New Law on Indigenous Peoples Faces Legal Challenge Manobo mother and children

NO LAW is ever perfect, and the Indigenous Peoples' Rights Act (IPRA)—also known as Republic Act No. 8371—is no exception. Even its principal author, Senator Juan Flavier, admits this, saying it cannot be expected to satisfy everyone.

But he adds, “Let’s give it a chance for three years. After that, if there are still unmet needs, then let’s amend.”

Many indigenous peoples groups and nongovernmental organizations, however, say there are sectors who are unwilling to wait and see if the nearly year-old law will work. Indeed, retired Supreme Court Justice Isagani Cruz and lawyer Cesar Europa last month filed a case in the Supreme Court questioning the constitutionality of the IPRA.

According to Cruz and Europa, RA 8371 violates the constitutionally guaranteed right of the state to “control and supervise the exploration, development, utilization and conservation of the country’s natural resources.” The petition seeks a temporary restraining order and a writ of preliminary injunction against the IPRA.

The lawsuit comes at a time when implementation of the law is being bedeviled by an impasse regarding appointments to the National Commission on Indigenous Peoples (NCIP), a newly created agency that is mandated to put it in action.

As things are, observers are already reading the seeming inability of the commission to draw the lines with respect to the functions it inherited from the Department of Environment and Natural Resources (DENR) as having something to do with the mining sector’s demand for a review of IPRA’s impact on the industry.

Although DENR Secretary Antonio Cerilles may have ordered the suspension of the processing of Certificate of Ancestral Domain (CADC) applications to give way to the NCIP, there has yet to be a formal memorandum of agreement between the DENR and the commission that would turn over the delineation functions—as well as records—to the latter.

Cerilles, in fact, publicly declared the availability of CADC records anytime the NCIP requests for them only a few weeks ago in a dialog with NGOs.

“That is an executive problem,” says Flavier. “That is where we can test the commitment of Cerilles. Kapag binigay niya ang pagaasikaso sa delineation to empower the NCIP to be able to do what was already being done when the DENR was functioning.”

According to an insider who has been privy to goings-on within the DENR since Cerilles assumed office last July, there may not be a pronounced policy against the law but anti-IPRA sentiments among the department top brass betray this.

The source says proponents of the constitutionality question in the department have brought forth two legal arguments: that only the state can own lands, and that the DENR has sole jurisdiction over the forests and mineral resources.

Interestingly, the same arguments echo the issues being raised by the Chamber of Mines of the Philippines (CMP) and WMC (formerly Western Mining Corporation, Phils.), particularly during the drafting of the law’s implementing rules early this year.

In a letter dated April 21, 1998 to then President Fidel Ramos, the chamber argues that the provision on native title is contrary to the Constitution as it “wreaks havoc to the Torrens title system and other laws on acquisition of property.” It also says the IPRA does not define what constitutes private property, thereby making the law without legal basis.

The chamber also sees a clear conflict of jurisdiction in the NCIP’s functions. The commission, it says, is mandated to enter into mineral agreements on behalf of tribal peoples but at the same time exercises authority over claims and disputes involving such agreements. Furthermore, says the chamber, by allowing only members of indigenous communities to constitute the NCIP, IPRA violates the Constitution’s equal protection clause and grants undue delegation of the state’s power.

Meanwhile, last May 14, WMC—one of two mining firms that holds a Financial or Technical Assistance Agreement (FTAA) under the Mining Act of 1995—submitted to the NCIP its position paper on the implementing rules and regulations, complete with key recommendations.

The letter that prefaced WMC’s position paper, signed by its president Dr. Terence Gardner, insists on the company’s “vested rights,” which the then-still-to-be-drafted rules ought to recognize in order to “continue the legal and regulatory framework under which our FTAA was granted by the Philippine Government.”

The Mines and Geosciences Bureau (MGB) makes similar arguments. Though claiming to agree in principle that indigenous peoples’ rights have to be protected and tribal groups deserve equal opportunities and services, Leo Jasareno, officer-in-charge of the Mining Tenements and Management Division, says “IPRA is an overdone law.”

Jasareno insists on the supremacy of the regalian doctrine—which holds that all natural resources belong to the state—and the DENR/MGB’s primary jurisdiction over mineral resources. “Giving IPs priority rights over mineral resources within their ancestral domain,” he says, “is surrendering the state’s full control over all our resources.”

