INDIGENOUS PEOPLES AND THEIR RIGHT TO ANCESTRAL DOMAIN
Dean Sedfrey M. Candelaria
Ateneo de Manila University
School of Law
The Indigenous Peoples’ Rights Act of the Philippines is a piece of legislation which has been passed to correct historical injustice experienced by indigenous people since colonial times. It immediately became the subject of a constitutional challenge on account of the progressive legal concept of property rights of indigenous peoples. The need to reconcile, for instance, the concept of ancestral domain with the ownership by the state of natural resources underneath the domain remains a continuing challenge to decision-makers. But in the larger context of empowering indigenous peoples, the law has become an important instrument for advocacy to advance their rights in various fields of endeavor today. Given proper support and opportunity to decide in accordance with their traditional decision-making process, indigenous peoples will be able to track for themselves a culturally sensitive development strategy.
Philippines, Indigenous Peoples’ Rights Act, Ancestral Domain, Indigenous Peoples’ Right to Self-determination, Native Title, Customary Law, Spanish Colonial History in the PhilippinesI. Introduction
In 1997, the Philippine Congress passed the Indigenous Peoples’ Rights Act (R.A. 8371 or IPRA) which was perceived by the indigenous communities as a remedial legislation to correct a historical injustice. Conceptually, IPRA became immediately controversial on account of its apparent inconsistency with the Philippine Constitution, particularly the doctrine of jura regalia, i.e. that “all lands of the public domain belong to the State.”
The legal characterization of ancestral domain rights as “private but communal” in nature has also been distinguished from the civil law concept of co-ownership over real property.
It took a 7-7 vote by the Supreme Court in the leading case of Cruz v. Secretary of Environment and Natural Resources, et al., 1 to lay down the highly nuanced appreciation of different Justices of the Supreme Court over the concept of ancestral domain rights based on indigenous customary law.
This paper begins with the traditional conception of indigenous peoples in a legal and historical context using Philippine case law. The writer then proceeds to highlight the breakthrough in constitutional development when the framers of the 1987 Constitution crafted unprecedented constitutional rights of indigenous peoples to their ancestral domain. The significant provisions of IPRA are later discussed to emphasize the pervasive impact of the law in our legal system today.
The paper concludes by identifying the immediate tasks ahead of us in the application of IPRA, specifically the concept of ancestral domain, to current economic development issues, like mining rights and utilization of natural resources, and the wider concern for self-determination of indigenous peoples in the Philippines.II. Traditional Conception of Indigenous Peoples in a Legal and Historical Context
Spanish colonial setting in the Philippine Islands began with the discovery by Ferdinand Magellan in 1521. Historians identified three distinct groups of people inhabiting the archipelago at that time, namely: (a) the lowlanders of the islands of Luzon and Visayas; (b) the inhabitants of the mountains of northern Luzon; and (c) the Moro sultanates in the southern islands of the archipelago.
The early subjugation of the predominant lowlanders gave the Spaniards the much needed time and people to pursue the ultimate objective of reduccion or the process to convert pagan people to a civilized way of life exemplified by the life of the Hapsburg Empire. William Henry Scott explained the use of the term to clarify the prevailing Spanish policy at that time:
“The verb reducir must sometimes be translated ‘convert’ but other times ‘subjugate’ or ‘civilized.’ Similarly, the term ‘pacification’ meant not merely the termination of armed resistance but the establishment of civil administration. The Spaniards were themselves sensitive to the implications of the term, and the Law of the Indies specifically prescribed the use of the words conquista in everything having been undertaken in total peace and charity.”2
Two decisions of the Philippine Supreme Court during the American colonial period still carried over the Spanish policy of reduccion into the treatment of indigenous peoples at that time.
In Rubi v. Provincial Board of Mindoro, 3 some Mangyans were held in a reservation based on Provincial Board Res. No. 25. Mindoro justified the act as a form of protection and to introduce the Mangyans to civilized customs. The Court traced the reduccion during the conquest period. It also used the term “non-Christian” tribes to describe the geographical area and level of civilization of a people. The Government treated them as in a “state of pupilage” or as “wards” just like the way the United States related to the native Indians.
