UP Forum July-August 2012

the University of the Philippines

FORUM Volume 13 Number 4

J u ly -A u g u s t 2012

UP AND THE INDIGENOUS PEOPLES

The Road Ahead for the Indigenous Peoples

By Celeste Ann Castillo Llaneta

F

or countless years, indigenous peoples (IPs) have lived on the fringes of society, barely mentioned even in the footnotes of history texts.

The IPs, if given any attention at all, are often viewed as collateral damage in the march to economic development, as members of a somewhat lesser race of humans, and at best, icons of a romanticized past regularly trotted out and paraded during cultural celebrations. This is the case for many of the 370 million indigenous peoples in some 90 countries around the world.1 “[IPs around the world] share common problems—the non-recognition of their rights to their territories and human rights violations—but in different degrees,” said Marissa Cabato of the

Philippine Program for the Indigenous People’s Empowerment and Sustainable Development under the Baguio City-based indigenous peoples organization Tebtebba (Indigenous Peoples' International Centre for Policy Research and Education).

Tebtebba (www.tebtebba.org) was one of the participants in the Rio+20 International Conference of Indigenous Peoples on Self-Determination and Sustainable Development held on June 19, 2012 at Rio De Janeiro, participated in by IP organizations, traditional and spirituals leaders and indigenous peoples from seven regions of the world. “During those partner-meetings, representatives from different countries came together and discussed

their situations, so we saw that the issues [the IPs] are confronting are not all that different from one another.”

Progress has been made in all areas of development with regard to the world’s indigenous peoples since the UN Working Group on Indigenous Populations was designated in 1982 to promote and protect the human rights and basic freedoms of indigenous peoples. This led to the drafting of the UN Declaration of the Rights of Indigenous Peoples (UNDRIP) in 1995 and its eventual approval on September 13, 2007. However, Cabato acknowledges that the issue of the non-recognition of indigenous peoples’ rights remains as pressing as ever, even into the second decade of the 21st century.

THE ROAD AHEAD, p. 2

2

FORUM July-August 2012

THE ROAD AHEAD, from p. 1 Open Letter to the President In the Philippines, the country’s indigenous communities issued a call to the national government on August 9, 2010 during the annual Celebration of the World’s Indigenous People’s Day in the Philippines.

Sixty-five indigenous peoples’ organizations and advocacy groups gathered at the University Hotel in UP Diliman to draft the “Indigenous Peoples’ Agenda” and submitted this to the new president.2 On the same day, two years later: The IP groups, headed by the Philippine Task Force for Indigenous Peoples Rights (TFIP), wrote an open letter to the president who, according to TFIP convenor Jill K. Cariño, had yet to respond to their first missive.3

“[I]ndigenous peoples still suffer the same problems raised in the IP agenda. There has been little government action to respond to the issues raised ...in 2010,” the open letter reads.4 The 2010 IP Agenda urged President Benigno Aquino III to address the concerns of the country’s indigenous people in the following fields:

wNational Commission on Indigenous Peoples

(NCIP), the titling of ancestral lands and domain, Free, Prior and Informed Consent (FPIC) and the Ancestral Domain Sustainable Development and Protection Plan (ADSDPP);

w Indigenous

peoples and the Millennium Development Goals (MDGs);

Patterned after the UNDRIP, RA No. 8371 or the IPRA has been described as “a novel piece of legislation”5 and “one of the most enlightened laws dealing with Indigenous Peoples”6—at least in theory. However, one wonders if the IPRA provides adequate legal protection for all the country’s indigenous peoples—an estimated 14-17 million culturally diverse people belonging to around 110 ethno-linguistic groups.7 “One inherent problem of a national law is a tendency to essentialize or universalize, to simplify and standardize certain things. Definitions and concepts have to be clearly articulated and simplified, and that’s what happened in the case of the IPRA,” said Dr. Raymundo Rovillos, chancellor of UP Baguio. “[IPRA] sought to codify certain concepts like who are the indigenous peoples, what is customary law, what is ancestral domain and so on—as if there was a single definition and operationalization of the concept on the ground.”

One example is the concept of ancestral domain. According to Rovillos, the IPRA defines ancestral domain as if it was a pristine, untouched and unchanging land, uninfluenced by the external Western-influenced State and the Regalian Doctrine.

“In reality, the idea of ancestral domain could take various nuances and expressions on the ground, because there is no single feature of a domain anymore, especially in areas that have accommodated influences from outside, including Torrens titling and the State laws. Some of these have been adopted by members of the indigenous community themselves," he added.

The ambiguity extends to the IPRA's definition of what an indigenous people or indigenous cultural community is. “Again, [in this case] the IPRA’s definition has an essentializing effect,” said Rovillos. “[The IPRA] defines an IP group as a homogenous group. The reality is, there have already been bifurcations, hierarchies based on socio-economic status or class, between ‘educated’ and ’not educated’ and so on, so it’s also problematic.”

Perhaps the most critical issue with regard to the IPRA has to do with its overlap with and inconsistency with other national laws on natural resources, such as the Philippine Mining Act of 1995, the National Integrated Protected Areas System (NIPAS) Law of 1992, the Comprehensive Agrarian Reform Law of 1988, the Fisheries Code, the Forestry Code and others. These conflicting laws create confusion among the indigenous peoples, government agencies and mining companies alike, and as Rovillos points out, the well-funded, legallysavvy mining companies are in a better position to come out on top in the game, at the expense of the indigenous communities. However, there are now attempts to harmonize the different laws and the agencies that implement them.

The best thing In short, the IPRA is far from perfect. Be that

w Human rights abuses and violations inflicted upon indigenous peoples;

w Mining and other development projects; and w Conflicts between the Indigenous Peoples

Rights Act (IPRA) and other laws.

The number of IP concerns raises the question of whether any progress has been made to safeguard the rights of the country’s indigenous peoples, and what affirmative steps and actions we must take from this point on.

w The peace talks between the government and

The IPRA and the NCIP The IPRA Redux

the Moro Islamic Liberation Front (MILF), the Bangsa Moro Juridical Entity (BJE), and the National Democratic Front (NDF);

as it may, Rovillos still believes that “the IPRA is a very powerful, very progressive law.”

Looking back at the IPRA’s first 15 years, NCIP Chair Zenaida Brigida Hamada-Pawid agrees with

the other 5 of what we asked for.”

Pawid also noted that the IPRA is sui generis, the first of its kind both at the international level and in the context of Philippine laws. The law goes against the grain of the State’s Regalian framework, introducing concepts and paradigms that differ starkly from established legal and constitutional practices.

And it is, at 15 years old, still a relatively young law,

UP Baguio Chancellor Raymundo Rovillos

Rovillos. “I always say that, on a scale of 1 to 10, we [the IPs] got a 5 out of what we asked for,” she said about the IPRA. She adds, however, that in her years serving with non-government organizations and indigenous people’s organizations, “I never imagined that the IPRA is this powerful—in the hands of people who know how to wield the powers of IPRA, and who have no taint of personal or ethnographic bias. You can sit across the table with much older government departments and agencies, and hold your own, as long as you believe in the IPRA and the NCIP. That is my assessment of the IPRA at 15 years.”

As to the ambiguities and gray areas in the law, “every law is a compromise,” Pawid said. “You cannot go through the legislative mill and expect to come out unscathed. But I think it’s to the credit of those who really fought for [the IPRA]—the NGOs, IPOs and individuals who put their hearts and souls into it. I think it’s a good compromise in the sense that the gray areas are where you fight. The gray areas allow you to be creative and at the same time forward the definition of IPRA the way they should be. And as we did before, we [the IPs] will fight for

a “teenager” that has gone through and is still going through growing pains as Pawid describes it. And it is not a very well-known law at that, given that so far, only the UP College of Law offers an elective course on the IPRA. But it is precisely the IPRA’s seemingly difficult and ambiguous areas that offer the most room for growth. “When I came in [as a commissioner], we were involved in all kinds of lawsuits, and they were mostly in those gray areas. I believe that given the right facts, good legal arguments and a good legal strategy, we have a chance to win more points [in the fight for IP rights].”

Through the years, there have been moves to have the IPRA revised or repealed,8 but Rovillos hopes that the IPRA would not get watered down and reduced to impotence should such a move be made.

Despite its flaws, the IPRA has given the indigenous peoples an arena to fight for the recognition of their rights to their ancestral domains and cultural integrity, as well as the weapons to fight with. As far as Pawid is concerned, the IPRA is the best thing that has happened to the Philippine IPs. But for it to THE ROAD AHEAD, p. 3

FORUM July-August 2012 3 THE ROAD AHEAD, from p. 2 have any effect upon the lives of the people the law is meant to protect, “it’s up to the NCIP.” Implementing the IPRA The NCIP was created by the IPRA to “protect and promote the interest and well-being of the ICCs/IPs with due regard to their beliefs, customs, traditions and institutions.” However, the NCIP has often been criticized for seemingly going the opposite route—half-heartedly implementing or even subverting the process for acquiring the indigenous communities’ FPIC; entertaining fake tribal leaders (dubbed tribal “dealers” by the IPs) to further the claims of mining companies over the indigenous communities;9 riding roughshod over the indigenous communities’ customary laws and governance systems to favor big business instead of the IP’s rights and well-being;10 implementing a defective Ancestral Domain Sustainable Development and Protection Plan and a long, cumbersome and often expensive process for securing Certificates of Ancestral Domain Title and Land Title (CADTs/CALTs),11 and so on.

Jo Ann Guillao of Tebtebba’s Indigenous

implementation of the IPRA by the NCIP, or the many problems in the implementation.“ Or as the IPs themselves put it: “That NCIP, instead of helping us, they only give us more trouble.”

The weaknesses of the NCIP have been substantiated by research through an institutional assessment of the NCIP undertaken by UP Baguio in partnership with Tebtebba. From this assessment, it was clear that as far as the IP respondents were concerned, the NCIP was serving the interests of the mining companies more than the indigenous communities’, especially since the government has been actively pushing for the mining industry, said Rovillos. The assessment as well as other studies conducted in the early 2000s also revealed the weaknesses in the NCIP’s organizational capacity.

“There is a mismatch between the job descriptions and the actual skills of the people [in the NCIP],” said Rovillos. Many of the NCIP staff came from the Office for Northern Cultural Communities and Office for Southern Cultural Communities, Marcosera precursors of the NCIP, and many of them are not qualified to perform the much broader mandate of the NCIP. Rovillos cites the need for fresh blood

NCIP Chair Zenaida Brigida Hamada-Pawid

Peoples’ Climate Change Adaptation and Mitigation Program relates that in meetings with the IPs, the issue of the IPRA’s implementation would always crop up. “It’s always a major issue when it comes to the discourse on the indigenous peoples—the non-

in the NCIP, preferably those with anthropological knowledge and social science-related skills.

While the IPRA itself is a powerful tool, Rovillos said that “the problem is one, the very inadequate— and that’s a very safe word already—capacity of the

The path to empowerment The price of being “other” However, for majority of the IPs in the country, the struggle for the recognition of their rights to their territory and self-determined development does not take place in the legal arena but in everyday life, as they move through a society that has been taught to regard them as separate, different, static and “other.”

And “struggle” it is especially for the Lumads of Mindanao, who must also deal with constant armed conflict, human rights abuses, a chronic lack of basic services and crushing poverty.

Prof. Myfel Joseph Paluga of the UP Mindanao College of Humanities and Social Sciences, who has

been involved with the Davao-based support group Solidarity Action Group for Indigenous Peoples (SAGIB) and KALUMARAN, a Mindanao-wide alliance of some IP organizations, said: “In the past years, the focus of our activities is not so much in responding to legal issues relating to IPRA and other state laws, but to ground-level concerns of Lumad communities facing repeated military operations, especially during critical seasons of their agricultural cycle, and cases of human rights violations.”

These problems are exacerbated by social and environmental problems such as rat infestations, as what happened last year in some areas of Bukidnon

NCIP to implement its mandate, and two—and we all know this—the lack of more concrete support from the administration in terms of budget, which emasculates the potential power of the NCIP.” NCIP looking inward, forward Pawid is aware of the less-than-favorable reputation the NCIP has earned over the years—that the commission can be bought off by the highest bidder, that it can be used to divide the indigenous communities, and so on. “We have had 14 years of that. It’s not something we can reverse overnight.”

The NCIP’s current commission, however, is working to turn things around. One of the changes that have been made is the recent transfer of the NCIP from the Department of the Environment and Natural Resources (DENR) back to the Office of the President (OP),12 rectifying a possible conflict-ofinterest situation.

Pawid also credits the Aquino administration for the provision for a supplemental budget for the NCIP to put up a quasi-judicial court. “It is this [current] commission that is putting the quasi-judicial court in place,” said Pawid, in accordance with the quasijudicial powers the IPRA has vested on the NCIP. “Here we hope to be able to resolve the issues before the cases go to the regular courts, because you can’t expect all the lawyers and judges in the regular courts to understand the IPRA. Their interpretation of the IPRA could be entirely different.”

The NCIP has also recently issued Administrative Order No. 3 or the Revised Guidelines on Free and Prior Informed Consent and Related Processes, which Pawid describes as an attempt to “plug up the leaks,” particularly in areas most prone to misinterpretation, misrepresentation and graft and corruption. The revised guidelines immediately triggered protests from the mining industry, and both the Mines and Geosciences Bureau and the Chamber of Mines of the Philippines have called for a review of the new rules, which they claim could discourage investments in the mining sector.13 However, Malacañang has upheld the NCIP’s new guidelines.14 In terms of budget, Pawid admits that while the NCIP’s budget of little over P1 billion for 2013 is larger than those of other agencies under the OP, most of this budget goes to personnel services—an odd situation since the NCIP is a coordinating office and not a service office. “Since most of our budget goes to personnel services, we don’t have any support [for our programs]. What projects will we implement?

We have had no capital outlay funds from the day we were created. We don’t have project funds.”

With regard to the CADTs/CALTs, Pawid admits the difficulty in the process of securing the titles.

“In the beginning, the processing and awarding of titles was easy, but when the other government agencies discovered that one-third of the land area of the Philippines would be taken away, they put in all sorts of conditions, such as the requirement to register prior rights, so the registration gets stalled.”

This apart from getting the Land Registry Authority to recognize the titles and claims. As of now, the NCIP has 154 approved CADCs and 83 ADSDDs, “but these are all under review to ensure that they have been properly and thoroughly processed,” said Pawid. She further adds that the NCIP is undertaking a restructuring, retooling and training of its staff.

and Davao del Norte, resulting in food-security crises and even more poverty for the Lumads. “The economic hardships brought about by such political and environmental pressures pose challenges to the communities’ will to continue strengthening their political organizations in defense of their ancestral domains even outside the context of CADC/CADT arrangements.” He added that recently, Lumad-area community schools established through various Lumad and support group endeavors have been subjected to military harassment and occupations.

As it is with the Lumads, the socio-economic THE ROAD AHEAD, p. 18

4

FORUM July-August 2012

THE UP FORUM ROUNDTABLE

on

Indigenous

Alexander G. Flor, PhD Professor 12 Faculty of Information and Communication Studies UP Open University

Flor: The university can assist IPs in their struggle for self-determination through inclusive education and nonintrusive research.

Indigenous peoples are among the most educationally marginalized communities due primarily to access, equity and quality issues. The UP Open University (UPOU) provides access to quality education even to marginalized communities through its open and distance learning delivery systems. Some may argue that UPOU’s technology-based learning platform is more exclusive than inclusive. However, consider the ubiquity of mobile devices. IPs in the remotest areas use mobile phones. Through mobile learning, we can make educational opportunities available to IP communities without much investment in classrooms, roads or even telecommunications infrastructure. Mobile devices may even lead to the active participation of indigenous peoples as content providers, which leads us to the second point: non-intrusive research.

Since the past decade, the UP Open University has been conducting knowledge management research, not within the corporate or organizational standpoint, but within the context of development sectors. One such

study is the design, development and testing of a video-based indigenous KM system using mobile devices and Web 2.0 protocols. During its conduct, the study encountered major challenges intervening variables—that have shaken its basic assumptions that rested upon open access and open knowledge resources.

As a faculty member of an open university, I have long been an advocate of open courseware and open educational resources, adopting the view that knowledge is free. Within the current information and communication technology environment, the ideal of having all explicit or documented knowledge made available on the Web is now possible. Furthermore, the prospect of digitally capturing all tacit or undocumented knowledge and making these available openly is real.

Extending this view to indigenous knowledge, we can argue that having been the product of generations of practice and thus steeped in wisdom, indigenous knowledge should be made freely available, at the very least, to flatten generational learning curves. This is particularly true in traditional agriculture and folk medicine, which have recently become valuable sources of prescriptive technologies for organic agriculture

Nestor T. Castro, PhD Associate Professor and Chair, Department of Anthropology College of Social Sciences and Philosophy UP Diliman

Alejandro N. Ciencia Jr., PhD Assistant Professor, Department of Economics and Political Science (DEPS) Director, Cordillera Studies Center (CSC) UP Baguio

Q How can UP help in struggle for self

and ethnomedicine, respectively.

However, these arguments are undermined by the following: Many studies conducted in the academe have failed to respect indigenous belief systems. Indigenous belief systems covering knowledge transfer, sharing and reuse is guided by a tradition of hierarchy. Indigenous communities, as a rule, have tribal elders, chieftains and healers who regard themselves as custodians of knowledge, which may only be shared with prudence, responsibility and, on occasion, sanctity. Thus, the prevailing belief system dictates that indigenous knowledge on feeding (agriculture) and healing (medicine) cannot just be made openly available to any person who may misuse it or irresponsibly wield the power attendant to it. It is incumbent upon mainstream cultures to respect such belief systems.

Many studies have failed to respect the privacy of IP communities.

Thirty years ago, while developing

and testing the ethnovideographic methodology, I conducted fieldwork among the indigenous peoples of Central Mindanao. I video-documented the indigenous agricultural practices of the Talaandig-Higaonon tribe residing in Mt. Kitanglad in Bukidnon. One practice in particular is the planting of sweet potato, which is one of their staple crops, during full moon, naked.

Like many of their counterparts from all over the world, the members of the tribe plant the crop during full moon, naked. For purposes of academic research, the video capture of such an event may be acceptable and may even be repackaged into a rich media knowledge product.

However, uploading this knowledge product to YouTube would be ethically indefensible. The privacy of IP communities should be respected.

Non-IP users of indigenous knowledge are prone to prejudice and value judgments. Mainstream cultures have often prejudged

FORUM July-August 2012 5

Peoples

Myfel Joseph D. Paluga, MA Assistant Professor College of Humanities and Social Sciences UP Mindanao

Henry Francis B. Espiritu, MA Assistant Professor Social Sciences and Professional Education Cluster Coordinator, Political Science Program UP Cebu

the indigenous peoples' -determination? indigenous peoples as uncivilized, lazy, unlearned, superstitious, primitive and dirty. Thus, there is a tendency among non-IPs to judge indigenous knowledge and practices in this light ignoring innate wisdom in these practices.

Some sectors of society have misrepresented indigenous knowledge. Mainstream and popular culture have often misrepresented and abused indigenous knowledge and practices. National Commission on Indigenous Peoples (NCIP) Commissioner Carlos Buasen provides the following examples: the public mimicry of traditional music with no benefit or due regard for the cultural meaning of the expressions and adaptations; the commercialization of textile designs being copied, massproduced as tourist merchandise; covert intentions on the conduct of research on folklore; and the abuse of cultural beliefs.

