THE INDIGENOUS PEOPLES’ RIGHTS ACT

THE INDIGENOUS PEOPLES’ RIGHTS ACT: AN OVERVIEW OF ITS CONTENTS

Republic Act No. 8371 is the basic law which we call the Indigenous Peoples’ Rights Act or IPRA. It came from Senate Bill
1728, authored by Senator Flavier, and HB 9125, drafted by Andolana and Zapata during Congress in 1997. However, as
early as 1988, a draft version of the Commission on Ancestral Domains Bill was already introduced in the Senate. The
principal author of that bill is a person that you know very well, Former President Joseph Ejercito Estrada. But, actually, it
was drafted by a few scholars, NGO activists and practitioners as a means of finding a way to recognize the rights of
indigenous peoples. R.A. 8371 was signed into law on October 29, 1997, and became effective on November 22, 1997
after the requisite publication. It was first interpreted in Cruz v. Secretary of Environment and Natural Resources (347
SCRA 128 [2000]).

CIVIL AND POLITICAL RIGHTS

The IPRA contains provisions that recognize not only the civil and political rights of indigenous peoples, but also their
social and cultural rights. It also recognizes rights to tenure and creates the agency known as the National Commission
on Indigenous Peoples (NCIP), which is attached to the Office of the President. Let us look at some very basic provisions
on civil and political rights: There is an equal protection clause which reiterates that it is now illegal or a crime to
discriminate against an individual or a group on the basis of ethnicity. There is a provision which reiterates the rights of
women, children, and civilians in armed conflict. There is a provision on self-governance over ancestral domains, which
means recognition of rights of indigenous peoples to form people’s organizations and tribal barangays, for instance,
under the criteria that is provided under the IPRA.

Please take note that self-governance means self-determination. Under international law, self-determination means
that the people are freely given the choice of whether or not to secede from an existing state or to form an
autonomous area. However, self-determination under the IPRA law does not take on the features of international law. It
is a totally different term from self-determination in an international context because here, self-determination means
that indigenous people’s groups may determine for themselves the kind, pace and nature of development that should
be introduced within their areas, taking into account their customary laws.

For ages we have had a system that was transplanted to our soil. All of our existing laws, perhaps even the IPRA, were
copied from other pieces of legislation abroad. The Land Registration Code came from a Mr. Torrens of Australia. The
Philippine Constitution is a law that was copied from the United States Constitution. The fact that we have a Senate and
a House of Representatives came from the conceptions of Madison and Jefferson and the rest of the people that
drafted the Constitution of the United States. Even the words “Senate” and “House of Representatives” are not
indigenous. The Water Code was copied from California. Our Katarungang Pambarangay Law, which is a process of
mediation and negotiation or conciliation, is not even indigenous to the Tagalogs. The barangay is a local unit from
which the Katarungang Pambarangay borrows the term. In Mindanao, the word “barangay” originally meant a boat, and
not a local area. In fact, the Katarungang Pambarangay Law was drafted at the University of the Philippines Law Center,
copying the negotiation process from a Harvard law project that found its way to the Philippines through P.D. 1508, and
now to be found in the Local Government Code. Our Local Government Code of cities and municipalities came from the
Spanish conception of reducciones and poblaciones.

In the Cordillera, their systems of dispute settlement processes are far from conciliation; they have adjudicatory bodies.
The Dap-ay in Western Mt. Province, the Ator or Ato in Bontoc, the Pangat system in Kalinga, the Tibalyao system of the
Manobos, the Teduray, the Kafaduan, and the Pidwayan or Piduayan system are not recognized under the Katarungang
Pambarangay Law. Now, the IPRA law looks at customary law as a basis for allocating rights within ancestral domains. It
does not use customary law, as provided in the Local Government Code, as an amicable settlement process. A provision
in the Local Government Code states that in areas where there are indigenous peoples, what substitutes for
the Katarungang Pambarangay Law is the customary law. It even cites or allows penal sanctions to come from the
community, as long as these are not cruel, degrading and inhuman punishments, and death penalty. Penal sanctions
can range from fines to ostracism or being banished from the indigenous community. Was that the subject of attack in
Cruz v. Secretary of Environment and Natural Resources? No, it was not. So, was the concept of customary law the
subject of attack in the said case? Yes, it was.

The argument of the petitioners was that since customary law is not written, it therefore violates due process as against
an outsider that wishes some right over the natural resources. The Supreme Court, however, did not rule on that
squarely. In fact, Cruz v. Secretary of Environment and Natural Resources did not come out with a specific doctrine on
how to interpret the IPRA. All that it said was that the required majority could not be garnered. Indeed, the separate
opinions on the case can be the subject of persuasive doctrines when a more specific case gets into the Supreme Court.

SOCIAL AND CULTURAL RIGHTS

Another right reiterated in the IPRA is the recognition of autonomous regions, i.e., that indigenous peoples can
determine and decide priorities at all levels of decision-making and that tribal barangays will be created through the
Local Government Code, as a means of development and empowerment of indigenous peoples.

The law states as a policy the protection of indigenous cultures. In fact, it includes in the provisions a mandate for the
Department of Education, Culture and Sports (DECS) (now Department of Education - DepEd) to include courses on
cultural values in schools’ curricula. It provides for the recognition of cultural diversity in our country. It recognizes a
system of community intellectual rights without going into the details. It acknowledges rights to indigenous
knowledge systems, which are forms of intellectual property. It recognizes priority access of indigenous peoples to
biological and genetic resources found within their ancestral domains and provides against archeological intrusion in
areas that are declared sacred by them.