ncip legal opinion no 06-10-01-13

1 I g c

1997

lI~(Lil_ OIJllttllOti I~Ol ~~O ~O(-0I

[LraJ -liLa) Olhcc

(()9111ual) 20JJ)

FORTHE COMMISSION EN BANe

RE Application of RA 8371 in the ARMM

I

INTRODUCTION

i With the Advent of the Bangsamoro Framework Agreement signed by i tH~ government and the Moro Islamic Liberation Front (MILF) we are now at a curious juncture as to the future of lumads in Mindanao once the B~ngsal1l0rO basic law is in place In a briefing in Davao City Chairman

I

Miriam Colonel-Ferrer assured that customary laws and indigenous dispute resolution mechanisms shall be recognized in the administration of justice in the Bangsamoro and that IPs rights in the Constitution IPRA and even international laws and covenants were provided in the framework iagreement Further she urged indigenous groups to propose development projects for their communities adding that they should utilize the iAutonomous Region in Muslim Mindanao (ARMM) as an arena to secure itheir rights and ancestral domain claims i I

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Though the staten1ent offered a room of assurance to IP groups the dtteper n1essage echoes a reminder to the NCIP that it has a small margin of opportunity to extend its helping hand to the ICCsIPs before the basic law colnes full circle It means the NCIP can do a lot of things that are within its la~thority and financial and technical capacity to pursue plans and programsI I

for the protection and recognition of the rights the ICCsIPs in the ARMM 1

areas while preparations for the Bangsamoro framework is underway i Ii I

ITHE LUMADSAND THE MOROS i

The LU1llads view themselves as distinct from Moros because they did not convert to Islam centuries ago Both groups are indigenous to NIindanao Moros] however do not for the most part refer to themselves aSf I 1

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indigenous peoples because they have sought to establish a separate political identity There are approximately eighteen major non-Muslim in~igenous ethnic groups in Mindanao for a total population of roughly nine million Within the Autonomous Region of Muslim Mindanao (ARMM) Lumads account for only 2 percent of the population (around 60000)

compared to Muslims who constitute 90 percent (roughly 25 million) Most Lumad communities are in remote areas where poverty is high education is 1 I d 1ov an government servIces poor or non-exIstent

i There is not n1uch binding the non-Muslim indigenous peoples of Mindanao together In contrast the thirteen ethno-linguistic groups who aIje known as the Bangasamoro share one faith Islam and common identity i if one vaguely defined Nevertheless at the founding congress of the organization Lumad Mindanaw in June 1986 representatives from fifteen bulldifferent tribes began using the term Lumad to refer to the indigenous p~oples of Mindanao Like the Moros the lumad experienced cycles of land gJabbing and displacement as Mindanao was incorporated into the I P~ilippine state over the course of the twentieth century During the i American colonial period (1898-1946) tribes lost control over their land i because of legislation that did not recognize customary property rights paving the way for an influx of Christian settlers from elsewhere in the cquntry Armed conflict in Mindanao erupted in the 1960s and 1970S - the

Ppilippine government was simultaneously fighting the communist New Peoples A1my(NPA) and the Moro National Liberation Front (MNLF) The loss of their land

is not just a historical injustice for the Lumad territory is integral to their identity and the basis of tribal self-governance The tribes likely to be affected by a final settlement with the MILF are scattered across Central

Mindanao the Zamboanga peninsula and the Sulu archipelago Of those already v0thin the ARMM the most numerous are the Teduray-Lambiangian ofMaguindanao i that number roughly 60000 There are smaller numbers of Dulangan Manobo and ~1aan in Maguindanao as well In Lanao del Sur there are Higaonon while the Badjao

of Basilan Sulu and Tawi-Tawi also identifY themselves as non-islamized ethnic groups Several other tribes live around the fringes of the ARMM including the Erumanen-Menuvu in North Cotabato

