Republic of the Philippines COMMISSION ON HUMAN RIGHTS
Consolidated 2017 Report on the Human Rights Situation of Indigenous Peoples in the Philippines
Chapter 1. Background
It has been twenty years since the Philippines enacted Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 (IPRA), and ten years since the international community adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Conscious of this fact, the Commission on Human Rights of the Philippines (CHR) inquires on the current situation of the Filipino Indigenous Peoples and has launched the National Inquiry on this subject on May 25-26, 2017 at Iloilo City, where the first public hearing was also held. The National Inquiry is intended to:
• Identify adherence of laws, policies, rules, regulations, programmes, and projects concerning Indigenous Peoples with the standards of human rights; • Settle issues of facts relevant to the human rights situation of Indigenous Peoples (IPs) with focus on the three main thematic concerns: 1) the protection and promotion of the Indigenous Peoples' land and cultural rights, 2) the effectiveness of the current government process to obtain the Free, Prior and Informed Consent of Indigenous Peoples; and 3) the state of economic and social development of Indigenous Peoples in the Philippines; • Review the impacts of the Indigenous Peoples Rights Act of 1997 and identify areas of improvement; and • Increase understanding of human rights generally and commitment to better human rights observance through collaborative efforts that the Indigenous Peoples, as rights-holders, and the duty-bearers shall identify through the guidance of the Commission on Human Rights as lead convenor of the National Inquiry.
Several public hearings were also convened in Puerto Princesa City, Palawan (August 15- 16, 2017), Tagaytay City, Cavite (August 22-23, 2017), Davao City (September 27-28, 2017), and Tagoloan, Misamis Oriental (October 26-27, 2017).
The National Inquiry Approach
The national inquiry process is developed and applied by National Human Rights Institutions (NHRIs) within the Asia Pacific region.1 It has been found to be especially useful in enabling a broad examination of a complex, systemic pattern of human rights violations. It deals
1 Asia Pacific Forum of National Human Rights Institutions and Raoul Wallenberg Institute of Human Rights and Humanitarian Law September 2012 (updated May 2017). Manual on Conducting a National Inquiry into Systemic Patterns of Human Rights Violations.
1 with large situations rather than individual complaints. While it can still result in recommendations that provide remedies for individuals, its principal focus is the systemic pattern of violation. “Systemic” or “historic pattern of human rights violation” refers to a complex situation subsuming two or more continuing or recurring instances of reported human rights violation resulting from causes attributed to the action or inaction of either state or non-state actors over a certain period of time. Action or omission of the state pertains or refers to certain policies and programs that have impacts on a large group or sector of the population or community deemed marginalized, disadvantaged, or vulnerable.
Having this in mind, the national inquiry has high educational value. It introduces, exposes and explains a complex situation to the broad community, offering an analysis based in human rights law and providing recommendations for systemic responses.2 As such, the current process has been more of an inquiry on the solutions to the problems – Philippine style.
The report on the National Inquiry provides the threshold information on the situation of the Filipino Indigenous Peoples for the particular period, and the recommendations shall be translated into policies and programs. The report guides the operationalization of the Indigenous Peoples' Human Rights Observatory (IPHRO), a structure under the auspices of the CHR, which monitors the status and progress of implementation of the recommendations. The monitoring function is a cooperative and shared effort between and among CHR, the Indigenous Peoples, the government agencies, and other support groups. More importantly, CHR has established more direct linkage with the IPs through the national inquiry, serving as CHR's ground monitors. The inquiry does not end in the publication of one report. Sustained efforts are necessary to follow-up and improve the human rights conditions of the Filipino IPs, thus ascertaining that CHR will issue annual reports on the topic.
During the public hearings nationwide, resource persons who are members of the Indigenous Peoples (IPs) are present. They are the Akeanon Bukidnon, Ati Tumalalod, Ati Tina Hamtic, Iraynon Bukidnon, Panay Bukidnon, Sulod Bukidnon, Eskaya, Ata/Ati, Tribu Bukidnon, Tagbanua, Cagayanen, Palaw'an, Buhid, Sibuyan Mangyan, Taubuid, Mangyan Tagabukid, Ati, Bantoanon, Cuyonan, Batac, Dumagat, Ayta/Agta, Dumagat-Remontado, Kankanaey, Abeling, Bago, Ilongot, Manide, Kalanguya, Ayta Abellen, Teduray, Lambangian, T'boli, Erumanen ne Menuvu, Tagakaulo, Matigsalog, Dulangan Manobo, Bagobo-Tagabawa, Manobo-B’laan, Dibabawon, Mansaka, Mandaya, Ata-Manobo, Kalagan, Ata, Obu-Manobo, Bagobo-Klata, Sama, Sama of Tandubas, Sama-Dilaut of Sitangkai, Sama of Jolo, Yakan of Basilan, Sama of Simunul, Tausug of Jolo, Bajau of Bangas Island, Kolibugan of Zamboanga Sibugay, Sama Bajau of Zamboanga City, Sama Banguingui of Zamboanga City, Kolibugan of Zamboanga del Norte, Talaandig of Talakag, Bukidnon, Umayamnon of Bukidnon, Mamanwa/Kaotawan of Surigao del Sur, Banwaon of Agusan del Sur, Higaonon.
Also in attendance as resource persons during the hearings are representatives from the government, such as the National Commission on Indigenous Peoples (NCIP), National Commission for Culture and the Arts (NCCA), Philippine Statistics Authority (PSA), Department of Environment and Natural Resources (DENR), Land Management Bureau (LMB), Environmental Management Bureau (LMB), Mines and Geosciences Bureau (MGB),
2 Ibid.
2 Department of Agrarian Reform (DAR), Department of Agriculture (DA), Department of the Interior and Local Government (DILG), National Economic and Development Authority (NEDA), National Anti-Poverty Commission (NAPC), Department of Education (DepEd), Department of Social Welfare and Development (DSWD), Palawan Council for Sustainable Development (PCSD), Department of Tourism (DOT) and Mindanao Development Authority (MinDA).
There were several other government agencies; such as the Department of Labor and Employment (DOLE), National Housing Authority (NHA), Social Security System (SSS), Department of Health (DOH), Philippine National Police (PNP), the Armed Forces of the Philippines (AFP), and Indigenous Peoples Mandatory Representatives (IPMRs) from the regions of Luzon, who earlier participated during the March 2-3, 2017 Baguio Conference on the Indigenous Peoples' Right to Development where the design of the National Inquiry was originally deliberated.
Towards an Indigenous Peoples Human Rights Observatory (IPHRO)
As part of the process of the national inquiry, we consolidated the various comments and recommendations of resource persons from both the Indigenous Peoples (IP) rights holders and key state duty bearers on the proposal for an INDIGEOUS PEOPLES HUMAN RIGHTS OBSERVATORY or IPHRO. A conceptual framework of the IPHRO was developed from the analysis of the situation of the Filipino Indigenous Peoples as well as the analysis of the gaps from the responses and commitments of key state duty bearers.
From this conceptual framework, we identified the operative elements of the proposed IPHRO including the key set of issues that affects the fulfillment of IP rights that will be the focus of its monitoring & evaluation, its possible component programs as well as an initial design for a Results-Based Management (RBM) and Human Rights Based Approach (HRBA) M&E system and tool with a set of proposed outcome and impact indicators. The proposed M&E system and tool were developed utilizing the O.PE.R.A. (Outcome, Policy Efforts, Resources & Assessment) framework of ESCR (Economic, Social, and Cultural Rights) monitoring as well as the Indigenous Navigator tool recommended by the UN Permanent Forum on Indigenous Issues.
Participants of the IP National Inquiry which included relevant national government agencies, leaders of IP communities and IPMRs (IP Mandatory Representatives) were consulted through three (3) main workshops, as follows: a) Workshop 1-A was on the government agencies mandates vis-a-vis promotion & protection of IP rights. In parallel, the concurrent workshop 1-B for the IP representatives focused on their human rights situations per locality, relevance of the government agencies IP-related programs & projects and challenges encountered in demanding services and support from the state for IP-related needs. b) Workshop 2 was on monitoring fulfillment of IP rights, including existing M&E systems used by state and non-state actors to monitor fulfillment of IP rights c) Workshop 3 was on the initial notions of an IP Rights Observatory and the national inquiry
3 on IP rights focusing on issues and concerns that these will covered as well as proposed operative elements and processes that should be incorporated in the IPHRO.
The results of all these public hearings and workshops were presented to representatives of major IPOs and national government agencies in a final validation workshop held last 20 November 2017 where the preliminary findings were presented on the situation of Filipino Indigenous Peoples as well as the operative elements of a proposed IPHRO. Major commitments of NGAs were validated as well as part of this process.
Understanding Indigenous Peoples (IP) Rights
Under Republic Act 8731 otherwise known as the Indigenous Peoples Rights Act of 1997 and as reiteration of several provisions of the 1987 Philippine Constitution, Filipino Indigenous Peoples (IPs)/ Indigenous Cultural Communities (ICCs) are endowed by 4 bundles of rights as follows with the following key provisions:
Table 1: Details of the 4 Bundles of IP Rights in IPRA Right to • Right to Ownership Ancestral • Right to Develop Land & Natural Resources Domain & • Right to Stay in Territories and Not to be Displaced Therefrom Land • Right to Regulate Entry of Migrants & Other Entities • Right to Safe and Clean Air and Water • Right to Claim Parts of Reservation • Right to Resolve Conflicts According to Customary Laws • Right to Transfer Land or Property (only between and among members of IPs/ICCs) • Right to Redemption • Option to Secure Patents Under Commonwealth Act No. 141, as amended Right to Self- • Recognition of Authentic Leadership Governance • Authentication of Indigenous Leadership Titles and Certificates of and Tribal Membership Empowerment • Indigenous Political Leadership Development • Recognition of Socio-Political Institutions and Structures • Support for Autonomous Regions • Mandatory Representation in Policy Making Bodies • Right to Determine and Decide Own Development and Right to Develop as Peoples • Tribal Barangays • Right to Organize and Associate for Collective Actions • Registration Requirements for Indigenous Peoples Organizations (IPO) • Free, Prior and Informed Consent (FPIC)
4 Right to • Equal Protection Before the Law Social Justice • Rights During Armed Conflict & Human • Freedom from Discrimination Rights • Right to Employment • Right to Basic Services • Rights of Women • Rights of Children and Youth • Right to Education Rights to • Protection of indigenous culture, traditions and institutions; Cultural • Right to establish and control educational and learning systems; Integrity • Recognition of cultural diversity; • Right to name, identity and history; • Community intellectual property rights; • Protection of Religious, Cultural Sites and Ceremonies • Right to indigenous spiritual beliefs and traditions; • Protection of Indigenous Sacred Places • Right to protection of indigenous knowledge systems and practices; • Right to science and technology.
Under the United Nations Declaration on Rights of Indigenous Peoples (UNDRIP), besides the right to enjoyment of all human rights & what are similarly provided in the IPRA, IPs are endowed further with the following additional rights:
1. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group (Article 7)
2. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture (Article 8)
3. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.(Article 16)
4. Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programs affecting them and, as far as possible, to administer such programs through their own institutions (Article 23)
5. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.(Article 25)
6. States shall take effective measures to ensure that no storage or disposal of hazardous
5 materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent. (Article 29)
7. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.(Article 30)
8. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.(Article 36)
9. Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration (Article 39)
In Article 23 of UNDRIP & other related provisions on Right to Development of IPs, it is clear that the nature of the RIGHT TO DEVELOPMENT as an “…inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”, are first subjected to what constitute IP Rights.
Thus, in the context of the Philippines and considering UNDRIP, before the RIGHT TO DEVELOMENT of IPs is pursued, the nature and definition of what development means to Filipino Indigenous Peoples must first be established through the substantial fulfillment of the 4 bundles of IP rights. Figure 1 : 4-Bundles of IP Rights as Pre-Requisites for the Fulfillment of IPs Rights to Development Methodology, Scope and Delimitation
The national inquiry comprises several methodologies such as desk research, review of existing records, individual case conferences, submission and evaluation of written inputs, individual key informant interviews, focus group discussions, workshops, community dialogues, immersions, ocular inspections and follow-up sessions. Conduct of public hearings is a very important part of the whole inquiry process, albeit it is not by itself the national inquiry. In addition, while originally developed as a mechanism to inquire on systemic human rights violations, the national inquiry also included workshop sessions to identify the specific solutions to the problems and to plan for their implementation. The invited resources persons, particularly the complainants, were also asked to provide recommendations, while good practices were shared and recognized. Being a consensus-building mechanism, the national inquiry is truly a venue for both the rights-holders and the duty-bearers to engage in a partnership to resolve the issues.
6
The conference, public hearings, and workshops held from March to November 2017, were avenues for a rapid assessment of the human rights situation of the IPs. Primary data were obtained from oral testimonies and written submissions of resource persons who were invited from IP communities and government agencies. The IP resource persons in attendance during the public hearings have been confirmed by the NCIP. CHR selected them on the basis of the following considerations:
• Traditional tribal leaders from their respective Indigenous Political Structures (IPS) • Indigenous Peoples Organizations (IPOs) representing certain tribes • IPs involved in resolved, closed, or terminated cases filed with CHR • Indigenous Peoples Mandatory Representatives (IPMRs) covering the geographical areas and coming from the respective tribe
The process of public hearings has been guided and summarized in the following parameters and approaches:
1. The resource persons, particularly from the IP communities who are being categorized as Rights-Holders, provided information on the issues that they deemed significant for the Duty-Bearers to address. They publicly pronounced under oath during the hearings their complaints about the status quo, thus providing leads to systemic gaps in policy that must be addressed.
2. The Duty-Bearers, either admitted, denied or provided a different information about a particular issue. The Duty-Bearers did this under oath also.
3. Repetition of the same issues, if raised in different locale or setting, further strengthened the view that the issues are systemic, thus establishes a pattern that leads to determination of the causes, effects and the probable solutions. Triangulation method has been applied all throughout the inquiry process when hearings were held to cover all regions of the Philippines.
4. The issues are arranged and classified into major thematic areas. Themes that are distinctive for IPs alone, given their special situation, are being emphasized herein.
5. The issues are evaluated using human rights standards and verified through other references. As an added value of this report, human rights principles are mainstreamed and brought forth into the consciousness of the reader. The report provides answers to the questions: When are there human rights violations? When are there none? When are there concerns that could be prevented from becoming a full blown human rights violation?
The hearings in Iloilo City covers the IPs in Visayas, while the IPs of MIMAROPA Region were included during the hearing in Puerto Princesa City, Palawan. IPs of Regions III, IV-A, and V were involved during the public hearing in Tagaytay City, Cavite; IPs of Regions XI, XII and Maguindanao during the Davao City public hearing, and the IPs of Regions IX, X, XIII, and BaSulTa during the public hearing in Tagoloan, Misamis Oriental.
7
The whole National Inquiry has been patterned after the reporting cycle of the human rights treaty bodies, as illustrated in the figure3 below:
Figure 2 : Reporting Cycle of the Human Rights treaty bodies
Still in the second phase of the cycle, this 2017 Report provides information wherein the National Human Rights Institution in this case presents the list of issues. The 2017 Report consolidates the statements of the IP Resource Persons and how the Duty-Bearers responded during the public hearings, among others. Since this is primarily an inquiry on solutions, five public hearings were sparing, because searching for effective and lasting solutions would involve a perpetual circular process so long as problems arise. Chapter 4, of this Report describes the next steps of the National Inquiry, such as the conduct of continuing dialogues on specific issues.
3 Office of the High Commissioner for Human Rights (2015) Handbook for Human Rights Treaty Body Members http://www.ohchr.org/Documents/Publications/HR_PUB_15_2_TB%20Handbook_EN.pdf (accessed Nov. 23, 2017)
8 Chapter 2. Findings and Assessment
Through the National Inquiry, the CHR has found facts that are presented under the following interrelated themes: a.) Indigenous identity is threatened; b.) Non-IP's encroachment into ancestral domains as a threat to the indigenous identity; c.) Limitations to the right of ownership over ancestral domains; d.) Scope of free, prior and informed consent of IPs; e.) IPs' decision-making processes and governance structures; f.) Right to Development of IPs; g.) Opportunities for development provided by Duty-Bearers; h.) Development, discrimination and the vulnerable sectors of the IP Community (i.e., women, children, elderly); i.) Right to cultural integrity. We now elaborate each themes below:
Indigenous identity is threatened
Section 21 of the Indigenous Peoples Rights Act of 1997 (IPRA) refers to the State's commitment to give due recognition to the Indigenous Peoples' distinct characteristics and identity. It accords to them the rights, protections and privileges enjoyed by the rest of the citizenry in the Philippines. The question of indigenous identity is one that only the IPs themselves are competent to decide. Indigenous identity is the condition for one to enjoy the rights and protection under the law.
However, there are threats to the native identity of IPs as recognized in the IPRA.4 The government relies on estimated and outdated figures as to how many are the IPs in the Philippines. The classification is based on the 1996 list of the defunct Offices of the Southern Cultural Communities and Northern Cultural Communities.5 The 2010 Philippine Census of Population and Housing (CPH) remains to be the reference for the IP population in the country, as the next CPH will be in 2020.
There are no universal standards on what would constitute native identity. Other government agencies also rely on the Certificate of Confirmation6 that NCIP issues. For the
4 Indigenous Cultural Communities/Indigenous Peoples refer to a group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains (Sec. 3h, Indigenous Peoples Rights Act of 1997) 5 Explanatory note of Rep. Maximo B. Rodriguez, Jr. to House Bill No. 4545 filed on Nov. 29, 2016 http://www.congress.gov.ph/legisdocs/basic_17/HB04545.pdf (accessed Dec. 4, 2017) 6 It is a written Certification issued by the National Commission on Indigenous Peoples (NCIP) to bonafide Indigenous Peoples confirming their authenticity and ethnicity as an IP as defined/prescribed in Republic Act
9 purposes of the 2010 CPH however, ethnicity is considered a primary sense of belonging to an ethnic group. Ethnic group is consanguine in nature, meaning, the ties are reckoned by blood and traced through the family tree. Thus, ethnicity refers to the household member's identity by blood, and not by choice nor by adoption/confirmation for any ethnic group.
Generally, ethnic grouping denotes genealogical and paternal lineage to any of the Philippines's group of native population. For the purpose of the 2010 CPH, ethnic grouping also includes maternal lineage. Anybody whose consanguinity with both parents or any of them, who is/are member/s of an IP group, is an Indigenous Person.7 The literal question posed for the census is: “What is ______'s ethnicity by blood? Is he/she a /an ______?” Responses may not be as clear cut, however. For instance, one respondent may have parents who belong to different tribes. As mentioned, the 2010 concept of ethnicity excludes adoption or confirmation as mode of ascribing membership in a tribe, which could be allowed by the community's customary laws or practices.
On the other hand, language, or “mother tongue”, is only one of the several factors that determine native identity. One IP said, “In our place, the DepEd makes their survey to children only asking 'What is your tribe?' Then the children cannot answer. They change the question, 'What language is used in your home?', then the children answered 'Tagalog' and therefore they are no longer belonging to an IP community.”8
Existing rules on registration9 of vital events (e.g., birth, marriage, death) of IPs are not implemented to the fullest extent. There are many IPs who do not have birth certificates.10 It is not common practice for IPs to register their vital events and NCIP does not have budget for a program to address this concern.11 The IPs could not afford the costs of civil registration, such as when procuring certificates from the local civil registry office or the National Statistics Office (NSO). For example, in the two sitios of Brgy. Dalagsaan, Libacao, Aklan, there are at least 265 school children whose births are not registered.12 Each one would then need to pay at least Php140 for a certification of no birth record (a.k.a. negative certificate) as one of the prerequisites for delayed registration of birth, aside from the costs of obtaining other documents (e.g., affidavits of disinterested persons, cedulas, etc.) and the registration fees that the local
8371 and its Implementing Rules and Regulations. This certification entitles IPs to enjoy all the rights, benefits and privileges guaranteed under R. A. 8371 and all other laws, decrees, executive orders and legal issuance promulgated for the Indigenous Peoples. This program validates and confirm Certificates of Tribe Membership conferred to members of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) only for the intent and purpose it was issued, e. g. tribal identification, scholarship, local employment, travel abroad, land matters, NAPOLCOM, AFP (PAF, PA, PN, PM), BFP, BJMP and others. https://www.ncipro67.com.ph/services/application-to-certificate-of-confirmation-coc/ (accessed November 8, 2017) 7 Philippine Statistics Authority (2010) Census of Population and Housing http://psa.gov.ph/psada/index.php/catalog/64/datafile/F9/V139 (accessed November 8, 2017) 8 Per statement of Satur Bugnay (IPMR-Nueva Viscaya) during the Baguio Conference on the IP Right to Development 9 NSO Administrative Order No. 3, Series of 2004 and A.O. No. 1, Series of 2007 (for IP Solemnizing Officers) 10 Per statement of Joel Lumis (Tagbanua) during the 2nd public hearing in Puerto Princesa City, Palawan 11 Per statement of Pilar Mendoza (PSA) during the 2nd public hearing in Puerto Princesa City, Palawan and Thelma Aumentado's (Dumagat-Remontado) statement during the 3rd Public Hearing in Tagaytay City 12 Per statement of Sonny Estelloso (CHR-VI) during the 1st public hearing in Iloilo City
10 government unit (e.g., city or municipality) collects.13 Some births are not registered because the babies were not born in a hospital or authorized birthing facility.14 IPs consider such policies as discriminatory for not taking into account their location in Geographically Isolated and Disadvantaged Areas (GIDA) and the fact that births are traditionally attended by hilots or paltera.
Tribal chieftains or elders15 must first be accredited by the PSA, upon certification by NCIP, before they can solemnize marriage. Mere reference to customary law that a tribal chief can solemnize marriage is not sufficient authority. While some IPs believe that mere customary law is enough, others give value to government regulation on who must solemnize marriage because each tribe are different. If for the Tagbanuas, only one can solemnize, it may not be true for the Molbog or the Palaw'an.16 PSA reported that it engages tribal chieftains and capacitate them in the performance of their duty as such. 17 The NCIP had issued Certificates of Confirmation of Tribal Marriage,18 an area of concern that was identified in the IP Master Plan (2012-2016) as requiring immediate attention.19
There is no system that instantly generates data on IPs' vital events upon mere registration with the local civil registrar, such that PSA conducts the CPH. Inaccurate database for IPs result in confusion particularly in the government's delivery of services. It is observed that, separately from PSA, the DSWD conducts census where some IPs are not included, resulting to some IPs not getting the right incentives or services.20 More so, non-IPs take advantage of the lack of credible and accurate database for IPs. There are instances where non-IPs usurp the IP identity and the corresponding rights and privileges, such as the waiver of height requirements for applicants in the PNP and AFP.21
Specifically, IPs of Maguindanao, having asserted rights under IPRA, also expressed concerns that their indigenous identity will be affected by the enactment of the proposed Bangsamoro Basic Law (BBL), which does not recognize IPRA as governing law for the IPs who at present are at the territories concerned. The draft BBL makes further classification between Bangsamoro IPs and non-Moro IPs.22
The lack of an NCIP regional office in the Autonomous Region for Muslim Mindanao
13 Under, existing rules on civil registration, a Certificate of Confirmation from NCIP is not required for delayed registration of birth. 14 Per statement of John Michael Calumba (Tribu Bukidnon) during the 1st public hearing in Iloilo City 15 For the Tagbanua, they call him “Masikampo.” 16 Per statement of Victoriano Colili (CALG Palaw'an) during the 2nd public hearing in Puerto Princesa City, Palawan 17 Per statement of Pilar Mendoza (PSA) during the 2nd public hearing in Puerto Princesa City, Palawan 18 Cabreza, Vincent (Nov. 26, 2013) Giving Indigenous Peoples a Face. http://newsinfo.inquirer.net/535431/giving-indigenous-peoples-a-face (accessed (Dec. 5, 2017) 19 http://www.ombudsman.gov.ph/UNDP4/wp-content/uploads/2013/02/Indigenous-Peoples-Master-Plan-2012- 2016.pdf (accessed Dec. 5, 2017) 20 Per statement of Satur Bugnay (IPMR-Nueva Viscaya) during the Baguio Conference on the IP Right to Development 21 Per Thelma Aumentado's (Dumagat-Remontado) statement during the 3rd Public Hearing in Tagaytay City and Bae Edith Mansayagan's (Mansaka) statement during the 4th Public Hearing in Davao City 22 Per Alim Bandara 's (Teduray) statement during the 4th Public Hearing in Davao City
11 (ARMM) is also indicative of such threat to the non-Moro IP identity. The IP resource person said:
“Unang una, ang gusto kong pahayag sa CHR, na mula pa noon na isabatas ang IPRA, hanggang ngayon, hindi pa fully maimplement ito sa ARMM. Bunga nito, wala pong office ang NCIP sa ARMM lalong lalo na sa Maguindanao. Ang napiling opisina para sa katutubo ay yung OSCC or Office for Southern Cultural Communities na dapat sana ay wala na after maisabatas ang IPRA.23 Dahil dito, yung binanggit kanina na Four Bundles of Rights ng mga katutubo, medyo nagkaproblema ang mga katutubo sa loob ng ARMM lalo sa usapin ng FPIC ng mga katutubo sa loob ng ARMM. May problema pa rin sapagkat walang IPRA, walang NCIP na siyang parang magpapapatupad sa usaping FPIC sa panahong may programa na apektado ang IP communities.
xxx xxx xxx
Dahil sa problema ng IPRA, sa peace process, nagkaproblema sa identity namin. Para samin, malinaw ang definition ng indigenous peoples sa IPRA pero nang mapagusapan ang GPH at MILF, lalong lalo na ang issue ng BBL, contentious issue ng identity ng katutubo. Sa ngayon, may Bangsamoro IP at non-moro indigenous peoples. Itong mga issue na ito gusto naming linawin, sapagkat tinatanong kami sa freedom of choice, pinapapili kami kung anong identity namin samamantalang para sa amin, alam na alam na namin.”24
On the other hand, it is a positive development that the Office of the Presidential Adviser on the Peace Process (OPAPP) recently convened on April 26, 2017 the IP Peace Panel, particularly the Mindanao IP Legislative Assembly (MIPLA) that will craft, deliberate, and propose provisions in the BBL with due consideration to all the aspirations of the IPs, both Non- Moro and Moro. The legislative proposal is still pending in Congress.
