|Balancing Acts: Community-Based Forest Management and National Law in Asia and the Pacific (WRI, 1995, 204 pages)|
|II. Historical Overview: Colonial Patterns of Forest Management|
Unlike their counterparts from the Netherlands and Britain, Spanish administrators recognized two kinds of private property rights during the first 350 years of their rule in the Philippines: those held by custom and those held by the Crown. Customary rights were predicated on usage and possession, while portions of the royal domain, or terrenos realengos, were bestowed by the Crown and its authorized subordinates to colonial entrepreneurs. Soon after the first Governor General and his entourage arrived, royal grants of these crown lands established private estates for "deserving" Spanish citizens.43
Debate over the legal basis of Spain's sovereignty in its far-flung empire in the Philippines and the Americas influenced official attitudes toward the Crown's ownership of land and other natural resources. The debate was prompted in part by reports of greed and the brutality being inflicted by Spanish colonists on indigenous Americans. Initially hesitant King Philip II resolved that a similar fate would not befall the Philippine natives, and made an "irrevocable commitment of the Spanish colonial policy" to treat "natives as 'new Christians' [who] merited some effective guarantees of their property rights."44 The various laws promulgated to promote these guarantees, many of which also applied to non-Christians, allowed land to be apportioned among the Philippine colonists, but did not allow them to "occupy or take possession of any private property of the Indians."45
In theory, the royal decrees provided potentially important recognition of community-based rights. In practice, however, the decrees were often disobeyed and ignored. Although colonial authorities documented and registered individual land rights to religious orders, institutions, and corporations (legal entities treated as "individuals"), community-based tenurial rights to ancestral domains were seen as non-recognizable abstractions. Indigenous communities, thus, had no documentary existence and were unable to secure recognition of their rights. Meanwhile, Spanish colonials, as well as native and Chinese mestizo elites, regularly usurped community-based rights.
The Spanish colonial government was continually bedeviled by confusion and unrest over the nature and extent of land rights. The legal significance of land registration, for example, was never conclusively resolved. Land laws consisted of "numberless single decrees forming a casuistical, disconnected, complicated and confused mass."46 Further complicating the situation, the Spanish administration failed to keep systematic records.47
Most ancestral domains in the Philippines, like those in other Asian colonies, remained beyond colonial control. The farther from Manila, Cebu, or other colonial centers, or the lower the perceived value of the land, the greater the likelihood that indigenous patterns of resource allocation would remain intact. But the security provided by distance or isolation lasted only as long as the forces of technology, population growth, and material acquisitiveness stayed at bay. Under the impetus of lucrative plantation agriculture, especially sugar cane and tobacco, colonial rule spread throughout the islands.
In the late 1820s, Manuel Bernaldez, a high-ranking colonial official who had spent 17 years in the Philippines, noted that the Indians of the villages typically provided proof of their customary property rights by evidence of tradition and the depositions of witnesses. Claiming that customary rights prompted controversy and litigation, Bernaldez called for the Crown to oblige all the villages and private individual landowners to acquire official documentation of their ownership.48 Indigenous peoples who didn't secure official documentation would not have their ancestral-domain rights recognized and would become squatters on Crown lands.
Seventy years later, colonial administrators in Manila resorted to Bernaldez's ploy in a last-ditch attempt to address the widespread resentment caused by the spread of plantation agriculture and confusion over the documented-property regime. The preamble of the Royal Decree of February 13,1894 (known as the "Maura Act") declared that it would "insure to the natives, in the future, whenever it may be possible, the necessary land for cultivation, in accordance with traditional usages." Article 4, however, revealed a different purpose, providing that undocumented property rights would revert to the colonial state. Those with land-title applications pending had one year to document their claims. No extensions were allowed, and any titles issued after April 17, 1895, would have "no force and effect."
The Maura Act highlighted the colonial regime's insensitivity to the plight and potential of the colony's poor rural majority. By empowering colonial officials to deny legal recognition of community-based property rights, the Maura Act reneged on Spain's three-centuries-old (albeit largely ignored) commitment to respect such traditions, thus disenfranchising several million rural farmers.
To the great majority of the rural poor, the very idea of a documented land title was foreign and the Maura Law was incomprehensible. Most of the few who acquired legal titles had collaborated with and prospered under the colonial regime, and these so-called caciques often laid claim to more land than they had a legitimate right to. In many cases, peasants who had been using land for generations, but had not known or cared about documentary titles, were suddenly confronted by influential people invoking colonial law and claiming their land. Many people surprised by this legal change were forced to flee their ancestral areas or became tenants.49
Two years after the Maura Law was enacted, the first revolution against colonial rule in Southeast Asia erupted in the Philippines, partly because of inequitable allocation of legal rights to natural resources. In 1898, before the revolution had played itself out, the United States acquired the Philippines as a result of the Spanish-American War.50 Despite strong anti-imperialist sentiment in the U.S. Congress and the popular press, the new colonial administration, encouraged by domestic agricultural interests, maintained the inequities that resulted from the Maura Act. A fire in Manila in 1897 that destroyed the main repository of documents pertaining to land titles and claims undermined what few legal rights had been recognized.
To justify and perpetuate the expropriations based on the Maura Act of 1894 - and hence their own holdings - the U.S. colonial government devised and promoted a legal myth now known as the "Regalian Doctrine" (from the adjective "regal"). According to this fabrication, Ferdinand Magellan appropriated every Filipino forebears' sovereignty and property rights when he planted a cross on a small island in the middle of the archipelago in 1521. At that moment, every native in the still- unexplored (not to mention unconquered, as Magellan would soon attest with his life) archipelago technically became a squatter, bereft of legal rights to land or other natural resources.
The mythical Regalian Doctrine provided the new colonial regime with a convenient legal pretext for claiming ownership of more than 90 percent of the Philippines' total land mass. It likewise nurtured the largely unrealized hope of senior U.S. colonial officials who believed that they could lure U.S. corporations - especially sugar-cane-growing enterprises - to the Philippines by providing them with legal rights over large tracts of fertile land.51 A ruling by the U.S. Supreme Court in 1909 which refuted the Regalian Doctrine (see Box 5), meanwhile, was essentially ignored by the Manila-based regime.
Box 5. The U.S. Supreme Court v. the Regalian Doctrine
The Regalian Doctrine was legally refuted in a 1909 U. S. Supreme Court decision, Cariño v. the Insular Government. Written by Oliver Wendell Holmes for a unanimous court, this decision affirmed that land occupied in the Philippines since time immemorial was never legally public land. Holmes emphasized that even if Spain refused to recognize the undocumented community-based property rights of indigenous occupants, it did "not follow that, in the view of the United States, [they] had lost all rights and [were] mere trespasser[s]." On the other hand, Holmes went on to chasten those who interpreted the Maura Law as being "the confiscation of a right" by opining that the Maura Law merely "[w]ithdrew the privilege to register rights."
Holmes considered the Regalian Doctrine repugnant, noting that the argument "seems to amount to a denial of native titles... for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce." He was shocked that the U.S. government:
was ready to declare that "any person" did not embrace the inhabitants of [Cariño's home province of] Benguet, or that it meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association - one of the profound-est factors in human thought - regarded as their own.a
The Cariño decision has never been overruled or reversed, and it remains good law in the Philippines. Even so, U.S. colonial officials and their successors in the Philippine Republic have ignored it in favor of the historically and legally flawed Regalian Doctrine for more than 80 years.b
a. United States Report, 212:449.
b. See generally Dante B. Gatmaytan, "Ancestral Domain Recognition
in the Philippines: Trends in Jurisprudence and Legislation," Philippine
Natural Resources Law Journal