Twenty years later, in People v. Cayat, 4 a native of Baguio was sentenced to pay fine for having in his possession one bottle of A-1-1 gin other than a native wine. The Court reiterated the policy of reduccion to justify the exercise of police power. It rationalized the prohibition as a valid classification under the equal protection clause. Classification was not discriminatory because it was not based on accident of birth or parentage but on the degree of civilization and culture.
It was clear that the early colonial policies espoused an assimilationist approach toward the indigenous peoples in the Philippines. A more progressive perspective would later on be carried into the 1987 Constitution.
The policy of reduccion had the concomitant effect of converting indigenous lands into lands of the public domain following the adoption of the Spanish civil law system and the doctrine of jura regalia which declared all lands of the public domain as belonging to the King (or the State).III. The 1987 Constitution and Indigenous Peoples
The framers of the 1987 Constitution deemed it fit to articulate the rights of indigenous communities in a more elaborate set of provisions signalling an unprecedented recognition of indigenous rights to their ancestral domain.
Article II, Section 22 provides that the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.
Moreover, Article XII, Section 5 states that the State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. In this regard, the same provision allows Congress to pass a law for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.
According to Article XIII, Section 6 the State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.
Article XIV, Section 17 provides that the State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.
In addition to these provisions, Article X, Sections 15–21, recognized two compact groups of communities who have historically asserted their right to self-determination since the Spanish colonization. The Cordillera up north and the Muslims in Mindanao have been accorded autonomous regional status distinct from other local government units in the Philippines within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic.IV. R.A. 8371 of 1997
The Indigenous Peoples’ Rights Act (IPRA) is a fusion of existing concepts on indigenous rights derived from domestic and international law instruments.5
An enumeration of selected provisions of the law is instructive of the expanse of indigenous peoples’ rights in the Philippines today.
Section 3(h) states:
“…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, 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. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains.”
The definition of indigenous peoples may be summed up in three distinct characteristics, namely: (a) continuous display and expression of customary practices; (b) history of marginalization; and, (c) self-ascription as an indigenous group.
B. Ancestral Domains/Lands and the Constitutional Challenge
One of the more problematic areas in IPRA is the concept of ancestral domain, including ancestral land. As will be discussed, the scope of ancestral domain invited constitutional scrutiny on account of the vast legal implications particularly in the context of ownership and utilization of natural resources.
Ancestral domain as defined in Chapter II, Section 3(a) refers to:
“all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare… including: ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.”
On the other hand, ancestral lands, is defined in Chapter II, Section 3(b), are those:
“occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial…including but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots.”
In Cruz v. Secretary of Environment and Natural Resources, et al., 6 a constitutional issue was raised premised on the doctrine of jura regalia under Article 12, Sections 2 and 3, respectively, of the Constitution which state:
“Sec. 2. Lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State…”
“Sec. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks…”
Petitioner Cruz argued that the definition of ancestral domain runs contrary to the Constitution. The key to resolving the apparent conflict is the concept of native title. This was affirmed in the landmark case of Cariño v. Insular Government.7 The Cariño ruling recognized the concept of private land title that existed irrespective of any royal grant from the State. Thus, in Chapter II, Section 3(1) of IPRA, native title has been defined as:
“pre-conquest rights to lands and domains which, as far back as memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest.”
Section 55 of IPRA states that areas within the ancestral domains are communally held but not in the concept of co-ownership under the New Civil Code.
The rule on vested rights respecting the existing property rights regimes is emphasized in Section 56.
A source of controversy is the rule on natural resources within the domains found in Section 57 granting ICCs/IPs “priority rights” in the harvesting, extraction, development or exploitation but allowing a non-IP to take part in the development and utilization for a period of not exceeding 25 years renewable for another 25 years provideda formal and written agreement is entered into with the IPs concerned or that the community, pursuant to its own decision making process has agreed to allow such operation.
