Lumad territories and identities: Contestations in the Bangsamoro homeland
“Consistent with our principle of Peaceful Co-existence and Pluralism, we fully recognize and respect the existence of our Maguindanao borthers and sisters in their own identified territory and those that are lawfully resettled in our own communities. On this basis, we RE-AFFIRM our commitment to the Mamalu-Tabunaway Pact and formulate guidelines on settling modern conflicts between the IPs and our Moro brothers not only in our area cluster but throughout Mindanao.”
Tri-People Peace Summit, 2007
Introduction
Mindanao has long been saddled with issues of armed conflicts and other forms of hostilities plaguing its multi-ethnic communities of peoples whose only dream is to live a life of peace and prosperity. Over the years of social, economic, cultural and political unrest, the tri-peoples of Mindanao, consisting of the Muslims, the Lumad and the Christian settlers, have explored countless attempts to strike a resolution, both formally and informally, to the decades-long strife besetting the island.
The Muslims through the Moro National Liberation Front (MNLF) and the Moro Islamic Liberation Front (MILF) for example, transitioned from their secessionist position to one that is assimilationist by negotiating a peace pact with the Philippine government for the Bangsamoro to be integrated into the state through the constitutionally authorized creation of an autonomous region under the 1987 Philippine Constitution (Article 10, Section 18). This has evolved since the historic signing of the 1976 Tripoli Agreement to the 1996 Final Peace Agreement with the MNLF leading to the enactment of Republic Act 6734, otherwise known as “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao” (ARMM, 1989) as expanded by Republic Act 9054, or the “Expanded Organic Act for the Autonomous Region in Muslim Mindanao.” The same is true with the pursuit of MILF to negotiate a real autonomy for the Muslims through the sealing of the Framework Agreement on the Bangsamoro (FAB, 2012) and the eventual signing of the Comprehensive Agreement of the Bangsamoro (CAB, 2014) which are yet to find fruition through the enactment of a Bangsamoro Basic Law (BBL) by the current Philippine congress.
The present debate on the Bangsamoro Basic Law/Bill has opened a discourse spanning from issues of historical injustice to identity politics in building nation-states to the constitutionality of the draft bill and even the ethnic divides the bill can possibly create if not managed carefully. While the MNLF and MILF seem to have reached a consensus in terms of their modicum of engagement by putting up a consolidated peace track, reconciling both the 1996 FPA and the 2014 CAB through a joint communiqué (Rosauro, 2016) released by both parties in Jedah last 2016, some segments of the Mindanao communities seem to have been marginalized in the whole peace process. In particular, the indigenous peoples (referred to in this document as lumad) within the core Bangsamoro territories and the adjacent territories, who will stand to either benefit or suffer from the outcomes of the peace negotiations undertaken by the government with the Bangsamoro.
This paper therefore will explore the political ramifications of the Bangsamoro Basic Law from the point of view of right to self-determination (Buendia, 2015) as seen in the assertions of the lumad for the 1] recognition and 2] inclusion of the Indigenous Peoples Rights Act (RA 8371) in the enactment of the BBL. Particularly, this will privilege the voices of the lumad leaders coming from the Teduray, Lambangian and Dulangan Manobo communities representing the affected core territories and the Erumanen ne Menuvu from the adjacent territories.
The exposition herein, will take off from the shared narrative of the lumad and the Maguindanao which also expresses the core inspiration of the lumad in their assertion for inclusion. The story of Mamalu and Tabunaway sets the backdrop that highlights the lumad’s fundamental principle of peaceful coexistence in a pluralist society. The issues echoed in the voices of the lumad leaders will also be appreciated from the point of view of minoritization (Scott,1997) perpetuating further the state-authored institutions that individualize persons rather than listen to their collective aspirations as a people. Eventually, some ways forward will be proposed to avoid sidelining the lumad who will be legitimately affected with the creation of a new and stronger autonomous government subjecting the lumad to a domineering majority, possibly dictating the norms.
The Lumad of Mindanao
The term “lumad” refer to the collective of indigenous peoples of Mindanao to distinguish themselves from the other inhabitants of the island like the Muslims and the Christians. This was embraced by the indigenous peoples’ representatives during the IP Cotabato Congress in 1986 (Ulindang, 2015) and eventually used by the Cory Aquino administration when “lumad” was officially used and mentioned in Article XIII, Section 8(2) of RA 6734 creating the ARMM.
