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INDIGENOUS PEOPLES 2009-2010

Indigenous Peoples and the Law:


A Commentary on the Indigenous
Peoples Rights Act of 1997
INTRODUCTION
I.

In General

Indigenous peoples or cultural communities are considered as distinct groups of people with a
continuity of existence or identity tracing their roots to tribes or nations of their ancestral past.

4% of the worlds population, distributed among 2,000 or more ethnic groups, was already
designated as tribal people.

II.

The Natives Under the Colonial Period

Doctrine of Inter-Temporal Law The lawfulness of an action must be determined according to


the law in force at the time of the commission of the act.
A.

The Papal Bulls and Subsequent Expeditions/Commissions

Papal Bulls In the 14th century, it was commonly believed that the entire globe was the property
of God, over which the Pope had the ultimate power to divide and distribute. The Pope divided the
undiscovered world between Portugal and Spain.
Treaty of Tordesillas Reciprocally recognized the right of Spain and Portugal to cross into
territory of the other and affirmed the exclusive ownership of each within its area.
Bull Ea Quae of 1506 Reiterated the right of the King of Portugal:
To navigate the ocean, seek out the islands, ports, and mainland lying within the sea,
and retain those found for himself, and
To all others it was forbidden under penalty of excommunication, and other penalties
from presuming to navigate the sea in this way against the will of the king, or
To occupy the islands and places found there.

For the colonizers, there was no necessity to secure the agreement of the local inhabitants to
the assumption of sovereignty. These people were viewed as savages or barbarians who
were readily available to be subjects of the European monarchs.

The State in whose name a settlement was established in an undiscovered territory became
the sovereign of the territory in question, regardless of any proprietary claims of the original
inhabitants.
B.

The Validity of the Acts of the Colonizers

Vitoria: The Pope possessed no civil or temporal powers over the whole world, or even spiritual
jurisdiction over believers.
He believes that the Spaniards could eventually take the property though war.
Suarez: The Pope had the power to distribute among temporal princes and kings, the provinces
and realms of unbelievers.
He did not consider that it was permissible to coerce them into believing, unless they
were subjects of the prince on whose behalf the coercion was being exercised.
Grotius: He upholds the right to acquisition of title to territory through prescription. However, the
monarch has a right to wage war against those who have broken the laws of nature.
Prescription: (1) Knowledge that another possesses what belongs to him; and (2)
Voluntary silence despite full liberty to speak.
Just war is undertaken against wild rapacious beasts, and men who act as such.
Wolff: Refusal to accept the culture being offered the barbarous nation, in fact denies to the more
civilized state the right to perform its duties; hence, providing a ground to wage a just war.
III. Judicial Recognition of Indigenous Rights
Johnson v. MIntosh
Discovery gave title to the Government by whose subjects or by whose authority it was
made against all other European governments, which title was consummated by
possession.
The Courts affirmed the dominical right s of the colonial rulers, but recognized the right
to occupancy of the Indian natives.
Worcester v. Georgia
The Indian nations had always been considered as distinct and independent political
communities. They retained their natural rights, except that the discoverer of their lands
could exclude them from intercourse with other powers.
Cayuga Indians Claim
The Court stated that the Cayuga tribe was not a legal unit of international law. These
tribes are only domestic dependent nations or states in certain domestic and municipal
purposes.

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So far as the Indian tribe exists as a legal unit, it is only by virtue of the domestic law of
the sovereign nation within whose territory the tribe occupies the land, and so far only as
that law recognizes it.

Legal Status of Eastern Greenland


The Court examined the status of the Eskimos, the native inhabitants. It was argued that
the disappearance of the two Nordic settlements, Norwegian sovereignty was lost and
Greenland became terra nullius.
The Court held that conquest only operates as a cause of loss of sovereignty where
there is war between two states and by reason of the defeat of one of them sovereignty
over territory passes from the loser to the victorious state. The principle does not apply
in a case where a settlement has been established in a distant country and its
inhabitants are massacred by the aboriginal population.
Namibia Advisory Opinion and Western Sahara Advisory Opinion
Recognized the principle of self-determination as a right of indigenous people
Mabo v. Queensland
The Court recognized the traditional rights of the Meriam people to their islands in the
eastern Torres Strait. Native title existed for all indigenous people in Australia prior to the
establishment of the British Colony of New South Wales in 1788. The new doctrine of
native title replaced the 17th century doctrine of terra nullius on which Britishs claims to
possession of Australian territories were based.
Native title to particular land, its incidents and the persons entitled thereto are
ascertained according to the laws and customs, have a connection with the land. It is
immaterial that the laws and customs have undergone some change since the Crown
acquired sovereignty provided the general nature of the connection between the
indigenous peoples and the land remains.
Membership of the indigenous peoples depends on biological descent from the
indigenous peoples and on mutual recognition of a particular persons membership by
that person and by the elders or other person enjoying traditional authority among those
people.
IV. International Instruments
A.

International Labor Organizations Conventions


ILO Convention No. 107
ILO Convention No. 169
Indigenous peoples as temporary societies Indigenous peoples as a common society,
which must be integrated in mainstream society disappearing as a result of modernization
Encourages assimilation of indigenous peoples Ensures recognition and respect for cultural and
ethnic diversity
Protect the peoples during the condition of Encourage peoples to set their own
modernization
development priorities

It introduces new provisions on the right to


natural resources, indigenous lands, and to
ancestral lands that they have lost.
B.
1.
2.
3.
4.
5.
6.

Other significant Conventions and Declarations

1948 Geneva Convention


Declaration on the Granting of Independence to Colonial Countries and Peoples
All people have the right to self-determination.
UN Declaration on the Elimination of All Forms of Racial Discrimination
International Convention on the Elimination of All Forms of Racial Discrimination
International Covenant on Civil and Political Rights
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities
C.

The UN Declaration on the Rights of Indigenous Peoples

Development of UN DRIP:
1. 1971 Resolution of the UN Economic and Social Council authorizing the Sub-Commission on
Prevention of Discrimination and Protection of Minorities to conduct a study on the Problem of
Discrimination Against Indigenous Populations
Made by Special Rapporteur Jose Martinez Cobo
2. 1993 UN Draft Declaration on the Rights of Indigenous Peoples
3. 13 September 2007 = Draft Declaration was adopted by 143 state voting in its favor and 11
abstentions
Countries that did not vote: US, Canada, Australia and new Zealand
Significant provisions in the UN DRIP:
1. Right of self-determination
Right to freely determine their political status and freely pursue their economic, social
and cultural development
Right to participate in decision making, to determine and develop their own priorities for
development, and maintain and develop their own institutions
2. Cultural integrity
Not be subjected to forced assimilation
Media is viewed as a significant tool in promoting cultural diversity.
3. Ownership of land and natural resources
Right to lands, territories and resources which they traditionally owned, occupied or
otherwise used or acquired
Entitled to fair compensation and redress in the event they are deprived of their lands,
territories and resources without their free, prior and informed consent
Prohibits military activities within the indigenous lands unless there is a significant threat
to public interest and otherwise freely agreed with the indigenous peoples
4. Protection of indigenous women and children

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Rights and special needs of elders, women, youth, children and person with disabilities
States should take specific measures to protect them from economic exploitation and
from performing hazardous work
Children must be given access to education in their own culture.

Spanish colonizers ordered the natives be gathered together and placed in reducciones in
accordance with the laws of the Indies.
Christianity was taught as a means to civilize them and as an instrument of
indoctrination into their culture.

Spanish classification of Filipinos:


1) Indios only group Christianized and adapt the Spanish culture
2) Moros
3) Infieles (the ICCs) remained unchristianized and retained distinct culture

CHAPTER I: GENERAL PROVISIONS


SECTION 1
I. IRR of IPRA was approved on 9 June 1998.
II. IPA was signed by President Ramos on 29 October 1997.
III. Purpose of the Law

Regalian Doctrine All lands of the colony were deemed to belong to the King.

The Regalian doctrine was imposed on the natives, and the natives were stripped of their
ancestral rights to land.

Applicable constitutional provisions:


1. Article II, Section 22
2. Article XII, Section 5
3. Article XIII, Section 6
4. Article XIV, Section 17

The Americans imported its method of managing Native Indians to the Islands.
It created the Bureau of Non-Christian Tribes (Act 253)
Administrative Code of 1917 authorized the provincial governor to compel, if he deemed
it necessary, non-Christians to live together in selected sites.
Adhered to the policy of assimilation

Principal Sponsor: Senator Juan Flavier

As an expression of parens patriae, IPRA is a manifestation of the States recognition that,


due to governments neglect and marginalization, ICCs are at a disadvantage in comparison
to the rest of society, thus, entitled to special protection.

Non-christian Refers not to religious belief, but in a way to geographical area, and more
directly to natives of the Philippine Islands of a low grade civilization

The 1935 Constitution did not contain any provision dealing with ICCs. Integration became
the State policy.
The ICCs/IPs were displaced by massive titling of their lands under the Public Lands Act
and the Torrens system by non-ICC/IP settlers.

The 1973 Constitution first provided some manner of protection for the ICCs. (Article XV,
Section 11)

Agencies abolished in the Marcos Administration whose functions were transferred to the
Southern Philippines Development Administration:
1) Commission on National Integration
2) Mindanao Development Authority
3) Presidential Task Force for Reconstruction
4) Special Program of Assistance for the Rehabilitation of Evacuees (SPARE)

The 1987 Constitution recognized the right of the ICCs and IPs to their ancestral lands, and
insured the right of tribal Filipinos to preserve their way of life.

IV. History on the Treatment of Indigenous Peoples in the Philippines

Prior to the arrival of the Spaniards, certain native communities already existed.
Culture = Basically Malayan in structure and form
Language = Originally from the Austronesian parent-stock
Religion = Believed in the immortality of the soul and life after death. Their rituals were
based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of
other deities, in the environmental spirits and in soul spirits.
Form of Government = Unit of governments was the barangay which was a familybased community. Each barangay was ruled by a chieftain called a dato who was the
executive, legislator and judge and was the supreme commander in time of war.
Laws and Justice System = Either customary(songs, chants, memory of elder persons)
or written. Oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at 1750 AD.
Social Order = Absence of private property in land. Mutual sharing of resources.
Economy = Most production was geared to the use of the producers and to the
fulfillment of kinship obligations.

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1.

Respect for cultural integrity in the formulation of national development policies

SECTION 2
I.

Doctrine of balancing of interests Balance the interest taking into account the specific needs
and the specific interests of these cultural communities (balance the interest as provided for in the
national law and the interest as provided for in the customary law)

Operating principles of the IRR:


A. Cultural Diversity
B. Consensus and Peace-Building
C. Cultural Integrity
D. Human Dignity
E. Subsidiarity
F. Transparency and Capacity Building

Any grant of ICC/IP rights should be read in harmony with the national law. In case of
irreconcilable conflict, the national law prevails.

Due process must be observed and the ICCs/IPs are entitled to receive a just share of any
benefit derived from within their domains.

In the balancing of interests, the ICCs/IPs affected must be consulted.

All grants by the State of property rights, even though not amounting to title, are subject to
ICC/IP rights to their ancestral lands.

Policies Mere guidelines for the State and are not considered self-executory.

2.

Applicability of customary laws

IPRA continues this policy of cultural sensitivity and respect for ICC/IP dignity by making use
of the cultural communities and not minorities.

Custom The juridical rule which results from a constant and continued uniform practice by the
members of a social community, with respect to a particular state of facts, and observed with a
conviction that it is juridically obligatory.

Within the framework of national unity and development concedes that ICC/IP rights must
be harmonized with existing statutes.

II.

Constitutional and State Policies


A. Recognition and promotion of IP Rights (Article II, Section 22)

Principles Binding rules which must be observed by government.

ICC/IPs rights in general already includes the right to develop fully, culturally, economically
and socially.
B. Protection of rights to their ancestral domains (Article XII, Section 5)

Section 2(b) of IPRA


State protects the rights of ICCs/IPs to their
ancestral domains
Duty of the State is to protect the rights of the
ICCs/IPs to their ancestral domains is
expressed without condition
No qualification of having to wait any act of
delineation. The duty to protect the rights of the
ICCs/IPs to their ancestral domains, which
includes rights to their ancestral lands, already
exists as of IPRAs passage into law.
Ancestral domains covers the total environment
including natural resources

Article XII, Section 5 of 1987 Constitution


State protects the rights of ICCs/IPs to their
ancestral lands
Duty of the State is subject to the provisions of
the Constitution and national development
policies and programs
What is only sought to be protected would be
the lands and not the domains. The duty to
protect commences only when the extent of the
ancestral domains has been determined by
Congress.

Requirements of custom:
1. Existence of a long settled practice
2. Sense or belief by adherents to the custom that it is of an obligatory character
Civil Code provisions citing customs or customary law:
1. Human Relations (Article 21)
2. Usufruct (Article 577)
3. Easements (Articles 657, 658, 675, 678, 679)
4. Succession (Article 873)
5. Contract Law (Articles 1183, 1306, 1346, 1352)
6. Family Relations (Articles 149, 33)

Under the Constitution, Congress is under the obligation to codify the customary laws. IPRA
does not include a codification of these customary laws but places a duty on the NCIP to
undertake the same.

Customary law A body of written and/or unwritten rules, usages, customs and practices
traditionally and continually recognized, accepted and observed by respective ICCs/IPs

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3.

Property rights and relations

GENERAL RULE: The provisions on Ownership determine the property rights or relations arising
thereform.
EXCEPTION: Property rights and relations which determine ownership and the extent of the
ancestral domain (Article XII, Section 5)
Property Consists of all things which are or may be the object of appropriation and are either
immovable or movable property
Public dominion
Properties that are for public use, for public
service, and for development of national wealth
Outside the commerce of man and cannot be
the object of any contract

Cannot be acquired by prescription

Patrimonial property
Properties of the State but are not devoted to
public use, public service, or the development
of the national wealth
Wealth owned by the State in its private
capacity
No exclusive enumeration of patrimonial
properties
Can be acquired by private individuals and
corporations; Can be acquired through
prescription

When no longer intended for public use or for


public service may be converted into
patrimonial properties. May be effected only by
executive and possibly the legislative
departments through a formal declaration.
Cannot be registered and be the subject of a
Torrens title
Private property Consists of all property belonging to private persons

Rights granted to an owner:


1. Right to enjoy, which includes the right to possess, use, and the fruits
2. Right to consume, abuse, destroy or alienate
3. Right to recover
Limitations to rights of an owner:
1. Taxation
2. Eminent Domain
3. Police Power
4. Regalian Doctrine

C. Preservation and development of their cultures, traditions and institutions (Article XIV,
Section 17)
Culture The acquired ability of an individual or a people to recognize and appreciate generally
accepted aesthetic and intellectual excellence
The total of human behavior patterns and technology communicated from generation to
generation
Tradition Past customs and usages which influence or govern present acts or practices
Institution Any custom, system, organization, firmly established or an elementary rule or
principle
A system or body of usages, laws, or regulations, of extensive and recurring operation,
containing within itself an organism by which it effects its own independent action,
continuance, and generally its own further development
D. Equal enjoyment of human rights and freedoms without distinction or discrimination

Collective ownership Refers to ownership by private individuals as co-owners, by corporations,


partnerships, or other juridical persons who are allowed by law to acquire properties
1.
Ownership The independent and general right of a person to control a thing particularly in
possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed
by the state or private persons, without prejudice to the provisions of the law
Types of ownership:
1. Full ownership All the rights of an owner are included
2. Naked ownership Rights to the use and the fruits have been denied
3. Sole ownership Only one person is the owner
4. Co-ownership Ownership is vested in two or more persons

The indigenous concept of ownership generally holds that ancestral domains are the
ICCs/IPs private but community property which belong to all generations and therefore
cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource
rights.

Meaning of human rights and freedoms

Human rights Include not only the right to be immune from injurious actions by government but
also the right to positive action by government and society to protect and guarantee the realization
of all these rights

The fundamental nature of human rights is that they are universal, inalienable and generally
absolute.

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UDHR: Rights may be restricted by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society
International instruments:
1.Universal Declaration of Human Rights (UDHR)
Mere proclamation which did not even require ratification.
2.International Covenant on Economic, Social and Cultural Rights (ICESCR)
The state party is obliged to take steps to the maximum extent of its available resources
to achieve progressively the full realization of the rights recognized in the present
Convention.
3.International Covenant on Civil and Political Rights (ICCPR)
The state party is bound to respect human rights contained in the covenant and
undertake actions to insure the enjoyment of the same. The obligation of the state is
mandatory.
4.International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
5.International Convention on Elimination of all Forms of Discrimination Against Women (CEDAW)
6.Charter of United Nations

UDHR, ICESCR and ICCPR comprise the international bill of rights

In relation to IPRA, the right to self-determination is interlinked to al the rights recognized or


granted under the law.

2.

Definition of discrimination

IPRA is an exercise of the duty of the State to act as parens patriae.

Rubi v. Provincial Board of Mindoro


The Court, speaking from the point of view of the States exercise of police power,
justified the resolution as a form of protection and introduction of civilized customs to the
non-Christian Manguianes.
F. Maximum participation in the direction of education, health, as well as other services of
ICCs/IPs

The underlying theme of IPRA is that the State must fulfill its obligations to the ICCs/IPs and
be responsive to their culture.
CHAPTER II: DEFINITION OF TERMS
SECTION 3(A)
Ancestral lands/domains Include such concepts of territories which cover not only the physical
environment but the total environment, including the spiritual and cultural bonds to the areas which
the ICCs/IPs possess, occupy and use and to which they have claims of ownership
I.

Scope and extent of the phrase all areas in the definition of ancestral domain

Areas A geographical region or a space reserved for a particular function


Discrimination Unfair treatment or denial of normal privileges to persons because of their race,
age, sex, nationality or religion
CERD: Discrimination is any distinction, exclusion, restriction or preference based on race, color,
descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other filed of public life.

Although it is the obligation of the State to accord the ICCs/IPs the rights, privileges and
protections enjoyed by the rest of society, this duty is qualified in that it must be effected with
due recognition to the distinct characteristics and identity of the ICCs/IPs.
E. Respect for cultural integrity and equal footing from the rights and opportunities under
national laws

The State has a duty to protect the culture of ICCs/IPs. This obligation must be carried out
with consideration as to their particular needs and effected without violating their participatory
rights.

Land Comprehends any ground, soil, or earth whatsoever, including fields, meadows, pastures,
woods, moors, waters, marshes and rocks
Inland Refers to the location or direction in or toward the interior of a country
Inland waters Such waters, canals, lakes, rivers, watercourses, inlets and bays, within, or partly
within, the country, exclusive of the open seas, though the water in question may open or empty
into the ocean
Coast The edge or margin of a country bounding on the sea and includes the small islands and
reefs naturally connected with the adjacent land, and rising above the surface of the water
Coastal areas The region along the edge or margin of a country bounding on the sea including
the small islands and reeds naturally connected with the adjacent land and rising about the surface
of the water

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Natural resources refer to the collective developed or potential physical and biological wealth of
any country, such as oil, minerals, forests and water
RA 7611: Refers to life-support systems such as the sea, coral reefs, soil, lakes, rivers,
streams, and forests as well as useful products found therein such as minerals, wildlife,
trees and other plants, including the aesthetic attributes of scenic sites that are not manmade
Protected area Refers to identified portions of land and water set aside by reason of their unique
physical and biological significance, managed to enhance biological diversity and protected against
destructive human exploitation
PD No. 389: Areas segregated as national parks are deemed to include all natural resources or
physical components which are naturally stored or found in such areas.
II.

III. Interruption of possession


Possession A mode of acquisition whereby ownership and other real rights is acquired through
the lapse of time in the manner and under the conditions laid down by the law
Acquired by:
1) Material occupation of a thing
2) Exercise of a right
3) The fact that it is subject to the action of our will
4) Proper acts and legal formalities established for acquiring such right
Necessarily implies occupation, EXCEPT in cases of
1) Occupation which is merely tolerated or executed clandestinely without the
knowledge of the true possessor of the thing
2) By violence
Has to be in the concept of an owner, public, peaceful and uninterrupted

Concept of time immemorial

Time immemorial 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.
Carino v. Insular Government
FACTS: Plaintiff was an Igorot from Benguet who filed an application for, and was
granted, the registration of a parcel of land in the same area. The government claimed
that Spain had assumed and had title to all the land in the Philippines except so far as it
saw fit to permit private titles to be acquired in accordance with a decree of 25 June
1880 under which the plaintiff had failed to register.
HELD: It does not follow that, in the view of the US, he had lost all rights and was a
mere trespasser when the present government seized his land. The fist object of the US
in taking over the Philippines is to do justice to the natives, not to exploit their country for
private gain. The Court upheld the validity of a native title and recognized the validity of
customary law as a mode of obtaining title.
When as far back as testimony or memory goes, the land has been held by individuals
under a claim of private ownership, it will be presumed to have been held in the same
way before the Spanish conquest, and never to have been public land.
Director of Lands v. Buyco
FACTS: Respondents filed an application for registration of land claiming ownership of
the land through inheritance and donation inter vivos, and possession of the same since
time immemorial by their predecessor-in-interest. (For more than 80 years)
HELD: No reasonable basis. Immemorial simply means beyond the reach of memory,
beyond human memory, or time out of mind. When referring to possession, specifically
immemorial possession, it means possession of which no man living has seen the
beginning, and the existence of which he has learned from his elders.

Kinds of interruptions:
1. Natural Through any cause it should cease for more than one year
Possession will be considered a new one and the period of time to perfect prescription
will start over again
2. Civil Possession in wartime when the civil courts are not open
Possession is merely suspended, and the old possession is merely tacked to the new

Possession de facto is lost if the new possession of another has lasted longer than 1 year.

