Understanding the indigenous people’s rights to their ancestral domain

(Last of two parts)

Under the Indigenous Peoples’ Rights Act of 1997 (IPRA), self-delineation shall be the guiding principle in identifying and delineating ancestral domains. As such, indigenous cultural communities (ICC) and indigenous people (IP) shall have a decisive role in all activities pertinent thereto.

The Sworn Statement of the Elders as to the scope of the territories and the agreements or pacts made with neighboring ICCs/IPs, if any, will be essential in determining these traditional territories. Meanwhile, the government shall take the necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto.

Thus, ancestral lands or domains, which may be owned by ICCs/IPs, shall refer to its total environment—that is, its physical environment, including the spiritual and cultural bonds to the areas which they possess, occupy, and use, and to which they have claims of ownership.

In this regard, the indigenous concept of ownership generally holds that ancestral domains are the ICC’s/IP’s private but community property, which belongs to all generations and thus, cannot be sold, disposed, or destroyed. It likewise covers sustainable traditional resource rights.

The ICC’s/IP’s rights to their ancestral domain shall include the: (a) right of ownership over lands, bodies of water traditionally and actually occupied by them, sacred places, traditional hunting and fishing grounds, and improvements introduced thereon; (b) right to develop lands and natural resources, subject to preexisting property rights within the ancestral domains; (c) right to stay in their territories, except when they have given their free and prior informed consent, and subject to the Philippines’ power of eminent domain; (d) right to be resettled in suitable areas should they be displaced through natural catastrophes; (e) right to regulate entry of migrants; (f) right to safe and clean air and water; (g) right to claim parts of reservations; and (h) right to resolve land conflicts in accordance with the customary laws of the area where the land is located.

Moreover, ICC’s/IP’s rights to their ancestral lands shall include the: (a) right to transfer land or property rights among members of the same ICC or IP, subject to their customary laws and traditions; and (b) should the land transfer to a non-member be tainted with vitiated consent, the right of redemption within a period not exceeding 15 years therefrom.

ICCs and IPs occupying an ancestral domain covered by a Certificate of Ancestral Domain Title (CADT) shall be responsible for: (a) maintaining ecological balance by protecting the flora and fauna, watershed areas, and other reserves; (b) restoring denuded areas, subject to just and reasonable remuneration; and (c) observing the IPRA.

Nevertheless, the ICC’s/IP’s rights to their ancestral domains by virtue of native title shall be recognized and respected. Formal recognition, when solicited by the ICC/IP, shall be embodied in a CADT, which shall recognize their title over the territories identified and delineated.

Meanwhile, individual members of the ICC who, by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of their ancestral lands in the concept of an owner since time immemorial or for a period of at least 30 years from the approval of the IPRA, and uncontested by the other members of the same ICC, shall have the option to secure title to their ancestral lands pursuant to the Land Registration Act of 1946, within 20 years from the approval of the IPRA.

Ancestral lands that may be covered by this title shall be agricultural in character and actually used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of 18 percent or more.

Unauthorized and unlawful intrusion upon, or any use of any portion of the ancestral domain, or any violation of the rights thereto, shall be punished pursuant to the concerned ICC/IP’s customary laws. But, the impossable penalty shall neither be cruel, degrading, or inhuman punishment nor death penalty or excessive fines.

Upon conviction, the offender may be imprisoned for less than nine months but not more than 12 months, or fined for not less than P100,000 nor more than P500,000, or penalized with both imprisonment and fine, upon the court’s discretion. Moreover, he shall be obliged to pay the aggrieved ICC/IP whatever damage it may have suffered because of his unauthorized and unlawful intrusion upon the ancestral domain.