Tulgao Ancestral Domain, Tinglayan Kalinga Photo by Jason Umali

National Commission on Indigenous Peoples

Indigenous Peoples Rights, Health and Environmental Protection: Linking Practices to Law

Atty. Erwin M. Caliba

PRE-COLONIZATION SPANISH AMERICAN POST-COLONIZATION

JURA REGALIA or Regalian Doctrine was introduced by Spain and continued to the American period to the present.

Attitude of government towards indigenous peoples : Pacification - Assimilation -Integration - Recognition

INDIGENOUS PEOPLES refused colonization, stayed in their territories and maintainedtheir way of living

Indigenous Belief SystemSocio-political System

Healing System Economic System

Environment ManagementLanguage

Arts

Culture

Indigenous Peoples Rights Act (IPRA) / RA 8371

“An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/ indigenous Peoples, Creating

a National Commission of Indigenous Peoples, Establishing implementing Mechanisms, Appropriating Funds Therefor, and

for Other Purposes”

-Signed into law on 29 October 1997-Took effect on 23 November 1997

1987 Constitution

“The State recognizes and promotes the rights of indigenous cultural communities within the frameworkof national unity and

development”(Declaration of State Policies and Principles, Article II, Sec. 22)

LEGAL BASES

• “The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities

to their ancestral lands to ensure

their economic, social, and cultural well being.

• The Congress may provide for the

applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

(National Economy and Patrimony, Article XII, Section 5)

“ The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.”

(Education, Science and Technology, Arts, Culture and Sports,

Article XIV, Section 17)

Indigenous Cultural Communities /Indigenous Peoples (ICCs/IPs)

-refer to a group of homogenous societies identified by self-ascription and ascription by others,

-who have continuously lived as organized community on communally bounded and definedterritory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories,

-sharing common bonds of language, customs, traditions and other distinct cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of the Filipinos.

INCLUDES:-peoples who are regarded as indigenous on

account of their descent from the populations which inhabited the country,

-at the time of conquest or colonization, or -at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries,

-who retain some or all of their own social,

economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains. (Section 3 (h), IPRA)

ELEMENTS:

1. Homogenous Communities – identified by self-ascription and ascription of others

2. Distinct Culture – They have common language, customs, traditions and other distinct cultural traits, indigenous political structures, customary laws and indigenous knowledge systems and practices (IKSPs)

3. Territories – Continuously lived in communally bounded territories and defined territory, who occupied, possessed and utilized such territories since time immemorial under claims of ownership

4. Resistance to Colonization – Due to resistance, they became uniquely distinct from the majority of the Filipinos

ICCs/IPs

There are at least 110 ethno-

linguistic groups comprising the

ICCs/IPs with an estimated

population of about 14 million

CORDILLERA & REGION IBontoc; Balangao, Isneg, Tinggian,, KankanaeyKalanguya, Karao, lbaloi, Ayangan, lfugao, Tuwali, Kalinga, Bago, Applai

REST OF LUZON/SIERRAMADRE MOUNTAINSAeta, Negrito. Baluga, Pugot, Abell ing, Agta, Dumagat, Remontado, Bugkalot, Cimaron, Kabihug, Tabangnon, Abiyan, (Aeta), Isarog, ltom

SOUTHERN & EASTERNMINDANAOManobo, Mandaya, Mansaka, Dibabawon, Banwaon. Bagobo, Ubo Manobo, Tagakaolo, Talaingod, Langilan, Mamanwa, Higaonon, Blaan, T'boli, Kalagan, Tagabawa, Mangguangan, Tigwahanon, Sangil, Agusan Manobo

CENTRAL MINDANAOAromanon, Tiruray, Bagobo, UboManobo, Higaonon, Subanen, Maguindanao, Maranao, Iranon, Karintik Blaan Lambangian

ISLAND GROUPSAgutaynen, Tagbanua, Cagayanen, Cuyunon, Ke’ney, Batak, Pala’wan, Molbog, IrayaMangyan, Hanunuo Mangyan, Alangan Mangyan, BuhidMangyan, Tadyawan Mangyan, Batangan Mangyan, GubatnonMangyan, Ratagnon Mangyan, Ati,, Ati Sulod/Bukidnon, Magahat Korolanos, Ata, Bukidnon, Escaya, Badjao, Kongking