Real right of possession is not lost until after the lapse of 10 years.

Force majeure, war, or displacement by force, deceit or stealth do not affect the possession of
the ICCs/IPs.

IV. Voluntary dealings


Voluntary Refers to actions which are constrained by interference and often implies knowledge
of essential facts
Dealings Refer to transactions in the course of trade or business
Voluntary dealings Refer to deeds, instruments or documents which are the result of the free
and voluntary acts of the parties thereto (land registration definition)
Refer to any free and voluntary transaction of the government and private parties which
would interrupt the occupation or possession of the ICCs/IPs (IPRA definition)
Examples: Contractual sale, donation, lease, usufruct
Involuntary dealings Refer to writs, orders or processes issued by a court of record affecting
registered land which are likewise required by law to be registered in order to be effective; or

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V.

Instruments which are not the willful acts pf the registered owner and which may have
been executed even without his knowledge or against his consent
Example: Sale on execution of judgment

1)
2)

Government projects
A.

National projects

3)

35.5% = Finance the transfer of the AFP military camps and the construction of new
camps
50% = Finance the conversion and commercial uses of the Clark and Subic military
reservations and extensions
5% = Finance the concessional and long-term housing loan assistance

In case that there should be any balance left from the proceeds, it shall accrue and be
remitted to the National Treasury.

Authorizes the creation of the Subic Special Economic Zone


Subject to the concurrence by resolution of the respective sanggunians of Olongapo,
Subic, Morong and Hermosa
Separate customs territory and those within its territory shall pay 3% gross on all
incomes earned and 1% to the LGUs affected in lieu of local or national taxes
Defense of the zone and security of its perimeters shall be the responsibility of the
National Government in coordination with the SBMA

1.

RA 6657, Comprehensive Agrarian Reform Law of 1988 (CARL)

Signed into law in 10 June 1988

Covers all agricultural lands, public or private regardless of tenurial arrangement and
commodity produced, all public and private agricultural lands, including other lands of the
public domain suitable for agriculture

Ancestral lands are not limited to lands actually possessed and occupied by the ICCs/IPs

Makes a proviso for vested rights under the Torrens system

Allows for members of tribal communities to continue to enjoy and exploit the products of the
forest, with the exception of timber, within the logging concessions

Under IPRA, the managements and conservation, as well as the development, control and
use of areas delineated as ancestral lands/domains, vest with the ICCs/IPs.

No provisions is made for representation of the ICCs within the SBMA

RA 7227, Bases Conversion and Development Act of 1992

Decisions of the SBMA prevail in case of conflict between the SBMA and the LGUs
concerning matters, other than defense and security, affecting the SSEZ

With respect to Clark and other special economic zones, the President is authorized to create
by executive proclamation a Special Economic Zone covering the lands occupied by the Clark
military reservations and the contiguous extensions
Subject to the concurrence by resolution of the LGUs directly affected

Under IPRA,
1) ICCs/IPs, prior to any issuance, renewal or grant of any concession, license or lease, or
before entering into any production-sharing agreement, the government must obtain a
certification from the NCIP that the area affected does not overlap with any ancestral
domain.
2) ICCs/IPs have the right to stay in their territories and may not be removed, except
though the exercise of eminent domain, without their free and prior informed consent
with a right to return
3) ICCs/IPs have the right to control and regulate the entry of migrants and organizations
within their ancestral domains

2.

BCDA Entity in charge of the conversion and to which the President may transfer military
reservations plus selected portions of Metro Manila military camps which were selected for
conversion
Properties transferred to the BCDA:
1.John Hay Air Station
2.Wallace Air Station
3.ODonnell Transmitter Section
4.San Miguel Naval Communication Station
5.Mt. Sta. Rita Station
6.Other properties including, but not limited to, portions of Metro Manila military camps

According to the funding scheme, the proceeds from any sale, after deducting all expenses
related to the sale of portions of Metro Manila military camps as authorized, are to be used for
the following purposes:

Purpose of the SBMA:


1.Operate license tourism-related activities
2.Charged with the care of the environment, protection, maintenance and development of the virgin
forests within
3.Adopt measures for environmental pollution control of all areas within its territory

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4)

Right to self-governance is recognized and protected

3.

RA 6957, An Act Authorizing the Financing, Construction, Operation and Maintenance of


Infrastructure Projects by the Private Sector (BOT Law) as amended by RA 7718

3.Commencement, prosecution, execution, implementation, operation of any such contracts/


project
4.Termination or rescission of any such contract/project
5.Undertaking or authorization of any other lawful activity necessary for such contract/project

Applies to both local and national projects

Right to develop includes the right:


1.To manage and conserve natural resources within the territories
2.To benefit from and share the profits arising from allocation and utilization of the natural
resources found therein
3.To negotiate the terms and conditions for the exploration of natural resources in the areas
4.To an informed and intelligent participation in the formulation and implementation of any project
that will affect or impact upon the ancestral domains
5.To receive just and fair compensation for any damages which they may sustain
6. Right to effective measures by the government to prevent any interference

IPRA provides a legal remedy by ensuring the ICCs/IPs the right to stay in their territories,
with the requirement of obtaining their free and prior informed consent to effect their
relocation except in case of the exercise of the power of eminent domain.
Should the project proceed without compliance with the requirements, ICCs/IPs have the
right to stop and suspend the project.

Any TRO/Injunction in violation of the law is deemed void and without any force and effect

EXCEPTIONS:
1.Issued by the SC
2.Dispute or cases filed by bidders or private parties claiming to have a right through such bidders

An aggrieved party may file a petition under Rule 65 of the ROC for relief
B.

Local government projects

LGUs are granted local autonomy by the national government and may undertake their own
development and social progress within the limitations of the Constitution.

General Welfare Clause Every LGU shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare.

Prohibits lower courts from issuing any TRO, preliminary injunction or preliminary mandatory
injunction against the government, or any of its subdivisions, officials or any person or entity
acting under the governments direction, or restrain, prohibit or compel certain acts.

4.

RA 8975, Mt. Kitlanglad Range Protected Area of 2000

Enacted on 7 November 2000

Covers all national government infrastructures, engineering works and service contracts,
including projects undertaken by GOCCs, all projects covered by RA 6957, and other related
and necessary activities

Services and facilities that the barangay may undertake:


1.Related to general hygiene and sanitation, beautification, and solid waste collection
2.Maintenance of barangay roads and bridges and water supply system
3.Construction if infrastructure facilities
4.Construction of satellite and public markets

Service contracts Refer to infrastructure contracts entered into by any department, office or
agency of the national government with private entities and NGOs, for service related or incidental
to the functions and operations of the department, office or agency concerned
Acts of government that cannot be subject to TRO/Injunction: (GENERAL RULE)
1.Acquisition, clearance and development of the right-of-way and/or site or location of any national
government project
2.Bidding or awarding of contract/project of the national government

In the interpretation of the LGCs provisions, where no legal provision or jurisprudence


applies, resort may be had to the customs and traditions in the place where the controversies
take place.

Services and facilities that the municipality may undertake:


1.Extensions and on-site research services and facilities related to agriculture and fishery activities
2.Implementation of community-based forestry projects
3.Solid waste disposal system or environmental management system and services/facilities related
to general hygiene and sanitation
4.Construction of municipal buildings, cultural centers, public parks
5.Construction of other infrastructure facilities intended primarily to service the needs of the
residents of the municipality and which are funded by municipal funds
6.Construction of public markets, slaughterhouses and other municipal enterprises; public
cemeteries; tourism facilities and other tourist attractions

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Service s and facilities that the province may undertake:
1.Agricultural extension and on-site research services and facilities
2.Enforcement of forestry laws limited to community-based projects, pollution control law, smallscale mining law, and other laws on the protection of the environment; and mini-hydroelectric
projects for local purposes
3.Provincial buildings, provincial jails, freedom parks and other public assembly areas and similar
facilities
4.Infrastructure facilities intended to service the needs of the residence of the province and which
are funded out of provincial funds
5.Programs and projects for low-cost housing and other mass dwellings
6.Inter-municipal telecommunications services
7.Tourism development and promotion programs

A city may effect all the services and facilities of the municipality and province, and in addition
thereto, adequate communication and transportation facilities.

Provide for sectoral representation in the sangguniang panlalawigan, panlungsod, and bayan
specifically including representative in the ICCs

IPRA provides for mandatory representation of ICCs in the policy-making bodies and other
local legislative councils.

VII. Mineral resources


Ancestral lands Refer to all lands exclusively and actually possessed, occupied, or utilized by
ICCs by themselves or through their ancestors in accordance with their customs and traditions
since time immemorial, and as may be defined and delineated by law
Indigenous cultural community Refers to a group or tribe of indigenous Filipinos who have
continuously lived as communities on communally-bounded and defined land since time
immemorial and have succeeded in preserving, maintaining, and sharing common bonds of
languages, customs, traditions, and other distinctive cultural traits, and as may be defined and
delineated by law

A mining agreement is subject to the rights of the ICCs to their ancestral lands as provided for
by the Constitution.

The law prohibits the opening of the ancestral land to mining operations without prior consent
of the ICCs/IPs.

Only ancestral lands are protected and with respect to its definition, the occupation must be
actual.

VIII. Traditional access of nomadic ICCs/IPs and shifting cultivators


VI. Forest and agricultural lands

Classification of lands of the public domain:


1. Agricultural
2. Forest/Timber
3. Mineral lands
4. National parks

The power to classify or reclassify falls within the powers of the executive branch, specifically
the President, upon recommendation of the Secretary of the Department of Agriculture.

The classification is descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like.
Land classified as forest land does not lose such classification despite losing its forest
covers.
The classification of the land is not affected by the fact that it is within the ancestral
domain.

Cruz v. DENR (Separate opinion of Justice Panganiban)


One of the problems he pointed to the definition of ancestral domains under IPRA was
the inclusion of nomadic groups and lands to which they traditionally had access to as
part of an ancestral domain. Nomadic groups have no fixed area within which they hunt
or forage for food.

Ancestral domains are inalienable and prior vested rights are respected.

Possession or occupation is the basis of claiming ownership from the viewpoint of ICCs/IPs
with respect to their ancestral domains.

ICCs/IPs use their resources in a manner that ensured the maximum benefit and
sustainability.

SECTION 3(B)
I.

Article XII, Section 3 (Lands of Public Domain)

Only agricultural lands are deemed alienable lands of the public domain.
Until classified alienable, the land continues to be property of the public domain in
consonance with the regalian doctrine.

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Private corporations or associations may hold such alienable lands only by lease, for a period
not exceeding 15 years and renewable for not more than 25 years.
These holdings are not to exceed 1,000 hectares in area.
Individual citizens may lease not more than 500 hectares of alienable lands, and they may
acquire not more than 12 hectares thereof by purchase, homestead, or grant.

II.

Article XII, Section 5 (Congressional power to enact law for ICCs/IPs)

Article XII, Sections 3 and 5 must be read in harmony with each other. Section 5 is an
exception to the classification enumerated in the section on lands of the public domain.

III. Carino v. Insular Government and Native Title

All lands that were not acquired from the Government, either by purchase or by grant, belong
to the public domain.

The concept of native title has evolved in its application and has been utilized to uphold land
rights of non-indigenous peoples, religious entities, and government instrumentalities.

IV. Distinction between ancestral land and ancestral domain


Ancestral land
Ancestral domain
More specific in relation to how people use, Include a broader area, including those that are
exploit and sell
not yet actually being occupied but which
generally belong to what we call a cultural
religion
Include alienable and inalienable lands
Includes inland waters and coastal areas, and Limited to lands that are not merely occupied
lands which ICCs/IPs have traditionally had and possessed but are also utilized by cultural
access for their subsistence and traditional communities under the claim of individual or
activities
traditional group ownership

II.

Meaning of customary law under IPRA

Customary law Rules, usages, customs and practices traditionally and continually recognized,
accepted and observed by respective ICCs/IPs
Custom A juridical rule which results from a constant and continued uniform practice by the
members of a social community, with respect to a particular state of facts, and observed with a
conviction that it is juridically obligatory
A habitual practice or course of action characteristically repeated in like circumstances
Usage or practice of the people, which is commonly adopted and by uninterrupted
acquiescence, acquires the force of a tacit and common consent
Custom under Civil Law:
1. Must be accepted as compulsory and binding by a group or the people to whom it is sought to
be made applicable
2. Usually suppletory in nature

It is in the absence of any applicable provision in the Civil Code that custom should be applied
provided that it is duly proven. Even when applicable, custom must be pleaded and proved as
a fact according to the rules of evidence.

IPRA provides for the primacy of customary law.

III. Importance of codification

A customary law of ICCs/IPs may be identified in terms of genealogies or stories told by


succeeding generations and transmitted orally from one generation to the next generation.

Congress determines the extent of the ancestral domain and the ownership thereof in relation
to whatever may have been codified earlier.

IV. Due process argument


SECTIONS 3(C)(D)(E)

Tanada v. Tuvera
The rule of fairness was deemed to require the publication of laws prior to their effectivity

SECTION 3(F)
I.

Article XII, Section 5 (Applicability of customary laws)


Custom under Civil Code
Custom under Customary Laws
It is ownership and the extent It is the property rights and
thereof which determines the relations which determine
persons property rights and ownership and extent thereof
relations

Custom under IPRA


Not only applicable to the
determination of property
relations, but recognizes
customary practices in
regard to the justice system

People v. Nazario
A law that is vague violates due process.
Cruz v. DENR
The allegation of a violation of due process was raised only as against Section 63 which
provides that any doubt or ambiguity in the application and interpretation of laws shall be
resolved in favor of the ICCs/IPs. Although the petition failed, there was no clear majority
among the justices on the question of the constitutionality of applying customary laws.

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Justice Vitug = Due process clause would require an apt publication of a legislative
enactment before it is permitted to take force and effect.
Justice Kapunan = The use of customary laws, as provided under IPRA, is not absolute,
for the law speaks merely of primacy of use.
Justice Puno = Customary law co-exists with the civil law concept and the laws on land
titling and land registration.

SECTION 3(G)
I.

G.

Consent to transfer the responsibility to maintain, manage, conserve and develop critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected area and forest
cover within the ancestral domain with the effective assistance of government agencies

Consent obtained must have been given with full understanding of the object for which it was
given

Full understanding Full disclosure of the intent and scope of the activity involved in a language
and process understandable to the community

Definition under civil law

Free Having the power to decide based on the dictates of own will or not subject to the dominion
of another
Prior Refers to preceding in time or in the order
Inform To communicate knowledge to, or tell or appraise, to make aware
Consent Voluntary approval of what is done or proposed by another
Under the Civil Code, it is manifested by the meeting of the offer and acceptance upon
the thing and the cause which are to constitute the contract.
To constitute a valid consent, it must be voluntarily given and that the party giving the
consent should have full knowledge and understanding of the important facts/data.
A contract is voidable where the consent is given through mistake, violence, intimidation,
undue influence or fraud.
Informed consent A persons agreement to allow something to happen that is based on full
disclosure of facts needed to make the decision intelligently

Under IPRA, absence of full disclosure is a vice of consent which not only renders the
contract voidable but void.

II.

Instances in need of FPIC


A. Relocation of ICCs/IPs in their territories, except when it is a case of eminent domain
B. Necessary relocation as an exceptional measure
C. State shall preserve, protect and develop the past, present and future manifestations of
their cultures as well as the right to the restitution of cultural, intellectual, religious, and
spiritual property
D. Explore, excavate or make diggings on archeological sites of the ICCs/IPs for the
purpose of obtaining materials of cultural values
E. Access to biological and genetic resources and to indigenous knowledge related to the
conservation, utilization and enhancement of these resources
F. Issuance of a certification by the NCIP that the area affected does not overlap with any
ancestral domain

Without the full disclosure there is an absence of consent. Such absence would render the
contract not merely voidable but void.

III. Administrative Order No. 01 Series of 2006: The new free and prior informed consent (FPIC)
guidelines of 2006
A. Depend on the nature and extent of the proposed plan, project, program or activity
sought to be introduced in the ancestral domain area
B. Conduct of securing FPIC for large scale activities shall be governed by Section 26
1. Posting of notices and serving of invitations
2. Consultative Community Assembly
3. Consensus-building and freedom period
4. Decision meeting
C. Small scale activities are governed by Section 27
1. First meeting
2. Consensus-building
3. Decision making
D. Consent of the ICCs/IPs for a particular proposal is not transferable except:
1. In cases of merger, reorganization, transfer of rights, acquisition by another entity,
or joint venture, to any party; and
2. Such transfer in provided in the MOA
E. Community-solicited or initiated activities do not require field-based investigation or FPIC
SECTION 3(H)
I.

Definition of indigenous

Indigenous Refers to being native-born in the Philippines


Indigenous cultural communities or Indigenous peoples
Groups of people or homogenous societies identified by self-ascription and ascription by
others;
Who have continuously lived as organized community on communally bounded and
defined territory;

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-

II.

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 to political, social and cultural inroads of colonization,
non-indigenous religions and cultures, become historically differentiated from the
majority of Filipinos
Also included are peoples who are regarded as indigenous:
1) On account of their descent from the populations which inhabited the country;
2) At the time of conquest or colonization;
3) At the time of inroads of non-indigenous religions and cultures; or
4) At the time of the establishment of present state boundaries
Who are continue to retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains or
who may have resettled outside their ancestral domains.

Distinguished from other groupings

Primitive tribe Refers to a group of endemic tribes living primitively as a distinct portion of a
people from a common ancestor
Tribe A distinct portion of a people or nation, or a family or race descending from the same
progenitor, and kept distinct

which the petitioners required to take up residence. The provincial governor issued EO
No. 2 directing all the Mangyans in the vicinities to relocate to the reservations and
penalizing with imprisonment those who disobeyed. Petitioners who were members of
the Mangyans of the Province of Mindoro filed an application for habeas corpus.
HELD: During that period, the policy of government was integration. The reservations
were necessary in order to organize politically those deemed as non-Christians into
fixed and permanent communities. Section 2145 was valid as an exercise of police
power of the government. The Manguianes were very low in culture, meaning that they
were primitive, semi-nomadic people and showed no desire for community life.

Haw Tay v. Singayao


FACTS: Haw Tay filed an administrative complaint against Singayao, a judge of the RTC
and a member of the Aromanon Manobo tribe, for violation of RA 3019 and gross
ignorance of the law. It was alleged that Singayao had demanded and received money
from him on several occasions, including a plane ticket.
HELD: Judge found guilty. Instead of indefinitely suspending the judge, the court took
into consideration that Singayao was a member of a poorly developed indigenous
cultural community and the only member of that group who had achieved membership
in the Philippine Bar.
IV. Ascription

The fundamental criterion for determining the groups to which the convention would apply still
remains self-ascription. (ILO 169, Section 1)

Ethnic Means pertaining to such peoples, their origin, characteristics, and classification, or
peculiar to a people
V.

Common bonds

Minority Refers to a portion of the population differing from the majority in race, religion, national
origin, political affiliation, especially when subject to discrimination

Recognizes the diversity of cultures, not geographic considerations

ICCs/IPs are not descriptive of geographical groups but identifies those who share common
bonds of language, customs, traditions and other distinctive cultural traits

ILO 169 applies to both tribal and indigenous peoples.


Tribal peoples Those whose social, cultural and economic conditions distinguish
them from other sections of the national community, and whose status is regulated
wholly or partially by their own customs or traditions or by special laws or regulations
Indigenous peoples Those who are regarded as indigenous on account of their
descent from the populations which inhabit the country, or a geographical region to
which the country belongs, at the time of conquest or colonization or the establishment
of present state boundaries and who, irrespective of their legal status, retain some or all
of their own social, economic, cultural and political institutions

VI. Historical differentiation


Tribal peoples Those whose social, cultural and economic conditions distinguish them from
other section of the national community, and whose status is regulated wholly or partially by their
own customs or traditions or by special laws or regulations

IPRA includes those who are historically differentiated from the majority of Filipinos

III. Jurisprudence
VII. Descent
Rubi v. Provincial Board of Mindoro
FACTS: Heeding the directive Article 2145 of the Administrative Code of 1917, the
provincial board issued Resolution 25 setting aside the area for the reservations within

Indigenous peoples (ILO 169) Those who are regarded as indigenous on account of their
descent from the populations which inhabit the country, or a geographical region to which the

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country belongs, at the time of conquest or colonization or the establishment of the present state
boundaries and who, irrespective of their legal status, retain some or all of their own social,
economic, cultural and political institutions.

directly affected

SECTION 3(K)

IPRA does not consider the fact of having descended from a population of a given
geographical region.

VIII. Displacement

The President may create reservations for government, public or quasi-public uses or
purposes.

Reservations intended for common and public welfare and services are those made by the
Government over lands of the public domain. The exercise of this power comes into direct
conflict with the rights of ICCs/IPs to their ancestral domains/lands.

SECTION 3(J) Discussed in Chapter 8

I.

Creation of the NCIP

Pursuant to the mandate of Article 12, Section 5 of the Constitution, Congress, through IPRA,
created the NCIP.

NCIP is an administrative body vested with quasi-judicial powers and quasi-legislative


powers.

It is the primary government agency responsible for the formulation and implementation of
policies, plans and programs to promote and protect the rights and well-being of the ICCs/IPs
and the recognition of their ancestral domains as well as their rights thereto.

SECTION 3(I)
I.

Existing political structures contrasted with ordinary barangay under the LGC

II.

Issue in Cruz v. DENR: Administrative relationship to the Office of the President

What is utilized by the community depends on what is dictated by their customary laws and
traditions.

According to the LGC, the barangay is the basic political unit.

Justice Kapunan : The provision in the IRR characterizing the NCIP as an independent
agency under the OP does not infringe upon the Presidents power of control. It expressly
places the NCIP under the OP.

