Ambassador Jaime S.
Bautista, Doctor of Laws
On the Rights of the
Original Indigenous People to Their Ancestral Domain in Bangsamoro
The International Day of the World’s Indigenous People (IP),
August 9, was celebrated at the University of Asia and the Pacific with a
roundtable discussion on “Empowering our Tribal Communities and Indigenous
People in the Philippines.” I represented the Philippine Ambassadors’
Foundation at this forum.
The Ateneo de Manila Law School also held a symposium with
the theme: “Breaking free: Situating Indigenous Peoples Rights in the
Bangsamoro Basic Law (BBL). “ The
Speakers at this forum included leaders of two groups of Lumads: those already
covered by the ARMM and those who may be covered by the proposed Bangsamoro.
The sensitive issue raised in the forums is the right of the
Lumad to their ancestral domain. They
are the original Indigenous People (IP) in Mindanao as indicated by the rivers
and landmarks which have retained their original Lumad names. The right to
ancestral domain is central to the Lumad identity, according to the Mindanao
Elder’s testimony:
“We, Lumad,
believe that land is the beginning and the end of our life and our race. Magbavaya
created land for our race to live on.
No one can accept it except D”Wata who guards our land for us. Our race owns the land as proven by our
ancestors who from birth till death cultivated it. They are now buried in this
land of their birth. To us, it is a concrete proof of our ownership of the
land, in much the same way as we are now nourishing and living on it.” (Dyandi Peace Pact Declaration of Principles,
Lumad Datus in defense of Mt. Apo from the PNOC Geothermal Project, 1989)
The United Nations General Assembly approved the Declaration
on the Rights of Indigenous Peoples on 13 September 2007. While this Declaration is not yet part of
customary international law, they contain the norms which States have committed
themselves to implement. Among the
rights recognized is the right to ancestral domain.
Long before this UN Declaration, the Philippines had passed
laws under four of our presidents to recognize the interests and protect the rights
of our cultural communities. The 1973 Constitution provided that “The State
shall consider the customs, traditions, beliefs, and interests of national
cultural communities in the formulation and implementation of State policies.”
The 1987 Constitution went further and contained six
provisions on State policies relating to protect their rights, among them the
Article which provides: “The State,
subject to the provisions of this Constitution and national development
policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social and
cultural well-being. The Congress may
provide for the applicability of customary laws governing property rights or
relations in determining the ownership and extent of ancestral domain.”
Republic Act 8371 (The Indigenous Peoples’ Rights Act of
1997 or IPRA) has implemented the aforesaid State Policies, including the right
of our IPs to their ancestral domain and ancestral lands. IPRA recognizes the indigenous concept of
ownership which sustains the view that “the ancestral domain and all resources
found therein shall serve as the material bases of their cultural integrity.”
This concept includes both the ancestral domain and
ancestral lands. Ancestral domains are
the ICCs/IP’s private but community property which belongs to all generations
and therefore cannot be sold, disposed or destroyed. Ancestral lands refer to lands occupied,
possessed and utilized since time immemorial by individuals, families and clans who are
members of ICCs/IPs. The rights to these
lands may be transferred only to members of the same ICCs/IPs, subject to
customary laws and traditions of the community concerned.
Republic Act No. 9054 (The ARMM Expanded Organic Law of 2001)
also contains provisions protecting the “indigenous cultural community.” Under this basic law, the ICC includes both
(a) the Tribal peoples defined as those
citizens whose social, cultural and economic conditions distinguish them from
other sectors of the national community and (b) Bangsa Moro people or those citizens who are believers in Islam and
who have retained some or all of their own social, economic, cultural and
political institutions.
With this definition, the ARMM law treats the Lumads and the
Bangsa Moro on an equal basis. It
provides for example, for the establishment of both the Shariah Courts and the
Tribal Courts and recognizes the rights of both communities to their ancestral
domain, although there has been no implementation thereof. The ARRM has been a failure in this regard.
In contrast, the Framework Agreement on the Bangsamoro (FAB)
has removed the concept of the Lumad’s rights to their ancestral domain. Part III on Powers, Par. 6 provides only that
“The customary rights and traditions of indigenous peoples shall be taken into
consideration in the formation of the Bangsamoro’s Justice system. This may include the recognition of
indigenous processes as alternative modes of dispute resolution.”
The Lumad leaders have noted that their rights have been
placed under the exclusive powers of the Bangsamoro. Although they are not “Moro”, the FAB has included
them in the new definition of the Bangsamoro Identity, which now includes the “original
inhabitants “ of Mindanao and the Sulu Archipelago and its adjacent
islands including Palawan, and their descendants who shall have the right to
identify themselves as Bangasmoro by ascription or self-ascription.
The Lumads emphasized at the forums that they want peace in
Mindanao and that they are not “spoilers” or “latecomers” in the peace process
although their long struggle for recognition has not been an armed struggle but
a peaceful one. They assert that they
have always considered themselves to be Filipinos and that their separate
cultural identity be expressly recognized as is provided for in the ARMM
law. They maintain that they have vested
rights to their ancestral domain as recognized by Philippine jurisprudence in
the case of Chico v. Insular Government. They, therefore, seek implementation of their
vested rights to their ancestral domain. Indeed, the theme of the 2014 International
Day of the Worlds’ Indigenous Peoples is timely: “Bridging the Gap:
Implementing the Rights of Indigenous Peoples.”
Two decades ago, the Philippines took a leadership role in
this endeavor, hosting an international conference during the First Decade of
the World’s Indigenous Peoples (1995-2004).
The meeting gathered together leaders of IP’s from all the continents,
among them Nobel Prize Laureates Wole Soyinka of Nigeria and Rigoberta Menchu
of Guatemala, to draft a charter on IP rights.
This was an NGO conference directed by Cecile Guidote, and supported by
the Department of Foreign Affairs. The
Philippines’ IPs took an active part and shared indigenous knowledge and
cultural traditions.
It is time again to
look at our indigenous cultural communities’ unnoticed contributions to our
nation building and give them their due.
The proposed Bangsamoro should not take a step backwards.
Ambassador Bautista is Professor of Law at the Ateneo de
Manila University and Philippine Christian University.