Indeed, customs and traditions of each tribe are decisive in the determination of who are the IPs in the Philippines, inclusive of their vital statistics, civil and even political status. So far, there is insufficient comprehensive, updated and consolidated documentation or study about such customs and traditions.
23 The Office of Southern Cultural Communities – Autonomous Region in Muslim Mindanao (OSCC-ARMM) that currently exists was created by virtue of Executive Order No. 462 (May 17, 1991), which devolved to the Autonomous Regional Government of ARMM the powers and functions of the Office for Southern Cultural Communities that was created by virtue of Executive Order No. 122-C (Jan. 30, 1987). IPRA took effect on Nov. 22, 1997, or after such devolution was made in 1991. The merger of the ONCC and OSCC that IPRA mandated only affected regions outside ARMM (e.g. Regions IV, V, VI, VII, IX, X, XI, and XII). 24 Ibid.
12 Non-IPs' encroachment into ancestral domains as a threat to the indigenous identity
Non-IPs' encroachment into ancestral domains25 is also a threat to the IP identity. IPs have intimate connection with their ancestral domains, including all natural resources found therein, being regarded as the sacred source of their lives, a heritage from their ancestors, and for which they are obliged to preserve for the generations to come.26 The UNDRIP does not use the term “ancestral domains,” but provides in Article 26 that:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Only IPs are legally entitled to own ancestral domains in the Philippines, which are areas under their private communal ownership since time immemorial and that had never been part of public lands, hence exempt from the coverage of the Regalian Doctrine. As of March 31, 2016, 206 Certificates of Ancestral Domain Titles (CADTs) were issued, which represent 5,110,393.22 hectares and 1,108,223 IPs, or about 7.92% of the total estimated IP population pegged at 14,000,000.27
It is a question of fact to determine where ancestral domains are located. Unlike the UNDRIP, the IPRA has gone further in elaborating the process of determining ancestral domains and the required proofs include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such IPs in the concept of owners which shall be any one of the following
25 Ancestral domains refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; (Sec. 3[a], Indigenous Peoples Rights Act of 1997) 26 United Nations Office of the High Commissioner for Human Rights (2010) Minority Rights: International Standards and Guidance for Implementation http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf (accessed Nov. 15, 2017) 27 Per presentation of NCIP Commissioner Basilio A. Wandag during the Baguio Conference on the IP Right to Development
13 authentic documents:
• Written accounts of the IPs customs and traditions; • Written accounts of the IPs political structure and institution; • Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; • Historical accounts, including pacts and agreements concerning boundaries entered into by the IPs concerned with other IPs; • Survey plans and sketch maps; • Anthropological data; • Genealogical surveys; • Pictures and descriptive histories of traditional communal forests and hunting grounds; • Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and • Write-ups of names and places derived from the native dialect of the community.28
The NCIP Chairperson has the authority to certify that the area covered is an ancestral domain. The secretaries of the DAR, DENR, DILG, and DOJ, the Commissioner of the National Development Corporation, and any other government agency claiming jurisdiction over the area shall be notified thereof. Such notification shall terminate any legal basis for the jurisdiction previously claimed.29
Still, complaints about encroachment come up when non-IPs, and even IPs from other tribes, pursue tenurial claims over lands and resources that are also covered at certain ancestral domains. Overlapping tenurial claims are based on several laws on modes of acquiring ownership, use of natural resources, mineral extraction, land classifications and concessions that are separately implemented by different government agencies, such as DAR, LMB, MGB, and DA, with several database.
As such, DAR, DENR, LRA and NCIP issued Joint Administrative Order No. 1, Series of 2012 (JAO 1) to clarify, restate, and interface the respective jurisdictions, policies, programs and projects of said agencies to address jurisdictional and operational issues among them. It applies to the coverage of lands and/or processing by DAR, DENR and NCIP and registration with LRA of Land Titles embracing lands or areas which are contentious or potentially contentious, such as the following:
• Untitled lands with Approved Survey Plans claimed as covered by IPRA by the NCIP and ICCs/IPs to be part of their AD/AL and likewise being claimed by DAR and the DENR as covered by CARP and the Public Land Act, respectively;
• Titled lands covered by registered Certificate of Land Ownership Awards (CLOAs), Emancipation Patents (EPs) and Patents that overlapped with CADTs/CALTs/CADCs/CALCs;
28 Section 52 (d) of IPRA 29 Section 52 (i) of IPRA
14
• Resource access/development instruments issued by the DENR over lands within Ancestral Land/Domain Claims such as, but not limited to, Community Based Forest Management Agreement (CBFMA), Integrated Forest Management Agreement (IFMA), - Socialized Forest Management Agreement (SIFMA), Protected Area Community - Based Resources Management Agreement (PACBRMA), Forest Land Grazing Management Agreement (FLGMA), Co-Management Agreement, Certificate of Stewardship Contract (CSC), Certificate of Forest Stewardship Agreement (CFSA) Wood Processing Plant Permit (WPPP), Special Land Use Permit (SLUP), Special Forest Land Use Agreement (FLAG), Forest Land Use Agreement for Tourism Purposes (FLAGT), Private Land Timber Permit (PLTP), Special Private Land Timber Permit (SPLTP) and Foreshore Lease Agreement/Permit (FLA/FLP);
• Exploration Permit (EP), Financial or Technical Assistance Agreement (FTAA), Mineral Agreement (Production Sharing; Co-Production or Joint Venture), Small Scale Mining Contract and Quarry Permit issued within CARP-covered areas;
• Reservations, proclamations and other special law-declared areas a portion or the entirety of which is subsequently issued a CADT/CALT;
• Areas with existing and/or vested rights prior or after the registration of the CADTs/CALTs but for any reason not segregated/excluded, and
• Other jurisdictional and operational issues that may arise between and amongst DAR, DENR and NCIP as may be determined by the Joint National/Regional/Provincial Committees, as created under Section 19 of JAO 1 and Section 5 of JMC No. 8 Series of 2012.30
Contested areas/issues also contemplates formal complaints filed by concerned ICCs/lPs or by the NCIP in behalf of the ICCs/IPs over those identified titled areas found within the AD/AL.
JAO 1 formalized the composition of Joint Committees at the provincial, regional and national levels comprised of key technical personnel from NCIP, LRA, DAR, and DENR. The Joint Provincial/Regional Committees serve as the venues for the resolution of jurisdictional, operational and policy issues on the contentious areas within their territorial jurisdiction. In special cases, the Joint National Committee (JNC) may create Special Teams to handle specific contentious issues. The Special Teams shall submit their findings and recommendations to the JNC for resolution of the issue.
It is also provided that upon the effectivity of JAO 1 on February 11, 2012, the implementation of Land Acquisition and Distribution (LAD) and issuance of CLOA by DAR,
30 Joint DAR-DENR-LRA-NCIP Memorandum Circular No. 08, Series of 2012 (JMC No. 8) was subsequently issued to implement the provisions of JAO 1.
15 ancestral domain/ancestral land titling by NCIP, processing/issuance of patents by DENR, and registration of titles by LRA over identified contentious areas shall remain suspended unless resolved by the concerned Joint Provincial/Regional or National Committee. 31 That is why during the public hearings, IP resource persons called for the revocation of JAO 1, as they believe it has resulted in undue delay in the issuance and registration of CADTs.
The origin of JAO 1 came about when the LRA refused to register CADTs/CALTs, unless NCIP, DAR or DENR issued the corresponding Certificate of Non-Overlap (CNO).32 The intention of the agencies in implementing JAO 1 is to ensure that private land titles would be segregated prior to the issuance and registration of the CADT/CALT.
The premise is Section 56 of IPRA that recognizes and respects property rights within the ancestral domains that are already existing and/or vested upon effectivity of said law on November 22, 1997. Vested right is some right or interest in the property that has become fixed and established, and is no longer open to doubt or controversy. It is an immediate fixed right of present and future enjoyment, which must be contradistinguished from a right that is expectant or contingent.33 However, the DENR said that delineation is a process that requires meticulous care to prevent or address overlapping of land titles, and that land surveys would take some time to complete to be accurate.34
NEDA is conducting its study on the impacts of JAO 1 since 2016. They found that choke point in the processing of CADT is at the level of DENR. To quote NEDA35:
“Lumabas sa data na ang DENR ang nagpapatagal ng process. Last administration po ang one of the thrust nila ay ang mag-issue ng Patent. Malaki ang target sa pagdistribute ng Patent. Every time na magpapasa ang NCIP ng survey plan para sa pagbibigay ng Certification of Non-Overlap, meron na namang ibang application, so hanggang sa hindi na maisyuhan ng certificate. Ibabalik ulit sa NCIP tapos for validation ulit. Paulit-ulit lang po, ang nangyayari. Ang accomplishment lamang ng NCIP ang naaapektuhan. Hindi po naaapektuhan ang accomplishment ng iba. Nagtatagal lamang po. Isa po ito sa findings namin.
Isang findings pa po, iba ang definition ng “survey plan” ng NCIP sa DENR. Ang NCIP definition ay base sa approved plans, or limited only by approved plans of DENR before 1997. Ang definition ng DENR sa survey plans ay lahat ng land classification plans, e.g. timberland, cadastral lands, A and D, government resettlement areas, government protected areas. Ang NCIP ay yoong nakalagay lamang sa RA9970. Ang isang recommendation namin ay sana parehas sila ng definition ng survey plan.
31 Section 26, Joint DAR-DENR-LRA-NCIP Memorandum Circular No. 08, Series of 2012 32 Per statement of Leandro Caymo (DAR) during the 2nd public hearing in Puerto Princesa City, Palawan 33 Heirs of Gabriel Zari and Heirs of Hermenegildo Concepcion vs. Jose Santos, G.R. Nos. L-21213 and L-21214, March 28, 1968 http://www.lawphil.net/judjuris/juri1968/mar1968/gr_l-21214_1968.html (accessed November 8, 2017) 34 Per statement of Vicente Tuddao, Jr. (Assistant Regional Director, DENR-MIMAROPA) during the 2nd public hearing in Puerto Princesa City, Palawan 35 Per statement of Judy Mae Masangkay (NEDA) during the 2nd public hearing in Puerto Princesa City, Palawan
16
Kapag nagsurvey sila ng ancestral domain, ang magle-lead ay NCIP na naka-base sa AO 2007, na kahit po magsurvey sila ito ay base sa guidelines ng DENR na 2007.”
The above statement shows that processing of patents were pursued up to their registration, whereas the processing of CADTs were not, hence the statement: “Ang accomplishment lamang ng NCIP ang naaapektuhan. Hindi po naaapektuhan ang accomplishment ng iba.”
NAPC also leads an inter-agency review of JAO 1. There were case studies in Oriental Mindoro, Benguet Province, and Zambales. It has identified that the JAO is not implemented to the regional and provincial levels due to gap in communicating instructions and information from the national offices.36
While the act of registering CADTs/CALTs with the Registry of Deeds is not the mode for IPs to acquire ownership over ancestral domains, pursuant to the principle of native title, the registered CADT/CALT is still necessary for them to avail funding source for development projects and even to obtain other government permits such as for cutting trees and for using other natural resources within their domains.37
Stated otherwise, a registered CADT/CALT is the single most important proof of ownership for IPs that non-IPs, and even IPs belonging to other tribes, would look for. Based on NCIP records there were 206 CADTs approved as of 2012, but until 2017 only 43 are registered with the respective Registry of Deeds due to JAO 1.38
In particular, the relevant instances highlighted during the public hearings concerning ancestral domains are as follows:
• CADT of the Akeanon Bukidnon, covering more of less 19,000 hectares, could not be registered due to overlap of boundaries with military reservation in Capiz;39 • Clamor of the Akeanon Bukidnon to apply for CADT for domains that include Barangays Medina and Panipiason, Madalag, Aklan, but lack knowledge on how to initiate the process;40 • The original area of the Ati Tamulalod's ancestral domain, including Barangays Tamulalod, Bungsuan, Aglalana, Agsirab, Kuligli, in Damurao, Capiz, was about 1,225 hectares but when it was surveyed, the area was reduced to 500 hectares losing almost
36 Per statement of Judith Maranes (NAPC) during the 1st public hearing in Iloilo City and during the 2nd public hearing in Puerto Princesa City, Palawan 37 Section 11 of IPRA provides: “The rights of ICCs/IPs to their ancestral domains by virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.” (Emphasis ours) 38 Per statement of Judith Maranes (NAPC) during the 1st public hearing in Iloilo City 39 Per statement of Guillermo Colas (Akeanon) during the 1st public hearing in Iloilo City 40 Per statement of Lester Agapito (Akeanon Bukidnon) during the 1st public hearing in Iloilo City
17 half to CLOA holders;41 • Nomadic IPs such as the Atis of Anini-y, Hamtic, Dau, San Jose and Sibalom Municipalities in Antique clamor for a permanent resettlement site, but could not claim a particular ancestral domain;42 • Panay Bukidnon Tribe has pending CADT application, inclusive of Barangay Tacayan, Tapaz, Capiz, and during such pendency, various government agencies have also laid counter-claims to parts of their ancestral domain, such as the Armed Forces of the Philippines, claiming parts as military reservation;43 • Boundary dispute derails the processing of the CADT application of the Panay Bukidnon Tribe, covering certain barangays in Tapaz, Capiz. The survey from NCIP is still forthcoming and this is the main reason why this process have lagged behind. The subject ancestral domain overlaps with a military reservation, known as Camp Peralta;44 • Lack of budget for the continuation of the CADT application of the Bukidnon Tribe in Janiuay, Iloilo;45 • Pending registration and award of the CADT of the Dumagat-Remontado in General Nakar, Quezon;46 • On-going relocation of the Dumagats of San Jose, Bulacan due to overlapping claims of the Bangko Sentral ng Pilipinas (BSP); • Non-registration of CADT for the Aeta Abelle of Sitio Maporac, Cabangan, Zambales; • On-going relocation of the Abelling ethnic group in Brgy. Maamot, San Jose, Tarlac due to overlapping land claims of the National Irrigation Authority (NIA) and the construction of the Balog-Balog Dam Project; • Discrepancies of the area as stated in the registered CADT of the Aetas in Mabalacat, Pampanga, where 300 hectares more or less are not covered; • Displacement of Agtas from their ancestral lands in Casiguran, Aurora due to overlapping land claims of CLOA (Certificate of Land Ownership Award) holders in the same area; • Land disputes between the IPs (i.e., Bago, Ibaloi, Dumagat, Aplai, Bukidnon, Isneg and Kankanaey) and the other non-IP occupants of lands deemed as military reservation in Palayan City, Nueva Ecija; • Overlapping of the ancestral domains of the Matigsalog and Obo Manobo;47
The IP resource persons maintained that they should not be adversely affected by JAO 1, and demanded that their CADTs must be duly registered and immediately awarded.
41 Per statement of Pablito Escona (Ati Tamulalod) during the 1st public hearing in Iloilo City 42 Per statement of Perlita Oyong (Ati) during the 1st public hearing in Iloilo City 43 Per statement of Concepcion Diaz (Panay Bukidnon) during the 1st public hearing in Iloilo City 44 Per statement of Hermino Sapeda (Panay Bukidnon) during the 1st public hearing in Iloilo City 45 Per statement of Carlos Moreno (Tribal Chieftain, Brgy. Kuyot, Iloilo) during the 1st public hearing in Iloilo City 46 This and succeeding incidents are highlighted in the Statement of Partnership of the participants that was adopted by acclamation during the 3rd public hearing in Tagaytay City 47 Per statement of Bae Magdalina Herbilla (Matigsalog, Arakan, Cotabato Province) during the 4th public hearing in Davao City
18
Limitations to the right of ownership over ancestral domains
JAO 1 also illustrates a mechanism that could impede the full recognition of IPs' native title. While the law recognizes the IPs' right of ownership over ancestral domains and all resources found therein, such right is limited by, or otherwise subjected to, conditions provided in other national laws and regulations on the environment.
For example, the IPs cannot cut trees without first obtaining the permit from the CENRO. Kaingin is prohibited even if it is practiced within their ancestral lands. The IPs cannot engage in small-scale mining in ancestral lands that are not declared by the government as “People's Small- Scale Mining Areas” or “minahang bayan”. 48 The Wildlife Resources Conservation and Protection Act49 allows IPs to collect wildlife for traditional use and not primarily for trade. While generally killing and destroying wildlife is prohibited, it may be allowed when done as part of the religious rituals.
IPRA and environmental laws are consistent in using the term “priority rights” to describe the nature of rights that IPs have on how they are entitled to utilize natural resources in their ancestral domains. The law does not treat such right as exclusive for the IPs. Section 57 of IPRA provides:
“Natural Resources within Ancestral Domains. — The ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract.” (Emphasis ours)
Still, the IPs have pointed out the unequal and discriminatory application of the laws, where big private companies and non-IP personalities are deemed favored. As one Tagbanua50 would say: “Napakasaklap po, ang mga katutubo, kapag namutol ng isang kapirasong puno o isang kapirasong kahoy, diretso na sa pulis. Samantalang ang mga mining firm na bultu-bultong kahoy, napaka-lalaking kahoy na tinatabunan lamang ng lupa ay hindi nila nakikita.”
The IPs, while recognized as such, are integrated in the legal and socio-economic framework of the Philippines. They cannot live exclusively on their own as were their ancestors.
48 Section 7, Republic Act No. 7076 49 Section 27(a)(i) Republic Act No. 9147 50 Per statement of Joel Limsa (Tagbanua, IPMR-Narra, Palawan) during the 2nd public hearing in Puerto Princesa City, Palawan
19 In such cases where they find themselves in legal dispute with non-IPs, and IP from other tribes, the NCIP is not the proper forum to try and decide the case, but rather the regular courts as pronounced in the recent rulings of the Supreme Court in the cases of Loloy Unduran, et al. vs. Ramon Aberasturi, et al., (G.R. No. 181284, October 20, 2015), Ben Y. Lim vs. Sulpicio Gamosa (G.R. No. 193964, December 2, 2015), and Thomas Begnaen vs. Spouses Caligtan (G.R. No. 189852, August 17, 2016).
Scope of free, prior and informed consent of IPs
Non-IPs must obtain the free, prior and informed consent (FPIC) 51 of IPs for development projects and activities that will be implemented in their ancestral domains. FPIC is indicative of the IPs' right to self-determination that is already recognized in law. It is a distinct form of consent, different from how non-IPs would understand the term in a more individualistic sense. Not only is FPIC the consensus of all members of the IP community to be determined in accordance with their respective customary laws and practices, it must also be free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community.52
The process starts after the concerned government agency forwards the application to the NCIP to verify if the project will be located on an ancestral domain (AD). Thereafter, the application is forwarded to the NCIP Regional Office that oversees the area. The regional director (RD) will form the Field Based Investigation (FBI) Team. They will conduct a conference together with the IP community, IP elders, and the applicant.
If after the field investigation, the FBI Team finds out that the area is not within AD, they make a report and recommend for the issuance of a Certificate of Non-Overlap (CNO). However, if the land is within the AD, the FBI Team recommends for the undertaking of the FPIC process. The applicant will be informed and Pre-FPIC Conference will follow through.
During the Pre-FPIC Conference, the FBI Team will prepare the Work and Financial Plan (WFP). Questions will be clarified during the Pre-FPIC Conference. It is during the first community assembly when the IP elders and leaders will be identified or recognized. A discussion of their rights will then be made. During the second community assembly, the applicant presents the project to the community. The IPs thereafter conduct their own activity, such as consensus building. They are given enough time to discuss the pros and cons of the project, before deciding whether or not to allow it.
If the project is not allowed, the IPs will issue the Resolution of No Consent (RNC). The Proponent will be given the copy of the Resolution, and he will be given the chance to request for reconsideration. If the project is approved, the IPs will issue the Resolution of Consent (ROC). Negotiations begin, which may eventually lead to the execution of the Memorandum of Agreement (MOA) that would be signed by the IP leaders, NCIP and the proponent. The proponent shoulders all the costs appurtenant to the FPIC process. Documents will be processed
51 The current reference for FPIC process is NCIP Administrative Order No. 3, series of 2012 52 Section 3(g), IPRA
20 and forwarded to the Regional Review Team (RRT). They are tasked to review all the documents. The regional director (RD) endorses the documents to Ancestral Domain Office (ADO) in the NCIP Central Office.
The MOA signed by the parties will be forwarded to the Legal Affairs Office (LAO), which presents copied thereof to the NCIP Commission En Banc (CEB) for approval. If approved, a Certificate of Precondition (CP) will be issued. A copy of the Certificate will be given to the endorsing government agency. The process flow for FPIC is presented in the figure53 below:
Figure 3 : Process Flow of Securing Free Prior Informed Consent (FPIC)
However, specific concerns and complaints on violations of FPIC are narrated by the resource persons during the public hearings, as follows:
• DENR's National Greening Program (NGP) is implemented in ancestral lands without FPIC, because per DENR records the lands are deemed under public domain, such as in Capiz;54 • There are comprehensive land use plans that did not consider ancestral domains, resulting to the pursuit of ecotourism in areas near Montillano Falls, Iloilo without FPIC;55 • LGU Bohol has not recognize FPIC of the Eskaya peoples for implementing Bottom-Up
53 Based on the presentation of Mr. Frederick William Crespillo, Jr. from the Ancestral Domains Office, NCIP, delivered during the focus group discussion with CHR held on August 18, 2016 54 Per statement of Atty. Rosette Ferrer (DENR Central Office) during the 1st public hearing in Iloilo City 55 Per statement of Val Talavero (DENR-Region VI), during the 1st public hearing in Iloilo City
21 Budgeting (BUB), such as when it constructed and commercialized water reservoir;56 • The policies and implementing regulations of BUB or what is now called the Assistance to Disadvantaged Municipalities (ADM) program57 do not contain explicit provisions to cover the situation of IPs and how they should be consulted;58 • San Andres Corporation, Lionheart, Green Palawan Power Agriculture Corporation and Agumil Philippines (owned by certain Mr. Ong and Mr. Lim) pursue agribusiness (palm oil, corn, coconut) in certain parts of Palawan without FPIC;59 • Mining operations of Citinickel Mines and Development Corporation in Sofronio Española and Narra, Palawan violates FPIC; more so, an apparent concern in relation to FPIC within this context is their claim for royalties under their Memorandum of Agreement with Citinickel;60 • Pursuit of the geothermal project by Aboitiz in San Marcelino, Zambales where the Aetas reside;61 • Mining operation of Ore Mining and Development Corporation in Doña Remedios Trinidad, Bulacan where the Dumagats' ancestral lands are located; • Quarrying operations in Mabalacat, Pampanga as reported by the Aeta communities who are impacted; • Utilization of Masungi Georeserve in Brgy. Cuyambay, Tanay Rizal and the National Greening Program in locations such as Montalban, Rizal affecting the Dumagat- Remontado from Tanay and Montalban, Rizal; • Pursuit of tourism project in the crater of Mt. Pinatubo in Botolan Zambales by the LGUs without FPIC of Aeta communities affecting some 3000 families; • Quarry operations in Montalban, Rizal must undergo FPIC process with the Dumagat- Remontado; • Renewal in 2016 of Integrated Forest Management Agreement (IFMA) covering Saranggani, Bagumbayan, Ezperanza, and Sultan Kudarat that did not undergo FPIC process of Dulangan Manobo;62 • Collaboration of some tribal leaders to manipulate FPIC process in favor of the National Grid Corporation of the Philippines (NGCP) during negotiation for a road/right of way over the ancestral lands of Tagakaulo and B'laan;63 • Sagittarius Mines, Inc. that has exploration activities in Tambacan and Malungon, Sanranggani undertook a dubious FPIC process with collaboration of some of the tribal leaders.64
On the other hand, non-IPs would cite the alleged tedious and costly process to obtain
56 Per statement of Roberto Datahan (Eskaya) during the 1st public hearing in Iloilo City 57 http://www.dilg.gov.ph/news/DILG-rolls-out-Assistance-to-Disadvantaged-Municipalities-program/NC-2017- 1119 (accessed November 15, 2017) 58 Per statement of Dino Ponsaran (DILG-Region VI) during the 1st public hearing in Iloilo City 59 Per statement of Motalib Kemil (Tagbanua) during the 2nd public hearing in Puerto Princesa City, Palawan 60 Per statement of Joel Limsa (Tagbanua, IPMR-Narra, Palawan) during the 2nd public hearing in Puerto Princesa City, Palawan 61 This and succeeding incidents are highlighted in the Statement of Partnership of the participants that was adopted by acclamation during the 3rd public hearing in Tagaytay City 62 Per statement of Rubin Dalimbang (Dulangan Manobo) during the 4th public hearing in Davao City 63 Per statement of Leo Ingay (Tagakaulo) during the 4th public hearing in Davao City 64 Ibid.
