Aklan State University
College of Teacher Education
Banga, Aklan
CHAPTER II: IPRA LAW (INDIGENOUS PEOPLE'S RIGHTS)
History of the IPRA Law
The ILO or the International Labour Convention has been
engaged with indigenous and tribal peoples’ issues since the 1920s. It
is responsible for the Indigenous and Tribal Peoples Convention, 1989
(No. 169), the only international treaty open for ratification that deals
exclusively with the rights of these peoples. The ILO’s Decent Work
Agenda , with gender equality and non-discrimination as a
crosscutting concern, serves as a framework for indigenous and tribal
peoples’ empowerment. Access to decent work enables indigenous
women and men to harness their potential as change agents in poverty
reduction, sustainable development and climate change action.
As for natural resources pertaining to their traditional lands, this
Convention recognizes IPs’ rights to participate in their use,
management and conservation. Whether and to what extent IPs are
granted ownership of mineral and other natural resources within their
traditional lands is determined by the concerned State. This is
consistent with the principle of State sovereignty and is also supported
by Article 34 of the same Convention which provides that “The nature
and scope of the measures to be taken to give effect to this Convention
shall be determined in a flexible manner, having regard to the
conditions characteristic of each country.”
The Draft Universal Declaration on the Rights of IPs recognizes their
right to own the total environment and other resources which they
have traditionally owned, occupied or used. Being a draft, it is not,
however, legally binding. Other international agreements such as those
resulting from the Rio Summit highlight the role of IPs and the need to
integrate their practices with current approaches in sustainable
development. In general, these agreements called for the recognition
of the knowledge of IPs, prescriptions to states to support their culture
and to guarantee their effective participation.
Foreign Laws
The foreign laws briefly discussed reflect various perspectives,
specifically in relation to IPs rights over the mineral resources within
lands traditionally held by them. There is no prescribed way of
approaching these issues but, in an apparent reflection of Art. 34 of ILO
Convention, these are dealt with in a manner that considers the
conditions characteristic of each country. This is also consistent with a
State’s sovereign prerogative to determine the nature and extent of
rights over mineral and other natural resources.
One criticism of the IPRA is that it appears to grant what some consider
automatic ownership not only over ancestral lands but over ancestral
domains which include, by definition, the mineral and other natural
resources therein. It is argued that the grant of ownership over
minerals is neither found nor supported in any binding international
texts nor under any foreign laws. The nature and extent of rights which
are granted under the IPRA to IPs over natural resources within their
ancestral lands and domains are fundamental issues pending before
the Supreme Court.
Philippine Legal Developments
In recent years, there have been significant legal developments
pertaining to the interests of IPs. The 1935 Constitution had no express
statement on the matter while the 1973 Constitution had only one
provision. In contrast, the 1987 Constitution contains a significant
number of provisions on IPs and formally recognizes the concepts of
ancestral lands and domains. These provisions reveal the divergence
between civil law and customary law as the fundamental issue
underlying state policies on IPs. Attempts to balance these apparent
antagonisms are evident in provisions like Section 22 of Article II which
provides that the “State recognizes and promotes the rights of
indigenous cultural communities within the framework of national unity
and development”.
Similar to international legal developments, the different Philippine
laws on IPs prior to the promulgation of the IPRA reflect the shift in
policy from assimilation to recognition of IPs’ right of selfdetermination.
Specific policy shifts are also evident toward community-based
management, toward recognizing the value of indigenous knowledge
and practices in sustainable development and toward ensuring the
participation of IPs in relevant local and national policy bodies.
With respect to ancestral domains and lands, the most significant legal
developments took place within the framework of the Department of
Environment and Natural Resources (“DENR”). DENR Administrative
Order No. 2 (“DAO 2”) provided for the identification, delineation and
recognition of ancestral land and domain claims leading to the
issuance of a Certificate of Ancestral Domain Claim (“CADC”) and
Certificate of Ancestral Land Claim (“CALC”). Although CADCs and
CALCs are significant tenurial instruments, these were not grants of
title.
