On Paradigm Shifts in International and Philippine Law Regarding the Treatment of Indigenous Peoples And how these affect

Ancestral Land Rights in the Cordillera Janice Marie N. Domogan

In recent years, there have been significant and milestone breakthroughs in the numerous issues and concerns of indigenous people both locally and internationally.

This paper will focus mainly on the indigenous peoples in the Cordillera Administrative Region and their ancestral land rights, how the processing and disposition of ancestral land claims affect the government and the community at large.

The Cordilleran Indigenous Peoples

Numerous ethno linguistic groups have occupied the Cordillera region for more than five centuries. They have developed self-governing communities that are politically and economically independent from each other. Collectively, they are called Igorot.

The major ethnolinguistic groups are divided into the Isneg of Apayao, Itneg Tingguian of Abra, Kalinga, Bontok, Ifugao, Kankana-ey, and Ibaloy. Other groups asserting their ethnic identities include the Kalanguya (Ikalahan, Ikadasan), Ikarao, and Bago. These mountain people defied Spanish colonization for more than three centuries, and many continued to benefit from their relative autonomy in running their local community resources through their socio-economic and political institutions under American colonial rule, and even into the Philippine Republic.

Accordingly, Filipinos who did not fall under colonial rule - such as the indigenous peoples of the Cordillera and other non-Hispanicized Filipinos who were not absorbed into the mainstream Philippine society - have been referred to under a number of designations such as non-Christian, pagan, tribals, natives, cultural minorities, cultural communities, and the current,

more acceptable communities1.

terms

indigenous

peoples

or

indigenous

cultural

Developments in Indigenous Land Rights Internationally

There was a paradigm shift in international policies with regard to the rights of indigenous peoples.

Policies in past decades which focused on assimilation of indigenous peoples into the mainstream have been replaced by the recognition of indigenous peoples right of self-determination in consonance with other international conventions on human rights. This is what is advocated in International Labour Convention No. 169 (ILO Convention 169) which also recognizes indigenous peoples rights of ownership and possession over lands which they customarily occupy.

On September 13, 2007, by a vote of 143 in favor to 4 against2, with 11 abstentions, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which sets out the individual and collective rights of the worlds 370 million native peoples, calls for the preservation and strengthening of their cultural identities, and underlines their right to pursue development in keeping with their own needs and aspirations3.

1June

Prill-Brett, Preliminary Perspectives on Local Territorial Boundaries andResource Control, CSC Working Paper No. 06. Baguio, Philippines:Cordillera Studies Center, University of the Philippines, 1988. Namely Australia, Canada, New Zealand and the United States, who have now apparently reversed their previous positions.
2 3

http://www.un.org/News/Press/docs/2007/ga10612.doc.htm
3

Although the United Nations Declaration on the Rights of Indigenous Peoples is said to be a non-binding text4, it does have reaching practical and legal implications.

The United Nations Declaration on the Rights of Indigenous Peoples is said to be a reiteration of already existing rights in the context of indigenous peoples, and having been overwhelmingly adopted by the General Assembly, should be complied with in good faith5.

While the United Nations Declaration on the Rights of Indigenous Peoples is not a legally binding instrument upon the member states of the United Nations, it sets an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planets 370 million indigenous people and assisting them in combating discrimination and marginalization, according to representatives of the UN.

It has long been recognized in international practice that governments may see eye to eye on joint statements of policy or intention that do not establish legal obligations. In recent decades, this has become a common means of announcing the results of diplomatic exchanges, stating common positions on policy issues, recording their intended course of action on matters of mutual concern, or making political commitments to one another. These documents are sometimes referred to as non-binding agreements, gentlemen's agreements, joint statements or declarations. The title of the document is not determinative as to whether it establishes legal obligations, but rather the intention of the parties, as mirrored in the language and framework of the document, the circumstances of its conclusion, and the explanations given by the parties. http://www.state.gov/documents/organization/65728.pdf
4

Sedfrey M. Candelaria, Comparative analysis on the ILO Indigenous and Tribal Peoples Convention No. 169, UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the Indigenous Peoples Rights Act (IPRA) of the Philippines; Manila: International L abour Organization, 2012.
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The Declaration likewise makes a forward leap on the prickly issue of land and resource rights. The essential idea is that indigenous peoples have the lawful and unlimited right of ownership of their lands, waters and all related resources. This provision would, if implemented, stop the innumerable legal fictions and prejudiced devices which in almost all countries have been used to refuse indigenous peoples the full, legal ownership of their territories and resources. The matter of rights to land is expressed two times, first in language reflecting indigenous values and relationships and then in more legalistic language6.

