LAND GOVERNANCE ASSESSMENT FRAMEWORK IN THE PHILIPPINES OPTIONAL MODULE: LARGE-SCALE ACQUISITION OF LAND RIGHTS

1. LAND GOVERNANCE ASSESSMENT FRAMEWORK IN THE PHILIPPINES OPTIONAL MODULE: LARGE-SCALE ACQUISITION OF LAND RIGHTS June 2013

2. LSLA 1 Most forest land is mapped and rights are registered. Assessment A – More than 70% of the area under forest land has boundaries demarcated and surveyed and associated claims registered. B – 40-70% of the area under forest land has boundaries demarcated and surveyed and associated claims registered. C – 10-40% of the area under forest land has boundaries demarcated and surveyed and associated claims registered. D – Less than 10% of the area under forest land has boundaries demarcated and surveyed and associated claims registered.

3. Findings • Boundaries of forest lands and the classification into various uses and ownership are clearly defined and demarcated: • DENR used land classification maps as reference • Forest land in ARMM is excluded • Those with tenurial arrangements or stewardships are mapped and registered, but not demarcated • Protected areas are fully mapped although only 12 out of 113 proclaimed PAs are demarcated • Limited issuance of PACBRMA in PAs

4. Recommendations • Completion of ground validation, updating of maps based on results, documentation of all tenure in the public domain including CADTs should be pursued. • All mapping should follow same standards to enable preparation of integrated map showing all interests in forest lands.

5. LSLA 2 Land acquisition generates few conflicts and these are addressed expeditiously and transparently. Assessment A – Conflicts related to use or ownership rights and directly or indirectly related to land acquisition are scarce (less than 5% of rural land area affected) and emerging conflicts are addressed expeditiously and in a transparent manner. B – Conflicts related to use or ownership rights and directly or indirectly related to land acquisition are scarce (less than 5% of rural land area affected) but the process for addressing conflicts is slow and lacks transparency. C – Conflicts related to use or ownership rights and directly or indirectly related to land acquisition are relatively frequent (more than 5% of rural land area affected) but emerging conflicts are addressed expeditiously and in a transparent manner. D – Conflicts related to use or ownership rights and directly or indirectly related to land acquisition are relatively frequent (more than 5% of rural land area affected) and the inability to address these conflicts expeditiously and in a transparent manner results in long pending disputes.

6. Findings • In general, land acquisition generates conflicts. • In agricultural lands, the mechanism for LSLA is through leaseback and out-grower arrangements. Conflicts arise when benefits promised are unfulfilled and rentals low. • In public forests, the mechanism is through joint venture. Conflicts arise when land development is not in accordance with the designated resource management framework or when natural forests are converted into plantations. • In ancestral lands, conflicts arose due to misrepresentation by some IP leaders; or when FPIC process is not followed • Use of ancestral lands in special economic zones also result to conflicts when the IP rights are not recognized.

7. Recommendations • Government to ensure adequate safeguards are followed and regular monitoring conducted. • Enhance capacities of LGUs as they play key roles in LSLA. • Harmonization of overlapping policies and mandates of government agencies in land governance. • Conduct further investigation of land issues in Mindanaowhere conflicts and key development challenges are happening.

8. LSLA 3 Land use restrictions on rural land parcels can generally be identified. Assessment A – The land use restrictions applying to any given plot of rural land can be unambiguously determined on site for land occupied by more than 70% of the population. B – The land use restrictions applying to any given plot of rural land can be unambiguously determined on site for land occupied by 40 – 70 % of the population. C – The land use restrictions applying to any given plot of rural land can be unambiguously determined site for land occupied by 10 – 40 % of the population. D – The land use restrictions applying to any given plot of rural land can be unambiguously determined on site for land occupied by less than 10% of the population.

9. Findings • Land use restrictions on majority of rural land parcels (40-70%) are difficult to identify on the ground: • Although, areas covered by CARP (which should include most of the agricultural areas) are relatively easy to identify, • Unfortunately, this is not true for ancestral lands and to a some extent, forest lands. Also riparian and easements cannot be easily identified.

10. Recommendations • LGUs should have an updated comprehensive land use plan (CLUP) and that these should reflect all restrictions on rural lands. • Ancestral domain sustainable development and protection plan be integrated with LGU’s CLUP. • CLUPs should be able to capture the tenure and classifications of all lands within their territories.

