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1997
OIJllttllO/'ti
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[,L';/."raJ .-liLa):'; Olhcc
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, (()9/:111ual) 20JJ)
FOR:THE COMMISSION EN BANe
RE: Application of RA 8371 in the ARMM
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'INTRODUCTION
i With the Advent of the Bangsamoro Framework Agreement signed by
i government and the Moro Islamic Liberation Front (MILF), we are now
: at' a curious juncture as to the future of lumads in Mindanao once the
basic law is in place. In a briefing in Davao City, Chairman
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:M;iriam Colonel-Ferrer assured that "customary laws and indigenous dispute
:r.esolution mechanisms shall be recognized in the administration of justice in
,the Bangsamoro; and that IPs rights in the Constitution, IPRA and even
!;in:ternational laws and covenants were provided in the framework
i;agreement". Further, she urged indigenous groups to propose development
:projects for their communities, adding that they should utilize the
iAutonomous Region in Muslim Mindanao (ARMM) as an arena to secure
itheir rights and ancestral domain claims."
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Though the staten1ent offered a room of assurance to IP groups, the
:dtteper n1essage echoes a reminder to the NCIP that it has a small margin of
,opportunity to extend its helping hand to the ICCs/IPs before the basic law
\colnes full circle. It means, the NCIP can do a lot of things that are within its
and financial and technical capacity to pursue plans and programs
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!for the protection and recognition of the rights the ICCs/IPs in the ARMM
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;areas while preparations for the Bangsamoro framework is underway.
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ITHE LUMA.DSAND THE MOROS
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\:; The LU1llads view themselves as distinct from Moros because they did
not convert to Islam centuries ago. Both groups are indigenous to
,NIindanao. Moros] however, do not for the most part refer to themselves aSf
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.. "indigenous peoples" because they have sought to establish a separate
:political identity. There are approximately eighteen major non-Muslim
: ethnic groups in Mindanao for a total population of roughly nine
. million. Within the Autonomous Region of Muslim Mindanao (ARMM),
Lumads account for only 2 percent of the population (around 60,000)
, compared to Muslims who constitute 90 percent (roughly 2.5 million). Most
. Lumad comm.unities are in remote areas, where poverty is high, education is
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o}'v, an government servIces poor or non-exIstent.
i, There is not n1uch binding the non-Muslim indigenous peoples of
: Mindanao together. In contrast, the thirteen ethno-linguistic groups who
, aIje known as the Bangasamoro share one faith, Islam, and common identity,
i if', one vaguely defined. Nevertheless, at the founding congress of the
'organization Lumad Mindanaw in June 1986, representatives from fifteen
different tribes began using the term "Lumad" to refer to the indigenous
, of Mindanao. Like the Moros, the lumad experienced cycles of land
: gJabbing and displacement as Mindanao was incorporated into the
I state over the course of the twentieth century. During the
i American colonial period (1898-1946), tribes lost control over their land
i. because of legislation that did not recognize customary property rights,
. paving the way for an influx of Christian settlers from elsewhere in the
cquntry. Armed conflict in Mindanao erupted in the 1960s and 1970S - the
, Ppilippine government was simultaneously fighting the communist New People's
A1my(NPA) and the Moro National Liberation Front (MNLF). The loss of their land
; is not just a historical injustice for the Lumad; territory is integral to their
,. identity and the basis of tribal self-governance. The tribes likely to be
: affected by a final settlement with the MILF are scattered across Central
Mindanao, the Zamboanga peninsula and the Sulu archipelago. Of those already
. v0thin the ARMM, the most numerous are the Teduray-Lambiangian ofMaguindanao
i that number roughly 60,000. There are smaller numbers of Dulangan Manobo and
in Maguindanao as well. In Lanao del Sur there are Higaonon, while the Badjao
'. of Basilan, Sulu and Tawi-Tawi also identifY themselves as "non-islamized ethnic
groups". Several other tribes live around the fringes of the ARMM, including the
Erumanen-Menuvu in North Cotabato.
The Lumad have lived alongside the Moros for centuries, with some
intermarrying and even taking up arms for the MNLF and MILF, but
persist. This history, as passed down through oral tradition, is
and pivots on conflicting narratives of oppression. On the oneQ\.
