Strategies in Dispute Resolution in Land Use Conflict
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This document summarizes key aspects of the legal and institutional framework for land use and resource development in the Philippines. It outlines the country's constitution, which establishes state ownership of natural resources, and laws governing energy development, including those allowing for foreign investment. The document also discusses important laws related to energy projects, such as those protecting indigenous peoples' rights and the environment. Overall, the legal framework emphasizes the state's control over natural resources and requirements for engaging communities and obtaining necessary permits.
Strategies in Dispute Resolution in Land Use Conflict
- 1. Strategies in Dispute Resolution in terms of Land Use Con7lict Atty. Fernando S. Penarroyo Asian Ins(tute of Technology Design and Delivery of a Professional Development Course on Effec9ve Nego9a9on and Strategic Management for Gas, Oil and Coal Industries Manila, Philippines 22 January 2015 Puno & Peñarroyo Law Of7ices
- 2. Contents • Legal and Ins(tu(onal Framework -‐ The Need to Know the Law -‐ Review of Current Philippine Resources Laws: Energy and other Resources Laws and Regula(ons, Important Laws Related to Energy Development, & Other Laws Related to Energy Development • Land Use and Governance • Resolving Land Tenure Conflicts
- 3. LEGAL AND INSTITUTIONAL FRAMEWORK
- 4. Legal/institutional due diligence and risk assessment • Presence of indigenous peoples or vulnerable minori(es • Legal and regulatory framework with IPs • Presence of legacy and livelihood ac(vity • Proximity to parks, reserves and areas of special environmental significance, cultural heritage or high biodiversity • Character of na(onal and local government and IPs • Presence of ac(ve community level conflict over land and resource development
- 5. Land Use is a Human Rights Issue • COMMUNITIES: -‐ respect rights of communi(es affected and rights of indigenous and tribal peoples; -‐ obtain permission from relevant owners, occupiers or users before entering onto a land; -‐ respect and protect local culture and tradi(ons; -‐ be mindful of the obliga(on to protect sources of food and water; -‐ in consulta(on with the community, develop a process to compensate fairly for adverse effects; -‐ consult community to iden(fy strategies to manage social consequences; -‐ avoid displacement or reseYlement of people
- 6. REVIEW OF CURRENT PHILIPPINE RESOURCES LAWS
- 7. Energy Development Laws and other Regulations • Philippine Cons(tu(on of 1987 (“Cons(tu(on”) • Presiden(al Decree (P.D.) 87, as amended, "Oil Explora(on and Development Act of 1972” for petroleum service contracts • PD 972,as amended, introduced the coal service contract system and established the guidelines for coal opera(ons. – coal opera(ng contracts • RA 9513 “Renewable Energy Law of 2008” for renewable energy service contracts • Other Laws
- 8. Constitution • All lands of the public domain, water, minerals, coal, petroleum, and other mineral oils, all forces of poten(al energy, fisheries, forests or (mber, wildlife, flora and other natural resources are owned by the state. • The explora(on, development and u(liza(on of these natural resources are under the full control and supervision of the State.
- 9. Constitution • The State has the op(on of entering into co-‐ produc(on, joint venture or produc(on sharing agreements with Philippine ci(zens of Philippine corpora(ons or associa(ons. • At least 60% of the capital of a corpora(on or associa(on must be owned by Phil. Ci(zen to qualify as a Philippine corpora(on or associa(on.
- 10. Constitution • Excep(on to the na(onality requirement: The Cons(tu(on authorizes the President to enter into agreements with foreign-‐owned corpora(ons involving either financial or technical assistance, for large-‐ scale explora(on, development and u(liza(on of minerals, petroleum and other mineral oils.
