IPRA Through the Years

Is the Indigenous Peoples Rights Act good enough?

Long before the first Malay datus crossed over from Borneo into Philippine waters in the fourteenth century, the forests and islands of the Panay region, including the island of Boracay, were already home to the Ati, an indigenous people considered by the National Commission on Indigenous Peoples (NCIP) as the best known among the Spanish Negritoes. For centuries, the waters of Boracay have served as fishing grounds for the Ati. This came to an end when the island was transformed into a jewel of Philippine tourism, and the Ati into another problem to be dealt with by those seeking to develop the island for commercial purposes. Its their ancestral domain, yet they are constantly being denied it, says Dr. Raymundo D. Rovillos, Dean of the UP Baguio College of Social Science. Its a clear case of marginalization. Over time, the Ati have been pushed further and further away from their fishing grounds and into the fringes of the islandsometimes at gunpointby the private armies of resort owners. Once caretakers of the forest and seashore, the Ati are mendicants now, taking on the most menial jobs on the island. This case is only one example of what happens when business interests, state policies, and the right of indigenous peoples to their ancestral domains collide. It is not an unusual situation. In response, indigenous peoples all over the world, for decades, have actively campaigned for the international recognition of their rights. And on June 29, 2006, the UN Human Rights Council voted to adopt the Declaration on the Rights of Indigenous Peoples and to recommend this to the General Assembly, also to be held this year. It puzzles Rovillos that the Philippines was among the 12 member-nations that chose to abstain rather than vote in favor of the Declaration. The explanation offered during the Council was that the Philippine government was already committed to safeguarding and promoting the rights of its indigenous peoples, as evidenced by the enactment of Republic Act No. 8731 or the Indigenous Peoples Rights Act (IPRA) and the presence of two autonomous regions in the country. As optimistic as this sounds, the question remains: Is it enough? Before the IPRA Before the enactment of the Indigenous Peoples Rights Act of 1997, there were no laws that dealt specifically with the protection of the rights of indigenous peoples (IP). The laws governing the IP and the state were the general laws of the land, says Atty. Oliver N. Saniel, Legal Officer of UP in Mindanao. These are, to name a few, the Civil Code, the Revised Penal Code, and other similar laws of general application. According to the NCIP, the first known organized government effort to help the indigenous people took place during the American regime with the creation of the Bureau of Non-Christian Tribes, which eventually grew into the Commission on National Integration (CNI). In 1978, the CNI was abolished, and the Presidential Assistance on National Minorities took its place. In 1987, the Aquino administration issued Executive Orders creating the Office for Northern Cultural Communities (ONCC) and the Office for Southern Cultural Communities (OSCC) under the Office of the President. In reality, the state had not lost touch with the cultural communities before the passage of the IPRA, Saniel says. The basis for the laws before the IPRA were the social norms in Philippine society. Public consultations with tribal councils through the local government units were also undertaken. These previous efforts, however, fell short, as far as the indigenous peoples were concerned. The basis for these laws and executive orders was not the recognition of IP rights, Rovillos points out. The ONCC and OSCC considered the indigenous peoples cultural communities, implying that their worth was only tied up with their culture. Nothing was said about their right to ancestral land, their cultural heritage, and their right to self-determination. Recognizing IP rights The IPRA was signed into law in 1997 as the enforcement of the Constitutions mandate for the State

