IPRA Law

INDIGENOUS PEOPLES 2009-2010

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

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. Ø 4% of the world’s 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.

Ø 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.

Ø 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. M’Intosh

§ 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.



§ 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 British’s 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 person’s 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 which must be integrated in mainstream society

Indigenous peoples as a common 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 modernization

Encourage peoples to set their own development priorities

It introduces new provisions on the right to natural resources, indigenous lands, and to ancestral lands that they have lost.

B. Other significant Conventions and Declarations

1. 1948 Geneva Convention 2. Declaration on the Granting of Independence to Colonial Countries and Peoples

§ All people have the right to self-determination. 3. UN Declaration on the Elimination of All Forms of Racial Discrimination 4. International Convention on the Elimination of All Forms of Racial Discrimination 5. International Covenant on Civil and Political Rights 6. 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



§ 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.

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

Ø Principal Sponsor: Senator Juan Flavier

Ø As an expression of parens patriae, IPRA is a manifestation of the State’s recognition that,

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

IV. History on the Treatment of Indigenous Peoples in the Philippines Ø 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 family-based 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.

Ø 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.

Ø 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

Regalian Doctrine – All lands of the colony were deemed to belong to the King. Ø The Regalian doctrine was imposed on the natives, and the natives were stripped of their

ancestral rights to land.

Ø 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

“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

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

Section 11)

Ø 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)

Ø 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.



SECTION 2 I. 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

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. Policies – Mere guidelines for the State and are not considered self-executory. Ø IPRA continues this policy of cultural sensitivity and respect for ICC/IP dignity by making use

of the “cultural communities” and not “minorities.”

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

Ø 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 Article XII, Section 5 of 1987 Constitution State protects the rights of ICCs/IPs to their ancestral domains

State protects the rights of ICCs/IPs to their ancestral lands

Duty of the State is to protect the rights of the ICCs/IPs to their ancestral domains is expressed without condition

Duty of the State is subject to the provisions of the Constitution and national development policies and programs

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 IPRA’s passage into law.

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.

Ancestral domains covers the total environment including natural resources

1. Respect for cultural integrity in the formulation of national development policies

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) Ø Any grant of ICC/IP rights should be read in harmony with the national law. In case of

irreconcilable conflict, the national law prevails. Ø Due process must be observed and the ICCs/IPs are entitled to receive a just share of any

benefit derived from within their domains. Ø In the balancing of interests, the ICCs/IPs affected must be consulted. Ø All grants by the State of property rights, even though not amounting to title, are subject to

ICC/IP rights to their ancestral lands. 2. Applicability of customary laws 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. 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)

Ø 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



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 Patrimonial property Properties that are for public use, for public service, and for development of national wealth

Properties of the State but are not devoted to public use, public service, or the development of the national wealth

Outside the commerce of man and cannot be the object of any contract

Wealth owned by the State in its private capacity

No exclusive enumeration of patrimonial properties

Cannot be acquired by prescription 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 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 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

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 Ø 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.

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

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

absolute.



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 Ø UDHR, ICESCR and ICCPR comprise the “international bill of rights”

Ø 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 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. Ø 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 Ø 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.

Ø 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 State’s 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

Ø 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 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



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 man-made

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. 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.

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 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

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

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



- 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 V. Government projects

A. National projects

1. RA 6657, Comprehensive Agrarian Reform Law of 1988 (CARL) Ø Signed into law in 10 June 1988

Ø 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

Ø Ancestral lands are not limited to lands actually possessed and occupied by the ICCs/IPs Ø Makes a proviso for vested rights under the Torrens system Ø 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 Ø 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. 2. RA 7227, Bases Conversion and Development Act of 1992 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.O’Donnell 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 Ø 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:

1) 35.5% = Finance the transfer of the AFP military camps and the construction of new camps

2) 50% = Finance the conversion and commercial uses of the Clark and Subic military reservations and extensions

3) 5% = Finance the concessional and long-term housing loan assistance

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

Ø 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

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

Ø 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 Ø 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

Ø 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



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 Ø 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 Ø 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.