The lumad are also considered among the most peaceful and gentle yet the most vulnerable group. The lumad’s territories are rich in natural resources, especially minerals. This is the primary reason why their ancestral domains are encroached upon by outsiders and have been subjected to development aggression (La Viña as cited in Palaso, 2015)
To date, the census for the indigenous peoples of the Philippines remains to be a problem (Gaspar, 2013) because one, the Philippine census does not capture succinctly the ethnicities of its people and two, the lumad’s culture of non-registration of their birth records with local civil registrars make the lumad count more challenging.
However, according to the National Commission on the Indigenous Peoples, of the total Philippine population of roughly 92 million in 2010, the estimates show that 14 million belonged to the non-islamized IP communities. Thus they constituted 15.2% of the total population. More than one-half of the 14 million (51.2%) live in Mindanao-Sulu or a total of 7,165,432 people (Gaspar, 2013). With a total of 7 million in Mindanao and 14 million throughout the country, the IP populations are equivalent to that of other countries like Singapore.
Called “infieles” during the Spanish regime, the attempted subjugation of the Lumad was equally important as that of the Muslims. Thus, Jesuit missions were established near infieles territories (Ulindang, 2015). They are now known to be the Tedurays of Cotabato, the Subanens of Zamboanga del Norte, the Manuvu of Misamis and Surigao, the Tagakaolo of Davao Occidental and the B’laans of South Cotabato.
According to Ulindang (2015), the lumad also resisted colonization by staging some forms of mutiny against the Spaniards, Americans and Japanese while many remained isolated and withdrawn from their hills and forests that were difficult to penetrate. Just like their moro brothers and sisters, the lumad were spared from falling prey to the series of conquests in Philippine islands by foreign colonial powers, who eventually retreated back to their central camps in the Visayas and Luzon.
The presence of lumad in Mindanao pre-dates the Islamization and even Hispanization of some quarters in the island and have successfully thwarted the colonial rule. Prior to the arrival of Islam and Christians in Mindanao, the island has been inhabited by the indigenous natives with a deep sense of culture and tradition within their territories, political structures, identities, and ways of life.
However, the lumad landscape changed dramatically over the past years. Little by little, they have been displaced from their ancestral lands on account of development aggression, armed conflict and also natural disasters. They have been pushed away from their homelands dissipating into oblivion along with their rich cultures.
For instance, Ulindang (2015) accounted that in the plains of Tupi and Polomolok in South Cotabato, Blaan lumad gave way to the Dole pineapple plantations; Higaonons and Talaandigs who thrived by the plains of Bukidnon were neighbors to the Del Monte plantations. By the 1960’s, bulldozers, cranes and giant trucks were ubiquitous in the area of the Banwaons. Foreign agribusiness covered a thousand to 3,000 hectares of lumad lands in Bukidnon-Davao area.
Thus, the concern of the lumad in Mindanao in our contemporary times focused on the activities that threaten to displace them from their homeland. An example of this was the geothermal project of the PNOC based in Mt. Apo which is being resisted by the Bagobos in Davao. Also, the innumerable hostilities between the government troops and the New Peoples Army (NPA), often staged in lumad territories, resulted to their deaths, from wars not of their own making (Mansayagan, 2016). And in the context of this paper, the lumad sees another looming threat both to their identities and territories in the form of legislating a law granting autonomy to the Bangsamoro through the BBL, which to the lumad perspective, is non-inclusive of their aspirations.
For decades, the lumad of Mindanao also struggled to reclaim what they lost. This has found its affirmation in the passage of RA, 8371 or the Indigenous Peoples Rights Act of 1997(IPRA, 1997), which sought to recognize, protect and promote the rights of indigenous cultural communities. To the Jesuit priest, Fr. Albert Alejo, SJ (2014a), IPRA is the lumad’s peace pact with the government and as such must also be accorded the same respect given to the Bangsamoro since IPRA was also a political settlement to centuries of historical injustice and marginalization, achieved through peaceful means. Hence, it must not be sacrificed just to sign a peace pact won through war (2014b).
Mamalu-Tabunaway narrative as basis of peaceful co-existence
One of the communities that will be gravely affected by the transition process towards the Bangsamoro political entity will be the indigenous peoples living within the core and adjacent territories. These are the Tedurays, Dulangan-Manobo and the Lambangian indigenous communities. It may also have an impact on those in the adjacent communities like the Erumanen ne Menuvu of North Cotabato. The BBL will affect these four major indigenous peoples accounting to around 117,189 lumad individuals, in 80 barangays, within the self-delineated ancestral domain claim of 309, 720 hectares including coastal waters (as cited in Acuña-Gulo, 2014).
