Nineteen years of deceit: The Indigenous Peoples Rights Act in the Philippines

The year 1997 was supposedly a landmark year for indigenous peoples in the Philippines with the passage Republic Act (RA) 8371, or the Indigenous People’s Rights Act (IPRA). Many hailed it as an enlightened law that will help ensure the self- determination of the indigenous peoples in the country.

“At first glance, this law looks progressive,” said Abigail Anongos, an Ibaloi-Bontoc woman and secretary-general of the Cordillera People’s Alliance (CPA). “Government officials and even some civil society organizations asked us to ‘give it a chance. Don’t judge IPRA prematurely.’”

The government said “IPRA guarantees the rights of the lumad, that this will help us develop,” recalled  Dulphing Bayang Ogan. He is a B’laan and secretary general of Kusog sa Katawhang Lumad sa Mindanao (Strength of the Lumad Peoples in Mindanao). Lumad is a collective term for 18 indigenous peoples groups living in the southern Philippine island of Mindanao, who  make up more than 60% of the whole indigenous population in the country.

The Philippines is one of the few countries that already had a law addressing indigenous peoples rights prior to the United Nations approving the Declaration on the Rights of Indigenous Peoples. This UN document affirmed indigenous peoples rights to self-determination and to their ancestral lands. As such, IPRA was groundbreaking because it would have served as a pattern for laws in other countries that had yet to craft policies to uphold indigenous peoples rights.

It should have, but it didn’t. Nineteen years after IPRA’s enactment, things have yet to begin looking up for indigenous peoples in the country.

Mangyan peoples calling for the repeal of IPRA. (Photo by Mark Ambay/IPMSDL)

Ancestral Lands: Up for Grabs

Before the coming of the Spaniards, a thriving culture already existed in the Philippines. When Spain conquered the islands in the 1500’s, all lands, waters, territories, minerals under the earth, the people living on those islands, and even the sky above those lands became property of the king of Spain. The idea of the king (and later the State) being the owner of all public domains unless otherwise stated became known as the Regalian doctrine.

With the United States of America having bought the Philippines from Spain for $20 million in 1898 through the Treaty of Paris, ownership of the Philippines and its people passed from the Spanish king to the American government. The subsequent constitutions of 1935 and 1973 reiterated the Regalian doctrine. When the dictator Ferdinand Marcos was deposed in 1986, the 1987 Constitution was promulgated. However, the Regalian doctrine was still reflected there.

Thus, indigenous peoples living in the Philippines were effectively dispossessed and their ancestral lands , and even they themselves, became property of a single entity (the king of Spain). The American colonial government and post-1945 Philippine presidents intensified land-grabbing through systematic expropriation of indigenous lands backed up by laws. To date, the Philippine government, through the laws it enacted and in connivance with big businesses , remains the largest single land-grabber of indigenous lands in the country in modern times.

“Our ancestors planted decades-old tress and bamboo groves to mark our territories,” related Ogan. “No government, not the Spanish, not the American, not one Filipino president, respected that mark.”

“IPRA to us is synonymous to legalized land-grabbing. Our lands are now in the hands of plantations and corporations,” he added.

Big Business

Before the enactment of IPRA, there was already RA 7942, or the Mining Act of 1995. This law encouraged foreign investors to engage in mining activities in the Philippines. RA 7942 allowed for a company to own 100 percent of up to 81,000 hectares of land the government will grant them, and they can control this land for up to 50 years. RA 7942 was silent on issues regarding indigenous peoples and ancestral lands, and the provisions of IPRA did nothing to negate the problems presented for indigenous peoples by RA 7942.

In 2014, a report released by Kalipunan ng mga Katutubong Mamamayan ng Pilipinas (Katribu), the largest alliance of indigenous peoples organizations in the Philippines, claimed that 507 mining applications had been approved by 2012. Of these, 281 (60%) are within indigenous territories, representing over 600,000 hectares. An estimated 100,000 indigenous peoples from 39 indigenous groups will be dislocated or will lose their livelihood as a result of these approved applications.

Anongos tells that when there was still no IPRA, “many of our elders noted that it was easier to fight for our rights as indigenous peoples. Now the struggle has become more difficult.”

To make matters worse, former President Ninoy Aquino issued Executive Order 79 (EO 79) in 2012. It proclaimed a moratorium on new mining applications yet did not prohibit previously filed and approved applications from continuing to operate. While it declared several lands off-limits to mining companies because they were either plantations or eco-tourist spots, it also did not hold ancestral lands as exempt from applications for exploration and drilling. This order, along with several other laws and the IPRA itself, has made it harder for indigenous peoples to resist the entry of large companies into their ancestral territories.

