Legal Overview of Philippine Indigenous Peoples Rights Throughout Philippine history, the political attitude towards indigenous peoples

and their rights have undergone many changes. During the colonial period, from 1521, indigenous peoples who were not assimilated into Christianity were then called and identified as the non-Christian or savage tribes, and thus are the less enlightened minorities of our population. Since the declaration of Philippine independence in 1898, it was only in the 1973 Constitution where indigenous peoples found their place in the countrys national framework. The provision in the Philippine Constitution was intended to authorize special treatment of those Filipinos comprising the cultural minorities in the country. The clear intent, in the context of the Constitution viewed in its entirety, is to create an exception to uniformity of treatment under law mandated under the standard of equal protection of the laws. The policy of the Government was to integrate into the mainstream of Philippine society certain ethnic groups who seek full integration into the larger community, and at the same time protect the rights of those who wish to preserve their original lifeways beside that larger community. The ratification of the 1987 Constitution saw the change in government policy from one of integration to recognition of indigenous peoples rights. As a matter of policy, the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. To this end, the State shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural wellbeing. The recognition of IP rights are, however, subject to national development policies and programs. One policy that the Philippines had not changed since its 1935 Constitution is the so-called Regalian Doctrine. Under this doctrine, all lands of the public domains and 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. This legal doctrine recalls the time when all titles were valid only when it could be shown that it originated from a grant or sale from the Crown, or its conceptual heir, the State. Thus, even in those rare cases where indigenous peoples communities have managed to secure documents of title to their lands, they do not, by virtue of that title acquire ownership or control of the natural resources found within the titled land. This problem is further complicated by the fact that the governments awards of resource rights through licenses, leases or permits, or current production sharing, joint-venture or co-production agreements are given to persons, natural or juridical, who are not residents of the area, thereby setting the stage for social conflict at the community level. The declaration of ownership of the State of all lands of the public domain and all natural resources, from the 1935 to the 1987 Constitution could not mean absolute ownership simply by operation of law, as this would place such State in direct contradiction to the guarantee of due process as against actual owners, as interpreted in Cario. Thus, despite ancestral domains being now understood as including natural resources, the application of the laws and the interpretation of the 1987 Constitution have limited the indigenous peoples ownership of these natural resources to mere preferential rights to exploit, develop and use.

Thus, the United States Supreme Court decision in the case of Cario v. Insular Government in 1909 was a breakthrough in the recognition of indigenous peoples rights to their ancestral domains. The Cario doctrine stated that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. Yet, despite this pronouncement, the struggle to gain recognition and respect for indigenous peoples rights has been long and arduous and sometimes, even fatal. To date, there is no accurate count of the number of the indigenous peoples in the Philippines. The standard percentage that is being used to estimate is 10% of the over-all population. A possible basis for this 10% is the census of 1915 conducted by the US colonial government, which was published in 1916. In this document, the counts of the population described as tribos independientes infieles and the like constituted around 10% of the total population in the Philippines at that time. The government uses pecentage higher than 10% (13%-15%), though there is no clear basis of this percentaging as well. This is a clear indication of the level of serious interest the government has in identifying the Indigenous Peoples, and the lack of programmatic approach in identifying the various forms of discrimination they experience the lack of basic services and appropriate economic development projects, the overlapping of almost two-thirds of extractive projects with ancestral territories, and the state of poverty of indigenous communities. Indigenous peoples are also victims of continuous and systematic human rights violations, including community displacement, torture and extrajudicial killings. Over generations, the indigenous peoples have been engaged in various forms of struggles organizing into community organizations, to national formations representing different indigenous communities; there were groups who were part of the armed struggle, there were intense international solidarity work, and there were those who engaged the government and got involved in policy advocacy work. There were groups, the Indigenous Peoples groups and the advocates, who were strategically involved in all of these forms of struggle, at different levels and intensity. The struggle to have a law that recognized indigenous peoples rights to their lands was not an easy one. At first, the draft law that was submitted to Congress sought to remove from the public and private commercial domain the lands of indigenous peoples. At that time, different indigenous organizations were consulted. The dictator Marcos was just overthrown, and it was under the Presidency of Corazon Aquino when the draft law was first submitted. While the draft was still pending, an administrative order was issued by the Department of Environment and Natural Resources that recognized claims by communities, and thus, their territories were delineated from other lands. The Promises of IPRA In 1997, after ten years of lobbying and campaigning, the Indigenous Peoples Rights Act (IPRA) was passed by the Philippine Congress. The IPRA was meant to be a corrective legislation, meaning, it sought to address historical injustices perpetuated against indigenous peoples, and

