Professional Documents
Culture Documents
In General
Indigenous peoples or cultural communities are considered as distinct groups of people with a
continuity of existence or identity tracing their roots to tribes or nations of their ancestral past.
4% of the worlds population, distributed among 2,000 or more ethnic groups, was already
designated as tribal people.
II.
Papal Bulls In the 14th century, it was commonly believed that the entire globe was the property
of God, over which the Pope had the ultimate power to divide and distribute. The Pope divided the
undiscovered world between Portugal and Spain.
Treaty of Tordesillas Reciprocally recognized the right of Spain and Portugal to cross into
territory of the other and affirmed the exclusive ownership of each within its area.
Bull Ea Quae of 1506 Reiterated the right of the King of Portugal:
To navigate the ocean, seek out the islands, ports, and mainland lying within the sea,
and retain those found for himself, and
To all others it was forbidden under penalty of excommunication, and other penalties
from presuming to navigate the sea in this way against the will of the king, or
To occupy the islands and places found there.
For the colonizers, there was no necessity to secure the agreement of the local inhabitants to
the assumption of sovereignty. These people were viewed as savages or barbarians who
were readily available to be subjects of the European monarchs.
The State in whose name a settlement was established in an undiscovered territory became
the sovereign of the territory in question, regardless of any proprietary claims of the original
inhabitants.
B.
Vitoria: The Pope possessed no civil or temporal powers over the whole world, or even spiritual
jurisdiction over believers.
He believes that the Spaniards could eventually take the property though war.
Suarez: The Pope had the power to distribute among temporal princes and kings, the provinces
and realms of unbelievers.
He did not consider that it was permissible to coerce them into believing, unless they
were subjects of the prince on whose behalf the coercion was being exercised.
Grotius: He upholds the right to acquisition of title to territory through prescription. However, the
monarch has a right to wage war against those who have broken the laws of nature.
Prescription: (1) Knowledge that another possesses what belongs to him; and (2)
Voluntary silence despite full liberty to speak.
Just war is undertaken against wild rapacious beasts, and men who act as such.
Wolff: Refusal to accept the culture being offered the barbarous nation, in fact denies to the more
civilized state the right to perform its duties; hence, providing a ground to wage a just war.
III. Judicial Recognition of Indigenous Rights
Johnson v. MIntosh
Discovery gave title to the Government by whose subjects or by whose authority it was
made against all other European governments, which title was consummated by
possession.
The Courts affirmed the dominical right s of the colonial rulers, but recognized the right
to occupancy of the Indian natives.
Worcester v. Georgia
The Indian nations had always been considered as distinct and independent political
communities. They retained their natural rights, except that the discoverer of their lands
could exclude them from intercourse with other powers.
Cayuga Indians Claim
The Court stated that the Cayuga tribe was not a legal unit of international law. These
tribes are only domestic dependent nations or states in certain domestic and municipal
purposes.
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So far as the Indian tribe exists as a legal unit, it is only by virtue of the domestic law of
the sovereign nation within whose territory the tribe occupies the land, and so far only as
that law recognizes it.
Development of UN DRIP:
1. 1971 Resolution of the UN Economic and Social Council authorizing the Sub-Commission on
Prevention of Discrimination and Protection of Minorities to conduct a study on the Problem of
Discrimination Against Indigenous Populations
Made by Special Rapporteur Jose Martinez Cobo
2. 1993 UN Draft Declaration on the Rights of Indigenous Peoples
3. 13 September 2007 = Draft Declaration was adopted by 143 state voting in its favor and 11
abstentions
Countries that did not vote: US, Canada, Australia and new Zealand
Significant provisions in the UN DRIP:
1. Right of self-determination
Right to freely determine their political status and freely pursue their economic, social
and cultural development
Right to participate in decision making, to determine and develop their own priorities for
development, and maintain and develop their own institutions
2. Cultural integrity
Not be subjected to forced assimilation
Media is viewed as a significant tool in promoting cultural diversity.
3. Ownership of land and natural resources
Right to lands, territories and resources which they traditionally owned, occupied or
otherwise used or acquired
Entitled to fair compensation and redress in the event they are deprived of their lands,
territories and resources without their free, prior and informed consent
Prohibits military activities within the indigenous lands unless there is a significant threat
to public interest and otherwise freely agreed with the indigenous peoples
4. Protection of indigenous women and children
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Rights and special needs of elders, women, youth, children and person with disabilities
States should take specific measures to protect them from economic exploitation and
from performing hazardous work
Children must be given access to education in their own culture.
Spanish colonizers ordered the natives be gathered together and placed in reducciones in
accordance with the laws of the Indies.
Christianity was taught as a means to civilize them and as an instrument of
indoctrination into their culture.
Regalian Doctrine All lands of the colony were deemed to belong to the King.
The Regalian doctrine was imposed on the natives, and the natives were stripped of their
ancestral rights to land.
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
The 1935 Constitution did not contain any provision dealing with ICCs. Integration became
the State policy.
The ICCs/IPs were displaced by massive titling of their lands under the Public Lands Act
and the Torrens system by non-ICC/IP settlers.
The 1973 Constitution first provided some manner of protection for the ICCs. (Article XV,
Section 11)
Agencies abolished in the Marcos Administration whose functions were transferred to the
Southern Philippines Development Administration:
1) Commission on National Integration
2) Mindanao Development Authority
3) Presidential Task Force for Reconstruction
4) Special Program of Assistance for the Rehabilitation of Evacuees (SPARE)
The 1987 Constitution recognized the right of the ICCs and IPs to their ancestral lands, and
insured the right of tribal Filipinos to preserve their way of life.
Prior to the arrival of the Spaniards, certain native communities already existed.
Culture = Basically Malayan in structure and form
Language = Originally from the Austronesian parent-stock
Religion = Believed in the immortality of the soul and life after death. Their rituals were
based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of
other deities, in the environmental spirits and in soul spirits.
Form of Government = Unit of governments was the barangay which was a familybased community. Each barangay was ruled by a chieftain called a dato who was the
executive, legislator and judge and was the supreme commander in time of war.
Laws and Justice System = Either customary(songs, chants, memory of elder persons)
or written. Oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at 1750 AD.
Social Order = Absence of private property in land. Mutual sharing of resources.
Economy = Most production was geared to the use of the producers and to the
fulfillment of kinship obligations.
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SECTION 2
I.
Doctrine of balancing of interests Balance the interest taking into account the specific needs
and the specific interests of these cultural communities (balance the interest as provided for in the
national law and the interest as provided for in the customary law)
Any grant of ICC/IP rights should be read in harmony with the national law. In case of
irreconcilable conflict, the national law prevails.
Due process must be observed and the ICCs/IPs are entitled to receive a just share of any
benefit derived from within their domains.
All grants by the State of property rights, even though not amounting to title, are subject to
ICC/IP rights to their ancestral lands.
Policies Mere guidelines for the State and are not considered self-executory.
2.
IPRA continues this policy of cultural sensitivity and respect for ICC/IP dignity by making use
of the cultural communities and not minorities.
Custom The juridical rule which results from a constant and continued uniform practice by the
members of a social community, with respect to a particular state of facts, and observed with a
conviction that it is juridically obligatory.
Within the framework of national unity and development concedes that ICC/IP rights must
be harmonized with existing statutes.
II.
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)
Requirements of custom:
1. Existence of a long settled practice
2. Sense or belief by adherents to the custom that it is of an obligatory character
Civil Code provisions citing customs or customary law:
1. Human Relations (Article 21)
2. Usufruct (Article 577)
3. Easements (Articles 657, 658, 675, 678, 679)
4. Succession (Article 873)
5. Contract Law (Articles 1183, 1306, 1346, 1352)
6. Family Relations (Articles 149, 33)
Under the Constitution, Congress is under the obligation to codify the customary laws. IPRA
does not include a codification of these customary laws but places a duty on the NCIP to
undertake the same.
Customary law A body of written and/or unwritten rules, usages, customs and practices
traditionally and continually recognized, accepted and observed by respective ICCs/IPs
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GENERAL RULE: The provisions on Ownership determine the property rights or relations arising
thereform.
EXCEPTION: Property rights and relations which determine ownership and the extent of the
ancestral domain (Article XII, Section 5)
Property Consists of all things which are or may be the object of appropriation and are either
immovable or movable property
Public dominion
Properties that are for public use, for public
service, and for development of national wealth
Outside the commerce of man and cannot be
the object of any contract
Patrimonial property
Properties of the State but are not devoted to
public use, public service, or the development
of the national wealth
Wealth owned by the State in its private
capacity
No exclusive enumeration of patrimonial
properties
Can be acquired by private individuals and
corporations; Can be acquired through
prescription
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
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.
Human rights Include not only the right to be immune from injurious actions by government but
also the right to positive action by government and society to protect and guarantee the realization
of all these rights
The fundamental nature of human rights is that they are universal, inalienable and generally
absolute.
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2.
Definition of discrimination
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
Although it is the obligation of the State to accord the ICCs/IPs the rights, privileges and
protections enjoyed by the rest of society, this duty is qualified in that it must be effected with
due recognition to the distinct characteristics and identity of the ICCs/IPs.
E. Respect for cultural integrity and equal footing from the rights and opportunities under
national laws
The State has a duty to protect the culture of ICCs/IPs. This obligation must be carried out
with consideration as to their particular needs and effected without violating their participatory
rights.
Land Comprehends any ground, soil, or earth whatsoever, including fields, meadows, pastures,
woods, moors, waters, marshes and rocks
Inland Refers to the location or direction in or toward the interior of a country
Inland waters Such waters, canals, lakes, rivers, watercourses, inlets and bays, within, or partly
within, the country, exclusive of the open seas, though the water in question may open or empty
into the ocean
Coast The edge or margin of a country bounding on the sea and includes the small islands and
reefs naturally connected with the adjacent land, and rising above the surface of the water
Coastal areas The region along the edge or margin of a country bounding on the sea including
the small islands and reeds naturally connected with the adjacent land and rising about the surface
of the water
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Time immemorial A period of time when as far back as memory can go, certain ICCs/IPs are
known to have occupied, possessed in the concept of owner, and utilized a defined territory
devolved to them, by operation of customary law or inherited from their ancestors, in accordance
with their customs and traditions.
Carino v. Insular Government
FACTS: Plaintiff was an Igorot from Benguet who filed an application for, and was
granted, the registration of a parcel of land in the same area. The government claimed
that Spain had assumed and had title to all the land in the Philippines except so far as it
saw fit to permit private titles to be acquired in accordance with a decree of 25 June
1880 under which the plaintiff had failed to register.
HELD: It does not follow that, in the view of the US, he had lost all rights and was a
mere trespasser when the present government seized his land. The fist object of the US
in taking over the Philippines is to do justice to the natives, not to exploit their country for
private gain. The Court upheld the validity of a native title and recognized the validity of
customary law as a mode of obtaining title.
When as far back as testimony or memory goes, the land has been held by individuals
under a claim of private ownership, it will be presumed to have been held in the same
way before the Spanish conquest, and never to have been public land.
Director of Lands v. Buyco
FACTS: Respondents filed an application for registration of land claiming ownership of
the land through inheritance and donation inter vivos, and possession of the same since
time immemorial by their predecessor-in-interest. (For more than 80 years)
HELD: No reasonable basis. Immemorial simply means beyond the reach of memory,
beyond human memory, or time out of mind. When referring to possession, specifically
immemorial possession, it means possession of which no man living has seen the
beginning, and the existence of which he has learned from his elders.
