On “Paradigm Shifts” in International and Philippine Law Regarding the Treatment of Indigenous Peoples.pdf

8/14/2019 On Paradigm Shifts in International and Philippine Law Regarding the Treatment of Indigenous Peoples.pdf

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On Paradigm

Shifts inInternational

and Philippine

Law Regarding

the Treatment of

Indigenous

Peoples

And how these

affect Ancestral

Land Rights inthe Cordillera

Janice Marie N.

Domogan


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In recent years, there have been significant and milestone

breakthroughs in the numerous issues and concerns of indigenous people

both locally and internationally.

This paper will focus mainly on the indigenous peoples in the Cordillera

Administrative Region and their ancestral land rights, how the processing and

disposition of ancestral land claims affect the government and the community

at large.

The Cordilleran Indigenous Peoples

Numerous ethno linguistic groups have occupied the Cordillera region

for more than five centuries. They have developed self-governing

communities that are politically and economically independent from each

other. Collectively, they are called Igorot.

The major ethnolinguistic groups are divided into the Isneg of Apayao,

Itneg Tingguian of Abra, Kalinga, Bontok, Ifugao, Kankana-ey, and Ibaloy.

Other groups asserting their ethnic identities include the Kalanguya (Ikalahan,

Ikadasan), Ikarao, and Bago. These mountain people defied Spanish

colonization for more than three centuries, and many continued to benefit

from their relative autonomy in running their local community resources

through their socio-economic and political institutions under American

colonial rule, and even into the Philippine Republic.

Accordingly, Filipinos who did not fall under colonial rule - such as the

indigenous peoples of the Cordillera and other non-Hispanicized Filipinoswho were not absorbed into the mainstream Philippine society - have been

referred to under a number of designations such as non-Christian, pagan,

tribals, natives, cultural minorities, cultural communities, and the current,


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more acceptable terms indigenous peoples or indigenous cultural

communities1.

Developments in Indigenous Land Rights Internationally

There was a paradigm shift in international policies with regard to the

rights of indigenous peoples.

Policies in past decades which focused on assimilation of indigenous

peoples into the mainstream have been replaced by the recognition ofindigenous peoples right of self-determination in consonance with other

international conventions on human rights. This is what is advocated inInternational Labour Convention No. 169 (ILO Convention 169) which also

recognizes indigenous peoples rights of ownership and possession over lands

which they customarily occupy.

On September 13, 2007, by a vote of 143 in favor to 4 against2, with 11

abstentions, the United Nations General Assembly adopted the United NationsDeclaration on the Rights of Indigenous Peoples, which sets out the individual

and collective rights of the worlds 370 million native peoples, calls for the

preservation and strengthening of their cultural identities, and underlines

their right to pursue development in keeping with their own needs and

aspirations3.

1June Prill-Brett, Preliminary Perspectives on Local Territorial Boundaries andResourceControl, CSC Working Paper No. 06. Baguio, Philippines:Cordillera Studies Center,

University of the Philippines, 1988.

2Namely Australia, Canada, New Zealand and the United States, who have now apparently

reversed their previous positions.

3http://www.un.org/News/Press/docs/2007/ga10612.doc.htm
http://www.un.org/News/Press/docs/2007/ga10612.doc.htmhttp://www.un.org/News/Press/docs/2007/ga10612.doc.htmhttp://www.un.org/News/Press/docs/2007/ga10612.doc.htmhttp://www.un.org/News/Press/docs/2007/ga10612.doc.htm


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Although the United Nations Declaration on the Rights of Indigenous

Peoples is said to be a non-binding text4, it does have reaching practical and

legal implications.

The United Nations Declaration on the Rights of Indigenous Peoples is

said to be a reiteration of already existing rights in the context of indigenous

peoples, and having been overwhelmingly adopted by the General Assembly,

should be complied with in good faith5.

While the United Nations Declaration on the Rights of Indigenous

Peoples is not a legally binding instrument upon the member states of the

United Nations, it sets an important standard for the treatment of indigenouspeoples that will undoubtedly be a significant tool towards eliminating human

rights violations against the planets 370 million indigenous people and

assisting them in combating discrimination and marginalization, according to

representatives of the UN.

4It has long been recognized in international practice that governments may see eye to eye

on joint statements of policy or intention that do not establish legal obligations. In recent

decades, this has become a common means of announcing the results of diplomatic

exchanges, stating common positions on policy issues, recording their intended course of

action on matters of mutual concern, or making political commitments to one another.

