* Something I wrote recently that I feel very strongly about. Wala pa kaming org website, so I’m putting it here in the hope that it comes up when anyone does a google-search for biofuel policies in the Philippines. It’s long and boring, and if you don’t want to read it, you won’t hurt my feelings. 
Joint Administrative Order No. 2008-1, Series of 2008 – or the Guidelines Governing the Biofuel Feedstocks Production and Biofuels and Biofuel Blends Production, Distribution and Sale under RA 9367 — could not have come at a worse time. It became effective on March 20, 2009 without much fanfare and escaping the public scrutiny that usually attends laws and administrative orders of a controversial nature.
In essence, JAO 2008-1 outlines the process to be followed by landowners who wish to use their agricultural lands as biofuel production sites. It enumerates the requirements needed before a certification is issued to biofuel producers and biofuel feedstock producers, and sets the parameters to be followed in biofuel production, distribution and sale.
The Administrative Order was jointly signed by the Departments of Energy, Agrarian Reform, Agriculture, Environment and Natural Resources, Finance, Labor and Employment, Science and Technology, Trade and Industry, Transportation and Communication, the National Commission on Indigenous Peoples, the Philippine Coconut Authority, the Sugar Regulatory Administration and the National Biofuels Board.
Amidst the backdrop of massive food insecurity being faced by the entire nation, the current precarious state of the agrarian reform program and the widespread dislocation of farmers and farm workers all over the country, the Center for Agrarian Reform Empowerment and Transformation, Inc. (CARET, Inc.) and the Rural Poor Institute for Land and Human Rights, Inc. (RIGHTS, Inc.) believe that the wisdom of JAO No. 2008-1 needs to be rethought.
Land for food: Shifting priorities and muddling the rules on land use conversion
The rhetoric of agrarian reform is often rife with invocations of social justice and peasant rights, for indeed at the heart of any land redistribution program is the desire to improve the situation of landless farmers all over the country and eradicate rural poverty. However, agrarian reform also operates as an insurance policy over agricultural lands and works to ensure that these lands would continue to be a source of food for the population.
As it stands, many experts have already spoken of the negative impact of biofuel production on food security in cases wherein biofuels and food may both be the end-use of the same crop. Future increases in the world prices of food have been speculated to result from the boom in biofuel production (IFPRI, 2006). In countries like the Philippines that do not enjoy a large land size, the threat to food security is less speculative and more certain.
One of the objectives of JAO 2008-1 is “to ensure that lands devoted to food crops shall not be utilized for biofuel feedstocks production except in cases provided therein.” A more careful perusal of the specific provisions of the Guidelines, however, demonstrates how this particular objective is not only ignored, it is also being flouted.
First, JAO 2008-1 expands the coverage of lands that may be converted to bio-fuel production from its original use as a source of food crops.
The Rules on Land Conversion[1] sets as non-negotiable for conversion all agricultural lands with irrigation facilities. This means that for as long as the land in question is agricultural in nature and has facilities for irrigation, its use should remain devoted to the planting of crops and may not be converted to any other use. However, Section 4.1D of JAO 2008-1 does not include this exemption in its list of agricultural areas that shall not be utilized for biofuel feedstock production, and exempts practically only those lands where the irrigation facilities are government-funded, covered by irrigation projects with firm funding commitments and are utilized for rice and corn. Effectively, agricultural lands with irrigation facilities that do not fall under any of the categories mentioned above are fair game for bio-fuel production.
Moreover, the Land Conversion Rules contains an entire category of lands highly-restricted from conversion such as lands with the potential of growing semi-temperate or high value crops, and irrigable lands not covered by irrigation projects with firm funding commitment. This category of highly-restricted lands is eliminated completely from JAO 2008-1.
Not content with expanding the scope of coverage of lands that may be converted, JAO 2008-1 exempts from DA certification landowners whose “effective area is twenty five (25) hectares or less.” This means that all landowners with 25 hectares or less can arbitrarily and unilaterally decide to convert his landholding to a biofuel production site. The DAR estimates that 1.3 hectares of land are undistributed. If these hectares of lands are made up of landholdings bigger than the retention limit of five hectares but less than 25 hectares, then they may immediately be converted into biofuel sites, no questions asked and no certification process required.
