Untitled Ancestral Land Ownership in the Philippines

A comprehensive legal analysis

Author’s note: This essay is written for scholarly reference and does not constitute legal advice. All citations are to Philippine primary sources (Constitution, statutes, rules, and decided cases) that are publicly available.

1. Introduction

“Untitled ancestral land” refers to territory traditionally possessed by an Indigenous Cultural Community or Indigenous Peoples (ICC/IPs) without a Torrens certificate of title but whose ownership is recognized in Philippine law as native title. Far from being terra nullius, these lands embody the pre-colonial sociopolitical universe of more than 110 ethnolinguistic groups. The tension, historically, is between (a) the Regalian doctrine—which vests ownership of all lands of the public domain in the State—and (b) the doctrine of native title, first validated in Cariño v. Insular Government (1909). Modern Philippine law attempts to reconcile the two through the 1987 Constitution and the Indigenous Peoples’ Rights Act of 1997 (RA 8371, “IPRA”).

2. Historical Background

Period	Key Legal-Historical Milestones
Pre-Hispanic	Communal concepts of land (kaingin, swidden rotation, riverine/fishing commons); leadership legitimized by stewardship.
Spanish era (1565-1898)	Regalian doctrine introduced via Recopilación de Leyes; titling required the composición or titulo real system, rarely accessed by upland peoples.
American era (1898-1946)	1909 Cariño decision: land held “from time immemorial” is private and never became public domain. Public Land Act (CA 141) retained Regalian presumption but exempted native title.
Post-Independence	1935 & 1973 Constitutions mention “communal lands”; 1987 Constitution art. XII §5 provides fullest protection for ICC/IPs and recognizes customary lands held “since time immemorial.”

3. Constitutional Framework

Art. II §22 (1987): State shall recognize and promote the rights of ICCs.
Art. XII §5: State, subject to ecological considerations, shall protect ICCs’ rights to ancestral lands/domains.
Art. XIII §6: Agrarian reform not to prejudice ICC/IP preference for communal lands.
Art. VI (Legislative) & Art. X (Local Government): Enablement of autonomous regions (e.g., Cordillera, Bangsamoro), which incorporate ancestral land provisions.

4. Principal Statutes and Regulations

Enactment	Salient Provisions on Untitled Ancestral Lands
RA 8371 (IPRA)	Recognizes ancestral domain (communal) and ancestral lands (individual/family). Establishes Certificate of Ancestral Domain Title (CADT) & Certificate of Ancestral Land Title (CALT). Creates NCIP; requires Free and Prior Informed Consent (FPIC).
NCIP Administrative Orders 1-Series-1998, 3-Series-2012, 9-Series-2021	Procedures for delineation, survey, and titling; updated FPIC guidelines.
RA 7942 (Mining Act) & DAO 2010-21	FPIC prerequisite for mineral agreements inside ancestral lands.
RA 6657 (Comprehensive Agrarian Reform Law)	CARP coverage may yield to ancestral domain claims; DAR-NCIP Joint AO 09-2006.
EO 75-2020	Directs all agencies to identify public agricultural lands for distribution; exempts duly recognized ancestral domains.
NIPAS Act (RA 7586, as amended by RA 11038)	Protected areas overlapped by CADTs require co-management agreements.

5. Ancestral Domain vs Ancestral Land

Criterion	Ancestral Domain (AD)	Ancestral Land (AL)
Scale & character	Communal territory (may span municipalities)	Smaller, traditionally possessed by individual or family
Title	CADT (communal, imprescriptible, inalienable)	CALT (private but subject to customary restrictions)
Alienation	Strictly non-transferable outside the ICC; usufructuary rights may be granted	May be transferred only intra-clan or by inheritance according to customs
Natural resources	State ownership of minerals subsists, but ICC has priority & FPIC rights	Same; FPIC still required

6. Untitled Possession and Native Title

6.1 Doctrine of Native Title

Cariño v. Insular Government (G.R. No. L-1909, Feb 23 1909): The Supreme Court, affirming the U.S. Supreme Court, ruled that “title by prescription from time immemorial” is equivalent to a perfect title outside of the Torrens system.
The 1987 Constitution codifies this doctrine by direct reference to possession “since time immemorial.”

6.2 Interaction with the Torrens System

Land Registration Act (Act 496, now PD 1529) requires judicial confirmation for public domain lands, not for native title lands.
IPRA §11 expressly states that CADT/CALT “shall not be subject to Torrens titling” but NCIP may coordinate with LRA for registration purposes as an administrative record.

6.3 Delineation & Survey

Self-delineation by ICC/IP.
Preliminary fact-finding by NCIP Ancestral Domains Office (ADO).
Publication & field consultations.
Approval by the NCIP en banc; registration in the Registry of Deeds for annotation only.

7. Rights of ICCs/IPs over Untitled Ancestral Lands

Ownership & Possession: Full ownership of surface and subsurface (except minerals), imprescriptible and indefeasible.
Self-Governance: Application of customary law; creation of Indigenous Political Structures (IPS).
Development & Resource Use: Priority rights to harvest, farm, log, or enter joint ventures; required “benefit-sharing” for external investors.
FPIC: Mandatory, written, and community-based consent for any project.
Right to Exclude: May deny entry or eject intruders through NCIP cease-and-desist orders.
Cultural Integrity: Protection of sacred sites, artifacts, and intangible heritage.
Environmental Sustainability: Obligation to conserve biodiversity consistent with lapat, muyong, pudong or equivalent customary conservation regimes.

