, and proceeding in a direction that is in the best interests of honoring the reality of and history of both. The list of what is not done well is long and told in the statistics of poor health, poverty, unemployment, lack of education of Aboriginal people. What is done well is in the fact that there is a story unfolding of Aboriginal people participating in the broader context of determining a path for their own people and looking after resources on the land.

people have come in terms of influencing the process and of insisting on participation. The personal stories, which were not told here, are perhaps even more important and have influenced those larger items in ways that cannot be measured. These include the stories of Elders influencing leadership in a good way, of youth having access to education and to their language, of the value of women and values of women, of valuable employment of men and women in community, of the creation of Aboriginal corporations and Aboriginal political development. These include the personal stories of a small Aboriginal Nation writing it’s own constitution, or creating a system of laws based on traditions and customs, or another who gives birth to an Aboriginal politician who uses his culture to influence the non-Aboriginal government’s constitutional reform, in turn affecting every Canadian person, for the better. Those personal stories are the seeds that have been sewn that allow for individuals within the Nations to find a place - their place - to be a valuable part of the Nation and to have a voice in determining where the Nation’s priorities are. Those smaller stories are from the people who are the check and balance within the Aboriginal Nations of Canada, who demand that peace, order and good governance are part of every community, and that when it comes to an Aboriginal Nation, that their culture be represented in the daily decision making that impacts the people and the land. Those stories say that Aboriginal Nations are not just a problem to be dealt with, but instead, that they have something valuable to add to the country as a whole.

This is a brief overview of work being done for, and by Aboriginal people on land claims and allows for a brief reflection of the bigger picture of Aboriginal Nation’s history in Canada. In reality the story is much richer and more complex. The story also has many smaller stories wrapped up inside of it which when told together, give a more complete version of events. There are success stories of Nations reclaiming governance over lands, reinstituting traditional values, legislating, and developing resources. The Royal Commission on Aboriginal People and the Indian Claims process as well as modern day Treaty making were used to exemplify just how far Aboriginal

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If the Elders of our communities could meet and talk together it is the values that they would talk about through the stories they would share that would be the foundation of moving forward. There would also be talk of how to see that no matter what the current reality is, certain things must be honored first, like: Recognition of the history of the Moro and of Moro domain

over the land. Recognition that there has been a dismantling of indigenous culture through law and through war that is a forum for genocide. Recognition in the value of the land to not only sustain a Nation and its spirit but to have it thrive. And recognition that the values of the Nations who were there first, is what sustains that nation and what that nation will rebuild itself with.

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Conclusions and Recommendations

T

he positioning analysis of Commonwealth Act (CA) 141 or the Public Land Act, Republic Act (RA) 9054, the MOA-AD, and of the five land conflict stories of Moros in Central Mindanao brings us to the following conclusions and recommendations:

to what happened to the whites and non-whites, and therefore, would obscure the identities of the real contending parties of the conflict. Therefore, an effect of this colonizers’ strategy was to create an identity issue among the colonized, such that the inhabitants began to look at their selves as well as their ingroups and outgroups based on identities constructed by the colonizers (Türkmen, 2003; Okazaki et al, 2008).

1. There is a need to re-examine the effects of colonizerimposed social identities of Filipinos as projected in Commonwealth Act 141 Because CA 141 was adopted from a law of the former American colonial government, we can surmise that the use of ‘nonChristians’ to refer to people who resisted foreign colonization was not a matter of not finding any other more appropriate words, but was part of a carefully planned colonial strategy, designed to justify the invasion by defaming the inhabitants and describing them as inferior, uncivilized, dangerous, primitive, aggressive and lazy, and therefore needing assistance (Türkmen, 2003; Okazaki et al, 2008). The use of the term would also pit non-Christian Filipinos against Christian Filipinos, similar

Unfortunately, when the American colonizers left, the state officials took over the colonizers’ identity, and the “ruler and superior” mentality, and retained the term non-Christians in the Public Land Act. The challenge now is to examine how this identity problem continues to manifest in the present times. Manifestations include the framing of the land conflicts in Mindanao as a conflict between the Muslims and Christian settlers and the asymmetrical relation between Christians and nonChristians in land conflicts in Mindanao, with more Christians and corporations owning vast tracts of land.