There were many significant legal developments concerning IPs even
before the promulgation of the IPRA, such as Section 16 of the Mining
Act whereby IPs’ prior consent is required before mining activities can
be undertaken in ancestral lands. With respect to ancestral domains,
the 1987 Constitution recognizes this concept in laws like RA 6734, the
Organic Act for the Autonomous Region of Muslim Mindanao, and in
rules like DAO 2. Furthermore, significant principles in our Philippine
laws prior to the IPRA appear to echo international law principles,
including:
• recognition of IPs rights to their ancestral lands;
• the right to be consulted with respect to activities
affectingthem;
• their right to give their prior consent before certain
activitieswithin their ancestral lands or domains may proceed;
• the right to benefit from utilization of natural resources
withintheir ancestral lands and domains;
• the right to be fairly compensated for any damages
sustainedas a result of certain activities undertaken within their
ancestral lands and domains, specifically mining activities;
• a right of priority to be awarded certain contracts within
theirancestral lands, in the case of small scale mining, and the priority
rights in the exploration, development and utilization of natural
resources within their ancestral domains, in the case of the
Autonomous Region of Muslim Mindanao;
• the recognition of and respect for customary laws,
specificallywith regard to determining the extent of their lands and
domains;
• their right of effective participation in the local and
nationallevels; and
• the recognition of their role in environmental management.
Although these and other laws promoted the welfare of IPs and
expressly called for recognition of their rights and value, there was no
express recognition of the right of ownership by IPs of their ancestral
domains, and the natural resources therein, by virtue of their historical
occupation and relationship to the same. This is one main area in which
the IPRA appears to make a radical legal departure.
Early Beginnings
Year 1909, in the case of Carino vs. Insular Government, the
court has recognized long occupancy of land by an indigenous member
of the cultural communities as one of private ownership, which, in legal
concept, is termed “native title”. This case paved the way for the
government to review the so-called “native title” or “private right.” In
the year 1919, the Second Public Land Act was enacted, recognizing
the right of ownership of any native of the country who, since July 4,
1907, or prior thereto, has continuously occupied and cultivated, either
by himself or through his predecessors-in-interest, a tract of
agricultural public land.
In 1936, Commonwealth Act No.141, amended by R.A. 3872 of
1964, was passed which provides that members of the national cultural
minorities who have resided on agricultural, public land since July 4,
1955 are entitled to recognition of ownership whether or not the land
has been certified as “disposable.” They shall be conclusively
presumed to have performed all conditions essential to a government
grant and shall be entitled to a certificate of title. [2]
In the 1970s, the laws protecting indigenous people’s lands
expanded to territorial and bigger domains. Under Bureau of Forestry
Administrative Order No. 11 of 1970, all forest concessions were made
subject to the private rights of cultural minorities within the area as
evidenced by their occupation existing at the time a license is issued
by the government. The Revised Forestry Code of 1975 (Presidential
Decree 705 under President Marcos) defines this "private right” of as
“places of abode and worship, burial grounds and old clearings.” [3]
In 1978, the Presidential Arm for National Minorities (PANAMIN)
was authorized to design, implement and maintain settlements among
the National Minorities. Prior to this, a Presidential Decree was issued
in 1974, “declaring all agricultural lands occupied and cultivated by
members of the national Cultural Communities since 1964 as alienable
and disposable, except the islands of Panay and Negros and the
provinces of Abra, Quezon, Benguet and Camarines which became
effective on March 11, 1984.”[2]
The most recent laws before the Indigenous People’s Rights Act
of 1997 was passed which recognize the existence of ancestral land
right are the Organic Act of Autonomous Region in Muslim Mindanao
(RA 6734, 1989), and the Organic Act for the Cordillera Autonomous
Region (RA 6766, 1989).
Historical Evolution of RA.8371
The decrees that have been passed fail to encompass all the
needs of the indigenous people primarily because of failure in
implementation and sole focus on the land and domains only.
Because of this, a more comprehensive law is needed that “seeks
to stop prejudice against indigenous people through recognition of
certain rights over their ancestral lands, and to live in accordance
recognize and protect the rights of the indigenous people not only to
their ancestral domain but to social justice and human rights,
selfdetermination and empowerment, and their cultural integrity, [2]”
This then gave birth to movements for a comprehensive law that will
protect not only the lands, but human rights of the Filipino indigenous
people.