All of them and the Bangsamoro share the same homeland but are now contesting the last remaining territories. It is therefore worthwhile to revisit the common history that binds the Muslims and the lumad in the area as a source of inspiration for forging peace.
Timuey Alim Bandara (2014) of the Timuay Justice and Governance, narrates that the history of the Teduray is shared by the Maguindanao, that until the coming of Islam in Mindanao roughly five and a half centuries ago, the Maguindanao and the Teduray were one and the same people. These two peoples were believed to have come from two brothers, Mamalu and Tabunaway.
According to this legend -
“When Sharif Kabungsuan came to teach Islam, Mamalu, the elder brother refused to be converted while the younger brother, Tabunaway, embraced the Islamic faith. With this major turn in their lives, the brothers made a pact that Mamalu would go to the mountains and Tabunaway will make his living near the lowlands and the delta of the big river, now known as the Rio Grande de Mindanao, and that they would trade. The brothers went their separate ways with their respective followers. This separation happened around 1300 AD. From the elder brother, came the Teduray and Dulangan Manobo and from the younger brother came the Maguindanao.
Historically, institutionalized trading pacts did exist between the Teduray Baglalan (headsmen or tribal title holders) and the Maguindanao datus of the coastal area and valley. During the pre-spanish period, a system of trade between the Teduray, Dulangan Manobo and Maguindanao flourished. The former traded tobacco, beeswax, rattan, gutta percha, (sap of a tree the Teduray called Tefedus used as ingredients for insulation materials), almaciga and crops. The Maguindanao traded clothing materials, iron tools and salt. This trading relationship may have originated from the early ties of these peoples based on the legend. During this time, the people of the Cotabato river basin had been won over to Islam which had established a Sultanate all over Maguindanao. Based on later developments it seems that this trading arrangement with the Maguindanao has inhabited the development of manufacturing among the Teduray. Very much unlike the other peoples in Mindanao the Tedurays have no pottery or metal works. These basic needs were secured through the trading system with the Maguindanao.” (Bandara, 2015)
The early roots of lumad-moro relationship can be described as one of peaceful co-existence despite the dichotomization of their peoples on the basis of faith. Even with Tabunaway’s conversion to Islam, there existed cordial and respectful trade relations with the descendants of Mamalu. This shows that the lumad and muslims can co-exist harmoniously as proven by history. Through the inspiration of the Mamalu-Tabunaway narrative, the present-day descendants forged a pact to continue living under the same principle that fortified the relationship of the two brothers – peaceful co-existence. This is the same inspiration that the lumad in the core territories bring with them as they assert for recognition and inclusion in the Bangsamoro – to live by the historical pact of the Mamalu-Tabunaway brothers.
However, the colonization years have inflicted deep seated wounds in the relationship among the peoples of the Bangsamoro, both coming from the bloodlines of Mamalu and Tabunaway. Even their local traditional practices were shaken and replaced with means and methods alien to them. With the coming of colonization, a significant number of Tedurays were persuaded to give up their traditional slash-and-burn methods of cultivation and they shifted to farming with plow and carabao. After the Philippines gained independence from the United States, a series of land resettlement programs in Mindanao in the 1950s and 1960s further accelerated land dispossession (Bangsamoro Development Plan, 2016-2022).
This was the beginning of the dichotomy in Teduray culture: many Teduray refused to be acculturated and retreated deeper into their ancestral mountain habitat, while others resettled in the Upi valley and became peasants (Bandara, 2015). They were incrementally joined by their moro brothers who fled from the fighting against the colonizers. In order to supplant the moro and lumad resistance, the Spaniards and later the Americans sent missionaries to the area and converted many of them to Christianity through the use of schools and the church. Since then, settlers from Luzon and Visayas have rushed pushing the Tedurays and Moros away from their natural habitats.
Today the Teduray share a common fate with the many ethnic peoples in Mindanao – a fate of continuing threat to their territories and identities which history has nipped from them even before they can flourish. For the lumad who stood their ground within their ancestral territories, their battlecry is to protect their last remaining territories. For them, it is not just a piece of land. It is their life – it is their identity. Buendia (2015) asserts that, “a territory by itself is a human construct which serves as the material basis in defining and redefining human, group, ethnic, and social relations. It is the source of one’s social security, assistance, dependency, sociability, and intimacy. It assures the continuity of culture and endurance of collective memory of peoples. As such, the concepts of space and territory are of extreme importance in ensuring the tenacity of one’s identity and survival as a people.” Therefore, a threat to their territorial integrity is also a threat to their identity and collective memory.