Each barangay has 1 punong barangay, 7 sangguniang barangay members, a sangguniang


kabataan, a barangay secretary and a barangay treasurer.

The submission before the barangay as a general rule is a pre-condition to the filing of a
complaint, petition, action, or proceeding involving any matter within the authority of the lupon
in court.

In barangays where the majority of the inhabitants are members of ICCs/IPs, the customary
dispute settlement process shall be recognized without prejudice to the applicable provisions
of the LGC.

II.

Tribal barangay under the LGC

Barangays may be created in ICCs by the Act of Congress.

LGC
Creation of a barangay is subject to approval by
a majority of the votes cast in a plebiscite
conducted by the COMELEC in the LGUs

Independent agency Administrative body independent of the executive branch or one not
subject to a superior head of department
Subordinate agency Administrative body whose action is subject to administrative review or
revision
IPRA provides that:
1. NCIP must secure the President approval in obtaining loans to finance its projects
2. NCIP must obtain the Presidents approval for any negotiation for funds and for the
acceptance of gifts and/or properties in whatever from and from whatever source
3. NCIP shall submit annual reports of its operations and achievements to the President
and advise the latter on all matters relating to the indigenous peoples
4. NCIP shall exercise such other powers as may be directed by the President
5. President has the power to appoint the Commissioners of the NCICP and to remove
them from their office for cause motu proprio or upon the recommendation of any
indigenous community

IPRA
Creation of a tribal barangay is part of the Right
to Self-Governance and Empowerment.
III. Administrative jurisdiction over the NCIP

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DAR DLR (EO 364) old DAR (EO 456) DENR (EO 726) OP (EO 746)

Time immemorial possession continued to be a basis for the recognition of vested rights.

SECTION 3(L)

III. Carino in light of Cruz v. DENR

I.

Justice Puno (Upheld the pure concept of native title; Land was private)
1. Carino doctrine is unique in that the concept of native title presumes that the land is
private and was never public.
2. It was only in Oh Cho v. Director of Lands that the court declared that the rule that all
lands that were not acquired by the government belong to the public domain has an
exception. This exception would be any land that should have been in the possession of
an occupant and of his predecessor-in-interest since time immemorial.
3. Long, continuous, open and adverse possession in the concept of owner of 30 years
both for ordinary citizens and members of the national cultural minorities that converts
the land from public into private and entitles the registrant to a torrens certificate of title

Carino v. Insular Government

Johnson v. MIntosh
The rights of the original inhabitants of the land were not entirely disregarded; but were
necessarily, to a considerable extent, impaired. These natives were indeed the rightful
occupants of the land. As such, they had a just claim to retain possession thereof.
However, their rights to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil at their own will, to whomsoever
pleased, was denied by the original fundamental principle that discovery gave exclusive
title to those who made it.
Worcester v. Georgia
The claim of the Native American Indians is based on possession from time immemorial.

Concept of native title in the US = Only gave recognition to rights of possession

Concept of native title in the Philippines = Refers to pre-conquest rights of ownership

Three important points in Carino evidencing the rights of ICCs/IPs with respect to their ancestral
lands:
1. Title will not be extinguished merely because of alien occupation.
2. American occupation was primarily for conquest and domination, and their presence in
the Philippines was to extend protection.
The ancestral lands of the Igorots were private lands. The property was private in
character because of the tribal custom and long association as well as their
practice and belief.
3. Unenforceability of laws under Spain
II.

Concept of time immemorial possession in land registration

Carino has been accepted as authority for claims under the Public Land Act.
Mistake : Carino concerned lands which had never been public while the PLA concerned
lands which were admittedly public initially but could become private after the lapse of
30 years of adverse possession
Result: Two Streams of Cases in Philippine Jurisdiction
a) Lands possessed since time immemorial are recognized as private and therefore
subsequent reclassification of land cannot prejudice the rights of the inhabitants
b) Public agricultural lands could be private in character and could therefore be titled if
the claimant can show adverse possession for the length of the prescriptive period

Justice Kapunan (Upheld the pure concept of native title; Land was private)
1. Regalian doctrine does not negate native title to lands held in private ownership since
time immemorial.
2. Native title assumes that the property covered by it is private land and is deemed never
to have been part of the public domain.
3. The framers of the Constitution were presumed to be aware of the prevailing judicial
doctrines concerning the subject of constitutional provisions.
Justice Panganiban (IPRA is unconstitutional)
1. The law recognized/grants rights over lands of the public domain, waters, and other
natural resources in contravention of Section 2, Article XII of the Constitution.
2. The law defeats, dilutes or lessen the authority of the State to oversee the exploration,
development, and utilization of natural resources.
3. Carino doctrine was modified/superseded by the 1987 Constitution.
Justice Vitug (IPRA is unconstitutional)
1. IPRA effectively withdraws from the public domain the so-called ancestral domains
covering literally millions of hectares. (Undue delegation)
2. Carino doctrine cannot override the collective will of the people expressed in the
Constitution
SECTION 3(M)

Volunteerism and participation of NGOs in the national development should be encouraged.

SECTION 3(N)

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Peoples organizations Bona fide associations of citizens with demonstrated capacity to
promote the public interest and with identifiable leadership, membership and structure

Commonwealth Act 141 (1936)


- Filipino Citizens may apply for a certificate of title if they have been in open,
continuous and exclusive possession of land since July 26 1894, later
amended to at least 30 years of possession

Republic Act 3872 (1964)


- Added subsection (c) to Section 48 of the Public Land Act to enable cultural
minorities to apply for judicial recognition of imperfect title.

P.D. 410 (1974)


- Declared all agricultural lands occupied and cultivated by cultural minorities
since 1964 as alienable and disposable (hence may be acquired by the
cultural minorities).

Revised Forestry Code


- Recognized private rights of primitive tribes as the rights of possession
which may include places of abode and worship, burial grounds, and old
clearings
- However, this prohibited cultural minorities from entering forest lands without
permit from the Bureau.

P.D. 1529
- Did not specifically mention rights of IPs but recognized the right to register
lands under exclusive possession.
- However, in theory, such lands were previously public lands and would only
become private lands through possession. Whereas the whole concept of
ancient possession is that the lands were private from the very beginning.

Rights of these organizations to effective and reasonable participation at all levels of social,
political and economic decision-making shall not abridged.

SECTION 3(O)

Existing laws in relation to environmental protection require reconciliation with sustainable


traditional resources rights of ICCs/IPs.

SECTION 3(P)
CHAPTER III: RIGHTS TO ANCESTRAL LANDS
I Pre-IPRA

Spanish Regime
- The Regalian Doctrine was followed- All lands belong to the crown, hence all
lands found in Philippine territory belong to the Spanish Crown.
- Nevertheless, Spanish laws recognized private ownership of lands
- Spanish Royal Cedula of 1754, Article 4 recognized title by ancient
possession. The law was in force but the crown was not subject to the period
of prescription therein.

Valenton v. Murciano
-

W/N plaintiffs could obtain ownership over public lands from the state by
occupation from 1860 to 1890. No.
The Court held that from 1860 to 1892, there was no law in force by which
plaintiffs could obtain ownership by prescription without any action from the
State.

Act No. 496


- First land registration law in the Philippines. It also provided for the issuance
of patents to certain native settlers upon public lands
- The U.S. Supreme court overturned the Valenton case and recognized that
natives owned land without any grant from the State.

Public Land Act (1919)


- Recognized that any native who possessed and cultivated land since July 4,
1907 has the right of ownership over the land.

II Under IPRA

Ancestral territories
- Total Environment The concept of ancestral domain includes the trees, the
land, the minerals, and even the bodies of water. These include the people,
their dwellings, the mountains, the water, the air, plants, forests, and animals.
- Spiritual and cultural bonds Ancestral territories are a place of their religion
because the spirits that they worship are there.

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pasture, residential, agricultural, and other lands individually-owned, whether alienable
or not, hunting grounds, burial grounds, worship areas, bodies of water, and other
natural resources.

SECTION 5
II Indigenous Peoples concept of ownership

IPs claim ownership to ancestral domains/lands under the legal concept of native title.

Native Title- ICCs/IPs are the private owners of areas and territories that they have possessed
occupied and utilized since time immemorial. These territories have never been part of public
domain.

Ancestral Domains Private but Community property


They are private simply because they are not part of public domain
- But are owned in common by the IPs and not by one particular person.
- Rests on traditional belief that no one owns the lands except the gods and
spirits, those who work the land are mere stewards.

III Legal Consequences of Ownership; distinction between Civil Law and IPRA

Civil Law
- Ownership includes the right to enjoy, dispose, consume, enjoy the fruits, and
the right to recover.
- Co-ownership in Civil law gives the right to a co-owner to demand partition of
the property held in common at any time
IPRA
-

Ancestral Land those held under the same conditions as ancestral domains but
limited to lands that are occupied, possessed, and utilized by cultural communities under
a claim of individual or traditional group ownership.

SECTION 7
SECTION 7(A) Right of Ownership
II Interpretations of Section 7(a)

Does ownership over ancestral domains extend to natural resources?

Justice Kapunan (Cruz v. DENR separate opinion): The law excludes natural resources
from the right of ownership.

Justice Puno (Cruz v. DENR separate opinion): the IRR of IPRA stating that IPs have
rights of ownership over natural resources goes beyond the parameters of IPRA, which
mentions no such rights, thus is contrary to law.

Fr. Bernas: IPRA does not deprive the government of control over natural resources.
The NCIP is an agency of the Office of the President.

III Sacred places


Ownership does not include the right to sell, dispose, and destroy. (Although
the IPRA permits transfer of land to members of the same IPs)
The concept of community property does not permit IPs to demand partition. It
would be destructive to the community.

IPs view nature as a space where the natural and supernatural interpenetrate. Some
areas in ancestral domains that are untouched are reserved because such places are
sacred.

IV Intergenerational responsibility
IV Hunting and Fishing Grounds

Ancestral domains belong to all generations of IPs.

Their rights over natural resources take the form of management or stewardship. They
must ensure that the natural resources are preserved for future generations.

SECTION 6

Ancestral Domain an all embracing concept which refers to lands, inland waters,
coastal areas, and natural resources therein and includes ancestral lands, forests,

Most, if not all, of IPs rely on hunting and fishing. The relationship with the land is at the
core indigenous societies.

Hence, hunting and fishing grounds would usually be part of what they consider as
ancestral domains.

V Improvements

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IPs also own all improvements made by them at any time within the domains.

Improvements under IPRA would include anything that the IPs have added on to the
ancestral domain whether it is for repair or embellishment.

SECTION 7(B) Right to develop lands and natural resources


I Priority rights

IPs have priority rights (not exclusive rights) in the harvesting, extraction, development,
or exploitation of any natural resources within their domains.

Justice Kapunan (Cruz v. DENR)The grant of priority rights is not a blanket authority to
disregard pertinent laws.

II Rights included in Section 7(b)

Right to develop, control, and use.


- IPs may directly harvest resources within the ancestral domain. However,
exploration other than that must be through the State.
- Mining
R.A. 7942 Philippine Mining Act of 1995 No ancestral land shall
be opened for mining operations without the prior consent of the
IPs.
R.A. 7076 Peoples Small Scale Mining Act of 1991 No ancestral
land may be declared as a peoples small-scale mining area without
prior consent of the IPs
Mining permits or agreements existing at the time of the effectivity
of IPRA may not be renewed without prior consent of IPs.
- Forestry/Timber licensing
Do IPs need a permit with respect to harvesting trees? Not squarely
ruled upon.
Cruz v. DENR left the issue unanswered.
Section 68 of P.D. 507 or the Revised Forestry Code punishes
harvesting and possessing timber without a license.
But said section does not apply within ancestral domains. If ever it
does apply, section 57 of IPRA grants IPs priority rights.
Pit Og v. People held that some customary law within the IPs puts
in doubt the element of ownership in the crime of theft.
Other views maintain that IPs still need to get a permit.
- Fishing
Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming.

With IPRA, IPs need not register nor obtain a license in case of
small-scale fishing.

Right to manage and conserve resources within the territories; Right to benefit
and share the profits from allocation and utilization of the natural resources found
therein; Right to negotiate the terms and conditions for the exploration of natural
resources in the area
- Management and conservation
Under IPRA, the right of IPs to manage and conserve natural
resources becomes a matter of duty and springs from the
indigenous concept of ownership since domains are held by
present possessors in trust for all generations.
- Benefit and share
Right given to IPs to benefit from the utilization of natural resources
is similar to the right given to local governments
Unlike local governments however, the utilization of the funds is
subject to the authority of the NCIP which is tasked to ensure that
30% of all funds are allocated to development projects with the IPs.
- Negotiate terms
Benefits IPs receive under law are without prejudice to additional
benefits as may be negotiated between the parties. The NCIP shall
assist in the negotiation to ensure that the terms are not inimical to
the IPs.

SECTION 7 (C) Right to stay in territories


I Rights of possession under the Civil Code

No express repeal of Civil Code in IPRA- certain concepts found in the Civil Code are
still applicable to IPs

Doctrine of Self-Help- The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof and he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property.

Remedies under Civil Law:


- Ejectment/Forcible Entry or Unlawful detainer
- Accion Publiciana
- Accion Reinvindicatoria
- Injunction

IPs are also subject to police power and eminent domain as limitations on ownership

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II Relocation

Two instances of relocating IPs:


- 1) As an exceptional measure with free and prior informed consent
Deemed necessary during the occurrence of emergency situations
caused by ecological catastrophes, widespread epidemics, or
armed conflict.
It is an exceptional measure if after exhausting all legal remedies, it
remains the only option to avoid loss of lives and to safeguard the
health and safety of the populations affected.
Should be temporary
Always with free and prior informed consent according to
established procedures
- 2) Through Eminent Domain
There must be taking- Requisites:
Expropriator enters property
Entrance is for more than a momentary period
Entry is under warrant or color of legal authority
Property must be devoted to public use
Entry is such a way as to oust the owner and deprive him
of the property
It is devoted to public use
There is just compensation

III Right to return

Even if relocation is necessary, IPs do not lose their rights to the ancestral domain

When- as soon as the grounds for such relocation cease to exist

They also have a right to be compensated for damages sustained as a consequence of


the relocation

If return is not possible- IPs shall be provided with lands of quality and legal status at
least equal to that of the land previously occupied by them, suitable to their present
needs and future development.

SECTION 7 (D) Displacement

Distinguished from 7(c):

Relocation can happen only when it is deemed exceptional, while


displacement can only occur as a result of natural catastrophe. Relocation is
broader.
Relocation requires free and prior informed consent, while displacement is
silent on the matter

Displacement can only occur in case of a natural catastrophe

IPs rights in case of displacement:


- Right to resettlement- IPs should be resettled in suitable areas where they
can have temporary life support systems.
- Right to return- similar to right to return in relocation
- If right to return is not possible, the displaced IPs shall, upon their free and
prior informed consent, be accorded:
Relocation to a site of equal quality and legal status at least equal
to that of the land previously occupied by them, suitable to their
present needs and future development
Security of tenure over those lands. They are entitled permanent
tenurial rights.
Compensation for loss, injury, or damage as a consequence of
such relocation and displacement
- Procedure for compensation:
Who may file:
Any individual in case of loss of life, injuries or damage to
property
Concerned IP Elders or Leaders
NCIP motu propio
NCIP is to be notified in case of the first two
The NCIP or the affected IP with assistance of the NCIP will file a
claim with the appropriate office or agency that caused the damage
Payment of compensation
- Relocation should as a general rule be temporary. Permanent relocation is the
exception. Relocation will only be permanent if:
The ancestral domains cease to exist
Conditions for return pose grave and long-term risks.
Does not mean literal physical disappearance.
Normalcy and safety of domains are not possible
Ex: Aetas in Mt. Pinatubo
- Resettled IPs cannot claim the resettlement area as their ancestral domain
since domains are strictly based on native title.
- If the resettled area is within the domain of another tribe, the relocated tribe
may work with the host tribe to recognize the formers presence. The host

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tribes customary law of the host tribe may be determined and an appropriate
agreement drawn.
- If the resettled area is a portion of public land or a private property, IPs may
register their lands under the torrens system.
SECTION 7 (E) Right to regulate entry of migrants

IPs have the right to set up systems and processes to decide on whom to allow to live
within their lands and to negotiate the terms of such stay.

Migrant- a person who is not a native of the ancestral domain or part owner of ancestral
land but who, because of certain reasons, opted to occupy and utilize portions of the
ancestral domains and have since established residence therein.

Migrants must secure express permission of the communitys council of elders/leaders


who shall, in accordance with their customs, and upon free and prior informed consent,
agree to accept such migrant subject to:
- Migrants may perform activities as are expressly authorized and not inimical
to the development of ancestral domains and cultural integrity of IPs
- IPs maintain the right to impose penalties for violation of customs, IPRA or
IRR

Is this a restriction on the freedom of movement? No.


- Such right given to IPs, who are private property owners, are similar to the
right of an owner under Civil Law.

Watershed

SECTION 7 (F) Right to Safe and Clean Air and Water

IPs retain the right to integrated systems the State may provide to the public in general.

IPs also have the right to prevent any project or activity within the ancestral domain
unless environmental concerns are addressed and their free and prior informed consent
obtained.

SECTION 7 (G) Right to claim part of reservations

Reservation- any tract of public domain proclaimed by the President of the Philippines
for government use or any of its branches or instrumentalities or of inhabitants thereof,
for public or quasi-public uses or purposes

Types:
-

Civil
Forest
Military

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INDIGENOUS PEOPLES 2009-2010


same has not been resolved. The certification is a condition precedent for the filing of
the complaint with the NCIP, through its Regional Offices.

II Who Declares?

The power to declare is an exclusive prerogative of the Executive Department through


executive proclamation of the Office of the President.
Under Section 14 Book 14 of the Administrative Code, the power to reserve includes the
power to withdraw.

III (Chapter 7)
SECTION 8 Rights to ancestral lands
SECTION 8 (A) Right to transfer land/property

III Indigenous Peoples right to claim


I Ownership under Civil Law and IPRA

It is settled that ancestral domains were never part of the public domain. Therefore, they
are not covered by the power of the President, which extends only to public lands. BUT,
Section 56 of IPRA recognized and respects the property rights within the ancestral
domains which are already existing and vested upon effectivity of the act. So:
- Reservations prior to the effectivity of IPRA are valid public reservations. The
Presedint needs to re-proclaim them as ancestral lands with the help of the
NCIP.
- Reservations after the effectivity of IPRA are void and the IPs may claim the
lands even without any re-proclamation by the President. Ancestral lands are
considered not of public domain.
IPs have a right to claim parts of reservations which falls under their ancestral domains,
except:
- Those that are reserved and intended for common and public welfare and
service (Exception applies whether proclaimed before or after IPRA)
- Proclamation of common and public welfare reservations partakes the nature
of police power measures.

Difference between Civil Law and IPRA on ownership (see Section 5 III)

Ownership of ancestral domains cannot be alienated to anybody since ownership of


domain excludes the right to sell, dispose, or destroy.

Ancestral lands may be transferred to or among members of the same IPs subject to
customary laws.

II Limitations on the right to transfer

2 limitations:
- 1) The transfer must be between or among IPs
To preserve the lands within the community.
IRR If a non-IP becomes a member of the community by
marriage, such person only has usufructury rights over lands.
- 2) Must be according to customary laws of the community concerned.

SECTION 7 (H) Right to resolve conflict


Section 8 (b) Right to redemption
I Primacy of customary laws

IRR all conflicts pertaining to property rights, claims and ownership, hereditary
succession and settlement of land disputes within ancestral domains shall be resolved in
accordance with the customary laws, traditions, and practices of the IPs in the area
where the conflict arises.

II Certification a condition precedent

If the conflict is not resolved through such customary laws, the Council of
Elders/Leaders who participated in the attempt to settle the dispute shall certify that the

IPs have a right to redeem ancestral lands transferred to non-IPs on the following
grounds:
- 1) Vitiated consent Same as in Civil Law, there is vitiated consent when
there is:
Error or Mistake It should refer to the substance of the thing
which is the object of the contract or to those conditions which
principally moved one to enter into the contract
Violence Serious or irresistible force is employed to wrest consent
Intimidation When compelled by a reasonable and well-grounded
fear of an imminent and grave evil upon ones person or property or
that of ones spouse, descendants, or ascendants.

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INDIGENOUS PEOPLES 2009-2010

Undue Influence A person takes improper advantage of his power


over the will of another, depriving the latter of a reasonable freedom
of choice.
Fraud or Deceit When one of the parties is induced to enter into
the contract through insidious words or machinations which, without
them, he would not have agreed to.
2) Unconscionable consideration or price
The price is unconscionable when the amount compared to the
value of the property is so disproportionate as to be revolting to
human conscience.

Effect of either of the two grounds the contract or transfer is void ab initio

The right to redeem cannot be waived for consideration. Such a waiver is contrary to
public policy

Redemption under Civil Law vis--vis IPRA


- Civil Law
Transfers with vitiated consent are voidable contracts
Gross inadequacy of price does not affect a contract of sale except
as it may indicate a defect in the consent, or that the parties really
intended a donation or some other act.
Redemption is either conventional redemption, as when it is
stipulated in the contract, or legal redemption, as when the
redemptioner is a co-owner or an owner of an adjoining land.
The period of redemption is 30 days
- IPRA
Vitiated consent and unconscionable price renders the contract
void ab initio.
Redemption is always legal redemption because it is provided for
by IPRA.
The period of redemption is 15 years
Redemption under the Public Land Act vis--vis IPRA
- IPRA
Redemption may only be exercised under the 2 grounds
- Public Land Act
Mere alienation or encumbrance, and nothing else, gives rise to the
right to redeem.

SECTION 9 Respnsibilities of the ICC/IPs to their ancestral domains

IPRA resonates the protection and advancement of a right to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.