11. LSLA 4 Public institutions involved in land acquisition operate in a clear and consistent manner. Assessment A – Institutions that promote, channel or acquire land for purposes of interest to this study operate following clear guidelines and have high standards of ethical performance that are consistently implemented. Their accounts are regularly audited with results being made available publicly (e.g. for parliamentary debate). B – Institutions that promote, channel or acquire land for purposes of interest to this study have high standards of ethical performance that are consistently implemented and have their accounts regularly audited although results are not available publicly. C – Institutions that promote, channel or acquire land for purposes of interest to this study have clear standards of ethical performance but implementation is variable and accounts are not subject to regular audits. D – Standards of ethical performance for institutions that promote, channel or acquire land for purposes of interest to this study are not clearly defined and accounts are not regularly audited.

12. Findings • Public institutions involved in land management and acquisition are regularly audited and their reports can be made public upon request. These are based on general audit and civil service rules. • Field implementation, however, can be variable with some staff personally involved in brokering deals with investors to the disadvantage of communities. • At the local level, LGUs exercise substantial influence and their performance vary and depend on local executives.

13. Recommendations • Develop standards of ethical performance specific to LSLA, that would apply to both national agencies and LGUs. • Involvement of CSOs and support organizations in monitoring and investigation.

14. LSLA 5 Incentives for investors are clear, transparent and consistent. Assessment A – Incentives for investors are clearly specified in law or regulations, uniform and stable over time, and applied in an equitable and transparent fashion. B – There are written provisions in law or regulations regarding incentives for investors but frequent changes (i.e. limited predictability) do not ensure their consistent application in the future. C – There are written but unclear provisions in law or regulations regarding incentives for investors and their applicability have to be negotiated on a case by case basis in a way that is often discretionary. D – There are no written provisions in law or regulations regarding incentives for investors.

15. Findings • In general, incentives for investors are clear and transparent. However, • In forest plantation, incentives for investors are affected by changing policy environment. • Also, there is lack of incentives for CBFMA areas; the instruments cannot be used for collateral.

16. Recommendations • Need for a clear, transparent and consistent policy on agricultural investments (food crops, biofuels, forestry, game farm/conservation). • More stable policies on harvesting and resource utilization for local resource managers and investors to encourage joint venture agreements and sustainable forest management.

17. LSLA 6 Benefit sharing mechanisms for investments in agriculture (food crops, biofuels, forestry, game farm/conservation) are regularly used and transparently applied. Assessment A – Mechanisms to allow the public to obtain benefits from the investment (or investing party) other than compensation (e.g., schools, roads, etc.) are regularly used and applied transparently based on clear regulation. B – Mechanisms to allow the public to obtain benefits from the investment (or investing party) other than compensation (e.g., schools, roads, etc.) are applied transparently but not always used. C – Mechanisms to allow the public to obtain benefits from the investment (or investing party) other than compensation (e.g., schools, roads, etc.) are rarely used or applied in a discretionary manner. D – Mechanisms to allow the public to obtain benefits from the investment (or investing party) other than compensation (e.g., schools, roads, etc.) are not used or not applied transparently.

18. Findings • Benefit sharing mechanisms are not well developed; lack of standards for host communities to benefit. • Negotiations usually focused on the direct terms of engagement; benefit sharing happens out of the investor’s social responsibility agenda. • Results in uneven implementation, wide latitude for negotiation to the disadvantage of communities.

19. Recommendations • Develop clear policies and standards for benefit sharing; and monitor its implementation to ensure parties comply. • Enhance capacities of landholders in relating with investors; communities and landholders need to fully understand terms of engagement.

20. LSLA 7 There are direct and transparent negotiations between right holders and investors. Assessment A – Final decisions on land acquisition for large scale investment are made between the concerned right holders and investors; government’s role is limited to checking compliance with applicable regulations which is done in a transparent manner and with clear time limits. B – Final decisions are made in direct negotiations but a non-transparent and often discretionary process for obtaining approval is required. C – Transfer of land use or ownership rights for large scale investment requires previous acquisition of these rights by the state which follows a clear, transparent, and time-bound process with decision-making authority clearly assigned. D – Expropriation of land by the state is required and the process is murky.

