Posts Tagged ‘property rights of indigenous peoples in the Philippines’


 

 

 

 

 

 

The problems that plagued the earlier agrarian reform program (Comprehensive Agrarian Reform Program or CARP) which started in 1988 also adversely affected IPRA’s implementation including identification of beneficiaries, inadequate budgets, agency capture, and the opposition of affected parties including settlers, corporate interests and armed anti-state groups.  If identification of agrarian reform beneficiaries in the lowlands proved to be difficult, the problems multiplied with respect to ancestral domains in the frontiers[1]

 

A clear understanding as to who the indigenous peoples are and where they can be found (and what lands constitute their ancestral domains) is both a technical and administrative matter.  Apart from being hobbled by meager funds, the NCIP also lacks adequate technical knowledge and skilled personnel. Padilla (2007) also relates how settlers and corporate interests together with conniving national and local officials subvert IPRA and operate business ventures within ancestral domains.  The usual device is for officials to certify that a certain area is not populated by IPs or is not part of a claimed ancestral domain.  Divide and rule tactics are also resorted to wherein scab IP leaders and communities show compliance with the ‘free and prior informed consent’ (FPIC) provision of the law. 

 

The FPIC provision of the IPRA presents good opportunities for strengthening the bargaining position of indigenous communities vis-à-vis external interests such as corporations who wish to utilize the resources within ancestral domains.  As provided for by the law, FPIC means the ‘consensus of all members of the ICCs/IPs to be determined in accordance with 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” (IPRA Sec. 3).  The consensus proviso is a strong measure since the consensus of everybody in the community is required to allow the entry of external interests into the ancestral domain for extractive activities.  It also enables the indigenous community to forge the best terms with external parties.  It may also be used against the misrepresentation of scab leaders and community factions.  For the full benefit of FPIC to be realized, however, the IP community must be united and organized and indeed informed of the pros and cons of a proposed project.  This is a necessity since the FPIC consensus proviso also has a downside: a single person within the community can veto a project even if it was deemed beneficial and equitable by the rest of the community.  The assent of the veto player may have to be obtained through side-payments.[2] 

 

The opposition of armed anti-state groups like the New People’s Army and the Bangsa Moro movement to the IPRA must be explained.  Padilla (2007) avers that for the NPA, IPRA puts its natural constituency, the poor or landless peasantry, at a disadvantage in the competition of land on the frontier.  Furthermore, the titling of ancestral domains threatens to remove large areas theoretically available from the NPA’s own revolutionary land reform program.  On the ground, NPA fighters had continuously cautioned IP communities against engaging in the ancestral domain titling process.  In Mindanao, NCIP surveyors and community volunteers are warned and harassed, and their mapping equipment was confiscated.  Affiliated legal organizations have also consistently rejected and opposed ancestral domain delineation and the IPRA. To them, the only legitimate issues to be raised with respect to the frontier lands were the Philippine military’s human rights violations during anti-insurgency operations.   Consequently, they demanded the scrapping of IPRA.

 

Another political force, the Bangsa Moro armed movement for self-determination fears that indigenous land claims in Mindanao might jeopardize its own aspirations for their own ‘ancestral territory’.  One must note that indigenous minorities in Mindanao are generally composed into two groups—the Islamized peoples who call themselves Bangsa Moro and the non-Islamized IPs known collectively as the lumads.  As things currently stand, only the lumads have expressed interest in pursuing ancestral domain titling.  The Bangsa Moro groups—the Moro Islamic Liberation Front (MILF) and the Moro National Liberation Front (MNLF)—have resorted to peace negotiations with the government in pursuit of their aims.  The MNLF signed an agreement with the government in 1996 while the MILF’s negotiations with the government are currently at an impasse precisely on the question of ancestral territory. 

 

Cordillera Administrative Region

 

 

Other unintended developments stemmed from IPRA’s enactment.  It has engendered disunities among the indigenous peoples.  One source of dispute is how to view IPRA.  The Cordillera Peoples’ Alliance (CPA) for instance considers IPRA as a ‘master act’ of deception given the persistence of the Regalian doctrine.  On the other hand, IP organizations and supporting non-government organizations (NGOs) support IPRA while recognizing its imperfections. They see IPRA as a legal stepping stone towards further progress.  The negative effects of IPRA are felt most at the community level.  In the Cordillera, for example, there had been an increase in boundary disputes and conflicts over resources (e.g., water for irrigation). 

