RANDOM NOTES: IPRA

1.

NO LAW is ever perfect, and the Indigenous Peoples' Rights Act (IPRA)also known as Republic Act No. 8371is no exception. Even its principal author, Senator Juan Flavier, admits this, saying it cannot be expected to satisfy everyone. But he adds, Lets give it a chance for three years. After that, if there are still unmet needs, then lets amend. Many indigenous peoples groups and nongovernmental organizations, however, say there are sectors who are unwilling to wait and see if the nearly year-old law will work. Indeed, retired Supreme Court Justice Isagani Cruz and lawyer Cesar Europa last month filed a case in the Supreme Court questioning the constitutionality of the IPRA. According to Cruz and Europa, RA 8371 violates the constitutionally guaranteed right of the state to control and supervise the exploration, development, utilization and conservation of the countrys natural resources. The petition seeks a temporary restraining order and a writ of preliminary injunction against the IPRA. The lawsuit comes at a time when implementation of the law is being bedeviled by an impasse regarding appointments to the National Commission on Indigenous Peoples (NCIP), a newly created agency that is mandated to put it in action. As things are, observers are already reading the seeming inability of the commission to draw the lines with respect to the functions it inherited from the Department of Environment and Natural Resources (DENR) as having something to do with the mining sectors demand for a review of IPRAs impact on the industry. Although DENR Secretary Antonio Cerilles may have ordered the suspension of the processing of Certificate of Ancestral Domain (CADC) applications to give way to the NCIP, there has yet to be a formal memorandum of agreement between the DENR and the commission that would turn over the delineation functionsas well as recordsto the latter.

Cerilles, in fact, publicly declared the availability of CADC records anytime the NCIP requests for them only a few weeks ago in a dialog with NGOs. That is an executive problem, says Flavier. That is where we can test the commitment of Cerilles. Kapag binigay niya ang pagaasikaso sadelineation to empower the NCIP to be able to do what was already being done when the DENR was functioning. According to an insider who has been privy to goings-on within the DENR since Cerilles assumed office last July, there may not be a pronounced policy against the law but anti-IPRA sentiments among the department top brass betray this. The source says proponents of the constitutionality question in the department have brought forth two legal arguments: that only the state can own lands, and that the DENR has sole jurisdiction over the forests and mineral resources. Interestingly, the same arguments echo the issues being raised by the Chamber of Mines of the Philippines (CMP) and WMC (formerly Western Mining Corporation, Phils.), particularly during the drafting of the laws implementing rules early this year. In a letter dated April 21, 1998 to then President Fidel Ramos, the chamber argues that the provision on native title is contrary to the Constitution as it wreaks havoc to the Torrens title system and other laws on acquisition of property. It also says the IPRA does not define what constitutes private property, thereby making the law without legal basis. The chamber also sees a clear conflict of jurisdiction in the NCIPs functions. The commission, it says, is mandated to enter into mineral agreements on behalf of tribal peoples but at the same time exercises authority over claims and disputes involving such agreements. Furthermore, says the chamber, by allowing only members of indigenous communities to constitute the NCIP, IPRA violates the Constitutions equal protection clause and grants undue delegation of the states power. Meanwhile, last May 14, WMCone of two mining firms that holds a Financial or Technical Assistance Agreement (FTAA) under the Mining Act of 1995submitted to the NCIP its position paper on the implementing rules and regulations, complete with key recommendations. The letter that prefaced WMCs position paper, signed by its president Dr. Terence Gardner, insists on the companys vested rights, which the then-still-to-be-drafted rules ought to recognize in order to continue the legal and regulatory framework under which our FTAA was granted by the Philippine Government. The Mines and Geosciences Bureau (MGB) makes similar arguments. Though claiming to agree in principle that indigenous peoples rights have to be protected and tribal groups deserve equal opportunities and services, Leo Jasareno, officer-in-charge of the Mining Tenements and Management Division, says IPRA is an overdone law. Jasareno insists on the supremacy of the regalian doctrinewhich holds that all natural resources belong to the stateand the DENR/MGBs primary jurisdiction over mineral resources. Giving IPs priority rights over mineral resources within their ancestral domain, he says, is surrendering the states full control over all our resources. He also disagrees with the process of self-delineation, saying the IPRA has very lax certification requirements for ancestral domain claims. Under the law, claims shall be substantiated by authentic documents as written accounts of customs, traditions, political structure and institution, including testimony of elders or the community under oath.

