SOMEONE ELSE'S WINDOWS: Subverting self-determination: A post-mortem on Ipra (Conclusion). By H. Marcos C. Mordeno

MALAYBALAY CITY (MidnaNews/13 Oct) — As pointed out in the previous parts of this series, the petition questioning the constitutionality of the Indigenous Peoples Rights Act (Republic Act 8371) was dismissed simply because it failed to obtain a majority vote by the Supreme Court, in an en banc decision handed down on December 6, 2000. But the Court did not come out with a jurisprudence that would have settled with finality the legal issues raised by the petitioners.

For the defenders of Ipra, it’s a tenuous victory in that even the separate opinions issued in favor of the Act – particularly those of Justices Puno and Kapunan — haven’t actually tried to entrench the principle of self-determination but rather offered an interpretation that strips the concept of ancestral domain of its historico-cultural, spiritual, political and practical elements. Puno’s and Kapunan’s opinions, though laced with rich narratives on the historical bases of RA 8371, have only upheld the Regalian Doctrine in relation to ownership and control of natural resources by asserting a hair-splitting definition of ancestral domains, disaggregating its interrelated elements in the process.

Both opinions interpret the Carino Doctrine and native title to mean that the indigenous peoples own the lands in their ancestral domains but not the natural resources found therein. On top of this wholesale deprivation, they are legally obliged to conserve and protect these resources. This interpretation essentially subverts the definition of ancestral domains by implying that IP ownership only applies to the land surface. What lies beneath or on this surface belongs to the State.

It would seem that the Court wanted to sustain both the Regalian Doctrine and native title by divorcing ownership of the lands from ownership of natural resources even if, upon closer look, it’s an impractical proposition. Ipra’s recognition of customary law and other rights now rings hollow, as the right that would have made such recognition real and effective – the right to control resources – has reverted to the State. The IPs are left with the shallow consolation that they have the right to claim such resources. Whether the State will approve such claim is an entirely different story.

Moreover, the Court’s interpretation of ancestral domain – or rather, ancestral surface – doesn’t guarantee security of tenure; indigenous peoples may be driven out from those lands once minerals are discovered and the State decides to undertake exploitation of such resources on its own or through private, and in most cases, multinational corporations.

It’s clear enough that the Court dismissed the petition filed by retired Justice Isagani Cruz and lawyer Cesar Europa not primarily because it is convinced of Ipra’s constitutionality but because it believes that it poses no threat to State ownership of natural resources. The Court’s interpretation rests on the concept that IPs are just stewards of the earth and nullifies de facto the principle of self-determination as the core philosophy of Ipra.

Justice Kapunan, in the introduction to his opinion, cites the following lines from Macliing Dulag, a Kalinga leader who was killed for his opposition to the Chico River Dam project during the Marcos regime:

“You ask if we own the land. . . How can you own that which will outlive you? Only the race owns the land because only the race lives forever. To claim a piece of land is a birthright of every man. The lowly animals claim their place; how much more man? Man is born to live. Apu Kabunian, lord of us all, gave us life and placed us in the world to live human lives. And where shall we obtain life? From the land. To work (the land) is an obligation, not merely a right. In tilling the land, you possess it. And so land is a grace that must be nurtured. To enrich it and make it fructify is the eternal exhortation of Apu Kabunian to all his children. Land is sacred. Land is beloved. From its womb springs [our Kalinga] life.”

How can life possibly spring if one’s right to land is restricted to an arbitrary surface?

(MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at hmcmordeno@gmail.com)