National Institutions on Indigenous Peoples:
The Experience of the Philippines
On 29-30 March 2008, Asian Indigenous and Tribal Peoples’ Network (AITPN) in cooperation with Lumad Mindanaw Peoples Federation (LMPF) organised a ‘National Seminar on National Institutions on Indigenous Peoples: The Experience of the Philippines’ in Manila, Philippines. About 30 indigenous and non-indigenous representatives participated in the National Seminar. The National Seminar was organized to assess the implementation of Indigenous Peoples Rights Act (IPRA) and the National Commission on Indigenous Peoples (NCIP) to see whether experiences could be drawn from similar laws and situations or whether good practices from the IPRA and NCIP can be replicated in other Asian countries for protection and promotion of the rights of indigenous peoples.
Across Asia, a few governments have established national institutions to address the problems of the indigenous peoples who live in the lowest rung of the society. The National Commission on Indigenous Peoples of Philippines and the National Commission for Scheduled Tribes of India closely resemble the National Human Rights Institutions established in accordance with Paris Principles on National Human Rights Institutions.
A few other governments have established separate departments or ministries to deal with indigenous/ tribal peoples in their respective countries. The government of Vietnam’s Committee for Ethnic Minorities and Mountainous Areas (CEMMA), the government of Bangladesh’s Ministry of the Chittagong Hill Tracts Affairs and the government of Malaysia’s Department of Orang Asli Affairs are some of such departments/ministries established in the region so far.
The Philippines was one of the first Asian countries to enact legislations to protect the rights of the indigenous peoples like the Indigenous Peoples Rights Act (IPRA) of 1997 and established the National Commission on Indigenous Peoples for implementation of the IPRA. About a decade has passed since the IPRA and the NCIP came into force. The critical question remains whether the IPRA has been implemented and whether the NCIP has been able to fulfill its mandate.
Those who attended the National Seminar were Attorney Gregorio Andolana, Former Congressman and Chairman of Board of Trustees of Indigenous Peoples Resource Center, Mindanao; Prof. Ponciano Bennagen, Anthropologist and former Commissioner in the Constitutional Commission which drafted the present Constitution in 1986; Ms. Myrna Caoagas, Director, Ancestral Domains Office of NCIP; Lagtum Pasag, Former Commissioner of NCIP; Ms. Nemia I. Pareza, Episcopal Commission on Indigenous Peoples (ECIP); Datu Antonio Lumandung from Region X; Artiso Mandawa from Palawan; Prudencion Mansigue, Community leader of Bannuaon Tribe from Agusan Sur, Region XIII; Timuay Woy Lim P. Wong from Central Mindanao; Gilbert P. Hogang, Koalisyon ng Katutubong Samahanng Pilipinas (KASAPI, a coalition of indigenous peoples organizations in Philippines); Ervin Juit, Indigenous Peoples Resource Center, Mindanao; Edtami Mansayagan, Former Commissioner and General Secretary of Lumad Mindanaw Peoples’ Federation; Santos M. Unsad, Timmuay Justice and Governance; Madam Zenaida Pawid; Maxine Tanya M. Hamada, International Center for Innovation, Transformation and Excellence in Governance (INCITEGOV); Jocelyn Villenueva, Executive Director, Legal Resource Center; Masli A.Quilaman, Director, Office of Empowerment and Human Rights, NCIP; Jimid Mansayagan, Kebager Te Ked-Inged (KTKI) - Lumad Peoples Movement for Peace, Power and Righteousness; Alim Bandara, Timuay Justice and Governance; among others.
The participants discussed many issues concerning the indigenous peoples in the Philippines during the two-day National Seminar. Summary of some of the speeches are given below.
The Opening Session was addressed by Attorney Mr Gregorio Andolana, Prof. Bennagen and Ms. Myrna Caoagas, Director, Ancestral Domains Office of NCIP.
Attorney Gregorio Andolana, Former Member of the House of Representatives and Chairman of the Board of the Indigenous Peoples Research Centre, Mindanao who drafted of the IPRA Law provided the genesis of IPRA - how IPRA came about and of course, what protocol were followed during the formal enactment of the law which respect and recognizes the rights of the indigenous cultural communities and their ancestral domains. He stated that long before the Spanish colonization, the indigenous cultural communities had all elements of a sovereign state. They had the territory, land and resource, the people who organized themselves as sovereign communities.
