The Indigenous Peoples' Rights Act of 1997: A Critical Policy Analysis PDF

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CHAPTER I INTRODUCTION AND BACKGROUND OF THE STUDY Page | 1 The Legal, Policy and Institutional Regime Governing the Protection and Enforcement of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IP) Rights in the Philippines The Philippine Constitution and the IPRA serve as the primary lega...

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CHAPTER I INTRODUCTION AND BACKGROUND OF THE STUDY

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The Legal, Policy and Institutional Regime Governing the Protection and Enforcement of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IP) Rights in the Philippines The Philippine Constitution and the IPRA serve as the primary legal framework of the safeguard systems for the IPs1. Moreover, there are several other Philippine laws and issuances that contribute to the protection of IP rights such as the National Integrated Protected Areas System (NIPAS) Act, the Philippine Mining Act, the Organic Act of Muslim Mindanao, the Philippine Environmental Impact Statement (EIS) System, and the administrative orders of the NCIP and the Department of Environment and Natural Resources (DENR).2 In the cultural and heritage front, the protection of indigenous peoples is an interagency mandate under the National Cultural Heritage Act of 2009, Law Creating the National Commission for Culture and the Arts (NCCA), the National Museum Act and a slew of other cultural laws and policies. The National Commission for Culture and the Arts (NCCA) recognized the indigenous peoples as the core and the backbone of the country‘s intangible cultural heritage3 making them an indispensible part of its mandate under its law and the National Cultural Heritage Act of 2009. It is noteworthy that the 1

Josefo B. Tuyor, et al. (2007). Indigenous Peoples Rights Act: Legal and Institutional Frameworks, Implementation and Challenges in the Philippines. Discussion papers, East Asia and Pacific Region. Social Development, and Rural Development, Natural Resources and Environment Sectors. Washington DC: World Bank. [online] 2 Ibid. 3 National Commission for Culture and the Arts, (2015). NCCA Statement: Stop the Paramilitary Assault and Killing of the Lumads. [online] Available at: http://ncca.gov.ph/ncca-statement-stop-the-paramilitaryassault-and-killing-of-the-lumads/[Accessed 5 Dec. 2015].

National Commission for Indigenous Peoples, the primary executing agency of the IPRA Law, is an attached agency of the Department of Environment and Natural Resources (DENR) having transferred from the Office of the President (OP) and the Department of Page | 2

Agrarian Reform (DAR), and not of the National Commission for Culture and the Arts (NCCA) where other cultural agencies such as the Cultural Center of the Philippines, the National Historical Commission of the Philippines, the National Museum, The National Library of the Philippines, the National Archives of the Philippines, and the Komisyon ng Wikang Pilipino are attached for policy coordination. Interestingly, the NCCA has asserted mandate4 to protect indigenous people particularly the Lumads who recently were in the national forefront after the killing of lumad school director Emerito Samarca, Dionel Campos, and Juvello Sinzo allegedly by a para-military group which spurred widespread protests culminating to ―Manilakbayan 2015: Kampuhan sa Diliman‖, a month-long protest caravan of some Lumad members in Metro Manila. According to the NCCA legal consultant lawyer, the NCCA has the mandate under Republic Act 10066 or the National Cultural Heritage Act of 2009, including the deputization of the Armed Forces of the Philippines (AFP) to protect cultural communities5. As aptly described by the World Bank 2007 Report on the IPRA Law, there are conflicting provisions of these various legal instruments and their implementing rules and regulations including substantive, jurisdictional and procedural issues that are affecting

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Despasupil, W. and Pilapil, J. (2015). NCCA asserts mandate to protect lumad. The Manila Times, [online] p.1. Available at: http://www.manilatimes.net/ncca-asserts-mandate-to-protectlumad/219240/[Accessed 5 Dec. 2015]. 5 ibid

the implementation of the IPRA6. Likewise, it recommended the harmonization of these laws for more effective safeguard systems for the IPs/ICCs in the Philippines. Box 1. History of Government Agencies and Policies on Indigenous Peoples.

