28 February, 2017

Submission to the Comiittee in Economic, Social and Cultural Rights

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Committee in Economic, Social and Cultural Rights

57th Pre-Sessional Working Group

7-11 March 2016

 

Proposed List of Issues

Philippines

 

Submitted by: Tebtebba – Indigenous Peoples’ International Center for Policy Research and Education, UPAKKAT (Ugnayang Pambansa Para sa Katutubong Kaalaman at Talino) – National Network for Traditional Knowledge, AIWN (Asia Indigenous Women’s Network), and the Philippine UNDRIP Implementation Network (PhilUNDRIP Network)Background

This submission was prepared by several Philippine networks of indigenous peoples’ organizations, indigenous political structures, and support NGOs and covers the combined fifth and sixth periodic report the Philippines.

This submission presents a summary of the situation of indigenous peoples in the Philippines and a corresponding proposed list of issues on the implementation by the State Party of the International Covenant on Economic, Social and Cultural Rights in relation to indigenous peoples. The information contained herein is partially based on the data provided by indigenous peoples from all over the Philippines at the 2015 national celebration of the International Day of the World’s Indigenous Peoples where the participants formulated the State of the Indigenous Peoples Address (SIPA) 2015.

 

Proposed List of Issues

1.     Disaggregated Data– Various estimates put the population of indigenous peoples in the Philippines at 14 to 17 million or an average of around 15% of the total population. The most recent figures based on the estimated population of indigenous peoples by ethnic group, by province and by region released by the National Commission on Indigenous Peoples, estimates the population of indigenous peoples (IP) in the Philippines to be 14,184,645 in 2007.[1] These estimates show that, in 2007, indigenous peoples constituted about 16 percent of the total Philippine population of 88.5 million and were present in 65 of the country’s 78 provinces. The lack of official data on the population and demographics of indigenous peoples makes it difficult for planning and poverty-reduction agencies of the government to accurately target indigenous peoples.

Following the issuance of Concluding Observations in 2009 by the Committee on the Elimination of All Forms of Racial Discrimination (CERD), which recommended that the Philippines “use the census in 2010 to include indicators disaggregated by ethnicity and gender on the basis of voluntary self-identification”, an ethnicity variable was included in the 2010 census. Unfortunately, official data has yet to be released by the national government and, in cases where regional offices have released their disaggregated data[2], credibility of the results and enumeration methodology have been questioned. Bills have been filed with the Philippine legislature to mandate the inclusion of an ethnicity variable in the census but, unfortunately, these bills were not passed.

PROPOSED ISSUES: When is the State Party planning to release the disaggregated data (by ethnicity) from the 2010 census? What steps does the State Party intend to take to require the inclusion of an ethnicity variable in all census and ensure the credibility of the results of ethnicity data in the census?

 

2.     Indigenous Peoples and Mining– Medium and large-scale corporate mining are major problems that indigenous peoples face in their communities. Peaceful and harmonious relations within indigenous communities and families have been adversely affected by the entry of mining companies and the conduct of free, prior and informed consent (FPIC) processes that are unduly biased in favor of mining corporations[3]. The presence of military detachments in mining areas has limited indigenous peoples’ freedom to work on their lands and caused indigenous children to drop out of school. Indigenous human rights defenders are being harassed and killed, and have numerous SLAPP cases (strategic litigation against public participation) filed against them. Environmental degradation caused by mining has resulted in health problems, significant reduction of agricultural production, water pollution and decreased fish catch.

Indigenous peoples are calling for the exclusion of their ancestral domains and indigenous peoples’ and community conserved territories and areas (ICCAs) from mining areas, in accordance with Section 1 of Executive Order No. 79, series of 2012 (EO 79). They call for the cancellation of fraudulently issued FPIC certificates. Indigenous peoples also call on Congress to repeal the Philippine Mining Act of 1995 and pass an alternative mining law that is pro-people, nationalist, recognizes indigenous peoples’ rights, and safeguards the land, resources and environment which is the patrimony of future generations.

PROPOSED ISSUES: When is the State Party planning to release an official list of “no-go zones” for mining, in accordance with EO 79? What steps does the State Party intend to take to repeal or amend the Philippine Mining Act of 1995, adopt an alternative mining law, and adopt a law recognizing indigenous peoples’ and community conserved territories and areas (ICCAs)? How does the State Party plan to address claims of fraudulent FPIC certificates and exact accountability from erring personnel?