He also disagrees with the process of self-delineation, saying the IPRA has very lax certification requirements for ancestral domain claims. Under the law, claims shall be substantiated by authentic documents as written accounts of customs, traditions, political structure and institution, including testimony of elders or the community under oath.

Jasareno argues that claims must be proven by anthropological/scientific studies. Otherwise, he says, the mechanism opens a lot of opportunities for abuse. He asks: “What would prevent the Dumagat from claiming the Sierra Madres? Or the Mandaya from claiming Davao City?”

At best, Jasareno says, the IPRA is a class legislation that favors only one sector of society.

“But that’s what it’s all about,” counters Flavier. “The problem is that these (IPs) are the disadvantaged groups. At least, you give them the competitive edge. It’s like a law that benefits the 6th class municipality. That’s not class legislation. That’s just leveling the field,” he asserts.

The senator likens the issue to the tax system. “Sa taxation natin, the law requires the richer ones to pay higher taxes. But you do not say that is class legislation,” he says.

In a recent column in a daily newspaper, Jesuit priest Joaquin Bernas, a recognized constitutional law expert, says even the Spanish colonizers had not taken all the land for the state, acknowledging that the natives were entitled to some of it. He also notes that the IPRA “repeatedly” says that it is “subject to vested rights.” And if some provisions of IPRA is “tilted in favor of indigenous peoples,” says Bernas, this is but the “result of the constitutional” policy regarding tribal communities.

Still, many tribal groups say they are not really surprised at the way things are going, given the treatment they have received before IPRA.

From a condescending and antagonistic attitude toward indigenous peoples exemplified by the Supreme Court decision in Rubi v. Provincial Board of Mindoro in 1919 describing them as “of a low grade of civilization”, the Philippine government’s policy has traversed a confused path.

In 1957, it shifted to an integrationist approach, creating the Commission on National Integration (CNI) by virtue of Republic Act No. 1888. Later on, Presidential Decree No. 1017 established the exploitative system of the Presidential Adviser on National Minorities (PANAMIN) in 1976.

Bagobo datu of Mt. ApoThe late dictator Ferdinand Marcos created the Office for Muslim Affairs and Cultural Communities (OMACC) in 1984 to address matters relating to Muslim and non-Muslim tribal communities. In 1987, as part of its reorganization scheme, the then newly installed government of President Corazon Aquino split OMACC into three offices—Office for Muslim Affairs (OMA), Office for Northern Cultural Communities (ONCC) and Office for Southern Cultural Communities (OSCC).

The passage of IPRA last year was supposed to finally end the centuries of struggle and strife among the country’s indigenous peoples who now make up almost 20 percent of the population, and put a stop to their dispossession and displacement.

This is notwithstanding the sentiments of some indigenous peoples groups like the Katutubong Samahan ng Pilipinas (Kasapi), for whom the IPRA represents a compromise on their part. They say they had taken efforts “in large strides to meet the Western worldview in the middle for a law that merely recognizes, and does not totally provide for indigenous peoples’ rights.”

For Flavier’s chief of staff, lawyer Rudy Quimbo, the filing of the lawsuit against IPRA is lamentable. “Hindi dapat tingnan lang ang IPRA in legal terms,” he says. “It’s also a sociological and anthropological document. We are trying to correct a historical injustice here.”

Joey Austria, coordinator of the DENR’s Ancestral Domain Management Program (ADMP), is convinced of the IPRA’s constitutionality but welcomes the legal challenge to IPRA. “Otherwise, laging may naka-hang na doubts.”

“In some way, the law also serves as a model that is being looked upon by different countries with IP constituencies,” he claims.

To contentions that the NCIP is a super-body, Austria says it is possible given the scope of its functions. “It is a super-body in the same way that the DENR and the DILG (Department of Interior and Local Government) are also super-bodies.”

The NCIP’s jurisdiction over ancestral domains also extends to areas like mineral lands, energy sources, forests and agricultural lands that are within the domain. It is because of this that Jasareno and Donna Gasgonia, head of the ad hoc commission currently reviewing the NCIP make-up, have raised concerns that the NCIP’s decisions and certifications may be railroaded to the detriment of either the tribal communities themselves or government programs.

“That is why,” comments Austria, “we should place the right people there.”