Kinds of interruptions:
1. Natural Through any cause it should cease for more than one year
Possession will be considered a new one and the period of time to perfect prescription
will start over again
2. Civil Possession in wartime when the civil courts are not open
Possession is merely suspended, and the old possession is merely tacked to the new
Possession de facto is lost if the new possession of another has lasted longer than 1 year.
Real right of possession is not lost until after the lapse of 10 years.
Force majeure, war, or displacement by force, deceit or stealth do not affect the possession of
the ICCs/IPs.
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Instruments which are not the willful acts pf the registered owner and which may have
been executed even without his knowledge or against his consent
Example: Sale on execution of judgment
1)
2)
Government projects
A.
National projects
3)
35.5% = Finance the transfer of the AFP military camps and the construction of new
camps
50% = Finance the conversion and commercial uses of the Clark and Subic military
reservations and extensions
5% = Finance the concessional and long-term housing loan assistance
In case that there should be any balance left from the proceeds, it shall accrue and be
remitted to the National Treasury.
1.
Covers all agricultural lands, public or private regardless of tenurial arrangement and
commodity produced, all public and private agricultural lands, including other lands of the
public domain suitable for agriculture
Ancestral lands are not limited to lands actually possessed and occupied by the ICCs/IPs
Allows for members of tribal communities to continue to enjoy and exploit the products of the
forest, with the exception of timber, within the logging concessions
Under IPRA, the managements and conservation, as well as the development, control and
use of areas delineated as ancestral lands/domains, vest with the ICCs/IPs.
Decisions of the SBMA prevail in case of conflict between the SBMA and the LGUs
concerning matters, other than defense and security, affecting the SSEZ
With respect to Clark and other special economic zones, the President is authorized to create
by executive proclamation a Special Economic Zone covering the lands occupied by the Clark
military reservations and the contiguous extensions
Subject to the concurrence by resolution of the LGUs directly affected
Under IPRA,
1) ICCs/IPs, prior to any issuance, renewal or grant of any concession, license or lease, or
before entering into any production-sharing agreement, the government must obtain a
certification from the NCIP that the area affected does not overlap with any ancestral
domain.
2) ICCs/IPs have the right to stay in their territories and may not be removed, except
though the exercise of eminent domain, without their free and prior informed consent
with a right to return
3) ICCs/IPs have the right to control and regulate the entry of migrants and organizations
within their ancestral domains
2.
BCDA Entity in charge of the conversion and to which the President may transfer military
reservations plus selected portions of Metro Manila military camps which were selected for
conversion
Properties transferred to the BCDA:
1.John Hay Air Station
2.Wallace Air Station
3.ODonnell Transmitter Section
4.San Miguel Naval Communication Station
5.Mt. Sta. Rita Station
6.Other properties including, but not limited to, portions of Metro Manila military camps
According to the funding scheme, the proceeds from any sale, after deducting all expenses
related to the sale of portions of Metro Manila military camps as authorized, are to be used for
the following purposes:
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3.
IPRA provides a legal remedy by ensuring the ICCs/IPs the right to stay in their territories,
with the requirement of obtaining their free and prior informed consent to effect their
relocation except in case of the exercise of the power of eminent domain.
Should the project proceed without compliance with the requirements, ICCs/IPs have the
right to stop and suspend the project.
Any TRO/Injunction in violation of the law is deemed void and without any force and effect
EXCEPTIONS:
1.Issued by the SC
2.Dispute or cases filed by bidders or private parties claiming to have a right through such bidders
An aggrieved party may file a petition under Rule 65 of the ROC for relief
B.
LGUs are granted local autonomy by the national government and may undertake their own
development and social progress within the limitations of the Constitution.
General Welfare Clause Every LGU shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare.
Prohibits lower courts from issuing any TRO, preliminary injunction or preliminary mandatory
injunction against the government, or any of its subdivisions, officials or any person or entity
acting under the governments direction, or restrain, prohibit or compel certain acts.
4.
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
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A city may effect all the services and facilities of the municipality and province, and in addition
thereto, adequate communication and transportation facilities.
Provide for sectoral representation in the sangguniang panlalawigan, panlungsod, and bayan
specifically including representative in the ICCs
IPRA provides for mandatory representation of ICCs in the policy-making bodies and other
local legislative councils.
A mining agreement is subject to the rights of the ICCs to their ancestral lands as provided for
by the Constitution.
The law prohibits the opening of the ancestral land to mining operations without prior consent
of the ICCs/IPs.
Only ancestral lands are protected and with respect to its definition, the occupation must be
actual.
The power to classify or reclassify falls within the powers of the executive branch, specifically
the President, upon recommendation of the Secretary of the Department of Agriculture.
The classification is descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like.
Land classified as forest land does not lose such classification despite losing its forest
covers.
The classification of the land is not affected by the fact that it is within the ancestral
domain.
Ancestral domains are inalienable and prior vested rights are respected.
Possession or occupation is the basis of claiming ownership from the viewpoint of ICCs/IPs
with respect to their ancestral domains.
ICCs/IPs use their resources in a manner that ensured the maximum benefit and
sustainability.
SECTION 3(B)
I.
Only agricultural lands are deemed alienable lands of the public domain.
Until classified alienable, the land continues to be property of the public domain in
consonance with the regalian doctrine.
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Private corporations or associations may hold such alienable lands only by lease, for a period
not exceeding 15 years and renewable for not more than 25 years.
These holdings are not to exceed 1,000 hectares in area.
Individual citizens may lease not more than 500 hectares of alienable lands, and they may
acquire not more than 12 hectares thereof by purchase, homestead, or grant.
II.
Article XII, 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.
All lands that were not acquired from the Government, either by purchase or by grant, belong
to the public domain.
The concept of native title has evolved in its application and has been utilized to uphold land
rights of non-indigenous peoples, religious entities, and government instrumentalities.
II.
Customary law Rules, usages, customs and practices traditionally and continually recognized,
accepted and observed by respective ICCs/IPs
Custom A juridical rule which results from a constant and continued uniform practice by the
members of a social community, with respect to a particular state of facts, and observed with a
conviction that it is juridically obligatory
A habitual practice or course of action characteristically repeated in like circumstances
Usage or practice of the people, which is commonly adopted and by uninterrupted
acquiescence, acquires the force of a tacit and common consent
Custom under Civil Law:
1. Must be accepted as compulsory and binding by a group or the people to whom it is sought to
be made applicable
2. Usually suppletory in nature
It is in the absence of any applicable provision in the Civil Code that custom should be applied
provided that it is duly proven. Even when applicable, custom must be pleaded and proved as
a fact according to the rules of evidence.
Congress determines the extent of the ancestral domain and the ownership thereof in relation
to whatever may have been codified earlier.
Tanada v. Tuvera
The rule of fairness was deemed to require the publication of laws prior to their effectivity
SECTION 3(F)
I.
People v. Nazario
A law that is vague violates due process.
Cruz v. DENR
The allegation of a violation of due process was raised only as against Section 63 which
provides that any doubt or ambiguity in the application and interpretation of laws shall be
resolved in favor of the ICCs/IPs. Although the petition failed, there was no clear majority
among the justices on the question of the constitutionality of applying customary laws.
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Justice Vitug = Due process clause would require an apt publication of a legislative
enactment before it is permitted to take force and effect.
Justice Kapunan = The use of customary laws, as provided under IPRA, is not absolute,
for the law speaks merely of primacy of use.
Justice Puno = Customary law co-exists with the civil law concept and the laws on land
titling and land registration.
SECTION 3(G)
I.
G.
Consent to transfer the responsibility to maintain, manage, conserve and develop critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected area and forest
cover within the ancestral domain with the effective assistance of government agencies
Consent obtained must have been given with full understanding of the object for which it was
given
Full understanding Full disclosure of the intent and scope of the activity involved in a language
and process understandable to the community
Free Having the power to decide based on the dictates of own will or not subject to the dominion
of another
Prior Refers to preceding in time or in the order
Inform To communicate knowledge to, or tell or appraise, to make aware
Consent Voluntary approval of what is done or proposed by another
Under the Civil Code, it is manifested by the meeting of the offer and acceptance upon
the thing and the cause which are to constitute the contract.
To constitute a valid consent, it must be voluntarily given and that the party giving the
consent should have full knowledge and understanding of the important facts/data.
A contract is voidable where the consent is given through mistake, violence, intimidation,
undue influence or fraud.
Informed consent A persons agreement to allow something to happen that is based on full
disclosure of facts needed to make the decision intelligently
Under IPRA, absence of full disclosure is a vice of consent which not only renders the
contract voidable but void.
II.
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
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II.
Who have, under claims of ownership since time immemorial, occupied, possessed and
utilized such territories, sharing common bonds of language, customs, traditions and
other distinctive cultural traits; or
Who have, through resistance to political, social and cultural inroads of colonization,
non-indigenous religions and cultures, become historically differentiated from the
majority of Filipinos
Also included are peoples who are regarded as indigenous:
1) On account of their descent from the populations which inhabited the country;
2) At the time of conquest or colonization;
3) At the time of inroads of non-indigenous religions and cultures; or
4) At the time of the establishment of present state boundaries
Who are continue to retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains or
who may have resettled outside their ancestral domains.
Primitive tribe Refers to a group of endemic tribes living primitively as a distinct portion of a
people from a common ancestor
Tribe A distinct portion of a people or nation, or a family or race descending from the same
progenitor, and kept distinct
which the petitioners required to take up residence. The provincial governor issued EO
No. 2 directing all the Mangyans in the vicinities to relocate to the reservations and
penalizing with imprisonment those who disobeyed. Petitioners who were members of
the Mangyans of the Province of Mindoro filed an application for habeas corpus.
HELD: During that period, the policy of government was integration. The reservations
were necessary in order to organize politically those deemed as non-Christians into
fixed and permanent communities. Section 2145 was valid as an exercise of police
power of the government. The Manguianes were very low in culture, meaning that they
were primitive, semi-nomadic people and showed no desire for community life.
The fundamental criterion for determining the groups to which the convention would apply still
remains self-ascription. (ILO 169, Section 1)
Ethnic Means pertaining to such peoples, their origin, characteristics, and classification, or
peculiar to a people
V.
Common bonds
Minority Refers to a portion of the population differing from the majority in race, religion, national
origin, political affiliation, especially when subject to discrimination
ICCs/IPs are not descriptive of geographical groups but identifies those who share common
bonds of language, customs, traditions and other distinctive cultural traits
IPRA includes those who are historically differentiated from the majority of Filipinos
III. Jurisprudence
VII. Descent
Rubi v. Provincial Board of Mindoro
FACTS: Heeding the directive Article 2145 of the Administrative Code of 1917, the
provincial board issued Resolution 25 setting aside the area for the reservations within
Indigenous peoples (ILO 169) Those who are regarded as indigenous on account of their
descent from the populations which inhabit the country, or a geographical region to which the
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directly affected
SECTION 3(K)
IPRA does not consider the fact of having descended from a population of a given
geographical region.
VIII. Displacement
The President may create reservations for government, public or quasi-public uses or
purposes.
Reservations intended for common and public welfare and services are those made by the
Government over lands of the public domain. The exercise of this power comes into direct
conflict with the rights of ICCs/IPs to their ancestral domains/lands.
I.
Pursuant to the mandate of Article 12, Section 5 of the Constitution, Congress, through IPRA,
created the NCIP.
It is the primary government agency responsible for the formulation and implementation of
policies, plans and programs to promote and protect the rights and well-being of the ICCs/IPs
and the recognition of their ancestral domains as well as their rights thereto.
