One of the bigger issues for the past couple of days is the Memorandum of Agreement (MOA) on Ancestral Domain (for the Bangsamoro People in certain parts of Mindanao) between the Philippine Government and the Moro Islamic Liberation Front (MILF). Petitions have been filed with the Supreme Court assailing the validity of the MOA, so we could not really discuss it. Let’s have a general discussion on ancestral lands and ancestral domains.
Is there a Constitutional basis for ancestral domains? Yes. Section 5 of Article XII of the Constitution provides:
The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.
Is there any law which covers ancestral domains? Yes. Under Republic Act No. 8371, also known as “The Indigenous Peoples Rights Act of 1997,” the State recognizes and promotes certain rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) within the framework of the Constitution.
What is “Ancestral Domain”? It 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. It shall include 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. It is subject to property rights within the ancestral domains already existing and/or vested upon effectivity of R.A. 8371.
What is “Ancestral Land”? It refers to land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. It is also subject to property rights within the ancestral domains already existing and/or vested upon effectivity of R.A. 8371.
What are the rights to Ancestral Domain? Certain rights of ownership and possession of ICCs/IPs to their ancestral domains are recognized and protected, including the right:
1. Of ownership. This includes lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains.
2. To develop, control and use lands and natural resources. This includes the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws.
3. To stay in the territories. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain.
4. To regulate entry of migrants. ICCs/IPs have the right to regulate the entry of migrant settlers and organizations into the domains.
5. To claim parts of ancestral domains previously reserved for various purposes, except those reserved and intended for common and public welfare and service.
6. To resolve land conflicts in accordance primarily with customary law.
Who has priority over natural resources within ancestral domains? The ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years, provided that a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation.
Do the ICCs/IPs have the righ to self-governance? Yes. ICCs/IPs have the inherent right to self-governance and self-determination. The State respects the integrity of their values, practices and institutions. The State shall guarantee the right of ICCs/IPs to freely pursue their economic, social and cultural development. The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as be compatible with the national legal system and with internationally recognized human rights.
Are lands lands certified to be ancestral domains covered by real estate taxes? These lands are exempt from real property taxes, special levies, and other forms of exaction except such portion of the ancestral domains as are actually used for large-scale agriculture, commercial forest plantation and residential purposes or upon titling by private persons.
What are the applicable laws? Customary laws, traditions and practices of the ICCs/IPs of the land where the conflict arises shall be applied first with respect to property rights, claims and ownerships, hereditary succession and settlement of land disputes. Any doubt or ambiguity in the application and interpretation of laws shall be resolved in favor of the ICCs/IPs.
What is the process of delineation of ancestral domains? The identification and delineation of ancestral domains shall be done in accordance with the following general procedure:
a. Petition for delineation. The process of delineating a specific perimeter may be initiated by the National Commission on Indigenous Cultural Communities/Indigenous Peoples (NCIP) with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs.
b. Delineation proper. The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
c. Preparation of maps. – On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein.
d. Report of investigation and other documents. A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP.
e. Notice and publication. A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least 15 days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for 2 consecutive weeks to allow other claimants to file opposition thereto within 15 days from date of such publication. In areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute. Mere posting shall be deemed sufficient if both newspaper and radio station are not available.
f. Endorsement to NCIP. Within 15 days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence. The Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification.
g. Issuance of Certificate of Ancestral Domain Title (CADT). ICCs/IPs whose ancestral domains have been officially delineated and determined by the NCIP shall be issued a CADT in the name of the community concerned, containing a list of all those identified in the census.
h. Registration of CADTs. The NCIP shall register issued certificates of ancestral domain titles and certificates of ancestral lands titles before the Register of Deeds in the place where the property is situated.
What are not covered by this process? The delineanation process shall not apply to ancestral domains/lands already delineated according to DENR Administrative Order No. 2, series of 1993, nor to ancestral lands and domains delineated under any other community/ancestral domain program prior to the enactment of R.A. 8371. ICCs/IPs whose ancestral lands/ domains were officially delineated prior to the enactment of the law shall have the right to apply for the issuance of a Certificate of Ancestral Domain Title (CADT) over the area without going through the process.