Ø 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 government’s direction, or restrain, prohibit or compel certain acts.

4. RA 8975, Mt. Kitlanglad Range Protected Area of 2000 Ø Enacted on 7 November 2000

Ø 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

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

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

B. Local government projects

Ø 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. Ø In the interpretation of the LGC’s 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 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 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



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, small-scale 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 Ø A city may effect all the services and facilities of the municipality and province, and in addition

thereto, adequate communication and transportation facilities.

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

Ø IPRA provides for mandatory representation of ICCs in the policy-making bodies and other

local legislative councils. VI. Forest and agricultural lands Classification of lands of the public domain: 1. Agricultural 2. Forest/Timber 3. Mineral lands 4. National parks Ø 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.

Ø 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.

Ø Ancestral domains are inalienable and prior vested rights are respected.

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

by the Constitution.

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

Ø 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 Ø Possession or occupation is the basis of claiming ownership from the viewpoint of ICCs/IPs

with respect to their ancestral domains. 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.

Ø 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) Ø 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.



Ø 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.

Ø 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) Ø 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 Ø All lands that were not acquired from the Government, either by purchase or by grant, belong

to the public domain.

Ø 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, exploit and sell

Include a broader area, including those that are 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 lands which ICCs/IPs have traditionally had access for their subsistence and traditional activities

Limited to lands that are not merely occupied and possessed but are also utilized by cultural communities under the claim of individual or traditional group ownership

SECTIONS 3(C)(D)(E) SECTION 3(F) I. Article XII, Section 5 (Applicability of customary laws)

Custom under Civil Code Custom under Customary Laws Custom under IPRA It is ownership and the extent thereof which determines the person’s property rights and relations

It is the property rights and relations which determine ownership and extent thereof

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

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 Ø 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.

Ø IPRA provides for the primacy of customary law. III. Importance of codification Ø 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.

Ø 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 Tanada v. Tuvera

§ The rule of fairness was deemed to require the publication of laws prior to their effectivity 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.



§ 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. 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 person’s agreement to allow something to happen that is based on full disclosure of facts needed to make the decision intelligently Ø 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

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

Ø 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 Ø 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;



- 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.

II. 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 Ethnic – Means pertaining to such peoples, their origin, characteristics, and classification, or peculiar to a people Minority – Refers to a portion of the population differing from the majority in race, religion, national origin, political affiliation, especially when subject to discrimination Ø 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

III. Jurisprudence 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

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 Ø The fundamental criterion for determining the groups to which the convention would apply still

remains self-ascription. (ILO 169, Section 1) V. Common bonds Ø Recognizes the diversity of cultures, not geographic considerations

Ø ICCs/IPs are not descriptive of geographical groups but identifies those who share common

bonds of language, customs, traditions and other distinctive cultural traits 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 Ø IPRA includes those who are historically differentiated from the majority of Filipinos

VII. Descent 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



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

geographical region. VIII. Displacement Ø The President may create reservations for government, public or quasi-public uses or

purposes.

Ø 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(I) I. Existing political structures contrasted with ordinary barangay under the LGC Ø What is utilized by the community depends on what is dictated by their customary laws and

traditions.

Ø According to the LGC, the barangay is the basic political unit. Ø Each barangay has 1 punong barangay, 7 sangguniang barangay members, a sangguniang

kabataan, a barangay secretary and a barangay treasurer. Ø 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.

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

LGC IPRA 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

Creation of a tribal barangay is part of the Right to Self-Governance and Empowerment.

directly affected SECTION 3(J) Discussed in Chapter 8 SECTION 3(K) I. Creation of the NCIP

Ø Pursuant to the mandate of Article 12, Section 5 of the Constitution, Congress, through IPRA,

created the NCIP.

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

Ø 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.

II. Issue in Cruz v. DENR: Administrative relationship to the Office of the President Ø Justice Kapunan : The provision in the IRR characterizing the NCIP as an independent

agency under the OP does not infringe upon the President’s power of control. It expressly places the NCIP under the OP.

