Recognition of Indigenous Peoples’ rights in the Philippines

The Philippines’ cultural diversity is recognised by the 1987 Constitution with at least six provisions ensuring the rights of Indigenous peoples. Further, the declaration of the Indigenous Peoples Rights Act expressly guarantees the rights of Indigenous Peoples to their ancestral domains through five bundles of rights: (1) right to ancestral domains; (2) right to cultural integrity; (3) right to self-governance and empowerment; (4) right to social justice and human rights; and (5) right to enter into and execute peace agreements.

Under the Indigenous Peoples Rights Act, two titles can be issued: Certificate of Ancestral Domain Title (CADT), which typically covers the entire ancestral domain and can span across multiple communities; and Certificate of Ancestral Land Title, which usually covers lands owned by certain clans and is therefore smaller than a CADT. The process to secure a CADT by evidence of a native title is relatively complicated, tedious, and has become a ministerial burden to the extent that it otherwise counters the intention of the law which is to protect the rights of the Indigenous communities.

State recognition of Native Title resulting in a Certificate of Ancestral Domain Title (CADT) begins when a concerned Indigenous community solicits an application process with the National Commission on Indigenous Peoples. The process of formal recognition of an ancestral domain includes self-delineation, sworn statement of elders as to the scope of traditional territories, written accounts on customs and traditions, political structure and institution, pictures showing long-term occupation such as those of old improvements, burial grounds, sacred places and old villages, historical accounts, plant survey and sketch maps, anthropological data, genealogical surveys, descriptive histories of traditional communal forests and hunting grounds, landmarks such as mountains, rivers, creeks, ridges and hills, and write-ups of names and places derived from the native dialect of the applicant community. When perimeter maps are complete with technical descriptions, these are published in a newspaper of general circulation once a week for two consecutive weeks to allow other claimants to file opposition within 15 days from date of publication. Once certified by the Chairperson of the National Commission on Indigenous Peoples, the secretaries of the Department of Agrarian Reform, Department of Environment and Natural Resources, Department of Interior and Local Government, and Department of Justice, the Commissioner of the National Development Corporation and any other agency claiming jurisdiction over the area shall be notified. This notification terminates any legal basis for the jurisdiction previously claimed by the aforementioned agecneis. The CADT is then issued in the name of the community concerned.

Biodiversity and protected areas in the Philippines

The country’s biodiversity is spread out in 15 biogeographic zones and 228 Key Biodiversity Areas (KBAs). Since 2018, 240 protected areas have been established, covering 5.45 million hectares or 14.2% of the country’s territory. Of this total number, 94 have been legislated under the Expanded National Integrated Protected Area Systems Act of 2018 and 13 under the previous National Integrated Protected Area System Act of 1992 for a total of 107 legislated Protected Areas. Of the total protected area coverage, 4.7 million hectares are terrestrial while 1.38 million hectares are marine areas. Protected areas form the main government strategy in biodiversity conservation but have historically suffered constraints, ranging from lack of representation of communities, policy conflict, and lack of funding.

Huge gaps in protected area coverage include large tracts of high conservation value areas found outside of Protected Area boundaries, while the more disturbed and low biodiversity value areas are within Protected Areas. This points to a “lack of consideration for other effective governance system in areas of high conservation value.” For instance, the country’s remaining forests coincide with ancestral domains, suggesting that traditional governance systems of Indigenous Peoples are the reason for their effective conservation. 

Overlaps between ancestral domains, key biodiversity areas and Protected Areas

The overlap of ancestral domains and Protected Areas is 1,440,000 hectares, while the overlap between KBAs and ancestral domains with CADTs is 1,345,198 hectares (96 CADTs out of 128 KBAs). This means 29 per cent of KBAs requiring protection fall within territories occupied by Indigenous Peoples, thereby confirming the inherent inter-dependency of nature conservation with the recognition and respect for the traditional governance systems of Indigenous Peoples. Furthermore, spatial analysis shows that in KBAs not covered by Protected Areas, Indigenous community conservation serves as a de facto governance regime, contributing significantly to the protection of forest cover despite absence of a declared protected area. About 75 percent of areas with forest cover are within ancestral domains.

