CHAPTER 1: CONCEPTUALISATION OF THE PROJECT
1.1 THE PROJECT AND STUDY OBJECTIVES
1.1.1 Background
The Metagora project aims to bring statistical analysis into the heart of monitoring democracy, human rights and governance (DHRG) and to promote proper matching of quantitative and qualitative approaches with the intent of enhancing human rights reporting, governance evaluation and assessment of democracy. Metagora is policy-oriented in scope, multi-disciplinary in approach, and inclusive and participatory in method. Metagora focuses on evidenced-based monitoring of progress in the fields of democracy, human rights and governance.
The Philippines was chosen as one of the locations for evidenced-based national human rights diagnosis and monitoring under Metagora. This pilot survey covers three selected ancestral domains and involves the Commission on Human Rights of the Philippines (CHRP) as Partner Implementing Organisation (PIO) in collaboration with three national statistical agencies – the National Statistical Coordination Board (NSCB), the National Statistics Office (NSO), and the Statistical Research and Training Centre (SRTC) -- and in cooperation with the National Commission on Indigenous Peoples (NCIP), academia and NGOs. As the national human rights institution and independent commission established under the Philippine Constitution, CHRP (as PIO) ascertains that the pilot study proceeds according to acceptable quality standards.
There are 140 indigenous ethno-linguistic groups in the Philippines, representing 20% of the total population. Because of historical discrimination and exploitation, they are considered marginalised and vulnerable. Current development efforts recognise the need to put the indigenous peoples (IPs) in the centre of the development agenda, particularly in ascertaining that their rights are protected and fulfilled. The study is considered a milestone in that it will provide a benchmark on important aspects of IPs’ level of awareness, knowledge and practices concerning their ancestral domains and ancestral lands albeit on a pilot level.
At the global level, this project – together with the other studies conducted in other countries under Metagora - aims to address the need for evidence-based policy-making impact studies that will eventually result in draft guidelines for measuring, assessing and monitoring issues related to democracy, human rights and governance.
1.1.2 Objectives
1.1.2.1 Project Objectives
The “2005 Pilot Study on the Diagnosis of Indigenous Peoples’ Rights to Ancestral Domains in the Philippines” is one of the national pilot activities under Metagora. This project aims to develop methods and statistical tools using quantitative and qualitative approaches that will attempt to diagnose the current human rights situation among indigenous peoples. The development of the methods and tools shall be the result of a process of dialogue, consultation and consensus-building using the bottom-up approach between and among the Commission on Human Rights of the Philippines (CHRP) as Partner Implementing Organisation (PIO), its strategic partners, other governance stakeholders and indigenous peoples (IPs) and Indigenous Cultural Communities (ICCs).
A pilot survey complemented by qualitative study approaches will achieve the above project objectives. The results of the survey are expected to improve and objectify reporting on the enjoyment and/or violations of the rights of indigenous peoples by the identified duty-bearers. Focus group discussions and local consultations that will complement the survey are anticipated to generate results that will enhance the programme and policy measures for effective governance of indigenous peoples’ rights using rights-based norms and standards in a democratic setting.
1.1.2.2 Study Objectives
To study aims to:
- Determine the level of awareness and perceptions of IPs on their rights to ancestral domains and ancestral lands;
- Describe their enjoyment/realisation and/or violations of rights to their ancestral domains and ancestral lands;
- Identify measures provided to IPs by governance stakeholders to enhance/facilitate the enjoyment of their rights to ancestral domains and ancestral lands; and
- Describe mechanisms used by IPs from their respective communities and the government to redress their grievances due to violation of their rights to ancestral domains and ancestral lands.
1.2 THE RIGHTS-BASED CONCEPTUAL FRAMEWORK
- No cause is more worthy than the cause of human rights. Human rights are more than legal concepts: they are the essence of man. They are what make man human. That is why they are called human rights: deny them and you deny man’s humanity.