Today, we can ask any IP leader

how the academe can help and the chances are he/she will reply: “Imbis na pag-aralan ninyo kami, pag-aralin ninyo na lang kami.”

Castro: Before discussing UP’s role, let me first define the concepts of “indigenous peoples” and “selfdetermination.” The term “indigenous peoples” has been legally defined in Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA). According to this Act, indigenous peoples (IPs) or indigenous cultural communities (ICCs) refer to: “A group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed

Joel N. Sagadal Land Management Officer UP Mindanao

Pya Macliing Malayao, BA UP Diliman National Spokesperson and Deputy National Coordinator Kalipunan ng mga Katutubong Mamamayan ng Pilipinas (KAMP) Bontoc Igorot

and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, become historically differentiated from the majority of Filipinos" (IPRA, Section 3h).

Unfortunately, this definition is too broad and could be applicable to any ethnolinguistic group in the Philippines. I proposed the inclusion of economic, political and socio-cultural marginalization as one of the criteria in identifying indigenous peoples (Castro 2007). In such a manner, focus is given to marginalized groups, such as the Agta at Badjao, compared to groups that are relatively no different from mainstream Filipinos except for their language, such as the Ibanag and the Aklanon.

On the other hand, the right of indigenous peoples to self-determination is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to which the Philippine government is a signatory.

According to this Declaration: “Indigenous peoples have the right to self-determination.

By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions (UNDRIP, Articles 3-4).”

To be able to answer the question on how UP can help in the indigenous peoples’ struggle for self-determination, it is important to know the current problems faced by indigenous peoples in the Philippines. Let me name some of these problems: 1. While IPRA states that customary laws are part of the Philippine legal system, in reality, these laws are not recognized by many quarters, if not totally violated.

The predecessor agencies of the National Commission on Indigenous Peoples (NCIP), such as the Presidential Assistance on National Minorities (PANAMIN), the Office of Northern Cultural Communities (ONCC), and the Office of ROUNDTABLE, p. 6

6

FORUM July-August 2012

ROUNDTABLE, from p. 5 Southern Cultural Communities (OSCC), encouraged the establishment of so-called tribal councils even if there are already existing indigenous political institutions. “Chieftains” have been appointed in communities that do not even have a concept of chiefdoms.

2. In lieu of tribal leaders, there emerged a corps of tribal dealers who broker with big businesses allegedly in behalf of their tribal members. Many government officials wonder why certain indigenous communities continue to oppose development projects when the said communities allegedly already gave their consent to these projects.

What they don’t realize is that government agencies, as well as private companies, have been dealing with tribal chieftains who have no real political control over their supposed members.

3. The establishment of a Cordillera Autonomous Region, as mandated by the Philippine Constitution, remains an elusive dream. The Local Government Code recognizes the formation of tribal barangays, but none have been established so far in the country.

4. I n s t e a d o f e m p o w e r i n g indigenous peoples, a culture of dependency is being instilled in the relationship between government (including its line agencies and local government units) and indigenous peoples.

5. Many of our laws, systems, and policies run in conflict with the cultures of indigenous peoples. For example, the Civil Registration System still favors the Western way of naming people—with first names and patrilineal surnames. Many indigenous communities in the Philippines do not have the same system—they either have no surnames at all or their surnames are derived from other sources (such as using the father’s first name as the surname of the child).

Because of different practices, members of indigenous peoples adopt two names—a native name and a “Christian” name.

These are but some of the problems faced by the indigenous peoples of the Philippines. Now, what can UP do about it?

UP could help in many ways.

First, UP could undertake researches on these problems and recommend solutions in addressing these problems.

The Programa sa Pag-aaral ng mga Etnolinggwistikong Grupo sa Pilipinas (PPEG), a multidisciplinary program of the College of Social Sciences and Philosophy (CSSP), should be revived to take the lead in undertaking such researches. The College of Law and the Department of Anthropology could cooperate in looking at conflicts between the formal legal system and the indigenous legal system.

Secondly, UP could provide the necessary skills needed by indigenous peoples in working for self-determination. For example, skills and tools in mapping their traditional territories are needed by indigenous peoples when they apply for Certificates of Ancestral Domain Titles (CADTs).

The Department of Geography and the College of Engineering could provide their expertise in this field. Other UP units could be involved in advocacy for indigenous peoples’ rights.

For our part, the Department of Anthropology is already discussing with NCIP Chair Zenaida Brigida Hamada-Pawid the possibility of establishing a training institute for NCIP staff. It must be noted that there is not a single anthropologist within the NCIP’s rank and file. Many of its staff members were carryover employees from the ONCC and the OSSC which have a totally different function from that of the NCIP. Thus, there is a need to retool these staff members so that they could better perform their mandate in ensuring the protection of indigenous peoples’ rights.

These efforts should be coordinated and integrated into a common program for indigenous peoples under the banner of the University of the Philippines.

Ciencia: I understand “selfdetermination” to mean the right of human beings, whether as individuals or as collectivities, to make the decisions that bear significantly on their lives. Accordingly, I see the indigenous peoples’ struggle for selfdetermination as essentially involving the right of indigenous peoples to make the decisions that affect their lives, well-being, and development.

Self-determination, however, means different things to different people. Some equate self-determination with secession, i.e., withdrawal and separation from an existing political body or arrangement to establish a new, independent and sovereign state.

I see secession—alongside the creation of autonomous regions—as among the many manifestations or expressions of self-determination. The Indigenous Peoples Rights Act (IPRA) of 1997 provides the legal framework for

indigenous self-determination within the context of the Philippine state.

Despite its flaws, the IPRA provides opportunities for self-determination in indigenous communities and by indigenous peoples.

As an institution that values teaching, research, and extension or public service, UP can do a lot to help in the indigenous peoples’ struggle for self-determination. First of all, UP can offer its assistance to the National Commission on Indigenous Peoples (NCIP) which has the difficult mandate of implementing the IPRA. Among NCIP’s problems is the shortage of a competent staff. The NCIP needs competent personnel with social science training or know-how. Key NCIP tasks such as the delineation of ancestral lands and domains and the application of customary law in relevant situations require competence in social science research, notably, anthropological research. The UP faculty can conduct training workshops with existing NCIP personnel on the conduct of social science and/or anthropological research.

The university can also devise a mechanism whereby anthropology students/graduates are strongly encouraged to offer their services to the NCIP and work in indigenous communities. A possible long-term initiative would involve a more formal partnership between UP and the NCIP: the partnership would offer scholarships to youths coming from indigenous communities whereby scholars will be encouraged to major in anthropology or other related courses. Upon graduation, the scholars will be employed by the NCIP, whether as full-time personnel or as NCIP consultants.

People working in indigenous communities are often troubled by the problem of comprehending the worldview of a particular indigenous community apart from getting the trust of “insiders.” One imagines that an insider with an appropriate degree or training would not experience these difficulties. Moreover, such an arrangement would be consistent w it h th e p r in c ip le s of self-determination and indigenous people

empowerment by allowing an indigenous person to “speak” for his/her community. The NCIP also needs law graduates who are aware of the peculiarities and intricacies of indigenous law. A setup similar to the foregoing can be designed for UP Law scholars from indigenous communities.

Secondly, UP can conduct extension work in indigenous communities in the area of basic literacy, alongside public health, livelihood, and other community-empowering projects and programs. The IPRA’s reliance on written documents (e.g., in the processing of applications, certificates, titles, etc.) has put non-literate communities at a disadvantage, rendering them vulnerable to deception and manipulation. Improving the literacy rates of indigenous peoples will pave the way for a more meaningful implementation of the free and prior informed consent (FPIC) provision of the IPRA. Thirdly, UP, through its curricular o ff e r i n g s , c a n p r o m o t e b e t t e r understanding and appreciation of indigenous cultures and practices, inspire greater respect for indigenous peoples, and inculcate the value of nondiscrimination on the basis of ethnicity among its students.

And fourthly, UP can assist policymakers in crafting laws and policies that are culturally-appropriate and sensitive to community-specific factors and needs. Recently, UP Baguio agreed to conduct a study for the NCIP on the matter of civil registration in the Cordillera. Low registration levels have, among others, deprived the indigenous peoples of the Cordillera access to basic services and other benefits. UP Baguio is also submitting a proposal to the NCIP for ROUNDTABLE, p. 7

FORUM July-August 2012 7

ROUNDTABLE, from p. 6 the conduct of a study exploring the possible interface between Cordillera customary law and the NCIP’s quasijudicial function. These efforts may be seen as consistent with the idea of self-determination. UP clearly has the competence to help indigenous communities in the Philippines realize self-determination. Perhaps, what is lacking is commitment.

Paluga: Perhaps a prerequisite to any academic gesture of reaching out to the Lumads is to divest ourselves of our own fantasies about the ‘natives’ and their (timeless) ‘indigenous cultures’.

Lumads, like non-Lumads, live in evolving socio-political formations and are as enmeshed in many social contradictions as anyone. A Mindanao Lumad alliance-organization (Kalumaran), for example, asserts that their ‘identity’ as Lumad lies in ‘advancing the historical struggles for the right to self-determination’ along with its necessary correlate, an expansive notion of this asserting ‘self’—as these struggles are also many times done in solidarity with non-Lumads.

Outside that dynamic, the usual elements we spontaneously connect to our notions of ‘ethnic identity’ (like language and many elements of their material culture: dress, musical instruments, architecture, etc.) would deflate to mere ‘cultural’ decor. How Lumads are imagined even in present university-based researches and their popularizations (textual or nontextual) are themselves interesting areas that invite a second look.

Lumad communities whose stand for self-determination—and continuing liberative transformation—

comes in conflict with the present state’s policies on key economic and environmental concerns are living in worlds which regularly experience military threats and assaults, varied forms of ethical violations of human dignity (most of the time unseen by mainstream media), and social manipulation by the big players in the economic field.

One cannot underestimate the hardships (even social degeneration) brought about by the everyday political and social pressures on the Lumad communities’ will to continue living and struggling with their dignities intact. Lately, Lumad-area community schools—this soimportant component in present moves for cultural strengthening— have been subjected to almost systematic military harassments (‘these are just NPA schools’) and intrusive

occupations.

Given that context, UP can, first of all, figure in sustained advocacy work. By contributing to the many aspects of Lumad-and-non-Lumad solidarity work and projects that seek to defend and strengthen Lumad organizations and their modes of selfgovernance, we are also contributing to ‘preserving’ their identities (in its living, non-static sense) and making positive interventions amidst their threatened existence.

Secondly, UP can also lead in raising the quality of Lumad studies and their popularization. There is much work to be done in the aspect of doing varied kinds of Lumad ethnography in its multifaceted sense. Many Lumad villages, especially those in hardlyaccessible areas, have very important literary forms (like their chanted epic-cycles), knowledge systems on varied domains (like that on health), or alternative ways of ‘doing/making life’ in ecological edges (like those Manobo communities in the Pantaron mountain range), that need quality documentation (in varied media forms).

All these are also of growing interest to those new-generation Lumads living in the margins (and so more open to acculturative influences

from dominant non-Lumad settlers) of their ancestral domains as they try to re-acquaint themselves with their grandparents’ lifeways. The formalized Lumad schools, now functioning as new modes of cultural transmission, need these documentations as core part of their libraries. Academicians and researchers have much to contribute in strengthening this formal base of Lumad knowledge.

UP can lead in producing highquality, historically-oriented Lumad ethnographies that address theoretical issues aside from doing enumeration and listing of ‘factual bits’ possessed/ harnessed by this or that ‘ethnic group’.

In one Lumad forum I’ve attended this month, I heard from an Agusanon Manobo a succinct formulation that also offers an academically-usable entry-point: ‘what you sometimes call nature (kinaiyahan) is what we also call ancestral domain (yutang kabilin).’

How should we understand that statement? Can we not hear from it a tongue-in-cheek observation by a Lumad on this mainstream, spontaneous view that subsumes them (in a highly imaginary level) under the code ‘nature’, buttressing the notion that equates ‘indigenous’ with ‘natural’ (that is, close to kinaiyahan/kalikasan)—and as with ‘nature’, the first order of the day is ‘to do inventory’ of cultural elements?

Should we read it, in the code of ‘struggle’, as underlining the ‘politics’ (as in themes emphasizing state-IP relations) of ‘land and resources’ in Lumad domains (like in studies on ‘political ecologies’ of Lumad areas)?

But perhaps that terse line also opens for us the question of whether or not our talks about the Lumad should always remain within this chosen ‘nature/ancestral domain’ frame (and their three codes: kalikasan/lupa/ ninuno).

The vision and practice of Pons Bennagen, a long-time Lumad advocate and UP scholar, underlines the theoretical importance of studying Lumad areas as sites of varied socionatural ‘experiments’ in surviving or non-surviving amidst natural-social challenges, while at the same time doing political advocacy among them.

Espiritu: UP is known for its advocacies for self-determination, pluralism and national integration that duly respect regional/ethnic/cultural diversities. Our indigenous peoples (IPs) have been marginalized from the mainstream Filipino society all these years. Colonialism, neo-colonialism, feudalism and state neglect are some

of the reasons for the forced isolation of the IPs, for instance, the Lumads, from our country’s body-politic.

As an academic institution, UP can help in empowering IPs to fully participate in our nation’s socio-economic and political affairs by providing academic venues for clarifying the framework and dynamics of Lumad identity which must start from the IPs’ own articulation of who they are as a people. UP academics and scholars, particularly in the social and human sciences can be vital partners of the IPs in articulating their own Lumad identity. To do this, UP must support the Lumads in developing pro-active affirmative action that would effectively make them free and enable them to enjoy equal rights as citizens of the nation.

The marginalization of IPs remains a formidable obstacle in their aspiration for self-determination.

Marginalization can be the result of two factors: neglect by the government and IPs themselves who allow marginalization to “happen” to them. UP must stand alongside the IPs in calling on the government to grant their rightful demand for recognition as Filipinos like the rest of us. The UP community must stand in committed solidarity with the Lumads in demanding their right to their ancestral domains; to exercise their beliefs such as respect for sacral spaces, ancestral burial mounds, totemic spaces, and practice their customary laws; and to be duly consulted if there are governmental policies and actions that directly affect them.

When IPs passively accept marginalization as their “political-given”, UP can educate and conscienticize the Lumads through popular education and volunteer work to train them in self-reliance and genuine autonomy.

Genuine self-determination can only happen when Lumads are truly empowered to take charge of their socio-economic and political activities on their own.

To equip IPs in this direction, UP must include IP history, culture, customary laws, music and art in the General Education (GE) curriculum as well as in that of other specialized social and human science courses.

In formulating courses that cater to IP ethos and worldview, the Lumads’ active participation must be vigorously sought: they must be consulted and their views keenly valued to be able to come up with courses that can truly showcase Lumad culture and identity. For this purpose, UP must actively recruit ROUNDTABLE, p. 13

8

FORUM July-August 2012

Beyond the Bark Reexamining our roots

By Arbeen Acuña

T

here is a thin line—a letter—between “indigene” and “indigence.” Though their meanings and their Latin roots differ—the former from indigena1 and the latter from indigentia 2—both describe indigenous peoples (IPs). In an interview, Dr. Nestor Castro, UP Department of Anthropology chair, quoted Conrad Kottak3 and said that IPs refer to “the original inhabitants or particular territories; often the descendants of tribespeople who live on as culturally distinct colonized peoples, many of whom aspire political autonomy.”

Their right to self-determination, however, will not be served on a silver platter, more so, a golden one. Despite being guardians of domains blessed with gold, the indigene’s wealth is being looted, making them indigent. No matter how the “civilized” and the “outsiders” romanticize IPs as “rich in culture,” IPs live impoverished lives because of eco-political “developments” that are rather destructive to than cooperative with the environment. Though sources differ regarding Philippines’s ranking 4 in terms of gold deposits, our country’s being gold-rich is reflected in folk epics, as bulawan (gold) and is often attributed to matters considered good—which shall not be mistaken as materialistic in the capitalist sense.5 Beyond the indigene’s identities are their communities—their stories, cultures and economies.

But because of the images that dominant faction of the “civilized” paint, the IPs and their way of life are misunderstood; or worse, reduced as objects fit for museums and coffeetable books. Instead of heeding the call of the tabusaw6, most of us fall for the myths of how fantastic “developments” are authored by owners and operators of giant machines that excavate mines and construct dams—and displace IP communities.

Identification According to Castro, the common characteristic of IPs in the global scale is their ability to maintain much of their pre-colonial traditions, beliefs, and practices. “They also have a strong attachment to their traditional territories because their cultures emerged from and were shaped by the specific physical characteristics of their environment.”

Castro said that IPs in the Americas and in Australia are the lands’ original inhabitants. “The majority populations in those continents are migrants coming mainly from Europe,” while “most (Filipinos) are original inhabitants of the Philippines, at least since 8000 years ago,” making Tagalogs, Cebuanos, and Ilocanos indigenous to the Philippines, but are not considered as IPs “only because they have been colonized and have thus abandoned many of their pre-colonial practices in contrast to the others.”

Based on the legal definition6 in RA 8371 or the Indigenous Peoples Rights Act (IPRA), Castro said that IPs may be defined by self-ascription. Thus

“if a particular group of people feels and believes that they are a culturally distinct community, they then should be considered” IPs, because “ethnicity (or group identity) is a social and psychological construct8 and not something that is biological.” He added that ascriptions by others may also be bases to define IPs. In a discussion of the Dutch cooptation and indoctrination of Minke,9 a Javanese in The Buru Quartet,10 Yohanes Artadi mentioned in a journal article11 that mental control is necessary in economic and political control. “To control people's culture is to control their tools of self-determination in relationship to others.”

“The National Commission on Indigenous Peoples (NCIP), a government agency that is mandated to ensure the implementation of IPRA, merely provides a formal recognition of who the indigenous peoples are,” said Castro. “There is no agreement on the actual number of groups of indigenous peoples in the Philippines. Even NCIP sources provide different figures: 92 groups according to one document and 110 groups according to its website. To complicate matters, there would be a different figure coming from non-governmental organizations, such as the Environmental Science for Social Change, Inc. (ESSC).”

In an interview, Kakay Tolentino of Katribu Partylist said IPs comprise 14 percent of our population. Castro said that for NCIP, it is 15 percent while for the 2000 Census of Population and Housing

(CPH), only 5 percent. He added, “It is only in the Cordillera Administrative Region (CAR) where IPs comprise the majority of the population. Elsewhere in the country, IPs constitute a minority of the population.”

Castro said that NCIP, using its organizational structure’s seven so-called “ethnographic areas,” grouped IPs together based “solely on their geographical spread,12” lumping together in one region “groups with totally dissimilar cultures.”

Castro grouped 13 the IPs as: (i) Cordillerans of Northern Luzon; (ii) indigenous peoples of Cagayan Valley; (iii) Mangyans of Mindoro; (iv) indigenous peoples of Palawan; (v) island peoples of Central Philippines; (vi) Lumads of Mindanao; and (vii) Negritos (scattered in the major islands of the country). Castro distinguished the Negritos because “they are phenotypically different from the rest,” having “an earlier history of occupation of the Philippines,” while most “have already lost their original languages by borrowing the language of neighboring groups” making them “the most threatened with culture loss.”