The Lumad have lived alongside the Moros for centuries with some intermarrying and even taking up arms for the MNLF and MILF but t~nsions persist This history as passed down through oral tradition is c~mtentious and pivots on conflicting narratives of oppression On the oneQshy

I a

1 Indigenous Rights and

the MILF Peace Process wwwacademiaedu

hand many Lumads lament their ancestors enslavement by the daius(highborn Muslim leaders) On the other Many Moros are baffled as tovhy the tribes cannot see who the real interlopers in IvIindanao are the C11ristian settlers They say that it was the government not the Sulu or

M~guindanao sultanates that once ruled much of what is now southern P~ilippines which passed discriminatory legislation and took indigenous

lahds As a member of Mora Civil society commented The Lumad is iHogical-that they would side with the oppressor Lumad activists strongly disaboree As a woman activist based in Davao said the tradition of I I

I oppression was with the Moros not the Christians We will never subject ourselves to Moro domination This [efforts to secure a Bangsamoro sub-

state induding ancestral land land] is just a continuation of efforts to conquer us during the sultanate2

This history bears on the present in several ways The Lumad of q~ntral Mindano believe they share ancestors with the Maguindanaon and

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the Maranao two of the largest ethnic groups that make up the Bangsamoro and the two dominant groups in the MILF In the version heard in the

Cotabato area there were two brothers one of whOln Apu Tabuna-wayII

cpnverted to Islam while Apu Mamalu did not Many tribes explain how traditional peace pacts agreed between their ancestors and Maguindanaon

1 ~i1d Maranao elders divided Mindanao along the lines of ethnicity and i rieligion Lmnad leaders have increasingly invoked these ancient pacts in the

sontext of the peace process although there is no written record of theln They say these agreements provide the basis for mutual respect and coexistence and can help achieve a just peace in Mindanao Tribal leaders and the panel appointed to negotiate on behalf of the MILF with the Aquino government agreed during a dialogue in Cagayande Oro on 12 June 2011 to reaffirm these pacts I i Nhile this may dispel some mistrust what matters is the impact if ~ny such gestures will have on the peace process The content of the pacts remains obscure and the boundaries between Moros and Lumads have ~hifted overtime As a prominent member of the Moro civil society pointed put it is unclear if these traditional agreements entailed the division of ~territOlY and systems of governance An Erumanen-Menuvu datu (tribal ~hieftain) from North Cotabato disagreed saying That boundalY [between

Moro and Lumads] is not only a boundary of territory it is a boundary of jfaith a boundalY of economic activity a boundalY of political rulings it i7

J Ibid page 3

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a boundary of everything Others question whether the MILF as an organization has the authority to reaffirm pacts that were originally

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concluded between tribal leaders and Maguindanao and Maranao elders3 I

The Lumads remain on the sidelines of the peace process and have i plenty of reason to be worried They fear they will be the sacrificial lambs

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I of a final settlement because they are not a party to the negotiations 4

EHE ARMMAND IPR4 ---rshy

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In 2000 the powers of the ARMM were expanded to include the responsibility of the Regional Government to protect the ancestral l~ndsdomains of the Lumads in the ARMM Since the NCIPs powers and (unctions were not devolved to the ARMM the regional asselnbly ~romulgated Resolution No 269 that became the basis of a InemOrandUITI of llnderstanding between the NCIP and the Regional Government to make the IPRA as the legal framework for IP lICe rights while legislation of a local version of IPRA is being undertaken by the Regional Assembly

i I i I Sometime in 2008 the Regional Assembly enacted Act No 241 known as An Act to recognize respect protect and promote the rights governance and justice systems and customary laws of the indigenous peoplestribal

peoples of the ARMM The local law reaffirmed the policies and principles ~nshrined in the IPRA and international law

I In 2012 the rules and regulations implelnenting the local law was

passed One of the highlights of such IRR gave emphasis to the processing of CADTsCALTsI