SECTION 3(I)
I.
Existing political structures contrasted with ordinary barangay under the LGC
II.
What is utilized by the community depends on what is dictated by their customary laws and
traditions.
Justice Kapunan : The provision in the IRR characterizing the NCIP as an independent
agency under the OP does not infringe upon the Presidents power of control. It expressly
places the NCIP under the OP.
The submission before the barangay as a general rule is a pre-condition to the filing of a
complaint, petition, action, or proceeding involving any matter within the authority of the lupon
in court.
In barangays where the majority of the inhabitants are members of ICCs/IPs, the customary
dispute settlement process shall be recognized without prejudice to the applicable provisions
of the LGC.
II.
LGC
Creation of a barangay is subject to approval by
a majority of the votes cast in a plebiscite
conducted by the COMELEC in the LGUs
Independent agency Administrative body independent of the executive branch or one not
subject to a superior head of department
Subordinate agency Administrative body whose action is subject to administrative review or
revision
IPRA provides that:
1. NCIP must secure the President approval in obtaining loans to finance its projects
2. NCIP must obtain the Presidents approval for any negotiation for funds and for the
acceptance of gifts and/or properties in whatever from and from whatever source
3. NCIP shall submit annual reports of its operations and achievements to the President
and advise the latter on all matters relating to the indigenous peoples
4. NCIP shall exercise such other powers as may be directed by the President
5. President has the power to appoint the Commissioners of the NCICP and to remove
them from their office for cause motu proprio or upon the recommendation of any
indigenous community
IPRA
Creation of a tribal barangay is part of the Right
to Self-Governance and Empowerment.
III. Administrative jurisdiction over the NCIP
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Time immemorial possession continued to be a basis for the recognition of vested rights.
SECTION 3(L)
I.
Justice Puno (Upheld the pure concept of native title; Land was private)
1. Carino doctrine is unique in that the concept of native title presumes that the land is
private and was never public.
2. It was only in Oh Cho v. Director of Lands that the court declared that the rule that all
lands that were not acquired by the government belong to the public domain has an
exception. This exception would be any land that should have been in the possession of
an occupant and of his predecessor-in-interest since time immemorial.
3. Long, continuous, open and adverse possession in the concept of owner of 30 years
both for ordinary citizens and members of the national cultural minorities that converts
the land from public into private and entitles the registrant to a torrens certificate of title
Johnson v. MIntosh
The rights of the original inhabitants of the land were not entirely disregarded; but were
necessarily, to a considerable extent, impaired. These natives were indeed the rightful
occupants of the land. As such, they had a just claim to retain possession thereof.
However, their rights to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil at their own will, to whomsoever
pleased, was denied by the original fundamental principle that discovery gave exclusive
title to those who made it.
Worcester v. Georgia
The claim of the Native American Indians is based on possession from time immemorial.
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.
Carino has been accepted as authority for claims under the Public Land Act.
Mistake : Carino concerned lands which had never been public while the PLA concerned
lands which were admittedly public initially but could become private after the lapse of
30 years of adverse possession
Result: Two Streams of Cases in Philippine Jurisdiction
a) Lands possessed since time immemorial are recognized as private and therefore
subsequent reclassification of land cannot prejudice the rights of the inhabitants
b) Public agricultural lands could be private in character and could therefore be titled if
the claimant can show adverse possession for the length of the prescriptive period
Justice Kapunan (Upheld the pure concept of native title; Land was private)
1. Regalian doctrine does not negate native title to lands held in private ownership since
time immemorial.
2. Native title assumes that the property covered by it is private land and is deemed never
to have been part of the public domain.
3. The framers of the Constitution were presumed to be aware of the prevailing judicial
doctrines concerning the subject of constitutional provisions.
Justice Panganiban (IPRA is unconstitutional)
1. The law recognized/grants rights over lands of the public domain, waters, and other
natural resources in contravention of Section 2, Article XII of the Constitution.
2. The law defeats, dilutes or lessen the authority of the State to oversee the exploration,
development, and utilization of natural resources.
3. Carino doctrine was modified/superseded by the 1987 Constitution.
Justice Vitug (IPRA is unconstitutional)
1. IPRA effectively withdraws from the public domain the so-called ancestral domains
covering literally millions of hectares. (Undue delegation)
2. Carino doctrine cannot override the collective will of the people expressed in the
Constitution
SECTION 3(M)
SECTION 3(N)
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P.D. 1529
- Did not specifically mention rights of IPs but recognized the right to register
lands under exclusive possession.
- However, in theory, such lands were previously public lands and would only
become private lands through possession. Whereas the whole concept of
ancient possession is that the lands were private from the very beginning.
Rights of these organizations to effective and reasonable participation at all levels of social,
political and economic decision-making shall not abridged.
SECTION 3(O)
SECTION 3(P)
CHAPTER III: RIGHTS TO ANCESTRAL LANDS
I Pre-IPRA
Spanish Regime
- The Regalian Doctrine was followed- All lands belong to the crown, hence all
lands found in Philippine territory belong to the Spanish Crown.
- Nevertheless, Spanish laws recognized private ownership of lands
- Spanish Royal Cedula of 1754, Article 4 recognized title by ancient
possession. The law was in force but the crown was not subject to the period
of prescription therein.
Valenton v. Murciano
-
W/N plaintiffs could obtain ownership over public lands from the state by
occupation from 1860 to 1890. No.
The Court held that from 1860 to 1892, there was no law in force by which
plaintiffs could obtain ownership by prescription without any action from the
State.
II Under IPRA
Ancestral territories
- Total Environment The concept of ancestral domain includes the trees, the
land, the minerals, and even the bodies of water. These include the people,
their dwellings, the mountains, the water, the air, plants, forests, and animals.
- Spiritual and cultural bonds Ancestral territories are a place of their religion
because the spirits that they worship are there.
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SECTION 5
II Indigenous Peoples concept of ownership
IPs claim ownership to ancestral domains/lands under the legal concept of native title.
Native Title- ICCs/IPs are the private owners of areas and territories that they have possessed
occupied and utilized since time immemorial. These territories have never been part of public
domain.
III Legal Consequences of Ownership; distinction between Civil Law and IPRA
Civil Law
- Ownership includes the right to enjoy, dispose, consume, enjoy the fruits, and
the right to recover.
- Co-ownership in Civil law gives the right to a co-owner to demand partition of
the property held in common at any time
IPRA
-
Ancestral Land those held under the same conditions as ancestral domains but
limited to lands that are occupied, possessed, and utilized by cultural communities under
a claim of individual or traditional group ownership.
SECTION 7
SECTION 7(A) Right of Ownership
II Interpretations of Section 7(a)
Justice Kapunan (Cruz v. DENR separate opinion): The law excludes natural resources
from the right of ownership.
Justice Puno (Cruz v. DENR separate opinion): the IRR of IPRA stating that IPs have
rights of ownership over natural resources goes beyond the parameters of IPRA, which
mentions no such rights, thus is contrary to law.
Fr. Bernas: IPRA does not deprive the government of control over natural resources.
The NCIP is an agency of the Office of the President.
IPs view nature as a space where the natural and supernatural interpenetrate. Some
areas in ancestral domains that are untouched are reserved because such places are
sacred.
IV Intergenerational responsibility
IV Hunting and Fishing Grounds
Their rights over natural resources take the form of management or stewardship. They
must ensure that the natural resources are preserved for future generations.
SECTION 6
Ancestral Domain an all embracing concept which refers to lands, inland waters,
coastal areas, and natural resources therein and includes ancestral lands, forests,
Most, if not all, of IPs rely on hunting and fishing. The relationship with the land is at the
core indigenous societies.
Hence, hunting and fishing grounds would usually be part of what they consider as
ancestral domains.
V Improvements
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IPs also own all improvements made by them at any time within the domains.
Improvements under IPRA would include anything that the IPs have added on to the
ancestral domain whether it is for repair or embellishment.
IPs have priority rights (not exclusive rights) in the harvesting, extraction, development,
or exploitation of any natural resources within their domains.
Justice Kapunan (Cruz v. DENR)The grant of priority rights is not a blanket authority to
disregard pertinent laws.
With IPRA, IPs need not register nor obtain a license in case of
small-scale fishing.
Right to manage and conserve resources within the territories; Right to benefit
and share the profits from allocation and utilization of the natural resources found
therein; Right to negotiate the terms and conditions for the exploration of natural
resources in the area
- Management and conservation
Under IPRA, the right of IPs to manage and conserve natural
resources becomes a matter of duty and springs from the
indigenous concept of ownership since domains are held by
present possessors in trust for all generations.
- Benefit and share
Right given to IPs to benefit from the utilization of natural resources
is similar to the right given to local governments
Unlike local governments however, the utilization of the funds is
subject to the authority of the NCIP which is tasked to ensure that
30% of all funds are allocated to development projects with the IPs.
- Negotiate terms
Benefits IPs receive under law are without prejudice to additional
benefits as may be negotiated between the parties. The NCIP shall
assist in the negotiation to ensure that the terms are not inimical to
the IPs.
No express repeal of Civil Code in IPRA- certain concepts found in the Civil Code are
still applicable to IPs
Doctrine of Self-Help- The owner or lawful possessor of a thing has the right to exclude
any person from the enjoyment and disposal thereof and he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property.
IPs are also subject to police power and eminent domain as limitations on ownership
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Even if relocation is necessary, IPs do not lose their rights to the ancestral domain
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.
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IPs have the right to set up systems and processes to decide on whom to allow to live
within their lands and to negotiate the terms of such stay.
Migrant- a person who is not a native of the ancestral domain or part owner of ancestral
land but who, because of certain reasons, opted to occupy and utilize portions of the
ancestral domains and have since established residence therein.
Watershed
IPs retain the right to integrated systems the State may provide to the public in general.
IPs also have the right to prevent any project or activity within the ancestral domain
unless environmental concerns are addressed and their free and prior informed consent
obtained.
Reservation- any tract of public domain proclaimed by the President of the Philippines
for government use or any of its branches or instrumentalities or of inhabitants thereof,
for public or quasi-public uses or purposes
Types:
-
Civil
Forest
Military
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II Who Declares?
III (Chapter 7)
SECTION 8 Rights to ancestral lands
SECTION 8 (A) Right to transfer land/property
It is settled that ancestral domains were never part of the public domain. Therefore, they
are not covered by the power of the President, which extends only to public lands. BUT,
Section 56 of IPRA recognized and respects the property rights within the ancestral
domains which are already existing and vested upon effectivity of the act. So:
- Reservations prior to the effectivity of IPRA are valid public reservations. The
Presedint needs to re-proclaim them as ancestral lands with the help of the
NCIP.
- Reservations after the effectivity of IPRA are void and the IPs may claim the
lands even without any re-proclamation by the President. Ancestral lands are
considered not of public domain.
IPs have a right to claim parts of reservations which falls under their ancestral domains,
except:
- Those that are reserved and intended for common and public welfare and
service (Exception applies whether proclaimed before or after IPRA)
- Proclamation of common and public welfare reservations partakes the nature
of police power measures.
Difference between Civil Law and IPRA on ownership (see Section 5 III)
Ancestral lands may be transferred to or among members of the same IPs subject to
customary laws.
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.
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.
