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Table of Contents

GENERAL TOPIC: Indigenous People’s issues on their ancestral lands/domains

SPECIFIC TOPIC: A review of the process of delineation of ADs/ALs under the IPRA 23 years later
ISSUES: What are the challenges faced by claimants of ADs/ALs? What is the status of delineation and recognition of
ADs/ALs today (2020)? How can it be improved onwards?

I. INTRODUCTION
Indigenous people have been relying on their lands, where they have been living for centuries, and resources around
for their livelihoods and preserving their identity.

A. Brief history of Indigenous Peoples and the IPRA

The Philippines is a home to more than five hundred Indigenous Communities. About sixteen percent of the
Philippine population belong to these distinct indigenous communities subdivided into around 110 linguistic groups or
tribes.1 These indigenous peoples refer to a group of people or homogenous societies identified by self-ascription and
ascription by others, who have continuously lived as organized community on communally bounded and defined
territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such
territories.2 They are the descendants of original inhabitants of the Philippines even before the Spanish conquest.

Before they were called as indigenous peoples, they have been called by various names. Many offices were also
created by the government for indigenous peoples- the Bureau of Non- Christian tribes in 1901, Commission on National
Integration in 1957 referring to indigenous peoples as “non-Christian Filipinos”, Presidential Assistance on National
Minorities in 1972, Office of Muslim Affairs and Cultural Communities in 1984, etc.

The indigenous people have also been struggling for self-determination. They have been continuously facing
different issues including discrimination and marginalization which suppresses their basic rights. They seek that their
right to their ancestral domain and their native titles be recognized.

In 1987, the Philippine Constitution recognized the ancestral land rights of indigenous people where it states that the
State shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic,
social,and cultural well-being.3 Ten years later, in 1997, these rights finally became law in the Indigenous Peoples Rights
Act. It was enacted recognizing, protecting, and promoting the rights of indigenous cultural communities/indigenous
people. It created the National Commission of Indigenous Peoples which is responsible for the promotion and protection
of the interests and well-being of the indigenous cultural communities and indigenous peoples.4 It also affirms
indigenous peoples' rights to self-governance and empowerment, social justice and human rights, and rights to cultural
identity. These are some of the promises of the IPRA to the indigenous people and indigenous cultural communities.

Indigenous people in the Philippines have long been fighting for their native title against the policies of the State. It
is only when the IPRA was enacted that they were given a guarantee of their rights to their native titles, and be free from
encroachment by non-indigenous people. Twenty-three years later after the enactment of the Indigenous People's Rights
Act, many issues regarding ancestral lands/domains of the IPs are yet to be solved.
 
This paper examines and assesses the achievements and gaps in the implementation of the Indigenous People's
Rights Act. It discusses the status of the promises of IPRA to the indigenous communities. It reviews the status of
delineation and recognition of the ancestral lands/domains under the right to ancestral lands and domains provided by the
IPRA. This paper also provides for a discussion of the challenges faced by claimants of ancestral lands and domains.

1
Indigenous Peoples in the Philippines. (2013, July 24). UNDP Philippines.
https://www.ph.undp.org/content/philippines/en/home/library/democratic_governance/FastFacts-IPs.html
2
Republic Act No. 8371. (1997), Sec. 3.
3
Constitution, (1987), Art. VII, Sec. 5.
4
Republic Act No. 8371. (1997), Sec. 38.
 II. IPs in the international setting

A. International law basis of protection of IPs

As early as the 1970s, the United Nations recognized the plight of the indigenous people. They studied the pattern of
discrimination against indigenous peoples around the globe. A Working Group on Indigenous Populations was appointed
by the UN with the two mandates which is to review national developments pertaining to the promotion and protection of
the human rights and fundamental freedoms of indigenous peoples, and to develop international standards concerning the
rights of indigenous peoples.5

In 1995, a new Working Group was appointed by the Commission on Human Rights committed to creating a draft
declaration of the rights of indigenous peoples. Its draft declaration on the rights of indigenous peoples was submitted to
the Sub-Commission on the Prevention of Discrimination and Protection of Minorities and was approved in 1994
(Weissner, 2009).6 The provisions of this UN Draft Declaration on Indigenous Peoples' Rights became the model for the
enactment of the Indigenous People's Rights Act.

