FIRST EXAMINATION COVERAGE

IMPERIUM AND DOMINIUM _______________________________________________________________________ 2

LIMITATIONS ON THE POWER OF DOMINIUM _________________________________________________________ 2
LA BUGAL B’LAAN TRIBAL ASSOCIATION vs. RAMOS (January 2004) _______________________________________ 2
Service contracts under the 1973 and 1987 Constitutions _______________________________________________________ 2
Options of the State ______________________________________________________________________________________ 3
Limitations on FTAAs with Foreign owned corporations _________________________________________________________ 4
LA BUGAL B’LAAN TRIBAL ASSOCIATION vs. RAMOS (December 2004) _____________________________________ 4
3 Safeguards for FTAAs ___________________________________________________________________________________ 7
The Control Test _________________________________________________________________________________________ 7
Term Limitation of FTAAs _________________________________________________________________________________ 8
CHAVEZ vs. PUBLIC ESTATES AUTHORITY (2002) __________________________________________________________ 9
Definition of the Regalian Doctrine __________________________________________________________________________ 9
Rationale behind the Constitutional Prohibition _______________________________________________________________ 9
Practicality aspect _______________________________________________________________________________________ 9
Constitutional Provisions involved in the determination of the case _______________________________________________ 9
2 properties involved ____________________________________________________________________________________ 10
Conclusion ____________________________________________________________________________________________ 10

HALILI & HALILI vs. COURT OF APPEALS, GUZMAN, et. al. (1998) _________________________________________ 10
The Halili Doctrine ______________________________________________________________________________________ 13
Rationale______________________________________________________________________________________________ 13
DIRECTOR OF LANDS & DIRECTOR OF FOREST DEVELOPMENT vs. COURT OF APPEALS, VALERIANO, et. al.
(1984) _________________________________________________________________________________________________ 13

LAW: INDIGENOUS PEOPLE’S RIGHTS ACT OF 1997 (IPRA) ________________________________________________ 14

Terminologies __________________________________________________________________________________________ 14
CRUZ vs. ENVIRONMENT AND NATURAL RESOURCES (1998) _____________________________________________ 15
Justice Puno’s Separate Opinion ___________________________________________________________________________ 16
4 rights under the IPRA __________________________________________________________________________________ 16
Ancestral domains and ancestral lands ______________________________________________________________________ 17
The indigenous concept of ownership ______________________________________________________________________ 17
Transfer, limitations. ____________________________________________________________________________________ 17
Ancestral domains and ancestral lands ______________________________________________________________________ 17
Rights to Ancestral Domains and Ancestral Lands _____________________________________________________________ 17
Other Rights ___________________________________________________________________________________________ 18
 1

FIRST EXAMINATION COVERAGE Section 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.

The aforecited sections do not require an enabling law. Although

INTRODUCTION there is a general rule that most of the provisions in Article II are
non-self-executing, it was mentioned in the case of Oposa vs.
The laws on natural resources show that there is a recognition of Factoran that these particular provisions do not need an enabling
the need to balance man’s need for development and the law. These rights are fundamental and constitutionally granted.
conservation of our natural resources.
Article XII
These laws show how there is a need to harmonize development National Economy and Patrimony
and conservation. The conflicting poles on development and
equity are ideally harmonized by environmental laws. Section 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
SUSTAINABLE DEVELOPMENT, concept. fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of
Sustainable development – a worldwide-accepted principle agricultural lands, all other natural resources shall not be
wherein humans, in utilizing natural resources, ensure that such alienated. The exploration, development, and utilization of natural
natural resources are not unduly depleted and that they are used resources shall be under the full control and supervision of the
in the generative manner to preserve them for the present State. The State may directly undertake such activities, or it may
generation and all generations to come. enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations
RELEVANT INTERNATIONAL TREATIES AND CONVENTIONS at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding
1. The Stockholm Declaration twenty-five years, renewable for not more than twenty-five years,
2. The Biosafety Control and under such terms and conditions as may be provided by law.
3. The UN Convention on the Law of the Seas (UNCLOS) In cases of water rights for irrigation, water supply, fisheries, or
4. The Kyoto Protocol industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
RELEVANT DOMESTIC LAWS
The State shall protect the nation’s marine wealth in its
1. The 1987 Constitution archipelagic waters, territorial sea, and exclusive economic zone,
2. The Indigenous Peoples’ Rights Act (IPRA) or R.A. 8371 and reserve its use and enjoyment exclusively to Filipino citizens.
3. The Public Land Act or C.A. 141 The Congress may, by law, allow small-scale utilization of natural
4. The Mining Act or R.A. 7940 resources by Filipino citizens, as well as cooperative fish farming,
5. The Clean Air Act with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.

Article I The President may enter into agreements with foreign-owned

National Territory
The national territory comprises the Philippine archipelago, with
all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the
Philippines.
corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to
the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of
local scientific and technical resources.
The President shall notify the Congress of every contract entered
into in accordance with this provision, within thirty days from its
execution.

Article II
State Policies

Section 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.

1
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cooperative fish farming with priority to subsistence

fishermen and fish-workers in rivers, lakes, bays, and lagoons.

5. The President may enter into agreements with foreign-

Presumption: All lands of the public domain, waters, minerals,
owned corporations involving either technical or financial
coal, petroleum, and other mineral oils, all forces of potential
assistance for large-scale exploration, development, and
energy, fisheries, forests or timber, wildlife, flora and fauna, and
utilization of minerals, petroleum, and other mineral oils,
other natural resources are owned by the State.
according to the general terms and conditions provided by
law, based on real contributions to the economic growth and
Article XII, Section 2 of the Constitution embodies the
general welfare of the country.
Regalian Doctrine. The very first sentence is the foundation of
such doctrine.
6. The President shall notify Congress of every contract entered
into in accordance with this provision, within 30 days from its
IMPERIUM AND DOMINIUM
execution.

Imperium – government authority possessed by the State

LA BUGAL B’LAAN TRIBAL ASSOCIATION vs. RAMOS
expressed through sovereignty.
(January 2004)
Dominium – capacity of the State to own or acquire property; this
This is a petition for prohibition and mandamus filed by La Bugal
is the principle where the power of the Regalian Doctrine lies.
B’laan Tribal Association in connection to R.A. 7940 – Philippine
Mining Act of 1995. They claim that such is violative of Article XII,
For a person to claim ownership over a land, he must show his
Section 2.
private title to it. This is because of the presumption that all lands
that do not have private title belong to the State.
SERVICE CONTRACTS UNDER THE 1973 AND 1987
CONSTITUTIONS
LIMITATIONS ON THE POWER OF DOMINIUM

Service contract – is a contractual arrangement for engaging in

1. With the exception of agricultural lands, all other natural
the exploitation and development of petroleum, mineral, energy,
resources shall not be alienated.
land and other natural resources by which a government or its
agency, or a private person granted a right or privilege by the
2. The exploration, development, and utilization of natural
government authorizes the other party (service contractor) to
resources shall be under the full control and supervision
engage or participate in the exercise of such right or the
of the State.
enjoyment of the privilege, in that the latter provides financial or
technical resources, undertakes the exploitation or production of
• Who may participate?
a given resource, or directly manages the productive enterprise,
Filipino citizens, corporations, or associations, at least
operations of the exploration and exploitation of the resources or
60% of whose capital is owned by such citizens.
the disposition of marketing or resources.
• How?
1973 Constitution
By direct undertaking, co-production, joint venture, or
While Section 9 of Article XIV allowed Filipinos, upon authority
production-sharing agreements.
of the Batasang Pambansa, to enter into service contracts with
any person or entity for the exploration or utilization of natural
• Period?
resources. citizen or private entity could be allowed by the
The period shall not exceed 25 years, and may be
National Assembly to enter into such service contract. The prior
renewed for not more than 25 years, and such other
approval of the National Assembly was deemed sufficient to
terms and conditions as may be provided by law.
protect the national interest.
• Exception?
Thus, virtually the entire range of the country’s natural
In cases of water rights for irrigation, water supply
resources—from petroleum and minerals to geothermal energy,
fisheries, or industrial uses other than the development
from public lands and forest resources to fishery products—was
of water power, beneficial use may be the measure and
well covered by apparent legal authority to engage in the direct
limit of the grant.
participation or involvement of foreign persons or corporations
(otherwise disqualified) in the exploration and utilization of
3. The State shall protect the nation’s marine wealth in its
natural resources through service contracts
archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to
1987 Constitution
Filipino citizens.
Conspicuously absent in Section 2 is the provision in the 1935 and
1973 Constitutions authorizing the State to grant licenses,
4. The Congress may, by law, allow small-scale utilization of
concessions, or leases for the exploration, exploitation,
natural resources by Filipino citizens, as well as