- 11. Constitution • Ownership of natural resources (Regalian doctrine) – if an investor wishes to acquire the right to extract or develop natural resources, he must enter into an agreement with State
- 12. Foreign Equity in Energy Development • Presiden(al Decree (P.D.) 87, as amended, "Oil Explora(on and Development Act of 1972” for petroleum service contracts – allows 100% foreign ownership • PD 972,as amended, introduced the coal service contract system and established the guidelines for coal opera(ons – 60/40 coal opera(ng contracts • RA 9513 “Renewable Energy Law of 2008” for renewable energy service contracts
- 13. Important Laws Related to Energy Development • Indigenous Peoples Rights Act (“IPRA”) • Environmental Impact Statement (“EIS”) System • Local Government Code of 1991 • Na(onal Integrated Protected Areas System Act (“NIPAS”)
- 14. IPRA • Grants to indigenous cultural communi(es certain preferen(al rights to their ancestral domains and all resources found therein. • Rooted in the exercise of customary law • Royalty and right to benefits • No agreement shall be approved unless: -‐ There is prior cer(fica(on from NCIP that area does not overlap ancestral domain or -‐ Prior free and informed consent has been obtained from the ICC/IP concerned
- 15. BASIC PROCESS OF CP ISSUANCE AGENCY ENDORSEMENT CP ISSUANCE FPIC MOA FBI
- 16. FPIC MANDATORY ACTIVITES UNDER SEC 6 (A) POSTING OF NOTICES AND SERVING OF INVITATION TO IP ELDERS/LEADER CONSULTATIVE COMMUNITY ASSEMBLY CONSENSUS BUILDING AND FREEDOM PERIOD DECISION MEETING
- 17. FPIC PROCESS FLOWCHART FBI - Field – Based investigation CNO – Certificate of non-Overlap issued by Regional Director MOA – Memorandum of Agreement ENDORSING GOVERNMENT AGENCY APPLICANT NCIP REGIONAL OFFICE PRE-FBI CONFERENCE PAYMENT OF FBI FEE FBI PROJECT REJECTED MOA & SUPPORTING DOCUMENTS PROJECT ACCEPTED FPIC MANDATORY ACTIVITIES PAYMENT OF FPIC FEE FBI REPORT OVERLAP COMMISSION EN BANC PRE-FPIC CONFERENCE CNO ISSUED BY REGIONAL DIRECTOR NO OVERLAP NO OVERLAP PER MASTERLIST OVERLAP PER MASTERLIST OR MASTERLIST NOT AVAILABLE CNO ISSUED IN 3 DAYS Major Projects (Sec. 6A)- 70 days processing Small Scale Projects (Sec. 6B)-50 days processing
- 18. Issues with IPRA • Free and prior informed consent -‐ right to self determina(on, respect for IP decision-‐making process, right to accept or reject projects on ancestral domain -‐ WB Opera(onal Policy 4.10 (2005) 'free, prior, and informed consulta9on resul9ng in broad community support' • Iden(ty of proper IPs • Lack of clear cut rules on how to arrive at a decision making process of IPs • Preferen(al rights of IPs
- 19. Local Government Code • Proponents applying for explora(on applica(ons intended for explora(on ac(vi(es are required to conduct consulta(on with all LGUs concerned, or the legisla(ve councils (sanggunian) at the provincial, city/municipal, and barangay levels. • Concerns raised by LGUs include: wastes, emissions and pollu(on; loss of agricultural land and subsequent livelihood; threat to water resources; reloca(on and right of way • Declara(on of mining moratoriums, ban of par(cular technologies like open pit mining and submarine tailings disposal, and opposi(on to energy projects like coal-‐fired and hydro power plants, wind farms and geothermal explora(on
- 20. Issues with LGUs • Local government veto/moratorium on energy development and produc(on • Integra(on of energy development into local development land use and resources use plans • Alloca(on of government share -‐ Na(onal government should develop a transparent system of accoun(ng for and alloca(on of sharing of revenues and taxes with LGUs. -‐ Expedite and streamline the release of LGU share on revenues and taxes through a simplified process with (meframe requirements to lessen local opposi(on to energy projects. -‐ Local taxa(on
- 21. EIS System under Presidential Decree No. 1586 • Project proponent of environmentally cri(cal projects and projects within environmentally cri(cal areas must obtain an environmental compliance cer(ficate prior to commencement • EMB/DENR as lead agency • DAO 2003-‐30 Implemen(ng Rules and Regula(ons