REGION II, CARABALLOMOUNTAINSAgta, Kalanguya, Bugkalot, Isinai, Gaddang , Aggay , Dumagat , lbanag, Itawis, lvatan

NORTHERN & WESTERNMINDANAOManobo, Subanen, Arumanen Manobo, Arakan Manobo, Teduray, Dibabawon, Banwaon, Bagobo, Ubo Manobo, Tagakaolo, Talaingod,, Langilan, Mamanwa, Higaonon, Blaan, T'boli, Kalagan, Tagabawa, Manobo Blit, Matigsalog, Tigwahanon, Tagabawa, Sangil

Ethnographic Locations of ICCs/IPs

Rights Defined under IPRA

• Right to Ancestral Domains and Lands

• Right to Self-Governance and Empowerment

• Right to Social Justice and Human Rights

• Right to Cultural Integrity

Ancestral Domains

-All lands belonging to ICCs/IPs (subject to vested rights)

-comprised of lands, inland waters, coastal waters and natural resources-include

(1) ancestral lands, (2) forests, (3) pasture, residential, agricultural and

other lands whether alienable and disposable or otherwise,

(4) hunting grounds,(5) burial grounds, (6) worship areas, (7) bodies of water,(8) mineral and other natural resources and (9) lands no longer exclusively occupied by

ICCs/IPs but which they had traditionally access thereto for their subsistence (home ranges of ICCs/IPs who are nomadic and/or shifting cultivators) Sec 3(a), IPRA

Ancestral Lands

-All lands occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial (subject to vested rights)

-includes but not limited to (1) residential lots;(2) rice terraces or paddies;(3) private forests(4) swidden farms(5) tree lots (Sec 3(b), IPRA)

Note: Ancestral domains/lands are beyond the scope of the Regalian doctrine

Right to Ancestral Domains/ Lands

Rights Duties

1. Right Ownership

Native title - pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership, have never been public lands and indisputably presumed to have been held that way since before the Spanish conquest.

They hold the view that ADs and all resources therein serve as the material bases of their cultural integrity; that these are private but community property which belong to all generations

Ancestral domains or portions found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation shall be maintained, managed and developed for such purposes with full participation of ICCs/IPs concerned and assistance by government agencies.

2. Right to Develop & Manage Lands & Natural Resources-develop, control and use lands and territories-manage and conserve natural resources within territories and uphold

responsibilities for future generations-right to negotiate terms an conditions for the exploration of natural resources for

ensuring ecological, environmental protection

Right to Ancestral Domains/ Lands

Rights

3. Stay in Territories-cannot be relocated without FPIC except thru eminent domain -return when reason for relocation ceased to exist

-Duties to Maintain ecological balance by protecting the flora and fauna, watershed areas and other reserves

-and to Restore denuded areas by reforestation

4. In Case of Displacement (Natural catastrophes) -resettled in suitable areas (with life support systems)- right to return when normalcy restored-if returning is not possible, security of tenure on lands where they are resettled

and basic services and livelihood provided

5. Regulate Entry of Migrants

6. Claim Reservations

7. Safe & Clean Air & Water

8. Resolve Conflict through Customary Law

9. To Transfer Ancestral Lands

10. To Redeem Ancestral Lands Lost throughVitiated Consent.

Self-governance & Empowerment

1.Freely pursue economic, social & cultural well-being

2. Free Prior Informed Consent in use of resources in the ancestral domains/lands

3. Use commonly accepted justice system/conflict resolution institutions/peace building processes/customary laws

CLs and practices be compatible to the national legal system and internationally recognized human rights

4. Participate in decision-making that may affect them Maintain and develop their own Indigenous Political Structures (IPS)

5. Mandatory representation in policy-making bodies and local legislative councils IPMR, local boards

6. Determine and decide their own priorities in development Formulation & evaluation of plans, policies and programs (national, regional and local)

