(Re)Claiming the Lands of their Ancestors

by Diana San Jose

For the longest time, indigenous peoples have been deprived of legal recognition to their territories. Our laws on land ownership, rooted in doctrines formed during colonial times, followed the theory that only lands covered by official documents and certificates of title are considered valid. All other lands not covered by such are classified as owned by the State. The adoption and subsequent integration of this colonial framework into our national policies has made the situation very difficult for IPs who hold no titles to the land and waters they use and occupy. As a result, they have been denied ownership of the very lands that sustain their life.

Deprivation of Lands

Alienation from their lands seems to stem from the legal mindset that a title is the only recognized proof of ownership to lands. Indeed, there exists a deep chasm between the concept of State-owned lands, with titles and legal documents to prove ownership, and the idea of land as an ancestral domain, communally owned by a group of people who have, for many generations, tilled and managed the land and its resources up to present time.

From the point of view of IPs, we are but mere stewards of land, owned by it rather than owners of it. This brings to mind the words of the brave and inspiring Kalinga pangat Macli-ing Dulag when he opposed the Chico River Basin Dam project backed by then-president Ferdinand Marcos during the 70s:

"You ask us if we own the land. And mock us. 'Where is your title?' When we query the meaning of your words you answer with taunting arrogance. 'Where are the documents to prove that you own the land?' Title. Documents. Proofs of ownership. Such arrogance to speak of owning the land, when you shall be owned by it. How can you own that which will outlive you?"

For many IPs, the absence of a title does not nullify their rights to the land they and their ancestors have been born into. The relationship they have to their lands and the care they put into its management is reason enough to claim stewardship to the land which brings them life. And yet, powerful groups conveniently ignore this with vested interests in indigenous peoples' ancestral domains. The encroachment of big companies who want their land for mining, logging and other projects is a serious threat to IPs. In the absence of legal instruments to defend their territories, IPs find themselves in a vulnerable position, at risk of being deprived of their lands and consequently, their culture, by outside forces.

The IPRA

In 1997, the Indigenous Peoples Rights Act or IPRA was passed to address the situation of the IPs. With the passage of the law, the government began to recognize indigenous peoples' communal and individual rights to land along with their rights to self-governance, empowerment, social justice and human rights. It also created the National Commission on Indigenous Peoples (NCIP) as its implementing agency, whose mandate is to "promote the interest and well-being of IPs with due respect to their beliefs, customs and traditions."

After ten years of the IPRA, the situation has not changed much for the IPs. They remain among the poorest of the poor, still at the fringes of national priorities. The cultural communities who have managed to evade foreign rule are the ones suffering from marginalization, poverty and displacement from their territories today.

Ancestral Domains and CADTs

The IPRA defines ancestral domains (ADs) as "territories which cover not only the physical environment but the total environment including the spiritual and cultural bonds to the area which the ICCs/IPs possess, occupy and use and to which they have claims of ownership". Simply put, ADs are the traditional territories of IPs that have been passed on from generation to generation. This includes lands, and in some cases, waters (as in the case of Palawan) which they have tilled and navigated for centuries. It is their source of life, the center of their economic, spiritual and social activities.

The rights to land of indigenous peoples are concretized through the acquisition of a title for their ancestral domain, or their CADT. The Ancestral Domains Office (ADO) of the NCIP is the office in charge of the identification, delineation and recognition of ancestral domains and lands. It is the lead office tasked to process the applications for Certificates of Ancestral Domain Titles (CADTs). For IPs, a CADT is important because it provides security of tenure to their lands and resources. It also allays their fear of being driven out from their territories.

Claim books

The claim book is the set of documents containing the mandatory requirements needed for IPs to prove their claims to their land. In June 2008, I became privy to these books as a technical assistant to the WB-IDF project seeking to enhance the standard systems and procedures of the NCIP on titling ADs. My first few weeks in AnthroWatch were spent, ironically, in a government agency undertaking document reviews of the then 71 approved CADTs. (As of October 2008, NCIP reported that there are now a total of 84 CADTs). While going through these books, it occurred to me how the thickness of each book seems to be a metaphor for the long and arduous process of titling ancestral domains.

The claim book, prepared by the community, the NCIP and in some cases, their assisting partners, is crucial to the titling process because it becomes the basis for NCIP's commission en banc to grant a CADT to the applicant community. Since it is an official document, quality should be ensured. After all, the claim book is the final output before the finished certificate itself. In my review, I noticed a lot of typographical and grammatical errors in some claim books. Even worse, some narratives were not culturally sensitive and were even written in a condescending tone. Those in charge of preparing the claim books should be careful and respectful of the culture they are writing about. They owe it to the IPs whose culture and identity are being described. Thankfully, most of the claim books were generally well written and ethnographic.

Also, since claim books contain data which are sacred to IPs such as names of ancestors, rituals and other indigenous knowledge systems and practices (IKSPs), care must be carried out to ensure that the information will not be used against their interests. It would be dangerous for the information to fall into the wrong hands.

Too many requirements

NCIP Resolution 119 series of 2004, which became effective on April 2005, provided an outline of the claim book. While Resolution 119 gave direction to the preparation of the claim book, it also lengthened the titling process. This resulted in a rather extensive set of documents, rich in data to the point of excess. What is startling is that the Implementing Rules and Regulations (IRR) of the IPRA did, in fact, set much simpler policies regarding the collection of evidences. Apart from the testimony of elders, it only required the submission of any one of the above listed proofs. If the Commission found the data insufficient, only then will they require the submission of additional proofs. But Resolution 119 reversed the procedures. It required the submission of all evidences, labeling them as mandatory requirements.

While the aim of the NCIP to make the claim books as comprehensive as possible is understandable, they seem to have forgotten that the main goal is to simplify the process so that IPs may be able to secure their lands. Burdening IPs with too many requirements poses doubts on the sincerity of the government in awarding land titles to indigenous peoples. If an agency is to truly serve the people, it must consider the technical capability of its constituents to comply with the requirements it sets. Agencies mandated to protect indigenous peoples rights must make its policies IP-friendly.

The struggle continues

In the face of powerful forces scouting their lands for profit and business, IPs must stand united in securing and protecting their ancestral domains. The path to claiming State recognition and ownership to the lands of their ancestors may prove to be a rather long journey, but I believe it is a worthwhile one.

Meanwhile, the struggle to defend land rights continues. With each awarded CADT, the hope that the State shall give to IPs what is due them becomes stronger. With each awarded CADT, a declaration of the rights of indigenous peoples to own and manage their lands and resources is made.

The CADT is as much of a challenge as it is a triumph. In fact, it may just be the start of an even bigger challenge: the sustainable management of IPs' ancestral domains and the strengthening of their community. Perhaps it would do us all good to remember that the end goal here is not the acquisition of the CADT per se, but the continued upliftment of rights and empowerment of indigenous peoples.