Philippines: IPRA must be upheld in peace agreement on Mindanao
On 25 December 2008, the government of Philippines formed a new peace panel consisting of three members for negotiation with the Moro Islamic Liberation Front (MILF). On 26 December 2008, the MILF Central Committee announced its preconditions, which, among others, included (i) having an international guarantee composed of states or association of states to ensure that both the Government and MILF will honor and implement agreement or agreements forged by the parties; (ii) change in the stand of Government over the Memorandum of Agreement on Ancestral Domain on Bangsamoro Juridical Entity” (MOA-AD-BJE) as ‘no deal’ and ‘unconstitutional’ in aftermath of the Supreme Court judgement of 14 October 2008; (iii) continuance of Malaysia as the facilitator of the peace talks.
While the peace process must resume soon, it is not yet clear as to whether the Memorandum of Agreement on Ancestral Domain on Bangsamoro Juridical Entity” (MOA-AD-BJE) declared unconstitutional by the Supreme Court will form the basis of the peace talks. What is clear is that the rights of indigenous peoples are being abrogated both in the peace process and the final outcome document.
I. MoA-AD-BJE in the present form - a deadly knock for indigenous peoples a. Total disregard of the Indigenous Peoples’
Rights Act The Indigenous Peoples Rights Act of 1997 provides for the “right to free and prior informed consent”. However, in the whole peace process that culminated in the form of MOAAD- BJE, both the Government and the MILF failed to ensure respect for the indigenous peoples. This is despite the fact that many indigenous peoples who do not identify themselves as Bangsamoros are supposed to be subsumed in the Bangsamoro identity. As per Clause 2 under the heading “Territory” of the MOA-ADBJE, the territorial extent of the BJE is identified as three categories of areas viz. (i) Core area of BJE, (ii) Category A areas, and (iii) Category B areas. All the three categories of areas cover vast tracts of ancestral domains of the indigenous peoples in a number of provinces.
Inclusion of indigenous peoples in the peace process has been only a token attempt on the part of both the MILF and the government of Philippines to impress upon the indigenous peoples. While the government of Philippines does not consider the indigenous peoples including the Lumads as necessary party solely on the ground that they are not engaged in armed conflicts, the MILF sought to assimilate indigenous peoples under the Bangsamoro identity.
b. Imposition of “Bangsamoro” identity on the indigenous people
The MOA-AD-BJE imposes the “Bangsmoro” identity on the indigenous people. This is clear from a simple reading of Clause 1 under heading “Concepts and Principles”, the MOA-AD-BJE which reads,
“It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as “Bangsamoros”. The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization and their descendants whether mixed or of full native blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected.”
The above clause states that all Moros and indigenous peoples of Mindanao have the birth right to identify themselves and accepted as Bangsamoro. However, the 1987 Constitution of Philippines identified the indigenous peoples as Indigenous Cultural Communities (ICCs). In 1997, the IPRA used the term “indigenous peoples” to identify the 110 ethno linguistic groups of Philippines and formally recognized them as indigenous peoples. The Moros are not listed as one of the indigenous peoples. Yet, the MOA-AD-BJE seeks to subsume the identity of all indigenous peoples of Mindanao under the Bangsamoro identity. This is an attempt of forced assimilation of the indigenous people by the Moro people aimed at destroying their established formal identity.
c. Denial of the right of selfdetermination of indigenous peoples
The IPRA provides for the right of self-governance of indigenous peoples through a number of rights including the rights to ancestral domains (sections 4-12), rights to social justice and human rights (sections 21-28); right to cultural integrity (sections 29-37) and the establishment of the National Commission on Indigenous Peoples consisting of indigenous peoples.
Section 17 of IPRA specifically provides that the indigenous peoples have the right to determine and to decide their own priorities for development affecting their lives, beliefs, institutions, spiritual wellbeing, and the lands they own, occupy or use. They also have the right to participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them.
Section 15 further provides that the indigenous peoples shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities.
Section 13 also provides that the government of Philippines recognizes self-governance and selfdetermination as inherent rights of indigenous people. It also provides that the State respects the integrity of their values, practices and institutions and shall guarantee the right of ICCs/ IPs to freely pursue their economic, social and cultural development.
As no reference to the IPRA Act is made in the MOA-AD-BJE, indigenous peoples are all set to lose their right of self-determination.
d. Regression of all other rights provided under IPRA
For indigenous peoples recognized as such under the IPRA of 1997, the MOA-AD-BJE of 4 August 2008 would have constituted a regression of rights.
Under the IPRA, the right to ancestral domain includes the rights - of ownership; to develop lands and natural resources; to stay in the territories; in case of displacement; to regulate entry of migrants; to safe and clean air and water; to claim parts of reservations; and to resolve conflict.
Self-Governance and Empowerment is recognized as an inherent right of the indigenous peoples and they have the right to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use. They also have the right to participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them.
The provisions on social justice and human rights includes- equal protection and non-discrimination of ICC/IPs (section 21), right to special protection and security in periods of armed conflict (section 23), freedom from discrimination and right to equal opportunity and treatment (section 23), right to basic services of the state (section 25) etc.
The indigenous people have the right to preserve and protect their culture, traditions and institutions (section 29). The state is under legal obligation to provide equal opportunities to the indigenous peoples through a manner appropriate to their cultural methods of teaching and learning. They are also entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights.
However, no such provision has been made under the MOA-AD-BJE.