These documents are sometimes referred to as non-binding agreements, gentlemen's

agreements, joint statements or declarations. The title of the document is not

determinative as to whether it establishes legal obligations, but rather the intention of the

parties, as mirrored in the language and framework of the document, the circumstances of

its conclusion, and the explanations given by the parties.http://www.state.gov/documents/organization/65728.pdf

5 Sedfrey M. Candelaria, Comparative analysis on the ILO Indigenous and Tribal Peoples

Convention No. 169, UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the

Indigenous Peoples Rights Act (IPRA) of the Philippines; Manila: International LabourOrganization, 2012.
http://www.state.gov/documents/organization/65728.pdfhttp://www.state.gov/documents/organization/65728.pdfhttp://www.state.gov/documents/organization/65728.pdf


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The Declaration likewise makes a forward leap on the prickly issue of

land and resource rights. The essential idea is that indigenous peoples have

the lawful and unlimited right of ownership of their lands, waters and all

related resources. This provision would, if implemented, stop the innumerable

legal fictions and prejudiced devices which in almost all countries have beenused to refuse indigenous peoples the full, legal ownership of their territories

and resources. The matter of rights to land is expressed two times, first in

language reflecting indigenous values and relationships and then in more

legalistic language6.

Development of Philippine Legal Framework involving Indigenous

Peoples

The advance regarding how indigenous peoples are treated within a

certain legal framework has also gone through the same paradigm shift as the

international community.

There have been significant legal developments pertaining to the rights

and interests of indigenous peoples, who were, at first regarded as peoples

with low civilization and incapable of self-protection and governance and who

needed gargantuan state interference in order that their interests be

protected7.

6Robert T. Coulter, Commentary on the Commentary on the UN Draft Declaration on the

Rights of Indigenous Peoples,www.culturalsurvival.org/publications/cultural-survival-

quarterly/united-states/commentary-un-draft-declaration-rights-

indige#sthash.xfF4Vhyi.dpuf.

7 Case and point, the Decision in Rubi v. Provincial Board of Mindoro, G.R. No. L-

14078, March 7, 1919 where a group of Manguianes lamented their confinement against

their will in a reservation at Tigbao, Mindoro by virtue of a Resolution promulgated by the

Provincial Governor in accordance with the Administrative Code. In upholding the

Resolution and the Administrative Code, the US Supreme Court through Justice Malcolm

stated in part:
http://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpufhttp://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige#sthash.xfF4Vhyi.dpuf


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During the American period, several land laws were passed to the

detriment of indigenous communities.

These include the Land Registration Act of 1902, which required the

acquisition of a Torrens title as proof of land ownership, and the Public Land

Act of 1905, which declared all unregistered lands and those without Torrens

title public lands.

The previous unsure approach of the Philippine national government

toward the assertion of land rights by indigenous communities is reflected inlegislation with contradictory intentions. One group of laws and

administrative orders has recognized the rights of indigenous peoples to the

land they have occupied. The more salient legislations include (i) Executive

Order 180 of 1950, authorizing the Bureau of Lands, Forestry, and Soils and

the Mountain Province Development Authority to grant Igorots the right to

acquire titles over lands they had occupied and cultivated within the Mount

Data National Park and the Central Cordillera Forest Reserve; (ii) the

Manahan Amendment of 1964, which reset the legal viability of the period of

possession of untitled agricultural land by national cultural communities from1945 to 1955; and (iii) Administrative Order 11 of 1970 of the Bureau of

Forestry, providing that all forest concessions, shall be subject to the private

rights of cultural minorities within the concession.

Our attempt at giving a brief history of the Philippines with reference to the

so-called non-Christians has been in vain, if we fail to realize that a consistent

governmental policy has been effective in the Philippines from early days to

the present. The idea to unify the people of the Philippines so that they may

approach the highest conception of nationality. If all are to be equal before

the law, all must be approximately equal in intelligence. If the Philippines isto be a rich and powerful country, Mindoro must be populated, and its fertile

regions must be developed. The public policy of the Government of the

Philippine Islands is shaped with a view to benefit the Filipino people as a

whole. The Manguianes, in order to fulfill this governmental policy, must be

confined for a time, as we have said, for their own good and the good of the

country.


