Bangsamoro Basic Law falls short on UN indigenous peoples rights

Source: 
Victoria Tauli-Corpuz - http://www.rappler.com/views/imho/93758-bbl-falls-short-un-indigenous-peoples-rights
Date of publication: 
20 May, 2015

Part 1 of 2

The UN Special Rapporteur on the Rights of Indigenous Peoples thinks the proposed Bangsamoro law falls short in meeting the minimum international standards for the survival, dignity, and well being of indigenous peoples

In light of the Bangsamoro Basic Law’s (BBL) impending adoption by the Philippine House of Representative and Senate, I would like to share my views on House Bill No. 4994 and its amended version.

The final adopted version of the BBL will have direct impacts on the rights of the Non-Moro Indigenous Peoples. In my capacity as the UN Special Rapporteur on the Rights of Indigenous Peoples, it is my responsibility to assess the opportunities and risks this law may have on them.

I fully support the goals to achieve peace with justice in the Bangsamoro territory and the protection and fulfillment of the human rights of the Bangsamoro people. For too long, the Bangsamoro together with the Non-Moro Indigenous Peoples have suffered and continue to suffer from the legacy of colonization, historical injustices, and persistent gross violations of their basic human rights. They are often dispossessed of their lands, territories, and resources without their free, prior and informed consent, and are deprived of their right to determine their political status and pursue their own economic, social, and cultural development.

There is no doubt that the Comprehensive Agreement on the Bangsamoro, the Framework Agreement, and now the enactment of the Bangsamoro Basic Law are key steps in the quest for long-lasting peace and justice for all. However, it is equally important to ensure that the rights of the Non-Moro Indigenous Peoples will not be diminished or derogated in any way in the BBL.

The IPs of Bangsamoro

The reports I received mention that the Non-Moro indigenous peoples within the claimed Bangsamoro territory have an estimated population of 122,980. These are the Teduray, Lambangian, and Dulangan Manobo, Higaonon, Erumanen Ne Menuvu, and the B’laan. It is estimated that they own approximately 309,720 hectares of land and 93,799 hectares of coastal areas, on the basis of Native Title. This covers more than half of the whole land area of Maguindanao province (11 municipalities) and 4 barangays in Wao, Lanao del Norte. The Erumanen Menuvu live in two barangays in Carmen, North Cotabato.

The rights of Non-Moro Indigenous Peoples are protected under the Indigenous Peoples’ Rights Act (IPRA) of 1997. This is why they are insistent that the IPRA should be acknowledged in the BBL. There is a high risk of the BBL’s failure to bring about long-lasting peace if the recognition of their rights embedded in the IPRA remains ignored. This is not to say that their rights under IPRA are effectively enforced to their satisfaction.

Notwithstanding the unsatisfactory implementation of the IPRA , the coming into being of the BBL does not offer comfort nor guarantees to the Non-Moro Indigenous Peoples that their rights will be better respected. In my various meetings with them, they told me that they will continue to assert their distinct identities and will sustain their fight to ensure that their rights to self-determination and to ancestral domains will be respected, protected, and fulfilled.

I am encouraged to see that House Bill 4994 and the amended version have integrated articles on indigenous peoples. These include, among others, the inclusion of non-Moro Indigenous Peoples in the Preamble (amended version), the freedom of indigenous peoples to choose their identities (Art 11, Sec 2), the recognition of their rights to their individual and communal property rights (Art V, Sec 3.30), and explicit references to the UN Declaration on the Rights of Indigenous Peoples and the Indigenous Peoples’ Rights Act (Art IX, Sec 5, Par 30).

I was also informed that Sec 9 of Art 1V, entitled, “Declaration on the Rights of Non-Moro Indigenous Peoples,” was passed through a vote at the Committee hearing level. I welcome the progress achieved. However, I still think that House Bill 4994 and its amended version fall short in meeting the minimum international standards contained in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) for the survival, dignity, and well being of the Non-Moro Indigenous Peoples. It also diminishes some of the rights of indigenous peoples contained in the IPRA.

The derogations revolve around the rights to self-determination, to ancestral domains, territories and resources, to cultural integrity and to development. The preamble of the UNDRIP and Article 2 affirmed that indigenous peoples are equal to all other peoples and they have the right be free from any kind of discrimination. Unfortunately, there are several articles which are not underpinned by the principles of non-discrimination and equality.

Article 11 of House Bill 4994 states that Bangsamoro People are those who are the natives or original inhabitants of the Mindanao and Sulu archipelago. All the Non-Moro Indigenous Peoples, therefore, even those outside of the claimed Bangsamoro territory, are Bangsamoro. This singular identification violates the right of peoples to be different and yet equal.

Most indigenous peoples in Mindanao who are not Islamized do not want to be identified as Bangsamoro. Article 11, Section 2 of the bill states that other indigenous peoples can be free to choose their identities which is the approach taken by the BBL to deal with this problem. This still does not adequately address the confusion on who are Bangsamoro and who are Non-Moro Indigenous Peoples. A clear definition on who is Bangsamoro should be included. For Non-Moro Indigenous Peoples, the IPRA definition on who is indigenous can be used in the BBL. – Rappler.com

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Non-Moro indigenous peoples aren’t second class citizens

Part 2 of 2

http://www.rappler.com/views/imho/93914-moro-indigenous-peoples-second-c...