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 President’s 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

III. Administrative jurisdiction over the NCIP



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

SECTION 3(L) I. Carino v. Insular Government Johnson v. M’Intosh

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

Ø 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 Ø 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

Ø Time immemorial possession continued to be a basis for the recognition of vested rights. III. Carino in light of Cruz v. DENR 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

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

SECTION 3(N)



People’s organizations – Bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership and structure Ø 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) Ø 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

Ø 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.

Ø 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.

Ø 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.

Ø 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”

Ø 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.

Ø 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).

Ø 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.

Ø 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.

II Under IPRA

Ø 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.



SECTION 5

II Indigenous Peoples’ concept of ownership

Ø 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.

Ø 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

Ø 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

Ø IPRA - 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.

IV Intergenerational responsibility

Ø Ancestral domains belong to all generations of IPs.

Ø 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

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

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.

Ø 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)

Ø Does ownership over ancestral domains extend to natural resources?

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

Ø 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.

Ø 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

Ø 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 Hunting and Fishing Grounds

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

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

V Improvements



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

Ø “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

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

Ø 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)

Ø 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 People’s Small Scale Mining Act of 1991 – “No ancestral land may be declared as a people’s 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.

Ø 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

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

Ø 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.

Ø Remedies under Civil Law:

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

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



II Relocation

Ø 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

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

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

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

Ø 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

Ø 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

Ø Displacement can only occur in case of a natural catastrophe

Ø 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 former’s presence. The host



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

Ø 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.

Ø 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.

Ø Migrants must secure express permission of the community’s 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

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

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

Ø 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

Ø 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

Ø Types: - Civil - Forest - Military

- Watershed



II Who Declares?

Ø The power to declare is an exclusive prerogative of the Executive Department through executive proclamation of the Office of the President.

Ø Under Section 14 Book 14 of the Administrative Code, the power to reserve includes the power to withdraw.

III Indigenous Peoples’ right to claim

Ø 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.

Ø 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. SECTION 7 (H) Right to resolve conflict

I Primacy of customary laws

Ø 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

Ø 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

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

III (Chapter 7)

SECTION 8 Rights to ancestral lands

SECTION 8 (A) Right to transfer land/property

I Ownership under Civil Law and IPRA

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

Ø Ownership of ancestral domains cannot be alienated to anybody since ownership of domain excludes the right to sell, dispose, or destroy.

Ø Ancestral lands may be transferred to or among members of the same IPs subject to

customary laws. II Limitations on the right to transfer

Ø 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 8 (b) Right to redemption

Ø 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 one’s person or property or that of one’s spouse, descendants, or ascendants.



§ 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.

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

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

Ø Redemption under Civil Law vis-à-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

Ø Redemption under the Public Land Act vis-à-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

Ø 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

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

Ø 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

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

Ø 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

Ø 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

Ø 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

Ø 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)

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



Ø Under IPRA when a domain had gone through CADC process, it need not go through

the whole process of delineation for CADTs. SECTION 12 Option to secure certificate of title under Commonwealth Act 141 or the Land Registration Act

Ø 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

Ø When – 20 years from the approval of IPRA

Ø 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).

CHAPTER IV: RIGHT TO SELF-GOVERNANCE AND EMPOWERMENT

Ø Treaty and International customary law oblige States to respect the right of all peoples to self-determination 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.

Ø 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. 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

Resolution titled Declaration on the Granting of Independence to Colonial Countries and PEOPLES]

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.

II. 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].

b. Concept of Autonomy

• It is either decentralization of administration or decentralization of powers.



• 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 self-governing 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. 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.

d. 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. 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.

II. Other laws recognizing the indigenous justice system – a. ARMM First Organic Act – created the Shari’ah Courts. This includes the

Shar’iah 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



property rights; over crimes where the penalty does not exceed 6 years or a fine not exceeding 50k or both.

c. 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.

d. 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.

e. 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.

f. 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.

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.