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Another manifestation of the effects of the positioning of the state in CA 141 can be drawn from the analysis of the emerging issues in the implementation of the Indigenous People’s Rights Act (IPRA) of 1997 or Republic Act 8371. With the passage of this law, the sections of Commonwealth Act 141 pertaining to nonChristians have been effectively repealed. However, an assessment of IPRA as well as of RA 9054 or the ARMM law pointed to the inability of these laws to solve the unrest within the Muslim Filipinos and indigenous people that was in part caused by the inequity of CA 141. As Ong (2002, pp. 590-591) argued:

on local values and practices, on their own path to development and sustainable management, they are constrained by bureaucratic requirements imposed by DENR and other agencies. Such demands reflect a deep-seated government distrust of indigenous capabilities.” If we are to link this analysis to our discussion of the effects of our colonial past, then we can surmise that the current inequitable relations between the State and our indigenous people, who are positioned as the ruler/ superior and the ruled/inferior respectively, can be another manifestation of the post-colonial identity struggle. Underneath this is the state’s positioning of itself as the ruler and superior, and the positioning of the indigenous peoples, including the Moro, as the ruled and inferior who need the state’s assistance.

“In fact, to prevent stepping on the others’ toes, the authors of the new laws had treaded carefully, making sure that each sector’s political sensibilities will not be affected. The Indigenous People’s Rights Act (IPRA) makes no mention of Muslim Filipinos, whereas the Autonomous Region of Muslim Mindanao (ARMM) law provides no procedure for survey, delineation and titling of ancestral lands and domains of indigenous peoples within the ARMM. Such cautious approach led to the creation of several gray areas, one of which is the issue on the jurisdiction over ancestral lands and domains.”

This positioning analysis underscores the need for: a) further examination of the effects of our colonial past on our social identities and relations, b) a reconstruction of our social identities, and c) a corresponding reframing of our state-citizenry relations and interactions. Included in this examination is a complete review of legislation, programs and policies, not only of Commonwealth Act 141, but also of subsequent laws that attempted to reposition and provide restorative justice to the Moro: the 1976 Tripoli Agreement, Republic Act 6734, RA 9054, the Comprehensive Agrarian Reform Program, the Indigenous Peoples Rights Act, and even the MOA-AD, especially on their provisions on land tenure.

Moreover, among non-governmental organizations working with indigenous people’s organizations and alliances, there is an emerging consensus on the need to assess the Indigenous People’s Rights Act (IPRA) because of the growing dissatisfaction over its implementation and uncertainty over its value (Gatmaytan, 2007). Gatmaytan (2007, p.20) analyzed, “… instead of enabling indigenous groups or communities to build

For as long as the state maintains its colonizer-influenced positioning (“ruler-ruled” and “superior-inferior”) mentality and its corresponding centralist governance paradigm, then any other alternative law to CA 141, IPRA and ARMM law is doomed 179

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to fail in breaking our country away from the influence of its colonial past.

other party in a negative light. The mutual rejection of these positions manifests as disputes. However, positioning analysis also shows that the underlying meaning or intentions, as well as desired processes for conflict resolution, are not conflicting and can be reconciled.

2. There is a need to recognize that the contrasting storylines and mutual rejection of positioning of parties of land disputes cannot be resolved through rejection of one storyline and upholding of the other. One of the consistent and common threads of stories presented in this study is that of Moro communities being forced to vacate their ancestral lands in the early 1970s because of the war of the government against Moro insurgents, and of waves of Christian settlers occupying the Moro ancestral lands through government-sponsored resettlement programs in the absence of the previous Moro occupants. Christian settlers in two of the five cases (Story 1 and Story 2), insist that they legally bought the lands and developed them. Nonetheless, Christian settlers in the Isulan Impao land conflict story sympathized with the Moros, and acknowledged that Moros were forced to sell their lands because of poverty and hardships brought about by the war. The Christian settlers, who were encouraged by the government to leave their homes in Luzon and the Visayas and go to Mindanao to occupy lands, availed of favorable provisions of the Public Land Act. These and the subsequent return of Moro communities from years of evacuation and their efforts to reclaim their lands provide the general backdrop of the land conflicts.

In the first storyline, which talks about the perspectives of both groups on the causes of the land conflict, the Moros positioned themselves as rightful landowners, and victims of Christian settlers’ deceptive acts and of government’s injustice. They positioned the Christian settlers as deceivers and squatters in their ancestral lands. On the other hand, the Christian settlers positioned the Muslims as intruders and harassers, interested in obtaining monetary benefit from Christians. The Christians position their selves as rightful landowners harassed by Muslims to leave their legally acquired occupied lands. If a third party is to choose between these two storylines, it will be difficult to do so based on plausibility because both storylines sound plausible. The conflict cannot thus be resolved through a win-lose process, such as through arbitration, court decision, or military solution because there will always be another group that will contest the decision, and insist on the validity or veracity of the other side. One way out of the conflict is through reconciliation of storylines and reconstruction of identities, in which all the parties will begin to focus and give more value to their commonalities, interconnectedness, and superordinate goals. The latter refers to shared goals that require the cooperative effort of all and the need to give less value to differences (Myers, 1999). As pointed out by Santos (2002, p. 160), “The road to peace in Mindanao involves the search for common-

Section 5 of this study, which delved on the positioning analysis of the land conflict stories, highlights these two contrasting storylines – the Moros’ reclaiming of their ancestral lands, on one hand, and Christian settlers’ defense of their occupied lands, on the other hand. In these storylines, the parties position the Land Tenure Stories in Central Mindanao

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alities between Muslims and Christian Filipinos. These Filipinos can help build bridges of understanding along that road.”

includes agreements that spell out procedural matters first, in both national and local levels.