22 FPIC and, for them, it is not clear with who among the IPs should they deal with. Even more problematic is the situation when IPs without CADT would insist for the conduct of FPIC, since in the records of other government agencies the lands involved do not overlap with ancestral domains. NCIP believes that it can only initiate the FPIC process upon endorsement of the project or activity by the relevant government office.65
The NCIP guidelines on FPIC is currently being reviewed and one of the proposal is to require a clear description of the decision-making process in the IP community, who are often not homogenous. It is further observed that factions among the community would emerge once the issue is about monetary gains, such as on royalties that would be paid in view of development projects in the ancestral domain.66 The FPIC process is deemed impractical due to the policy of “one CADT, one unit,” wherein the FPIC of all other IPs would be obtained even if the direct beneficiary of the project or activity is only a small portion thereof.67
The DENR and NCIP need to clarify what plans, activities and programs must undergo the process. For example, DENR believes that no FPIC is needed if the lands covered under an IFMA would be integrated, consolidated or merged, since it has undergone a previous FPIC process, in contrast to the position of NCIP.68 DENR does not view integration, consolidation and merger of IFMA as equivalent to its renewal. The government is also of the view that in case the IPs themselves are the ones who solicited the projects and activities, the usual and tedious FPIC process could be modified.69
IPs' decision-making processes and governance structures
Where there is confusion in the FPIC process, the situation indicates insufficient or lack of understanding about the decision-making and governance structures of the IPs. Often there are state agents and non-IPs that would raise the question: “Who are the IPs and where are they located?” The situation shows the threat to the indigenous identity as it is being doubted and questioned.
There are efforts to integrate the IPs in the mainstream structure of the Philippine polity. The law requires that the indigenous political structures (IPS), IP mandatory representatives (IPMRs), and peoples organizations (IPOs) must first be duly validated and recognized by NCIP. The selection process of IPMRs are also assailed.70 Non-IP LGU officials prevent IPMRs from performing their duties. Stated otherwise, the law and corresponding regulations 71 are not
65 Per statement of Roberto Almonte (NCIP Region IV) during the 2nd public hearing in Puerto Princesa City, Palawan 66 Per statement of Dexter Precioso (NCIP Region X) during the 5th public hearing in Tagoloan, Misamis Oriental 67 Per statement of Geronico Aguio (NCIP Region XI) during the 4th public hearing in Davao City 68 Per statement of Hadja Didaw Piang Brahim (DENR-LMB, Region XI) during the 4th public hearing in Davao City 69 Per statement of Ronald Papag (DSWD) during the 4th public hearing in Davao City 70 Per statement of Conrado Quioang (IPMR Ilocos Sur) during the Baguio Conference on the IP Right to Development 71 These regulations are: DILG-NCIP Joint Circular No. 001, Series of 2011 (Guidelines for the Determination of the Minimum Threshold of IP/ICC Population in a Local Government Unit to Allow Mandatory
23 properly implemented because the local officials could easily and conveniently resist the IPMRs from assuming their positions in local sanggunians. The local sanggunians must still enact the ordinance appropriating funds for the salaries and other emoluments that would be paid to the IPMRs. The NCIP does not have authority over LGUs, hence it cannot compel them to recognize IPMRs.72
The IPMRs are at risk of losing their nature as holders of a public office that should be independent. One IP said, “Aminin man natin o hindi, mapulitika ang ating bansa. Kapag hindi ka kay Mayor, walang magagawa ang IP. 'Bata-bata system' – buddy-buddy system of the politicians. Kung tagapagsalita ka ni Mayor, 'tropa-tropa' ka ni Mayor, kahit wala kang dugo ng IP, magiging IPMR ka na.”73 Still, there are conflicts between IPS and IPOs, particularly in Mindanao, because there are IPOs that are not recognized by IPS. Under Sections 3(f), 4, 7(15) and 8 of NCIP Administrative Order No. 2, Series of 2012, the IPS creates the IPOs and determines their functions as such. The IPS has the power to convene the community and in accordance with local processes to lead the selection of the lPMRs in all policy making bodies and in local legislative councils.
Right to Development of IPs
The IPRA is clear that IPs will freely pursue 74 their economic, social and cultural development through the medium of their indigenous political structures (IPS). The IPs have the right to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use.75 They are entitled to participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them.
On the other hand, the IP resource persons are not fully satisfied with the development efforts of the government. There are no national data that show whether or not the IPs are poor, but there are Listahanan reports in 2015 from NEDA Region V that there are 796 IP households who are poor in said region.76 The IPs narrated the challenges they face in availing government programs on livelihood, work opportunities, education, health, housing, and the corresponding facilities (e.g., access roads that would connect the IPs to the town proper). While some IPs are not informed on how to avail the programs, others lament that the conditions to avail the programs are formulated without properly considering their situation, hence restrictive.
There are two modes by which development is intended to be realized for IPs, i.e. in case
Representation in the Local Sanggunians); NCIP Administrative Order No. 2 Series of 2012 (The General Guidelines on the Confirmation of Indigenous Political Structures and the Registration of Indigenous Peoples' Organizations); NCIP Administrative Order No. 001 Series of 2009 (National Guidelines for the Mandatory Representation of Indigenous Peoples in Local Legislative Councils) 72 Per statement of NCIP Commissioner Basilio A. Wandag during the Baguio Conference on the IP Right to Development 73 Per statement of Egmidio Gonzales, Jr. (IPMR Olongapo City) during the Baguio Conference on the IP Right to Development 74 Section 13, IPRA 75 Section 17, IPRA 76 Per statement of Liz Bellen (NEDA Region V) during the 3rd public hearing in Tagaytay City
24 they initiate the program (e.g. through the IPs' Ancestral Domain Sustainable Development and Protection Plan), and when they avail those intended even for non-IPs (e.g., DSWD's three-core social protection programs: Pantawid Pamilyang Pilipino Program/Conditional Cash Transfer Program; Sustainable Land Program; and KALAHI-CIDDS, National Community-Driven Development Program). IPs are located in remote areas (also known as “Geographically Isolated and Disadvantaged Areas” [GIDA]) and it is a challenge for the duty-bearers to physically reach them. Still, one IP who now holds a government position said to his fellow IPs, “Do not take everything to be given to you like 'manna' from heaven.” 77 On a positive note, it is a pronouncement recognizing that IP communities must be self-sufficient and self-sustaining. The duty-bearers should do their part of the work in realizing that goal. Development is a cooperative effort of both the rights-holders and the duty-bearers. He also reported that there are 138 groups that have formulated their own ADSDPP,78 but there are no sustainable funding source to fully implement them.79
NCIP Administrative Order No. 1, Series of 200480 provides that the IPs have the option to present their ADSDPP for funding thereof before government agencies and instrumentalities, the private sector, international aid agencies, and other donor groups. There is no categorical commitment in law on the part of government to provide the budget to implement the programs in the ADSDPP. Even IPRA merely mandated the NCIP “to negotiate for funds and to accept grants, donations, gifts and/or properties in whatever form and from whatever source, local and international, subject to the approval of the President of the Philippines, for the benefit of ICCs/IPs and administer the same in accordance with the terms thereof; or in the absence of any condition, in such manner consistent with the interest of ICCs/IPs as well as existing laws.”81 Royalties (minimum of 1%) from the mining companies are sources of funding to implement the ADSDPP.82
Opportunities for development provided by Duty-Bearers
The government asserts that it provides the opportunity for IPs to realize their right to development. It is a declared policy that economic opportunities created by the state shall be extended to IPs on the basis of freedom of initiative and self-reliance. The IPs shall freely pursue their economic, social and cultural development of their own choice and at their own pace in a manner determined by themselves towards national unity and development.83
77 Per statement of NCIP Commissioner Basilio A. Wandag during the Baguio Conference on the IP Right to Development 78 The ADSDPP is a long term comprehensive spatial and development plan with at least five years programming of activities with the purpose of identifying and implementing programs and projects to strengthen self- governance, alleviate poverty, protect the environment and cultural integrity, and build lasting peace and genuine development within ancestral domains of particular ICCs or IP groups. (Section 7, Article II, Guidelines on the Formulation of the Ancestral Domain Sustainable Development and Protection Plan) 79 Ibid. 80 Guidelines on the Formulation of the Ancestral Domain Sustainable Development and Protection Plan (ADSDPP), Article II, Section 7(c)(4) 81 Section 44 (g), IPRA 82 Per statement of Constancio Paye (DENR-MGB, Region IX) during the 4th public hearing in Davao City 83 Guidelines on the Formulation of the Ancestral Domain Sustainable Development and Protection Plan (ADSDPP), Article 1, Section 4 (d)
25 a.) During the Baguio Conference on the IP Right to Development (covering the situation of IPs in Regions CAR, I, II, III, IV, and V as taken from the perspective of regional and national government agencies, including the IPMRs) –
The government agencies reported that their existing development programs for IPs, or at least benefit them, include the following:
• NCIP – Human, Economic and Environmental Development and Protection Services, Education Assistance Program, Merit-based Scholarship, Health Programs • NAPC – Representation of IPs and IPOs in the Bottom-Up Budgeting (BUB) Grievance Redress Committee and the Local Poverty Reduction Action Team (LPRAT) in their respective cities and municipalities • NEDA CAR-Regional Development Council – Program for social preparation of Cordillera into an Autonomous Region • DA – Special Agricultural Area Development Project, wherein priority beneficiaries are IPs • SSS – Accreditation Program under Cooperatives and Informal Sector Group, including IPs; subsidy program; AlkanSSSya Program; JO-KaltaSSS Program • DOH – IP Health Program • NHA – Resettlement assistance programs in partnership with LGUs • MGB – Administration and disposition of mineral resources • DepEd, NCIP – IP Education (IPEd) • DOLE – IP Desks b.) During the Public Hearing in Iloilo City, covering the IPs' situation in the Visayas –
The government agencies reported that their existing development programs for IPs, or at least benefit them, include the following:
• DA – promotion of agricultural and fisheries development • DENR – IP Desks; conduct of surveys of alienable and disposable lands; National Greening Program; Community-Based Forest Management; Integrated Social Forestry; Integrated Natural Resources and Environment Management Project; Forestland Management Project; B+WISER Philippines Biodiversity & Watersheds improved for Stronger Economy & Ecosystem Resilience; Reducing Emissions from Deforestation and Forest Degradation-Plus; Indigenous Peoples and Communities Conserved Areas; Protected Area Management Enhancement • DSWD – Pantawid Pamilya; Kalahi-CIDSS; Sustainable Livelihood Program (SLP); Listahanan; Social pension; Supplementary Feeding Program; Disaster Response Operation; Recovery and Reintegration Program for Trafficked Persons (RRPTP); Payapa at Masaganang Pamayanan (PAMANA); Protective Services Program; Adoption and Foster Care; Gender and Development Program (GAD) c.) During the Public Hearing in Tagaytay City, covering IPs in Regions III, IV-A, and V –
The government agencies reported that their existing development programs for IPs, or at
26 least benefit them, include the following:
• DA – distribution of the farm inputs, livestock, farm machineries and equipment; conduct of trainings, extension support services; and research and development • PSA – deliver relevant, reliable statistics and civil registration services for equitable development towards an improved quality of life for all; generate official & general purposes statistics; and carry-out Civil Registration Laws in the country • DSWD – lead in the formulation, implementation and coordination of social services; Protective Services (Assistance to Individuals and Families in Crisis Situation, Supplementary Feeding Program, Social Pension, Disaster Mitigation and other community-based programs); Sustainable Livelihood Program; KALAHI CIDSS (Kapitbisig Laban sa Kahirapan): Comprehensive & Integrated Delivery of Social Services; Pantawid Pamilyang Pilipino Program; and Modified Conditional Cash Transfer for IPs • DENR – Enforcement of 5 Environmental Laws: PD 1586 – Environmental Impact Statement System; RA 8749 - Philippine Clean Air Act; RA 9275 - Philippine Clean Water Act; RA 9003 - Ecological Solid Waste Management Act; RA 6969 - Toxic Chemical and Hazardous Waste Management Act
d.) During the Public Hearing in Davao City, covering IPs in Regions XI, XII, and Maguindanao –
The government agencies reported that their existing development programs for IPs, or at least benefit them, include the following:
• DENR – Conservation of protected Areas Program; Management and Development of River Basins; Integrated Coastal Residence Management Program; Forest Protection; Resource Use Regulation; Ecotourism Development and Management; Resource Use Regulations; Water shed Management and Development; Delineation of Protection and Production Forest Program; Forest Land Use Planning; Foreshore Development and Management Planning; National Greening Program • DAR – Land Tenure Improvement Services; Program Beneficiaries Development (Support Services); Agrarian Legal Services; Land Distribution and Acquisition • DA – Rice Program; Corn Program; High Value Commercial Crops Development Program; Organic Agriculture Program; Agribusiness and Marketing Assistance; Agricultural Competitiveness Enhancement Fund Scholarship Program • DSWD – Pantawid Pamilyang Pilipino Program; Modified Conditional Cash Transfer – IP; SLP; KALAHI CIDDS; Supplemental Feeding; BUB; Resource Augmentation to Relief Operations and Rehabilitation of LGU (Cash For Work/Food For Work); Recovery and Reintegration Program for Trafficked Persons; Travel Clearance for Minors; AICS Assistance to Individual to Crisis Interventions; Social Pension Program; Center Based – Reception and Study Center for Children, Regional Rehabilitation Center for Youth • NEDA – Investment programming and budgeting; Policy Formulation; Socio Economic Development and Physical Planning; Project Development and Monitoring
27 • NCIP – Flagship program: Pipes 2017-2022; Ancestral Domain; ADSDPP Formulation Scholarship; Education; IPMRs/ IPS / IPOs; Capacity Building; ADSDPP Implementation; Monitoring of IP Rights Violation e.) During the Public Hearing in Tagoloan, Misamis Oriental, covering IPs in Regions IX, X, XIII, and the Provinces of Basilan, Sulu, and Tawi-Tawi –
The government agencies reported that their existing development programs for IPs, or at least benefit them, include the following:
• NCIP – Issuance of CADT; ADSDPP formulation • DENR – CBFMP; NGP; INREWIP; FLGMA; Issuance of Certificate of Non-overlap for areas without ICCs/IPs to all mining applicants; Issuance of PreCondition from NCIP for areas with ICCs/IPs to all mining applicants • DOT – Infrastructure; Promotion and Marketing • DSWD – Pantawid Pamilya Program or MCCT; KC; NCDDP; SLP (Sustainable Livelihood Program • DAR – Infrastructure facilities; Marketing assistance; Credit programs; Technical support
The aforesaid agencies engage with the IP Communities to a certain extent. The actions taken by government that provide opportunities for the IPs to realize their right to development are the manifestation of how it intends to address the gaps in the development agenda. However, it appears that in some of the government's programs, the IPs are mere recipients of aid from the government. If that is solely the case, it is contrary to the context of sustainable development, or one that puts emphasis on the inter-generational responsibility of the present generation to comprehensively and sustainably manage their ancestral domain and all resources found therein so that future generations may enjoy them.
A resource person pointed out: “Each IP has a difference, you deal with them separately, hindi pwedeng as one, as one Mindanao na IP, dapat according to tribe. Iba-iba talaga sila.”84 Hence, the better approach to realize the IPs' right to development is through their own planning and programming process that would result to the formulation of their ADSDPP. The option of the IPs to adopt a sustainable development and protection plan shall be respected under the principle of free pursuit of development as a people.85
Unfortunately, the IPs lack capacity to formulate plans, programs, and projects.86 In such case, those who have the capacity, financial resources and technology (whether IPs or non-IPs) have an advantage. An IP resource person's narration encapsulates the situation thus:
“Tungkol sa ancestral domain fund, we have 18,000 hectares yet we are relying on convergence ng different NGA at LGU. Hindi siya uunahing linangin
84 Per statement of Cecilia D. Trino (Mindanao Development Authority) during the 4th public hearing in Davao City 85 Op. cit., Note 43 86 Per statement of Chito Balintay (Provincial Board Member, Zambales, IPMR-Aeta) during the 3rd public hearing in Tagaytay City
28 ng LGU. Hindi nangyayari. Isa yun sa inaasahan kong mabigyan ng ancestral domain fund for the development, using ADSDPP as a framework of the implementation for project and programs because everything is in place. May plano pero walang pera para sa implementasyon. Yan ang isang problema sa implementasyon. Kapag walang pera. Ang pagpasok ng mga migrant settlers and other peoples continue, pati mga organizations na gustong pumasok, kumukuha o nagpopokus ng atensyon dahil marami na sila, masisira ang integridad sa lupaing ninuno. Ang influx ng migrants, minsan kapag may problema, binebenta ko na at ito ay nasa loob ng ancestral domain. Anyway that is internal problem. Kailangan sana ng intervention kung hindi na namin kaya. Then yung protection ng ancestral domain. That is why kailangan ibigay ang pondo, we have 18,000 hectares. How could we protect an entire area kung ang kumpanya pumasok at dala ang kanilang sariling army just to put them in the area. Mayroong illegal logging, mayroong migrants, paano naman ang simpleng tribo lamang?”87
Development, discrimination and the vulnerable sectors of the IP Community (i.e., women, children, elderly)
The IPs felt discriminated against by non-IPs, even by the government, in terms of economic opportunities and accessing of programs. Their non-inclusion in government programs are deemed discriminatory, as they are left behind. They consider themselves powerless since the government immediately penalize them for violation of certain laws, such as on environmental protection, while big companies could go scot-free. They believe that non-IPs and even other IP groups consider them as having lesser capacity, such as in the classroom88 and work setting. They are mere tools for some, who would befriend them whenever convenient to the latter's interest.89 The Sama Bajaus and nomadic Atis are treated as “eye sores” for being mendicants and due to their dirty physical appearance.90 It is observed that IPs, such as those in far-flung areas are prone to be influenced by leftist groups.91
The IPs clamor to be self-sufficient and self-sustaining communities, and they expect the full support of the government, who in certain instances is not fully cognizant in implementing the IPRA and other laws loosely recognizing the indigenous identity, or one that has tendency to insist its ideas from top to bottom.92 IPRA is categorical in recognizing the IPs' right to special measures for the immediate, effective and continuing improvement of their economic and social conditions, including in the areas of employment, vocational training and retraining, housing,
87 Per statement of Eleutrio Manaytay (Mandaya, Provincial Tribal Chieftain, Davao Oriental) during the 4th public hearing in Davao City 88 Per statement of Ruel Morfing (Youth leader, Teduray) during the 4th public hearing in Davao City 89 Per statement of Jeorge Largado (Bukidnon Karulano, IPMR-Kabankalan, Negros Occidental) during the 1st public hearing in Iloilo City 90 Per statement of Philip Salvador Acuna (IP Focal, DSWD Region III) during the 3rd public hearing in Tagaytay City 91 Per statement of B/Gen. Noelito Albano (AFP Northern Luzon Command) during the Baguio Conference on the IP Right to Development 92 Per DOLE's identification of issues and concerns in monitoring the right to development of IPs, during the Baguio Conference on the IP Right to Development
29 sanitation, health and social security. Particular attention shall be paid to the rights and special needs of indigenous women, elderly, youth, children and differently-abled persons.93 It is only after 20 years of IPRA when the ethnographic survey would be conducted to gather disaggregated data on IP women, children, elderly, and that would once and for all clarify the scope and meaning of ethnicity.94 Still, there has been the legal basis for the IPs' demand for special attention.
IP women raise the young at home. The primary concern of IP women is about their health conditions, particularly reproductive health. The IPs have in mind the DOH's “no home birthing policy”. This policy is also considered to have an effect on the customs and traditions of the IPs. For instance, a male IP should not approach a pregnant woman IP while giving birth, but in health centers there are male nurses.95 The IP women could not afford the cost of giving birth in health centers. They are accustomed to pay their traditional birth attendant (“hilot”, “paltera”) in kind (e.g., chicken, food). The government implements the “no home birthing policy” to address the rising number of maternal deaths since 2011 and local government units enacted local ordinances penalizing delivering through the assistance of traditional birth attendants.96 Meanwhile, health facilities in Geographically Isolated and Disadvantaged Areas (GIDA) are not established. Mainstream medical practices also conflict with the IPs' traditional health system. Municipalities and provinces considered to have a large GIDA and IP population have poor health indicators compared to municipalities and provinces that are more accessible. The delivery of health services are devolved to the LGUs. But delivery of health service to IPs may be complex. IP communities are geographically defined by their ancestral domains that may be covered by geographic areas of various sizes and at times under several LGUs.97 IP women would want to have more active involvement in the decision-making process of their group.
IP youth and children ask for more opportunities to develop their potential, particularly through education. They are conscious of their role to preserve their groups' cultural heritage. However, they believe that the scholarship programs of the government, primarily based on the mainstream grading system as NCIP requires, 98 are deemed not considerate of their socio- cultural background. Schools are located far from the children's homes. Also, the IP Youth resource persons from Maguindanao and Compostela Valley Province are bothered in what they know as continuing efforts of certain groups to recruit the IP youth to join the armed struggle.99 The same situation occurs in Sitio Sambisan, Brgy. Poypoy, Calintaan, Occidental Mindoro,
93 Section 25, IPRA 94 Per statement of NCIP Commissioner Basilio A. Wandag and presentation of Dahlialyn Dait-Cawed during the Baguio Conference on the IP Right to Development 95 Per statement of Roldan Babelon (Erumanen ne Menuvu) and Linda Midal (Lambangian) during the 4th public hearing in Davao City 96 House Resolution No. 1531 http://gabrielawomensparty.net/sites/gwp/files/HR1531%20Investigate%20DOH%20No%20Home%20Birthing %20Policy.pdf (accessed November 28, 2017) 97 DOH-NCIP-DILG Joint Memorandum Circular No. 2013-01 (April 19, 2013). Guidelines on the Delivery of Basic Health Services for Indigenous Cultural Communities/Indigenous Peoples http://ncipro67.com.ph/wp- content/uploads/2015/09/DOH-NCIP-DILG-JOINT-MC-NO-2013-01-dtd-19-April-2013.pdf (accessed November 28, 2017) 98 Per statement of Bae Nena Lindaan (Mandaya) during the 4th public hearing in Davao City 99 Per statement of Ruel Morfing (Youth leader, Teduray) during the 4th public hearing in Davao City
30 concerning a youth Taubuid who is allegedly recruited by the military.100 Most IP children are not registered at birth. For instance, in two sitios of Brgy. Dalagsaan, Libacao, Aklan, there are already 265 IP children who are not registered and do not have birth certificates.101 Children who are not born in hospitals or health centers are not registered.102 During the 2nd public hearing in Tagaytay City, the youth sector of the Dumagat-Remontado from Rizal, the Aytas from Limay, Bataan and Botolan, Zambales specifically recommended the following:
• Feeding Program para sa Malnutrisyon – meron naman po kasi puro lugaw at lugaw na may itlog. Kung mapataaas pa ang nutritional content para mapunan ang nutrisyon ng bata • IEC Materials para sa tamang nutrisyon • Awareness seminar para sa mga magulang – family as the most basic unit kaya sila ang magtuturo sa mga bata. Example, ang sexual reproduction, aware tayo sa sex, ang anak dapat nagguide natin sila pero mismo ang parents ay hindi aware sa ganitong issues. Ang youth ngayon ay naooverwhelm sa technology, pag pumasok ang curiosity ng isang bata, kung walang guidance ng magulang, may tendency na mapahamak siya. • Tulong sa Pagpaparehistro o birth • Pagtulong sa pagkuha ng requirements • Panawagan sa NCIP para sa tamang dokumentasyon.
IPs have high regard for their elders. The IP youth look up to their elders for guidance on how to continue and preserve their customs and traditions. Being an elder in the IP community does not necessarily mean reaching the age of 60 years old. There are IP senior citizens who are not included in the list of beneficiaries of the social pension, monthly stipend and other benefits.103 They are not aware about the criteria and process to avail the government programs for senior citizens.
Right to Cultural Integrity
The IPs manifested during the hearings that their culture and way of life must be respected by non-IPs, particularly their ancestral domains. Encroachment to ancestral domains are considered as disrespect. The implementation of government projects, such as the NGP, education, health and livelihood services are deemed not sensitive to the cultural context of the IPs and their native identity
100 Per statement of Kalib Macapagal (Taubuid) during the 2nd public hearing in Puerto Princesa City, Palawan 101 Per statement of Guillermo Colas (Akeanon Bukidnon, Brgy. Dalagsaan, Libacao, Aklan) during the 1st public hearing in Iloilo City 102 Per statement of Lettie Magango (representing Bantuanon and Ati Group, Odiongan, Romblon) during the 2nd public hearing in Puerto Princesa City, Palawan 103 Per statement of Valentin Regla (Tagabukid) during the 2nd public hearing in Puerto Princesa City, Palawan
31
In order to assess the key findings above, we applied a problem tree analysis of the non- fulfillment of IP rights as summarized here:
Figure 4 : Problem Analysis on the Non Fulfillment of IPs Rights in the Philippines
1. Main Effects
Throughout the inquiry, it was noted that there were recurring issues brought forward that were summarized into four (4) key issues representing the MAIN EFFECTS of non-fulfillment of IP rights, to wit:
• First, unsecured or threatened ancestral domain & land, violation of FPIC (Free, Prior, Informed Consent) process, displacement & dispossession of IPs and loss of ecological integrity;
• Second, non establishment of the self-governance mechanisms and non maximization or threatened representation of IPs (by their IPS-Indigenous Political Structures, IPOs- Indigenous Peoples Organizations, and now also their IPMRs-IP Mandatory Representatives in LGUs);
32 • Third, insufficient support to the IPs socio, economic and cultural development through full implementation of their ADSDPP (Ancestral Domain Sustainable Development Protection Plan);
• Fourth, non consideration of IP rights in autonomy & peace efforts (Cordillera, Bangsamoro and other parts of the Philippines); and
• Fifth, insufficient protection of the most vulnerable IP sectors including IP women, IP youth, IP children, IP elders, IP IDPs (internally-displaced people) and IP nomads.