Jose W. Diokno
Large areas of the earth’s surface are inhabited by indigenous peoples. At a rough estimate, they comprise 300 million people spread across the world from the Arctic to the South Pacific. Indigenous or aboriginal peoples are so called because they were living on their lands before settlers came from elsewhere. They are the descendants of those who inhabited a country or a geographic region at the time when peoples of different cultures or ethnic origins arrived--the new arrivals later becoming dominant through conquest, occupation, settlement or other means.
In the Philippines, there are 110 ethno-linguistic groups or tribes representing some 11,778,190 people (as of 1996) or 17% of the total population. There are seven ethno-linguistic regions as follows:
| LIST OF INDIGENOUS PEOPLES (IPs) IN THE PHILIPPINES | |
| SOURCES: ECIP, NCCP-PACT, ONCC, OSCC, OMA, DENR. The list was consolidated from Anthropological Surveys and CADC applications. This list needs to be validated in future censuses using self-ascription as the basis. | |
| Ethno-linguistic Group | Location of Domains |
| CORDILLERA & REGION I | |
| Bontoc | Mountain Province |
| Balangao | Mountain Province |
| Isneg | Kalinga, Apayao |
| Tinngian | Abra, Kalinga, Apayao |
| Kankana-ey | Benguet, Mountain Province, Baguio |
| Kalanguya | Benguet, Ifugao |
| Karao | Benguet |
| Ibaloi | Benguet |
| Ayangan | Ifugao |
| Ifugao | Ifugao |
| Tuwali | Ifugao |
| Kalinga | Kalinga |
| Apayao | Kalinga, Apayao |
| Bago | La Union, Ilocos Sur, Ilocos Norte, Pangasinan |
| REGION II, CARABALLO MOUNTAINS | |
| Agta | Cagayan, Quirino, Isabela |
| Kalanguya | Nueva Vizcaya |
| Bugkalot | Nueva Vizcaya, Quirino |
| Isinai | Nueva Vizcaya |
| Gaddang | Nueva Vizcaya, Isabela |
| Aggay | Cagayan |
| Dumagat | Isabela, Cagayan |
| Ibanag | Cagayan |
| Itawis | Cagayan |
| Ivatan | Batanes |
| REST OF LUZON/SIERRA MADRE MOUNTAINS | |
| Aeta, Negrito, Baluga, Pugot | Zambales, Bataan, Pampanga, Tarlac |
| Abelling | Tarlac |
| Agta | Aurora, Palayan City, Camarines Sur |
| Dumagat | Quezon, Rizal, Aurora, Dumagat |
| Remontado | Rizal, Laguna, Quezon |
| Bugkalot | Aurora |
| Cimaron | Camarines Sur |
| Kabihug | Camarines Norte |
| Tabangnon | Sorsogon |
| Abiyan (Aeta) | Camarines Norte / Sur |
| Isarog | Camarines Norte |
| Itom | Albay |
| Pullon | Masbate |
| ISLAND GROUPS | |
| Agutaynon | Palawan |
| Tagbanua | Palawan |
| Dagayanen | Palawan |
| Tao’t Bato | Palawan |
| Batak | Palawan |
| Palawanon | Palawan |
| Molbog | Palawan |
| Iraya Mangyan | Mindoro Occidental/Oriental |
| Hanunuo Mangyan | Mindoro Occidental/Oriental |
| Alangan Mangyan | Mindoro Oriental |
| Buhid Mangyan | Mindoro Occidental/Oriental |
| Tadyawan Mangyan | Mindoro Occidental/Oriental |
| Batangan Mangyan | Mindoro Occidental |
| Gubatnon Mangyan | Mindoro Occidental |
| Ratagnon Mangyan | Mindoro Occidental |
| Ati | Romblon |
| Cuyunon | Romblon |
| Ati | Iloilo, Antique, Negros Occidental, Capiz, Aklan |
| Sulod/Bukidnon | Iloilo, Capiz, Antique, Aklan |
| Magahat | Negros Occidental |
| Korolanos | Negros Oriental |
| Ata | Negros Oriental |
| Bukidnon | Negros Oriental |
| Escaya | Bohol |
| Badjao | Cebu, Bohol |
| Kongking | Leyte, Samar |
| SOUTHERN & EASTERN MINDANAO | |
| Manobo | Agusan del Norte / del Sur |