• 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

• 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. 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

• 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.

I. 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.



c. 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. d. 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.

e. 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.

f. 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

vi. Entry of military and paramilitary forces for establishment of temporary facilities.

g. Memorandum of Agreement between the ICC/IP concerned and the NCIP is needed as part of the process in securing FPIC.

h. 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.

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.



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.

SECTION 19: ROLE OF PEOPLE’S ORGANIZATIONS

• 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

I. 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.

II. 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

c. Cancellation Proceeding: 1) Complaint; 2) Hearing; 3) Cancellation; 4) Decision of the NCIP Regional Officer may be appealed to the Commission.

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.

CHAPTER V: SOCIAL JUSTICE AND HUMAN RIGHTS

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

Ø 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.

Ø 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

Ø 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



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.

Ø 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.

Ø 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).

Ø 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.

Ø 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.

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

Ø 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

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

Ø International Humanitarian Law – comprises of all rules designed to regulate treatment of individuals in international armed conflicts.

Ø 1994 Geneva Convention govern non-international armed conflicts.

Meaning of “Armed Conflict”

Ø 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.

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

Ø 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.



Protection of Civil Population

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

Ø 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

Ø 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

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

Ø 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.

Ø 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

Ø 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

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



Ø This includes right not to associate and right to disassociate

Ø Subject also to right of free exercise of religion

Ø 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.

Ø 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.



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

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 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. 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 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.



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. 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.

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. User’s 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. 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.



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 1. 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

• 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

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 doesn’t 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 President’s control and supervision with respect to its admin function a. President’s approval in obtaining loans to finance projects b. President’s 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



• 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. President’s 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. Women’s 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



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 President’s 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. ???

SECTION 45 Accessibility and transparency

• Illustrates right to information

• 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 49 Office of Executive Director



SECTION 50 Consultative Body

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 Ø 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.

Ø 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”.

B. Compared with the general principles underlying the Torrens System Ø 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.

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

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

1. Sworn statement of elders ØØØØ 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.

ØØØØ The IRR recognizes the elders as the representatives of the ICCs/IPs. ØØØØ The law provides that the testimony of the elders is among the evidence deemed admissible

in the delineation process. ØØØØ 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. ØØØØ 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.

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

3. Role of government

ØØØØ 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.

ØØØØ 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.

ØØØØ 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.



C. Lands no longer exclusively occupied

Ø 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.

Ø 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 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

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 Ø 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.

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

Ø 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, People’s 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;



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. ØØØØ 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.

ØØØØ 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.

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

domains and lands.

ØØØØ 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 ØØØØ 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.

ØØØØ Examples: Certificates of Land Ownership Awards (CLOA) by DAR and Certificate of Stewardhip Contracts (CSC) by the DENR. III. EXISTING OR VESTED PROPERTY RIGHTS

Ø 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



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.

Ø 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.

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

SEC 52(C). Delineation Paper 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

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 (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. Ø 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;



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; vi) Anthropological data; vii) Genealogical surveys; 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

1. Testimony of elders

Ø 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

(see previous page)

Ø 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.

Ø A documentary evidence in an unofficial language shall not be admitted unless accompanied with a translation into English or Filipino.

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

SEC 52(E). Preparation of Maps


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 non-ICC/IP households in the community; a list of community-recognized indigenous leaders/elders; and a description of the community-recognized PO in the area.



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.

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.

II. PERIMETER MAP

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

Ø 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.

SEC52(F). Report of Investigation and Other Documents


See par. (i) of the implementing rules and regulations under Preparation of Maps.

SEC52(G). Notice and Publication


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;

(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 (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. NATURE OF PROCEEDINGS Ø 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 IV. PURPOSE OF THE PUBLICATION Ø 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. SEC 52(H). Endorsement to NCIP 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.



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. 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 Ø 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. Ø A denial of the application is appealable to the NCIP. A favorable report of the ADO shall be

reviewed by the NCIP en banc. III. CONFLICTING CLAIMS Ø 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.

Ø 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.