Before the enactment of the 1987 Constitution, the indigenous peoples had lost their inherent right to self governance and empowerment. It is only upon the enactment of 1987 Constitution that the rights of the indigenous cultural communities are being respected and recognized.
Attorney Andolana stated the difficulties faced while getting the IPRA passed as the “Congress is not a congregation of lawmakers but a congregation of vested interests of loggers, of ranchers, of big plantation owner, of banana corporate representatives.” He stated that Section 56 of the IPRA which begin with “Subject to vested prior rights…….” has always been used as a deterrent to the right to self determination, the right to selfgovernance and the right of the indigenous peoples to ancestral domains. According to him, the Government is responsible for the “poor implementation” of the IPRA. He added that the local governments especially the politicians would not like that the IPs be empowered for fear of losing political domain. Attorney Andolana is of the view that the IPs should have political empowerment. “For the IPs to be liberated, they must not only have the titles of ancestral domains but also have economic and political empowerment. The IPs in their respective communities must also practice not only customary laws as to how policies are made but also be empowered to legislate in their respective domain”, he asserted. To realize this, he said, “NCIP should move as fast as possible by creating as many tribal barrangays as possible. If there are already barrangays, these should be converted into tribal barrangays.” He revealed that “only 10% or even less percentage of IPs have representation in the LGUs.” Attorney Andolana, among others, recommended that “NCIP should exercise its jurisdiction in Autonomous Region in Muslim Mindanao with respect to identification, delineation and issuance of title of Ancestral Domain and to establish an institute of IP customary laws and alternative conflict resolution.” He suggested that IPs should not be “adversaries” of NCIP rather always be “partners” of NCIP. At the same time, he added, NCIP must also call upon the IPs to share their “experiences”. Finally, Attorney Andolana strongly proposed that the IPs should create a “National Forum” and carry out a sustained “lobbying” with the politicians.
Prof. Ponciano Bennagen, Anthropologist and former Commissioner in the Constitutional Commission which drafted the present Constitution in 1986 in his address stated that the indigenous peoples had within them the “institutions of autonomy” before the coming of Islam or Western institutions of domination. Theoretically, the bundle of rights provided under the IPRA is very nice, he said. Unfortunately, the institutions of domination that were generated by series of colonization continue to exert their influence on the existing NCIP, Professor Bennagen lamented. He pointed out that the “NCIP has exposed its vulnerability by towing the line of big corporations and State bureaucracy.” Professor Bennagen stressed the need for a “through going understanding” of what NCIP means for the indigenous peoples and communities to assert their rights within these dominant national institutions. Otherwise it will take much longer time for the indigenous communities to really consolidate the surviving institutions of autonomy and to prevail upon the State institutions, he said.
Ms. Myrna Caoagas, Director, Ancestral Domains Office of NCIP, while discussing the nonimplementation of the IPRA, stated that “not only the NCIP but the indigenous peoples are also to be blamed as they are also part of the NCIP”. She outlined that NCIP did not have enough budget till 2002 while titling and delineation was included in the NCIP budget only in 2003. Ms Caoagas highlighted NCIP’s one of the prioritized programmes of creating “Provincial Consultative Bodies” which has already been started from the provinces which will eventually go up to the ethnographic regions. To fast track CADT claims, NCIP has started training regional officers for titling and delineation from 2004 to early 2006, and NCIP was able to title one million hectares till now, asserted Ms Caoagas. On cases related to violations of Ancestral Domain Right of the IPs, she revealed, there were “no funds to be used by Legal Officers/Regional Hearing Officers” during the hearing of cases. NCIP requested the Congress and the Senate to increase the budget but they did not consider it, added Ms Caoagas. She pointed out that although there is requirement of production of “only one of the proofs listed under IPRA” for delineation, NCIP has been “asking for production of all proofs” listed in the IPRA in practice. Besides, CADTs are issued in the “name of the community” not in the “name of an individual claimant” and “applications for CADTs are accepted only in name of the community not in the name of the person.”
The Working Session I on Situation of the indigenous peoples of the Philippines was addressed by a number of speakers.
