Thursday, 16 March 2000

A tale of two laws
Indigenous peoples:
Poor cousins to mining interests

By Gina Mission


Indigenous peoples, in spite of the passage of the Indigenous
Peoples’ Rights Act, are in a losing battle with mining interests.

Citing two reasons, the Office of the President effectively suspended the implementation of the Indigenous Peoples Rights Act (IPRA) by freezing the budget of the agency assigned to enforce it. One reason, it said, was that the law’s constitutionality has been challenged before the Supreme Court and therefore cannot yet be enforced. It also said officials of the National Commission on Indigenous Peoples (NCIP), the agency authorized to enforce it, are facing administrative investigation and cannot legally function as a body.

.....Executive Secretary Ronaldo Zamora stopped the release of the commission’s budget in September 1998, practically preventing the agency from performing its duties. The freeze order has stayed in place up to the present, and with barely enough money for its staff and for maintenance operation expenses, the Commission is now practically dead.

.....But, concerned sectors ask, why did the authorities not also suspend the implementation of the Philippine Mining Act, which, like the IPRA, is facing a constitutionality challenge before the Supreme Court and whose implementation is partly dependent on the IPRA? A question like this, posed by the National Peace Forum, which is a creation of President Estrada, and the Legal Resource Center, an NGO, suggest a perception of official bias favoring mining interests over the rights of indigenous communities.

A say on mining permits

.....The Indigenous People’s Rights Act gives indigenous peoples rights over their ancestral lands. It entitles them to certificates of ancestral domain claims (CADCs), convertible later to certificates of ancestral domain title (CADTs). The law also gives indigenous communities a say in mining permits because it requires their "free and prior informed consent" before any mining application is approved by the proper agencies, namely the Mines and Geosciences Bureau, the Department of Environment and Natural Resources (DENR) and the NCIP.

.....Data from the NCIP show that CADCs issued so far cover 2.5 million hectares while CADC applications cover about the same area.

On the other hand, the Philippine Mining Act governs the country’s mining industry. It spells out the procedures and guidelines on how mineral resources can be exploited, such as through foreign technical assistance agreements (FTAA) and mineral production sharing agreements (MPSA). Both agreements involve contracts for financial or technical assistance for large-scale exploration, development and utilization of mineral resources, but differ on what kind of companies can enter into such contracts. A totally foreign-owned company may apply for an FTAA, while a foreign company with a Filipino partner or a totally-owned Filipino company may apply for an MPSA.

.....According to the book Globalizing Philippine Mining, published by IBON, most of the current exploration permits, applications for FTAAs and MPSAs and mining operations cover ancestral lands claimed by the indigenous peoples.

.....The Legal Resource Center (LRC), which has challenged the constitutionality of the mining act, reckons that as of June 1997, there were 100 mining applications covering an area of 8.4 million hectares. Of these applications, 64 were for FTAAs covering more than 5.8 million hectares. At least one FTAA application covers offshore areas.

Vast mineral resources

.....The country is endowed with vast mineral resources. According to the Center for Environment Concerns (CEC), the Philippines ranks second in the world in gold deposits, third in copper and sixth in chromite. In terms of mineral production, however, the country ranks only eighth in gold, ninth in chromite and 10th in copper.

.....A CEC study says that the years 1984 to 1994 saw a declining trend in the contribution of the mining sector to the gross national product. In a move intended to boost mining productivity, the government passed the Philippine Mining Act of 1995.

.....In June 1997, LRC et al filed a petition with the Supreme Court asking it to declare the mining act unconstitutional. In what looked like a countermove to the LRC petition, former Supreme Court Justice Isagani Cruz filed a taxpayer’s petition in September 1998 before the Supreme Court, questioning the constitutionality of the 1997 Indigenous Peoples Rights Act.

pic_0316_01.gif (30564 bytes)
Executive Secretary Ronaldo Zamora placed indigenous
peoples’ rights in the deep freeze.

.....In a February 7, 2000 memorandum to Zamora, members of the National Peace Forum, an agency under the Office of the President and composed of peace advocates Manuel Yan, Rodolfo Biazon, Howard Dee, Florencio Abad, Fernando Capalla and Carolina Hernandez, urged the executive secretary to resolve the issues pertaining to the National Commission on Indigenous Peoples and to deliver basic social services to indigenous communities. The Forum, which is chaired by Zamora, is assigned to oversee all government peace initiatives with communist insurgency groups.

Peace perspective

.....Speaking from the "peace" perspective, the Forum members pointed out that the non-implementation of the IPRA was creating an atmosphere of "unpeace" in indigenous communities, particularly in Mindanao, where lumad (indigenous people) are vulnerable to recruitment by communist insurgents.

....."The exploitation of natural resources that results in environmental degradation, loss of livelihood and threatened food security have created new situations of unpeace in various areas of the country," the Forum’s memo said.

.....It said that 60 per cent of such "areas of unpeace" became so because of "mining and other extractive projects." Citing a study by the Environmental Science for Social Change, the Forum noted that if all pending mining applications were approved, these would cover 53 per cent of CADC areas and 38 per cent of primary forests.