CIPRAD or the Coalition for Indigenous People’s Rights and
Ancestral Domains is an alliance of Indigenous People’s Organizations
(IPOs) and non-government organizations (NGOs) created to pursue the
advocacy for IP rights and ancestral domains. The Coalition is
participated by IPOs in the Cordillera, Region I, Nueva Vizcaya,
Cagayan, Caraballo, Sierra Madre, Quezon, Aurora, Quirino, Nueva
Ecija, Zambales, Pampanga, Bulacan, Mindoro Occidental, Palawan,
Panay, Davao, Cagayan, Cotabato and Zamboanga. CIPRAD partnered
with various NGOs organizations such as Episcopal Commission on
Indigenous Peoples, National Peace Conference, Center for Living
Heritage and PANLIPI (Legal Assistance Center for Indigenous Filipinos)
in order to lobby for the IPRA or Indigenous People’s Rights Act.
IPRA, formerly known as Ancestral Domain Bill, was first filed in
the Congress sometime in 1987 under the Senate Bill No. 909 authored
by Senator Santanina Rasul, Senator Joseph Estrada and Senator
Alberto Romulo, during the 8th Congress, but was never enacted in to
law. In the 9th Congress, Senator Rasul introduced Senate Bill No. 1029
and Senator Macapagal-Arroyo introduced Senate Bill No. 1849.
However, the bill was never sponsored and deliberated upon in the
floor.
Despite these failed efforts, the IPOs decided to give it another
try. Decisions have been made during social negotiations among NGOs
and POs to rename the bill from Ancestral Domain Bill to Indigenous
Peoples Rights Act to emphasize the holistic approach and character of
the bill. A consensus was made on December 1995 between IP
representatives and NGO representatives. Seven non-negotiable points
of the bill that were promoted are the following:
a) recognition of native ttitle and rights of IPs to ancestral domains, b )
respect for the right to cultural integrity, c) recognition of indigenous
peoples’ political structures and governance, d) delivery of basic
services to the indigenous peoples, e) respect for human rights, f)
elimination of discrimination, g) and creation of an office that would
cater to the IPs needs.
Year 1996, during the 10th Congress, Senator Juan Flavier
sponsored the Bill no. 1728 which meant that he has to defend the bill
in all the Senate deliberations and discussions. In his sponsorship
speech, he discussed the legal bases for the bill which can be found in
the 1987 Constitution. He also discussed the basic rights of the ICCs,
the contents of the bill itself, and the immediate need of protection of
the Filipino Indigenous People.[2]
Despite difficult hurdles and amendments enacted in the
Congress which nearly brought the movement to its death, the House
of Representatives finally approved the bill late in September 1997.
President Fidel V. Ramos signed it on 22 October 1997 officially making
it Republic Act No. 8371 Indigenous People’s Rights Act of 1997 which
aims to “Recognize, Protect and Promote the Rights of Indigenous
cultural Communities/Indigenous Peoples (ICCs/IPS) and for other
Purposes.”
History of NICP
The National Commission on Indigenous Peoples (NCIP) is an
agency of the Philippine government with frontline services for the
Indigenous Peoples and attached to the Office of the President. The
NCIP evolved through a series of governmental reorganizations in an
effort to properly address the multifarious issues and concerns
confronting the country’s diverse Indigenous Cultural Communities/
Indigenous Peoples (ICCs/IPs), and to effectively, efficiently and
responsively deliver basic services to them.
It was during the American regime that the Bureau of
NonChristian Tribes under the Department of Interior was created, for
the purpose of helping the ICCs/IPs, who were then referred to as the
nonChristian tribes. Subsequently, to give it more power, it was
elevated to an independent body-the Commission on National
Integration (CNI).
In 1972, the CNI was abolished. Then President Ferdinand E.
Marcos created the Southern Philippine Development Authority (SPDA)
and the Presidential Assistance on National Minorities (PANAMIN). The
SPDA undertook the implementation of programs for the Muslims which
agency later became the Ministry of Muslim Affairs. The PANAMIN, on
the other hand, implemented the programs for the non-Muslims or
other tribal groups. It sought to integrate into the mainstream of
society certain ethnic groups, and at the same time protect the rights
of those who wish to preserve their original lifeways beside the larger
community.
In 1984, the government under Pres. Ferdinand Marcos created the
Office for Muslim Affairs and Cultural Communities (OMACC) by virtue
of the Executive Order No. 969. The OMACC catered to the needs of
both the Muslim and Non-Muslim communities. This agency did not last
long as government management realized that lumping the Islamicized
groups and the ICCs into one office did not work well as envisioned.
In January 1987, the OMACC was abolished and the Aquino
administration issued three Executive Orders creating three distinct
and separate offices, as follows, E.O. No. 122-A, creating the Office for
the Muslim Affairs (OMA); E.O. 122-B, creating the Office for Northern
Cultural Communities (ONCC) and E.O. 122-C, creating the Office for
Southern Cultural Communities (OSCC). These three Offices were
attached to the Office of the President.
