HR/GENEVA/TSIP/SEM/2003/BP.

EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE

ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES

Geneva
15-17 December 2003

Organized by the Office of the United Nations High Commissioner for Human Rights

Implementation of the Indigenous Peoples

Rights Act (IPRA) in the Philippines: Challenges and Opportunities

Background paper prepared by

Ms. Ruth Sidchogan-Batani
Research coordinator, Tebtebba (Indigenous Peoples' International
Centre for Policy Research and Education)

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The views expressed in this paper do not necessarily reflect those of the OHCHR.
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Introduction

The Indigenous Peoples Rights Act (IPRA) in the Philippines, enacted in November
1997, is touted to be a landmark legislation in the protection of the rights of the indigenous
peoples. It is the first comprehensive law to recognize the rights of the indigenous peoples of the
Philippines. IPRA recognizes the indigenous peoples’ right to their ancestral lands and domain,
and specifically sets forth the indigenous concept of ownership. The law recognizes that
indigenous peoples’ ancestral domain is community property that belongs to all generations.
IPRA likewise recognizes the customs of indigenous peoples and their right to self-governance
and empowerment. But there had been many criticisms of IPRA especially in terms of its
conflict with other existing laws like the Philippine Mining Act of 1995 as well as with
customary laws. Despite the many imperfections of IPRA, however, many still believe that
IPRA can be a building block towards the sustained struggle for indigenous peoples rights.

The aim of this paper is to present an assessment of the implementation of the IPRA in
the country and discusses at length, the experiences and the effects of IPRA in Cordillera region.

The Philippine Indigenous Peoples

The Philippines, composed of 7,107 islands and islets spanning 1854 kilometers from
north to south, stretches from China to the north and Indonesian archipelago to the south. It is an
archipelago endowed with rich natural resources, a rich history, culture and many ethnolingustic
groups. The Philippines is the only country in Asia that has officially used the term ‘indigenous
peoples.’ (Rovillos, 2001). Of the more than 75 million Filipinos, about 12 to 15 million are
indigenous peoples or about 17-22% of the total population in 1995 (TABAK, 1990).

Indigenous peoples’ communities can be found in the interiors of Luzon, Mindanao and some
islands of Visayas. They either withdrew to the hinterlands in the face of colonization or they
stood their ground successfully and have 1maintained a close link to their ancestral past. They
comprise a diverse collection of more than 40 ethnolinguistic groups, each with a distinct
language and culture.

The indigenous peoples in the Philippines continued to live in their relatively isolated, self-
sufficient communities, at the time when most lowland communities had already been integrated
into a single colony under Spain in the 1700’s and1800’s. They were able to preserve the culture
and traditions of their “ethnos” or “tribe” as reflected in their communal views on land, their
cooperative work exchanges, their communal rituals, their songs, dances and folklore. Instead of
hierarchical governments, each of these communities had its own council of elders who
customarily settled clan or tribal wars to restore peace and unity.

But with the long years of colonial rule in the Philippines, from the 1700s to the early 1900s
and the influx of migrants into indigenous peoples territories, many influences have been
introduced that gradually changed the indigenous way of life. Indigenous communities at
present are still characterized by these phenomena but are definitely not in their pure and natural
state anymore, showing varying degrees of influence from outside culture.

Major Groups of Indigenous Peoples

According to Tunay na Alyansa ng Bayan Alay sa Katutubo TABAK (1990), there are more
than 40 ethnic groups that make up the Philippine indigenous population and these can be
classified into six groupings excluding the Islamic groups. The National Commission on
 3

