IPRA: Staying alive
By Gina Mission

IPs struggle for their rights: On a road to nowhere?

ven before it can be implemented, the IPRA or Indigenous People’s Rights Act, is dying. This is what the members and staff of the National Commission on Indigenous Peoples (NCIP), its implementing agency, is saying. Unless something drastic is done to save it, the Commission is worried that the IPRA will become a mere postscript to a valiant struggle for the rights of indigenous peoples, a struggle that got nowhere.

___The Indigenous Peoples’ Rights Act, is the landmark law that recognizes and promotes the rights of indigenous cultural communities (ICCs). Also known as RA 8371, the IPRA was signed into law by President Fidel V. Ramos on October 29, 1997, as part of his administration's Social Reform Agenda. It enumerates the civil and political as well as the social and cultural rights of indigenous peoples (IPs) in the Philippines, estimated to number between seven to 12 million.

___The IPRA also provides for the conversion of certificates of ancestral domain claims (CADCs) held by IPs into certificates of ancestral domain titles (CADTs). More importantly, it requires the "free and informed consent" of ICCs, before any projects can be undertaken by outsiders within ancestral lands.

___The country's rich metallic and non-metallic mineral resources make it one of the world's leading producers of gold, copper, metal and chromite. In 1996, the Philippines had a total of 6.691 billion metric tons (B MT) of metallic and 76.212 B MT of non-metallic reserves. However, most of these are found in the ancestral domains of the indigenous peoples.

Philippine Mining Act of 1995 (RA 7942)

___In order to exploit these rich mineral reserves, the government enacted RA 7942, or the Philippine Mining Act of 1995. Among other things, the law rationalizes the industry and strengthens it with mechanisms to endure fluctuations in both domestic and international markets.

___The law also allows foreign firms to have full access to mineral lands of 81,000 hectares for each application, provided they invest at least $50 million for every permit.

___Militant groups such as the Bagong Alyansang Makabayan, or Bayan, observe that the Philippine Mining Act has opened a total of 9.3 million hectares of lands nationwide for mining exploration by foreign investors. Romy Polintan, Bayan secretary-general for Central Luzon, said that in his area alone, mining applications filed under that law would cover 640,000 hectares. The figure does not include more than 10,000 hectares that are now being mined by some 300 firms.

___Besides questionable land use, mining has also been identified as a major source of environmental problems, e.g. extensive vegetation clearing, earth moving, and effluent generation. Mine wastes and tailings are the more serious threats to the environment arising from mining operations.

___It was precisely these dangers attendant to mining exploration in indigenous communities that the IPRA attempts to avoid when it expressly requires that unless IPs give their "free and informed consent," no Foreign Technical Assistance Agreement (FTAA) application will be approved.

___"Free and informed consent" of ICCs as provided for by IPRA protects IPs from the Mining Act of 1995 and other government regulations that directly affect them.

___In its February 1997 petition before the Supreme Court to have the Mining Act Law declared unconstitutional, the Legal Rights and Natural Resource Center-Kasama sa Kalikasan (LRCK) said: "This case [RA 7942] involves the right of Filipinos to use and enjoy their national patrimony. No less than a determination of the extent of the State's sovereign control over its mineral resources is at stake in this petition."

___But recent developments have seen both the IPRA and the NCIP come under fire.

___Since its passage, IPRA has met with tremendous opposition from the mining sector. In September last year, former Supreme Court Justice Isagani Cruz and Davao-based lawyer Cesar Europa, filed a petition – presumably on behalf of the mining sector - before the Supreme Court questioning the constitutionality of IPRA. Asked by the Court to submit its rejoinder as the representative of the Department of Environment and Natural Resources (DENR) and the NCIP, the Solicitor General sided with Cruz’s petition.

___The petition was countered by the NCIP together with the Ateneo group through Father Joaquin Bernas. SJ. After hearing the arguments of the petitioners, the Supreme Court set May 11 to decide on the case en banc.

___The NCIP, on the other hand, has seen only trouble since its inception.

___President Fidel V. Ramos appointed five of the seven-member commission on February 22, 1998 but left the two remaining positions for the next administration to fill. Appointed were David Daoas as chair and Castillo Tidang, Jr., Erlinda Dolandolan, Victorino Saway, and Mai Tuan as members.

___On July 16, 1998, DENR Secretary Antonio Cerilles recommended to President Joseph Estrada the appointment of Cesar Sulong, Juris Dueñas, and Nerto Colili as chair, executive director, and member of the NCIP, respectively. Their appointments were affirmed by Estrada on the same day.

___On July 17, 1998, Estrada issued Memorandum Order No. 5 designating Donna Gasgonia, the Presidential Assistant for Poverty Alleviation, NGO and PO, as Presidential Assistant in charge of matters concerning the indigenous peoples and the urban poor, on top of her other positions. (see Interview with Donna Gasgonia)

___The appointments to the NCIP were met with dismay by the NGO community. Gasgonia’s appointment was criticized by a number of NGOs that felt her powers were "too encompassing" and "apparently overstepped the functions of NCIP."

