Arellano University School of Law

Taft Avenue Corner Menlo St., Pasay City

Indigenous Lands:
Source of Life and Reason for Death

Submitted by:
NICOLAS, Patricia Anne P.
2016-0049

Submitted to:
Atty. Ricardo M. Ribo
 Table of Contents

I. Introduction
who are the indigenous people?
what is the problem?

II. Regalian Doctrine vs Ancestral Domain

who owns these lands?
relevant laws

III. Court Decision

cruz vs denr

IV. What should we do?

I. Introduction

who are the indigenous people?

There is an estimated 14-17 million Indigenous Peoples (IPs) in the country. They belong to 110
ethno-linguistic groups; who are mainly concentrated in Northern Luzon (Cordillera
Administrative Region, 33%) and Mindanao (61%), with some groups in the Visayas area.i

Today, we subscribe under the definition of Republic Act No. 8371ii or The Indigenous People’s
Rights Act (IPRA) of 1997 of “indigenous peoples,” to wit;
Section 3.
h) Indigenous Cultural Communities/Indigenous Peoples - refer to a group of people or
homogenous societies identified by self-ascription and ascription by other, who have
continuously lived as organized community on communally bounded and defined territory,
and who have, under claims of ownership since time immemorial, occupied, possessed
customs, tradition and other distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, non-indigenous religions and culture,
became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise
include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or the establishment of present
state boundaries, who retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains or
who may have resettled outside their ancestral domains;

what is the problem?

It is still shocking, but it is not news to us that our indigenous peoples (IPs) are one of the
poorest and most disadvantaged members of our society.

The most common problems, which affect IPs regardless of their geographical location,
are the grabbing of their ancestral lands and their displacement due to various “vital installations”
and “flagship projects” by the government.iii

The IPs have long resisted these intrusions into their ancestral domains, which never ends
well for the tribes. Since the 1980s, the Lumad communities in Andap Valley Complex in Lianga
have fiercely resisted the entry of coal mines and other extractives. To which the government
responds with brutal militarization.iv This year alone, Duterte threatened to bomb Lumad schools
for allegedly teaching students to rebel against the government.v

Just a plain and casual reading of the news would reveal that the IPs are being punished
solely for wanting to hold on to their ancestral domain. They are being threatened and killed off
for wanting to stay, as if the government and the oligarchs do not understand the concept that these
people are deeply connected to their lands. Their cultures, traditions, livelihood, and even
spirituality are all built on the land that they have been occupying since time immemorial. It is
simple – to take away their lands is to slowly take away their entire lives, too. Assuming, of course,
that the government-issued bullets do not already speed up the process.
II. Regalian Doctrine vs Ancestral Domain

who owns these lands?

Under the Regalian Doctrine, a principle embodied in the 1987 Constitution, “All lands of the
public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural resources shall be under the
full control and supervision of the State.”vi

However, IPRA defined ancestral domains and ancestral lands as:

Section. 3.
a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas generally belonging
to ICCs/IPs comprising lands,inland waters, coastal areas, and natural resources therein,
held under a claim of ownership, occupied or possessed by ICCs/IPs, themselves or
through their ancestors, communally or individually since time immemorial, continuously
to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other voluntary dealings
entered into by government and private individuals, corporations, and which are necessary
to ensure their economic, social and cultural welfare. It shall include ancestral land,
forests, pasture, residential, agricultural, and other lands individually owned whether
alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other natural resources, and lands which may no longer be
exclusively occupied by ICCs/IPs but from which their traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are
still nomadic and/or shifting cultivators;

b) Ancestral Lands - Subject to Section 56 hereof, refers to land occupied, possessed and
utilized by individuals, families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-in-interest, under claims of
individual or traditional group ownership,continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots;

It is therefore clear that ancestral domain and ancestral land are private and do not form part of our
“public dominion.”vii These are lands owned by either indigenous cultural communities or
indigenous peoples.

relevant laws

Our laws, at least in theory, support and protect indigenous ownership of these domains.
The 1987 Constitution itself stands firm behind this. The Philippine Mining Act of 1995viii
recognizes the ownership of ICCs/IPs of indigenous lands as well. And in 1997, the Indigenous
People’s Rights Act was passed.

1987 Constitution

Sec. 22, Art II. The State recognizes and promotes the rights of indigenous cultural communities
within the framework of national unity and development.
 Sec. 5, Art XII. The State, subject to the provisions of this Constitution and national development
policies and programs, shall protect the rights of indigenous cultural communities to their
ancestral lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights or
relations in determining the ownership and extent of ancestral domain.

Mining Act of 1995

Section 16
Opening of Ancestral Lands for Mining Operations
No ancestral land shall be opened for mining-operations without prior consent of the indigenous
cultural community concerned.

Section 17
Royalty Payments for Indigenous Cultural Communities
In the event of an agreement with an indigenous cultural community pursuant to the preceding
section, the royalty payment, upon utilization of the minerals shall be agreed upon by the parties.
The said royalty shall form part of a trust fund for the socioeconomic well-being of the
indigenous cultural community.