| Mandaya | Davao Oriental |
| Mansaka | Davao del Norte |
| Dibabawon | Davao del Norte |
| Banwaon | Agusan del Sur |
| Bagobo | Davao del Sur, Davao City |
| Ubo Manobo | Davao del Sur, Davao City |
| Tagakaolo | Davao del Sur |
| Talaingod, Langilaan | Davao del Norte, Davao City |
| Mamanwa | Surigao del Norte |
| Higaonon | Agusan del Norte / del Sur |
| B’laan | Davao del Sur, Saranggani, South Cotabato |
| T’boli | South Cotabato |
| Kalagan | Davao del Sur |
| Tagabawa | Davao City |
| Manobo B’lit | South Cotabato |
| Matigsalog | Davao City, Davao del Sur / Davao del Norte |
| Tigwahanon | Agusan del Norte / del Sur |
| Sangil | South Cotabato, Saranggani |
| CENTRAL MINDANAO | |
| Aromanon | North Cotabato |
| Tiruray | Sultan Kudarat, Maguindanao, Cotabato City |
| Bagobo | North Cotabato |
| Ubo Manobo | North Cotabato |
| Higaonon | Lanao del Sur, Iligan City |
| Subanen | Lanao del Norte |
| Maguindanao | Maguindanao |
| Maranao | Lanao del Norte / del Sur |
| Iranon | Maguindanao, Lanao del Sur |
| Karintik | North Cotabato |
| B’laan | North Cotabato, Sultan Kudarat, Maguindanao |
| Lambangian | Sultan Kudarat |
| Dulangan | Sultan Kudarat |
| NORTHERN & WESTERN MINDANAO | |
| Subanen | Zamboanga del Sur,
Zamboanga del Norte, Misamis Occidental/Oriental, Zamboanga City |
| Talaandig | Bukidnon |
| Higaonon | Bukidnon, Misamis Oriental, Misamis Occidental |
| Matigsalog | Bukidnon |
| Umayamnon | Bukidnon |
| Manobo | Bukidnon |
| Kamigin | Camiguin |
| Yakan | Basilan |
| Sama | Tawi-tawi |
| Badjao/Sama Laut | Tawi-tawi, Basilan, Sulu Archipelago |
| Kalibugan | Zamboanga del Sur / del Norte |
| Jama Mapon | Sulu Archipelago |
In the United Nations and International Labour Organisation, the establishment and protection of the rights of indigenous peoples are an essential part of human rights and a legitimate concern of the international community.
The Philippine Constitution of 1987 states, under Section 22, Article II, the state principle on indigenous peoples, to wit: "Section 22. The State recognises and promotes the rights of indigenous cultural communities within the framework of national unity and development."
Article XIV, Section 17 of same Constitution provides that “the State shall recognise, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies.” The Constitution also recognises the special nature of the relationship of indigenous peoples to their ancestral domains.
Congress may intervene to formally recognise the existence of these resources as provided for under Section 5 of Article XII of the Constitution: “The State, subject to the provisions of this Constitution and national development policies and programmes, 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.”
The rights of indigenous cultural communities are especially expanded under Republic Act No. 8371, or the Indigenous Peoples’ Rights Act (IPRA), which was signed into law on 29 October 1997 and took effect on 22 November 1997. Its Implementing Rules and Regulations were approved on 9 June 1998 and became effective 15 days after its publication.
1.2.2 The Conceptual Framework
To serve as a guide in formulating the project and survey design that would enable the attainment of the project's objectives, a conceptual framework, generated from a literature review, was designed.