Mr Lagtum Pasag, former Commissioner of NCIP highlighted that “not all land titles given/issued by the NCIP to the indigenous peoples are registered with the Land Registration Authority.” Citing example of “the Mangyan tribe people who did not receive the necessary assistance when they wanted to implement their cultural way of conflict resolution,” the former Commissioner exposed the “acute lack of funds” which hinder in fully implementing the Indigenous Peoples Rights Act.
Ms Nemia I. Pareza of EPISCOPAL Commission was of the opinion that some indigenous communities have Certificate of Ancestral Domain Titles but these titles have not given them “assured security of their development” as well as the “right to manage their resources.” “Inherent right” of the indigenous peoples to resources and land even within the Ancestral Domain areas is not recognized so is the “right to selfgovernance” as provided in the IPRA, remarked Ms Pareza. Analyzing the status of IPRA implementation, Ms Pareza observed “even after 10 years of IPRA implementation, indigenous peoples are continuously losing tenurial rights. Land grabbing by non-indigenous peoples is still very common. IPs are also losing their lands to the so-called development projects, mining projects, etc.”
Datu Antonio Lumandung of Region X explained how his region has been made a mining region. He stated that most political leaders “support mining” and divided the indigenous peoples by paying “bribe and inducements.” Expressing apprehension, Datu Lumandung was of the view that “Bukidnon area would soon be opened up for mining operations.” He questioned the “genuineness of the Free Prior Informed Consent being obtained” in some of the mining applications pursuant to which MoUs have been signed with some of the tribes in the region. “There is lack of information from NCIP about implementation of IPRA particularly legal implications for the IP communities,” he stated. Datu Lumandung also highlighted the problems in the “constitution of the Provincial Consultative Body” and the “procedure of releasing/ awarding of project funds” by the NCIP.
Mr Artiso Mandawa, Member (IP sector) of National Anti- Poverty Commission highlighted the existence of contradictory laws and policies with IPRA. Mr. Artiso Mandawa of Palawan stated that “the very intention of the IPRA is good but there are laws and policies which are contradictory to the IPRA and therefore negates the affirmative actions of the IPRA.” He revealed that almost 80% of Palawan is covered by mining applications.
Prudencion Mansigue, Community leader of Bannuaon Tribe in Agusan Sur of Region XIII stated the presence of mining companies in San Luis which is very rich in natural resources. However, “it is the companies not the IP communities who are benefiting from these natural resources”, asserted Mr Mansigue. Expressing serious concern, he stated that indigenous peoples are caught in the conflict between the armed groups and the security forces.
Mr Timuay Woy Lim P. Wong of Central Mindanao stressed the need of NCIP’s local and regional offices to be able to do some changes in the implementation of works as well as financial plans to suit local situations. He stated how “B’laan ancestral territories are illegally given to non-indigenous people, yet no compensation has been given to the B’laan tribes.”
Expressing concerns, Gilbert P. Hogang of KASAPI stated that there is no support of any kind from the local government units to the indigenous peoples in Region II. “All local and nationalized banks closed any kind of borrowings to the people of the area, thereby, increasing the vulnerability of the IPs towards inducements by the mining companies,” he said. Mr Hogang recommended that the NCIP should defend the legal challenges up to the Supreme Court till the title is awarded. He is of the view that the process of Free Prior Informed Consent should not be that “prescriptive” and there should be some sort of “flexibility” as all the regions are not similar and identical. He further recommended that NCIP should increase its efforts of collaboration with NGOs and IP organizations as it will help to understand what the NCIP is really doing.
The Working session II on international mechanisms was addressed by Mr Suhas Chakma, Mr Edtami Mansayagan and Mr Ervin Juit.
Mr Chakma stated in his opinion, in comparison to the National Commission on Scheduled Tribes in India, National Foundation for the Development of Indigenous Nationalities of Nepal and the Chittagong Hill Tracts Affairs Ministry in Bangladesh, National Commission on Indigenous Peoples of the Philippines is the best national institution on indigenous peoples.
Providing insight into the history of development of National Human Rights Institutions, Mr Chakma stated the first national institution on human rights in the Asian region was not established by any democrat but by one of the worst dictator viz Suharto in Indonesia. Indonesia is the first country to establish a NHRC known as KOMNAS HAM. It was not effective in the beginning but the role of the KOMNAS HAM has been commendable on many areas.
