IPRA, milestone legislation in rectifying centuries of IP injustice

Twenty six years ago, a landmark piece of legislation was ratified in the Philippines. Said
legislation put us on the world map as one of the first nations putting forward the interest of
the Indigenous Peoples (IPs) while consciously striving further towards our nations
development. This piece of legislation guaranteed the rights of IPs to ancestral domain, self-
governance and empowerment, human rights, and cultural integrity.

And on its 26th year, we look back to its journey. Maintaining hindsight of the past, as we the
IPs, continue to aspire for that ever elusive social justice which the landmark legislation sought
to deliver. One notable occurrence we should look back on was the victory which the landmark
legislation earned when it was challenged for its constitutionality sometime December 2000.

Republic Act 8371 or known as the Indigenous Peoples Right Act of 1997 pioneered a radical
dogma into our Philippine legal system that seemed to be not consonance with the highest law
of the land the 1987 Constitution. This is as far as principles on Sate ownership of land and
natural resources is concern. Back and forth IPRA was deliberated only to meet a stalemate
vote at the end which favoured heavily the IPs maintaining IPRA to be constitutional.

History became the beacon of our highest magistrates, the ones who voted the affirmation of
IPRA, in arguing constitutionality of IPRA. The true spirit of IPRA cannot be appreciated and
construed without reviewing the struggles of the IPs in view of their distinct sociology and the
labyrinths of its history. Our magistrates decision upholding the constitutionality of IPRA
became a legal precedent that forms part of the laws of the land which the NCIP espouses till
this day.

How IPs became squatters to their own land

Long before our colonizers docked our shores, an existing educational, economic and socio-
political system among the natives was already in place. Communal ownership of land is the
system being applied by natives to vast lands which they share to their fellows collectively.
Private ownership on the other is defined through ones capacity of tillage.

When the Spanish came and staked their flags to our grounds, they imposed the feudalistic
policy of Jura Regalia, a concept of land ownership wherein they declared all lands they
conquered belongs to the King of Spain. The capacity of the State to own or acquire property is
the state's power of dominium. This was the foundation for the early Spanish decrees
embracing the feudalistic approach. This feudalistic approach became a legal concept of land
ownership in our country through the Laws of the Indies and the Royal Cedulas.
The Philippines passed to Spain by virtue of discovery and conquest. Consequently, all lands
became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government
took charge of distributing the lands by issuing royal grants and concessions to Spaniards, both
military and civilian. Private land titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.

For centuries, natives mostly in the mountains of the north and the south have warded off
entry from the Spanish colonizers. Thus, boasting our claim that we were never conquered
making us Indigenous.

Institutionalized non recognition of IP land rights

Then came the infamous Treaty of Paris of 1898 sometime December. Spain ceded to the
government of the United States all rights, interests and claims over the national territory of
the Philippine Islands. The United States colonial government, in 1903, through the Philippine
Commission, passed Act No. 926, the first Public Land Act.

Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the
Philippine Bill of 1902. The law governed the disposition of lands of the public domain. It
prescribed rules and regulations for the homesteading, selling, and leasing of portions of the
public domain of the Philippine Islands, and prescribed the terms and conditions to enable
persons to perfect their titles to public lands in the Islands. It also provided for the issuance of
patents to certain native settlers upon public lands, for the establishment of town sites and sale
of lots therein, for the completion of imperfect titles, and for the cancellation or confirmation
of Spanish concessions and grants in the Islands.

In short, the Public Land Act operated on the assumption that title to public lands in the
Philippine Islands remained in the government; and that the government's title to public land
sprung from the Treaty of Paris and other subsequent treaties between Spain and the United
States. The term "public land" referred to all lands of the public domain whose title still
remained in the government.

The Regalian doctrine was further enshrined in the 1935 Constitution. One of the fixed and
dominating objectives of the 1935 Constitutional Convention was the nationalization and
conservation of the natural resources of the country. There was an overwhelming
sentiment in the Convention in favour of the principle of state ownership of natural
resources and the adoption of the Regalian doctrine.

State ownership of natural resources was seen as a necessary starting point to secure
recognition of the state's power to control their disposition, exploitation, development, or
utilization. The delegates to the Constitutional Convention very well knew that the concept
of State ownership of land and natural resources was introduced by the Spaniards. This
however, they were not certain whether it was continued and applied by the Americans. To
remove all doubts, the Convention approved the provision in the Constitution affirming the
Regalian doctrine.

Once again, the Regalian Doctrine was then once more reiterated in the 1973 Constitution
under Section 8 of Article XIV on the National Economy and Patrimony of the Nation to wit:

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources
of the Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural resources
shall not be alienated, and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be granted
for a period exceeding twenty-five years, renewable for not more than twenty-five
years, except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be the
measure and the limit of the grant."

Unfortunate it may seem, our the current 1987 Constitution re-echoed once again the Regalian
Doctrine this time under Section 2 of Article VII, to wit:

"Sec. 2. All lands of the public domain, waters, minerals, 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. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities or it may enter
into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

In a nutshell, what this tells us is that during the Spanish era, All lands belong to the
Crown/King. When the Americans came they did so little to amend this principle of land
ownership where they impliedly affirmed the feudalistic narrative of the Regalian Doctrine
stating that All lands belong to the State. It is clear that recognition of Indigenous people
claim to land ownership was set aside.

Be that as it may, our framers of the 1987 Constitution somewhat gave us the chance to correct
these injustice. They have provided us non executing provisions, back by centuries of injustice,
as our hammers and anvils in forging a legislation in rectifying ills bestowed upon IPs, who only
did was to gallantly practiced what was prudent during times of colonization resist.