The survey’s conceptual framework is rights-based. A rights-based approach (RBA) is a mainstreaming process that links human rights to development. As such, RBA integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. The Philippine State is a party to many international human rights instruments of the United Nations and its organs, such as the ILO, UNESCO, FAO, and WHO. Many of these instruments are treaties with which the Philippines, as a state party, is obliged to comply.
Indigenous cultural communities (ICCs) and indigenous peoples (IPs) have long been one of the vulnerable, if not neglected, sectors in Philippine society. State policy towards them has evolved from that of segregation to assimilation and integration, and currently to that of recognition and preservation. It was to address the marginalisation of the ICCs/IPs that the 10th Congress of the Philippines passed and approved Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (Sedfrey Candelaria, 2002).
As human beings, indigenous peoples have human rights that must be respected, protected and fulfilled under these international human rights instruments. In addition to obligations under international human rights instruments, the 1987 Philippine Constitution also guarantees the human rights of all, including indigenous peoples. The constitutional rights of IPs are provided under the constitution. To further guarantee the enjoyment of their human rights, the Indigenous People’s Rights Act (RA 8371) was passed into law. The IPRA is the product of a long struggle by indigenous peoples and their allies, not only for access to resources needed for a sustainable livelihood, but also for recognition of their right to self-government and empowerment (Steven Roods, 2002). IPRA, in synopsis, recognises the existence of ICCs or IPs as a distinct sector in Philippine society. In doing so, IPRA provides for the respective civil, political, social and cultural rights of the ICCs or IPs; acknowledges a general concept of indigenous property rights and their title thereto; and creates the National Commission on Indigenous Peoples (NCIP) as the independent implementing body of R.A.8371.
1.2.2.1 Problems and Issues
Applying the bottom-up approach, this survey starts with a query on the problems and issues that beset the indigenous cultural communities in the country. Mainly done through consultations, this query is expected to elicit in more precise terms the issues and concerns of the target tribes on their human rights in general and their rights to ancestral domains and lands in particular.
Human rights issues must be addressed responsibly by rights duty-holders. Foremost among these duty-holders is the Philippine State, the primary duty-holder of human rights of people under its jurisdiction. This is so because it is a Party to at least 23 international human rights instruments under the United Nations system. Many of these treaties impose obligations to respect, protect and fulfil the human rights of all people, including the indigenous cultural communities. However, other governance stakeholders, such as civil society and the private sector, are also included as duty-bearers of the indigenous tribes in ancestral domains where they operate or hold business, respectively.
Perceptions and Awareness
This survey will draw from the respondent IPs their concepts and perceptions of their rights to ancestral domains and ancestral land. Even before rights found their way to the legal system, it was recognised that there are moral or natural rights recognised in the hearts of men. Rights are men’s birthright; hence, even without a legal system that guarantees these rights, they are inherent in everyone, inalienable, interrelated and interdependent. Thus, this survey will engage the IP respondents in identifying their rights, with a focus on the rights to ancestral domain and ancestral land.
The concept of a right to ancestral domains and ancestral lands will be explored with the aim of determining what the IPs perceive as the freedoms and entitlements that go with these rights. Specific rights have their normative content -that is, their actual meaning- which specifies the entitlements and freedoms that go with the right. This survey will attempt to find out if IPs have any concept of entitlement and freedoms that go with the different rights to ancestral domains and ancestral lands as defined under the IPRA. The survey will use the bottom-up approach in the diagnosis of these rights by finding out directly from the IP respondents what they think these rights are, rather than what is written in the IPRA. While the IPs are the subject and beneficiaries of the IPRA law, do the IPs have any concept about the rights that the IPRA law recognise, promote and protect? The rights to ancestral domains and lands under IPRA shall be used as standards for gauging the breadth and depth of perceptions and awareness of rights by the IP respondents.