Indigenous Peoples (NCIP), on the other hand, identifies 95 distinct tribes of indigenous peoples
in 14 regions of the country and includes the Islamic groups. Among the major groups are the
Mindanao Lumad , a generic term embracing all non-Muslim hilltribes of Mindanao. Lumad is a
Visayan term word that means “born and grown in the place”. Next are the Cordillera Peoples,
the indigenous population of the Cordillera mountain range which covers six provinces in the
middle of Northern Luzon – Abra, Apayao, Benguet, Ifugao, Kalinga and Mountain Province.
They are collectively called Igorots, meaning “mountain people” although some groups like the
Kalingas and Ifugaos refuse to be called Igorots except by their own tribes. There are eight
ethnolinguistic groups in the Cordillera , namely, Bontoc, Ibaloi, Ifugao, Isneg, Kalinga,
Kankanaey, Tingguian and Yapayao numbering a total of 988,000. (CPA, 1991). The Caraballo
Tribes : These are the five ethnolinguistic groups—Ibanag, Ilongot, Gaddang, Ikalahan and
Isinai, who together with the the Agta peoples inhabit the Caraballo mountain range in Eastern
Central Luzon. This range connects the provinces of Nueva Vizcaya, Quirino and Nueva Ecija.
The Caraballo tribes number roughly 500,000. Another major group are the Agta and
Aeta/Negrito - short, dark-skinned and kinky-haired peoples who are considered the earliest
inhabitants of the Philippines. Aside from having been perpetually pushed into the hinterlands of
Central Luzon. The Mangyan of Mindoro, a generic name for the six ethnolinguistic groups
spread over the mountains and foothills of Mindoro, an island southwest of Luzon, namely,
Batangan, Iraya, Hanunoo, Alangan, Ratagnon, Buhid and Tadyawan. They are described as the
first inhabitants of the island, and until today, they are one of the few groups that still practice a
pre-Spanish form of writing. The Palawan hilltribes are the non-Muslim tribal people of
Palawan island located further west of Mindoro. This group is composed of four ethnic groups –
Tagbanua, Batak, Kalamianes,Cuyonin and Ken-uy. Finally, the Muslim Groups in Mindanao
composed of 14 groups, namely, Maranao, Maguindanao, Tausug, Samal, Yakan, Sangil,
Palawani, Badjao, Kalibugan, Jama-Mapun, Ipanun, Kalagan, Molbog and Muslim.

The Indigenous Peoples Rights Act

It was in 1997 that the then President Fidel V. Ramos signed into law Republic Act (RA)
8371 or the Indigenous Peoples Rights Act (IPRA). The legal bases for the enactment of the
IPRA are found in the Philippine constitution as well as in international treaties and conventions.

The IPRA echoes the “progressive” provisions of the 1987 Philippine Constitution as can
be found in Section 2 of IPRA. As mandated by the 1987 Consitution, Sec. 22, Article II
provides for the recognition and promotion of the rights of IPs; Section 4, Article X11 provides
for the protection of the rights of IPs to their ancestral domains to ensure their economic, social
and cultural well being and the recognition of the applicability of customary laws governing
property rights or relations in determining the ownership and extent of ancestral domains.
Section 6, Article X111 which recognizes rights to ancestral lands and section 17 Article X1V
which recognizes, protects and respects the right to preserve and develop their culture ,
traditions and institutions are put in place in section II of the IPRA.

IPRA likewise upholds the UN Draft Declaration on the IPs which highlights on the
Collective Rights of IPs as well as the ILO Convention No. 169 or the Convention Concerning
Indigenous and Tribal Peoples in Independent Countries that legitimizes the demand of the IPs
for collective rights.

IPRA: A Landmark Legislation

The Indigenous Peoples Rights Act (IPRA) or Republic Act 8371 is said to be a
landmark law as it is considered to be the most comprehensive law that includes not only the
rights of Indigenous Peoples over their ancestral domain but to their rights to social justice and
 4

human rights, self governance and empowerment as well as cultural integrity. Various groups
believe that even with the imperfections of IPRA, it is the panacea to the chronic and
intensifying land problems among indigenous peoples in the country.

The Cordillera Peoples Alliance , a regional alliance of people’s organizations in the

Cordillera, Northern Philippines, holds a different view – that indigenous law cannot be
reconciled with national land law (state law) as it both are coming from different contexts that
include the history and views on land issue and land rights.

The IPRA Implementation: 1997-2003

After almost seven (7) years of IPRA implementation, assessment of it reveal a not-so
satisfactory performance. To date, the National Commission on Indigenous Peoples (NCIP), the
government agency in charge of the formulation and implementation of the law, has only
approved and released 11 certificate of ancestral domain title (CADT) out of the 181 CADT
applications, 17 certificates of ancestral land titles (CALT) out of 347 CALT applications.