Now, little by little the Tedurays are aspiring for leading roles in local governance although they still constitute the constituency of those Maguindanao who have through the years made their presence felt in the local politics. A glaring contrast are those Teduray who refused to embrace the changes and are now forced to go deeper in the mountains due to the onslaught of logging, mining and other economic interests. And now, the BBL.
It was not until mid-2010, with the newly elected government of President Benigno Aquino III, that negotiations resumed. In early 2011, President Aquino personally met Chairman Murad in Tokyo to assure him of his government’s sincerity in seeking lasting peace with the MILF. In October 2012, the GPH and MILF peace negotiating panels, through mediation by the Malaysian Government, reached a breakthrough and signed the Framework Agreement on the Bangsamoro.
A series of negotiations provided the details of the FAB, which are contained in four annexes pertaining to: (1) Transitional Arrangements and Modalities; (2) Wealth Sharing and Revenue Generation; (3) Power Sharing; and (4) Normalization. The signing of the CAB signaled the start of a new phase in the relationship between the MILF and the GPH and the difficult task of implementing the peace accord as embodied in the proposed BBL.
In the whole process, the lumad, especially the Tedurays, Lambangian, Dulangan Manobo and Erumanen ne Menuvu, felt displaced and unaccounted for in the negotiations further blurring their hopes to their own self-determination as a people.
Disenfranchising the lumad in the ARMM
Historically, the lumad were among those who were dispossessed of their lands apart from the moros. It is on this same historical injustice, which forms the basis of the Bangsamoro movement for separatism waged initially but eventually redirected towards autonomy, that the lumad’s assertions for recognition and inclusion are also framed and informed.
With the establishment of the ARMM, the Lumad became more disenfranchised because of the dominant Islamized ethnic groups in the area such as Maguindanaon, Maranao, Tausug, and Yakan. These groups belong to the powerful and economically rich elites placing the Lumad in a position of comparative disadvantage. Also, the political boundaries in ARMM were redrawn or rearranged in a way that will accommodate powerful clans such as the Sinsuat and Ampatuan clans (Damaso, 2011).
Damaso (2011) further reports that this reorganization of political boundaries led the areas of Lumad to be under the control of prominent clans. Thus, some of their ancestral domains, through various Muslim Mindanao Acts were made municipalities named after prominent Muslim leaders or figures such as Datu Unsay, Datu Saudi, Guindulugan, Sharif Aguak, and Talayan. These municipalities, although some parts are ancestral domains of lumad, were inevitably ruled by Maguindanaon mayors further establishing the dominance of Moro over the Lumad.
Indigenous people see land as tantamount to their lives, and the land is their source of food, water, and medicine; hence, they are very close to their lands. The concept of land ownership is foreign to the IPs and they are not profit-driven folks; the land belongs to the community rather than the individual. IPs do not hoard resources, rather, they only get what they can consume (Hughes, 2014). Since the Moros have established their dominance over the Lumads, so too with their ancestral domains. Hence, it is harder to claim right over their territories because there are no enabling laws specifically securing their rights over these territories.
The lumad further felt this dominance because of ‘tokenism’ for the reason that the deputy governor of the lumad in ARMM is merely symbolic or ceremonial. Instead of being the representative of his people, this caused further division in the tribes since the deputy governor does not relay the real aspirations of the lumad. A leading member of the Indigenous Civil Society, Froilyn Mendoza stipulated that,
“…how can the deputy governor carry the voice of the IPs or articulate on the IP issues when he/she is just there because he/she was placed there with the influence of the appointing authority. Maybe what is needed is a mechanism among the IPs to choose who should sit down as deputy governor, define the job description and the qualifications, it is a must that he/she should be educated, a college graduate because sometimes it is difficult to participate if the competency is problematic [inadequate] as we join or enter modern governance unlike before when everything was just oral [tradition]…” (Damaso, 2011)
Thus, the four bundles of rights, namely: 1] right to ancestral domains, 2] right to culture, 3] right to self governance and 4] social justice and human rights, as promised in the IPRA is not fully enjoyed by the Lumad in ARMM. Alejo (2014), contends that both the regional government and the national government failed the IPs in ARMM through the lack of an enabling law that would lead to the recognition, inclusion and implementation IPRA in the ARMM. This is manifested by the non-devolution of an NCIP office in the region, which is responsible for implementing the salient provisions of IPRA like the issuance of the Certificate of Ancestral Domain Title (CADT). In the entire history of ARMM, the Lumad in the region was never issued a CADT (Ng, Pe Benito and Reyes, 2017). The absence of CADT, therefore contributed to the problematic position of these Lumads since there is no formal recognition of their ancestral domains.