If the conflict is not resolved through such customary laws, the Council of
Elders/Leaders who participated in the attempt to settle the dispute shall certify that the
IPs have a right to redeem ancestral lands transferred to non-IPs on the following
grounds:
- 1) Vitiated consent Same as in Civil Law, there is vitiated consent when
there is:
Error or Mistake It should refer to the substance of the thing
which is the object of the contract or to those conditions which
principally moved one to enter into the contract
Violence Serious or irresistible force is employed to wrest consent
Intimidation When compelled by a reasonable and well-grounded
fear of an imminent and grave evil upon ones person or property or
that of ones spouse, descendants, or ascendants.
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Effect of either of the two grounds the contract or transfer is void ab initio
The right to redeem cannot be waived for consideration. Such a waiver is contrary to
public policy
IPRA resonates the protection and advancement of a right to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
IPRA has officially mandated the right of the IPs to participate in reforestation
Section 10 included migrants without express permission from the communitys council
of elders/leaders or to any project implemented without free and prior informed consent.
Violators may be punished under Article 281 of the Revised Penal Code (Trespass to
property) or under IPRA or both. IPRA is a special law so double jeopardy cannot be
invoked.
II Parens Patriae
IPRA is the performance of the State of its duty to act as parens patriae. The State
attempts to protect the rights of persons who, because of age or inherent incapacity, are
at a disadvantage.
The mode of acquiring ownership over ancestral domains is native title. Formal
recognition of such ownership is by the issuance of a CADT.
II Formal recognition
Certificate of Ancestral Domain Title or CADT merely confirms ownership over ancestral
domains, similar to a Torrens title.
Prior to IPRA, the DENR recognized claims through the issuance of CADCs since it was
legally inhibited to issue titles without a law.
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Under IPRA when a domain had gone through CADC process, it need not go through
the whole process of delineation for CADTs.
c.
IPs are included in the term peoples in the plain meaning of the term as
borne out by the increasingly common usage of the term peoples in
association with indigenous p=groups in both international and domestic
arenas of decision-making.
d.
SECTION 12 Option to secure certificate of title under Commonwealth Act 141 or the Land
Registration Act
Who IPs who individually owned and actually used continuously ancestral lands for a
period of at least 30 years prior to the approval of IPRA
What lands may be titled Ancestral lands which are agricultural in character and
actually used for agricultural, residential, pasture, and tree farming purposes, even if the
slope is 18% or more (amending the Revised Forestry Code).
II.
Treaty and International customary law oblige States to respect the right of all peoples to selfdetermination since both in law and in practice, self-determination has been vested in peoples
since time immemorial and has never been the property of States.
Self-determination
a. Meaning
Essentially, it is that which human beings are equally entitled to be in
control of their own destinies.
In PIL, it is an inalienable right which vests colonized and dependent
countries with the power to freely determine their political status, to
freely pursue their economic, social and cultural development and
freely to dispose of their wealth and resources.
b.
Self-Governance
a. Scope and Meaning
ILO 169 mandates that States shall establish means for the full
development of tribal peoples own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purposes. It
takes bolder step by describing right to self-governance as relating to
their internal and local affairs, culture, religion, resource management,
etc.
Sec. 13, IPRA recognizes the right to self-governance, in general, of
ICCs/IPs. A tribal barangay is the specific unit of governance in which
ICCs/IPs are entitled to form under certain requirements.
Self-governance does NOT include the maintenance of their own police
agencies.
Compared with Autonomy under the Constitution, the ICCs/IPs are
NOT considered territorial and political subdivisions (e.g. provinces,
cities, municipalities) UNLESS they choose to exercise their right under
Sec. 18, IPRA to establish a tribal barangay in accordance with the LGC.
ICCs/IPs need NOT comply with the requisites for the formation of local
government units and autonomous regions unless they choose to
establish a tribal barangay. However, in the case of the two autonomous
regions (remember, ARMM and Cordillera), organic act is required, and
a plebiscite called for the purposes of approving such is needed. [Note:
there is no Cordillera Autonomous Region yet].
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b.
Concept of Autonomy
It is either decentralization of administration or decentralization of
powers.
Page 23
d.
II.
SECTION 15: JUSTICE SYSTEM, CONFLICT RESOLUTION INSTITUTIONS AND PEACE BUILDING PROCESS
I.
over ancestral domain. As this was not approved yet, the jurisdiction over
ancestral domains in the Cordilleras will still be retained by the NCIP.
However, in ARMM, since its Organic Act has been ratified, the Regional
Government has jurisdiction in all matters devolved to it by the Constitution,
including ancestral domain and natural resources. BUT, the Organic Act does
NOT provide for the procedure for survey, delineation and titling of ancestral
lands and domains of the ICCs/IPs. Although the Regional Government has
the power to create a particular agency to fully implement its jurisdiction over
ancestral domains/lands, including issuance of titles, this power has not yet
been put into implementation. Thus, as of the present, in ARMM, the petitions
to secure a certificate of ancestral domains/lands title may be filed before the
NCIP.
II.
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Page 24
e.
f.
property rights; over crimes where the penalty does not exceed 6 years or a
fine not exceeding 50k or both.
CAR Organic Act provides also for the creation of tribal courts, which may
as well include Tribal Appellate Court. It may also create a Council of Elders.
LGC on Katarungang Pambarangay conciliation settlement must be filed
first to the Lupon or Pangkat, and NOT directly before the court. The customs
and traditions of the ICCs shall be applied in settling disputes between
members of the cultural communities. Under the IPRA, the application of the
indigenous justice system is mandatory in cases of property rights, claims and
ownership, hereditary succession, settlement of land disputes within the
ancestral domains and ancestral lands between the same ICCs/IPs. A
certification to file action is needed on the ground of failure of settlement in
case a party decides to pursue the case in the proper court.
Exceptions from the requirement of certificate to file action:
i. Where on the of the parties is a public or private corporation, or a
public officer and the dispute is in connection with his official
functions;
ii. Where one of the parties is non-IP or does not belong to the same
ICC, except when voluntarily submits to the Council of Elders;
iii. Where the relief seeks to prevent any grave, imminent and
irreparable damage or injury;
iv. Where Council of Elders refused to issue the certification without
justifiable reasons.
Note: while the SC mandates the punong barangay to issue the certificate to
file action, the NCIP Rules of Procedure state that it is the members of the
indigenous group or the Council of Elders who issue the certification to the file
action.
BUT, IPRA, not being an organic act, has formally included the tribal court system
within the legal system of the Philippines. The settlement by the council has the
same force and effect of a settlement or decision by the NCIP.
SECTION 16: RIGHT TO PARTICIPATE IN DECISION-MAKING
I.
II.
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.
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Page 25
d.
e.
f.
g.
h.
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.
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b.
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.
Page 26
c.
I.
II.
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.
UN charter: promotion of human rights without distinction as to race, language, sex, religion
UDHR: all human beings are born free and equal in dignity and rights; but this is a mere
declaration, needed a treaty. Hence, ICCPR, ICESCR were born through agreements with
states to guarantee the fundamental rights without distinction or discrimination. Phils is
signatory in both conventions.
CERD, Phils also a party; addressed problem of discrimination on the basis of ethnicity and
race. Calls parties to condemn all forms of discrimination
B.
No person shall be denied equal protection of laws. Equality of all persons before the law.
Hence in Borra case, the court invalidated the requirement for running for public office to post
a bond since it discriminate against those who cannot afford to post such bond. But valid
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Ips as a class: all rights and privileges enjoyed by the rest of the citizenry will be accorded to
Ips with due recognition of their distinct characteristics and identity. State should not hesitate
in giving them special protection.
In the case of Rubi, application for habeas corpus filed by Ips of Mindoro due to alleged
illegal detention within a reservation by the provincial officials, enforced by the governor
pursuant to the administrative code. SC denied petition on the ground of police power, and
that they were restrained for their own good considering their degree of civilization (inability to
govern themselves compared to Christians).
In the case of People v. Cayat, the SC upheld the regulation prohibiting the Ips to have in
their possession, buy or drink intoxicating liquors other than native wines, to ensure peace
and order.
Sec 13 and 18 of IPRA now recognize the right of the Ips to self-governance. In fact
they have a right to regulate the entry of migrants within their ancestral domains, IPRA
hastens the equalization between Ips and non Ips, by recognizing that the unequal situation
between the 2 are not inherent and that their conditions of poverty, illiteracy, and
underdevelopment were brought about by Govt. neglect, foreign colonization and
discrimination.
Prohibition against coercion of Ips, physical or moral. RPC punishes grave coercion. So acts
can be punished under bothIPRA and RPC, because penal provisions of IPRA
comprehensive enough to include RPC.
States acts under armed conflicts governed by generally accepted internation rules.
Armed conflicts (AC) any difference between 2 states and leading to the intervention of
members of the armed forces even if one of the parties denies the existence of a state of
War.
To constitute international AC, use of force by the organs of state are required, not that of
private persons.
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Under IPRA, govt bound to observe intl. standards, in particular Geneva Convention IV
NCIP shall implement rehab program and emergency proram for Ip victims to aid the effects
of AC on their psycho-social functioning and devt.
IPRA affirms that Ips need to be afforded special protection during AC.
Rule 5 Sec 2 of IRR, declares their territories as zones of peace; NCIP shall ensure intl.
standards are met; and State shall not:
1) IPRA recruit IP in general in particular for use against other Ips. But under Consti, state
may call upon all citizens to defend the state under conditions provided by law. No
conflict = condition of IPRA is consent must always be secured
2) Recruit children of IPS into the armed forces under any circumstances Convention on
rights of child (RA 7610) where child is under 18. State to ensure those under 15 do not
take part in hostilities, over 15 under 18 state shall give priority to oldest in terms of
recruitment, children as zones of peace not subject to attack, delivery of basic services
and emergency relief to them shall remain unhampered, appropriate steps to reunite
them with their families, they shall be given priority during evacuation, members of same
family as much as possible, housed together, those arrested during AC right to separate
detention from adults, free legal assistance, immediate notice of arrest to IP parents,
release of child within 24 hrs to DSWD, suspension of judgment til he reaches age of
majority
3) Recruit Ips against their will
4) Relocate IP communities to special centers for military purposes
5) Force Ips to abandon their lands or means of subsistence
6) Require Ip to work for military purposes under discriminatory conditions.
govt cannot force Ips to abandon their land, means of subsistence, or relocate them in
special centers for military purposes.
SECTION 23 Freedom from Discrimination and Right to Equal Opportunity and Treatment
I.
Employment
IPRA ensures Ips accorded full respect and recognition as valuable citizes of the Phils. Rights
include right to:
1. Be free from discrimination with respect to conditions of employment, recruitment
2. Enjoy equal opportunities for admission to employment, both skilled and unskilled
3. Just and legal remuneration for work = equal pay for equal work
4. Medical and social assistance, occupational safety, social security, benefits
5. Be informed of their rights under labor laws
6. Freedom to associate
7. Enjoy wholesome environment
8. Be free from coercive recruitment processes
9. Just treatment
Right against Bonded Labor or Debt Servitude (right to be free from coercive recruitment
processes)
1. Jus Cogens status Slavery Convention, proscribes any form of slavery. Remember,
municipal laws cannot be an excuse to evade intl. obligations.
2. Phils Law prohibition against enslavement in consti. No involuntary servitude in any
form shall exist, except as punishment for a crime where party duly convicted.
Recognized as early as 1901 in case of In re: Brooks where enlisteed US man in US
Army. He was granted absolute discharge from Army and entered employ in one military
dept. Upon failure to comply with his contract for personal services, arrested and
imprisoned and ordered deported. He filed petition for habeas corpus, SC granted since
he was already discharged, no legal bond between Brooks and Army. It is improper to
compel fulfillment of obligations by means of compulsion and is not justified by law or by
contract.