Second, JAO 2008-1 makes it easier to convert the lands to biofuel sites and expedites the process of acquiring a certification. Under the Joint Administrative Order, in Section 2.3, applicants for biofuel feedstock production are required to submit to the DAR certain documents and information required for conversion, such as performance bond, feasibility study, joint venture agreements, affidavit of undertaking, etc. Curiously, however, a certification for the DAR is not required before an Applicant is allowed to engage in the production of biofuel feedstock. According to Chapter II Section 1 of the JAO 2008-1, the only requirements are an Environmental Compliance Certificate (ECC), Certification Precondition issued by the NCIP and Certification issued by the DA. The non-inclusion of the DAR Certification leads one to the conclusion that even absent that requirement, an applicant may be granted a biofuel feedstock production permit.
By relaxing the rules on land conversion, agricultural lands are rendered vulnerable to the onslaught of biofuel production. Because biofuel production is more lucrative than traditional food crop production, and the government has made it easier for landowners to convert their lands to biofuel production sites, there is little incentive to continue using the land for food.
Even before JAO 2008-1, the unabated conversion of lands is already taking its toll on our food resources. As of December 2007, the DAR has approved 48,893.73 hectares of land for conversion from agricultural to residential, commercial and industrial uses. Residential purposes take up the bigger piece of the pie, with 37.5% of agricultural land converted to housing projects. 15.11% or 7,388.36 hectares out of 48,893.73 hectares of land were converted for industrial purposes, and 1.2% or 590.33 hectares out of 48,893.73 hectares of land were converted for commercial purposes.
However, anecdotal evidence gathered on the ground reveals that more than 200,000 hectares of land have been subjected to illegal conversions[2] – tying the hands of tenants and farmer beneficiaries and preventing further agricultural production.
Vested Rights v. Vested Interests: Locating Peasant Rights within the Biofuel Boom
Simply stated, JAO 2008-1 appears to completely disregard the possibility – nay, the certainty – that there are farmers cultivating the agricultural lands eyed as biofuel production sites.
Under the Rules on Conversion, many safeguards are in place to protect the rights of tenants and farmers in the area, and ensure that conversion is not used as a mechanism to circumvent the agrarian reform program. For example, applicants are required to accomplish an affidavit stating the “number and names of the farmers, agricultural lessees, share tenants, farmworkers, actual tillers and/or occupants” in the landholding, and should prove that they have paid disturbance compensation to the farmers about to be dislocated.
No such requirements are in the JAO 2008-1. It makes no mention of the safeguards to be afforded them, or the protections to which they are entitled. Admittedly, JAO 2008-1 adopts “in all aspect not inconsistent therewith” DAR AO 1 Series of 2002; however, as long as compliance with the latter is not made a requirement in the application for biofuel feedstock producer, then the rights of the farmers in the area remain precarious and vulnerable. It may also be noted that while a Land Use Conversion Certificate is required before the Department of Energy issues a Certification of Registration with Notice to Proceed, such DOE certification is ALSO not a precondition to be a Biofuels Livestock Producer.
For undistributed lands
JAO 2008-1 fails to take into consideration lands that are already in the process of acquisition. If for example, a particular landholding has been issued a Notice of Coverage, will the process of acquisition be halted in the event that the landowner applies to be Biofuels Livestock Producer? In the Rules on Conversion, it is interesting to note that “lands issued with notice of valuation and acquisition, or subject of a perfected agreement between the landowner and the beneficiaries under the Voluntary Land Transfer (VLT)/ Direct Payment Scheme (DPS) under the CARP” are considered Areas Highly Restricted from Conversion. This provision is not to be found anywhere in JAO 2008-1.
If the lands are tenanted, lawful tenants enjoy the right to cultivate the landholdings without fear of dispossession. This is so even assuming that the landowner of a parcel of agricultural land leases out his land to a biofuel producer or enters into a joint venture agreement for purposes of biofuel production. Assuming it is a lease contract, the Supreme Court has ruled that the rights of the farmers to the lands supersedes the terms of the lease, if such rights were in place upon the perfection of the contract.
