1 ANCESTRAL DOMAIN EXEMPTION/EXCLUSION TEMPLATE I.

INTRODUCTION This template may serve as a guide for cases where the main issue involves the application for exclusion/exemption of a landholding for being an ancestral domain/land of indigenous cultural communities/indigenous peoples (ICCs/IPs). As of date, the applicable rules and regulations of the Department of Agrarian Reform (DAR), Department of Environment and Natural Resources (DENR), Land Registration Authority (LRA), and from the National Commission on Indigenous Peoples (NCIP) have yet to be issued. In fact, the DAR has yet to issue administrative issuances applicable to petitions for exclusion grounded on the claim of ancestral domain. The complex and delicate nature of conflicting claims of agrarian farmer beneficiaries and the frequent, if not, inevitable overlap of jurisdiction of the above government agencies over cases involving lands claimed by indigenous peoples to be their ancestral lands necessitate the drafting of comprehensive and detailed rules and regulations on said matter. In the meantime, the lack of comprehensive rules and regulations issued by the concerned agencies of the Government do not excuse the failure to adjudicate and implement the law concerning agrarian reform vis--vis Republic Act (R.A.) No. 8371, otherwise known as the Indigenous Peoples Rights ACT (IPRA). In this regard, existing and applicable rules governing Agrarian Law Implementation cases shall be applied subject to the list of documents hereunder provided. II. CHECKLIST OF DOCUMENTARY REQUIREMENTS 1. Certification from the NCIPthat the applicant is a duly identified member of the the ICC/IP claiming the subject landholding as its ancestral land or domain and that the applicant had been duly authorized by the ICC/IP concerned in accordance with the customary laws of the same; 2. Certified True Copy of any of the following: Certificate of Ancestral Domain Title (CADT) issued by the NCIP; Certificate of Ancestral Land Title (CALT) issued by the NCIP; Certificate of Ancestral Domain Claim (CADC) issued by the DENR; Certificate of Ancestral Land Claim (CALC) issued by the DENR; Certificate that there is a pending application for the issuance of a CALC or CADT; 3. Certification that he/she is a member of the an ICC/IP; III. JURISDICTION

2 A. If the DAR deems it proper to take jurisdiction over the case, the following DAR Administrative Orders (A.O.s) issuances for application of exclusion/exemption shall be applied on the ground that the subject land is an ancestral domain/land:

A.O. No. 3 Series of 2003 (Date of Effectivity- February 8, 2003)

Section 7. The Regional Director shall exercise primary jurisdiction over all agrarian law implementation cases.

A.O. No. 10, Series of 1994 (Date of Effectivity- September 30, 1994) Regional Director has primary jurisdiction to approve or disapprove application for exemption for all land sizes

A.O. No. 13 Series of 1990 (Issued August 30, 1990, Effectivity Date 10 days after publication) Regional Director has primary jurisdiction to approve or disapprove application for exemption from CARP coverage for lands five (5) hectares and below. For lands exceeding five (5) hectares, the Undersecretary for Legal Affairs shall have jurisdiction to approve or disapprove the application. For lands exceeding fifty (50) hectares, the Secretary. B. The DAR may, however, refuse to take jurisdiction over the case on the following grounds: Jurisdiction over all claims and disputes involving rights of indigenous cultural communities or indigenous peoples belongs to the NCIP pursuant to Section 66 of R.A No..8371, which reads, as follows: Section 66. Jurisdiction of the NCIP. The NCIP, through its regional offices, shall have jurisdiction over all claims and disputes involving rights of ICCs/IPs. Provided, however, That no such dispute shall be brought to the
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3 NCIP unless the parties have exhausted all remedies provided under their customary laws.For this purpose, a certification shall be issued by the council of Elders /Leaders who participated in the attempt to settle the dispute that the same has not been resolved, which certification shall be a condition precedent to the filling of a petition with the NCIP.

C. The DAR shall, in proper cases, turnover areas within ancestral domains to the NCIP for purposes of identification and delineation of ancestral domains, pursuant to Section 52(i) of R.A. No. 8371, which reads, as follows: i. Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies - The Chairperson of the NCIP shall certify that the area covered is an ancestral domain. The secretaries of the Department of Agrarian Reform, Department of Environment and Natural Resources, Department of the Interior and Local Government, and Department of Justice, the Commissioner of the National Development Corporation, and any other government agency claiming jurisdiction over the area shall be notified thereof. Such notification shall terminate any legal basis for the jurisdiction previously claimed;

D. Pursuant to Section 9 of R.A. No. 6657, as amended, the PARC has the power to suspend the implementation of R.A. No. 6657 with respect to ancestral lands for the purpose of identifying and delineating such lands by the NCIP. IV. STANDING The application for exemption/exclusion must be filed by: 1. A member of an ICC/IP;and 2. Such ICC/IP has a valid claim/has been awarded a CADT, CALT, CADC, or CALC over the land being covered by DAR. V. TIMELINESS No prescription period is provided for the application of exemption on the ground that the land is an ancestral domain/land. VI. DECISION