 

3.     Indigenous Peoples’ Land Rights– Under Republic Act No. 8371, or the Indigenous Peoples’ Rights Act of 1997 (IPRA), the NCIP has the mandate to protect and promote the interest and well-being of indigenous peoples with due regard to their beliefs and customs, traditions and institutions, including the responsibility to facilitate full delineation and demarcation of Ancestral Domains of indigenous peoples through the issuance of Certificates of Ancestral Domain Title (CADT). As of June 2015, the NCIP has issued 182 CADTs covering an area of 4.7 million hectares, or 90% of the total target of six million hectares of ancestral domains. Of the 182 CADTs issued by the NCIP, less than 50 have been registered with the Land Registration Authority (LRA). This is a problem for indigenous peoples because when their CADTs are not registered with the LRA, they are less able to prevent intrusion into their ancestral domains by migrants and corporations.

To address the need to prevent and resolve conflicts between ancestral domains and land claims covered by other Resource Use Instruments, such as mining contracts, Joint DAR-DENR-LRA-NCIP Administrative Order No. 01-12 (JAO 01-12) was issued in January 25, 2012 to “Clarify, Restate and Interface the Respective Jurisdictions, Policies, Programs and Projects of the Department of Agrarian Reform (DAR), Department of Environment and Natural Resources (DENR), LRA, and NCIP” in order to address jurisdictional and operational issues between and among these agencies. Unfortunately, the process under JAO 01-12 has resulted in undue delay in the issuance and registration of CADTs. Indigenous peoples feel that under JAO 01-12, the CADT is discriminated against as a land tenure instrument and regarded as inferior to other land titles and resource use instruments because JAO 01-12 requires a certificate of non-overlap (CNO) from DAR and DENR before a CADT can be issued and registered, whereas a CNO from NCIP is not required before registration of instruments under the DAR and DENR (such as the Certificate of Land Ownership Award from DAR and emancipation patent or free patent from DENR).

While indigenous peoples of the Philippines have been enjoying protections provided under the IPRA for more than 18 years, there is one area where the IPRA has not been applied and where the NCIP does not have a field presence, the mainland area of the Autonomous Region of Muslim Mindanao (ARMM). It is for this reason that there have been no CADTs issued in the area, despite demands from indigenous peoples within mainland ARMM for recognition of their ancestral domains and for the establishment of NCIP offices within ARMM.

PROPOSED ISSUES: What steps does the State Party plan to take to address the undue delay in issuance and registration of CADTs? Does the State Party have plans to declare with finality that the IPRA applies within the ARMM, establish NCIP offices within the ARMM, and delineate, issue and register CADTs of indigenous peoples within the ARMM?

 

4.     Indigenous Peoples’ Right to Economic Development– Of the 182 Ancestral Domains with CADTs issued by the NCIP as of June 2015, only 59 have formulated their Ancestral Domain Sustainable Development and Protection Plan (ADSDPP), a development plan required by the IPRA. The communities with ADSDPPs were assisted by various private and public agencies, the NCIP and local government units. It is noted, however, that some ADSDPPs were formulated through the help of mining companies and electric companies (such as the National Power Corporation and the Apex Mining Corporation). At present, none of the ADSDPPs formulated have been incorporated into the Barangay (village) development plans, resulting in conflicts in development priorities between the local government unit and the indigenous peoples’ communities, and in non-implementation of ADSDPPs because of lack of resources from the government.

Under the IPRA, the NCIP is required to formulate a Five Year Master Plan for indigenous peoples that identifies appropriate policies and programs and is based on the ADSDPPs of all ancestral domains. Furthermore, the Philippine government is strongly encouraged by the UN Human Rights Council’s Working Group on Business and Human rights to develop a national action plan on business and human rights as part of the State responsibility to disseminate and implement the Guiding Principles on Business and Human Rights. Also, in a resolution adopted by the UN General Assembly on 22 September 2014[4], containing the Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, States committed to cooperate with indigenous peoples to develop and implement national action plans, strategies or other measures to achieve the ends of the UN Declaration on the Rights of Indigenous Peoples. None of these plans have been formulated.

