CAGAYAN DE ORO CITY (MindaNews/27 May) — One important legal, political and moral test the Bangsamoro Basic Law must pass is how it addresses the rights of Indigenous Peoples. For many, and that includes me, our support for the BBL hinges on whether Lumads accept the way they are treated in this law. That is why when the House Ad Hoc Committee approved its report and new version last week, I immediately went to work to see if the new version would pass this litmus test. This analysis I jointly conducted with Ms. Nicole Torres whose contribution to this piece I acknowledge.
Our conclusion: in terms of Lumad rights, the latest version of the BBL is an improvement over the original proposal but unfortunately still falls short of what the 1987 Constitution, national law, and international law requires.
Small gains achieved
In a 32-11 vote, an amendment passed transferring authority and jurisdiction over Non-Moro Indigenous Peoples Ancestral Domains and Ancestral Lands from the exclusive powers to be exercised by the Bangsamoro government alone to the concurrent powers that it would share with the national government. Under Article V Section 2 of the draft law, a Ministry on Non-Moro Indigenous Peoples will be created under the Bangsamoro cabinet to “formulate and implement policies, plans and programs to promote and protect the well-being of Non-Moro Indigenous Peoples,” including recognition of their rights to their Ancestral Domain. The provision goes on to specify that the National and Bangsamoro governments shall coordinate and cooperate through the IPRA to create policies for the identification, delineation and titling of Ancestral Domains.
The Indigenous Peoples’ Rights Act (IPRA), along with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and United Nations Declaration on Human Rights (UNDHR) were agreed to be referenced in Article VIII Section 5 on recognizing the rights of Non-Moro Indigenous Peoples. The new version also provides that the Bangsamoro government shall adopt measures to protect the rights of Non-Moro Indigenous Peoples, including their rights to native titles, an equitable share in revenues from the utilization of resources in their territories, Free, Prior and Informed Consent (FPIC), basic services and freedom of choice as to their identity.
Non-Moro Indigenous Peoples are likewise to be represented in the Bangsamoro Council of Leaders advisory body and are allotted two reserved seats in the Bangsamoro Parliament, pursuant to their right to political participation. The draft law provides that these representatives are to be selected according to customary laws and indigenous processes.
The recognition and protection of Indigenous Peoples rights is further reiterated throughout the draft law, in provisions on the education, preservation of cultural heritage and support for tribal justice systems.
But on paper, words, however strong, are small comforts to the Lumad communities. The IPRA was strongly worded too, but it was never implemented in the ARMM as the legislative assembly tasked with enacting a parallel enabling policy for the region failed to do so in its 20 years of existence. The new Ministry of Non-Moro Indigenous Peoples prescribed by the draft bill is thus not reassuring.
Indigenous Peoples Ancestral Domains in the Bangsamoro are among the most resource rich areas in the country, with high mineral deposits, fertile lands and extensive forests. This abundance may account for a long history of Indigenous Peoples lands and territories fragmented, razed or outright seized by powers foreign to them.
Notably, under Article V Section 3, the Bangsamoro government retains exclusive powers over Ancestral Domains and natural resources. Under Article XII Sec. 8, the Bangsamoro government’s authority covers the exploration, development and utilization of mines and minerals in particular. Ensuring that Indigenous Peoples communities benefit from these resources is a task again for the Bangsamoro parliament, as Article XII Section 11, directs the body to enact a law recognizing the rights of Indigenous Peoples to the resources within their territories covered by native title, including their share in revenues, preferential rights in the exploration, development and utilization of natural resources, and FPIC in relation to development initiatives.
However, there are again no reassurances that this law will pass, and even if does, that it will adequately address long-standing issues on Indigenous Peoples access to resources and equitable benefit sharing. The resistance to the inclusion of the IPRA and the concept of Ancestral Domains in the BBL offers little encouragement.
Furthermore, under Article V Section 4, the Bangsamoro government likewise retains the ARMM’s exclusive power to “recognize constructive or traditional possession of lands and resources by indigenous cultural communities subject to judicial affirmation.”