Misapprehension Indigenous practices, knowledge and belief systems are preserved—or perhaps hidden—deep in their folk epics. Dr. Rosario Cruz-Lucero of the UP Departamento ng Filipino at Panitikan ng BEYOND THE BARK, p. 9

FORUM July-August 2012 9 BEYOND THE BARK, from p. 8 Pilipinas said that folk epics show how profound and sophisticated our ancestors’ way of thinking is, and because of the tendency of students to use Western framework, philosophical insights of folk epics are often missed.

For instance, Lucero mentioned that the Sulod’s epic hero Labaw Donggon can be read beyond romance and mere acquisition of wives, as he unified the cosmos by marrying a maiden from earth, from the underworld and from the upperworld. In the introduction of Labaw Donggon,14 it was stated that the Sulod have laws regarding adultery and that Labaw Donggon’s case may be an escape mechanism that shall serve as reminder that it is wrong to covet another’s spouse.15 Labaw Donggon humanizes the hero, showing that he, too, is flawed, that heroism is collective.16 Lucero also discussed the development of the meaning of words from the folk epic.

For instance, yawa from Malitung Yawa, Labaw Donggon’s third wife, was originally the baylan (priestess) with the most powerful pamlang (magic), while the Buyung is a leader of warriors who go downhill to attack pueblos. The friars then began using yawa and buyung as derogatory terms or cuss words.17 Banyaga in Waray means “evil person”,18 or “demon”, but the Tagalogs use the term to refer to foreigners. Which is why, according to Lucero, Tagalogs borrowed the term diablo or demon from Spanish.

In Labaw Donggon, the women the hero courted are binukot, roughly translated as “well-kept ones,” as they are epic chanters, who are not allowed to be exposed to the sun, keeping their skin fair. Lucero

referred to are modern ones—misconceptions of IPs that the “civilized” accept as fact and natural. Through ethnocentric20 lenses, colonizers then viewed natives as subhumans, as seen in Rizal’s La Indolencia de los Filipinos, his response to the accusation of our ancestors’ alleged inborn indolence.

According to Castro, the Negritos and the Mangyans are deemed lazy because once given sacks of rice, they eat and they work only once their food supply is depleted. During fieldwork, the Agtas of Isabela neither hunt nor fish unless they are already hungry. “Outsiders do not understand that this behaviour is typical in subsistence societies. Why would they collect food that would just rot and go to waste? The forests and the seas are their natural ‘refrigerators.’” According to Castro, had there been excess food, they would feast instead of let food rot. He added, “No one accumulates more than he needs. Therefore, feasting is a social leveling-off mechanism to prevent any individual from being richer than others. The group remains egalitarian.”

Castro added that IPs are often stereotyped and “photographed as wearing their native costumes ( e.g. g-strings) and living in traditional houses (e.g. the Agta lean-to) as if their culture is static,” which is not true as many IPs “are already relatively acculturated”—living “in houses with galvanized iron roofs,” using mobile phones and working as professionals. “Despite acculturation, however, many of them still practice traditional rituals and involve themselves with community ceremonies.”

For Tolentino, the categorization of IPs as exotic dancers wearing bahag or tapis is also wrong and discriminating, since native costumes are not worn

Photo from the National Commission on Indigenous Peoples

said that this shall not be mistaken as subscription to the mestizo standard, because through trading with the Chinese, the Sulod could have acquired the fondness for fair skin. The feet of binukot are also prohibited from touching the ground, which is why they stay in their duyan (hammocks). Lucero said that this is a mode of transportation and not for siesta—as friars or people with (neo)colonial minds might suspect.

In Mythologies, Roland Barthes asserted that a myth doesn’t hide or flaunt anything; doesn’t lie or confess. Myth is a distortion, an inflection that “transforms history into nature;” a hemorrhage, “or perhaps an evaporation or perceptible absence” to empty reality. Myth, being a depoliticized speech, justifies19 things. Consider that the myths Barthes

on a daily basis—only during rituals or sacred occasions.

For Castro, culture contact between the IPs and the rest of the Filipinos has brought about changes in the lifestyle of members of indigenous communities. “The commodification of culture, such as Ifugao elders posing in their traditional costumes in exchange for money, is also an outcome of culture contact.” But for Tolentino, since wearing bahag is sacred to the IPs, tourists who wear native costumes “bastardize IP art and culture,” since traditions are “linked in the political and the economic, not simply to (our) different skin color, hair, clothing. The identity of the indigenous means knowing where they came from.”

According to Prof. Roselle Pineda of the UP

Department of Art Studies, the Western idea of culture being merely aesthetic as food for the soul cannot be applied to IPs. She said that dances, for instance, are functional in IPs’ daily lives, thus a holistic approach is necessary. Their daily survival against militarization, large-scale mining, dam construction and land grabbing, among other reasons of their loss of livelihood, shall be studied, as IPs’ art and culture are being taken away with their ancestral domains.

In a journal article,21 Lucero showed that the Manobo version22 of the Tower of Babel reflects the historical tradition of the community’s lack of unity way back the first arrival of Muhammad Kabungsuwan who grabbed their lands in 1515,23 and has persisted until the contemporary times when land grabbing ensues and issuance of land titles changed the indigenous community structure to district system. The district leaders were chosen depending on their knowledge of Bisaya language and know-how of the local government system.24 Thus, Barthes added, “Ancient or not, mythology can only have an historical foundation, for myth is a type of speech chosen by history: it cannot possibly evolve from the ‘nature’ of things.”

Tolentino, a Dumagat, said that they do not have a datu as they group in clans25 and that NCIP deputizes leaders who are not of her indigenous group. She further said that since the government needs to consult IPs, as per IPRA provisions, the NCIP deputize datus, who do not represent the Dumagat.

According to Tolentino, the government consults and deals with deputized datus, regarding “development” projects. These datus and their immediate families also function as local private armies or CAFGUs. With the national government overriding IPRA’s Free Prior Informed Consent (FPIC), the right of the Dumagat to govern themselves is violated. The cases26 of the Manobo and the Dumagat are but two examples of divide and conquer tactics employed by the national government.

F o r To l e n t i n o , t h e “development” projects of the governments established during the Spanish times and continue up to the present have adverse affects on ancestral lands where IPs reside. IPs “were asked to sacrifice in the name of ‘progress’ and ‘development.’ It was believed that since they were lesser in terms of population, they had to sacrifice in favor of the majority. Such was the case of the infamous Chico River Basin Development Project in Kalinga and Mountain Province and the Cellophil Resources Corporation in Abra,” said Castro. Commemorated during the annual Cordillera Day is the martyrdom of Macliing 27 Dulag who said, “Land is life;” and asked, “What is the most essential thing for man? Life. If life is in danger, what do we do?”

Extraction In Bisaya, gamut means ugat, according to Lucero. In Tagalog, the former means “medicine,” the latter “root.” Extracting insights and delving deeper into the roots of the IPs’ problems may more or less provide uswith the answer to the question the Kalinga leader posed. Using the African philosophy of Ubuntu,28 those who are not considered IP by any definition may relate as, the African saying goes, umuntu ngumuntu ngabantu.29 According to Pineda, the IP art tradition and BEYOND THE BARK, p. 10

10

FORUM July-August 2012 community. “Since IPs are not given basic social services, they cannot read. There is a provision (in IPRA) where upon certification, only the surface of the ancestral domain should remain untouched. In the Cordillera, mining areas lie beneath, so technically, corporations may bore holes under the mountains.”

She said that there are supposed to be “stages”, but corporations already begin mining operations during the “exploration stage,” which precedes the “mining stage”.

Tolentino said that because of the extent of mining, almost nothing is exempted—from the areas designated for hunting, gathering, fishing and farming up to those reserved for their ancestors’ burial.36 “No culture is preserved. How do they respect our practices and structures when they intervene?” asked Tolentino. “We were the first ones to be driven away (from our land), and now they still want us displaced. This is why we have to struggle for our (ancestral) lands.”

Thus, Macliing Dulag’s answer to his own question still echoes years after his death: If land is life and life is at risk, we fight. “This is what one must do. Otherwise, one loses his honor and this is worse than death... Owning the land is arrogance because it is the land that owns us… How can we own something that outlives us?”

To realize why all of us shall be a part of this struggle, consider another phrase from the philosophy of Ubuntu—ubuntu ngumumtu abantu: “I participate, therefore I am.”37 -------------------Email the author at forum@up.edu.ph.

NOTES:

1 "Sprung from the land." (2012). Online Etymology Dictionary. Retrieved from http://www.etymonline. com/index.php 2 "Need, want; insatiable desire.” (2012). Online Etymology Dictionary. Retrieved from http://www.etymonline. com/index.php 3 Kottak, C. (2000). Anthropology: The Exploration of Human Diversity (8th Edition). Salem, USA: Bookbyte.

4 Sources differing in ranks and dates either rank the Philippines as 2nd or 3rd, in terms of gold deposits.

utilized such territories, sharing common bonds of language, customs, traditions and other distinctive traits, or who have, through resistance to political, social and cultural inroads of colonization, nonindigenous religions and cultures, became historically differentiated from the majority of Filipinos.” (IPRA, Section 3h) 8 Castro cites Sian Jones’s The Archaeology of Ethnicity (1997) as reference.

9 Hartadi wrote that this is a "probably a euphemism for 'monkey'" coined by his Dutch teacher, as Minke is "a highly privileged person in his age," being "the only indigenous student" admitted to "a high school for Dutch young people."

10 Quartet written by Pramoedya Ananta Toer while “imprisoned in Buru Island, denied of paper and pen" (Hartadi 2009). Comprised of This Earth of Mankind, Child of All Nations, Footsteps and House of Glass.

11 Hartadi, Y. (2009). The Colonial Doubling, or the Challenge for Colonial Authority. Kritika Kultura.

Retrieved from http://kritikakultura.ateneo.net/images/ pdf/kk13/colonial.pdf 12 NCIP’s categorization: i) Region I (Ilocos Region) and the Cordilleras; ii) Region II (Cagayan Valley); iii) the rest of Luzon; iv) Island groups, including Mindoro, Palawan, Romblon, Panay, and the rest of the Visayas; v) Northern and Western Mindanao; vi) Southern and Eastern Mindanao; and vii) Central Mindanao.

13 From Castro’s The Role of Indigenous Peoples in Protected Area Management in the Philippines (2004) 14 Introduction of Rosella Jean Makaisar-Puno of Dr. F. Landa Jocano’s transcription of Labaw Donggon.

15 Unlike his first two wives, Ginbitinan and Doronoon, who were not betrothed, Malitung Yawa, the third woman Labaw Donggon wanted as a wife, was then married. Labaw Donggon was defeated by Malitung Yawa’s husband, Saragnayan.

16 Half-brothers Asu Mangga (of Hinilawod’s Ginbitinan) and Baranagun (of underworld’s Doronoon) saved their father from Saragnayan, who likewise asked help from the underworld (It shall also be noted that ‘villains’ in epics are not absolute evil and are also dependent upon collective effort, such as in Saragnayan’s case).

Dumalapdap and Humadapnon, Labaw Donggon’s brothers, helped in getting him back in shape.

17 Now, “yawa” roughly means “demon,” while “buyung” roughly refers to raiders, criminals and other ‘bad’ men.

18 Translated from Filipino as "masamang tao" by the UP Diksyunaryong Pilipino (2nd ed., 2010).

19 Barthes furthers, “Myth does not deny things, on the contrary, its function is to talk about them; simply, it

Photo from the National Commission on Indigenous Peoples

BEYOND THE BARK, from p. 9 culture is exoticized and romanticized, as if they were an endangered species that ought to be preserved, but there is no ‘pure’ culture because of human interaction.30 Castro added that most people “only appreciate the aesthetic aspect” of the IPs’ culture: the t’nalak textile of T’bolis, the traditional tattooing of Kalingas, the Hanunoo Mangyan syllabic script, the tadek courtship dance of the Tinguian, among others. Seeing “only the surface of the culture,” most are “unaware about the indigenous knowledge systems and practices of these communities, such as their rich knowledge about medicinal plants,31 their better understanding of biodiversity, and their strong spirituality.”

Pineda said that besides exotic dances and bayanihan, “backwardness and being uncivilized to a certain degree” or taga-bundok (mountain dwellers) are among the associations made by her students on IPs. She added that if first world countries are marketed through civilization (e.g. New York’s skyline and the Statue of Liberty), the third world’s selling points are “the pristine beaches of Boracay, the last frontier, the lost paradise.” For Pineda, this is an oxymoron since the beauty of the lost paradise is its being backward, justified through romanticizing and exoticizing. “The rich culture (of IPs) represent an uncivilized community, but this is justified since poverty is presented as an exotic condition.” This is similar to the critique of Brillante Mendoza’s film as “poverty porn,” making impoverished conditions through camera angles appear beautiful. Pineda added that the portrayal of the IPs as cheerful in nature is selective. For instance, the Cordillera people’s culture of fetad32 is seldom featured by the National Commission on Culture and Arts (NCCA) or any government institution.

Showing how futile isolating the problems of IP culture from societal issues, Pineda cited the founding of a “school of living tradition,” making a creative industry out of textiles. “Let’s say that IPs earn and gain ‘pride,’ but the threat of large-scale mining and militarization remains, resulting to hamletting.

The problems of IPs then are not really addressed.” Tolentino cited another instance where the Ayalas-Zobels produce copies of Iraya-Mangyan handicrafts and sell them in tourism pilot areas such as the Talipanan Beach in Puerto Galera. She said that the tabuyo (vines) exhibit wisdom of inspired native weavers, so there are no similar designs.

Mass-produced copies33 then— though less polished and less detailed—are sold as Mangyan handicrafts.

“What are we going to do with the textile, with the culture, without the people, the (IP) community?” asked Pineda. The IPs from the Cordillera had no choice but to descend to Baguio City to sell their art and culture.

With rocky soil and antedated technology, highland farmers’ agricultural economies remain backward. “Had the food supply been enough, there remain threats of mining and militarization, aggravating poverty. Despite their mineral-rich lands, the IPs do not benefit as corporations are the ones with the machines to excavate and to process the minerals.”

“IP culture is less harmful because they work with nature,34” said Pineda. The IPs contribute the least to the destruction of nature—and yet, they are the ones most affected by global warming and climate change. Laws that are supposed to protect IPs, such as the IPRA fail to protect them She cited a case in Mankayan, Benguet35 where corporations bore holes in mountains, causing the collapse of a

5 Discussing a part of Agyu, Dr. Rosario Cruz-Lucero mentioned that there was a broken-hearted datu who left the dowry for the maiden he is courting. After being rejected the datu grieves and leaves his dowry behind. This shows how the datu values the maiden, but not in the framework of capitalism. The dowry of gold the datu left in shore are those which glitters in the sand.

6 Mentioned in Agyu. Tabusaw refers to spirits that aid warriors.

7 Cited by Castro: “A group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and

purifies them, it makes them innocent, it gives them a natural and eternal justification.”

20 University of Vermont’s Prof. William Haviland wrote in Cultural Anthropology (9th edition) defined ethnocentrism as “the belief that one’s own culture is superior to all other.” Cultural relativism on the other hand is “the thesis that one must suspend judgment on other people’s practices to understand them in their own cultural terms.”

21 From Lucero’s “Ang Dalumat ng Panahon at Espasyo sa Mga Traki ng Dulangan Manobo.” Humanities Diliman (2002) 22 In another discussion, Lucero said that in the Manobo folk epic Ulahingan was Baybayan, who did not

BEYOND THE BARK, p. 12

FORUM July-August 2012 11

The Indigenous and Biodiversity

Photo from http://www.vintagephilippines.com/index.php/news/view/banaue-rice-terraces-vanishing-wonder and http://www.thecuttingedgenews.com/index.php?article=74583

Exploring alternative models of governance for environmental conservation

By KIM Quilinguing

S

peaking before the delegates from the indigenous communities of Luzon last November 7, 2011, Ifugao lone district representative and UP alumnus Teddy Brawner Baguilat, Jr. said that 70 percent of the mining applications in the country are on sites considered to be part of the ancestral domains of indigenous peoples. While there may have been laws passed to provide the legal basis for the protection of these lands, those provisions get buried in a heap of confusion on which laws on land use should be upheld.

Baguilat emphasized the difficulty of indigenous peoples in having their rights over their land recognized by the non-indigenous government and the general population. He chose a no more appropriate venue to reiterate his observation than the first Sub-regional Conference of the Indigenous Community Conserved Areas or ICCA. Co-organized by the New Conserved Areas in the Philippines Project (NewCAPP) in cooperation with the Philippine Association for Intercultural Development (PAFID), Inc., the Koalisyon ng mga Katutubong Samahan ng Pilipinas (KASAPI), Inc., the UP National College of Public Administration and Governance (UP NCPAG) and the UP Office of the Vice-President for Public Affairs, the ICCA conferences will gather indigenous communities from Luzon, Visayas and Mindanao on three separate occasions which culminated in the national conference last March in UP Diliman.

Funded by the Global Environment Facility (GEF) and the United Nations Development Programme (UNDP), the ICCA is a campaign to document the indigenous communities from Luzon to Mindanao and seek government and international community recognition for their efforts in biodiversity conservation in their ancestral domain. The campaign was jumpstarted by the United Nations Declaration of the Rights of the Indigenous People (UNDRIP), which was adopted by the United Nations General Assembly on September 13, 2007.

The UNDRIP was a long-awaited manifestation of support from the United Nations which was the result of efforts by representatives of indigenous communities from different parts of the world.

Suffering from years of discrimination, neglect and exploitation, these communities brought their struggles before the international organization in the

hope that a defining document of their rights would be issued for the compliance of member-states.

Aside from the declaration defining the rights of the indigenous individual and his or her community, the UNDRIP also provides for the protection of the ancestral domain of the communities and definitions of the relationship among the government, corporate interests and the indigenous people.

Article 26 of the UNDRIP provides that “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.”

The same article also states that “States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”

Several provisions of the UNDRIP would sound the same to some advocates of indigenous rights in the Philippines. And that is because the declaration almost mirrors a law passed by the Philippine Congress a decade before. Republic Act 8371, or the Indigenous People’s Rights Act of 1997, showcases the supposed desire to recognize the rights of the indigenous communities, their culture and heritage, and their rights to their land.

Like the UNDRIP, the IPRA provides under Chapter II, Section 4 that “Ancestral lands/domains shall include such concepts of territories which cover not only the physical environment but the total environment including the spiritual and cultural bonds to the area which the ICCs/IPs possess, occupy and use and to which they have claims of ownership.”

Chapter II, Section 5 of the IPRA also provides that “Indigenous concept of ownership sustains the view that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICC's/IP's private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights.”

Both provisions of the Act, as well as the other rights and responsibilities entrusted to the indigenous

in the law, appear ideal and a genuine testament to the willingness of the state to recognize the rights of the indigenous over their land. But while the law would appear to be clear, the implementation would arguably differ from what was on paper.

Baguilat cited the still prevailing mentality among the government policy-makers and law enforcement agencies, particularly on land rights, that all lands belong to the state. The Regalian Doctrine, as it is called in legal parlance, still remains in force both in the minds as well as in the procedures of workers and offices in government.

