Idea Transcript
Legal Ground: Land and Law in Contemporary Taiwan and the Pacific • 2013/09/11-12
Recognition and Contestation of Indigenous Land Rights in the Philippines Shu-Yuan Yang 楊淑媛
Abstract The concept of indigeneity has strong historical connections with settler colonialism. However, it receives state recognition in the Philippines in the late 1980s even though the country is not a former settler colony. The success of local land rights movement in drawing discourses from the burgeoning development of global indigenism or indigenous transnationalism has contributed to bringing about such recognition. This article investigates the historical processes through which the concept of indigeneity gained state recognition in the Philippines and analyzes the making of the Indigenous Peoples’ Rights Act (IPRA) and the contestation it generates. The challenge of the IPRA’s constitutionality in the Supreme Court has resulted in the diminishment of indigenous peoples’ rights to natural resources within their traditional territory. In my fieldsite, the Bugkalot (Ilongot) were awarded the Certificate of Ancestral Domain Title (CADT) in 2006, and yet in 2008 the construction of a gold mine in their ancestral domain began without their free, prior, and informed consent. Conflicting state mandates and inadequate capacity in state institutions have produced dispossessory effects despite the existence of legal institutions that were designed to protect indigenous land rights.
Conference draft. Please do not cite without the author’s permission.
Recognition and Contestation of Indigenous Land Rights in the Philippines Shu-Yuan Yang Institute of Ethnology, Academia Sinica The concept of indigeneity has strong historical connections with settler colonialism. However, it receives state recognition in the Philippines in the late 1980s even though the country is not a former settler colony. The success of local land rights movement in drawing discourses from the burgeoning development of global indigenism or indigenous transnationalism has contributed to bringing about such recognition. This article investigates the historical processes through which the concept of indigeneity gained state recognition in the Philippines and analyzes the making of the Indigenous Peoples’ Rights Act (IPRA) and the contestation it generates. The challenge of the IPRA’s constitutionality in the Supreme Court has resulted in the diminishment of indigenous peoples’ rights to natural resources within their traditional territory. In my fieldsite, the Bugkalot (Ilongot) were awarded the Certificate of Ancestral Domain Title (CADT) in 2006, and yet in 2008 the construction of a gold mine in their ancestral domain began without their free, prior, and informed consent. Conflicting state mandates and inadequate capacity in state institutions have produced dispossessory effects despite the existence of legal institutions that were designed to protect indigenous land rights.
In the past few decades, the increasing visibility of indigenous peoples on the political scene both globally and locally has been an important phenomenon. The growth of indigenous movements has led to constitutional and legislative reforms in several countries in order to rectify the problem of structural inequalities endured by indigenous peoples. The issues of land rights, autonomy and even sovereignty figure significantly in the attempt to grant restorative justice to indigenous peoples. One important reason for the development of global indigenism is the prevalence of colonial situation, as the concept of indigeneity has strong historical connections with settler colonialism (de Oliveira 2009; Sissons 2005). However, this article will examine the recent rise of indigenous rights in a country which is not a former settler colony―the Philippines―and to see whether new legislations concerning indigenous peoples effectively give them more land security. 1
“Indigenous Peoples” of the Philippines: A Historical and Political Construction Unlike Taiwan or Australia, the Philippines is not a country of settler colonialism. Settler colonies are not primarily established to extract natural resources and surplus value from indigenous labor. Rather, they are premised on displacing indigenes from (or replacing them on) the land. A determinate feature of settler colonization is that the colonizers come to stay ― invasion is a structure not an event. As a result of it, the natives or the indigenous peoples are relegated to the status of minority (Wolfe 1999, Moran 2002). Since the Philippines is not a country of settler colonialism, the Spanish (1565-1898) and the American (1898-1946) colonizers came mainly to extract natural resources and economic value from the colony