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The NIPAS Law and the Indigenous People's Rights Act
comparative Legal Analysis of the NIPAS Law
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NIPAS law the funds to sustain its implementation are very limited. It has no proper source of funding despite the huge role it plays in protecting the environment.
In essence, as far as the NIPAS law and the Mining Act of 1995, are concerned, their conflict lies without doubt on the issue as to which areas are open to mining and which area is part of the protected area. In this regard, it is recommended that Section 5, of the NIPAS law be amended and that the criteria of what a PA is, should be properly defined so that if a particular area falls on this criteria there is no more need for Congress to declare it as a PA it will be automatically considered as such. This is to avoid so much dependence on Congress to declare first an area to be considered a PA which will entail so much time and effort, contrary to the mining area which is already declared as such under the Mining Act of 1995.
The NIPAS law should also be amended to the effect that another lead government agency should be in charged with its implementation and not the DENR so that conflicts can be avoided. If not, another agency should be tasked with the protection of the environment and the implementation of conservation laws in order to segregate the utilization functions of the DENR as the lead agency from its conservation functions. The NIPAS Law and the Indigenous Peoples’ Rights Act (Republic Act No. 8371)
Assessment
The NIPAS Act was enacted with the objective of creating integrated protected areas within the classification of national parks. The purpose of these integrated areas is for the protection, management and enhancement of biological diversity and to protect the same from destructive human exploitation.
On the other hand, the IPRA was enacted in order to recognize, protect and promote the rights of indigenous cultural communities and indigenous people. The IPRA law enforces the 1987 Constitution’s mandate that the State should craft a policy to recognize and promote the rights of indigenous cultural communities (ICCs) and indigenous peoples (IPs) within the framework of national unity and development,43 and “to protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being.”44
The object of the NIPAS Act is the PA that is delineated by the law for the conservation
43Section 22, Article II of the 1987 Constitution. 44Section 5, Article XII of the 1987 Constitution.
comparative Legal Analysis of the NIPAS Law
and protection of biodiversity and natural processes while the object of the IPRA is the recognition of the rights of the indigenous peoples. It is the rights of the indigenous peoples that the law seeks to protect.
Similar to the NIPAS Act, the IPRA also delineates a physical area for a specific purpose. While the NIPAS Act calls it protected area, the IPRA calls it ancestral lands and ancestral domain. It is within their ancestral land or ancestral domain that the indigenous peoples may enforce the rights recognized by the IPRA.
Thus, the IPRA law restores the rights of indigenous peoples over their ancestral lands and ancestral domains. The term ancestral land under the IPRA refers to lands occupied by individuals, families, and clans who are members of indigenous cultural communities, including residential lots, rice terraces or paddies, private forests, swidden farms, and tree lots. These lands are required to have been “occupied, possessed, and utilized” by them or their ancestors “since time immemorial, continuously to the present.”45
Ancestral domains are defined as areas generally belonging to indigenous cultural communities, including ancestral lands, forests, pasture, residential and agricultural lands, hunting grounds, worship areas, and lands no longer occupied exclusively by indigenous cultural communities but to which they had traditional access, particularly the home ranges of indigenous cultural communities who are still nomadic or shifting cultivators. Ancestral domains also include inland waters and coastal areas and natural resources therein.
Ancestral domains are also required to have been “held under a claim of ownership, occupied or possessed by indigenous peoples, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present.”46
The IPRA law enumerates the rights of indigenous peoples over their ancestral domains/lands. These are the right of ownership over the ancestral lands/domain, right to develop and manage lands and natural resources, right to stay in territories and not to be displaced therefrom, right to regulate entry of migrants and other entities, right to safe and clean water, right to claim parts of reservations, and right to resolve conflicts according to customary law.
The law also stipulates that the indigenous peoples and their communities have the responsibility to maintain ecological balance, restore denuded areas, and “adhere to the spirit and intent of the Act.”
The similarity lies in the fact that both the NIPAS and IPRA laws affect the natural resources found within the physical areas delineated and identified by the laws. The difference is that while the NIPAS deals with the conservation and preservation of the
45http://oneocean.org/download/20020828/DA-
DENR_policy_paper.pdf 46http://oneocean.org/download/20020828/DA-
DENR_policy_paper.pdf
comparative Legal Analysis of the NIPAS Law
natural resources, the IPRA deals with the management, preservation and utilization of the natural resources by the indigenous peoples.