What is land to IPs

Land is the central element of the IPs existence. There is no traditional concept of permanent,
individual, land ownership. Among the Igorots, ownership of land more accurately applies to
the tribal right to use the land or to territorial control. The people are the secondary owners or
stewards of the land and that if a member of the tribe ceases to work, he loses his claim of
ownership, and the land reverts to the beings of the spirit world who are its true and primary
owners. Under the concept of "trusteeship," the right to possess the land does not only belong
to the present generation but the future ones as well.

Customary law on land rests on the traditional belief that no one owns the land except the gods
and spirits, and that those who work the land are its mere stewards. Customary law has a
strong preference for communal ownership, which could either be ownership by a group of
individuals or families who are related by blood or by marriage, or ownership by residents of
the same locality who may not be related by blood or marriage.

The system of communal ownership under customary laws draws its meaning from the
subsistence and highly collectivized mode of economic production. The Kalingas, for instance,
who are engaged in team occupation like hunting, foraging for forest products, and swidden
farming found it natural that forest areas, swidden farms, orchards, pasture and burial grounds
should be communally-owned. For the Kalingas, everybody has a common right to a common
economic base. Thus, as a rule, rights and obligations to the land are shared in common.

Although highly bent on communal ownership, customary law on land also sanctions individual
ownership. The residential lots and terrace rice farms are governed by a limited system of
individual ownership. It is limited because while the individual owner has the right to use and
dispose of the property, he does not possess all the rights of an exclusive and full owner as
defined under our Civil Code. Under Kalinga customary law, the alienation of individually-
owned land is strongly discouraged except in marriage and succession and except to meet
sudden financial needs due to sickness, death in the family, or loss of crops.

Moreover, and to be alienated should first be offered to a clan-member before any village-
member can purchase it, and in no case may land be sold to a non-member of the Ili.

Land titles do not exist in the indigenous peoples' economic and social system. The concept of
individual land ownership under the civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon indigenous claims to ancestral lands.
Communal ownership is looked upon as inferior, if not inexistent.

Reconciling IP land ownership to the Regalian Doctrince

Recognizing the contrasting views land ownership defined by IPRA against the Regalian
Doctrine, our highest Supreme Court magistrates turned to the landmark case of Mateo Carino
VS Insular Government in settling doubts. The issue among many others, if whether or not, IPs
claim to land ownership through ancestral land title and ancestral domain is contrary to the
concept of Regalian Doctrine thus unconstitutional.

The right of ownership and possession of the IPs to their ancestral domains is held under the
indigenous concept of ownership. This concept maintains the view that ancestral domains are
the IPs private but community property. It is private simply because it is not part of the public
domain. But its private character ends there. The ancestral domain is owned in common by the
IPs and not by one particular person.

The IPRA itself provides that areas within the ancestral domains, whether delineated or not, are
presumed to be communally held. These communal rights, however, are not exactly the same
as co-ownership rights under the Civil Code. Co-ownership gives any co-owner the right to
demand partition of the property held in common. The Civil Code expressly provides that "no
co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at any
time the partition of the thing in common, insofar as his share is concerned. To allow such a
right over ancestral domains may be destructive not only of customary law of the community
but of the very community itself.

Communal rights over land are not the same as corporate rights over real property, much less
corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years
subject to an extension of another fifty years in any single instance. Every stockholder has the
right to disassociate himself from the corporation. Moreover, the corporation itself may be
dissolved voluntarily or involuntarily.

Communal rights to the land are held not only by the present possessors of the land but
extends to all generations of the IPs, past, present and future, to the domain. This is the reason
why the ancestral domain must be kept within the IPs themselves. The domain cannot be
transferred, sold or conveyed to other persons. It belongs to the IPs as a community.

Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a)
only to the members of the same IPs; (b) in accord with customary laws and traditions; and (c)
subject to the right of redemption of the IPs for a period of 15 years if the land was transferred
to a non-member of the IPs.
Following the constitutional mandate that "customary law govern property rights or relations in
determining the ownership and extent of ancestral domains," the IPRA, by legislative fiat,
introduces a new concept of ownership. This is a concept that has long existed under customary
law.

Custom, from which customary law is derived, is also recognized under the Civil Code as a
source of law. Some articles of the Civil Code expressly provide that custom should be applied
in cases where no codal provision is applicable. In other words, in the absence of any applicable
provision in the Civil Code, custom, when duly proven, can define rights and liabilities.

Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies
to IPs. Its recognition does not depend on the absence of a specific provision in the civil
law. The indigenous concept of ownership under customary law is specifically acknowledged
and recognized, and coexists with the civil law concept and the laws on land titling and land
registration.

To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is
merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:

"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their
ancestral domains by virtue of Native Title shall be recognized and respected. Formal
recognition, when solicited by ICCs/IPs concerned shall be embodied in a Certificate of
Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs over
the territories identified and delineated."

The moral import of ancestral domain, native land or being native is "belongingness" to the
land, being people of the land- by sheer force of having sprung from the land since time beyond
recall, and the faithful nurture of the land by the sweat of one's brow. This is fidelity of
usufructuary relation to the land- the possession of stewardship through intimate tillage, and
the mutuality of blessings between man and land; from man, care for land; from the land,
sustenance for man.

Lets all note that Ancestral lands and domains where private since time immemorial thus
cannot be subject under Regalian Doctrine whose scope is limited only to Public Lands.