The challenge has been (this research is not the first to point out this need) on how to reconcile storylines. One is to highlight that this is not a conflict between the Moro and the Christian, but is an inherited effect of our colonial past. In internalizing and articulating this storyline, the Muslims and the Christians will be able to position themselves similarly as victims and as co-problem solvers. Problem solving will necessitate – as a way of reconciling storylines – the recognition of the tenurial land rights within the ancestral domain of the Moros and of their right to self-determination, as well as the recognition of the needs of Christian settlers who have been in Mindanao for decades as well as their efforts to develop their occupied lands.

3. There is a need to design and implement land redistribution and reparation policies and programs in Mindanao To resolve land conflicts in Mindanao, initiatives to reconstruct social identities and to search for common grounds should be twinned with concrete land redistribution and reparation policies and support programs. The five land conflict cases provide us with cues on what these policies and programs should be: 3.1 Pursuance and consummation of negotiations for the definition and delineation of the ancestral domain of Moros as a way of recognizing and respecting the Moros’ centuries old struggle for self-determination, and as a way of redressing the injustices committed against them by government resettlement programs and discriminating laws and policies. Land rights of Christian settlers in the ancestral domain of the Moros should, however, be clarified and respected.

Indeed, there is more emotional intensity when the subject of who deserves to be considered rightful owner of the land is talked about; but when resolution is the subject matter of inquiry, there seems to be more agreement. The second positioning analysis, which was drawn from the second common theme of statements of Muslims and Christian settlers, depicts the perspectives of the two parties on how the conflict should be resolved.

3.2 Formulation of implementing rules and regulations of the following sections of CA 141, IPRA, and ARMM law which recognize the land rights of those who were forcibly evicted by war or force majeure, especially in situations where said lands have been occupied and developed by other people during their absence. Relevant parts of these sections are in all caps.

The foregoing suggests a need to provide more stimuli to drive the parties of the land conflict cases to talk increasingly about conflict resolution. This can be in the form of providing community-based opportunities for sharing of conflict resolution options between and among parties in the communities, while providing support for the continuation of peace negotiations at the national (macro) level (more on this below). This

CA 141, Section 48b: Those who by themselves or through their predecessors-in181

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interest have been, in continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title, EXCEPT WHEN PREVENTED BY WAR OF FORCE MAJEURE. Those shall be conclusively presumed to have performed all the conditions essential to a government grant and shall be entitled to a certificate of title under the provisions of this chapter.

All lands and natural resources in the autonomous region that have been possessed or occupied by indigenous cultural communities since time immemorial, EXCEPT WHEN PREVENTED BY WAR, FORCE MAJEURE, OR OTHER FORMS OF FORCILE USURPATION, shall form part of the ancestral domain. In developing the implementing rules and regulations of these sections of CA 141, IPRA and ARMM law, policy makers should take note of the fact that the government has issued land titles to some, if not many, occupants of these lands. The implementation policy should therefore include the clarification of land rights of those who: (a) decided not to return to their ancestral land because of fear or threat to life, (b) did not to return to their ancestral land by own choice or because better opportunities are available in their present location, but decided to claim their ancestral land upon learning of income opportunities, such as registering and selling the said land under the Voluntary Offer to Sell (VOS) scheme of the Comprehensive Agrarian Reform Program or other similar government programs, (c) are now occupying maximum size of land allowed by law in other areas, and are economically well-off than those who are currently occupying the land, (d) have developed and currently tilling or using the land; and (e) seek just reparation from damage and deprivation resulting from any of the above. Necessary government support programs such as the facilitation of process for equitable sharing of land, disturbance compensation, provision of alternative, equally productive or useable land, etc. have to be installed for those who will be adversely affected by the Moro’s reclaiming of their ancestral land. The designing and implementation should hence be guided by the “Real Pareto maxim”,

IPRA, Chapter II, Section 3b: Ancestral Lands - Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present EXCEPT WHEN INTERRUPTED BY WAR, FORCE MAJEURE OR DISPLACEMENT BY FORCE, DECEIT, STEALTH, OR AS A CONSEQUENCE OF GOVERNMENT PROJECTS and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots; ARMM law, Article X, Section 1: Ancestral Domain; Lands of Indigenous Cultural Communities – Subject to the Constitution and existing laws, the Regional Government shall undertake measures to protect the ancestral domain and ancestral lands of indigenous cultural communities.