The rule on sale or transfer of ancestral domain has been distinguished from that of ancestral land. Ancestral domains can never be sold as prescribed in Section 5. But, Section 8 clarifies that ancestral lands may be transferred only to or among members of same IPs. But these lands may be redeemed within 15 years if transferred to non-IPs due to vitiated consent or unconscionable price.
A Certificate of Ancestral Domain Title serves as a formal recognition of native title under Section 11 of IPRA. This is issued by the National Commission on Indigenous Peoples.
There is an option to register ancestral lands within 20 years from approval of the law under Commonwealth Act 141, as amended, or the Land Registration Act 496 as laid down in Section 12.
Under Section 60, ancestral domains, except those portions actually used for commercial purpose, large-scale agriculture, residence or upon titling by private person are exempt from real property tax, special levies and other similar exactions.
Section 7 outlines the rights related to ancestral domain:
a. To claim ownership;
b. To develop lands and natural resources (in relation to Section 57);
c. To stay in the territories;
d. To be resettled (in case of displacement);
e. To regulate entry of migrant settlers;
f. To have access to integrated systems for the management of their inland waters and their air space;
g. To claim parts of reservations (except: those for public welfare and service); and,
h. To resolve land conflicts using customary laws (before going to court).
C. Right to Self-governance and Empowerment
Sections 13–20 of IPRA provide that indigenous peoples not included in or outside Muslim Mindanao and Cordilleras may use the form and content of their ways of life as may be compatible with the fundamental rights defined in the Constitution. Their indigenous justice system may be used within their own communities but the system must be compatible with the national legal system and internationally recognized human rights.
Other rights worth noting are as follows:
b. Right to constitute tribal barangays provided they are living in contiguous areas where they are the predominant population but inside municipalities, provinces, or cities where they do not constitute the majority.V. Beyond Cruz v. Sec. of DENR
A continuing concern among indigenous peoples’ rights practitioners is the concept of codification of customary laws. Article 11 of the New Civil Code states that customs which are contrary to law, public order or public policy shall not be countenanced. Article 12 further requires that a custom must be proved as a fact, according to the rules of evidence. IPRA, on the other hand, allows the use of customary law in settlement of disputes among IPs and determination of property rights. It has been advanced by Supreme Court Justice Jose Vitug that Congress should first make customary laws part of the stream of laws. Due process demands that non-indigenous persons be properly informed of these customary laws in light of the expansive effect of these practices.
The demand for economic development in the Philippines has brought forth another immediate concern of indigenous peoples settled in areas subject of exploration, development and utilization of natural resources. IPRA has provided as a safeguard the “free, prior and informed consent” instrument for indigenous communities in order to ensure consultation before any major economic activity is undertaken within the ancestral domains and ancestral lands. However, the preparedness of indigenous leaders to deal with technical economic agreements attending natural resources development is gradually being tested in recent years. It will require empowerment of these communities to deal with these agreements involving the private sector and government agencies.
Finally, the assertion of self-determination as a people is becoming more evident in the context of socio-cultural development of indigenous communities. Politically, however, indigenous peoples are gradually making a dent through the sectoral representation in Congress. Considerable work is in progress to realize a more effective participation at the electoral level.
1 G.R. No. 135385, December 6, 2000.
2 William Henry Scott, The Discovery of Igorots 75 (1977).
3 39 Phil 660 (1919).
4 68 Phil 12 (1939).
5 Two principal sources of the text of IPRA are I.L.O. Convention No. 169 and the U.N. Declaration on the Rights of Indigenous Peoples.
6 G.R. No. 135385, December 6, 2000.
7 53 L. ed. 594 (1909).
8 Mabo v. Queensland, 107 A.L.R. (1992).
9 Delgamuukw, < http://cstc.bc.ca/treaty/delgamKwsmKy.html > (August 30, 2000).