This mind-set contravenes the notion of the indigenous communities, whose affinity with the land would go as far back as, at the very least, the pre-Spanish colonial period.

The conflicting notions of indigenous community land rights are nowhere best exhibited but in the 1987 Constitution itself, where Article II, Section 21 states that “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” In the same breath Article XII, Section 2 states that “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.”

These conflicting provisions would be cited in the landmark case of Cruz and Europa vs. DENR, DBM, NCIP,1 where the constitutionality of the IPRA was challenged.

In his separate concurring opinion with the Supreme Court’s decision upholding the constitutionality of the IPRA or RA 8371, then Justice Reynato Puno said that the religious and ethnic differences among Filipinos “were carried over and magnified by the Philippine government through the imposition of a national legal order that is mostly foreign in origin or derivation.”2 Puno was however careful to point out that the IPRA “merely gives the ICCs/IPs, as owners and occupants of the land on which the resources are found, the right to the small-scale utilization of these resources, and at the same time, a priority in their large-scale development and exploitation.”

With these interpretations, Puno said that the IPRA does not contravene Article XII, Section 2 of BIODIVERSITY, p. 12

12

FORUM July-August 2012

Photos from http://www.ruralpovertyportal.org/web/rural-poverty-portal/topic/voice/tags/indigenous_peoples/ipday, https://www.rainforest-rescue.org/mailalert/716/philippines-please-support-palawan-s-indigenous-peoples-against-mining and http:// bilingualpen.com/2008/10/22/timpuyog-in-diversity/

BIODIVERSITY, from p. 11 the Constitution. The maintenance of the Regalian doctrine as defined in the provision should be interpreted as the State still being the owner of the lands also claimed by the indigenous to be their ancestral domain.3 Bearing the rights of being the owner, he said the State can enter into an agreement for large-scale utilization of lands, including those claimed by the indigenous, provided that the indigenous are given priority in agreements made between the government and private interests.

While the rights of the indigenous over the ancestral domain are recognized, the rights of the State as landowner are reinforced.

In his own separate dissenting opinion, Justice Artemio Panganiban said that the IPRA violates the Constitution particularly in its provision for priority rights of the indigenous in the ownership and exploration of resources in their lands.4 Panganiban asserted some provisions of RA 8371 contravene the pronouncement of the State’s ownership of public lands provided by the Constitution since the utilization and distribution of public land is a right solely exercised by the government. Panganiban said that while the indigenous cultural communities may have been discriminated for so long, “this does not, however, give Congress any license to accord them rights (under the IPRA) that the Constitution withholds from the rest of the Filipino people.”

The concept of land ownership of ancestral domains is problematic since the Philippine government presumes to own all the lands in the country, including those of the indigenous. The indigenous, however, believe that the land they consider to be ancestral domain has been theirs, to borrow their phrase, since time immemorial.

It is these conflicting notions of ownership, aggravated by the differences in concepts of governance, environmental management and culture, which cause friction among the indigenous communities, some government agencies and local or foreign business interests.

The friction manifests itself when indigenous communities stand their ground and maintain ownership of their land rather than honor the permits given by government agencies to private interest groups. The groups, in their desire to make a buck of the bounties of the land, end up in the ancestral domains after discovering that the only areas left with sufficient forests and unmined lands are those of the indigenous.

With the ICCA conferences, the DENRProtected Areas and Wildlife Bureau (DENRPAWB), as well as PAFID, KASAPI, and the GEF and UNDP hope that the ancestral domain which are either threatened or still unrecognized would be identified and protected not only by the Philippine government, but also by the international community under the provisions of the UNDRIP. The recognition under the ICCA would not only ensure the preservation of the ancestral domain but also the protection of biodiversity species in the land owned by the indigenous community. Likewise, this alternative form of recognition and appreciation for indigenous governance would not only work for the betterment of the environment but also for the preservation of the heritage and culture of the recognized community.

As the national university, the University of

the Philippines, according to UP Vice-President for Public Affairs J. Prospero De Vera III, should be engaged in the documentation, study and exploration of alternative forms of governance which may be practiced in the community. No other college in the university would be best suited for the task but the UP NCPAG. Through the NCPAG, De Vera said a greater appreciation of the forms of indigenous governance of ancestral domain may be appreciated and even practiced by non-indigenous policymakers or public officials to enhance their service to their constituents.

Since the conferences highlight governance, the NCPAG hosted the ICCA National Conference last March 29-30, 2012 at the NCPAG Assembly Hall, UP Diliman. The conference was the culmination of a series of conferences which heard the issues and concerns confronting indigenous communities in the country.

In a speech read by De Vera at the said conference, UP President Alfredo E. Pascual said that the ICCA is a cost-effective and equitable way to protect our remaining forests, our biodiversity, our natural resources while supporting the IPs in strengthening their bond to their culture and tradition…”

Speaking also at the national conference, another UP alumnus, Senator Aquilino Martin Pimentel III, said that the indigenous communities have been at the forefront of protecting the environment over the centuries and the ICCA would be a fitting recognition of the role that they have played in biodiversity conservation.

Being a legislator who hails from the island group which has the most number of indigenous communities, Pimentel said that the indispensable role of the indigenous and their efforts in preserving their ancestral domain as well as protecting the environment, should be supported by those in government. On his part, he vowed to propose legislative measures which would aid the efforts of the indigenous, more aptly called lumads in Mindanao.

In closing the national conference, House BEYOND THE BARK, from p. 10

engage in battle. Their leader Agyu instructed Baybayan to sing of adventures of his people as he dances around the world. This is how stories all over the world bear semblances to one another, as they are weaved and told by Baybayan.

23 Lucero cited Muslims in the Philippines (1999) by Cesar Adib Majul.

24 Lucero cited The Lumad’s Struggle in the Face of Globalization (2000) by Karl Gaspar.

25 “Ang antas na inabot namin sa Dumagat ay antas angkan, kaya wala kaming datu,” said Tolentino in an interview.

26 In Mangyan Day 2012, there are accounts where IPs are pitted against IPs, regarding mining disputes.

27 Translated from Filipino. Quotes from Dulag are from Pinoyweekly’s “Pagtatanggol sa lupa at buhay sa Abra”, retrieved from http://pinoyweekly.org/new/2012/05/ pagtatanggol-sa-lupa-at-buhay-sa-abra/ 28 Its principle is “I am only because we are, and since we are, therefore I am,” from http://www.spirituality. org.za/files/D%20Forster%20doctorate.pdf.

29 “A person is a person through other persons,” or “We are, therefore I am.” Ibid.

30 Mentioned by Jun Cruz Reyes in Ka Amado (2012), Reyes’s biography of Armando V. Hernandez.

31 Lucero also mentioned that there are botany and architecture lessons in Agyu.

Deputy Speaker and Quezon province 4th District Representative Lorenzo Tañada, III said that government must adopt a definitive policy on extractive industries, particularly those which threaten indigenous communities. He also said that the role of the indigenous in protecting the environment, even in the face of threats from big business, must be recognized. Their efforts to protect their land, preserve their identity and promote their culture must be supported, particularly by those in government.

While the ICCA conferences have done their part in sharing the experiences of the indigenous with the non-indigenous; and the collective efforts of the indigenous in protecting their ancestral land and natural environment are recognized, it remains to be seen how those in government, the academe and the private sector will complement the consistent actions of the cultural communities.

There are still gaps between the provisions of the 1987 Philippine Constitution and the laws relating to the indigenous communities. As long as they exist, the Igorots, Mangyans, Lumads and other indigenous groups, will always be on guard for possible incursions upon their land and the destruction of what little remains of Philippine terrestrial biodiversity.

-------------------Email the author at forum@up.edu.ph.

NOTES:

1 Cruz, Europa vs. DENR, DBM, NCIP, GR No. 135385, December 6, 2000. Retrieved August 16, 2012 from http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385.htm 2 Puno, Reynato, Separate and concurring opinion, Cruz, Europa vs. DENR, DBM, NCIP, GR No. 135385, December 6, 2000, Retrieved August 16, 2012 from http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385_puno.htm 3 Ibid.

4 Panganiban, Artemio, Separate and dissenting opinion, Cruz, Europa vs. DENR, DBM, NCIP, GR No. 135385, December 6, 2000, Retrieved August 16, 2012 from http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385_panganiban.htm

32 For Pineda, this concept of being revolutionary is a reason why Cordillera was not conquered by the Spaniards.

33 Tolentino added that the same corporate practice of copying of designs is also done in areas of the Igorot and in Mindanao. The copied fabric and design, besides differing in color and having low quality, are also loosely knitted.

34 During Mangyan Day 2012, Amit Gabriel, a Hanunuo Mangyan leader, shared how a Japanese researcher reported findings that kaingin farming is good for the environment. See http://www.up.edu. ph/index.php/read-more/21-newsletter/237-aupwamangyan-day 35 Sinumlag, A. (2011, December 1). "Likely collapse of LCMC tailings dam walls spooks Benguet folks." Bulatlat. Retrieved from http://bulatlat.com/ main/2011/12/01/likely-collapse-of-lcmc-tailingsdam-walls-spooks-benguet-folks/ 36 This was also in a talakayang bayan during Mangyan Day 2012—the burial sites being violated due to mining.

37 Forster, D.A. (n.d.) “Validation of individual consciousness in Strong Artificial Intelligence: An African Theological contribution.” Retrieved from http://www.spirituality.org.za/files/D%20Forster%20 doctorate.pdf

FORUM July-August 2012 13 ROUNDTABLE, from p. 7 cultural experts and social engineers among IPs with respect to researches on indigenous cultures. UP also needs to institutionalize “Indigenous Peoples Studies” as a separate academic desk in the university, which will hopefully become an institute or an independent college in the future.

Lastly, I strongly feel that UP needs to establish scholarship endowments, research grants/grants-in-aid and student assistantship programs for the underprivileged but academically deserving Lumad students both in the undergraduate and graduate levels and researchers for the Lumads and nonLumads interested in Lumad culture.

UP must be the vanguard of pro-active and sustainable affirmative action to empower IPs and prepare them to be active participants and fruitful contributors in nation-building. If it is really serious in its solidarity efforts and advocacy for the Lumads, UP must willingly invest part of its budget and logistics for this end. If it can do this, then UP would truly be a university of the Filipinos and for the Filipinos, irrespective of ethnic and cultural differences.

Sagadal: Self-determination is the right of a cohesive national group/ people living in a territory to choose for themselves a form of political and legal organization for that territory.

The right to self-determination of the indigenous peoples was strengthened by the enactment of the Indigenous Peoples Rights Act of 1997. The indigenous peoples were awarded a Certificate of Ancestral Domain Title to their ancestral lands where they can exercise their right to govern themselves and enjoy other rights over their area as provided in the IPRA Law. But despite the enactment of this law, the IPs continue to struggle for their rights.

UP as a national university may help in the indigenous peoples' struggle for self-determination by taking a lead in creating programs/activities that recognize, protect and promote indigenous peoples, such as: 1. UP programs that increase the representation of IPs as students in the constituent universities, such as in UP Mindanao. If we look at the enrollment statistics we can see that only a few IPs are studying in the university.

Aside from decentralizing the

UPCAT where IPs are given additional points to qualify for enrollment in the university, UP may design ladderized programs that will cater to IPs who are willing to pursue their studies even if they failed in the UPCAT. UP may replicate the success of the UP Manila programs in public health where admission to UP does not require students to be UPCAT passers.

2. UP research studies on IP culture and arts to help preserve and protect their living traditions.

3. UP recognition of the indigenous peoples’ Free and Prior Informed Consent by obtaining their consent whenever UP conducts bioprospecting (the research, collection, and utilization of biological and genetic resources and substances, with the view of applying the knowledge derived therefrom for medicinal, commercial and other purposes) or any research and extension activity within an IP area.

4. Affirmative action programs for the IP communities to prepare them for any opportunities that they may encounter. This affirmative action includes literacy training and tutorial to prepare IP pupils/students for the annual achievement test in the area, admission test in colleges, and for scholarships.

5. The extension of UP research and technology especially those that provide livelihood opportunities to the IP community by utilizing its natural resources. For example, a UP Mindanao professor has made sago cultivation technology available to the tribe in Agusan del Sur by putting up a sago flour production facility.

This tribal community has a vast sago (lumbia) plants in the area which is not utilized.

6. U P revenue sharing with the indigenous peoples for the development of its landholdings if the area is a recipient of a Certificate of Ancestral Domain Title (CADT). This is applicable to UP Mindanao since the UP Mindanao Land Reservations in Marilog-Arakan and LaakVereula has a CADT awarded to the tribes.

Malayao: Ang karapatan sa sariling pagpapasya ng mga katutubong mamamayan ay naiuugat sa pagkakaroon ng karapatan sa lupang ninuno. Ito ay nangangahulugan ng karapatan sa pamamahala at pagpapaunlad ng lupain, paggamit at pagpapaunlad ng tradisyunal na sistema ng kabuhayan, pagpapasya kung anong pag-unlad ang susuungin ng komunidad batay sa kanilang kalagayan, pangangailangan at sustinableng relasyon sa kapaligiran, pagpapatuloy ng mga tradisyunal na sistemang pampulitika at pangdipensa sa lupa at komunidad, gayundin ang karapatan para sa pag-iral ng kultura.

Ang mga karapatang ito ay nagmula sa mahabang kasaysayan ng mga katutubong mamamayan sa pagdipensa ng kanilang lupa, komunidad, kabuhayan at kultura.

Sa kasalukuyan, ang kolektibong karapatang ito ay patuloy na ipinagkakait sa mga katutubo at nilalabag ng ating estado sa pamamagitan ng mga batas, polisiya, patakaran at mga programang “pangkaunlaran” na di kumikilala sa ganap na karapatan namin sa aming lupaing ninuno.

Maliban sa diskriminasyon sa kultura at kabuhayan, komersiyalisasyon ng kultura, pagkakasangkapan ng institusyon ng edukasyon at midya para sa ibayong diskriminasyon, at sa historikal na pagkakait ng mga batayang serbisyong panlipunan, ang pagpapatupad ng “development aggression” ang pangunahing kinakaharap ng aming mga komunidad.

Tampok dito ang malakihan, mapanira at mapandambong na pagmimina sa aming mga lupain at ng ating mga likas na yaman.

Sa pamamagitan ng patuloy na pag-iral ng Mining Act of 1995, mahigit isang milyong ektaryang lupain na ng ating bayan ang ipinagkaloob para sa iba’t ibang aplikasyon ng pagmimina, at halos 60 porsiyento ng mga lupaing ito ay teritoryo ng mga katutubo. Sa kabila ng mga “proyektong pangkaunlaran,” nananatiling naghihirap at nagugutom ang kalakhan ng aming mga komunidad, at sa pambansang antas maliit ang kontribusyon ng mga ito sa empleyo ng mga propesyunal at manggagawang Pilipino at maging sa gross domestic product (GDP) ng bansa. Dagdag pa dito ang iba’t ibang porma ng agresyon at militarisasyon ng mga komunidad upang matiyak ang pag-iral ng mga programa at proyektong ito na naging sanhi ng patuloy na pagdami ng bilang ng paglabag sa karapatang pantao ng mga katutubo.

Mula Hulyo 2010 hanggang sa

kasalukuyan, tatlo sa 15 na katutubong biktima ng pampulitikang pamamaslang ay pawang mga lider-katutubo na tuwirang lumalaban sa pagpasok ng mapandambong na pagmimina sa kanilang mga komunidad. Sa panahon ding ito, mahigit 4,700 pamilya naman ang sapilitang nilikas ang kanilang mga komunidad dahil sa malawakang militarisasyon, mga erya na tampok din sa interes ng mga korporasyon ng mina, dam at plantasyon.

Simple ang kahilingan ng mga katutubong mamamayan—tunay na kilalanin ang aming kolektibong karapatan sa lupang ninuno at sariling pagpapasya. Ngunit malaki ang halaga nito para sa aming mga komunidad at sa mga susunod pang salin-lahi.

Bilang isang kilalang institusyon, malaki ang maitutulong ng UP sa pakikibaka ng mga katutubong mamamayan para sa tunay na pagkilala sa aming kolektibong karapatan sa lupang ninuno at sarilingpagpapasya.

Pangunahin dito ang patuloy na pagpapalaganap ng kanilang kalagayan at pakikibaka sa mga iskolar ng bayan at sa mga mamamayan. Ito ay maaring sa pamamagitan ng mga maliitan hanggang malakihang mga talakayan, pagsasagawa ng mga seminar at palihan, o maging sa pakikiisa at pagbibigaykahulugan sa pandaigdigang araw ng mga katutubo at iba pang mga mahahalagang araw.

Ang kasanayan at talino ng mga mananaliksik at eksperto ay lubos ding kailangan para sa mga siyentipikong pag-aaral na magpapayaman sa buhay na karanasan ng mga komunidad, gayudin sa pagpapanukala ng mga wastong solusyon, hakbangin at teknolohiya na naaayon sa kalagayan at pangangailangan ng mga komunidad. Ang mga pagaaral at rekomendasyong ito ay makakatulong nang malaki sa ibayong pagpapalaganap ng kalagayan at paglaban ng mga komunidad kasabay ng pagkilala sa aming kolektibong karapatan, at sa pag-abot at pagkalap ng mas malawak na suporta mula sa lokal hanggang sa internasyunal na mga espasyo at maging sa larangang pang-administratibo at lehislatura tungo sa makabuluhang pagbabago.

Bilang premyadong institusyon, bawat hakbang, tindig at tinig ng UP ay pinakikinggan at pinahahalagahan.

Para sa aming mga katutubo, magiging makabuluhan at di-mapapantayan kung ang unibersidad ay papanig sa interes at aspirasyon ng mga katutubong mamamayan at ng bayan.

14

FORUM July-August 2012

O

n October 2, 2009, the Philippine National Police (PNP) deployed 165 policemen to the small barangay of Didipio in Kasibu, Nueva Vizcaya.

Didipio is a place where residents, old and new, live in harmony with land. Its original inhabitants, the Bugkalot, collectively conserve the forests where they used to hunt and gather food. Similarly, the Ifugao, Kalanguya and Ibaloi who followed them make good use of the area's considerable water resources. The pure streams coming down from its mountains into the Addalam River are used to irrigate harvests of rice, squash, beans and citrus.1 The police forces, many of whom brought highpowered firearms, did not come to keep the peace.

Instead, they were demolishing the last remaining household in the area in behalf of OceanaGold Corp.—an Australian mining company whose gold and copper project lies at the foot of what the company calls Dinkidi Hill ('Dinkidi' means “real Aussie” in Australia).

“They renamed the hill according to what they

released Resolution No. A2011-004, which found OceanaGold Philippines Inc. guilty of violating the property rights, right to freedom of movement, right to security of person, right to manifest the culture and identity, and right to water of the people of Didipio.

They also found the PNP guilty of violating its own operational procedures by using excessive force and high powered firearms—a deed the Resolution clearly states “was an overkill.”3 “In light of these findings, the Commission has resolved unanimously to take the following actions: Recommend to the government under the new administration to consider the probable withdrawal of the FTAA granted to the foreign company in view of the gross violations of human rights it has committed,”4 Rosales said in her report. According to rights groups, however, concrete action on these findings has yet to materialize.

