When I last met Jomorito Guaynon in February 2018, he sat stoically across from me at a corner table in a Cagayan de Oro Krispy Kreme, compulsively fidgeting with his straw and speaking with a disarming, even casual, tone for a targeted man.

Guaynon heads Kalumbay, a regional organisation of Lumads—a catch-all Visayan term for Mindanao’s indigenous community. As an advocate, he’s been subjected to harassment, threats, a 2015 double murder charge (quickly dropped) which he described as “trumped up”, and an attempt to scare him out of his position as Kalumbay’s leader.

So it wasn’t surprising when, in July 2018, he was arrested in Mindanao along with 12 other environmental defenders during a regional development conference. This is not an uncommon occurrence in Mindanao, where Lumads and the Philippine government have circled each other with mutual suspicion and disdain for decades.

The government often accuses prominent Lumads of being affiliated with the New People’s Army (NPA), a communist guerrilla unit which has long recruited Lumads to its ranks. Such claims were described by UN Special Rapporteurs Cecilia Jimenez-Damary and Victoria Tauli-Corpuz in a 2017 statement as “unfounded suspicions that Lumads are involved with militant groups”. Tauli-Corpuz, an Igorot indigenous activist from Luzon tasked with investigating violations to indigenous rights and upholding international standards, was forced to flee the country after being linked by the government to banned leftist groups—a charge she denies.

Lumad leaders say these accusations serve as excuses to forcibly displace communities from their ancestral lands, clearing the way for mining and agricultural development on their resource-rich island. “The government gives authority to the military, police, and foreign investors,” Guaynon says.

Investors argue that Lumads are sitting on a financial windfall and will benefit from economic liberalisation. For Lumads, however, the land and the resources which stem from it are inseparable from their culture and values

Under President Rodrigo Duterte, the Philippine Congress is debating several proposals to rewrite the country’s constitution, ratified in 1987 after the downfall of former dictator Ferdinand Marcos. The alterations, often referred to as “charter change” (or “cha-cha”), hinge upon a shift to federalism which would give more legislative power to regional governments. Past presidents Fidel Ramos and Gloria Arroyo tried to push through their own attempts at charter change, all of which were met with heavy public opposition. The Duterte administration’s constitutional alterations, meanwhile, have passed a second congressional reading and are getting closer to becoming enshrined in law.

Many proponents of cha-cha, including Duterte himself, see the elimination of a provision, commonly known as the “60-40 law,” as crucial. The provision limits foreign corporations to a 40% ownership stake in certain sectors—including extractive industries in resource-rich Mindanao. They say allowing outside investors to partake in the country’s rapid economic growth would bring much needed development to the country’s poorest province.

“The mining sector has been closed for quite a while because of the 60-40 provision,” says Kent Primor, a researcher at Australian National University’s Philippines Project. While large-scale mining is excluded from the provision, foreign investors have long been scared off by regulatory volatility in the Philippines. Primor argues that developing mining along with Mindanao’s main economic engine, agriculture, would benefit Lumads by generating jobs and providing key infrastructure. “Liberalising these sectors,” he says, “would play in their best interest.”

But many Lumads fear the changes would worsen the conflict that’s always seems to follow industrial development into their communities. “When corporations come, that’s when human rights violations exist,” says Guaynon, adding that the proposal to eliminate 60-40 “would legalise exploitation, legalise land grabbing, and expedite these violations.” Such a change, Guaynon argues, would give too much power to local rulers with long histories of shady business dealings with investors. It would also allow foreign investors to pump more money directly into extractive industries with little input from the local community.

Investors argue that Lumads are sitting on a financial windfall and will benefit from economic liberalisation. For Lumads, however, the land and the resources which stem from it are inseparable from their culture and values. Together, they provide the spiritual genesis of Lumad life.

The Duterte effect

When Rodrigo Duterte rose to power, he claimed he would make peace with the Moro Muslims of southwestern Mindanao, the NPA, the Communist Party of the Philippines (CPP), and the archipelago’s indigenous communities. Many Lumad communities backed the populist candidate during his 2016 presidential run.

“We supported Duterte. I supported Duterte, too,” says Jong Monzon, Secretary General of PASAKA, a tribal group in southern Mindanao. “But now, we want him out of the presidency.” Two years after casting his vote for Duterte, Monzon now calls him “berdogo” or “fascist.”

Duterte implemented martial law in Mindanao in response to the 2017 ISIS siege of Marawi, which lasted for five months and left over 1,000 dead. When military rule was maintained through the end of 2018, it drew concern from rights groups, along with Lumads wary of the military presence. Despite this, martial law has since been extended through the end of 2019.

Throughout 2018, the military has initiated forced evacuations of Lumad communities, leaving thousands of Lumads displaced. Duterte has threatened to bomb Lumad schools, calling them breeding grounds of radicalism. The president also made headlines by offering bounties to Lumads willing to take up arms and kill suspected NPA members.