The turtle-pace processing and approval of CADT and CALT applications has been a
major setback of the NCIP. In fact, the first issuance of CADT was in Bakun, a municipality of
northern Benguet in the Cordillera Administrative Region (CAR) in Northern Luzon, and only
in July 2002, after almost five years of IPRA implementation. This led certain groups to label
IPRA as no different from previous land instruments as it remains incomprehensible and like
other paper titles, remains cumbersome and bureaucratic. This is one reason why IPs who opted
to work within the state sponsored land instruments, either failed to have their paper titles or
have never perfected the titling requirements. Others say that the line of authority and
coordination is unclear and remains hierarchical. This can be alienating to indigenous peoples
whose cultures are based on simple democratic structures. What could partly explain for this is
the fact that the NCIP has inherited a ‘huge but largely inefficient’ bureaucracy from the defunct
government agencies who were responsible for indigenous in the pre-IPRA period (Leonen,
cited in Rovillos et. al., 2002). The Department of Environment and Natural Resources (DENR)
and later the Department of Agrarian Reform, were the first instruments used by the state to
“recognize” indigenous peoples rights to their lands. Through the DENR, Administrative Order
No. 2 (DAO 2) Series of 1993, which provides the issuance of Certificates of Ancestral Land
Claims (CALCs) and Certificates of Ancestral Domain Claims (CADCs) as a form of land
tenure. The DAR provides Certificate of Land Ownership Award (CLOA). DAO-2 seeks to
identify and delineate ancestral lands and ancestral domains, to qualify individuals, families,
clans or entire indigenous communities for CADC or CALC, and to certify that those qualified
applicants have the right to occupy and utilize the land. Apparently, even with the creation of the
NCIP, each agency has its own policy on the same issue, and as a result, problems of
overlapping and duplication even ‘tension’ between and among the agencies, are seriously
eroding coordination functions. This and other administrative as well as political squabbles
rocks the implementation. At another level, the IPRA has potential provisions that NCIP still has
to establish and explore how it will work. Section 50 of the implementing rules and regulations
(IRR) defines that need for the setting up of mechanisms that institutionalizes the IP
participation in the NCIP through a ‘consultative body.’ This is one structure which the people
can directly relate with and a potential channel for people’s participation, yet in the Cordillera
region, this body is still to be set up before the year ends (Interview with CAR-Regional
Director, December 2003). Theoretically, the body would deliberate on important issues and
concerns; it is also a policy making body as well as a body that takes care of monitoring IPRA
implementation. This is very important in the context where commercial interests are
continuously threatening indigenous territories even where IPRA is put in place. Yet its
realization and performance remains to be seen.
 5

In 1998, the NCIP came out with Implementing Rules and Regulations (IRR) of IPRA.
One of the most important and controversial provisions of the IRR is Section 5 (6), Rule II
which states that “the ICCs/IPs shall have the right to suspend or stop any project or activity that
is shown to have violated the process of securing free and prior informed consent, or have
violated the terms and conditions of such previously granted consent.”

The mining industry immediately expressed their apprehension over this rule. They
questioned the IRR’s bias for indigenous peoples and their priority claims over the country’s
minerals and other natural resources to the detriment of other sectors like the mining and power
industries (Manila Times, 1998; Business World, 1998 as cited in Rovillos, 2001). Five months
after, the NCIP issued Administrative Order No. 3 in October 1998. The order exempts all
leases, licenses, contracts and other forms of concession within ancestral domains existing prior
to the effectivity of the NCIP Administrative Order No. 1 (IPRA’s IRR), from the coverage of
IPRA’s provisions on free and prior informed consent. The AO also declares that all written
agreements with and/or resolutions by indigenous peoples communities prior to the effectivity
of NCIP AO 1 shall be considered as “free and prior informed consent.” The NCIP may also
issue a temporary clearance to individuals and companies pending resolution of conflicts within
ancestral domain areas.