- 22. The Environmental Impact Assessment Process Environmental Consultants STAKE HOLDERS: • Direct and Indirect Impact Communities • LGU • NGO s • PO s • GO s Baseline Data Collection (Collection of Base-line data of the Bio-physical and Sociocultural Environment) SITE SCOPING (Stake holder's perception of the Problems, Issues and Concerns of their present Biophysical and Sociocultural Environment) Environmental Impact Assessment (Analysis of the Impacts and Mitigations based on secondary and base-line data collected. I. Environment Management Plan II. Social Development Plan EIS Document Preparation EIA Review by EMB PUBLIC HEARING Approved Disapproved Issuance of Environment Compliance Certificate DENR – EMB organizing of the Multipartite Monitoring Team
- 23. Other Laws Related to Energy Development • Ecological Solid Waste Management Act • Toxic Substances and Hazardous and Nuclear Wastes Control Act • Clean Air Act • Clean Water Act • 1976 Philippine Water Code defines the extent of the rights and obliga(ons of water users • 1998 Philippine Fisheries Code provides for the sustainable development of fishery and aqua(c resources • Pollu(on Control Law • Na(onal Environmental User’s Fee of 2002 • Palawan Council for Sustainable Development
- 24. Rules of Procedure for Environmental Cases • Introduced new remedies for the “alleged” viola(on of environmental laws: temporary environmental protec(on order, writ of con(nuing mandamus, writ of kalikasan • TEPO is in contraven(on of “no injunc(on rule” under PDs 605 and 1818 • harassment suits?
- 25. PHILIPPINE LAND USE AND GOVERNANCE
- 26. Application of the Uses of Land in the Philippines Senate Economic Planning Office (October, 2005) • Economic and Commercial Uses and Food Produc(on -‐ economic and commercial use of land may, at (mes, be in conflict with the food produc(on role of land • Shelter -‐ the growing popula(on of the country has resulted in an increasing demand for housing. • Environment Protec(on -‐ increasing popula(on, resource exploita(on, hyper-‐urbaniza(on and industrializa(on have put much pressure on the biological and physical well-‐being of the environment. • Indigenous Peoples – IP interpreta(ons of property rights over iden(fied areas are open not consistent with concession rights given by government through the market economy’s land registra(on and (tling system.
- 27. Land Sector Governance in the Philippines Land Governance Assessment Framework (WB, 2013) • Key challenges to improving land governance: -‐ First, the country has one of the fastest growing popula(on in Asia. -‐ Second, investments in agriculture and property development are being stymied by con(nuing property rights problems and inconsistent policy. -‐ Third, smaller sized farms resul(ng from comple(on of land redistribu(on pose challenges in improving produc(vity to meet food security. -‐ Fourth, degrada(on of the country’s forests and natural resources has affected the due to their dependence on these resources.
- 28. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Key challenges to improving land governance: -‐ Fiph, as the country scales up public investments in infrastructure to promote inclusive growth, it becomes more crucial to set clear and equitable policies on expropria(on and safeguards for those whose proper(es would be affected. -‐ Finally, the challenges of crea(ng an improved environment for private investments are associated with having a well-‐func(oning land market that is backed up by access to reliable land informa(on, an efficient and complete registry, and clear and transparent procedures for rights registra(on and transac(ons on real property.
- 29. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Indicators and Dimensions with High Governance Ra6ngs (A Ra6ngs) -‐ Strong legal framework and clear land policies. The country fared high on the strength of its legal framework for land rights recogni(on. -‐ Good Governance Prac(ces. Strong campaign for good governance, computeriza(on efforts, and advocacies for greater transparency in government. Strong public par(cipa(on in the formula(on of land policies, owing to the vibrant civil society sector, and the democra(c space created by the legisla(ve process.