Development of Philippine Legal Framework involving Indigenous Peoples

The advance regarding how indigenous peoples are treated within a certain legal framework has also gone through the same paradigm shift as the international community.

There have been significant legal developments pertaining to the rights and interests of indigenous peoples, who were, at first regarded as peoples with low civilization and incapable of self-protection and governance and who needed gargantuan state interference in order that their interests be protected7.
Robert T. Coulter, Commentary on the Commentary on the UN Draft Declaration on the Rights of Indigenous Peoples, www.culturalsurvival.org/publications/cultural-survivalquarterly/united-states/commentary-un-draft-declaration-rightsindige#sthash.xfF4Vhyi.dpuf.
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Case and point, the Decision in Rubi v. Provincial Board of Mindoro, G.R. No. L14078, March 7, 1919 where a group of Manguianes lamented their confinement against their will in a reservation at Tigbao, Mindoro by virtue of a Resolution promulgated by the Provincial Governor in accordance with the Administrative Code. In upholding the Resolution and the Administrative Code, the US Supreme Court through Justice Malcolm stated in part:
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During the American period, several land laws were passed to the detriment of indigenous communities.

These include the Land Registration Act of 1902, which required the acquisition of a Torrens title as proof of land ownership, and the Public Land Act of 1905, which declared all unregistered lands and those without Torrens title public lands.

The previous unsure approach of the Philippine national government toward the assertion of land rights by indigenous communities is reflected in legislation with contradictory intentions. One group of laws and administrative orders has recognized the rights of indigenous peoples to the land they have occupied. The more salient legislations include (i) Executive Order 180 of 1950, authorizing the Bureau of Lands, Forestry, and Soils and the Mountain Province Development Authority to grant Igorots the right to acquire titles over lands they had occupied and cultivated within the Mount Data National Park and the Central Cordillera Forest Reserve; (ii) the Manahan Amendment of 1964, which reset the legal viability of the period of possession of untitled agricultural land by national cultural communities from 1945 to 1955; and (iii) Administrative Order 11 of 1970 of the Bureau of Forestry, providing that all forest concessions, shall be subject to the private rights of cultural minorities within the concession.
Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country.
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The other body of law has endeavored to protect the national patrimony even though there was a possibility that the state would recognize indigenous communities live in the affected areas. This includes laws setting aside forest reserves, watersheds, and national parks.

Of particular interest to the Cordillera region is Proclamation 217 that established the Central Cordillera Forest Reserve in 1929 and Proclamation 634 that established the Mount Data National Park in 1940 covering 5,513 hectares of territory in Benguet and Mountain Provinces. Other laws passed after Philippine independence in 1946 include the Forestry Reform Code of 1974 and the Revised Forestry Code of 1975. These declared that all lands of the public domain that had a slope of 18% or more would be permanent forests or forest reserves. This policy negates the classification of most of the centuries-old highland terraced pond fields found in wet-rice cultivating villages of the Cordillera, which should generally be categorized as agricultural land. There was also Presidential Decree 1559 of 1978, which declared that kaingeros (slash-and-burn dwellers), squatters, cultural minorities, and other occupants of public forests or unclassified public land shall, whenever the best land use of the area so demands, be ejected and relocated to the nearest government settlement area8.

The 1935 Constitution had no explicit and specific statement on the matter while the 1973 Constitution had only one provision. In contrast, the 1987 Constitution contains a significant number of provisions on indigenous peoples and officially recognizes the concept of ancestral land and ancestral domain. These provisions reveal the discrepancies between civil law and customary law as the fundamental issue underlying state policies on indigenous peoples.

June Prill-Brett & Lorelei Mendoza, Chapter 2: Communal Land Management in the Cordillera Region of the Philippines, Land & Cultural Survival: The Communal Land Rights of Indigenous Peoples in Asia, Mandaluyong City, Philippines: Asian Development Bank, 2009.
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Attempts to balance these perceived antagonisms are apparent in provisions like Section 22 of Article II of the present Constitution which provides that the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Specific policy shifts regarding indigenous peoples are also evident with regard to community-based management, in recognizing the value of indigenous knowledge and practices in sustainable development and toward ensuring the participation of indigenous peoples in relevant local and national policy bodies.