Under the NIPAS Act, the DENR identifies existing protected areas such as natural parks, sanctuaries and reserves, then, within one (1) year from the effectivity of the Act, the DENR submits a map to the Senate and the House of Representatives. The map then becomes the official documentary representation of the entire system, subject to such changes as Congress may deem necessary. All documents related to the map shall be kept by the DENR but shall be made available to the public. The map is subject to review by the DENR within three (3) years from the effectivity of this act. Any changes which the DENR deems necessary to propose shall be subject to public hearing. After public hearing, the DENR makes a recommendation to the President, who thereafter makes his own recommendation to Congress.
Under the IPRA law, ancestral domains which have already been identified by DENR Administrative Order No. 2, Series of 1993 and other laws existing prior to its enactment may be issued a Certificate of Ancestral Domain Title (CADT) without going through regular Delineation Process.
Under the NIPAS Act, the DENR is vested control and administration over the protected areas. The DENR Secretary is vested with certain regulatory powers, like the power to (1) collect administrative fees, (2) control the construction and operation of road and other public utilities, (3) control occupancy and settlement within the protected areas. The Secretary can enter into contracts with government and private agencies to carry out the purposes of the Act. He can also accept funds in the name of the Government of the Philippines in the interest of the protected areas and the activities within. But even in the face of all the foregoing provisions, the law does not appear to have divested the LGU with the political governance over the protected areas.
In contrast, Section 52.1 of the IPRA law divests DAR, DENR, DILG, DOJ and the Commissioner of the NDC of jurisdiction over Ancestral Domains. Even the MTC and RTC have no jurisdiction over disputes involving rights of indigenous peoples. Such disputes are resolved according to tribal customary laws and practices. If still unresolved, the dispute will be referred to the NCIP, whose decisions are appealable directly to the CA.
Areas of concern
The DENR is the agency that has the authority to recommend the creation of the PA. Under the IPRA, the DENR has been divested of jurisdiction over lands identified as ancestral domain. This jurisdiction has been restored, albeit not completely, under Section 13 of the NIPAS Act. The DENR, under the said provision, was conferred rule-making powers for ancestral lands and domains located inside a protected area. But this presupposes that the ancestral domain is within a PA. But what if it is the PA that is within the ancestral domain?
comparative Legal Analysis of the NIPAS Law
Likewise, who determines and identifies if an area within an ancestral domain should become a PA? The NIPAS act does not address this issue.
Moreover, although the NIPAS law recognizes the rights of indigenous cultural communities within their ancestral domain, such recognition does not give these indigenous peoples complete control over the resources within an ancestral domain found inside a protected area. In fact, this is why the DENR is given regulatory and rule making authority by the NIPAS law, subject to the restriction against eviction and forced resettlement.
However, under the IPRA law, indigenous peoples are guaranteed not only possession and occupation of ancestral lands, but also all other rights that comes with a claim of land ownership, such as the right to utilize all the natural resources within the land, right to develop the land, and right to exclude other persons from the land. If a PA is located inside an ancestral land or domain, which prevails -- the guaranteed and recognized rights of the indigenous peoples or the regulatory power of the DENR? This conflict has not been resolved by the implementing rules and regulations of both laws.
Section 58 of the IPRA states that “ancestral domains or portions thereof which are found necessary for x x x protected areas x x x as determined by the appropriate agencies x x x shall be maintained, managed and developed for such purposes.” However, the provision goes on to say that “the ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas”. The government agencies are supposed to only give “full and effective assistance”. The ICCs/IPs can turn over the responsibility “in writing” but this can only be “temporary”.
From the foregoing, it appears that the IPRA grants the ICCs/IPs priority in the management of a PA within an ancestral domain. It is therefore wrong to say that a PA is not part of the ancestral domain. On the contrary, the PA is in fact under the control of the ICCs/IPs. But how effective will the ICCs/IPs be in the management? Wouldn’t the DENR be in fact in a better position to manage the PA?
To resolve this conflict, the law must clearly state that if an area within an ancestral domain is delineated as a PA, it should be considered taken out of the ancestral domain, so that the IPRA is no longer effective within it. The law should also state clearly that the management of the PA should be the responsibility of the DENR and not the ICCs/IPs. Possible consequential conflicts should likewise be resolved, i.e. what if the DENR personnel are barred entry into the PA where the PA is located in the middle part of the ancestral domain, and like cases.