thus contained four significant aspects: (1) the articulation of the recognition of the right to selfgovernance; (2) the recognition of the bundle of rights held by indigenous peoples, (3) the establishment of a process for the formal recognition of land rights through the introduction of the Certificate of Ancestral Domain Title (CADT) or Certificate Ancestral Land Title (CALT); and, (4) the establishment of the National Commission on Indigenous Peoples (NCIP), the agency mandated to protect the interest of indigenous peoples. The IPRA more importantly, translated and applied into law the Supreme Courts decision in Carino and the recognized the legality of native titles. Expanding this list, IPRA therefore provided, first, the articulation of numerous rights that should be afforded to indigenous peoples, which includes: 1. 2. 3. 4. 5. 6. 7. 8. 9. right of ownership over land and natural resources; right to develop lands and natural resources; right to stay in territories; right in case of displacement; right to regulate the entry of migrants; right to safe and clean air and water; right to claim parts of reservations; right to resolve conflicts; right of redemption;

10. freedom from discrimination in labor; 11. freedom from conflict, and many more. This list of rights, as well as other rights found in different laws, have been used by communities and non-government organizations to protect indigenous peoples rights from encroachment. In this way, IPRA was a sentry that delayed or hampered the entry of unwanted projects into ancestral territories. IPRA was also the only legislation that specifically provided for the right of indigenous peoples to determine their own development, even if there was a qualification in the 1987 Constitution that such development of communities must be in accordance with national development. The law specifically states The State recognizes the inherent right of ICCs/IPs to self-governance and self-determination and respects the integrity of their values, practices and institutions. Consequently, the State shall guarantee the right of ICCs/IPs to freely pursue their economic, social and cultural development. Ideally, this would mean that indigenous peoples do not only have the power to participate in decision-making processes of the State, but going beyond that, they themselves have the power to determine the fates of their territories and their lives. Another introduction of the IPRA that remains to be used as a strategy to secure land security is the establishment of a formal system that will recognize ancestral territories. Though in the past land laws in the Philippines, reference is made to the territories of cultural minorities, these laws

have always given restrictions on ownership on territories. Some land laws do not even recognize indigenous ownership, instead, considers the land as part of agrarian reform or resettlement reservations. Others would impose limits on the size and expanse of ownership. With IPRA, communities can apply for a formal title that can be as much as tens of thousands of hectares, as long as the community can prove time immemorial possession. The last, and maybe the most controversial element, of IPRA is the creation of the National Commission on Indigenous Peoples or NCIP. The NCIP has the mandate to protect and promote the rights of communities. It has the power to formulate policies and regulations for the proper implementation of IPRA. It was supposed to be an independent agency whose members were representatives of indigenous peoples themselves. It also had the power to determine cases that involved indigenous peoples. The passage of IPRA was indeed historical. It is a progressive law, moving away from the regalian doctrine the state control and ownership of land and other resources. Thus, IPRA received broad support, with a lot of indigenous communities and advocates being hopeful that this law can actually have positive impacts on the lives of the indigenous communities. There were, some, however, who remained cynical and suspect of how this law, a product of long and hard negotiations and compromises, can actually effect meaningful and fundamental changes in the political, economic and social conditions of the indigenous peoples. Challenges In the course of its lifetime, the IPRA has met some very serious challenges, one of which was the contest to its constitutionality filed by a former Supreme Court Justice. A year after its passage, in 1998, Justice Isagani Cruz claimed that the IPRA was contrary to the Regalian Doctrine contained in the Philippine Constitution, specifically because the IPRA states that indigenous peoples own the natural resources found within their territories. The Supreme Court reached a split decision in the case in December 2000. And by virtue of this ruling deadlock, the IPRA remained to be constitutional. It is the position of our organization, however, that it is not IPRA that is at the core of this case. Nor the rights of indigenous peoples, as these rights have not ceased to exist, and are only awaiting societys ability to recognize them. What is on trial was the willingness of the State and its people to finally rid themselves of prejudices and misplaced fears. Aside from this legal challenge, IPRA faces other challenges which can be categorized into two: that at the policy-level, and at the implementation level. At the policy level, government has issued a number of administrative regulations on the implementation of IPRA. As the years pass, we have seen in particular, the executive department systematically watering down the rights of indigenous peoples, especially that of the right to selfdetermination. Part and parcel of the right to self-determination is the right to free, prior, and informed consent (FPIC). Since 1997, the National Commission on Indigenous Peoples or NCIP has revised the rules on FPIC twice, with the underlying objective to make the entry of extractive projects easier