The large extent of high value conservation lands found outside Protected Areas and the stewardship stalemate between ancestral domains and the former necessitates diversifying recognition of different governance systems to include Indigenous Peoples’ Community Conserved Territories and Areas (ICCAs) to ensure effective protection of these areas. ICCAs coincide with areas of greatest surviving endemism, a finding that was confirmed with evidence from sixteen sites covering a total area of 349,422 hectares. These were mapped, inventoried, documented and declared from 2011-2014 under two projects funded by the Global Environment Facility: (1) the New Conservation Areas in the Philippines Project implemented from 2011-2014, and (2) the Philippine Indigenous Peoples Community Conserved Territories and Areas Project implemented from  2016-2019. Both projects included the identification and mapping of ICCAs utilising traditional knowledge and science, documentation of Indigenous knowledge systems and practices, inventory of resources to determine the state of health of forests, and utilising the findings in the formulation of Community Conservation Plans. Besides leading the Asian region as an example of the national process required for inclusive conservation and positive outcomes, the 2016-2019 project is a recipient of the Development Aid of the Year Award 2019.Biodiversity at the Mission: PHL Envoys & Expats Recognition Awards last April 4, 2019.

An assessment of 10 ICCAs involved in this project (Figure 2), completed by the World Resources Institute using the custom analysis tool LandMark Platform, found that they store 10.5 million tons of carbon, equivalent to gas emissions of at least 7 million cars per annum. The resulting data on the carbon storage capacity of these ICCAs clearly shows the critical role they play in mitigating the impacts of climate breakdown, not only in the Philippines but also in the broader Asian region.

National and international legal context

As noted above, Indigenous Peoples’ rights are recognised in the 1987 Philippines Constitution and 1997 Indigenous Peoples Rights Act. Under the latter, currently, 221 CADTs have been issued, benefitting 1,206,026 Indigenous Peoples and covering a total area of 5,413,772 hectares of ancestral lands and waters, equivalent to 16 per cent of the total land area of the Philippines. This does not include areas without CADT or areas under claims of Native Title that, when combined, are estimated to be 7-8 million hectares, or a quarter of the territory of the country.

The Expanded National Integrated Protected Area System Act of 2018 as amended secures the perpetual existence of all native plants and animals. Wildlife and KBAs are found mostly in ancestral domains. Thus, Section 13 of the 2018 Act expressly guarantees respect for Indigenous Peoples’ rights to self-governance.

The Wildlife Resources Conservation and Protection Act of 2001 (RA 9147) provides for the conservation, preservation and protection of wildlife species and their habitats. While the Act recognises the rights of Indigenous Peoples in the collection of wildlife for traditional use, it imposes control and regulation of wild animal hunting, wild foods gathering and trade. 

An ICCA Bill is currently in legislation and is moving fast in Congress. The core features of the bill is the institution of a National ICCA Registry and establishing legal protections imposing sanctions for violations against ICCAs. It also aims to clarify provisions in the Indigenous Peoples’ Rights Act and the Expanded National Integrated Protected Areas System Act in terms of recognizing the contribution of Indigenous Cultural Communities in biodiversity conservation. This will provide a system that would institutionalize ICCAs at par with the latter legislation resulting in respect and recognition of traditional governance and the practices of long-held Indigenous knowledge, systems, and practices.

The Philippine ICCA Consortium or the Bukluran ng mga Katutubo Para sa Pangangalaga ng Kalikasan ng Pilipinas was formally established in 2013 to stand as a representation of the ICCAs in the country. It aims to promote the appropriate recognition of and support to ICCAs in the Philippines and has grown its network through the years by partnering with programs advocating for the environment and upholding the rights of their protectors. The consortium actively participates in calls against the Kaliwa Dam and other mega projects detrimental to the environment, as well as against criminalization of Indigenous Peoples’ rights, among others.