2

development, or utilization of natural resources. By such omission,
the utilization of inalienable lands of public domain through
“license, concession or lease” is no longer allowed under the
1987 Constitution.
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.
OPTIONS OF THE STATE
1. The State may directly undertake these activities itself.
2. It may enter into co-production, joint venture, or
production sharing agreements with Filipino citizens, or
entities at least 60% of whose capital is owned by such
citizens.
3. A third option is found in the third paragraph of Section 2:
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fish-workers in rivers, lakes, bays, and lagoons.
4. Allow the participation of foreign-owned corporations.
The fourth and fifth paragraphs of Section 2 provide: The
President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the
development and use of local scientific and technical
resources. The President shall notify the Congress of every
contract entered into in accordance with this provision, within
thirty days from its execution.
4 modes provided under the 1987 Constitution
1. The State may directly undertake such activities.
2. The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or
qualified corporations.
3. Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens.
4. For the large-scale exploration, development and
utilization of minerals, petroleum and other mineral
oils, the President may enter into agreements with
foreign-owned corporations involving technical or
financial assistance.
1st Mode
Except to charge the Mines and Geosciences Bureau of the DENR
with performing researches and surveys,187 and a passing
mention of government-owned or controlled corporations,188
R.A. No. 7942 does not specify how the State should go about the
first mode.
3
2nd Mode
Mineral production sharing, co-production and joint venture
agreements are collectively classified by R.A. No. 7942 as “mineral
agreements.” The Government participates the least in a mineral
production sharing agreement (MPSA). In an MPSA, the
Government grants the contractor192 the exclusive right to
conduct mining operations within a contract area193 and shares
in the gross output. The MPSA contractor provides the financing,
technology, management and personnel necessary for the
agreement’s implementation. The total government share in an
MPSA is the excise tax on mineral products under Republic Act
No. 7729,196 amending Section 151 (a) of the National Internal
Revenue Code, as amended.
In a co-production agreement (CA), the Government provides
inputs to the mining operations other than the mineral
resource,199 while in a joint venture agreement (JVA), where the
Government’s enjoys the greatest participation, the Government
and the JVA contractor organize a company with both parties
having equity shares. Aside from earnings in equity, the
Government in a JVA is also entitled to a share in the gross
output.201 The Government may enter into a CA or JVA with one
or more contractors.
All mineral agreements grant the respective contractors the
exclusive right to conduct mining operations and to extract all
mineral resources found in the contract area. A “qualified person”
may enter into any of the mineral agreements with the
Government.
A “qualified person” is any citizen of the Philippines with capacity
to contract, or a corporation, partnership, association, or
cooperative organized or authorized for the purpose of engaging
in mining, with technical and financial capability to undertake
mineral resources development and duly registered in accordance
with law at least sixty per centum (60%) of the capital of which is
owned by citizens of the Philippines.
3rd Mode
The third mode, on the other hand, is governed by Republic Act
No. 7076 (the People’s Small-Scale Mining Act of 1991) and other
pertinent laws. R.A. No. 7942 primarily concerns itself with the
second and fourth modes.
4th Mode: FTAAS
The fourth mode involves “financial or technical assistance
agreements.”
FTAA – is defined as “a contract involving financial or technical
assistance for large-scale exploration, development, and
utilization of natural resources.”
Any qualified person with technical and financial capability to
undertake large-scale exploration, development, and utilization
of natural resources in the Philippines may enter into such
agreement directly with the Government through the DENR.
For the purpose of granting an FTAA, a legally organized
foreign-owned corporation (any corporation, partnership,
3

association, or cooperative duly registered in accordance with law
in which less than 50% of the capital is owned by Filipino citizens)
is deemed a “qualified person.”
Other than the difference in contractors’ qualifications, the
principal distinction between mineral agreements and FTAAs is
the maximum contract area to which a qualified person may hold
or be granted.
“Large-scale” under R.A. No. 7942 is determined by the size of the
contract area, as opposed to the amount invested
(US$50,000,000.00), which was the standard under E.O. 279.
LIMITATIONS ON FTAAs WITH FOREIGN OWNED
CORPORATIONS
*Note: Memorize these 8 conditions.
Although Article XII, Section 2 sanctions the participation of
foreign-owned corporations in the exploration, development, and
utilization of natural resources, it imposes certain limitations or
conditions to agreements with such corporations.
1. First, the parties to FTAAs. Only the President, in behalf
of the State, may enter into these agreements, and only
with corporations. By contrast, under the 1973
Constitution, a Filipino citizen, corporation or
association may enter into a service contract with a
“foreign person or entity.”
2. Second, the size of the activities: only large-scale
exploration, development, and utilization is allowed. The
term “large-scale usually refers to very capital-intensive
activities.”
3. Third, the natural resources subject of the activities is
restricted to minerals, petroleum and other mineral oils,
the intent being to limit service contracts to those areas
where Filipino capital may not be sufficient.
4. Fourth, consistency with the provisions of statute. The
agreements must be in accordance with the terms and
conditions provided by law.
5. Fifth, Section 2 prescribes certain standards for entering
into such agreements. The agreements must be based
on real contributions to economic growth and general
welfare of the country.
6. Sixth, the agreements must contain rudimentary
stipulations for the promotion of the development and
use of local scientific and technical resources.
7. Seventh, the notification requirement. The President
shall notify Congress of every financial or technical
assistance agreement entered into within thirty days
from its execution.
8. Finally, the scope of the agreements. While the 1973
Constitution referred to “service contracts for financial,
technical, management, or other forms of assistance” the
4
1987 Constitution provides for “agreements . . . involving
either financial or technical assistance.” It bears noting
that the phrases “service contracts” and “management
or other forms of assistance” in the earlier constitution
have been omitted.
Why are service contracts deconstitutionalized?
To remove evils of service contracts which gave contractors more
control.
Is the subject FTAA a service contract?
Yes, it is. Pursuant to Section 1.2 of the FTAA, WMCP shall
provide [all] financing, technology, management and personnel
necessary for the Mining Operations.” The mining company binds
itself to “perform all Mining Operations . . . providing all necessary
services technology and financing in connection therewith,” and
to “furnish all materials, labour, equipment and other installations
that may be required for carrying on all Mining Operations.”
WMCP may make expansions, improvements and replacements
of the mining facilities and may add such new facilities as it
considers necessary for the mining operations.
These contractual stipulations, taken together, grant WMCP
beneficial ownership over natural resources that properly belong
to the State and are intended for the benefit of its citizens. These
stipulations are abhorrent to the 1987 Constitution. They are
precisely the vices that the fundamental law seeks to avoid, the
evils that it aims to suppress. Consequently, the contract from
which they spring must be struck down.
Held: With the foregoing discussion in mind, this Court finds that
R.A. No. 7942 is invalid insofar as said Act authorizes service
contracts. Although the statute employs the phrase “financial and
technical agreements” in accordance with the 1987 Constitution,
it actually treats these agreements as service contracts that grant
beneficial ownership to foreign contractors contrary to the
fundamental law.
LA BUGAL B’LAAN TRIBAL ASSOCIATION vs. RAMOS
(December 2004)
Some probing questions:
• Is the FTAA intended only for foreign owned
corporations?
No. It is not intended merely for foreign owner corporations.
• What about the contention that the case is moot?
Because of the transfer of WMCP shares to Sagittarius?
• Even if the case is moot can constitutionality be
discussed?
• How did SC resolve the third and last issue?
DIGEST
Facts: The Petition for Prohibition and Mandamus before the
Court challenges the constitutionality of the following:
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1. Republic Act No. 7942 – The Philippine Mining Act of 1995;
2. DENR Administrative Order No. 96-40 – R.A. No. 7942’s
Implementing Rules and Regulations; and
3. the Financial and Technical Assistance Agreement (FTAA)
dated March 30, 1995, executed by the government with
Western Mining Corporation Philippines, Inc. (WMCP).
January 27, 2004 Decision
On January 27, 2004, the Court en banc promulgated its Decision
granting the Petition and declaring the unconstitutionality of
certain provisions of R.A. No. 7942, DAO 96-40, as well as of the
entire FTAA executed between the government and WMCP,
mainly on the finding that FTAAs are service contracts prohibited by
the 1987 Constitution.
The Decision struck down the subject FTAA for being similar to service
contracts, which, though permitted under the 1973 Constitution, were
subsequently denounced for being antithetical to the principle of
sovereignty over our natural resources, because they allowed
foreign control over the exploitation of our natural resources, to
the prejudice of the Filipino nation.
The Decision quoted several legal scholars and authors who had
criticized service contracts for, inter alia, vesting in the foreign
contractor exclusive management and control of the
enterprise, including:
• operation of the field in the event petroleum was discovered;
• control of production, expansion and development;
• nearly unfettered control over the disposition and sale of the
products discovered/extracted;
• effective ownership of the natural resource at the point of
extraction; and beneficial ownership of our economic
resources.
According to the Decision, Section 2 of Article XII of the 1987
Constitution effectively banned such service contracts.
Motions for Reconsideration
Subsequently, respondents filed separate Motions for
Reconsideration. In a Resolution dated March 9, 2004, the Court
required petitioners to comment thereon. In the Resolution of
June 8, 2004, it set the case for Oral Argument on June 29, 2004.
After hearing the opposing sides, the Court required the parties
to submit their respective Memoranda in amplification of their
arguments. In a Resolution issued later the same day, June 29,
2004, the Court noted, inter alia, the Manifestation and Motion
(in lieu of comment) filed by the Office of the Solicitor General
(OSG) on behalf of public respondents.
OSG: The OSG said that it was not interposing any objection to
the Motion for Intervention filed by the Chamber of Mines of
the Philippines, Inc. (CMP) and was in fact joining and adopting
the latters Motion for Reconsideration.
Memoranda were accordingly filed by the intervenor as well as by
petitioners, public respondents, and private respondent, dwelling
at length on the three issues discussed below. Later, WMCP
submitted its Reply Memorandum, while the OSG -- in obedience
5
to an Order of this Court -- filed a Compliance submitting copies
of more FTAAs entered into by the government.
Issues: Three issues were identified by the Court:
1. Has the case been rendered moot by the sale of WMC shares
in WMCP to Sagittarius (60 percent of Sagittarius equity is
owned by Filipinos and/or Filipino-owned corporations while
40 percent is owned by Indophil Resources NL, an Australian
company) and by the subsequent transfer and registration of
the FTAA from WMCP to Sagittarius?
2. Assuming that the case has been rendered moot, would it
still be proper to resolve the constitutionality of the assailed
provisions of the Mining Law, DAO 96-40 and the WMCP
FTAA?
3. What is the proper interpretation of the phrase Agreements
Involving Either Technical or Financial
Assistance contained in paragraph 4 of Section 2 of Article
XII of the Constitution?
Ruling: Respondents and intervenors Motions for
Reconsideration should be granted, for the reasons discussed
below. The foregoing three issues identified by the Court shall
now be taken up seriatim.
ISSUE#1:
Mootness
In declaring unconstitutional certain provisions of R.A. No. 7942,
DAO 96-40, and the WMCP FTAA, the majority Decision agreed
with petitioners contention that the subject FTAA had been
executed in violation of Section 2 of Article XII of the 1987
Constitution. According to petitioners, the FTAAs entered into by
the government with foreign-owned corporations are limited by
the fourth paragraph of the said provision to agreements
involving only technical or financial assistance for large-scale
exploration, development and utilization of minerals, petroleum
and other mineral oils. Furthermore, the foreign contractor is
allegedly permitted by the FTAA in question to fully manage and
control the mining operations and, therefore, to acquire beneficial
ownership of our mineral resources.
The Decision merely shrugged off the Manifestation by WMPC
informing the Court (1) that on January 23, 2001, WMC had sold
all its shares in WMCP to Sagittarius Mines, Inc., 60 percent of
whose equity was held by Filipinos; and (2) that the assailed FTAA
had likewise been transferred from WMCP to Sagittarius.
The ponencia declared that the instant case had not been
rendered moot by the transfer and registration of the FTAA to a
Filipino-owned corporation, and that the validity of the said
transfer remained in dispute and awaited final judicial
determination.
Patently therefore, the Decision is anchored on the assumption
that WMCP had remained a foreign corporation.
The crux of this issue of mootness is the fact that WMCP, at the
time it entered into the FTAA, happened to be wholly owned by
WMC Resources International Pty., Ltd. (WMC), which in turn was
a wholly owned subsidiary of Western Mining Corporation
5

