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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