“Why is it that now, when we supposedly have the IPRA, even when we tell the companies that ‘we don’t want your projects, get out of our territory,’ why do they persist in coming back and force us to agree?” lamented Anongos.

Lumad women at the Philippine State of the Nation Address 2016 calling for IPRA’s repeal. (Photo by Mark Ambay/IPMSDL)

No Consent

One of the more positive provisions under IPRA is the concept of “free, prior and informed consent” (FPIC). FPIC is the principle that indigenous peoples have a right to give or withhold consent to entities that seek to enter or engage in projects within indigenous peoples territories. But even this provision has had its own share of problems.

Anongos noted that although the FPIC can be seen as one of the better provisions under IPRA, it still “leaves much to be desired.”

“We have documented dozens of cases where the FPIC has been subverted by companies seeking entry into our lands. There were even cases that companies do not even respect, don’t ask, or don’t even see the need for our consent,” she noted.

A case in point is that of the town of Baay Licuan, Abra in Northern Philippines. In 1999 a mining permit was issued for Olympus Industrial Mining Company by the national government. The Binongan peoples of Baay Licuan were surprised when Olympus started operations in their territory, as the company conducted no consultations with affected residents to get their consent. After a lengthy legal battle, residents from nine out of 11 Binongan villages signed a document denying Olympus the right to mine their area, effectively halting the operations.

One problem with the IPRA regarding the FPIC is that communities can only give the consent once, at the start of the project. If ever the company decides to expand its project to include other mining activities, it is no longer necessary to ask for additional consent from residents. Another grave concern is the lack of a mechanism to cancel a project that has proven to be detrimental to the interests of the indigenous community concerned. There are also no mechanisms in place to ensure, or even document, abuses done by a company operating inside ancestral lands.

Even the national government has seemingly done away with the need for an FPIC when doing business in ancestral lands. The EO 79 gave sweeping powers to the executive branch of the government to approve mining applications even without the consent of the indigenous peoples involved and even the local government units, and can override decisions of local government units and indigenous peoples communities opposing the entry of corporations into their territories.

Legalized Violations

Almost since its enactment, IPRA has been met with criticism. Opposition has mounted against IPRA, EO 79 and other laws that have a dire effect on the lives of indigenous peoples in the country. The problem is it seems the government has taken a more direct approach to silence critics.

“When indigenous peoples oppose projects that are detrimental to their lives, the result is intense militarization,” said Anongos. “Where there is militarization, expect human rights violations.”

With 95 recorded cases of extrajudicial killings of indigenous peoples and human rights activists under the Aquino administration’s belt, it is no wonder why the Philippines is considered one of the most dangerous countries in the world to engage in indigenous peoples rights advocacy.

And it’s quite a list of violations. An estimated 40,000 indigenous peoples have been forced to leave their homes due to militarization. When the military closed down dozens of indigenous schools that provided education to indigenous youth that the government cannot, or does not want, to provide with education, more than 3000 students were affected. Some of them are continuing schooling in several evacuation centers where many displaced indigenous peoples relocated after leaving their ancestral lands.

“What is clear is to us is that many of these violations are done by the government and their soldiers,” added Anongos.

However, it seems that it is not only soldiers who are involved in these violations. In Mindanao, several para-military groups were created with the assistance of the Philippine military to stem the tide of indigenous peoples rights activism.

“IPRA has been used… to legalize the arming of indigenous peoples. But in effect, these have become para-military groups or investment defense forces,” opined Mary Louise Dumas, executive director of the Mindanao Interfaith Institute on Lumad Studies (MIILS), who is also a lumad herself(an Ata-Manobo). MIILS is a Mindanao-based non-government organization that provides research to complement indigenous peoples grassroots movements in the country.

Investment Defense Forces (IDF) were created by President Gloria Macapagal-Arroyo in 2008 as a tool ostensibly to protect mining firms from attacks by the communist New People’s Army. The IDF policy was carried over by the next administration, and IDFs and para-military groups set up by the Philippine military have been accused of human rights violations against indigenous peoples and environmental rights activists, accusations which the Philippine military has brushed aside.

The military has consistently denied involvement in the creation of these para-military groups, countering that groups such as the Bagani, Nipar and Alamara were in fact created by the indigenous peoples themselves to protect their communities and as part of their rights under IPRA.

Ogan related that “in communities where there is strong opposition to corporate projects, the military would recruit lumad to join para-military groups and give them arms supposedly to protect their communities.”

“There are even instances where lumad are deceived into joining these armed groups, and then have no choice but to continue as members. But… they are turned against lumad organizations fighting corporate projects…fighting for their right to self-determination,” added Ogan.