- 30. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Areas Needing Improvement (B Ra6ng) -‐ Legal and Ins(tu(onal Framework. The country’s efforts at recogni(on, mapping and registra(on of ancestral domains are s(ll considered second best prac(ce, with only 56% comple(on. The country lacks policies and procedures for compensa(on for loss of rights in case of establishment of protected areas. -‐ Land Use Planning and Management. Public par(cipa(on in land use and classifica(on processes such as forest boundary delinea(on, forest land use planning, and management planning can s(ll be improved.
- 31. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Areas Needing Improvement (B Ra6ng) -‐ Large Scale Land Acquisi(on. Policies and guidelines encourage direct nego(a(ons between rights holders and investors but in most cases, these are not always transparent. Environmental and social safeguards are in place, but there is weak monitoring of compliance. -‐ On Forestry. Large por(ons of public lands are classified as forestlands, key biodiversity areas and protected areas, and ancestral domains. While most of the policies are already in place, much could be improve with effec(ve implementa(on and consistent applica(on; resourcing; and realloca(on of resources.
- 32. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Areas Where Philippines is Struggling to Meet Good Governance Criteria (C or D Ra6ngs) -‐ Strong horizontal overlaps in mandates of key land agencies. These include DAR, DENR, LRA, and NCIP, reflec(ng the many agencies issuing original (tles, review and approval of survey plans, and maintenance of land records in various forms. Affect efficiency in service delivery and prohibit access by the to complete and reliable land records. Current state of records and overlapping mandates create confusion and create long standing disputes owing to contradictory rulings issued by the agencies.
- 33. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Areas Where Philippines is Struggling to Meet Good Governance Criteria (C or D Ra6ngs) -‐ A large number of urban/residen(al and rural proper(es are s(ll un(tled. -‐ There are strong disincen(ves to registra(on of land transac(ons. -‐ Informa(on on the registry/cadaster is not up to date. -‐ The processes for appeal of land dispute rulings are lengthy and expensive.
- 34. Land Sector Governance in the Philippines Land Governance Assessment Framework (August 2013) • Areas Where Philippines is Struggling to Meet Good Governance Criteria (C or D Ra6ngs) -‐ Conflicts related to use or ownership rights and directly or indirectly related to land acquisi(on are rela(vely frequent; and the inability to address these conflicts expedi(ously and in a transparent manner results in long pending disputes. -‐ Classifica(on of forests into various uses and ownership are not yet clearly defined and demarcated. While the delinea(on and demarca(on of forest boundaries is almost complete; specific uses, tenure and leases within forestlands have not been completely inventoried and registered.
- 35. RESOLVING LAND TENURE CONFLICTS
- 36. Why does resources development generate con7licts • Should energy development prevail over current land-‐uses? • Are the benefits sufficient and fairly distributed? • Are the social and environmental costs fully considered and compensated? • Are the risks of adverse impacts reduced to a minimum and socially acceptable to those who bear them? • When local stakeholders decide that the risks are unacceptable, can the na(onal gov’t override that decision?
- 37. Land Tenure Con7licts Food and Agriculture OrganizaHon, 2006 • mul(layered and mul(dimensional; • best understood in the light of their historical, social, environmental, economic and poli(cal contexts; • open nested within bigger conflicts that may be difficult to see (or which analysts or development stakeholders prefer not to see, because they raise issues which are beyond their desire or capacity to address); and • temporal in nature, changing over (me.
- 38. Three Principal Approaches to Resolving Disputes Lincoln InsHtute of Land Policy (2013) • Rely on power. Use one’s leverage to force or coerce someone to act. • Adjudicate rights. Rely on an arbiter to decide who is right. Set up adjudicatory processes to determine who has legally enforceable right and who does not. • Reconcile interests. Try to sa(sfy needs, concerns, and fears of every-‐one involved.
- 39. Power-‐ and rights-‐based systems • Designed to adjudicate rights, not reconcile interests. • Less likely to produce durable outcomes because results can be overturned when the power balance changes. In local communi(es, the power balance is always shiping with new elec(ons and court challenges. • While such approaches may allow for quick decisions, the results of those decisions are not likely to last or sa(sfy many of the people involved, and they might be challenged through administra(ve and judicial appeals. • These approaches open destroy rela(onships among the involved par(es by crea(ng winners and losers and by fostering mistrust and hos(lity.