Avowing the rights and welfare of the ICCs/IPs, particularly their
clamor on land tenure security and the recognition of their freedom to
make choices under the rubric of human rights and development,
Republic Act 8371 was enacted into law on October 29, 1997, creating
the National Commission on Indigenous Peoples (NCIP) merging the
ONCC and OSCC as its organic offices.
The NCIP is composed of seven Commissioners, one of whom is
the Chairperson.
FOUR BUNDLES OF IP RIGHTS
Rights to Ancestral Domains/Lands
1. Right of ownership;
2. Right to develop lands and natural resources;
3. Right to stay in territories;
4. Right in case of displacement;
5. Right to regulate entry of migrants;
6. Right to safe and clean air and water;
7. Right to claim parts of reservation (except those
reserved and intended for common and public welfare and
service;
8. Right to resolve conflict;
9. Right to transfer land/property to/among members of
the same ICCs/IPs, subject to customary laws and traditions of
the community concerned;
10. Right to redemption of all transferred to a non-IP
where the transfer is tainted by vitiated consent or the land is
transferred for an unconscionable consideration or price;
Rights to Self-Governance and Empowerment
11. Authentication of Indigenous leadership Titles and Certificates of
tribal membership;
12. Recognition of Socio-Political Institutions and structures;
13. Right to use their own commonly accepted justice systems,
conflict resolution institutions, peace building processes or
mechanisms and other customary laws and practices within their
respective communities and as may be compatible with the
national legal system and with internationally recognized human
rights;
14. Right to participate in decision-making (mandatory
representation in policymaking bodies and other local legislative
councils);
15. Right to determine and decide priorities for development;
16. Tribal barangays (may form or constitute a separate barangay in
accordance with the LGC/Sec. 386 par. A);
17. Right to organize and Associate for collective actions;
Social Justice & Human Rights
18. Equal protection and non-discrimination;
19. Rights during armed conflict;
20. Freedom from discrimination and right to equal opportunity and
treatment;
21. Right to basic services;
22. Rights of women;
23. Rights of children and youth;
24. Right to integrated system of education/right to education;
Rights to Cultural Integrity
25. Protection of indigenous culture, traditions and institutions;
26. Right to establish and control their educational and learning
systems;
27. Recognition of cultural diversity;
28. Recognition of customary laws and practices governing civil
relations;
29. Right to name, identity and history;
30. Protection of Community Intellectual Rights;
31. Rights to religious, cultural sites and ceremonies;
32. Rights to Indigenous Spiritual Beliefs and Traditions, and
protection of sacred places;
33. Right to indigenous knowledge systems and practices and to
develop own science and technologies;
34. Protection of biological and genetic resources;
35. Right to sustainable agro-technological development;
36. Right to receive funds for archeological and historical sites and
artifacts;
INDIGENOUS PEOPLE
Ethnicity vs. Tribe
Ethnicity Tribes
Ethnicity refers to a group of people Tribes are smaller, local groups within
who share similar interests, religion, the ethnicity. (e.g. Ifugao & Aeta)
and cultural identity but may live in
a different place. (e.g.
Tagalog & Cebuano)
Ethnicities are larger and more Tribes are smaller, local groups.
widespread. (size)
Ethnicities can be more diverse and Tribes are tightly knit communities
less connected.(closeness)
Members of an ethnicity can be Tribes typically live in a specific area
scattered.
(location)
Ethnic Group Indigenous Group
Social groups that are distinguished Unique social and cultural groups witj
and linked in a wider community by ancestral links to the lands and natural
shared racial, linguistic, resources in which they live or inhabit.
nationality, or
cultural characteristics. Are those who are the original occupants
of a particular location and who continue
to practice tradition that predates
modernity.
Tagalog, Cebuano, Ilocano,
Igorot, Lumad, Aeta, Mangyan, T’boli,
Hiligaynon, Bikol, Kapampangan,
Manobo, B’laan, Agta, and Talaandeg
and Pangasinense
INDIGENOUS KNOWLEDGE SYSTEM AND PRACTICE IN THE
PHILIPPINES
Indigenous knowledge systems and practices (IKSP) in the
Philippines refer to the accumulated knowledge, beliefs, practices, and
technologies that have been developed and transmitted over
generations within indigenous communities in the country.