SECTION 9 (A) Maintain Ecological Balance


SECTION 9 (B) Restore Denuded Areas

IPRA has officially mandated the right of the IPs to participate in reforestation

IPs who participate are given just and reasonable compensation.

SECTION 9 (C) Observe Laws


SECTION 10 Unauthorized and unlawful intrusion
I Unauthorized or unlawful intrusion

Section 10 included migrants without express permission from the communitys council
of elders/leaders or to any project implemented without free and prior informed consent.

Violators may be punished under Article 281 of the Revised Penal Code (Trespass to
property) or under IPRA or both. IPRA is a special law so double jeopardy cannot be
invoked.

II Parens Patriae

IPRA is the performance of the State of its duty to act as parens patriae. The State
attempts to protect the rights of persons who, because of age or inherent incapacity, are
at a disadvantage.

SECTION 11 Recognition of ancestral domains


I Native title as basis

The mode of acquiring ownership over ancestral domains is native title. Formal
recognition of such ownership is by the issuance of a CADT.

II Formal recognition

Certificate of Ancestral Domain Title or CADT merely confirms ownership over ancestral
domains, similar to a Torrens title.

III Certificate of Ancestral Domains Claim (CADC)

Prior to IPRA, the DENR recognized claims through the issuance of CADCs since it was
legally inhibited to issue titles without a law.

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INDIGENOUS PEOPLES 2009-2010

Resolution titled Declaration on the Granting of Independence to Colonial


Countries and PEOPLES]

Under IPRA when a domain had gone through CADC process, it need not go through
the whole process of delineation for CADTs.
c.

IPs are included in the term peoples in the plain meaning of the term as
borne out by the increasingly common usage of the term peoples in
association with indigenous p=groups in both international and domestic
arenas of decision-making.

d.

Right to Self Determination does not really mean right to secession


Hurst Hannum an exercise of legitimate self-determination should
only be exercised on the basis of the consent of all involved parties, not
just those who wish to separate. Statehood is not really necessary to
guarantee the legitimate human rights of groups and individuals to
protect and promote their own culture, language, and traditions.

SECTION 12 Option to secure certificate of title under Commonwealth Act 141 or the Land
Registration Act

Who IPs who individually owned and actually used continuously ancestral lands for a
period of at least 30 years prior to the approval of IPRA

When 20 years from the approval of IPRA

What lands may be titled Ancestral lands which are agricultural in character and
actually used for agricultural, residential, pasture, and tree farming purposes, even if the
slope is 18% or more (amending the Revised Forestry Code).
II.

CHAPTER IV: RIGHT TO SELF-GOVERNANCE AND EMPOWERMENT

Treaty and International customary law oblige States to respect the right of all peoples to selfdetermination since both in law and in practice, self-determination has been vested in peoples
since time immemorial and has never been the property of States.

Self-determination is a universal, indivisible and interdependent concept in the development


of man and society.

SECTION 13: SELF-GOVERNANCE


I.

Self-determination
a. Meaning
Essentially, it is that which human beings are equally entitled to be in
control of their own destinies.
In PIL, it is an inalienable right which vests colonized and dependent
countries with the power to freely determine their political status, to
freely pursue their economic, social and cultural development and
freely to dispose of their wealth and resources.
b.

Self-Governance
a. Scope and Meaning
ILO 169 mandates that States shall establish means for the full
development of tribal peoples own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purposes. It
takes bolder step by describing right to self-governance as relating to
their internal and local affairs, culture, religion, resource management,
etc.
Sec. 13, IPRA recognizes the right to self-governance, in general, of
ICCs/IPs. A tribal barangay is the specific unit of governance in which
ICCs/IPs are entitled to form under certain requirements.
Self-governance does NOT include the maintenance of their own police
agencies.
Compared with Autonomy under the Constitution, the ICCs/IPs are
NOT considered territorial and political subdivisions (e.g. provinces,
cities, municipalities) UNLESS they choose to exercise their right under
Sec. 18, IPRA to establish a tribal barangay in accordance with the LGC.
ICCs/IPs need NOT comply with the requisites for the formation of local
government units and autonomous regions unless they choose to
establish a tribal barangay. However, in the case of the two autonomous
regions (remember, ARMM and Cordillera), organic act is required, and
a plebiscite called for the purposes of approving such is needed. [Note:
there is no Cordillera Autonomous Region yet].

Western Sahara Advisory Opinion it concludes that the decolonization


process envisaged by the General Assembly is one which will respect the
right of the population of Western Sahara to determine their future political
status by their own freely expressed will. [The opinion is based on the GA

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b.

Concept of Autonomy
It is either decentralization of administration or decentralization of
powers.

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INDIGENOUS PEOPLES 2009-2010


Limbona v. Mangelin decentralization of administration is when the
central government delegates administrative powers to political
subdivisions in order to broaden the base of government power, and to
make the local governments more responsive and accountable. The
President only exercises supervision overn them but not control over
their acts. Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government units declared
to be autonomous. The autonomous government is free to chart its own
destiny and shape its future with minimum intervention from central
authorities. It amounts to self-immolation since the autonomous
government becomes accountable not to the central authorities but to its
constituency.
Katarungang Pambarangay a system of mediation and arbitration for
certain cases, actually recognizes the justice system of indigenous
communities.
Legally speaking, autonomy in local matters in intended to mean the
right of aboriginal peoples and communities, within the national states, to
manage and use their lands and natural resources and promote their
cultural values - in particular, education, environmental protection,
health, housing, employment and social welfare - through their own selfgoverning bodies. This is not exactly the same in Autonomy under the
constitution because no particular council legislates its customary laws
but all of them take part in determining these customary laws.
c.

d.

II.

ICCs/IPs OUTSIDE ARMM and Cordilleras autonomous regions


a. They shall use the form and content of their ways of life as may be compatible
with the fundamental rights defined in the Constitution.

SECTION 15: JUSTICE SYSTEM, CONFLICT RESOLUTION INSTITUTIONS AND PEACE BUILDING PROCESS
I.

Justice System under IPRA


a. In connection with Sec. 63, it is clear that with respect to property rights,
claims and ownership, hereditary succession, settlement of land disputes
within ancestral domains and ancestral lands, customary law shall be applied
first.
b. IRR - All conflicts related to the ancestral domains ro lands where one of the
parties is a NON-IP or where the dispute could NOT be resolved through
customary law shall be heard and adjudicated in accordance with the Rules
and Pleadings, Practice and Procedures before the NCIP. Exhaustion of all
remedies is a condition precedent before bringing the case to the Regional
Hearing Officer.
c. Sec. 10, Rules of Procedure:
i. Parties belong to same tribe dispute settlement will be in
accordance with the ICC/IP community;
ii. Parties belong to different tribes dispute settlement will be in
accordance with the inter-tribal disputes settlement procedures, if
any, OR, on applicable procedure as the parties may agree.
iii. Lawyers are prohibited from appearing as counsel of a party,
EXCEPT when he is appearing as member of the council of elders.

IRR ICCs/IPs have the following powers and rights:


Right to confer leadership titles.
Recognition of leadership titles.
Issuance of Certificates of tribal membership.

SECTION 14: SUPPORT FOR AUTONOMOUS REGIONS


I.

Concept of Autonomous Regions


a. Cordillera Broad Coalition v. COA The SC held that EO No. 220 was a
step preparatory to the grant of autonomy to the Cordilleras and does not
create an autonomous regions contemplated in the Constitution as it merely
provides for transitory measures in anticipation of the enactment of an organic
act.
b. Ordillo v. COMELEC Only the Ifugao Province voted the approval of CAR
Organic Act. The rest declined. The SC held that the Congress never
intended that a singles province may constitute the autonomous region.
c. The cases of Cordillera Broad and Ordillo are significant within the context of
IPRA because they tell us when the autonomous region for the Cordilleras will
be effective. The supposed organic act for the CAR vests it with jurisdiction

over ancestral domain. As this was not approved yet, the jurisdiction over
ancestral domains in the Cordilleras will still be retained by the NCIP.
However, in ARMM, since its Organic Act has been ratified, the Regional
Government has jurisdiction in all matters devolved to it by the Constitution,
including ancestral domain and natural resources. BUT, the Organic Act does
NOT provide for the procedure for survey, delineation and titling of ancestral
lands and domains of the ICCs/IPs. Although the Regional Government has
the power to create a particular agency to fully implement its jurisdiction over
ancestral domains/lands, including issuance of titles, this power has not yet
been put into implementation. Thus, as of the present, in ARMM, the petitions
to secure a certificate of ancestral domains/lands title may be filed before the
NCIP.

II.

Other laws recognizing the indigenous justice system


a. ARMM First Organic Act created the Shariah Courts. This includes the
Shariah Appellate Court.
b. ARMM First and Second Organic Act also provides for a system of Tribal
Courts, including Tribal Appellate Courts. Jurisdiction: pernal, family, and

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INDIGENOUS PEOPLES 2009-2010


c.
d.

e.

f.

property rights; over crimes where the penalty does not exceed 6 years or a
fine not exceeding 50k or both.
CAR Organic Act provides also for the creation of tribal courts, which may
as well include Tribal Appellate Court. It may also create a Council of Elders.
LGC on Katarungang Pambarangay conciliation settlement must be filed
first to the Lupon or Pangkat, and NOT directly before the court. The customs
and traditions of the ICCs shall be applied in settling disputes between
members of the cultural communities. Under the IPRA, the application of the
indigenous justice system is mandatory in cases of property rights, claims and
ownership, hereditary succession, settlement of land disputes within the
ancestral domains and ancestral lands between the same ICCs/IPs. A
certification to file action is needed on the ground of failure of settlement in
case a party decides to pursue the case in the proper court.
Exceptions from the requirement of certificate to file action:
i. Where on the of the parties is a public or private corporation, or a
public officer and the dispute is in connection with his official
functions;
ii. Where one of the parties is non-IP or does not belong to the same
ICC, except when voluntarily submits to the Council of Elders;
iii. Where the relief seeks to prevent any grave, imminent and
irreparable damage or injury;
iv. Where Council of Elders refused to issue the certification without
justifiable reasons.
Note: while the SC mandates the punong barangay to issue the certificate to
file action, the NCIP Rules of Procedure state that it is the members of the
indigenous group or the Council of Elders who issue the certification to the file
action.

BUT, IPRA, not being an organic act, has formally included the tribal court system
within the legal system of the Philippines. The settlement by the council has the
same force and effect of a settlement or decision by the NCIP.
SECTION 16: RIGHT TO PARTICIPATE IN DECISION-MAKING

I.

Mandatory Representation in Policy-Making and Local Legislative Councils


a. ICC representation shall be proportionate to their population
b. Manner of Choosing ICC/IP representatives shall be qualified and chosen
by their own communities in accordance with a process to be determined by
them.
c. Policy-Making Bodies IPRA does not mention specifically the policy-making
bodies that the ICCs/IPs are entitled to mandatory representation. However,
in the context of IPRA, these policy-making bodies are those agencies of the
State that are tasked to lay down guidelines which affect the ICCs/IPs.
Representation of the ICCs/IPs in the national Legislature was diminished
because now the ICCs/IPs have to register as a sectoral party or organization
to be voted in office.

II.

Sec. 16 also refers to local legislative councils

SECTION 17: RIGHT TO DETERMINE AND DECIDE PRIORITIES FOR DEVELOPMENT

III. Present Hierarchy of Courts:


With respect to the decisions of the NCIP, the NCIP is a quasi-judicial agency and its
decisions are appealable to the CA by petition for review. Hence, it is officially part of
the legal system of the Philippines.
Badua v. COMELEC Since the CAR did not come into legal existence, the tribal court
is an ordinary tribal court existing under the customs and traditions of an indigenous
cultural community. Such tribal courts are not part of the Philippine judicial system
which consists of the SC and the lower courts which have been established by law.
They do not possess judicial power. Like pangkats, they are advisory and conciliatory
bodies whose objective is to persuade the parties to compromise. An amicable
settlement rendered by a pangkat, if not seasonably repudiated, has the force and
effect of final judgment of a court, but it can only ne enforced through a court.
Similarly, the decisions of the tribal courts on compromise may be set aside through
regular courts.

Sec. 16 is the statutory enforcement of Art. II, Sec. 22 of the Constitution which
mandates that the State recognized and promotes the rights of ICCs within the
framework of national unity and development.

I.

Sec. 17 is a specific exercise of their right to culture under Chapter VI of IPRA.


One way of effectively enforcing Sec. 17 is through Sec. 59 which requires a certificate
pre-condition from all departments and other government agencies before the issuance
of granting of any concession or similar agreements to avoid overlap with any ancestral
domain.
Sec. 17 is likely to be applied regarding interference with the ancestral domains.
Process and Procedure
a. The ICCs/IPs have the right to ACCEPT or REJECT a certain development
intervention in their particular communities. [Note: this is related to the IPRA
provisions requiring FPIC].
b. Extent of FPIC when the policy or project affects only a particular
community, only such community shall give their FPIC. When the policy or
projects affects the entire ancestral domain, the consent of the ICCs/IPs
concerned shall be secured.

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INDIGENOUS PEOPLES 2009-2010


c.

d.

e.

f.

Manner it shall be in consensus-building process. The following are the


minimum basic elements:
i. Information dissemination to all members of the concerned IPs;
ii. Assessment of the concerns or issues by appropriate assemblies in
accordance with customs and traditions;
iii. Discernment and initial decision by recognized Council of Elders;
and
iv. Affirmation of the decision of the elders by all the members of the
community.
Minimum Requirements i. For every meeting, notices written in English or Filipino and ICC/IP
language and authorized by community elders shall be delivered
and posted in conspicuous places in the areas where the meeting
shall be conducted at least 2 weeks before the scheduled meeting.
ii. Meetings shall be in the process and language spoken and
understood by the ICCs/IPs.
iii. Minutes of the meeting shall be in English, or Filipino and in the
language of the ICCs/IPs and shall be validated with those who
attended the meeting.
iv. Consent or rejection by the ICC/IP shall be signified by affixing
signatures or thumb marks in a document written in their own
language with English or Filipino translation. In case of rejection,
ICCs/IPs shall state whether they shall entertain alternative
proposals.
v. Alternative proposals shall be subject to FPIC.
Other Obligations of the Proponent of the Policy or Projects:
i. Submit a commitment to full disclosure of records and information
relevant to the policy, and allow full access to such.
ii. Submit an Environment and Socio-Cultural Impact Statement,
detailing the impact of the policy or project to the community as a
whole.
iii. Submit an undertaking to answer for damages which the ICCs/IPs
may suffer on account of the policy or project.
iv. Underwrite all expenses attendant to securing the FPIC of the
ICCs/IPs.
Policies, Programs, Projects, Plans and Activities subject to FPIC. [Not
exclusive list]:
i. Exploration, development, exploitation of natural resources;
ii. Research in indigenous knowledge, systems and practices related
to agriculture, forestry, technologies, medical, etc.
iii. Displacement and relocation
iv. Archeological explorations
v. Policies affecting the general welfare of the ICCs/IPs

g.
h.

vi. Entry of military and paramilitary forces for establishment of


temporary facilities.
Memorandum of Agreement between the ICC/IP concerned and the NCIP is
needed as part of the process in securing FPIC.
Gen. Rule - The FPIC by the ICCs/IPs for a particular proposed policy or
project shall NOT be transferable. Exception in case of merger,
reorganization, transfer of rights, acquisition by another entity or joint venture.
Provided: 1) no changes in the original plan, 2) the interests and rights of the
ICCs/IPs are not prejudiced.

SECTION 18: TRIBAL BARANGAYS


I.

Requirements:
a. Under the LGC: it requires a law and a plebiscite for its creations.
i. It may be created by law or by an ordinance of the Sangguniang
Panlalawigan or Panlungsod, subject to approval by majority of the
votes cast in a plebiscite conducted by the COMELEC.
ii. When the barangay is created by the Sangguniang Panlalawigan,
the recommendation of the Sangguniang Bayan shall be
necessary.
iii. With respect to tribal barangays, the requirement on population (of
at least 2000 inhabitants according to the LGC) need NOT be
complied with. But here, the act of Comgress is needed to create a
tribal barangay.
iv. Where the members of the ICCs reached 2000 or more, it may be
created through an ordinance so long as the other requirements
under the LGC and the IPRA are complied with.

ANDRES ATCHECO BAUTISTA CADIZ CASUELA ESCOSIA FORTEA GREGORIO SILVA SUMAGAYSAY VALDEZ / ATENEO LAW 3A 2011

b.

Under the IPRA:


i. ICCs/IPs must live in contiguous areas or communities
ii. They form the predominant population in the area;
iii. They are located in municipalities, provinces or cities where they do
not constitute the majority of the population;
iv. The FPIC of the ICC members must be sought. [Sec. 18 does NOT
explicitly require FPIC. BUT, since the creation of tribal barangay is
a project or policy that directly affects them, then FPIC is
necessary].

c.

Plebiscite:
i. Tan v. COMELEC the plebiscite should be conducted
municipality-wide even if what is involved is a barangay.
ii. Padilla v. COMELEC reiterates Tan case; plebiscite shall be
conducted in the political units directly affect.
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INDIGENOUS PEOPLES 2009-2010


iii. Note that both Tan and Padilla cases did not involve tribal
barangays.
d.

Equivalent Free Voting [EFV]


i. EFV is found in the UN Declaration of Human Rights the will of
the people shall be the basis of the authority of government; it shall
be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
ii. EFV recognizes alternative ways of expressing the will of the
people other than through secret vote.

c.

SECTION 20: MEANS FOR DEVELOPMENT/EMPOWERMENT OF ICCS/IPS

IP empowerment is part of self-determination.


Peoples Organization is a vehicle in pursuing people empowerment. IPs may be
empowered through joining ICCs/IPs organizations.
The process of empowering IPs aims at changing the nature and direction of systematic
forces that causes marginalization.

SECTION 19: ROLE OF PEOPLES ORGANIZATIONS

I.

II.

CHAPTER V: SOCIAL JUSTICE AND HUMAN RIGHTS

Indigenous Peoples Organization (IPOs) are autonomous partners in development and


shall fully support the development and empowerment of IPOs, or associations to
pursue and protect their legitimate and collective interests and aspirations.
NCIP shall prepare culture sensitive guidelines in consultation with the IPOs
Registration Requirement
a. For the purpose of acquiring legal personality, the IPOs may register with the
NCIP.
b. Philippine Association of Free Labor Unions v. Sec of Labor registration
is not a limitation of the right of association which right may be exercised with
or without registration but is merely a condition sine qua non for the
entitlement of rights and privileges granted by law to legitimate organizations.
c. NGOs with intentions of operating, or already operating within ancestral
domains, have to be accredited by the NCIP Regional Office where the NGO
operates. Such accreditation shall be renewable every 2 years.
Monitoring
a. IPOs and accredited NGOs are required to submit to the NCIP Field Offices
certain documents like change of officers, financial and accomplishment
reports and changes in programs, etc.
b. Grounds for suspension or revocation of certificate of registration of IPO or
Certificate of Accreditation of NGO:
i. Unauthorized negotiation to a juridical person on development
exploitation of natural resources;
ii. Misrepresentation in an agreement with investors to the detriment
of the community;
iii. Accepting bribery
iv. Loss of trust and confidence of members of the community.
v. Violation of customary practices
vi. Other analogous circumstances

Cancellation Proceeding: 1) Complaint; 2) Hearing; 3) Cancellation; 4)


Decision of the NCIP Regional Officer may be appealed to the Commission.

Implies that those who have less in life should have more in law; legal bias in favor of
the underprivileged.
Human rights are basic entitlements which inhere in every person as a human being and
are inalienable.

SECTION 21 Non discrimination and equal protection of IPs.


I. Concept of Equal Protection
A.

Under international law

UN charter: promotion of human rights without distinction as to race, language, sex, religion

UDHR: all human beings are born free and equal in dignity and rights; but this is a mere
declaration, needed a treaty. Hence, ICCPR, ICESCR were born through agreements with
states to guarantee the fundamental rights without distinction or discrimination. Phils is
signatory in both conventions.

CERD, Phils also a party; addressed problem of discrimination on the basis of ethnicity and
race. Calls parties to condemn all forms of discrimination
B.

Under the Constitution

No person shall be denied equal protection of laws. Equality of all persons before the law.
Hence in Borra case, the court invalidated the requirement for running for public office to post
a bond since it discriminate against those who cannot afford to post such bond. But valid

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classification does not preclude imposition of distinct or additional rights/obligations unto
persons of the same class.
Requisites of due process:
1. Rest on substantial distinction
2. Germane to purpose of the law
3. Not limited to existing conditions
4. Apply equally to all members of the same class.

Ips as a class: all rights and privileges enjoyed by the rest of the citizenry will be accorded to
Ips with due recognition of their distinct characteristics and identity. State should not hesitate
in giving them special protection.

In the case of Rubi, application for habeas corpus filed by Ips of Mindoro due to alleged
illegal detention within a reservation by the provincial officials, enforced by the governor
pursuant to the administrative code. SC denied petition on the ground of police power, and
that they were restrained for their own good considering their degree of civilization (inability to
govern themselves compared to Christians).

In the case of People v. Cayat, the SC upheld the regulation prohibiting the Ips to have in
their possession, buy or drink intoxicating liquors other than native wines, to ensure peace
and order.
Sec 13 and 18 of IPRA now recognize the right of the Ips to self-governance. In fact
they have a right to regulate the entry of migrants within their ancestral domains, IPRA
hastens the equalization between Ips and non Ips, by recognizing that the unequal situation
between the 2 are not inherent and that their conditions of poverty, illiteracy, and
underdevelopment were brought about by Govt. neglect, foreign colonization and
discrimination.