8. Free and Prior Informed Consent (FPIC)

Element	Minimum Legal Requirement (NCIP AO 3-2012)
Free	No coercion, bribery, manipulation.
Prior	Before project feasibility or government approval, not post-hoc.
Informed	Disclosure in local language of scope, duration, cost-benefit, environmental impact.
Consent	Written resolution signed by recognized elders; 75 % quorum unless custom dictates otherwise.

Failure to obtain genuine FPIC renders government permits void ab initio (Cruz v. DENR cites this by analogy).

9. Limitations & Obligations

Ancestral lands, while privately owned, are inalienable to outsiders. Transfers contrary to custom are void (IPRA §8). Taxes: Real-property tax is generally exempt under RA 8371 §72, but local ordinances sometimes impose minimal fees for services. Eminent domain: Government may expropriate only for national defense or public welfare, with FPIC and just compensation.

10. Key Jurisprudence

Case	G.R. No. / Date	Holding Relevant to Untitled Ancestral Land
Cariño v. Insular Gov’t	L-1909 (Feb 23 1909)	Recognized native title independent of Torrens registration.
People v. Cayat	68 Phil. 12 (1939)	Early recognition of customary communal use for defense against liquor prohibition.
Cruz v. Secretary of DENR	G.R. No. 135385 (Dec 6 2000)	Upheld IPRA’s constitutionality; clarified that State retains minerals but ICCs enjoy priority use.
Sumangui v. Racho	G.R. No. 187340 (Jan 24 2018)	NCIP jurisdiction is primary over boundary disputes within ancestral domains.
Casas v. Republic	G.R. No. 205455 (Jun 17 2020)	Torrens title obtained in bad faith over ancestral land may be annulled despite indefeasibility doctrine.
Sumader v. RBI Lanuza Inc.	G.R. No. 200668 (Jan 15 2019)	Judicial ejectment action must be dismissed if NCIP has not yet ruled on ancestral land claim.

11. Administrative & Inter-Agency Interface

DENR–NCIP Joint AO 2003-01: Harmonizes environmental compliance and FPIC.
DAR–NCIP Joint AO 09-2006: Resolves overlaps between CARP and ancestral lands; DAR must defer to NCIP verification.
LRA-NCIP Memo Cir. 2015-01: Procedure for annotation of CADTs/CALTs to avoid double titling.
LGU Coordination: Provincial and municipal Comprehensive Land Use Plans (CLUPs) must integrate ancestral domain sustainable development and protection plans (ADSDPPs).

12. Interplay with Sector-Specific Laws

12.1 Mining & Energy

RA 7942 and RA 9513 (Renewable Energy Act) require FPIC; revenue-sharing minimum of 1 % of gross output plus royalty of not less than that agreed in FPIC.

12.2 Agrarian Reform

Agrarian reform beneficiaries who are ICC members may opt for communal ownership instead of individual CLOAs.

12.3 NIPAS & Protected Areas

ICCs can remain tenured migrants with usufruct rights; co-management board seats assured.

12.4 Infrastructure & Right-of-Way

RA 10752 (ROW Act) does not override IPRA; implementing rules require NCIP certification.

13. Dispute Resolution & Enforcement

Customary Mediation: Mandatory first resort; elders’ decision has the force of law unless repugnant to national policy.
NCIP Regional Hearing Office: Quasi-judicial; appeals to Commission en banc then CA via Rule 43.
Courts: Regular courts have jurisdiction only after exhaustion of administrative remedies (Doctrine of Primary Jurisdiction).
Special Remedies: Writ of Kalikasan or Writ of Amparo for environmental or human-rights threats.

14. Challenges

Overlapping Tenurial Instruments: CADT vs. mining, forestry, or Torrens titles.
Slow Delineation: <30 data-preserve-html-node="true" % of estimated ancestral domains are fully titled as of 2025.
Resource Pressure: “Green” energy and large-scale agriculture encroachments.
Climate Change & Disaster Risks: Upland erosion, loss of livelihoods.
Governance Capacity: Limited NCIP budget and technical personnel.
Legal Literacy & Enforcement: ICCs often lack access to lawyers and cadastral expertise.

15. Comparative & International Context

Instrument	Relevance
ILO Convention 169	Philippines not yet a party, but IPRA mirrors many provisions.
UN Declaration on the Rights of Indigenous Peoples (UNDRIP)	Adopted by PH; informs judicial interpretation of FPIC and self-determination.
ASEAN Human Rights Declaration (2012)	Art. 28(f) echoes protection of indigenous lands.

16. Reform Prospects (2025-onwards)

House Bill 8445 / Senate Bill 1533 (Pending): Proposal to convert NCIP into a full cabinet-level Department of Indigenous Peoples.
Digital Cadastre Integration: Land Registration Authority and NCIP blockchain pilot for CADT traceability.
Enhanced Royalty Floor: Proposed amendment to Mining Act raising royalty for ancestral lands to 5 %.
Climate Resilience Funding: Bills allotting 10 % of national disaster fund directly to ICC-led ecosystem restoration.

17. Conclusion

The recognition of untitled ancestral lands is no longer a benevolent concession but a constitutional imperative that re-calibrates the centuries-old Regalian paradigm. Through the IPRA, decisive jurisprudence, and evolving administrative mechanisms, Philippine law affirms that title by custom is as valid as title by paper. Yet, security on the ground depends on accelerating CADT/CALT issuance, harmonizing inter-agency rules, and empowering ICCs/IPs to wield their rights through genuine FPIC and self-governance. The legal landscape is thus robust but unfinished—its completion lies in the lived realization of ancestral stewardship, cultural integrity, and sustainable development.

End of article