Rule IX Section 1 I I

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X x x Until the NCIP-ARMM is organized the osce shall accept applications for certificate of Ancestral Domain TitleCertificate of Ancestral Land Title (CADTCALT) as the authorized agent of the NCIP And upon acceptance of the application forward such applications to NCIP for processing Xarshyx x U

3 ibid 4 ibid

The pressing issues are outlined hereunder

(1) Can the NCIP process and issue CADTsCALTs over ancestral domainland claim application in the ARMM

(2)Can the NCIP extend recognition of the IP Muslillls in the ARl1M

(3) Does it have the authority to implement the Mandatory Representation in the ARMM

DISCUSSIONSRECOMMENDATIONS

(i)CADTCALT applications in theARMM

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i ji The NCIP can process CADT CALT applications within the ARMM ~here is no limitation of this authority in the law and that the powers and I f~nctions of the N CIP were not expressly devolved in the ARMM autonomous government Further the local legislation (Act No 241) and its

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bull implementing rules and regulations have expressly acknowledged the I ~uthority of the NCIP to delineate ancestral domainland claims in the ARMM However to avoid legal complications and legal challenges that

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Inight devour the short remaining time the NCIP must respect the Rfocedures outlined in the IRR of Act No 241 Thus all applications must first be accepted by the OSCC the authorized agent of NCIP under the IRR

before the NCIP processes the same pursuant to RA 8371 and all relevant i r~e~ulations

I U

Considering the shortness of tilne the NCIP is advised to initiate a I dialogue with representatives of the Regional Governor OSCC and OPAPP I

1pr the possible crafting of an agreement that will thresh out the Inechanics procedures technical support services and fund allocations of CADT CALT

for delineation The agreement is necessary to bind these offices of 1mmitments timet~bles tasking and ~heir c0ardinative efforts to ensnre(tshytrat target outputs wIll be accomplIshed In due tIme f

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~c2) Recognition ofIP Muslims i~ the ARM1W I I

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This function is lodged with the OSSC under its charter when it was d~volved with the ARMM and is mandated to carry that task while the

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ARMM is in existence This function was reaffirmed and strengthened in Act No 241 and its IRR thus

Rule IV Section 3

liThe ICCsIPsTPs concerned shall have the sole power to a~thenticate indigenous leadership titles and certificate of

membership The ICCsIPsTPs shall have the following rights ii

i (a) Right to Confer Leadership Titles The ICCsjIPsTPs concerned in accordance with their customary laws and

practices shall have the sole right to vest titles of leadership

(b) Recognition of Leadership Titles To forestall undue conferment of leadership titles and misrepresentations the ICCsjIPsjTPs concerned may at their option sublnit a list of their recognized traditional socio-political leaders with their corresponding titles to the OSCC The osee shall conduct a field validation of said list and shall maintain directory thereof

(c)Issuance of Certificates of Tribal Membership Only the recognized registered leaders are authorized to issue certificates of tribal membership to their members Such certificates shall be confirmed by the osee based on its records and shall have effect only for the purpose for which it was issued The osee shall support the initiatives projects and activities of the ICCsjIPsjTPs that will strengthen and develop their socioshypolitical and leadership systems

Nevertheless the NCIP must negotiate that this matter be included in ~he agreement for purposes of fast tracking the process and for the allocation of funds to meet the target

(3) Mandatory Representation in the ARMAl Legislative Government

This function was carefully spelled out in Act No 241 of the ARMM ~nd its IRK The local law expressly recognized the rights of thegt

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ICCsIPsTPs participate fully in all levels of decision-making and ensured n~andatory representation in the policy making bodies and other local legislative councils

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This legislation can be the starting point of a negotiation with ARMM but needs to be included in the agenda to be presented in the proposed ~~alogue so that it will be part of the agreement between the concerned

agencies of the govermnent

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I CHALLENGES

(a) It may take a year or less for the Bangasamoro basic law to be fully implemented in identified areas in Mindanao This small window of opportunity might not be sufficient for the NCIP to fully attain its target in delineating ADAL in the ARMM areas taking into consideration boundary conflicts political entity interventions and complaints and cases that may arise during the delineation