“… in case of transfer or in case of lease, as in the instant case, the tenancy relationship between the landowner and his tenant should be preserved in order to insure the well-being of the tenant or protect him from being unjustly dispossessed by the transferee or purchaser of the land; in other words, the purpose of the law in question is to maintain the tenants in the peaceful possession and cultivation of the land or afford them protection against unjustified dismissal from their holdings. (Primero v. CAR, 101 Phil. 675);” (Coconut Cooperatives Marketing Association v. CA. G.R. Nos. L-46281-83 August 19, 1988)
Even assuming it is not a lease contract, but a different kind of arrangement altogether, the right of tenants not to be dispossessed should be guaranteed. Unfortunately, no such guarantee is made explicit in the terms of the JAO 2008-1. Given that virtually any excuse is taken to circumvent the provision of the CARL and given that we have an administration that inevitably takes the side of industrial development, seemingly at any cost, no less than a guarantee in the Administrative Order restating the government’s commitment to honor the farmers’ tenurial interests should be in place – notwithstanding the basic rule that the laws of the land should be read into each and every policy directive entered into and coming into force in this jurisdiction.
For distributed lands
As biofuel production sites require a land area larger than the standard farmlot size prescribed under CARP, it is highly improbable that holders of Certificates of Land Ownership Awards (CLOA) would be biofuel feedstock producers on their own. More likely is the possibility that the new biofuel administrative order will encourage the facilitation of contractual arrangements and joint ventures with agrarian reform beneficiaries – thus surfacing the very same objections that agrarian reform advocates have against corporate farming and leaseback schemes.
Because of the disincentives on agricultural production and the dismal lack of support services, farmers are often forced to enter into one-sided leaseback arrangements with corporations that may or may not be the original landowner wherein effective management and control of the landholding is ceded to the latter in exchange for a sum of money. Thus the principles of agrarian reform are violated, land reconsolidation is once more in place, and farmers-beneficiaries are relegated to the status of tenants again.
Worse, the protections afforded to farmers in these types of arrangements, as found in previous administrative orders of the DAR, are not found in JAO 2008-1. DAR AO 9, Series of 2006[3] , for instance, provides for rules intended to protect these lands and the ARB-owners thereof even while the said lands are allowed to be leased (among other arrangements) for agribusiness purposes. These are provisions on: (a) minimum amount rental – and the factors to arrive at that value; (b) mandatory inputs from the investor, including an item on the investor’s assumption of the risk of loss of agricultural operations, to include crop failure due to natural calamities or force majeure (where the lessee -ARB is still assured of the payment of the lease rental); (c) specifics of tax payments; (d) priority to qualified and willing ARBs and their dependents for employment in the enterprise; (d) interim nature of the lease agreement – i.e. that the same shall only be intended to enable the ARBs or their organization to develop skills necessary to assume general control and management of the farm; (e) etc.
Bereft of these protections and uncertain of the security of their tenure, farmers are left on their own to ride the winds of the market and the express provisions of the Constitution and the CARP are left forgotten.
Conclusion
Many governments have turned to biofuel protection to ensure energy security and continuous domestic supply. A number of experts, however, have already pointed out the harmful consequences of such a policy shift, with noted UN Special Rapporteur on the Right to Food Jean Ziegler calling the growing use of crops to create biofuels “a crime against humanity.” Even the International Monetary Fund has raised the alarm that the use of grains for fuel could tremendously impact on the poorest of the poor.
Despite this, the Philippine government has hopped head-on onto the biofuel wagon, passing in March of this year the Joint Administrative Order 2008-1. The lack of protections on farmers and farmworkers as well as the relaxation on the rules on land conversion are a combustible combination made even worse when foisted against the backdrop of gross food insecurity and widespread hunger.
Does the new JAO 2008-1 herald a permanent paradigm shift by the government from food to fuels?
Has agrarian reform been relegated to the back seat given the seeming silence of the law on land and peasant rights?
In the face of the manifold dangers of the biofuel policy framework, it is imperative to clamor the gvernment to rethink Joint Administrative Order 2008-1 and work into the equation the valid call for food sustainability and farmers’ security of tenure.
[1] DAR AO 1, Series of 2002.
[2] Basic Data on Agrarian Reform compiled by the REFORM CARP MOVEMENT. (2008)
[3] Revised Rules and Regulations Governing Agri-business Venture Arrangements (AVAs) in Agrarian Reform Areas
