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SOMEONE ELSE’S WINDOWS: Of rights and obligations: the Mount Magdiwata Watershed

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MALAYBALAY CITY (MindaNews / 7 June) – There’s one interesting, if worrying, thing about the news report written by Chris V. Panganiban titled “Agusan water district rejects Lumad group’s claim over watershed area” (MindaNews, 4 June 2024). It’s the statement of San Francisco Water District (San Francisco, Agusan del Sur) general manager Elmer Luzon that the processing of the ancestral domain claim application of the Oyay Mansaloay Antod Ogow Bando Ugong (OMAUBAO) Tribal Clan Organization is being funded by a mining company, AbaCore.

AbaCore, according to the report, is applying for a mining exploration permit that covers the buffer zone of the 1,658-hectare Mount Magdiwata Watershed, which is part of OMAUBAO’s 7,680-hectare claim. The water district is opposing the claim for fears that it would lead to the destruction of the watershed, the town’s source of household water supply.

There is no provision in the Indigenous Peoples Rights Act that explicitly prohibits mining companies, or any entity for that matter, from supporting and/or funding ancestral domain claims. Besides, in a situation where the implementation of the IPRA in general, and the processing of ancestral domain claims in particular, isn’t a priority, who can blame the Indigenous Peoples for biting the bullet?

Nonetheless, the intervention of a mining interest should be a cause for concern especially if the claim covers a watershed and other ecologically significant areas. For, while applying for a Certificate of Ancestral Domain Title is a legitimate right, the IPRA being a means to correct the historical injustices done against the Indigenous Peoples, so are the rights of the general population to a healthful ecology and sustainability of water sources.

Datu Hag-um Bardo Bando, a leader of OMAUBAO and a town councilor, told San Francisco Mayor Grace Carmel Paredes-Bravo that the recognition of their claim by the National Commission on Indigenous Peoples “terminates any legal basis for jurisdiction previously claimed by the Department of Agrarian Reform and other government agencies over the ancestral domain” as per Section 52 of IPRA.

Bando, however, cited Section 52 in isolation from the other provisions. The IPRA provides for rights as well as obligations on the part of the Indigenous Peoples.

For instance, while Section 3(o) recognizes traditional resource rights, it provides that such rights shall be exercised in a sustainable manner.

Section 7(b) provides for, among others, “the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and conservation measures, pursuant to national and customary laws.” [underscoring mine] If it’s true as Luzon said that AbaCore is financing the CADT processing of OMAUBAO, and the Lumad group has arrived at an agreement with the mining firm, it’s worth knowing if the terms and conditions include this condition set by the IPRA.

Section 7(g) says the Indigenous Peoples may “claim parts of the ancestral domains which have been reserved for various purposes, except those reserved and intended for common public welfare and service.” Clearly, the watershed belongs to this exception, as its protection would ensure steady water supply in San Francisco. In fact, it was set aside as a forest reserve through Proclamation No. 282 issued by President Fidel V. Ramos on 25 October 1993.

The IPRA itself affirms the responsibilities of Indigenous Peoples occupying a duly certified ancestral domain “to preserve, restore, and maintain a balanced ecology in the ancestral domain by protecting the flora and fauna, watershed areas, and other reserves” (Section 9a), and “to actively initiate, undertake and participate in the reforestation of denuded areas and other development programs and projects subject to just and reasonable remuneration (Section 9b).

In addition, Section 58 provides that “ancestral domains or portions thereof, which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by appropriate agencies with the full participation of the ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of government agencies.”

It means that even if the watershed could not be excluded from the claim, the purpose for which it was declared as a forest reserve shall prevail over any other intent on the part of the claimants. This is a clear example that laws are a product of compromise. The IPRA isn’t an exception.

(MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at hmcmordeno@gmail.com.)

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