Timuay Alim Bandara at the height of the BBL debates, spoke in front of the congressional committee hearing on the Bangsamoro Basic Law and there he said:
“I especially mention here other affected communities and societies because it is not only encounters, by injustices and conflicts in this region. I am referring to the community and society of indigenous peoples specifically the Teduray, Lambangian and Dulangan, Manobo in portions of Maguindanao in the Autonomous Region in Muslim Mindanao (ARMM). Where the IPRA (Indigenous Peoples' Rights Act) provisions are not implemented in the past 17 years simply because we are inside an autonomous region that is the product of the peace process.” (Lacorte, 2014)
Given the misfortunes that beset the lumad in the years of ARMM implementation, the anxiety that the same fate awaits them in the BBL is mounting especially that the proposed BBL is allegedly devoid of any indication recognizing and including the four bundles of IP rights as enshrined in the IPRA, albeit the sections devoted to IP rights (Art. IX, Section 4, Draft BBL, 2017).
Finding the lumad in the draft BBL
On one hand, the framers of the proposed Bangsamoro law contended that the draft is inclusive of the lumad assertions and argued in fact that a whole section in the proposal is dedicated to IP rights. Meanwhile, the lumad leaders from the affected communities believed otherwise. To them, while the bill is littered with provisions pertinent to the IPs, they do not assure that the mistakes in the ARMM will not be repeated in the BBL simply because the most fundamental and minimum requirement is not expressly provided in the BBL – that the rights already enjoyed by the IPs under RA 8371 will not be nullified under the BBL and at the very least, that IPRA will continue to be effective within the Bangsamoro.
A cursory review of the proposed BBL, as enhanced, shows that the words indigenous peoples, are repeated at least 35 times covering sections on identity (Art. II), exclusive powers (Art. V), parliament (Art. VII), basic rights (Art. IX), economy and patrimony (Art. XIII) and transition authority (Art. XVI). The words lumad and IPRA were never mentioned and ancestral domain was written only once as one of those that fall within the exclusive powers of the Bangsamoro. Most of these provisions were viewed by the lumad with suspicion as reflective of the intent to skirt lumad entitlements to their territory and identity.
Art. II of the draft BBL, defines the Bangsamoro identity as “those who, at the advent of the Spaniards, were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants, whether of mixed or of full blood.” This is being resisted by the lumad because they do not see themselves as part of this identity and asserts that they are a separate people. There is a tendency in this definition of the lumad losing their identity for being subsumed in the Bangsamoro identity, knowing historically that the lumad pre-dates all other inhabitants in Mindanao and in their territories. While there is an option for the lumad to exercise freedom of choice, whether to ascribe or not, to the Bangsamoro identity, the resistance further intensifies as this is reflective of an “othering process,” clearly minoritizing the lumad and conversely strengthening the dominance of the Bangsamoro within the lumad’s ancestral territories.
According to Beundia (2015), this is an example of a downward exertion of state nationalism where the trajectory is towards the integration of multiple ethnic identities into a single identity. Expectedly, this will face resistance from the lumad who do not identify themselves as Bangsamoro and will choose to struggle in order to safeguard their identities from political transgressions and oftentimes undue centralist policies (2015). These diametrically opposed standpoints will be difficult and seem irreconcilable where the possibility of violence ensuing from the affected lumad communities is proximate as the assimilationist leanings will threaten the collective survival of the indigenous peoples. This exactly becomes the foundational justification of a people asserting their self-determination – that they are a separate people with their own unique history, culture, traditions and way of life.
The threat to lumad’s indigenous political structure and governance is exacerbated because the protection of the rights of indigenous peoples is subjected to the reserved powers (Art. V, Sec. 3, BBL) of the Bangsamoro government. It must be recalled that in 1997, exactly the same year when the GPH started negotiating peace with the MILF, the indigenous peoples have victoriously obtained their rightful recognition, faithful to the constitutional mandate to ensure protection of the indigenous peoples’ rights, with the legislation of RA 8371 (IPRA) assuring them of the four (4) bundles of rights of the IPs. It was also enacted to address historical injustice committed against the lumad not through a united armed confrontation but in the battlegrounds of congress (Acuña-Gulo, 2014). Entrusting to the Bangsamoro government the rights already won by the lumad through RA 8371, will in effect, be a derogation if not an abrogation of the lumad’s own version of a well-entrenched and highly-honored peace agreement with the GPH – the IPRA.