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which states that, “Justice is so important that we should never make the worse off even worst off (however trivially) for the sake of others” (Wolff, 2001, p.8).

sectors (land claimants, civil society organizations, government, business organizations), a multi-stakeholder mechanism should be established. This multi-stakeholder mechanism will serve as a forum for dialogues and for resolution and transformation of conflicts that will block and arise from the establishment of this program. Designers and implementers of this program can learn from the experiences of the Land Administration and Management Project (LAMP), an inter-agency government project lodged at the Department of Environment and Natural Resources (DENR), in Leyte and Bohol.

To this end, the experience of Canada’s aboriginal people’s struggle for reclaiming their ancestral lands, including the establishment of bodies that are focused solely on the aboriginal land claims (Royal Commission on Aboriginal Peoples, Indian Claims Commission, McKenna-McBride Commission) provides concrete lessons and examples of policy and programs which could apply to the Moro and other indigenous peoples struggles to reclaim their ancestral lands as well.

Included in this program is the reform of the tedious and corruption-prone land titling system and the simplification of the complicated and rigorous requirements of cadastral surveys. There should also be awareness and capacity-building activities for local communities on the process of titling. Accompanying this review should be the enactment of policies that mandates consultation as a legal concept in the various stages of delineation, adjudicating land rights, and titling processes, as with the Canadian example.

3.3 Designing and implementation of a program that will delineate and define boundaries of parcels of land, barangays, municipalities, and provinces, and land tenure rights Records of the Land Management Bureau show that a big portion of lands in Mindanao are not yet comprehensively surveyed, and that almost half or 49.82% of parcels of alienable and disposable lands in Mindanao (See Table 4 of this paper) are not yet titled. This means that land boundaries are not yet defined, and land rights remain to be contentious in these areas. For proper management of lands -including a more sustainable resolution of land conflicts - in Mindanao, it appears, as evidenced by the land conflict between the Bagumbayan and Rajahbuayan clans in Story 5 featured in Section 5 of this study, that appropriate program needs to be established.

Whenever possible, the National Commission on Indigenous People (NCIP) must facilitate and fast-track the identification, delineation and ground survey of ancestral domains of indigenous peoples. In the Autonomous Region of Muslim Mindanao, the functions of the NCIP have not yet been fully devolved to the Office of the Southern Cultural Communities (OSCC). An administrative relationship between NCIP and the OSCC that would complete the NCIP’s devolution should be established by an issuance of an Executive Order from the President of the Republic. Such an issuance has not been resorted to date, citing lack

As the process of delineating boundaries and adjudicating land rights can be conflict-ridden and will need the support of all 183

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of funds as an excuse. The Moro and indigenous communities of Mindanao cannot be made to wait indefinitely for this to happen.

the observance of effective and relevant customary laws and indigenous dispute resolution practices.

To sum up, it is important to design and implement this program: (a) in view of the struggle of the Moros for recognition of their right to self-determination and reclaiming of ancestral lands, and the clamor of Christian settlers for recognition of their rights to land that they developed and have long-occupied, (b) along the framework of equitable land redistribution, and (c) guided by the principles of service-oriented and participatory governance (as opposed to the ‘colonizer-colonized’ or ‘rulerruled’ style of governance).

Mediation and conciliation are approaches that help in resolving land conflicts. The consensual approach in resolving disputes had been found not only in the Philippine but in the world over, including in Canada as depicted in Section 6 of this research, to be effective in effecting lasting solutions to a host of problems, including land problems or aspects of them. The preponderance of land conflicts points to the need to provide support for the strengthening of local capabilities and mechanisms for dispute resolution and transformation. As the example of one of the land conflict stories has shown, there is much potential in making use of a blend of customary laws and traditions interfacing with that of administrative rules and procedures in resolving land conflicts.

4. Resolution of tenurial conflicts will be more effective if it is community-based and provides for localized solutions. It is important to provide support for the strengthening of local conflict mechanisms for the resolution of land and other conflicts, including those that make use of customary laws. We have seen how the laws adopted by the colonizers and subsequent governments of the Republic of the Philippines has historically disregarded customary laws, local knowledge and indigenous practices, emasculating local traditional leaders and disregarding their jurisdiction over land disposition and the resolution of disputes. The colonial policies not only abolished the stewardship concept of land ownership; it has also created a system not attuned to the way of life of the Moro and other indigenous communities. The current mode of settling land tenure disputes are part and parcel of this colonial set-up, which has been ineffective in addressing local conflicts because judicial proceedings and rules of evidence are incompatible with Land Tenure Stories in Central Mindanao

