|Where are Indigenous Peoples going?|
|Wednesday, 18 May 2011|
ESSC undertook a review of the Indigenous Peoples Rights Act or IPRA in 2008 as part of an Asia-Pacific review of forest regulatory frameworks and their implementation by the Institute for Global Environmental Strategies .
A pragmatic view of IPRA recognizes both the opportunities in the law for Indigenous Peoples to assert their rights and threats to their well-being. IPRA has both opportunities and limitations that enable or constrain the exercise of these rights.
The IPRA framework for indigenous development is anchored on the recognition and respect of basic rights, including right to ancestral lands and domains; right to self-governance; social justice and human rights; right to protection and preservation of cultural traditions and institutions; and right to basic services. The mechanisms for the recognition of the above rights are the certificate of ancestral domain title (CADT), the free, prior and informed consent (FPIC), the ancestral domain sustainable development and protection plan (ADSDPP), and the National Commission on Indigenous Peoples (NCIP) as the primary government agency to formulate and implement policies, plans and programs that promote and protect Indigenous Peoples' rights and well-being.
There are a number of challenges in the implementation of IPRA. Questions on its constitutionality were raised with the Supreme Court in 1998 and budgetary constraints froze its implementation during the initial years. At the national level, ongoing efforts at policy harmonization are addressing IPRA's overlaps and conflicts with environment and natural resources and forestry laws and provisions on resource access and tenure, which are creating confusion and conflicts and contribute to the on the ground.
At the local level, IPRA is not a self-implementing law, and the extent to which it promotes the rights of Indigenous Peoples depends on various factors. For indigenous communities, there are opportunities in each of the mechanisms to help them assert their rights but, depending on their internal capacity, external support, the challenges and limitations for the opportunities to be maximized are multiple.
As a policy reform of cultural rights and forestland tenure, the CADT grants to an indigenous community security of land tenure for their ancestors' domains as this exists today without conflict of claim. The FPIC is a tool for decision making among indigenous communities that allows indigenous communities to approve or reject the entry of development plans in their ancestral domains. The ADSDPP in turn offers an opportunity for the inclusion of the aspiration of Indigenous Peoples' in local plans. Ancestral domain planning can formalize the existing practices of the Indigenous Peoples. The usefulness of the ADSDPP lies in the extent that they are prepared to engage in market economy and there is a favorable market. There is much talk of payment for ecosystem services secured by good management of the lands but there are no working mechanics. Even in local government units comprising of and led by predominantly Indigenous Peoples, the benefits may not reach the poorest of the community and developments do not always reflect environmental sustainability. NCIP is not able to ensure that ADSDPPs are genuinely integrated in local and national government plans.
Moreover, the value-added of a tenurial security through the CADT for forest-dwelling communities in terms of improved access to resources and livelihoods remains unmet. Even with titles and plans, DENR retains its regulations on permitting, which does not allow forest dependent communities to benefit from their NRM efforts to improve their social and economic well-being. Many Indigenous Peoples are faced with difficulties of daily subsistence and lack the capacity to effectively negotiate projects.
The CADT, ADSDPP and the FPIC are not ends in themselves in IPRA implementation, and do not guarantee better forest management or equitable benefit sharing. It cannot always be assumed that indigenous communities prioritize ecological balance. The issuance of a CADT can lead to some unintended consequences, if the issue of indigenous rights is narrowly defined as a problem of land tenure or resource access, without capacity strengthening for ancestral domain management. Nonetheless, there are ongoing indigenous forest management practices that can be strengthened.
The mechanisms are not automatic shields against the entry of corporate interests in an ancestral domain. These provide only some leverage for Indigenous Peoples to assert their rights and articulate their plans in relation to external interests to the extent that they can consolidate their divergent positions and effectively negotiate. Mining is proving to be disastrous for the integrity of many cultures, but now that the law is there and they have the right to decide, companies are free to negotiate with communities in the presence of NCIP. Large sums of money being made available to the community leadership who may have little capacity to manage or understand viable options that would not overrun the capacity of securing cultural identity.
Accompanying Indigenous Peoples in consolidating and standing up for their interests, and ensuring that the process is just, is where Indigenous Peoples need support and assistance.
FPIC can work to the advantage of Indigenous Peoples to the extent that the community has the capacity to give a genuine FPIC with a level of understanding as to how they safeguard the future generation and that this cannot simple be done through acquiring money while losing management of much of the domain. Revised guidelines on the processing on FPIC reduced the FPIC into procedural steps but give little security to communities who have not engaged previously in market economics or internalized the impact corporate transactions have on community decision making.
The extent to which the mechanisms have meaning for the indigenous communities is also dependent on the ways by which the indigenous groups take advantage of the new opportunities or to reduce new threats arising from regulatory reform. The capacity of local communities to establish political coherence and capacity to negotiate collective interests is poorly developed.