The drafters of the BBL must learn from the Memorandum of Agreement – Ancestral Domain (MOA-AD) case which was declared by the Supreme Court as unconstitutional. Justice Carpio (Supreme Court, 2008) said that the incorporation of the lumad as Bangsamoro in the MOA-AD, and the transfer of their ancestral domains to the then Bangsamoro Juridical Entity (BJE), without the lumad’s knowledge and consent, violate the constitutional guarantee that the “State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” (cited by La Viña, 2014). This is framed within the IPs right to a free-prior-informed consent protected under the IPRA.
The draft BBL further proposes that “Subject to the criteria provided in said law, the Bangsamoro Parliament may likewise create appropriate local government units in the areas inhabited predominantly by indigenous peoples.” [Art. V, Section 3 (57)] This endangers the right of the lumad to their ancestral domains which is an extension of their identity, culture, aspirations and autonomy – basically, their life.
A territory is not simply a piece of land. To the Bangsamoro as it is to the lumad, their territory is a spatial expression of their ‘being’ as a people. Buendia (2015) asserts that a territory by itself is a human construct by which social relations of an ethnic group is being defined and re-defined. A territory is the lifeline of a culture and the repository of a people’s memories. This makes the territory of extreme significance in the survival of the community especially that control over a territory reifies power and the larger space one has, the more power one can wield. Corollary to that, the smaller territory, the weaker power.
Therefore, the contestations over the territories in lumad ancestral domains through a legislative fiat represent the competition for power between two historically disenfranchised peoples, the lumad and the Bangsamoro.
One of the main provisions advancing the rights of the IPs in the Bangsamoro is found in Section 4, Article IX of the proposed BBL. It recognizes in general terms, the rights of the IPs and commits to further adopt measures to promote IP rights. It also acknowledges their rights to native titles, to their justice system, political structure, share in revenues from natural resources, to free prior informed consent, political participation with reserved seats in the Bangsamoro Parliament and to identity consistent with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) among others. One may wonder, given the litany of rights afforded to the IPs in Bangsamoro, what else are the lumad asking for?
If the ARMM experience will be the yardstick for recognizing IP rights within the Bangsamoro territory, there is so much the lumad are fearful about. ARMM, as described by former President Benigno Aquino III, was a failed experiment. It was a failure not only because of bad governance but because both the ARMM government and the central government failed in addressing the legitimate grievances of the IPs in their struggle for self-determination (Alejo, 2014b). For 17 years of ARMM, it has failed to implement IPRA nor pass an equivalent legislation to ensure the recognition of the 4 bundles of rights of the lumad. Not a single Certificate of Ancestral Domain Title (CADT) was issued in favor of an IP community primarily because the National Commission for the Indigenous Peoples (NCIP), the only authority in issuing CADTs, was never devolved to the ARMM.
To this end, La Viña (2014) proposes that RA 8371 or IPRA should be explicitly written in the proposed BBL to ensure the continued protection of IP’s four bundles of rights. While the draft BBL does not claim the Bangsamoro as an ancestral domain, the provisions of IPRA must be complied with and to ensure that this is carried out in the Bangsamoro, the draft bill must categorically recognize it as a limitation to the Bangsamoro government’s power to attenuate the gains of IPRA.
The constitutionality and legitimacy of IPRA has already withstood the test of times. The Supreme Court (2000), has already ruled in the case of Cruz v. Secretary in favor of the constitutionality of RA 8371 after it was assailed on grounds that it is an unlawful deprivation of the State’s ownership over lands of public domain as well as the minerals and other natural resources therein arguing that it is a violation of the Regalian Doctrine. This was a solidification of an earlier case of Cariño v. Insular Government (1909) where the Supreme Court already laid down that “long occupancy of land by an indigenous member of the cultural communities as one private ownership, which, in legal concept, is termed “native title.” This ruling has never been overturned and in fact it was reaffirmed in subsequent cases. The IPRA therefore, must also find its home in the Bangsamoro.
Lumad assertions in the Bangsamoro
The image of lumad struggle in the course of history is one that is characterized by minoritization spanning across centuries of colonization, Islamization, militarization and now the threat of genocide by legislation, that is, through the enactment of a law, their territories and identities will face the risk of dissipation. In order to ensure their survival, the lumad assertions form the basis of their campaign in the current deliberations of the BBL. It can be summed in three assertions: 1] honoring the Mamalu-Tabunaway pact, 2] securing their ancestral domains, and 3] acknowledging IPRA in the BBL.