In the discussion, it was clear that these five (5) key main issues do not stand independent of each other but are actually interlinked. This is clearly shown in this hierarchy of effects:
Figure 5 : Hierarchy of Effects of Non-Fulfillment of IP Rights in the Philippines
When ancestral domains (ADs) are not secured or are threatened as manifested by intrusion of non-IPs due to violation of FPIC and as a direct results of conflicting claims within the ancestral domain , IP communities tend to be displaced from their own lands becoming internally displaced people (IDP). This displacement are often due to force, intimidation or deceit. In many reported cases, when displaced IPs attempt to return to their original lands, they find their lands already occupied by non IP settlers resulting in their eventual dispossession.
When ADs are not secured or under threat the overall situation of the IP community becomes very insecure as well.This is never conducive to consolidating the IP communities and leads to not establishing properly the IPs mechanisms for self-governance and representation to critical governance bodies such as LGUs and Regional Development Council (RDCs). These
33 representations are not maximized or become susceptible to threats of disenfranchisement.
Because the territory is not secured, self-governance and representations are weakened, IPs ability to claim their share of programs, projects & activities (PPAs), services due them, including related resources to support these PPAs & services, relevant policies, implementing structures & mechanisms from the state (both LGU and national government) are heavily affected.
The result is insufficient support to socio-economic and cultural development needs of these IP communities. This is glaringly clear in the lack of support to the development and full implementation of each IP communities’ ADSDPP.
All these inevitably results in the weak capacity to protect the rights of the most vulnerable sectors in each IP communities; namely IP women, IP youth, IP children, IP elderly (senior citizens), IP internally displaced persons (IP-IPDs) and IP nomads.
IP IDPs are a direct result of a growing number of cases of displacement of IPs from their ancestral domains. These are caused by several reasons; from armed conflicts to natural disasters to intimidation, violence or deceit by various groups and individuals; who in most instances end up manifesting their interest to claim the lands of the IPs and/or exploit their natural resources.
IP nomads on the other hand, is a phenomenon that has been with us from the beginning but not clearly understood or acted upon. The nomadic lifestyles of some IPs were noted and explained during the inquiry. These includes the sea-fearing nomadic lifestyles of the various Bajau tribes and the nomadic herders of the plains of central Visayas such as the Ati and others.
When their poverty reaches a certain worsening degree, these naturally nomadic tribes begin to manifest their movement within cities where the only thing that most Filipinos who hardly understand their plight nor their culture would see are acts of mendicancy by some of these IPs.
Due to varying extend of the impacts of these four (4) earlier effects; IP rights are sometimes not considered in efforts and processes of other stakeholders asserting autonomy and pursuing of peace talks to end various armed struggles, . This despite that fact that these efforts at autonomy and peace negotiations have direct implications to IPs because they share boundaries and/or their territories are part of or these claims and negotiations.
2. Main Causes
After analyzing the hierarchy of effects, the inquiry of the CHR then focused on the top causes of the non-fulfillment of IP rights. The following were determined as the top three causes:
(1) Slow processing of Certificate of Ancestral Domain Titles (CADTs);
(2) Non-recognition of Indigenous Peoples Mandatory Representatives (IPMRs) by some Local Government Units (LGUs); and
34 (3) The taking for granted of CADTs and the Ancestral Domain Sustainable Development & Protection Plans (ADSDPPs)
a. Slow processing of Certificated of Ancestral Domain Titles (CADTs)
In violation of the right to ancestral domain & land, the processing of CADTs (Certificates of Ancestral Domain Titles) have been painstakingly slow and have slowed down even further with the deadlock of the process of implementation of the JAO (Joint Administrative Order)-1 Series of 2012. Ironically this JAO was originally intended to fast tracked the release of the proof of these native titles. The dynamics of these root cause is expressed in this further problem tree analysis prepared by IP leaders themselves during the inquiry:
Figure 6 : Problem Tree Analysis on the Slow Processing of CADTs (Certificate of Ancestral Domain Claims)
They testified that in processing CADTs from application, to delineation, to approval and registering the CADT with the Land Registration Authority (LRA) , the process takes too long. When asked why they think this is happening, they provided two (2) main reasons. One is because of the delays in completing the surveys and mapping to properly delineate the actual coverage of the ADs. The other reason of the delay is because of many cases involving conflicting claims of the ADs
35 Delay in the delineation is fundamentally caused by the insufficient funding of the NCIP to conduct these delineation. In recent years, they were limited by funding to deliver only one (1) AD for delineation per year. This funding limitation of the NCIP is of course because the General Appropriations Act (GAA) covering said years have not sufficiently provided the required funds for this critical task. This reflects the low priority of the state as well as the weak lobbying for this allocation in Congress.
This slow processing of CADTs directly results to IP communities not having in their hands a proof of ownership of their ADs that they can use against other claims which in turn limits them from controlling migrants from intruding into their domains.
Not having this proof also limits them from negotiating favorably with NGAs and LGUs for the entry of PPAs and other mechanisms (e.g. NGPs, BuBs-Bottom Up Budgeting for several projects) to support their needs in the ADs. Furthermore, without proof of ownership in their hands, IPs are also limited; in negotiating to their favor, land re-classification efforts within or affecting their ADs. All of these effects contribute to increasing conflicts (actual and legal conflicts) among IPs and between IPs and non IPs. b. Non-recognition of Indigenous Peoples Mandatory Representatives (IPMRs) by some Local Government Units (LGUs)
In violation of the right to self-governance & empowerment, the non-recognition of IPMRs by some LGUs disenfranchises them from fulfilling their mandate to represent the interests of the IP communities in local governance. The dynamics of these root cause is expressed in this further problem tree analysis prepared by IP leaders themselves during the inquiry:
Figure 7 : Problem Tree Analysis of Non Recognition of IMPRs by some LGUs
They testified that the non-recognition of some LGUs for the full representation of IPMRs in their respective local legislative councils (Sangguniang Bayan/ Panglungsod) is primarily due to partisan politics. Despite that IPMRs are meant to be non-partisan, key LGU officials hesitate or outright refuse to allow endorsed IPMRs duly certified by the NCIP to sit as a regular member of the local legislative council because they perceived some of them as not supportive of their
36 administration of their political party’s interests or that they prefer some other IP leaders Loyal to them.
When partisan politics is not in play; sometimes, it is merely an issue of insufficient or lack of understanding and appreciation on the privileges of IPs to be represented in local legislative councils as part of their right to social justice and self governance & empowerment. In this case, the concern LGU officials merely needs to be oriented more. However’ in some cases with deeply rooted discrimination against IPs, some LGU officials simply refuse to understand or appreciate.
These results to IPMRs not able to sit as regular member of local legislative councils and eventually delay in the development or re-development & proper implementation of PPAs that may be supportive of the implementation of targets set in the ADSDPP that sitting IPMRs are suppose to push. In this situation, the interest of the IPs are not protected because LGU support is not properly and sufficiently directed to IPs through their ADSDPP. c. The taking for granted of CADTs and the Ancestral Domain Sustainable Development & Protection Plans (ADSDPPs)
In violation of the right to social justice & human rights as well as the right to cultural development, the disregard for the integrity of CADTs as well as the ADSDPP representing the development aspiration of IP communities further hinders the fulfillment of IP Rights. The dynamics of these root cause is expressed in this further problem tree analysis prepared by IP leaders themselves during the inquiry:
Figure 8 : Problem Tree Analysis of Disregard for CADTs and the ADSDPP
They testified that the disregard for the integrity of the CADTs and the ADSDPPs is directly caused by two main reasons. One is that the CADTs continue to be challenged by other conflicting claims because other National Government Agencies (NGAs) like the Department of Environment and Natural Resources (DENR) and the Department of Agrarian Reform (DAR)
37 and others continue to issue other tenurial instruments within or overlapping parts of ADs. This is happening even where CADTs or CADCs have previously been issued; and not withstanding recognition of vested rights per IPRA, even issuing these post 1997 or after the enactment of IPRA. In many instances, this happens because of connivance between some DENR, DAR personnel and interested parties who want to claim these lands for their own without regard for respecting the rights of IPs to these ADs and lands.
These results to PPAs not identified in the ADSDPP (which means PPAs that may not be appropriate for the IP community concern) to be set and implemented in the AD. On the other hand, those PPAs that are appropriate based on the ADSDPP often do not get prioritized for support and implementation. As such, the effect is either implementation of mal-targeted PPAs for IPs or insufficient; and in some cases, outright lack of implementation of proper PPAs for IPs in their respective domains.
3. Rooting the Causes
When inquired further, reflecting on the three (3) main causes identified and looking into common factors that cuts across all three, the inquiry came to the conclusion that the root causes of these may further be summarized into the following:
Figure 9 : Root Causes of the Non-Fulfillment of IP Rights in the Philippines
a. Continued discrimination of IPs in Box 1: Two-Faced Dimension of IP Discrimination
various forms and in day to day life While the culture of discrimination against IPs is still experiences perceived to be happening, the nature of the discrimination is two-faced. It is not only about IPs being discriminated by non-IPs but there is also a reverse discrimination when IPs through some of their cultural practices also has the effect of discriminating against the ways of life of non IPs as applied to them or even among affected IPs. A case in point is when IP elders intervene to circumvent prosecution for crimes such as rape, 38 murder of IPs in favor or amicable settlements. In this case it is the IPs that discriminates against mainstream value systems for justice sacrificing rule of law. In as much as the state commits fully to eradicate discrimination against IPs, there is still continued discrimination of IPs in various forms and in their day to day experiences aggravating the slow processing of CADTs, the non recognition of IPMRs by some LGUs and the taking for granted of the ADSDPP and the integrity of the CADT.
While there is a need to further determine whether these acts or omissions are really driven by actual discrimination, the fact is that they are perceived by the IPs as such and should therefor be investigated fully. b. Insufficient capacity of key state duty bearers to fulfill obligations for IP rights promotion, protection & fulfillment
The insufficient capacity of key state duty bearers to perform their obligations for IP rights protection, promotion and fulfillment is not only prevalent in the case of the National Commission on Indigenous Peoples (NCIP) and its PPAs. It is a problem across many key national government agencies and relevant LGUs that while reported by many in the inquiry during the various testimonies, a full accounting and analysis of this lack of capacity across government as a whole is non existent to date.
With the exception of NCIP whose mandates are clearly focused on IP Rights, almost all of the concern national government agencies and even LGUs consulted considered IPs’ needs and public service requirements as part of their overall programs and services, However, very few have dedicated comprehensive plans and programs for IP communities. The Inquiry in fact opened the door for these agencies to be more aware of the need for them to have focus plans and programs for IPs and how they can evolve more culturally-appropriate programming for IPs.
What is needed is a thorough review of the few dedicated IP-focus programs of key state actors (e.g. MindA IP Development Plan, DepEds IPEd, DENR IP Desk & IP Program, NCCAs school of living traditions and others).
Also the key government policies and initiatives that have figured prominently in the recurring issues identified in the inquiry like: a) DoH’s & LGUs no home birthing policy, b) JAO of NCIP, LRA, DENR, DAR to expedite resolution of overlapping claims of various tenurial instruments towards registration of actual titles of CADT, c) DENR’s national greening program and its interpretation of the nature of ancestral domain vis a vis timberlands, d) DepEd’s IPEd relevant guidelines on accrediting teachers for IPs and IP schools, e) DSWD’s expanded coverage of the 4Ps program in geographically difficult areas, f) DPWH’s funding for IP school buildings for LGUs, g) IP focus special civil registration mechanisms of PSA as well as special arrangement of accrediting traditional IP leaders as solemnizing officials of weddings, h) inclusion of IP related considerations in collecting relevant information on the Barangay information systems of DILG, i) the imposition of 1% of investments through the RDCs to be dedicated for IPs as well as the representation mechanism in RDCs open for IPs must all be carefully reviewed.
This should also cover an analysis of how other NGA programs that have bearing on how effectively services may be rendered or extended to IPs if only they can be enhanced to give
39 dedicated emphasis on IPs with full cultural sensitivity. These include: a) the GAD programs and utilization of GAD budget being monitored and promoted by the PCW, b) the agricultural and fisheries development program of DA and DAR, c) the ecotourism programs of DOT and DENR and now even DA, and d) the seal of excellence incentive mechanisms of DILG. On the fiscal side as it relates to the issue of capacity of state duty bearers, it is crucial that both demand and supply side of financing for PPAs to achieve progressive realization of the 4 IP bundles of rights are thoroughly reviewed.
On the demand side, funding and investment requisites of ADSDPP or similar development aspirational plans of IPs for their own development within the principle of self governance and empowerment and right to self determination ought to be consolidated and made known. This may be further gleaned by analyzing and monetizing the values represented in the ADSDPP (Ancestral Domain Sustainable Development & Protection Plan) for every Ancestral Domain (AD) per IP tribe. Consolidated, these will represent the total value of aspirations of Filipino Indigenous Peoples.
On the supply side, a thorough review of the allocation and utilization of budget for the NCIP for direct IP services; including delineation and titling of ADs across the past 20 years of their existence, ought to be done. Also, a whole government tagging of IP-related PPA budget allocation and utilization covering the past 20 years of IPRA implementation ought to be done to get a complete picture of the supply side of IP-related financing by the state.
Comparing the aspirational values over that of public expenditures (current and projected) will provide an overall assessment of adequacy of funding for IP-related PPAs. c. Conflicts within the Ancestral Domain due to: a) development aggression driven by resource conflicts, b) external conflicts of opposing armed groups brought in the ADs causing division among IP community members
The role and impacts of private corporate entities entering into ancestral domain; compliance to FPIC processes notwithstanding, and how they affect internal conflicts, displacement and dispossession of IP communities as well as how royalty systems for mining projects in ADs affects the way IP communities assert their right to self determination and self governance and how in some cases this itself has cause major division within the IP communities should all be reviewed.
Another issue is how the computation of actual and potential royalties has become sometimes the sole basis for determining the investment requirements of ADSDPP. This may be interpreted as the states’ abdication of their obligation to support the ADSPP as a manifestation of securing social justice for IP communities. In a sense this may be interpreted as a form of privatization of services the state owes IP communities for historical injustices they have endured in the past and still today.
Resource conflict analysis shows that the Philippines is one of the most mineralised countries in the world. Unfortunately, much of these minerals lie within key biodiversity areas, and recent data show that 38 out of 63 government priority mining projects fall within the ancestral domains
40 of indigenous peoples, 69% of which have had their Free Prior Informed Consent circumvented, and 44% have reported of land-related conflict. These mining operations, protected areas and reforestation projects within or adjacent to ancestral domain have led to aggravating intrusions and conflicting claims in ADs. This amidst the potential of IPs ways with their uniquely cultural mechanisms to imposing protection compliance of natural resource management and climate change actions.
Finally on the issue of armed conflicts being brought inside the ADs, most prominent among Mindanao IPs (particularly the Lumads) and also reported to some extend in the Northern Luzon and Central Visayas regions, the divide among IP communities; sometimes down to the level of families and clans being split in the middle and forced to choose sides between two armed groups is a growing phenomenon that is reaching critical levels. This is causing conflicts within the AD. On one end are the law enforces (PNP and others) and the protector of the people (AFP units) while on the other are armed rebel groups including from the NPA of the CPP-NDF and the secessionist armed groups of the MILF and even segments of the MNLF. Reported in the inquiry were cases of recruitment of IP members from both camps that unfortunately also covers reported cases of child soldier.
Summing up the analysis of these myriad of issues of non-fulfillment of IP rights, the inquiry testimonies affirmed the continuing validity of an earlier analysis of the NCIP of the various issues affecting IPs as summarized in their 14-point challenges.
When compared to the 5 recurring key issues surfaced in the CHR’s 2017 National IP Rights Inquiry, we are able to cover all 14-point challenges in these 5 key issues and it remains consistent with the 3-prong root causes identified. Table 2 shows this.
This final part of the problem analysis is important as it was able to simplify along 5 key issues and 3 root causes but still covers all major elements of previous and current identified challenges. This will facilitate more manageable planning & programming.
Table 2: Comparison of the NCIP’s 14-Thematic Challenges and the 5-Key Issues of Non Fulfillment of IP Rights Reported in the CHR’s 2017 National IP Rights Inquiry
41 From the problem tree analyses, the inquiry workshops then proceeded in transforming these into a series of solution trees to guide actions to remedy these problem of non fulfillment of IP rights.
In order to mobilize the state actors as primary duty bearers of IP rights, the proposed MAIN SOLUTION to respond to the main problem of non-fulfillment of IP rights is the conduct of a Human Rights Based Approach (HRBA) to monitoring & evaluation of IP rights fulfillment. The identified effects were then transformed into target ends while the identified causes were transformed into means. To illustrate this:
Figure 10 : Solution/Objective Tree on Human Rights Based Approach to Monitoring & Evaluation of IP Rights Fulfillment
The identified ends; just like in the case of the identified effects, are not isolated elements but are interlinked. As shown in the next figure (Figure 11), When ancestral domains are secured and FPIC is enforce, displaced IPs are resettled and they are able to repossess their ancestral lands. Once more consolidated and secured in their respective ADs, IP communities will now be able to establish self governance mechanisms and maximize their representation in local governance with threats minimized or removed. With proper representation and control over their domain, sufficient support for socio-economic & cultural development of IP communities through the full implementation of their respective ADSDPP will follow. And, once all of these is done, sufficient protection for the most vulnerable IP sectors can now be assured. This will also result in the full consideration of IP rights in ongoing autonomy and peace talks in some areas.
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Figure 11 : Hierarchy of Ends in Successfully Applying HRBA in Monitoring & Evaluation of Fulfillment of IP Rights in the Philippines
E. Human Rights Based Approach (HRBA) to Monitoring & Evaluation of IP Rights Fulfillment
It is important to note that an HRBA monitoring & evaluation system fully implemented will bring about the concerted actions by key state duty bearer (LGUs and NGAs alike) to fulfill the rights of indigenous Filipinos.
The elements of an HRBA is complied with in the proposed monitoring & evaluation of IP rights fulfillment through the IPHRO.
HRBA is focus on process and outcomes. The IPHRO with its O.PE.R.A. based system will be process-based and will focus on key outcomes as defined by its indicators.
It emphasizes on realizing rights; in this case as defined by the 4 bundles of IP rights and IPs right to development. Furthermore, it recognizes individual and group rights as claims towards moral and legal duty bearers. Defined in the IPHRO as right holders are the IPs through their IPS (Indigenous Political Structures), IPOs (Indigenous Peoples Organizations) and IPMRs (Indigenous Peoples Mandatory Representatives). On the other hand, duty bearers are defined as key state actors (covered LGUs, key NGAs led by the NCIP and CHR). Also considered state duty bearers are IPMRs with their dual nature as government officials. Non state duty bearers are identified as IP-focused CSOs, private corporations.
43 Individuals are entitled to assistance under an HRBA and in the IPHRO, we will set up a network of partners & service providers among duty bearers to provide these assistance. Finally, HRBA focuses on structural causes and their manifestation. In the IPHRO we will focus on systemic issues that results to violations of IP rights. Again these systemic issues are: a) securing ancestral domain and ecological & cultural integrity, b) self-governance & representation (through IPS, IPOs and IPMRs), c) supporting socio-economic and cultural development through full implementation of ADSDPPS, d) protecting the mot vulnerable IP sectors and e) ensuring IP rights in autonomy and peace talks efforts.
Table 12: Comparative Table on the Elements of HRBA and the Elements of an M&E for IP Rights Fulfillment
The resulting solution or objective tree applied with HRBA identified the KEY MEANS as follows: a) Extensive Information, Education and Communications to combat culture of discrimination of IPs, b) Capacity Building on IP Rights Promotion, Protection & Fulfillment including on IP Rights M&E and c) Direct IP Communities – CHR Knowledge Management System LINK to IP Rights Protection Services Referral & Follow Through.
These KEY MEANS identified in the solution tree are also deemed consistent responses to the ROOT CAUSES earlier identified.
The root cause of continued discrimination of IPs in various forms and in their day-to-day experiences can aptly be remedied with extensive information, education and communications to combat the culture of discrimination of IPs. Further analysis on the capacity gaps of state duty bearers in this area of work requires we look into IEC (information, education & communication) related issues.
The root cause of insufficient capacity of key state duty bearers to implement their obligations
44 can aptly be remedied with building the capacity on IP promotion, protection & fulfillment, including capacity for effective monitoring & evaluation. Further analysis on the capacity gaps of state duty bearers in this area of work requires we look into implementation related issues.
Finally, the root cause of conflicts within the ancestral domain due to: a) development aggression driven by resource conflicts, b) external conflicts of opposing armed groups brought in the ADs causing division among IP community members can aptly be remedied by setting up a fully operational direct IP communities – CHR knowledge management system that LINK to IP rights protection services referral & follow through system. Further analysis on the capacity gaps of state duty bearers in this area of work requires we look at monitoring & evaluation related issues.
Figure 13 : Confronting the Root Causes with the Identified Key Ends in the Problem Tree Analysis of Fulfilling the Rights of IPs in the Phils
When the above reports of the actions of state duty bearers are subjected to a Gap Analysis, the resulting assessment are as follows:
A. Right to Land & Ancestral Domain
These covers the issues on securing ancestral domain, enforcing free, prior and informed consent and ensuring ecological integrity. For this, the following specific problems were identified:
1. Delays in the issuance of CADTs & development of ADSDPP due to insufficient funding for timely delineation and unresolved conflicts in tenurial claims in the ADs including those with dragging legal cases;
45
2. Non-recognition on the nature of ADs by IPs, non IPs, private entities (including business corporations) and some NGAs/LGUs resulting to intrusion of non IPs in ADs causing displacement & dispossession (land grabbing) of IPs through force, intimidation & deception;
3. Violation or lack of full enforcement of Free, Prior, Informed Consent (FPIC) by way of deception,& connivance or by implementation of policies & conduct of practices that circumvent or weakens FPIC processes and
4. Insufficient natural resource management and weak enforcement & monitoring of environmental laws in various development activities within ADs (especially by private companies in extractive industries like mining) resulting to ecological damage (e.g. pollution, biodiversity loss)
On the delays of issuances of CADTs and development of ADSDPP, the relevant government agencies reported on the following interventions: a) Issuance of JAO 1 Series of 2012 by DAR, DENR, NCIP and LRA to resolve conflicting tenurial claims in ADs, b) Increase funding of NCIP through its PIPE project to complete pending delineation & ADSDPP formulation and c) the issuance of a JAO between DoJ and NCIP on legal assistance on cases involving conflicting tenurial claims.
However, despite all these interventions; several gaps were identified:
According to a study reported by NEDA during the IP national inquiry, the JAO 1 Series of 2012 implementation had the reverse effect of slowing down issuance of CADTs primarily by delays with the DENR processes. This is currently being resolved.
On the other hand, the Supreme Court decision on Unduran vs Aberasturi case has significantly clipped the jurisdiction of the already limited capacity of the NCIP to resolve or provide legal support in IP legal cases involving conflicting tenurial claims in ADs. Thus, the JAO between DoJ and NCIP on legal assistance involving conflicting tenurial claims in ancestral domains becomes even more crucial
Involvement of IPs representatives in monitoring the work of the inter agency committee on the JAO 1-12 & the JAO on legal assistance and the utilization of the NCIP PIPE project to ensure transparency & accountability are not clear. No representation among IP leaders on these were reported during the inquiry. Furthermore many IP groups are not aware of the JAO on legal assistance and the NCIP legal services and how to avail them for their cases involving conflicting tenurial claims on ADs
Finally while the increase in the NCIP budget is a welcome development, the sufficiency of the increase in NCIP budget for CADT delineation need to be established.
On the on-recognition on the nature of ADs by IPs, non IPs, private entities (including business corporations) and some NGAs/LGU, it was reported that NCIP conducts continuous IEC on the nature of ADs as native titles with collective ownership among NGAs, LGUs and IPs to help
46 solve this problem. This problem stems directly from the delay in issuing CADTs as proof of collective ownership of IPs of their ADs that hinders them from controlling entry of non-IPs in their ADs.
A major implementation problem here is the insufficient presence of NCIP in the localities of LGUs at the municipal/city level limits their efforts at conducting more IECs. This is aggravated by the insufficient investments of most LGUs & other NGAs on IEC work on IP rights. This is compounded with the insufficient monitoring and remedial actions to counter displacement of IPs by force, intimidation & deception that have directly resulted in the dispossession of IPs of their part of their ADs.
Unfortunately, many IPs, NGAs and LGUs are still not properly oriented about the nature of native titles. IPs have been misled in attempts to illegally sell their portion of the ADs. Some ill- informed LGUs and NGAs have become prone to executing programs and creating policies that are not supportive of IP rights fulfillment.
On the violation of or lack of full enforcement of Free, Prior, Informed Consent (FPIC), it was reported that review of implementation of waiver clauses in DENR DAO 2012-07 that circumvents FPIC is currently on its way and that the development of appropriate guidelines & mechanisms for varying procedures for FPIC of different types of projects and activities within ADs is also being pursued to respond to this problem.
Despite this, the following gaps were identified. First, due to lack of resources by government, in increasing number of cases, project proponents often end up paying for the cost of conducting the FPIC and gaining undue control or influence over the process favorable to their application. Secondly, there is insufficient monitoring and remedial actions to counter these violation or circumvention of the FPIC process Finally, for the public and other stakeholders, the processes in securing the FPIC processes remains mostly unclear and limits 3rd party from monitoring to ensure transparency & accountability
On insufficient natural resource management and weak enforcement & monitoring of environmental laws in various development activities within AD, the concern NGA reported that natural resource management & conservation are part of ADSDPP but have not been fully implemented. Also that DENR & LGU natural resource management & conservation PPAs are often also applied to a limited extend in ADs. There is also a pending Bill on Indigenous Community Conserved Areas in congress that will govern climate actions and conservation within the ADs.