Indigenous People’s Rights Act of 1997

Sec. 7. Rights to Ancestral Domains. — The rights of ownership and possession of ICCs/IPs to
their ancestral domains shall be recognized and protected. Such rights shall include:
1. Right of Ownership
2. Right to Develop Lands and Natural Resources
3. Right to Stay in the Territories
4. Right in Case of Displacement
5. Right to Regulate Entry of Migrants
6. Right to Safe and Clean Air and Water
7. Right to Claim Parts of Reservations
8. Right to Resolve Conflict

Sec. 8. Rights to Ancestral Lands. — The right of ownership and possession of the ICCs/IPs to
their ancestral lands shall be recognized and protected.
1) Right of ownership and possession
2) Right to transfer land or property rights to/among members of the same ICCs/IPs, subject
to customary laws and traditions of the community concerned.
3) Right of Redemption (by the transferor ICC/IP) within a period not exceeding fifteen (15)
years from the date of transfer
a) When the transfer of land/property rights by virtue of any agreement or devise was made
to a non-member of the concerned ICCs/IPs; and
b) Such transfer is tainted by the vitiated consent of the ICCs/IPs, or is for an
unconscionable consideration or price.
III. Court Decision

Cruz vs DENR (G.R. No. 135385. December 6, 2000)ix

Facts
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No.
8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules) on the ground that they amount to an
unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals
and other natural resources therein, in violation of the regalian doctrine embodied in Section 2,
Article XII of the Constitution.

Issue
WON the IPRA and its IRR are constitutional

Held
Yes. Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief
Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the
challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all
challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP
Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA,
and Section 57 of the IPRA which he contends should be interpreted as dealing with the large-
scale exploitation of natural resources and should be read in conjunction with Section 2, Article
XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the petition
solely on the ground that it does not raise a justiciable controversy and petitioners do not have
standing to question the constitutionality of R.A. 8371.

Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a
separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions
of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58,
59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose
rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing
the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo,
Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and
Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case
was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
IV. What should we do?

The 7-7 ruling of the Court in Cruz vs DENR, in effect, still upheld the constitutionality of
both the IPRA and its implementing rules. Therefore, no other course of action must be taken
except for the implementation of such laws.

The IPs have the right over their ancestral domains, and it finds basis not only in the law
but in common sense as well. These are people who have built their lives in the land. They know
the land, they care for the land, they are one with the land. However, we are so quick to disregard
their voices when it comes to policy-making. The Lumads alone contend that their voices are not
being heard as to the mining of their ancestral domains. They are being bypassed because personal
and business interests are top priority. And so, we should hold the government responsible by
being proactive in the issue. Let them know that the IPs are not alone in this.

Another thing we can do as citizens is to spread awareness. Let the people know about the
injustices that are being perpetuated in the far-flung, unheard of communities. These issues deserve
all the attention and noise just as much as those viral mcdo commercials. We should be talking
about this more, and maybe, this time, not focus on whether or not the NPAs are brainwashing the
IPs to forward their communist agenda. We need to highlight what is truly happening, especially
those that are in violation of our laws. The least we can do is stay sober and keep talking about
what truly matters.

And, just another suggestion, maybe let us stop killing our indigenous peoples?

i “Fast Facts: Indigenous Peoples in the Philippines.” United Nations Development Programme.
http://www.ph.undp.org/content/philippines/en/home/library/democratic_governance/FastFacts-IPs.html
ii Republic Act No. 8371 “The Indigenous People’s Rights Act of 1997.” LawPhil Project, Arellano Law Foundation.

http://www.lawphil.net/statutes/repacts/ra1997/ra_8371_1997.html
iii Dulce, Leon. “War in paradise in the time of Duterte.” Rappler. https://www.rappler.com/views/imho/190766-duterte-war-

paradise-environment
iv Ibid.

v Lingao, Amanda. “Duterte threatens to bomb Lumad schools.” CNN Philippines.

http://cnnphilippines.com/news/2017/07/25/Duterte-threatens-to-bomb-Lumad-schools.html
vi 1987 Constitution. LawPhil Project, Arellano Law Foundation. http://www.lawphil.net/consti/cons1987.html
vii
Bernas, Joaquin G. A Living Constitution: Constitutional Issues Arising During the Troubled Gloria Arroyo Presidency Part II.
Queon City: Jesuits Communication Foundation Inc,, 2010. Print.
viii Republic Act 7942. “Philippine Mining Act of 1995.” LawPhil Project, Arellano Law Foundation.
http://www.lawphil.net/statutes/repacts/ra1995/ra_7942_1995.html
ix Cruz vs DENR (G.R. No. 135385). December 6, 2000. LawPhil Project, Arellano Law Foundation.
http://www.lawphil.net/judjuris/juri2000/dec2000/gr_135385_2000.html