Honor the Mamalu-Tabunaway narrative
Like their Bangsamoro brothers, the lumad are desirous of correcting historical injustices they have experienced emanating from the encroachments to their ancestral lands and their being a collateral damage to the armed struggle of the Muslims (Ng, et.al, 2017). Timuey Leticio Datuata, tribal leader of the Lambangian tribe said,
“We used to live in peace. We had our own political structure to govern our own people and we were in control of our future. No one governs us but us. But with the uprising of the MNLF and MILF in the area, we have become victims of their wars. Since then, our culture was in disarray. I hope we can restore the days of Mamalu and Tabunaway.” (Ng, et.al., 2017)
This desire is rooted in the shared and common history of the Mamalu-Tabunaway narrative showing the principle of peaceful co-existence.
The sentiment of this shared history however though prevalent and well recognized in the past by people in both groups, is now lost and known only to a select few. This loss of the shared history and at one point a shared identity might have contributed to the great injustices and abuses the lumad have suffered under the moros. Thus, it no longer extended to the generations preceding the fabled story of Mamalu and Tabunaway. Through “datuism” (Bandara,2014b) later on formalized through the ARMM, the narrative was replaced with Moro supremacy and dominance over the lumad who have captured most of the lumad lands and territories.
The moros developed a strong sense of entitlement over the lands they occupied when they fought colonization to protect their established territories subjecting the lumad to further marginalization. When the moros took up arms against the colonizers, it created an impression that the lumad, who never had a history of armed struggle, severed ties with their Muslim brothers, for their perceived unwillingness to fight the colonizers. Though the Lumads are also located in an area where the majority that inhabits the land are considered a minority on a national scale, the lumad now are at a double disadvantage of being a minority within a minority (Ng, et.al., 2017).
The restoration of the old order inspired by the Mamalu-Tabunaway brothers must find its space in the whole BBL discourse. While it may not be appropriate for a legal exercise, the narrative is nonetheless essential in reminding the negotiators and the legislators that they are not only enacting a law, they are actually weaving peace for the peoples of Mindanao.
Protect lumad territories and identities
The ancestral domains are a communal property of the lumad. As discussed above, there is danger when outsiders encroach in their lands because it is also a direct attack against their identities, knowing the two being inextricably intertwined. Among the threats to their ancestral lands is the expansion of monocrop plantations like palm oil, development projects like mining and the subjection of their territories to the power of the Bangsamoro government that will be created through the BBL.
It must be noted at the onset that IPRA has already recognized the lumad’s private ownership of their ancestral domains following the “since time immemorial” principle pre-dating the colonial years and therefore must not be classified as public lands.
However, as mentioned in the BBL, the recognition of ownership of ancestral domains of indigenous cultural communities is still subject to judicial affirmation (Pimentel, 2012). By judicial affirmation, it means an imperfect or incomplete title to alienable and disposable lands of public domain must be legalized through a judicial confirmation. Subjecting the lumad territories to judicial affirmation would entail additional burden on indigenous communities, other than what is required under the IPRA, which may constrain them from protecting their lands through formal titling. In comparison, the IPRA adopts a participatory approach where the decisive role of indigenous communities in all activities relevant to the recognition and titling of ancestral domains is made imperative.
The BBL provides a blanket classification of territories in the Bangsamoro as part of what they call homeland. This, in effect, is a denial of the fact that within the Bangsamoro territories are territories occupied by the lumad. Legislating the BBL without the required observance of customary practices of the lumad in self-delineation of their ancestral domains, is a violation not only of the IPRA and the spirit of the constitutional protection of IP rights, but more importantly of their internationally recognized right to self-determination.
Therefore, securing their identities and territories in the BBL is fundamentally supported by their right to self-determination, one which Buendia (2015) described as internal in nature or that which concerns only governance according to the will of the governed and not the one representing secessionism. It is said that the spiritual and material foundation of indigenous people‘s cultural identities are sustained by their unique relationships to their traditional territories (Pimentel, 2012). The Lumad’s right to self-determination must also be recognized by the Philippine Congress as their means of protecting not only their territories but also in preserving our shared history as a people. The lumad simply wanted the government to realize that while they are affirming the territory and identity of the Bangsamoro, they should not be expunging the territories and identities of the indigenous peoples.
