This paper was presented and discussed by the author, Mr. Arthur Allad-iw during the Cordillera Peoples Summit on Genuine Regional Autonomy at UP Baguio on August 8, 2014, co organised by the Cordillera Peoples Alliance and All UP Workers Academic Employees Union

Link to Northern Dispatch Weekly: http://www.nordis.net/?p=21244

By ARTHUR L. ALLAD-IW
http://www.nordis.net

This article is focused on the indigenous peoples’ issues on ownership, use and control of the lands and natural resources. It presents a view of the historical development of how the indigenous peoples were institutionally and systematically deprived of their lands and resources, and if the historical deprivation is corrected under HB 4649, the proposed organic act for a Cordillera autonomous region.

DAY OF PROTEST. Hundreds of protesters from various Cordillera communities staged a series of protest actions on October 20 for the recognition of their rights over their ancestral domains and to assert their right to self-determination. Photo by Aldwin Quitasol

Historical backgroundCenturies ago, in the period of mercantilism at the dawn of capitalism, two powerful maritime states were emerging: Portugal and Spain. They began to explore and conquer new territories and with Pope Alexander VI’s intervention known as the Papal Bull of 1493, they agreed to the divide the world: one division to be colonized by Portugal and the other by Spain.

This led to the “discovery” of the Philippine Islands. Invoking the feudal conquest theory, they declared all the lands and resources in their “newly-discovered” territories as owned by the Spanish crown. This theory is now known in legal circles as the Regalian Doctrine.

Through the Treaty of Paris of 1898, the Regalian Doctrine was adopted by the next colonial master – the United States of America – with the same motive as its predecessors. The American regime passed law after law that “legally grabbed” vast lands and resources within its newly-acquired Philippine colony. This shows that most basic laws on land and resources were never neutral. Instead, they were enacted to further the basic socio-economic interests of the colonial rulers.

The US colonizers imposed their system and concepts of land usage and ownership in combination with the Spanish colonial land system now known as the Torrens system.

Torrens System and the Regalian Doctrine

Under the Torrens System, land ownership was proven only through a piece of paper called the Torrens Title or its derivative. Lands not covered by such paper titles were automatically deemed part of the public domain, hence, owned by the state.

This colonial land system continued even after the so-called Philippine “independence” from the USA. All the succeeding Philippine Constitutions – the 1935, 1973, and 1987 adopted the Regalian Doctrine.

Presently, Section 2, Article XII of the 1987 Constitution states: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.” This is the Regalian Doctrine provision, a legacy of the colonial past.

Still reiterating the doctrine, the constitution added: the public domains are classified into agricultural, forest or timber, mineral lands, and national parks and reservations. Only agricultural lands are alienable and disposable, where state grants title through its defined processes. Forest or timber, mineral lands, and national parks and reservations are inalienable and disposable, or cannot be owned by an individual.

As the owner, the State can lease these so called inalienable and indisposable lands of the public domain. Several cases decided by the Supreme Court, otherwise known as Philippine jurisprudence and form part of the law of the land, supported the above concept.

In the latest case of Gordula vs. CA, January 22, 1998, the Supreme Court ruled: “Once again, we reiterate the rule enunciated by this Court in Director of Forestry vs. Munoz and consistently adhered in a long line of cases the more recent of which is Republic vs. CA, that forests land or forest reserves are incapable of private appropriation, and possession thereof, however long, cannot convert them into private properties.” This ruling is premised on the Regalian Doctrine enshrined in the past Constitutions and the present 1987 Constitution. And as the final arbiter of any legal controversy, the Supreme Court clears doubt, that until now, we are still under the aegis of the Regalian Doctrine.

Laws that institutionalized non-recognition of IP land rights

Laws were passed to strengthen the hold of the Regalian Doctrine, and actually institutionalized non-recognition of indigenous peoples’ resource ownership and utilization.

First law, the 1975 Presidential Decree 705 or the Forestry Reform Code of the Philippines. It declares that no land of the public domain 18 % in slope and over (or 10.2 degrees in slope or over) shall be classified as alienable and disposable, as such is categorized as forest land.

Interesting, too, this law criminalizes indigenous peoples’ since-time immemorial activities, if done without license, like the cutting, gathering and/or collecting timber or other products; entering, to make kaingin, grazing; pasturing; or occupying for any length of time any portion of the national park system.

This law disregards the indigenous system of forest use, ownership and management whether communally or clan-owned like the muyong, batangan, tayan systems, among others. The IP viewpoint on forests is more sustainable than the state’s viewpoint which is commercial and profit-oriented; hence, the state grants license, permit, or agreement to corporate interests for the commercial exploitation of the forests.