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There are many such local conflict resolution mechanisms that are already established in Mindanao and have proven effective in resolving disputes and maintaining peace and order in their communities. Examples of these are the JUMPOC in Barira and the Bleye Kitab of South Upi, both in the province of Maguindanao; the Municipal Peace Commission of Kapatagan in Lanao del Sur; and the Barangay Agama Arbitration Council in Simunul and Sitangkai, Tawi-Tawi. Another avenue for strengthening locally-based bodies for conflict resolution is by amending the barangay justice system, provided for in the Local Government Code of 1991, to include local mechanisms for land tenure cases involving not only individuals but also organizations and corporations as complainants and respondents. Currently, the jurisdiction of the barangay justice system is limited 184

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to disputes involving individuals. A third avenue is by expanding the paradigm of the local Peace and Order Councils, by shifting from that which is focused on security and order alone to include that of the human security framework, building a culture of peace and conflict transformation in their localities.

politicians understand the value of land as a source of political power. The role of enlightened local and national leaders cannot be overlooked, because politicians have in the recent past acted as architects of destabilization, which in turn creates more conflicts on a micro level. When political processes break down at the national level, many little wars are triggered on the ground. Local successes in promoting peace are rendered moot by national level political disagreements that trigger tens of local conflicts. Potential conflicts become manifest conflicts because the divide between local governance and national politics is porous. Promoting good governance principles as a way of improving the political context at all levels is a necessary ingredient in resolving conflicts.

All of the above mechanisms when combined together and strengthened could represent a significant factor in the speedy disposition of disputes. Policies to facilitate the exchange of dispute resolution practices, experiences, and lessons through, among others, forums and popularized information, education and communication materials could further enhance their effectiveness.

6. More studies that enrich the overall discourse on the Moro struggle for land claims should be undertaken. This study is but a very modest contribution to the vast area of Moro land claims and struggle for self determination. The following have not been sufficiently dealt with by this study and are thus recommended for future studies:

Very important, no certificate of claim, license, permit or authority to survey, explore, utilize or develop be issued or granted without the mandatory community-based consultation and dialogue as well as the written free prior informed consent of Moro and other indigenous inhabitants. This is to ensure a just, humane and commensurate share of the income and profit derived from the utilization, exploration, commercialization and development of mineral and natural resources in Mindanao.

6.1 Assessing the gender-related effects of government land disposition laws on Moro men and women indigenous peoples. In Commonwealth Act 141, a female non-Christian can qualify for a permit to occupy land only if she is the head of the family. In Philippine culture, the head of the family is, more often than not, a male. This means, therefore, that a female non-Christian can apply for a permit only if widowed or in the absence of a male head of the family. Though CA 141 does not state same qualification for the Christians, a government policy issued before the enactment of CA

5. Along with a good land tenure program, practices of good governance must be promoted and actively enhanced. Transparency and accountability will help demonstrate sincerity in facilitating restorative justice to the Moro people. Much has been said about the marginalization of local government units in the discussion on political solutions to the Mindanao conflict. One reason cited for this is that local 185

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141 had already limited women’s opportunity to apply for a homestead patent. Paragraph 8 of Land Administrative Order No. 7-1 dated April 30, 1936, entitled “Rules and Regulations Governing the Filing and Disposition of Application for Alienable lands of the Public domain or for Real Properties of Commonwealth of the Philippines” allowed women to apply for homestead patent only if her husband is incapacitated by death, disease, or mental illness, or is imprisoned. This government policy was repealed only in 2002 by DENR Administrative Order 2002-13 entitled “Removal of Gender Bias in the Acceptance and Processing of Homestead Patent Applications and Other Public Land Application”. With the length of time that these laws were operative and effective, it is important to assess their effects on the degree of access and control of women over land resources.

that are orally passed on from one generation to another are gradually getting lost. One such oral history is that of the Tedurays and the Moro who once believed that they come from the same lineage. The possibilities of interfacing these rituals, practices and legends with various conflict resolution mechanisms will greatly enrich peace building efforts in Mindanao and elsewhere. 6.3 Causal relations between land conflicts and insurgency, including links between local conflicts and national policy. This study had indirectly shown that such causal relationships exist, but there is a dearth of data and information to prove such relationships. Local and national efforts to promote peace and find a lasting solution to land conflicts will benefit from such enrichment of data and information. 6.4 Related to the above but of different dimension perhaps is a study that could surface a widely perceived but as of yet unproven collusion between national and regional governments and elites/ big landowners from Luzon, Visayas, and Mindanao to occupy large tracts of lands in Mindanao. There is much mystery in how modern-day elites, both Christian and Moro, managed to acquire vast tracts of land despite limitations on hectarage allowed for each individual land owner, even under such colonial land policies. The cases presented in this study variously touched on bureaucrats and personnel of land titling bodies that have colluded with parties, elite or not, to obtain titles to parcels of land. Future studies that expose these points of rent-seeking activities in land disposition will be of high interest to various stakeholders.