rather than to stay, how there came to be so many “cultural minorities” or “indigenous peoples” and how lowlanders came to enjoy political and economic privileges in the nation become important questions we should ask. The term “indigenous peoples” gained state recognition in the Philippines only in the late-1980s. Before that they were refered to as infidels, pagans, savages, non-Christian tribes, the national cultural communities or national minorities. The evolution of various terms pertaining to these people was a result of specific colonial history and government policies relating to these people. The term therefore reflects how indigenous peoples were regarded and treated in the past by the central government and the general population. In fact, changes in terminology came about because of the enactment and implementation of government policies and the corresponding creation of agencies for their promulgation. These policies cause the evolution, use, and adoption of terms that pertain to indigenous peoples. When the Spaniards colonized the Philippines in the 1500s, the Spanish colonial government invaded the valleys and facilitated the opening of flat areas for large-scale agricultural production principally to raise tribute (taxes) for itself and Spain. The Church, with the full support of the government, propagated Catholicism among the people. Those who resisted invasion and Christianity were described by the colonizers as infidels, uncivilized, pagans, and other terms bordering on invectives. This antagonistic treatment was a general result of the refusal of the natives to “embrace 2
the cross” and “accept the sword” (R. Rosaldo 1978a, Salgado 1994, Scott 1982). The Spanish classificatory dichotomy of the Indios (converted natives) and other natives marked the beginning of the isolation of the “other” into the present indigenous people label. This dichotomy was further associated with the lowland and upland division. In The Ethno-History of Northern Luzon (1962), Keesing concluded that lowland and upland division in Northern Luzon resulted not from separate migrations but from the Spanish colonial practice of achieving domination over the valleys while leaving the hills beyond their control. This is generally true in other parts of the country, too. Spanish colonization created the cultural separation of lowlanders and uplanders in the Philippines. In 1898, the Spanish ceded (more appropriately, sold) the control of the Philippines to the Americans, The Americans, with a much more effective centralized administrative system and superior military force, gradually entered the areas that were never brought under Spanish control. These mountainous areas, occupied by the non-Christians, were rich sources of minerals and timber. Roads were constructed and new administrative system was imposed. Furthermore, Christianization was an important aspect of American policy, only now it was Protestantism that was propagated. The Americans adopted the term non-Christians to refer to all people whom the Spaniards failed to convert to Catholicism. This encompassing category included the Muslims in the south, which were converted to Islam before the Spanish conquest. Resettlement and education were used as strategies to win the natives who were not Christianized by the Spaniards. On October 2, 1901, the Bureau of Non-Christian Tribes (BNCT) was created by the colonial administration to “investigate the conditions of the pagan and Muslim tribes, to make recommendations for legislation and to study the ethnology of the country…to govern them better and more easily” (Taft et al. 1901: 38; Rodriques 2010). Since Christians were the majority population, the non-Christians were referred to as the cultural minority. In 1903, the Bureau of Non-Christian Tribes was replaced by the Ethnological Survey for the Philippine Islands. The Philippine Bill of 1913 granted greater responsibility in government to Filipinos. The policy sought to remove the isolation of the mountain people for a more rapid spread of civilization, eliminate the distrust existing between the hill people and the civilized people of the plains, establish 3