 

Cordillera Peoples Alliance (CPA) logo

 

 

The IPRA also ‘inspired’ non-IP communities such as the Bantoanons in Romblon (migrants from Batangas) to claim imagined ethnic identities as a means to claim control over valuable land.  There is also the view that these conflicts come from the adoption of a generalizing concept of ancestral domain, that is, the notion that ancestral domain is a static or fixed concept of a communal territory, with persistence of indigenous socio-political institutions.  The concept ignores the diversity and dynamism within many indigenous communities.  It fails to recognize that many indigenous peoples have already adopted western property regimes and do not care much about domains.  Still, some experts fear the IPRA could possibly lead to the privatization of the commons.  These different views suggest that while progress had been achieved with the passage of IPRA, much needs to be done.  There is apparently a need to adopt an area- and culture-specific ancestral land and domain policy that takes local nuances, processes and tenurial systems into consideration (ADB 2002).

 


[1] The then NCIP executive director reported that the initial problem of beneficiary identification has since been resolved.  The greater problem, she intimates, is the lack of coordination between different government agencies issuing administrative titles to land.  For this reason, competing tenure and/or ownership instruments were issued over the same land area and have led to disputes between IPs and agrarian reform beneficiaries.

[2] This discussion on the implications of the FPIC provision of IPRA was suggested by Dr. Antonio de la Vina, dean of the Ateneo School of Government and member of the Empowerment of the Poor Project advisory panel.


The Bagobos, one of the indigenous peoples in southern Philippines

The property rights system of the Philippines is a product both of its colonial history and recent developments. 

Painting by Manuel Panares of Ferdinand Magellan’s arrival in the Philippines (from everythingcebu.com)

The Spanish colonial state sought to impose property rights regimes that were alien to those previously instituted by the indigenous peoples of the archipelago, which included stewardship, usufruct, and communal ownership.  In the process, massive asset theft typical of all colonial ventures occurred in the country.  The main object of theft and ownership then was arable land.  The American colonial state introduced the distinction between public and inalienable land and privately-owned and alienable real estate.  In the process, several indigenous peoples (IPs) in the highlands were disenfranchised of their so-called ancestral domains.  The 1946-1972 post-colonial state continued these Western-originated property regimes even as the asset structure diversified over time.  In general, access to political power guaranteed security of property rights and elites at various levels consolidated their political and economic positions.

A mestizo family during the Spanish colonial period (from filipinaimages.com)

More recent developments shape the terrain for the poor’s struggle for property rights in two major ways.  Population growth, increased economic activity, continuing internal warfare, and worsening environmental degradation combined to make the struggle for poor people’s rights a more difficult one.  The need to ensure economic growth in response particularly to population growth and the opportunities offered by globalization (which includes the whole-scale revitalization of the mining and other extractive industries) increases demand for resources and pressure on property rights of the marginalized.  This increased demand has specifically led to outsider (settler and corporate) encroachments on IP lands and resources.  Environmental degradation effectively decreases the supply of valuable resources, increases the value of ‘untainted’ assets, and intensifies the contest for control over these same assets.  Together with environmental problems, internal warfare has effected a significant movement of poor people from war-torn areas into more ‘peaceful’ jurisdictions and the nation’s urban centers (swelling the urban poor population in the process). 

Our previous discussion showed how the imposition of foreign (through colonialism) property rights regimes and subsequent enactments of the post-colonial state have combined to either deprive or weaken the indigenous peoples’ rights over their ancestral lands.  To this end, it is important to establish if this is the main cause of poverty among the indigenous peoples in the country.