Right to Association
Unlawful for employers and unions to interfere, restrain, coerce employees in their exercise of
this right
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IP can form their own union in case their spriritual beliefs prohibit them from joining other
associations, as in case of Kapatiran Sa Meat and Canning Division v. Ferrer Calleja
where Iglesia ni Kristo believers formed their own union.
Ips can form their own bargaining unit (enjoy mutuality of interests)
CHAPTER VI: CULTURAL INTEGRITY
SECTION. 29 Respect, recognize and protect the rights of ICCs/IPs to preserve and protect their
culture, traditions and institutions. Involvement of ICCs/IPs in national policy formulation and
application.
Cultural Integrity shall refer to the holistic and integrated adherence of a particular ICC/IP
community to their customs, religious beliefs, systems and practices and their right to assert their
character and identity.
Right to Cultural Integrity:
1. Protection of indigenous culture, traditions and institutions;
2. Establish and control educational systems;
3. Recognition of cultural diversity;
4. Right to name, identity and history; community IPR;
5. Protection of religious and cultural sites;
6. Right to indigenous spiritual beliefs;
7. Protection of sacred places;
8. Protection of knowledge systems and practices;
9. Right to science and technology.
NCIP main office on indigenous rights affairs
OCRG civil registrar; collaborates with NCIP
1987 Consti., Art. XIV, Sec. 17 primary basis for the recognition of the rights of ICCs/IPs to
preserve and develop their own culture, traditions and institutions.
Cases:
Church of Lukumi Babalu Aye v. City of Hialeah City ordinance punishing ritual killings of
animals allegedly to prevent animal cruelty declared void by SC for being contrary to the free
exercise principle.
Philippine setting: Animal ritual killings done by ICCs/IPs allowed when done in a humane manner.
Employment Division, Oregon Department of Human Resources v. Smith Sacramental
peyote use is not a violation of law if not proscribed by the laws of a State.
Philippine setting: There is no distinction as to use of plant and its derivative. There is no exception
even if used for traditional, medicinal or ritualistic use.
Right to self-governance and empowerment two aspects: 1. Right to choose whether to continue
with traditional way of life or not and 2. Right to control or determine the pace of their development.
ILO 169 provides:
1. ICCs/IPs should benefit on an equal footing which the national laws grant to other members of
the population;
2. Promotion of full realization of ICCs/IPs social, economic and cultural rights.
3. Assistance of ICCs/IPs to eliminate socio-economic gaps.
4. In carrying out developmental programs, co-op studies with the peoples concerned should be
made concerning the programs impact on the indigenous community.
SECTION 30 Educational Systems
The NCIP shall establish a program that shall:
1. Create an educational system relevant to the needs of the ICCs/IPs particularly the young
people;
2. Develop relevant curricula using the ICCs/IPs own language, history, etc.
3. Encourage indigenous learning, self-learning and out-of-school study programs.
4. Provide adults IPs with skills needed for civic efficiency and productivity.
1987 Consti., Art. XIV the State shall protect and promote the right of all citizens to quality
education at all levels and shall take appropriate steps to make such education accessible to all.
However, compulsory education is enforced up to the elementary level only. Free government
education is up to high school level only.
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SECTION 32 Community Intellectual Rights; The State shall protect past, present and future
manifestations of their cultures as well as their right to restitution of cultural, intellectual, religious
and spiritual property taken without their free and prior informed consent or in violation of their
laws, customs and traditions.
Cases:
Wisconsin v. Yoder State compulsory school-attendance law (up to 16 years of age) violated
Free Exercise rights of Amish people.
Duty of the State under IPRA: 1. Preserve, 2. Protect and 3. Develop indigenous culture.
RA 8293 provides non-patentable objects:
1. method of treatment of human or animal body
2. plant varieties or animal breeds or essential biological process for the production of plants or
animals
3. Aesthetic creations
Ebralinag v. Division Supt. Of Schools Flag Statute Law not violation of Free Exercise Clause.
Non v. Dames II State has duty to discipline students who do not comply with flag ceremony
requirement at school.
Section 31. Cultural Diversity
The State shall:
1. Consult with ICCs/IPs concerned with regards to taking effective measures to foster good
relations among ICCs/IPs and all segments of society.
2. Make sure that State-owned media would duly reflect indigenous culture diversity.
3. Ensure participation of appropriate IP leaders in school, activity and international activities (e.g.
fiestas, conferences) to promote their distinctive cultural heritage.
1987 Consti., Art. XIV, Sec. 14 Constitutional reference of cultural diversity.
Philippine Information Agency (PIA) lead agency tasked to communicate with the people and is a
useful tool in information dissemination and promotion of cultural diversity.
ILO 169 requires member States to undertake measures to educate their own national to eradicate
prejudices against ICCs/IPs.
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2. Only duly-recognized universities and academic institutions, domestic government entities, and
intergovernmental entities may apply.
3. Consent of ICCs/IPs affected.
4. Membership of a representative from the indigenous community.
5. Benefit sharing sharing of results regarding activity and benefits arising from the utilization or
commercialization of the resource found and its equitable sharing with the indigenous community.
The Five Tagbanwa Principles:
1. Waste prevention harvest must be entirely used such that no waste is generated.
2. Precautionary management there must be built-in measures to prevent or mitigate adverse
impacts and ensure that natural processes are not disrupted.
3. Sustainable harvesting resources can be harvested only to the extent that it will not deplete
the supply and disturb its natural regeneration capacity.
4. Users Pay Arrangement the greater amount of resource used, the higher the cost of
compensation given to other potential users for foregone opportunities.
5. Natural Pattern Preservation patterned process that maintains nature must be preserved in
implementing an intervention to avoid adverse impact.
Section 36 Sustainable Agro-Technical development
SECTION 37 Funds for archaeological and historical sites; The ICCs/IPs shall have the right to
receive from the National Government funds for the preservation and maintenance of such sites.
Historical Site any place, location and structure, including a province, city, town, which has had a
significant and important role in the history of the Philippines and such significance and importance
may be cultural, political or historical.
Archaeological site any place which may be underground or on the surface, underwater or at sea
level which contains fossils, artifacts and other materials which have paleontological or pre-historic
importance.
Cases:
Monasco v. CA parcel of land which was the birth site of founder of INC declared by the
National Historic Institute as a national historic landmark declared by SC as valid.
Genetic materials any plant, animal or microbe containing functional units of heredity.
EO No. 247:
1. Requirement of a Commercial Research Agreement from the government.
Army Navy Club of Manila Inc. v CA Subject land was declared by SC as not a national cultural
property or landmark absent compliance with the procedure set forth in RA 4846 as amended by
PD 374.
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Mandate
General: protect and promote interest and well-being of ICCs/IPs with due regard to their
beliefs, customs, and traditions and institutions
Specific:
a. Promulgation of IRR (section 80)
b. Promulgation of rules & regulations governing hearing and disposition of cases filed
before it and those pertaining to internal functions
Objectives
Primary objectives (Rule VII, part I, sec 3)
a. Formulation and implementation of policies, plans, and programs for, and with its
main public clientele, the IPs
b. Promote and protect rights and well-being of ICCs/IPs and recognition of their
ancestral domains/lands based on customs, traditions, & institutions
c. Primary govt agency ICC/IPs can seek govt assistance
Independent Agency
Cruz v. DENR
Question raised validity of Rule VII, section I for allegedly violating the Constitution
for infringing the power of control of the President over executive Dept.
Court ruled that it doesnt infringe power of control. The NCIP is lateral but
autonomous. It is an independent agency
NCIP still under Presidents control and supervision with respect to its admin function
a. Presidents approval in obtaining loans to finance projects
b. Presidents approval for negotiation for funds and for acceptance of gifts
c. Submission of annual reports and advise president to all matters relating to IPs
d. Exercise such other powers as may be directed by President
e. President power to appoint Commissioners
Sec 1 of Part I Rule VII not new, found in Book IV of Admin Code which recognizes
lateral relationship; defines attached agency as lateral relationship
1.
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Sec 2 of Part II Rule VII: NCIP bound to submit annual reports to Office of President
within 60 days after the close of each calendar year
As much as possible, prepared in accordance with the following form and contents:
a. Message: contains impt policies, programs, projects, and activies; status of
implementation; other relevant info
b. Executive Summary: Significant results of operations for year under review
c. National ICC/IP Situation: overview of policy and social environment from
perspective of ICCs/IPs
d. Organization and Management: identifies offices and personnel of Commission
e. Budget Performance and Financial Statements
f. Plans, Programs, Accomplishments: in narrative pictorial manner, the major plans
and programs of Commission as a whole
g. Decisions of the Commissions En Banc: digests of all decisions
SECTIONS 40-42
Presidential power to appoint
Exclusive prerogative of President, NOT subject to confirmation of CA
A. Civil Service
Appointments made only according to merit and fitness, as far as practicable and except
to positions that are policy-determining, primarily confidential, or highly technical, by
competitive examination
NCIP Commissioners position is policy-determining, non-competetive, non-career
service position
B. Security of Tenure
All civil servants, including NCIP Commissioners, are removable only for cause (Bernas)
Any member of NCIP may be removed from office by President, on his own initiative or
upon recommendation of ICC, before expiration of his term for cause and after
complying with due process
Removal
A. Who may remove
1. Presidents own initiative
2. Recommendation of any ICC
B. Procedure requirements
1. Formal petition/complaint filed by ICC to Office of President in Manila or regional
field offices
2. Petition/complaint must include, but not be limited to: narration of facts and
circumstances describing act . Must attach necessary documents supporting
petition/complaint
C. Inhibition against members of Commission
SECTION 43
Composition and Appointment
1. IP membership
2. Ethnographic division
3. Womens representatives
Qualifications
1. Natural-born Filipino citizen
2. At least 35 yrs at time of appointment (appointment deemed completed at time of
acceptance)
3. Bona fide member of ICC/IPs (by consanguinity)
4. Must submit sworn statement containing experience in ethnic affairs for at least 10 years
with an ICC/IP community and/or govt agency involved with ICC/IP
5. Proven honesty and integrity, not convicted of crime involving moral turpitude, graft and
corruption, administrative charges; submit clearances from Ombudsman and/or NBI; in
case of aspirants in public service, clearances from COA and CSC
6. All documents verified by Office of President through field validation
7. Act of public or ethnic misrepresentation penalized according to customary law or
related laws
Term
3 years
Subject to reappointment for another term
No person shall serve for more than 2 terms, or more than 6 consecutive years
Appointment to vacancy only for the unexpired term
Compensation
Chairperson and Commissioners entitled to compensation according to Salary
Standardization Law
SECTION 44
Power and Functions
a. Reiteration of sec 38
b. Policy review, formulation, and implementation powers
c. Formulate and implement policies, plans, programs, projects for development of
ICCs/IPs and to monitor implementation
d. may request and engage services and support of experts from other agencies
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All official records, documents, research data, etc afforded to citizens, subject to
limitations imposed by law
Under IRR, exercise of right to info includes:
a. Installation of info monitoring system to serve info need and requirements of
ICCs/IPs, Pos, NGO, govt agencies, and general public
b. Periodic reports to information users in following areas
1. Transfer of personnel, assets, projects, funds, and records corresponding to
reorganization of ONCC/OSCC
2. Establishment and strengthening of NCIP organizational structure from
service centers to national fun
3. Management of Ancestral Domains Fund
4. Formation and operationalization of consultative body, and people
empowerment programs
5. Compliance with established standards, guidelinces, systems, etc given to
NCIP
6. Other relevant info
SECTION 46
Offices within NCIP
1. Ancestral domains office
2. Office on policy, planning, and research
3. Office on education, culture, and health
4. Office on socio-economic services and special concerns
5. Office of empowerment and human rights
6. Administrative Office
7. Legal Affairs Office
SECTION 47
Other offices
1. Finance Management Office
2. Office for Foreign Assited Programs and Projects
3. International Relations Office
SECTION 48
Regional and Field Offices
SECTION 45
SECTION 49
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Consultative Body
The law provides that the testimony of the elders is among the evidence deemed admissible
in the delineation process.