Jasareno argues that claims must be proven by anthropological/scientific studies. Otherwise, he says, the mechanism opens a lot of opportunities for abuse. He asks: What would prevent the Dumagat from claiming the Sierra Madres? Or the Mandaya from claiming Davao City? At best, Jasareno says, the IPRA is a class legislation that favors only one sector of society. But thats what its all about, counters Flavier. The problem is that these (IPs) are the disadvantaged groups. At least, you give them the competitive edge. Its like a law that benefits the 6th class municipality. Thats not class legislation. Thats just leveling the field, he asserts. The senator likens the issue to the tax system. Sa taxation natin, the law requires the richer ones to pay higher taxes. But you do not say that is class legislation, he says. In a recent column in a daily newspaper, Jesuit priest Joaquin Bernas, a recognized constitutional law expert, says even the Spanish colonizers had not taken all the land for the state, acknowledging that the natives were entitled to some of it. He also notes that the IPRA repeatedly says that it is subject to vested rights. And if some provisions of IPRA is tilted in favor of indigenous peoples, says Bernas, this is but the result of the constitutional policy regarding tribal communities. Still, many tribal groups say they are not really surprised at the way things are going, given the treatment they have received before IPRA. From a condescending and antagonistic attitude toward indigenous peoples exemplified by the Supreme Court decision in Rubi v. Provincial Board of Mindoro in 1919 describing them as of a low grade of civilization, the Philippine governments policy has traversed a confused path. In 1957, it shifted to an integrationist approach, creating the Commission on National Integration (CNI) by virtue of Republic Act No. 1888. Later on, Presidential Decree No. 1017 established the exploitative system of the Presidential Adviser on National Minorities (PANAMIN) in 1976. The late dictator Ferdinand Marcos created the Office for Muslim Affairs and Cultural Communities (OMACC) in 1984 to address matters relating to Muslim and non-Muslim tribal communities. In 1987, as part of its reorganization scheme, the then newly installed government of President Corazon Aquino split OMACC into three officesOffice for Muslim Affairs (OMA), Office for Northern Cultural Communities (ONCC) and Office for Southern Cultural Communities (OSCC). The passage of IPRA last year was supposed to finally end the centuries of struggle and strife among the countrys indigenous peoples who now make up almost 20 percent of the population, and put a stop to their dispossession and displacement. This is notwithstanding the sentiments of some indigenous peoples groups like the Katutubong Samahan ng Pilipinas (Kasapi), for whom the IPRA represents a compromise on their part. They say they had taken efforts in large strides to meet the Western worldview in the middle for a law that merely recognizes, and does not totally provide for indigenous peoples rights. For Flaviers chief of staff, lawyer Rudy Quimbo, the filing of the lawsuit against IPRA is lamentable. Hindi dapat tingnan lang ang IPRA in legal terms, he says. Its also a sociological and anthropological document. We are trying to correct a historical injustice here.