This raised concerns and protests among indigenous peoples and advocates declaring
that the NCIP AO 3 as being “onerous” and a “sell-out” to the interests of the mining industry.
(Rovillos, 2001). In addition, the short duration (30 + 7 days) allowed to secure the FPIC is
insufficient; that allowing “interim clearances” and any form of written agreements to pass off
as consent is fraudulent, and that the idea of dolling out “gifts” in the form of showcase
development projects before and during the conduct of FPIC is ‘divisive and deceptive.’
(Ballesteros cited in Rovillos, 2001). An attempt to ‘correct’ this came in the form of another
Administrative Order – the AO No. 3 released on February 19, 2002. The law “expressly repeals
NCIP AO No. 3 Series of 1998.” Upon closer look, however, the major provisions such as the
leases, and other agreements entered into prior to the effectivity of NCIP AO No. 1 which the
indigenous peoples opposed from the very beginning , was not mentioned at all
( NCIP AO No. 3, Series of 2002).

The Impact of IPRA : the Case of Bakun in Benguet

Despite the adoption of the language of UN the Draft Declaration on the Rights of IPs,
the IPRA implementation has mixed effects on the indigenous communities. This part of the
paper will present the experiences of IPRA implementation in Bakun municipality in the
province of Benguet in the Cordillera Administrative region.

Bakun in the province of Benguet, north of the Philippines, got the first land title in July
2002 when it received from the National Commission on IPs their Certificate of Ancestral
Domain Title (CADT) covering an area of 29,400 hectares. Earlier, Bakun was issued its
Ancestral Domain Claim from DENR on March 13, 1998 through the Department
Administrative Order # 2. This order had the goals of delineating ancestral lands from ancestral
domain in indigenous communities.

Bakun is home to the Kankana-ey ethnolinguistic group who has been known to have
their own bantay-saguday or indigenous ancestral domain management systems. They are still
governed by their own indigenous socio-political institution that sustained their lives and
integrity through generations independent of the state’s national land laws. Being the first
 6

municipality in the entire county to receive its own domain title, Bakun has been cited as a case
of “good practice.” The ILO-INDISCO support to the community based Bakun Indigenous
Tribal Organization (BITO) which led the drawing up of the plans for sustainable development,
in many ways, was instrumental in facilitating the processing of the CADT approval.

The story of Bakun is one case where the people opted to work within the IPRA, a state-
sponsored framework of development. In a way, it has gotten the much needed support and
resources to fastrack the awarding of its domain title in time for the second state-of-the nation
address of President Macapagal-Arroyo in 2002. Indeed, the processing of the title was
exceptionally fast. This kind of support and political atmosphere is of course not available to
other indigenous communities listed to work for their ancestral domain titles. In Happy Hallow,
Baguio city, for instance even if it was listed as one of the pilot areas the certificates of ancestral
domain claim (CADC) back in 1990, under the then DENR, up to the present, has not yet
receive its title this time under the NCIP. The Happy Hallow community members laments the
fact that despite the preparations and work and even boundary compromises they have invested
to fulfill all the tedious and voluminous requirements to titling, it remains to be seen whether
they are to receive theirs. In the first place, the community also need to grapple with technical
and legal issues raised against their claims.

On the eve of Bakun’s acceptance of it’s CADT, tension has been felt over the use and
protection of land resources. The community were caught flat footed when it had to confront the
operations of the Bakun Hydro Electric Development Corporation an Aboitiz-owned Luzon
Hydro Corporation. The free prior informed consent (FPIC) as contained in Section 3, Part 111
of the IPRA law, has been invoked – ironically also invoked by the company. As one Bakun folk
would laments, ‘we wanted to have the CADT…an assurance of land security… a shield from
big companies…” Previous experiences like the story of the planned expansion of mining
explorations to Bakun by Lepanto Mining company was retold. The people are now confused as
to what and how much IPRA can offer in terms of securing their lands and resources. This issue
was documented a year ago by Malanes (2002) and apparently remains a lingering problem up
to the present. In a case study conducted by Malanes, it was documented that the ‘challenge’ to
the Bago community in Bakun is the assertion of their rights under IPRA especially the
provisions on “free prior and informed consent” - that even with IPRA “largescale development
projects are still being negotiated only within concerned government agencies without legitimate
community participation.” (Malanes, 2002). Upon closer look, a bigger problem is in the offing
found in a conflicting law – the Philippine Mining Act of 1995 that gives license to mining firms
to continue to engage in mineral prospecting and continue to push the implementation of their
mining plans even within ancestral domains.