The law does not state that this is conclusive evidence as to the extent or even the existence
of an ancestral domain but implies that it is mandatory.
Other forms of proof of the claim coupled with the elders testimony:
1. 1.written accounts of the ICCs/IPs customs and traditions;
2. Written accounts of the ICCs/IPs political structures and institutions;
3. pictures showing long-term occupation;
4. historical accounts (pacts and agreements);
5. survey plan and sketch maps;
6. anthropological data;
7. genealogical surveys;
8. pictures and descriptions of communal forests, hunting grounds, etc.
Refers to the decisive role which the ICCs/IPPs have in identifying the boundaries of their
ancestral domain and their participation in the whole delineation process from the initial
identification of the area until the formal awarding of formal documents of recognition.
The Ancestral Domain Office (ADO) must coordinate with the ICCs/IPs in the delineation and
to at all times genuine involvement and participation by the members of the communities
concerned.
A tracing cloth plan is the best evidence to identify a parcel of land for registration.
Tax declarations: may be received as evidence but is insufficient by itself to establish that the
land has been declassified as alienable and disposable; mere proofs of claim but of title but
not conclusive evidence of ownership.
3. Role of government
Governing law for land registration: PD 1529 or the Property Registration Decree which states
that the registration of lands throughout the Philippines shall be based on generally accepted
principles underlying the Torrens System.
Has the responsibility to assist the ICCs/IPs in enforcing their rights and of taking the
necessary steps to ensure that the ancestral domains and lands of the ICCs/IPs are identified
and to protect their rights and ownership and possession thereto.
Torrens System: a system for registration of land under which, upon the landowners
application, the court may, after appropriate proceedings, direct the issuance of a certificate of
title. With exceptions, this certificate is conclusive as to applicants estate in land.
NCIP: provides the necessary administrative and technical support in the delineation process
including, but not limited to, preparation of the survey plans, ocular inspections, publication,
and coordination with the other concerned government agencies.
Prior to PD 1529, the governing law was the Commonwealth Act No. 496 or the Land
Registration Law.
ADO: tasked under the IPRA and IRR to undertake the delineation process and create
mechanisms to facilitate the delineation process which must have adequate financial and
technical support.
Essential to the determination of the scope of ancestral domains as well as to the existence of
any agreements/pacts made with the neighboring territories.
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The IPRA recognizes lands which ICCs/IPs no longer exclusively occupy but to which they
traditionally have had access for their substinence and traditional activities as part of their
ancestral domain.
Contracts (CSC) of the DENR, in order to determine the feasibility of their conversion to CADTs or
CALTs, and the case may be.
II. ANCESTRAL DOMAINS AND ANCESTRAL LANDS DELINEATED PRIOR TO THIS ACT
This provision takes into consideration that there are ICCs/IPs that are nomadic or are shifting
cultivators.
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.
No area shall be issued a Certificate of Ancestral Domain Title (CADT) without having been
delineated in accordance with the law. However, the law exempts ancestral domains/lands
which have been officially delineated under DENR Administrative Order No. 2 (DAO 02-93) or
under any program or law.
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The DAO 02-93 delegates to the ICCs/IPs the exclusive management over the ancestral
domains and lands which have been delineated, requires the written consent of the ICCs/IPs
prior to the implementation of any government programs by the DENR, and grants exclusive
supervision and control over the management of their ancestral domains and the resources
therein.
DAO 02-93 differs from IPRA in that it only protects the tenure of ICCs/IPs over their ancestral
domains and lands.
The scope of the ancestral domain is limited to lands and natural resources which have been
continuously occupied or possessed by the ICCs/IPs unless interrupted by war, force
majeure, or displacement by force, deceit, or stealth.
B. Delineation under other programs
The IPRA exempts from the requirement of undergoing the delineation process any ancestral
domains and lands which were officially delineated under any other community/ancestral
domain program prior to its enactment.
Under Sec. 56, property right that were already existing and/or vested prior to IPRA are
recognized and protected.
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Under the law, the NCIP may file a petition on behalf and with the consent of the ICCs/IPs
concerned or a majority of the ICCs/IPs themselves may file a petition for delineation. The
IRR, on the other hand, proscribes any other entity from filing a petition except by the
ICCs/IPs themselves through their Council of Elders.
Both IPRA and IRR require that a petition filed by the ICCs/IPs must be made by a majority of
its members.
signed by all members of the concerned ICCS/IPs Council of Elders or popularly recognized and
accepted leadership body.
b) Delineation Proper. Upon receipt of a Petition for Delineation, the ADO through the NCIP
Provincial Office shall proceed as follows:
(1) Community-wide information dissemination and consultation with the ICCs/IPs concerned shall
be conducted to inform them about the delineation process and to establish the genuineness of the
Petition.
(2) The Council of Elders/Leaders of the IPs concerned, in accordance with customary law and/or
community history, shall convene to identify the landmarks indicating the boundaries of their
ancestral domains in a topographic map and submit the same to the NCIP Provincial Office;
(3) Whenever applicable, the Council of Elders/Leaders shall likewise identify all parts of the
domains which may no longer be exclusively occupied by them but from which they traditionally
had access to for their subsistence and traditional activities, including but not limited to, sacred
sites, worship areas, hunting, gathering, collecting and fishing grounds;
(4) The NCIP Provincial Office, based on the indicative map, shall approximate the land area of the
territory in hectares; and
(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.
Section 2. Procedure on Ancestral Domain Delineation. The Ancestral Domains Office (ADO) shall
be responsible for the official delineation of ancestral domains and lands. For this purpose the
ADO, at its option and as far as practicable, may create mechanisms to facilitate the delineation
process, such as the organization of teams of facilitators which may include, among others, an
NGO representative chosen by the community, the Municipal Planning and Development Officer of
the local government units where the domain or portions thereof is located, and representatives
from the IP community whose domains are to be delineated. The ADO will ensure that the
mechanisms created are adequately supported financially and technically to enable the efficient
and expedient delineation of the ancestral domains.
The identification, delineation and recognition of ancestral domains shall be in accordance with the
following procedure:
a) Filing of Petition for Delineation. A majority of the members of the ICCs/IPs in a specific area,
through their own recognized Council of Elders/Leaders, may file a petition with the NCIP through
the Provincial Office for the identification, delineation and recognition of their ancestral domain. No
other entity shall file said petition and to ensure the legitimacy of the Petition, the same shall be
The ADO is directed by law to immediately undertake the delineation process. This is prior to
any determination of the validity of the claim or consideration of any claims of oppositors.
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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
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.
Documentary proofs enumerated under IPRA shall also be admissible in regular courts.
viii) Pictures and descriptive histories of traditional communal forests and hunting grounds;
ix) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks,
ridges, hills, terraces and the like; and
x) Write-ups of names and places derived from the native dialect of the community.
d) Notice of Ocular Inspection. The NCIP Provincial Office shall notify the applicant community
through its Council of Elders/Leaders, adjoining communities through their elders or leaders, and
other affected entities, five (5) days in advance, that an ocular inspection of the ancestral domain
claim of applicant community shall be conducted on such a date and time and that their presence
is required especially in the verification of the metes and bounds thereof.
e) Ocular Inspection. The NCIP Provincial Office, in cooperation with the ICCs/IPs concerned and
representatives of adjoining communities shall conduct an ocular inspection of the area being
claimed in order to verify the landmarks indicating the boundaries of the ancestral domain and the
physical proofs in support of the claim.
f) Evaluation and Appreciation of Proof. The NCIP Provincial Office shall evaluate the proofs
submitted. If the claim is found to be patently false or fraudulent after diligent inspection and
verification, notice of such rejection which includes the reasons for the denial shall be sent to the
ICC/IP claimant. The ICC/IP claimant, may bring the denial on appeal with the NCIP on the
grounds of arbitrary and/or erroneous appreciation of facts.
In addition to the proof submitted, the NCIP Provincial Office may require additional proof for
purposes of substantiating the claim.
II. KINDS OF PROOFS REQUIRED
1. Testimony of elders
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(3) The basic documents shall also be published in a newspaper of general circulation in the area
once a week for two consecutive weeks to allow other claimants to file opposition thereto within
fifteen (15) days from the date of last publication; and chan robles virtual law library
k) Basic Documents of the Delineation Process. The approved and validated survey plan of the
Ancestral Domain Claim and the Petition for Delineation shall constitute the basic documents of the
delineation process.
(4) In areas where no newspapers exist, broadcasting in a radio station could be a valid substitute
for publication. In case of broadcast, the same shall be made twice in a week and any opposition
may be filed within 15 days from date of last broadcast. If both newspaper and radio station are not
available, the mere posting of the basic documents as in stated in sub-paragraph (b) above shall
be deemed sufficient and any opposition thereto must be filed within 15 days from last day of
posting.
This shall contain the technical description of the domain including a description of the natural
features and the landmarks embraced therein.
In case of boundary dispute, the IRR states that it shall first be resolved through the ICCs/IPs
customary process. It is only in case of failure to of such settlement process that the NCIP
shall make a determination to pave the way for delineation without prejudice to a latter final
adjudication of the dispute.
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
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ICCs/IPs. The NCIP shall exercise visitorial and monitoring powers to safeguard the rights of the
ICCs/IPs under the agreement.
II. NOTICE TO THE AGENCIES
See sec. 6
Sec52(j). Issuance of CADT
p) Submission of Maps. The official map of the ancestral domain shall be submitted to the
appropriate government agency for records and control purposes.
II. CONSEQUENCE IF PROOF IS INSUFFICIENT
A denial of the application is appealable to the NCIP. A favorable report of the ADO shall be
reviewed by the NCIP en banc.
The IPRA provides that the ADO should require the contending parties to meet to come up
with a preliminary resolution in cases where there are conflicting claims.
The resolution obtained during this proceeding is not conclusive and is without prejudice to
the full adjudication of the conflict in accordance with Sec. 62.
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.
The rule strictly proscribes the issuance of the CADT in the name of an individual, family, or a
clan.
The names of the individual members who participated in the census shall be listed and
attached to the CADT.
SEC 52(I). Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies
I. IMPLEMENTING RULES AND REGULATIONS
Section 6. Turn-over of Areas within Ancestral Domains. Once an area is certified as an ancestral
domain, the Chairperson of NCIP shall issue a notice to concerned government agencies, such as
but not limited to, the DENR, DAR, DILG, DECS, DOT, DTI, DND, DOH, or DOE, having
jurisdiction over these areas, that the same is within ancestral domains and therefore falls under
the jurisdiction of the concerned ICCs/IPs by operation of law.
The ICCs/IPs and the concerned government agencies may enter into agreements on the exercise
of joint management responsibilities over such areas. Such agreements shall, whenever possible,
incorporate a plan for the eventual transfer of full management powers and responsibilities to the
CADTs are also required to be registered with the register of deeds and are not transferable
EXCEPT if cancelled by the NCIP in accordance with the IPRA.