Joey Austria, coordinator of the DENRs Ancestral Domain Management Program (ADMP), is convinced of the IPRAs constitutionality but welcomes the legal challenge to IPRA. Otherwise, laging may nakahang na doubts. In some way, the law also serves as a model that is being looked upon by different countries with IP constituencies, he claims. To contentions that the NCIP is a super-body, Austria says it is possible given the scope of its functions. It is a super-body in the same way that the DENR and the DILG (Department of Interior and Local Government) are also super-bodies. The NCIPs jurisdiction over ancestral domains also extends to areas like mineral lands, energy sources, forests and agricultural lands that are within the domain. It is because of this that Jasareno and Donna Gasgonia, head of the ad hoc commission currently reviewing the NCIP make-up, have raised concerns that the NCIPs decisions and certifications may be railroaded to the detriment of either the tribal communities themselves or government programs. That is why, comments Austria, we should place the right people there. Flavier, for his part, hopes the NCIP is super enough to do what it is supposed to do. The stronger it is, the more powerful, he points out. Kasi nga nakatutok sila. When you distribute these functions to the other departments, ang problema walang nangyayari. But the NCIP may not have much of a law to implement if current moves at the executive level to harmonize the IPRA with the Mining Act prove successful. The mining law is itself the subject of a constitutionality suit filed last year by the Blaan tribe of Columbio, Sultan Kudarat whose areas are affected by the FTAA of WMC. The Supreme Court has yet to issue a decision on the case. DENR and mining industry officials have been one in calling for the review of the IPRAs implementing rules and regulations (IRR) so as to make them conform to the mining law. A common concern among the sectors within the DENRforestry, land, mining, protected areasis the issue of jurisdiction where the operative term is free and prior informed consent of the indigenous peoples. Lawyer David Daoas, who was appointed last February by President Ramos as NCIP head, confirms the existence of a loose working group composed of the heads of the NCIP, DENR, Board of Investments and the Office of the Executive Secretary. Daoas says the group is drafting supplemental guidelines that will spell out clear procedures in the implementation of the law not only as it concerns mining but all matters relating to land regulation. Months back, when the NCIP was still drafting the rules, Daoas was against coming up with special guidelines harmonizing both laws as this would be tantamount to amending the law. He now insists that the group is not amending the IRR and the tribal peoples free and prior informed consent remains a mandatory requirement. Daoass post, however, is now also being claimed by an appointee of President Estrada. In the view of some NGOs, though, the IPRAs final draft of its implementing rulesnow also being questioned by the Gasgonia committeealready has the marks of the mining sector. According to lawyer Marvic Leonen of the Legal Rights and Natural Resources Center-Kasama sa Kalikasan (LRK-KsK), the rules are conspicuously tame on the definition of property rights. Earlier drafts had limited vested property rights to those covered only by Torrens titles, which would have placed a lid

on mining firms claims that such rights also cover contracts, licenses, concessions, leases and permits like the FTAAs. The present IRR maintains that the recognition of ancestral domain is subject to the recognition of existing property rights. This, says Leonen, automatically limits the laws coverage, acknowledges and accepts the status quo where unilateral contracts and concession granted by government gain better privileges than the rights of indigenous peoples. In effect, what the IPRA and its (implementing rules and regulations) do is exalt government commitment to a liberalized economic regime, he adds. This only sets back the legal rights already won by indigenous peoples and cause them further injustice.

Table 2: Whats Left of Ancestral Domains?

The IPRA recognizes vested property rights covered not only by Torrens titles, but also mining firms claims even over areas that encroach on ancestral domains. These include contracts, licenses, concessions, leases and permits, many of which conflict with ancestral domain claims by indigenous peoples. Financial or Technical Assistance Agreements (FTAAs) Approved: 2 Arimco/Climax Mining: 33,274 hectares of land in Didipio, Nueva Vizcaya and Quirino Western Mining Corporation: 99,387 has. in the quadriboundary of Sultan Kudarat, South Cotabato, Davao del Sur and Saranggani After years of exploration, both FTAAs continue to retain 83,753 has. Exploration Permits (EPs) Approved: 47 Area: 368,266 has. Mineral Production-Sharing Agreements Approved: 106 (MPSAs) Area: 175,435 has. Industrial Forest Management/Industrial Active: 200 Tree Plantation Lease Agreements (IFMA/ITPLAs) Area: 527,605 has. Timber License Agreements (TLAs) Active: 18 Area: 923,277 has. Inactive: 3 Area: 112,885 has. Only one TLA is expiring this year, the rest extending beyond 2000. But it is likely that the expired/ expiring TLAs will be converted to IFMAs, as has been the practice since the introduction of the Industrial Forest Plantation program. Forest Land Grazing Lease Agreements (FLGLAs) Active: 504 Area: 154,487 has. Pending applications: 489 Area: 4,850,039 has. Pending applications: 1,917 Area: 4,802,664 has. Pending applications: 84 Area: 4,341,319 has.

