THE INDIGENOUS PEOPLESRIGHTS ACT

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In October 1997, then President Fidel V. Ramossigned into law RA 8371, the IPRA. This legislationlays down the legal framework for addressing

indigenous peoples’ poverty. It seeks to alleviate theplight of the country’s “poorest of the poor” by correcting,by legislative fiat, the historical errors that led tosystematic dispossession of and discrimination againstindigenous peoples. The Implementing Rules andRegulations (IRR) of IPRA were approved on 9 June 1998.

The IPRA law enforces the 1987 Constitution’smandate that the State should craft a policy “to recognizeand promote the rights of indigenous peoples/ICCswithin the framework of national unity anddevelopment,”31 and “to protect the rights of indigenouscultural communities to their ancestral lands to ensuretheir economic, social and cultural well-being.”32

KEY ELEMENTS OF THEINDIGENOUS PEOPLES POLICY

The IPRA provides that development programs,projects, and activities must be developed along thefourfold agenda of recognition and protection ofancestral domain/land rights, self-governance andempowerment, cultural integrity, and social justiceand human rights.

Right to Ancestral Land/Domain

The law restores the rights of indigenous peoplesover their ancestral lands and ancestral domains. Theterm ancestral land under the IPRA refers to landsoccupied by individuals, families, and clans who aremembers of indigenous cultural communities, includingresidential lots, rice terraces or paddies, private forests,

swidden farms, and tree lots. These lands are requiredto have been “occupied, possessed, and utilized” bythem or their ancestors “since time immemorial,continuously to the present.” (Section 3 b).

Ancestral domains are defined as areas generallybelonging to indigenous cultural communities, includingancestral lands, forests, pasture, residential andagricultural lands, hunting grounds, worship areas, andlands no longer occupied exclusively by indigenouscultural communities but to which they had traditionalaccess, particularly the home ranges of indigenouscultural communities who are still nomadic or shiftingcultivators. Ancestral domains also include inlandwaters and coastal areas and natural resources therein.Again, these are required to have been “held under aclaim of ownership, occupied or possessed by ICCs/IPs,by themselves or through their ancestors, communallyor individually since time immemorial, continuously tothe present.” (Section 3 1).

The law enumerates the rights of indigenouspeoples over their ancestral domains/lands. These arethe right of ownership over the ancestral lands/domain, right to develop and manage lands and naturalresources, right to stay in territories and not to bedisplaced therefrom, right to regulate entry of migrantsand other entities, right to safe and clean water, rightto claim parts of reservations, and right to resolveconflicts according to customary law (Sections 1–8,Rule III, Part II).

Indigenous peoples also have the right to transfer(ancestral) land or property among members of theircommunity, and to redeem those that have beenacquired from them through fraudulent transactions(Sections 1, 2, Part III).

The law also stipulates that the indigenous peoplesand their communities have the responsibility tomaintain ecological balance, restore denuded areas, and“adhere to the spirit and intent of the Act.”

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Right to Self-Governance andEmpowerment

The IPRA upholds the right of indigenous peoplesto self-governance and empowerment. The IRR furtherdefine the range of the exercise of these rights. Theseare the right to pursue their economic, social, andcultural development; to use commonly accepted justicesystems, conflict resolution mechanism, peace buildingprocess, and customary laws; to participate in decisionmaking; to maintain and develop indigenous politicalstructures; to have mandatory representation inpolicymaking bodies; to determine their own prioritiesfor development; to establish their tribal barangay(village) and equivalent voting procedures; and toorganize people’s organizations.

Indigenous peoples may now also utilize a vitalinstrument for their empowerment—the principle of freeand prior informed consent (FPIC). Section 3, Part III ofthe IPRA states that

The [indigenous peoples] shall, within theircommunities, determine for themselves policies,development programs, projects and plans to meettheir identified priority needs and concerns. The[indigenous peoples] shall have the right to acceptor reject a certain development intervention in theirparticular communities.

The indigenous peoples’ decision to accept orreject a proposed policy, program, or plan shall beassessed in accordance with their developmentframework and their value systems for theprotection of land and resources.