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1 'Indigenous Rights and
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the MILF Peace Process @ www.academia.edu
ha:nd, many Lumads lament their ancestors' enslavement by the
daius(highborn Muslim leaders). On the other, Many Moros are baffled as
to'\vhy the tribes cannot see who the real interlopers in IvI.indanao are: the
C11ristian settlers. They say that it was the government, not the Sulu or
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sultanates that once ruled much of what is now southern
which passed discriminatory legislation and took indigenous
'lahds. As a member of Mora Civil society commented: "The Lumad is
! iHogical-that they would side with the oppressor". Lumad activists strongly
'. disaboree. As a woman activist based in Davao said, the "tradition of
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I oppression" was with the Moros, not the Christians: "We will never subject
, ourselves to Moro domination. This [efforts to secure a Bangsamoro sub-
state induding ancestral land land] is just a continuation of efforts to
conquer us during the sultanate".2
This history bears on the present in several ways. The Lumad of
Mindano believe they share ancestors with the Maguindanaon and
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the Maranao, two of the largest ethnic groups that make up the Bangsamoro
, and the two dominant groups in the MILF. In the version heard in the
Cotabato area, there were two brothers, one of whOln, Apu Tabuna-way,
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c,pnverted to Islam while Apu Mamalu did not. Many tribes explain how
traditional peace pacts agreed between their ancestors and Maguindanaon
1 Maranao elders divided Mindanao along the lines of ethnicity and
i rieligion. Lmnad leaders have increasingly invoked these ancient pacts in the
sontext of the peace process although there is no written record of theln.
They say these agreements provide the basis for mutual respect and
coexistence and can help achieve a just peace in Mindanao. Tribal leaders
and the panel appointed to negotiate on behalf of the MILF with the Aquino
government agreed during a dialogue in Cagayan'de Oro on 12 June 2011 to
reaffirm these pacts.
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i. \Nhile this may dispel some mistrust, what matters is the impact, if
such gestures will have on the peace process. The content of the pacts
remains obscure and the boundaries between Moros and Lumads have
overtime. As a prominent member of the Moro civil society pointed
put, it is unclear if these traditional agreements entailed the division of
and systems of governance. An Erumanen-Menuvu datu (tribal
from North Cotabato disagreed, saying: "That boundalY [between
, !Moro and Lumads] is not only a boundary of territory, it is a boundary of
jfaith, a boundalY of economic activity, a boundalY of political rulings ... it i7
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, Ibid, page 3
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, a: boundary of everything". Others question whether the MILF as an
organization has the authority to reaffirm pacts that were originally
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:' concluded between tribal leaders and Maguindanao and Maranao elders.3
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The Lumads remain on the sidelines of the peace process and have
i. plenty of reason to be worried. They fear they will be the "sacrificial lambs"
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I of a final settlement because they are not a party to the negotiations.
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'EHE ARMMAND IPR4
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In 2000, the powers of the ARMM were expanded to include the
r'esponsibility of the Regional Government to protect the ancestral
of the Lumads in the ARMM. Since the NCIP's powers and
(unctions were not devolved to the ARMM, the regional asselnbly
Resolution No. 269 that became the basis of a InemOrandUITI of
l:lnderstanding between the NCIP and the Regional Government to make the
IPRA as the legal framework for IPlICe rights while legislation of a local
version of IPRA is being undertaken by the Regional Assembly.
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I Sometime in 2008, the Regional Assembly enacted Act No. 241, known
as "An Act to recognize, respect, protect and promote the rights, governance
and justice systems, and customary laws of the indigenous peoples/tribal
! peoples of the ARMM". The local law reaffirmed the policies and principles
in the IPRA and international law.
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In 2012, the rules and regulations implelnenting the local law was
passed. One of the highlights of such IRR gave emphasis to the processing of
:CADTs/CALTs:
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Rule IX, Section 1
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"X x x Until the NCIP-ARMM is organized, the osce shall
accept applications for certificate of Ancestral Domain
Title/Certificate of Ancestral Land Title (CADT/CALT) as the
authorized agent of the NCIP. And upon acceptance of the
application, forward such applications to NCIP for processing. Xar
x x" U'
3 ibid
4 ibid
The pressing issues are outlined hereunder:
(1) Can the NCIP process and issue CADTs/CALTs over ancestral
domain/land claim application in the ARMM?
(2)Can the NCIP extend recognition of the IP Muslillls in the
ARl\1M?
(3) Does it have the authority to implement the Mandatory
Representation in the ARMM?
DISCUSSIONS/RECOMMENDATIONS
(i)CADT/CALT applications in
theARMM
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i, ji The NCIP can process CADT /CALT applications within the ARMM.