Treatment of Ancestral Land Claims prior to the Indigenous Peoples Rights Act of 1997

As regards ancestral lands and ancestral domains, the major legal developments took place within the framework of the Department of Environment and Natural Resources (DENR).

DENR Administrative Order No. 2 (DAO 2) provided for the identification, delineation and recognition of ancestral land and domain claims leading to the issuance of a Certificate of Ancestral Domain Claim (CADC) and Certificate of Ancestral Land Claim (CALC). Although CADCs and CALCs are significant tenurial instruments, these were not grants of title.

DAO 2 recognized indigenous property regimes and the rules of indigenous land tenure systems. Within this legal context, ownership and/or usufruct right is vested in persons or groups not through a land grant from the state but because of the evidence of indigenous ownership and possession of
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the land over a lengthy and unbroken period of time, which bestows natural rights or native title to the occupants.

The main purpose of DAO 2 was to protect and maintain the integrity of ancestral domains and to guarantee that customs and traditions of indigenous cultural communities are recognized. Furthermore, it provided the basis for identifying and delineating ancestral domains and ancestral land claims, and formulated strategies for effective management of such lands.

The award of a CALC provided the legal basis for the recognition of ancestral lands and ancestral domains. Ancestral domain claims are made by indigenous cultural communities, and ancestral land claims are made by households or clans. Although the certificate is a claim rather than a title, it vested indigenous communities with the legal basis to confront the actions of government agencies or development programs that assert the states prerogative to claim indigenous peoples lands that lack paper titles.

The recognition of ancestral domain of indigenous communities was, and still is necessary to provide legal protection for indigenous communities in their claims on forest resources against outside forces, especially state interventions and large-scale commercialization. Indigenous cultural communities were now legitimate occupants on lands they had traditionally occupied, possessed, and controlled over many generations9.

There were many important developments about indigenous peoples prior to the advent of the Indigenous Peoples Rights Act, such as Section 16 of the Mining Act. This provision of law required that the indigenous peoples concerned give their prior consent before mining activities can be undertaken in their ancestral lands.
Steve Rood, Protecting Ancestral Land Rights in the Cordillera. Peace,Conflict Resolution and Human Rights Research Report 94-001. Quezon City: University of the Philippines Press and the Center for Integrative and Development Studies, 1994.
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With regard to ancestral domains, the 1987 Constitution recognizes this concept in laws like RA 6734, the Organic Act for the Autonomous Region of Muslim Mindanao, and in rules like DAO 2. Furthermore, significant principles in our Philippine laws prior to the Indigenous Peoples Rights Act appear to echo international law principles, including:

the acknowledgment of and deference to customary laws, specially with regard to determining the extent of their lands and domains; their right of effectual contribution in the local and national levels; the recognition of their part in environmental management; the right to be consulted with respect to activities affecting them; the right to benefit from utilization of natural resources within their ancestral lands and domains; the right to be fairly compensated for any damages sustained as a result of certain activities undertaken within their ancestral lands and domains10.

The Indigenous Peoples Rights Act of 1997

Prior to the United Nations Declaration on the Rights of Indigenous Peoples, in 1997, the Philippines introduced the Indigenous Peoples Rights Act (IPRA), which was largely based upon ILO Convention 169.

Former President Fidel V. Ramos, upon signing the IPRA into law, stated that the pioneering legislation11 was designed to stop discrimination against indigenous peoples and hasten their emancipation from the bondage of
Maria Cecilia G. Dalupan, A Discussion Paper on the Mining Industry and the Indigenous Peoples Rights Act, Quezon City: TAPS, 2000.
10 11

The first of its kind in Southeast Asia

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inequity which had bred poverty, ignorance and dispossession. According to the former president, the problem had to be dealt with unswervingly at the roots, meaning the issue of land ownership: To our indigenous peoples and to many others in our country, who suffered from such exploitation by the elite and the oligarchs, land is a way of life. The value of land goes beyond economics and encompasses the entire spectrum of political, social, cultural and religious aspects of Philippine life. For so long, the superior forces of the lowlanders had deprived the members of our cultural communities not only of their ancestral lands but also of their livelihood and their way of living. Those who resisted through force were called bandits while those who did not adjust to the mores of the lowlands were deemed as savages and were marginalized just because they were different. Mounting injustice against our indigenous cultural communities bred a host of other problems, affecting both rural and urban centers, even as it diminished the rights and opportunities of our indigenous peoples.12

The IPRA provides indigenous peoples with a wide range of rights over ancestral domains: indigenous peoples have the right to ownership over their lands and resources, the right to occupy and develop their lands, the right to combat displacement, and the right to control the entry of migrants13.