The Asian Development Bank (ADB) believes there is no reliable data available at the national level as regards the relationship between ethnicity and poverty.  Using extrapolation methods, ADB (2002) found tentatively that save for a limited number of regions, indigenous peoples’ (IPs) are not likely to comprise the absolute poorest groups in the Philippines.  The incidence of poverty in IP regions did not improve substantially between 1988 and 1997 and has in fact worsened in regions that registered the highest growth rates in average income.  However, it is important to note that Philippine indigenous notions of ‘poor’ and ‘poverty’ generally differ from conventional understanding.  IPs often emphasize that they have resources coveted by outsiders.  Thus, impoverishment can be defined as the deprivation of resources—the dispossession from ancestral domains and the consequent breakdown of communal structures and institutions—that they already have rather than the absence of additional resources that might add to their well-being (Plant 2002).

 

The Spanish colonizers introduced the notion that land was a commodity which can be held as property, bought and sold, with the owner having the right to use and dispose of it as he sees fit.  The American colonial government sustained this concept and also upheld the idea that the state had primary decision-making power over the land and the natural resources it contains.  Several laws and policies were enacted to institutionalize these precepts, the earliest being the 1902 Land Registration Act No. 496, which required private persons and corporations to register the lands they occupied.  Afterwards, several land acts were passed to encourage migrants to settle in the then-sparsely populated parts of the country like Mindanao.  

Original land title in the Philippines issued during the American colonial period

For example, the 1903 Public Land Act No. 926 allowed individuals and corporations to apply for homesteads in Mindanao.  These laws did not consider the situation of the frontier-dwelling indigenous peoples (IPs).  For one, the concept of having to register their land was totally alien to the latter since land was held in common by their communities.  In contrast, colonial land laws recognized only individuals and corporations as juridical entities.  The IPs were also disadvantaged by their illiteracy; registration required a written application signed and sworn to by the applicant (Padilla 2007).

American colonial land laws consequently classified many of the indigenous peoples’ lands as ‘public’ or ‘unoccupied, unreserved, unappropriated agricultural lands’ that government could hand over as homesteads to settlers.  While during the three centuries of Spanish colonial rule, Mindanao did not experience much in-migration, this changed during the American colonial period as settlers from Luzon and Visayas were attracted by the free homesteads.  By 1948 (after only two years of the Philippine Republic’s existence), Mindanao provinces which previously had IPs as their majority population no longer did so (Rodil 1992).

Mindanao island in southern Philippines

The laws of the Philippine Republic up to 1986 showed contrary trends towards recognizing the IPs and their special ties to the land.  The 1973 Constitution, released under the Marcos dictatorship, acknowledged the IPs’ unique character.  However, Marcos also issued Presidential Decree No. 705, which classified land with a slope of 18% and over as inalienable public forest land and thus placed most of the areas occupied by IPs beyond their control.  Another decree (PD No. 410) had expressed the intention of protecting the ancestral lands of IPs but no implementation orders were issued.  After the dictatorship’s fall, the 1987 Constitution guaranteed the protection of IPs’ rights to their ancestral domains and confirmed the validity of customary laws related to the land.  The CARL of 1988 exempted IP areas from agrarian reform[1].  But it was only in 1993 when the Department of Environment and Natural Resources (DENR) issued Administrative Order No. 2 that IPs gained documentary recognition of claims to their ancestral domains.  Under this order, an indigenous community can apply for a certificate of ancestral domain claim (CADC) for as long as it could ensure the proper protection and management of natural resources within the domain.  Under this order, 85 CADCs covering 970,908 hectares had been awarded according to UP Manila professor of anthropology Abe Padilla.

The enactment of the Indigenous Peoples Rights Act (IPRA or Republic Act No. 8371) in 1997 represented the high point of the IPs’ struggle.  The IPRA created the National Commission on Indigenous Peoples (NCIP) which was empowered to issue certificates of ancestral domain titles (CADTs) and certificates of ancestral land titles (CALTs).[2]  The property rights created under IPRA were unique; ancestral domains are private but community property which belongs to all generations of IPs and therefore cannot be sold, disposed or destroyed.  The rights of ownership and possession of IPs to their ancestral domains include rights of ownership, right to develop the land and its natural resources, right to stay in the area and against involuntary displacement and, in case of displacement, the right to return to the same area, right to regulate the entry of migrants, right to safe and clean water and air, right to claim parts of the ancestral domains which have been reserved for various purposes (except those reserved for common and public welfare and service) and the right to resolve land conflicts in accordance with customary law (IPRA, Sec. 7).