‘It is unacceptable to see a law which relegates non-Moro indigenous peoples as second class citizens in their own ancestral domains and territories’

As I write this second part of my think piece, the ad hoc House committee already passed its version of House Bill No 4994 through 50 yes votes. There were 17 representatives who voted no and one who abstained. I will comment on this draft House Bill now renamed as “An Act Providing the Basic Law for the Bangsamoro Autonomous Region…”

In addition to the positive changes which I mentioned in my first article, I welcome some of the changes found in this new draft. The language in Section 2(o) (Ancestral Domains/Ancestral Lands of the non-Moro indigenous peoples) of Article V (Powers of Government) is very much appreciated. These include the inclusion of the term “ancestral domains,” the transfer of this subsection away from Exclusive Powers to Concurrent Powers, the establishment of a Ministry for Non-Moro Indigenous Peoples, and the reference to RA 8371 or the Indigenous Peoples’ Rights Act (IPRA).

Affirming that the Bangsamoro government and the national government shall cooperate and coordinate through existing national laws such as IPRA to create policies for the identification, delineation, and titling of ancestral domains is crucial. This needs to be further strengthened, however, to clearly state that the objective of the cooperation is to guarantee the recognition and protection of all the basic human rights of non-Moro indigenous peoples. These rights are listed in Article VIII, Section 5 of the draft. These are also enshrined in the IPRA and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

While these changes will put some balance in the draft law, I still have a serious concern on an issue which will derogate the rights of the non-Moro indigenous peoples.

Ancestral lands and domains

The concurrent powers exercised through IPRA and the basic rights of non-Moro indigenous peoples in Section 5, Article VIII are contradicted by this provision: The use of judicial affirmation as the means to recognize rights to land as stated in letter (d) of Section 4 (Other Exclusive Powers) under Article V. The Bangsamoro government is given the exclusive power to “recognize constructive or traditional possession of lands and resources by indigenous cultural communities subject to judicial affirmation…of imperfect titles under existing laws and this applies to ancestral lands.”

Judicial affirmation presumes that the ancestral domains or ancestral lands of non-Moro indigenous peoples are public lands which they are only occupying and, thus, need judicial affirmation to confirm their rights over these lands. But it is not clear where this judicial affirmation will come from. Will this be from the Shar’iah Court, the National Commission on Indigenous Peoples (NCCP) or the courts?

Ancestral domain and land rights of indigenous peoples are not the same as public lands occupied by landless informal settlers. “Native Title” as defined in IPRA “refers to pre-conquest rights to lands and domains, which, as far back as memory reaches, have been held under a, claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before Spanish Conquest.” (Par 1, Chapter 11, Section 3, IPRA).

The “Native Title” or Cariño Doctrine, which is the foundation of ancestral domains and ancestral land rights and claims of indigenous peoples, and which has been mentioned several times in the draft approved by the ad hoc committee should not be interpreted or used in a way which will weaken this legal doctrine.

Judicial affirmation is not mentioned at all in the provisions of IPRA, particularly in Chapter III (Rights to Ancestral Domain) and Chapter VIII (Delineation and Recognition of Ancestral Domains).

IPRA states that self-delineation is the guiding principle in the identification and delineation of ancestral domains. Well defined principles, policies, and procedures are laid out in Chapter VIII (13 sections) for the delineation of ancestral domains and ancestral lands.

The non-Moro indigenous peoples should have the option to choose which system they will use for the recognition and delineation of their ancestral domains and ancestral lands.

It is my view that judicial affirmation as used in this draft undermines the rights of the non-Moro indigenous peoples to their ancestral domains and ancestral lands, and their rights to natural resources contained in the IPRA and the UNDRIP.

The draft law mentioned that a law will be enacted by the Bangsamoro Parliament, which recognizes rights of non-Moro indigenous peoples to natural resources within their native titles as provided for in Section 11, Article XII. This law should be coherent with the standards set in the UNDRIP and in the IPRA.

Non-Moro indigenous peoples

I view with great concern the comment of MILF chief negotiator Mohagher Iqbal, who said that “among the amendments so far made to which the MILF did not “accept in principle” was the inclusion of the Indigenous Peoples’ Rights Act in the proposed Bangsamoro law.”

He also mentioned that IPRA was not part of the peace deal. This indicates that there is more work to be done.

Clearly, the strong lobby mounted by affected indigenous peoples from Mindanao and their support groups and the efforts of Congresswoman Nancy Catamco and other House members led to the changes. I congratulate them for these achievements.

I hope that the next processes such as the plenary will address the concerns I raised. I also hope that technical working groups will be established by the Senate, ensuring the full and effective participation of the leaders and representatives of the non-Moro indigenous peoples.

It is very unfortunate that this meaningful participation was not seen in the processes undertaken by the ad hoc committee.

I am hopeful that good faith and a sincere commitment to uphold the rights of indigenous peoples will guide the path towards the final enactment of the Bangsamoro Law.

Equality and non-discrimination still remain the bedrock of International Human Rights Law. Therefore, it is unacceptable to see a law which relegates non-Moro indigenous peoples as second class citizens in their own ancestral domains and territories. – Rappler.com

Victoria Tauli-Corpuz is the current United Nations Special Rapporteur on the Rights of Indigenous Peoples, appointed by the UN Human Rights Council for this mandate from 2014-2017. She is an independent human rights expert focusing on indigenous peoples’ rights and women’s rights. She is an indigenous person, a Kankana-ey Igorot, from the Mountain Province in the Cordillera Region.