Data from the Mines and Geosciences Bureau's Mineral Rights Management System Unit (as of August '98) and Forest Management Bureau (as of September 30 '98)

2.

Indigenous Peoples' Rights Act (IPRA) of the Philippines

The Indigenous Peoples Rights Act (IPRA) of the Philippines was signed into law on 29 October 1997, after undergoing many years of legislative study and deliberation. The IPRA is the result of various consultations, consolidated bills related to ancestral domains and lands, and international agreements on the recognition of land/domain rights of the Indigenous Peoples (IPs). The Metagora activity in the Philippines consists of a small but incisive survey-based study implemented in three northern regions of the country with a high concentration of indigenous peoples. The objective of this pilot project was to develop evidence-based assessment methods and tools combining quantitative and qualitative approaches. The study aimed to measure four aspects of the rights of indigenous peoples to their ancestral domains and lands: the indigenous peoples perceptions and awareness of their rights, the enjoyment or violations of these rights, the government measures and customary laws for the realisation of these rights, and the availability of mechanisms for redressing violations or fulfilling rights. This activitys relevance for policy is strong, as the national policy at stake is the implementation of the IPRA, entered into force to address the marginalisation and powerlessness of the communities of indigenous peoples, estimated to be one-sixth of the national population of the Philippines. This Act intends to redress a historical injustice against indigenous peoples, whose rights, cultural identity and ancestral lands were alienated by means of application of the feudal jura regalia by the Spanish Crown, by, de facto, their successors, the American colonial government, and then by the Philippine Republic. For the first time, IPRA settles the rights of indigenous peoples and establishes bases for a proactive public policy, including implementing mechanisms and the allocation of funds. IPRA recognises and promotes: the rights of indigenous peoples to ancestral domains and lands; the right to self-governance; economic and social rights; and cultural integrity, including indigenous culture, traditions and institutions.

3.

IPRA Through the Years

Is the Indigenous Peoples Rights Act good enough?
Long before the first Malay datus crossed over from Borneo into Philippine waters in the fourteenth century, the forests and islands of the Panay region, including the island of Boracay, were already home to the Ati, an indigenous people considered by the National Commission on Indigenous Peoples (NCIP) as the best known among the Spanish Negritoes. For centuries, the waters of Boracay have served as fishing grounds for the Ati. This came to an end when the island was transformed into a jewel of Philippine tourism, and the Ati into another problem to be dealt with by those seeking to develop the island for commercial purposes. Its their ancestral domain, yet they are constantly being denied it, says Dr. Raymundo D. Rovillos, Dean of the UP Baguio College of Social Science. Its a clear case of marginalization. Over time, the Ati have been pushed further and further away from their fishing grounds and into the fringes of the islandsometimes at gunpointby the private armies of resort owners. Once caretakers of the forest and seashore, the Ati are mendicants now, taking on the most menial jobs on the island. This case is only one example of what happens when business interests, state policies, and the right of indigenous peoples to their ancestral domains collide. It is not an unusual situation. In response, indigenous peoples all over the world, for decades, have actively campaigned for the international recognition of their rights. And on June 29, 2006, the UN Human Rights Council voted to adopt the Declaration on the Rights of Indigenous Peoples and to recommend this to the General Assembly, also to be held this year. It puzzles Rovillos that the Philippines was among the 12 member-nations that chose to abstain rather than vote in favor of the Declaration. The explanation offered during the Council was that the Philippine government was already committed to safeguarding and promoting the rights of its indigenous peoples, as