Ancestral domains are not alienable. It is a community property which cannot be sold,
disposed of or destroyed as it belongs to all generations of the ICCs.
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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.
There are no express provisions in the law expressly providing for the right of ICCs/IPs or
indigenous corp claimants with ancestral lands within an ancestral domain to apply and be
issued a Certificate of Ancestral Land Title (CALT); only the IRR provided for such process.
How done: by filing the appropriate form with the NCIP Service Center without need of going
through the process of delineation.
This should not be limited to existing tenurial instruments eg. Lease, usufructuary; the
existence of tenurial instruments shall not be a hindrance to its issuance.
SEC. 53(A).
I. IMPLEMENTING RULES AND REGULATIONS
a) Identification of Ancestral Lands within Ancestral Domains. The ICCs/IPs, through their POs
and/or Council of Elders, shall be responsible for identifying and establishing ancestral lands within
their respective ancestral domains based on their own customs and traditions. With the free and
prior informed consent of its members, the community may also allocate portions of the ancestral
domain to individuals, families or clans in accordance with their customary laws and traditional
practices.
b) Application for Issuance of Certificate of Ancestral Land Title (CALT) over Ancestral Lands
within Ancestral Domains. Individuals, families or clans belonging to the concerned ICCs/IPs within
certified ancestral domains may apply for Certificate of Ancestral Land Titles over their identified
ancestral lands, without going through the formal delineation process and in spite of the issuance
of any tenurial instrument issued over the same area before the effectivity of the Act by filling up
the appropriate NCIP Form and filing it with the NCIP Service Center.
Under the Rule &4 of the ROC, co-heirs may divide the estate among themselves by means
of a public instrument filed in the register of deeds if:
a. decedent left no will and no debts;
b. the heirs are all of legal age or the minors are properly represented.
A pending ordinary action for partition does not bar the parties to stipulate as to the division of the
estate so long as the same requirements are present.
Civil Code: co-owners may demand at any time the partition of the thing owned in common
unless 1) there is an agreement to the contrary; 2) the donor or testator has prohibited
partition for a certain period which shall not exceed 20 years or partition is prohibited by law.
An ancestral domain in which such ancestral land is situated may not be partitioned or
dissolved because this is contrary to the concept of indigenous ownership that it is a private
but community property.
The allocation exclusively lies with the determination of the ICCs/IPs concerned. This shall be
made through the Council of Elders or their Pos and in accordance with their customary laws.
Pertinent rule:
c) Application for Issuance of Certificate of Ancestral Land Title of Ancestral Lands outside
Ancestral Domains. Claimants of ancestral lands located outside certified ancestral domains
may have such ancestral lands officially established by filling up the appropriate NCIP Form
and filing it with the NCIP Service Center which has jurisdiction over the land.
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Parties who may file application for issuance of CALT are the same as those for lands located
outside the ancestral domain. Individuals or the recognized head of the family or clan is
deemed capacitated to do this.
Difference for lands outside the AD: there must be an application for delineation with the
ADO. (or the NCIP under the IRR); on the other hand ancestral lands within the ancestral
domain shall be identified and allocated in accordance with the customs and traditions of the
ICCsIPs and without undergoing the delineation process with the NCIP Service Center.
Provincial Office. In case of insufficient proof, additional evidences may be required from
the applicant.
SEC 52(C).
SEC 53(D)
IRR provides:
Proofs admissible for the delineation of ancestral lands outside ancestral domains: 1)
testimony of elders and other authentic documents 2) tax declarations and proofs of payment
of taxes to show continuous possession or occupation.
The law grants the ADO discretion to require such other docs that may prove the claim.
SEC 53(E)
1)
2)
3)
Xxx
xxx
h) Report of Investigation. The NCIP Service Center shall prepare a report of its findings,
together with the record and the approved survey plan and submit the same to the NCIP
2)
3)
4)
The NCIP Service Center shall prepare a copy of the petition and surveyor
sketch plans, these being the basic documents of the ancestral land claim,
including a translation thereof in the native language of the ICCs/IPs
concerned;
These documents shall be posted in a conspicuous or prominent place within
the ancestral land which may be, but not limited to, the tribal hall, the market
place or places of worship and the Service Center, Provincial and Regional
Offices of the NCIP for at least fifteen (15) days; chan robles virtual law lib
Whenever available, the basic documents shall also be published in a
newspaper of general circulation in the area once a week for two consecutive
weeks to allow other claimants to file opposition thereto within fifteen (15)
days from the date of last publication; and
In areas where no newspapers exist, broadcasting in a radio station could be
a valid substitute for publication. In case of broadcast, the same shall be
made twice in a week and any opposition may be filed within 15 days from
date of last broadcast. If both newspaper and radio station are not available,
the mere posting of the basic documents as in stated in sub-paragraph (b)
above shall be deemed sufficient and any opposition thereto must be filed
within 15 days from last day of posting.
SEC 53( F)
I. IMPLEMENTING RULES AND REGULATIONS
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The ADO shall assist the parties in coming up with preliminary resolutions.
SEC 53(G)
IRR:
If the NCIP Service Center finds the same meritorious, it shall request the NCIP
Regional Office, for a technical survey of the area. However, it may reject any
application for CALT which it finds patently false or fraudulent upon investigation and
shall give the applicant due notice of the action taken including the grounds for the
denial. Such denial is appealable to the NCIP in accordance with the procedure
prescribed herein.
f) Resolution of Conflicting Claims. In case of conflicting claims, the NCIP Service
Center shall refer the same to the Council of Elders/Leaders in the community for
settlement. In case of failure of settlement thereat, the NCIP Service Center shall
endeavor to cause the contending parties to meet and help them come up with a
preliminary resolution of the conflict. Upon the exhaustion of all possible remedies, the
same conflict may however be submitted for full adjudication under Section 62 of the
Act, in which the Director of Lands may take part to represent the interest of the
Republic of the Philippines.
g) Parcellary Survey. -Upon the recommendation of the NCIP Service Center, through
the NCIP Provincial Office, the Surveys Division of the NCIP Regional Office shall
conduct a parcellary survey of the area. Upon the completion of the survey and approval
thereof, the survey returns and the approved survey plan shall be returned to the NCIP
Service Center through the Provincial Office.
h) Report of Investigation. The NCIP Service Center shall prepare a report of its findings, together
with the record and the approved survey plan and submit the same to the NCIP Provincial Office.
In case of insufficient proof, additional evidences may be required from the applicant.
i) Review by the NCIP Provincial Office. Upon review by the NCIP Provincial Office and finding the
application to be sufficiently proved, the same shall be endorsed to the NCIP Ancestral Domains
Office through the NCIP Regional Office.
j) Issuance of Certificate of Ancestral Land Title (CALT). The ADO shall, within fifteen (I5) days
from receipt thereof, submit all records of the application to the NCIP which shall in turn, evaluate
the application and report submitted, and if it finds the application to be meritorious, issue the
corresponding CALT.
Section 8. Registration of Certificates of Ancestral Domain Title (CADTs) and Certificates of
Ancestral Land Title (CALTs). The NCIP, through the Ancestral Domains Office (ADO), shall
register all CADTs and CALTs with the Register of Deeds in the place where the properties are
located. The NCIP together with the Land Registration Authority shall formulate the procedure for
such registration. Awardees of CADT and CALT themselves may opt to personally cause such
registration.
The ADO does not cancel the claim itself but merely acts as a plaintiff or prosecutor before
the NCIP. It is the NCIP, as a Commission, that cancels the claim.
Under the NCP Rules of Procedure, it is the Commission that has exclusive and original
jurisdiction over petitions fro cancellations of CALT/CADTs alleged to have been fraudulently
claimed.
Actions must be filed within one year from the date of registration.
In all other cases, they must be filed with the Regional Hearing Officers of the NCIP.
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e) Validation of ADSDPP. With the assistance of the NCIP, the IPO and/or Council of
Elders shall conduct assemblies among the ICC/IP members for the validation and
approval of the ADSDPP;
I. PRIORITY RIGHTS
f) Submission of ADSDPP to NCIP. Upon validation and approval, the IPO and/or the
Council of Elders shall submit the ADSDPP to the NCIP for their information and
concurrence. The ADSDPP shall form part of the data base on ICC/IP communities in
the country, in relation to development projects, programs and activities within the
ancestral domain, which the NCIP is mandated to establish; chan robles virtual law
library
g) Conversion of Ancestral Domain Management Plans (ADMPs) to Ancestral Domain
Sustainable Development and Protection Plans (ADSDPPs). ICCs/IP communities have
the option to convert or modify their existing Ancestral Domain Management Plans
prepared and completed pursuant to DENR-DAO 96-34 into Ancestral Domain
Sustainable Development and Protection Plan in accordance with these rules.
Some right or interest in the property that has become fixed or established, and is no longer
open to doubt or controversy.
Rights are deemed to be vested when the right to enjoyment, present or prospective, has
become the property of some person as present interest; there must be a transition from the
potential or contingent to the actual, and the proprietary interest must have attached to a
thing.
A. Meaning
Does not mean exclusive rights but merely the right to preference or first consideration in the
award of privileges provided by existing laws and regulations, with due regard to the needs
and welfare of the IPs living in the area.
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.
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b. term
A non-IP may be allowed to take part in the development and utilization of the natural
resources for a period not exceeding 25 years renewable for not more than 25 years.
critical watersheds
a. -mangroves
b. -wildlife sanctuaries
c. -wilderness
d. -protected areas
e. -forest cover or
f. -reforestration/forest cover
d. manner of exploitation
Pursuant to Art XII Sec 2 of the Consti, the agreement between the ICCs/IPs and outsider
may be through: 1) joint venture 2) joint production-sharing or 3) co-production.
Foreigners are also allowed to enter into agreements with the ICCs/IPs but it is limited to
technical or financial assistance only.
The NCIP may take appropriate action to safeguard the rights of the ICCs/IPs.
Development that meets the needs of the present without compromising the ability of future
generations to meet their needs.
At present, the DENR is the principal agency tasked t determine these areas.
V. Transfer of responsibility
d) Transfer of Management Responsibility. Should the community decide, on the basis of free and
prior informed consent, to transfer management responsibility over the area to another entity, such
decision shall be made in writing to be signed by all members of the communitys Council of
Elders. Provided, that all forms of exploitation of the natural resources in the area shall not be
allowed and that appropriate technology transfer aimed at speeding up the reversion of
management of the area to the community is effected. The process of transfer of Management
Responsibility shall be witnessed by the NCIP, without prejudice to its visitorial and monitoring
powers.
Section 8. Five Year Master Plan. Based on the Ancestral Domain Sustainable Development and
Protection Plans (ADSDPP) of the various ICCs/IPs and other relevant information, the Office on
Policy, Planning and Research shall formulate a Five-Year Master Plan for the delivery of
appropriate
support
services
to
the
ICCs/IPs.
Such support services, which includes infrastructure, health and educational services, training,
credit facilities, community production and marketing facilities, organizational support services and
the like, shall be identified by the ICCs/IPs themselves through traditional and customary
consultative processes facilitated by the community-recognized POs and/or Council of Elders.
The allocation of funds for and delivery of such support services shall be made with utmost
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Under the IPRA and the IRR, appropriate technology transfer aimed at speeding up the
reversion of management of the area to the community must be effected by the parties.
The agreement os for the ICCs/IPs in case the areas revert back to them.
However, they are not exempt from certain exactions like donors tax, capital gains from sale
of real property and estate tax.