Ips free from any form of discrimination re:


a. Recruitment and basic conditions of employment, and penalizes discriminatory acts
b. Same rights and opportunities for basic services (water and electricity, educ, health,
infrastructure)
c. Education right to alll levels of educ, scholarships, grants, incentives; Ips have right to
control their educational institutions in accordance to their cultural methods of learning
and teaching, and their language.

Prohibition against coercion of Ips, physical or moral. RPC punishes grave coercion. So acts
can be punished under bothIPRA and RPC, because penal provisions of IPRA
comprehensive enough to include RPC.

IP women: CEDAW defines discrimination against women as any distinction, exclusion,


restriction made on the basis of sex which impairs or nullifies recognition or enjoyment of
women of human rights and basic freedoms. Phils bound by this convention. Sec 21 od IPRA,
affords all IPS same rights as that of the rest of the citizenry, recognizing role of women in
nation building.
1) Labor laws prohibits discriminating against a woman employee because of mariage
2) Family law equal legal capacity of woman and man
3) RPC/SPL RA 6955 ban on mail order Filipina brides with foreigners for a fee and
promotion of such acts.; RA 7877 punishing sexual harassment hence if IP asked to
go to work bare like that practiced in her tribe to attract more customers, that is sexual
harrasment, same with fondling with hands, massaging shoulders, or bringing them to a
motel without or agaisnt their consent
4) IPRA: protection of IP women under laws above cited.

SECTION 22 Rights during Armed Conflict

States acts under armed conflicts governed by generally accepted internation rules.

International Humanitarian Law comprises of all rules designed to regulate treatment of


individuals in international armed conflicts.

1994 Geneva Convention govern non-international armed conflicts.

Meaning of Armed Conflict

Armed conflicts (AC) any difference between 2 states and leading to the intervention of
members of the armed forces even if one of the parties denies the existence of a state of
War.

To constitute international AC, use of force by the organs of state are required, not that of
private persons.

On the other hand, non-international AC is a confrontation between existing government


authority and groups of persons subordinate to this authority, carried out by force of arms
within the national territory and reaches the magnitude of an armed riot or civil war.

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Protection of Civil Population

Under IPRA, govt bound to observe intl. standards, in particular Geneva Convention IV

It is important to distinguish between combatants and civilians


1) Under Geneva Convention IV, a different set of rules applies to civilians, who must at all
times be respected and protected
2) Combatants are obliged to distinguish themselves from civilians while engaged in an
attack or in a military operation preparatory to an attack

NCIP shall implement rehab program and emergency proram for Ip victims to aid the effects
of AC on their psycho-social functioning and devt.

Right Against Expulsion or Relocation

Who are civilians?


Civilian a person who is not a member of the armed forces
Civilians are not entitled to participate in hostilities
Same concepts applicable in non-international AC; a protected civilian is one not taking
part in direct hostilities
In case of doubt whether a person is a civilian, that person shall be considered to be a
civilian
Persons accompanying the armed forces without being members thereof are also
considered civilians (ex. War correspondents, members of labor units for the welfare of
soldiers)
Once civilians engage in combat, they may not be able to claim the protection
guaranteed to civilians

IPRA affirms that Ips need to be afforded special protection during AC.

Rule 5 Sec 2 of IRR, declares their territories as zones of peace; NCIP shall ensure intl.
standards are met; and State shall not:
1) IPRA recruit IP in general in particular for use against other Ips. But under Consti, state
may call upon all citizens to defend the state under conditions provided by law. No
conflict = condition of IPRA is consent must always be secured
2) Recruit children of IPS into the armed forces under any circumstances Convention on
rights of child (RA 7610) where child is under 18. State to ensure those under 15 do not
take part in hostilities, over 15 under 18 state shall give priority to oldest in terms of
recruitment, children as zones of peace not subject to attack, delivery of basic services
and emergency relief to them shall remain unhampered, appropriate steps to reunite
them with their families, they shall be given priority during evacuation, members of same
family as much as possible, housed together, those arrested during AC right to separate
detention from adults, free legal assistance, immediate notice of arrest to IP parents,
release of child within 24 hrs to DSWD, suspension of judgment til he reaches age of
majority
3) Recruit Ips against their will
4) Relocate IP communities to special centers for military purposes
5) Force Ips to abandon their lands or means of subsistence
6) Require Ip to work for military purposes under discriminatory conditions.

govt cannot force Ips to abandon their land, means of subsistence, or relocate them in
special centers for military purposes.

SECTION 23 Freedom from Discrimination and Right to Equal Opportunity and Treatment
I.

Employment

IPRA ensures Ips accorded full respect and recognition as valuable citizes of the Phils. Rights
include right to:
1. Be free from discrimination with respect to conditions of employment, recruitment
2. Enjoy equal opportunities for admission to employment, both skilled and unskilled
3. Just and legal remuneration for work = equal pay for equal work
4. Medical and social assistance, occupational safety, social security, benefits
5. Be informed of their rights under labor laws
6. Freedom to associate
7. Enjoy wholesome environment
8. Be free from coercive recruitment processes
9. Just treatment
Right against Bonded Labor or Debt Servitude (right to be free from coercive recruitment
processes)
1. Jus Cogens status Slavery Convention, proscribes any form of slavery. Remember,
municipal laws cannot be an excuse to evade intl. obligations.
2. Phils Law prohibition against enslavement in consti. No involuntary servitude in any
form shall exist, except as punishment for a crime where party duly convicted.
Recognized as early as 1901 in case of In re: Brooks where enlisteed US man in US
Army. He was granted absolute discharge from Army and entered employ in one military
dept. Upon failure to comply with his contract for personal services, arrested and
imprisoned and ordered deported. He filed petition for habeas corpus, SC granted since
he was already discharged, no legal bond between Brooks and Army. It is improper to
compel fulfillment of obligations by means of compulsion and is not justified by law or by
contract.
Right to Association

Unlawful for employers and unions to interfere, restrain, coerce employees in their exercise of
this right

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This includes right not to associate and right to disassociate

Subject also to right of free exercise of religion

IP can form their own union in case their spriritual beliefs prohibit them from joining other
associations, as in case of Kapatiran Sa Meat and Canning Division v. Ferrer Calleja
where Iglesia ni Kristo believers formed their own union.

Ips can form their own bargaining unit (enjoy mutuality of interests)
CHAPTER VI: CULTURAL INTEGRITY

SECTION. 29 Respect, recognize and protect the rights of ICCs/IPs to preserve and protect their
culture, traditions and institutions. Involvement of ICCs/IPs in national policy formulation and
application.
Cultural Integrity shall refer to the holistic and integrated adherence of a particular ICC/IP
community to their customs, religious beliefs, systems and practices and their right to assert their
character and identity.
Right to Cultural Integrity:
1. Protection of indigenous culture, traditions and institutions;
2. Establish and control educational systems;
3. Recognition of cultural diversity;
4. Right to name, identity and history; community IPR;
5. Protection of religious and cultural sites;
6. Right to indigenous spiritual beliefs;
7. Protection of sacred places;
8. Protection of knowledge systems and practices;
9. Right to science and technology.
NCIP main office on indigenous rights affairs
OCRG civil registrar; collaborates with NCIP
1987 Consti., Art. XIV, Sec. 17 primary basis for the recognition of the rights of ICCs/IPs to
preserve and develop their own culture, traditions and institutions.

Cases:
Church of Lukumi Babalu Aye v. City of Hialeah City ordinance punishing ritual killings of
animals allegedly to prevent animal cruelty declared void by SC for being contrary to the free
exercise principle.
Philippine setting: Animal ritual killings done by ICCs/IPs allowed when done in a humane manner.
Employment Division, Oregon Department of Human Resources v. Smith Sacramental
peyote use is not a violation of law if not proscribed by the laws of a State.
Philippine setting: There is no distinction as to use of plant and its derivative. There is no exception
even if used for traditional, medicinal or ritualistic use.
Right to self-governance and empowerment two aspects: 1. Right to choose whether to continue
with traditional way of life or not and 2. Right to control or determine the pace of their development.
ILO 169 provides:
1. ICCs/IPs should benefit on an equal footing which the national laws grant to other members of
the population;
2. Promotion of full realization of ICCs/IPs social, economic and cultural rights.
3. Assistance of ICCs/IPs to eliminate socio-economic gaps.
4. In carrying out developmental programs, co-op studies with the peoples concerned should be
made concerning the programs impact on the indigenous community.
SECTION 30 Educational Systems
The NCIP shall establish a program that shall:
1. Create an educational system relevant to the needs of the ICCs/IPs particularly the young
people;
2. Develop relevant curricula using the ICCs/IPs own language, history, etc.
3. Encourage indigenous learning, self-learning and out-of-school study programs.
4. Provide adults IPs with skills needed for civic efficiency and productivity.
1987 Consti., Art. XIV the State shall protect and promote the right of all citizens to quality
education at all levels and shall take appropriate steps to make such education accessible to all.
However, compulsory education is enforced up to the elementary level only. Free government
education is up to high school level only.

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International instruments on education:
1. Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Equal access to education regardless of race, color or ethnicity
2. Convention on Rights of the Child (CRC)
Right to education is a necessary component of the development of a child.

IPRA Sec. 31 provides some of the above-mentioned measures such as:


1. correction of ICCs/IPs portrayal in books
2. cultural-educational exchange
3. ICC/IP media promotion
4.ICC/IP leaders participation in socio-cultural activities

Local statutes on education:


1. Family Code education is included as support
2. Child Youth and Welfare Code all children are entitled to education commensurate with their
abilities regardless of sex, social status, religion, etc.
3. Special Protection of Children Against Child Abuse
4. Declaration of Rights of Indigenous People
5. ILO 169 six articles dedicated to education

SECTION 32 Community Intellectual Rights; The State shall protect past, present and future
manifestations of their cultures as well as their right to restitution of cultural, intellectual, religious
and spiritual property taken without their free and prior informed consent or in violation of their
laws, customs and traditions.

Cases:
Wisconsin v. Yoder State compulsory school-attendance law (up to 16 years of age) violated
Free Exercise rights of Amish people.

Duty of the State under IPRA: 1. Preserve, 2. Protect and 3. Develop indigenous culture.
RA 8293 provides non-patentable objects:
1. method of treatment of human or animal body
2. plant varieties or animal breeds or essential biological process for the production of plants or
animals
3. Aesthetic creations

Ebralinag v. Division Supt. Of Schools Flag Statute Law not violation of Free Exercise Clause.
Non v. Dames II State has duty to discipline students who do not comply with flag ceremony
requirement at school.
Section 31. Cultural Diversity
The State shall:
1. Consult with ICCs/IPs concerned with regards to taking effective measures to foster good
relations among ICCs/IPs and all segments of society.
2. Make sure that State-owned media would duly reflect indigenous culture diversity.
3. Ensure participation of appropriate IP leaders in school, activity and international activities (e.g.
fiestas, conferences) to promote their distinctive cultural heritage.
1987 Consti., Art. XIV, Sec. 14 Constitutional reference of cultural diversity.
Philippine Information Agency (PIA) lead agency tasked to communicate with the people and is a
useful tool in information dissemination and promotion of cultural diversity.
ILO 169 requires member States to undertake measures to educate their own national to eradicate
prejudices against ICCs/IPs.

Remedies under IPRA for infringement:


1. Patent injunction, destruction of goods, damages, criminal action in case of repetition.
2. Trademark and unfair competition damages, double damages, impound, injunction, disposal of
goods outside channels of commerce, destruction of goods, criminal action, cancellation or
correction of registration.
3. copyright damages, injunction, criminal action, impound, destruction, seizure, administrative
remedies.
SECTION 33 Right to religious, cultural sites and ceremonies; Right to manifest, practice, develop
and teach their spiritual and religious traditions, customs and ceremonies; right to use and control
of ceremonial objects; right to repatriation of human remains.
Unlawful:
1. Explore, excavate or make diggings or archaeological sites of ICCs/IPs without free and
informed prior consent.
2. Deface, remove or otherwise destroy artifacts which are of great importance to the ICCs/IPs for
the preservation of their cultural heritage.

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National Museum primary agency in charge of preserving and protecting the cultural properties of
the country.
Cultural Properties enumerated by law. Includes old buildings, monuments, shrines, meteorites,
artifacts, antiques, carvings, paintings, sculptures, iron, gold, coins, metals, badges, etc. (see page
300 for complete list )
Important cultural properties any cultural property which have been singled out for exceptional
historical and cultural significance to the Philippines.
National cultural treasure highest level of cultural property. They are 1. Unique objects found
locally and 2. Possesses outstanding historical, cultural, artistic and/or scientific value which is
highly significant and important to the Philippines.
Ceremonial object and human remains- relics; also cultural properties.
SECTION 34 Right to indigenous knowledge systems and practices and to develop own science
and technology; Full ownership and control of their own cultural and intellectual rights; Right to
special measure to protect and control their science and technologies (including plants, derivatives,
animals, minerals) and also oral traditions, literature, designs, and arts.
Indigenous Knowledge Systems and Practices (IKSP) total body of knowledge possessed by the
ICCs. Important in its contribution to improve human health and nutrition and to protect the
environment.
Indigenous knowledge unique, traditional, local knowledge existing within a particular geographic
areas.
SECTION 35 Access to biological and genetic resources; Free and informed prior consent required
from the ICCs/IPs who own land wherein biological and genetic resources access is sought.
Biological resources genetic resources, organisms, or parts thereof, populations or any other
biotic components of ecosystems with potential use for humanity.

2. Only duly-recognized universities and academic institutions, domestic government entities, and
intergovernmental entities may apply.
3. Consent of ICCs/IPs affected.
4. Membership of a representative from the indigenous community.
5. Benefit sharing sharing of results regarding activity and benefits arising from the utilization or
commercialization of the resource found and its equitable sharing with the indigenous community.
The Five Tagbanwa Principles:
1. Waste prevention harvest must be entirely used such that no waste is generated.
2. Precautionary management there must be built-in measures to prevent or mitigate adverse
impacts and ensure that natural processes are not disrupted.
3. Sustainable harvesting resources can be harvested only to the extent that it will not deplete
the supply and disturb its natural regeneration capacity.
4. Users Pay Arrangement the greater amount of resource used, the higher the cost of
compensation given to other potential users for foregone opportunities.
5. Natural Pattern Preservation patterned process that maintains nature must be preserved in
implementing an intervention to avoid adverse impact.
Section 36 Sustainable Agro-Technical development
SECTION 37 Funds for archaeological and historical sites; The ICCs/IPs shall have the right to
receive from the National Government funds for the preservation and maintenance of such sites.
Historical Site any place, location and structure, including a province, city, town, which has had a
significant and important role in the history of the Philippines and such significance and importance
may be cultural, political or historical.
Archaeological site any place which may be underground or on the surface, underwater or at sea
level which contains fossils, artifacts and other materials which have paleontological or pre-historic
importance.
Cases:
Monasco v. CA parcel of land which was the birth site of founder of INC declared by the
National Historic Institute as a national historic landmark declared by SC as valid.

Genetic materials any plant, animal or microbe containing functional units of heredity.
EO No. 247:
1. Requirement of a Commercial Research Agreement from the government.

Army Navy Club of Manila Inc. v CA Subject land was declared by SC as not a national cultural
property or landmark absent compliance with the procedure set forth in RA 4846 as amended by
PD 374.

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Primary gov agency responsible for formulation & implementation of policies, plans &
programs to promote & protect the rights & well-being of ICCs/IPs and recognition of
ancestral domain and their rights thereto

CHAPTER VII: NATIONAL COMMISSION ON INDIGENOUS PEOPLE


SECTION 38
SECTION 39
Historical Background
Prior to the creation of the NCIP, numerous agencies have been constituted in the past
to serve the interests of ICCs/IPs. This includes (chronologically):
1. CNI (Commission on National Integration),
2. Mindanao Development Authority
3. Mountain Province Development Authority
4. SPDA (Southern Philippines Development Administration)
5. PANAMIN (Presidential Assistan to National Minorities
6. Office of Muslim Affairs
7. ONCC (Office of Northern Cultural Communities) and (OSCC (Office for Southern
Cultural Communities)
8. Mt. Pinatubo Assistance, Resettlement and Development Commission
Nature
Rule making
Power to promulgate rules and regulations to implement a particular law
Merely auxiliary or subordinate legislative power
To be valid, rules & reg must be:
a. Issued by authority of law
b. Within scope and purview of law
c. Reasonable
2. Adjudicatory
Quasi-judicial
Must observe due process (Ang Tibay v CIR case)
a. Right to hearing
b. Tribunal must consider evidence presented
c. Decision must have something to support itself
d. Evidence must be substantial*
e. Decision rendered on the evidence presented
f. Board/judges must act on their own individual consideration of the law and the facts in
the controversy (impartial)
g. Decision rendered in a manner parties may know various issues involved
3. Primary government agency

Mandate

General: protect and promote interest and well-being of ICCs/IPs with due regard to their
beliefs, customs, and traditions and institutions

Specific:
a. Promulgation of IRR (section 80)
b. Promulgation of rules & regulations governing hearing and disposition of cases filed
before it and those pertaining to internal functions

Objectives
Primary objectives (Rule VII, part I, sec 3)
a. Formulation and implementation of policies, plans, and programs for, and with its
main public clientele, the IPs
b. Promote and protect rights and well-being of ICCs/IPs and recognition of their
ancestral domains/lands based on customs, traditions, & institutions
c. Primary govt agency ICC/IPs can seek govt assistance
Independent Agency

Cruz v. DENR
Question raised validity of Rule VII, section I for allegedly violating the Constitution
for infringing the power of control of the President over executive Dept.
Court ruled that it doesnt infringe power of control. The NCIP is lateral but
autonomous. It is an independent agency

Definition of independent agency: admin body independent of executive branch or one


not subject to a superior head of dept; as opposed to subordinate agencies whose
actions are subject to admin review or revision

NCIP still under Presidents control and supervision with respect to its admin function
a. Presidents approval in obtaining loans to finance projects
b. Presidents approval for negotiation for funds and for acceptance of gifts
c. Submission of annual reports and advise president to all matters relating to IPs
d. Exercise such other powers as may be directed by President
e. President power to appoint Commissioners

Sec 1 of Part I Rule VII not new, found in Book IV of Admin Code which recognizes
lateral relationship; defines attached agency as lateral relationship

1.

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Sec 2 of Part II Rule VII: NCIP bound to submit annual reports to Office of President
within 60 days after the close of each calendar year

As much as possible, prepared in accordance with the following form and contents:
a. Message: contains impt policies, programs, projects, and activies; status of
implementation; other relevant info
b. Executive Summary: Significant results of operations for year under review
c. National ICC/IP Situation: overview of policy and social environment from
perspective of ICCs/IPs
d. Organization and Management: identifies offices and personnel of Commission
e. Budget Performance and Financial Statements
f. Plans, Programs, Accomplishments: in narrative pictorial manner, the major plans
and programs of Commission as a whole
g. Decisions of the Commissions En Banc: digests of all decisions

SECTIONS 40-42
Presidential power to appoint
Exclusive prerogative of President, NOT subject to confirmation of CA
A. Civil Service
Appointments made only according to merit and fitness, as far as practicable and except
to positions that are policy-determining, primarily confidential, or highly technical, by
competitive examination
NCIP Commissioners position is policy-determining, non-competetive, non-career
service position

B. Security of Tenure
All civil servants, including NCIP Commissioners, are removable only for cause (Bernas)
Any member of NCIP may be removed from office by President, on his own initiative or
upon recommendation of ICC, before expiration of his term for cause and after
complying with due process
Removal
A. Who may remove
1. Presidents own initiative
2. Recommendation of any ICC
B. Procedure requirements
1. Formal petition/complaint filed by ICC to Office of President in Manila or regional
field offices
2. Petition/complaint must include, but not be limited to: narration of facts and
circumstances describing act . Must attach necessary documents supporting
petition/complaint
C. Inhibition against members of Commission

All prohibitions governing conduct of national public officers relating to


prohibited business and pecuniary interests so provided in R.A. 6713 (Code of
Conduct & Ethical Standards for Public Officials and Employees)

SECTION 43
Composition and Appointment
1. IP membership
2. Ethnographic division
3. Womens representatives
Qualifications
1. Natural-born Filipino citizen
2. At least 35 yrs at time of appointment (appointment deemed completed at time of
acceptance)
3. Bona fide member of ICC/IPs (by consanguinity)
4. Must submit sworn statement containing experience in ethnic affairs for at least 10 years
with an ICC/IP community and/or govt agency involved with ICC/IP
5. Proven honesty and integrity, not convicted of crime involving moral turpitude, graft and
corruption, administrative charges; submit clearances from Ombudsman and/or NBI; in
case of aspirants in public service, clearances from COA and CSC
6. All documents verified by Office of President through field validation
7. Act of public or ethnic misrepresentation penalized according to customary law or
related laws
Term

3 years
Subject to reappointment for another term
No person shall serve for more than 2 terms, or more than 6 consecutive years
Appointment to vacancy only for the unexpired term

Compensation
Chairperson and Commissioners entitled to compensation according to Salary
Standardization Law
SECTION 44
Power and Functions
a. Reiteration of sec 38
b. Policy review, formulation, and implementation powers
c. Formulate and implement policies, plans, programs, projects for development of
ICCs/IPs and to monitor implementation
d. may request and engage services and support of experts from other agencies

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e.