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The other body of law has endeavored to protect the national

patrimony even though there was a possibility that the state would recognize

indigenous communities live in the affected areas. This includes laws setting

aside forest reserves, watersheds, and national parks.

Of particular interest to the Cordillera region is Proclamation 217 that

established the Central Cordillera Forest Reserve in 1929 and Proclamation

634 that established the Mount Data National Park in 1940 covering 5,513

hectares of territory in Benguet and Mountain Provinces. Other laws passed

after Philippine independence in 1946 include the Forestry Reform Code of

1974 and the Revised Forestry Code of 1975. These declared that all lands of

the public domain that had a slope of 18% or more would be permanent

forests or forest reserves. This policy negates the classification of most of the

centuries-old highland terraced pond fields found in wet-rice cultivating

villages of the Cordillera, which should generally be categorized as

agricultural land. There was also Presidential Decree 1559 of 1978, which

declared that kaingeros (slash-and-burn dwellers), squatters, cultural

minorities, and other occupants of public forests or unclassified public land

shall, whenever the best land use of the area so demands, be ejected and

relocated to the nearest government settlement area8.

The 1935 Constitution had no explicit and specific statement on the

matter while the 1973 Constitution had only one provision. In contrast, the

1987 Constitution contains a significant number of provisions on indigenous

peoples and officially recognizes the concept of ancestral land and ancestral

domain. These provisions reveal the discrepancies between civil law and

customary law as the fundamental issue underlying state policies on

indigenous peoples.

8June Prill-Brett & Lorelei Mendoza, Chapter 2: Communal Land Management in the

Cordillera Region of the Philippines, Land & Cultural Survival: The Communal Land Rights

of Indigenous Peoples in Asia, Mandaluyong City, Philippines: Asian Development Bank,

2009.


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Attempts to balance these perceived antagonisms are apparent in

provisions like Section 22 of Article II of the present Constitution whichprovides that the State recognizes and promotes the rights of indigenous

cultural communities within the framework of national unity and

development.

Specific policy shifts regarding indigenous peoples are also evident with

regard to community-based management, in recognizing the value of

indigenous knowledge and practices in sustainable development and toward

ensuring the participation of indigenous peoples in relevant local and national

policy bodies.

Treatment of Ancestral Land Claims prior to the Indigenous Peoples

Rights Act of 1997

As regards ancestral lands and ancestral domains, the major legal

developments took place within the framework of the Department of

Environment and Natural Resources (DENR).

DENR Administrative Order No. 2 (DAO 2) provided for the

identification, delineation and recognition of ancestral land and domain

claims leading to the issuance of a Certificate of Ancestral Domain Claim

(CADC) and Certificate of Ancestral Land Claim (CALC). Although CADCs and

CALCs are significant tenurial instruments, these were not grants of title.

DAO 2 recognized indigenous property regimes and the rules of

indigenous land tenure systems. Within this legal context, ownership and/or

usufruct right is vested in persons or groups not through a land grant from the

state but because of the evidence of indigenous ownership and possession of


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the land over a lengthy and unbroken period of time, which bestows natural

rights or native title to the occupants.

The main purpose of DAO 2 was to protect and maintain the integrity ofancestral domains and to guarantee that customs and traditions of indigenous

cultural communities are recognized. Furthermore, it provided the basis for

identifying and delineating ancestral domains and ancestral land claims, and

formulated strategies for effective management of such lands.

The award of a CALC provided the legal basis for the recognition of

ancestral lands and ancestral domains. Ancestral domain claims are made by

indigenous cultural communities, and ancestral land claims are made byhouseholds or clans. Although the certificate is a claim rather than a title, it

vested indigenous communities with the legal basis to confront the actions of

government agencies or development programs that assert the states

prerogative to claim indigenous peoples lands that lack paper titles.

The recognition of ancestral domain of indigenous communities was,

and still is necessary to provide legal protection for indigenous communities

in their claims on forest resources against outside forces, especially state

interventions and large-scale commercialization. Indigenous cultural

communities were now legitimate occupants on lands they had traditionally

occupied, possessed, and controlled over many generations9.

There were many important developments about indigenous peoples

prior to the advent of the Indigenous Peoples Rights Act, such as Section 16 of

the Mining Act. This provision of law required that the indigenous peoples

concerned give their prior consent before mining activities can be undertaken

in their ancestral lands.