Of these, the following gaps were identified: One, some DENR conservation efforts like protected area management, the National Greening Program results to conflicting claims in ancestral domains. Secondly, there is insufficient regular consultations between companies operating in ADs & IP communities
Also, there is insufficient monitoring system for culturally-driven conservation & natural resource management interventions of IPs in their ADs. There is also no complete and systematic monitoring system on climate change adaptation & mitigation-related interventions in ADs.
47 Another gap is the insufficient research on Indigenous Knowledge System (IKS) on natural resource management & consultation including climate change actions of IP communities preserve for and under the control of concern IPs
B, Right to Self-Governance & Empowerment
This focuses on the issues concerning establishing self-governance & empowerment of Indigenous Peoples. For this , the following specific problems were identified:
1. Non recognition of IPMRs by some LGUs 2. Inadequate knowledge and skills of IPMRs on IP rights and local legislation including fiscal- related functions 3. IP representation in RDCs is lacking
On the Non recognition of IPMRs by some LGUs, DILG and NCIP monitors implementation of the Memorandum Circular of DILG on IPMRs. However, the identified gap is in the Lack of assertiveness on the part of DILG and NCIP to force LGUs to comply due to limits of mandates and jurisdictions.
On the Inadequate knowledge and skills of IPMRs on IP rights and local legislation including fiscal-related functions, it was reported that DILG and NCIP are designing and testing training programs for IPMRs. Also, CHR with UNDESA support will be providing IPMR Trainings. However, until these trainings are done widely and effectively, the gap remains in the low capacity, whereby IPMRs have not yet been able to optimize their representation to access resources for their respective ADs using their ADSDPPs.
For both of these problems, It does not help that a monitoring mechanism with appropriate indicators on the level of participation of IPMRs in local governance is lacking.
Finally, there is insufficient; and in some localities; lack of orientation/re-orientation and conscientization process among LGU officials on IP rights, especially relevant IPRA provisions on the mandatory nature of IPMRs
C. Right to Social Justice & Human Rights & Rights to Cultural Development
This covers the issues on supporting social, economic and cultural development of IPs in their Ancestral Domain through the full implementation of the ADSDPP (Ancestral Domain Sustainable Development Protection Plan). For this, the main problem is insufficient social services for IPs due to access issues being in geographically isolated & disadvantaged areas (GIDAs), mismatched PPAs for IPs due to insufficient data on their situation & special considerations in programming owing to the unique cultural contexts of IPs.
The DepEd reported that it has the IPEd program that manages schools where in some cases are for 100% IP students & have relevant guidelines on accrediting teachers for these schools DSWD report that they are Expanded coverage of the 4Ps in GIDAs. On the other hand, DPWH funding for IP school buildings for LGUs. Also IP focus special civil registration mechanisms
48 was reported by the PSA while NHA's Resettlement Assistance Program providing for 10M/LGU for IP housing was also noted. Furthermore, Inclusion of IP related data on the Brgy information systems was reported by the DILG.. The imposition of 1% of investments through the RDCs to be dedicated for IPs was reported by NEDA. And the NCIP’s continuously expanding scholarship program for deserving IP students. Finally, DA's Special Agricultural Area Development Project with IP as priority beneficiaries and the IP Health Program through RIAC guided by IP Health Strategic Plan of DoH and the LGUs were likewise reported as key responses of state duty bearers.
Despite these several gaps remain. The hiring of IPEd teachers still uses the same LET board passer requirement that limits education graduate IPs who are more familiar with the culture from being allowed to teach simply because they cannot pass the LET.
Surveys conducted for the expended 4Ps in GIDA for IPs need to be reviewed since many reports surveyors did not complete coverage because of several reasons. On the other hand, NHA’s IP housing project requires that the LGU or the IP community provides land counterpart. With the delay of CADT registration, this becomes limiting for IP communities. Furthermore there is no IP representation in the LIAC (Local Inter Agency Committee) for the NHA IP Housing Support to ensure that the concerns of IPs are fully considered.
NCIP scholarship for IPs; on the other hand is not universal and only for those who can maintain a certain grade average requirement limiting many disadvantaged IPs to get higher education. Because of their extreme poverty situation and isolation, it is inherently very difficult for ordinary IP student to excel academically and maintain the grade average required to be able to join this scholarships.
Insufficient dis aggregated data on IPs aggravated by the lack of capacity for IP-based program development by many NGAs remains a major problem. This is currently being remedied with the PIPE project of NCIP and PSA initiatives NCIP conducts IEC on IP rights to raise awareness on how IPs ADDPPS are integrated in development planning & programming despite its insufficient budget. Most LGUs with IPs lacks similar IECs
Guidelines on accessing the DPWH funding for IP Schools is not widely known and therefore most IPs and LGUs are not aware of it and are not able to access it.
There is also insufficient integration of ADSDPP in local public administration processes (CLUP, ELA, CDP, CIP) by challenged IPMRs limiting access of IP communities to LGU resources for development PPAs
Finally, there is a need for more analysis of how other NGA programs that have bearing on how effectively services may be given to IP with better cultural sensitivity like: a) GAD programs and utilization of GAD budget, b) agricultural and fisheries development program of DA and DAR, c) ecotourism programs of DOT and DENR and now even DA, f) seal of excellence incentive mechanisms of DILG.
49 D. Right to Vulnerable IP Sectors to be protected
This is still under the Right to Social Justice & Human Rights & Rights to Cultural Development but focused on protecting IP Women, IP Children, IP Elders, IP IDPs (Internally-displaced people) & IP Nomads. For this the main problems are:
1. Among IP women there is a high incidence maternal deaths and some of the lowest pre natal care rates 2. Difficulty in IP youth in getting jobs despite vocational education and training or even a full bachelor’s degree 3. Many situation of deprivation and discrimination have been reported on IP nomads (eg Bajaos in the city) but no comprehensive plan of action are implemented 4. There were sporadic reports of child soldiers recruited, girl child trafficked for prostitution but no comprehensive date was recorded
For the issue on high incidence of maternal deaths and low prenatal care rates among IP women, DoH and some LGUs have no home birthing policies to ensure safe delivery.. However, no home birthing policy is widely opposed by IPs as it is perceive going against their cultural practices as well as it impractical given the access situation. Alternative implementations as a middle ground for this issue must be planned and implemented such as: a) training the hilots for safer delivery, b) putting up birthing facilities nearer the IP communities, etc. Among medical practitioners, a need for cultural conscientization is crucial for better understanding of IPs women's predisposition when it comes to reproductive health
On the issue of difficulty in IP youth in getting jobs despite, it was noted that government agencies provide priority for hiring eligible IPs.The gap is that IP youth remain subjected to the same regular illegibility requirements for getting jobs when he/she may have an inherent disadvantage because of poverty and isolation.
On the many situation of deprivation and discrimination that have been reported on IP nomads (eg Bajaos in the city) with no comprehensive plan of action in place DSWD conducted small studies and surveys on the plight of these IP nomads in the cities. Gaps identified include: proper cultural conscientization for DSWD staff including City/Municipal SWDs on the nomadic IPs as well as insufficient well designed social protection programs that should be implemented for them. Also, LGUs must adopt programs to provide for nomadic IPS when they venture into their territories with full cultural sensitivity of their situation. Finally, Public IEC on the nature of nomadic lifestyles of IP nomads is important to reduce ignorance that often lead to discrimination
On the sporadic reports of child soldiers recruited, girl child trafficked for prostitution but with no comprehensive data recorded, several NGOs and media outfits have documented these cases with IP leaders including them in their testimonies during the inquiry. Gaps; however, include: lack of systematic monitoring of IP girl child and IP children in conflict currently in place although occasional report of this have been done. Also There is a need for more comprehensive inquiry on this subject on IP rights . This ought to be included as a special component of the IPHRO
These are all summarized in table 3:Gap Analysis of State Duty Bearers on Fulfillment of IP Rights in the Philippines (as of 2017) on Right to Land & Ancestral Domain
50 Table 3: Gap Analysis of State Duty Bearers on Fulfillment of IP Rights in the Philippines (as of 2017) Right to Land & Ancestral Domain Area 1: Securing Ancestral Domain, Enforcing Free, Prior and Informed Consent and Ensuring Ecological Integrity CHALLENGES: a) Formal Recognition of Ancestral Domains d) Non-compliance & violation of FPIC (Free, Prior, Informed Consent) b) Control & Management of Ancestral Domains e) Lack of information on IP Rights c) Overlapping claims over Ancestral Domains f) Discrimination d) Displacement of IPs from their Ancestral Domains g) Lack of NCIP capacity to deliver its mandates Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms 1. Delays in the issuance of CADTs JAO 1 Series of 2012 by JAO 1-12 Inter According to a study Involvement of IPs Many IP groups are & development of ADSDPP due DAR, DENR, NCIP and Agency reported by NEDA representatives in not aware of the to insufficient funding for timely LRA to resolve Committee during the IP national monitoring the work JAO on legal delineation and unresolved conflicting tenurial inquiry, the reverse of the inter agency assistance and the conflicts in tenurial claims in the claims in ADs effect of slowing down committee on the NCIP legal ADs including those with Project issuance of CADTs JAO 1-12 & the JAO services and how to dragging legal cases Increase funding of NCIP Development because of the JAO 1- on legal assistance avail them for their through its PIPE project Monitoring of 12 is due primarily by and the utilization of cases involving to complete pending NCIP (for PIPE delays with the DENR the NCIP PIPE conflicting tenurial delineation & ADSDPP implementation) processes. This is project to ensure claims on ADs formulation currently being resolved transparency & JAO TWG accountability are not JAO between DoJ and The SC decision on clear NCIP on legal assistance Unduran vs Aberasturi on cases involving has significantly conflicting tenurial clipped the jurisdiction claims of the already limited capacity of the NCIP to resolve or provide legal support in IP legal cases involving conflicting tenurial claims in ADs
Sufficiency of the increase in NCIP budget for CADT delineation has not yet been established
51 Specific Problems Responses Current Gap Analysis Specific Problems Responses (mandates, PPAs, policies & M&E systems & (mandates, PPAs, proposals) mechanisms policies & proposals) 2. Non-recognition on the nature of ADs NCIP conducts continuous QRM (Quick The insufficient presence There is insufficient Many IPs, NGAs and by IPs, non IPs, private entities IEC on the nature of ADs as Response of NCIP in the localities monitoring and LGUs are still not (including business corporations) and native titles with collective Mechanism) of of LGUs at the remedial actions to properly oriented some NGAs/LGUs resulting to ownership among NGAs, NCIP together municipal/city level limits counter displacement of about the nature of intrusion of non IPs in ADs causing LGUs & IPs with other NGAs their efforts at conducting IPs by force, native titles. IPs have displacement & dispossession (land for IPRVs (IP more IECs. This is intimidation & been misled in grabbing) of IPs through force, This problem stems directly Rights Violations) aggravated by the deception that have attempts to illegally intimidation & deception from the delay in issuing insufficient investments of directly resulted in the sell their portion of CADTs as proof of Reports of most LGUs & other NGAs dispossession of IPs of the ADs. Some ill- collective ownership of IPs Regional Hearing on IEC work on IP rights their part of their ADs. informed LGUs and of their ADs that hinders Officers of NCIP NGAs have become them from controlling entry prone to executing of non-IPs in their ADs. IEC Projects are programs and Thus, the actions in item 1 monitored by creating policies that under duty bearer responses Project Devt are not supportive of are equally relevant here Monitoring of IP rights fulfillment NCIP 3. Violation or lack of full enforcement Review of implementation QRM (Quick Due to lack of resources There is insufficient For the public and of Free, Prior, Informed Consent of waiver clauses in DENR Response by government, in monitoring and other stakeholders the (FPIC) by way of deception,& DAO 2012-07 that Mechanism) of increasing number of remedial actions to processes in securing connivance or by implementation of circumvents FPIC NCIP together cases, project proponents counter these violation the FPIC processes policies & conduct of practices that with other NGAs often end up paying for or circumvention of the remains mostly circumvent or weakens FPIC Development of appropriate for IPRVs (IP the cost of conducting the FPIC process unclear and limits 3rd processes guidelines & mechanisms Rights Violations) FPIC and gaining undue party from for varying procedures for control or influence over monitoring to ensure FPIC of different types of the process favorable to transparency & projects and activities within their application accountability ADs 4. Insufficient natural resource Natural resource Regular Some DENR conservation There is insufficient There is insufficient management and weak enforcement management & conservation monitoring by efforts like protected area monitoring system for research on & monitoring of environmental laws are part of ADSDPP but DENR and LGUs management, National culturally-driven Indigenous in various development activities have not been fully on safe water and Greening Program results conservation & natural Knowledge System within ADs (especially by private implemented clear air from AD to conflicting claims in resource management (IKS) on natural companies in extractive industries areas. ancestral domains interventions of IPs in resource management like mining) resulting to ecological DENR & LGU natural their Ads & consultation damage (e.g. pollution, biodiversity resource management & IP Desk and an IP There is insufficient including climate loss) conservation PPAs are often Program across the regular consultations There is also no change actions of IP also applied to a limited DENR between companies systematic monitoring communities extend in ADs and Bill on operating in ADs & IP system on climate preserve for and Indigenous Community communities change adaptation & under the control of Conserved Areas pending. mitigation-related concern IPs interventions in ADs
52 Right to Self-Governance & Empowerment Area 2: Establishing Self-Governance & Empowerment of Indigenous Peoples CHALLENGES: a) IP Governance is Weak d) Discrimination b) No recognition of some government agencies & LGUs of some IP leaders e) Lack of NCIP capacity to deliver its mandates c) Lack of information on IP Rights Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms
1. Non recognition of IPMRs by DILG and NCIP Reported in the Lack of assertiveness A monitoring There is some LGUs monitors implementation regular program on the part of DILG and mechanism with insufficient in of MC on IPMRs monitoring of NCIP to force LGUs to appropriate some localities lack NCIP and DILG comply due to limits of indicators on the of orientation/re- mandates level of participation orientation and of IPMRs in local conscientization governance is lacking process among 2. Inadequate knowledge and skills DILG and NCIP Reported in the Due to low capacity, LGU officials on of IPMRs on IP rights and local designing and testing regular program IPMRs have not yet IP rights, relevant legislation including fiscal-related training program for monitoring of been able to optimize IPRA provisions functions NCIP NCIP and DILG their representation to the mandatory access resources for nature of IPMRs CHR with UNDESA their respective ADs support will be providing using their ADSDPP IPMR Trainings
3. IP representation in RDCs is RDC provides for No systematic Most IPMRs are not lacking representation of monitoring on IP yet federated to aid vulnerable sectors representation in their engaging RDCs RDC (e.g. IPMR leagues)
53 Right to Social Justice & Human Rights & Rights to Cultural Development Area 3: Supporting Social, Economic and Cultural Development of IPs in their Ancestral Domain through the full implementation of the ADSDPP (Ancestral Domain Sustainable Development Protection Plan) CHALLENGES: a) Loss of Culture & Traditions of Indigenous Peoples d) Discrimination b) Impacts of Government Services not felt by IPs e) Lack of NCIP capacity to deliver its mandates c) Lack of information on IP Rights Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms 1. . Insufficient social services for IPs due DepEd has the IPEd program DepEd IPEd has The hiring of IPEd teachers IPEd monitoring systems NCIP conducts IEC on to access issues being in Geographically that manages IP schools & monitoring system still uses the same LET adhere to HRBA's IP rights to raise Isolated & Disadvantaged Areas (GIDAs), have relevant guidelines on at all levels board passer requirement PANTHER principles awareness on how IPs mismatched PPAs for IPs due to accrediting teachers for IP including IP focal ADDPPS are insufficient data on their situation & schools persons & even Surveys conducted for the No IP representation in integrated in special considerations in programming including IP elders expended 4Ps in GIDA for the LIAC for the NHA IP development planning owing to the unique cultural context of IPs Expanded coverage of the 4Ps as cultural bearers IPs need to be reviewed Housing Support & programming in GIDAs chosen by the IPs since many reports despite its insufficient themselves surveyors did not complete Insufficient dis budget. Most LGUs DPWH funding for IP school coverage aggregated data on IPs with IPs lacks similar buildings for LGUs PSA produces lack of capacity to for IP- IECs special reports NHA IP housing project based program IP focus special civil monitoring IP requires that the LGU or the development. Currently Guidelines on registration mechanisms of related registration IP community provides being remedied with the accessing the DPWH PSA efforts counterpart. With the delay PIPE project of NCIP funding for IP Schools of CADT registration, this and PSA initiatives is not widely known NHA's Resettlement LGU reports becomes limiting Assistance Program providing monthly to the for 10M/LGU for IP housing LIAC (Local Inter Agency Committee) Inclusion of IP related data on Compliance NCIP scholarship for IPs Insufficient integration There is a need for more the Brgy information systems monitored by not universal ad only for of ADSDPP in local analysis of how other DIILG those who can maintain a public administration NGA programs that have The imposition of 1% of certain grade average processes (CLUP, ELA, bearing on how effectively services may investments through the Currently not requirement limiting many CDP, CIP) by challenged be given to IP w /better RDCs to be dedicated for IPs properly monitored disadvantaged IPs to get IPMRs limiting access of cultural sensitivity like: a) higher education IP communities to LGU GAD programs and NCIP continuously expanding resources for utilization of GAD scholarship program for NCIP monitors development PPAs budget, b) agricultural deserving IP students what happens to IP and fisheries development scholars after program of DA and DAR, c) ecotourism programs graduation of DOT and DENR and now even DA, f) seal of excellence incentive mechanisms of DILG.
54 Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms DA's Special Agricultural No specific Most Livelihood and Area Development monitoring for RDC Inter agency Project w/IP as priority IPs treating them monitoring committee beneficiaries similar to other develop HRBA sectors monitoring FW & IP Health Program validate, mainstream IP through RIAC guided by FW in Reg IP Health Strategic Plan Development Plans enterprise development programs are not specifically designed for IPs limiting its access by IPs
Right to Social Justice & Human Rights & Rights to Cultural Development Area 4: Protecting IP Women, IP Children, IP Elders, IP IDPs (Internally-displaced people) & IP Nomads and Preparing the Next Generation of Indigenous People Leaders CHALLENGES: a) Peace & Security Concerns for IPs c) Discrimination b) Lack of NCIP capacity to deliver its mandates d) Lack of information on IP Rights Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms 1. Among IP women there is a high DoH and some LGUs have CHR conducted an No home birthing policy is Alternative Among medical incidence maternal deaths and some of No home birthing policies inquiry on this for widely opposed by IPs as it implementations as a practitioners, a need the lowest pre natal care rates reproductive health is perceive going against middle ground for this for cultural concerns but there is cultural practices of IPs as issue must be planned conscientization is no systematic well as it impracticality and implemented such needed for better monitoring on this given the access situation. as: a) training the hilots understanding of IPs for safer delivery, b) women's putting up birthing predisposition when it facilities nearer the IP comes to reproductive communities, etc health 2. Difficulty in IP youth in getting jobs Government Agencies IP Youth This difficulty of IP youth despite Voc Teach Training or even a provide priority for hiring Employment is not in securing jobs despite degree eligible IPs systematically trainings is because they are monitored except subjected to the same those NCIP scholars regular illegibility where who have graduated he/she may have an inherent disadvantage
55 Right to Social Justice & Human Rights & Rights to Cultural Development Area 4: Protecting IP Women, IP Children, IP Elders, IP IDPs (Internally-displaced people) & IP Nomads and Preparing the Next Generation of Indigenous People Leaders CHALLENGES: a) Peace & Security Concerns for IPs c) Discrimination b) Lack of NCIP capacity to deliver its mandates d) Lack of information on IP Rights Specific Problems Responses Current Gap Analysis (mandates, PPAs, policies & M&E systems & Implementation M&E IEC proposals) mechanisms 3. Many situation of deprivation and DSWD conducted small No regular Proper cultural LGUs must adopt Public IEC on the discrimination have been studies and surveys on monitoring on conscientization for programs to provide nature of nomadic reported on IP nomads (eg the plight of these IP this DSWD staff including for nomadic IPS lifestyles of IP Bajaos in the city) but no nomads in the cities City/Municipal SWDs when they venture nomads is comprehensive plan of action on the nomadic IPs as into their territories important to reduce well as well designed with full cultural ignorance that social protection sensitivity of their often lead to programs should be situation discrimination implemented for them
4. There were sporadic reports of Several NGOs and media There is no child soldiers recruited, girl documented these cases systematic child trafficked for prostitution with IP leaders including monitoring of IP but no comprehensive date was them in their testimonies girl child and IP recorded children in There is a need for more comprehensive inquiry on this subject od IP conflict rights . This ought to be included as a component of the IPHRO currently in place although occasional report of this have been done
56 On the part of the Commission on Human Rights, we conducted prior to the IP Rights National Inquiry a survey among our regional offices on our work with Filipino Indigenous Peoples from 2010-2017. The preliminary data came from CAR, Regions 3, 7,8, 9, 11, 12 and Negros Island Region,
Table 4: CHR-Serviced IPs and their Key Issues
Regions IP Communities TOP 3 ISSUES of IP Communities Cordillera Tinggians from Abra,Isneg from 1) Extreme Poverty Administrative Region Apayao, (Kankanaey, Iyaplay, 2) Slow and improperimplementation of the provisions of the (CAR) Ibaloi, Yfugao, Karao from indigenous peoples rights act Benguet), Kalinga (limos, limos- 3) Inadequate health services liwan-kalinga) from kalinga, (Kankanaey, Iyaplay, Bontoc) from Mt. Province
Central Luzon (Region Aeta, Dumagats, Badjao 1) Displacement due to developmental agression III) 2) Lack of support from the Office of National Commission for Indigenous People 3) Insufficient knowledge about RA 8371 (IPRA Law) Bicol Region (Region Kabihug, Dumagats, Agta-Cimaron, 1) Insufficient budget in education V) Agta-tabangnon, Agta-taboy,Ati- 2) Lack of access to social services e.g. roads, schools, water atihan supply and elecricity 3) Bullying of IP's in school Negros Island Region Bukidnon 1) Access to basic services, Justice and Development (NIR / Region XVIII) Programs of the government 2) Acces to well-meaning and quality education that would enhance Indigenous People’s culture 3) Displacement due to development aggression Central Visayas Bajau (Bohol and Cebu), Ati (Bohol 1) Discrimination (Region VII) and Cebu), Eskaya (Bohol), 2) Mendicancy Bukidnon (Negros Oriental) 3) No permanent dwelling Eastern Visayas Mamanwa, Tausug, Maranao 1) Land and Housing (Region VIII) 2) Livelihood 3) Education Zamboanga Peninsula Subanen, 1) Ancestral Domain/fishing ground issues (Region IX) Kalibugan ,Badjao,Bangingi, Yakari 2) Lack of cultural sensitivity of government interventions 3) Limited access to basic services
Davao Region (Region Lumad (Manoba, Mandaya, B'Laan, 1) Alleged Militarization with Alamara being recruited by XI) Mansaka and etc) armed groups 2) Development aggression over Ips rights over ancestral domain 3) Displacementy either by natural or manmade causes SOCCSKSARGEN B’laans, T’bolis, Manobo, 1) Land grabbing/Ancestral Domain - Lack or insufficient Teduraysa solution to their continued assertion to what they call their “ancestral domain” specifically, on land ownership and boundary tensions 2) Armend Conflict- Prevailing threats to their peaceful settlement due to existence of armed groups in their area, especially those affected by mining and resource conflicts from people and entities occupying or encroaching their ancestral domains 3) Lack, No equal access and inconsistency in the delivery of basic services (particularly among IP women and girls)
57 Of these many critical issues of IPs, the responses of the CHR included the following actions and activities:
Table 5: CHR Actions and Responses to IP concerns per regional office REGIONS Significant Activities by CHR Offices Cordillera 1) Human Rights Community Development Project in Kibungan, Benguet. This was Administrative in partnership with the New Zealand Human Rights Commission for a period of 3 Region year which ended in the fourth quarter of 2010. it involved the whole indeginous (CAR) Peoples Community of the Municipality of Kibungan, the Kankanaeys. In this project, the community were asked to identify their pressing issues and come up with their own solutions to such problems. the problem that were identified were practically the problems besetting the whole Cordillera. Likewise, there were several lectures that were undertaken with regards to human rights. with these lectures, the people became aware of their rights and were able to protect them from abuses as shown in one of the barangays where residents protested the establishment of hydro-electric power plant without consultation among the people and the irregularities among the conduct of Free Prior Consent process.