6.2 A thorough study of customary laws, especially as they pertain to land (such as the tarsilah) and the resolution of disputes, including rituals of harmony and healing. While there are numerous anthropological and ethnographic studies conducted in the Philippines, no comprehensive and exhaustive study of customary laws have been conducted as of yet. The modes of land acquisition of Maranaos are different from Maguindanaoans, and perhaps from the other tribes as well. Rituals of harmony and healing abound and are undoubtedly vary from one tribe to another, yet these are not sufficiently harnessed to inform and enhance conflict resolution strategies. Various legends and historical accounts

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Selected Readings and References

Section 1

Introduction

Historical and Situational Background of Land Tenure Disputes in Central Mindanao Alejo, A. S.J. (2000). Generating energies in Mt. Apo: Cultural politics in a contested environment. Quezon City: Ateneo de Manila University Press. 324 pages.

Alim, G., Bulao, J., & Kulat, I. (2007). Understanding inter-ethnic conflicts in North Cotabato and Bukidnon. In W. M. III Torres. (ed). Rido: Clan feuding and conflict management in Mindanao. Makati City, Philippines: The Asia Foundation.

Asani, A. (1981). Moros - not Filipinos. Diliman Review, MarchApril 1981, 27-33.

Harre, R. & van Langenhove, L. (1999) Positioning theory: Moral contexts of intentional action. USA: Blackwell Publishers Ltd.

Ballesteros, A. G. (2001). A divided court: Case materials from the constitutional challenge to the Indigenous Peoples Rights Act of 1997. 622p.

Kamlian, J. (2007). Survey of feuding families and clans in selected provinces in Mindanao. In W. M. III Torres. (ed). Rido: Clan feuding and conflict management in Mindanao. Makati City, Philippines: The Asia Foundation.

Fernandez, P. (1976). Customary law in pre-conquest Philippines. Quezon City: UP Law Center.

Matuan, M. (2007). Inventory of existing rido in Lanao del Sur (1994-2004). In W. M. III Torres. (ed). Rido: Clan feuding and conflict management in Mindanao. Makati City, Philippines: The Asia Foundation.

Gaspar, C. (1999). Contestations, negotiations and common actions: A study of civil society engagement in the Arakan Manobos’ struggle for self-determination. Unpublished MA Thesis, University of the Philippines, Quezon City.

Torres, W. M. III. (2007). Rido: Clan feuding and conflict management in Mindanao. Makati City, Philippines: The Asia Foundation.

Gatmaytan. A. ed. (2007). Negotiating autonomy: Case studies on Philippine indigenous peoples’ land rights. Quezon City/Copenhagen: Legal Rights and Natural Resources Center, Inc. and International Work Group on Indigenous Affairs

Tolibas-Nuñez, R. (1997). Roots of conflict: Muslims, Christians, and the Mindanao struggle. Makati City, Philippines: Asian Institute of Management.

Gowing, P. (1977). Mandate in Moroland. The American Government of Muslim Filipinos, 1899-1920. Quezon City: Philippine Center for Advanced Studies, UP System. Gowing, P. (1979). Muslim Filipinos -- heritage and horizon. Quezon City: New Day Publishers.

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Hayase, S. (2007). Mindanao ethnohistory beyond nations. Quezon City: Ateneo de Manila University Press.

Mercado, E. Jr. OMI. 1999. Southern Philippines question. Cotabato City: Notre Dame Press. Covers the implementation portion of the GRP-MNLF peace agreement up to 1999.

Iribani, A. (2006). Give peace a chance: The story of the GRP-MNLF peace talks.

Ramos, F. (1996). Break not the peace: The story of the GRP-MNLF peace negotiation, 1992-1996. Manila: November.

Jubair, S. (1999). Bangsamoro: A nation under endless tyranny. Kuala Lumpur: IQ Marin SDN BHD, October. Updated and Expanded Edition.

Rodil, R. (1994). The minoritization of the indigenous peoples of Mindanao and the Sulu Archipelago. Davao City: Alternate Forum for Research in Mindanao (AFRIM), Inc. 123p.

Jubair, S. (2007). The long road to peace: Inside the GRP-MILF negotiations. Cotabato City: Institute of Bangsamoro Studies.

Rodil, R. (2003). A Story of Mindanao and Sulu in question and answer. Davao City: Mincode.

Land Equity International (2004). Land tenure study report: Book 1 - results. Quezon City: Philippines-Australia Land Administration and Management Project (PA-LAMP).