99Steve Rood, Protecting Ancestral Land Rights in the Cordillera. Peace,Conflict Resolution

and Human Rights Research Report 94-001. Quezon City: University of the Philippines Press

and the Center for Integrative and Development Studies, 1994.


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With regard to ancestral domains, the 1987 Constitution recognizes this

concept in laws like RA 6734, the Organic Act for the Autonomous Region of

Muslim Mindanao, and in rules like DAO 2. Furthermore, significant principles

in our Philippine laws prior to the Indigenous Peoples Rights Act appear to

echo international law principles, including:

the acknowledgment of and deference to customary laws, specially withregard to determining the extent of their lands and domains;

their right of effectual contribution in the local and national levels; the recognition of their part in environmental management;

the right to be consulted with respect to activities affecting them; the right to benefit from utilization of natural resources within their

ancestral lands and domains;

the right to be fairly compensated for any damages sustained as a resultof certain activities undertaken within their ancestral lands and

domains10.

The Indigenous Peoples Rights Act of 1997

Prior to the United Nations Declaration on the Rights of Indigenous

Peoples, in 1997, the Philippines introduced the Indigenous Peoples Rights

Act (IPRA), which was largely based upon ILO Convention 169.

Former President Fidel V. Ramos, upon signing the IPRA into law, stated

that the pioneering legislation

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was designed to stop discrimination againstindigenous peoples and hasten their emancipation from the bondage of

10Maria Cecilia G. Dalupan, A Discussion Paper on the Mining Industry and the Indigenous

Peoples Rights Act, Quezon City: TAPS, 2000.

11The first of its kind in Southeast Asia


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inequity which had bred poverty, ignorance and dispossession. According to

the former president, the problem had to be dealt with unswervingly at the

roots, meaning the issue of land ownership: To our indigenous peoples and to

many others in our country, who suffered from such exploitation by the elite

and the oligarchs, land is a way of life. The value of land goes beyondeconomics and encompasses the entire spectrum of political, social, cultural

and religious aspects of Philippine life. For so long, the superior forces of the

lowlanders had deprived the members of our cultural communities not only of

their ancestral lands but also of their livelihood and their way of living. Those

who resisted through force were called bandits while those who did not adjust

to the mores of the lowlands were deemed as savages and were marginalized

just because they were different. Mounting injustice against our indigenous

cultural communities bred a host of other problems, affecting both rural and

urban centers, even as it diminished the rights and opportunities of our

indigenous peoples.12

The IPRA provides indigenous peoples with a wide range of rights over

ancestral domains: indigenous peoples have the right to ownership over their

lands and resources, the right to occupy and develop their lands, the right to

combat displacement, and the right to control the entry of migrants13.

Who are considered Indigenous Peoples in the Philippines?

The term indigenous peoples is defined by Section 3(h) of Republic

Act No. 8371, the Indigenous Peoples Rights Act(IPRA), as follows:

x x xa group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived

12The Road to Empowerment: Strengthening the Indigenous Peoples Rights Act Volume 1:

New ways, old challengesManila: International Labour Organization, 2007.

13Sec. 7, Indigenous Peoples Rights Act.


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as organized community on communally bounded and defined

territory, and who have, under claims of ownership since time

immemorial occupied, possessed and utilized such territories,

sharing common bonds of language, customs, traditions and other

distinctive cultural traits, or who have, through resistance topolitical, social and cultural inroads of colonization, non-

indigenous religions and cultures, became historically

differentiated from the majority of Filipinos. ICCs/IPs shall

likewise include peoples who are regarded as indigenous on

account of their descent from the populations which inhabited the

country, at the time of conquest or colonization, or at the time of

inroads of non-indigenous religions and cultures, or the

establishment of present state boundaries, who retain some or all

of their own social, economic, cultural and political institutions,

but who may have been displaced from their traditional domainsor who may have resettled outside their ancestral domains;

Denominated otherwise as indigenous cultural communities, they are

situated in diverse lowland, forest and coastal areas throughout the country.

The areas which indigenous cultural communities occupy are generallyregarded by them as their ancestral domains or ancestral lands14, both of

which are terms also defined under the IPRA, the nature and extent of which

are the subject of on-going debate.

Jus Regalia v. Native Title

Not long after its enactment into law, in 1998, the constitutionality of

the Indigenous Peoples Rights Act was questioned before the Supreme Court.

14Which terms are not used interchangeably since they connote a different legal meaning,

especially when it comes to transfer and disposition.


