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Dr Ron May
In July 1997 the Philippines Congress enacted legislation 'to recognize, protect and promote the rights of Indigenous Cultural Communities/Indigenous Peoples (ICC/IP)'. Apart from provisions guaranteeing social justice and human rights, recognizing and protecting cultural integrity, and recognizing 'the inherent right of ICCs/IPs to self-governance and self-determination', the Indigenous Peoples Rights Act (RA 8371), contained important provisions concerning ancestral domain and ancestral lands.
Ancestral domain, briefly, is defined by the Act as all areas generally belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs, communally or individually since time immemorial, and which are necessary to ensure their economic, social and cultural welfare; it includes 'lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to [sic] for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators', and it specifically includes 'minerals and other natural resources' within ancestral domains. Ancestral lands are defined more narrowly as, in brief, 'land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial'.
Recognition of the rights of indigenous cultural communities was not new. Their rights ('within the framework of national unity and development'), and specifically 'the rights of indigenous cultural communities to their ancestral lands', were specifically acknowledged in the 1986, post-Marcos, constitution, and an Ancestral Domain Bill was introduced in Congress in 1991. Meanwhile, 'preparatory steps toward the recognition of ancestral domains' were taken by the Department of Environment and Natural Resources (DENR), which issued certificates of ancestral domain claims (CADCs) to indigenous cultural communities. By 1997, 117 CADCs had been issued, covering some 49,400 beneficiaries and 1.6 million hectares. By June 1998 the area covered had risen to 2.5 million hectares.
In a country prone to litigation, the potentially far-reaching implications of these provisions invited legal challenge. The major challenge has come from the mining industry.
In 1995 a new Mining Act sought to provide the basis for a revival of the Philippines' once lucrative mining industry, in part by encouraging foreign investment in mining, primarily through a system of Financial and Technical Assistance Agreements with mining companies. After only a few FTAAs had been issued, however, a major environmental disaster at the Marcopper mine on Marinduque, and growing protests from indigenous cultural communities about prospective mining operations in areas of ancestral domain, led to the DENR's suspending the issue of further FTAAs and revisiting the Implementing Rules and Regulations (IRR) of the Mining Act. Currently there are 85 FTAA applications outstanding; another fifty-odd have been relinquished or converted into exploration permits. Around 80 per cent of the 1.2 hectares covered by applications for mining and exploration permits are said to be in areas of ancestral domain.
In early 1997 a Philippine NGO, the Legal Rights and Natural Resources Center, petitioned the Supreme Court to declare the Mining Act of 1995 and its IRR unconstitutional. A counter-petition, filed by Australian mining company WMC (which is looking at a large copper prospect in Mindanao) and supported by the Philippines government, has asked the Court to confirm the validity of the Mining Act. In April 1998 former Supreme Court associate judge and newspaper columnist Isagani Cruz petitioned the Court to declare RA 8371 unconstitutional, on the grounds that its provisions conflict with the regalian doctrine enshrined in the 1986 constitution (under which all land not privately owned belongs to the state). Recently 112 'cultural tribes' have petitioned the Court to reject Cruz's petition, and the Philippines Commission on Human Rights has requested permission to appear in hearings.
WATCHPOINT: The threat of militant action by indigenous cultural communities against mining companies in several parts of the country may involve the Communist New Peoples Army, at least in northern Luzon.
About our company:
AFG Venture Group is an Asia and Australia based corporate advisory and consulting firm with over 20 years experience in creating alliances, relationships and transactions in Australia, South East Asia and India; including a 15 year history of corporate and equities advisory in Australia, undertaking merger, acquisition, divestment, fund raising and consulting for private and public companies.
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