mutual regard and respect, bring them into close association and contact with each other to secure feelings of nationality, and remove the barriers erected in the past between them (Philippine Commission 1915, quoted from Aquino 2004: 108). This policy justified the migration and resettlement of Christians into areas occupied by non-Christians. In 1917, the Bureau of Non-Christian Tribes was reestablished under the Department of the Interior. Its purpose was to speed up the assimilation of non-Christians into mainstream Filipino society. In the mid 1930s, the Philippine Commonwealth, the international government established for a ten-year period preparatory to the formal granting of Philippine Independence by the United States, was composed of elite Filipinos seeking to assert their fitness to govern. They saw the existence of tribal peoples as an embarrassment and considered that they no longer existed to an extent sufficient to justify the continuation of the Bureau of Non-Christian Tribes. Hence, President L Quezon abolished the Bureau of Non-Christian Tribes in 1938. When Filipinos took over the reign of government after Philippine independence in 1946, they continued the bureaucratic agenda of the Americans. The general idea was that integration and assimilation were the best possible options for the non-Christian cultural minorities. However, the so-called non Christian problem re-emerged after a “rebellion” initiated by Muslims broke out in Mindanao in 1956. To appease the Muslims, Congress passed a law creating the Commission on National Integration (CNI) in 1957. The purpose of establishing the CNI was to include the “national cultural communities”, which included both Muslim and Non-Muslim cultural minorities, in the body politics, and to “effectuate in a more rapid and complete manner the economic, social, moral and political advancement of the Non-Christian Filipinos” (Eder and McKenna 2004: 61). The Commission on National Integration (CNI) existed until the early Martial Law years.1 It was abolished in 1975 to give way to the Office of the Presidential Assistance on National Minorities (PANAMIN). The PANAMIN’s responsibility was to implement socio-economic projects to “enable minority groups to cope with the problems of the modern world while retaining their identity and human dignity” (Aquino 2004:111). This brought back the institutionalization of the term national minority. The activities of the PANAMIN mainly targeted Non-Muslim minorities 1
Martial Law was declared in September 1972 and was in force until January 1981. 4
and neglected the Muslims in the south. There, the Pgilippine government created the Ministry of Muslim Affairs (MOMA) in 1981. In 1981, the PANAMIN and the MOMA merged into the Office of Muslim Affairs and Cultural Communities (OMACC). However, the Office was short-lived. It was abolished just after the popular People Power revolt in February 1986. In its place, three Offices were created: the Office of Muslim Affair (OMA), the Office of Northern Cultural Communities (ONCC), and the Office of Southern Cultural Communities (OSCC). As before, the local offices of these various agencies were lightly staffed and received little regular funding. Since President Marcos announced the implementation of Martial Law in 1972, the Philippines has been at the forefront of NGO development. A number of NGOs actively participated in ethnic minorities’ fight for rights and wellbeing, and they intentionally drew discourses from the burgeoning development of global indigenism or indigenous transnationalism to support local land rights movement. The anti-dictatorship movement successfully ousted President Marcos in 1986. With new processes of democratization and the active involvement of NGOs, the indigenous peoples were able to draw support from both the Catholic Church and the media (Hirtz 2003; Bennagen and Royo 2000). The support became popular as manifested in the Philippine Constitution of 1987 where the word “indigenous” was used and enshrined in the basic law of the country. In the section “Declaration of State Principles”, it announces: “The state recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” (Article II, Section 22). The Philippine Constitution of 1987 also recognized indigenous peoples’ rights to their ancestral territories and their rights to live in accordance with their own traditions, religions, and customs. From the foregoing discussions, it is evident that the nomenclature for indigenous peoples evolved through various terminologies used for people who have historically resisted assimilation, particularly Christianization, during the Spanish and American colonial periods, and further perpetuated by the succeeding Philippine government regimes. These people are usually identified with the Philippine Uplands (hinterlands or mountain areas), the lowlands being associated with the “majority” ethnic groups and Filipino mainstream society. Colonial rule is largely responsible for this cultural and geographical dichotomy, and the concept of “indigenous peoples” is 5
not a unitary, “natural”, or essentialized category but a historical and political construction. It is also a highly constested concept, as shown in the following process of the making of the Indigenous Peoples’ Rights Act and the dispute it generates in the Philippines.