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The source of the claim was that the law contradicted the Regalian

doctrine15under which the state has full ownership of the public domain and

natural resources, and that the granting of indigenous rights on those

territories amounted to an unlawful deprivation of the states ownership over

these lands. Hence, the kilometric decision of the High Court in Cruz v. DENR

Secretary.

In an unusual decision, the case was dismissed owing to the rules of civil

procedure, due to an even split in the court, which was maintained after a

second deliberation.

The main argument in favor of the constitutionality of the IPRA was that

indigenous land rights predated the acquisition of sovereignty by Spain and

were private property rights that were never a part of the states public

domain and thus, such lands were not affected by the Regalian doctrine16.

15The Regalian Doctrine, a concept dating back to the days of the Spanish monarchy that

still underpins the Philippines legal system of land ownership, declares that the state owns

all natural resources. As Article 12, Section 2 of the 1987 Philippine Constitution says:

All lands of the public domain, waters, mineral, coal, petroleum and other

mineral oils, all forces of potential energy, fisheries, forests or timber,

wildlife, flora and fauna, and other natural resources are owned by the state.

Under this system of land ownership, lands are generally classified as private or public.

Private lands are lands that have been segregated from the general mass of the public

domain by any form of grant by the state. Public lands refer to all lands that are notacquired by private persons or corporations and are generally classified as agricultural or

nonagricultural lands. Only lands classified as agricultural may be declared as disposable

and eligible for private ownership.

16Cruz v Secretary of the Environment and Natural Resources, GR No 135385, December 6,

2000.


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How the IPRA recognizes ancestral land holdings

The indigenous concept of ownership, as characterized in the IPRA,reflects the view that ancestral domains and all resources found therein serveas the material bases of cultural integrity.

It covers sustainable traditional resource rights, which refer to the right

to sustainably use, manage, protect and conserve the land, resources and sites

within their ancestral domains and lands according to the indigenous peoples

knowledge, beliefs, customs and traditions. Accordingly, the IPRA defines

ancestral domains as the indigenous peoples private but community property

which belongs to all generations and therefore cannot be sold, disposed of ordestroyed.

The IPRA provides that ancestral domains and landscover not only thephysical environment but the totality of the environment including the

spiritual and cultural bonds to the areas which the indigenous peoples

possess, occupy and use and to which they have claims of ownership.

The idea of ancestral domain, which includes natural resources, is much

broader than the concept of ancestral land which refers to areas that have

already been subjected to occupation or cultivation.

The IPRA qualifies the definitions of ancestral domains and lands with

Section 56 thereof, which provides that property rights within the ancestral

domains already existing and/or vested upon effectivity of the IPRA shall berecognized and respected.

Certificates of Ancestral Domain and Land Titles (CADT and CALT)are titles formally recognizing the rights of possession and ownership of


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indigenous peoples over their ancestral domains and lands, respectively.

Formal recognition of these rights by virtue of Native Title may also be

embodied in the CADT.

The IPRA defines Native Titleas pre-conquest rights which, as far back

as memory reaches, have been held under a claim of private ownership, have

never been public lands and are thus indisputably presumed to have been

held that way since before the Spanish Conquest.

CADT refers to the title formally recognizing possessory right of

indigenous peoples over their ancestral domains. CALT, on the other hand,

refers to a title formally recognizing ancestral rights. However, there is adifference between ancestral land and ancestral domain, and the

corresponding CADT and CALT issued by virtue of the recognition of these

ancestral claims. Ancestral lands can be transferred under the circumstances

in Section 8(a) of the IPRA. On the other hand, ancestral domains cannot be

transferred because its ownership specifically excludes the right to sell,

dispose, or destroy.

Ancestral Domains Ancestral Lands

Section 56 of the IPRA law, refers to

all areas

Generally belonging to Indigenous

Cultural Communitiess/IndigenousPeoples comprising lands, inland

waters, coastal areas, and natural

resources therein;

held under a claim of ownership,

occupied or possessed by

Subject to Section 56 of the IPRA law,

refers to land

occupied, possessed and utilized by

individuals, families and clans who aremembers of the Indigenous Cultural

Communitiess/Indigenous Peoples

since time immemorial, by themselves

or through their predecessors-in-

interest;