“It (the Resolution) was released January of last year,” noted Arances. “Hanggang ngayon wala pa ring action” (until now there has not been any

in 1992 to pursue an aggressive policy to revitalize the sector.”5 Among its important provisions were the possibility for foreign companies to claim an area of up to 81,000 hectares onshore or 324,000 hectares offshore (Filipino companies are restricted to 8,000 hectares in one province), the possibility of repatriating all profits and investment while guaranteed against state expropriation, the cutting of excise duties to 2 percent with tax holidays and deferred payment allowed until costs are recovered, and government's commitment to remove all obstacles to mining and provide priority access to water within their concession.6 The real showcase provision of the Mining Act, however, is the Financial and/or Technical Assistance Agreement (FTAA) which gives foreign mining companies 100 percent ownership and control over mineral lands for up to 50 years.7 With these provisions, RA No. 7492 not only reasserted the state's ownership and rights over all mineral lands; Photo from http://lrcksk.org/sipa/

The Endless Loop

Mining, the State and the indigenous peoples of the Philippines

By Andre Encarnacion

perceived to be their ownership,” said Gerry Arances of the Legal Rights and Natural Resources Center, Inc. Kasama sa Kalikasan/Friends of the Earth-Phils.

(LRC-LsL.FoE-Phils.), who related the story. “They wanted to demolish the last household that hadn't sold their land to the mining company.”

Earlier that day, the house of the Didipio resident in question, Elmer Lawagan, was burned by unidentified men, some of them suspected security forces of OceanaGold. Lawagan himself was hit on the head by a plank of wood from behind.2 When residents of Didipio found out that the demolition team was coming to finish the job, they mobilized and formed a human barricade to prevent it from doing so, Arances says. Their violent dispersal with tear gas and water cannons was caught on video, which prompted a swift intervention by the Commission on Human Rights (CHR).

Investigation by the CHR that year found the PNP guilty of lapses in protocol. In 2011, the CHR

action).

Sadly, he says, situations like this have become the norm rather than the exception when largescale corporate mining and Philippine Indigenous Peoples (IPs) go head to head. In 2008 alone, almost 200 homes were demolished in Didipio by OceanaGold, while roads and pathways that for 30 years communities had relied upon to transport produce to the market were fenced off. And while many such violations are just recently surfacing, the issue has roots that are far older than many realize.

A Recipe for Disaster Many experts trace the liberal temper of the national government's policy on mining to Republic Act No. 7942, more infamously known as the Mining Act of 1995 on March 3 of that year.

Drafted by then senator Gloria Macapagal-Arroyo, RA No. 7942 has been called “the most significant (and contested) measure to encourage more foreign investment in mining since the government decided

it has also ironically opened itself up to challenges on its constitutionality, with opponents claiming that giving 100 percent ownership to foreign companies violates Article XII Sec. 2 of the 1987 Constitution, which states that: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.”8 Because of its other controversial features, the Mining Act has also inevitably found opponents from among the country's IPs and other sectors.

“Ayaw namin sa Mining Act of 1995 (we don't like the Mining Act of 1995),” says Jaybee Garganera, national coordinator of Alyansa Tigil Mina. “Basically in our assessment, the Mining Act was done to liberalize the mining industry... so that others can benefit from it.”

THE ENDLESS LOOP, p. 15

FORUM July-August 2012 15 THE ENDLESS LOOP, from p. 14 Garganera says that the motivation to profit “does not comply with our sustainable development goals, it does not recognize and respect IP rights, local autonomy, and it directly conflicts with preservation of our critical ecosystem: our forests, mangroves and critical watersheds.” And it is exactly on these natural resources that the indigenous people rely for survival.

RA No. 7942, in his assessment, is something that ultimately serves the industry more than the society as a whole.

“And that is our main question,” he adds.

“Because Philippine society is not just the industry or the economy. Philippine society also has indigenous peoples, our agriculture sector, etc.”

In fact, Garganera cannot imagine why such a small sector with such a great potential to debilitate other sectors of the economy is given so much importance. “It doesn't make sense,” he says. Mining in his estimation only contributes 1-1.5 percent of the country's gross domestic product (GDP) and employs about 0.5 percent of the population. He and other members of the Alyansa question the wisdom of this tiny sector compromising others like agriculture and tourism, which together he estimates comprise about 30 percent of GDP. “Yan ang ayaw namin (that is what we don't like).

It puts into policy and legitimizes the promotion of

For De Vera, introducing a large mining company with a very linear relationship and organizational structure into the mix is a recipe for disaster. “They are very time-bound and resource-oriented. By five months nakahukay tayo ng ganito, X number of trees na ang naputol. Wala kang relationship with the environment. (By five months, we must have dug to a certain depth, X number trees must have been cut.

You have no relationship with the environment.)”

“What is even worse is those companies are 100 percent foreign-owned as allowed by the Mining Act of 1995! Remember these companies go there to earn. They will not stay there, so they have no vested interest in what they're doing.”

“They have to leave at this period of time, tapos alis na (then they leave)—for maximum profit.”

Free, Prior and Informed By far the most important piece of legislation developed in the country to protect IPs rights from such excesses is Republic Act No. 8371 or the Indigenous Peoples Rights Act (IPRA).The concepts it introduced to the country's legal system have been called “radical”9 by former Chief Justice Reynato Puno, and is acknowledged by experts to contain “the most comprehensive policies and measures concerning indigenous peoples in Philippine legal history.”10

Photo from http://news.xinhuanet.com/english2010/photo/2011-09/13/c_131136406.htm

without certification that it does not overlap with any ancestral domain. And no certification shall be issued without the free, prior and informed consent of the IPs concerned.13 In De Vera's opinion, the process could not be clearer. “Free, meaning malaya, hindi diniktahan, hindi pinuwersa. Prior; meaning way ahead of time, not as an aside, with enough time for it to be discussed. Informed; meaning naintindihan, nadeliberate, intelligently, as best as they could.”

On the surface, the process seems beyond question. What laymen may see as an airtight protective mechanism, however, has been found inadequate by many communities. And in De Vera's experience, the strategies that mining companies use to maneuver around it can get downright nasty.

“Naka-tatlong revision ang FPIC process (the FPIC process had 3 revisions). In earlier times, you'd be surprised that the shortening of the process was actually supported by industry.”

He relates that it was the industry that funded the workshops to streamline the process, while complaining to then President Arroyo that the FPIC was “anti-business” and “anti-investment.” What they were really doing, on the other hand, was diluting its authority.

This is not the only way that the industry circumvents the FPIC. De Vera reveals that the strategy begins years before the process is even entered. From shouldering all the expenses of the FPIC process; to sponsoring fiestas, medical missions and concerts in barangays expected to undergo the deliberation process; to procuring fake elders that ostensibly provide their assent; many companies, will stop at nothing to unduly influence an FPIC decision.

“In some instances it's even worse. Even before a company applies—three, four, five years before—they will start investing. And by the time they apply, they have already become part of the fabric of the community. All major phases of community life will be dependent on them.”

“How can this community now say no? They are already entangled.” The persistence of mining companies when combined with their financial might traps communities in what De Vera calls the 'endless loop'. Facing such enormous and relentless pressure, many communities eventually get exhausted and capitulate.

What does it gain the nation?

this economic sector that permanently disturbs the physical condition of the land; and it has very little contribution to the economy in terms of employment, investments and revenues.”

For Dave De Vera, executive director of the Philippine Association for Intercultural Development (PAFID), the conflict with indigenous people is more fundamental. Apart from incentives like easement rights, timber rights, and right of way, which are used to destroy ecosystems, it is the introduction of an alien value system that is the source of a greater conflict.

“It creates a whole new governance and value system that you superimpose on an area where an indigenous community has traditionally exercised governance,” says De Vera. The relationship that indigenous people have with the land is defined by stewardship and a oneness with nature. “A community actually develops a personal relationship with its ecosystem... their governance mechanism: it's not even implied, not even written; but by the simplicity of their lives, by their demands on their resources, nagkakaroon sila ng (they develop an) intimate relationship." In fact, these systems of governance and culture, developed for thousands of years, have a tangible effect on the state of the environment itself.

Section 2(b) of the IPRA decrees that the State shall protect the rights of ICCs/IPs on their ancestral domains to ensure their economic, social and cultural well-being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.11 Its definition of the indigenous concept of ownership sustains the view that ancestral domains and the resources therein serve as material bases of their cultural integrity.

Thus under the IPRA, ancestral lands or domains encompass not only the physical environment, but the whole environment, including the spiritual and cultural bonds IPs have to the area.12 Certificates of Ancestral Domain Title or 'CADTs' are given as formal recognition of their rights by native title. It also created the National Commission on Indigenous People or NCIP as an independent agency which implements policies and programs to protect IPs rights and recognize their ancestral domains.

The biggest safeguard against mining in the IPRA of all, however, is the process of obtaining 'Free Prior and Informed Consent' or FPIC. Section 59 states that no department or governmental agency may issue, renew, or grant any concession, license or lease, or enter into a production-sharing agreement

One of the most controversial examples of what many claim to be a flawed FPIC process is the Mindoro Nickel Project or MNP by Intex Resources (formerly MINDEX Resources Development Inc.), a Norwegian company. The project lies in a concession in Sablayan, Occidental Mindoro, and is bounded proximately to the municipality of Victoria, Oriental Mindoro. It is expected to produce 40,000 tons of nickel and 3,000 tons of cobalt per year for at least 30 years.14 Local officials, nongovernment organizations (NGOs), religious leaders, residents and indigenous people alike expressed stiff opposition to the mine.

In a study done by environmental scientists Robert Goodland and Clive Wicks, the mining concession covers the Mag-asawang Tubig watershed—the largest source of irrigation water for 40,000 hectares of collective rice lands in the Calapan area. If it pushes through, MNP is also expected to produce 130,000 metric tons of ammonium sulfate, and will dispose “four million tons of waste annually through a forty-three kilometer pipeline going to the productive fishing ground of the Tablas Strait.”15 Though the Mining Act already prohibits mining in declared watersheds, what is worse, according to the authors, is that the proposed mining area sits at the heart of a once-proposed Mangyan Heritage park.

Three of the eight Mangyan tribes on the island: the Alangan. Tadyawan and Bangon, will be affected directly by the MNP. United States Engineering Corporation Dames and Moore reported that several THE ENDLESS LOOP, p. 16

16

FORUM July-August 2012

THE ENDLESS LOOP, from p. 15 Mangyan sacred sites will be affected or destroyed.

As the Mangyan culture is deeply tied to their land, there is no doubt that the mining project will drastically impact their lives.

Even Norwegian Ambassador Ståle T. Risa noted “the massive local resistance, not least the resistance in the Mangyan people's NCIP-registered organizations.”16 According to the authors, the resulting FPIC process was questionable, to say the least.

“In the late 1990s,” Wicks and Goodland say, “an unrepresentative Indigenous Peoples' group, Kabilogan, was created by (Intex) employee, Salomé Yedel, and it granted Free and Prior Informed Consent (FPIC), to the project although its validity had been questioned. The group gave this consent in clear breach of the law.” Yedel would later set up another organization called the Sadaki, which also gave its approval.17 In the book Mindoro Campaign: Protecting Island Ecology, Protecting People's Rights, the authors state unequivocally that both organizations were “organized by the company, in cahoots with the NCIP” and represent only “the minority of stakeholders.”18 Furthermore, a statement from the Norwegian National Contact Point (NCP) for the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Companies in

and social grounds. “The (MNP) is one case where sustainability is bound to fail,” Alvarez said. “... what does it gain the nation to be short-sighted and merely think of money, when an irreparable damage to the environment will cost human lives, health and livelihood capacity of our farmers and fisherfolks endangering the food security of our people.”20 This was swiftly followed by an ordinance from the Provincial Council of Oriental Mindoro explicitly banning all mining in the island for 25 years.

In 2004, however, the Office of the President revoked the Notice of Termination/Cancellation it had given three years before. Later, then secretary Joselito Atienza approved the Environment Clearance Certificate (ECC) of Intex Resources, “giving them the green light to operate their mining concession.”

Though it was temporarily revoked a year later after a hunger strike by volunteers, a January 2012 report saw Intex partnering with a unit of China's Jinchuan Group to build the country's first refined nickel processing plant in Mindoro.21

response to criticisms found that the two associations “do not fulfill the definition of Indigenous Peoples in the IPRA.” Neither of them has constituted homogenous societies with claims to the land “since time immemorial.” Instead, Kabilogan was found to be formed as recently as 1998, composed of members of four different tribes. Sadaki, an offshoot of the former, had a similar composition. Though they found no evidence that Intex itself created them, there was no evidence either that Kabilogan and Sadaki were chosen as representatives of the affected groups through their own decision-making process, or that all concerned IPs allowed them to negotiate on their behalf.

“It would be contrary to the intentions of instruments designed to protect indigenous peoples or tribes to allow a fraction of the group, without individually-based property rights, to enter into agreements affecting the tribe without consulting the tribe in its entirety,”19 the report said.

These and other controversies only fueled the opposition of local communities to the mine. In 2001, the DENR under then secretary Heherson Alvarez revoked the concession on environmental

Intex Resources, in a statement, hailed the EO as a positive development. “We are encouraged that the President has issued a clear statement, which will guide the mining industry towards a brighter future to (for) the benefit of the people and local communities, while taking responsible consideration to (of) the preservation of nature and other cultural activities in this mineral-rich country,”23 it said.

Others however, were not so pleased.

“The happiest sector is the mining industry,” De Vera said. “It's an industry EO. It does not in any way support the ndigenous people.”

De Vera critiqued several of the sections found in the EO, such as the proposed creation of the Mining Industry Coordinating Council (MICC) composed of the NCIP chairperson, the Climate Change Adaptation and Mitigation and the Economic Development Cabinet clusters, the president of the Union of Local Authorities in the Philippines (ULAP) and the secretary of the Department of Justice (DOJ).

The Council's duty according to De Vera is to solve cases of overlapping claims. “We all know that the NCIP is not even a subcabinet position. It is a

“Towards a brighter future” The passage of Executive Order (EO) No. 79 on the July 6 this year was hotly anticipated by both the mining industry and its critics. It garnered positive reaction from the f Department of Trade and Industry (DTI) Secretary Gregory Domingo, who said: “(w)ith this policy, investors can decide with their full knowledge.”22

Photo from http://www.preda.org/en/news/human-rights/obstacles-concerning-access-to-justice-and-protection-for-indigenous-people/

bureaucracy whose funding has not increased in the past 12-15 years. It has very little capacity and no political clout. How will it function in this MICC? It will be eaten alive.”

He also critiques the closing off of all national parks to mining. “National parks, if you would base it from RA No. 7586, are only those enacted by law.” Many national parks applied for this status, but did not attain legislative enactment. “Let's not get excited,” he says, as the only national parks included will be the ones enacted by congress. “All those not yet enacted are fair game.”

Another important issue is the fact that it is silent about mining contracts already operating in prohibited areas. “They say that among the no-go zones are Palawan and other island ecosystems. But the Philippines is practically an island ecosystem, and Palawan has been a national park since 1992!”

“The biggest nickel mines in the Philippines, believe it or not, are in island ecosystems,” De Vera adds. “Semirara, island yan, Rio Tuba Nickel Asia, sa Palawan yan, and all of the mines in Dinagat island.

Hihintayin na lang ba nilang lumubog yung island?

(Will they just wait for the island to sink?)”

The EO also says nothing about Key Biodiversity Areas (KBAs). De Vera finds it “disgusting” because the government went through a process of identifying the last bastions of biodiversity in the country. “We shouted to the whole world that we will do everything within our capacities to protect them because it is our contribution to keeping this world from tipping over.” This omission is even more disturbing for De Vera because of the presence of IPs in these biodiversity areas, who protect them to this day.

Garganera, on the other hand, concedes that the new EO does include progressive reforms.

Expanding the scope of no-go zones, calling for greater transparency, and proposing a review of mining contracts is in his opinion, an improvement.

“We give credit. There are good sections here.”

These gains however are not enough for him to overshadow the negatives. Primarily, he finds President Aquino's new EO to be sorely unresponsive. “In the same section of the EO, it says that the application of no-go zones is prospective.”

This means that no-go zones will not cover existing contracts, permits and agreements.

“That is inadequate for us because you offer something progressive, something positive, and yet it was a conditional reform.” In his assessment, there are 20-24 problematic sites throughout the country—and none of them will be covered by the EO. Garganera adds that despite several studies, resolutions, and recommendations on mining by bodies like the NCIP and the CHR which demand exhaustive individual attention, the “conditional nuancing and contradictory provisions within (the) EO” means that they are beyond its scope. “It's misleading because it gives you a false sense of security.”

More importantly, Gerry Arances adds, it ignored the plight of mining affected communities. “It did not release a mechanism to address human rights violations.” Apart from extrajudicial killings and enforced disappearances, Arances notes that the violations of countless indigenous people's rights, many of which are well-documented, are ignored

by EO No. 79.

Catch-22 “We have gone beyond the anti-mining and pro-mining debate,” Arances clarifies. “We are not against mining per sé. “We think that mineral resources play a key role; and extracting them, utilizing them, and developing them (are important to national) development.”

“What we need is a minerals management that is rational, needs-based, domestic-oriented, and rightsbased—the opposite of the Mining Act of 1995.”

A solution, he believes, may be found in what they call the Alternative Minerals Management Bill (HB 6342). It is a consolidation of three bills (HB 206, 3763, 4315) with the aim of replacing the THE ENDLESS LOOP, p. 17

FORUM July-August 2012 17

A Collision of Worlds With the introduction of the IPRA, the question of who really owns the land and its resources—the very discourse which undercuts the mining debate— has become a conflict of two distinct paradigms.

What is scarier for De Vera is that the justices who supported the IPRA viewed that the rights granted to the indigenous people over the land did not diminish state ownership of them. The state, therefore, and not the community retained true ownership. As retired Justice Santiago Kapunan stated in his notes: “The state retains full control over the exploration, development, and utilization of

natural resources even with the grant of said rights to the (IPs) through the imposition of requirements and conditions for the utilization of natural resources under existing laws, such as the Small-Scale Mining Act of 1991 and the Philippine Mining Act of 1995. Moreover, the rights granted to indigenous peoples for the utilization of natural resources within their ancestral domains merely amplify what has been granted to them under the aforesaid laws.”28 “It's a collision of two worlds,” says De Vera of the contradiction. “One world governed by the Regalian doctrine, and one world governed by traditional governance. The resulting impact of this is IPRA. Our country, our government and our land use are all tied to the regalian doctrine. (IPRA) is the best we can come up with given the limitations of two paradigms that can never be one.”

What then is the recourse for IPs at a time when both the IPRA and their communities continue to be besieged and undermined?

De Vera believes that it is not in the laws, but in communities themselves that the greatest hope of IPs lies. “First, information dissemination (on the IPRA) is very important. Few people actually understand it.

Second, don't put your eggs in one basket. The IPRA is there, take what you think is useful. But don't even

004 (2011).

3 Ibid.

4 Ibid.

5 Goodland, R. & Wicks C. (2008). Philippines: Mining or Food? London, UK: Working Group on Mining in the Philippines.

6 Republic Act No. 7942: An Act Instituting a New System of Mineral Resources Exploration, Development, Utilization, and Conservation.