to recognize and promote the right of indigenous peoples/ICCs within the framework of national unity and development, and protect the right of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. In a paper titled Actors, Institutions and State-Society Relations in the Policy Process: The Indigenous Peoples Rights Act, presented at the 6th Annual Association of Pacific Rim Universities Doctoral Students Conference held in Eugene, Oregon in August 2005, Prof. Ruth Lusterio Rico of the UP Diliman Department of Political Science cites the key features that distinguish the IPRA from previous efforts of the Philippine government to recognize IP rights. For example, the IPRA grants total recognition of the rights of indigenous peoples to own ancestral domains and ancestral lands; respects and recognizes indigenous political structures and systems, culture, resource management practices, and conflict resolution mechanisms; recognizes socio-cultural differences among various IP groups; recognizes the right of indigenous peoples to genuine self-determination and autonomy; and provides for the establishment of an office with clearly defined functions and adequate funding, and where IPs are adequately represented. The new law engendered a range of reactions from the indigenous peoples. The most radical view [among IPs] is that its a deceptive ploy on the part of the government, says Rovillos, that it will lead to the privatization of ancestral domain, which will then make it easier for corporations to appropriate the domain and the lands. The reason for this, he explains, is that the IPRA fails to recognize the concept of native titlestitles defined by the customs of the IPsand is still premised on the Regalian Doctrine, with the State ultimately retaining full ownership and control of all lands. According to this view, as long as the law works within this framework, its not a genuine piece of legislation. The Regalian Doctrine is a mythical and historically fallacious principle that permeates the thinking ofthe Filipino legal profession, Atty. Marvic MVF Leonen, UP Vice President for Legal Affairs, writes in a paper entitled Weaving Worldviews: Implications of Constitutional Challenges to the Indigenous Peoples Rights Act of 1997. The Regalian Doctrine, embedded into the Constitutions of 1935, 1973, and 1987, [is] implicitly premised on the largely unquestioned belief that at some unspecified moment during the Spanish colonial period, sovereign rights of the Philippine peoples forebears were usurped by and simultaneously vested in the Crowns of Castille and Aragon. At that moment, every native in the politically undefined and still largely unexplored and unconquered archipelago became a squatterbereft of any legal rights to land or other natural resources. Ironically, it is on the premise that the IPRA violates the Regalian Doctrine that a petition was filed in 1998 in the Supreme Court to declare the IPRA unconstitutional. The case was resolved three years later, with the Supreme Court ruling on the constitutionality of the IPRA. Unfortunately, those three years meant a delay in the full implementation of the IPRA. Also, the ruling is no guarantee against similar petitions being filed in the future. Overgeneralizations There are other points where the IPRA may fail to accurately reflect the reality it serves. Rovillos points out a possible weakness in the law when it tries to universalize the ideals of ancestral domain, [assuming] that these can be applied in all cases and situations. This is an overgeneralization, because there are in fact communities that by this time have no more ancestral domains. Through time, the indigenous peoples themselves have used other instruments, such as Torrens titles and the agrarian reform law, to establish entitlement to land. While there are still ancestral lands intercollectively owned by the community, there are also ancestral lands titled to one or a few persons only. If you assume that this territory has remained intact since the pre-colonial period, you are thinking ahistorically, Rovillos says. The IPRA has generalized the ideals to the point where the changing land tenurial situations in various communities all over the country cannot be mapped out. The law also fails to consider the fact that the IPs are not a monolithic block. These groups have hierarchies, Rovillos says. They have unequal power relations among and within the communities themselves, conflicts between the educated and uneducated, the rich and the poor. This can be a source of contention in cases such as when several IP groups have laid claim to a vast tract of land. There is a need to balance the idea of collective ownership of a resource and the reality that there are, in fact, vertical differentiations among the IPs themselves. Rovillos relates how in some parts of Mindanao, indigenous leaders have gradually given way to indigenous dealersopportunists who have signed Free and Prior Informed Consents with businesses on behalf of their people in order to

get something out of it. Not everybody will consider the common good. When you assume that people will always make decisions on behalf of the greater good, you are romanticizing them. What is needed then, Rovillos says, is a longer exposure to the various cultures and societies that make up the indigenous peoples in order to better understand the dynamics of their culture and society. The IPRA can then be made to reflect this understanding. [As it is now], the IPRA is not perfect, since there is still a need to update the law, Saniel adds. There are still a lot of cultural practices that need to be incorporated into the law. Thus, lawmakers should still amend the law to make it conform to the new and modern case-to-case state of cultural practices or heritage. Test of time The true test of the laws effectiveness will come with time, a full and thorough implementation of the law in order to thresh it out, and of course, a commitment on the part of the government to give both. The law is theoretically very helpful to the indigenous peoples, but what matters most is the implementation and sustainability of the law as time goes by, Saniel says, citing the efforts of the local government officials in Davao City who have created a council for the tribal elders through which the indigenous people may channel their sentiments and proposals for amendments to the law. The rights enumerated in the IPRA are good enough but they still need implementing guidelines, because these may vary from tribe to tribe or from one indigenous cultural community to another. Those definitions are accurate for the time being and in a general sense. Complications may arise where the law makes a constricting definition that may not be exactly what they have in mind or may not be part of their cultural practices. Commitment on the part of the government also entails dedicating the resources for the implementation of the law. The infusion of resources would enable the NCIP to finally fulfill its potential as a powerful agency safeguarding the rights of IPs to their ancestral domains and helping preserve their culture. [The lack of resources] may be a manifestation of how serious the government believes this issue is, Rovillos observes. If the government really thinks this is worth pursuing, it has to put the resources in place. Considering the recent abstention of the Philippines during the UN Human Rights Council, its a little difficult to say how committed the government is to the protection of the rights of indigenous peoples. Still, the situation is not completely bleak, and the fact that the IPRA existsa law borne of the efforts of IP groups, civil society organizations, legal advocates and non-government organizationsis a good sign. Add to this the progress made by the UN Declaration, and the increasing push from the international community, plus the continued vigilance of the IP groups, civil society organizations, and academe, and, perhaps, little changes could be made in the legal system that would allow for the bigger changes in the greater society. At the end of the day, the IP movements can look at the IPRA as an instrument to facilitate and to complement their other strategies for community empowerment, Rovillos says. Saniel agrees. The IPRA is good enough for the moment.