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Indigenous Cultural

Communitiess/Indigenous Peoples,

by themselves or through their

ancestors, communally or

individually since time immemorial,continuously to the present except

when interrupted by war, force

majeure or displacement by force,

deceit, stealth or as a consequence

of government projects or any

other voluntary dealings entered

into by government and private

individuals/corporations; and

which are necessary to ensuretheir economic, social and cultural

welfare

held under claims of individual or

traditional group ownership; and held

continuously, to the present except

when interrupted by war, force majeure

or displacement by force, deceit, stealth,or as a consequence of government

projects and other voluntary dealings

entered into by government and private

individuals/corporations

Inclusions

Ancestral lands;

Forests and pasture;

Residential, agricultural, and

other lands individually owned

whether alienable and disposable

or otherwise;

Hunting grounds, burial grounds,

worship areas;

Bodies of water;

mineral and other natural

Inclusions

Residential lots;

rice terraces or paddies;

private forests;

swidden farms; and

tree lots. 17

17Maria Cecilia G. Dalupan, supra.


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resources; and

lands which may no longer be

exclusively occupied by Indigenous

Cultural Communitiess/Indigenous

Peoples but from which they

traditionally had access to for their

subsistence and traditional

activities, particularly the home

ranges of Indigenous Cultural

Communitiess/Indigenous Peoples

who are still nomadic and/or

shifting cultivators (Sec. 3a)

In the development or exploitation of natural resources within ancestral

domains, the indigenous people concerned shall have priority rights thereto.

Be that as it may, they may allow a non-member to conduct such activities

subject to term limits and to the condition that a formal written agreement is

entered into with the indigenous peoples or indigenous cultural community.

The IPRA further provides that indigenous peoples/indigenous cultural

communities shall have the right to stop, suspend or prevent any project that

has not satisfied the requirement on the consultation process necessary in

complying with the Certification Precondition.

This precondition states that no government agency may grant or

renew any concession or enter into any production-sharing agreement,

without prior certification from the National Commission on Indigenous

Peoples (NCIP) that the area affected does not overlap with any ancestral

domain.


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Under the IPRA, Indigenous peoples also have the right to manage and

conserve natural resources for future generations and the right to negotiate

the terms and conditions for the exploration of natural resources for the

purpose of ensuring ecological, environmental protection and the

conservation measures, pursuant to national and customary laws.

Role of the National Commission on Indigenous Peoples

The IPRA established the National Commission on Indigenous Peoples,

or the NCIP, as an independent agency under the Office of the President. It isthe primary government agency responsible for the formulation and

implementation of policies, plans and programs to promote and protect the

rights and well being of indigenous peoples/indigenous cultural communities.

The Commission is composed of seven Commissioners, all belonging to

indigenous cultural communities, among its significant responsibilities are to:

issue certificates of ancestral land/domain title

enter into contracts, agreements, or arrangements, with government or

private agencies or entities as may be necessary to attain the objectives of

the law, subject to existing laws and

issue appropriate certificates as a pre-condition to the grant of permit,

lease, grant, or any other similar authority for the disposition, utilization,

management and appropriation by any private individual, corporate entityor any government agency, corporation or subdivision thereof on any part

or portion of the ancestral domain taking into consideration the consensus

approval of the ICCs/IPs concerned.


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The ancestral claims of the Igorot in the Cordillera

In the Cordillera, the claim to ancestral land and ancestral domain

ownership is legally no different from the land claims of other indigenouspeoples in the Philippines and other parts of the world.

On one hand, these peoples claim rights to the land as ancestral lands,

which they have tilled and which have sustained them for generations. On the

other hand, the national government, which had previously been pursuing a

policy of integration, has promulgated and attempted to implement land

policies that have displaced and/or dispossessed the indigenous communities

of their ancestral lands18.

Indigenous land tenure systems define practices of right to use and

control over resources by individuals, clans, and communities.

These customs among indigenous cultural communities are

circumscribed and modified by varying economic and politicaltransformations as well as national land laws within a diversity of historical

and social conditions19.

A main characteristic of land ownership in the Cordillera is the rule of

non-alienation of lands to individuals or groups who do are not part of, or do

not belong to the community. Land transfers are strictly governed by the

following rule: land is first offered to the immediate family, then to close kin,

before it is finally offered to other members of the community20.

18Steve Rood, supra.

19June Prill-Brett & Lorelei Mendoza, supra.20Anavic Bagamaspad, and Zenaida Hamada-Pawid.A Peoples History of Benguet. Benguet:

Baguio Printing and Publishing Co., Inc., 1985.