The Indiginous Peoples’ Rights Act (IPRA) and Its Challenges Despite provisions in the Philippine Constitution of 1987 for the “recognition and protection of the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being”, neither the Executive nor the Legislative branch of the government made substabtial efforts to enact a law for the purpose. In 1993, the Department of Environment and National Resources (DENR) initiated the operationalization of the Constitutional provision on indigenous peoples. It issued Department Administrative Order No. 2, series of 1993 (DAO2, s. 1993) promulgating rules and regulations for the identification, delineation, and recognition of ancestral land and domain claims. In 1998, 181 the Certificates of Ancestral Domain Claims (CADC) were issued by the DENR to indigenous peoples covering an aggregate area of 2,553 million hectares for 74,408 claimants (Aquino 2004: 113). However, the CADC is not a land title and its protection of indigenous land rights is still insufficient. It is only after the passing of the the Indigenous Peoples’ Rights Act (IPRA) or Republic Act No. 8371 on Oct. 29, 1997, that indigenous peoples can apply for the Certificate of Ancestral Domain Title (CADT) or convert the pre-existing CADC into the CADT to gain full legal protection for their collective land rights. The Indigenous Peoples’ Rights Act has 13 chapters and 84 sections. It provides rights to ancestral domains, self-governance and empowerment, social justice and human rights, and rights to cultural integrity. It also maps out detailed processes of the delineation and recognition of ancestral domains, as well as jurisdiction and procedures for enforcement of rights. This landmark piece of legislation is a rejection of the long-standing assimilationist policy of the Philippine state as part of its colonial legacy (Bennagen 2007: 182). The IPRA is also known as the Ancestral Domain Law because it provides for the actual awarding of land titles to indigenous peoples based on ancestral domain claims and mandates the protection of such claims from 6
unauthorized and unlawful encroachment (Eder and McKenna 2004: 66). The IPRA sets up the National Commission on Indigenous Peoples (NCIP) as the primary government agency responsible for the identification, delineation and recognition of ancestral domains, and the formulation and implementation of policies and programs to protect the rights and wellbeing of the indigenous peoples. The NCIP is not only an administrative organization, it also has quasi-judicial powers to regulate land conflicts and disputes unresolved according to customary laws and practices (Section 69). The IPRA also creates the Ancestral Domain Fund to cover compensation for expropriated lands, delineation and development of ancestral domains (Section 71). The reason why the regulations relating to ancestral doamins dominate the IPRA is because land rights have been the central concern of indigenous movements in the Philippines since the 1970. In 1974, the National Power Corporation, with the financial backing of World Bank, proposed the Chico River Hydroelectronic Dam Project in the Cordillera Mountains and planed to displace and resettle local Bontoc and Kalinga peoples. A mass movement against the project was organized and it drew international attention and support. The state’s recognition of indigenous land rights originated from the “Land is Life Movement” at that time (Bennagen and Royo 2000) and the CADT is the result of the fruition and merging of several social and political agendas since the 1980s, namely, issues of environment, indigenous peoples’ struggle for autonomy, and sustainable development. Ancestral domain does not only provide the indigenous peoples a weapon against outside intrusion and encroachment, it is also a contemporary assertion of indigenous peoples’ ability to negotiate claims to land, livelihood, and autonomy within the nation-state. Therefore, many scholars have praised the Philippines for showing a positively progressive attitude toward indigenous peoples (Persoon et al. 2004; Rovillos and Morales 2002). However, the most controvertial part of the IPRA is also its recognition of indigenous land rights to their ancestral domains. On September 25, 1998, less than a year after the passage of the IPRA, retired Supreme Court Justice Isagani A. Cruz and private practitioner Cesar Europa filed a petition before the Philippine Supreme Court was filed challenging the constitutionality of the IPRA. The premise of petitioners’ arguments is that the ancestral domain ownership provisions of the IPRA violate the Regalian Doctrine embodied in the Philippine Constitution. The Regalian Doctrine, a concept dating 7
back to the days of the Spanish monarchy that still underpins the Philippines’ legal system of landownership, declares that the state owns all public lands and natural resources. Article 12, Section 2 of the 1987 Philippine Constitution says: “All lands of the public domain, water, mineral, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the state” (Crisologo-Mendoza and Prill-Brett 2009: 43). From the point of view of the Regalian Doctrine, most indigenous occupants are squatters on public lands, since any land not covered by official documentation is considered part of the public domain and owned by the state (Prill-Brett 1994; Lynch and Talbott 1995). This challenge to the consttitionality of the IPRA was hotly debated. It reflects the struggles between different economic interests and political powers, and exposes the fact