RIVERMAN’S VISTA: Land is the Answer

QUEZON CITY (MindaNews/12 Sept) – The peace negotiations between the GPH and the MILF have again reached a critical stage. While gains may have been achieved over the years, such as the periodic forging of agreements for cessation of hostilities, a final and lasting peace agreement remains elusive. This is entirely understandable given the delicate and complex nature of concepts and principles involved in such an agreement, as they affect numerous peoples, communities, sectors and stakeholders. However, after everything has been said and done, ultimately, the most fundamental issue that underlies the conflict in Mindanao is control of the land, and by extension the rich natural resources found in them. Central to the solution is recognizing the just demands of the Bangsamoro people and the Lumad of Mindanao, while acknowledging the historical fact that Mindanao has also been a place of settlement and resettlement for other peoples from the Philippine archipelago in the past 100 years.

The Indigenous People’s Rights Act (IPRA) Law of 1997 recognizes the rights of indigenous people to their ancestral domain. Under IPRA, the right to ancestral domains is based on the concept of native title, or “pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by indigenous peoples, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest” (Rep. Act. 8371, Sec. 3(l)). While IPRA provided a measure of protection against unlawful evictions of indigenous peoples from their territories, it is far from being the silver bullet to the land ownership issues confronted by the Bangsamoro people or even the Lumad. Slow implementation and unfunded mandates have frustrated land tenure requests. The lack of budgetary support has hamstrung efforts to process certificates of ancestral land title and certificates of ancestral domain title. [1]

Furthermore, the implementation of IPRA poses serious challenges due to overlaps with other laws such as environment and natural resources and forestry laws and provisions on resource access and tenure. In the midst of budgetary constraints, the effective enforcement of its provisions is basically contingent on the internal capacities of the indigenous communities and the extent of external support given them.

In spite of IPRA, the rights of the indigenous peoples have been neglected in favor of the interests of corporations and industries, particularly in strategic minerals in ecologically or culturally protected areas. It is unclear whether IPRA or the Philippine Mining Act of 1995 takes precedence; minerals in ancestral domain remain to be considered state-owned. This confusion is aggravated by the penchant of the Philippine government to be too accommodating to big commercial interests, thereby forgetting that IPRA was designed to redress historical injustices against the indigenous peoples and to provide security of tenure. This should be the moving spirit behind the implementation of IPRA and not some interpretation that is biased against the indigenous peoples. To date, indigenous communities still decry the unabated practice of land grabbing by big business and other usurpers who have resorted to deceit, stealth, and legal manipulation to unlawfully encroach into areas that, by historical title, were designated as ancestral domains.  IPRA must be fully enforced because it would bring revenue to the State and because it is a way to empower the indigenous peoples who have been marginalized for centuries. In the non-implementation of IPRA, the historical wrongs against these peoples is essentially perpetuated.

The difficulties encountered in implementing the provisions of IPRA lie in the divergent interpretations of how to operationalize its mechanisms, mostly influenced by vested interests, and on the official (bureaucratic?) reluctance to implement its provisions. These are symptomatic of the difficulties in understanding the true plight of the indigenous and Bangsamoro peoples of Mindanao. There seems to be no clarity as to what certain concepts mean, particularly those associated with the Bangsamoro and the Lumad and their struggle for a homeland they can call their own.

We know for a fact that the term “Bangsamoro” and “Bangsamoro homeland” only gained currency during mid-1990s when the MNLF coined the term to distinguish themselves as a people separate and distinct from mainstream Philippine population. That the Bangsamoro are claiming large swaths of Philippine territories for their own is one reason why this concept elicits suspicion and apprehension among the Christian population. The fear is that if the government finally concedes to the Bangsamoro claims, it will be cause for the dismemberment of the country, which is an unacceptable violation of the country’s territorial integrity. Similarly, there is an apprehension that the grant of a Bangsamoro homeland will nullify titles of existing property owners, who now will be dispossessed in the same way their ancestors did to the indigenous peoples centuries ago. Apart from the difficulty in setting the parameters of Bangsamoro homeland, there appears to be a tendency to associate this concept with property ownership. More often than not, we have observed that these two concepts are made interchangeable, i.e. a Bangsamoro homeland is equated to an effective legal title over these territories to preclude ownership by non-Bangsamoros. Worse, this is understood to mean a separate state – which dramatically reduces its acceptability as an idea. In time, the Bangsamoro homeland as a concept sired other expressions, such as autonomy, Bangsamoro juridical entity and, most recently, the Bangsamoro sub-state.

It stands to reason that some apprehensions aired by certain local government officials and by the general populace towards proposals by the Bangsamoro leaders for a Bangsamoro homeland – or any of its derivatives – are largely borne out of misconceptions, unfounded fears and deeply ingrained biases and prejudices against the Bangsamoro people. The same holds true with respect to ancestral domain and ancestral lands as conceptualized under IPRA whose implementation is stymied by conflicting interpretations. Sadly, the indigenous peoples, because of their limitations, are at the losing end of all these.  That is why prioritizing their rights in any peace agreement between the GPH and the MILF has to be a priority. Otherwise, such a peace agreement will ironically become a seed for further conflict.

In conclusion, a good starting point to moving forward the peace process is to disaggregate the land claim disputes, their underlying causes, and define with more clarity the legal parameters of the Bangsamoro homeland, ancestral domain, indigenous peoples rights, land titles, vested rights and some other concepts and principles, such as the innocent purchaser in good faith etc., the conflicting interpretations of which continue to spawn land disputes in the Land of Promise – disputes which, if not legally settled, will more often than not be resolved through the barrel of a gun. A consensus among all Mindanao stakeholders on how these concepts and principles, their parameters and extent are to be interpreted, will indeed bring us closer to a solution of land conflicts in our great island and ultimately will help us achieve the peace we all desire.

To gain a better understanding of Mindanao’s land issues and to help identify solutions, join our upcoming forums on Tuesday (September 13) at 1:30 p.m. in the Grand Men Seng Hotel in Davao City and on Friday (September 16) at 10 a.m. in the Mini-Amphitheater of the Ateneo Professional Schools, Rockwell Center in Makati City. These discussion sessions on Mindanao are organized by the Ateneo School of Government and the Institute of Bangsamoro Studies, with the support of the Australian Agency for International Development. For more details, visit our website www.mindanaopeace.org

[1] Antonio Gabriel La Viña. Peace and Governance: What are the options? Mindanao Horizons, 2011, p. 6

(Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was formerly, from January-June 2010, a member of the Government of the Philippines Peace Panel that negotiated with the MILF, He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at [email protected] Follow him on Facebook: [email protected] and on Twitter: tonylavs.)