Who are considered Indigenous Peoples in the Philippines?

The term indigenous peoples is defined by Section 3(h) of Republic Act No. 8371, the Indigenous Peoples Rights Act (IPRA), as follows:

x x x a group of people or homogenous societies identified by selfascription and ascription by others, who have continuously lived
The Road to Empowerment: Strengthening the Indigenous Peoples Rights Act Volume 1: New ways, old challenges Manila: International Labour Organization, 2007.
12 13

Sec. 7, Indigenous Peoples Rights Act.

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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, nonindigenous religions and cultures, became 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;

Denominated otherwise as indigenous cultural communities, they are situated in diverse lowland, forest and coastal areas throughout the country.

The areas which indigenous cultural communities occupy are generally regarded by them as their ancestral domains or ancestral lands14, both of which are terms also defined under the IPRA, the nature and extent of which are the subject of on-going debate.

Jus Regalia v. Native Title

Not long after its enactment into law, in 1998, the constitutionality of the Indigenous Peoples Rights Act was questioned before the Supreme Court.
Which terms are not used interchangeably since they connote a different legal meaning, especially when it comes to transfer and disposition.
14

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The source of the claim was that the law contradicted the Regalian doctrine15 under which the state has full ownership of the public domain and natural resources, and that the granting of indigenous rights on those territories amounted to an unlawful deprivation of the states ownership over these lands. Hence, the kilometric decision of the High Court in Cruz v. DENR Secretary.

In an unusual decision, the case was dismissed owing to the rules of civil procedure, due to an even split in the court, which was maintained after a second deliberation.

The main argument in favor of the constitutionality of the IPRA was that indigenous land rights predated the acquisition of sovereignty by Spain and were private property rights that were never a part of the states public domain and thus, such lands were not affected by the Regalian doctrine16.

The Regalian Doctrine, a concept dating back to the days of the Spanish monarchy that still underpins the Philippines legal system of land ownership, declares that the state owns all natural resources. As Article 12, Section 2 of the 1987 Philippine Constitution says:
15

All lands of the public domain, waters, mineral, 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. Under this system of land ownership, lands are generally classified as private or public. Private lands are lands that have been segregated from the general mass of the public domain by any form of grant by the state. Public lands refer to all lands that are not acquired by private persons or corporations and are generally classified as agricultural or nonagricultural lands. Only lands classified as agricultural may be declared as disposable and eligible for private ownership. Cruz v Secretary of the Environment and Natural Resources, GR No 135385, December 6, 2000.
16

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How the IPRA recognizes ancestral land holdings

The indigenous concept of ownership, as characterized in the IPRA, reflects the view that ancestral domains and all resources found therein serve as the material bases of cultural integrity.

It covers sustainable traditional resource rights, which refer to the right to sustainably use, manage, protect and conserve the land, resources and sites within their ancestral domains and lands according to the indigenous peoples knowledge, beliefs, customs and traditions. Accordingly, the IPRA defines ancestral domains as the indigenous peoples private but community property which belongs to all generations and therefore cannot be sold, disposed of or destroyed.

The IPRA provides that ancestral domains and lands cover not only the physical environment but the totality of the environment including the spiritual and cultural bonds to the areas which the indigenous peoples possess, occupy and use and to which they have claims of ownership.

The idea of ancestral domain, which includes natural resources, is much broader than the concept of ancestral land which refers to areas that have already been subjected to occupation or cultivation.

The IPRA qualifies the definitions of ancestral domains and lands with Section 56 thereof, which provides that property rights within the ancestral domains already existing and/or vested upon effectivity of the IPRA shall be recognized and respected.

Certificates of Ancestral Domain and Land Titles (CADT and CALT) are titles formally recognizing the rights of possession and ownership of
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indigenous peoples over their ancestral domains and lands, respectively. Formal recognition of these rights by virtue of Native Title may also be embodied in the CADT.