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Another important characteristic of an ancestral domain is the existence

of operational concepts of territorial boundaries and resource control. This is

confirmed through the existence of jural rights, duties, and obligations that

preside over the administration of communal property resources within an

ancestral domain. The communities which have exercised the idea of domain

include the rule of exclusion, which is proof of territorial and cultural

integrity21.

Nearly one-fifth of the land area in the Cordillera region is part of

ancestral domain. Beneficiaries are indigenous peoples from the following

ethnolinguistic groups: Ayangan, Bago, Ibaloi, Isneg, Iwak, Kankanaey,

Kalanguya, Tuwali, Tingguian and others22.

Genuine CALTs (?)

Unfortunately, not all genuine ancestral land claimants are benefitted by

the advent of the IPRA.

There are some unscrupulous members of indigenous cultural

communities who are neither members of the local community nor bona fide

occupants by native title who feign legitimate claims over large tracts of

land23.

21 June Prill-Brett, Indigenous Land Rights and Legal Pluralism among PhilippineHighlanders. Law & Society Review 28(3) Special Issue: Law and Society in Southeast Asia,1994.

22Collectively called Igorot.

23For instance, and at present, this writer is counsel for the heirs of a legitimate ancestral

land claimant in the City of Baguio, who has descended from original settlers in the old


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Furthermore, and what is worse, these persons do not intend to hold the

land in the concept of native title.

Professor June Prill-Brett has brought to the fore a tactic occasionally

employed by some indigenous peoples, particularly in the newly established

communities where the forest was originally perceived as open access (while

considered to be public by the government), is through the

misrepresentation of local occupancy in order to secure particular advantages

offered by the IPRA law.

If the government believes that all indigenous communities own

ancestral domains24, and are the proper entities to apply for titles through

CADTs, then the people will use this belief as an argument to help them secure

the CADT. Unfortunately, this has been the case with the ancestral domain

claims of communities along the Mt. Data National Park and the contested

areas of Mt. Pulag in Benguet25.

Kafagway, and who was able to secure an approved survey of his ancestral land claim in1922. The protesters to the ancestral land claim are Ifugao migrants, who are not genuine

native indigenous peoples to the City of Baguio.

24The concept of ancestral domain does not apply to all Philippine indigenous people. Not

all indigenous cultural communities share a common notion of territory. On the one hand,

there are groups such as those in the Cordillera who have concepts of ancestral domain,

while on the other, the nomadic Agta of northern Sierra Madre have a fluid concept of

territoriality. Their domain moves as the band transfers from place to place. There is no

concept of permanent territory. Nestor Castro, Three years of the Indigenous Peoples

Rights Act: Its impact on indigenous communities. KASARINLAN, Philippine Quarterly of

Third World Studies 15(2) (Special Issue on Indigenous Peoples): 35-54, 2000.

25June Prill-Brett, The Interaction of National Law and Customary Law in NaturalResourceManagement in the Northern Philippines. Pp. 363-381 in Rajendra Pradhan (ed.), Legal

Pluralism and Unofficial Law in Social,Economic and Political Development, Papers of the

XIIIth International Congress, 7-10 April, 2002, Chiang Mai, Thailand, Vol. 1.

Kathmandu:International Centre for the Study of Nature, Environment and Culture.


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Jeovani Reyes, Secretary General of Koalisyon ng Katutubong Samahan

ng Pilipinas (KASAPI) cites the Happy Hallow Ancestral Domain as anotherobvious case of displacement of indigenous people from their territory. Happy

Hallow is an Ibaloi community lying on the extreme eastern side of Baguio

City.

The passage of IPRA in 1997 resulted in the turnover of all ancestral

domain claims from the DENR to NCIP. Despite the IPRA, the period 1998 to

2000 saw a suspension on land and ancestral domain claims.

However in 2001, 197 midnight CALTs were issued to757 claimants.

In 2006, the CADT for Happy Hollow was issued. The Happy Hollow CADT was

challenged as it excluded original Ibaloi inhabitants from their time

immemorial ownership. The original inhabitants were displaced and replaced

by non-Ibalois who are twentieth century migrants. According to Reyes, this

happened through intricate processes and sometimes dubious genealogies26.

Not only original ancestral lands and domains are in jeopardy in the City

of Baguio. Watersheds and forest reserves are now being presently claimed

with pending applications in the NCIP, and some forest reservations have

already been titled despite blatant violations in the procedure for the titling

and recognition of ancestral lands, especially in the City of Baguio, which is

governed by a special provision under the IPRA.