(b) For one the limitation of its budget and shortness of technical personnel to conduct survey activities might hamper the processing of CADT CALT applications

(c) Tasking is one problem The Commission has to identify what NCIP region or regions will implement the program If not feasible composite team or a task force must be created by the Commission to deal with the gargantuan tasks Whatever arrangement is made

1 I it is very clear that some on-going tasks and programs in other areas and regions ITIUSt be sacrificed to accommodate the urgency of the ARMIv1 targets

(d) Legal challenges are not farfetched Third parties who may be affected by the ongoing delineation are expected to file cases in the courts to challenge our authority in extending our jurisdiction over

i the ARMM areas Though we truly believe that there are no legalI

impediments in doing so we cannot stop affected parties to raisEijt questions in the proper fora

Submitted this 9th day of January 2013

Legal Affairs Office By

-lJZgt

ATTY ARTHUR K HERMAN

Noted

ATTY JEAN~FLORITA

Ole Director

I II

II

II

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--~-- ProJectecI-=Ch-art-fo-~th-e-P-rop-o-sed~cDeIIneati-onmiddotof-- ~----shy

CADTsCAlTs within the ARMM ~7l

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indigenous peoples because they have sought to establish a separate political identity There are approximately eighteen major non-Muslim in~igenous ethnic groups in Mindanao for a total population of roughly nine million Within the Autonomous Region of Muslim Mindanao (ARMM) Lumads account for only 2 percent of the population (around 60000)

compared to Muslims who constitute 90 percent (roughly 25 million) Most Lumad communities are in remote areas where poverty is high education is 1 I d 1ov an government servIces poor or non-exIstent

i There is not n1uch binding the non-Muslim indigenous peoples of Mindanao together In contrast the thirteen ethno-linguistic groups who aIje known as the Bangasamoro share one faith Islam and common identity i if one vaguely defined Nevertheless at the founding congress of the organization Lumad Mindanaw in June 1986 representatives from fifteen bulldifferent tribes began using the term Lumad to refer to the indigenous p~oples of Mindanao Like the Moros the lumad experienced cycles of land gJabbing and displacement as Mindanao was incorporated into the I P~ilippine state over the course of the twentieth century During the i American colonial period (1898-1946) tribes lost control over their land i because of legislation that did not recognize customary property rights paving the way for an influx of Christian settlers from elsewhere in the cquntry Armed conflict in Mindanao erupted in the 1960s and 1970S - the

Ppilippine government was simultaneously fighting the communist New Peoples A1my(NPA) and the Moro National Liberation Front (MNLF) The loss of their land

is not just a historical injustice for the Lumad territory is integral to their identity and the basis of tribal self-governance The tribes likely to be affected by a final settlement with the MILF are scattered across Central

Mindanao the Zamboanga peninsula and the Sulu archipelago Of those already v0thin the ARMM the most numerous are the Teduray-Lambiangian ofMaguindanao i that number roughly 60000 There are smaller numbers of Dulangan Manobo and ~1aan in Maguindanao as well In Lanao del Sur there are Higaonon while the Badjao

of Basilan Sulu and Tawi-Tawi also identifY themselves as non-islamized ethnic groups Several other tribes live around the fringes of the ARMM including the Erumanen-Menuvu in North Cotabato

The Lumad have lived alongside the Moros for centuries with some intermarrying and even taking up arms for the MNLF and MILF but t~nsions persist This history as passed down through oral tradition is c~mtentious and pivots on conflicting narratives of oppression On the oneQshy

I a

1 Indigenous Rights and

the MILF Peace Process wwwacademiaedu







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ATTY JEAN~FLORITA

Ole Director

I II

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ncip legal opinion no 06-10-01-13

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