Holdings Ltd., a publicly listed major Australian mining and
exploration company.
The nullity of the FTAA was obviously premised upon the
contractor being a foreign corporation.
Had the FTAA been originally issued to a Filipino-owned
corporation, there would have been no constitutionality issue to
speak of.
Conveyance of WMCP FTAA to a filipino corporation would be
validate and the property in question would no longer be
owned by a disqualified vendee.
Upon the other hand, the conveyance of the WMCP FTAA to a
Filipino corporation can be likened to the sale of land to a
foreigner who subsequently acquires Filipino citizenship, or who
later resells the same land to a Filipino citizen. The conveyance
would be validated, as the property in question would no longer
be owned by a disqualified vendee.
And, inasmuch as the FTAA is to be implemented now by a Filipino
corporation, it is no longer possible for the Court to declare it
unconstitutional. The case pending in the Court of Appeals is a
dispute between two Filipino companies (Sagittarius and
Lepanto), both claiming the right to purchase the foreign shares
in WMCP. So, regardless of which side eventually wins, the FTAA
would still be in the hands of a qualified Filipino company.
Considering that there is no longer any justiciable controversy,
the plea to nullify the Mining Law has become a virtual petition
for declaratory relief, over which this Court has no original
jurisdiction.
The FTAA are not void and are thus transferrable
Petitioners’ contentions: Petitioners argue that the case has not
become moot, considering the invalidity of the alleged sale of the
shares in WMCP from WMC to Sagittarius, and of the transfer of
the FTAA from WMCP to Sagittarius, resulting in the change of
contractor in the FTAA in question.
And even assuming that the said transfers were valid, there still
exists an actual case predicated on the invalidity of R.A. No. 7942
and its Implementing Rules and Regulations (DAO 96-40).
They insist that the FTAA is void and, hence cannot be transferred;
and that its transfer does not operate to cure the constitutional
infirmity that is inherent in it; neither will a change in the
circumstances of one of the parties serve to ratify the void
contract.
They ratiocinate that this Court had declared the FTAA to be void
because, at the time it was executed with WMCP, the latter was a
fully foreign-owned corporation, in which the former vested full
control and management with respect to the exploration,
development and utilization of mineral resources, contrary to the
provisions of paragraph 4 of Section 2 of Article XII of the
Constitution. And since the FTAA was per se void, no valid right
could be transferred; neither could it be ratified, so petitioners
conclude.
Held: Petitioners have assumed as fact that which has yet to be
established.
6
1. The Decision of this Court declaring the FTAA void has not
yet become final. That was precisely the reason the Court still
heard Oral Argument in this case.
2. The FTAA does not vest in the foreign corporation full control
and supervision over the exploration, development and
utilization of mineral resources, to the exclusion of the
government.
Suffice it to say that a perusal of the FTAA provisions will prove
that the government has effective overall direction and control of
the mining operations, including marketing and product pricing,
and that the contractors work programs and budgets are subject
to its review and approval or disapproval.
The government does not have to micro-manage the mining
operations and dip its hands into the day-to-day management of
the enterprise in order to be considered as having overall control
and direction.
Besides, for practical and pragmatic reasons, there is a need for
government agencies to delegate certain aspects of the
management work to the contractor. Thus, the basis for
declaring the FTAA void still has to be revisited, reexamined
and reconsidered.
Contention: Petitioners sniff at the citation of Chavez v. Public
Estates Authority, and Halili v. CA, claiming that the doctrines
in these cases are wholly inapplicable to the instant case.
Chavez clearly teaches:
Thus, the Court has ruled consistently that where a Filipino citizen sells
land to an alien who later sells the land to a Filipino, the invalidity of the
first transfer is corrected by the subsequent sale to a citizen. Similarly,
where the alien who buys the land subsequently acquires Philippine
citizenship, the sale is validated since the purpose of the constitutional
ban to limit land ownership to Filipinos has been achieved. In short, the
law disregards the constitutional disqualification of the buyer to hold land
if the land is subsequently transferred to a qualified party, or the buyer
himself becomes a qualified party.
In their Comment, petitioners contend that
in Chavez and Halili, the object of the transfer (the land) was not
what was assailed for alleged unconstitutionality.
Rather, it was the transaction that was assailed; hence subsequent
compliance with constitutional provisions would cure its infirmity.
In contrast, in the instant case it is the FTAA itself, the object of
the transfer, that is being assailed as invalid and unconstitutional.
So, petitioners claim that the subsequent transfer of a void FTAA
to a Filipino corporation would not cure the defect.
Held: Petitioners are confusing themselves. The present Petition
has been filed, precisely because the grantee of the FTAA was a
wholly owned subsidiary of a foreign corporation. It cannot be
gainsaid that anyone would have asserted that the same FTAA
was void if it had at the outset been issued to a Filipino
corporation. The FTAA, therefore, is not per se defective or
unconstitutional. It was questioned only because it had been
issued to an allegedly non-qualified, foreign-owned corporation.
The Court believes that this case is clearly analogous to Halili, in
which the land acquired by a non-Filipino was re-conveyed to a
6

qualified vendee and the original transaction was thereby cured.
P agreement and interpose timely objections, if any.
Held: Paraphrasing Halili, the same rationale applies to the
instant case: assuming arguendo the invalidity of its prior grant to
a foreign corporation, the disputed FTAA -- being now held by a
Filipino corporation -- can no longer be assailed; the objective of
the constitutional provision -- to keep the exploration,
development and utilization of our natural resources in Filipino
hands -- has been served.
More accurately speaking, the present situation is one degree
better than that obtaining in Halili, in which the original sale to a
non-Filipino was clearly and indisputably violative of the
constitutional prohibition and thus void ab initio. In the present
case, the issuance/grant of the subject FTAA to the then foreign-
owned WMCP was not illegal, void or unconstitutional at the time.
The matter had to be brought to court, precisely for adjudication
as to whether the FTAA and the Mining Law had indeed violated
the Constitution. Since, up to this point, the decision of this Court
declaring the FTAA void has yet to become final, to all intents and
purposes, the FTAA must be deemed valid and constitutional.
At bottom, we find completely outlandish petitioners’ contention
that an FTAA could be entered into by the government only with
a foreign corporation, never with a Filipino enterprise.
Indeed, the nationalistic provisions of the Constitution are all
anchored on the protection of Filipino interests. How petitioners
can now argue that foreigners have the exclusive right to FTAAs
totally overturns the entire basis of the Petition -- preference for
the Filipino in the exploration, development and utilization of our
natural resources. It does not take deep knowledge of law and logic
to understand that what the Constitution grants to foreigners
should be equally available to Filipinos.
3 SAFEGUARDS FOR FTAAS
A service contract is more or less the same with FTAA only that
FTAA has 3 safeguards.
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant thereof
is subject to several safeguards, among which are these
requirements:
1. The service contract shall be crafted in accordance with
a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a
certain uniformity in provisions and avoid the possible
insertion of terms disadvantageous to the country.
2. The President shall be the signatory for the government
because, supposedly before an agreement is presented
to the President for signature, it will have been vetted
several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
3. Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch
7
of government an opportunity to look over the
THE CONTROL TEST
What is this ultimate test? The State’s Control. It is
determinative of Constitutionality.
Under the third principle of constitutional construction laid down
in Francisco -- ut magis valeat quam pereat -- every part of the
Constitution is to be given effect, and the Constitution is to be
read and understood as a harmonious whole. Thus, full control
and supervision by the State must be understood as one that does
not preclude the legitimate exercise of management prerogatives
by the foreign contractor. Before any further discussion, we must
stress the primacy and supremacy of the principle of sovereignty
and State control and supervision over all aspects of exploration,
development and utilization of the country’s natural resources, as
mandated in the first paragraph of Article XII, Section 2.
But in the next breadth we have to point out that full control and
supervision cannot be taken literally to mean that the State
controls and supervises everything involved, down to the
minutest details, and makes all decisions required in the mining
operations. This strained concept of control and supervision over
the mining enterprise would render impossible the legitimate
exercise by the contractors of a reasonable degree of
management prerogative and authority necessary and
indispensable to their proper functioning.
For one thing, such an interpretation would discourage foreign
entry into large-scale exploration, development and utilization
activities; and result in the unmitigated stagnation of this sector,
to the detriment of our nations development. This scenario
renders paragraph 4 inoperative and useless. And as respondents
have correctly pointed out, the government does not have to
micro-manage the mining operations and dip its hands into the
day-to-day affairs of the enterprise in order for it to be considered
as having full control and supervision.
The concept of control adopted in Article XII, Section 2 must be
taken to mean less than dictatorial, all-encompassing control;
but nevertheless, sufficient to give the State the power to
direct, restrain, regulate and govern the affairs of the
extractive enterprises.
Control by the State may be on a macro level, through the
establishment of policies, guidelines, regulations, industry
standards and similar measures that would enable the
government to control the conduct of affairs in various
enterprises and restrain activities deemed not desirable or
beneficial.
The end in view is ensuring that these enterprises contribute to
the economic development and general welfare of the country,
conserve the environment, and uplift the well-being of the
affected local communities. Such a concept of control would be
compatible with permitting the foreign contractor sufficient and
reasonable management authority over the enterprise it invested
7