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

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

Ø 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 Ø It shall be issued in the name of the community.

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

clan.

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

IV. DIFFERENCE FROM THE TORRENS TITLE Ø 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.

Ø 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.



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. Ø 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.

SEC. 53(A).


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.

II. Allocation of lands within the Ancestral Domains A. Requirements Ø 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.

Ø 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.

Ø 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.

B. Right to apply for the issuance of a CALT Ø 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.

Ø How done: by filing the appropriate form with the NCIP Service Center without need of going

through the process of delineation.

Ø 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.

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

Ø 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.

SEC 53(B). Ø 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.



Ø 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.

Ø 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.

SEC 52(C).

Ø IRR provides:

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:

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

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

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

grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains,

rivers, creeks, ridges, hills, terraces and the like; 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

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

Ø 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.

SEC 53(D)

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

SEC 53(E)

Ø 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) 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;

2) 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

3) 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

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.

SEC 53( F)




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. 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.

II. INVESTIGATION AND INSPECTION

See e, f, and g of IRR

III. ACTION ON THE APPLICATION

Ø 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.

Ø The ADO shall assist the parties in coming up with preliminary resolutions. SEC 53(G) IRR:

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.

SEC. 54. Fraudulent Claims.

I. Review of existing claims

Ø 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.

Ø 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.

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

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



Ø The only ground for cancellation under this section is FRAUD.

II. Cancellation by the NCIP

1.) Notice and hearing

2.) proof required

Ø 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

Ø Communal ownership is not communal ownership.

Ø 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.

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;

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 information-dissemination, 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;



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, self-governance, 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; 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; 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”

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

Ø 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.

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

I. PRIORITY RIGHTS

A. Meaning

Ø 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

Ø 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.

Ø Does not preclude the state from undertaking activities.



II. NON-MEMBER OF ICCs/IPs

a. development and utilization

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

b. term

Ø 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.

c. formal and written agreement

d. manner of exploitation

Ø 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.

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

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

e. visitorial power of the NCIP

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

SEC. 58. Environmental Considerations

I. Concept of sustainable development

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

Ø 2 temporal dimensions: intra-generation responsibility (present) and the responsibility to future generations or inter-generation responsibility.

II. Special Areas

Ø 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

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

IV. Responsibility of ICCs/IPs

1. Inventory of all portions of ancestral domains. 2. Environmentally critical areas. 3. 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 community’s 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



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

Ø 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.

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

VII. Displacement or relocation

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

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

SEC. 59. Certification Precondition I. prohibition against injunctions of government projects II. Condition precedent Ø Certificate from the NCIP. A. In case Sec 59 is not satisfied Ø 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.

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.

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

Exceptions:

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

Ø Exactions are to be used for the development and improvement of the ancestral domains. SEC. 61. Temporary Requisition Powers. SEC. 62. Resolution of Conflicts SEC. 63. Applicable Laws. PRIMARY APPLICATION OF CUSTOMARY LAWS UNDER IPRA Ø 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.

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

Ø Customary laws should also be applied in cases involving non-IPs. Process of applying customary laws: Ø Role of judges: judges are bound to check whether such CL possesses the status of a

juridical custom.

Ø 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.

Ø 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



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

SEC. 64. Remedial Measures Difference between sections 54 and 64: Ø Sec54: refers to fraudulent claims which the NCIP may cancel since this involves cancellation

of CADTs/CALTs.

Ø 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.

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

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

Ø Action for reconveyance is imprescriptible if the contract is void.

Ø 4 years for fraud

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

CHAPTER IX: JURISDICTION AND PROCEDURE FOR ENFORCEMENT OF RIGHTS

SECTION 65 Primacy of customary laws and practices.

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

Ø 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.

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

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

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

SECTION 66. Jurisdiction of the NCIP

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

Ø Exhaustion of remedies before resort to NCIP: certification issued by Council of Elders/Leaders that dispute has not been resolved àcondition precedent to filing of petition with NCIP.