Function pertaining to ancestral domains/lands (further discussed in Chapter VIII of


book)
f. Power to enter into contracts/agreements/arrangements with govt or private entities
when necessary
g. Can negotiate for funds and to accept grants/donations/gifts/properties subject to
Presidents approval
h. Integral part of functions as primary agency so that ICCs/IPs can seek govt assistance
i. Relates to policy review, formulation, and implementation. Can convene periodic
conventions or assemblies
j. empowered to advise President on ICC/IP matters and submit, within 60 days after close
of calendar year, report of operations and achievements
k. Can submit to Congress appropriate legislative proposals
l. Prepare and submit appropriate annual budget to Office President
m. In charge of issuing appropriate certification as pre-condition to grant or renewal of
permit/concession/license/lease/production-sharing agreement, or any other similar
authority
n. Decide all appeals from decisions and acts of all offices within Commission
no case brought directly to Commission except where Commission exercises
exclusive and original jurisdiction which refers to petition for cancellation of
CALTs/CADTs
Regional Hearing Offices has jurisdiction over all claims and disputes involving
rights of ICCs/IPs and all cases pertaining to implementation, enforcement, and
implementation, enforcement and interpretation of IPRA
o. However, if Regional Hearing Officer deems the action as involving a matter of national
significance or concern, he may certify and elevate ti Cinnussuib fir proper disposition
p. Other powers and functions as may be directed by President relating to IPs/ICC
q. Power to represent ICCs/IPs in all international conferences and conventions dealing
with IPs and other related concerns
May authorize attendance of non-NCIP official/employee, who shall submit a written
post-action report and conduct briefings or re-echo seminars to NCIP within 30 days
upon arrival
Powers, in general (lecture)
1. Developmental
2. Regulatory
3. Quasi-juidicial
4. Administrative
5. ???

All official records, documents, research data, etc afforded to citizens, subject to
limitations imposed by law
Under IRR, exercise of right to info includes:
a. Installation of info monitoring system to serve info need and requirements of
ICCs/IPs, Pos, NGO, govt agencies, and general public
b. Periodic reports to information users in following areas
1. Transfer of personnel, assets, projects, funds, and records corresponding to
reorganization of ONCC/OSCC
2. Establishment and strengthening of NCIP organizational structure from
service centers to national fun
3. Management of Ancestral Domains Fund
4. Formation and operationalization of consultative body, and people
empowerment programs
5. Compliance with established standards, guidelinces, systems, etc given to
NCIP
6. Other relevant info

SECTION 46
Offices within NCIP
1. Ancestral domains office
2. Office on policy, planning, and research
3. Office on education, culture, and health
4. Office on socio-economic services and special concerns
5. Office of empowerment and human rights
6. Administrative Office
7. Legal Affairs Office
SECTION 47
Other offices
1. Finance Management Office
2. Office for Foreign Assited Programs and Projects
3. International Relations Office
SECTION 48
Regional and Field Offices

SECTION 45

SECTION 49

Accessibility and transparency


Illustrates right to information

Office of Executive Director

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SECTION 50

The IRR recognizes the elders as the representatives of the ICCs/IPs.

Consultative Body

The law provides that the testimony of the elders is among the evidence deemed admissible
in the delineation process.

The law does not state that this is conclusive evidence as to the extent or even the existence
of an ancestral domain but implies that it is mandatory.

Other forms of proof of the claim coupled with the elders testimony:
1. 1.written accounts of the ICCs/IPs customs and traditions;
2. Written accounts of the ICCs/IPs political structures and institutions;
3. pictures showing long-term occupation;
4. historical accounts (pacts and agreements);
5. survey plan and sketch maps;
6. anthropological data;
7. genealogical surveys;
8. pictures and descriptions of communal forests, hunting grounds, etc.

CHAPTER VIII: DELINEATION AND RECOGNITION OF ANCESTRAL DOMAINS

SEC. 51. Delineation And Recognition Of Ancestral Domains


I. IMPLEMENTING RULES AND REGULATIONS
SECTION 1. Principle of Self Delineation.
II. SELF-DELINEATION AS A GUIDING PRINCIPLE
A. MEANING

Refers to the decisive role which the ICCs/IPPs have in identifying the boundaries of their
ancestral domain and their participation in the whole delineation process from the initial
identification of the area until the formal awarding of formal documents of recognition.
The Ancestral Domain Office (ADO) must coordinate with the ICCs/IPs in the delineation and
to at all times genuine involvement and participation by the members of the communities
concerned.

2. Proofs under land registration

A tracing cloth plan is the best evidence to identify a parcel of land for registration.

Tax declarations: may be received as evidence but is insufficient by itself to establish that the
land has been declassified as alienable and disposable; mere proofs of claim but of title but
not conclusive evidence of ownership.

B. Compared with the general principles underlying the Torrens System

3. Role of government

Governing law for land registration: PD 1529 or the Property Registration Decree which states
that the registration of lands throughout the Philippines shall be based on generally accepted
principles underlying the Torrens System.

Has the responsibility to assist the ICCs/IPs in enforcing their rights and of taking the
necessary steps to ensure that the ancestral domains and lands of the ICCs/IPs are identified
and to protect their rights and ownership and possession thereto.

Torrens System: a system for registration of land under which, upon the landowners
application, the court may, after appropriate proceedings, direct the issuance of a certificate of
title. With exceptions, this certificate is conclusive as to applicants estate in land.

NCIP: provides the necessary administrative and technical support in the delineation process
including, but not limited to, preparation of the survey plans, ocular inspections, publication,
and coordination with the other concerned government agencies.

Prior to PD 1529, the governing law was the Commonwealth Act No. 496 or the Land
Registration Law.

ADO: tasked under the IPRA and IRR to undertake the delineation process and create
mechanisms to facilitate the delineation process which must have adequate financial and
technical support.

1. Sworn statement of elders

Essential to the determination of the scope of ancestral domains as well as to the existence of
any agreements/pacts made with the neighboring territories.

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C. Lands no longer exclusively occupied

The IPRA recognizes lands which ICCs/IPs no longer exclusively occupy but to which they
traditionally have had access for their substinence and traditional activities as part of their
ancestral domain.

Contracts (CSC) of the DENR, in order to determine the feasibility of their conversion to CADTs or
CALTs, and the case may be.
II. ANCESTRAL DOMAINS AND ANCESTRAL LANDS DELINEATED PRIOR TO THIS ACT

This provision takes into consideration that there are ICCs/IPs that are nomadic or are shifting
cultivators.

SEC. 52(A) Ancestral Domains Delineated Prior to this Act


I. IMPLEMENTING RULES AND REGULATIONS

A. DENR Administrative Order No. 2 (DAO 02-93)

Promulgated by the DENR pursuant to Art. II, Section 22, Art. XII, Section 5 and Art. XIII,
Section 6 of the 1987 Constitution. It recognizes to a degree the rights of the ICCs/IPs.

The process under DAO 02-93 differs from that of IPRA.


1. Information dissemination or an information campaign wherein the DENR undertakes
the identification and delineation of both ancestral domains and lands which requires
consultations with the ICC leaders. This is called the initial stage. This initial stage shall
be limited to a period of 90 days from the date of its effectivity.
The identification of who are the ICCs/IPs shall be determined by the Provincial
Special Task Force on Ancestral Domains (PSTFAD) in coordination with the Local
Cultural Community Office, Peoples Organization and NGOs. This is the same
under IPRA
2. There must be a publication of what is now termed as the ancestral domain claim. The
ICCs/IPs have 15 days after such publication to submit all their documentary proof of
such claim.
Does not imply that oral evidence is inadmissible.
Admissible proofs: same as that provided for under Sec. 52 (d) of IPRA (see next
page)
With respect to claims to ancestral lands, proofs under Art. V, Sec. 3 of DAO 02-93
and that of IPRA in Sec. 53 (c) in relation to Sec. 52 (d) are similar except that the
Order does not include anthropological data and genealogical surveys.
The issuance of the CADC expressly grants to the ICCs/IPs the ff rights over their
domains:
a. Right to occupy, cultivate, and utilize the land and all natural resources;
b. Right to benefit and to share the profits from the allocation;
c. Right to regulate in coordination with the LGUs, entry of migrant settlers,
NGOs, etc.
d. Right to negotiate the terms and conditions for the exploitation of natural
resources with the purpose of environmental conservation and protection;
e. Right to actively and collectively participate in the formulation and
implementation of governmental projects;

Section 5. Validation of Prior Delineation of Ancestral Domains.


a) Validation of Certificates of Ancestral Domain Claims (CADCs) ICCs/IP communities whose
ancestral domains have been satisfactorily delineated pursuant to DENR Special Order No. 31,
Series of 1989, as amended, and Administrative Order No. 2, Series of 1993, may apply for the
issuance of a Certificate of Ancestral Domain Title (CADT) over the area without going through the
process prescribed in the Act. Such application shall be made through the filing of a duly
accomplished application form with the NCIP Provincial Office for the purpose.
b) Turn-Over of Pertinent Records. The NCIP shall cause the turn-over, by the DENR or other
concerned government agency, of all records pertinent to approved applications for CADCs
immediately upon approval of these Rules and Regulations, without prejudice to the prerogative of
the NCIP to enter into a Memorandum of Agreement with DENR or other concerned agency, to
ensure a continuous and satisfactory delineation of ancestral lands/domains. Upon receipt of such
records, the NCIP shall require the Provincial Office to review the same in order to establish the
correctness of the delineation made, sufficiency of proof and regularity of the process undertaken
for the purpose.
c) Endorsement to NCIP. Upon favorable findings, the NCIP Provincial Office shall endorse to the
ADO, through the Regional Office, the documents supporting the validation of the CADC and the
subsequent issuance of a CADT.
d) Re-delineation of Areas Covered by CADCs. In case of irregularity in the delineation process of
CADCs granted under DENR DAO No. 2, Series of 1993, the NCIP Provincial Office shall refer the
matter to the NCIP Regional Office for a field investigation and appropriate re-delineation, if
necessary, in accordance with the process hereinabove described. chan robles virtual law library
e) Other Tenurial Instruments. The NCIP shall conduct a study of other tenurial instruments issued
to members of ICC/IP communities such as, but not limited to, Certificates of Land Ownership
Awards (CLOA) of the Department of Agrarian Reform (DAR), and Certificate of Stewardship

No area shall be issued a Certificate of Ancestral Domain Title (CADT) without having been
delineated in accordance with the law. However, the law exempts ancestral domains/lands
which have been officially delineated under DENR Administrative Order No. 2 (DAO 02-93) or
under any program or law.

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f. Right to lay claim on adjacent areas which may be proven to be part of the
ancestral domain;
g. Right to access and availment of technical, financial, and other form of
assistance provided by the DENR.
h. Right to claim ownership of all improvements made by them.

Rights over their ancestral lands:


a. Right to peacefully occupy and cultivate the land, utilize the natural resources, subject to
existing laws, rules and regulations applicable;
b. Rights of the heirs to succeed to the claims;
c. Rights to exclude any other person who does not belong to the family or clan; and
d. Right to utilize trees and other forest products inside the ancestral land.

The DAO 02-93 delegates to the ICCs/IPs the exclusive management over the ancestral
domains and lands which have been delineated, requires the written consent of the ICCs/IPs
prior to the implementation of any government programs by the DENR, and grants exclusive
supervision and control over the management of their ancestral domains and the resources
therein.

DAO 02-93 differs from IPRA in that it only protects the tenure of ICCs/IPs over their ancestral
domains and lands.

The scope of the ancestral domain is limited to lands and natural resources which have been
continuously occupied or possessed by the ICCs/IPs unless interrupted by war, force
majeure, or displacement by force, deceit, or stealth.
B. Delineation under other programs

The IPRA exempts from the requirement of undergoing the delineation process any ancestral
domains and lands which were officially delineated under any other community/ancestral
domain program prior to its enactment.

Examples: Certificates of Land Ownership Awards (CLOA) by DAR and Certificate of


Stewardhip Contracts (CSC) by the DENR.
III. EXISTING OR VESTED PROPERTY RIGHTS

Under Sec. 56, property right that were already existing and/or vested prior to IPRA are
recognized and protected.

SEC 52(B). Petition for Delineation

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I. IMPLEMENTING RULES AND REGULATIONS
Section 2. Procedure on Ancestral Domain Delineation.
XXX
XXX
a) Filing of Petition for Delineation. A majority of the members of the ICCs/IPs in a specific
area, through their own recognized Council of Elders/Leaders, may file a petition with the
NCIP through the Provincial Office for the identification, delineation and recognition of their
ancestral domain. No other entity shall file said petition and to ensure the legitimacy of the
Petition, the same shall be signed by all members of the concerned ICCS/IPs Council of
Elders or popularly recognized and accepted leadership body.

Under the law, the NCIP may file a petition on behalf and with the consent of the ICCs/IPs
concerned or a majority of the ICCs/IPs themselves may file a petition for delineation. The
IRR, on the other hand, proscribes any other entity from filing a petition except by the
ICCs/IPs themselves through their Council of Elders.

Both IPRA and IRR require that a petition filed by the ICCs/IPs must be made by a majority of
its members.

signed by all members of the concerned ICCS/IPs Council of Elders or popularly recognized and
accepted leadership body.
b) Delineation Proper. Upon receipt of a Petition for Delineation, the ADO through the NCIP
Provincial Office shall proceed as follows:
(1) Community-wide information dissemination and consultation with the ICCs/IPs concerned shall
be conducted to inform them about the delineation process and to establish the genuineness of the
Petition.
(2) The Council of Elders/Leaders of the IPs concerned, in accordance with customary law and/or
community history, shall convene to identify the landmarks indicating the boundaries of their
ancestral domains in a topographic map and submit the same to the NCIP Provincial Office;
(3) Whenever applicable, the Council of Elders/Leaders shall likewise identify all parts of the
domains which may no longer be exclusively occupied by them but from which they traditionally
had access to for their subsistence and traditional activities, including but not limited to, sacred
sites, worship areas, hunting, gathering, collecting and fishing grounds;
(4) The NCIP Provincial Office, based on the indicative map, shall approximate the land area of the
territory in hectares; and

SEC 52(C). Delineation Paper

(5) The ICCs/IPs concerned, with the assistance of the NCIP Provincial Office shall conduct a
census of its community members, the results of which shall be attached as part of the record.

I. IMPLEMENTING RULES AND REGULATIONS

Section 2. Procedure on Ancestral Domain Delineation. The Ancestral Domains Office (ADO) shall
be responsible for the official delineation of ancestral domains and lands. For this purpose the
ADO, at its option and as far as practicable, may create mechanisms to facilitate the delineation
process, such as the organization of teams of facilitators which may include, among others, an
NGO representative chosen by the community, the Municipal Planning and Development Officer of
the local government units where the domain or portions thereof is located, and representatives
from the IP community whose domains are to be delineated. The ADO will ensure that the
mechanisms created are adequately supported financially and technically to enable the efficient
and expedient delineation of the ancestral domains.
The identification, delineation and recognition of ancestral domains shall be in accordance with the
following procedure:
a) Filing of Petition for Delineation. A majority of the members of the ICCs/IPs in a specific area,
through their own recognized Council of Elders/Leaders, may file a petition with the NCIP through
the Provincial Office for the identification, delineation and recognition of their ancestral domain. No
other entity shall file said petition and to ensure the legitimacy of the Petition, the same shall be

The ADO is directed by law to immediately undertake the delineation process. This is prior to
any determination of the validity of the claim or consideration of any claims of oppositors.

SEC 52(D). Proof required


I. IMPLEMENTING RULES AND REGULATIONS
c) Submission of Proof. To prove its ancestral domain claim, the concerned ICCs/IPs shall submit
to the NCIP Provincial Office the following:
(1) the testimony of the community elders who participated in the identification of physical
boundaries and who took part in giving the oral historical accounts; and
(2) anyone (1) of the following proofs:
i) Written accounts of the ICCs/IPs customs and traditions;
ii) Written accounts of the ICCs/IPs political structure and institutions;

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iii) Pictures showing long term occupation such as those of old improvements, burial grounds,
sacred places and old villages;
iv) Historical accounts, including pacts and agreements concerning boundaries entered into by the
ICCs/IPs concerned with other ICCs/IPs;
v) Survey plans and sketch maps;

This is a mandatory requirement. The testimony must be made: 1) by the elders of the
community concerned who participated in the identification of physical boundaries and who
took part in giving the oral historical accounts and 2) under oath.

2. Documentary proofs

vi) Anthropological data;

(see previous page)

vii) Genealogical surveys;

Private documents duly notarized are admissible without any further proof. An unauthorized
private document is admissible only when its due execution and authenticity is proven either
by anyone who saw the document executed or written or, by evidence of the genuineness of
the signature or handwriting of the maker.

A documentary evidence in an unofficial language shall not be admitted unless accompanied


with a translation into English or Filipino.

Documentary proofs enumerated under IPRA shall also be admissible in regular courts.

viii) Pictures and descriptive histories of traditional communal forests and hunting grounds;
ix) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks,
ridges, hills, terraces and the like; and
x) Write-ups of names and places derived from the native dialect of the community.
d) Notice of Ocular Inspection. The NCIP Provincial Office shall notify the applicant community
through its Council of Elders/Leaders, adjoining communities through their elders or leaders, and
other affected entities, five (5) days in advance, that an ocular inspection of the ancestral domain
claim of applicant community shall be conducted on such a date and time and that their presence
is required especially in the verification of the metes and bounds thereof.
e) Ocular Inspection. The NCIP Provincial Office, in cooperation with the ICCs/IPs concerned and
representatives of adjoining communities shall conduct an ocular inspection of the area being
claimed in order to verify the landmarks indicating the boundaries of the ancestral domain and the
physical proofs in support of the claim.
f) Evaluation and Appreciation of Proof. The NCIP Provincial Office shall evaluate the proofs
submitted. If the claim is found to be patently false or fraudulent after diligent inspection and
verification, notice of such rejection which includes the reasons for the denial shall be sent to the
ICC/IP claimant. The ICC/IP claimant, may bring the denial on appeal with the NCIP on the
grounds of arbitrary and/or erroneous appreciation of facts.
In addition to the proof submitted, the NCIP Provincial Office may require additional proof for
purposes of substantiating the claim.
II. KINDS OF PROOFS REQUIRED

SEC 52(E). Preparation of Maps


I. IMPLEMENTING RULES AND REGULATIONS
g) Survey and Preparation of Survey Plans. Based on its appreciation of proofs, the NCIP
Provincial Office shall request the Regional Surveys Division to conduct a perimeter survey and
prepare survey plan of the area with the necessary technical description, including the significant
natural features and landmarks found therein.
h) Boundary Conflicts. In cases where there are boundary conflicts among ICCs/IPs, the NCIP
Provincial Office shall refer the matter for settlement at the community level. If no settlement is
reached, the NCIP Provincial Office shall cause the contending parties to meet and come up with a
preliminary resolution of the conflict to pave the way for the delineation without prejudice to its full
adjudication pursuant to the pertinent provisions of the Act and these Rules and Regulations.
i) Preparation of Report of Investigation and Other Documents. The NCIP Provincial Office shall
prepare an official report of investigation which shall include its findings during the ocular
inspection; evaluation and appreciation of proofs submitted, and a preliminary report on the census
of community members, the minimum contents of which shall be the number of ICC/IP and nonICC/IP households in the community; a list of community-recognized indigenous leaders/elders;
and a description of the community-recognized PO in the area.

1. Testimony of elders

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j) Validation of Map. The NCIP Provincial Office shall present the survey plan prepared pursuant to
item (g) above, to the applicant ICC/IP community for validation. If not validated, proper corrections
may be made or another survey may be conducted.

(3) The basic documents shall also be published in a newspaper of general circulation in the area
once a week for two consecutive weeks to allow other claimants to file opposition thereto within
fifteen (15) days from the date of last publication; and chan robles virtual law library

k) Basic Documents of the Delineation Process. 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.

(4) In areas where no newspapers exist, broadcasting in a radio station could be a valid substitute
for publication. In case of broadcast, the same shall be made twice in a week and any opposition
may be filed within 15 days from date of last broadcast. If both newspaper and radio station are not
available, the mere posting of the basic documents as in stated in sub-paragraph (b) above shall
be deemed sufficient and any opposition thereto must be filed within 15 days from last day of
posting.

II. PERIMETER MAP

This shall contain the technical description of the domain including a description of the natural
features and the landmarks embraced therein.

In case of boundary dispute, the IRR states that it shall first be resolved through the ICCs/IPs
customary process. It is only in case of failure to of such settlement process that the NCIP
shall make a determination to pave the way for delineation without prejudice to a latter final
adjudication of the dispute.

II. NATURE OF PROCEEDINGS

Publication renders the proceeding binding on all persons known and unknown and judgment
issued thereon is binding and conclusive upon the whole world.

III. REQUIREMENTS
See previous page

SEC52(F). Report of Investigation and Other Documents


IV. PURPOSE OF THE PUBLICATION
I. IMPLEMENTING RULES AND REGULATIONS
See par. (i) of the implementing rules and regulations under Preparation of Maps.

Same purpose with land registration proceedings which are:


1. To confer jurisdiction over the land applied for upon the court;
2. To charge the whole world with the knowledge of the application and to invite them to
take part in the case and assert and prove their rights over the property.

SEC52(G). Notice and Publication


SEC 52(H). Endorsement to NCIP
I. IMPLEMENTING RULES AND REGULATIONS
k) Basic Documents of the Delineation Process. 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.
l) Notice and Publication of Ancestral Domain Claim. The following shall constitute the procedure
for notice and publication:
(1) The NCIP Provincial Office shall prepare a copy of the basic documents of the ancestral
domain claim, including a translation thereof in the native language of the ICCs/IPs concerned;
(2) These documents shall be posted in a prominent place within the ancestral domain which may
be, but not limited to, the tribal hall, the market place or places of worship and the Service Center,
Provincial and Regional Offices of the NCIP for at least fifteen (15) days;

I. IMPLEMENTING RULES AND REGULATIONS


m) Endorsement of the Ancestral Domain Claim to the NCIP. Within fifteen (15) days after
publication, the NCIP Provincial Office shall endorse the ancestral domain claim to the NCIP
Regional Office for verification. If the Regional Office deems the claim to have been sufficiently
proven, it shall endorse the same to the Ancestral Domains Office with its corresponding
recommendation.
n) Review by the Ancestral Domains Office. Within fifteen (15) days from receipt of the
endorsement by the NCIP Regional Office of the ancestral domain claim, the Ancestral Domains
Office, shall review the documents. If the ADO finds the claim to have been sufficiently proven, it
shall prepare its report to the NCIP endorsing a favorable action thereon. In case the ADO finds
the proof insufficient, it shall require the submission of additional evidence. If the application is
found to be patently false or fraudulent, the same shall be rejected with notice sent to the applicant
stating the reasons therefor.