- 40. Mutual Gains Approach The mutual gains approach: • is based on all stakeholder interests as well as the necessary technical informa(on; • involves stakeholders along with appointed and elected decision makers; • generates informa(on relevant and salient to stakeholders such as abuYers, community leaders, and others; • requires strong community and public engagement skill along with strong technical planning skills; and • engages the public above and beyond sharing informa(on and views.
- 41. Mutual Gains Approach • The mutual gains approach to preven(ng and resolving land use disputes is not a single process or technique. • It draws from the fields of nego(a(on, consensus building, collabora(ve problem solving, alterna(ve dispute resolu(on, public par(cipa(on, and public administra(on. • The result is a more public, collabora(ve process designed to tease out the range of interests and criteria, compare various alterna(ves, and determine which of those alterna(ves meet the most interests.
- 42. The Required Versus the Mutual Gains Approach Required Mutual Gains Goal A technically viable plan that conforms to all laws, rules, and regula(ons A technically viable plan that integrates stakeholder interests Primary Audience for Plan or Project Decision makers Decision makers and stakeholders Purpose of Data and Informa(on To ensure the plan conforms to professional prac(ce and passes technical review To ensure the plan is feasible and addresses stakeholders’ issues and concerns Skills Technical (engineering, design, and fiscal) and legal Technical, legal, and community engagement (dialogue and delibera(on) Role of Public Provide input and advice Engage in discussion, joint problem solving, and consensus building
- 43. Dispute Resolution Skills US Bureau of Land Management , 2009 Collabora(ve stakeholder engagement and appropriate dispute resolu(on encompass a broad spectrum of “upstream” and “downstream” processes for preven(ng or resolving disputes outside the conven(onal arenas of administra(ve adjudica(on, li(ga(on, or legisla(on. • Understanding posi(ons vs. interests • Understanding Best Alterna(ves to a Nego(ated Agreement • Understanding the effect of different sources of power • Understanding the effect of cultural differences • Understanding the effect of communica(on styles
- 44. Land Tenure Alternative Con7lict Management FAO, 2006 Land and Social Capital • 1.1.1 Legacy and Livelihoods Legacy refers to anything handed down by an ancestor or predecessor and which is presently part of the physical or cultural patrimony of an individual or a community. Livelihood is defined either as the course of life, a life(me, or a kind or way of life; it is a conduct for gaining a means of living or an income. • 1.1.2. Environment, development and sustainability Environmental degrada(on refers to a reduc(on and deteriora(on of the quan(ty and quality of agricultural land and fresh water resources, and in the flow of environmental goods and services.
- 45. Can you make an example of a formal land tenure norm existing in your country that has been shown to be inadequate or damaging to the environment? Land Tenure Norm Why is it inadequate? EXAMPLE Norms that define local forest reserves management Local forest reserves are designated for conserva(on of biodiversity; however, the limited human and financial support has contributed to the massive encroachment and degrada(on of these reserves.
- 46. Land Tenure Alternative Con7lict Management POLITICAL AND INSTITUTIONAL INFRASTRUCURE • 1.2.1 Poli(cal environment Socio-‐economic change, as well as changes in cultural norms and prac(ces, create not only conflicts over tenure and access rules, but also threaten exis(ng poli(cal authori(es and sources of power. Consequently, land tenure and its ins(tu(ons are inherently poli(cal constructs whose workings, dynamics and outcomes are also poli(cal. • 1.2.2 Rights of access, use and security: sources of conflict Access is the ability to use land and other natural resources, to control these resources, and to transfer land rights to take advantage of other opportuni(es. Use is the right to use land for agriculture, grazing, gathering forestry products, etc. Security of tenure is the certainty that a person’s rights to land are recognized by others and protected in case of specific challenges.