To this end, Bai Elmalyn A. Abatayo, a woman leader of Erumanen ne Manuvu has this to say,
“The idea of tribal identity starts with the family. It states that we are not merely a sector that can be lumped with another larger group but rather we are a people with our own way of life, system of governance and our own ancestral domain. We are people with a distinct system of government independent from the BBL and from the national government.” (Ng, et.al., 2017)
Import IPRA into the BBL
Timuey Alim Bandara forwarded IPRA in the BBL, thus,
“The main reason why we are not contented with the current formulations of the BBL is because it does not mention the recognition of IPRA within the Bangsamoro. If the legislators in the region will not categorically express the non-derogation of IPRA in the BBL, then we will live a life not having the rights we deserve, just like what happened in ARMM. We attempted to lobby for the implementing rules and regulations of IPRA in the ARMM, but to no avail. This led us to believe that they [Bangsamoro] do not recognize our rights and our entitlement to our ancestral domains.” (Ng, et.al., 2017)
The statement above best captures how the lumad in the core territories feel without the assurance of IPRA’s recognition and inclusion in the draft BBL. This is brought about by the non implementation in the ARMM for 17 years of the law hailed sacred by the lumad for championing their collective rights.
The establishment of ARMM resulted to the disenfranchisement of the lumad in the moro territories as they were treated inferior by the moros who are otherwise treated as a minority on a national scale. With the re-arrangement of political structures and boundaries in the Bangsamoro, the moros are now perceived by the lumad to be the majority having power, control and dominion in the area. Without the IPRA in the Bangsamoro, the lumad do not have the assurance that their hard earned protection will all be lost allowing the moros to further reproduce the neglect and injustices committed against them in the past.
IPRA is the only equalizing power the lumad have in the face of moro dominance in the region. With the assurance of its inclusion, the lumad can at least see themselves as equal with the moro and at most sleep peacefully to the thought that their ancestral domains are safe from being taken away. To reiterate, IPRA can be fairly considered as a peace agreement (Alejo, 2014a: Acuña-Gulo, 2014) between the IPs and the government. The BBL must be argued from a position of ‘treatment of equals’ rather than a case of ‘special treatment.’
It must also be emphasized that the lumad are not against the BBL. They are not asking for anything new under the current regime but simply request the importation of a well-established law - IPRA’s letter and spirit - into the BBL. It needs stronger implementation and not a diminution of the IP rights that are already protected by national and international laws. As concluded by La Viña (2014), it all takes a single line to be inserted to allay the fears of the lumad. To ensure continued protection of the IP rights in the Bangsamoro, a formulation may be isnerted in Article IX, Section 4 of the proposed BBL, thus:
“The Bangsamoro shall further ensure that all rights of indigenous peoples, including rights guaranteed under the 1987 Constitution and Republic Act 8371, or the Indigenous Peoples Rights Act, shall continue to be respected and shall not, in any way, be diminished by any act of the Bangsamoro Parliament.”
Conclusion
We have seen that in history, both the Bangsamoro and the lumad’s assertions for self-governance is founded on their right to self-determination. Clearly too, their parallel struggles are basically issues of identity and territorial rights. The intricacies in their fight for autonomy cannot be oversimplified as an ordinary case of legislation.
The subject of identity and the ancestral domain for the Lumad is one primary reason for their assertion inspired by the Mamalu-Tabunaway narrative from their ancient past hoping to breathe life into their aspirations of their future through the inclusion of IPRA in the BBL. The indigenous people of Mindanao have a long and proud tradition that can be traced back for generations or commonly referred to as “since time immemorial”. They have their own governance called the Timuay system of governance and territory called the ancestral domain. They should not be reduced to a mere sector but rather they should be treated as people with the right to self-determination.
However, the lumad have the double disadvantage of asserting themselves from the standpoint of a minority within a minority to obtain an autonomy within an autonomy. Over the years of ARMM implementation, the Muslims have fortified their power and dominance making them the superior majority in the eyes of the lumad.
This whole exposition represented the tale of two peoples of Mindanao. Both are victims of historical injustice yearning to correct the mistakes of the past through a legislative measure. Both are claiming to exercise their demand for a recognized autonomy within the bounds of their right to self determination as a people. Both have subscribed to their Filipino identity amidst the diversity of identities they espouse, with constitutionally guaranteed rights to their culture and traditions. Both are steadfastly defending their people and protecting their territories, albeit through different modalities. One has already won their cause 20 years ago through IPRA. The other is correcting a poorly governed entity called ARMM. But in the course of the latter’s assertion for a more genuine autonomy, the former’s identities and territories are threatened. Unless the assertions of the lumad are incorporated, the BBL might yet be another ARMM – a failed experiment.
(photo from Rappler)
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