Mr Chakma provided the background information on the Paris Principles on National Human Rights Institutions – the minimum standards. In many areas, Mr Chakma stated the NCIP is above the minimum benchmark prescribed under the Paris Principles. For example, decisions given by the NCIP could be challenged only before the Supreme Court. Secondly, pursuing a legal cause for IP rights under the IPRA is more convenient, expeditious and cheaper than under the normal judicial system of the Philippines. At the same time, NCIP fails to comply with the Paris Principles relating to independence and pluralism in its composition, nomination processes and financial autonomy.
Further, capacity building programmes for the National Human Rights Commissions in Asia Pacific region are being conducted by the Asia Pacific Forum on NHRIs. The National institutions on indigenous peoples also require similar programmes to build its human capacity. Unless this is done, it is really difficult for the NIIPs to fulfill their mandates. The NIIPs are being marginalized by NHRIs.
He highlighted dual role and responsibility of indigenous peoples: to scrutinize and condemn the failures of the NIIPs in one hand; to advocate for these institutions so that more space for indigenous peoples can be created.
With an encouraging note, Ervin Juit of Indigenous Peoples Resource Center, Mindanao stated that “if the affected people are determined they can survive and over come challenges.” He lamented that the NCIP do not even have the “basic information about the various IP tribes.” “It accepts applications for CADT from different communities involving the same territory without verifying whose territory it is,” observed Mr Juit. He recommended that NCIP should install a mechanism that would monitor and evaluate the land titles, CADT titles. “Because of lack of monitoring mechanisms, the IPs are deprived from knowing what is exactly happening,” he said.
Edtami Mansayagan, Former Commissioner and General Secretary of Lumad Mindanaw Peoples’ Federation stated that NCIP is usually under tremendous pressure from the Office of the President and there are serious bureaucratic hick-ups in the commission. He highlighted how “NCIP has been drum beating the lack of funds for its inability to implement many of the crucial projects but has not come up with a workable solution to arrange the required funds either.” According to him, the situations of the IPs are not similar and identical across Philippines, hence cannot be solved with a similar and identical solution. Mr Mansayagan recommended that NCIP should promulgate alternative supplementary guidelines in the ancestral domain delineation to basically address the need to officially notify the other government agencies pertaining to the grant of applications of the IPs and encouraging these agencies to cooperate on the delineation process.
Replies by Ms Myrna Caoagas, Director, Ancestral Domains Office
A number of questions were directed towards NCIP. Ms Myrna Caoagas, Director, Ancestral Domains Office replied to a number of questions raised by the participants.
With regard to implementation of IPRA in 2002, NCIP was able to draft and promulgate Administrative Orders No.1 and 2 (Series of 2002). There were not really enough funds with the NCIP till 2002. It was only in 2003, that titling and delineation was included in the NCIP budget to implement the IPRA.
With regard to the Administrative Order for the creation of Provincial Consultative Bodies, NCIP started from the provinces and NCIP hopes that it would go up to the ethnographic regions. In 2008, the NCIP already prioritised this as one of the programmes to be implemented.
Up to 2002 since the IPRA was passed in 1998, there was no empowerment of the communities to be able to say yes or no to a project. Because it was only in 2003, the requirement of Free Prior Informed Consent was implemented after the related guidelines were promulgated. She further stated 20 million Pesos was created for CADT delineation but there was no established system for titling and delineation during that time. In 2004, 56 prioritised provincial offices were given computers out of the 20 million pesos received from the President.
During 2004 to early 2006, NCIP started training regional officers for titling and delineation. Till now, NCIP is able to title 1 million hectares.
She explained the problems faced by NCIP while approving survey plans. Other agencies including the Department of Natural Resources (DENR) questioned the authority to approve the surveys. Therefore, NCIP had to hold several meetings to sort out the differences because according to the DENR, it is the only competent authority to approve surveys. Again when the NCIP registered CADTs, the Land Registration Authority created problems saying as to how the DENR can register Ancestral Lands and Ancestral waters. They cited the lack of appropriate reference in the Presidential Decree there is no reference to the Ancestral Domain and Ancestral Land. So, the LRA people would ask what book we are going to refer for registration of Ancestral domains and Ancestral waters. And again, we had to sit down with them to solve the problems through memoranda and agreements.