in, in order to ensure that it is operating efficiently and profitably,
to protect its investments and to enable it to succeed.
TERM LIMITATION OF FTAAs
The term limitation of FTAAs are different. Specifically, FTAAs are
covered by paragraphs 4 and 5 of Article XII, Section 2 of the
Constitution. It will be noted that there are no term limitations
provided for in the said paragraphs dealing with FTAAs.
This shows that FTAAs are sui generis, in a class of their own. This
omission was obviously a deliberate move on the part of the
framers. They probably realized that FTAAs would be different in
many ways from MPSAs, JVAs and CPAs. The reason the framers
did not fix term limitations applicable to FTAAs is that they
preferred to leave the matter to the discretion of the legislature
and/or the agencies involved in implementing the laws pertaining
to FTAAs, in order to give the latter enough flexibility and elbow
room to meet changing circumstances.
Note also that, as previously stated, the exploratory phrases of an
FTAA lasts up to eleven years. Thereafter, a few more years would
be gobbled up in start-up operations. It may take fifteen years
before an FTAA contractor can start earning profits. And thus, the
period of 25 years may really be short for an FTAA. Consider too
that in this kind of agreement, the contractor assumes all
entrepreneurial risks. If no commercial quantities of minerals are
found, the contractor bears all financial losses. To compensate for
this long gestation period and extra business risks, it would not
be totally unreasonable to allow it to continue EDU activities for
another twenty-five years.
Dispositive portion: The Court resolves to grant the
respondents and the intervenors motions for reconsideration; to
reverse and set aside this Court’s January 27, 2004 decision; to
dismiss the Petition; and to issue this new judgment declaring
CONSTITUTIONAL:
1. Republic Act No. 7942 (the Philippine Mining Law),
2. its Implementing Rules and Regulations contained in
DENR Administrative Order (DAO) No. 9640 -- insofar as
they relate to financial and technical assistance
agreements referred to in paragraph 4 of Article XII,
Section 2 of the Constitution; and
3. the Financial and Technical Assistance Agreement
(FTAA) dated March 30, 1995 executed by the
government and Western Mining Corporation
Philippines Inc. (WMCP), except Sections 7.8 and 7.9 of
the subject FTAA which are hereby INVALIDATED for
being contrary to public policy and for being grossly
disadvantageous to the government.
The MFR Reversed and set aside main decision. It declared as
constitutional the Philippine Mining law, the administrative order,
and the FTAA except for a few provisions.
Same conditions; same safeguards; simply apply the principles
with respect to the facts of the case; In the MFR, service
8
contracts were not deconstitutionalized and FTAAs are
actually Service Contracts with safeguards.
SOME NOTES
How is a service contract in 1973 and 1987 different?
What is a service contract in 1973 Constitution and 1987?
Focus on 8 limitations and conditions in the main decision.
First. Only the president may enter into these, in 1973 pwede
filipino citizens filipino corporations.
Second. Limitation size of activities – only large scale exploration;
subject natural resources is only limited to the natural resources
subject of the activities is restricted to minerals, petroleum and
other mineral oils – only capital intensive.
Take note of the discussion of why the president can enter into
these agreements. Yes, only the president and he is given a wide
discretion; and there is a notification requirement; that he must
notify the congress within 30 days.
Take note of statements in La-Bugal Decision that main decision
is already reversed. Also, take note that Court clarified that FTAAs
are not exclusive to financial and technical assistance.
IMPORTANT!
PLEASE MEMORIZE THE FOLLOWING:
1. Conditions;
2. Limitations;
3. Safeguards;
4. Definition of control test under Article XII, Section 2;
5. Definition of service contract in the main decision.
Article XII
National Economy and Patrimony
Section 3. Lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and national parks.
Agricultural lands of the public domain may be further classified
by law according to the uses which they may be devoted.
Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not
hold such alienable lands of the public domain except by lease,
for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and not to exceed one thousand
hectares in area. Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more than twelve
hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology,
and development, and subject to the requirements of agrarian
reform, the Congress shall determine, by law, the size of lands of
the public domain which may be acquired, developed, held, or
leased and the conditions therefor.
8

CHAVEZ vs. PUBLIC ESTATES AUTHORITY (2002)
The government entered into a joint-venture agreement with
Amari for reclamation of land of submerged area in Manila Bay.
Issue: Whether the stipulations in the amended joint venture
agreement for the transfer to Amaeri of certain lands, reclaimed
and still to be reclaimed, violate the 1987 Constitution.
What is the nature of reclaimed lands?
Lands of the public domain.
What about foreshore lands?
Lands of the public domain.
DEFINITION OF THE REGALIAN DOCTRINE
2002: The ownership of lands reclaimed from foreshore and
submerged areas is rooted in the Regalian doctrine which holds
that the State owns all lands and waters of the public domain.
Upon the Spanish conquest of the Philippines, ownership of all
"lands, territories and possessions" in the Philippines passed to
the Spanish Crown. The King, as the sovereign ruler and
representative of the people, acquired and owned all lands and
territories in the Philippines except those he disposed of by grant
or sale to private individuals.
MfR (1): The State owns all lands and waters of the public
domain. The doctrine is the foundation of the principle of land
ownership that all lands that have not been acquired by purchase
or grant from the Government belong to the public domain.
Property of public dominion is that devoted to public use such as
roads, canals, rivers, torrents, ports and bridges constructed by
the State, riverbanks, shores, roadsteads and that of a similar
character.
Those which belong to the State, not devoted to public use, and
are intended for some public service or for the development of
the national wealth, are also classified as property of public
dominion.
All other property of the State which is not of public dominion is
patrimonial. Also, property of public dominion, when no longer
intended for public use or public service, shall form part of the
patrimonial property of the State.
What is the significance under the 1935 Constitution with
respect to private corporations?
The 1935 Constitution allows private corporations to acquire
private lands. However, in the 1973 and 1987 Constitutions,
corporations were prohibited from acquiring such lands.
RATIONALE BEHIND THE CONSTITUTIONAL PROHIBITION
*Note: Memorize this.
What is the rationale behind the constitutional prohibition?
In actual practice, the constitutional ban strengthens the
constitutional limitation on individuals from acquiring more than
the allowed area of alienable lands of the public domain. Without
9
the constitutional ban, individuals who already acquired the
maximum area of alienable lands of the public domain could
easily set up corporations to acquire more alienable public lands.
An individual could own as many corporations as his means would
allow him. An individual could even hide his ownership of a
corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to
circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions,
is to transfer ownership of only a limited area of alienable land of
the public domain to a qualified individual. This constitutional
intent is safeguarded by the provision prohibiting corporations
from acquiring alienable lands of the public domain, since the
vehicle to circumvent the constitutional intent is removed. The
available alienable public lands are gradually decreasing in the
face of an ever-growing population. The most effective way to
insure faithful adherence to this constitutional intent is to grant
or sell alienable lands of the public domain only to individuals.
This, it would seem, is the practical benefit arising from the
constitutional ban.
PRACTICALITY ASPECT
Looking at the practicality aspect of it, if we limit it to individuals
then there is no fear that you would be creating corporations just
to skirt the constitutional ban in the 1973 Constitution.
Bernas discussed this presentation of SC there is really no
qualification kung property involved is small or huge land holding
as stated in Ayog v. Cusi.
The rationale is not to prevent large land holdings; because even
in Iglesia ni Cristo even small property can be subject to
constitutional ban.
CONSTITUTIONAL PROVISIONS INVOLVED IN THE
DETERMINATION OF THE CASE
What are the 2 provisions of the Constitution involved in the
determination of this case?
Section 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. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the public
domain except by lease, x x x. (Emphasis supplied)
Section 2: the first part referring to doctrine of Jura Regalia;
Section 3: limits on ownership on lands of public domain.
9
 10

2 PROPERTIES INVOLVED
Remember the distinction between reclaimed lands and
There are 2 properties involved here: submerged areas.
1. reclaimed areas – reclaimed lands are classified as alienable
and disposable lands of the public domain.

2. submerged areas – foreshore and submerged areas shall not

be alienated.

CONCLUSION

Note the conclusion in this case: Article XII

1. Amended JVA involved 2 categories the freedom islands,
submerged areas in manila bay.
2. Reclaimed lands are alienable lands of public domain.
Can the PEA lease these lands to private corporations?
Yes, they may.
How about sale?
No, pursuant to Section 3 of Article XII.
3. The submerged areas remain inalienable until classified as
alienable and disposable.
SOME QUESTIONS (AND ANSWERS)
Question: We mentioned that freedom islands are alienable and
disposable, can these be sold to private parties?
Answer: These private parties should be qualified individuals
under the constitution. Who are these? Only the Filipino citizens
no private corporations
National Economy and Patrimony
Section 7. Save in cases of hereditary succession, no private lands
shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of
the public domain.
HALILI & HALILI vs. COURT OF APPEALS, GUZMAN, et. al.
(1998)
1st sale: void because it is prohibited under Article XII, Section 7.
2nd sale: cured the invalidity of the first sale by the fact that the
American citizen sold it to a qualified citizen the Filipino citizen.
REORGANIZED FULL TEXT
Facts: Simeon de Guzman, an American citizen, died sometime
in 1968, leaving real properties in the Philippines. His forced heirs
were his widow, defendant appellee [herein private respondent]
Helen Meyers Guzman, and his son, defendant appellee [also
herein private respondent] David Rey Guzman, both of whom
are also American citizens.

Question: Registration of lands of public domain? May lands of

Quitclaim
public domain be registered? Will registration confirm private
On August 9, 1989, Helen executed a deed of quitclaim,
ownership?
assigning, transferring, and conveying to David Rey all her rights,
Answer: Registration does not confer ownership of the land.
titles and interests in and over 6 parcels of land which the 2 of
Lands of public domain can be registered.
them inherited from Simeon.