Rodil, R. (1987). Bangsamoro vs. Bangsa Filipino in Cotabato: A game of numbers or a matter of fundamental right? Moro Kurier, July-Sept, pp. 13-16.

Lynch, O. (1991). Colonial legacies in a fragile republic: A history of Philippine land law and state formation with emphasis on the early U.S. regime (1898-1913). USA: Yale University Law School, PhD Dissertation.

Rodil, R. (1990). The Lumad side on the issue of autonomy in Mindanao. The PSSC Social Science Information, July-September, pp. 4-14.

Majul, C. A. (1973). Muslims in the Philippines. Quezon City: Asian Center, University of the Philippines Press

Rodil, R. (1991). Solving the Mindanao conflict through the constitutional approach. PSSC Social Science Information: 19 (1 & 2): 24-35. Also in Mindanao Forum: Official Journal of MSU-Iligan Institute of Technology IX (1): 73-94.

Manuel, E. A. (1973). Manuvu’s social organization. Quezon City: University of the Philippines Press. First edition published by the Community Development Research Council, University of the Philippines, Quezon City.

Rodil, R. (2000). Kalinaw Mindanaw: The story of the GRP-MNLF peace process, 1975-1996. Davao City: Alternate Forum for Research in Mindanao (AFRIM), Inc.

Maquiso, E. (1977). Ulahingan series 1 [Ulahingan: An epic of the Southern Philippines]. Dumaguete City: Elena G. Maquiso and Silliman University Press. 290 pages..

Schlegel, S. (1970). Tiruray justice: Traditional Tiruray law and morality. USA: University of California Press.

Mastura, M. (1979). The rulers of Maguindanao in modern history, 1515-1903. Unpublished. 527p.

Suminguit, V. (1989). The Subanon culture in Mount Malindang: An ethnography. Master’s Thesis, UP Diliman, Quezon City. 189

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Tolibas – Nuñez, R. (1997). Roots of conflict Muslims, Christians, and the Mindanao struggle. Makati City: Asian Institute of Management.

Buat, M. (1973). Survey of Filipino Muslim adat (cutomary) law. Mindanao Journal/Vol. 111, No. 3-4, p.9. On the codification of muslim customary (adat) and qur’anic laws, Papers of the Sixth Annual Seminar on Islam in the Philippines and Asia, September 20-23, 1973, Ateneo de Davao College, Davao City.

Torres, W. III. ed. (2007). Rido: Clan feuding and conflict management in Mindanao. Makati City, Philippines: The Asia Foundation.

Colchester, M. (2001). A survey of indigenous land tenure: A report for the land tenure service of the food and agriculture organization. Moreton-in-Marsh, UK: Forest Peoples Programme, 2001, Retrieved on May 2009 from http://www. forestpeoples.org/documents/law_hr/fao_land_tenure_report_dec01_eng.pdf.

Vidal, A. (2004). Conflicting laws, overlapping claims: The politics of indigenous peoples’ land rights in Mindanao. Davao City: AFRIM - Mindanao Focus. Special Edition.

Section 2 Corpus, O. (2005). The roots of the Filipino nation, Vol.1. Quezon city: University of the Philippines Press.

Laws and Issuances Affecting the Moro Lands Abbas, M. Jr. (1977). The historical, political, social and legal justification for codification and enforcement of Muslim laws and adat laws. Mindanao Journal, Vol. III, No. 3-4, January-June 1977 pp.109-136.

Flavier et al (2001). Comment-in-Intervention. In A. G. Ballesteros (ed.). A divided court: Case materials from the constitutional challenge to the Indigenous Peoples’ Rights Act of 1997. Philippines: LRC-KSK/Friends of the Earth Philippines. p.225.

Blair, E. H. & Robertson, J. (1903-1909). List of Philippine governors. In E. H. Blair and J. Robertson (eds.). The Philippine Islands, 1493-1898. Explorations by early navigators, descriptions of the islands and their peoples, their history and records of the catholic missions, as related in the contemporaneous books and manuscripts, showing the political, economic, commercial and religious conditions of those islands from their earliest relations with European nations to the close of the nineteenth century (55 volumes). Cleveland: The Arthur H. Clark Co., 1903-1909, Vol. 17, p.310.

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Jubair, S. (1999). Bangsamoro: A nation under endless tyranny, pp.95-97, pp.102-103 and pp.119-120 (Third edition, updated and expanded). Kuala Lumpur: IQ Marin Sdn Bhd. Lala, R. R. (1899). The Philippine islands. New York: Continental Publishing Company, 1899 (1898), pp.58-60.