Second, Republic Act 7586 known as the National Integrated Protected Areas System (NIPAS) Act of 1992. The law is lauded for it aims to prohibit human exploitation in protected areas due to the areas’ physical and biological diversity. While the intention of the law to protect the areas through the system, it however fails to recognize the rights and roles of indigenous peoples who actually nurtured and cared for the natural terrain and forests through their traditional sustainable development practices.

Their economic activities are confined outside the presently identified protected areas even if they had been utilizing it much earlier. And since these protected areas are now identified so recent laws and by national government, the traditional, time tested indigenous peoples systems are disregarded.

Third, PD 1067 or the water code and Energy laws (like PD no. 42 of 1972). These reiterates the ownership of the state over water resources over which only the state can grant privileges to corporate interests particularly.

Recently, the Bases Conversion Development Authority (BCDA) applied for water rights at the National Water Resource Board covering three main springs of three barangays within the Camp John Hay reservation.

And, in the case of Happy Hallow barangay particularly, the people were not consulted. Nor was their Free, Prior and Informed Consent acquired by BCDA despite the village having already acquired its Certificate of Ancestral Domain Title (CADT). The BCDA application was based on the water code which is an act reiterating the Regalian Doctrine.

Lastly, RA 7942 or the Mining Act of 1995. This law again reiterates the Regalian Doctrine and disregards the rights of IPS to their land and resources. Aside from the vast tracts of land subject to mining and auxiliary rights like tax holidays, the law provides for the areas open to mining which are all mineral resources in public or private lands, including timber or forest lands as defined by existing laws.

Even protected areas or reservations can be subjected to mining like in the case of the protected Mount Pulag Park reservation where two foreign companies applied for mining were, however both rejected by the communities.

In a research published by the Philippine Center for Investigative Journalism (PCIJ), MGB head Jasareno explained, reiterating a Supreme Court decision, that once a mineral land, they remain as mineral lands which can be subjected to mining.

In the Cordillera where mining applications are widespread more conflicts arise most over surface rights and sub-surface stakeholders. In conflicts involving surface and sub-subsurface rights, the Supreme Court in the case of the Atok Big Wedge Mining vs. CA (160 SCRA 228, 1988) ruled that the issue be resolved as to the classification of the area subject of the dispute.

If it is a dominant mining area, then the rights should be ruled in favor of the mining claim of a mining institution. This is a concrete case that demonstrates: a title does not secure the holder to their lands nor to the resources found in their lands. These are owned by the state.

Did IPRA address the historical injustice?

Did RA 8371 or the Indigenous Peoples Rights Act of 1997, correct the non-recognition of the rights of IPs over their land and resources?

Briefly, the IPRA grants IPs rights over their ancestral lands and domains, and natural resources. As to ownership of resources, let us focus on the following IPRA provisions:

Rights of ownership and possession to their ancestral domains, which include right of ownership over lands, bodies of water traditionally and actually occupied by the ICCs/IPs, sacred places, traditional hunting and fishing grounds…; right to develop lands and natural resources… (Section 7);

Priority rights in the harvesting, extraction, development or exploitation of any natural resource within the ancestral domain. (Section 57)

On September 25, 1988, the constitutionality of the IPRA was questioned. Particularly the provisions on ancestral lands and domains, specifically Section 3 (a) and (b), Sections 5 to 8, and Sections 57 to 58, insofar as these are in conflict with the Regalian Doctrine.

On December 6, 2000, the SC came out with an en banc resolution where the 14 justices were equally divided on IPRA’s constitutionality, a 7-7 vote. According to the Rules on Civil Procedure, Section 7, Rule 56), in a case where SC members are equally divided and neither side has the majority, the case will be re-deliberated; if the vote remains the same after the deliberation, the Petition is dismissed.

On September 18, 2001, the SC issued a resolution stating that the Justices who deliberated on the original petition find no reason to change their views on the questions raised by the petitioners, and thus maintain their votes as stated in the resolution of December 6, 2000. The result was an exact repeat of the previous SC decision – a 7–7 vote – that in effect denied the petitioner’s motion for reconsideration and the law by a technicality became constitutional (Cruz vs. NCIP, G.R. No. 135385 December 6, 2000).

But the common point in the SC justices’ opinions, is their unanimous position that the Constitution prohibits the private ownership of natural resources within the ancestral domains as the indigenous peoples have the preferential or priority rights as to exploitation.