Question: What are laws allowing lands of public domain to be

Among the said parcels of land is that now in litigation, x x x
registered?
situated in Bagbaguin, Sta. Maria, Bulacan, containing an area of
Answer:
6,695 square meters, covered by Transfer Certificate of Title No.
1. The Land Registration Act or Act No. 496
T170514 of the Registry of Deeds of Bulacan.
2. Property Registration Decree or P.D. 1529
3. Revised Administrative Code of 1987
The quitclaim having been registered, TCT No. T-170514 was
cancelled and TCT No. T120259 was issued in the name of
Question: Why is transfer with respect to Freedom Islands void?
appellee David Rey Guzman.
Answer: Article XII, Section 3 prohibits private corporations
from acquiring. As to submerged areas, they are still classified as
Sale to Cataniag
natural resources hence they are inalienable. Hence, Amended
On February 5, 1991, David Rey Guzman sold said parcel of land
JVA was held to be void.
to defendant-appellee [also herein private respondent] Emiliano
Cataniag, upon which TCT No. T-120259 was cancelled and TCT
No. T-130721(M) was issued in the latter’s name.”
SOME NOTES
Petitioners’ complaint
Revisit the conclusions in this case it discusses on how to apply Petitioners, who are owners of the adjoining (next to or joined
Sections 2 and 3 of Article XII of the 1987 Constitution. with) lot, filed a complaint before the Regional Trial Court of

10

Malolos, Bulacan, questioning the constitutionality and
validity of the two conveyances —
1. between Helen Guzman and David Rey Guzman, and
2. between the latter and Emiliano Cataniag —
and claiming ownership thereto based on their right of legal
redemption under Article 1621 of the Civil Code.
TC: In its decision dated March 10, 1992,7 the trial court
dismissed the complaint.
It ruled that Helen Guzman’s waiver of her inheritance in favor of
her son was not contrary to the constitutional prohibition against
the sale of land to an alien, since the purpose of the waiver was
simply to authorize David Rey Guzman to dispose of their
properties in accordance with the Constitution and the laws
of the Philippines, and not to subvert them.
On the second issue, it held that the subject land was urban;
hence, petitioners had no reason to invoke their right of
redemption under Article 1621 of the Civil Code.
CA: The Halilis sought a reversal from the Court of Appeals which,
however, denied their appeal. Respondent Court affirmed the
factual finding of the trial court that the subject land was urban.
Citing Tejido vs. Zamacoma and Yap vs. Grageda, it further held
that, although the transfer of the land to David Rey may have been
invalid for being contrary to the Constitution, there was no more
point in allowing herein petitioners to recover the property, since
it has passed on to and was thus already owned by a qualified
person. Hence, this petition.
Issues:
1. Whether or not the land is urban and thus, there is no right
of redemption. [Yes]
2. Whether or not the sale to Cataniag is valid. [Yes]
Ruling: The petition has no merit.
ISSUE #1
The subject land is urban, hence,
there is no right of redemption
Subject land is urban
Whether the land in dispute is rural or urban is a factual question
which, as a rule, is not reviewable by this Court. Basic and long-
settled is the doctrine that findings of fact of a trial judge, when
affirmed by the CA, are binding upon the Supreme Court.
This admits of only a few exceptions, none of which are attendant
in the instant case.
In fact, the conclusion of the trial court—that the subject property
is urban land—is based on clear and convincing evidence, as
shown in its decision which disposed thus:
11
“x x x As observed by the court, almost all the roadsides along the national
highway of Bagbaguin, Sta. Maria, Bulacan, are lined up with residential,
commercial or industrial establishments. Lined up along the Bagbaguin
Road are factories of feeds, woodcrafts, and garments, commercial stores
for tires, upholstery materials, feeds supply and spare parts. Located
therein likewise were the Pepsi-Cola Warehouse, the Cruz Hospital, three
gasoline stations, apartment buildings for commercial purposes and
construction firms. There is no doubt, therefore, that the community is a
commercial area thriving in business activities. Only a short portion of
said road is vacant. It is to be noted that in the Tax Declaration in the
name of Helen Meyers Guzman, the subject land is termed agricultural,
while in the letter addressed to defendant Emiliano Cataniag, dated
October 3, 1991, the Land Regulatory Board attested that the subject
property is commercial and the trend of development along the road is
commercial. The Board’s classification is based on the present condition
of the property and the community thereat. Said classification is far more
later than the tax declaration.”
There is no ground to invoke right of redemption
In view of the finding that the subject land is urban in character,
petitioners have indeed no right to invoke Article 1621 of the
Civil Code, which presupposes that the land sought to be
redeemed is rural. The provision is clearly worded and admits of
no ambiguity in construction:
Article 1621. The owners of adjoining lands shall also have the right of
redemption when a piece of rural land, the area of which does not exceed
one hectare, is alienated, unless the grantee does not own any rural land.
xxx xxx xxx
Rule: Under this article, both lands—that sought to be redeemed
and the adjacent lot belonging to the person exercising the right
of redemption—must be rural. If one or both are urban, the right
cannot be invoked.
The purpose of this provision, which is limited in scope to rural
lands not exceeding one hectare, is to favor agricultural
development.
In this case: The subject land not being rural and, therefore, not
agricultural, this purpose would not be served if petitioners are
granted the right of redemption under Article 1621. Plainly, under
the circumstances, they cannot invoke it.
ISSUE #2
The sale to Cataniag is valid
Neither does the Court find any reversible error in the appellate
court’s holding that the sale of the subject land to Private
Respondent Cataniag renders moot any question on the
constitutionality of the prior transfer made by Helen Guzman to
her son David Rey.
Helen’s quitclaim in favor of David Rey collided with the
Article XII, Section 7 of the Constitution
True, Helen Guzman’s deed of quitclaim — in which she assigned,
transferred and conveyed to David Rey all her rights, titles and
interests over the property she had inherited from her husband
— collided with the Constitution, Article XII, Section 7 of which
provides:
11

Section 7. Save in cases of hereditary succession, no private lands shall be
transferred or conveyed except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.
Krivenko Rule
The landmark case of Krivenko vs. Register of Deeds settled the
issue as to who are qualified (and disqualified) to own public as
well as private lands in the Philippines.
Following a long discourse maintaining that the “public
agricultural lands” mentioned in Section 1, Article XIII of the
1935 Constitution, include residential, commercial and
industrial lands, the Court then stated:
“Under Section 1 of Article XIII [now Section 2, Art. XII] of the Constitution,
‘natural resources, with the exception of public agricultural land, shall not
be alienated,’ and with respect to public agricultural lands, their
alienation is limited to Filipino citizens. But this constitutional purpose
conserving agricultural resources in the hands of Filipino citizens may
easily be defeated by the Filipino citizens themselves who may alienate
their agricultural lands in favor of aliens. It is partly to prevent this result
that Section 5 is included in Article XIII, and it reads as follows:
Section 5. Save in cases of hereditary succession, no private agricultural
land will be transferred or assigned except to individuals, corporations or
associations qualified to acquire or hold lands of the public domain in the
Philippines.
This constitutional provision closes the only remaining avenue through
which agricultural resources may leak into aliens’ hands. It would certainly
be futile to prohibit the alienation of public agricultural lands to aliens if,
after all, they may be freely so alienated upon their becoming private
agricultural lands in the hands of Filipino citizens. Undoubtedly, as above
indicated, Section 5 [now Sec. 7] is intended to insure the policy of
nationalization contained in Section 1 [now Sec. 2]. Both sections must,
therefore, be read together for they have the same purpose and the same
subject matter. It must be noticed that the persons against whom the
prohibition is directed in Section 5 [now Section 7] are the very same
persons who under Section 1 [now Section 2] are disqualified ‘to acquire
or hold lands of the public domain in the Philippines.’ And the subject
matter of both sections is the same, namely, the non-transferability of
‘agricultural land’ to aliens. x x x”
The Krivenko rule was recently reiterated in Ong Ching Po vs. Court
of Appeals, which involves a sale of land to a Chinese citizen. The
Court said:
“The capacity to acquire private lands is made dependent upon the
capacity to acquire or hold lands of the public domain. Private land
may be transferred or conveyed only to individuals or entities
‘qualified to acquire lands of the public domain’ (II Bernas, the
Constitution of the Philippines 439-440 [1988 ed.]). The 1935 Constitution
reserved the right to participate in the ‘disposition, exploitation,
development and utilization’ of all ‘lands of the public domain and other
natural resources of the Philippines’ for Filipino citizens or corporations
at least sixty percent of the capital of which was owned by Filipinos.
Aliens, whether individuals or corporations, have been disqualified from
acquiring public lands; hence, they have also been disqualified from
acquiring private lands.”
Rule: In fine, non-Filipinos cannot acquire or hold title to
private lands or to lands of the public domain, except only by
way of legal succession.
12
The effect of a subsequent sale of a disqualified alien vendee
to a qualified Filipino citizen
Question: But what is the effect of a subsequent sale by the
disqualified alien vendee to a qualified Filipino citizen?
This is not a novel question.
Rule: Jurisprudence is consistent that “if land is invalidly
transferred to an alien who subsequently becomes a citizen or
transfers it to a citizen, the flaw in the original transaction is
considered cured and the title of the transferee is rendered
valid.”
Jurisprudence
Thus, in United Church Board of World Ministries vs. Sebastian, in
which an alien resident who owned properties in the
Philippines devised to an American non-stock corporation part
of his shares of stock in a Filipino corporation that owned a tract
of land in Davao del Norte, the Court sustained the invalidity of
such legacy. However, upon proof that ownership of the American
corporation has passed on to a 100 percent Filipino corporation,
the Court ruled that the defect in the will was “rectified by the
subsequent transfer of the property.”
The present case is similar to De Castro vs. Tan. In that case, a
residential lot was sold to a Chinese. Upon his death, his widow
and children executed an extrajudicial settlement, whereby said
lot was allotted to one of his sons who became a naturalized
Filipino. The Court did not allow the original vendor to have the
sale annulled and to recover the property, for the reason that the
land has since become the property of a naturalized Filipino
citizen who is constitutionally qualified to own land.
Likewise, in the cases of Sarsosa vs. Cuenco, Godinez vs. Pak Luen,
Vasquez vs. Li Seng Giap and Herrera vs. Luy Kim Guan, which
similarly involved the sale of land to an alien who thereafter sold
the same to a Filipino citizen, the Court again applied the rule
that the subsequent sale can no longer be impugned on the
basis of the invalidity of the initial transfer.
The rationale of this principle was explained in Vasquez vs. Li Seng
Giap thus:
“x x x If the ban on aliens from acquiring not only agricultural but also urban
lands, as construed by this Court in the Krivenko case, is to preserve the
nation’s lands for future generations of Filipinos, that aim or purpose
would not be thwarted but achieved by making lawful the acquisition of
real estate by aliens who became Filipino citizens by naturalization.”
In this case: Accordingly, since the disputed land is now owned by
Private Respondent Cataniag, a Filipino citizen, the prior
invalid transfer can no longer be assailed. The objective of the
constitutional provision — to keep our land in Filipino hands —
has been served.
Dispositive portion: The petition is hereby denied. The
challenged decision is affirmed.
How is it different from the United Church case?
12