The IPRA defines Native Title as pre-conquest rights which, as far back as memory reaches, have been held under a claim of private ownership, have never been public lands and are thus indisputably presumed to have been held that way since before the Spanish Conquest.

CADT refers to the title formally recognizing possessory right of indigenous peoples over their ancestral domains. CALT, on the other hand, refers to a title formally recognizing ancestral rights. However, there is a difference between ancestral land and ancestral domain, and the corresponding CADT and CALT issued by virtue of the recognition of these ancestral claims. Ancestral lands can be transferred under the circumstances in Section 8(a) of the IPRA. On the other hand, ancestral domains cannot be transferred because its ownership specifically excludes the right to sell, dispose, or destroy.

Ancestral Domains

Ancestral Lands

Section 56 of the IPRA law, refers to Subject to Section 56 of the IPRA law, all areas refers to land Generally belonging to Indigenous Cultural Communitiess/Indigenous Peoples comprising lands, inland waters, coastal areas, and natural resources therein; held under a claim of ownership, occupied or possessed by occupied, possessed and utilized by individuals, families and clans who are members of the Indigenous Cultural Communitiess/Indigenous Peoples since time immemorial, by themselves or through their predecessors-ininterest;
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Indigenous Cultural Communitiess/Indigenous Peoples, 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

held under claims of individual or traditional group ownership; and held 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

Inclusions Ancestral lands; Forests and 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

Inclusions Residential lots; rice terraces or paddies; private forests; swidden farms; and tree lots. 17

17

Maria Cecilia G. Dalupan, supra.

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resources; and lands which may no longer be exclusively occupied by Indigenous Cultural Communitiess/Indigenous Peoples but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of Indigenous Cultural Communitiess/Indigenous Peoples who are still nomadic and/or shifting cultivators (Sec. 3a)

In the development or exploitation of natural resources within ancestral domains, the indigenous people concerned shall have priority rights thereto. Be that as it may, they may allow a non-member to conduct such activities subject to term limits and to the condition that a formal written agreement is entered into with the indigenous peoples or indigenous cultural community.

The IPRA further provides that indigenous peoples/indigenous cultural communities shall have the right to stop, suspend or prevent any project that has not satisfied the requirement on the consultation process necessary in complying with the Certification Precondition.

This precondition states that no government agency may grant or renew any concession or enter into any production-sharing agreement, without prior certification from the National Commission on Indigenous Peoples (NCIP) that the area affected does not overlap with any ancestral domain.
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Under the IPRA, Indigenous peoples also have the right to manage and conserve natural resources for future generations and the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws.

Role of the National Commission on Indigenous Peoples

The IPRA established the National Commission on Indigenous Peoples, or the NCIP, as an independent agency under the Office of the President. 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 indigenous peoples/indigenous cultural communities.

The Commission is composed of seven Commissioners, all belonging to indigenous cultural communities, among its significant responsibilities are to:

issue certificates of ancestral land/domain title enter into contracts, agreements, or arrangements, with government or private agencies or entities as may be necessary to attain the objectives of the law, subject to existing laws and issue appropriate certificates as a pre-condition to the grant of permit, lease, grant, or any other similar authority for the disposition, utilization, management and appropriation by any private individual, corporate entity or any government agency, corporation or subdivision thereof on any part or portion of the ancestral domain taking into consideration the consensus approval of the ICCs/IPs concerned.

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The ancestral claims of the Igorot in the Cordillera

In the Cordillera, the claim to ancestral land and ancestral domain ownership is legally no different from the land claims of other indigenous peoples in the Philippines and other parts of the world.

On one hand, these peoples claim rights to the land as ancestral lands, which they have tilled and which have sustained them for generations. On the other hand, the national government, which had previously been pursuing a policy of integration, has promulgated and attempted to implement land policies that have displaced and/or dispossessed the indigenous communities of their ancestral lands18.

Indigenous land tenure systems define practices of right to use and control over resources by individuals, clans, and communities.

These customs among indigenous cultural communities are circumscribed and modified by varying economic and political transformations as well as national land laws within a diversity of historical and social conditions19.