Cases of abuses done by military and para-military forces are rampant, prompting international organizations such as Human Rights Watch and even several United Nations Special Rapporteurs to add their voices to the campaign against indigenous peoples rights abuses in the Philippines.

One of the more highlighted cases was that of Emerito Samarca, Datu Juvello Sinzo and Dionell Campos. Samarca was executive director of the Alternative Learning Center for Agricultural and Livelihood Development (ALCADEV), an award-winning non-government organization (NGO) famous for its programs providing alternative education to indigenous communities in Surigao del Sur province. Sinzo was the village tribal chieftain while Campos was a member of the tribal council of elders. On September 1, 2015, members of the Philippine army and para-military forces shot Sinzo and Campos in front of dozens of residents of the village of Diatagon, Lianga town. Samarca, on the other hand, was found dead the next day inside the NGO’s school. He was hogtied and stabbed several times.

The military has denied any involvement in human rights violations and has assured the public that it respects the rights of indigenous peoples. In fact, the military has repeatedly accused indigenous peoples organizations of being the ones behind the abuses and extrajudicial killings.

“We are highly enraged. We are the victims here,” protested Anongos upon hearing these accusations.

No Help At All

The IPRA allowed for the creation of the National Commission on Indigenous Peoples (NCIP), an agency tasked to implement the provisions of the IPRA. Since its founding, however, the NCIP has acted more for the interests of the government and the benefit of big businesses than for the rights of indigenous peoples.

Though the NCIP is tasked to ensure that titles for ancestral lands go to the actual indigenous peoples who inhabited these lands, experience has proven that it has acted more in cahoots with large companies in securing ancestral land titles for commercial use. This includes the half-hearted implementation or even the subversion of the process for acquiring FPIC, non-recognition of legitimate indigenous representatives and negotiating with fake indigenous leaders (or tribal “dealers, as they are known locally). There is blatant disrespect for indigenous laws and customs to accommodate big business interests, among others.

“The NCIP has become the negotiator for big businesses before entering our lands,” observed Anongos. “It resorts to bribery, taking advantage of our people’s impoverished conditions or outright duping our people into approving big projects that are not beneficial to us.”

The NCIP has been…to the detriment of indigenous peoples,” Dumas agreed. “While it supposedly had powers over issues involving indigenous peoples and their rights, more often than not it remained silent when those same rights were violated.”

Indigenous rights activists at the office of the National Commission on Indigenous Peoples. (photo by Kitanglad Multimedia Collective)

Fight Back

Indigenous peoples rights advocates believe that IPRA will not be able to solve the problems of indigenous people sin the country.

‘It’s a lie. It’s all a lie,” replied Ogan when asked whether IPRA’s promised benefits were true. “The supposed development of the lumad never came.” The lumad continue to face crushing poverty and vulnerability to environmental issues and climate change. In March 30, 2016, over 6000 people marched on the streets of Kidapawan City to demand food aid for starving farmers affected by drought and climate change. Majority of these protesters were lumad. They were met with bullets by government forces, resulting in the death of three protesters in what was later dubbed the Kidapawan massacre.

Because the IPRA has failed to meet the expectations of indigenous peoples, and in fact has only proven critics’ claims that it has been an additional tool of the government and large companies to deprive indigenous peoples of their rights, various groups have called for different actions that they deem more beneficial for indigenous peoples in the country.

“Perhaps the most immediate step would be to review its implementing rules and regulations,” comments Dumas, “although many groups have called for its junking.”

“The IPRA should be repealed, and its implementing agency the National Commission on Indigenous Peoples should be abolished,” puts Anongos bluntly. “Nineteen years of our experience with it has proven that IPRA is nothing more than an instrument of deceit by the government.”

Optimism, however, is running high among indigenous rights advocates, as the new Philippine president, a known supporter of lumad rights, has shown his openness to the plight of indigenous peoples in the country. In his inaugural speech, he stated his willingness to include indigenous peoples in the peace process to end the longest-running Communist insurgency in the world.

However, it remains to be seen whether the president’s openness will translate into concrete action for the development of indigenous peoples in the Philippines. For now, although optimistic, indigenous peoples rights advocates continue to collectively struggle for the defense of their rights even as these rights are violated almost every day.

One thing that indigenous rights activists in the Philippines have learned is that self- determination comes not just from the enactment of a law, but more importantly in uniting with others and militantly asserting this right through collective action. That is a valuable lesson that, although learned at the cost of hundreds of lives of indigenous peoples rights advocates, other organizations and indigenous peoples groups may learn from.

“We do not take these violations of our rights in silence or sitting down,” stated Anongos. “Our strength lies in our acting together for a common cause. We fight back.”###

This article was originally published on the i-Files #2: Indigenous Peoples’ Struggles in the Philippines.

Topmost photo courtesy of Rappler