SUNS  4311 Wednesday 28 October 1998


PHILIPPINES: LEGAL ATTACKS RAIN ON LAW ON TRIBAL RIGHTS

Manila, Oct 26 (IPS/Alecks Pabico) -- A landmark law on tribal rights marks the first anniversary of its passage this week, but few among the 12 million indigenous peoples in the Philippines are in a joyous mood.

In the last few months, a conservative backlash has been threatening to negate what little gains the Indigenous People's Rights Act of 1997 has made for a community that had long been neglected, and destroy the morale of tribal peoples who were just beginning to feel they were no longer strangers in their own land.

Already gone is the "improved atmosphere" to which Senator Juan Flavier, main author of the indigenous rights law, attributes the law's passage on October 29, 1997.

In part, this has been due to budgetary constraints of the new administration that have made the law's implementation problematic.

But many observers say the bigger problem for the law is the string of formidable attacks from big business, notably the mining industry, which will be affected by its strict implementation.

The mining industry has already found an unlikely ally in retired Supreme Court Justice Isagani Cruz, who in September filed a lawsuit arguing that the indigenous rights law violates the constitutional rights of the state over natural resources.

Millions of hectares of land, in which mining and logging companies have pending applications, lie within the ancestral domains of various tribal peoples in Northern Luzon and the islands of Palawan, Mindoro and Mindanao.

The indigenous rights law was supposed to finally end the centuries of struggle and strife among the country's indigenous peoples, who now make up almost 20 percent of the population, and put a stop to their dispossession and displacement.

This is notwithstanding the doubts of some indigenous peoples groups, like the Katutubong Samahan ng Pilipinas or Kasapi, for whom the law already represents a compromise.

Kasapi says they have already taken efforts "in large strides to meet the western worldview in the middle for a law that merely recognises, and does not totally provide for indigenous peoples' rights".

But now they have to deal with the lawsuit filed by ex-Justice Cruz, at a time when implementation of the law is bedeviled by an impasse regarding appointments to the National Commission on Indigenous Peoples (NCIP), a newly created agency supposed to carry out the law.

As things stand, observers are already reading the commission's seeming inability to clearly spell out its functions with respect to the environment department, as having something to do with the mining sector's demand for a review of law's impact on the industry.

Environment Secretary Antonio Cerilles has ordered the suspension of the processing of Certificate of Ancestral Domain applications to give way to the commission on indigenous peoples.

But there is still no formal memorandum of agreement between the environment department and the commission that would turn over the functions -- as well as records -- to the latter.

An insider privy to goings-on within the environment department since Cerilles assumed office in July says there may not be a pronounced policy against the law, but sentiments against the implementation of the indigenous rights law among the department top brass betray this.

The source says proponents of the constitutionality question in the department have brought forth two legal arguments: that only the state can own lands, and that the environment department has sole jurisdiction over forests and mineral resources.

The same arguments echo those raised by the Chamber of Mines of the Philippines (CMP), especially during the drafting of the law's implementing rules early this year.

In an Apr 21, 1988 letter to then President Fidel Ramos, the chamber says the provision on native title is contrary to the Constitution as it "wreaks havoc to the Torrens title system and other laws on
acquisition of property".

It also says the indigenous rights law does not define what constitutes private property, making the law without legal basis.

The government's Mines and Geosciences Bureau (MGB) makes similar arguments.

Though claiming to agree in principle that indigenous peoples' rights have to be protected and tribal groups deserve equal opportunities, Leo Jasareno, officer-in-charge of the Mining Tenements and Management Division, says "IPRA is an overdone law".

Jasareno insists on the supremacy of the regalian doctrine -- which holds that all natural resources belong to the state -- and the government's primary jurisdiction over mineral resources.

"Giving (indigenous peoples) priority rights over mineral resources within their ancestral domain, is
surrendering the state's full control over all our resources," he argues.

He also disagrees with the process of self-delineation, saying the indigenous peoples's rights act has very lax certification requirements for ancestral domain claims.

Under the law, claims shall be substantiated by authentic documents such as written accounts of customs, traditions, political structure and institution, including testimony of elders or the community under oath.

But Jasareno argues that claims must be proven by anthropological or scientific studies lest the mechanism be abused. At best, the indigenous rights law is class legislation that favors only one sector of society, says Jasareno.

"But that's what it's all about, " counters Flavier. "The problem is that these (indigenous peoples) are the disadvantaged groups. At least, you give them the competitive edge. It's like a law that benefits the sixth-class municipality. That's not class legislation. That's just levelling the field."

In a recent newspaper column, Jesuit priest and constitutional law expert Joaquin Bernas says even the Spanish colonisers had not taken all the land for the state, acknowledging that the natives were entitled to some of it.

He also notes that the indigenous rights law "'repeatedly" says that it is "subject to vested rights." And if some of its provisions are "tilted in favour of indigenous peoples," says Bernas, this is but the
"result of the constitutional" policy regarding tribal communities.

For Flavier's chief of staff, lawyer Rudy Quimbo, the filing of the lawsuit against the indigenous law is lamentable. The law "shouldn't be looked at in legal terms", he argues. "It's also a sociological and anthropological document. We are trying to correct a historical injustice here."