United Nations Special Rapporteur on the Rights of Indigenous Peoples, Vicky Tauli-Corpuz, has raised concern over this provision. She notes judicial affirmation of Ancestral Domains and Lands is not mentioned in the IPRA, and that imposition of this requirement would undermine Indigenous Peoples exercise of their right to have their Ancestral Domains recognized and delineated. Furthermore, the need for judicial affirmation would contravene the doctrine of native title, established in the 1909 United States Supreme Court decision in Cariño v. Insular Government and enshrined in Philippine legislation via the IPRA.
This concern is well founded. In what can already be a long, tedious and costly process, the need for judicial confirmation prior to the recognition of an Ancestral Domain levies an additional burden on Indigenous Peoples wishing to exercise their rights.
Why Not IPRA?
The MILF’s resistance, repeated again in recent days, to the inclusion of the IPRA in the draft bill is puzzling. The Framework Agreement on the Bangsamoro (FAB) commits to respect Indigenous Peoples rights, and this is carried on in the Comprehensive Agreement on the Bangsamoro (CAB). The reference to the IPRA does not contravene this; rather, it strengthens this commitment by acknowledging rights and mechanisms that are already recognized by, and embedded in, national law.
The rights of Non-Moro Indigenous Peoples that are recognized, protected and promoted throughout the draft law are already of the same spirit that those that the IPRA. Mentioning the IPRA could reassure Lumad communities that the BBL will not derogate from their recognized rights, but will instead see to it that these are realized.
The CAB Annex on Power-Sharing, as well as the first draft of the bill, refer only to the rights of Indigenous Peoples under the UNDRIP. While this is valuable, referring to the UNDRIP alone is insufficient, as the rights that it recognizes are translated and applied for Indigenous Peoples in the Philippines according to the IPRA.
Furthermore, the IPRA provides clarity on the concepts used in the draft law. Native title, for example, is cited repeatedly, and is defined in Section 3, as “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.” Many of the Ancestral Domains within the jurisdiction of the proposed Bangsamoro are held under native title, and this definition prescribes vital parameters for the Bangsamoro government if it seeks to recognize these rights.
Consequences of disrespecting IP rights
The strong language on the protection and promotion of the rights of the Lumads in the Bangsamoro does not derogate from the autonomy of the region, but rather, strengthens it by laying the foundations for an inclusive and lasting peace. It ensures that the history of minoritization of the Bangsamoro is not rectified by the creation of a new minority.
While I am overall supportive of the BBL, the same reasons I support it – it’s essential for justice, it’s a condition for peace, and it is right thing to do for people – are also the reasons why Lumad rights under the BBL must be completely assured. At some point during the debate, I had actually thought that the gains achieved would be enough for now and we can continue to fight the battle in the Bangsamoro parliament.
I am also mindful that I have personally seen how the MILF position on this issue has evolved from a few years ago when the group would not even agree to acknowledge or mention indigenous peoples to accepting the various references to them in the CAB. I was reminded however by other colleagues that the ARMM legislature failed for two decades to enact an indigenous peoples’ rights law and that there was no assurance that the MILF would always be in control of the Bangsamoro. Most importantly, my position on this is guided by the principle of Free Prior Informed Consent and clearly in this case, the Lumads in the Bangsamoro and in Mindanao in general are saying that they cannot live with the current version.
Moving forward, I suggest that further amendments be proposed and accepted at the House plenary while parallel work is done with Senate. Lumads and their supporters must also be vigilant when the measure goes to the bicameral conference. If their voices continue to be ignored, there is of course the final option of joining a petition to nullify the final approved version. Lumad groups will surely seek judicial recourse through petitions before the Supreme Court questioning the law’s constitutionality. There will be a critical mass supporting such an action, including other Indigenous Peoples communities in the country and all over the world, and the Lumads will be vindicated. It would a loss for us all if the BBL is declared unconstitutional on these grounds.
I am hopeful of course that it will not come to this because what is right here is so clear and all persons of good will eventually come around and support it. (MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January-June 2010. He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook: firstname.lastname@example.org and on Twitter: tonylavs.)