that the state does not have a unified position on indigenous peoples’ ancestral domains. One of the counsel for petitioners, Atty. Barbara Ann C. Migallos, serves as the Corporate Secretary of Philex Miners, Inc. Apparantly mining companies whose financial inetersts were damaged by the IPRA were the primary movers of the petition. Impleaded as respondents to the petition were the Department of Environment and National Resources (DENR), the Department of Budget and Management (DBM), and the NCIP. Acting as counsel for the DENR and the DBM is the Office of the Solicitor General who filed their comment essentially agreeing with the main argument of the petitioners. The NCIP disagreeed and argued that the private ownership of ancestral lands of indigenous peoples is based on natural law recognizing time immemorial possession and that such native title are vested rights since the American period. However, the state, according to the NCIP, retains ownership over natural resources within ancestral domains subject to the priority rights of the indigenous inhabitants (Bennagen and Royo 2000: 36). The response of the DENR, the DBM and the NCIP provoked strong anger among indigenous peoples and more than 100 representatives of indigenous communities from all over the country, joined by Senator Juan Flavier and former Constitutional Commissioner Ponciano Bennagen, intervened in the proceedings and filed their own comment-in-intervention. They argued that the private ownership of ancestral domains since time immemorial covers both land and natural resources, and that the Regalisn Doctrine cannot be applicable to ancestral domains. The recognition 8
of the private nature of lands and natural resources within ancestral domains is a constitutional mandate co-equal with that of the Regalian Doctrine (ibid.: 36-37). Other parties also registered their intent to intervene. Tabang Mindanaw and the Government’s Panel for the Peace Talks with CPP-NPA-NDF (Communist Part of the Philippines- New People’s Army-National Democratic Front) submitted letters to the Supreme Court pushing for the upholding of the constitutionality of the IPRA (ibid.: 37). As I explained above, the concept of “indigenous peoples” also applied to the Muslims in the south as a result of its specific historical development in the Philippines. Therefore, the IPRA is applicable in the Muslim areas of the Mindanao where the NPA is most active. The IPRA’s recognition of regional autonomy and rights to self-governance was considered beneficial to the peaceful resolution of conflicts. The Commission on Human rights also filed its comment-in-intervention, stressing that the IPRA should be upheld because it supports the principles of international human rights adopted by the Philippines. Various NGOs and indigenous groups also submitted their own comment-in-intervention, arguing that lands within ancestral domains are privately owned while the natural resources therein are held in the concept of stewardship (ibid.: 37). Because the constitionality of the IPRA was challenged, the government suspended its implementations for two years while the case was pending in court. The proposition that the IPRA and the Regalian Doctrine are incompatible was dismissed by the Supreme Court on December 6, 2000. 2 The Supreme Court upheld the constitutionality of the IPRA and explicitly recognized indigenous peoples’ ownership of their ancestral lands. However, it refused to do the same for indigenous peoples’ rights to the natural resources within their lands (Crisologo-Mendoza and Prill-Brett 2009: 44; Gatmaytan 2007: 26). This ruling weakened the IPRA’s potential for indigenous groups to contest the state’s priorities and policies. This Supreme Court case represents the retreat of the state’s prvisions of indigenous land rights. It indicates “the apparent continuing unwillingness, or inability, of the state to match words with deeds” (Eder and McKenna 2004: 56) when it comes to indigenous peoples’ legislation. Despite the considerable progress toward greater land security for indigenous peoples established in the 1987 Constitution and subsequent legislative and policy initiatives, promise has not yet become practice. For 2
The fourteen justices were evenly split. 9
example, the Ancestral Domain Fund has never received sufficient funding as written in section 71 of the IPRA. Moreover, the government issued an Executive Order (#364) in 2004 which placed the NCIP under the direct supervision of the Department of Agrarian reform (DAR). Placing ancestral domain concerns with the DAR has two drawbacks: communal titles for indigenous communities are misconstrued as representing properties with a corresponding commercial value, and the issue of restorative justice for indigenous peoples is confounded with that of redistributive justice for tennants, peasant smallholders and the landless poor (Padilla 2008: 468). Although the IPRA is praised as “a comprehensive law on indigenous peoples’ rights unprecedented in the modern legal history of Southeast Asia” (Wenk 2007: 138), its constraints and limitations have become evident more than a decade after it came into effect. Critical assessments of the IPRA have revealed four main problems connected with the mapping and titling of ancestral domains. First, the IPRA is anthropologically naïve (Gatmaytan 2007: 21). It is based on simplistic, even romantic, assumptions about indigenous peoples. Indigenous communities are presented as economically self-sufficient and thus free of debt relations that force them to use land