Factionalism among Lumads is nothing new. Lumad paramilitary groups such as the Alamara allegedly receive arms and resources from the military to “harass other Lumads so it doesn’t look like the military themselves are doing it,” says Kalumbay’s Guaynon. “It will look like tribal war. It looks like Lumad against Lumad.”

Some Lumads, says Guaynon, have collaborated with investors since logging concessions entered the island during the reign of President Marcos in the late 1970s, offering money to those who allowed development on their ancestral lands. “These Lumads who accepted the rewards, they still exist,” he says.

Unprotected by indigenous rights law

Guaynon and many of his contemporaries say constitutional change will give the government more leeway to claim Lumad lands for development. In February, Duterte told an audience of Lumad leaders that he would invite corporations with mining and plantation investments to develop their ancestral lands.

Primor, who previously worked with the Chamber of Mines of the Philippines, an interest group for large-scale miners, says that the 1995 Philippine Mining Act—which commands large-scale mining investors to deal directly with inhabitants of the land in question—can sufficiently protect the rights of indigenous people when they decide whether they wish to allow industrial interests access to their land.

“If the proposed federal constitution allows 100% equity in foreign operations, foreign corporations cannot ‘gold rush’ as they must secure free and prior informed consent [from indigenous people],” says Primor. “If they say they want their land untouched, then so be it.”

But Owen Migraso, executive director of the Manila-based Center for Environmental Concerns (CEC), says in an email that the Free and Prior Informed Consent (FPIC) principle is often “violated” to push through mining and agriculture projects even when communities object to them. This happens “through false representation of community leaders and lack of actual consultation” along with “false promises by the NCIP [National Commission on Indigenous Peoples] during consultations,” he says.

“If the 1995 Mining Act is a good law,” asks Migraso, “then why are the mining communities still impoverished?”

He adds that a series of executive orders which allow armed “Investment Defense Forces” to protect mining sites has led to communities becoming “militarised.” In 2008, President Arroyo mobilised the military to protect mining areas in Mindanao. In 2012, President Benigno Aquino III signed Executive Order No. 79, which gave police and military the authority to provide security at mining sites and prevented local councils from passing anti-mining laws. The Chamber of Mines praised the policy, saying it would encourage investment in the country’s mining sector.

“In hindsight,” said Primor, “I believe [security at mining sites] has not affected the legitimate operations of large-scale mining companies.”

Lumads who oppose development can ostensibly file for a Certificate of Ancestral Domain Title under the 1997 Indigenous People’s Rights Act (IPRA), but often run into barriers. Many Lumads lack documentation proving that they’ve occupied the land since “time immemorial”—as per the language of the IPRA—or lost their documents after filing with the government decades ago.

The term “ancestral domain” is used by the Philippine government to describe land traditionally used by indigenous people, who themselves see land as indivisible from its resources. The IPRA grants indigenous inhabitants the right to use the resources within their domain and make claims on ancestral lands, or areas claimed by individuals, families, or clans. However, the domain rights granted to indigenous groups differ from the concept of ownership enshrined in Philippine law—ancestral domain cannot be sold or disposed of, although it can be transferred between members of the same indigenous group.

This means that indigenous groups do not have full “ownership” of their territorial domain. After all, about 65% of the Philippines are covered by ancestral domains. Indigenous people are thus constrained within legal ownership paradigms when encountering investors—and critics have argued that the IPRA does not go far enough in recognising indigenous definitions of what it means to inhabit land.

“The IPRA is being used as a tool to capture and legally exploit the ancestral territories,” says Pya Malayao, Secretary General of Katribu, a Manila-based indigenous coalition.

“The National Commission on Indigenous Peoples should be governed by Lumads themselves who see ancestral domains as sacrosanct for the Lumads, not something that the [council] is empowered to parcel out,” says Carlos Conde, an Asia researcher for Human Rights Watch.

“It should function more like a gatekeeper than a facilitator,” he says. While indigenous officials serve on the commission, its national and regional commissioners often come into conflict with the interests of Lumads and other indigenous groups. Now, says Conde, the commission “helps facilitate exploitation of the Lumad.”

Cha-cha: A tool of liberalisation or exploitation?

Duterte’s consultative committee (ConCom), tasked with exploring revisions to the 1987 Constitution, ultimately recommended in July 2018 that the government be revamped into a federalist system. ConCom’s draft proposal didn’t include the removal of the 60-40 provision, a change Duterte supports, but industry leaders insist that an easing of foreign investment restrictions is necessary to make the Philippines’ natural resource trade competitive with its fellow ASEAN states.

Unless 60-40 is repealed, Primor says the proposed constitution “will not address the concerns of the broader community [as] there are less investments coming in because of restrictions in the constitution itself.”