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1901-57– During this period, the BNCT served as the government body in charge of ―nonChristian and wild tribes‖ of the Philippines. From 1927 to 1934, the American colonial government established several ―non-Christian reservations‖ similar to those for Native Americans. The type of religion and the degree of colonization by the Americans were the primary criteria for distinguishing indigenous peoples from the rest of the Filipinos. The newly independent Philippine government inherited this framework in 1946 and continued it until 1957. 1957-72– The post-colonial period was marked by the replacement of the BNCT by the CNI. The new policy of the Philippine government vis-à-vis the indigenous peoples was that of the latter‘s integration into the mainstream Philippine society. This is reflected in the mandate of the CNI, i.e. ―bringing about, as rapidly as possible, the moral, material, economic, social and political advancement of the non-Christian Filipinos and of making real, complete and permanent their integration into the body politic.‖ It was also during this period when the categories ―national cultural minorities‖ or ―national minorities‖ were used in the legal parlance instead of the previous ―non-Christian tribes‖. 1972-86 – The martial law regime of President Ferdinand Marcos was marked by several protest movements carried out by indigenous peoples against government-initiated development projects that would displace these peoples from their ancestral lands. Among these projects were the Chico River Basin Development Project in Kalinga and Mountain Province and the Cellophil Resources Corporation in Abra. There was a growing realization among the indigenous peoples‘ movement and their advocates that IP rights are closely linked with the issue of ancestral lands. During the period, Marcos issued several decrees and issuances that concerned those of indigenous peoples. In 1974, Marcos signed Presidential Decree No. 410, otherwise known as the Ancestral Land Law. Under this law, all lands occupied by national minorities were classified as ―alienable and disposable.‖ Individual members coming from the national minorities were asked to apply for Torrens titles from the government. Since many members of the national minorities did not bother to apply for individual land titles, the said law did not have any strong impact in providing security of tenure for indigenous peoples. In the mid ‗80s, the Southern Philippines Development Authority (SPDA) and the PANAMIN were becoming unpopular because of several exposés about their alleged roles in the government‘s anti-insurgency campaign as well as the scandals related to the eccentric lifestyle of Secretary Manuel Elizalde of the PANAMIN. In 1985, Executive Order No. 969 dissolved the PANAMIN and the SPDA and created the Office for Muslim Affairs and Cultural Communities (OMACC). The OMACC catered to the needs of both the Muslim and non-Muslim communities. 1986-97– The newly restored democracy paved the way for several reforms in government policies vis-à-vis indigenous peoples. The OMACC was abolished as part of the Aquino government‘s overall effort to revamp the bureaucracy. Three distinct and separate offices under the Office of the President replaced the OMACC namely: the OMA; the ONCC; and the OSCC. A new Philippine Constitution was ratified in 1987 and this contained several provisions on the protection of the rights of ―indigenous cultural communities‖ or ICCs. Since then, the legal 6

Josefo B. Tuyor, et al. 2007. Indigenous Peoples Rights Act: Legal and Institutional Frameworks, Implementation and Challenges in the Philippines. Discussion papers, East Asia and Pacific Region. Social Development, and Rural Development, Natural Resources and Environment Sectors. Washington DC: World Bank.

jargon ―ICCs‖ was used instead of earlier categories. The period was also marked by the issuance of several certificates of ancestral domain claims and certificates of ancestral land claims by the DENR pursuant to its Administrative Order No. 2, series of 1991. More specifically, the DENR awarded 181 certificates of ancestral domain claims in the span of 1992 to 1997. Another highlight of this period was the passage of the NIPAS Act in 1992. This law contained specific provisions Page | 4 protecting the rights of ICCs to their ancestral domain. 1997-present – Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act, was enacted in 1997. Under this law, the term ―indigenous peoples‖ or ―IPs‖ was used synonymously with ―indigenous cultural communities.‖ The National Commission on Indigenous Peoples was established in 1998 through a merger of the ONCC and the OSCC. 7 Source: World Bank 2007 Report

Protectionist and Preservationist Policy of the 1987 Philippine Constitution on Indigenous People and the Regalian Doctrine: A Multi-Perspective Analysis The 1987 Philippine Constitution can be considered as either repressive or proindigenous document depending on one‘s philosophical conviction that guides the appreciation of its provisions. It is impressed with explicit provisions for protection of indigenous peoples8 and that guarantee indigenous peoples‘ right to ancestral domains and lands9. Former Supreme Court Justice Reynato Puno noted that the 1987 Philippine constitution showed a shift in policy ―from assimilation and integration to recognition and preservation.‖10 It marked the first change in the State‘s official attitude towards Indigenous Peoples- from attempting to integrate and assimilate them to one of ‗recognition‘ of their rights, including ancestral domain rights and their traditional

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Ibid. Free Prior and Informed Consent in the Philippines. (2013). [pdf] Oxfam America. Available at: http://www.oxfamamerica.org/static/media/files/fpic-in-the-philippines-september-2013.pdf[Accessed 5 Dec. 2015]. 9 Ibid. 10 Reynato S. Puno, The IPRA: Indigenous Peoples and their Rights (2008), http://sc.judiciary.gov.ph/speech/03-10-08-speech.pdf. Cited in 8

indigenous institutions and practices11. Furthermore, 1987 Constitution called for legislation providing for the applicability of their customary laws12. The following are the relevant articles of the Constitution13: Sec. 22 of Art. II. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Sec. 5 of Art. VI. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Sec. 5 of Art. XII. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural wellbeing. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. Sec. 6 of Art. XIII. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. Sec. 17 of Art. XIV. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies

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Indigenous Peoples of the Philippines ICERD Shadow Report. (2009). [pdf] Committee on the Elimination of all forms of Racial Discrimination. Available at: http://www2.ohchr.org/english/bodies/cerd/docs/ngos/PIP_Philippines75.pdf [Accessed 5 Dec. 2015]. 12 Ibid. 13 Free Prior and Informed Consent in the Philippines. (2013). [pdf] Oxfam America. Available at: http://www.oxfamamerica.org/static/media/files/fpic-in-the-philippines-september-2013.pdf[Accessed 5 Dec. 2015].