Right to Cultural Integrity

The IPRA and its IRR put forward procedures andmechanisms for the recognition of indigenous peoples’right to cultural integrity. They incorporate suchprovisions as the constitutional and legal framework forthe right to cultural integrity, the conceptual frameworkfor cultural integrity, the specific rights pertinent thereto,and the procedures for the recognition of these rights,including the right to indigenous culture, customs, andtraditions; right to establish and control educationallearning systems; recognition of cultural diversity; right

to name, identity, and history; community intellectualrights; protection of indigenous sacred places; right toprotection of indigenous knowledge; and the right toscience and technology.

Social Justice and Human Rights

Recognition of and respect for fundamentalhuman rights are also safeguarded by the IPRA. Thelaw contains specific provisions that ensure thatindigenous peoples, just like other human beings, willenjoy these rights: the right to life, development, andcivil liberties; political rights; freedom of association;nondiscrimination; equal protection; and right topeace and social justice.

The law guarantees indigenous peoples’ right tobasic social services. The indigenous peoples have theright to employment, vocational training, housing,sanitation, health, social security, infrastructure,transportation, and communication.

THE NATIONAL COMMISSION ONINDIGENOUS PEOPLES

The IPRA, following a constitutional mandate(Art. 16, Sec. 12), created the NCIP as “the primarygovernment agency for the formulation andimplementation of policies, plans and programs topromote and protect the rights and well-being of theICCs/IPs and their ancestral domains as well as theirrights thereto.”33

The IRR spell out the procedures for theorganization of the NCIP, including its creation,agency, composition, appointments, qualifications,tenure and compensation of personnel, appointmentof Commissioners, powers and functions, and ethicsand codes of conduct of its officers and various offices.

The IRR also define procedures toinstitutionalize indigenous peoples’ participation inthe NCIP through a Consultative Body as provided inSec. 50 of the IPRA. A placement committee willoversee the merger of the Office of Southern CulturalCommunities and the Office of Northern CulturalCommunities in the NCIP organizational structure.

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Implementation of the IndigenousPeoples Rights Act

Four years after the enactment of the IPRA,stakeholder assessment of its implementation yieldsdismal results. The NCIP, the government body that ismandated to implement the law, has been unable toperform its tasks well. Participants at the Orientation-Planning Workshop for the New NCIP Commissioners,held on 22–25 August 2001 at Tagaytay City, assessedthe current status of NCIP as follows.

• Lack of clear leadership has led to the absence ornonperformance of NCIP’s policymaking andadjudication functions as well as coordinateddelivery of basic services.

• NCIP’s present structure and staffing havehampered the institution from carrying out itsfunctions.

• NCIP officials are by and large not qualified orequipped with the necessary skills for NCIP to meetits mandate under the IPRA.

• There were indications that the processes ofissuing titles and certificates to allow mining andother activities have been compromised if notcorrupted.

• Past policies and decisions have been detrimentalto the operations of NCIP and these should beidentified and changed to better serve indigenouspeoples.34

A concrete manifestation of NCIP’s weakness hasbeen the slow pace of processing and approval ofCertificate of Ancestral Domain Title (CADT)/Certificateof Ancestral Land Title (CALT) applications. As ofFebruary 2001, the NCIP national office had approvedonly 9 of the 181 CADT applications, and 347 CALTapplications. The Tagaytay workshop findings validatenumerous reports of alleged irregularities in the issuanceof CALTs.35 These reports claimed that several CADT/CALT applications were haphazardly approved, and didnot go through the procedures mandated by the law.

In September 1998, a Presidential Task Force onAncestral Domains (PTFAD) was established. The PTFAD

was assigned to study the issues related to thecomposition, administrative set-up, and operations ofNCIP. The memorandum also directed the Departmentof Budget and Management to withhold the release ofNCIP’s operational funds. These reduced the capacity ofNCIP to process and approve ancestral domain titles.

After submitting its recommendations to thePresident, the PTFAD was dissolved. However, theGovernment created two new bodies, the National Anti-Poverty Commission on Indigenous Peoples and thePresidential Task Force on Indigenous Peoples. Theformer was instructed to address poverty-related issuesaffecting indigenous peoples while the latter was anadvisory body on policy matters pertaining to indigenouspeoples. These functions obviously overlapped withthose of the NCIP.

In June 1998, NCIP produced the IRR. One of themost important and controversial provisions of the IRRis Section 5 (6), Rule II which states that “the ICCs/IPsshall have the right to suspend or stop any project oractivity that is shown to have violated the process ofsecuring free and prior informed consent, or haveviolated the terms and conditions of such previouslygranted consent.”