Since both resolutions failed to introduce new doctrine on State policy on land and resources, such policy remains governed by the Regalian Doctrine.

These state policies and programs on land and resources that perpetuates the historical injustices against indigenous peoples must then be rectified in substance by the Organic Act for an Autonomous Cordillera Region.

Does the proposed bill (HB 4649) now in congress recognize the indigenous peoples’ ownership and control to their land and resources?

Under its (HB 4649) Declaration of Principles and Policies in Art II, Sections 9 paragraphs (b) and (c) and Art VIII, Sections 95 and 96, the bill reiterates national policy on preferential rights for indigenous peoples and providing limits on investments on these resources; almost the same policies contained by the statutes we mentioned above. The whole proposed bill failed to correct the state national policies on land and resources which are anti-indigenous peoples.

As a basic law, first and foremost, the ownership and control of resources should be subjected to the rights of the IPs under the context of their right to self-determination. In fact, even the shares of the region from the wealth taxes reflect the system of begging from the national government.

Cordillera indigenous peoples’ region owns the resources, why should it be entitled to only a fourty-percent share of the “national wealth tax” while the national government gets the larger 60-percent of the pie?

Is there basis to question the established Regalian Doctrine of the Constitution and to call for the full recognition of the IPs rights to own, control and manage their land and resources?

The answer is a resounding YES! The provisions of the constitution and international laws can be invoked to advance indigenous peoples rights to own and control their land and resources.

Section 2, Art XII of the 1987 Constitution states: “The state, subject to the provisions of this constitution and national development policies and programs, shall protect the rights of ICCs (Indigenous Cultural Communities) to their ancestral land to ensure their economic, social and cultural well-being”;

Section 5, Art XII states: “The Congress may provide for the applicability of the customary law governing property rights or relations in determining the ownership and extent of ancestral domain”; and,

Section 22, Art II which states: “The state recognizes and promotes the rights of ICCs within the framework of national unity and development.”

By the abovementioned provisions, Congress can, in fact, adopt a legislation that would truly recognize the indigenous peoples’ rights to own, utilize and manage their land and resources. Like the other provisions of the Constitution (except Art III or the Bill of Rights which is self-executory), these needs some legislation from Congress for the realizations of indigenous peoples’ rights, including the rights of IPs to own and utilize their land and resources.

Also, the 1987 Constitution’s incorporation clause provides that the generally accepted principles of international law form part of the law of the land that can also be utilized for the advancement of indigenous peoples’ rights.

Hence, we can use the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economics, Social and Cultural Rights that recognized the right to self-determination. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a more comprehensive instrument that can be invoked to advance the rights of indigenous peoples.

Clearly, these instruments for the indigenous peoples rights can be invoked to correct the historical injustices against indigenous peoples. At the international level, there now is a strong move for decolonization, in all its aspects, to correct the vestiges of colonial injustices inflicted by imperialism in their former colonies.

It is timely, then for the Cordillera to call and advance indigenous peoples’ rights to prevail over these vestiges of colonialism, like the Regalian Doctrine, which continuous to perpetuate injustices against indigenous peoples.

Photo by Noel Godinez

HB 4649 and historical injusticeStill on the proposed autonomy bill, the land issues of the indigenous Ibalois of Baguio are not addressed as the proposed bill maintains the American Baguio City 1909 Charter as stated under Section 42, Art III-B. This reiterates the IPRA Special Provision (Section 78, RA 8371) which states that Baguio shall remain governed by its charter, and all lands proclaimed as part of its town site reservation shall remain as such until otherwise reclassified by appropriate legislation.

The autonomy law could have corrected this historical injustice, instead it reiterated this colonial inspired Baguio City charter. HB 4649 could have instituted the Carino vs. Insular Government – a doctrine recognized internationally but shamelessly there was no such provision.

Self-determination refers to the right of indigenous peoples to freely determine their political status and freely pursue their economic, social and cultural development. One of the expressions of the right to self-determination is regional autonomy.

For substance and processes, the proposed autonomy law disregarded the principles enshrined on the right to self-determination. While the right to self-determination and other human rights has been internationally instituted, for the Cordillera indigenous peoples, it seems their realizations would not be granted by the state in a silver platter.

This however can be achieved through collective effort, the people, as one united in aspiration for a true autonomous Cordillera region. Again, the Organic Act for the Cordillera autonomous region, must address the historical injustices, particularly committed against the indigenous peoples’ ownership of their land and resources, and their participation in the crafting of a law that truly reflects their interests as a people in a truly democratic nation. # nordis.net

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