Further, there is lack of funds. There were no funds to be used by the legal officers/Regional Hearing Officers during the hearing of cases. The NCIP put the supplementary budget during the tenure of Chairperson Lingating but the Congress and the Senate did not consider it.
During the Working Session III on the functioning of the NCIP (Social, Economic and Cultural development and Human Rights of IPs) was addressed by many participants.
Regretting the non-implementation of the IPRA in the Autonomous Region of Muslim Mindanao (ARMM), Santos M. Unsad of Timmuay Justice and Governance explained the continued discrimination being faced by the Teduray, Lambangian and Dulangan Manobo tribes in the region. He urged the NCIP to hold nation-wide debate on the “resolution of the Regional Legislative Assembly (RLA)” and implementation of the IPRA while keeping in mind the issue of jurisdiction under the RLA 269. Mr Unsad recommended that the selection of the NCIP staff and establishment of accountability especially at the regional level must be ensured given the involvement of NCIP staff for awarding leases to the mining companies. He also recommended that NCIP must conduct a survey of all the indigenous peoples and ancestral domains.He presented a discussion paper highlighting his communities’ problems.
Ms Briggit Pawid from Cordillera region observed that because of the failure of NCIP, “UNDP funds meant for NCIP” are being given to the Department of Agrarian Reforms and National Anti-Poverty Commission. She suggested that instead of implementing programmes through Department of Agrarian Reforms and National Anti-Poverty Commission, NCIP should directly implement a development plan under programmes such as “Environment - Preserving Ancestral Domains;” “Governance and Political Integration - Philippines Autonomous Regions;” and “Poverty Alleviation - Income generation schemes.” Among others, Madam Pawid recommended the NCIP to establish one “Indigenous Peoples Research and Learing Center” in each of the seven ethnographic regions, making available all “reports and books” relating to the indigenous peoples in these centers; to ensure that IP issues are more widely covered by the “media;” making provisions for “data banking;” incorporation of “Indigenous Knowledge system” in the component of Ancestral Domain Sustainable Development Plans; setting up “case law and Courts of customary law;” setting up “human rights centers” in all the seven ethnographic regions with “IP experts”; and education, including the programme to impart “IP studies and knowledge system” in colleges and universities.
Ms Maxine Tanya M.Hamada of INCITEGOV highlighted how the functioning of the NCIP was influenced while being initially directly under the Office of the President. At times, NCIP represented itself as a proxy of the Office of the President. “At present, we are at a juncture when the democratic institutions are very eroded and those institutions that are hoped to strengthen the mandate of the NCIP are pulling it away from it,” she said. As the Philippines is again approaching to another political juncture, whether we are ready for articulation of our rights in the prospective democratic transition is crucial, she pondered.
Mr Masli A.Quilaman, Director, Office of Empowerment and Human Rights, NCIP spoke about the reasons why most basic services and socioeconomic services, health, education, infrastructure does not reaches the indigenous peoples. He stated that “neglect by the local government officials, prevalent discrimination against IPs and lack of indigenous peoples representatives at the policy decision making level in the LGUs” remained the factors. The main problems facing the IPs are “development aggression through mining; logging, big plantations; and “armed conflict” as the victims are always the IPs whether they are involved directly as a party or sides with either the Government or the militant groups, stated Director Quilaman. He rued that the “legal provisions for mandatory representation of the IPs in LGUs at the provincial, city and municipality legislative council” have not yet been implemented by the Government. However, he mentioned that NCIP in consultation with some Provincial Consultative Body (PCB) members and some non-PCB IP leaders is drafting four draft models in consultation to ensure implementation of mandatory representation of IPs in the LGUs. Besides, Office of Empowerment and Human Rights is focusing on the situation of the IP children in armed conflict under the programme called DDRI- demobilization, disarmament, rehabilitation and finally integration with families, he stated. He pointed out that “as of now, NCIP has not been able to come up with its guidelines on tribal barrangays.”