The mining Industry immediately expressed theirapprehension over this NCIP rule. They also questionedthe IRR’s bias for indigenous peoples and their priorityclaims over the country’s minerals and other naturalresources to the detriment of other sectors like themining and power industries.36 The Chamber of Minesof the Philippines indicated that there had been analarming exodus and withdrawal of foreign miningcompanies due to the “inherent vagueness of the IPRA”and the apparent “lack of commitment by theGovernment to actively support the development of themining industry.”37 The mining industry eventhreatened to bring their issues against the IPRA to theSupreme Court.38

NCIP issued an Administrative Order (No. 3, 13October 1998) exempting all leases, licenses, contracts,and other forms of concession within ancestral domainsexisting prior to the promulgation of the IRR, from thecoverage of IPRA’s provisions on free and prior informedconsent. That Administrative Order also declared thatall written agreements with and/or resolutions byindigenous peoples’ communities prior to the IRR shallbe considered as “free and prior informed consent.”NCIP may also issue a temporary clearance to individuals

Indigenous Peoples/Ethnic Minorities and Poverty Reduction: Philippines16

and companies pending resolution of conflicts withinancestral domain areas.

Advocates and indigenous peoples’ organizationscensured the new Administrative Order for being“onerous” and a “sell-out” to the interests of the miningindustry. They posited that “property rights” as defined,while still being debated, seem to be interpreted in favorof the mining interests; that the short duration (30 + 7days) allowed to secure FPIC is insufficient; that allowing“interim clearances” and any form of written agreementsto pass off as consent is fraudulent; and that the idea ofdoling out “gifts” in the form of showcase developmentprojects before and during the conduct of FPIC is divisiveand deceptive.39

The greatest challenge against the IPRA came on28 September 1998, when retired Supreme Court JusticeIsagani A. Cruz, together with Atty. Cesar Europa, fileda petition before the Supreme Court. The petitioncontained three main points: first, that the law violatesthe constitutional principle that all natural resourcesbelong to the State; second, that the law deprives theState of control over the exploration and developmentof natural resources; and third, that the law threatensto strip private owners of their properties.

After a thorough deliberation, the Supreme Courtvoted on 6 December 2000 to dismiss the petition.However, the separate decisions of the Supreme Courtjustices who voted to dismiss the petition expressedsubstantive points that essentially upheld the Regaliandoctrine. They stressed that the IPRA merely gaveindigenous peoples surface rights over their ancestraldomains. The resources therein, they add, are still ownedby the State.

On 20 February 2001, newly installed PresidentGloria Macapagal-Arroyo issued Executive Order No.1, creating the OPAIPA, delineating its functions toensure the effective implementation of the IPRA. TheOPAIPA was assigned to review the performance,qualifications, and fitness of NCIP officers and staffand to institute a process for the proper selection ofstaff of NCIP, as mandated by RA 8371. Followingnationwide consultations, the President appointed anew set of Commissioners in August 2001.

The appointment of the new Commissionersthrough a consultative process and the full support ofseveral indigenous peoples’ organizations, civil society,and President Macapagal-Arroyo has rekindled hopesfor the successful implementation of the IPRA.

Impact of the Indigenous Peoples Rights Act

Four years after its enactment, the IPRA has mixedeffects on indigenous communities. What follows is anattempt to highlight the advantages as well as thedisadvantages of the IPRA on indigenous communities.

The long years of legislative action leading to theIPRA’s approval and the ensuing debate during itsimplementation have undoubtedly increased awarenessof the public (including the indigenous peoplesthemselves) on the issues and concerns of indigenouspeoples. They have drawn the attention of the State aswell as civil society (nongovernment organizations(NGOs), churches, and academic institutions) to the“plight” of indigenous peoples, who had long beendenied a space in national/mainstream Philippinepolitics.