and faster. The 2006 FPIC Guidelines, for example, was issued to give way to the commitments made under the Mineral Action Plan of the Philippines, facilitating the rapid and easy entry of mining projects in ancestral domains through the so-called harmonization of IPRA with the Philippine Mining Act of 1995. In fact, as of February 2008, almost 60% of projects that have required FPIC were mining projects, thus, making mining a very relevant issue for communities. The government has even further provided for sub-categories within the indigenous peoples sector that has resulted to more discrimination. FPIC, for example, is not a right that is afforded to all indigenous peoples. Immigrant IPs, by default, are not afforded FPIC, for the simple reason that they cannot claim the land as their ancestral territories. Such is the struggle of the Ifugaos in Didipio, Nueva Vizcaya, when their FPIC was not taken upon the entry of a mining project by the simple fact that they are immigrants. Meanwhile, despite the introduction of the CADT/CALT as mere paper or formal recognition of indigenous right to land, indigenous peoples still suffer from tenurial insecurity. This is partly due to the fact that there is either a real or perceived conflict of land laws and policies, and most often than not, these laws and policies are interpreted in favor of big businesses, the rich, and the powerful despite IPRAs requirement that any doubt or ambiguity in the application of laws shall be resolved in favor of the indigenous communities. Throughout Philippine history, various land laws were passed that resulted to a systematic taking of ancestral territories. The underlying cause of such laws was to rid government and transnational corporations of communities that were roadblocks to more profit. As Prof. Owen Lynch pointed out, land laws were passed during the American era because, Taft and Worcester were, first and foremost, eager to lure capital into the colony. They believed that this required them to have total control over the allocation of legal rights to natural resources. The key elements of their hidden agenda were to keep the estimates of public land occupants low and ensure that the processes for recognizing and allocating legal rights to land resources were inefficient and bureaucratically cumbersome. Section VI of the PLA (Public Land Act) went even further. It provided the regime with a mechanism for rolling back recognition of private rights granted during the Spanish era for failure to secure proper official records or documents or to comply with necessary conditions [CA 141, Sec. 54, par. 8]. Thus, these laws mandated that failure for communities to register or file a formal claim over these lands would operate as a loss of real rights by virtue of prescription. Ancestral territories were thus, with one stroke of the pen, have been classified as forestlands, protected areas, agricultural lands or mineral lands, depriving communities their right to due process. The strategy employed by our colonizers to take lands of communities has unfortunately been used up until present by the Philippine government. Registration, which is a foreign concept for indigenous peoples, has been unfortunately projected by different groups to be equivalent to land security, when the same has been shown to be seldom true. The Subanons of Mt. Canatuan, in Zamboanga del Norte were among the first communities to be issued a CADT in 2003. The instrument, however, was only registered in 2008. Despite the existence of the CADT, their leaders could not even enter his own lands because of the operations of TVI Resource Development, Inc., the subsidiary of Canadian TVI

Pacific Inc. The Subanons have brought their case in 2007 to the United Nations Committee on the Elimination of Racial Discrimination for redress, failing to get any from domestic remedies. The lack or absence of appropriate legal mechanisms for indigenous peoples to regain their lands has also greatly limited the corrective characteristic of IPRA. This is added to the fact that IPRA mandates indigenous peoples to respect vested titles, with the burden of proof to prove otherwise on these poor communities. The struggle for recognition of ancestral domain has been bureaucratized reduced to paper submissions, fulfillment of forms and checklists. Judicial rulings have also glaringly favored the interests of the mineral industry over those of indigenous peoples, which have been labeled as parochial claiming that mining is an industry for the publics benefit. Customary laws, meanwhile, remain to be at the outskirts of the legal fora, waiting for recognition from the legal community. These are only some of the policy issues that continuously plague indigenous peoples. The implementation of IPRA is altogether a different matter. Government claimed that the constitutional challenge to IPRA greatly delayed the implementation of the law. It uses this reason as an excuse for the numerous criticisms on the delay in the delivery of services and delineation of ancestral territories. For example, ancestral territories are estimated to cover 7.5 million hectares out of the 30 million hectares that make up the Philippines. After eleven years since the passage of IPRA, as of May 2009, only 38% of these territories were delineated, representing 107 CADTs and 207 CALTs. Out of these 107 CADTs, only 24 have been formally registered. It has come to a point that communities themselves have questioned the relevance of the National Commission on Indigenous Peoples (NCIP), the institution that was created supposedly to protect the rights of indigenous peoples. NCIP has recently been called as inutile and selfserving. Some groups and communities have called for the abolition of the agency because of the real and perceived corruption of some of its officers and workers. It has time and again been criticized as toeing the line of transnational corporations, implementing the law differently in different communities, depending on the demands of these corporations. NCIP, in the cases of the Mangyans in Mindoro and the Subanons of Zamboanga del Norte, among many others, have created non-traditional leadership structures to ensure the entry of mining. The NCIP itself, on one hand, has made it easy for transnational corporations to exploit indigenous communities, while on the other, made it difficult for communities to secure their territories and to access justice. It has issued regulations that are difficult, unwieldy and almost impossible for communities to comply with. The regulations that are supposed to facilitate the enjoyment of communities to their rights are the same ones that hamper and hinder community development. Some of these regulations would include the Rules on Pleadings and Practices, the Delineation of CADTs/CALTs, and the FPIC Guidelines. The NCIP has been shown also to be weak in asserting its political will. As an agency that has been tossed around the bureaucracy for a number of times, first being attached to the Office of the President, then to the Department of Agrarian Reform, then to the Department of