In 2007, the Declaration on the Rights of Indigenous Peoples of the United Nations was adopted by the General
Assembly on 2007, by a majority of 144 states in favor of the declaration.7 It is the most recognized international
instrument covering completely the rights of indigenous peoples. It establishes a universal framework
of minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world and it elaborates
on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous
peoples. UNDRIP formulates the rights of indigenous peoples to the extent and in the structure and format that the
international community of States has recognized them.8

Currently, the UN has 193 member states. Although the Declaration on the Rights of Indigenous Peoples is a
resolution which is not legally binding passed by the United Nations, this declaration creates “a strong expectation that
Members of the international community will abide by it” and, “consequently, in so far as the expectation is gradually
justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States”
(Report of the Commission on Human Rights, E/3616/Rev. l, para. 105).

B. IP laws in other countries

During the era of European colonial expansion and imperialism, many Europeans at that time saw native peoples
from regions such as Africa, Asia, and the Americas as “primitives,” or “savages” to be dominated.9 These is how the the
violation of the rights of indigenous people started. This was the start of the deprivation of the indigenous people from
their lands and culture. After World War 1 and 2, anti-colonial movements were created realizing that they have rights
that must be recognized.
In 1957, Convention 107 was convened by the United Nations recognizing the rights of indigenous people. It
was binding to all the members of the UN. 10 After this was Convention 169 which was basically the same with
Convention 107. The Draft Declaration on the Rights of Indigenous Peoples was adopted by the UN. This became the
model instrument for other members of the UN and one of them is the Philippines by enacting IPRA. The IPRA made
the Philippines the first country in Asia to recognize the struggles and aspirations of its indigenous peoples by way
of a legal instrument. 11
Few countries have also enacted laws protecting the rights of indigenous people. Some of these are: the legal
ownership of indigenous people of more than 20 percent of the land in Australia, the Republic of the Congo in 2011
became the first African country to adopt a specific law on the rights of indigenous peoples, including the preservation of
pre-existing land tenure of indigenous peoples in the absence of land title,and Indonesia’s Constitutional Court in 2013
restored the rights of indigenous communities over their customary forests, which were earlier considered “State forests.”
Many countries, however, have yet to recognize the rights of their indigenous peoples.Indigenous peoples around the
globe continue to fight for their rights. Even if there are laws protecting their rights,they still don’t receive the
protection due to them because of the lack of law enforcement.
5
Indigenous Peoples at the United Nations. United Nations Dept of Economic and Social Affairs.
https://www.un.org/development/desa/indigenouspeoples/about-us.html
6
Weissner, W. (2009). United Nations Declaration on the Rights of Indigenous People. Audiovisual Library of International Law.
https://legal.un.org/avl/ha/ga_61-295/ga_61-295.html
7
Indigenous Peoples at the United Nations, supra.
8
United Nations. (2007). Declaration on the Rights of Indigenous People. https://www.un.org/development/desa/indigenouspeoples/wp-
content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
9
Shah, Anup. “Rights of Indigenous People.” Global Issues. 16 Oct. 2010. Web. 01 Dec. 2020. <https://www.globalissues.org/article/693/rights-
of-indigenous-people>.
10
Convention(1957). https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107
11
San Juan, A. (2020, Oct. 29) CHR: Indigenous communities continue to suffer injustices despite IPRA. Manila Bulletin.
https://mb.com.ph/2020/10/29/chr-indigenous-communities-continue-to-suffer-injustices-despite-ipra/
 International Labour Organization Convention (No. 169) concerning Indigenous and Tribal
Peoples in Independent Countries, adopted 27 June 1989.

III. THE PHILIPPINES RESPONSE: THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997

A.   Pertinent provision with jurisprudence

1.  Rights of the IPs/ICCs

The IPRA of 1997 provides for the

The rights of the Indigenous People or the Indigenous Cultural communities over the ancestral domain are
the following:  (a.) Right of Ownership; (b.) Right to develop lands and natural resources; (c.) Right to Stay in
Territories and Not to be Displaced Therefrom; (d.) Right to Regulate Entry of Migrants and Other Entities;
(e.)  Right to Safe and Clean Air and Water; (f.)   Right to Claim Parts of Reservations; and (g) Right to
Resolve Conflicts According to Customary Laws.