In United Church Board of World Ministries v. Sebastian,
wherein an alien resident who owned properties in the Philippines
devised to an American non-stock corporation part of his shares
of stock in a Filipino corporation that owned a tract of land in
Davao del Norte, the Court sustained the invalidity of such legacy.
However, upon proof that ownership of the American corporation
has passed on to a 100 percent Filipino corporation, the Court
ruled that the defect in the will was rectified by the subsequent
transfer of the property.
Can you assail that prior invalid transfer?
Accordingly, since the disputed land is now owned by Private
Respondent Cataniag, a Filipino citizen, the prior invalid transfer
can no longer be assailed. The objective of the constitutional
provision -- to keep our land in Filipino hands -- has been served.
THE HALILI DOCTRINE
Jurisprudence is consistent that if land is invalidly transferred to
an alien who subsequently becomes a citizen, or transfers it to a
citizen, the flaw in the original transaction is considered cured and
the title of the transferee is rendered valid.
RATIONALE
The rationale of this principle was explained in Vasquez vs. Li Seng
Giap thus:
x x x [I]f the ban on aliens from acquiring not only agricultural
but also urban lands, as construed by this Court in the Krivenko
case, is to preserve the nations lands for future generations of
Filipinos, that aim or purpose would not be thwarted but
achieved by making lawful the acquisition of real estate by
aliens who became Filipino citizens by naturalization.
DIRECTOR OF LANDS & DIRECTOR OF FOREST
DEVELOPMENT vs. COURT OF APPEALS, VALERIANO, et. al.
(1984)
REORGANIZED FULL TEXT
Facts: Petitioners-public officials, through the Solicitor General,
seek a review of the Decision and Resolution of the then Court of
Appeals affirming the judgment of the former Court of First
Instance of Bulacan, Branch III, decreeing registration of a parcel
of land in private respondents’ favor.
The land in question, identified as Lot 2347, Cad-302-D, Case 3,
Obando Cadastre, under Plan Ap-03-000535, is situated in
Obando, Bulacan, and has an area of approximately 9.3 hectares.
It adjoins the Kailogan River and private respondents have
converted it into a fishpond.
Private respondents’ contentions
In their application for registration filed on May 10, 1976, private
respondents (applicants, for brevity) claimed:
• that they are the co-owners in fee simple of the land applied
for partly through inheritance in 1918 and partly by
purchase on May 2, 1958;
13
• that it is not within any forest zone or military reservation;
and
• that the same is assessed for taxation purposes in their
names.
The Republic’s opposition
The Republic of the Philippines, represented by the Director of
the Bureau of Forest Development opposed the application on
the principal grounds:
• that the land applied for is within the unclassified region
of Obando, Bulacan, per BF Map LC No. 637 dated March 1,
1927; and
• that areas within the unclassified region are denominated as
forest lands and do not form part of the disposable and
alienable portion of the public domain.
TC: After hearing, the TC ordered registration of the subject land
in favor of the applicants.
CA: This was affirmed on appeal by respondent CA, which found
that “through indubitable evidence (applicants) and their
predecessors-in-interest have been in open, public, continuous,
peaceful and adverse possession of the subject parcel of land
under a bona fide claim of ownership for more than 30 years prior
to the filing of the application” and are, therefore, entitled to
registration.
It further opined that “since the subject property is entirely
devoted to fishpond purposes, it cannot be categorized as part
of forest lands.”
Issues:
1. Whether or not Courts can reclassify the subject public land.
[No]
2. Whether or not applicants are entitled to judicial
confirmation of title. [No]
Indorsement by the District Forester
The parties, through their respective counsel, stipulated that the
land is within an unclassified region of Obando, Bulacan, as
shown by BF Map LC No. 637, dated March 1, 1927.
No evidence has been submitted that the land has been
released or subsequently classified despite an Indorsement,
dated November 17, 1976, of the District Forester, to the
Director of Forest Development, containing the following
recommendation:
“Subject area requested for release was verified and found to be within
the Unclassified Region of Obando, Bulacan per BF LC Map No. 637,
certified March 1, 1927. However, on-the-spot inspection conducted by a
representative of this Office, it disclosed that the same was devoid of any
forest growth and forms part of a well-developed and 100-percent-
producing fishponds. Two houses of light materials were erected within
the area for the caretaker’s temporary dwelling.
13
 14

In view thereof, and in fairness to the applicant considering the investment

introduced therein this Office believes that the release is in order.
Recommended for approval and be disposed of in accordance with the
Public Land Law.”
Ruling: The Government’s cause is meritorious.
Applicants’ remedy lies in the release of the property from its
present classification. In fairness to applicants, and it appearing
that there are titled lands around the subject property,
petitioners-officials should give serious consideration to the
matter of classification of the land in question.

Dispositive portion: The appealed decision is reversed and the

It is beyond the competence and jurisdiction of courts to
application for registration in Land Registration Case No. N-
classify public lands, which is the exclusive prerogative of the
299-V-76 of the former Court of First Instance of Bulacan, Branch
executive department
III, is hereby dismissed, without prejudice to the availment by the
In effect, what the Courts a quo have done is to release the
applicants of the proper administrative remedy.
subject property from the unclassified category, which is
beyond their competence and jurisdiction.

Rule: The classification of public lands is an exclusive

prerogative of the Executive Department of the Government
and not of the Courts.
LAW: INDIGENOUS PEOPLE’S RIGHTS ACT OF 1997 (IPRA)

Rule: In the absence of such classification, the land remains as

unclassified land until it is released therefrom and rendered
open to disposition.
This should be so under time-honored Constitutional precepts.
This is also in consonance with the Regalian Doctrine that all
lands of the public domain belong to the State, and that the State
is the source of any asserted right to ownership in land and
charged with the conservation of such patrimony.
Republic Act No. 8371
AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS
OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS
PEOPLES, CREATING A NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING
MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR
OTHER PURPOSES

The recommendation of the District Forester for release of
subject property from the unclassified region is not the
ultimate word on the matter.
And the fact that BF Map LC No. 637 dated March 1, 1927 showing
subject property to be within the unclassified region was not
presented in evidence will not operate against the State
considering the stipulation between the parties and under the
well-settled rule that the State cannot be estopped by the
omission, mistake or error of its officials or agents, if omission
there was, in fact.
Signed into law on: October 29, 1997
Took effect on: November 23, 1997
*Note:
The pertinent and relevant provisions are cited in the discussion of
the case of Cruz vs. Executive Secretary.
Customary law – those traditional common rules and practice
which have become intrinsic part of accepted and expected
conduct in the community and is treated as a source of law.

While it may be that the Municipality of Obando has been
cadastrally surveyed in 1961, it does not follow that all lands
comprised therein are automatically released as alienable.
Rule: A survey made in a cadastral proceeding merely
identifies each lot preparatory to a judicial proceeding for
adjudication of title to any of the lands upon claim of
interested parties. Besides, if land is within the jurisdiction of the
Bureau of Forest Development, it would be beyond the
jurisdiction of the Cadastral Court to register it under the Torrens
System.
In this case: Since the subject property is still unclassified,
whatever possession applicants may have had, and, however
long, cannot ripen into private ownership.
The conversion of subject property into a fishpond by
applicants, or the alleged titling of properties around it, does
not automatically render the property as alienable and
disposable.
When we tackle IPRA we will be forgetting settled principles in
possession and ownership.
IPRA – novel legislation which deals with ICCs and IPs which such
terms are used interchangeably.
TERMINOLOGIES
Indigenous Cultural Communities (ICCs) – used in 1987
Constitution
Indigenous Peoples (IPs) – contemporary international language
(ILO) (UN)
IPRA, Section 3. Definition of terms.
h) Indigenous Cultural Communities/Indigenous Peoples —
refer to a group of people or homogenous societies identified by
self-ascription and ascription by others, who have continuously
lived as organized community on communally bounded and

14

defined territory, and who have, under claims of ownership since
time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs,
traditions and other distinctive cultural traits, or who have,
through resistance to political, social and cultural inroads of
colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. ICCs/IPs
shall likewise include peoples who are regarded as indigenous on
account of their descent from the populations which inhabited
the country, at the time of conquest or colonization, or at the time
of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all
of their own social, economic, cultural and political institutions,
but who may have been displaced from their traditional domains
or who may have resettled outside their ancestral domains.
CRUZ vs. ENVIRONMENT AND NATURAL RESOURCES (1998)
This is a suit for prohibition and mandamus as citizens and
taxpayers, assailing the constitutionality of certain provisions of
Republic Act No. 8371 (R.A. 8371), otherwise known as the
Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules).
DIGEST
Facts: In 1997, R.A. No. 8371 (Indigenous Peoples Rights
Act/IPRA) was passed.
Isagani Cruz and Cesar Europa filed a petition for prohibition
and mandamus, questioning the constitutionality of certain
provisions of IPRA.
Petitioners’ contentions:
The petitioners assail certain provisions of the IPRA and its IRR on
the grounds that:
1. it allows the indigenous cultural communities or indigenous
people (ICCs/IPs) to own natural resources;
2. it defines ancestral lands and ancestral domains in such a way
that it may include private lands owned by other individuals;
3. it categorizes ancestral lands and domains held by native title
as never to have been public land;
4. it violates due process in allowing the National Commission
on Indigenous Peoples {NCIP) to take jurisdiction over IP land
disputes and making customary law apply to these.
5. it amounts to an unlawful deprivation of the State’s
ownership over lands of the public domain as well as minerals
and other natural resources therein, in violation of the
Regalian Doctrine embodied in Section 2, Article XII of the
Constitution.
Issues:
1. Whether or not the provisions of the IPRA contravene the
constitution. [No]
2. Whether or not the IPRA violates the Regalian Doctrine. [No]
15
IPRA: Under the IPRA law, lands which have not been registered before, if
granted with a CADT/CALT, will be recognized as privately owned by the
IPs from the beginning, thus, such lands have never been part of public
domain.
Regalian Doctrine: Lands which have not been recognized as privately
owned belongs to the State.
Ruling: There was no final decision. The petition is dismissed due
to the lack of votes. The law remains valid and not
unconstitutional (7 to grant and 7 to dismiss).
No, the provisions of the IPRA do not contravene the Constitution.
There is nothing in the law that grants to the ICCs/IPs ownership
over the natural resources within their ancestral domain.
Ownership over the natural resources in the ancestral domains
remains with the State and rights granted by the IPRA to the
ICCs/IPs over the natural resources in their ancestral domains
merely gives them, as owners and occupants of the land on which
the resources are found, the right to the small-scale utilization of
these resources, and at the same time, a priority in their large scale
development and exploitation.
Additionally, ancestral lands and ancestral domains are not
part of the lands of the public domain. They are private lands
and belong to the ICCs/IPs by native title, which is a concept of
private land title that existed irrespective of any royal grant from
the State. However, the right of ownership and possession by the
ICCs/IPs of their ancestral domains is a limited form of ownership
and does not include the right to alienate the same.
Justice Puno’s separate opinion: IPRA does not violate the
Regalian Doctine.
SUMMARY
The lands claimed by the IPs have long been theirs by virtue
of native title.
They have lived there even before the Spanish colonization.
“Native title refers to ICCs/IPs’ pre‐conquest rights to lands and
domains held under a claim of private ownership as far back as
memory reaches. These lands are deemed never to have been
public lands and are indisputable presumed to have been held that
way since before the Spanish Conquest.”
The native title is an exception to the Regalian Doctrine.
Oh Cho v. Director of Lands: “This exception would be any land
that should have been in the possession of an occupant and of
his predecessors‐in‐interest since time immemorial.”
Native titles provide a different type of private ownership.
“Section 5. Indigenous concept of ownership. ‐‐‐ Indigenous
concept of ownership sustains the view that ancestral domains and
all resources found therein shall serve as the material bases of their
cultural integrity. The indigenous concept of ownership generally
holds that ancestral domains are the ICCs/IPs private but
community property which belong to all generations and
therefore cannot be sold, disposed or destroyed. It likewise
covers sustainable traditional resource rights.”
15