4 1. For dismissal: A. If the claim is not supported by any evidence; B. If applicant is not a member of an ICC/IP; C. The applicant is not duly authorized to file the application for exemption in accordance with the customary law of the ICC/IP; D. The subject landholding is not covered by any CADT, CALT, CADC, or CALC; E. NCIP certification that there is no valid claim as ancestral domain/land over the subject landholding.. 2. If DAR deems it proper to take jurisdiction over the case A. Evaluate the evidence to verify the claim that the land being covered under or already covered under the CARP, or sought to be excluded from the coverage of the CARP is ancestral land or domain: a. ascertain whether or not a CADT, CALT, CADC, or CALC had already been issued in favor of the party opposing or seeking the cancellation of the coverage or to any other person. b. If there is an existing CADT, CALT, CADC, or CALC, verify genuineness and authenticity of the same from the NCIP. c. If determined to be genuine and authentic, proceed with the exclusion case. In proceeding with the exclusion case, the DAR shall ascertain whether or not the party is a member of the ICC/IP claiming land as ancestral domain or land. If the ICC/IP concerned is in the actual, continuous and open possession and occupation of the community and its members, grant the petition for exclusion. If not, consult and coordinate with the DENR/NCIP/LRA for other possible steps/actions to take in ascertaining whether or not to dismiss the petition. If the DAR, in the course of its investigation arrives at a definitive finding: (a) that the subject land is NOT claimed as ancestral land or an ancestral domain; or (b) that the subject land is NOT in the actual, continuous and open possession and occupation of the

5 community and its members, hence, the PETITION FOR EXCLUSION should be DISMISSED. If it cannot be ascertained yet whether the subject land is an ancestral land/domain and/ or it is in the actual, continuous and open possession and occupation of the community and its members, the DAR, or the PARC, may ISSUE a CEASE AND DESIST ORDER or a SUSPENSION ORDER , directing the parties to the case/ stakeholders to maintain the status quo pending the determination of the main issue in the case when the facts and circumstances of the case show that a party may suffer from grave and irreparable injury. This is in line with Section 9 of R.A. No. 6657, as amended, which states that the PARC may suspend the implementation of CARP with respect to ancestral lands for the purpose of identifying and delineating such lands.

If the DAR decides to dismiss the petition on the basis that the issues cannot as yet be definitely ascertained, dismissal should be without prejudice to refilling or the proceeding should only be suspended or archived temporarily. B. There is a pending case before the DENR-NCIP for issuance of a CADT, CALT, CADC, or CALC, in which case: a. The coverage of the land under CARP may be suspended by the PARC or the DAR Secretary in accordance with Section 9 of R.A. No. 6657, as amended; or b. The DAR, after consulting or communicating with the other concerned government agencies, may issue a status quo ante order pending joint study of the facts and investigation of the circumstances in the area concerned, in accordance with Joint DAR-DENR-LRA-NCIP Memorandum Circular No.1, Series of 2011 and pertinent rules on the matter Joint DAR-DENR-LRA-NCIP Memorandum Circular No.1, series of 2011 Creation of a Task Force a Joint Task Force to determine Policy Direction in Order to Address Jurisdictional and Operational Issues Among said Agencies over Agricultural, Public, and/ or Ancestral Lands.

VII. Statutes

APPLICABLE LAWS AND JURISPRUDENCE

Section 9, Republic Act 6657 Ancestral lands.-For purposes of this Act, ancestral lands of each indigenous cultural community shall include, but not be limited to, lands in the actual, continuous and open possession and occupation of the community and its members; Provided that the Torrens System shall be respected. The rights of these communities to their ancestral lands shall be protected to ensure their economic, social and cultural well-being. In line with the principles of self-determination and autonomy, systems of land ownership, land use and modes of settling disputes of all these communities must be recognized and respected. Any provision of law to the contrary notwithstanding, the PARC may suspend the implementation of CARP with respect to ancestral lands for the purpose of identifying and delineating such lands. Provided, that in the autonomous regions, the respective legislatures may enact their own laws on ancestral domain subject to the provisions of the Constitution and the principles enunciated in this Act and other national laws. Republic Act No.8371- IPRA LAW Implementing Rules and Regulations: DAR A.O. No. 4, Series of 2003 Rules on Exemption of lands from CARP Coverage under section 3 (c) of Republic Act 6657 and Department of Justice No.44,Series of 1990. Joint DAR-DENR-LRA-NCIP Memorandum Circular No.1, Series of 2011 III. Pending the issuance of the desired Joint AO, the concerned officials and personnel of the three (3) agencies are directed to temporarily suspend the implementation of land acquisition and distribution (LAD), and ancestral domain/ancestral land (AD/AL) titling and registration activities in areas identified as contentious due to overlapping jurisdiction or with involved overlapping operational issues or conflicting claims. NCIP Rules and regulations Relevant Jurisprudence

7 1. Central Mindanao University v. Executive Secretary, G.R. No. 184869, September 21, 2010: 2. Tanenglian v. Lorenzo, G.R. No. 173415, G.R. No. 173415, March 28, 2005; 3.Heirs of Dicman v. Cario, G.R. No. 146459, June 8, 2006. 4. City Government of Baguio v. Masweng, G.R. No. 180206, February 4, 2009 5. City Mayor of Baguio v. Masweng, G.R. No. 165003, February 2, 2010 6. Lamsis v. Dong-e, G.R. 173021, October 20, 2010