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o) Preparation and Issuance of CADT. Upon receipt of the report of the ADO, the Commission
shall meet en bane to discuss the merits of the claim based on the documents accompanying the
endorsement. If it approves the claim, the Commission shall direct the ADO to prepare the
Certificate of Ancestral Domain Title (CADT) in the name of the claimant IP community in a specific
location, together with all its necessary annexes. The CADT shall be issued by the Commission
and signed by all the Commissioners. No CADT shall be issued in the name of a person family,
clan or organization.

ICCs/IPs. The NCIP shall exercise visitorial and monitoring powers to safeguard the rights of the
ICCs/IPs under the agreement.
II. NOTICE TO THE AGENCIES
See sec. 6
Sec52(j). Issuance of CADT

p) Submission of Maps. The official map of the ancestral domain shall be submitted to the
appropriate government agency for records and control purposes.
II. CONSEQUENCE IF PROOF IS INSUFFICIENT

Upon review of the petition, the ADO may:


a. Favorably recommend to the NCIP the petition if it finds the claim to have been
sufficiently proven;
b. Require the additional evidence if it finds the proof insufficient; or
c. Reject the application if it is found to be patently false or fraudulent. Notice shall be sent
to the applicant stating the reasons therefor.

A denial of the application is appealable to the NCIP. A favorable report of the ADO shall be
reviewed by the NCIP en banc.

I. IMPLEMENTING RULES AND REGULATIONS


o) Preparation and Issuance of CADT. Upon receipt of the report of the ADO, the Commission
shall meet en bane to discuss the merits of the claim based on the documents accompanying the
endorsement. If it approves the claim, the Commission shall direct the ADO to prepare the
Certificate of Ancestral Domain Title (CADT) in the name of the claimant IP community in a specific
location, together with all its necessary annexes. The CADT shall be issued by the Commission
and signed by all the Commissioners. No CADT shall be issued in the name of a person family,
clan or organization.
II. CERTIFICATE OF ANCESTRAL DOMAIN TITLE (CADT)

III. CONFLICTING CLAIMS

The IPRA provides that the ADO should require the contending parties to meet to come up
with a preliminary resolution in cases where there are conflicting claims.
The resolution obtained during this proceeding is not conclusive and is without prejudice to
the full adjudication of the conflict in accordance with Sec. 62.

Evidence of the ICCs/IPs ownership over the areas delineated.

Any person or community who alleges fraud may file a petition with the ADO for the
cancellation of the CADT. There is no prescribed period to file such petition.

III. In whose name it shall be issued

It shall be issued in the name of the community.

The rule strictly proscribes the issuance of the CADT in the name of an individual, family, or a
clan.

The names of the individual members who participated in the census shall be listed and
attached to the CADT.

SEC 52(I). Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies
I. IMPLEMENTING RULES AND REGULATIONS
Section 6. Turn-over of Areas within Ancestral Domains. Once an area is certified as an ancestral
domain, the Chairperson of NCIP shall issue a notice to concerned government agencies, such as
but not limited to, the DENR, DAR, DILG, DECS, DOT, DTI, DND, DOH, or DOE, having
jurisdiction over these areas, that the same is within ancestral domains and therefore falls under
the jurisdiction of the concerned ICCs/IPs by operation of law.
The ICCs/IPs and the concerned government agencies may enter into agreements on the exercise
of joint management responsibilities over such areas. Such agreements shall, whenever possible,
incorporate a plan for the eventual transfer of full management powers and responsibilities to the

IV. DIFFERENCE FROM THE TORRENS TITLE

CADTs are also required to be registered with the register of deeds and are not transferable
EXCEPT if cancelled by the NCIP in accordance with the IPRA.

Ancestral domains are not alienable. It is a community property which cannot be sold,
disposed of or destroyed as it belongs to all generations of the ICCs.

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SEC52(K). Registration of CADTs
Section 8. Registration of Certificates of Ancestral Domain Title (CADTs) and Certificates of
Ancestral Land Title (CALTs). The NCIP, through the Ancestral Domains Office (ADO), shall
register all CADTs and CALTs with the Register of Deeds in the place where the properties are
located. The NCIP together with the Land Registration Authority shall formulate the procedure for
such registration. Awardees of CADT and CALT themselves may opt to personally cause such
registration.

This is for the purpose of giving notice to 3rd persons that such an area is within an ancestral
domain. Such failure does not extinguish the rights of the ICCs/IPs over their ancestral
domains.

B. Right to apply for the issuance of a CALT

There are no express provisions in the law expressly providing for the right of ICCs/IPs or
indigenous corp claimants with ancestral lands within an ancestral domain to apply and be
issued a Certificate of Ancestral Land Title (CALT); only the IRR provided for such process.

How done: by filing the appropriate form with the NCIP Service Center without need of going
through the process of delineation.

This should not be limited to existing tenurial instruments eg. Lease, usufructuary; the
existence of tenurial instruments shall not be a hindrance to its issuance.

SEC. 53(A).
I. IMPLEMENTING RULES AND REGULATIONS
a) Identification of Ancestral Lands within Ancestral Domains. The ICCs/IPs, through their POs
and/or Council of Elders, shall be responsible for identifying and establishing ancestral lands within
their respective ancestral domains based on their own customs and traditions. With the free and
prior informed consent of its members, the community may also allocate portions of the ancestral
domain to individuals, families or clans in accordance with their customary laws and traditional
practices.
b) Application for Issuance of Certificate of Ancestral Land Title (CALT) over Ancestral Lands
within Ancestral Domains. Individuals, families or clans belonging to the concerned ICCs/IPs within
certified ancestral domains may apply for Certificate of Ancestral Land Titles over their identified
ancestral lands, without going through the formal delineation process and in spite of the issuance
of any tenurial instrument issued over the same area before the effectivity of the Act by filling up
the appropriate NCIP Form and filing it with the NCIP Service Center.

Individuals or indigenous corporate claimants have a right to be issued a CADT. Indigenous


corporate claimants are not corporations created under the Corp Code. They refer to
indigenous families or clans.

III. RULE 74 SUMMARY SETTLEMENT AND CIVIL CODE PROVISIONS ON CO-OWNERSHIP

Under the Rule &4 of the ROC, co-heirs may divide the estate among themselves by means
of a public instrument filed in the register of deeds if:
a. decedent left no will and no debts;
b. the heirs are all of legal age or the minors are properly represented.

A pending ordinary action for partition does not bar the parties to stipulate as to the division of the
estate so long as the same requirements are present.

Civil Code: co-owners may demand at any time the partition of the thing owned in common
unless 1) there is an agreement to the contrary; 2) the donor or testator has prohibited
partition for a certain period which shall not exceed 20 years or partition is prohibited by law.

An ancestral domain in which such ancestral land is situated may not be partitioned or
dissolved because this is contrary to the concept of indigenous ownership that it is a private
but community property.

II. Allocation of lands within the Ancestral Domains


SEC 53(B).
A. Requirements

2 reqs for the allocation of lands within the ancestral domains:


a. Claimants must be an individual IP or an indigenous corporate family or clan; and
b. Allocation must be decided in accordance with the ICCs/IPs customs and traditions.

The allocation exclusively lies with the determination of the ICCs/IPs concerned. This shall be
made through the Council of Elders or their Pos and in accordance with their customary laws.

Pertinent rule:
c) Application for Issuance of Certificate of Ancestral Land Title of Ancestral Lands outside
Ancestral Domains. Claimants of ancestral lands located outside certified ancestral domains
may have such ancestral lands officially established by filling up the appropriate NCIP Form
and filing it with the NCIP Service Center which has jurisdiction over the land.

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Parties who may file application for issuance of CALT are the same as those for lands located
outside the ancestral domain. Individuals or the recognized head of the family or clan is
deemed capacitated to do this.

Difference for lands outside the AD: there must be an application for delineation with the
ADO. (or the NCIP under the IRR); on the other hand ancestral lands within the ancestral
domain shall be identified and allocated in accordance with the customs and traditions of the
ICCsIPs and without undergoing the delineation process with the NCIP Service Center.

Provincial Office. In case of insufficient proof, additional evidences may be required from
the applicant.

SEC 52(C).

SEC 53(D)

IRR provides:

Proofs admissible for the delineation of ancestral lands outside ancestral domains: 1)
testimony of elders and other authentic documents 2) tax declarations and proofs of payment
of taxes to show continuous possession or occupation.

The law grants the ADO discretion to require such other docs that may prove the claim.

SEC 53(E)

c) Application for Issuance of Certificate of Ancestral Land Title of Ancestral Lands


outside Ancestral Domains. Claimants of ancestral lands located outside certified
ancestral domains may have such ancestral lands officially established by filling up the
appropriate NCIP Form and filing it with the NCIP Service Center which has jurisdiction
over the land. It shall be accompanied by a testimony under oath of the elders of the
ICC/IP who are knowledgeable of such claim and any other documentary proof showing
continuous occupation, utilization or possession of the area since time immemorial
which shall be any of the following:

Pertinent IRR provisions:


d) Notice and Publication. Upon receipt of the application the NCIP Service Center shall
cause the publication of such application in accordance with the following procedure:
1)

1)
2)
3)

Written accounts of the ICCs/IPs customs and traditions;


Written accounts of the ICCs/IPs political structure and institutions;
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; and
10) Write-ups of names and places derived from the native dialect of the
community.

Xxx

xxx

h) Report of Investigation. The NCIP Service Center shall prepare a report of its findings,
together with the record and the approved survey plan and submit the same to the NCIP

2)

3)

4)

The NCIP Service Center shall prepare a copy of the petition and surveyor
sketch plans, these being the basic documents of the ancestral land claim,
including a translation thereof in the native language of the ICCs/IPs
concerned;
These documents shall be posted in a conspicuous or prominent place within
the ancestral land which may be, but not limited to, the tribal hall, the market
place or places of worship and the Service Center, Provincial and Regional
Offices of the NCIP for at least fifteen (15) days; chan robles virtual law lib
Whenever available, the basic documents shall also be published in a
newspaper of general circulation in the area once a week for two consecutive
weeks to allow other claimants to file opposition thereto within fifteen (15)
days from the date of last publication; and
In areas where no newspapers exist, broadcasting in a radio station could be
a valid substitute for publication. In case of broadcast, the same shall be
made twice in a week and any opposition may be filed within 15 days from
date of last broadcast. If both newspaper and radio station are not available,
the mere posting of the basic documents as in stated in sub-paragraph (b)
above shall be deemed sufficient and any opposition thereto must be filed
within 15 days from last day of posting.

SEC 53( F)
I. IMPLEMENTING RULES AND REGULATIONS

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e) Ocular Inspection and Appreciation of Proof. Within fifteen (I5) days after such
publication, the NCIP Service Center shall conduct an ocular inspection and
investigation thereof. Notices shall be sent to the applicant and owners of adjoining
properties at least five days before the scheduled date of ocular inspection.

The ADO shall assist the parties in coming up with preliminary resolutions.

SEC 53(G)
IRR:

If the NCIP Service Center finds the same meritorious, it shall request the NCIP
Regional Office, for a technical survey of the area. However, it may reject any
application for CALT which it finds patently false or fraudulent upon investigation and
shall give the applicant due notice of the action taken including the grounds for the
denial. Such denial is appealable to the NCIP in accordance with the procedure
prescribed herein.
f) Resolution of Conflicting Claims. In case of conflicting claims, the NCIP Service
Center shall refer the same to the Council of Elders/Leaders in the community for
settlement. In case of failure of settlement thereat, the NCIP Service Center shall
endeavor to cause the contending parties to meet and help them come up with a
preliminary resolution of the conflict. Upon the exhaustion of all possible remedies, the
same conflict may however be submitted for full adjudication under Section 62 of the
Act, in which the Director of Lands may take part to represent the interest of the
Republic of the Philippines.
g) Parcellary Survey. -Upon the recommendation of the NCIP Service Center, through
the NCIP Provincial Office, the Surveys Division of the NCIP Regional Office shall
conduct a parcellary survey of the area. Upon the completion of the survey and approval
thereof, the survey returns and the approved survey plan shall be returned to the NCIP
Service Center through the Provincial Office.

h) Report of Investigation. The NCIP Service Center shall prepare a report of its findings, together
with the record and the approved survey plan and submit the same to the NCIP Provincial Office.
In case of insufficient proof, additional evidences may be required from the applicant.
i) Review by the NCIP Provincial Office. Upon review by the NCIP Provincial Office and finding the
application to be sufficiently proved, the same shall be endorsed to the NCIP Ancestral Domains
Office through the NCIP Regional Office.
j) Issuance of Certificate of Ancestral Land Title (CALT). The ADO shall, within fifteen (I5) days
from receipt thereof, submit all records of the application to the NCIP which shall in turn, evaluate
the application and report submitted, and if it finds the application to be meritorious, issue the
corresponding CALT.
Section 8. Registration of Certificates of Ancestral Domain Title (CADTs) and Certificates of
Ancestral Land Title (CALTs). The NCIP, through the Ancestral Domains Office (ADO), shall
register all CADTs and CALTs with the Register of Deeds in the place where the properties are
located. The NCIP together with the Land Registration Authority shall formulate the procedure for
such registration. Awardees of CADT and CALT themselves may opt to personally cause such
registration.

II. INVESTIGATION AND INSPECTION

SEC. 54. Fraudulent Claims.

See e, f, and g of IRR

I. Review of existing claims

III. ACTION ON THE APPLICATION

The ADO may either:


a. Cause a parcellary survey of the area if it finds the application meritorious (under the
IRR, the NCIP Service Center may request the NCIP Regional Office to make a
technical survey of the area if it finds the application meritorious. Upon the
recommendation of the NCIP Service Center, the Surveys Division shall conduct a
parcellary survey)
b. Reject the application if it is found to be patently false or fraudulent. Notice shall be sent
to the applicant stating the reasons. Such denial shall be appealable to the NCIP.

The ADO does not cancel the claim itself but merely acts as a plaintiff or prosecutor before
the NCIP. It is the NCIP, as a Commission, that cancels the claim.

Under the NCP Rules of Procedure, it is the Commission that has exclusive and original
jurisdiction over petitions fro cancellations of CALT/CADTs alleged to have been fraudulently
claimed.

Actions must be filed within one year from the date of registration.

In all other cases, they must be filed with the Regional Hearing Officers of the NCIP.

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The only ground for cancellation under this section is FRAUD.

II. Cancellation by the NCIP


1.) Notice and hearing

Section 2. Preparation and Adoption of Ancestral Domains Sustainable Development


and Protection Plans (ADSDPP). With the assistance of the NCIP, the ICCs/IPs
concerned shall prepare their own ADSDPP in accordance with their customary
practices, laws and traditions. The ADSDPP shall contain the following basic
information:
a) Manner by which the ICCs/IPs will protect the domains;

2.) proof required

Auantum of evidence: substantial evidence

SEC. 55. Communal Rights


I. PRESUMPTION OF COMMUNAL OWNERSHIP
A. When and how presumption operates
This provision refers to all areas generally belonging to the ICCs/IPs.
B. Disputable Presumption
II. SUBJECT TO VESTED RIGHTS
See section 56
III. NOT CO-OWNERSHIP

Communal ownership is not communal ownership.

Pertinent IRR provisions:


Section 1. Right to Manage and Develop Ancestral Domains. The ICCs/IPs shall have
the right to freely pursue their economic, social, political and cultural development. In the
exercise of this right, the ICCs/IPs shall formulate and pursue their own plans for the
sustainable management and development of the land and natural resources as well as
human resources within their ancestral domains based on their indigenous knowledge
systems and practices and on the principle of self-determination. Such plans may be
consolidated into an Ancestral Domain Sustainable Development and Protection Plan
(ADSDPP) which shall be the basis of the Five Year Master Plan defined under these
Rules and Regulations.

b) Kind or type of development programs adopted and decided by the ICCs/IPs, in


relation to livelihood, education, infrastructure, self governance, environment, natural
resources, culture and other practical development aspects;
c) Basic community policies covering the implementation of all forms of development
activities in the area; and
d) Basic management system, including the sharing of benefits and responsibilities
among members of the concerned ICC/IP community.
All ADSDPPs shall be disseminated among community members in any mode of
expression appropriate to the customs and traditions of the ICCs/IPs including, but not
limited to, writings in their own language, oral interactions, visual arts, and analogous
modes.
The ICCs/IPs shall submit to the municipal and provincial government unit having
territorial and political jurisdiction over them their ADSDPP in order for the said LGU to
adopt and incorporate the same in the Municipal Development Plan, Municipal Annual
Investment Plan, Provincial Development Plan, and Provincial Annual Investment Plan.
Section 3. Basic Steps in the Formulation of an ADSDPP. For purposes of ensuring the
authenticity and effectiveness of the Plan, the community members, through their PO
and/or Council of Elders, and with the assistance of the NCIP, shall follow the following
basic steps in the formulation process:
a) Information Dissemination. The Council of Elders/Leaders, with the assistance of the
NCIP, shall conduct of intensive information-dissemination on the Indigenous Peoples
Rights Act (IPRA) among the community members. For the purpose of informationdissemination, the NCIP may engage the services of an authorized NGO or IPO; chan
b) Baseline Survey. The Council of Elders/Leaders, with the assistance of the NCIP,
shall conduct a participatory baseline survey of the ancestral domain focusing on the
existing population, natural resources, development projects, land use, sources of
livelihood, income and employment, education and other concerns. For the purpose of
the baseline survey, the NCIP may engage the services of an authorized NGO or IPO;

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c) Development Needs Assessment. The Council of Elders/Leaders, with the assistance
of the NCIP, shall conduct workshops in every village within the ancestral domain to
determine the will of the community members regarding the kind of development the
community should pursue in terms of livelihood, education, infrastructure, selfgovernance, environment, natural resources, culture and other aspects. For the purpose
of the Development Needs Assessment, the NCIP may engage the services of an
authorized NGO or IPO;
d) Formulation of Ancestral Domain Sustainable Development and Protection Plan
(ADSDPP). The concerned ICC/IP, through its IPO and/or Council of Elders, and with
the assistance of the NCIP, shall formulate its Ancestral Domain Sustainable
Development and Protection Plan;

II.Related IPRA provisions (IRR actually)


Section 6. Existing Contracts, Licenses, Concessions, Leases, and Permits Within Ancestral
Domains. Existing contracts, licenses, concessions, leases and permits for the exploitation of
natural resources within the ancestral domain may continue to be in force and effect until they
expire. Thereafter, such contracts, licenses, concessions, leases and permits shall not be renewed
without the free and prior Informed consent of the IP community members and upon renegotiation
of all terms and conditions thereof. All such existing contracts, licenses, concessions, leases and
permits may be terminated for cause upon violation of the terms and conditions thereof.
SEC. 57. Natural Resources within Ancestral Domains

e) Validation of ADSDPP. With the assistance of the NCIP, the IPO and/or Council of
Elders shall conduct assemblies among the ICC/IP members for the validation and
approval of the ADSDPP;

I. PRIORITY RIGHTS

f) Submission of ADSDPP to NCIP. Upon validation and approval, the IPO and/or the
Council of Elders shall submit the ADSDPP to the NCIP for their information and
concurrence. The ADSDPP shall form part of the data base on ICC/IP communities in
the country, in relation to development projects, programs and activities within the
ancestral domain, which the NCIP is mandated to establish; chan robles virtual law
library
g) Conversion of Ancestral Domain Management Plans (ADMPs) to Ancestral Domain
Sustainable Development and Protection Plans (ADSDPPs). ICCs/IP communities have
the option to convert or modify their existing Ancestral Domain Management Plans
prepared and completed pursuant to DENR-DAO 96-34 into Ancestral Domain
Sustainable Development and Protection Plan in accordance with these rules.

SEC. 56. Existing Property Rights Regimes


I. Meaning of vested right

Some right or interest in the property that has become fixed or established, and is no longer
open to doubt or controversy.

Rights are deemed to be vested when the right to enjoyment, present or prospective, has
become the property of some person as present interest; there must be a transition from the
potential or contingent to the actual, and the proprietary interest must have attached to a
thing.

A. Meaning
Does not mean exclusive rights but merely the right to preference or first consideration in the
award of privileges provided by existing laws and regulations, with due regard to the needs
and welfare of the IPs living in the area.

B. Scope and extent


b) Right to Develop Lands and Natural Resources. Subject to Section 56 hereof, right to
develop, control and use lands and territories traditionally occupied, owned, or used; to manage
and conserve natural resources within the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization of the natural resources
found therein; 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 the
conservation measures, pursuant to national and customary laws; the right to an informed and
intelligent participation in the formulation and implementation of any project, government or private,
that will affect or impact upon the ancestral domains and to receive just and fair compensation for
any damages which they may sustain as a result of the project; and the right to effective measures
by the government to prevent any interference with, alienation and encroachment upon these
rights;
C. Natural resources

This does not violate the Art XII, Sec 2 of the Consti. The utilization is always subject to
existing laws such as the Small-Scale mining Act and the Philippine Mining Act.

Does not preclude the state from undertaking activities.