At present, the City Government of Baguio seeks to protect only

legitimate ancestral claims and bona fide claimants.

26The Struggle Continues: Uphold the Rights of Indigenous Peoples, IAG Policy Brief, 2011.


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Such claims are those Igorot claims classified as alienable and ancestral

land as per section 7827of the IPRA.

Section 78 also provides an exemption that prior land rights andtitles

recognized and/or acquired through any judicial, administrative or other

processes before the effectivity of this Act shall remain valid which means

that Igorot claims recognized before November 1997, the date of IPRA

implementation, are the only claims which are qualified as ancestral claims28.

In Wright Park alone, various National Government properties thatinclude the Senate Presidents and the House of Representative Speakers

cottages are already covered by an existing CALT, including some portions of

the presidential Mansion House compound.

A CALT was likewise issued over portions of the Forbes Park

reservation. The City Government of Baguio is presently questioning these

claims, since the application for the issuance of CALTs over these lands have

not been filed prior to the effectivity of the IPRA, in clear violation of Sec. 78.

27Sec. 78 of the IPRA is quoted in toto:

SEC. 78. Special Provision. The City of Baguio shall remain to begoverned by its Charter and all lands proclaimed as part of its town site

reservation shall remain as such until otherwise reclassified by

appropriate legislation: Provided, That prior land rights and titles

recognized and/or acquired through any judicial, administrative or

other processes before the effectivity of this Act shall remain valid: Provided, further, That this provision shall not apply to any territory which

becomes part of the City of Baguio after the effectivity of this Act. (emphasis

and underscoring supplied)

28 Mayor opposes fake ancestral land claims, http://www.sunstar.com.ph/baguio/local-

news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371
http://www.sunstar.com.ph/baguio/local-news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371http://www.sunstar.com.ph/baguio/local-news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371http://www.sunstar.com.ph/baguio/local-news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371http://www.sunstar.com.ph/baguio/local-news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371http://www.sunstar.com.ph/baguio/local-news/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371


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Furthermore, there was likewise a resolution from the NCIP stating that

no ancestral land title should be issued in the city without prior clearance

from the Baguio Ancestral Land Clearing Committee (BALCC) composed of the

local government, DENR and NCIP, among other agencies. But even without

the required clearance, there was still a CALT issued over Forbes Park.

The CALTs, which are now in the center of several reversion cases filed

by the National Government through the Office of the Solicitor General to

nullify these titles improvidently issued by NCIP, are now pending with the

Court of Appeals.

Conclusion

The international community and the Philippines have truly come a long

way in their quest to protect and vindicate the rights of indigenous peoples

who long since been marginalized, discriminated against and ignored.

In the Philippines, while some IPRA organizations have tried with

varying degrees of success to use IPRA as an instrument to legalize indigenous

peoples claims to their ancestral lands and domain, the IPRA has been

criticized for its inherent flaws and emergent implementation problems.

Based on experiences in the operation of the CADCs awarded, many issues and

challenges have been encountered.

The persons upon whom CALTs and CADTs have been previously

improvidently issued do not necessarily act in the best interest of the

land, but are motivated by personal interests that no longer jibe with

long cherished customs and traditions.


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Mechanisms should be strengthened or put in place to ensure that in the

screening process of determining the persons to whom CALTs or CADTs are

issued, the indigenous people applicants are indeed bona fide settlers over the

lands and domains they intend to claim.

Aside from obtaining the needed technology and skills for its employees

and personnel especially at the local level, the NCIP should endeavor to fortify

its competency to effectively pursue its mandate, be able to assist indigenous

peoples in implementing their ancestral domain protection plans and be more

responsive to the needs of the countrys indigenous population. Thus, apart

from training their staff on state-of-the-art survey technology and procuring

the necessary equipment to speed up the demarcation of ancestral domains

and lands, it is also important to conduct training on community organizingand development work among the staff at the local level (in order to be able to

weed out bogus ancestral land claimants).

The protection of ancestral lands and domains as well as lands in

general, requires vigilance of the community, the local government and the

NCIP to ensure that bogus claims are screened and denied and that the bogus

claimants are prosecutedaccordingly.

Documents

On “Paradigm Shifts” in International and Philippine Law Regarding the Treatment of Indigenous Peoples.pdf