___Sulong’s appointment was criticized by concerned groups, who observed that he had been convicted of graft charges, which violated the implementing rules and regulation (IRR) of IPRA. The NGOs likewise protested that Dueñas is not an IP, which disqualifies her from membership in the Council. Colili was not sworn into office with Sulong and Dueñas because his name had been misspelled in the appointment papers.

___On September 21, 1998, Executive Secretary Ronaldo Zamora issued Memorandum No. 21, creating an Ad Hoc Committee to study the issues relative to the Constitution, administrative setup and operations of the NCIP. Gasgonia was appointed chair of the committee.

___The same order directed the Department of Budget and Management (DBM) to withhold the release of funds to the NCIP, except for operational expenses like salaries and rent, until after the final resolution of the issues surrounding the Council.

___In an interview with CyberDyaryo, Gasgonia explained that the release of NCIP funds had to be withheld to prevent NCIP commissioners from using them for self-serving purposes. The commissioners are currently under DOJ investigation.

___On November 10, 1998, the ad hoc committee submitted its report. Daoas and Dolandolan were both found to have unliquidated cash advances in the Office of Northern Cultural Communities (ONCCs) of which he was chair. Tidang was deemed disqualified from the membership in the NCIP because he was still the mayor of Kayapa, Nueva Vizcaya during his appointment. Tuan was found to have violated the IPRA law because he supposedly occupies the same ethnographic region (Central Mindanao) as that of Saway. Sulong was found guilty of several cases of malversation of public funds. Only Saway was cleared of any wrongdoing.

___Thus began the internal squabbling within NCIP.

___Except for Saway and Colili (Dueñas, who was not a commissioner, was spared from the investigation), all five commissioners were recommended for investigation by the Department of Justice (DOJ).

___Pending the resolution of the charges, all five commissioners were directed to refrain from engaging in any activity in ICCs, which.has effectively crippled Saway, Colili, and Dueñas since there is no possibility of a quorum in the commission, or of the release of funds.

___At this point, the NCIP turned to the President to seek help. In a letter dated November 3, 1998, Daoas requested an audience with the President to discuss Memo No. 21 and seek affirmation of the appointments and terms of the NCIP commissioners. His letter was met with silence.

___Concerned officials, staff, and representatives of the beleaguered NCIP have tired any and all means to reach the President, his advisers, and other officials, in a desperate bid to keep the commission and the IPRA alive.

___On January 25, 1999, Tuan sought the assistance of Senator Loren Legarda for the release of IPRA’s budget allocation for maintenance and other operating expenses, including an unreleased portion of the 1998 budget for the development of IPs. Legarda endorsed Tuan’s request to Zamora and DBM Secretary Benjamin Diokno.

___But on February 15, 1999, Secretary Zamora issued Memorandum No. 52 creating the Presidential Task Force on Ancestral Domains which would "assist the Office of the President, through the Presidential Assistant for Poverty Alleviation, NGO and PO, in monitoring compliance with existing laws regarding the rights and welfare of Indigenous Peoples in their ancestral domains."

___Donna Gasgonia was appointed chair, Evangeline Cappleman as vice-chair, and Ronie Ola, Joseph Honggang, Anchez Mendigorin, Ramon Salamat, Norma Gonos and Jemimo Manda as members.

___The task force is supposed to coordinate with the NCIP, through its executive director (Dueñas), and the DENR, through a representative of Sec. Cerilles, in the matter of extending assistance to ICCs for the recognition, protection and development of their ancestral domains. It shall also "submit a comprehensive report to the Office of the President after six months."

___The creation of the Task Froce was hit by tribal leaders from all over the country. Likid Atong of the Mandaya Tribe of Davao Oriental said that Malacañang’s move has left the IPs confused.

___Commissioner Tuan said with disgust that he felt like a fool getting paid while his people get nothing. "I must go back home and advise my people to guard what we have, the ancestral lands and ancestral domains, and not to allow anybody to enter the territories if not given clearance from tribal leaders," he said.

___Even Saway, who has remained neutral throughout the controversy, admitted to CyberDyaryo, that the task force "is not necessary."

___Helen Mabandoz of the Mandaya tribe asked: "Should the interests of the IPs be sacrificed because of political considerations?"

___But Donna Gasgonia defended the creation of the task force. She said, "We cannot sacrifice the IPs and stop processing CADC applications just because the people who are supposed to act on them are the same people being investigated. That’s why we had to create the task force to continue the duties of the suspended commissioners."

___In an Open Letter dated March 3, 1999, tribal leaders requested the President to declare as null and void Memo No. 5; to repeal Memo Nos. 21 and 52; and to direct the DBM to release the NCIP budget.

___On the same day, separate letters were sent to Assistant Chief of Staff General Ernesto Carolina, Justice and Empowerment Program (JEEP) President Robert Aventejado, and JEEP Chair Fernando Poe, Jr., with requests to help bring the NCIP issue to the attention of the President.

___On March 16, 1999, the NCIP wrote to Vice President Gloria Macapagal-Arroyo for an appointment to discuss the problems relating to the implementation of IPRA and the reorganization of the Commission.

___To date, nothing has been heard from the officials contacted. Meanwhile, the law is under legal challenge and the commission tasked with its implementation is without power or budget. Back in their territories, the IPs await the protection that the IPRA has promised them.

CyberDyaryo | 1999.04.29