First, Right of Ownership refers to the right of the IP’s/ICCs to dispose, use, consume, possess, and
exclude over the natural resources, land area and all improvements in the Ancestral domain. Second, Right to
develop lands and natural resources is the right of the IP’s/ICCs to extract, manage, sustainable use and control
all the natural resources and all the area of ancestral domain. Third, Right to Stay in Territories and Not to be
Displaced Therefrom refers to the right of the IP’s/ICCs to remain in their ancestral land except when there is a
need for relocation or displacement because of disaster however, they have to return to such domain if the proper
authorities allowed such return. They are entitled for damages arising from relocation.Fourth, Right to Regulate
Entry of Migrants and Other Entities refers to the right of the IP’s/ICCs to limit the entry of other people who
intended to  transact business for the use of their ancestral land. Fifth, Right to Safe and Clean Air and Water
refers to the right of the IP’s/ICCs to regulate activities which may affect the ecological condition of their
ancestral domain. Sixth, Right to Claim Parts of Reservations refers to the right of the IPs/ICCs to claim over the
ancestral domain’s parts and reservations. Lastly, Right to Resolve Conflicts According to Customary Laws
refers to the right of the IPs/ICCs to settle their dispute using their customary laws and practices.

In addition, the rights of the Indigenous People or the Indigenous Cultural communities over the ancestral
land are the following: (a.) Right to Transfer Land or Property; (b).  Right to Redemption; and (c.) Option to
Secure patents

First, Right to Transfer Land or Property refers to the right of the IPs/ICCs to convey their individual parts in
their ancestral land as modes of acquisition and transfer of such land. Second, Right to Redemption refers to the right
of the IPs/ICCs to recover the ancestral land conveyed by means of mistake, fraud, violence and undue influence
within fifteen (15) years of the date of transaction. However, when fraud exist, the reckoning period if from its
discovery. Lastly, The IPs/ICCs have the option to secure patents pursuant to Commonwealth Act No. 141 as
amended, to formally recognize their native title over their ancestral land.

Despite the rights of the IPs/ICCs enumerated above, concerned citizens of the Philippines still question the
validity of the stated rights. In Cruz v. SENR, the petitioner therein assailed the constitutionality of Sections 7 and 8
which provide for the rights of the Indigenous People/Indigenous Cultural Community over their ancestral domain
and land. Also, they alleged that the right of the IPs/ICCs Right to develop lands and natural resources and Right to
Claim Parts of Reservations as enshrined in sections 57 and 58 of Republic Act No.8371 are unconstitutional and
invalid. The Supreme Court dismissed the petition on the ground that after voting and deliberation there is still an
equal number of justices who vote affirmative and negative.

2.  Responsibility of the State

 The State has a duty to maintain the peace and order of its territory. Otherwise stated, the State is deemed
to be the protector of the people. In order to secure these people, the authorities either by election or
appointment, create statutes or laws to govern the relationship between people and the government. One of
such laws is Republic Act No. 8371 also known as The Indigenous Peoples Rights Act of 1997 (IPRA). 

As enshrined in the IPRA, the right of the Indigenous Cultural Communities and Indigenous Peoples must
be promoted and recognized by the State. In addition, the State has an obligation to respond to the cases
involving the rights of such people or community and it must take measures with the participation of IPs/ICC
for the protection of the latter’s rights and respecting their cultural integrity.

B.   Role of the NCIP

The National Commission on Indigenous Peoples (NCIP) is the office created under the IPRA that is primarily
responsible to formulate and enforce plans, programs and policies in recognizing, promoting and protecting the rights of
IPs and ICCs.The jurisdiction of settling issues or claims between Ips and ICCs are lodged to the NCIP through its
regional offices as long as parties involving such cases will exhaust all the remedies under the customary laws.  Also, the
certification from the Council of Elder/Leaders as a proof of settling the stated issue or claim, is an indispensable
requirement of trying and hearing of such cases by the said office. Furthermore, it must consider the customary laws and
practices in solving the controversy between any Indigenous People or the ICC. Moreover, it is tasked to come up with
Rules and Regulations for enforcing Republic Act No. 8371, issuing subpoena, administering oaths and summoning
parties involved. Lastly, it has the power and authority to hold anyone to be in contempt and enjoining all the acts in the
case.

In the case of Sps. Sanson v. in relation to Section 62 of the