PROPOSED ISSUES: What steps does the State Party plan to take to ensure appropriate formulation of ADSDPPs for all ancestral domains, full implementation of ADSDPPs, and incorporation of ADSDPPs into government development plans? What steps does the State Party plan to take to develop and implement, with the full and effective participation of indigenous peoples, the Five Year Master Plan under the IPRA, and the National Action Plans on Business and Human Rights and for the implementation of the UN Declaration on the Rights of Indigenous Peoples?

 

5.     Indigenous Peoples and the Mindanao Peace Process– Indigenous peoples recognize and support the struggle of the Muslim minority in the Philippines for peace and against oppression and historical injustice. However, indigenous peoples, often caught in the crossfire between the government armed forces and the Muslim rebels, are victims of a conflict that is not theirs. Indigenous peoples fear that they will become victims of the peace, as well as victims of war, if the peace agreements with the Muslim rebels do not recognize the right to self-determination of indigenous peoples.

The decades-long peace process with the Muslim minority in Mindanao resulted in the adoption of the 2012 Framework Agreement on the Bangsamoro (FAB) and the 2014 Comprehensive Agreement on the Bangsamoro (CAB) that recognize the rights of the Moro people. In 2015, the Bangsamoro Transition Commission drafted a Bangsamoro Basic Law (BBL) to give legal effect to provisions of the FAB and the CAB, and submitted the draft to both houses of Congress for adoption. Unfortunately, neither house was able to pass the bill into law before breaking for the 2016 elections.

Indigenous peoples are concerned that in the form presented to Congress, the BBL recognized only one Bangsamoro identity, a single ancestral domain, and self-determination only for the Bangsamoro people. Indigenous peoples called for the recognition of their identities as non-Moro indigenous peoples and the right not to identify themselves as Bangsamoro, the right to their ancestral domains, to self-determination, and the right to give or withhold consent to entry of any project into their ancestral domains. Despite the failure of Congress to pass the BBL, indigenous peoples maintain their calls in view of the possibility that the draft BBL will be filed again in Congress after the elections.

PROPOSED ISSUE: What steps does the State Party plan to take to ensure full recognition of indigenous peoples rights (to identity, ancestral domains, self-determination, and to free, prior and informed consent) in any draft law on the Bangsamoro?

 

6.     Right to Health– The main government program to address the right to health is the Modified Conditional Cash Transfer (MCCT) program for indigenous peoples of the Department of Social Work and Development (DSWD). The MCCT was developed in 2014, six years after the original Conditional Cash Transfer Program or Pantawid Pamilyang Pilipino Program (4Ps) was implemented in 2008. In response to complaints from indigenous peoples, the Indigenous Peoples’ Unit of the DSWD, with the support of the ADB, conducted a participatory review of the indigenous peoples’ experiences as beneficiaries of the 4Ps program.[5] The main problems identified included failure to address cultural and language needs, as well as geographical remoteness of indigenous peoples. As a result, the CCT program was modified to address the needs of indigenous peoples. There is no data yet on how the MCCT has been implemented so far, and whether or not the needs are better met compared to the 4Ps.

As part of the government’s commitment to meet the Millennium Development Goals (MDGs) on maternal and child health, the Department of Health (DOH) issued the “No Home-Birthing Policy”. Unfortunately, this policy puts additional strain on indigenous women, given the lack of basic social services and inaccessibility of health centers for remote indigenous communities. With this policy, pregnant indigenous women have to hike for long distances just to get to the nearest health facility. Indigenous women have called for a repeal of this policy and for accreditation of and appropriate training for traditional birth attendants.

PROPOSED ISSUES: Can the State Party provide information on the implementation of the MCCT and on whether it has adequately addressed the concerns of indigenous peoples or not? What steps does the State Party plan to take to address the lack of basic health services and inaccessibility of health facilities for indigenous women? Does the State Party have programs for accreditation and appropriate trainings for traditional birth attendants?

