What ZTE deal, MILF pact have in common

Clear in the public mind, the ZTE scam and the Memo on Ancestral Domain are Malacañang’s worst blunders of 2008. Not so evident, though, is that the two are intertwined. China’s ZTE Corp. may have lost a telecom supply deal, but it still holds a contract to join the Mt. Diwalwal gold rush. It is taking advantage of government’s hazy definition of ancestral domain. So does the Palace’s grant of territory to Moro separatists. Specifically, both unconstitutionally intrude on inalienable forestlands. Both errors also could spark widespread violence.

Two seemingly disparate events presaged both the ZTE mine and the Moro territory. These came in succession in 2006:

• July, Trade Sec. Peter Favila signed with ZTE veep Yu Yong a $4-billion investment package for: (1) national broadband network, (2) info-tech school, (3) Davao special economic zone, (4) mining in North Davao, and (5) mining in Mt. Diwalwal. The $330-million NBN alone had a “tong-pats” of $200 million for ZTE’s Filipino brokers and protectors. Presumably the entire $4-billion deal contained similar 60-percent “bukol”.

• November, a division of the Supreme Court overturned a long-held doctrine that forest reserves are forever state-owned, never to be privatized. One such reserve, Mt. Diwalwal, thus became private communal property with the SC division’s reading of the 1997 Indigenous People’s Rights Act.

The division ruling was a painful twist in a long court battle. It began in 2001, when the timber license agreement of Picop in southeast Mindanao was about to expire. The pulp maker’s raw materials come from its 166,000-ha. tree farm in the mountains of Agusan del Sur, Surigao del Sur, Davao Oriental and Compostela Valley. It applied with the Dept. of Environment and Natural Resources for conversion of the TLA into an Integrated Forest Management Agreement. The DENR readily approved it under a new law, but then rescinded the IFMA when it found out that Mt. Diwalwal was part of the forest reserve. Several parties, including generals and politicians, had taken keen interest in the gold-rush site; the DENR began pressuring Picop to give it up.

Picop went to court to protect long-term rights to its main asset, the trees, as granted by Macapagal in 1963 and guaranteed by Marcos in 1969. It argued that the State, as owner of the huge forest reserve, permitted it to plant and cut trees, so Diwalwal’s subsequent gold rushers are intruders. Ironically opposing Picop were the DENR and Solicitor General, who in past lawsuits had fought to preserve State ownership of forestlands. This time, they wanted to give Diwalwal away.

The trial court granted Picop an injunction against DENR, which ran to the Court of Appeals. The CA upheld Picop too.

In fact, the injunction was still binding when Favila signed Diwalwal away to ZTE in July 2006. But that didn’t matter; the Chinese had strong backers in the DENR and highest places. Paperwork began in earnest for ZTE’s mining permit, with a 90:10 revenue sharing in its favor.

In time the DENR went to the SC 3rd division with a new contention. It said the Diwalwal area is now ancestral domain under IPRA, by virtue of long stay of the (unlicensed) gold rushers. Thus, Picop should have sought clearance from the National Commission on Indigenous Peoples before filing for extended use of the forest reserve.

Picop replied that the NCIP is not a record-keeping agency that can certify anything, unlike the NBI that files criminal records. Besides, the DENR previously had approved its extension without the supposed pre-requisite of NCIP clearance.

The division in Nov. 2006 upheld the DENR, reversing the lower court and CA.

Picop has since been begging the SC for en banc review. After all, the en banc has time and again ruled that “forestlands and forest reserves are incapable of private appropriation and possession thereof, however long, cannot convert them into private properties.”

In contradiction, the IPRA deems that “ancestral domains are private but communal property of indigenous cultural communities or indigenous peoples.” Implied by the division opinion, forestlands may now become private if declared as ancestral lands.

There was such inference in fact in the Memo on Ancestral Domain that Malacañang was to sign last month with the Moro Islamic Liberation Front. The provision on Resources included in a Bangsamoro ancestral territory all “old growth or natural forests and all watersheds (declared) as forest reserves.”

The MILF accord already has provoked pillage of Christian villages by MILF rebels in North Cotabato, Lanao del Norte and Sarangani. Military troops are pursuing them in Maguindanao in Central Mindanao, all the way to Zamboanga peninsula in the west. Small miners in Diwalwal, part of Compostela, are gearing to forcibly eject any ZTE personnel. Mindanao will burn.

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