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LeRoy, J. ( ). The Philipines, 1860-1898—Some Comment and Bibliographical Notes 1841-1898. In E. H. Blair and J. Robertson (eds.), The Philippine islands, 1493-1898. explorations by early navigators, descriptions of the islands and their peoples, their history and records of the catholic missions, as related in the contemporaneous books and manuscripts, showing the political, economic, commercial and religious conditions of those islands from their earliest relations with European nations to the close of the nineteenth century (55 volumes). Cleveland: The Arthur H. Clark Co., 1903-1909, Vol. 17, p.310.

Prill-Brett, J. (2003). Changes in indigenous common property regimes and development policies in the northern Philippines, p.3. The paper was presented at the RCSD International Conference Politics of the Commons: Articulating Development and Strengthening Local Practices, 11-14 July 2003, Lotus Pang Suan Kaew Hotel, Chiang Mai, Thailand, p.3. Retrieved on May 2009 from http://dlc.dlib.indiana.edu/ archive/00001109/00/June_Prill_brett.pdf Rodil, R. (2003). A Story of Mindanao and Sulu in question and answer. p. 101. Davao City: MINCODE.

Lynch, O. Jr. (1988). Land rights, land laws and land usurpation: The Spanish era (1565-1898). Philippine Law Journal, Vol. 63, June 1988, p.109.

Silva, R.D. (1979). Two hills of the same land: Truth behind the Mindanao problem. Mindanao-Sulu: Critical Studies & Research Group.

Mastura, M. (2008). Outstanding issues on land ownership and tenure. A presentation made in the Dialogue with Justice Taihakure (Eddie) Durie initiated by the NZAID and the BDA on March 4, 2008 at the Marco Polo Hotel, Davao City.

Vargas & Manalac (1936). Philippine land registration law. In Sanchez v. Director of Lands, G.R. No. L-43094, August 31, 1936).

Muslim, M. A. & Cagoco-Guiam, R. (1999). Mindanao: Land of promise. Retrieved on May 2009 from http://www.c-r.org/ our-work/accord/philippines-mindanao/promised-land. php

Zaide, G. & Zaide S. (1990). Philippine territory under Spanish rule (1886). In G. Zaide and S. Zaide. Documentary sources of Philippine history. Manila: National Book Store, 1990, Vol. 7, Document 318, pp.346-347.

Paderanga, C. Jr. (1955). A review of land settlements in the Philippines. In Mindanao Studies Reports, 1955/No.2, p. 14, University of the Philippines Center for Integrative and Development Studies.

Section 3

PeĂąa, N. (1994). Registration of land titles and deeds pp.726-738. Manila: Rex Bookstore, Inc..

Harre, R. & van Langenhove, L. (1999) Positioning theory: Moral contexts of intentional action. USA: Blackwell Publishers Ltd.

Positioning Analysis of Land Laws Affecting the Moro Lands

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Section 7

Parcasio Al Haj, R. (n.d.). Review and assessment of the 1996 GRPOIC-MNLF peace agreement. Retrieved on July 28, 2009 from http://mnlf.net/OIC/1st%20Tripartite,%201996_PA_ update.pdf

Summary of Findings and Recommendations Gatmaytan, A. (2007). Philippine indigenous peoples and the quest for autonomy: Negotiated or compromised? In A. Gatmaytan (ed). Negotiating autonomy: Case studies on Philippine indigenous peoples’ land rights (pp.1-35). Quezon City/Copenhagen: Legal Rights and Natural Resources Center, Inc. and International Work Group on Indigenous Affairs.

Section 6 The Canadian Experience in Resolution of Land Conflicts Involving Aboriginal People Dickason, O. P. (2002). Canada’s First Nations: A history of founding peoples from earliest times. Ontario: Oxford University Press.

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Karim, K. H. (1993). Reconstructing the multicultural community in Canada: Discursive strategies of inclusion and exclusion. International Journal of Politics, Culture, and Society vol. 7, 2: 189-207

Santos, S. (2002). Political values, beliefs and practices. In F. Rosario-Braid. Muslim and Christian cultures: In search of commonalities (pp. 159-198). Manila: Asian Institute of Journalism and Communication (AIJC) and United Nations Educational, Scientific and Cultural Organization (UNESCO) National Commission of the Philippines.

http://www.canadiana.org/citm/themes/aboriginals_e.html Indian Claims Commission (http://www.indianclaims.ca/about/ process-en.asp)

Türkmen, S. (2003). Identity in the colonial lands: A critical overview of the postcolonial studies. In Alternatives: Turkish Journal of International Relations, Vol. 2 No. 3&4, Fall&Winter, pp. 183-203. Wolff, J. (2001). Levelling down. In K. Dowding, J. Hughes and H. Margetts, Macmillan (eds). Challenges to Democracy: The PSA Yearbook 2000. London: University College London.

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