Registration under the Indigenous Peoples

Rights Act

Evelyn M. Delos Santos

for Land, Titles and Deeds Atty. Rama

IPRA of 1997

October 29, 1997, RA 8371

An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/

Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds

Therefor, and for Other Purposes

CONSTITUTIONAL PROVISIONS

SECTION 2, ARTICLE II

SECTION 5, ARTICLE XII

SECTION 6, ARTICLE XIII

SECTION 17, ARTICLE XIV

SECTION 2 ARTICLE II

The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

SECTION 5 ARTICLE IIThe State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary law governing property rights or relations in determining the ownership and extent of ancestral domain.

SECTION 6 ARTICLE XIII

The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration into the mainstream of society.

SECTION 17 ARTICLE XIV

The State shall recognize, respect, and protect the rights of indigenous cultural communities to prepare and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.

CONSTITUTIONALITY OF THE IPRA

Cruz vs. Secretary of Environment

and Natural Resources GR No. 135385. December 6, 2000

Principal Contention of Petitioners

That the statute violated the Constitution for allowing absolute control to the indigenous people over their so called ancestral domains. This grant contravened the constitutional vesture in the State of ownership of all natural resources and full control and supervision of their exploration, development and utilization.

They likewise contend that providing an all-encompassing definition of ancestral domain and ancestral lands which might even include private lands within the areas violate the rights of private land owners.

Respondents and Intervenors:

That Art. XII Sec. 2 of the Constitution did not cover the ancestral domains because they were not public lands but had been owned by the indigenous peoples since time immemorial. Title had vested in the various tribes as traditional owners even before the adoption of our past and present charters and could not be revoked by the said provision.

The respondents and intervenors, for their part, argued that the indigenous people were being unjustly deprived of the benefits they deserved under the law and so were entitled to the protection of the Court.

DECISION

The votes of the Court are split where 7 voted to dismiss the petition and 7 voted to grant. As the votes were equally divided and the necessary majority was not obta ined, the pet i t ion was dismissed.

RULE 56 Sec. 7. Procedure if opinion is equally divided.

IPRA IS A NOVEL PIECE OF LEGISLATION

Senator Juan Flavier, Senate Bill No. 1728

IPs survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it.

Native Title concept; Parens patriae principle

Rep. Zapata, House Bill No. 9125 (Rep. Andolana originally authored the bill)

INDIGENOUS PEOPLES RIGHTS ACT / RA 8371

The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples as a distinct sector. It grants these people the ownership and possession of their ancestral domains and ancestral lands, and defines the extent of these lands and domains. Within their ancestral domains and lands the ICCs/IPs are given the right to self-governance and right to preserve their culture. To carry out the policies of the ACT, the law created the National Commission on Indigenous Peoples (NCIP)

INDIGENOUS PEOPLES

Indigenous Cultural Communities or Indigenous Peoples (ICCs/ IPs) refer to a group of people who have continuously lived as an organized community on communally bounded and defined territory. These groups of peoples have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial.

JUSTICE PUNO: DEVT. OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM

LAW OF INDIES

VALENTON vs MURCIANO

PUBLIC LAND ACTS AND THE TORRENS SYSTEM

THE PHILIPPINE CONSTITUTIONS

CONCEPT OF REGALIAN DOCTRINE

This principle means that all natural wealth - agricultural, forest or timber, and mineral lands of the public domain and all other natural resources belong to the State. Thus, even if the private person owns the property where minerals are discovered, his ownership for such does not give him the right to extract or utilize said minerals without permission from the state to which such minerals belong.

Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral includes ownership, but this ownership is expressly defined and limited in Section 7 (a) as:

Sec. 7. a) Right of ownership --- The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;

The ICCs/IPs are given the right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains. It will be noted that this enumeration does not mention bodies of water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the traditional fishing grounds, forest or timber in the sacred places, etc. and all other natural resources found within the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not cover waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forest, or timber, wildlife, flora and fauna and all other natural resources enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7 (a) complies with the Regalian doctrine.

IPRA defines ancestral domains to include natural resources found therein. but this does not convert the character of

such natural resources as private property of the IPs.

The phrase private but community poperty is merely descriptive of the IPs concept of ownership different from the definition of ownership in Civil Code.

Management or stewardship only of the natural resources.

Ownership over the natural resources belong to the State.

that ancestral domains and all resources found therein shall serve as the material bases of their cultural integrity.

that these ancestral domains are the ICCs/IPs private but community property which belongs to all generations therefore cannot be sold, disposed or

destroyed. covers sustainable traditional resource

rights.

Indigenous concept of ownership the property held in common is meant to

benefit the whole indigenous community and not merely the individual member.

owned in common by the ICCs/IPs and not by one particular person.

Communal rights are held in trust for all generations of the ICCs/IPs, past, present and future.

The domain cannot be transferred, sold or conveyed to other persons by any one person and belongs to the ICCs/IPs as a community.