The study will also determine whether the IPs are aware of the distinctions and differences of the various rights under rights to ancestral domains and ancestral lands. These rights are:
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I. RIGHTS TO ANCESTRAL DOMAINS (Section 7 Chapter III, R.A.8371)
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1.1. Right of Ownership
1.2. Right to Develop Lands and Natural Resources
1.3. Right to Stay in the Territories
1.4. Right in Case of Displacement
1.5. Right to Regulate Entry of Migrants
1.6. Right to Safe and Clean Air and Water
1.7. Right to Claim Parts of Reservations
1.8. Right to Resolve Conflicts
Realisation and Violations of Rights to Ancestral Domains and Lands
The study shall proceed further to explore the indigenous peoples’ reported enjoyment of their rights to ancestral domains and lands. The experienced violations, if any, will also be determined. Realisation means that any of the rights to ancestral domains and ancestral lands is enjoyed to a certain extent by the IPs. Violations are deprivations or abuses of the rights to ancestral domains and ancestral lands suffered or experienced by the IPs. Cases that illustrate realisation or abuses will be recorded. Actors - state or non-state actors - who perpetrate abuses or violations will be identified. The nature of abuses, such as ejection, forcible entry, harassment, discrimination, disenfranchisement from participation in decision-making, and other similar acts will be diagnosed. Actions by duty-bearers which provide enjoyment of rights and actions that deprived IPs of their rights to land and ancestral domain will be drawn from IP respondents.
Measures and Mechanisms
Having predetermined the problems and issues connected with the right to ancestral domains and ancestral lands, the human rights issues that emerge out of these problems, and the perceptions and awareness including realisation and violations of the rights to land and ancestral domain, this survey will go on further to determine the measures provided for and actually used by the respondent IPs for the realisation of their rights to ancestral domains and ancestral lands. Measures to enable the full realisation of human rights to be diagnosed shall include, but not be limited to, legislative/policy, programme, and judicial and administrative measures offered by the governance stakeholders, including the government institutions, as implementing arms of the State, the private sector, and civil society. Measures under this survey shall thus refer to any legislative or administrative programme or judicial measures undertaken by the government, whether national or local, or by the indigenous political structures of the IPs/ICCs. When identified, these measures will enable the study to monitor the compliance of the Philippine State, through its national and local government, in its obligations to respect, protect and fulfil IPs’ rights to ancestral domains and ancestral lands.
Human rights implementation must provide for mechanisms that will be accessed by the rights claimholders. Mechanisms may be legal as well as alternative and indigenous. In this survey, the IP respondents will be asked if they are aware of indigenous and non-indigenous mechanisms that they can use to realise their rights to ancestral domains and ancestral lands. These mechanisms will be duly recorded.
Mechanisms undertaken to enable the realisation of human rights must be in place and must be effective if human rights are to be realised and if violations are to be effectively responded to. The mechanisms include coping mechanisms, structures that are established, and customary laws and practices. The mechanisms established in legislation are important for redressing grievances due to human rights violations/deprivations, but these legal mechanisms are not the only ones that may be used. Alternative mechanisms, such as alternative dispute resolutions, can also be employed.
The goal of rights-based governance is human development that realises the basic human rights and fundamental freedoms of the governed. Its major role/function is to provide an enabling environment and facilitate the realisation of basic human rights and fundamental freedoms. Its key stakeholders are the government, the civil society and the private sector (corporate citizens).
In rights-based governance, the subjects of development and active participants and beneficiaries are the people. International norms and standards in development shall be derived from the provisions of the UN Declaration on the Right to Development.
Rights can be demanded and entail obligations on the part of duty-bearers. Inasmuch as the Philippine State had enacted laws, especially IPRA, that mandate the respect, protection and fulfilment of the rights to ancestral domain and ancestral lands, then all governance stakeholders must exert all efforts to fulfil their respective obligations. Civil society and the private sector, in keeping with their responsibilities in governance, should support, advocate and mobilise the people to enhance compliance by those in government to establish measures that comply with human rights norms and standards for the respect, protection and fulfilment of human rights. The IP respondents will also be asked if they have had any experience of enjoying their rights or redressing their grievances through assistance or support obtained from other governance stakeholders, such as the government, civil society and the private sector.