7 Ibid.

8 Phil. Const. art XII, sec. 2 9 Cruz vs. DENR (2000) (separate opinion), Retrieved from http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385.htm 10 Dalupan, M.C. (2000). A Discussion Paper on the Mining Industry and Indigenous Rights Act. Sustainable Development Strategies Group. Retrieved from http://www.sdsg.org/wp-content/uploads/2010/02/ IPRA_Cdalupan_2000.pdf 11 Republic Act, No. 8371: An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous People Creating a National Commission of Indigenous People, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and Other Purposes 12 Ibid 13 Ibid.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

18 Alyansa Laban sa Mina, Alyansa Tigil Mina, National Secretariat for Social Action. (2012). Mindoro

start to think that it will solve all problems.”

According to De Vera, it is not the IPRA alone that safeguards indigenous people against mining, but the strength of a community united towards a common goal. “The IPRA is just an add-on, he says.

A weak and divided community will fail, even with laws and processes to protect them.

“Experience shows that it is the communities that are well organized and strong that will prevail.

The communities who (that) did not bother entering into the FPIC, they are the ones who were able to stop mining.”

“They just said no,” he says of the communities who have successfully resisted these incursions.

“They'll participate (in the process) but they will say on record that 'we don't believe in this process.' Tapos ka (that's it). You can't tie them to the endless loop.”

-------------------Email the author at forum@up.edu.ph.

Campaign: Protecting Island Ecology, Defending People’s Rights. Metro Manila.

19 Ibid.

20 Ibid.

21 Lucas, D.L. (2012, January 13). Intex, Chinese partner to build Philippines’ first nickel plant. Philippine Daily Inquirer. Retrieved from http://business. inquirer.net/39545/intex-chinese-partner-to-buildphilippines%E2%80%99-first-nickel-plant 22 PNoy’s new EO 79 on mining garners positive reasction. (2012, July 10). GMA News Online.

Retrieved from http://www.gmanetwork.com/news/ story/264843/economy/agricultureandmining/ pnoys-eo-79-on-mining-garners-positive-reaction 23 Intex Resources ASA: New Executive Order clears the air for Philippine Mining Industry. (2012, July 12).

The Philippine Mining Luncheon. Retrieved from http://philippineminingclub.com/news/july-13thintex-resources-asa-new-executive-order-clearsthe-air-for-philippine-mining-industry-july-13thmining-order-welcomed-but-moratorium-a-worry-j/ 24 Tañada III, L.R. (2011, August 24). Introduction to House Bill 206 [speech presented at the House of Representatives, Committee on Natural Resources] 25 Primer on Alternative Minerals Management Bill. Metro Manila, Philippines: SOS-Yamang Bayan Network 26 Ibid.

27 Cruz vs. DENR (2000). Retrieved from http://sc.judiciary. gov.ph/jurisprudence/2000/dec2000/135385.htm 28 Cruz vs. DENR (2000) (separate opinion), Retrieved from http://sc.judiciary.gov.ph/jurisprudence/2000/ dec2000/135385_kapunan.htm

Photo from http://www.katutuboproject.org/2012/02/the-tigwahanon-manobo/

THE ENDLESS LOOP, from p. 16 Mining Act of 1995 with what its supporters call a more sustainable and equitable method of utilizing mineral resources.

“The question that should be asked... is: 'How do we mine correctly?'” says Deputy Speaker Lorenzo R. Tañada, III in his introduction to HB 206. “Any industry that a government participates in should not pit revenues against people, money against the good of everything and everyone else.”24 The Bill is based on the Dapitan Initiative of 2002, a conference whose advocates committed themselves to “upholding indigenous peoples rights and achieving a more ecologically sound, gender-fair, equitable system of resource management.”25 The House Bill hopes to utilize mineral resources for local industries, prohibit FTAAs and other agreements granting foreign companies full access and ownership, and emphasize respect for indigenous people's ownership of resources within their ancestral domains and their traditional consent processes, among other things.26 But even as the debate for a more equitable mining law rages on, the equally vital discussion on the future of the IPRA—an Act that initially gave hope to so many besieged communities—is one where experts tread cautiously. For De Vera, the question of whether to add more policies to augment it or to replace it altogether is ultimately a Catch-22.

This dilemma stems from the controversial nature of IPRA itself, and how its noble intent to unite two worlds almost led to its demise.

“IPRA is a compromise law,” says De Vera.

“It's the best we could come up with. In fact those who opposed it up to the very last minute were kicking and screaming saying 'we don't want it.'" He adds that there are only two ways one can touch the IPRA: legislatively and by judicial review. And that it already underwent the latter in 2000.

“IPRA, by the way, is neither legal nor illegal,” he says. De Vera is referring of course to the result of G.R. No. 135385, also known as Isagani Cruz vs. DENR. Cruz, a noted law expert, questioned the constitutionality of several IPRA provisions, which cover IP's ancestral domains and their ownership of all lands, waters, and mineral resources therein.

This ownership, according to Cruz, was a violation of the regalian doctrine embodied in Sec. 2, Article XII of the Constitution— ironically the same doctrine supposedly violated by the Mining Act of 1995.27 “He said it was class legislation,” De Vera says. “And technically he has a point, because he said we're all Filipinos here, why create a parallel law that guarantees additional rights (for some)?”

After two deliberations, the Supreme Court found itself deadlocked at 7-7 both times. The lack of a majority vote meant that the petition was dismissed and the IPRA sustained. This close brush with disaster, however, has led many like De Vera to be very careful about entering such a process again.

“Paano kung nag-iba ang ihip ng hangin, at ma-break ang 7-7 tie? Tepok ang IPRA. Nakakatakot pasukin ulit ang judicial review. (What if the winds change, and the 7-7 tie is broken? The IPRA is finished.

It is daunting to enter into a judicial review again.)”

NOTES:

1 More Information for Philippines: Defend Indigenous Lands. Cultural Survival. (2009, November). Cultural Survival. Retrieved from http://www.culturalsurvival. org/take-action/philippines-defend-indigenous-lands/ more-information-philippines-defend-indigenouslands 2 In Re: Displacement Complaints of Residents of Didipio, Kasibu, Nueva Vizcaya. Resolution CHR (IV) A2011-

18

FORUM July-August 2012

THE ROAD AHEAD, from p. 3 conditions in IP-occupied territories factor greatly in the failure to secure the IP’s full and informed consent or full control over their own territories, particularly since the areas where the IPs live are some of the country’s least developed. As Rovillos said, between a mining company and an indigenous community in a remote, natural resource-rich area, it is easy to see which would benefit most from any land-titling and ownership system. “But [the indigenous communities] are not aware of this, especially those in areas with very low literacy rates,” said Rovillos. “Of course, what they want is to get their immediate needs met. They need food, water, townto-market roads.” All of these would be promised them. This would make them more amenable to giving the company their consent, especially if critical information such as the company’s actual projected income Jo Ann Guillao (left) and Marissa Cabato (right) of Tebtebba from the project is withheld by the company and the NCIP. “They [the IPs] don’t realize how much they’re giving up in the long run,” Rovillos said, relating how in one case the of intelligentsia—is enough to create a critical members of the community were content with just mass, then I think [the IPs] can use the law to favor receiving one cellphone apiece from a company in themselves,” said Rovillos. “But if the literacy rate exchange for the right to build telecommunications is low—and you find this mostly in Mindanao—the infrastructure on their land. “In many cases, the IPs IPs can be easily manipulated to the detriment of give their consent but in the long-run they are short- their interests.” changed because one, the information they are given PRIME, MLE and SLTs is limited and two, even if the company promises a When it comes to affirmative actions that would lot, most of them do not implement their promises, build up the capacity of the IPs to assert their rights, and the IPs do not have a grievance mechanism for education is always the best bet. “It’s easy to say, this.”

‘The IPs should participate,’ but it is inherent in a Time warp democratic system that those who can participate “It’s like we are trapped in a time warp,” said are those who can articulate the language of the Pawid about the IP's situation. “The Spaniards came, mainstream, which is Filipino or English or any of and we refused to be baptized. The Americans came, the major languages. So education plays a big role and we did not go to school. So we got left behind. in strengthening the IPs’ capacity to participate in We cannot be part of the majority, because we don’t national life” said Rovillos. know anything. Even our own government has left However, the old biases, misconceptions and us behind. There we are in the farthest corners of the romanticized notions about the IPs have persisted country, and that is why we are left behind in terms in the educational curriculum of most schools. of social services and infrastructure.”

According to Rovillos, in a graduate study done in Then the mining company shows up, dangling UP Baguio analyzing high school textbooks, it was promises of development along with their flashy found that information in these textbooks generally PowerPoint presentations. And with the mining discriminated against IPs. This reinforces the company come the roads, the schools and the markets. historical mistakes and persistent marginalization Suddenly, the IPs discover cars, condominiums and of the IPs by mainstream society. “The information malls, iPads, Crocs and Louis Vuitton bags—all the about IPs that gets passed on is not based on the trappings of success adored by the rest of the world. perspective of the IPs; it’s [based on] the mainstream All this, for the price of their land. “Santa Claus and perspective of who they are, where they are and what Jesus Christ have suddenly arrived. That’s how we they are. This is why there is a trend now to integrate [IPs] see it,” Pawid said. “It’s quid pro quo. ‘You’ll the IPs into the educational system of the country,” give me things I never had, and I’ll give you the said Cabato. gold in my land.’ But that’s not how it should be. It Hence, for Pawid, the NCIP’s second biggest should be, ‘The gold is mine. If you want to develop program, aside from the titling of ancestral domains it, then let’s enter into a partnership. Do not look at and territories and defending the IPRA against me as a beneficiary.’” legal attacks, is its education program. The NCIP Even the issue of the tribal “dealers” may not be has partnered with the Department of Education so cut-and-dried. A tribal leader who worries about (DepEd) and the Australian Agency for International what to feed his family is suddenly approached by Development (AusAID) in launching the Philippines’ the mining company offering him ten cabans of rice, Response to Indigenous Peoples’ and Muslim enough to feed the entire tribe. All in exchange for Education (PRIME) in July 2011, aimed at improving his “consent”. As both Rovillos and Pawid point out, access to quality education and better learning IPs are rational people who make rational choices; outcomes for children in poor IP and Muslim there is simply no way to judge a choice made under communities in nine regions of the Philippines that those circumstances. have the lowest educational indicators.15 “The NCIP Hence, if the power of the IPRA is to work at helps in interfacing indigenous knowledge into the all for the IPs, and if the IPs and the mining industry curriculum,” said Pawid. can ever hope to reconcile their interests, then the IPs The DepEd’s K to 12 Basic Education Program, must be educated about their rights and empowered with its Mother Tongue-Based Multilingual Education enough to work for these rights and to use the (MLE) component wherein the mother tongue will be law for their benefit. “If the human capital—the the medium of instruction from kindergarten to grade literacy rate, number of middle class and number 3, is also a perfect vehicle for improving the quality

of education for and the academic performance of IP children.16 Rovillos calls the MLE a step in the right direction. “[When] you privilege the mother tongue, you privilege the culture at the same time.”

The indigenous people and IP organizations themselves have made significant inroads with regard to privileging IP culture in education and, just as importantly, ensuring that the indigenous knowledge and practices will be transmitted to the next generations. This is done through Schools of Living Traditions (SLTs), defined in the SLT guidelines of the National Commission for Culture and the Arts as a school where “a living master/culture bearer or culture specialist imparts to a group of young people from the same ethno-linguistic community the skills and techniques of doing a traditional art or craft.”17 In SLTs, students are taught the skills, knowledge and techniques of their culture following the curriculum set by the community, using a system native to that culture and most easily understood by the students. At an SLT, the subjects can range from natural resource management, sustainable livelihood, traditional arts and crafts and so on, often integrated with the mainstream curriculum. Cabato gives as examples the Kalahan Academy founded by the Kalahan Educational Foundation in Imugan, Nueva Vizcaya, and the schools for Lumad children run by SILDAP (Silingang Dapit sa Sidlakang Mindanao) Southeastern Mindanao, Inc., Tebtebba’s partnerorganization at the grassroots level in Davao.

As Paluga said, “Strengthening the non-Lumad support for Lumad areas, [through] Lumad schools for example, is one important dimension in the political strengthening of the Lumads, which should hopefully pave the way for the self-determined Lumads themselves to engage with state laws and dynamics.”

The IPs and the academe Much can be done to promote and preserve indigenous knowledge, languages, culture, practices and traditions at the tertiary level as well. UP Baguio, for example, offers elective courses in indigenous languages such as Ibaloi and Kankanaey, and enrolment has been brisk. The university hopes to be able to expand this in the near future, and perhaps make it a required course for language majors.

Rovillos believes that the same can be done in UP Mindanao for the local languages there. “We can only pay lip service to cultural diversity if we don’t try to understand the various languages.”

Universities must also provide a space to allow THE ROAD AHEAD, p. 19

FORUM July-August 2012 19 THE ROAD AHEAD, from p. 18 the indigenous peoples to tell their stories and speak about their culture. “The university should open its doors to indigenous knowledge systems and articulations of these,” said Rovillos. “In other words, it will also require a major paradigm shift on the part of academic people, to privilege the knowledge that’s out there among the IPs.” One example of university-initiated activities is providing a space for the IPs in conferences and gatherings such as the KAPWA-3 international conference cum symposium last June 25 to July 1, which was co-organized by the Heritage and Arts Academies of the Philippines Inc. (HAPI Foundation) and UP Baguio, among others. Conferences like this allow IP intellectuals and resource persons to dialogue with members of the academe, allowing for a mutual interrogation and interchange between the two.

Besides its teaching function, the university can also do much to capture and preserve indigenous knowledge and culture through research. There is a critical need for this, considering that the IPs

themselves have been evolving and adapting to external realities through the years, and much of the knowledge and traditions of the past are giving way to modern notions. “There’s so much to know about indigenous knowledge and practices, indigenous ways of knowing, [particularly in the areas of] health, resource management, sustainable forest management, and so on,” Rovillos said. Even in the field of disaster risk reduction and management, the rest of the country has much to learn from the indigenous folk, as shown during a recent forum on disaster risk management where it was found that the IPs have long ago developed effective ways of coping with disasters—ways that are slowly fading due to the predominance of Western influences.

The exploration and preservation of IP knowledge and practices also help in the transmission of identity and culture to the next generation of IPs. “There is much work to be done in the aspect of doing Lumad ethnography in its multifaceted sense,” said Paluga. “Many Lumad villages, especially those in barely accessibly areas, have very important epics,

The NGOs, IPOs and Society Helping hands Discourse on the indigenous peoples’ struggle to assert their rights and engage the State will inevitably touch on the significant role that NGOs and indigenous peoples’ organizations (IPOs) play in empowering the IPs. According to Rovillos, NGOs and IPOs have the time and resources to commit to supporting the indigenous communities.

However, NGOs and IPOs are not a monolithic block but a diverse group of organizations, each with its own focus, priorities and interests, as diverse as the indigenous peoples they support, and in the process, “the IPs can also get lost in translation,” said Rovillos. “Sometimes, as mediators of knowledge and information, [the NGOs and IPOs] can wittingly or unwittingly, consciously or unconsciously, select what kind of information they will pass on to the IPs or, on the other hand, how much information from the communities they are able to articulate with the wider community.” Thus, NGOs oriented toward the environment would speak of the IPs as caretakers of nature at the expense of all the other aspects of the IP’s identity. The unintended tunnel vision can also affect groups advocating organic agriculture or labor or gender equality. And sometimes, like the academe, the NGOs and IPOs can also contribute to the fragmentation of knowledge, inadvertently

imposing their own non-indigenous framework upon the IPs. For her part, Pawid urged the NGOs and IPOs to find a common ground or unified stance. “We have NGOs coming from the left, right and center. From the IPs, we have tribal leaders and so on. Then the funders come in, each with their own hidden agenda.

Can we at least agree on what we want to do for the IPs?” There are also cases in which the NGOs and IPOs become the ones who speak for the IPs, especially in the claiming of titles. Pawid attributes this partly to a lack of confidence on the part of the IPs to understand and be understood, especially since the NGOs and IPOs are better able to articulate their points in the language of the majority. “NGOs and IPOs may also be guilty of wittingly or unwittingly creating centers of power, so they need to be self-conscious, to assess themselves and interrogate what they bring into the mind-set of the indigenous communities that they proclaim to serve, especially in terms of power relations,” said Rovillos. There are even cases wherein the NGOs and IPOs themselves become patronizing toward the communities, deigning to grant requests by virtue of being the one with the resources. “So what makes them different from the government and other institutions that have

knowledge systems, practices that need quality documentation as these are also of interest to those new-generation Lumads living in the margins of their ancestral domains, and so are more prone to accumulative effects of non-Lumad settlers, as they try to acquaint themselves with their grandparents’ ways of life. The Lumad schools, now functioning as new modes of cultural transmission, need these documentations as core part of their libraries, and academicians have much to contribute in strengthening this formalized knowledge base.”

In short, what is needed is “research and dissemination of the knowledge, propagation of the knowledge, because if we do not have an alternative view as to what is good, these different ways of knowing, only the hegemonic discourse of what is development—the Western, capitalist, commercial and consumerist ways of knowing—will dominate.”

Given the growing realization of the general failure of Western epistemology around the world—a paradigm that has contributed to the global environmental crisis, climate change and the financial recession—society will soon turn to these alternative, indigenous ways of knowing, which the universities as repositories of knowledge must help keep alive. marginalized the indigenous communities?”

Keeping the faith

Photo from http://bulatlat.com/main/2011/08/12/indigenous-peoples%E2%80%99-groups-decry-use-of-ipra-and-ncipfor-development-aggression/

Things are slightly different from the point of view of an NGO. Tebtebba, established in 1996, an IPO borne out of the need for heightened policy advocacy for the protection of IP rights around the world, works on all levels—from the global in cooperation with the UN and other international IPOs; to the national through policy work, advocacy, networking and research; and to the local through partnerships with grassroots-level IPOs such as the SILDAP and the Sagada-based Montañosa Research and Development Center. According to Cabato and Guillao, one of Tebtebba’s ongoing endeavors is the promotion and strengthening of traditional knowledge and its practice. The IPs are able to balance between sustainable natural resource management practices and traditional livelihoods, e.g. blacksmithing, which Tebtebba aims to revive as an example of “green” economies. Tebtebba is also promoting IP education and IP natural resource management in answer to the issue of climate change, adopting the IPs’ concepts of “sacred sites” and an attitude of stewardship and not ownership over the land and the coastal regions.

In the area of food security, Tebtebba is promoting the traditional foods of the IPs, such as camote, which is a nutritious, easily available and a much more sustainable alternative to, say, potatoes. Guillao adds that the use of language as the vehicle for the transmission of knowledge and culture is also a significant area for advocacy for Tebtebba.

For Tebtebba, it is essential that their advocacy and policy work be backed up by research. “We put premium on research, which is why we have a lot of publications, and the research we are advocating is from an IP perspective, not from the perspective of one who is not from the area,” said Cabato. “[It is] a paradigm shift on research. We call it ‘the decolonization of research.’ The IPs write their own stories, do their own research, and in the process, they input [their own] perspective on the IPs. The research puts the face on our advocacy at all levels.”