21. Findings • Negotiations between investors and right holders, are usually done directly. • However, these negotiations are not always transparent. • In ancestral lands, current practice in processing FPIC is wanting in direct intervention of IP communities. • Among IP communities, misrepresentation happen to the disadvantage of entire community. • Right holders are sometimes not fully informed.

22. Recommendations • Right holders and their communities need to be capacitated and empowered to negotiate. • Technical support (preferably from a third party) should be provided. • Need for full disclosure of information.

23. LSLA 8 Sufficient information is required from investors to assess the desirability of projects on public/community land. Assessment A – Investors are consistently required to provide exhaustive information on company background and financial/technical analyses that is sufficient to assess viability and benefits from the project. - for PADCC B –Investors are consistently required to provide exhaustive information on either company background or financial/technical analyses (but not both) that is sufficient to assess viability and benefits from the project. Investors are required to provide meaningful information but this is not always sufficient to assess the desirability of the project. C –Investors are consistently required to provide information on company background or financial/technical analyses but this information is not sufficient to assess viability and benefits from the project. D –Information required from investors is not consistently and generally insufficient to assess viability and benefits from the project. – for LGUs

24. Findings • Investments in large scale agriculture are required by national government agencies to provide sufficient information: environmental impact assessments, technical, social, financial, data, etc. • Most LGUs, however, do not have sufficient standards as to what information should be required.

25. Recommendations • Capacitate LGUs (and communities) to assess investment proposals. • Closer collaboration between LGUs and national agencies: • DTI to assist LGUs in assessing proposals • DA to provide technical assistance • Local mechanism to bring together relevant agencies

26. LSLA 9 For cases of land acquisition on public/community land, investors provide the required information and this information is publicly available. Assessment A – Investors provide all the information required from them and - subject to reasonable limits on confidentiality - this information is publicly available. B – Investors provide some information required from them and - subject to reasonable limits on confidentiality - this information is publicly available C – Investors provide some or all the information required from them but this information is not publicly available D – Investors do not provide the information required from them.

27. Findings • Investors are required to provide necessary information but not all information are publicly accessible. • The BOI does not give out information unless there is court order or with permission from the investor. • Private Forest Development Agreement holder is required to submit a Development and Management Plan and reports to CENRO. • In ancestral lands, investors need to present operation plan, cost and benefit, etc.

28. Recommendations • Assist local communities to “ask the right questions” for community consultations to become effective. • Set up a depository of investment information. • Need of regular monitoring.

29. LSLA 10 Contractual provisions regarding acquisition of land from communities or the public are required by law to explicitly mention of the way in which benefits and risks will be shared. Assessment A – Contracts must specify risk sharing and benefit sharing arrangement that are understood and agreed to by all parties. B – Contracts must specify arrangement regarding sharing of benefits or risk (but not both) that are understood and agreed to by all parties. C – Contracts must specify arrangement regarding sharing of benefits or risks but are poorly understood or agreed to by all parties. D – Contracts do not have to specify either risk sharing or benefit sharing arrangement.

30. Findings • There are no clear standards for benefit and risk sharing with communities in large scale land acquisition projects. • Benefit sharing is an outcome of direct negotiation between investors and right holders • Government agencies provide oversight role to ensure just and fair treatment.

31. Recommendations • Need to put in place standards on benefit and risk sharing to have clear expectations and avoid conflicts.

32. LSLA 11 The procedure to obtain approval for a project where it is required is reasonably short. Assessment A – In most cases, investment application related documents are reviewed and receive a response within 3 months of date of submission. B – In most cases, investment application related documents are reviewed and receive a response within 6 months of date of submission. C – In most cases, investment application related documents are reviewed and receive a response within 9 months of date submission. D – In most cases, investment application related documents are reviewed and receive a response within greater than 9 months from date of submission.

33. Findings • Most investment applications are reviewed and receive a response within six months with some deviations: • With DAR, process may take longer if there are issues related to land tenure improvement; • In securing FPIC, process may be extended if community has apprehension on the project. • Conflicting decisions between layers of government (provincial and municipal LGUs).

34. Recommendations • Greater transparency in provision of information about investments; benefit and risk sharing. • Technical support in enhancing full understanding by communities of likely impacts and terms of investments.

35. LSLA 12 Social requirements for large scale investments in agriculture are clearly defined and implemented. Assessment A – Social safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment), include provisions for assessment and mitigation of direct and indirect effects, and consistently implemented. B – Social safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment) and consistently implemented but do not include provisions for assessment and mitigation of direct and indirect effects. C – Social safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment) but implemented with discretion. D – Social safeguard requirements for investors are not clearly documented and defined.