2) Membership in the Community on the Indigenous Peoples Concern (CIPC), a sub- committee of the Regional Development Council makes thnis office active in the promotion and protection of the rights of the Indigenous Peole in Cordillera
3) The regional office is also active in the quest for the Regional Autonomy having two staff as members of the Speakers Bureau for Autonomy. this is the 3rd attempot for the autonomous region and is a continuing activity being incorporated in our regular promotion activities in partnership with the Cordillera Regional Development Council and the Special Project for the Cordillera Autonomous Region Central Luzon PROTECTION: (Region III) (2010) Coordinated with the Local Government Unit of Apalit, Pampanga for the relocation of several Badjaos family living under the Sulipan Bridge in Apalit, Pampanga. (2011) Conduct exhumation on the cadaver of Maximino, member of dumagat tribes in Dingalan, Aurora. (2012) Participate in the International Solidarity Mission at Casiguran, Aurora regarding the effect of APECO to the residents and environment of the place. (2013) Coordinated with the NCIP RO3 for the settlement of disputes between MATA and BATA, two groups of Aetas in Pampanga (2014) Conduct fact-finding mission regarding militarization at Camias, Porac, Pampanga (2015) Conducted public Dialogue in Palayan City, Nueva Ecija (2016) Conduct Fact-finding investigation regarding the killing of Jojo Puno, an aeta by members of the same tribe. (2017) Conduct investigation on the internal conflict of Dumagats tribal leaders in Dingalan, Aurora
PROMOTION:
(2010) Participated in the conduct of multi-stakehlders validation/consultation of the draft IP Masterplan (2011) HR Education Orientation on the rights of IP-DDCL-N.H.V coalition Group (2012) Inter-Agency cooperation on the Rights of the Sama Bajaus (2013) Inter-Agency cooperation on the Rights of the Sama Bajaus (every quarter) (2014) Lead the drafting of the resolution for the acquisition of relocation of the Sama
58 Bajaus in Batiawan, Zambales thru inter-agency cooperation (2015) Resource Person on Dayaw IP Summit October 2015, Inter-agency cooperation on rights of the IPs, MOA signing with IP Leaders of Pampanga on BHR (2016) Basic HR-Orientation to CAFGU-AETA September 2016, HR orientation on the rights of the IPs (2017) HRE Katutubong Kaalaman at Karapatan & Celebratory Events Activities
PROMOTION
2010-2013:
A. lectures on Rights of the Indigenous Poeples as part of the sessions on the following subjects for PNP trainees at RTC 5, to unit: 1. Sectoral rights, 2. Persons Protected During INternal Armend Conflict, 3. HUman rights in emergency situation, 4. Intenational Humanitarian Law B. lectures on the protection and rights of IPs during armed conflict as part of the seminar on HR and IHL during the celebration of International Humanitarian Law Month in august (participant: Philippine army)
2013 : A. 10/16/13 orientation of Human Rights-Based Appraoch to the progressive realization of IPs in coordination with Department of Education, Albay division office (participants: teachers/principals B. lectures on rights of IPs-sectoral rights C. training on HR and IHL and Protected Persons During Armed Conflict (prticipants:PNP/army )
2014: Orientation on IPs rights, fun play with kids 2015: Lectures on IPs Rights integrated in the session of Basic HR Concepts, IHL, persons protected during armed conflict and sectoral rights (participants: PNP,PA,LGU, academe and students)
2016: A. Monitoring the status by LGU-Sto. Domingo, Albay on their commitmwent to IPs on November 2014, B. Orientation on the rights of IPs and their children C. Read along session with IP kids D. Distribution of activity books and toys for kindergarden students(where IP children were enrolled), E. Lectures on IP rights during seminar/training on (SECTORAL RIGHTS, HR FRAMEWORK,IHR for pnp), (HR and IHL) for philippine Navy, F. Oct. 13, 2016 Regional Multi-sectoral Workshop and forum comprehensive anti-discremination bill(participants: IPs, youths, PWDs,elderly,LGBT) Negros Island PROTECTION Region 2012: Conduct investigation and legal assistance on CHR-Vi-2012-0950, Conduct (NIR / Region XVIII) of investigation on the alleged distruction of farm lands in Himamaylan City, Isabela, Kabankalan City and Sipalay City, ProvidedLegal Assistance to the IPs accused of Murder and Frustrated Murder
PROMOTION 2011: Consultative Dialogues 2013: Conduct lecture on Human Rights in Brgy. Guimbala-on, Silay City, Negros Occidental .
59 Central Visayas PROTECTION (Region VII) 2014: Investigated the case of Malael vs Malael (CHR case NO. VII-2014-0173 (CEB), both Bajaus, for alleged violation on the right to life 2015: Attended the meeting of the Inter-Agency Task Force on the Comprehensive Program for Sama Bajaus 2016: A. Attended the meeting of the Inter-Agency Task Force on the Comprehensive Program for Sama Bajaus, B. Rendered legal assistance to female Bajau
PROMOTION 2010: A. Conducted lecture on the rights of children and women (Ati), B. Distributed bundles of joy 2012: A. Conducted lecture on the rights of children and women (Ati), B. Distributed bundles of joy 2015: A. Conducted lecture on the rights of children and women (Ati), B. Distributed gifts, C. Conducted Consultation on ESC in Alaska, Mambaling , Cecu City 2016: A. Conducted forum against child labor during the celebration of the World Day Against Child Labor Eastern Visayas PROTECTION: (Region VIII) 2010: Investigation of the following HR cases:PRADO, RUSSELDA A. CHR-VIII- 2012-0014 Violatiopn of RA 9262 (TAUSUG), CABADOANGA, YONO C. CHR-VIII-2012-0436 Torture (MAMANWA) 2016: Investigation of the following HR cases: PRADO, RUSSELDA A. CHR-VIII- 2016-0155 Bigamy and Concubainage (TAUSOG), MAMAKI, ABUSAID A. CHR-VIII-2016-0386, Arbitrary Arrest/Torture (MARANAO) Davao Region PROTECTION : (Region XI) (2010-2012) Investigation, Community Dialogue Investigation of SMI-Tampakan Mining Areas over atrocities FPIC Process CCA - Observers Haran Public Inquiry, (2016) FPIC-observer of the Tampakan Mining.
POLICY: (2013) Supplemental advisory on HR standards on housing , land and proterty rights (2015) IP Rights over education
Of the above actions and responses of the CHR, the most crucial challenges that acts as GAPS for our regional offices in providing our human rights promotions, protection and policy services and proposed way forward that can now be considered in the development of the operative elements of programming for the proposed IP Human Rights Observatory includes:
60 Table 6: GAP Analysis on CHR IP Interventions Proposed Enhancements for REGIONS Identified GAPS consideration within the IPHRO Cordillera 1. Manpower ⚫ Additional funding for IEC on the benefits Administrative 2. Financial Resources of autonomy efforts in HR rights Region 3. Communication, difficulty in fulfillment (CAR) communication with local partners especially in areas where there is no communication signal and likewise the geographical terrain of the Cordilleras Cagayan Valley 1. Uncooperative tribal leaders in the ⚫ HR education module development (Region II) investigation of cases involving specific on IP rights & focusing on Indigenous People relevant provisions of the 4 bundles of IP 2. Accessibility of the area rights in the IPRA with emphasis on the 3. No means of communication legal basis of the ADs (including where there is conflict with economic zones)
Bicol Region 1. Lack of special fund to defray expenses of ⚫ Additional support to IEC including that (Region V) activities including transportation fares for on the IPRA provisions on IP rights to IP participants include such outputs as IEC materials, 2. Lack of reader friendly IEC material on IP trainers training, consultation-workshop, rights seminars & orientations on IP rights to various stakeholders including IPs themselves Negros Island 1. Improved Inter-Agency cooperation in the ⚫ Localize educational materials for IP Region (NIR / delivery of basic services between rights coupled with education and Region XVIII) NCIP,CHRand other line agencies and promotional activities Civil Society Organizations.for the protection and Promotion of IP’s rights ⚫ Set up a system within the CHR 2. Creation of favourable environment for protection services to prioritize violation IP’s schoolm children in terms of trained of IP Rights including investigations IP teachers, IP instruction materials and improves participation in school extra- curricular activities 3. Local government Units with IPs to enact local ordinances for the protection and promotion of IPs against any form of displacement. Central Visayas 1. Non-cooperation of male adults during the ⚫ Additional support to IEC with materials (Region VII) conduct of promotion activities and activities conducted in local 2. Less interaction of the participants during languages together with an invigorated IP the conduct of promotion activities Day celebrations 3. Participation to the activities should be with the knowledge of the tribal leaders or NCIP Eastern Visayas 1. Protection ⚫ More resources to allow for better (Region VIII) 2. Geographical location collaboration of the CHR with the LGUs 3. Lack of dedicated personnel and NCIP on IP-related concerns including with the creation and mobilization of regional network for IPs Davao Region 1. Communications barrier ⚫ Regular conduct of national-level (Region XI) 2. Safety and security areas over IP areas processes such as IP Rights Conventions 3. Coordination with CSOs over IP concerns to provide a space for IPs to air our their issues and concerns
61 Proposed Enhancements for REGIONS Identified GAPS consideration within the IPHRO SOCCSKSARGEN 1. Lack of specific policy direction on IP ⚫ Develop inter-agency coordination with (Region XII) issues wide dissemination of the IP Rights law 2. Insufficient resources-Budget constraints so that government agencies should pertaining to their transportation understand fully their role in its allowance for reimbursements when they implementation are invited to come to the venue/activity ⚫ Training/Education for IP leaders far from their place/residence. The costs ⚫ Establish and intensify partnership and of fare allowance need to be ascertained linkages with existing IP organizations and allotted, however, due to limited alongside with NCIP budget we cannot assure their complete ⚫ Budget appropriation for HR activities attendance where target participants are IPs 3. Low Capacity in terms of IP Rights ⚫ Provide promo collateral and IEC materials for advocacy, education ⚫ Mapping of IP territories in all regions, draw out the HR and in case of conflict areas, the Humanitarian concerns of the IPs, specially the divergent and peculiar issues and corners from the areas and craft democratically a Human Rights-based long term, medium term plans and annual work and financial plansCome up an effective Monitoring and Evaluation Tools ⚫ Conduct of periodic Program Implementation Reviews (PIR) ⚫ Sustained support of the IP-related PPAs ⚫ With the advent of the up-going trend in extractive industries, the Commission must take a step ahead by strengthening its regional offices in identified regions (as priorities) in the field of business and human rights, rights of the IPs, human rights and environment, and on the rights- based approach to disaster mgnt ⚫ Equally important is carrying out PPAs in addressing gender inequalities and the inter-sectional discrimination against IP women and girls.
All of these identified gaps from state duty bearers and the CHR on responding to the needs of Filipino Indigenous Peoples to promote, protect and fulfill their 4 bundles of rights; including human rights will now be used as basis for identifying specific actions and policies that should be undertaken by the duty bearers.
In the proposed IPHRO as described in detail in chapter 4, these gaps become the basis for the targeting and programming of its operative components that will now be pushed for adoption and implementation by all concerned government agencies. It will also guide the necessary rights- based monitoring and evaluation system that all concern government agencies must integrate in their M&E systems.
62 CHR on our part; through the IPHRO will monitor the compliance of these targets by concerned government agencies. However, within the whole range of these comprehensive government- wide monitoring, CHR ought to focus on a key components for its own focus programming that it can effectively follow through, leaving the bulk of the other monitoring to other concern government agencies lead by the NCIP.
Proposed here is for the CHR to focus on the protection of the most vulnerable sectors of IP communities; particularly IP women, children, youth, IDPs, elderly and IP nomads.
FOCUS of Monitoring of FOCUS OF CHR State Duty Bearers lead by the NCIP Monitoring
63 Chapter 3. Synthesis and Recommendations
In this Synthesis, we are answering the following key questions?
• How should we understand Human Rights within the context of IP Rights (4 bundles of rights) in the Philippines? • What is the Systemic Nature of IP Rights Violations in the Philippines?
The National Inquiry on the Human Rights Situation of Filipino Indigenous Peoples has provided valuable insights on their current situation and what state duty bearers is currently doing to promote, protect and fulfill their rights as provided for in the 4 bundles of rights under IPRA and other entitlements as provided for by the UNDRIP. The analysis set here and more importantly the specific recommendations; including that of the setting up of the IPHRO and what it will do and where it will focus on provides a way on how we should move forwards towards a major paradigm shift in how IP-related programming and enforcement of laws, policies ought to be done.
How should we understand Human Rights within the context of IP Rights (4 bundles of rights) in the Philippines?
The present legal system sufficiently provides a framework of the four (4) bundle of rights for Filipino IPs. Furthermore, Filipino laws and jurisprudence fully recognizes other entitlements as elaborated further in the UNDRIP.
The IPRA provides the commitment of the government categorically recognizes the right of IPs to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use. The government also committed to establish the means for the full development and empowerment of the IPs' own institutions and initiatives and, where necessary, provide the resources needed therefor. However, IPRA is not the main source of IP Rights. It is actually the Philippine constitution. (Refer to ADMP/CADC/CALC guidelines).
Also, it must be understood that Human Rights; and its normative standards, are just one of 4 specific rights for IPs provided for in IPRA. In fact, when viewed from the perspective of IPs rights to development, article 23 of UNDRIP & other related provisions on Right to Development of IPs, it is clear that the nature of the
RIGHT TO DEVELOPMENT as an “…inalienable human Figure 1 : 4-Bundles of IP Rights as Pre- right by virtue of which every human person and all peoples are Requisites for the Fulfillment of IPs Rights entitled to participate in, contribute to, and enjoy economic, social, to Development cultural and political development, in which all human rights and fundamental freedoms can be fully realized”, are first subjected to what constitute IP Rights. Thus, in the context of the Philippines and considering UNDRIP, before the RIGHT TO
64 DEVELOMENT of IPs is pursued, the nature and definition of what development means to Filipino Indigenous Peoples must first be established through the substantial fulfillment of the 4 bundles of IP rights. In this way, the IP communities themselves make the appropriate choice for the nature and pace of development they want to underake.
In the analysis of the problems of non fulfillment of IP rights, it is also evident that their are clear hierarchy of actions that ought to be undertaken. Thus, the context of human rights fulfillment among Filipino IPs must be secured cognizant of these hierarchy of actions as follows:
In fact, connecting the fulfillment of the 4 bundles of IP rights to the right to development would move the discussion on IP Rights forward and not stuck on land issues alone. IPRA implementation in the last 20 years has indeed focused on issuance of CADTs as it is the starting point of succeeding actions that must be undertaken. \ However, we take notice of the fact that the targeting of one (1) AD per year in the target for delineation by the NCIP and the current delays in the final registration of approved ADs with the LRA due to the implementation of the JAO 1-2012; which was ironically originally undertaken to expedite this very same process, have constituted delays and the further slow down of this first steps towards fulfilling IP rights.
We also take notice that progressive realization over the succeeding steps in this heirarcy of actions need not wait for the preceding steps to happen as these needs are urgent and must already be acted upon.
What is the Systemic Nature of IP Rights Violations in the Philippines?
Based on the admitted facts that CHR has gathered in this national inquiry, it is evident that indeed there are systemic violation of IP Rights; most of which have been recognized already but not sufficiently been acted upon. With the exception of several problematic policies that have been identified in this national inquiry, in general laws and policies to ensure recognition and protection of IP rights are sufficient at this point. The real problem is in insufficient implementation as manifested by the numerous gaps identified from the current responses of state duty bearers to identified needs of Filipino IPs coupled with a lack of comprehensive and systematic monitoring of the progressive realization of these IP rights across the entire relevant operations of the state actors.
65 Key issues that constitute this systemic violations include: a) Indigenous identity is threatened and insufficient protection for the right to cultural integrity b) Non-IP's encroachment into ancestral domains as a threat to the indigenous identity c) Limitations to the right of ownership over ancestral domains d) Wanton violations and confusion on the scope of free, prior and informed consent of IPs e) Undermining of IPs' decision-making processes and governance structures; f) Insufficient actions by the state duty bearers to fulfill the Right to Development of IPs g) Insufficient opportunities for development provided by Duty-Bearers; h) Insufficient development, continuing discrimination leading to insufficient protection of the most vulnerable sectors of the IP Community (i.e., women, children, elderly, nomads, IDPs, youth)
When reviewed further through a problem-tree analysis, the above key issues may further be categorized along these heirarchy of needs:
When trying to identify the root causes of these systematic problems, we arrived at the following conclusion on the key elements of the problem:
Once the following root causes are identified, we then proceed in identifying focus interventions
66 which may be summarized as follows:
In view of the foregoing analysis, CHR recommends the following:
1. Stronger legislation is needed, such as the Ethnic Origin Act104, to protect indigenous identity including those IPs outside their ADs considering that that are most vulnerable outside their on domain. The flagship project of NCIP, known as the Philippine Indigenous Peoples Ethnography (PIPE), must be fully implemented to address this concern, and there should be proper ethnicity questions in the 2020 CPH. 105 Encourage IP participation in MIPLA (Mindanao IP Legislative Assembly) to ensure their indigenous identity is recognize and protected in the process of finalizing the BBL. Further that such act must ensure separate local civil registry office to handle registration of IPs' vital events106 and must compel LGUs to intensify free mobile registration for IPs in GIDA.
2. Improve the processes under JAO 1. Set a clear guideline for situation when NCIP En Banc issued a resolution approving the issuance of CADT.107 This report is being submitted to the National Steering Committee under JAO 1 to verify with its records the cases involving contentious cases as mentioned during the public hearings.
104 Senate Bill No. 912 introduced by Sen. Loren Legarda on July 28, 2016 https://www.senate.gov.ph/lis/bill_res.aspx?congress=17&q=SBN-912 (accessed November 8, 2017) 105 Per PSA input during the 3rd Public Hearing in Tagaytay City 106 Per statement of Pilar Mendoza (PSA) during the 2nd public hearing in Puerto Princesa City, Palawan 107 Per statement of Atty. Rosette Ferrer (DENR Central Office) during the 1st public hearing in Iloilo City
67 3. Capacity building for the IPs to avoid misinformation. For example, some IPs would believe that ancestral waters could not be covered under IPRA.108
4. Need for stronger agency that will protect the IPs from large businesses. FPIC must be enforce through police power. Police training is needed to protect IP Rights, and customary law. There must be database to track FPIC process.109 FPIC must be one consolidated process, and need to clarify coverage of FPIC.
5. Regular courts must be capacitated to try and decide legal disputes between IPs and non-IPs.
6. NCIP must not only stop in issuing COC for IPMRs. They should assist in seeing through the full performance of IPMR functions. There must be law that recognition of IPMRs is mandatory and not discretionary on the part of the LGU. The NCIP must ensure the validity of the selection process for the IPMR.
7. Engage the Mindanao IPMR league, and formalize IPMR league all throughout the country in linkage with IPHRO.
8. Full operationalization of IPHRO should be properly and sufficentyly finance through GAA allocation within CHR and other relevant government agencies as well as funded from external sources (e.g. UNDESA, others)
9. Fiscal Monitoring of IP-related public expenditures to track budget, net worth and resources of IPs, including a government-wide tagging of IP-related budget allocation & utilization for the supply side as well as the full accounting of the financial requirements of all ADSDPP for the demand side of fiscal monitoring. Related to this is yo inquire from NCIP how it exercise functions to obtain funding from other sources. Needless to say, ADSDPPs must be funded in GAA, not only its development.
12. Assign IP Desk/Focal points in all government agencies.
13. Enact a law on ADSDPP. Capacitate IPs for development planning through IPHRO.
14. Include a core group of government agencies in the management of the IPHRO. These agencies are NCIP, DENR, DAR, DSWD, NEDA, NHA, DOH, DepEd, NCCA, PSA
15. Initiate tribal barangays where it is already necessary
16. Clarify in law the situation of IPs selling lands
17. There are NCIP guidelines on Right to Ancestral Domain, FPIC, IKSP, but not with how IP Human rights would be observed. The IPHRO will be the venue to develop this.
18. IPHRO will fast track investigation and updating of case of killing of IPs.
108 Per statement of Hamka J. Malabong, Sama Dilaut, during the 5th public hearing in Tagoloan, Misamis Oriental 109 Per Statement of Atty. Mary Genevieve Tingson (NCIP) during the 1st public hearing in Iloilo City
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19. Planning should be per tribe to give due consideration to the cultural context, the indigenous systems and practices of the concerned communities.
20. CHR to convene a meeting with the LGUs that penalize TBA.
21. Discrimination should be addressed through capacity-building for IPs, beginning with their rights under the law, domestic or international.
22. CHR, through IPHRO, should render legal assistance
23. Recommend that CHR will require certification from the council of elders are prerequisite of any action
24. Nomadic IPs need legal protection. (Refer to Sections 3(a) and 51)
25. Participation of CHR in all regional development council, particularly for culture.
26. Gap in the protection of IPs' native title because protection still goes back and determined by the actual issuance of a registered CADT.
Chapter 4 Towards an IP Human Rights Observatory (IPHRO)
After careful consideration and analysis of the situation of the Filipino indigenous peoples based from the testimonies received from IPs and key state duty bearers during the 2017 IP National Inquiry of the Commission on Human Rights (CHR), the following operative elements of the Indigenous Peoples Human Rights Observatory (IPHRO) is hereby proposed.
The IPHRO is a proposed permanent mechanism with the CHR to effectively gauge the fulfillment of the human rights of Filipino indigenous peoples as defined by the 4 bundles of IP rights in the Indigenous Peoples Rights Act (ACT) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
The realization of the 4 bundles of IP rights hopes to guide the proper articulation of their right to development as defined by their exercise of self determination. In so doing, a culturally- appropriate realization of their right to development and the safeguarding of their civil and political rights as well as their economic, social, cultural rights are the expected results.
Using a problem-solution tree analysis of the non-fulfillment of IP rights, the following root causes of the problems were identified: a) slow processing of the CADTs (Certificate of Ancestral Domain Title), b) non recognition of Indigenous Peoples Mandatory Representatives (IPMR) by some LGUs and c) the taking for granted of their CADTs and their ADSDPPs (Ancestral Domain Sustainable Development and Protection Plan).
69 These inevitably results to the hierarchy of effects as follows: a) First, unsecured or threatened ancestral domain & land, violation of FPIC (Free, Prior, Informed Consent) process, displacement & dispossession of IPs and loss of ecological integrity; b) Second, the non establishment of the self-governance mechanisms and non maximization or threatened representation of IPs ; c) Third, insufficient support to the IPs socio, economic and cultural development through full implementation of their ADSDPP; d) Fourth, non consideration of IP rights in autonomy & peace efforts (Cordillera, Bangsamoro and other parts of the Philippines); and e) Fifth, insufficient protection of the most vulnerable IP sectors including IP women, IP youth, IP children, IP elders, IP IDPs (internally-displaced people) and IP nomads. These represent the 5 KEY ISSUES that the IPHRO will focus on.
When the further causes of these were analyzed, the following ROOT CAUSES were identified: 1) Continued discrimination of IPs in various forms and in day to day life experiences, 2) Insufficient capacity of key state duty bearers to fulfill obligations for IP rights promotion, protection & fulfillment, and 3) Conflicts within the Ancestral Domain due to: a) development aggression driven by resource conflicts, b) external conflicts of opposing armed groups brought in the ADs causing division among IP community members. The strategic responses to these ROOT CAUSES were then considered as the PROGRAM ELEMENTS of the IPHRO as follows:
1) Extensive Information, Education and Communications to combat culture of discrimination against Indigenous Peoples (IP Rights IEC Program) 2) A Capacity Building on IP Rights Promotion, Protection & Fulfillment including Monitoring & Evaluation (M&E) (IP Rights Capacity Building Program) 3) Direct IP Communities-CHR IP Rights Knowledge Management System LINK to IP Rights Protection Services Referrals and Follow Through (IP Rights Knowledge Management & Protection Program
A gap analysis across the current responses (mandates, programs, projects, activities, services) of key state duty bearers was conducted and these resulted in identification of operative elements for each of these programs.
To monitor and evaluate these proposed interventions through the IPHRO, an Human Rights Based Approach (HRBA) and Results Based Management (RBM) Monitoring and evaluation system using the O.PE.R.A. (Outcomes, Policy Efforts, Resources Assessment) Framework and the Indigenous Navigator tool is proposed. The designated major outcome and impact indicators are the following:
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Table 7: Summary of Monitoring and Evaluation (M&E) Indicator System for the Indigenous Peoples Human Rights Observatory (IPHRO)
OUTCOME INDICATORS IMPACT INDICATORS Right to % of total number of ADs % of all ADs owned and in ancestral where: a) CADTs applied, the possession of IPs domain and b) CADT delineation land conducted, c) CADT approved, d) approved CADT registered and e) Extend of ADSDPP developed & fulfillment of approved the state of its Right to self % of total LGUs (Brgys, obligation to % of all ADs with self governance and Mun/City, Provincial) promote, governance and empowerment with sitting IPMRs fully protect and appropriate representation % of ADs with endorse by the IPS, IPOs fulfil the in LGUs and RDCs secured CADT, of their representation Filipino IPs self governing IPS with the status of their rights to & IPOs, functional level of participation ancestral IPMR (using HRBA norms on domain & land, representation, , level of participation) rights to self- with FPIC governance & followed, % of reduction of empowerment, implemented reported violations of rights to social ADSDPP and key Free, Prior, Informed, justice & cultural Consent (FPIC) human rights development and rights to Right to social facilities/ % of adopted ADSDPP cultural % of all AD with ADSDPP justice and mechanisms in implemented and extent of integrity fully supported and all human rights place implementation and identified socio-economic, immediate results (outputs and cultural needs and immediate outcomes) provided
Right to % of ADs with school of % of all ADs where their cultural living traditions, local IP culture integrity has been integrity language use in vernacular protected & preserve & school instructions, IP schools with IP teachers, functional tribal halls and extent of IKS researches with IPR registered & owned by IPs Global SDG actions by IPs Indicators Security of IP Rights Defenders
71 The proposed IPHRO will be operationalize through a 3-step process. These include:
Table 8: Proposed IPHRO Operationalization Work Plan Operationalization Steps Timeframe
1) Signing a Memorandum of Agreement (MOA) among key National 1st quarter 2018 Government Agencies establishing a common system of monitoring and evaluation using a human right based approach on the fulfillment of Indigenous Peoples rights led by the CHR and NCIP and involving 9 other key NGAs;
2) Establishing two (2) main Collaborative Mechanisms to implement the a) - rest of 2018 provisions of the proposed MOA; namely: a) A Direct IP Community - CHR b) - 2nd - 3rd quarter of 2018 Monitoring Platform and b) An Inter-Agency/ Multi-Sectoral IP Rights Monitoring Mechanism to include various inter agency TWGs for each of the 4 bundles of IP rights plus a TWG on the autonomy and peace processes; and
3) Institutionalization of the three (3) program components of the IPHRO 2018-2019 within the regular operations of the CHR.