Many organizations see indigenous rights as a problem of tenure, but for a lot of communities it is also access to basic services. IPRA is more than forestry, and the rights of indigenous peoples about basic services can also strengthen their cultural identity and leadership. It is often bemoaned that communities will sign off their rights in the hope of a better life with basic needs met, but this is often done with little understanding of how this is achieved.
In general, the implementation of IPRA has been fragmented. Ancestral domain/land titling, management planning and capacity building, and FPIC consultations are undertaken separately, and not within an integrated framework of empowering Indigenous Peoples.
IPRA mandates the geographical representation of Indigenous Peoples in the NCIP Commission, but the political selection and appointment of its members and its nature as a government agency already create limits to its capacity to represent indigenous interests. Questions on the NCIP's early controversial issuances that did not undergo consultations with Indigenous Peoples and other stakeholders remain to cast doubt on the credibility of the NCIP in representing indigenous people's interests. In some areas, NCIP lacks credibility in the eyes of Indigenous Peoples, but as abetting mining companies. The weak performance of NCIP has been attributed to the shortage in budget, lack of capacity and skills (transitioning from agencies with completely different tasks). The effort to address the lack of systems in its operations, which hindered NCIP from effectively carrying out its role in the past, tends to create another problem with the increasing bureaucratization of NCIP.
It is not realistic to expect in Philippine society an effective and comprehensive cultural empowerment of the margins to occur within the years from the constitutional change of 1987 and the present. There is clear realization that much more has to be done to sustain the rights of peoples and the value of culture within a society in terms of the quality of life and integrity of identity.
Policy flexibility is needed for a generic law like IPRA that cannot respond to complexities and particularities of local contexts. IPRA's implementation requires flexibility in guidelines appropriate to cultural diversities. There is a need to clarify rules and simplify administrative requirements for Indigenous Peoples to have more control over consultations, decision making processes, livelihoods, and resource management. Such efforts need not reduce sociocultural dynamics to standardized bureaucratic procedures.
NCIP must recognize the prime importance of the process of empowerment for Indigenous Peoples even if it takes a long time.
Community empowerment has not been strong for many and practices of cultural integrity are not sustained. Many cultures no longer see value in their own language or tradition. Decision making process of old may need to adjust to the youth of today who also need to be upheld for what they contribute. Indigenous communities need to strengthen their cultural integrity, which is in many cases fragile and unarticulated. Internal and external pressures continuously bear upon the communities' cultural hold. The strength of the indigenous culture in a community contributes to their forest management capacity but these need to be internalized anew with regard to actual values held in the culture.
Improving the capacity of Indigenous Peoples includes strengthening their leadership institutions, with engagement of the youth, to strengthen their capacity to make decisions and plans. There is much need for capacity and confidence to engage and negotiate, without losing sight of what their culture represents and the objectivity required. For many external relations to have a credible cultural hold, inter-generational engagement participation in the process is necessary.
Partnerships with civil society groups have been critical in responding to the issues and concerns of Indigenous Peoples. Ultimately, however, Indigenous Peoples have to stand up for themselves and external groups will be secondary. Assisting a community is a generational process and NGOs can only do so much to help empower communities as they have usually have to work through projects and meet agency deadlines on a short term basis. On the other hand, there have been NGOs that used communities for which there needs to be greater accountability and responsibility.
Institutionalization of plans and enabling mechanisms at the local level include the adequate integration of the ADSDPP, which can serve as catch-all or convergence of basic services, in the local development plans. Ultimately, the communities must be able to ensure the sustainability of the CADT through the management plan that they themselves formulated. Some communities still need the assistance of government beyond NCIP. Government agencies and partner NGOs could help lobby and ensure that the management plan is respected and implemented accordingly by the partner agencies.
Millennium Development Goals are least achieved in indigenous community areas and need immediate attention. The new regulations on education allow for mother tongue based education and development of the curriculum with greater regard for the local context. The Department of Education needs to allocate serious resources to the different cultural areas to develop curricula and to respond to the educational needs of increasing numbers for out of school indigenous youth.
Strengthening mechanisms to ensure genuine FPIC are needed in decision-making capacity, ensuring full disclosure of plans and the indigenous structures and processes involved, the weighing of risks and consequences, and in ensuring an informed engagement. Strengthening the capacity of indigenous communities is key.
Livelihoods opportunities beyond forest management need support. In the recognition of indigenous peoples' rights to their natural resources, the implementation of IPRA could address with DENR policies on access to resources. Community livelihood options that are well managed and contribute to sustainable resource management need much greater attention. Payment for ecosystem services where communities can sustain the quality of water from their domain need to be compensated and engaged in water management from ridge to reef. Efforts to develop REDD+ need to focus around the role of indigenous peoples in much of the uplands of the Philippines.
For the full ESSC report, please click here.