evidenced by the enactment of Republic Act No. 8731 or the Indigenous Peoples Rights Act (IPRA) and the presence of two autonomous regions in the country. As optimistic as this sounds, the question remains: Is it enough? Before the IPRA Before the enactment of the Indigenous Peoples Rights Act of 1997, there were no laws that dealt specifically with the protection of the rights of indigenous peoples (IP). The laws governing the IP and the state were the general laws of the land, says Atty. Oliver N. Saniel, Legal Officer of UP in Mindanao. These are, to name a few, the Civil Code, the Revised Penal Code, and other similar laws of general application. According to the NCIP, the first known organized government effort to help the indigenous people took place during the American regime with the creation of the Bureau of Non-Christian Tribes, which eventually grew into the Commission on National Integration (CNI). In 1978, the CNI was abolished, and the Presidential Assistance on National Minorities took its place. In 1987, the Aquino administration issued Executive Orders creating the Office for Northern Cultural Communities (ONCC) and the Office for Southern Cultural Communities (OSCC) under the Office of the President. In reality, the state had not lost touch with the cultural communities before the passage of the IPRA, Saniel says. The basis for the laws before the IPRA were the social norms in Philippine society. Public consultations with tribal councils through the local government units were also undertaken. These previous efforts, however, fell short, as far as the indigenous peoples were concerned. The basis for these laws and executive orders was not the recognition of IP rights, Rovillos points out. The ONCC and OSCC considered the indigenous peoples cultural communities, implying that their worth was only tied up with their culture. Nothing was said about their right to ancestral land, their cultural heritage, and their right to self-determination. Recognizing IP rights The IPRA was signed into law in 1997 as the enforcement of the Constitutions mandate for the State to recognize and promote the right of indigenous peoples/ICCs within the framework of national unity and development, and protect the right of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. In a paper titled Actors, Institutions and State-Society Relations in the Policy Process: The Indigenous Peoples Rights Act, presented at the 6th Annual Association of Pacific Rim Universities Doctoral Students Conference held in Eugene, Oregon in August 2005, Prof. Ruth Lusterio Rico of the UP Diliman Department of Political Science cites the key features that distinguish the IPRA from previous efforts of the Philippine government to recognize IP rights. For example, the IPRA grants total recognition of the rights of indigenous peoples to own ancestral domains and ancestral lands; respects and recognizes indigenous political structures and systems, culture, resource management practices, and conflict resolution mechanisms; recognizes socio-cultural differences among various IP groups; recognizes the right of indigenous peoples to genuine self-determination and autonomy; and provides for the establishment of an office with clearly defined functions and adequate funding, and where IPs are adequately represented. The new law engendered a range of reactions from the indigenous peoples. The most radical view [among IPs] is that its a deceptive ploy on the part of the government, says Rovillos, that it will lead to the privatization of ancestral domain, which will then make it easier for corporations to appropriate the domain and the lands. The reason for this, he explains, is that the IPRA fails to recognize the concept of native titles titles defined by the customs of the IPsand is still premised on the Regalian Doctrine, with the State ultimately retaining full ownership and control of all lands. According to this view, as long as the law works within this framework, its not a genuine piece of legislation. The Regalian Doctrine is a mythical and historically fallacious principle that permeates the thinking ofthe Filipino legal profession, Atty. Marvic MVF Leonen, UP Vice President for Legal Affairs, writes in a paper entitled Weaving Worldviews: Implications of Constitutional Challenges to the Indigenous Peoples Rights Act of 1997. The Regalian Doctrine, embedded into the Constitutions of 1935, 1973, and 1987, [is] implicitly premised on the largely unquestioned belief that at some unspecified moment during the Spanish colonial period, sovereign rights of the Philippine peoples forebears were usurped by and simultaneously vested in the Crowns of Castille and Aragon. At that moment, every native in the politically undefined and still largely unexplored and unconquered archipelago became a squatterbereft of any legal rights to land or other