....."The displacement of IPs from their ancestral lands and the total lack of opportunities have made the IP minors easy recruits by insurgent groups," the Forum members said in their memo. "Authoritative sources have reported that 50 per cent of the New People’s Army members are minors and most of them are lumad. The large increase in NPA strength in the past two years can be attributed to the recruitment of IP children."

.....The National Peace Forum noted: "The inability of key government agencies to implement vital reforms for indigenous peoples as a result of the non-implementation of IPRA has aggravated the already marginalized condition of the IPs, who have placed their trust in the law for the recognition, respect and promotion of their rights."

Figures speak volumes

.....While more than a hundred mining applications were approved in 1999, not a single new certificate of ancestral domain claim was approved within the same period.

.....In contrast, the National Commission in Indigenous Peoples issued at least 101 certifications of free and prior informed consent of indigenous communities to mining companies from August 1998 to March 1999. All the certifications were granted supposedly after field investigations by its staff, whose expenses were borne by the mining companies applying for permits.

.....Since Zamora ordered the freezing of its funds in September 1998, the NCIP has been barely existing. The issuance of certificates of ancestral domain titles has been suspended, as well as a lot of other programs.

.....To help the virtually dead office, the Office of the President created two presidential task forces– one for ancestral domains, and another for indigenous peoples–supposedly to assist the Commission in dispensing its duties. But up to now, the two task forces don’t seem to have had any concrete accomplishments, at least, none that the NCIP, which they are supposed to help, is aware of.

.....Citing the increasing vulnerability of indigenous peoples to armed conflict in areas where mining explorations are done on ancestral lands, the National Peace Forum members called on the government to carry out the initial programs and projects focusing on the delivery of basic social services to these people.

Uncertain land tenure

....."The areas of 'unpeace' are in the contentious areas, where the IPs are fighting for their survival because of uncertain land tenure in their ancestral domain. They should not be excluded from the delivery of basic social services. Any discrimination against these IPs will result in more of them joining the NPAs, who would offer to protect their ancestral lands," the Forum memo said.

.....During a consultative meeting on January 31, the Forum members suggested that the Department of Justice submit within a month the results of its investigation on the issues affecting the NCIP. As a temporary solution, they proposed the issuance of a presidential proclamation declaring an ancestral domain area as a reservation site for indigenous peoples to "prevent the encroachment of lowlanders and other external migrants."

.....At that meeting, representatives of the DENR, the justice department and the National Anti-Poverty Commission explained that certificates of ancestral domain titles (CADT) already issued would be very difficult to undo should the Supreme Court declare the relevant provisions of the Indigenous Peoples Rights Act unconstitutional. It was thus agreed that concerned government agencies implement, in the meantime, the "non-contentious provisions of IPRA" pending the Supreme Court ruling on the petition questioning its constitutionality.

Tit for tat?

.....The National Peace Forum didn’t stop there. It recommended a moratorium on the processing and issuance of mining permits in ancestral domain areas.

....."If we are concerned that the CADTs would be difficult to undo should the Supreme Court declare the relevant provisions of IPRA unconstitutional, conversely, should the Court rule otherwise, would it not be difficult also to undo the mining permits issued in these CADC (Certificate of Ancestral Domain Claims) areas?" it asked.

.....Indeed, even as CADC issuances are stopped in "contentious areas," mining permits in CADC areas are continuously issued. Members of the Forum asked: "Does this imply a priority right of mining applications over ancestral domain claims?"

.....If the executive decides to await the decision of the Supreme Court on IPRA, it must do the same with the Mining Act. The National Peace Forum members pointed out that Malacanang must strike a fair balance between an ancestral domain claim and an application for a mining permit.

....."With the current suspension in the issuance of CADTs by government, it is deemed vital that a parallel suspension in the processing and issuance of mining permits be undertaken," they said.

Not the real solution

.....Even a parallel suspension of the issuance of mining permits would not provide the real solution to the problems now besetting indigenous peoples fighting for their ancestral lands, said Andre Ballesteros, policy officer of the Legal Resource Center.

.....For one, in the absence of a Supreme Court ruling on the matter, he said, government agencies shouldn’t touch the Indigenous Peoples Rights Act or its implementation. But the same should go for the mining law. "What happened is that they (Malacanang) are questioning the competence (of the National Commission on Indigenous Peoples) only if it’s not in their favor. But if it is--such as the 101 NCIP certifications (of free and prior informed consent)--they don’t challenge it," he pointed out.

.....More importantly, Ballesteros stressed, the IPRA is a recognition of indigenous peoples’ rights, while the mining law merely pertains to applications which are still subject to the approval of several offices.

.....He explained that suspending the implementation of the IPRA’s "contentious provisions" would result in an unjust situation where government takes away from indigenous peoples their legal rights to their ancestral domain.

.....On the other hand, he pointed out that continuing the processing and issuance of mining permits would result in an absurd circumstance where government gives mining companies the right to something that has not been declared as theirs to begin with.