The IPRA complies with Regalian Doctrine: Natural resources
within ancestral domains are not owned by the IPs.
The IPs claims are limited to “lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional
hunting and fishing grounds, and all improvements made by them
at any time within the domains.”
IPRA did not mention that the IPs also own all the other natural
resources found within the ancestral domains.
JUSTICE PUNO’S SEPARATE OPINION
Jutice puno endeavored to discuss the historical background of
the ICCs and IPs; that the Philippine Indigenous peoples are
composed of 110 tribes.
History
The ancient Filipinos settled beside bodies of water. Hunting and
food gathering became supplementary activities as reliance on
them was reduced by fishing and the cultivation of the soil.
Laws were either customary or written. Customary laws were
handed down orally from generation to generation and
constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder
persons in the community.
Barangaic society had a distinguishing feature: the absence of
private property in land.
All lands lost by the old barangays in the process of pueblo
organization as well as all lands not assigned to them and the
pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king.
The abrogation of the Filipinos’ ancestral rights in land and the
introduction of the concept of public domain were the most
immediate fundamental results of Spanish colonial theory and
law..
Like the Spaniards, the Americans pursued a policy of assimilation.
The Americans classified the Filipinos into two: the Christian
Filipinos and the non-Christian Filipinos. The term “non-Christian”
referred not to religious belief, but to a geographical area, and
more directly, “to natives of the Philippine Islands of a low grade
of civilization, usually living in tribal relationship apart from
settled communities.”
1935 Constitution
The 1935 Constitution did not carry any policy on the non-
Christian Filipinos. The raging issue then was the conservation of
the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed RA. No. 1888, an “Act to
effectuate in a more rapid and complete manner the economic,
social, moral and political advancement of the non-Christian
Filipinos or national cultural minorities and to render real,
16
complete, and permanent the integration of all said national
cultural minorities into the body politic, creating the Commission
on National Integration charged with said functions. The law
called for a policy of integration of indigenous peoples into the
Philippine mainstream and for this purpose created the
Commission on National Integration (CNI).
Knowledge by the settlers of the Public Land Acts and the Torrens
system resulted in the titling of several ancestral lands in the
settlers’ names. With government initiative and participation, this
titling displaced several indigenous peoples from their lands
As a recognition that The policy of assimilation and integration
did not yield the desired result…
1973 Constitution
“The State shall consider the customs, traditions, beliefs, and
interests of national cultural communities in the formulation and
implementation of State policies.”
For the first time in Philippine history, the “non-Christian tribes”
or the “cultural minorities” were addressed by the highest law of
the Republic, and they were referred to as “cultural communities.”
President Marcos abolished the CNI and transferred its functions
to the Presidential Adviser on National Minorities (PANAMIN).
The PANAMIN was tasked to integrate the ethnic groups that
sought full integration into the larger community, and at the same
time “protect the rights of those who wish to preserve their
original lifeways beside the larger community.” In short, while
still adopting the integration policy, the decree recognized
the right of tribal Filipinos to preserve their way of life
1987 Constitution
The Aquino government signified a total shift from the policy of
integration to one of preservation. Invoking her powers under
the Freedom Constitution, President Aquino created the Office of
Muslim Affairs, Office for Northern Cultural Communities
and the Office for Southern Cultural Communities all under
the Office of the President.
The 1987 Constitution carries at least six (6) provisions which
insure the right of tribal Filipinos to preserve their way of life:
Article II, Section 22; Article VI, Section 5, paragraph 2; Article
XII, Section 5; Article XIII, Sec. 6; Article XIV, sec. 17; and
Article XVI, sec. 12. (NOTE THIS)
This Constitution goes further than the 1973 Constitution by
expressly guaranteeing the rights of tribal Filipinos to their
ancestral domains and ancestral lands. By recognizing their
right to their ancestral lands and domains, the State has
effectively upheld their right to live in a culture distinctly their
own.
4 RIGHTS UNDER THE IPRA
1. Right to ancestral domain and land.
2. Right to self-governance and empowerment.
16

3. Right to Social justice and human rights.
4. Right to cultural integrity.
ANCESTRAL DOMAINS AND ANCESTRAL LANDS
*Note: Memorize the definition of the terms ancestral domains and
ancestral lands.
Section 3. Definition of Terms. — For purposes of this Act, the
following terms shall mean:
a) Ancestral Domains — Subject to Section 56 hereof, refer to all
areas generally belonging to ICCs/IPs comprising lands, inland
waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, communally or individually
since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any
other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their
economic, social and cultural welfare. It shall include ancestral
lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies
of water, mineral and other natural resources, and lands which
may no longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who
are still nomadic and/or shifting cultivators;
b) Ancestral Lands — Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans
who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, under
claims of individual or traditional group ownership, continuously,
to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence of
government projects and other voluntary dealings entered into
by government and private individuals/corporations, including,
but not limited to, residential lots, rice terraces or paddies, private
forests, swidden farms and tree lots;
THE INDIGENOUS CONCEPT OF OWNERSHIP
The right of ownership and possession of the ICCs/IPs to their
ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral
domains are the ICCs/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 ICCs/IPs and not by one particular
person.
How is this different from Civil Law concepts on ownership?
In civil law concepts on ownership, a co-owner has the right to
demand partition; but this is not the case in ancestral domain
because the idea is it is community owned and they are forced to
remain in such co-ownership. Further, this is not the same with
17
the concept of communal rights and properties where you can
demand dissolution; there is a different principle
Communal rights to the land are held not only by the present
possessors of the land but extends to all generations of the
ICCs/IPs, past, present and future, to the domain. This is the
reason why the ancestral domain must be kept within the ICCs/IPs
themselves. The domain cannot be transferred, sold or conveyed
to other persons.It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of
ownership. The lands are communal.
TRANSFER, LIMITATIONS.
These lands, however, may be transferred subject to the following
limitations:
1. only to the members of the same ICCs/IPs;
2. in accord with customary laws and traditions; and
3. subject to the right of redemption of the ICCs/IPs for a period
of 15 years if the land was transferred to a nonmember of the
ICCs/IPs.
ANCESTRAL DOMAINS AND ANCESTRAL LANDS
*Note: Memorize the definition of the term native title.
c) Certificate of Ancestral Domain Title — refers to a title
formally recognizing the rights of possession and ownership of
ICCs/IPs over their ancestral domains identified and delineated in
accordance with this law;
d) Certificate of Ancestral Lands Title — refers to a title formally
recognizing the rights of ICCs/IPs over their ancestral lands;
l) Native Title — refers to pre-conquest rights to lands and
domains which, as far back as memory reaches, have been held
under a claim of private ownership by ICCs/IPs, have never been
public lands and are thus indisputably presumed to have been
held that way since before the Spanish Conquest;
To be sure, the indigenous concept of ownership exists even
without a paper title.
RIGHTS TO ANCESTRAL DOMAINS AND ANCESTRAL LANDS
Section 7. Rights to Ancestral Domains. — The rights of
ownership and possession of ICCs/IPs to their ancestral domains
shall be recognized and protected. Such rights shall include:
a) Right of Ownership. — The right to claim ownership over
lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing grounds,
and all improvements made by them at any time within the
domains;
b) Right to Develop Lands and Natural Resources. — Subject
to Section 56 hereof, right to develop, control and use lands and
17