As to the challenges an NGO like Tebtebba faces, “of course, one is how to sustain what we have started,” says Guillao. “Tebtebba is over 15 years old, so continuous engagement is a challenge, [especially] since we engage at different levels with different strategies.”

At the local or grassroots level, there is the challenge of sustaining the IP leaders Tebtebba has trained, as well as training and developing the next generation of IP leaders. For now, Tebtebba is looking into encouraging the participation of indigenous youth at the local level. “If you look at THE ROAD AHEAD, p. 20

20

FORUM July-August 2012

THE ROAD AHEAD, from p. 19 the people who are involved in this movement, you can see that we really need fresh faces. We need to maximize the involvement of the youth,” as well as the participation of the women IPs. At the national level, there is the perpetual challenge of having to deal with and engage the government and its different agencies and institutions, not just the NCIP. “How will we make the engagement with the government smoother?” said Guillao. “This issue always comes up, but one of our best practices is seeking the help of and trying to influence government leaders who are supportive of the IPs and of the IPs’ cause. We tap champions of the IPs, not necessarily the NCIP.” Finally, at the international level, the challenge is how to harmonize the divergent issues, positions, interests and points of view of the millions of IPs in the world. “What we do is, we partner with supportive and like-minded international organizations and organize caucuses so that we can maximize the space.” No matter what is generated during these international caucuses, Tebtebba is careful to keep the three aspects of education, awareness-raising and capacity-building in the center of its efforts.

Getting to know each other However, education, awareness-raising and capacity-building cut both ways. Just as the indigenous people must be empowered to assert their rights and their children taught the ways, traditions and knowledge of their people, so must the majority of Filipinos, the so-called non-IPs, also be educated about the IPs and their socio-cultural, historical and political realities. This begins with the realization that the IPs are much, much more than mere victims of socio-political oppression and historical marginalization, collateral in economic development, and unchanging icons of an idealized past. The IPs are much more than the “other.” The IPs are, in fact, one of us, fully deserving of equal consideration, understanding and respect.

“There is this misconception that the IPs are undeveloped, system-less and static, when in fact they are dynamic. They respond to change, they respond to issues,” said Guillao. To this, Cabato adds: “Actually, we don’t see the IP sector as separate and distinct from the population. It’s not. We’re also part of the whole ecosystem, we are an ecosystem integrated within a bigger ecosystem. As much as possible, we look at the IP sector as a component of a bigger world.”

In the interactions between them, there is much the non-IP majority can learn from the IPs, and this the IPs are beginning to appreciate—the fact that they are more than victims, but resource-bearers. “The historical patterns of majority/minority relations in our developing society give us alternative pathways in constructing communities,” said Paluga. “By not generalizing ‘the Lumad experience’ too much—so unpacking the variations of Lumad responses to the challenges of modernity—we could learn much from these alternate, even if yet unfinished, social/ community formations.”

For Pawid, the IPs and the IPRA offer the country a glimpse into the past. More than that, the IPs and the IPRA give the Filipino people the choice between viewing Philippine social reality in drab shades of gray, or as a complex tapestry of diverse cultures, as varied and colorful as a rainbow. “All we [the IPs] are asking for is, could the rest of you please give us a chance to catch up? And help us, because you cannot afford to lose what it is we stand to lose.

We’re trying very hard, but being minorities, we also have to be sure that the majority understands us. And we cannot disregard the majority. Much of what we are is being shaped by the majority. We’re here to understand where our government is going. But it will take us much longer to understand.”

Finally, while Rovillos expressed ambivalence about the future of the IPs of the Philippines for as long as the government continues its neoliberal track and sacrifices the IPs on the altar of economic

development, he also allowed that things may change for the better. “If the countervailing force— the increased awareness and assertion of the rights of the IPs and increased advocacies of institutions such as universities, the Church, civil society and IPOs—continue to rise and unite to counterbalance the negative practices, then I think the indigenous people will have a good future ahead of them.”

-------------------Email the author at forum@up.edu.ph.

NOTES:

1 "State of the world's Indigenous Peoples." (2009.) United Nations Department of Economic and Social Affairs.

Retrieved from http://www.un.org/esa/socdev/unpfii/ documents/SOWIP_web.pdf 2 Howard, C.J. (2010, August 15.) "Indigenous Peoples voice agenda to P.Noy." ABS-CBNnews.com.

Retrieved from http://www.abs-cbnnews.com/depth/08/15/10/indigenous-peoples-voice-agendapnoy. Read the complete text of the Indigenous Peoples' Agenda at http://www.cpaphils.org/ campaigns/FINALAugust9IPresolution%202.pdf 3 Tupaz, V. (2012, August 10.) "Is Aquino snubbing Indigenous Peoples?" Rappler (Beta). Retrieved from http://www.rappler.com/move-ph/10219-is-pnoysnubbing-indigenous-peoples 4 The complete text of the Philippine Task Force for Indigenous Peoples' Rights' "Open Letter to President Benigno Aquino III" can be read on Facebook at https://www.facebook.com/tfiprights/ posts/277142252390189.

5 From Justice Reynato Puno's (2009) separate opinion on Isagani Cruz & Cesar Europa v. Sec. of Environment and Natural Resources, et al. Supreme Court of the Philippines. Retrieved from http://sc.judiciary.gov.ph/ jurisprudence/2000/dec2000/135385_puno.htm 6 "Indigenous People's Rights Act (IPRA)." (2012, August 24.) PIPLinks. Retrieved from http://www.piplinks.org/ indigenous_rights/Indigenous+People%27s+Rights+ Act+%28IPRA%29.

7 "Indigenous Peoples in the Philippines." (2010, February.)

United Nations Development Programme - Philippines Fast Facts Lagom. Retrieved from http://www.undp. org.ph/Downloads/fastFacts/fosteringDemocraticGo vernance/2010/fastFacts6%20-%20Indigenous%20 Peoples%20in%20the%20Philippines%20rev%20 1.5.pdf.

8 Sagbigsal, E. (2002, March 10-16.) "Indigenous tribes see unity in diversity." Bulatlat. Retrieved from http:// www.bulatlat.com/news/2-5/2-5-ozamis.html.

9 Ahni, J. (2011, June 3.) "Indigenous Palawan leaders to confront the National Commission on Indigenous Peoples in Manila." Intercontinental Cry. Retrieved from http://intercontinentalcry.org/indigenous-palawanleaders-to-confront-the-national-commission-onindigenous-peoples-in-manila/.

10 "National Commission on Indigenous Peoples asked to respect Subanen decision-making process." (2010, April 27.) Indigenous Peoples Issues and Resources.

Retrieved from http://indigenouspeoplesissues. com/index.php?option=com_content&view=artic le&id=4971:national-commission-on-indigenouspeoples-asked-to-respect-subanen-decision-makingprocess&catid=32:southeast-asia-indigenouspeoples&Itemid=65.

11 Sagbigsal, ibid.

12 "National Commission on Indigenous Peoples is back under OP." (2010, November 10.) Press Release by the Office of the Presidential Adviser on the Peace Process, Official Gazette of the Republic of the Philippines. Retrieved from http://www.gov. ph/2010/11/10/national-commission-on-indigenouspeoples-is-back-under-op/.

13 Desiderio, L.D. (2012, June 4.) "Mines bureau calls for review of IP consent rules." Philippine Star.

Retrieved from http://www.philstar.com/Article.asp x?articleId=813714&publicationSubCategoryId=.

See also Olchondra, Riza T. (2012, May 20.) "Miners protest NCIP guidelines." Philippine Daily Inquirer.

Retrieved from http://business.inquirer.net/60479/ miners-protest-ncip-guidelines 14 "Palace nixes call for suspending mining rules."

(2012, May 21.) GMA News. Retrieved from http://www.gmanetwork.com/news/story/258960/ economy/agricultureandmining/palace-nixes-callsfor-suspending-mining-rules 15 Hernando-Malipot, I. (2011, July 6.) "DepEd, AusAID enter into partnership." Manila Bulletin. Retrieved from http://www.mb.com.ph/node/325690/deped-au. Also AusAID, Australian Government. (n.d.) "Philippines: Muslim and Indigenous Peoples Education Program."

Retrieved from http://www.ausaid.gov.au/countries/ eastasia/philippines/Pages/education-init2.aspx.

16 "The K to 12 Program." (2012, June 5 last updated).

Official Gazette of the Republic of the Philippines.

Retrieved from http://www.gov.ph/k-12/.

17 National Commission for Culture and the Arts. (n.d.)

"Schools of Living Traditions." Retrieved from http:// www.ncca.gov.ph/about-ncca/slt/about-ncca-sltguidelines.php.

PROTECTING IP'S RIGHTS, from p. 23 ‘PHILIPPINE MINING ACT OF 1995’”38 is the bill’s long title. As stated in Rodriguez’ explanatory note, the legislative measure aims to (1) address the confusion about the requirement of getting FPIC from IPs prior to commencing mining activities, as provided by the IPRA, because FPIC is not included as a requirement in the Philippine Mining Act and (2) amend the Philippine Mining Act’s provision on the payment of royalties that are supposed to go into trust funds for the benefit of the IPs as the exact amount to be paid is not indicated explicitly.39 In the bill, Section 16 of the Philippine Mining Act will be amended to include FPIC and a certification precondition issued by the NPIC as requirements before opening ancestral lands to mining operations.

Section 17 will likewise be amended to include the amount of royalty to be paid by the mining contractor, permit holder or operator—five percent of total gross output.40 HB 1635 has been pending in the House Committee on National Cultural Communities since 2 August 2010.41 His co-author is his brother.42 Another bill pending in the lower house, this time at the House Committee on Natural Resources since 22 November 2011, is HB 5473.43 Its main author is Baguio Lone District Representative Bernardo Mangaoang Vergara with co-authors Benguet Lone District Representative Ronald Morales Cosalan and North Cotabato 2nd District Representative Nancy Alaan Catamco.44 The bill, similar to HB 1635, proposes the explicit statement of royalty amount in Section 17 of the Philippine Mining Act, although at a lower rate of one percent of the gross output.45 In the Senate, there is SB 3091, unifying and substituting previous bills: 109,141, 647, 1369 and 2673. It provides for the institution of a National Land Use policy and its authors are Senators Gregorio Honasan II, Alan Peter Cayetano, Jinggoy Ejercito Estrada, Loren Legarda, Francis Escudero, Ferdinand Marcos Jr., Franklin Drilon and the Senate Committee on Rules.46 While it states that “the State shall institutionalize land use and physical planning as mechanisms for identifying, determining, and evaluating appropriate land use and allocation patterns that promote and ensure… respect for and protection of the sustainable traditional resource rights of the Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains,”47 IPs may find Section 2, the Declaration of Policies and Principles questionable as it still embodies the practice of the Regalian Doctrine—which they have been struggling against for more than a century. Section 2 says “all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, fora and fauna, and other natural resources are owned by the state.

With the exception of agricultural lands, all other natural resources shall not be alienated.”48 It may be argued that ancestral domains and lands do not constitute public land and as such, IPs should not be worried. Because of their struggles, what IPs want is not an opinion or decision or judgment but the categorical statement in legislation that ancestral domains and lands are not owned by the State and are therefore, not public land. IPs have recommended to the United Nations that “all laws and policies anchored on the Regalian Doctrine must be reviewed and reversed in order to be consistent with the [United Nations Declaration on the Rights of Indigenous Peoples] UNDRIP.”49 SB 3091’s legislative status is pending second reading.50 The road ahead IPs in the Philippines continue to struggle.

The view that the NCIP is an ally because it is the “primary government agency responsible for the formulation of and implementation of policies, plans, and programs to promote and protect the rights and well-being of the ICCs/IPs and the recognition of their ancestral domains as well as the rights hereto”51 seems to be almost non-existent.

PROTECTING IP'S RIGHTS, p. 21

FORUM July-August 2012 21 [1909]). Justia.com. Retrieved from http://supreme. justia.com/cases/federal/us/212/449/case.html 18 Associate Justice Reynato Puno. loc. cit.

19 Isagani Cruz and Cesar Europa vs. the Secretary of Environment and Natural Resources, Secretary of Budget and Management and Chairman and Commissioners of the NCIP (G.R. No. 135385.

December 6, 2000). The Supreme Court of the Philippines. Retrieved from http://sc.judiciary.gov.ph/ jurisprudence/2000/dec2000/135385.htm 20 Cariño, Linda. (2009, March 28). "The Heirs of Bayosa Ortega." Sun Star Baguio. Retrieved from Jack Kintanar Cariño’s blog, http://jackcarino.multiply.com/ journal/item/94/The-Heirs-of-Bayosa-Ortega 21 Heirs of Mateo Cariño. (2010, February 24). "Open letter to Eugenio A. Insigne." Northern Dispatch Weekly.

Retrieved from http://www.nordis.net/?p=6172 22 Cariño, J.B. (2012, May 9). |Intervention on Agenda Item 3." The Indigenous Peoples Issues and Resources.

Retrieved from http://indigenouspeoplesissues. com/index.php?option=com_content&view=article &id=14946:international-asia-indigenous-peoplescaucus-intervention-on-doctrine-of-discovery-itsenduring-impact-on-indigenous-peoples-and-theright-to-redress-for-past-conquests-11th-session-ofunpfii&catid=34&Itemid=73 23 Mallari, D.Jr. (2012, January 21). "'Broken Record:’ Tribe appeals for stop to logging.”

Inquirer.net. Retrieved from http://newsinfo. i n q u i r e r. n e t / 1 3 2 0 2 3 / % E 2 % 8 0 % 9 8 b r o k e n record%E2%80%99-tribe-appeals-for-stop-tologging

atm-position-executive-order-79-s-2012 32 Goodland, R. and Wicks, C. (2008). Philippines: Mining or Food? Working Group on Mining in the Philippines.

London.

33 Abella, J. (2010, April 24). “Indigenous people remember Macliing Dulag’s martyrdom.” GMANews.tv. Retrieved from http://www.gmanetwork.com/news/story/189239/ news/nation/indigenous-people-remember-macliingdulag-s-martyrdom 34 Rebuta, C.C. (2009, December 27). “Cry for justice for the death of anti–logging leader.” Inside Mindanao.

Retrieved from http://www.insidemindanao.com/ article129.html 35 Tupas, J. (2011, May 10). “Davao region tribal leaders denounce killings.” Inquirer.net. Retrieved from http:// services.inquirer.net/mobile/11/05/11/html_output/ xmlhtml/20110510-335671-xml.html 36 Ibid.

37 Ibid.

38 House Bill No. 1635. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/download/ index.php?d=billstext_results#; http://www.congress. gov.ph/legis/search/hist_show.php?congress=15&save =1&journal=&switch=0&bill_no=HB01635; http://www. congress.gov.ph/download/basic_15/HB01635.pdf 39 House Bill No. 1635. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/download/ basic_15/HB01635.pdf 40 Ibid.

41 House Bill No. 1635. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/legis/ search/hist_show.php?congress=15&save=1&journ Photo from Wikimedia Commons

PROTECTING IP'S RIGHTS, from p. 20 UP Baguio (UPB) Cordillera Studies Center Director Alejandro Ciencia Jr. delivered a paper during the UPB commemoration of the International Day of the World’s Indigenous Peoples last August 9. In it, he says that the NCIP’s “dismal” performance can be traced to past Philippine presidents’ “ambivalence, if not indifference” toward IP concerns.52 The same day, an open letter to Aquino was posted online. The signatories, the Philippines Task Force for Indigenous Peoples’ Rights; Consortium of Christian Organizations in Rural Development; Cordillera Women’s Education Action Research Center; Episcopal Churches in the Philippines, Iglesia Filipina Independiente- Visayas-Mindanao Regional Office for Development; Regional Development Center – Katinnulong Dagiti Umili ti Amianan, Montañosa Research and Development Center; Peoples’ Development Institute; Southern Christian College – Community Education, Research and Extension Administration; Sibol ng Agham and Teknolohiya; Tebtebba Foundation, Indigenous Peoples’ International Center for Policy Research and Education and the United Church of Christ in the Philippines – Integrated Development Program for Indigenous Peoples in Southern Tagalog, bemoaned that they “have not received any response from [him] on the IP Agenda, nor has there been any significant development in favor of indigenous peoples. In fact, indigenous peoples still suffer the same problems raised in the IP agenda. There has been little government action to respond to the issues raised by indigenous peoples and advocates in 2010.”53 Two years ago, on the same date, 65 organizations of indigenous peoples and support groups from all over the country crafted an IP Agenda and submitted this to Aquino through his sister, Viel Aquino-Dy, for his “consideration and immediate action.”55 With things as they stand, IPs can only hope that their situation gets better and that their rights are fulfilled and protected by the State.

-------------------Email the author at forum@up.edu.ph.

NOTES:

1 "Republic Act No. 8371." (n.d.) Official Gazette.

Retrieved from http://www.gov.ph/1997/10/29/ republic-act-no-8371/ 2 Ibid.

3 Ibid.

4 Ibid.

5 "About Us." (n.d.) Land Registration Authority. Retrieved from http://www.lra.gov.ph/index.php?page=about_ us_history 6 Government of South Australia Department of Planning, Transport and Infrastructure. (n.d.)

Robert Richard Torrens. Retrieved from http:// www.landservices.sa.gov.au/1public/Education_-_ Careers/_Documentary_Movies/2Robert_Richard_ Torrens.asp 7 Land Registration Authority, loc. cit.

8 Official Gazette, loc. cit.

9 Presidential Decree No. 1529. (n.d.) The LAWPhil Project. Retrieved from http://www.lawphil.net/ statutes/presdecs/pd1978/pd_1529_1978.html 10 House Bill No. 3747. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/download/ index.php?d=billstext_results#; http://www.congress. gov.ph/legis/search/hist_show.php?congress=15&s ave=1&journal=&switch=0&bill_no=HB03747; http:// www.congress.gov.ph/download/billtext_15/hbt3747. pdf 11 Associate Justice Reynato Puno. (2000, December 6).

Separate opinion on Cruz vs. Secretary of DENR (G.R. No. 135385. December 6, 2000). Supreme Court of the Philippines. Retrieved from http://sc.judiciary.gov. ph/jurisprudence/2000/dec2000/135385.htm 12 Ibid.

13 Ibid.

14 Mateo Cariño vs The Insular Government (G.R. No. 2746. December 6, 1906). Philippine Law. Info. Retrieved from Philippine Law.Info, http:// philippinelaw.info/jurisprudence/gr2746-carino-vinsular-government.html 15 Mateo Cariño vs The Insular Government (G.R. No. 2869. March 25, 1907). The LAWPhil Project.

Retrieved from http://www.lawphil.net/judjuris/ juri1907/mar1907/gr_2869_1907.html 16 Ibid.

17 Mateo Cariño vs The Insular Government (212 U.S. 449

Members of the Tagbanwa people in Palawan discuss ICCA governance issues in Coron Island, one of the first ICCAs to be fully recognized as Ancestral Domain (Terrestrial and marine area), under the collective governance of the Tagbanwa.