Indigenous knowledge and practices
IKSP Importance
in the Philippines:
Cultural Preservation Traditional Agricultural Techniques
Sustainable Resource Management Medicinal Plants and Healing Practices
Community Resilience Traditional Ecological Knowledge
Contribution to Scientific Knowledge Rituals and Ceremonies
Customary Laws and Governance
Social Justice and Human Rights
Systems
Sustainable Development Traditional Crafts and Artistic Expressions
Oral Traditions and Storytelling
PROBLEMS AND ISSUES CONFRONTING ETHNIC GROUPS
Discrimination and racism
Socioeconomic disparities
Cultural assimilation and loss of identity
Political marginalization
Conflict and violence
Human rights violation
National Commission on Indigenous People (NICP)
NICP is a government organization that focuses in protecting the rights and
well-being of indigenous communities.
MANDATE
The NCIP shall protect and promote the interest and well-being of the
Indigenous Cultural Communities/Indigenous Peoples with due regard to their
beliefs, customs, traditions, and institutions.
VISION
An esteemed Commission committed to the delivery of quality services to
ICCs/IPs with their rights fully respected, recognized, promoted, and protected.
MISSION
An enabling partner and lead advocate that formulates and implements
policies, plans, and programs for the well-being of IPs with due regard to their
ancestral domains and lands, selfgovernance and empowerment, social justice
and human rights, and cultural integrity.
Republic Act 8371 Indigenous People Rights Act (IPRA)
The State shall recognize, respect and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions.
It shall consider these rights in the formulation of national plans and policies.
Ancestral Domains/ Lands Develop & manage lands & natural
Ownership resources; Stay in territories; Rights in
case of displacement; Regulate entry of
migrants; Claim reservations; Right to
safe & clean air & water; Resolve conflict
through customary law; To transfer
ancestral lands; To redeem ancestral
lands lost through vitiated consent.
Native Title Refers to pre-conquest rights to lands
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
(Section 3l, RA 8371)
Ancestral Lands Land occupied, possessed and utilized by
individuals, families and clans who are
members of the ICCs/IPs since time
immemorial, by themselves or through
their predecessors-in- interest, under
claims of individual or traditional group
ownership,
continuously, to the present
(Section 3b, RA 8371)
Right to Self-Governance and Freely pursue economic, social & cultural
Empowerment well-being; Free Prior Informed Consent
in use of resources therein; Use
commonly
accepted justice system/conflict
resolution institutions/peace building
processes/customary laws; Participate in
decision- making that may affect them;
Mandatory representation in policy-
making bodies & local legislative
councils; Determine their own priorities;
Organize; Granted means
to fully develop their institutions &
initiatives
Social Justice & Human Equal protection & non-discrimination
Rights • Rights during armed conflict
• Equal opportunity & treatment
•Basic services
•Protection to women, children & youth
• Integrated system of education
Right to Cultural Integrity Protection of culture, traditions and
institutions. These must be considered in
the formulation and application of
national plans and policies; Access to
cultural opportunities, Recognition of
cultural diversity, Practice & revitalize
their customs & traditions & the state
must protect manifestations thereof,
Religious, cultural sites & ceremonies;
funds for archaeological & historical
sites, Ownership and recognition of
cultural and intellectual rights.
Ancestral domains or portions thereof,
which are found to be necessary for
critical Watersheds, mangroves, wildlife
sanctuaries, wilderness, protected
Delineation and Recognition of areas,forest cover, or reforestation as
Ancestral Domains SECTION 5 determined by appropriate agencies with
Environmental Considerations. the full participation of the ICCs/IPs
concerned shall be maintained, managed
and developed for such purposes.
National Commission on Indigenous People (NICP)
NICP is a government organization that focuses in protecting the rights and
well-being of indigenous communities.
MANDATE
The NCIP shall protect and promote the interest and well-being of the
Indigenous Cultural Communities/Indigenous Peoples with due regard to their
beliefs, customs, traditions, and institutions.
VISION
An esteemed Commission committed to the delivery of quality services to
ICCs/IPs with their rights fully respected, recognized, promoted, and protected.
MISSION
An enabling partner and lead advocate that formulates and implements
policies, plans, and programs for the well-being of IPs with due regard to their
ancestral domains and lands, self-governance and empowerment, social justice
and human rights, and cultural integrity.