Environment and Natural Resources, then back again to the Office of the President, it has not proven its integrity and independence on issues that challenge the jurisdiction of other government offices, despite the fact that IPRA has already given primary jurisdiction to the NCIP. These things are all made possible because it is evident in the law that, not only does its implementation depend on the initiatives of the NCIP, but it has made the NCIP a superbody which enjoys not only executive powers, but also quasi-legislative and quasi-judicial as well. The challenges that communities face with regard to the implementation and interpretation of the law comes from the fact that they hold the key to so-called national development. As mentioned earlier, development projects overlap with about 60% of ancestral territories; and, in a country that offers unabashedly its natural resources for investments, it does not wish to compromise the economic opportunities that foreign investments bring because of something as simple as the free, prior and informed consent. Strategies Despite the weaknesses of the law, civil society has nevertheless tried different strategies to protect the rights of indigenous peoples some of which did not necessarily involve the use of IPRA, but instead, the other spaces for engagement and participation. Change is constant, and therefore, more often than not each situation calls for a different strategy and use of the tools that are available. We have used different strategies to either push for change or protect the rights of communities by maintaining the status quo. We have engaged the local government units, the national government, and the international forum. We have issued statements, position papers and critiques on executive orders. Recently, we have filed a draft law in Congress on the mineral industry to take the place of the current mining law. We have also filed policy-determining cases before the courts to challenge unjust policies and laws. Interestingly enough, though, we have not filed a case that used the IPRA. Movement building remains to be an important component in any advocacy. Thus, we need to network and campaign to maximize the efforts of all the groups concerned. Moving forward What are some of the lessons that we have learned from the passage of IPRA? First, IPRA, though progressive, was far from a perfect law. There are so many community stories which tell the tale of NCIP or the IPRA being used to facilitate the violation of indigenous peoples rights. For some, IPRA became the instrument by which rights were manipulated to suit the demands of the global market for raw materials. The formal processes that IPRA introduced became the same processes that were used to violate indigenous peoples rights while legitimizing the encroachment of big businesses something that has not changed

since Spain settled on our lands. This was possible because law is susceptible to as much as many people that would want to interpret it and use it for their benefit. Second, the institution that IPRA created, the NCIP, was not so different from the institutions that it abolished because it was composed of the same people and thus used the same culture of corruption and bureaucracy. Third, the IPRA, though it contained a long list of rights and provisions which sought to protect the rights of the communities, was hardly used in cases before the courts. Instead, other laws were used to challenge violations of indigenous peoples rights. Fourth, the titling and registration of lands sometimes distracted the communities in achieving genuine land security. Fifth, community cohesion and organization has achieved more ground than the mere passage of the law. We have seen communities assert their rights with or without IPRA, and instead have looked at laws as only part and parcel of the political context. And finally, the advocacy of indigenous peoples rights do not end with the passage of a law. It is a continuous struggle to rid our countries the discrimination introduced by colonizers. It is about changing mindsets and prejudices. For us from the Legal Rights and Natural Resources Center, we have always seen the law as either a tool of opportunities or challenges and the IPRA is no different from other laws. The law and its implementation, are, after all, influenced by the political, socio-economic context of a country. In the words of Dean Marvic Leonen, one of the founders of the Center, The IPRA, perhaps even if fully implemented, could not be the last word on the recognition of IP rights. Writing and legislating policy has been significant but definitely not enough for the communities that still struggle for genuine recognition, and full and authentic participation. In the end, it is our collective ability to reflect and act on our experiences that will really matter. The IPRA has definitely been used for the good and for the bad by different parties, as is the nature of law. Thus, after more than a decade from the passage of IPRA, it is timely that a comprehensive assessment be made on IPRA. It is imperative that we hear the experiences, reflections and lessons from the communities who actually engaged and used the law in their assertion of rights, as well as from those who have maintained distance from the law and have continued in their struggle for their land, and against encroachment. For us advocates, it is critical at this juncture that we take a deep breath and look how has the law been relevant to the lives of the communities? How has the law been able to correct the historical injustices it meant to address? Or has there been too much hope pinned on a law, when we all know that the passage of IPRA does not automatically translate into justice and change, instead, it is the collective struggle, at the community level all the way at the national level that achieves justice and catalyze fundamental changes in the lives of the indigenous peoples, and in our societies. Thank you.