These IPHRO Program Components will provide the following services and will involve the following key players:
Table 9: Proposed IPHRO Program Components, Services & Key Players Program Services Key Players Components IP Rights IEC 1. Education Campaign on IP Rights among IP CHR (incl RHRC-ARMM) Program Communities NCIP 2. Orientation on IP Rights to LGUs and NGAs NCCA 3. IP Rights and IP Culture Conscientization Campaign in Business Associations Schools DepEd 4. IP Rights Orientation Among Private Sector (companies operating in Ancestral Domains) 5. IP Rights Mass and Social Media Campaign
IP Rights 1. Trainings on IP Rights to IPs, IPOs and IPMRs CHR (incl RHRC-ARMM) Capacity Building 2. Trainings on IP Rights to NGA IP Desks and NCIP Program Programs/Projects NGOs IPOs IP Rights 1. Online Database Management System on IP Rights CHR Knowledge Monitoring NCIP Management & 2. Annual IP Rights Monitoring & Report NEDA Protection 3. IP Rights National Inquiry (every 5 years) Program 4. Regular convening of the Direct IP Community-CHR IP and NGA Monitoring Platforms at the regional level ( every 6 representatives to the months various TWGs, Task 5. Regular convening of the various TWGs of the Inter- Forces and Consultative Agency Collaborative Mechanism on IP Rights Forum Monitoring (at least every quarter or when the need arises) a) TWG on AD & Land, b) TWG on Self-Governance & Empowerment c) TWG on Social Justice & Human Rights d) TWG on Cultural Integrity
72 e) TWG on Autonomy and Peace Talks 6. Regular convening of the CHR-NCIP-DBM-COA Task Force on IP Rights Fiscal Monitoring (at least once a year) 7. Regular convening of the BHR Task Force on IP Rights Monitoring (Inter-Agency, Multi-Sectoral National Body) complemented with an IP (IPMR Leagues, IPOs) – CHR – NCIP – Business – CSO Consultative Forum at the Regional and National Levels on IP Rights and BHR ( at least once a year)
Conceptual Framework of the Indigenous Peoples Human Rights Observatory
Figure 14 : Conceptual Framework of the Proposed Indigenous Peoples Human Rights Observatory (IPHRO)
Building from the gaps identified in the current responses of state duty bearers, the proposed Indigenous Peoples Rights Observatory (IPRO) is envisioned to be a permanent RBM & HRBA Monitoring & Evaluation System of the Commission on Human Rights (CHR) to effectively gauge the fulfillment of the human rights of Filipino Indigenous Peoples.
It focuses on the 4 bundles of IP Rights as provided for in the IPRA (Indigenous Peoples Rights Act) and the UNDRIP leading to the fulfillment of their right to development and safeguarding their civil & political rights as well as their economic, social and cultural rights. Monitoring the ESCR components will utilize the O.PE.R.A. (Outcomes, Policy Efforts, Resources, Assessment) Framework of monitoring Economic, Social, Cultural Rights (ESCR) commitments
73 Its program components include:
1) Extensive Information, Education and Communications (IEC) to combat culture of discrimination against Indigenous Peoples 2) A Capacity Building on IP Rights Promotion, Protection & Fulfillment (incl. M&E) 3) Direct IP Communities-CHR IP Rights Knowledge Management System LINK to IP Rights Protection Services Referrals and Follow Through
It revolves around the 4 key main issues affecting fulfillment of IP Rights in the Philippines; namely:
AREA 1:Securing Ancestral Domain & Ensuring Ecological & Cultural Integrity
AREA 2:Establishing Self-Governance & Representation for IP structures (IPS, IPOs, IPMRs)
AREA 3:Supporting development of IPs & their ancestral domain through the full implementation of ADSDPP (Ancestral Domain Sustainable Protection Plans) and other similar plans
AREA 4:Protecting IP Women, IP Children, IP Youth, IP Elders, IP IDPs ad IP Nomads and Preparing the next generation of IP leaders.
AREA 4: Ensuring IP rights considered in autonomy proposals and peace talks
These mechanisms will be built upon a direct monitoring & intelligence gathering mechanism between CHR and the IP communities.
This amidst a clear analysis of the root causes of their recurring issues; namely: a) Insufficient Capacity of Key Duty Bearers, b) Development Aggression & Resource Conflicts, c) Internal Conflicts in Ancestral Domain, and d) Continuing Discrimination Against IPs.
Owing to the recognition by the state of the rights of IPs; including that of their right to self- determination & self-governance, this M&E system will cut across the participation and empowerment concerns of the self-governance structure of IP communities; namely the IPS (Indigenous Political Structure), IPOs (Indigenous Peoples Organizations) and recently the IPMRs (IP Mandatory Representation).
IPMRs’ mandates are valid when they emanate directly from the IPs & IPOs. As they represent the views of IPs in governance, they are both duty bearers and rights Figure 15 : Unique Self-Governance Mechanisms of Filipino Indigenous Peoples holders
The IPMR; provides a
74 renewed potential to mainstream the development aspirations of IP communities in local development planning and programming by carrying through their representation in the individual ADSDPP of each ancestral domain and lobbying them for appropriate policies, program/projects/activities, funding, structures & mechanisms in their respective LGUs.
Figure 16 : ADSDPPs Integration in Local Public Administration Planning & Programming This, through various levels of public administration governance mechanisms such as the 10-year CLUPs (Comprehensive Land Use Plans), the 3-year ELAs (Executive, Legislative Agenda) and the Annual Development & Investment Plans the and to some degree in the regional development councils or similar mechanisms to influence both programming, resources and policies of national government agencies and other development stakeholders in the region.
While essential to the very nature of Indigenous Peoples is their cultural assets and ancestral domain, this observatory recognizes the current predicament of both IP communities who are intact in their own domain (regardless whether their CADT or titles have been issued or nor) and those who by choice or circumstances are considered migrants in other ancestral domains of other tribes or outside the ancestral domain. This also included “nomadic” IP communities with no apparent permanent land-based domains, such as sea-fearing IPs.
Figure 17: Coverage of IPHRO
VII. Program Elements of the IPHRO
Responding directly to the identified root causes of non-fulfillment of IP rights in the Philippines, the following are proposed to be the programs for the IPHRO. Thes includes:
1) Extensive Information, Education and Communications to combat culture of discrimination against Indigenous Peoples (IP Rights IEC Program)
2) A Capacity Building on IP Rights Promotion, Protection & Fulfillment incl. M&E (IP Rights Capacity Building Program)
4) Direct IP Communities-CHR IP Rights Knowledge Management System LINK to IP Rights Protection Services Referrals and Follow Through (IP Rights Knowledge Management & Protection Program)
75 The operative elements of each of these proposed programs for the IPHRO were identified responding to the identified gaps of state duty bearers as discussed and agreed in consensus during the IP national inquiry.
A. Operative Elements of the IP Rights IEC Program
The proposed IEC Program will focus on ten (10) Key Result Areas directly responding to the identified IEC gaps of key duty bearers. Here, it is presented in the form of an IEC framework plan matrix to guide development of specific action plans within the IPHRO.
Table 10: IEC Framework Plan for the Indigenous Peoples Human Rights Observatory (IPHRO) (as of Nov 2017)
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77 B. Operative Elements of IP Rights Capacity Building Program
The proposed Capacity Building Program will focus on twelve (12) Key Result Areas directly responding to the identified implementation capacity gaps in the forms of trainers training of key duty bearers. Here, it is presented in the form of an training framework plan matrix to guide development of specific action plans within the IPHRO.
Table 11: Capacity Building Framework Plan for the Indigenous Peoples Human Rights Observatory (IPHRO) (as of November 2017)
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79 C. Operative Elements of the IP Rights Knowledge Management & Protection Service Referral Program
The proposed Knowledge Management & Protection Referral Program will focus on seven (7) Key Result Areas directly responding to the identified M&E gaps in the forms of trainers training of key duty bearers. Here, it is presented in the form of a knowledge management and protection service referral framework plan matrix to guide development of specific action plans within the IPHRO.
Table 12 : Knowledge Management & Protection Service Referral Framework Plan for the Indigenous Peoples Human Rights Observatory (IPHRO) (as of November 2017)
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81 M&E Framework of the IPHRO using O.PE.R.A.
While it is true that a results-based management (RBM) system does not focus as much to process as thus to results compared to a Human Rights Based Approach (HRBA) However, given that the current planning and M&E language and system of Philippine government agencies is largely still RBM with some exception to HRBA having been integrated to some extent in the management systems of NEDA, DepEd and of course CHR, a cross between RBM and HRBA would probably be the more pragmatic approach at developing a Monitoring and Evaluation (M&E) system for the IPHRO for the time being.
In this case, we have integrated HRBA framework for measuring and assessing fulfillment of ESCR (Economic, Social and Cultural Rights) called O.PE.R.A (Outcomes, Policy Efforts, Resources Assessment) framework within the RBM chain of results. The use of O.PE.R.A. is of course premised that by large we are measuring here the rights to development of IPs building from the 4 bundles of IP rights with mostly ESCR concerns.
The designated OUTPUTS remain the individual results of specific government agencies and LGUs working on fulfilling IP rights, including all KRAs of CHR and other agencies that will form part of the implementation of IPHRO . From here, the designated OUTCOMES will include those key elements identified in the outcome elements of OP.E.R.A. as well as elements identified in the Policy Efforts and Resources components of O.PE.R.A. All these agency/organization level outputs as well as outcomes are the ones subject to regular MONITORING.
On the other hand, the elements of assessment under O.PE.R.A. will be considered the IMPACT level results and will be the one subject to EVALUATION.
Figure 18: RBM-HRBA O.PE.R.A. and Indigenous Navigator-based M&E System Framework for IP Rights Fulfillment
82 As an HRBA, this M&E system utilizes human rights norms and the monitoring and evaluation (assessment) elements as defined within the O.PE.R.A. Furthermore, the monitoring techniques recommended under the O.PE.R.A. were complied with to the extent possible And within the Philippine context of the IPRA’s 4 bundles of IP rights, the outcome and impact indicator systems developed for use in this system are further articulated along the 4 bundles of: a) right to ancestral domain and land, b) right to self governance and empowerment, c) right to social justice and human rights and d) right to cultural integrity. Each bundle of rights provided with the one core outcome and one core impact indicator each, as follows:
Table 13: Summary of Monitoring and Evaluation (M&E) Indicator System for the Indigenous Peoples Human Rights Observatory (IPHRO) OUTCOME INDICATORS IMPACT INDICATORS Right to % of total number of ADs % of all ADs owned and in ancestral where: a) CADTs applied, the possession of IPs domain and b) CADT delineation land conducted, c) CADT approved, d) approved CADT registered and e) Extend of ADSDPP developed & fulfillment of approved the state of its Right to self % of total LGUs (Brgys, obligation to % of all ADs with self governance and Mun/City, Provincial) promote, governance and empowerment with sitting IPMRs fully protect and appropriate representation % of ADs with endorse by the IPS, IPOs fulfil the in LGUs and RDCs secured CADT, of their representation Filipino IPs self governing IPS with the status of their rights to & IPOs, functional level of participation ancestral IPMR (using HRBA norms on domain & land, representation, , level of participation) rights to self- with FPIC governance & followed, % of reduction of empowerment, implemented reported violations of rights to social ADSDPP and key Free, Prior, Informed, justice & cultural Consent (FPIC) human rights development and rights to Right to social facilities/ % of adopted ADSDPP cultural % of all AD with ADSDPP justice and mechanisms in implemented and extent of integrity fully supported and all human rights place implementation and identified socio-economic, immediate results (outputs and cultural needs and immediate outcomes) provided
Right to % of ADs with school of % of all ADs where their cultural living traditions, local IP culture integrity has been integrity language use in vernacular protected & preserve & school instructions, IP schools with IP teachers, functional tribal halls and extent of IKS researches with IPR registered & owned by IPs Global SDG actions by IPs Indicators Security of IP Rights Defenders
83 As for the HRBA norms on level of participation to be used in tandem with the indicators identified for the right to self-governance and empowerment, we will be using the “Ladder of Citizen Participation” by Anstein (1969) which divides the level of participation into three with key elements each. First is non participation where the approach of manipulation and therapy are mostly applied. Second is Tokenism where the approach is manifested by informing, consultation and placation. And finally at the 3rd and highest level, citizen empowerment is achieve as a level of participation with the following manifestation: partnership, then delegated power then citizen control.
Manifestations Level of Citizen Participation Citizen Control Delegated Power Citizen Empowerment Partnership Placation Consultation Tokenism Informing Therapy Manipulation Hon Participation Table 14: Ladder of Citizen Participation, Arnstein (1969)
Appropriate indicators in the Indigenous Navigator tool (both tools for community and national levels) have also been incorporated in this M&E system. Two global indicators including: a) SDG actions by IPs as well as b) Security of IP Rights Defenders will be incorporated as outcome and impacts indicators in the main tool while a Community Scorecard tool has been refined from the Indigenous Navigator community level tool to be used by IP community members to assess actual implementation of key national and local policies for IP rights promotion, protection and fulfillment using the AAAAQ (Availability, Accessibility, Acceptability. Quality) criteria.
A. O.PE.R.A. (Outcome, Policy Efforts, Resources Assessment) Framework
Table 15: Summary of the Elements of the O.PE.R.A. Framework
The O.PE.R.A. framework follows a logical order of monitoring and evaluation (assessment). Under the HR norms of minimum core obligations, it will start with measuring aggregate levels of rights enjoyment of the identified core outcome indicators. In this case these are: a) Securing
84 CADTs, b) IPMR representation, c) Adoption & implementation of the ADSDPP and c) Securing cultural protection & conservation facilities/ mechanisms. These data will then be dis aggregated by ancestral domain to measure the disparities in rights enjoyment per area and per tribe subjecting it to the HR norm of non discrimination. After which this it will be further dis aggregated across time in the past 5-20 years of IPRA implementation and every year thereafter applying the HR norm on progressive realization.
Table 16: Summary of the Elements of the O.PE.R.A. Framework (OUTCOMES)
At the policy efforts level, the process will continue with identifying legal and policy commitments of the state applying the HR norm on obligation to take steps. The key outcome indicator for this step is: assessment of Local IP-related policies compared to international standard.
For the right to ancestral domain & land, right to self governance & empowerment, right to cultural integrity, the relevant IPRA provisions (and all related IRRs, JAOs, AOs) vs relevant UNDRIP provisions will be covered. As for the right to social justice and human rights, additional items to be covered will be ESCR normative HR standards, CPR normative HR standards and normative HR standards on IPs in conflict situations. Then this will be subjected to a community scorecard from a modified indigenous navigator tool to assess actual implementation of key national and local policies for IP rights promotion, protection and fulfillment using the AAAAQ (Availability, Accessibility, Acceptability. Quality) criteria. Finally, the community scorecard will also include the criteria for PANTHER (Participation, Transparency, Accountability, & Right to a remedy) to analyze policy processes.
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Table 17: Summary of the Elements of the O.PE.R.A. Framework (OPOLICY EFFORTS)
At the resources level, the process will begin with evaluating planned and actual resource expenditures of the state by applying the HR norms on: a) core obligations, b) non- discrimination, c) progressive realization according to maximum available resources and d) transparency and accountability.
The key outcome indicator for this step is: % of national budget allocation & utilization per IP right over benchmark. For the right to ancestral domain & land, the indicators are amount of budget for AD Surveys, AD titling and support for land dispute-related litigations. These data will then be dis aggregated by ancestral domain to identify which population groups are benefiting from spending; contrast spending disparities with disparities in human rights outcomes. After which this will be further dis aggregated across time in the past 5-20 years of IPRA implementation and every year thereafter applying the HR norm on progressive realization. The next 2 steps is to evaluate resource generation and analyze relevant policy processes
Table 18: Summary of the Elements of the O.PE.R.A. Framework (RESOURCES)
86 Finally, at the assessment level, contextual factors that limit enjoyment of the right as well as understanding the state’s constraints will be the first 2 steps. After which and considering all previous data and assessment, state compliance on the HR norm of obligation to fulfill using the last indicator of “extend of fulfillment of the state of its obligation to promote, protect and fulfil the Filipino IPs rights to ancestral domain & land, rights to self-governance & empowerment, rights to social justice & human rights and rights to cultural integrity” will be utilized.
Table 18: Summary of the Elements of the O.PE.R.A. Framework (Assessment)
Herewith is the detailed proposed IPHRO M&E Indicator system:
87 B. Proposed IPHRO M&E Indicator System
Table 19 : Monitoring and Evaluation (M&E) Indicator System for the Indigenous Peoples Human Rights Observatory (IPHRO) Elements & Human Assessment Techniques IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms & Main Indicators Right to Ancestral Domain Right to Self-Governance & Social Justice and Human Cultural Integrity and Lands Empowerment Rights
Measure levels of Identify relevant outcome indicators that INDICATOR: INDICATOR: INDICATOR: INDICATOR: enjoyment of the show the extent to which the right, including right its minimum essential levels, is enjoyed in % of total number of ADs % of total LGUs (Brgys, % of adopted ADSDPP % of ADs with school of the country. where: a) CADTs applied, Mun/City, Provincial) with implemented and extent of living traditions, local IP HR Norms: b) CADT delineation sitting IPMRs fully endorse by implementation and language use in Minimum core INDICATOR: conducted, c) CADT the IPS, IPOs of their immediate results (outputs vernacular & school obligations approved, d) approved representation with the status and immediate outcomes) instructions, IP schools % of ADs with secured CADT, self CADT registered and e) of their level of participation with IP teachers, governing IPS & IPOs, functional IPMR ADSDPP developed & (using HRBA norms on level functional tribal halls representation, implemented ADSDPP, with approved of participation) and extent of IKS FPIC followed and key cultural development researches with IPR facilities/ mechanisms in place % of reduction of reported registered & owned by violations of Free, Prior, IPs Informed, Consent (FPIC)
Measure disparities Dis aggregated indicators by social groups INDICATOR: in rights enjoyment to identify disparities in levels of enjoyment of the right. Using the same indicators above, dis aggregated per ADs HR Norms:
Non-discrimination INDICATOR:
Situation of key outcome indicators on the 4 bundles of rights dis aggregated per AD
88 Elements & Human Assessment Techniques IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms & Main Indicators Right to Ancestral Domain Right to Self-Governance & Social Justice and Human Cultural Integrity and Lands Empowerment Rights
Measure progress Examine variations of indicators over time to INDICATOR: over time assess progress, retrogression and change in disparity levels. Using the same indicators above, dis aggregated annually (in the past 5 years) HR Norms:
Progressive INDICATOR: realization Situation of key outcome indicators on the 4 bundles of rights disaggregated per year across ADs and within ADs
1. Policy Efforts Indicators
Elements & Human Assessment Techniques IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms & Main Indicators Right to Ancestral Domain Right to Self-Governance & Social Justice and Human Cultural Integrity and Lands Empowerment Rights Identify legal and Identify international commitments and INDICATOR: INDICATOR: INDICATOR: INDICATOR: policy commitments national constitutional and legislative provisions that give effect to them. Relevant IPRA provisions Relevant IPRA provisions Relevant IPRA provisions Relevant IPRA HR Norms: Identify specific laws and policies on the (IRRs, JAOs, AOs) vs (IRRs, JAOs, AOs) vs (IRRs, JAOs, AOs) vs provisions (IRRs, JAOs, Obligation to take right and compare their provisions to Relevant UNDRIP Relevant UNDRIP Provisions Relevant UNDRIP AOs) vs Relevant steps international standards. Provisions Provisions, ESCR UNDRIP Provisions Normative HR Standards, INDICATOR: CPR Normative HR Standards and Normative Assessment of Local IP-related policies HR Standards on IPs in compared to international standards conflict situations
89 Elements & Human Assessment Techniques IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms & Main Indicators Right to Ancestral Domain Right to Self-Governance & Social Justice and Human Cultural Integrity and Lands Empowerment Rights Examine policy IIdentify the goods and services needed to INDICATOR: content and give effect to the right. implementation Measure the availability, accessibility, Assessment by IP community members of above local policies using the AAAAQ Criteria as applied in a acceptability and quality of these goods and modified Community Indigenous Navigator Survey use a scorecard mechanism HR Norms: services (e.g. assessing quantitative and AAAAQ qualitative data, community score cards). (Availability, Accessibility, INDICATOR: Acceptability and Quality) criteria Assessment of Local IP-related policies as it provides goods & services based on AAAA criteria by IP community members
Analyse policy Analyse relevant national laws and policies INDICATOR: processes (e.g. on access to information, local participation, complaints mechanisms). Assessment by IP community members of above local policies using the AAAAQ Criteria as applied in a HR Norms: Collect feedback on the extent to which these modified Community Indigenous Navigator Survey use a scorecard mechanism Participation, principles are applied in practice (e.g. transparency, through interviews or other qualitative accountability, methods and quantitative indicators, if right to a remedy available).
INDICATOR:
Assessment of Local IP-related policies in terms of IP participation based on PANTHER criteria by IP community members community members
90 2. Resources Indicators
Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators Right to Ancestral Domain Right to Self-Governance & Social Justice and Human Cultural Integrity and Lands Empowerment Rights Public Resource Calculate the percentage of INDICATORS INDICATORS INDICATORS INDICATORS Allocation & the State’s budget allocated to Utilization social spending relevant to the Amount of budget for AD Amount of budget to supporting Amount of budget supporting Amount of budget supporting specific right, comparing to Surveys IPS (Indigenous Political socio-economic PPAs & cultural development services HR Norms relevant benchmarks. Structures) services to IPs following the for IPs Amount of budget for AD normative rights on education, Core obligations MAIN INDICATOR: titling Amount of budget to supporting food, health, water, social IPOs (Indigenous Political security, work Non-discrimination % of national budget Amount of budget Organizations) Progressive allocation & utilization per IP supporting AD land dispute- Amount of budget supporting realization Right over benchmark related litigation Amount of budget to supporting ADSDPP development & according to IPMRs (Indigenous People implementation maximum available Mandatory Representatives) resources Amount of budget supporting reparations of IP HR Transparency and violations accountability Amount of budget in PPAs to ensure civil & political rights of IPs
91 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Cultural Integrity Lands Empowerment Rights Identify which population INDICATOR groups are benefitting from spending; contrast spending disparities with disparities in Same as above but dis aggregated per Ancestral Domain (ADs) human rights outcomes.
MAIN INDICATOR:
Public Resource % of national budget Allocation & allocation & utilization per Utilization ancestral domain
HR Norms Core obligations Compare allocations to INDICATOR previous budgets to see how Non-discrimination spending has evolved over Same as above but analyze on trends per year (e.g. over 5 years) Progressive time, taking into account realization according economic growth over the to maximum period available resources MAIN INDICATOR: Transparency and accountability Amount of national budget allocation & utilization per IP Right over time (e.g. 5 years)
92 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators
Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Cultural Integrity Lands Empowerment Rights
Track public expenditure (e.g. INDICATOR INDICATOR INDICATOR INDICATOR using public expenditure tracking surveys or social Social Impacts of public Social Impacts of public Social Impacts on public Social Impacts of public audits). expenditures on securing IP expenditures on supporting IPS, expenditures on socio, economic expenditures on cultural ADs IPOs and IPMRs services to IPs development for IP MAIN INDICATOR: communities
Social audits on IP-related expenditures (if any) Public Resource Generation Calculate the State budget as INDICATOR INDICATOR INDICATOR INDICATOR a percentage of the overall HR Norms: economy and compare to Amount of budget for securing Amount of budget to support IPS,Amount of budget supporting Amount of budget supporting similar countries. ADs over size of appropriate IPOs and IPMRs over size of socio-economic and political cultural development programs Progressive economic sectors appropriate economic sectors programs & services over size & services over size of realization according MAIN INDICATOR: of appropriate economic sectors appropriate economic sectors to maximum available resources % of state budget for IPs to overall economy Non-discrimination
93 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Cultural Integrity Lands Empowerment Rights Identify and assess the INDICATOR INDICATOR INDICATOR INDICATOR adequacy and fairness of the State’s main revenue sources Amount of budget for securing Amount of budget to support Amount of budget supporting Amount of budget supporting (e.g. taxation, borrowing, ADs disaggregated per source IPS, IPOs and IPMRs socio-economic and political cultural development programs international assistance). (borrowings, taxation, disaggregated per source programs & services & services disaggregated per international assistance) (borrowings, taxation, disaggregated per source source (borrowings, taxation, MAIN INDICATOR: international assistance) (borrowings, taxation, international assistance) international assistance % of IP-related public expenditures over total Public Resource borrowings, taxation & Generation international assistance
HR Norms: Evaluate the State’s fiscal INDICATOR Progressive and/or monetary policies realization according governing the raising of Qualitative and quantitative assessment of government's fiscal and monetary policies to generate revenues for IP-related to maximum revenue (e.g. identify tax base programs and services based on review of policies, interviews with key informants showing distinctions in any of the 4 bundles available resources as a percentage of GDP and of rights; where it shows track its evolution over time, Non-discrimination taking into account economic growth over the period).