Several new indigenous peoples’ organizations(IPOs) and national federations and alliances emergedduring the period. At the national level, organizations/alliances were established to give support to the IPRA.One of them was the Katutubong Samahan ng Pilipinas,which was formed through the initiative of the PhilippineAssociation for Intercultural Development (PAFID) andthe Legal Resource Center. Another broad alliance wasthe Coalition for Indigenous Peoples Rights andAncestral Domains (CIPRAD). This is a network of 15IPOs and five NGOs. Two of these NGOs are the lawyers’group known as Tanggapang Panligal Alay sa Katutubo(PANLIPI) and the Episcopal Commission on IndigenousPeoples of the Catholic Bishops Conference of thePhilippines. The Manila Office of the InternationalLabour Organization (ILO) played an important role inthe establishment of CIPRAD. Lending “critical support”to the IPRA is the National Coalition of IndigenousPeoples of the Philippines. This was spearheaded by theDavao-based Lumad Mindanaw and supported by theSentro para sa Ganap na Pamayanan.

At the community level, IPOs were organized andcommunity solidarity enhanced as a result of communityefforts to delineate ancestral domain and ancestrallands. A case of a “good practice” was the community-based Bakun Indigenous Tribes Organization (BITO) inBakun, Benguet, supported by the ILO-Inter-RegionalProgramme to Support Self-Reliance of Indigenous andTribal Communities through Cooperatives and Self-HelpOrganizations (INDISCO). BITO was officially accreditedto lead in managing the ancestral domain of the

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Kankanaey and Bago peoples in Bakun who wereawarded a Certificate of Ancestral Domain Claim in1998. While they wait for the final approval of theirCADT, the organization has come up with developmentactivities like creating sustainable livelihoods andcommunity-based businesses that do not harm orthreaten Bakun’s ancestral domain.40

While the IPRA has resulted in the proliferation ofIPOs and support NGOs, it has also engendereddisunities among the indigenous peoples. One sourceof discord is how to view the IPRA. The IPOs and NGOsthat support the IPRA argue that, despite itsimperfections, they are convinced that this legalinstrument can be used as a stepping-stone toward a“more progressive level of political discourse.”41 TheCordillera Peoples’ Alliance does not share this view.They labeled IPRA a “master act of deception.” Theydecried the persistence of Regalian doctrine in the law.42

The negative effects of the IPRA are felt most atthe community level. Since IPRA was promulgated, therehave been many community-level disputes. In theCordillera, for example, there has been an increase inboundary disputes over the past four years, attributedto longstanding conflicts over resources (e.g., water forirrigation) and territorial delineation. The IPRAexacerbated these conflicts. In the province of Abra,members of a clan who belong to the Masadiit tribe arefighting over the areas that should be covered by theirrespective “ancestral domains.” One faction of the clannow resides in the municipality of Sallapadan, while theother faction lives in the municipality of Bucloc. BecauseIPRA stipulates that indigenous peoples should resortto customary laws to resolve conflicts, the two factionsare “recreating” and retelling their respective version oftheir customary law. People of Bucloc have accused theCouncil of Elders (lallakay) of Sallapadan of being senile;thus, their genealogical reckoning and rendering of oralhistory should not be taken seriously.

The IPRA has also resulted in the “construction”or “imagination” of ethnic identities. In Romblon, forinstance, the Bantoanons of Banton Island are nowclaiming that they are indigenous peoples. They assertthat they should enjoy the rights enshrined in the IPRA.Some sectors have questioned this, saying that theBantoanons are, in many ways, not different (notdistinct) from the Batanguenos.

There is also the problem of ancestral domainsbeing “imagined.” This is a result of a generalizingconcept of ancestral domain, that is, the notion thatancestral domain is a static or fixed concept of acommunal territory, with persistence of indigenoussociopolitical institutions. In reality, many indigenouspeoples have already adopted and adapted westernproperty regimes and do not care about domains.43

Some indigenous peoples have opted for Torrens titlesand members of some clans are fighting each otherfor private titles.44

Still, some experts view the IPRA as an instrumentthat will lead toward privatization of the “commons.”45

For example, in Agusan del Sur in Mindanao, a certainDatu applied for some 76,000 hectares of ancestral land.46

Indigenous peoples expressed fear that privatization willfacilitate the entry of corporations and business personswho will just negotiate with one individual to be able toenter the indigenous communities.47

These different views suggest that while theframework for addressing indigenous peoples’concerns is already established by the IPRA, muchneeds to be done. For one, there is still a need to put inplace monitoring and regulatory mechanisms to ensurethat commercial interests do not unduly appropriateindigenous peoples’ lands. There is also a need to adoptan area-specific and culture-specific ancestral land/domain policy that takes into consideration localnuances, processes, and tenurial systems.

The full text of the IPRA is given in the Annex.