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However, despite the above-mentioned protectionist and preservationist constitutional provisions, various groups14 continue to criticize the 1987 Philippine Constitution for espousing the Regalian Doctrine embodied in Section 2, Article XII of the 1987 Constitution15 which they considered discriminatory and unjust to the

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Some of these groups include Alternative Law Groups Inc (ALG), Anthropology Watch (AnthroWatch), Cordillera Indigenous Peoples Legal Center (Dinteg), Cordillera Peoples Alliance (CPA), EED Philippine Partners' Task Force for Indigenous Peoples' Rights (EEDTFIP), Indigenous Peoples Rights Monitor (IPRM), Indigenous Peoples Links (PIPLinks), Irish Centre for Human Rights (ICHR), Kalipunan ng mga Katutubong Mamamayan ng Pilipinas (KAMP) / National Federation of Indigenous Peoples Organizations in the Philippines, Koalisyon ng Katutubong Samahan ng Pilipinas (KASAPI) / National Coalition of Indigenous Organizations in the Philippines, Legal Rights and Natural Resources Center - Kasama sa Kalikasan / Friends of the Earth Philippines (LRC-KsK/FOE Phils.), Philippines Association for Intercultural Development Inc (PAFID), Tebtebba Foundation, Indigenous Peoples' International Center for Policy Research and Education and Tanggapang Panligal ng Katutubong Pilipino (PANLIPI) / Legal Assistance Center for Indigenous Filipinos. These groups submitted the Indigenous Peoples of the Philippines ICERD Shadow Report (2009) available at http://www2.ohchr.org/english/bodies/cerd/docs/ngos/PIP_Philippines75.pdf 15 Article XII, Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twentyfive years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Available at http://www.gov.ph/constitutions/the-1987constitution-of-the-republic-of-the-philippines/the-1987-constitution-of-the-republic-of-the-philippinesarticle-xii/

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indigenous people16. The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State is the source of any asserted right to ownership of land and charged with the conservation of such patrimony17. The doctrine has been consistently adopted under the 1935, 1973, and 1987 Constitutions.18 All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State.19 Thus, all lands that have not been acquired from the government, either by purchase or by grant, belong to the State as part of the inalienable public domain.20 In a landmark case, Cruz v. Secretary of Environment and Natural Resources 21, a petition in 1998 was filed questioning the constitutionality of the IPRA under the premise that it violated the Regalian Doctrine. The case was dismissed by the Supreme Court on December 6, 2000 because of a technicality, i.e., the SC justices were divided and voted

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Indigenous Peoples of the Philippines ICERD Shadow Report. (2009). [pdf] Committee on the Elimination of all forms of Racial Discrimination. Available at: http://www2.ohchr.org/english/bodies/cerd/docs/ngos/PIP_Philippines75.pdf[Accessed 5 Dec. 2015] 17 Zarate v. Director of Lands, G.R. No. 131501, July 14, 2004, 434 SCRA 322; Reyes v. Court of Appeals, 356 Phil. 606, 624 (1998). Cited in Department of Environment and Natural Resources v. Mayor Jose s. Yap, GR. No. 167707, October 8, 2008, [online] available at: http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/167707.htm#_ftn50 [Accessed 5 December 2015] 18 Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152. Cited in Department of Environment and Natural Resources v. Mayor Jose s. Yap, GR. No. 167707, October 8, 2008, [online] available at: http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/167707.htm#_ftn50 [Accessed 5 December 2015] 19 Zarate v. Director of Lands, supra; Collado v. Court of Appeals, G.R. No. 107764, October 4, 2002, 390 SCRA 343; Director of Lands v. Intermediate Appellate Court, G.R. No. 73246, March 2, 1993, 219 SCRA 339. Cited in Department of Environment and Natural Resources v. Mayor Jose s. Yap, GR. No. 167707, October 8, 2008, [online] available at:http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/167707.htm#_ftn50 [Accessed 5 December 2015] 20 Republic v. Estonilo, G.R. No. 157306, November 25, 2005, 476 SCRA 265; Zarate v. Director of Lands, supra. Cited in Department of Environment and Natural Resources v. Mayor Jose s. Yap, GR. No. 167707, October 8, 2008, [online] available at:http://sc.judiciary.gov.ph/jurisprudence/2008/october2008/167707.htm#_ftn50 [Accessed 5 December 2015] 21 See case at http://www.lawphil.net/judjuris/juri2000/dec2000/gr_135385_2000.html

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7-7, and not on the merits of the case22. However, in his separate concurring opinion, Justice Puno (Ret.) wrote: Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral domains includes ownership, but this "ownership" is expressly defined and limited in Section 7 (a) as: "Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;" The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains." It will be noted that this enumeration does not mention bodies of water not occupied by the ICCs/IPs, minerals, coal, wildlife, flor...