SECTION 67. Appeals to the Court of Appeals

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

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

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

dismissed. (Murillo v. Consul) SECTION 68. Execution of decisions, awards, orders.

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

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

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

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

Ø GR: For effective enforcement of judgment, any suitable process or procedure may be

employed and adopted.

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

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.



2. 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.

3. 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.

4. 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.

SECTION 70. No restraining order or preliminary injunction

Ø Inferior courts cannot issue writ of PI or TRO.

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

CHAPTER X: ANCESTRAL DOMAINS FUND

SECTION 71. Ancestral Domains Fund

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

Ø Fund is administered by the NCIP for the ICCs/IPs for the purpose of delineation and dev’t 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 dev’t activities.

Ø 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)

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

II. Penalties

Ø 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.

Ø 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.

Ø 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



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

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. Any individual, w/n a member of the same or different ICC/IP community; 2. Any individual who is non-IP, whether a Filipino or alien; 3. 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

4. Government officials, officers or employees.

III. 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.

Court may impose, at its discretion:

1. Imprisonment of not less than 9 months but not more than 12 years; 2. Fine of not less than 100,000 but not more than 500,000; or 3. Both such fine and imprisonment

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

1. For all violators, payment of damages suffered by the ICCs/IPs as consequence of the unlawful act;

2. For corporations or other juridical persons, cancellation of their registration certificate of license; and

3. 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 Ø Merger refers to the reorganization of the ONCC and the OSCC to establish

the NCIP.

Ø Reorganization Procedure: Cultivation of a policy of preferential option for IPs in the personnel policies of the NCIP.

Ø 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

Ø 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



II. ONCC AND OSCC Ø The Office of Muslim Affairs and Cultural Communities (OMACC) was the

previous agency in charge of indigenous cultural communities and also of Muslim affairs.

Ø 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)

Ø 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.

Ø 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.

Ø 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 OSCC’s 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

Ø 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.

Ø 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).

Ø The Organic Act requires that four of the nine members of the Cabinet of the

Regional Governor shall preferably come from the ICCs /IPs.

Ø The Organic Act created the Shari’ah and tribal courts as well as the Shari’ah 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.

Ø 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.

Ø 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

Ø 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.

IV. MERGER OF THE TWO OFFICES UNDER IPRA



Ø E.O. 462 in 1991 transferred to the ARG the offices of the OSCC within ARMM and authority over the ICCs/IPs .

Ø The OSCC offices within ARMM became OSCC-ARMM with the task of carrying out the services mandated by E.O. 462.

Ø 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.

Ø 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.

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

V. CONFLICTING JURISDICTIONS BEWTWEEN ARMM AND THE NCIP

Ø The conflict over who has the jurisdiction over the ancestral domains/lands

within ARMM has not yet been resolved.

Ø IPRA, duly enacted subsequent to the Organic Act vests NCIP with jurisdiction.

Ø 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.

Ø 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.

§ 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.

Ø 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

CHAPTER XIII: FINAL PROVISIONS

SECTION 78. Special Provisions

Ø GR: Act applicable throughout the entire country.

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

Ø Undocumented private lands of claimants in Baguio City may be titled (CA 141, PD

1529, Act, whichever is applicable).

Ø Vested property rights before IPRA are protected and respected.

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

SECTION 79. Appropriations

Ø Amounts necessary for operational expenditures of NCIP; continually provided for in annual GAA.

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



SECTION 80. Implementing rules and regulations

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

Ø IRR approved by the NCIP on 9 June 1998. SECTION 81. Saving clause

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

Ø Doctrine of Incorporation: Philippines adopts generally accepted principles of international law as part of the law of the land.

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

Ø Courts may take judicial notice of international customs without need of introducing

evidence.

Ø 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

Ø If any provision unconstitutional, other provisions not affected. Section 83. Repealing clause

Ø Repealed: PD 410, EOs 122-B and 122-C, other laws inconsistent Section 84. Effectivity

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

Ø Approved: 29 October 1997.

IPRA Law

Documents

Transcript of IPRA Law