II. Experiences of Indigenous peoples within ARMM
The experiences of the indigenous communities of Teduray, Lambangian and Dulangan Manobo of Maguindanao and Sultan Kudarat provinces whose Ancestral Domains of 400,000 hectares were included in the existing Autonomous Region of Muslim Mindanao (ARMM) has not been encouraging. Though ARMM Act predates the IPRA, while adopting IPRA and expanding the ARMM, no reference was made about the applicability of the IPRA in the ARMM. In reality, there is no legal bar for applying the IPRA in the ARRM. However, in reality the ARMM authorities only apply the ARRM Act and not the IPRA. Consequently, non-Muslim indigenous communities living under the ARMM were further marginalised.
a. Limited ownership over ancestral domains
In comparison to IPRA, the concept of ancestral domain under the ARMM Act is restrictive and incomplete. Section 1 of Article XI of the ARMM Act excludes “strategic minerals such as uranium, coal, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy; lakes, rivers and lagoons; and national reserves and marine parks, as well as forest and watershed reservations” from the definition of ancestral domain.
Further, in the ARMM Act, there is no provision for titling of ancestral domains of the indigenous peoples. Absence of title means lack of tenurial security and therefore lack of ownership. Having the powers of eminent domain, the Regional Government under section 3 of Article V of the ARMM Act has the authority to acquire/take over the ancestral domain of the indigenous people citing public interest. Under section 2 of Article XI of the ARMM Act, right to ancestral domain in respect of constructive or traditional possession of lands and resources is already dependent upon judicial affirmation, which has not been defined in the law.
The safeguards against transfer/ conveyance of ancestral domain to non-indigenous peoples under the ARMM Act are very weak. Section 6 of Article XI of the ARMM Act provides, “unless authorized by the Regional Assembly, lands of the ancestral domain titled to or owned by an indigenous cultural community shall not be disposed of to nonmembers” which means that the Regional Assembly is the authority to grant permit for disposing off lands of ancestral domains to non-members (who is not a domain holder). Effectively, indigenous peoples’ rights to ancestral domain/land are at the mercy of the Regional Assembly. But, it is the not case under IPRA, it is the indigenous community who has the right to decide what to do or what not do with their ancestral domain, albeit in conformity with relevant national laws and policies.
Unlike the ARMM Act, the right to ancestral domains under the IPRA is very strong and there are clear and precise provisions on delineation and titling of ancestral domains and ancestral lands by the NCIP by issuance of CADT or CALT. These titles are again registered with the Land Registration Authority.
The requirement of free and prior informed consent acts like shield against any attempt to dispossess or wrongfully deprive the indigenous people of their right to ancestral domains.
b. No right to determine and decide their own development
As discussed above, the ARMM Act recognizes only the indigenous peoples’ right to ancestral domain subject to some limitation and riders. The ARMM Act does not provide for the indigenous peoples’ right to selfgovernance and self-determination unlike section 13 of Indigenous Peoples Rights Act of 1997.
Section 17 of IPRA further re-enforces the right to self-governance and selfdetermination.
A con-joint reading to sections 13 and 17 read with section 7 of IPRA, which provides for rights to ancestral domain means that the indigenous people have the right to determine and decide their own priorities for development and it is the duty of the State to guarantee their right to freely pursue their economic, social and cultural development in their ancestral domains and lands. Right from having ownership, the indigenous people have the right todevelop lands and natural resources; stay in the territories; remedies, including compensation in case of displacement; regulate entry of migrants; safe and clean air and water; claim parts of reservations; to resolve conflict.
c. No provisions for affirmative actions for indigenous peoples under the under ARMM Act
The IPRA provides for an array of affirmative action programs in favour of the indigenous peoples. Among others, these include – (i) right to self-governance and empowerment (Sec. 13); (ii) right to participate in decision making (Sec.16); (iii) special measures for basic services (Sec.25); (iv) special provisions for Ancestral Domains Fund (Sec. 71) etc.
On the other hand, except the provision to formulate and implement special development programs and projects, responsive to the particular aspirations, needs and values of the indigenous cultural communities under section 2 of Article XII, the ARMM Act has no other provisions for affirmative action for the indigenous peoples.
III. Self-identification as IPs vs. recognition under IPRA
Self-identification or self-ascription is one of the criteria for determination as indigenous or tribal group. In this regard, Article 1(2) of Convention No. 169 of the International Labour Organisation (ILO) reads,
“Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”
In Section 3 (h), IPRA also provides that indigenous peoples/indigenous cultural communities refer to a group of people or homogenous societies identified by self-ascription or by others.
Undoubtedly, the Moros have an inalienable right to identify themselves as indigenous people of Philippines. But, they have not been classified as indigenous unlike the 110 ethno linguistic groups who have been recognized under the IPRA.
While the Moros term this exclusion from the list of 110 ethno-linguistic groups as an act of discrimination, the MILF and many other Moro groups have been committing the same act of discrimination against indigenous peoples recognized under the IPRA. It is also the duty of the Government of Philippines and the MILF that the rights of the indigenous people whose rights are recognized and protected under IPRA are not violated while exercising the right to selfdetermination of the Moros.
Asian Indigenous and Tribal Peoples Network recommends to the government of Philippines and the MILF to ensure the following in any future peace process:
- Make specific reference in any future agreement with the MILF that the Indigenous Peoples Rights Act of 1997 shall apply in any proposed area for Bangsa Moro Judicial Entity;
- include Chairperson of the National Commission on Indigenous Peoples of the Philippines in the Peace Secretariat of the government of Philippines;
- delineated Ancestral Domains of the non-Muslim indigenous communities be recognised and protected in any peace negotiation between the Government and the MILF in the future; and
- include representatives of the non-Muslim indigenous communities in any peace negotiation between the Government and the MILF.