A main characteristic of land ownership in the Cordillera is the rule of non-alienation of lands to individuals or groups who do are not part of, or do not belong to the community. Land transfers are strictly governed by the following rule: land is first offered to the immediate family, then to close kin, before it is finally offered to other members of the community20.
18 19 20

Steve Rood, supra.

June Prill-Brett & Lorelei Mendoza, supra. Anavic Bagamaspad, and Zenaida Hamada-Pawid. A Peoples History of Benguet. Benguet: Baguio Printing and Publishing Co., Inc., 1985.
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Another important characteristic of an ancestral domain is the existence of operational concepts of territorial boundaries and resource control. This is confirmed through the existence of jural rights, duties, and obligations that preside over the administration of communal property resources within an ancestral domain. The communities which have exercised the idea of domain include the rule of exclusion, which is proof of territorial and cultural integrity21.

Nearly one-fifth of the land area in the Cordillera region is part of ancestral domain. Beneficiaries are indigenous peoples from the following ethnolinguistic groups: Ayangan, Bago, Ibaloi, Isneg, Iwak, Kankanaey, Kalanguya, Tuwali, Tingguian and others22.

Genuine CALTs (?)

Unfortunately, not all genuine ancestral land claimants are benefitted by the advent of the IPRA.

There are some unscrupulous members of indigenous cultural communities who are neither members of the local community nor bona fide occupants by native title who feign legitimate claims over large tracts of land23.

June Prill-Brett, Indigenous Land Rights and Legal Pluralism among Philippine Highlanders. Law & Society Review 28(3) Special Issue: Law and Society in Southeast Asia, 1994.
21 22 23

Collectively called Igorot.

For instance, and at present, this writer is counsel for the heirs of a legitimate ancestral land claimant in the City of Baguio, who has descended from original settlers in the old
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Furthermore, and what is worse, these persons do not intend to hold the land in the concept of native title.

Professor June Prill-Brett has brought to the fore a tactic occasionally employed by some indigenous peoples, particularly in the newly established communities where the forest was originally perceived as open access (while considered to be public by the government), is through the misrepresentation of local occupancy in order to secure particular advantages offered by the IPRA law.

If the government believes that all indigenous communities own ancestral domains24, and are the proper entities to apply for titles through CADTs, then the people will use this belief as an argument to help them secure the CADT. Unfortunately, this has been the case with the ancestral domain claims of communities along the Mt. Data National Park and the contested areas of Mt. Pulag in Benguet25.

Kafagway, and who was able to secure an approved survey of his ancestral land claim in 1922. The protesters to the ancestral land claim are Ifugao migrants, who are not genuine native indigenous peoples to the City of Baguio. The concept of ancestral domain does not apply to all Philippine indigenous people. Not all indigenous cultural communities share a common notion of territory. On the one hand, there are groups such as those in the Cordillera who have concepts of ancestral domain, while on the other, the nomadic Agta of northern Sierra Madre have a fluid concept of territoriality. Their domain moves as the band transfers from place to place. There is no concept of permanent territory. Nestor Castro, Three years of the Indigenous Peoples Rights Act: Its impact on indigenous communities. KASARINLAN, Philippine Quarterly of Third World Studies 15(2) (Special Issue on Indigenous Peoples): 35-54, 2000.
24

June Prill-Brett, The Interaction of National Law and Customary Law in Natural Resource Management in the Northern Philippines. Pp. 363-381 in Rajendra Pradhan (ed.), Legal Pluralism and Unofficial Law in Social,Economic and Political Development, Papers of the XIIIth International Congress, 7-10 April, 2002, Chiang Mai, Thailand, Vol. 1. Kathmandu:International Centre for the Study of Nature, Environment and Culture.
25

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Jeovani Reyes, Secretary General of Koalisyon ng Katutubong Samahan ng Pilipinas (KASAPI) cites the Happy Hallow Ancestral Domain as another obvious case of displacement of indigenous people from their territory. Happy Hallow is an Ibaloi community lying on the extreme eastern side of Baguio City.

The passage of IPRA in 1997 resulted in the turnover of all ancestral domain claims from the DENR to NCIP. Despite the IPRA, the period 1998 to 2000 saw a suspension on land and ancestral domain claims.