- 47. Land Tenure Alternative Con7lict Management POLITICAL AND INSTITUTIONAL INFRASTRUCURE • 1.2.3 Ins(tu(onal infrastructure A land Htle is a right of ownership in real property. The issuance of land (tles and land cer(ficates has at (mes resulted in land conflicts, par(cularly when different state en((es under different legisla(ons issue different (tle documents. The land registry is where legally recognized interests in land – (tles and contracts – are officially recorded. The land register is the defini(ve record of all registered proper(es, and comprises the registered details for each property, such as: the name of the landholder/owner; the loca(on of the land; how the land has been acquired; the size of the land parcel; the type of land right. A cadastre is generally a parcel-‐based land informa(on system containing a record of interests in land rights, restric(ons and responsibili(es.
- 48. Land Tenure Alternative Con7lict Management In your work, with which type of land conflict do you deal most oIen: over access, over use, or over security? Explain your answer illustra6ng a case. EXAMPLE. Most of the land conflicts in their country are over use and security. The designaHon of protected forestland by the state has caused uncertainty in local communiHes living within these areas. Through this designaHon, the government will prohibit local communiHes from using the land, leading to their impoverishment. Many of these communiHes started legal claims, but as they do not have ownership rights (the best legal status in this country), the state has not recognized the claims. Consider the Registry and the Cadastre in your country. Do you think they are efficient? Is the informa6on they have up-‐to-‐date? Is it available for consulta6on? Do you find it easy to access their facili6es? Why or why not?
- 49. Land Tenure Alternative Con7lict Management RELEVANT LEGAL ASPECTS • 1.3.1 Land tenure These rules may pertain to formal, customary or informal systems Formal context -‐ The formal tenure regime refers to state legisla(on (laws, codes, decrees, and regula(ons) and the ins(tu(ons that govern land and natural resource rights within the state’s boundaries. Customary systems -‐ If the legi(macy of a set of rules and ins(tu(ons (formal or informal) that regulate land tenure derives from a different authority – such as a community, clan or associa(on – the regime will be called a ‘customary tenure system’. Informal context -‐ Where neither formal nor customary legal frameworks are effec(ve or appropriate to the local condi(ons, ad hoc informal land tenure systems – with their own rules, authori(es, and ins(tu(ons – may be created by disaffected or frustrated social actors. The existence of informal tenure systems is likely to increase uncertainty, par(cularly in land conflict situa(ons.
- 50. Land Tenure Alternative Con7lict Management RELEVANT LEGAL ASPECTS • 1.3.2 Land administra(on Legal pluralism occurs when different land tenure regimes, each with their own legal framework, have legal authority over land rights and are each legi(mized to resolve conflict. Gives rise to situa(ons where there are contradic(ons, ambigui(es or ignorance over statutory and customary rules and legal norms. • cause confusion as to which legal system should be and can be appealed to in a given conflict; • offer opportuni(es for forum shopping by those whose financial and educa(onal status enable them to operate within both the customary and state legal systems; • be disadvantageous to certain popula(on groups such as the poor and uneducated, for whom formal state ins(tu(ons are distant, expensive and conceptually foreign; • create a sense of insecurity among landholders in customary systems vis-‐à-‐vis outsiders who lay claim to community land.
- 51. Can you think of an example land tenure con<lict that the actors would be able to resolve if they knew what their legal rights and obligations were? Type of conflict Actor Unknown rights and obligations Access to protected areas and use of their natural resources Traditional communities living next to protected areas EXAMPLE. In some areas adjacent to protected areas, the communities complain of their inability to access non-‐timber forest products, due to the risk of being arrested by government rangers. The community members are not aware of the forest legislation that allows them to access these products for personal use (subject to entry into formal arrangements and monitoring).
- 52. Can you give an example of a formal and a customary norm that regulate the same issue in a different way or opposite way? Issue Formal norm/Customary norm Access to protected areas and use of their natural resources EXAMPLE. In the National Park, formal forest norms stipulate that forestland is to be used exclusively for conservation interests, and denies all rights of access and use for purposes other than research activities and tourism. This formal norm differs from the customary norms regulating the life of the indigenous people settled in the area, whose traditional livelihood is based in using the forest as a farming area and frequently moving their village to take full advantage of what the forest can offer them.