natural resources. Ironically, it is on the premise that the IPRA violates the Regalian Doctrine that a petition was filed in 1998 in the Supreme Court to declare the IPRA unconstitutional. The case was resolved three years later, with the Supreme Court ruling on the constitutionality of the IPRA. Unfortunately, those three years meant a delay in the full implementation of the IPRA. Also, the ruling is no guarantee against similar petitions being filed in the future. Overgeneralizations There are other points where the IPRA may fail to accurately reflect the reality it serves. Rovillos points out a possible weakness in the law when it tries to universalize the ideals of ancestral domain, [assuming] that these can be applied in all cases and situations. This is an overgeneralization, because there are in fact communities that by this time have no more ancestral domains. Through time, the indigenous peoples themselves have used other instruments, such as Torrens titles and the agrarian reform law, to establish entitlement to land. While there are still ancestral lands intercollectively owned by the community, there are also ancestral lands titled to one or a few persons only. If you assume that this territory has remained intact since the pre-colonial period, you are thinking ahistorically, Rovillos says. The IPRA has generalized the ideals to the point where the changing land tenurial situations in various communities all over the country cannot be mapped out. The law also fails to consider the fact that the IPs are not a monolithic block. These groups have hierarchies, Rovillos says. They have unequal power relations among and within the communities themselves, conflicts between the educated and uneducated, the rich and the poor. This can be a source of contention in cases such as when several IP groups have laid claim to a vast tract of land. There is a need to balance the idea of collective ownership of a resource and the reality that there are, in fact, vertical differentiations among the IPs themselves. Rovillos relates how in some parts of Mindanao, indigenous leaders have gradually given way to indigenous dealersopportunists who have signed Free and Prior Informed Consents with businesses on behalf of their people in order to get something out of it. Not everybody will consider the common good. When you assume that people will always make decisions on behalf of the greater good, you are romanticizing them. What is needed then, Rovillos says, is a longer exposure to the various cultures and societies that make up the indigenous peoples in order to better understand the dynamics of their culture and society. The IPRA can then be made to reflect this understanding. [As it is now], the IPRA is not perfect, since there is still a need to update the law, Saniel adds. There are still a lot of cultural practices that need to be incorporated into the law. Thus, lawmakers should still amend the law to make it conform to the new and modern case-to-case state of cultural practices or heritage. Test of time The true test of the laws effectiveness will come with time, a full and thorough implementation of the law in order to thresh it out, and of course, a commitment on the part of the government to give both. The law is theoretically very helpful to the indigenous peoples, but what matters most is the implementation and sustainability of the law as time goes by, Saniel says, citing the efforts of the local government officials in Davao City who have created a council for the tribal elders through which the indigenous people may channel their sentiments and proposals for amendments to the law. The rights enumerated in the IPRA are good enough but they still need implementing guidelines, because these may vary from tribe to tribe or from one indigenous cultural community to another. Those definitions are accurate for the time being and in a general sense. Complications may arise where the law makes a constricting definition that may not be exactly what they have in mind or may not be part of their cultural practices. Commitment on the part of the government also entails dedicating the resources for the implementation of the law. The infusion of resources would enable the NCIP to finally fulfill its potential as a powerful agency safeguarding the rights of IPs to their ancestral domains and helping preserve their culture. [The lack of resources] may be a manifestation of how serious the government believes this issue is, Rovillos observes. If the government really thinks this is worth pursuing, it has to put the resources in place. Considering the recent abstention of the Philippines during the UN Human Rights Council, its a little difficult to say how committed the government is to the protection of the rights of indigenous peoples.

Still, the situation is not completely bleak, and the fact that the IPRA existsa law borne of the efforts of IP groups, civil society organizations, legal advocates and non-government organizationsis a good sign. Add to this the progress made by the UN Declaration, and the increasing push from the international community, plus the continued vigilance of the IP groups, civil society organizations, and academe, and, perhaps, little changes could be made in the legal system that would allow for the bigger changes in the greater society. At the end of the day, the IP movements can look at the IPRA as an instrument to facilitate and to complement their other strategies for community empowerment, Rovillos says. Saniel agrees. The IPRA is good enough for the moment.