Original IPs’ rights to their ancestral domain in Bangsamoro

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The International Day of the World’s Indigenous People (IP), August 9, was celebrated at the University of Asia and the Pacific with a roundtable discussion on “Empowering our Tribal Communities and Indigenous People in the Philippines.” I represented the Philippine Ambassadors’ Foundation at this forum.

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The Ateneo de Manila Law School also held a symposium on the theme: “Breaking free: Situating Indigenous Peoples Rights in the Bangsamoro Basic Law (BBL). “ The speakers at this forum included leaders of two groups of Lumads: those already covered by the ARMM and those who may be covered by the proposed Bangsamoro.

The sensitive issue raised in the forums is the right of the Lumad to their ancestral domain. They are the original Indigenous People (IP) in Mindanao as indicated by the rivers and landmarks which have retained their original Lumad names. The right to ancestral domain is central to the Lumad identity, according to the Mindanao Elders’ testimony:

“We, Lumad, believe that land is the beginning and the end of our life and our race. Magbavaya created land for our race to live on. No one can accept it except D’Wata who guards our land for us. Our race owns the land as proven by our ancestors who from birth till death cultivated it. They are now buried in this land of their birth. To us, it is a concrete proof of our ownership of the land, in much the same way as we are now nourishing and living on it.” (Dyandi Peace Pact Declaration of Principles, Lumad Datus in defense of Mt. Apo from the PNOC Geothermal Project, 1989)

The United Nations General Assembly approved the Declaration on the Rights of Indigenous Peoples on 13 September 2007. While this Declaration is not yet part of customary international law, they contain the norms that states have committed themselves to implement. Among the rights recognized is the right to ancestral domain.

Long before this UN Declaration, the Philippines had passed laws under four of our presidents to recognize the interests and protect the rights of our cultural communities. The 1973 Constitution provided that “The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies.”

The 1987 Constitution goes further and contains six provisions on State policies to protect their rights, among them the Article which provides: “The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.”

Republic Act 8371 (The Indigenous Peoples’ Rights Act of 1997 or IPRA) has implemented the aforesaid State Policies, including the right of our IPs to their ancestral domain and ancestral lands. IPRA recognizes the indigenous concept of ownership which sustains the view that “the ancestral domain and all resources found therein shall serve as the material bases of their cultural integrity.”

This concept includes both the ancestral domain and ancestral lands. Ancestral domains are the ICCs/IP’s private but community property which belongs to all generations and therefore cannot be sold, disposed of or destroyed. Ancestral lands refer to lands occupied, possessed and utilized since time immemorial by individuals, families and clans who are members of ICCs/IPs. The rights to these lands may be transferred only to members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

Republic Act No. 9054 (The ARMM Expanded Organic Law of 2001) also contains provisions protecting the “indigenous cultural community.” Under this basic law, the ICC includes both (a) the Tribal peoples defined as those citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community and (b) Bangsa Moro people or those citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions.

With this definition, the ARMM law treats the Lumads and the Bangsa Moro on an equal basis. It provides for example, for the establishment of both the Shariah Courts and the Tribal Courts and recognizes the rights of both communities to their ancestral domain, although there has been no implementation thereof. The ARRM has been a failure in this regard.

In contrast, the Framework Agreement on the Bangsamoro (FAB) has removed the concept of the Lumad’s rights to their ancestral domain. Part III on Powers, Par. 6 provides only that “The customary rights and traditions of indigenous peoples shall be taken into consideration in the formation of the Bangsamoro’s Justice system. This may include the recognition of indigenous processes as alternative modes of dispute resolution.”

The Lumad leaders have noted that their rights have been placed under the exclusive powers of the Bangsamoro. Although they are not “Moro”, the FAB has included them in the new definition of the Bangsamoro Identity, which now includes the “original inhabitants“ of Mindanao and the Sulu Archipelago and its adjacent islands including Palawan, and their descendants who shall have the right to identify themselves as Bangasmoro by ascription or self-ascription.

The Lumads emphasized at the forums that they want peace in Mindanao and that they are not “spoilers”or “latecomers” in the peace process although their long struggle for recognition has not been an armed struggle but a peaceful one. They assert that they have always considered themselves to be Filipinos and that their separate cultural identity be expressly recognized as is provided for in the ARMM law. They maintain that they have vested rights to their ancestral domain as recognized by Philippine jurisprudence in the case of Chico v. Insular Government. They, therefore, seek implementation of their vested rights to their ancestral domain. Indeed, the theme of the 2014 International Day of the Worlds’ Indigenous Peoples is timely: “Bridging the Gap: Implementing the Rights of Indigenous Peoples.” Two decades ago, the Philippines took a leadership role in this endeavor, hosting an international conference during the First Decade of the World’s Indigenous Peoples (1995-2004). The meeting gathered together leaders of IP’s from all the continents, among them Nobel Prize Laureates Wole Soyinka of Nigeria and Rigoberta Menchu of Guatemala, to draft a charter on IP rights. This was an NGO conference directed by Cecile Guidote, and supported by the Department of Foreign Affairs. The Philippines’ IPs took an active part and shared indigenous knowledge and cultural traditions.

It is time again to look at our indigenous cultural communities’ unnoticed contributions to our nation building and give them their due. The proposed Bangsamoro should not take a step backwards.

Ambassador Bautista is Professor of Law at the Ateneo de Manila University and Philippine Christian University.

The PAFI columns written by ambassadors who are foundation members are published under an agreement between PAFI and The Manila Times.

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2 Comments

  1. The Lumads rights should be the first thing consided in the agreement. However those Lumads will suffer with this agreement between two disinterested parties.