Indigenous peoples experiences in other communities also show that there are negative
effects of IPRA. After almost seven years pf IPRA implementation, conflict stories abound. In
the Cordillera region alone, there has been an increase in boundary disputes. This can be
attributed to long standing conflicts over resources like water for irrigation and territorial
delineation. In the province of Abra, members of a clan who belong to the Masadiit tribe are in
conflict with another clan of the same tribe with regards to the delineation of their ancestral
domains. As IPRA stipulates ‘self delineation’ and customary laws to resolve conflicts, the
factions are “recreating and re-telling their respective version of their customary laws”(Rovillos
et al, 2001). Conflicts of the same nature has also been observed by the Cordillera Highland
Agricultural Resources Management (CHARM) a special project under the Department of
Agriculture that facilitates the Cordillera land titling processes through its land tenure
component -- in the municipalities of Atok, Buguias and Kibungan in the province of Benguet. It
was reported that the conflict resolution in Buguias and Mankayan, for instance is at a standstill
because of boundary disputes, as well as certain opposition from the local government units in
 7

relation to the powers and functions given to the council of elders. The council of elders is
considered in the IRR as a major traditional institution that is suppose to have a major stake in
the ancestral domain sustainable development protection plan (ADSDPP) implementation.
There is also confusion on the assertion of the bounds of indigenous communal and individual
rights. This is a result of state imposed political divisions and subdivisions in the past. A top
official in the province commented that the Buguias-Mankayan case should be treated as one
domain since they already have a concept of ‘space’ that are communal, individual lands prior to
the superimposition of political boundaries. These boundary disputes delay the issuance of the
CADTs. In an attempt to address these conflicts, concerned groups came up with resolutions
forwarded to appropriate bodies in the government (Regional Development Com. Res. # CAR-
049, s 2003). To date, the conflict in the Masadiit domain of the province of Abra remains
unresolved (Policy Dialogue, October 2003).

In other parts of Mt. Province, the setting up of ancestral boundary markers has
reportedly remained stalled as the people are against the superimposition of these land laws.

The conflicts in the IPRA implementation felt most at the community level has not
escaped the observation of the UN Special Rapporteur (SR) on the situation of Human Rights
and Fundamental Freedoms of IPs in his mission to the country last December 2002, who said
that while the Philippines is the only country in Asia that has a law on IPs, it’s “inadequate
implementation is still an unfulfilled promise,” particularly because it may enter into conflict
with other laws such as the Mining Act of 1995 and because IPRA itself contains provisions that
do not favor the IPs entirely. Even Atty. Marvic Leonen, a legal luminary on indigenous peoples’
rights who used to hold the view that the IPRA as a legal instrument can be used as a stepping
stone towards a “more progressive level of political discourse” now said that IPRA is a “heavily
compromised law.”(Rovillos et al, 2002). Reasons he provided are that the IPRA does not offer
any fundamental solution to the conflict between customary and state law and that IPRA is an
‘“analgesic…directs attention away from the significant issues confronting indigenous
peoples.”(Rovillos et al, 20020). These agree well with the earlier fear of the Cordillera Peoples
Alliance- that IPRA will bring more harm than solution to the chronic land problems in IP
territories.

CONCLUSION

The introduction of legal laws and policies from the colonial period to the present time,
saw the superimposition of the Western system of land ownership to Indigenous Peoples. Time
and again, the state has ignored the customary land laws developed by the indigenous
populations that has sustained them for centuries. Today, it can not be denied that it is because of
these sustainable resource management practices that the last remaining biodiverse forest
resources are in IP territories. History has proven that the state’s attempt to enforce its own legal
system in the guise of ‘development’ has displaced the IPs – the Cellophil Resource
Corporation, the Chico dam, the Ambuklao and Binga dam experiences are illustrative. To many
IPs who have seen and experienced such development policies of the state, has somehow
learned to work within this state-sponsored legal framework – and it has been successful to a
certain extent. For indeed, the IPRA has worked for some IPs and non-IPs – especially those
who are in power and who see advantage from the process; to many IPs it has not been working
in their favor. In the first place, these laws has always been biased against indigenous concepts
of ownership. Perhaps taking a step backward to once again look at these state sponsored laws,
to be able to discern what to reform in these legal texts is but proper. The IPs has done more
than enough to adjust or even to appropriate themselves with these laws, now it is time to do the
other way around – to reform the legal texts.
 8

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