With respect to ancestral lands, they have the right to transfer land or property rights to and among members of their community, and to redeem those lands that have been acquired from them through fraud, within a period not exceeding 15 years from date of transfer (IPRA, Sec 8).  Section 12 relaxes the ‘time immemorial’ proviso by recognizing ancestral lands held for not less than 30 years prior to IPRA’s effectivity, provides that IPs have the option of securing individual title to ancestral lands under Land Registration Act 496, and included ancestral lands even with an 18% slope as alienable agricultural lands.

However, the law also provided significant limitations on IP property rights.  Section 56 provided that all pre-existing property rights within ancestral domains shall be recognized and respected.  The law therefore automatically retains land leases, contracts and permits granted to mining companies, loggers, ranchers, among others.  Only upon the expiration of the contractual usufruct rights of non-IPs can the IPs (awarded with CADTs) decide whether they will be extended.  Furthermore, the law also declares that IP rights to development of natural resources within ancestral domains are only priority rights.  Non-IPs can use and develop these resources for up to a period of 50 years.  Section 58 refers to environmental protection and allows for the priority use of ancestral domains as critical watersheds, mangrove areas, wildlife sanctuaries, and other protected areas provided IPs fully participate in deciding this priority.

Eminent domain is the legal prerogative of the state to appropriate or compulsorily purchase landed property for a government project or public purpose or interest.  IPRA provides that IPs cannot be relocated from their ancestral domains without their free and prior informed consent (FPIC) except through eminent domain.[3]  The law’s limitations stem from the adoption of a fundamental notion—that of public domain.  Critics aver that public domain is the outcrop of a colonial doctrine (the so-called Regalian doctrine) that all lands that lacked proof of ownership when Spanish colonialists arrived in the archipelago in the 16th century, automatically came into the possession of the estate.  They contrapose the notion of ‘native title’, which argues that ancestral domains were never under the colonial state’s jurisdiction.[4]  IPRA actually recognizes that ancestral domain rights of IPs rest on native title. 

Nonetheless, these lands must be considered part of the public domain and be under the jurisdiction of the post-colonial state.  Otherwise, the Republic cannot pass any law pertaining to these lands if it does not have jurisdiction over them.  If the Philippine state does not have jurisdiction, then another state controlled by IPs must be created to recognize and protect IPs ancestral domain rights.  Absent such an alternative state, IPRA represents a pragmatic compromise between majority and minority rights and interests.

 

 

 

 

 


[1] This legal provision has not prevented the issuance of CLOAs on ancestral lands leading to disputes and conflicts between indigenous communities and agrarian reform beneficiaries.

[2] Ancestral domains are lands that IP communities own collectively while ancestral lands are areas claimed by indigenous individuals, families, and clans (ADB 2002).  Ancestral domains are more extensive than ancestral lands (Padilla 2007).

[3] If IPRA provides exemption of ancestral domains from the state’s power of eminent domain, it will violate the constitutional proviso of ‘equal treatment before the law’ since non-IP lands are not exempt.

[4] Apparently, the debate over ancestral domain claims is not new.  The American colonialists administered the indigenous areas of Mindanao and Sulu separately from the Christianized areas of the archipelago in recognition of the fact that the Spanish colonialists did not have full and effective control over the same areas.  In 1904, the so-called Cariño doctrine surfaced the concept of ‘native title’ and argued that the Regalian doctrine itself states that IP lands are private lands and were not part of the public domain (Information offered by LSK representative, FGD with select representatives from government, CSOs, and academe, 1 June 2007, Ateneo de Manila Loyola, Quezon City).

[5] The NCIP executive director reported that the initial problem of beneficiary identification has since been resolved.  The greater problem, she intimates, is the lack of coordination between different government agencies issuing administrative titles to land.  For this reason, competing tenure and/or ownership instruments were issued over the same land area and have led to disputes between IPs and agrarian reform beneficiaries.

[6] This discussion on the implications of the FPIC provision of IPRA was suggested by Dr. Antonio de la Vina, dean of the Ateneo School of Government and member of the Empowerment of the Poor Project advisory panel.