The Philippine government is signatory to the UN Declaration on the Rights of Indigenous Peoples (2007) and party to the UN Framework Convention on Climate Change (1992) and Paris Agreement (2015), the UN Convention on Biological Diversity (1992), the International Covenant on Economic, Social and Cultural Rights (1976) and the International Covenant on Civil and Political Rights (1976), among others.

Challenges

Policy and legal conflicts

Many of the sacred sanctuaries and forests collectively managed by Indigenous Peoples overlap with “core zones” or “strict protection zones” of Protected Areas where state law declares no activities should take place. These are the same areas most important to Indigenous Peoples as they sustain culture and livelihoods. It is in these areas that conflicts between nation-state and customary laws have historically emerged. These conflicts are exacerbated by implementation rules where ancestral domains without CADTs that share common areas with Protected Areas will not be recognised according to the Implementing Rules and Regulations of the Expanded National Integrated Protected Areas System Act of 2018. Challenges will persist as Indigenous Peoples’ rights to exercise traditional governance over their territories will be disenfranchised. These rules could be used by the state government to displace Indigenous communities from their territories or to criminalise their traditional access to and use of resources within their territories which are overlapping with the Protected Areas. For example, the Manobos’ rescue of a Philippine Eagle was not commended but instead accused of illegal hunting of wildlife. The Manobos consider the Philippine Eagle as a key stakeholder and guardian, hence, the need to protect and conserve its habitat in return. 

Similarly, the Wildlife Act could prevent intruder migrants from wildlife collection and trading for purely profiteering purposes. However, for Indigenous Peoples, the collection of herbal plants, wild honeybees and hunting wild boar is important for sustaining health and livelihood and has been a part of a culture-based resource management system perpetuating sanctuaries for wildlife in the first place. Policies acknowledging this relationship would help ensure protection of species and ecosystems.

More broadly, there are also conflicts between governmental agencies responsible environmental matters and those responsible for economic growth and extractive industries such as mining, with the latter generally trumping the former. Inconsistencies between agencies working on ground not only confuse key stakeholders but more importantly put protection and conservation of the environment in jeopardy. The implementation of policies and legislations contrary to existing laws have emphasized the vulnerability of ICCAs and continuously threaten the Indigenous People whose life is intertwined with the protection of his cradled land.  

Human rights violations

The violation of human rights occurs often in the form of development aggression, including large-scale mining operations and dam projects, and encroachment of migrants who stake claims or possession over lands within traditional territories. In the context of the COVID-19 pandemic and restriction rules, violations of Indigenous Peoples’ right to provide or withhold free, prior, and informed consent have become rampant. Before the pandemic, 126 incidents of forcible entry into ancestral domains by businesses without free, prior and informed consent have been documented; 78 percent of these incidents occurred in the island of Mindanao. As the rush for land and natural resources scales up, asserting Indigenous Peoples’ rights has led to criminalisation of these rights and the weaponization of law. As of August 2019, 86 Indigenous Persons have fallen victim to extrajudicial killings.

On 30 December 2020, nine Tumandok Indigenous leaders were killed and 16 arrested. More recently, on 7 March 2021, a day of infamy dubbed the “bloody Sunday massacre,” two Indigenous Dumagats of Rizal, Tanay were killed together with seven activists. This was immediately condemned by the UN Office of the High Commissioner for Human Rights.

Recommendations and conclusions

There is a critical need for support of the Philippine ICCA Consortium’s efforts in expanding and mainstreaming community mapping, resource inventory and documentation and implementation of Indigenous knowledge, systems, and practices to address tropical deforestation and impacts of climate breakdown. This can be done through expansion and capacity to develop and implement Community Conservation Plans, priority livelihood projects and establishment of appropriate financing mechanisms (in some cases, for example, Payment for Ecosystem Services).