 

7.     Right to Education- Indigenous peoples are the least served in terms of access to education, mainly due to the remoteness of their ancestral domains. Statistics show that nine out of ten indigenous children in Mindanao have no access to education and many indigenous communities do not have schools. In response to this problem, the National Commission on Culture and the Arts (NCCA) and non-governmental organizations are implementing programs on schools of living tradition (SLTs) and alternative schools for indigenous children in remote communities, especially in Mindanao. For instance, religious organizations, communities and non-governmental organizations established 146 alternative learning schools catering to about 5,000 indigenous children all over Mindanao. However, 82 incidents in 57 schools were reported between 2011 to May 2015, including instances of schools being attacked, closed, burned, or occupied as detachments by government security forces and of school teachers and personnel being executed. Teachers, students and parents were subjected to various forms of threats and intimidation by government forces and a paramilitary group called Alamara and Magahat. Indigenous children have been traumatized by these incidents and have been deprived of their right to education.[6]

One specific case of harassment of indigenous schools is the experience of the Mindanao Interfaith Services Foundation, Inc. Academy (MISFI Academy), an alternative school located in Sitio Muling, Gupitan, Kapalong, Davao del Norte. This school was given a permit by the Department of Education (DepEd). It is located in a very remote area, approximately two walking days from the next village, which is Sitio Patil. It serves indigenous children from pre-school to grade five, with only four teachers working in the school. The teachers and students from the school have been harassed and threatened by paramilitary group Alamara (some of their members would have been trained as CAFGU[7]) and by the 60th Infantry Battalion (IB) of the Armed Forces of the Philippines (AFP). The teachers and students in five other schools built by the indigenous people with the help of MISFI in different indigenous communities in Davao Oriental province received similar threats and intimidation from the 67th IB of the AFP. All these schools were labeled as teaching subversive materials and supported by the New People’s Army, an armed rebel group. The Department of Education also endorsed the closure of these schools and stated that military personnel can become teachers in public schools. Upon the intervention of various persons and civil society groups, the closure of the schools did not push through and permits were released by the DepEd in June 2015 for some of the schools to operate.

PROPOSED ISSUES: Can the State Party provide information on the implementation of Department Order No. 62, series of 2011, adopting the National Indigenous Peoples Education (IPEd) Policy Framework, and the Indigenous Peoples Education Curriculum Framework (Department Order No. 32, Series of 2015) issued by the Department of Education? What steps does the State Party plan to take to address the alleged harassment and killing of IP schools teachers / personnel by military and paramilitary groups? Does the State Party have special programs for accreditation of indigenous schools and teachers?

 

8.     Access to Justice– Under the IPRA, the NCIP has quasi-judicial powers and is granted jurisdiction,through its regional offices, over all claims and disputes involving rights of indigenous peoples. Unfortunately, the Philippine Supreme Court has ruled in a recent decision (October 20, 2015)[8], setting forth its interpretation of Section 66 of the IPRA, that the NCIP has jurisdiction over claims and disputes involving rights of indigenous peoples only when they arise between or among parties belonging to the same indigenous people. This decision will have grave implications on indigenous peoples’ access to justice. Indigenous peoples will now have to bring their claims and disputes against non-indigenous persons or corporations, involving indigenous peoples’ right, before regular courts that have little or no knowledge of the IPRA, and indigenous peoples’ land rights.

PROPOSED ISSUES: What steps does the State Party plan to take to protect and promote indigenous peoples’ access to justice, in light of the recent Supreme Court decision on the jurisdiction of the NCIP?

 

[1]National Commission on Indigenous Peoples (NCIP), “Regional Estimated Population – computed based on the Population Growth Rate (2007) by Region and the IP Ethnic Group Population – computed using ratio and proportion method.” 2008.

[2]Republic of the Philippines, Philippine Statistics Authority, Regional Statistical Services Office, Cordillera Administrative Region, “Special Report: Ethnicity (based on the results of 2010 Census of Population and Housing)”, 2015.

[3]An assessment of the implementation of the FPIC guidelines that was conducted by the Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ) and the Non-Timber Forest Products (NTFP) in 2012 found that 53% of FPIC processes were carried out in relation to mining and that many claimed that the FPIC process was manipulated and FPIC certificates fraudulently issued.

[4]A/RES/69/2

[5]Indigenous Peoples’ Unit, DSWD, 2014.

[6]Sharing by Kharlo Manano of the Save our Schools Network during the IP Day National Gathering, August 9-11, 2015, Panel on Indigenous Peoples and Education/Schools of Living Tradition, University of Philippines Hotel, Quezon City, Philippines.

[7]Citizen Armed Force Geographical Unit (CAFGU) are AFP Ready Reserve Units created under E.O. 264, ‘Providing for the Citizen Armed Force’, 25 July 1987.

[8]Unduran, et al. versus Abersturi, et al., G.R. No. 181284 (October 20, 2015).