Defending

indigenous land rights in

the Philippines: human rights
perspec6ves on dichotomy, iden6ty
and consent
Marc Titus D. Cebreros
LLM Human Rights
Queen Mary University of London

Outline
Contextlegal,
historical, social
Stories of conict
and resistance
Dichotomy
Consent
IdenFty

Prospects for
indigenous peoples
rights

Arming that
indigenous peoples
are equal to all other
peoples, while
recognizing the right
of all peoples to be
dierent, to consider
themselves dierent,
and to be respected as
such

- Preamble, UNDRIP

Social, legal and historical context

Indigeneity as context rather than [legal]
abstracFon (Anaya)
complex of chronological, relaFonal, subjecFve
and normaFve factors (Imai and Gunn)
idealized as special connecFon to land

Social, legal and historical context

Factor

Examples

Chronological

Pre-Hispanic communiFes
Spanish reduccion and land Ftling (Maura Law) policy
American reservaFon policy (s. 2145, AdministraFve Code 1917)

RelaFonal

uplanders / mountain tribes / pacied tribes

non-ChrisFan as degree of civilizaFon (Rubi v. Provincial Board,
1919)
Ethno-linguisFc groups

SubjecFve

PANAMIN and the discovery of stone age Tasaday (1971)

Northern and southern cultural communiFes
Katutubo or the concept of indigeneity

NormaFve

NaFve Ftle (Carino v. Insular Government, 1909) cf. jura regalia

(Regalian Doctrine)
ConsFtuFonal recogniFon
Indigenous Peoples Rights Act 1997
Mining Act, EIA System Decree & RegulaFons, Local Government
Code

Dichotomies
State

MNEs

Indigenous Peoples

Status under
internaFonal
law

Sovereign, direct subject Non-sovereign, towards Non-sovereign, indirect

becoming direct
object
subjects (privaFzaFon of
sovereign funcFons

Land rights
under
consFtuFonal
law

Sovereign ownership
(public domain)

Contractual possessor
(public domain, private
lands)

Private ownership
(ancestral domains and
lands)

Sub-surface
rights in
domesFc law

Sovereign ownership
(minerals and other
natural resources)

Service contracts (with

safeguards) for largescale exploraFon,
development and
uFlizaFon projects

Priority rights,
Free, prior and informed
consent (FPIC)
procedure

Regulatory
relaFonship with
local
governments

PresidenFal
supervision /
subordinate legislaFve
power / judicial review

Subject to local
consultaFon,
endorsement and
approval

ParFcipaFon and
representaFon rights,
VerFcal integraFon of
development plans

Tampakan Mining Project

Sites of conict

LiFgated consFtuFonality of FTAA

Campaigned against EIA
Denounced NCIP biases
Protested militarizaFon and hamlet policy
Complaint led with NHRI
Resorted to UN mechanisms

Local government

Supported environmental code

Project proponent

Ranges from collaboraFon to passive to acFve/

armed resistance

Civil society

Partnered with R.C.C., local and naFonal NGOs,

internaFonal solidarity network

Internal

Strengthening of indigenous poliFcal and

governance structure
Human rights-based approach capacity building
Conict resoluFon strategies

NaFonal government

Indigenous peoples responses

Supreme Court

Department of Environment and Natural Resources

NaFonal Commission on Indigenous Peoples

Security sector

Provincial government of Cotabato

Aected municipaliFes

Pro-mining
AnF-mining
Fence-sieers

Tampakan Mining Project

Consent
State
Nature of
consent
obligaFon under
internaFonal
law

Indigenous Peoples

Limited recogniFon, merely procedural

(akin to but less than consent/veto)

Nature of
consent under
domesFc law

Vague:
Const. not a veto
Regulatory a
bureaucraFc
requirement
(potenFal veto)

Limited
understanding of
nature of FPIC
Consent always
given
QuesFonable quality
of processes

Scope of
consent
requirement

Land (entry, possession, exploraFon, development

etc.) but not sub-surface minerals and other
natural resources

Validity of
consent given

Irrevocable once given, but required at every stage

in the project life cycle

APECO Project
Aurora Special Economic Zone Act (2007) and
amendatory law (2010) passed without FPIC
of aected Dumagat communiFes

States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representaFve insFtuFons in order to obtain their
free, prior and informed consent before adopFng and implemenFng legislaFve or
administraFve measures that may aect them. - ArFcle 19, UNDRIP

APECO Project

IdenFty
Interna6onal Law
Indigenous peoples and individuals have
the right to belong to an indigenous
community or naFon, in accordance with
the tradiFons and customs of the
community or naFon concerned.
ArFcle 9, IPRA

Na6onal Law
a group of people or homogenous socieFes
idenFed by self-ascripFon and ascripFon by others,
who have conFnuously lived as organized community
on communally bounded and dened territory, and
who have, under claims of ownership since Fme
immemorial, occupied, possessed and uFlized such
territories, sharing common bonds of language,
customs, tradiFons and other disFncFve cultural
traits, or who have, through resistance to poliFcal,
social and cultural inroads of colonizaFon, nonindigenous religions and cultures, became historically
dierenFated from the majority of Filipinos. ICCs/IPs
shall likewise include peoples who are regarded as
indigenous on account of their descent from the
populaFons which inhabited the country, at the Fme
of conquest or colonizaFon, or at the Fme 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
poliFcal insFtuFons, but who may have been
displaced from their tradiFonal domains or who may
have reseeled outside their ancestral domains;
- SecFon 3(h), IPRA

Oceana Gold Project

In 2008, Australian-led mining company,
Oceana Gold Philippines Inc., forcibly and
violently evicted, with police assistance,
thousands of Ifugao who have seeled within
the FTAA area in the 1950s aoer eeing their
former homeland which had been submerged
by the Ambuklao Dam project.

Oceana Gold Project

FTAA grants unto its holder the States blessings to undertake

mining and other extracFve venturesit is not a carte blanche for
the wholesale denigraFon of the rights of people who stand to be
aected by said undertakings.

- In Re: Displacement of Residents of Kasibu Nueva Viscaya, CHR H-2008-0055

Quo vadis?
Uneven and ooen deadly playing eld
between MNEs and indigenous communiFes.
Free, prior and informed consent inherently
vague and malleable.
Indigenous idenFty: blood or experience?

 If, in a tacit way, it was assumed that the

wild tribes of the Philippines were to be
dealt with as the power and inclinaFon of
the conqueror might dictate, Congress has
not yet sancFoned the same course as the
proper one for the benet of the
inhabitants thereof.

- JusFce Oliver Wendell Holmes, Jr.,
Carino vs. Insular Government
mtcebreros@gmail.com / 07401601874

THANK YOU.