MAIN INDICATOR:
Review of fiscal & monetary policy on revenue generation of IP-related programs & services
94 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators
Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Right to Ancestral Domain and Lands Empowerment Rights Lands
Collect feedback on public INDICATOR participation in the design, Public Resource implementation and Qualitative and quantitative assessment of the quality of participation of IP representatives in fiscal & monetary policies Generation evaluation of fiscal and development of government at 3 levels – LGUs, regional development councils and at the national GAA processes based on monetary policies (e.g. review of policies, interviews with key informants, guided surveys showing distinctions in any of the 4 bundles of rights; where HR Norms: through interviews or other it shows qualitative methods and Progressive quantitative data, if available). realization according to maximum MAIN INDICATOR: available resources Assessment of participation of Non-discrimination IPs in fiscal & monetary policies development (LGUs, Regional, National)
Analyse indicators related to INDICATOR transparency of economic policy process Qualitative and quantitative assessment of the quality of transparency of economic policies related to raising resources for IP- . related developments based on review of policies, interviews with key informants, guided surveys showing distinctions in any MAIN INDICATOR: of the 4 bundles of rights; where it shows Public Fiscal and
Monetary Policy Assessment of transparency Processes indicators for economic
policies related to raising resources for the development of IPs and their ancestral domains
95 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators
Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Right to Ancestral Domain and Lands``` Empowerment Rights Lands
Identify the social, economic, INDICATOR: INDICATOR: INDICATOR: INDICATOR: political or cultural conditions that prevent people from Social, economic, political & Social, economic, political & Social, economic, political & Social, economic, political & enjoying the right or seeking cultural conditions that prevent cultural conditions that prevent cultural conditions that prevent cultural conditions that prevent redress for violations of the IPs from fully exercising their IPs from fully exercising their IPs from receiving sufficient IPs from receiving sufficient right (e.g. through capacity right to own and possess AD right to govern their own affairs support from the state to full support from the state to enjoy gap assessment). and land OR from seeking within their respective ADs and implement their ADSDPP and the cultural protection & redress for not being able to to be fully represented in LGUs provide fully for their socio, conservation facilities/ INDICATOR: exercise/ enjoy these rights and RDCs that covers and/or economic, cultural development mechanisms they require OR adjacent to their ADs or where needs OR from seeking redress from seeking redress for not Identify contextual Social, economic, political & IPMRs are required to be for not being able to exercise/ being able to exercise/ enjoy factors that limit cultural conditions that hinders represented OR from seeking enjoy these rights these rights enjoyment of the IPs to secure their CADTs, redress for not being able to right have self governing IPS & exercise/ enjoy these right
IPOs, have functional IPMR HR Norms: representation, fully
implemented ADSDPP and Indivisibility and key cultural development interdependence of facilities/ mechanisms in place rights OR from seeking redress for Right to a remedy not being able to exercise/
enjoy these rights
96 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators
Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Right to Ancestral Domain and Lands``` Empowerment Rights Lands
Identify how the acts or INDICATOR: INDICATOR: INDICATOR: INDICATOR: omissions of third parties or structural dysfunctions impact Explain how acts or omissions Explain how acts or omissions Explain how acts of omissions Explain how acts of omission of on the State’s ability to fulfil of third parties or structural of third parties or structural of third parties or structural third parties or structural the right. dysfunctions hinder the state dysfunctions hinder the state dysfunctions hinder the state dysfunctions hinder the state from protecting the right of IPs from protecting the right of IPs from protecting the rights of IPs from protecting the rights of INDICATOR: to own and possess their to govern their own affairs to receive sufficient support to IPS to receive sufficient support respective ADs within their respective ADs and full implement their ADSDPP to enjoy the cultural protection Understand the Explain how acts or omissions to be fully represented in LGUs and provide fully for their & conservation facilities/ State’s constraints of third parties or structural and RDCs that covers and/or socio, economic, cultural mechanisms they require
dysfunctions hinder the state adjacent to their ADs or where development needs HR Norms: from protecting the rights of IPMRs are required to be
IPs to own & possess their represented Obligation to respect respective ADs, to govern and protect rights their own affairs within their against abuse by third respective ADs, to be fully parties represented in LGUs and Extraterritorial RDCs that covers and/or obligations of other adjacent to their ADs or where States to respect, IPMRs are required to be protect and fulfil represented, to receive ESCR sufficient support to full
implement their ADSDPP and provide fully for their socio, economic, cultural development needs AND to receive sufficient support to enjoy the cultural protection & conservation facilities/ mechanisms they require
97 Elements & Human Assessment Techniques & IPRAs 4 Bundles of IP Rights & Specific Indicators Rights Norms Main Indicators
Right to Ancestral Domain and Right to Self-Governance & Social Justice and Human Right to Ancestral Domain and Lands``` Empowerment Rights Lands
Draw together findings from INDICATOR: INDICATOR: INDICATOR: INDICATOR: previous steps, in light of the above elements. % of all ADs owned and in the % of all ADs with self % of all AD with ADSDPP % of all ADs where their possession of IPs governance and appropriate fully supported and all culture integrity has been INDICATOR: representation in LGUs and identified socio-economic, and protected & preserve Determine State RDCs cultural needs provided compliance Extend of fulfilment of the
state of its obligation to HR Norms: promote, protect and fulfil the
Filipino IPs rights to ancestral Obligation to fulfil domain & land, rights to self- governance & empowerment, rights to social justice & human rights and rights to cultural integrity
98 Operational Mechanisms of the IPHRO
Figure 19: IPHRO Operational Mechanism Framework
A. Establishing a Permanent IPHRO Program
The proposed IPHRO; while operationally lodge with the Commission on Human Rights as to ensure that it remains to be an independent monitoring and evaluation mechanism, will operate in collaboration with the NCIP and other key state duty bearers.
1. Key Steps in Operationalization
The IPHRO will be formally established through three (3) main steps:
First, a Memorandum of Agreement (MOA) among key National Government Agencies establishing a common system of monitoring and evaluating using a human right based approach on the fulfillment of Indigenous Peoples rights in the country will be finalized. This will be led by the CHR and NCIP and the following key state duty bearers:
1. National Economic Development Authority (NEDA) 2. Philippines Statistics Authority (PSA) 3. National Commission on Culture and the Arts (NCCA) 4. Mindanao Development Authority (MinDA) 5. Palawan Council for Sustainable Development (PCSD) 6. Regional Human Rights Commission - ARMM 7. Department of Environment and Natural Resources (DENR) 8. Department of Social Welfare & Development (DSWD) 9. Department of Education (DepEd)
99 Second, establishing two (2) main Collaborative Mechanisms to implement the provisions of the proposed MOA; namely: a) a direct IP Community - CHR monitoring platform and b) an inter-agency/ multi-sectoral IP Rrights Mmonitoring mechanism. Setting up these mechanisms will include sufficient training, orientation and building the systems of operations; particularly on monitoring and evaluation. Details of these mechanisms are described below.
Third, is the institutionalization of the three (3) program components of the IPHRO within the regular operations of the CHR. This will be subjected to an Organizational Development (OD) process to ensure smooth change management in CHR adopting this new program.
It will be operationalize based on this workplan:
Table 20: Proposed IPHRO Operationalization Work Plan Operationalization Steps Timeframe
1) Signing a Memorandum of Agreement (MOA) among key National 1st quarter 2018 Government Agencies establishing a common system of monitoring and evaluation using a human right based approach on the fulfillment of Indigenous Peoples rights led by the CHR and NCIP and involving 9 other key NGAs;
4) Establishing two (2) main Collaborative Mechanisms to implement the c) - rest of 2018 provisions of the proposed MOA; namely: a) A Direct IP Community - CHR d) - 2nd - 3rd quarter of 2018 Monitoring Platform and b) An Inter-Agency/ Multi-Sectoral IP Rights Monitoring Mechanism to include various inter agency TWGs for each of the 4 bundles of IP rights plus a TWG on the autonomy and peace processes; and
5) Institutionalization of the three (3) program components of the IPHRO 2018-2019 within the regular operations of the CHR.
2. Services, Clientele, Staffing & Organizational Requirements of the IPHRO
The three (3) program components of the IPHRO lodge with the CHR in tandem with the 2 collaborative mechanisms will provide the following key services:
Table 21: Proposed IPHRO Program Components, Services & Key Players Program Components Services Key Players
IP Rights IEC Program 6. Education Campaign on IP Rights among IP CHR (incl RHRC-ARMM) Communities NCIP NCCA 7. Orientation on IP Rights to LGUs and Business Associations NGAs DepEd
8. IP Rights and IP Culture Conscientization Campaign in Schools
9. IP Rights Orientation Among Private Sector (companies operating in Ancestral Domains)
10. IP Rights Mass and Social Media Campaign
100 IP Rights Capacity 3. Trainings on IP Rights to IPs, IPOs and CHR (incl RHRC-ARMM) Building Program IPMRs NCIP NGOs 4. Trainings on IP Rights to NGA IP Desks IPOs and Programs/Projects
IP Rights Knowledge Online Database Management System on IP CHR Management & Rights Monitoring NCIP Protection Program NEDA Annual IP Rights Monitoring & Report IP and NGA representatives to the IP Rights National Inquiry (2 x every term of various TWGs, Task Forces and government) Consultative Forum
Regular convening of the Direct IP Community-CHR Monitoring Platforms at the regional level ( every 6 months)
5. Regular convening of the various TWGs of the Inter-Agency Collaborative Mechanism on IP Rights Monitoring (at least every quarter or when the need arises)
TWG on AD & Land, TWG on Self-Governance & Empowerment TWG on Social Justice & Human Rights TWG on Cultural Integrity TWG on Autonomy and Peace Talks
6. Regular convening of the CHR-NCIP- DBM-COA Task Force on IP Rights Fiscal Monitoring (at least once a year)
7. Regular convening of the BHR Task Force on IP Rights Monitoring (Inter-Agency, Multi-Sectoral National Body) complemented with an IP (IPMR Leagues, IPOs) – CHR – NCIP – Business – CSO Consultative Forum at the Regional and National Levels on IP Rights and BHR ( at least once a year)
While the final staffing may be guided by the result of the OD review, it is likely that given the above level of programming and expected services that the following staffing may be necessary:
Table 22: Matrix of Roles of Staffing Requirements for the IPHRO Position Tasks and Responsibilities Coordinator ⚫ Acts as overall Program Coordinator for IPHRO ⚫ Coordinates directly with the Directorate, CEB and Focal Commissioner on matters re: IPHRO operations
Focal person on IEC ⚫ In charge of implementation of all IEC-related services ⚫ Coordinates with appropriate offices in CHR and NCIP on IEC concerns ⚫ Takes change or media & communications relations
101 Focal person on Capacity ⚫ In charge of implementation of all Capacity-Building services Building ⚫ Coordinates with appropriate offices in CHR and NCIP on Capacity Building concerns ⚫ Works with the HRD to develop and implement staff development for CHR on IPHRO Focal person on Knowledge ⚫ In charge of implementation of all KM and Protection services Management & Protection referrals Services ⚫ Coordinates all collaborative mechanisms of the IPHRO ⚫ Provindes Policy Research and Advocacy Support to IPHRO Database Management Specialist ⚫ Develop and manages the database including its online system and integration with MIS and other similar systems with CHR and NCIP ⚫ Maintains and develop the M&E system of the IPHRO Administrative Support ⚫ Provides all administrative support for IPHRO
3. Funding and Sustainability
It would be inevitable for the CHR and the NCIP to incorporate the cost of regularly sustaining IPHRO as part of its regular operations the various program components . This will be complemented with accessing external donors or special projects within the GAA for support projects, especially at the initial stages of setting up the systems and programs of the IPHRO. This will include the NCIP’s PIPE Project and the CHR’s Go Just Project
A voluntary fund & other support mechanism for any interested party with no vested interests on IP-related concerns may also be considered to allow for the general public to pitch in to provide financial, technical and voluntary support. This may be developed in collaboration with key NGOs and IPOs.
4. Information & Knowledge Management
A central IPHRO Database Management System will be set-up and maintained at the CHR. Efforts will be made to ensure complementation of this system with that of the NCIP’s own database monitoring system.
This system will be accessible online with various degrees of access depending on the nature of the information. This will incorporate an internet-based online public platform to share information and receive feedback; including case reporting.
Through the various regular processes of the proposed collaborative mechanisms for the IPHRO a systematic collection of data and feedbacking of processed information generated by the IPHRO O.PE.R.A.-based M&E system, direct access by the concern IP communities through their representatives (IPOs, IPMRs, IPs) in these processes will be ensured.
An internal system for the CHR linking this online database with its own Information Management System (IPS) for IPHRO; including our existing database monitoring system for status human rights violation cases filed and manage by the CHR will also be developed for monitoring operational effectiveness and efficiency. The system should be accessible both at the national and regional offices of the CHR
As CHR has the mandate to report human rights situation to various international human rights bodies, part of this knowledge management system is the generation of reports using data and analysis generated from the IPHRO to these international human rights mechanisms. These reports will regularly be shared with the other concern state duty bearers and IP rights
102 holders for purposes of transparency and accountability.
B. Regular National IP Rights Inquiry
The 2017 National IP Rights Inquiry has gathered preliminary information and data enough to start an initial database for the regular monitoring and evaluation work of the IPHRO. However, the regular conduct of succeeding National IP Rights Inquiry processes will be made integral to the regular functioning of the IPHRO. To be determined later is the frequency of the conduct of this inquiry but it must at least be done twice in the period of six (6) years following the term of every government elected and the timeline of every national mid-term development plan or the Philippine Development Plan.
The convening of the regular National IP Rights Inquiry may also be done back-to-back with appropriate capacity building interventions as earlier identified in the gap assessment on capacity building needs.
C. Collaborative Mechanisms for the IPHRO Operationalization
Two collaborative mechanisms are proposed to full operationalize the IPHRO. There are:
1. Direct IP Community - CHR IP Rights Monitoring Platform
Prominent during the discussions of the inquiry was the offer of IP leaders to have a direct mechanism between their IP community and the CHR that will establish a secure mechanism for gathering information and feedback on human rights situation and human rights violations of IPs at the community level as well as providing a direct link between these information and feedback system to direct referrals to various IP rights protection services that can follow through.
2. Inter-Agency/ Multi-Sectoral IP Rights Monitoring Mechanism
As identified in the gap analysis of the current responses of state duty bearers under the item of monitoring and evaluation system, it is recommended that the IPHRO maintains three (3) Inter-Agency/Multi-Sectoral coordination and collaborative mechanisms and where applicable, the necessary sub-groups. These are:
1. Proposed Inter-Agency / Multi-Sectoral TWGs Monitoring Key Thematic Areas of the 4 Bundles of IP Rights 1.1. TWG on AD & Land, 1.2. TWG on Self-Governance & Empowerment 1.3. TWG on Social Justice & Human Rights 1.4. TWG on Cultural Integrity 1.5. TWG on Autonomy and Peace Talks
2. Proposed CHR-NCIP-DBM-COA Task Force on IP Rights Fiscal Monitoring
3. Proposed BHR Task Force on IP Rights Monitoring (Inter-Agency, Multi-Sectoral National Body) complemented with an IP (IPMR Leagues, IPOs) – CHR – NCIP – Business – CSO Consultative Forum at the Regional and National Levels on IP Rights and BHR
103 D. IPHRO Information Flow
As for the information flow within the IPHRO, Figure 20 shows how this might happen.
The regular IP National Inquiry process consisting of public hearings, workshop and event community visits/investigation is the regular starting point of the information flow. From here, Human Rights Situation Report of Filipino IPs will be developed evolving from its current baseline of national level information to what that would eventually encompass per tribe, per domain and per issue.
Regular reporting of state duty bearers (LGUs and NGAs) will be a another source on a very regular basis. This regular feedback mechanism will continue to get assessment from all stakeholders, primarily IP leaders on the operations and programming of the IPHRO for continues improvement Information generated for CHR will be used for: a) Case Monitoring and Investigation – both for new and old cases, b) Promotion – Information, Education and Communication (IECs), c) developing proposed policies through specific policy advisories. It will also be used to guide the convening of Inter Agency Technical Working groups to respond to thematic/recurring issues and issuance of CHR letters to relevant agencies per issues raised calling on them to fulfill their individual obligations, as identified.
104 Figure 20: IPHRO Information Flow
105 Next Steps on the Development & Operationalization of the IPHRO in CHR
The development of the identified operative elements of an IPHRO that will be integrated in the regular operation of CHR will be pursued as next steps. Reflecting from various elements identified in the IP National Inquiry, the following operational systems and their relevant tools will be developed
A. Organizational Development (O.D.) on the IPHRO in CHR
An Organizational Development (O.D.) assessment including a systems review of CHR operations leading to an O.D. plan that once fully implemented will ensure proper change management in developing IPHRO as a new program and its implication to current operational systems, policies, structures and staffing will be conducted
It is a systematic and planned change or restructuring that will likely affect all levels of the organization. It is typically used to manage change in an organization, especially when a new program is introduced that will change many aspects of its regular operations. An OD Assessment is a preliminary process for OD interventions to determine which part of the current operations of the organization; including its guidelies/procedures/rules, structures/mechanisms and systems needs to be subjected to the desired change as the new program is integrated. It this case, the OD Assessment for the CHR IP Rights Observatory will be done through a targeted survey among key personel & other stakeholders The IP Rights Observatory proposed for the CHR is an innovation that will allow this national human rights institute to be able to systematically and effectively perform its mandate to promote, protect and & recommend policies to ensure the human rights of all indigenous Filipinos. While in the past, CHR has investigated; and to some extent, resolve some HR violations against IPs, it has yet to do this optimally and systematically. This introduction of a new program that will affect a substantial part of the regular operations of CHR must be manage through an OD process. Thus, the need for this OD assessment. This proposed OD assessment process will follow this conceptual framework:
Figure 21: Conceptual Framework for the OD Assessment of IPHRO
Key External ORGANIZATIONAL
CONCEPTUAL Personnel Stakeholders DOMAINS OF CHR
FRAMEWORK ⚫ Mission & Vision ⚫ Leadership & Governance OF AN ⚫ Strategic & Operations Planning IP RIGHTS and Management Systems OBSERVATORY O.D. Assessment Survey ⚫ Management of People MECHANISM using OD Assessment Tool ⚫ Linkages, Networking & Communications ⚫ Research & Information IN CHR Management ⚫ Financial Management & Resource Mobilization
ORGANIZATIONAL DEVELOPMENT ASSESSMENT OF THE IP RIGHTS OBSERVATORY IN CHR
106 The operative elements of the IPHRO will be communicated to the respondents of the OD Assessment before they respond to the survey. The respondents will then be asked to look into the 7 organizational domains covering the current regular functions of the CHR and try to assess to what extent this will be affected by the change management that will occur as the IP Rights Observatory mechanism is integrated into the CHR work. The results of the study both assess the OD level of CHR in each of its 7 organizational domains to integrate the IP Rights Observatory by way of an index and it will also identify the areas of OD interventions that will be necessary afterwards.The OD rating for IP Rights Observatory that will be established can be used for regular monitoring nd evaluation of the implementation of the OD plan.
Another aspect of the OD assessment is the operational systems review of CHR to manage IPHRO integration in existing programs and services.
A systems review as applied in organizational development (or change management) looks into the way the regular operations of an organization functions and proposes changes and innovations to facilitate the introduction of new programs, projects and mechanisms. In this case, the new mechanism being introduce to the Commission on Human Rights (CHR) is the proposed Indigenous Peoples (IP) Rights Observatory. In doing a quick systems review of the relevant CHR operational mechanisms, the Omnibus Rules of Procedures of the CHR adopted on April 2012 was the subject of the review.
Reviewing the above relevant rules of the Omnibus Rules of Procedures reveals that the CHR currently has two distinct but complementary main systems to perform its power and mandate to investigate and monitor on one hand, Civil and Political Rights (CPR) and on the other Economic, Social and Cultural Rights (ESCR).
Sub-systems to these are special considerations that require additional protocols and standards for dealing with human rights cases involving women and children. Cross cutting also both systems and sub-system are the special procedures for such processes and mechanisms as the public inquiry, fact finding missions, quick response operations, the use of conciliation & mediation, use of forensics science in aid of investigation, immediate course of actions (protection remedies, witness protection w/ immunity, legal assistance & counseling) & issuance of CHR clearances to ensure integrity of the results of the system.
Within the context of these systems and sub-systems of the regular operations of the CHR, it may be feasible to integrate the IP Rights Observatory sub-system as an additional cross- cutting system in tandem with the public inquiry, fact finding mission and quick response action. Likewise, similar to how the sub-system of special protocols on how to investigate properly human rights cases against women and children, it may also be feasible to incorporate special protocols for handling IP related cases across the various processes in investigating and monitoring human rights violations in both the civil, political rights (CPR) area as well as the economic, social and cultural rights (ESCR) area as well.
107 24-48 hrs Alternative dispute resolution (conciliation, Initial mediation) Investigation Case resolved RD or Dialogue/ Immediate Course of Actions amicably CeB If YES Preliminary Protection Remedies (* w/ limits) decides Conference of all parties incl duty jurisdiction holders Forensic Investigation Proper (starts w/in 15 days after complaint science in aid to investigation For CPR w/ 3 days notice and as recommended by the If NO preliminary investigation) where Cases Endorse to NGA Process issued to parties. necessary Affidavits submitted or other entity w jurisdiction Counter affidavit w/in 3-10dys Conduct of hearing/ review of Special Protocols for Special Protocols Special Protocols for affidavits, counter affidavits Scope of CHR Power to Investigate & handling HR cases of for handling HR handling HR cases of Jurisdiction Monitor Investigation Reports 10 days women cases of IPs children after termination of investigation
Civil, Political Rights Conduct of Public Inquiry, Quick Response Action, If NO Archived w/out Investigation Fact-Finding Mission reports 10 dys prejudice to re- ESCR especially of the > upon after opening. marginalized complaint terminations of Mandatory > motu propio investigation revisiting IP RIGHTS OBSERVATORY Monitor GRPs If YES compliance w HR Special Protocols for Special Protocols Special Protocols for treaties and instruments handling HR cases of for handling HR handling HR cases Final Evaluation & Summary women cases of IPs of children Preparation of Resolution dismissal after 3 years with within 15 days after submission of exceptions Investigation Reports. Motion for reconsideration within 14 days For ESCR Cases Case Investigation & FINDINGS of Dismissed Monitoring Reports Human Rights Institutional If YES Violations If NO Actions by CHR
Figure 22: IPHRO Systems Review of CHR Investigation Endorsement for filing Endorsement for appropriate Grant of reparations CHR Clearance appropriate legal cases policy measures may be issued. With excemptions
108 B. Capacity Building for the IPHRO in CHR
Reflecting from the Capacity Building Gaps identified an assessment of the capacity building needs of CHR for an IP Rights Observatory will be conducted. This assessment will be conducted through a FGD – Focus Group Discussions of a representation of all major stakeholders as well as sampling of various related offices in the CHR that will eventually be involve in the IP Rights Observatory mechanism. A Guided survey questionnaire will be developed as a tool for this assessment.
A KSA (Knowledge, Skills and Attitude) Learning Objectives matrix will then be prepared covering the programmatic elements of the proposed IPHRO, as follows:
Table 23: CHR KSA Learning Objective Matrix for IPHRO Operative Elements Capacity Building Learning Objectives of an IP Rights Needs Knowledge Skills Attitudes Observatory Mechanism A Regular M&E and Knowledge Management System A Capacity Building on IP Rights M&E System An Information, Education & Communications System
After which, specific Capacity Building interventions tailor fitted to various unit of the CHR operations will be designed; following this matrix:
Table 24: CHR Coverage of IPHRO Capacity Building Intervention per Unit CHR Offices COVERAGE of Capacity Building Interventions
Commission En Banc Office of the Director General Administration Finance Strategic Communications Promotions Office Protections Office Policy Office HR Centers Field Operations Regional Offices
C. Strategic Communications for the IPHRO in CHR
Reflecting from the IEC Gaps identified an assessment of the communication needs of CHR for an IP
109 Rights Observatory will be conducted. This assessment will be conducted through a FGD – Focus Group Discussions of a representation of all major stakeholders as well as sampling of various related offices in the CHR that will eventually be involve in the IP Rights Observatory mechanism. A Guided survey questionnaire will be developed as a tool for this assessment.
A IEC (Information, Education & Communication) Plan matrix will then be prepared covering the programmatic elements of the proposed IPHRO, as follows:
Table 25: CHR IPHRO IEC Plan Matrix Operative Communication TARGET KEY DATA COMMUNICATION FREQUENCY Elements Needs Based on AUDIENCE MESSAGING SOURCES METHODS IEC Gaps A Regular M&E and Knowledge Management System A Capacity Building on IP Rights M&E System An Information, Education & Communicatio ns System
This matrix will then become the basis for formulating a strategic communications plan for IPHRO to be manage for implementation by CHR.
D. Knowledge Management System for the IPHRO in CHR
An IPHRO Knowledge Management system consisting of a results-based monitoring & evaluation (M&E) mechanism with workable indicator systems and tools based on the O.PE.R.A. (Outcomes, Policy Efforts, Resources, Assessment) framework of ESCR (Economic, Social, Cultural Rights) monitoring together with a database management system accessible publicly online will be developed. The proposed key IP Rights Indicators will be utilized for this system
110 REFERENCES:
1. Defending Dignity: A Manual for National Human Rights Institutions on Monitoring Economic, Social and Cultural Rights. APF. 2015
2. Human Rights Based Approach (HRBA) to Development Planning Toolkit. NEDA & UNDP. 2012
3. Human Rights Based Approach to Public Finance in the Philippines. CHR and NEDA. 2013
4. 2017 Consolidated Report on the Situation of Human Rights of Filipino Indigenous Peoples’. Commission on Human Rights (CHR). DRAFT
5. Concept Paper of the Indigenous Peoples’ Rights Observatory (IPRO). Commission on Human Rights. 2017. DRAFT
6. Comparative Analysis on the ILO Indigenous and Tribal Peoples Convention No. 169, UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the Indigenous Peoples' Rights Act (IPRA) 2012. ILO. Sedfrey Candelaria
111