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II. NON-MEMBER OF ICCs/IPs
II. Special Areas
a. development and utilization

Free and prior informed consent of the ICCs/IPs are needed.

b. term

A non-IP may be allowed to take part in the development and utilization of the natural
resources for a period not exceeding 25 years renewable for not more than 25 years.

critical watersheds
a. -mangroves
b. -wildlife sanctuaries
c. -wilderness
d. -protected areas
e. -forest cover or
f. -reforestration/forest cover

III. Determination of theses areas


c. formal and written agreement

d. manner of exploitation

Pursuant to Art XII Sec 2 of the Consti, the agreement between the ICCs/IPs and outsider
may be through: 1) joint venture 2) joint production-sharing or 3) co-production.

Foreigners are also allowed to enter into agreements with the ICCs/IPs but it is limited to
technical or financial assistance only.

In all cases, there must be free and prior informed consent.

e. visitorial power of the NCIP

The NCIP may take appropriate action to safeguard the rights of the ICCs/IPs.

SEC. 58. Environmental Considerations


I. Concept of sustainable development

Development that meets the needs of the present without compromising the ability of future
generations to meet their needs.

2 temporal dimensions: intra-generation responsibility (present) and the responsibility to


future generations or inter-generation responsibility.

At present, the DENR is the principal agency tasked t determine these areas.

IV. Responsibility of ICCs/IPs


1.
2.
3.

Inventory of all portions of ancestral domains.


Environmentally critical areas.
Turn-over of funds to community.

V. Transfer of responsibility
d) Transfer of Management Responsibility. Should the community decide, on the basis of free and
prior informed consent, to transfer management responsibility over the area to another entity, such
decision shall be made in writing to be signed by all members of the communitys Council of
Elders. Provided, that all forms of exploitation of the natural resources in the area shall not be
allowed and that appropriate technology transfer aimed at speeding up the reversion of
management of the area to the community is effected. The process of transfer of Management
Responsibility shall be witnessed by the NCIP, without prejudice to its visitorial and monitoring
powers.
Section 8. Five Year Master Plan. Based on the Ancestral Domain Sustainable Development and
Protection Plans (ADSDPP) of the various ICCs/IPs and other relevant information, the Office on
Policy, Planning and Research shall formulate a Five-Year Master Plan for the delivery of
appropriate
support
services
to
the
ICCs/IPs.
Such support services, which includes infrastructure, health and educational services, training,
credit facilities, community production and marketing facilities, organizational support services and
the like, shall be identified by the ICCs/IPs themselves through traditional and customary
consultative processes facilitated by the community-recognized POs and/or Council of Elders.
The allocation of funds for and delivery of such support services shall be made with utmost

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transparency and with the involvement of the community POs, Councils of Elders and community
members. Any violation of this provision shall be subject to administrative sanction and be
punishable under Section 72 of the Act.
VI.Reversion

Under the IPRA and the IRR, appropriate technology transfer aimed at speeding up the
reversion of management of the area to the community must be effected by the parties.

The agreement os for the ICCs/IPs in case the areas revert back to them.

However, they are not exempt from certain exactions like donors tax, capital gains from sale
of real property and estate tax.

Exceptions:
1. Large-scale agriculture
2. Commercial forest plantations
3. Residential purposes.

Exactions are to be used for the development and improvement of the ancestral domains.

SEC. 61. Temporary Requisition Powers.


VII. Displacement or relocation
SEC. 62. Resolution of Conflicts

No displacement of ICCs/IPs without the written consent of the specific persons authorized to
give consent .

SEC. 63. Applicable Laws.

They have a right to stay in the territories and not to be removed therefrom.

PRIMARY APPLICATION OF CUSTOMARY LAWS UNDER IPRA

SEC. 59. Certification Precondition

What are customary laws? A custom is a practice which has acquired the force and effect of
law by reason of its universality and antiquity, in a particular place or country, in respect to the
subject matter to which it relates.

Cases covered: all conflicts pertaining to property rights, claims and ownership, hereditary
succession and settlement of land disputes within ancestral lands/domains.

Customary laws should also be applied in cases involving non-IPs.

I. prohibition against injunctions of government projects


II. Condition precedent

Certificate from the NCIP.

A. In case Sec 59 is not satisfied


Process of applying customary laws:

The NCIP upon complaint of the IPs or on its own initiative, shall issue compulsory processes
to stop or suspend any project that has not satisfied the consultation process and
requirements of free and informed prior consent or upon violations of the terms and conditions
of the contract.

Role of judges: judges are bound to check whether such CL possesses the status of a
juridical custom.

Patriarca v. Orate: the loan acquired by the plaintiff from the defendant i secured by a
mortgage of the improvements on a land that was leased. Real property sought to be
recovered did not belong to the plaintiff and there is no means of ascertaining what the
alleged improvements thereon were for the purpose of determining whether they could give
rise to an action in rem or a mere action in personam. SC held that a court of justice cannot
consider a local custom, as a source of right, unless such is properly established by
competent evidence like any other fact.

People v. Rodil: the accused was the one who caused the death of the deceased, to whom
he was married according ot the rites f the tribe of Tagbanuas to which both of the belonged,
said crime constituted parricide. Justice Malcolm said that it was a definite abandonment of

B. In case consent is obtained irregularly or MOA violated


Basically same with above.
SEC. 60. Exemption from Taxes
Special levies:
1. Additional levy on real property for the special education fund.
2. Additional ad valorem tax on idle lands.
3. Other special levy by the LGUs.

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the doctrine in the cases f US v. Tubban and US v. Verzola, refusing to recognize tribal
ceremony.

SECTION 66. Jurisdiction of the NCIP

Through its regional offices: jurisdiction over all claims and disputes involving the rights
of ICCs/IPs.

Exhaustion of remedies before resort to NCIP: certification issued by Council of


Elders/Leaders that dispute has not been resolved condition precedent to filing of
petition with NCIP.

SEC. 64. Remedial Measures


Difference between sections 54 and 64:

Sec54: refers to fraudulent claims which the NCIP may cancel since this involves cancellation
of CADTs/CALTs.

Sec64: refers to illegally acquired Torrens cert of titles covering lands or areas within the
ancestral domains; the NCIp is only bound to take legal action and regular courts of law has
jurisdiction to cancel Torrens titles.

SECTION 67. Appeals to the Court of Appeals

NCIP decisions appealable to the CA by way of Petition for Review (IPRA, IRR, Admin.
Cir. No. 1 Series of 1998).

Action for cancellation of documented titles illegally acquired: within 2 years from nov 22,
1997, effectivity date of IPRA until nov 22, 1999.

Erroneous: Mode of appeal is petition for review on certiorari (Admin. Cir. No. 1 Series of
2003).

An action for reconveyance is still available to the IPs despite lapse of the 2-year period.

An appeal erroneous as to mode or forum shall not be transferred but shall be


dismissed. (Murillo v. Consul)

Action for reconveyance is imprescriptible if the contract is void.

4 years for fraud

Possessor in good faith is synonymous to the concept of innocent purchaser for value.

SECTION 68. Execution of decisions, awards, orders.

Who: Hearing officer of NCIP issues writ of execution, as a matter of right.

What: Writ requiring sheriff or proper officer to execute final decision, order or award of
the Regional Hearing Officer of the NCIP.

How: (1) own initiative of NCIP Hearing Officer, or (2) motion of prevailing party.

When: (1) upon expiration of period to appeal, and (2) no appeal is perfected.

CHAPTER IX: JURISDICTION AND PROCEDURE FOR ENFORCEMENT OF RIGHTS


SECTION 65 Primacy of customary laws and practices.

GR: All conflicts related to ancestral domains and lands involving ICCs/IPs shall be
resolved through application of customary laws.

GR: For effective enforcement of judgment, any suitable process or procedure may be
employed and adopted.

E: (1) where one of the parties is a non-ICC/IP; or (2) dispute could not be resolved
through customary law adjudicated by NCIP in accordance with Rules on Pleading,
Practice and Procedures.

E: (1) does not conform to the spirit of RA 8371 and IRR, (2) violates customary laws
and practices.

All doubts or ambiguity in interpretation or application: in favor of ICC/IP.

In applying the law, integrity of customary laws and traditions of ICCs/IPs shall be
considered and given due regard.

Communal rights under Act not construed as co-ownership in NCC.

SECTION 69. Quasi-judicial powers of the NCIP


1.

Rule-making power: promulgate rules and regulations governing (a) hearing and
disposition of cases, (b) internal functions, and (c) as necessary to carry out its purpose.

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2.

3.

4.

Investigatory power: administer oaths, summon parties, issue subpoena to require


attendance of witnesses and production of books and documents, as material to
investigation or hearing conducted.
Hold any person in contempt and impose penalties.
Direct: summary; by the Commission, its members, or Regional Officers; in the
presence of or so near; Commission P2,000 fine or 10 days imprisonment; RHO
P200 fine or 1 day imprisonment; immediately executory and non-appealable.
Indirect: Rule 71 grounds; by the Commission or RHO; Commission P30,000 fine
or 6 months imprisonment; lower court P5,000 fine or 1 month imprisonment;
appealable from RHO to Commission within 5 days; suspended upon posting of
bond.
Enjoin any or all acts involving or arising from any case pending before it which, if not
restrained, may cause grave and irreparable damage to any party, or seriously affect
social or economic activity.
What: writ of preliminary injunction or restraining order (20-day period)
How: (1) on the basis of sworn allegations in a verified petition, and (2) filing of
bond.
Who: (1) Commission, or (2) RHO in cases pending before them.
Grounds for issuance:
1. Free and prior informed consent of ICC/IP not secured.
2. Consent of ICC/IP irregularly or improperly obtained, rendering FPIC void ab
initio.
3. Prohibited or unlawful acts threatened to be done or committed.
4. Grave or irreparable injury would result if not restrained.
Grounds for dissolution:
1. Upon proper showing of insufficiency.
2. After hearing, if it appears that while applicant is entitled, PI would cause
irreparable damage to party enjoined while applicant can be fully
compensated for his damages.

CHAPTER X: ANCESTRAL DOMAINS FUND


SECTION 71. Ancestral Domains Fund

Special fund to pay for expropriated lands and for expenses of delineation and surveying
of ancestral domains

Fund is administered by the NCIP for the ICCs/IPs for the purpose of delineation and
devt of ancestral domains and shall be allocated on a per linear/km basis and released
to people organizations and/or Council of Elders that have sufficient expertise in
delineation and ancestral domain devt activities.

To augment the Fund, the law authorizes the NCIP to solicit and receive donations and
contributions (tax exempted).
CHAPTER XI: PENALTIES

SECTION 72. Punishable Acts and Applicable Penalties


I.

Implementing rules and regulations Penalties (refer to p432 of book)

II.

Penalties

IPRA is unique as a special penal law in that it authorizes the imposition of


punishment in accordance with the customary laws of ICC/IPs concerned without
specifying what the penalties are.

IPRA does not impose limitations as to the penalties that the ICC/IPs may impose
based on their respective customary laws. The offended party has the option to
prosecute the offender under existing national laws in lieu of customary laws.

Prosecution of criminal cases fall within jurisdiction of the regular courts, the civil
damages are under the jurisdiction of the NCIP and RHO. IPRA does not bar right

SECTION 70. No restraining order or preliminary injunction

Inferior courts cannot issue writ of PI or TRO.

IPRA makes all violations of any of its provisions criminal and subject to penalties.

Remedy: petition for prohibition under Rule 65 with Supreme Court.

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of offended ICC/IPs from seeking relief in regular courts through proper civil action
under Rules of Court.

Court may impose, at its discretion:


1.
2.
3.

SECTION 73. Persons Subject to Punishment


I.

Principle of liability under the Corporation Code

Doctrine of piercing the veil of corporate fiction when the separate corporate personality
is being used to defeat public convenience, justify a wrong, protect fraud or defend a crime,
the law will regard the corporation as an association of persons.
IPRA adheres to the same principles governing the corporate liability and the personal liability
of corporate officers for criminal acts. Under the law, when the offender is a juridical entity,
criminal liability is imputed to all officers responsible for the unlawful act. However, as an
accessory penalty, the license or certificate of registration of the corporation or juridical entity
concerned shall be cancelled or revoked. In effect, although the corporation was not held
criminally liable, it nevertheless is held accountable for the acts of its agents.
II.

Persons liable
Combining Sec72 and Sec73, the ff are LIABLE for punishment for violations of the
provisions of IPRA:
1.
2.
3.

4.
III.

Imprisonment of not less than 9 months but not more than 12 years;
Fine of not less than 100,000 but not more than 500,000; or
Both such fine and imprisonment

Aside from the civil damages, there are specific accessory penalties pertaining to specific
offenders, to wit:
1.
2.
3.

For all violators, payment of damages suffered by the ICCs/IPs as consequence of the
unlawful act;
For corporations or other juridical persons, cancellation of their registration certificate of
license; and
For public officials, perpetual disqualification to hold public office.
CHAPTER XII: MERGER OF THE ONCC AND OSCC

SECTION 74. Merger of ONCC/OSCC


I.

PERTINENT PROVISIONS OF THE IMPLEMENTING RULES AND REGULATIONS

Any individual, w/n a member of the same or different ICC/IP community;


Any individual who is non-IP, whether a Filipino or alien;
In case of violation of rights committed by juridical persons, the Manager,
President, Chief Executive Officer, or any of the officers of such juridical
persons; and
Government officials, officers or employees.

Merger refers to the reorganization of the ONCC and the OSCC to establish
the NCIP.

Reorganization Procedure: Cultivation of a policy of preferential option for IPs


in the personnel policies of the NCIP.

Criteria for Filling Up the Newly Created Positions:


Qualifications and standards set by the Civil Service;
Criteria of retention and appointment prepared by the consultative
body convened for this purpose, for the implementation of the
Placement Committee

Order of Priority and Preferential rights:


Former ONCC/OSCC officers and employees who are IPs and who
have held permanent appointments to positions comparable to
vacant or new positions
Bona fide IP applicants over non-IP applicants with equal
qualifications

Liability

The offended ICCs/IPs have the option of punishing the offender either in accordance with
their respective customary laws, subject to specified limitations as to the impossible penalty,
or to prosecute such offender under existing national laws.
If the offender is prosecuted under national laws, the imposable penalty is subject to a
limitation in that what shall be imposed is that specified in Section 72 and not what is provided
under the national law.

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II.

The Organic Act created the Shariah and tribal courts as well as the Shariah
Appellate Court and Tribal Appellate Court.
The tribal courts are vested with jurisdiction over personal, family
and property rights in accordance with the tribal codes of these
communities. The regular courts have jurisdiction over
controversies involving real property located outside the area of
autonomy except in cases of successional rights that pertain to
tribal courts.
The composition and jurisdiction of the tribal courts are provided for
by the Regional Assembly. Customary law shall be used and
applied by these tribal courts.
Under the Organic Act, the customary law shall be codified. The
Tribal Code shall be applicable only to members of the ICCs/IPs. In
case of conflict between the Muslim Code and Tribal code, the
national law will apply. In case of conflict between the tribal code
and the national law, the latter shall prevail.

The Organic Act transferred jurisdiction over ancestral domains within ARMM
to its Regional Government who is vested with authority, power and right to
the exploration, development and utilization of the natural resources within
ARMM.

The extent of rights granted by the Organic Act to the ICCs/IPs is significantly
less and not clearly defined as compared to those granted under IPRA:
No right to self-governance within the ancestral domain/lands
Only consideration given is the use of customary laws, traditions
and practices with respect to land claims
No right to control or regulate the development of the ancestral
land/domain
No provision on the identification, delineation and titling of ancestral
lands/domains. Only right to recognition of ownership is under the
Torrens System (as opposed to the indigenous concept of
ownership under the IPRA).
No right to control or the requirement of obtaining the free and prior
informed consent

In 2001,R.A. 9054 superseded R.A. 6734 or the Organic Act.


R.A. 9054 created the Executive Council composed of the Regional
Governor, Regional Vice-Governor and three deputies representing
the Christians, ICCs and the Muslims.

ONCC AND OSCC

The Office of Muslim Affairs and Cultural Communities (OMACC) was the
previous agency in charge of indigenous cultural communities and also of
Muslim affairs.

It was abolished by President Aquino and its functions were divided into three
new specialized offices:
Office of Muslim Affairs (OMA)
Office for Northern Cultural Communities (ONCC)
Office for Southern Cultural Communities (OSCC)

The ONCC was the primary agency in charge of the cultural communities in
Regions I to III. Those in Regions IV to XII are within the jurisdiction of OSCC.

The main difference of the ONCC and the OSCC from the NCIP is the ONCC
and OSCC only provides legal and technical services for the survey,
adjudication, titling and development of tribal ancestral lands as well as
settlements proclaimed by the government for the northern and southern
communities respectively. While the NCIP has the power to undertake
identification and delineation of Ancestral Domains and Ancestral Lands.

After the creation of the Autonomous Region of Muslim Mindanao (ARMM)


some of the powers and functions of the OSCC and the control and
supervision over its offices within ARMM were transferred to the Autonomous
Regional Government (ARG). Only OSCCs authority over the cultural
communities within ARMM was removed and transferred, it continued to exist
and retain its authority over southern cultural communities outside of the
ARMM.

III. ARMM

Under the Organic Act or R.A. 6734, the ARMM is a corporate entity and has
jurisdiction in all matters devolved to it by the Constitution and by Congress.

ARMM Regional Government is comprised of the Regional Governor


(executive), Regional Assembly (legislative except those reserved to the
people by initiative and referendum) and the special courts (judiciary).

The Organic Act requires that four of the nine members of the Cabinet of the
Regional Governor shall preferably come from the ICCs /IPs.

IV. MERGER OF THE TWO OFFICES UNDER IPRA

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The transfer was done to harmonize existing laws with the Organic Act. It did
not abolish the OSCC but merely reduced its powers and functions.

Upon the enactment of IPRA and pursuant to its provisions under Section 74,
the ONCC and the OSCC were merged and reorganized to form the NCIP.

The provisions of R.A. 9054 give sufficient authority to the ARG to


enact legislation for the protection and promotion of the rights of
the ICC/IPs within the ARMM.

E.O. 462 in 1991 transferred to the ARG the offices of the OSCC within
ARMM and authority over the ICCs/IPs
.
The OSCC offices within ARMM became OSCC-ARMM with the task of
carrying out the services mandated by E.O. 462.

The merger did not affect the OSCC-ARMM nor the OMA, which continues to
exist.

In adopting IPRA, the ARMM Regional Legislative Assembly provides that


IPRA will apply in the absence of any regional law in the ARMM and will
remain as the legal framework for the recognition of the rights of the ICCs in
the area of autonomy until a regional law is enacted by the Regional
Assembly.

SECTION 75 Transition Period


SECTION 76 Transfer of Assets/Properties
SECTION 77 Placement Committee

V.

CONFLICTING JURISDICTIONS BEWTWEEN ARMM AND THE NCIP

The conflict over who has the jurisdiction over the ancestral domains/lands
within ARMM has not yet been resolved.
IPRA, duly enacted subsequent to the Organic Act vests NCIP with
jurisdiction.
The Constitution however expressly grants to Congress the power to
determine jurisdiction of autonomous regions over the ancestral domains. And
Congress did in fact vest in ARMM jurisdiction through the Organic Act. Thus
the ARG of the ARMM by virtue of the Organic Act likewise has jurisdiction.
R.A. 9054, the new ARMM law did not remove jurisdiction of the ARMM,
however the latter does not contain any provision on the identification,
delineation and titling of the ancestral domains.
According to a J.D. thesis, a probable solution is not to adhere power to the
present ARG.
The ARG does not have the authority to delineate or title ancestral
domain and lands as evidenced by the draft executive order
submitted by the ARMM Oversight Committee proposing transfer
of some powers of the NCIP to the ARG. Thus, the ICCs/IPs
seeking to obtain CADT or CALT must file their petition for
delineation and issuance of titles with the NCIP.
However, ARG may by enacting regional legislation, create and
office or confer upon OSCC-ARMM the power to undertake
delineation and issuance of titles- serving as counterpart of the
NCIP within ARMM.

CHAPTER XIII: FINAL PROVISIONS

SECTION 78. Special Provisions

GR: Act applicable throughout the entire country.

E: Lands within Baguio Townsite Reservation not reclassified except through legislation.
Baguio City itself not excluded from IPRA coverage.

Undocumented private lands of claimants in Baguio City may be titled (CA 141, PD
1529, Act, whichever is applicable).

Vested property rights before IPRA are protected and respected.

Baguio: only 1 valid claim of ancestral domain; more than 120 hectares located at the
back of Camp John Hay.

SECTION 79. Appropriations

Amounts necessary for operational expenditures of NCIP; continually provided for in


annual GAA.

Sum total of allocated annual budget of ONCC and OSCC in 1997 as initial basis of
NCIPs yearly allocation subject to adjustment.

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SECTION 80. Implementing rules and regulations

Within 60 days from appointment, NCIP shall issue IRR in consultation with
Committee on Cultural Communities of HR and Senate.

IRR approved by the NCIP on 9 June 1998.

SECTION 81. Saving clause

Act will not adversely affect rights and benefits of ICCs/IPs under conventions,
recommendations, international treaties, national laws, awards, customs and
agreements.

Doctrine of Incorporation: Philippines adopts generally accepted principles of


international law as part of the law of the land.

Pacta sunt servanda: states obliged to observe treaty in GF.

Courts may take judicial notice of international customs without need of introducing
evidence.

Rights of ICCs/IPs raised to the level of international custom may be subject of judicial
notice without introduction of evidence.

SECTION 82. Separability clause

If any provision unconstitutional, other provisions not affected.

Section 83. Repealing clause

Repealed: PD 410, EOs 122-B and 122-C, other laws inconsistent

Section 84. Effectivity

15 days upon publication in OG or 2 newspapers of general circulation.

Approved: 29 October 1997.

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