! is no limitation of this authority in the law, and that the powers and
I of the N CIP were not expressly devolved in the ARMM
autonomous government. Further, the local legislation (Act No. 241) and its
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implementing rules and regulations have expressly acknowledged the
I of the NCIP to delineate ancestral domain/land claims in the
! ARMM. However, to avoid legal complications and legal challenges that
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Inight devour the short remaining time, the NCIP must respect the
Rfocedures outlined in the IRR of Act No. 241. Thus, all applications must
first be accepted by the OSCC, the authorized agent of NCIP under the IRR,
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,before the NCIP processes the same pursuant to RA 8371 and all relevant
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Considering the shortness of tilne, the NCIP is advised to initiate a
I' dialogue with representatives of the Regional Governor, OSCC and OPAPP
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1pr the possible crafting of an agreement that will thresh out the Inechanics,
procedures, technical support services and fund allocations of CADT /CALT
; for delineation. The agreement is necessary to bind these offices of
, 1?mmitments, tasking,. and c0.ardinative efforts to ensnre(}t
trat target outputs wIll be accomplIshed In due tIme. f
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: Recognition ofIP Muslims
: the ARM1W
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This function is lodged with the OSSC under its charter when it was
with the ARMM and is mandated to carry that task while the
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ARMM is in existence. This function was reaffirmed and strengthened in Act
N,o. 241 and its IRR, thus:
Rule IV, Section 3.
liThe ICCs/IPs/TPs concerned shall have the sole power to
indigenous leadership titles and certificate of
., membership. The ICCs/IPs/TPs shall have the following rights:
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i, (a) Right to Confer Leadership Titles. The ICCsjIPs/TPs
:, concerned, in accordance with their customary laws and
practices, shall have the sole right to vest titles of leadership.
(b) Recognition of Leadership Titles. To forestall undue
conferment of leadership titles and misrepresentations, the
ICCsjIPsjTPs concerned, may, at their option, sublnit a list of
their recognized traditional socio-political leaders with their
corresponding titles to the OSCC. The osee shall conduct a field
validation of said list and shall maintain directory thereof.
(c)Issuance of Certificates of Tribal Membership. Only the
recognized registered leaders are authorized to issue certificates
of tribal membership to their members. Such certificates shall
be confirmed by the osee based on its records and shall have
effect only for the purpose for which it was issued. The osee
shall support the initiatives, projects and activities of the
ICCsjIPsjTPs that will strengthen and develop their socio
political and leadership systems."
, Nevertheless, the NCIP must negotiate that this matter be included in
agreement for purposes of fast tracking the process and for the allocation
of funds to meet the target.
(3) Mandatory Representation
i,n the ARMAl Legislative Government
This function was carefully spelled out in Act No. 241 of the ARMM
its IRK The local law expressly recognized the rights of thegt
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IC:Cs/IPs/TPs participate fully in all levels of decision-making, and ensured
representation in the policy making bodies and other local
legislative councils.
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This legislation can be the starting point of a negotiation with ARMM
but needs to be included in the agenda to be presented in the proposed
so that it will be part of the agreement between the concerned
.. a'gencies of the govermnent.
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I CHALLENGES
(a) It may take a year or less for the Bangasamoro basic law to be fully
implemented in identified areas in Mindanao. This small window
of opportunity m.ight not be sufficient for the NCIP to fully attain its
target in delineating AD/AL in the ARMM areas, taking into
consideration boundary conflicts, political entity interventions, and
complaints and cases that may arise during the delineation;
(b) For one, the limitation of its budget and shortness of technical
personnel to conduct survey activities might hamper the processing
of CADT /CALT applications;
(c) Tasking is one problem. The Commission has to identify what
NCIP region or regions will implement the program. If not feasible,
composite team or a task force must be created by the Commission
to deal with the gargantuan tasks. Whatever arrangement is made,
1\ I it is very clear that some on-going tasks and programs in other
areas and regions ITIUSt be sacrificed to accommodate the urgency
of the ARMI'v1 targets;
(d) Legal challenges are not farfetched. Third parties who may be
affected by the ongoing delineation are expected to file cases in the
courts to challenge our authority in extending our jurisdiction over
i: the ARMM areas. Though we truly believe that there are no legal I
impediments in doing so, we cannot stop affected parties to raisEijt
questions in the proper fora.
Submitted this 9
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day of January 2013.
Legal Affairs Office
By:
@\'-l:JZ,:>\
ATTY. ARTHUR K. HERMAN
Noted:
ATTY. J E A N ~ ' FLORITA
Ole Director
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.. ProJectecI-=Ch-art e eIIneati-onof--
CADTs/CAlTs within the ARMM