Mr. Jimid Mansayagan of KTKI highlighted the complicated, cumbersome and time-consuming procedures for processing of CADT and CALT applications by the NCIP. “Instead of notifying by itself, NCIP should allow the CADT applicants to notify other agencies,” he suggested. Mr Mansayagan is of the view that the “affected IP communities” should be able to determine whether “Free Prior Informed Consent” is obtained genuinely. “This power should not be exercised by the NCIP,” he further stated. Mr Mansayagan also expressed concern about the “lack of funds” to process CADT applications. “As of now, NCIP has no reliable census of the indigenous peoples and in the absence of a reliable census recording all IPs, it is difficult for successful deliveries of services,” he stated. The indigenous peoples, he recommended, “should constitute a national level IP forum.”
Ms Jocelyn Villenueva, Executive Director of Legal Resource Center stated that under the IPRA, NCIP have quasi-judicial powers but these powers have never been used for the upliftment of the conditions of the indigenous peoples. She wondered why these powers have never been used and why cannot NCIP immediately cancel the applications of mining companies. She stressed that IPRA is social justice legislation and therefore be at higher level than any laws or policies.
Under Working Session IV on Strengthening the Safeguards/ Mechanisms of IP Rights in the Philippines chaired by Ms Renuka Srinivasan of the European Commission, the following recommendations were made at the conference:
Census:
- Considering that there is no reliable census on all indigenous peoples and the indispensability of such census for proper implementation of the Indigenous Peoples Rights Act 1997, the NCIP should conduct a census of indigenous peoples.
Indigenous peoples’ participation:
- Recognising the indispensability of the participation of people, NCIP should facilitate the creation of “National Indigenous Peoples Forum” represented by the community leaders to ensure participation of indigenous peoples in decision-making including raising indigenous issues with the Congress and Senate;
Ancestral domains:
- NCIP should conduct a survey of the ancestral domains;
- NCIP should strengthen institutional capacity building of indigenous peoples by including social preparation for processing CADT application;
- Given the lack of funds for its inability to implement many of the crucial projects, NCIP should prepare a budget for CADT and create a section within NCIP specifically for fund raising from international community and directly helping a focused constituency building.
- In the meantime, NCIP should fast track the applications for ancestral domains by issuing supplementary guidelines in the AD delineation to address the need to officially notify the other government agencies pertaining to the grant of applications to the indigenous peoples, encouraging these agencies to cooperate on the delineation process to ensure that the areas enjoy the status as defacto ancestral domain.
Customary laws:
- The customary laws of indigenous peoples should be recognized and NCIP should establish an Institute of indigenous peoples customary laws and alternative conflict resolution in line with the proposal of Modified Jury System on Court of Customary Law. The Indigenous Peoples’ Council of Elders who will be on the Jury will have the opportunity to have continuous legal education.
Autonomy and self-governance:
- The concept of tribal barrangay of governance must be recognized as the starting point for IP communities for political empowerment and NCIP should create as many tribal barrangays as possible. Where such barrangays have been established, these should converted into tribal barrangays - The NCIP should establish one Indigenous Peoples Research and Learning Center in each of the seven ethnographic regions;
Indigenous Knowledge:
- Indigenous Knowledge system should be incorporated in the component of Ancestral Domain Sustainable Development Plans;
- NCIP should focus on human rights and set up human rights centers in all the seven ethnographic regions with IP experts;
Economic Development:
- Instead of implementing programmes through Department of Agrarian Reforms and National Anti-Poverty Commission, the NCIP should directly implement a development plan under the following programme-
- Environment — Preserving Ancestral Domains
- Governance and Political Integration — Philippines Autonomous Regions
- Poverty Alleviation — Income generation schemes
- Education – Including the programme to impart IP studies and knowledge system in colleges and universities
Staffing and accountability:
- The NCIP should develop mechanisms for accountability of its staff;
- The NCIP should establish monitoring mechanisms — first, to monitor and evaluate the land titles, CADT titles; Second, to monitor the problems faced by the Indigenous Peoples; and Third, the management of Ancestral Domains through establishment of the Provincial Consultative Bodies; and
- NCIP has been requested to hold nation-wide debate on the resolution of 269 of the regional legislative assembly and study for implementation of the IPRA keeping in mind the issue of jurisdiction under the RLA 269;