IPRA connotes group or communal ownership Section 57answered by J.Puno

Section 57 of the IPRA does not give the ICCs/IPs the right to manage and conserve the natural resources. Instead, the law only grants the ICCs/IPs priority rights in the development or exploitation thereof. Priority means giving preference. Having priority rights over the natural resources does not necessarily mean ownership rights. The grant of priority rights implies that there is a superior entity that owns these resources and this entry has the power to grant preferential rights over the resources to whosoever itself chooses.

They have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains.

A non-member of the ICCs/IPs may be allowed to take part in the devt. and utilization of the natural resources for a period of not exceeding 25 years renewable for not more than 25 years.

Formal and written agreement is entered into with the ICCs/IPs concerned, or that the community, pursuant to its own decision making process, has agreed to allow such operation.

ICCs/IPs have priority rights in the exploitation of natural resources within ancestral domains

Not affected by voluntary dealings entered into by the govt. and private individuals/corporations.

Timber License Agreement No. 43 in 1952 did not affect the possession or occupation by ICCs/IPs over the area covered by the Agreement.

Forest Land Grazing Lease Agreement No. 542 was cancelled since it was issued in violation of PD 410

PD 410 (DECLARING ANCESTRAL LANDS OCCUPIED AND CULTIVATED BY NATIONAL CULTURAL COMMUNITIES AS ALIENABLE AND DISPOSABLE, AND FOR OTHER PURPOSES)

ICCs/IPs do not lose possession over area covered by a TLA

Justice Kapunan: THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION

Ancestral Domains and Ancestral Lands are the Private Property of the Indigenous Peoples and do not constitute Part of the Land of Public Domain

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs since time immemorial, continuously until the present except when interrupted by war or force majeure. It comprises of lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pastures, hunting grounds, burial grounds, and bodies of water, mineral and other natural resources.

Ancestral lands are lands held by the ICCs/ IPs under the same conditions as ancestral domains except that these are limited to lands, not merely occupied and possessed but are also utilized, including residential lots, rice terraces, or paddies, private forests.

Justice Kapunan: CARINO VS INSULAR GOVT.

On June 23, 1903, Mateo Cario went to the Court of Land Registration to petition his inscription as the owner of a 146 hectare land hes been possessing in the then municipality of Baguio. Mateo only presented possessory information and no other documentation. The State opposed the petition averring that the land is part of the US military reservation. The CLR ruled in favor of Mateo. The State appealed. Mateo lost. Mateo averred that a grant should be given to him by reason of immemorial use and occupation.

The US SC ruled in favor of Carino and ordered the registration of the subject lands in his name. The court laid down the presumption of a certain title held as far back as memory went and under a claim of private ownership. Land held by this title is presumed to never have been public land. The registration requirement was not to confer title, but simply to establish it. In a nutshell, Cario enunciated the legal presumption that ancestral lands and domains were not part of the public domain, having maintained their character as private lands of the indigenous peoples since time immemorial

Justice Kapunan: THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION

Native title refers to ICCs/IPs preconquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest.TIME IMMEMORIAL - refers to a period of time when as far back as memory can go, certain ICCs/IPs are known to have

occupied, possessed in the concept of owner, and utilized a defined territory devolved to them by

operation of customary law or inherited from their ancestors, in accordance with their

customs and traditions.

DELINEATION AND RECOGNITION OF ANCESTRAL DOMAINS

Under RA 8371, it is the guiding principle in the identification and delineation of ancestral domains.

The govt. shall take necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto.

Principle of Self-Delineation

DELINEATION AND RECOGNITION OF ANCESTRAL DOMAINS

Upon filing, ADO shall immediately undertake official delineation of ancestral domain boundaries including census of all community members therein.

1. Filing of the application by the ICCs/IPs

Proofs requiredProof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners.

1.Written accounts of the ICCs/IPs customs and traditions;2.Written accounts of the ICCs/IPs political structure and institution;3.Pictures showing long term occupation such as those of old

improvements, burial grounds, sacred places and old villages;4.Historical accounts, including pacts and agreements concerning

boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;5.Survey plans and sketch maps;6.Anthropological data;7.Genealogical surveys;8.Pictures and descriptive histories of traditional communal forests and

hunting grounds;9.Pictures and descriptive histories of traditional landmarks such as

mountains, rivers, creeks, ridges, hills, terraces and the like; and10.Write-ups of names and places derived from the native dialect of the

community.

which shall be any one (1) of the following authentic documents:

complete with technical descriptions, and a description of the natural features and landmarks embraced therein.

The approved and validated survey plan of the ancestral domain claim and the petition for delineation shall constitute the basic documents of the delineation process.

2. ADO shall prepare a perimeter map

A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least 15 DAYS.

A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP and

shall be published in a newspaper of general circulation once a week for 2 consecutive weeks to allow other claimants to oppose thereto within 15 days from date of such publication.

Broadcasting in a radio station if no newspaper available.

