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Application of the IPRA Law

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FACTS OF THE CASE

The Memorandum of Agreement on the AncestralDomain (MOA-AD) brought about by the Government

of the Republic of the Philippines (GRP) and the MoroIslamic Liberation Front (MILF) as an aspect of TripoliAgreement of Peace in 2001 is scheduled to be signedin Kuala Lumpur, Malaysia.

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This Memorandum prepared by the joint efforts of the

Government of the Republic of the Philippines (GRP)Peace Panel and the Moro Islamic Liberation Front(MILF) Peace Panel, was merely a codification ofconsensus points reached between both parties and the

aspirations of the MILF to have a Bangsamorohomeland.

This agreement was petitioned by the Province of North

Cotabato for Mandamus and Prohibition with Prayer forthe Issuance of Writ of Preliminary Injunction andTemporary Restraining Order.

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The agreement mentions "Bangsamoro Juridical

Entity" (BJE) to which it grants the authority andjurisdiction over the Ancestral Domain and AncestralLands of the Bangsamoro; authority and jurisdictionover all natural resources within internal waters.

The agreement is composed of two local statutes:

The Organic Act for Autonomous Region in MuslimMindanao (R.A. No. 9054)

The Indigenous Peoples Rights Act (R.A No. 8371)

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ISSUE

Whether by signing the MOA, the Government of theRepublic of the Philippines would be binding itself:

To concede to or recognize the claim of the Moro IslamicLiberation Front for ancestral domain in violation ofRepublic Act No. 8371 (THE INDIGENOUS PEOPLES

RIGHTS ACT OF1997)

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HELD

With respect to the indigenous culturalcommunities/indigenous people (ICCs/IPs) have, underthe IPRA (THE INDIGENOUS PEOPLES RIGHTS ACT),

the right to participate fully at all levels of decision-makingin matters which may affect their rights, lives anddestinies. The MOA-AD, (The Memorandum of

Agreement on the Ancestral Domain), an instrumentrecognizing ancestral domain, failed to justify its non-

compliance with the clear-cut mechanisms ordained insaid Act which provides the observance of the free andprior informed consent of the indigenous culturalcommunities/indigenous people.

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The IPRA does not grant the Executive Department orany government agency the power to delineate and

recognize an ancestral domain claim by mereagreement or compromise.

The IPRA, it lays down the prevailing procedure for thedelineation and recognition of ancestral domains. The

MOA-ADs manner of delineating the ancestraldomain of the Bangsamoro people is a clear departurefrom that procedure.

The Memorandum just provides for:

[t]he Bangsamoro homeland and historic territoryrefer to the land mass as well as the maritime,terrestrial, fluvial and alluvial domains, and the aerialdomain, the atmospheric space above it, embracing theMindanao-Sulu-Palawan geographic region.

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In proceeding to make a sweeping declaration onancestral domain, without complying with the IPRA,which is cited as one of the term of reference (TOR) ofthe MOA-AD, the government of the Republic of thePhilippines clearly went out of bounds of itsauthority.

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SECTION 51. Delineation and

Recognition of Ancestral Domains. Self-delineation shall be the guiding principle in the

identification and delineation of ancestral domains. As such, theICCs/IPs concerned shall have a decisive role in all the activitiespertinent thereto. The Sworn Statement of the Elders as to the

scope of the territories and agreements/pacts made withneighboring ICCs/IPs, if any, will be essential to thedetermination of these traditional territories. The Governmentshall take the necessary steps to identify lands which theICCs/IPs concerned traditionally occupy and guarantee effectiveprotection of their rights of ownership and possession thereto.

Measures shall be taken in appropriate cases to safeguard theright of the ICCs/IPs concerned to land which may no longer beexclusively occupied by them, but to which they havetraditionally had access for their subsistence and traditionalactivities, particularly of ICCs/IPs who are still nomadic and/orshifting cultivators.