Exceptions:
1. Large-scale agriculture
2. Commercial forest plantations
3. Residential purposes.
Exactions are to be used for the development and improvement of the ancestral domains.
No displacement of ICCs/IPs without the written consent of the specific persons authorized to
give consent .
They have a right to stay in the territories and not to be removed therefrom.
What are customary laws? A custom is a practice which has acquired the force and effect of
law by reason of its universality and antiquity, in a particular place or country, in respect to the
subject matter to which it relates.
Cases covered: all conflicts pertaining to property rights, claims and ownership, hereditary
succession and settlement of land disputes within ancestral lands/domains.
The NCIP upon complaint of the IPs or on its own initiative, shall issue compulsory processes
to stop or suspend any project that has not satisfied the consultation process and
requirements of free and informed prior consent or upon violations of the terms and conditions
of the contract.
Role of judges: judges are bound to check whether such CL possesses the status of a
juridical custom.
Patriarca v. Orate: the loan acquired by the plaintiff from the defendant i secured by a
mortgage of the improvements on a land that was leased. Real property sought to be
recovered did not belong to the plaintiff and there is no means of ascertaining what the
alleged improvements thereon were for the purpose of determining whether they could give
rise to an action in rem or a mere action in personam. SC held that a court of justice cannot
consider a local custom, as a source of right, unless such is properly established by
competent evidence like any other fact.
People v. Rodil: the accused was the one who caused the death of the deceased, to whom
he was married according ot the rites f the tribe of Tagbanuas to which both of the belonged,
said crime constituted parricide. Justice Malcolm said that it was a definite abandonment of
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Through its regional offices: jurisdiction over all claims and disputes involving the rights
of ICCs/IPs.
Sec54: refers to fraudulent claims which the NCIP may cancel since this involves cancellation
of CADTs/CALTs.
Sec64: refers to illegally acquired Torrens cert of titles covering lands or areas within the
ancestral domains; the NCIp is only bound to take legal action and regular courts of law has
jurisdiction to cancel Torrens titles.
NCIP decisions appealable to the CA by way of Petition for Review (IPRA, IRR, Admin.
Cir. No. 1 Series of 1998).
Action for cancellation of documented titles illegally acquired: within 2 years from nov 22,
1997, effectivity date of IPRA until nov 22, 1999.
Erroneous: Mode of appeal is petition for review on certiorari (Admin. Cir. No. 1 Series of
2003).
An action for reconveyance is still available to the IPs despite lapse of the 2-year period.
Possessor in good faith is synonymous to the concept of innocent purchaser for value.
What: Writ requiring sheriff or proper officer to execute final decision, order or award of
the Regional Hearing Officer of the NCIP.
How: (1) own initiative of NCIP Hearing Officer, or (2) motion of prevailing party.
When: (1) upon expiration of period to appeal, and (2) no appeal is perfected.
GR: All conflicts related to ancestral domains and lands involving ICCs/IPs shall be
resolved through application of customary laws.
GR: For effective enforcement of judgment, any suitable process or procedure may be
employed and adopted.
E: (1) where one of the parties is a non-ICC/IP; or (2) dispute could not be resolved
through customary law adjudicated by NCIP in accordance with Rules on Pleading,
Practice and Procedures.
E: (1) does not conform to the spirit of RA 8371 and IRR, (2) violates customary laws
and practices.
In applying the law, integrity of customary laws and traditions of ICCs/IPs shall be
considered and given due regard.
Rule-making power: promulgate rules and regulations governing (a) hearing and
disposition of cases, (b) internal functions, and (c) as necessary to carry out its purpose.
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3.
4.
Special fund to pay for expropriated lands and for expenses of delineation and surveying
of ancestral domains
Fund is administered by the NCIP for the ICCs/IPs for the purpose of delineation and
devt of ancestral domains and shall be allocated on a per linear/km basis and released
to people organizations and/or Council of Elders that have sufficient expertise in
delineation and ancestral domain devt activities.
To augment the Fund, the law authorizes the NCIP to solicit and receive donations and
contributions (tax exempted).
CHAPTER XI: PENALTIES
II.
Penalties
IPRA does not impose limitations as to the penalties that the ICC/IPs may impose
based on their respective customary laws. The offended party has the option to
prosecute the offender under existing national laws in lieu of customary laws.
Prosecution of criminal cases fall within jurisdiction of the regular courts, the civil
damages are under the jurisdiction of the NCIP and RHO. IPRA does not bar right
IPRA makes all violations of any of its provisions criminal and subject to penalties.
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Doctrine of piercing the veil of corporate fiction when the separate corporate personality
is being used to defeat public convenience, justify a wrong, protect fraud or defend a crime,
the law will regard the corporation as an association of persons.
IPRA adheres to the same principles governing the corporate liability and the personal liability
of corporate officers for criminal acts. Under the law, when the offender is a juridical entity,
criminal liability is imputed to all officers responsible for the unlawful act. However, as an
accessory penalty, the license or certificate of registration of the corporation or juridical entity
concerned shall be cancelled or revoked. In effect, although the corporation was not held
criminally liable, it nevertheless is held accountable for the acts of its agents.
II.
Persons liable
Combining Sec72 and Sec73, the ff are LIABLE for punishment for violations of the
provisions of IPRA:
1.
2.
3.
4.
III.
Imprisonment of not less than 9 months but not more than 12 years;
Fine of not less than 100,000 but not more than 500,000; or
Both such fine and imprisonment
Aside from the civil damages, there are specific accessory penalties pertaining to specific
offenders, to wit:
1.
2.
3.
For all violators, payment of damages suffered by the ICCs/IPs as consequence of the
unlawful act;
For corporations or other juridical persons, cancellation of their registration certificate of
license; and
For public officials, perpetual disqualification to hold public office.
CHAPTER XII: MERGER OF THE ONCC AND OSCC
Merger refers to the reorganization of the ONCC and the OSCC to establish
the NCIP.
Liability
The offended ICCs/IPs have the option of punishing the offender either in accordance with
their respective customary laws, subject to specified limitations as to the impossible penalty,
or to prosecute such offender under existing national laws.
If the offender is prosecuted under national laws, the imposable penalty is subject to a
limitation in that what shall be imposed is that specified in Section 72 and not what is provided
under the national law.
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The Organic Act created the Shariah and tribal courts as well as the Shariah
Appellate Court and Tribal Appellate Court.
The tribal courts are vested with jurisdiction over personal, family
and property rights in accordance with the tribal codes of these
communities. The regular courts have jurisdiction over
controversies involving real property located outside the area of
autonomy except in cases of successional rights that pertain to
tribal courts.
The composition and jurisdiction of the tribal courts are provided for
by the Regional Assembly. Customary law shall be used and
applied by these tribal courts.
Under the Organic Act, the customary law shall be codified. The
Tribal Code shall be applicable only to members of the ICCs/IPs. In
case of conflict between the Muslim Code and Tribal code, the
national law will apply. In case of conflict between the tribal code
and the national law, the latter shall prevail.
The Organic Act transferred jurisdiction over ancestral domains within ARMM
to its Regional Government who is vested with authority, power and right to
the exploration, development and utilization of the natural resources within
ARMM.
The extent of rights granted by the Organic Act to the ICCs/IPs is significantly
less and not clearly defined as compared to those granted under IPRA:
No right to self-governance within the ancestral domain/lands
Only consideration given is the use of customary laws, traditions
and practices with respect to land claims
No right to control or regulate the development of the ancestral
land/domain
No provision on the identification, delineation and titling of ancestral
lands/domains. Only right to recognition of ownership is under the
Torrens System (as opposed to the indigenous concept of
ownership under the IPRA).
No right to control or the requirement of obtaining the free and prior
informed consent
The Office of Muslim Affairs and Cultural Communities (OMACC) was the
previous agency in charge of indigenous cultural communities and also of
Muslim affairs.
It was abolished by President Aquino and its functions were divided into three
new specialized offices:
Office of Muslim Affairs (OMA)
Office for Northern Cultural Communities (ONCC)
Office for Southern Cultural Communities (OSCC)
The ONCC was the primary agency in charge of the cultural communities in
Regions I to III. Those in Regions IV to XII are within the jurisdiction of OSCC.
The main difference of the ONCC and the OSCC from the NCIP is the ONCC
and OSCC only provides legal and technical services for the survey,
adjudication, titling and development of tribal ancestral lands as well as
settlements proclaimed by the government for the northern and southern
communities respectively. While the NCIP has the power to undertake
identification and delineation of Ancestral Domains and Ancestral Lands.
III. ARMM
Under the Organic Act or R.A. 6734, the ARMM is a corporate entity and has
jurisdiction in all matters devolved to it by the Constitution and by Congress.
The Organic Act requires that four of the nine members of the Cabinet of the
Regional Governor shall preferably come from the ICCs /IPs.
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The transfer was done to harmonize existing laws with the Organic Act. It did
not abolish the OSCC but merely reduced its powers and functions.
Upon the enactment of IPRA and pursuant to its provisions under Section 74,
the ONCC and the OSCC were merged and reorganized to form the NCIP.
E.O. 462 in 1991 transferred to the ARG the offices of the OSCC within
ARMM and authority over the ICCs/IPs
.
The OSCC offices within ARMM became OSCC-ARMM with the task of
carrying out the services mandated by E.O. 462.
The merger did not affect the OSCC-ARMM nor the OMA, which continues to
exist.
V.
The conflict over who has the jurisdiction over the ancestral domains/lands
within ARMM has not yet been resolved.
IPRA, duly enacted subsequent to the Organic Act vests NCIP with
jurisdiction.
The Constitution however expressly grants to Congress the power to
determine jurisdiction of autonomous regions over the ancestral domains. And
Congress did in fact vest in ARMM jurisdiction through the Organic Act. Thus
the ARG of the ARMM by virtue of the Organic Act likewise has jurisdiction.
R.A. 9054, the new ARMM law did not remove jurisdiction of the ARMM,
however the latter does not contain any provision on the identification,
delineation and titling of the ancestral domains.
According to a J.D. thesis, a probable solution is not to adhere power to the
present ARG.
The ARG does not have the authority to delineate or title ancestral
domain and lands as evidenced by the draft executive order
submitted by the ARMM Oversight Committee proposing transfer
of some powers of the NCIP to the ARG. Thus, the ICCs/IPs
seeking to obtain CADT or CALT must file their petition for
delineation and issuance of titles with the NCIP.
However, ARG may by enacting regional legislation, create and
office or confer upon OSCC-ARMM the power to undertake
delineation and issuance of titles- serving as counterpart of the
NCIP within ARMM.
E: Lands within Baguio Townsite Reservation not reclassified except through legislation.
Baguio City itself not excluded from IPRA coverage.
Undocumented private lands of claimants in Baguio City may be titled (CA 141, PD
1529, Act, whichever is applicable).
Baguio: only 1 valid claim of ancestral domain; more than 120 hectares located at the
back of Camp John Hay.
Sum total of allocated annual budget of ONCC and OSCC in 1997 as initial basis of
NCIPs yearly allocation subject to adjustment.
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Within 60 days from appointment, NCIP shall issue IRR in consultation with
Committee on Cultural Communities of HR and Senate.
Act will not adversely affect rights and benefits of ICCs/IPs under conventions,
recommendations, international treaties, national laws, awards, customs and
agreements.
Courts may take judicial notice of international customs without need of introducing
evidence.
Rights of ICCs/IPs raised to the level of international custom may be subject of judicial
notice without introduction of evidence.
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