3. Posting and Publication Within 15 days from publication, and of the inspection

process, ADO shall prepare a report endorsing favorable action upon a claim that is deemed to have sufficient proof.

If the proof is deemed INSUFFICIENT, ADO shall require the submission of addl evidence.

In case of rejection of claim deemed patently false (after inspection and verification) ADO shall give the applicant due notice, copy furnished all concerned, containing grounds for denial.

4. ADO shall submit a report to the NCIP Denial shall be appealable to the NCIP. In case of conflicting claims, ADO shall cause the

contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the Section 62 of the IPRA.

..ADO shall submit a report to the NCIP

NCIP shall issue CADT to ICCs/IPs whose ancestral domains have been officially delineated and determined.

CADT is issued in the name of the community concerned containing a list of all those identified in the census.

The Director of the Lands shall represent the interest of the Republic of the Philippines in all proceeding for the purpose of identification / delineation of the ancestral domains.

5. Issuance of Certificate of Ancestral Domain Title (CADT)

IDENTIFICATION, DELINEATION AND CERTIFICATION OF ANCESTRAL LANDS

The claimants shall file application with ADO complete with proofs of such claims.

1. Filing of the application

Allocation of lands to individual or indigenous corporate (family/clan) claimants shall be left to the ICCs/IPs concerned to decide in accordance with customs and traditions. Others who claim of ancestral lands which are not within ancestral domains may have their claims filed with ADO.

ADO shall publish the application and a copy of each document shall be submitted including the translation in the native language of the ICCs/IPs concerned in the prominent place for at least 15 days.

A copy shall also be posted at the local, provincial and regional offices of the NCIP

shall be published in a newspaper of gen. circulation once a week for 2 consecutive weeks to allow others to oppose.

Broadcasting in a radio station if no newspaper

2. Publication of application

15 days after such publication If found to be meritorious, ADO shall cause a

parcellary survey of the area being claimed. Reject any claims patently false. In case of rejection of claim deemed patently

false (after inspection and verification) ADO shall give the applicant due notice, copy furnished all concerned, containing grounds for denial.

Denial shall be appealable to the NCIP.

3. ADO shall investigate and inspect application on each and every application surveyed and delineated to the NCIP,

NCIP shall evaluate the report submitted

4. ADO shall prepare and submit a report

declaring and certifying the claim of each individual or corporate claimant over ancestral lands.

ADO may review existing claims which are fraudulently acquired, and cancel such after due notice and hearing of all parties concerned.

5. NCIP issues Ancestral Land Title (CALT)

REGISTRATION OF CADTs and CALTs The NCIP, through ADO, shall register all CADTs

and CALTs with the Register of Deeds of the place where the properties are located.

Awardees may opt to personally cause such registration.

Ancestral Domains - No part of ancestral domain is alienable.

Ancestral Lands- May be the subject of registration under Public Land Act or Property Registration Decree.

MODES of ACQUISITION By native title over both ancestral lands and

domains; or By Torrens Title under the Public Land Act or

Property Registration Decree with respect to ancestral lands only.

Acquisitive Prescription Under Public Land Act pertains to public agricultural land The land ceases to be part of public domain

automatically and is converted to private property by mere lapse or completion of the prescribed statutory period.

IPRA converts ancestral land as public agricultural land for registration purposes

Under Public Land Act pertains to public agricultural land The land ceases to be part of public domain

automatically and is converted to private property by mere lapse or completion of the prescribed statutory period.

The registration of ancestral lands differ from regular registration proceedings.

the applicant is a member of an indigenous cultural group;

he must have been in possession of an individually-owned ancestral land for not less than 30 years, and

by operation of law (IPRA), the land is already classified as alienable and disposable land, even if it has a slope of 18% or over, hence there is no need to submit a separated certification that the land has been classified as A and D land.

Transfer of land or property rightsLimitations:

only to members of the same ICCs/IPs; in accord with customary laws and traditions subject to the right of redemption of the ICCs/IPs

for period of 15 years if transferred to nonmember of the ICCs/IPs.

Generally, no ancestral land shall be opened for mining operations.

No ancestral lands are declared as peoples small-scale mining areas.

Both need prior consent of ICCs PEZA authority to issue building permits.

NATIONAL COMMISSION ON INDIGENOUS PEOPLE under OP; 7 commissioners from ICCs as

representativesSpecific powers Formulation of policies, issuance of rules and

regulations. Resolution of conflicts Issuance of CADT/CALT Cancellation of ancestral domain and ancestral land

titles. Issuance of certification as a precondition to the

grant of permit Power to cite for contempt, issue restraining order

NATIONAL COMMISSION ON INDIGENOUS PEOPLERegional Hearing Offices shall exercise jurisdiction over all claims and disputes

involving right of ICCs/IPs and all cases pertaining to the implementation, enforcement and interpretation of RA No. 8371.

Ancestral Domain Office shall be responsible for identification, delineation and

recognition of ancestral lands and domains.

Thank you.