36. Findings • Social requirements for large scale investments in agriculture are defined but implemented with discretion. • No guidelines that set the standard by which parties will be assessed for compliance. • Compliance mechanisms are generally weak.

37. Recommendations • Compliance mechanisms should be strengthened and given ample authority. • Or appoint independent monitoring teams to regularly report on effectiveness of implementation.

38. LSLA 13 Environmental requirements for large scale investments in agriculture are clearly defined and implemented. Assessment A –Environmental safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment) , include provisions for assessment and mitigation of direct and indirect effects, and consistently implemented. B – Environmental safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment) and consistently implemented but do not include provisions for assessment and mitigation of direct and indirect effects. C – Environmental safeguard requirements for investors are clearly documented and defined (i.e., with details regarding specific processes and elements in the assessment) but implemented with discretion. D- Environmental safeguard requirements for investors are not clearly documented and defined.

39. Findings • Environmental requirements for large scale investments in agriculture are clearly defined and implemented. • No guidelines that set the standard by which parties will be assessed for compliance. • Compliance mechanisms are generally weak.

40. Recommendations • Compliance mechanisms should be strengthened and given ample authority. • Or appoint independent monitoring teams to regularly report on effectiveness of implementation.

41. LSLA 14 For transfers of public/community lands, public institutions have procedures in place to identify and select economically, environmentally, and socially beneficial investments and implement these effectively. Assessment A – Procedures to fully cover economic, social, and environmental issues are in place and implemented effectively. B – Procedures to partly cover economic, social, and environmental issues are in place and implemented effectively. C – Procedures to fully cover economic, social, and environmental issues are in place but not implemented effectively. D – Procedures provide at best partial coverage of economic, social, and environmental issues and are not implemented effectively. Procedures pertain to joint venture agreements with communities or transfer of rights to investors.

42. Findings • There are existing procedures for identification of beneficial investments as exemplified by the processes laid out by PADCC. • PADCC’s role, however, is facilitative. Effective implementation will depend on LGUs and with other agencies.

43. Recommendations • Procedures and processes for beneficial investments should not stop in the identification and selection but should run through in the implementation and monitoring for compliance.

44. LSLA 15 Compliance with safeguards related to investment in agriculture is checked. Assessment A – The responsible government agencies follow up on the agreements to check for compliance and consistently take reasonable action in cases of non-compliance. B – Responsible government agencies follow up on the agreements to check for compliance and, on a discretionary basis, take reasonable action in cases of non-compliance. C – Responsible government agencies follow up on the agreements to check for compliance and but do not take reasonable actions in cases of non-compliance. D – Responsible government agencies do not follow up on the agreements to check for compliance.

45. Findings • Compliance monitoring of implementation of safeguards, while it exists, is generally weak. • Sometimes, compliance monitoring is financed by the investor, which can become self-serving.

46. Recommendations • Compliance monitoring needs to be strengthened; given more authority. • Government should also refrain from unhealthy practices like requiring investors to finance compliance monitoring.

47. LSLA 16 There are avenues to lodge complaints if agricultural investors do not comply with requirements. Assessment A – There is a clear process by which affected parties or the public at large can lodge complaints regarding investor compliance with safeguards. Mechanisms to deal with these fairly and expeditiously are in place and consistently implemented. B – There is a clear process by which affected parties or the public at large can lodge complaints regarding investor compliance with safeguards. Mechanisms to deal with these fairly and expeditiously are in place but not consistently implemented. C – There is a process by which affected parties or the public at large can lodge complaints regarding investor compliance with safeguards but mechanisms to deal with these fairly and expeditiously are not in place. D – There is no clear process by which affected parties or the public at large can lodge complaints regarding investor compliance with safeguards.

48. Findings • Different agencies have mechanisms to lodge complaints but there is no monitoring on compliance of agreements. • DAR has avenues for complaints especially those related to tenure rights. • DOLE has labor disputes settlement. • DENR for environmental issues

49. Recommendations • Establishment of a mediating mechanism through which communities can lodge complaints in case of abuse by investors. • Informal dispute resolution mechanisms can also help resolve complaints more efficiently. • Complaints should also cover government staffs that abuse their responsibilities.

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