Governance must be able to function well, and the possibility to do so realistically can be attained within a democracy wherein governance is expected to be of the people, for the people, and by the people.
The enjoyment of human rights is related to the kind and quality of governance that a society has. Democratic governance appears to be compatible with human rights. In a democracy, the rule of law prevails. People participate and are allowed to make choices.
Everyone has the right to know his/her rights; only then can every human being attain the full realisation of his/her rights. Knowledge of human rights prevents a human being from becoming a victim of human rights abuses or a violator of human rights. Problems and issues of human rights are responsibly addressed in a democracy where governance is enabled to respect, protect and fulfil the human rights of the governed.
Human rights refer to the supreme, inherent and inalienable rights of men and women, without which they cannot live fully as human beings. The basic human rights to life, dignity and self-development allow for the full flowering of the potentials of a human being, without distinction as to gender, age, race, ethnicity, wealth, or other qualities.
Every human being is equal in right and dignity. Since they are inherent, human rights are not granted by the state; rather they are guaranteed through state obligations to respect, protect and fulfil them. No matter how poor a country or a community is, its government, the implementing arm of the state, can not abdicate from its obligation to good governance, which is expanded if the state is a signatory to human rights treaties, declarations or instruments.
The unwillingness of the state to comply with its obligations constitutes state violation of human rights. The state cannot abandon its duty to respect, protect and fulfil human rights which are also the limitations in the exercise of state power such as the police power, power of taxation and power of eminent domain. In the latter power, the right of indigenous peoples to their ancestral domains limits the power of the state to encroach upon this right without the consent of the governed IPs.
The state is obliged to provide progressive realisation of human rights and freedoms; this cannot be evaded because of a poor economy or lack of resources. While the state has both a right and a duty to formulate national development policies, it must do so with the free, active and meaningful participation of the people.
To ascertain whether human rights are indeed progressively realised, the normative content of each right should guide governance. Human rights recognised and enshrined in international human rights treaties have norms and standards of realisation developed under the United Nations. Governance stakeholders can easily access these norms and standards which they can apply to their governance functions as they become rights-based in their approach to democratic governance.
However, Indigenous Peoples are uniquely situated in that they maintain their customary laws and cultural practices, which could also be a source of norms and standards of human rights. The Indigenous Peoples are, on the other hand, citizens of the country; hence, they are covered by the laws of the state. International human rights instruments/treaties ratified by the Philippine State also form part of the laws of the state applicable to all citizens of the country, including Indigenous Peoples. To enable the Philippine State to carry out its human rights obligations among IPs, it is important to consider how the IPs view human rights, and how they perceive the measures and mechanisms established by the government to comply with its obligations towards human rights. Both international and national norms and standards must consider the norms and standards included in customary laws and cultural practices among IPs. When that is done, the measures and mechanisms will help to unify and build confidence, rather than alienate the IPs from the state's existing human rights legal system.
The people - individually or collectively - have the duty to exercise their rights responsibly and promote an appropriate economic, social, and political order of their society. The rights of others and the obligations towards others limit the exercise of an individual’s rights. Considerations/limitations due to public order, morals, health and interest are also limitations to human rights that are exercised by every human being. The rights to self-determination and to development are basic to the survival of the people and therefore must be respected, protected and fulfilled. IPs’ exercise of their rights should be complemented by fulfilment of individual and collective duties/responsibilities. This shall also be explored under the concept of human rights in this study.
Adopting a bottom-up approach and participatory processes gives IPs the opportunity to freely, actively and meaningfully participate in this diagnosis of their rights.
For further information, please refer to Appendix 1.1 and Appendix 1.2 of this Case Study.
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