24 “Mindanao tribal leaders urge stoppage of largescale mining, dev't projects.” (2011, April 27). Zambo Times. Retrieved from http://www.zambotimes. com/archives/30448-Mindanao-tribal-leaders-urgestoppage-of-large-scale-mining,-devt-projects.html 25 Pantaleon, A. (2010, October 16). “Logging firm's IFMA in Surigao Sur ‘defective and erroneous.’”

MindaNews. Retrieved from http://www.mindanews. com/environment/2010/10/16/logging-firms-ifma-insurigao-sur-defective-and-erroneous/ 26 Solmerin, F. (2012, July 2). “Manobo land under threat from loggers.” Manila Standard Today. Retrieved from http://manilastandardtoday.com/www2/2012/07/02/ manobo-land-under-threat-from-loggers/ 27 Allad-iw, A. (2011, July 17). “Sadanga tribe opposes mine in communal forest.” Northern Dispatch Weekly.

Retrieved from http://www.nordis.net/?p=10089 28 “Bantay Kalikasan lacks environment permits—NCIP.” (2012, June 22). The Daily Tribune. Retrieved from http://tribune.net.ph/index.php/nation/item/568bantay-kalikasan-lacks-environment-permits%E2%80%94-ncip 29 Executive Order No. 79, s. 2012. (n.d.) Official Gazette.

Retrieved from http://www.gov.ph/2012/07/06/ executive-order-no-79-s-2012/ 30 "New Mining EO Palliative-KATRIBU." (2012, July 9). KATRIBU. Retrieved from http://www.katribu.org/ content/new-mining-eo-palliative-katribu 31 "ATM Position on Executive Order 79 s. 2012." (2012, August 3). Alyansa Tigil Mina. Retrieved from http:// www.alyansatigilmina.net/content/story/august2012/

al=&switch=0&bill_no=HB01635 42 Ibid.

43 House Bill No. 5473. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/download/ index.php?d=billstext_results; http://www.congress. gov.ph/legis/search/hist_show.php?congress=15&s ave=1&journal=&switch=0&bill_no=HB05473 44 Ibid.

45 House Bill No. 5473. (n.d.) House of Representatives.

Retrieved from http://www.congress.gov.ph/download/ basic_15/HB05473.pdf 46 Senate Bill No. 3091. (n.d.) Senate of the Philippines.

R e t r i e v e d f r o m h t t p : / / w w w. s e n a t e . g o v. p h / lisdata/1266710653!.pdf 47 Ibid.

48 Ibid.

49 Cariño, Jacqueline Bernadette. loc. cit.

50 Senate Bill No. 3091. (n.d.) Senate of the Philippines.

Retrieved from http://www.senate.gov.ph/lis/bill_res. aspx?congress=15&q=SBN-3091 51 Republic Act No. 8371. loc. cit.

52 Ciencia, Alejandro Jr. (2012, August 22).“Governance Issues and the NCIP.” The Philippine Indigenous Peoples Links. Retrieved from http://www.piplinks.org/ who-will-fight-rights-indigenous-peoples%3F 53 “Open Letter to President Benigno Aquino III.” (2012, August 9). The Philippine Indigenous Peoples Links. Retrieved from http://www.piplinks.org/openletter-office-president-occasion-international-dayindigenous-peoples 54 Ibid.

22

FORUM July-August 2012 Photo from http://news.mindanao.com/2008/08/ip-groups-claimed-rp-tribes-are-now-hungrier-poorer-divided-as-ever/

PROTECTING IP'S RIGHTS, from p. 24 since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.”2 The law has a whole chapter detailing the IPs’ rights to ancestral domains, which include the right of ownership, right to develop lands and natural resources, right to stay in the territories, right in case of displacement (temporary or permanent resettlement and right to return), right to regulate entry of migrants, right to safe and clean air and water, right to claim parts of reservations (except those intended for common public welfare and service) and the right to resolve conflict. For ancestral lands, in particular, IPs have the right to transfer land/ property rights to/among members of the same ICCs/ IPs and the right to redeem the property in case of transfers that raise questions on consent given by IPs and transfers made with unjust considerations and/or prices.3 Claiming ancestral domains and lands IPs in the Philippines can claim ownership in three ways: by virtue of a native title, getting formal recognition of ownership by acquiring a certificate of ancestral domain title (CADT) or certificate of ancestral land title (CALT) from the National Commission on Indigenous Peoples (NCIP)Ancestral Domains Office (ADO), or by securing a certificate of title by virtue of “Commonwealth Act 141, as amended, or the Land Registration Act 496.”4 A native title, according to RA No. 8371, “refers to pre-conquest rights to land and domains, which , as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest.” A CALT or CADT, on the other hand, is granted by the government and is provided for by law to those IPs who wish to obtain these titles. The IPRA, specifically Section 12, also states that IPs have the option to acquire certificates of title under the provisions of the amended Commonwealth Act No. 141. This Act follows the Torrens System of land registration5 and titles issued under this system are called Torrens titles.

The Torrens System is named after Sir Robert Richard Torrens, a member of South Australia’s first elected parliament, who introduced a bill on land registration in 1857, which was enacted as the Real Property Act in 1858.6 It was later widely-known as the Torrens System. This system of land registration, specifically in the Philippines, means that “real estate ownership may be judicially confirmed and recorded in the archives of the government.”7 Obtaining certificates of titles, whether from the NCIP-ADO or under the Torrens System, is seen as an arduous process. For IPs whose lands have been delineated prior to the enactment of the IPRA, they do not have to go through the process of filing a petition for delineation, delineation proper, submission of proof attesting to possession or occupation of the area, preparation of maps, preparation of report of investigation and other documents, notice and publication, endorsement of the ADO to the NCIP and the turnover of areas within ancestral domains managed by government agencies until the certificates are issued and registered.8 Using the Torrens System, meanwhile, entails the following: survey of land by the Department of Environment and Natural Resources (DENR)Land Management Bureau (LMB) or survey of land done by a licensed surveyor and approved by the DENR-LMB; filing an application together with the survey and “all original muniments of titles or copies thereof;” at the Court of First Instance in the city or province where the land is located; setting the date of the initial hearing by the court; public notice of initial hearing by publication, mail and posting by the sheriff or his deputy in the city or province; presentation of proof of publication and notice; filing of opposition to application on or before initial hearing; if there is no opposition, applicant will present evidence; rendering of judgment; issuance of an order to the Land Registration Authority (LRA) to issue decree of registration and certificate of title; filing and entering of decree of registration in the LRA; sending of original certificate of title (OCT) and owner’s duplicate to the Registry of Deeds in the city or province where land is located; entry of OCT into the record books; and sending of notice to registered owner that his duplicate certificate is ready and will be delivered upon payment of legal fees.9 For the IPs who wish to register their ancestral lands under the Torrens System, there is a catch.

Section 12 of the IPRA also states that the option to register ancestral lands under this system “shall be exercised within twenty (20) years from the approval of this Act.” The law was approved in 1997, which means that IPs only have until 2017 to avail of this

option.

Recognizing the importance of IPs and the limitations accorded by the IPRA, House Bill (HB) 3747 was filed by its main author, Cagayan de Oro 2nd District Representative Rufus Rodriguez on 25 November 2010. The bill proposes to extend the deadline of ancestral land registration under the Torrens System until 2037. It also gives the NCIP five more years to take the appropriate legal action for the cancellation of officially documented titles acquired illegally. In Section 64 of the IPRA, the NCIP had to initiate legal action within two years from the approval of the Act and that the action for reconveyance shall be within ten years. HB 3747 was approved by the House of Representatives on 15 August 2011 and received by the Philippine Senate three days later. There has been no update on its status as of this writing.

The co-authors of the HB 3747 are Representatives Teddy Brawner Baguilat, Jr. (Lone District, Ifugao), Chairman of the House Committee on National Cultural Communities, Maximo Rodriguez (Partylist, Abante Mindanao), Maximo Dalog (Lone District, Mountain Province), Eric Singson, Jr. (2nd District, Ilocos Sur), Leopoldo Bataoil (2nd District, Pangasinan), Victorino Dennis Socrates (2nd District, Palawan), Bernardo Vergara (Lone District, Baguio City), Jeci Lapus (3rd District, Tarlac), Luzviminda Ilagan (Party List, Gabriela), Ben Evardone (Lone District, Eastern Samar), Ma. Amelita CalimbasVillarosa (Lone District, Occidental Mindoro) and Bernadette Herrera-Dy (Party List, Bagong Henerasyon).10 Drawbacks, violations, deaths Different events—from the practice of the Regalian Doctrine to questioning the constitutionality of the IPRA to economic development projects to deaths of both NCIP officials and IP leaders—have had negative impacts on the protection of IPs’ rights to their ancestral domains and lands.

The Regalian Doctrine or jura regalia, sometimes referred to as the Doctrine of Discovery, is “a Western legal concept that was first introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedulas [emphasis his].

The Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy of the Spanish Crown with respect to the Philippine Islands.”11 Then Associate Justice Reynato Puno was discussing the Regalian Doctrine as part of his opinion on a Supreme Court case in 2000 questioning the constitutionality of the IPRA. He explained that this doctrine meant PROTECTING IP'S RIGHTS, p. 23

FORUM July-August 2012 23 PROTECTING IP'S RIGHTS, from p. 22 that “the Philippines passed to Spain by virtue of ‘discovery’ and conquest. Consequently, all lands became the exclusive patrimony and dominion of the Spanish Crown."12 When the country was passed on the United States of America by virtue of the Treaty of Paris in 1898, “Spain ceded to the government of the United States all rights, interests and claims over the national territory of the Philippine Islands.”13 The Philippine Constitutions of 1935, 1973 and 1987 all embody the Regalian Doctrine, which provides that “all lands of the public domain as well as all natural resources enumerated therein, whether on public or private land, belong to the State. It is this concept of State ownership that petitioners claim is being violated by the IPRA [emphasis his].”

In formulating his separate opinion, Puno also considered the Cariño Doctrine, where the US Supreme Court (SC) granted in 1909 the petition of Mateo Cariño, an Ibaloi from Benguet Province, reversing earlier decisions of the SC of the Philippines. Cariño had first sued the Insular Government for opposing his petition to grant him the title to a parcel of land in Baguio, which was denied in 1906 by the Philippine SC.14 He filed another case, which was again rejected by the Philippine SC in 1907. The government then alleged that the land was “public property of the Government and that the same was never acquired in any manner or through any title of egresion from the state.”15 The Philippine high court had rejected his petition, because of the following findings: “that Mateo Cariño and from those whom he claims his right had not possessed and claimed as owners the lands in question since time immemorial” and “that the land in question did not belong to the petitioner, but that, on the contrary, it was the property of the Government.”16 Cariño then brought it to the US Supreme Court, where his petition was granted.

US SC Chief Justice Oliver Wendell Holmes Jr., who delivered the opinion of the court, said that “Whatever the law upon these points may be, and we mean to go no further than the necessities of decision demand, every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt.”17

Considering the aforementioned as well as other cases, Puno said that the “provisions of the IPRA do not contravene with the [Philippine] Constitution” and that “ancestral domains and ancestral lands are the private property of Indigenous Peoples and do not constitute part of the land of the public domain.”18 The SC votes on the case, Isagani Cruz and Cesar Europa vs. the Secretary of Environment and Natural Resources, Secretary of Budget and Management and Chairman and Commissioners of the NCIP, questioning the constitutionality of the IPRA, were equally divided. After another deliberation, the votes remained the same. Following the Rules of Civil Procedure, the case was dismissed.19 It seems that Cariño’s victory in the US SC was only on paper as his heirs still have pending claims in the NCIP. In the 28 March 2009 issue of Sun Star Baguio, his great granddaughter, Linda Cariño, a columnist for the paper, questioned the claim of the heirs of Ikang Paus, which is part of what the Cariños are claiming. She contests the assertion of the other claimants that Ikang Paus is an heir of Bayosa Ortega, wife of Mateo and great grandmother of Linda.20 NCIP issued a CALT covering 78 hectares to the heirs of Ikang Paus in November 2009. In an open letter to then NCIP Chair Eugenio Insigne, published in the Northern Dispatch Weekly in 2010, the Cariño heirs accused the commission of “perpetrat[ing] a landgrab by awarding the Baguio Dairy Farm to fraudulent claimants, the Heirs of Ikang Paus.”21 In May of this year, Jacqueline Bernadette Cariño of the Cordillera Peoples’ Alliance and great granddaughter of Mateo Cariño, spoke on behalf of the Asia Indigenous Peoples Caucus during the 11th Session of the UN Permanent Forum on Indigenous Issues, denouncing the Regalian Doctrine and saying that IPs in the country assert their rights over ancestral domains “through self-delineation and selfdeclaration… in accordance with customary law… in spite of the non-issuance by the government of [CALTs and CADTs], which have proven ineffective and divisive, not to mention the long tedious process [they] have to go through to prove their ownership of the land to acquire a CALT/CADT.”22 The Regalian Doctrine, as embodied in the Constitution—providing the State ownership and right to dispose of public lands—is also seen by IPs as the reason why so-called development projects such as mining, logging and the construction of dams encroached on their ancestral domains and lands and continue to disregard their rights. Any activity seen to affect IPs in any way cannot be commenced without their free and prior informed consent (FPIC). The IPRA defines it as “the consensus of all members of the ICCs/IPs to be determined in accordance with

Photo from Wikimedia Commons

their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community.”

IPs in the country have been asking the government to put a stop on mining, logging and/ or other activities in their ancestral domains—the Agta Tribe in Sierra Madre;23 “Bagobo, Ata-Manobo, Matigsalug, Obo and Manobo in the Davao Region, B'laan and T'boli in Socsksargen, Higaonon, Kaolo, Banwaon and Talaandig in Northern Mindanao, Subanen in Zamboanga Region and Manobos in Caraga;”24 Mamanwa and Manobo tribes in Surigao del Sur;25 Manobos in Agusan del Sur;26 the Sadanga Tribe in the Mountain Province27 and the Brooke’s Point Federation of Tribal Councils in Palawan,28 among many others.

Amid calls from various IPs for the crafting of a more pro-people mining industry, Aquino signed Executive Order (EO) No. 79 last July 6, “INSTITUTIONALIZING AND IMPLEMENTING REFORMS IN THE PHILIPPINE MINING SECTOR PROVIDING POLICIES AND GUIDELINES TO ENSURE ENVIRONMENTAL PROTECTION AND RESPONSIBLE MINING IN THE UTILIZATION OF MINERAL RESOURCES.” 29 KATRIBU Partylist, a progressive IP party, said in a statement that the new measure “fails to recognize the clamor of different sectors to nationalize the country’s mineral industry. It continues to implement the liberalized and destructive mining operations in our country allowed by the Philippine Mining Act of 1995. It fails to protect our country's national patrimony, sovereignty and real economic development over the interest of the big foreign business.”30 Alyansa Tigil Mina, on the other hand, released its position paper on EO No. 79, declaring that it was “a long way from solving the mining issue, and is far from the meaningful reforms in the mining industry that we were expecting.”31 Perhaps one of the most grave violations is the killing of tribal leaders as well NCIP officials.

South Cotabato NCIP ancestral domain provincial coordinator Tommy Dawang was gunned down in Polomolok on 20 January 2008 while NCIP Regional Office Director Rafaelito Handoc, also of South Cotabato, was shot on 5 March of the same year in Koronadal.32 Decades earlier, on 24 April 1980, Macliing Dulag, Butbut tribal chief in Kalinga, was shot when his hut was strafed with bullets by members of the Philippine Army.33 Dulag was instrumental in uniting tribes in Northern Cordillera to fight the Chico Dam project in the 1970s. Alberto Pinagawa, a known anti-logging Higaonon leader, was killed with high-powered guns on the Christmas Eve of 2009.34 On 7 July 2009, Datu Liling Andresan, Mandaya tribal leader and manager of the Ancestral Domain Management Office of Monkayo in Compostela Valley, was killed.35 His successor to the post, Datu Carlito Chavez of the Manguangan tribe was also killed on 16 August 2010.36 The following year, on April 27, his successor, Bae Floreta Caya, a Mandaya, was shot dead.37 The death of these tribal leaders and NCIP officials are only a few examples and are, by no means, the only deaths related to the protection of IP rights in the last few decades.

Legislative action HB 3747 is not the only pending bill designed to help IPs in the country. Earlier in the 15th Congress, Abante Mindanao Partylist Representative Maximo Rodriguez, brother of HB 3747’s main author, filed HB 1635 as the principal author. “AN ACT PROTECTING THE RIGHTS OF INDIGENOUS PEOPLES AFFECTED BY MINING OPERATIONS INANCESTRAL DOMAINS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 7942, OTHERWISE KNOWN AS THE PROTECTING IP'S RIGHTS, p. 20

24

FORUM July-August 2012

Protecting IPs’ Rights to Ancestral Domains and Lands Photo from http://www.minesandcommunities.org/article.php?a=11427

By Arlyn VCD Palisoc Romualdo

T

he significant yet often marginalized and neglected Indigenous Peoples (IPs) of the Philippines continue to struggle for the protection of their rights, rights that they feel are being ignored by the government. Their sentiment is one of disappointment as they were one of the glaring omissions in President Benigno Aquino III’s State of the Nation Address last July 23, a mere two weeks before the commemoration of the International Day of the World’s Indigenous Peoples on August 9.

While the protection and fulfillment of basic human rights is one of the more widespread campaigns worldwide, there exists an equallyimportant yet highly-specific set of rights that must be afforded the same amount of attention—those of the IPs. Despite the fact that Republic Act (RA) No. 8371, otherwise known as the Indigenous Peoples Rights Act (IPRA) of 1997, has been around for almost fifteen years, IPs’ rights continue to be denied and violated. The rights unique to these groups are the rights to their ancestral domains and lands.

What are ancestral domains and lands?

Ancestral domains, as defined in the IPRA, “refer to all areas generally belonging to [Indigenous Cultural Communities] ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a

consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their

subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/ or shifting cultivators.”1 The law’s concept of ancestral domains, therefore, transcends physical and residential territories to include areas of spiritual, cultural and traditional practices.

Ancestral lands, which are part of ancestral domains, are defined in the same Act as lands “occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs PROTECTING IP'S RIGHTS, p. 22 THE UNIVERSITY OF THE PHILIPPINES

FORUM Danilo Araña Arao Editor-in-Chief Flor Cabangis Managing Editor Luis V. Teodoro Consulting Editor

Arbeen Acuña Celeste Ann Castillo Llaneta Andre Encarnacion KIM Quilinguing Arlyn VCD Palisoc Romualdo Writers Arbeen Acuña Graphic Artist Celeste Ann Castillo Llaneta Layout Artist KIM Quilinguing Webmaster: Forum Online Sol Barcebal Researcher Bong Arboleda Misael Bacani Jun Madrid Photographers

The UP FORUM University of the Philippines Diliman, Quezon City, Philippines, 1101 APPROVED PERMIT NUMBER/INDICIA Business Mail Permit No. 2ND-07-010-NCR Entered as Second class mail at the U.P.P.O. Valid until December 30, 2012 Subject to Postal Inspection (for printed matter only)

Cristy Salvador Obet Eugenio Alice Abear Tom Maglaya Victor Imbuido Administrative Staff

UP System Information Office Mezzanine Floor Quezon Hall UP Diliman, Quezon City 926-1572, 981-8500 loc. 2552, 2549 e-mail: forum@up.edu.ph