- 53. Can you think of any case in which two or more organizations possess the legal authority to regulate the same land con<lict? Which authorities are these? Can you brie<ly describe the con<lict? Land ConAlict/Org1/Org 2 EXAMPLE. Such pluralism exists in one particular region where both the Department of Agrarian Reform and the National Authority of Indigenous Peoples are involved. Both agencies claim jurisdiction. The Department has issued CertiAicates of landownership under its Agrarian Reform Program. Meanwhile, the National Authority is not able to defend indigenous communities’ ancestral domain rights over these lands because it does not have enough authority compared to the Department; nor is it even recognized as legitimate by the indigenous communities themselves.
- 54. Land Tenure Alternative Con7lict Management ECONOMIC FRAMEWORK The importance of land, and consequently the rela(ve importance of the land tenure conflict to each stakeholder, depends highly on their economic situa(on. If, for example, land is the only source of income and the exclusive resource of the stakeholder – the basis for their survival – their involvement in the conflict will be greater and they will be ready to do whatever is necessary to maintain their posi(on.
- 55. Land Tenure Alternative Con7lict Management How important is the economic factor in the conflict? Do the actors have sources of income or employment op6ons not related to land? How much does the conflict cost the stakeholders? Do you think that the influence a conflict has on the economy of a group, and the group’s capacity to resolve a conflict, are correlated? Explain your thinking. EXAMPLE. Yes. Where land is scarce the influence of a conflict over land open leads poor communi(es to be deprived of rights of access and use. This affects their economy and their capacity to manage the conflict, especially when the other party is financially sound and supported by the government and it is assumed that he will u(lize land more efficiently.
- 56. Land Tenure Alternative Con7lict Management STAKEHOLDERS 2.1.1 Stakeholder analysis Stakeholders’ involvement in the conflict may be direct or indirect. Stakeholders are directly involved if their interests and needs are part of the object of the conflict and they themselves are ac(ve in the conflict. Stakeholders are indirectly involved if the decisions taken will affect them but they are unable to influence them. Understanding why and to what degree stakeholders are involved is therefore an important element in determining the conflict’s intensity.
- 57. Can you de<ine and explain with an example the difference between direct and indirect stakeholders? DeAinition Example Direct stakeholders Direct stakeholders are those whose interests and needs are the absolute object of the con7lict. EXAMPLE. Tribal groups who are threatened by the actions of logging and mining companies. Their points of contention are: their inherent right and ownership of the ancestral territories; the destruction of their lands and environment, which are the cradle of their culture and of their customary livelihood. Indirect stakeholders Indirect stakeholders are those whose interests are affected only after a resolution of a con7lict is reached. Indirect stakeholders in this con7lict are the non-‐ indigenous groups who support mining because they consider it a work opportunity.
- 58. Conclusion • Resource developers must carry out due diligence to be informed as to the laws, regula(ons, trea(es and standards, and also interna(onal standards of prac(ce associated with land use, social and environmental management. • Exis(ng land use systems are designed to adjudicate rights, not reconcile interests. • The mutual gains approach encourages par(es to focus on mutual interests and strive to achieve mutual gains, minimizing the destruc(ve nature of land use conflicts.
- 59. Strategies in Dispute Resolution in terms of Land Use Con7lict Atty. Fernando S. Penarroyo Asian Ins(tute of Technology
- 60. About the Lecturer • BS Geo, Bachelor of Laws (UP), Master of Laws (Univ. of Melbourne) • Managing Partner, Puno and Penarroyo Law (www.punopenalaw.com) • Trustee and Secretary, Philippine Mineral Explora(on Associa(on • Trustee, Na(onal Geothermal Associa(on of the Philippines • Director, Interna(onal Geothermal Associa(on • Professorial Lecturer, De La Salle-‐FEU MBA-‐Law Program, UP Na(onal Ins(tute of Geological Sciences • hYp://www.philippine-‐resources.com/