Flavier, for his part, hopes the NCIP is “super” enough to do what it is supposed to do. “The stronger it is, the more powerful,” he points out. “Kasi nga nakatutok sila. When you distribute these functions to the other departments, ang problema walang nangyayari.”

But the NCIP may not have much of a law to implement if current moves at the executive level to “harmonize” the IPRA with the Mining Act prove successful. The mining law is itself the subject of a constitutionality suit filed last year by the B’laan tribe of Columbio, Sultan Kudarat whose areas are affected by the FTAA of WMC. The Supreme Court has yet to issue a decision on the case.

DENR and mining industry officials have been one in calling for the review of the IPRA’s implementing rules and regulations (IRR) so as to make them conform to the mining law. A common concern among the sectors within the DENR—forestry, land, mining, protected areas—is the issue of jurisdiction where the operative term is “free and prior informed consent” of the indigenous peoples.

Lawyer David Daoas, who was appointed last February by President Ramos as NCIP head, confirms the existence of a loose working group composed of the heads of the NCIP, DENR, Board of Investments and the Office of the Executive Secretary.

Daoas says the group is drafting supplemental guidelines that will spell out clear procedures in the implementation of the law not only as it concerns mining but all matters relating to land regulation.

Months back, when the NCIP was still drafting the rules, Daoas was against coming up with special guidelines harmonizing both laws as this would be tantamount to amending the law.

He now insists that the group is not amending the IRR and the tribal peoples’ free and prior informed consent remains a mandatory requirement. Daoas’s post, however, is now also being claimed by an appointee of President Estrada.

In the view of some NGOs, though, the IPRA’s final draft of its implementing rules—now also being questioned by the Gasgonia committee—already has the marks of the mining sector.

According to lawyer Marvic Leonen of the Legal Rights and Natural Resources Center-Kasama sa Kalikasan (LRK-KsK), the rules are conspicuously tame on the definition of property rights. Earlier drafts had limited vested property rights to those covered only by Torrens titles, which would have placed a lid on mining firms’ claims that such rights also cover contracts, licenses, concessions, leases and permits like the FTAAs.

The present IRR maintains that the recognition of ancestral domain is subject to the recognition of existing property rights. This, says Leonen, “automatically limits the law’s coverage, acknowledges and accepts the status quo where unilateral contracts and concession granted by government gain better privileges than the rights of indigenous peoples.”

“In effect, what the IPRA and its (implementing rules and regulations) do is exalt government commitment to a liberalized economic regime,” he adds. “This only sets back the legal rights already won by indigenous peoples and cause them further injustice.”

Table 2: What’s Left of Ancestral Domains?
The IPRA recognizes vested property rights covered not only by Torrens titles, but also mining firms’ claims even over areas that encroach on ancestral domains. These include contracts, licenses, concessions, leases and permits, many of which conflict with ancestral domain claims by indigenous peoples.
Financial or
Technical Assistance Agreements (FTAAs)
Approved: 2

Arimco/Climax Mining: 33,274 hectares of land in Didipio, Nueva Vizcaya and Quirino

Western Mining Corporation: 99,387 has. in the quadriboundary of Sultan Kudarat, South Cotabato, Davao del Sur and Saranggani

After years of exploration, both FTAAs continue to retain 83,753 has.
applications: 84

Area: 4,341,319 has.
Exploration Permits (EPs) Approved: 47

Area: 368,266 has.
Pending applications: 489

Area: 4,850,039 has.
Mineral Production-Sharing Agreements (MPSAs) Approved: 106

Area: 175,435 has.
Pending applications: 1,917

Area: 4,802,664 has.
Industrial Forest Management/Industrial Tree Plantation Lease Agreements (IFMA/ITPLAs) Active: 200

Area: 527,605 has.
Timber License Agreements (TLAs) Active: 18

Area: 923,277 has.
Inactive: 3

Area: 112,885 has.

Only one TLA is expiring this year, the rest extending beyond 2000. But it is likely that the expired/
expiring TLAs will be converted to IFMAs, as has been the practice since the introduction of the Industrial Forest Plantation program.
Forest Land Grazing Lease Agreements (FLGLAs) Active: 504

Area: 154,487 has.
Data from the Mines and Geosciences Bureau's Mineral Rights Management System Unit
(as of August '98) and Forest Management Bureau (as of September 30 '98)

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