The Philippine mining industry “is untapped” at present, Primor says. Although the Philippines is the world’s fifth-most mineral-rich country for gold, nickel and copper, mining contributes to just 0.6% of the country’s GDP. Only 2% of the industry’s US$1.4 trillion potential is currently realised, Primor says, making mining unpopular among Filipinos who do not see its economic benefits.

Removing restrictions on foreign investments would boost Duterte’s plans to cultivate an additional one million hectares of palm oil plantations by 2023… but a constitution which increases foreign investment and local control over governance could leave Lumads vulnerable

Removing restrictions on foreign investments would also boost Duterte’s plans to cultivate an additional one million hectares of palm oil plantations by 2023, with Malaysian, Indonesian and Singaporean firms eager to invest in Mindanao’s fertile farmlands.

But a constitution which increases foreign investment and local control over governance could leave Lumads vulnerable, according to Conde. “The government needs to have a more robust system in place to help them,” he explains. “What is happening, however, is you have the government and its instrumentalities in cahoots with extractive industries.”

Even if the 60-40 investment provision isn’t repealed, Lumad leaders worry that a shift towards federalism would, as Migraso of CEC puts it, further empower “dynastic” political families “in collusion with extractive industries.”

“Lumad lands are the first to be parcelled out by governments and politicians,” says Conde. “Any change in the constitution that allows politicians to hold stronger sway over Lumad lands increases the threat against the Lumads.” The marginalised status of Lumads, he says, has always been spurred by “the empowerment of politicians with vested interests and their complicity with local state forces to use force and violence.”

Joseph Paborada, the leader of an organisation named Pangalasag, or “Indigenous Shield,” made an ancestral land claim via the IPRA in 2002 only for the government to allow agribusiness giant A. Brown Corporation Inc. to set up palm oil plantations on their land that same year.

The long-running dispute turned uglier in October 2017 when the mayor of Opol, a town just west of Cagayan de Oro, invited Paborada to a “dialogue” attended by military officers and local NCIP representatives. “The mayor asked us to harvest the land for palm oil and sell it to A. Brown,” he says. Days after he refused, he claims that military commanders came to his home and threatened to kill his children.

“We wanted to plant rice, corn, banana, coconut, and other edible foods. That’s what we wanted—not palm oil,” he says. “This is what happens behind the fruits we eat.”

Mindanao remains deadly for environmental defenders

Karapatan, a rights group based in the Philippines, said in July 2018 that it had recorded at least 63 killings of environmental defenders in 2017. The Kalikasan People’s Network for the Environment says 46 of those killed were based in Mindanao. Both Guaynon and Paborada know of fellow activists who have been killed—Paborada’s own brother, Gilbert, was killed by an assassin in 2012.

“These killings are not good for investment decisions,” says Primor. He questioned whether Filipinos were checking the validity of reports or analysing the true motives of the killings, citing the country’s recent scourge of “fake news”.

Karapatan says the real number of killings may be even higher. Monzon of PASAKA agrees, adding that many atrocities committed against Lumads “cannot be exposed to social media because it’s too far from the city.”

Following his arrest in July this year, Guaynon has since been released and has returned to his position as chair of Kalumbay. “Despite the harassments and threats,” says a source close to Guaynon who asked not to be named as she fears retribution for her association with indigenous activism, “he is still firm with his principles.”

“I would understand if I put myself in [Lumads’] shoes,” says Primor. “If I’m not getting my share, then what will I feel? I’ll feel like I’m being robbed.”

Rather than placing governmental restrictions on investors in extractive industries, Primor says the creation of a “business friendly environment” in Mindanao would alleviate the concerns of Lumads who feel their ancestral lands are being exploited, by allowing them to become parties to industrial development which would bring wealth to their communities.

Young Lumads are taught by their elders to revere their creator and to worship nature and the land from which all life originates. They thus have an attachment to their ancestral lands which will never square with the visions of investors eager to extract their considerable natural resources

Malayao of Katribu says her organisation would support a cha-cha containing a provision— more robust than the language in the IPRA—which “recognises and protects our collective rights to our ancestral land and self-determination”, truly allowing Lumads to plan their own economies from the ground up.

But some Lumads, such as Monzon, say they would prefer it if they were simply left alone. “We can manage in our community,” he says. “We have free water, free schools. We have markets, we have jungles. We have medicine in the mountains.”

To Paborada, the spiritual value of the land is impossible to quantify. Young Lumads are taught by their elders to revere their creator, Manama, and to worship nature and the land from which all life originates. They thus have an attachment, intangible and ethereal, to their ancestral lands which will never square with the visions of investors eager to extract their considerable natural resources.

“We get medicine from the forest. We get food. Everything is in the forest, in the land,” he says. “We do rituals to Manama, our creator, for good luck, for good harvest, to keep crops away from insects.”

“The land is life.”

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Nick Aspinwall is a journalist based in Taipei and an editor-at-large for The News Lens. He reports on migration, the environment, labor rights, and the human consequences of regional geopolitics.

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