7. Organize IPOs – to pursue and protect legitimate and collective interests/aspirations

8. Granted means to fully develop their institutions & initiatives When necessary, government to provide resources

Social Justice & Human Rights

1. Equal Protection & Non-discrimination (1987 Constitution, UN

Charter, UDHR, CEDAW, IHRL)

-Afford all rights, protection and privileges enjoyed by the rest;-Extend all basic services, educational and other rights and privileges enjoyed by other Filipinos-Fundamental human rights to IP WOMEN

2. Rights During Armed Conflict -Special protection and security during armed conflict-State shall not recruit IPs to armed forces against their will to fight against other IPs- No IP children to be recruited into the armed forces- No IPs to be forced to abandon their lands, territories and means of living or

relocate to special centers for military purposes

3. Equal Opportunity & Treatment -Freedom from all discrimination (employment and benefits) - Right to association, trade union activities and CBA- Equal terms and conditions of employment

4. Basic Services -Right to special measures for economic and social improvement (women, elderly, youth, children and PWDs)-Water and electrical facilities, education, health and infrastructure

5. Protection to Women, Children & Youth

-Equal opportunities and rights for women (social, economic, political and cultural spheres), vital role of youth & children in nation building-Full access to education, MNCHN and housing services

6.Integrated System of Education -Relevant IP education to children and youth

Right to Cultural Integrity

1. Protection of culture, traditions and institutions. These must be considered in the formulation and application of national plans and policies;

2. Equal Access to Cultural Opportunities (education) -through education, cultural entities, scholarships, grants and other incentives without prejudice to right establish and control their educational systems and institutions

3. Recognition of Cultural Diversity -State to take measures to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among ICCs/IPs and all segments of society

4. Practice & Revitalize their Customs & Traditions & the State Must Protect Manifestations Thereof

-State to protect and develop the manifestations of their cultures-Rite to restitution of cultural, intellectual and religious and spiritual property taken without their FPIC

5. Religious, Cultural Sites & Ceremonies; Funds for Archaeological & Historical Sites

-Right to practice, develop and teach spiritual and religioustraditions, customs and ceremonies.-Unlawful to dig archaeological sites of ICCs for obtaining materials of cultural value without FPIC

6. Ownership and Recognition of Cultural and Intellectual Rights (IKSP)

-Recognition of the full ownership and control of their cultural and intellectual rights-Right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, IKSPs, knowledge of the properties of fauna and flora, oral traditions, literature, designs, visual and performing arts.

7. Biological and Genetic Resources -Access to biological and genetic resources and to indigenous knowledge related to conservation, utilization and enhancement of these resources shall be allowed within the Ads only with FPIC obtained in accordance to CLs of the concerned community

Right to Cultural Integrity

FREE AND PRIOR INFORMED

CONSENT (FPIC)

• Field-based Investigation (FBI)

- Certificate of Non-Overlap

• Free and Prior Informed Consent (FPIC)

• Certificate of Consent/Non-Consent/Compliance Certificate• Certification Precondition

PRIMARY GOVERNMENT AGENCY TO

IMPLEMENT IPRA

National Commission on Indigenous Peoples (NCIP)

• Commission en banc headed by a Chairperson

• 7 Ethnographic Regions represented• 7 Bureaus • 13 Regional Offices• 46 Provincial Offices • 108 Community Service Centers

Office of the Executive Director

12 Regional Offices

46 Provincial Offices

108 Community Service Centers

ADO

OPPR

OSESSC

OEHR

OECH

FAO

LAO

Regional Hearing Officers (RHOs)

Clerk of the Commission

Office of the Chairman

COMMISSION EN BANC

NCIP ORGANIZATIONAL STRUCTURE

OSESSC - Office on Socio-Economic Services and Special Concerns

ADO – Ancestral Domains OfficeOPPR – Office on Policy, Planning

and ResearchOEHR –Office on Empowerment

and Human Rights

OECH – Office of Education, Culture and Health

FAO – Finance and Administration Office

LAO – Legal Affairs Office

Powers

Administrative - Implementation of the law through programs and projects. Supervision and control of its bureaucracy

Quasi-Legislative - Promulgation of Rules and Regulations

Quasi-Judicial - Titling of ADs/ALs and the adjudication of cases. Decisions are appealable to the Court of Appeals or the Supreme Court