However in 2001, 197 midnight CALTs were issued to 757 claimants. In 2006, the CADT for Happy Hollow was issued. The Happy Hollow CADT was challenged as it excluded original Ibaloi inhabitants from their time immemorial ownership. The original inhabitants were displaced and replaced by non-Ibalois who are twentieth century migrants. According to Reyes, this happened through intricate processes and sometimes dubious genealogies26.

Not only original ancestral lands and domains are in jeopardy in the City of Baguio. Watersheds and forest reserves are now being presently claimed with pending applications in the NCIP, and some forest reservations have already been titled despite blatant violations in the procedure for the titling and recognition of ancestral lands, especially in the City of Baguio, which is governed by a special provision under the IPRA.

At present, the City Government of Baguio seeks to protect only legitimate ancestral claims and bona fide claimants.

26

The Struggle Continues: Uphold the Rights of Indigenous Peoples, IAG Policy Brief, 2011.
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Such claims are those Igorot claims classified as alienable and ancestral land as per section 7827 of the IPRA.

Section 78 also provides an exemption that prior land rights and titles recognized and/or acquired through any judicial, administrative or other processes before the effectivity of this Act shall remain valid which means that Igorot claims recognized before November 1997, the date of IPRA implementation, are the only claims which are qualified as ancestral claims28.

In Wright Park alone, various National Government properties that include the Senate Presidents and the House of Representative Speakers cottages are already covered by an existing CALT, including some portions of the presidential Mansion House compound.

A CALT was likewise issued over portions of the Forbes Park reservation. The City Government of Baguio is presently questioning these claims, since the application for the issuance of CALTs over these lands have not been filed prior to the effectivity of the IPRA, in clear violation of Sec. 78.

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Sec. 78 of the IPRA is quoted in toto: SEC. 78. Special Provision. The City of Baguio shall remain to be governed by its Charter and all lands proclaimed as part of its town site reservation shall remain as such until otherwise reclassified by appropriate legislation: Provided, That prior land rights and titles recognized and/or acquired through any judicial, administrative or other processes before the effectivity of this Act shall remain valid: Provided, further, That this provision shall not apply to any territory which becomes part of the City of Baguio after the effectivity of this Act. (emphasis and underscoring supplied)

Mayor opposes fake ancestral land claims, http://www.sunstar.com.ph/baguio/localnews/2012/07/17/mayor-opposes-fake-ancestral-land-claims-232371

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Furthermore, there was likewise a resolution from the NCIP stating that no ancestral land title should be issued in the city without prior clearance from the Baguio Ancestral Land Clearing Committee (BALCC) composed of the local government, DENR and NCIP, among other agencies. But even without the required clearance, there was still a CALT issued over Forbes Park.

The CALTs, which are now in the center of several reversion cases filed by the National Government through the Office of the Solicitor General to nullify these titles improvidently issued by NCIP, are now pending with the Court of Appeals.

Conclusion

The international community and the Philippines have truly come a long way in their quest to protect and vindicate the rights of indigenous peoples who long since been marginalized, discriminated against and ignored.

In the Philippines, while some IPRA organizations have tried with varying degrees of success to use IPRA as an instrument to legalize indigenous peoples claims to their ancestral lands and domain, the IPRA has been criticized for its inherent flaws and emergent implementation problems. Based on experiences in the operation of the CADCs awarded, many issues and challenges have been encountered.

The persons upon whom CALTs and CADTs have been previously improvidently issued do not necessarily act in the best interest of the land, but are motivated by personal interests that no longer jibe with long cherished customs and traditions.

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Mechanisms should be strengthened or put in place to ensure that in the screening process of determining the persons to whom CALTs or CADTs are issued, the indigenous people applicants are indeed bona fide settlers over the lands and domains they intend to claim.

Aside from obtaining the needed technology and skills for its employees and personnel especially at the local level, the NCIP should endeavor to fortify its competency to effectively pursue its mandate, be able to assist indigenous peoples in implementing their ancestral domain protection plans and be more responsive to the needs of the countrys indigenous population. Thus, apart from training their staff on state-of-the-art survey technology and procuring the necessary equipment to speed up the demarcation of ancestral domains and lands, it is also important to conduct training on community organizing and development work among the staff at the local level (in order to be able to weed out bogus ancestral land claimants).

The protection of ancestral lands and domains as well as lands in general, requires vigilance of the community, the local government and the NCIP to ensure that bogus claims are screened and denied and that the bogus claimants are prosecuted accordingly.

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