Statement by LRC to UN on state of Philippine indigenous peoples

SPEAKER : Ana Rhia Muhi, Legal Rights and Natural Resources Center, Friends of the Earth Philippines Agenda: 4BStatement to the Second session of the UN Expert Mechanism on the Rights of Indigenous Peoples

Presentation under Agenda Item 4B - UN Declaration on the Rights of Indigenous Peoples

August 10-14, 2009

Good day to all. Madam Chair, thank you for this opportunity to share with this august body the Philippine experience with regard to policies on remedies, restitution and compensation through this short statement. I am Ana Rhia Muhi representing the Legal Rights and Natural Resources Center, Friends of the Earth Phils., a non-government organization that has been working with indigenous peoples of the Philippines for more than twenty years now. The Center has also been instrumental for the passage of the Indigenous Peoples Rights Act of 1997. The Indigenous Peoples Rights Act of the Philippines is similar to the UN Declaration of the Rights of Indigenous Peoples, thus we hope that our lessons learned from the implementation of the IPRA would contribute to the implementation of the UNDRIP, especially since the UN DRIP is not necessarily self-executory and would need enabling domestic laws to implement its policies within states.

Madam Chair, as you know, the Philippines is different from most of the countries in that it has a law which specifically focuses on the rights of indigenous peoples to their ancestral territories and to self-determination. Yet, despite the existence of such a law, just recently, on July 29, 2009, indigenous leaders all over the country delivered their own State of the Indigenous Peoples Address, stating that the indigenous peoples of the Philippines remain to be the poorest of the poor, victims of human rights violations and extrajudicial killings, and suffer land insecurity. With regard to these issues, I would like to particularly focus on access to justice vis-a-vís the issue of land insecurity due to the failure for the Philippine government to provide adequate remedies, redress, compensation and restitution.

In 1909, it has been held by the United States Supreme Court decision in Cariño vs. Insular Government that indigenous peoples privately own their territories and the natural resources found within through their native title. Despite this pronouncement however, the Philippine government continues to adhere to a colonial doctrine which states that the State owns all natural resources within the country, or otherwise called the Regalian doctrine. Thus, laws were passed based on the Regalian doctrine to legitimize encroachment and taking of ancestral lands without due process. Also, lands were classified by virtue of these laws into mineral, forest or agricultural lands effectively denying indigenous peoples their territories with just one stroke of the pen.

The Indigenous Peoples Rights Act ( or the IPRA) which was passed in 1997 recognized and was supposed to correct this historical wrong. However, even after more than a decade since its passage, indigenous peoples in the Philippines have not been afforded adequate remedies for restitution and compensation for past and present wrongs. Hardly any community have been compensated from illegal or wrongful taking of ancestral domain. A number of factors are attributed to this. First, IPRA recognizes so-called "vested rights" on lands which were acquired by virtue of discriminatory land laws. Another provision in the law itself limits the period to ten (10) years for an action for reconveyance or the return of illegal or wrongful taking of ancestral land. Additionally, this remedy highly depends on the political will and the budget of the National Commission on Indigenous Peoples (NCIP) to represent the indigenous community before domestic courts.

Second, despite the existence of IPRA, executive privileges and powers have been used and abused to weaken indigenous peoples rights through the issuance of regulations and policies, in effect making the law inutile. The current trend in the Philippines as we speak is one that further weakens the right to self-determination with the issuance of regulations that limit the exercise of free, prior and informed consent, public participation, social acceptability and jurisdiction, while ensuring military protection and increase of economic incentives for investors.

Third, access to justice remains to be difficult for indigenous peoples as the NCIP itself has been adamant for indigenous peoples to follow strict and formal remedial requirements so that the complaints of indigenous peoples may be considered.

Other times, it is the NCIP itself that facilitates the entry of extractive industries within ancestral lands through the manipulation of free, prior, and informed consent processes. It is no surprise therefore that some indigenous groups have called for the resignation of NCIP officials. In fact, recently, a panel of Civil Society Organizations, which we were also a part of, disengaged from a process involving the joint review of the Free, Prior and Informed Consent Guidelines with the NCIP as the CSO panel found NCIP insincere and self-serving.

These are only some factors that lead to the further disenfranchisement of indigenous peoples. Thus, we make the following recommendations:

1. Government agencies or instrumentalities which are established or mandated to protect indigenous peoples and their rights be run by indigenous peoples themselves to ensure that such officials understand the dynamics, laws and cultures of indigenous communities. Corollarily to that, indigenous peoples must be given full participation to choose their own representative to decision-making processes at the international, regional, national and local levels;

2. Government executive privileges and powers should not be used to undermine the efforts, most especially those made by indigenous peoples themselves, for the recognition and protection of indigenous peoples rights;

3. Governments should establish remedies and processes for redress of issues that are culturally-appropriate and not necessarily adhere to formal contemporary legal requirements, otherwise making such remedy or process inutile for indigenous peoples;

4. Governments should afford indigenous peoples adequate time and resources to be able to take the most viable option for redress, restitution, compensation and reconveyance;

5. Governments should establish regulations for the reclassification of lands to properly reflect ownership of indigenous peoples to their ancestral territories, and finally,

6. For states and governments, motu proprio or at its own instance, initiate processes and remedies for redress, restitution, compensation and reconveyance in order to correct historical wrongs.

Thank you Madam Chair.