as collateral. They are thought to have a collective interest in preserving their cultures and traditions, as though they are not fascinated by mainstream lifestyles and willing to sell their land to purchase goods such as karaoke machines and refrigerators. The law also assumes bounded, homogenous communities on likewise bounded territories. This is an error that has been addressed in the anthropological literature (McDermott 2000, 2001; Van den Top and Persoon 2000; Duhaylungsod 2001; Gatmaytan 2005; McKay 2005; Gray 2009; Wenk forthcoming) but which still pervades policy-making in the Philippines. Second, although the IPRA is also known as the Ancestral Domain Law, which recognizes the communal rights of indigenous peoples to their ancestral lands in a way that goes beyond all prior efforts, there are competing claims and conflicting state mandates to land and natural resources. Section 56 of the IPRA subjects the indigenous peoples’ property rights to other existing rights. Moreover, the category “ancestral domain” is glaringly absent on the list of official land-use categories because these categories were determined long before the enactment of the IPRA, and no amendment has yet been made to rectify this omission (Wenk forthcoming). As a consequence, the state retains its prerogative to use and exploit ancestral domains for 10
mining or logging. Third, the implementation of the IPRA has been slow and ineffective (Eder and McKenna 2004; Gatmaytan 2007; Padilla 2008). The National Commission on Indigenous Peoples (NCIP), the implementing agency stipulated in the law, has meager resources at its disposition. The constitutional insecurity of the IPRA mentioned above has been further exacerbated by the curtailing of the NCIP’s budget to such a degree that the commission is rendered toothless, deprived of the means to exercise its mandate (Hirtz 2003: 902). Despite the NCIP’s being under the Office of the President, lack of government funding hampers the implementation of the NCIP’s programs, particularly the ancestral domain titling line. Also, the NCIP has acquired a reputation as a dumping ground for politicians’ protégés who cash in on their patrons’ political debts by seeking government positions. Thus, the impression at the indigenous grassroots is that NCIP officers continue the government tradition of doing nothing while waiting for their salaries and allowances (Padilla 2008: 468). Finally, the mapping and titling of ancestral domains can serve as a vehicle for intensifying state control and territorial administrations over upland communities. As Li (2002: 274) points out, delineation produces the requisite lists, maps, census data, and agreements for pinning indigenous peoples in place and enmeshing them more firmly as state clients. The legal homogenization or standardization of the notion of, and rights to, ancestral lands also facilitates the exercise of state power (Gatmaytan 2005). Thus, the IPRA has an essential ambiguity or paradox: it can be read as an instrument for asserting indigenous self-determination or for the extension of state control and sovereignty over natural and human resources (Bennagen 2007). To understand the relevance of the IPRA to indigenous peoples today and whether it has made any substantial difference in their lives, it is necessary to grasp the complexity and dynamics that attend the day-to-day practice of social life in local settings (Gatmaytan 2007: 24). I have recorded elsewhere (Yang 2012) the diverse and changing forms of land dispossession that took place among the Bugkalot (Ilongot), an indigenous people who were awarded their CADT in 2006, and have shown the failure of barangay officials and government agencies in halting land grabbing in the face of capitalism’s advancement. Moreover, despite the NCIP’s rejection, the DENR has issued mining permits to a foreign company to open a gold mine in the Bugkalot/Ilongot ancestral domain without their free, prior, and informed 11
consent. Conflicting state mandates and inadequate capacity in state institutions have produced dispossessory effects despite the existence of legal institutions that were designed to protect indigenous land rights.
Conclusion The concept of indigeneity has strong historical connections with settler colonialism. However, it receives state recognition in the Philippines in the late 1980s due to the success of local land rights movement in drawing discourses from the burgeoning development of global indigenism. I have investigated the historical processes through which the concept of indigeneity gained state recognition in the Philippines and analyzed the making of the IPRA and the contestation it generated. The challenge of the IPRA’s constitutionality in the Supreme Court has resulted in the diminishment of indigenous peoples’ rights to natural resources within their ancestral domains. It is a sobering reality that a land title awarded by the government is only a piece of paper, itself neither altering existing power asymmetries nor protecting indigenous peoples’ territory against encroachment if the law is not implemented effectively on the ground. The implementation of the law is a process contested and negotiated in political and social contexts, and the Philippine case shows that conflicting state mandates and inadequate state capacity will continue to produce dispossessory effects despite the existence of legal institutions that were designed to protect indigenous land rights.
References (To be added)
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