territories traditionally occupied, owned, or used; to manage and
conserve natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the
profits from allocation and utilization of the natural resources
found therein; the right to negotiate the terms and conditions for
the exploration of natural resources in the areas for the purpose
of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws;
the right to an informed and intelligent participation in the
formulation and implementation of any project, government or
private, that will affect or impact upon the ancestral domains and
to receive just and fair compensation for any damages which they
may sustain as a result of the project; and the right to effective
measures by the government to prevent any interference with,
alienation and encroachment upon these rights;
c) Right to Stay in the Territories. — The right to stay in the
territory and not to be removed therefrom. No ICCs/IPs will be
relocated without their free and prior informed consent, nor
through any means other than eminent domain. Where relocation
is considered necessary as an exceptional measure, such
relocation shall take place only with the free and prior informed
consent of the ICCs/IPs concerned and whenever possible, they
shall be guaranteed the right to return to their ancestral domains,
as soon as the grounds for relocation cease to exist. When such
return is not possible, as determined by agreement or through
appropriate procedures, ICCs/IPs shall be provided in all possible
cases with lands of quality and legal status at least equal to that
of the land previously occupied by them, suitable to provide for
their present needs and future development. Persons thus
relocated shall likewise be fully compensated for any resulting
loss or injury;
d) Right in Case of Displacement. — In case displacement
occurs as a result of natural catastrophes, the State shall endeavor
to resettle the displaced ICCs/IPs in suitable areas where they can
have temporary life support systems: Provided, That the displaced
ICCs/IPs shall have the right to return to their abandoned lands
until such time that the normalcy and safety of such lands shall be
determined: Provided, further, That should their ancestral domain
cease to exist and normalcy and safety of the previous settlements
are not possible, displaced ICCs/IPs shall enjoy security of tenure
over lands to which they have been resettled: Provided,
furthermore, That basic services and livelihood shall be provided
to them to ensure that their needs are adequately addressed;
e) Right to Regulate Entry of Migrants. — Right to regulate the
entry of migrant settlers and organizations into the domains;
f) Right to Safe and Clean Air and Water. — For this purpose,
the ICCs/IPs shall have access to integrated systems for the
management of their inland waters and air space;
g) Right to Claim Parts of Reservations. — The right to claim
parts of the ancestral domains which have been reserved for
various purposes, except those reserved and intended for
common public welfare and service; and
h) Right to Resolve Conflict. — Right to resolve land conflicts in
accordance with customary laws of the area where the land is
18
located, and only in default thereof shall the complaints be
submitted to amicable settlement and to the Courts of Justice
whenever necessary.
Section 8. Rights to Ancestral Lands. — The right of ownership
and possession of the ICCs/IPs to their ancestral lands shall be
recognized and protected.
a) Right to transfer land/property. — Such right shall include
the right to transfer land or property rights to/among members
of the same ICCs/IPs, subject to customary laws and traditions of
the community concerned.
b) Right to Redemption. — In cases where it is shown that the
transfer of land/property rights by virtue of any agreement or
devise, to a non-member of the concerned ICCs/IPs is tainted by
the vitiated consent of the ICCs/IPs, or is transferred for an
unconscionable consideration or price, the transferor ICC/IP shall
have the right to redeem the same within a period not exceeding
fifteen (15) years from the date of transfer.
Take note: there is a right to redeem if ancestral land is
transferred to a non-member.
Section 12. Option to Secure Certificate of Title Under
Commonwealth Act 141, as amended, or the Land
Registration Act 496. — Individual members of cultural
communities, with respect to their individually-owned ancestral
lands who, by themselves or through their predecessors-in-
interest, have been in continuous possession and occupation of
the same in the concept of owner since time immemorial or for a
period of not less than thirty (30) years immediately preceding the
approval of this Act and uncontested by the members of the same
ICCs/IPs shall have the option to secure title to their ancestral
lands under the provisions of Commonwealth Act 141, as
amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which
are agricultural in character and actually used for agricultural,
residential, pasture, and tree farming purposes, including those
with a slope of eighteen percent (18%) or more, are hereby
classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within
twenty (20) years from the approval of this Act.
Effect of Registration
A duly issued Torrens Certificate of Title covering ancestral lands
has the same efficacy validity and indefeasibility as any title issued
under registration proceedings.
OTHER RIGHTS
Section 13. Self-Governance. — The State recognizes the
inherent right of ICCs/IPs to self-governance and self-
determination and respects the integrity of their values, practices
and institutions. Consequently, the State shall guarantee the right
of ICCs/IPs to freely pursue their economic, social and cultural
development.
18

Section 15. Justice System, Conflict Resolution Institutions,
and Peace Building Processes. — The ICCs/IPs shall have the
right to use their own commonly accepted justice systems,
conflict resolution institutions, peace building processes or
mechanisms and other customary laws and practices within their
respective communities and as may be compatible with the
national legal system and with internationally recognized human
rights.
Section 16. Right to Participate in Decision-Making. —
ICCs/IPs have the right to participate fully, if they so choose, at all
levels of decision-making in matters which may affect their rights,
lives and destinies through procedures determined by them as
well as to maintain and develop their own indigenous political
structures. Consequently, the State shall ensure that the ICCs/IPs
shall be given mandatory representation in policy-making bodies
and other local legislative councils.
Section 17. Right to Determine and Decide Priorities for
Development. — The ICCs/IPs shall have the right to determine
and decide their own priorities for development affecting their
lives, beliefs, institutions, spiritual well-being, and the lands they
own, occupy or use. They shall participate in the formulation,
implementation and evaluation of policies, plans and programs
for national, regional and local development which may directly
affect them.
Section 21. Equal Protection and Non-discrimination of
ICCs/IPs. — Consistent with the equal protection clause of the
Constitution of the Republic of the Philippines, the Charter of the
United Nations, the Universal Declaration of Human Rights
including the Convention on the Elimination of Discrimination
Against Women and International Human Rights Law, the State
shall, with due recognition of their distinct characteristics and
identity, accord to the members of the ICCs/IPs the rights,
protections and privileges enjoyed by the rest of the citizenry. It
shall extend to them the same employment rights, opportunities,
basic services, educational and other rights and privileges
available to every member of the society. Accordingly, the State
shall likewise ensure that the employment of any form of force or
coercion against ICCs/IPs shall be dealt with by law.
The State shall ensure that the fundamental human rights and
freedoms as enshrined in the Constitution and relevant
international instruments are guaranteed also to indigenous
women. Towards this end, no provision in this Act shall be
interpreted so as to result in the diminution of rights and
privileges already recognized and accorded to women under
existing laws of general application.
Section 22. Rights During Armed Conflict. — ICCs/IPs have the
right to special protection and security in periods of armed
conflict. The State shall observe international standards, in
particular, the Fourth Geneva Convention of 1949, for the
protection of civilian populations in circumstances of emergency
and armed conflict, and shall not recruit members of the
ICCs/IPs against their will into the armed forces, and in
particular, for use against other ICCs/IPs; nor recruit children
of ICCs/IPs into the armed forces under any circumstance; nor
19
force indigenous individuals to abandon their lands,
territories and means of subsistence, or relocate them in
special centers for military purposes under any discriminatory
condition.
Section 23. Freedom from Discrimination and Right to Equal
Opportunity and Treatment. — It shall be the right of the
ICCs/IPs to be free from any form of discrimination, with respect
to recruitment and conditions of employment, such that they may
enjoy equal opportunities for admission to employment, medical
and social assistance, safety as well as other occupationally-
related benefits, informed of their rights under existing labor
legislation and of means available to them for redress, not subject
to any coercive recruitment systems, including bonded labor and
other forms of debt servitude; and equal treatment in
employment for men and women, including the protection from
sexual harassment.
Towards this end, the State shall, within the framework of national
laws and regulations, and in cooperation with the ICCs/IPs
concerned, adopt special measures to ensure the effective
protection with regard to the recruitment and conditions of
employment of persons belonging to these communities, to the
extent that they are not effectively protected by laws applicable
to workers in general.
ICCs/IPs shall have the right to association and freedom for all
trade union activities and the right to conclude collective
bargaining agreements with employers’ organizations. They shall
likewise have the right not to be subject to working conditions
hazardous to their health, particularly through exposure to
pesticides and other toxic substances.
Section 25. Basic Services. — The ICCs/IPs have the right to
special measures for the immediate, effective and continuing
improvement of their economic and social conditions, including
in the areas of employment, vocational training and retraining,
housing, sanitation, health and social security. Particular attention
shall be paid to the rights and special needs of indigenous
women, elderly, youth, children and differently-abled persons.
Accordingly, the State shall guarantee the right of ICCs/IPs to
government’s basic services which shall include, but not limited
to, water and electrical facilities, education, health, and
infrastructure.
Section 26. Women. — ICC/IP women shall enjoy equal rights
and opportunities with men, as regards the social, economic,
political and cultural spheres of life. The participation of
indigenous women in the decision-making process in all levels, as
well as in the development of society, shall be given due respect
and recognition.
The State shall provide full access to education, maternal and
child care, health and nutrition, and housing services to
indigenous women. Vocational, technical, professional and other
forms of training shall be provided to enable these women to fully
participate in all aspects of social life. As far as possible, the State
shall ensure that indigenous women have access to all services in
their own languages.
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Section 27. Children and Youth. — The State shall recognize the
vital role of the children and youth of ICCs/IPs in nation-building
and shall promote and protect their physical, moral, spiritual,
intellectual and social well-being. Towards this end, the State shall
support all government programs intended for the development
and rearing of the children and youth of ICCs/IPs for civic
efficiency and establish such mechanisms as may be necessary for
the protection of the rights of the indigenous children and youth.
Section 28. Integrated System of Education. — The State shall,
through the NCIP, provide a complete, adequate and integrated
system of education, relevant to the needs of the children and
young people of ICCs/IPs.
Section 29. Protection of Indigenous Culture, Traditions and
Institutions. — The State shall respect, recognize and protect the
right of ICCs/IPs to preserve and protect their culture, traditions
and institutions. It shall consider these rights in the formulation
and application of national plans and policies.
Section 30. Educational Systems. — The State shall provide
equal access to various cultural opportunities to the ICCs/IPs
through the educational system, public or private cultural entities,
scholarships, grants and other incentives without prejudice to
their right to establish and control their educational systems and
institutions by providing education in their own language, in a
manner appropriate to their cultural methods of teaching and
learning. Indigenous children/youth shall have the right to all
levels and forms of education of the State.
Section 31. Recognition of Cultural Diversity. — The State shall
endeavor to have the dignity and diversity of the cultures,
traditions, histories and aspirations of the ICCs/IPs appropriately
reflected in all forms of education, public information and
cultural-educational exchange. Consequently, the State shall take
effective measures, in consultation with ICCs/IPs concerned, to
eliminate prejudice and discrimination and to promote tolerance,
understanding and good relations among ICCs/IPs and all
segments of society. Furthermore, the Government shall take
effective measures to ensure that the State-owned media duly
reflect indigenous cultural diversity. The State shall likewise
ensure the participation of appropriate indigenous leaders in
schools, communities and international cooperative undertakings
like festivals, conferences, seminars and workshops to promote
and enhance their distinctive heritage and values.
Section 32. Community Intellectual Rights. — ICCs/IPs have
the right to practice and revitalize their own cultural traditions and
customs. The State shall preserve, protect and develop the past,
present and future manifestations of their cultures as well as the
right to the restitution of cultural, intellectual, religious, and
spiritual property taken without their free and prior informed
consent or in violation of their laws, traditions and customs.
Section 33. Rights to Religious, Cultural Sites and Ceremonies.
— ICCs/IPs shall have the right to manifest, practice, develop, and
teach their spiritual and religious traditions, customs and
ceremonies; the right to maintain, protect and have access to their
religious and cultural sites; the right to use and control of
ceremonial objects; and, the right to the repatriation of human
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remains. Accordingly, the State shall take effective measures, in
cooperation with the ICCs/IPs concerned, to ensure that
indigenous sacred places, including burial sites, be preserved,
respected and protected. To achieve this purpose, it shall be
unlawful to:
a. Explore, excavate or make diggings on archeological sites of
the ICCs/IPs for the purpose of obtaining materials of cultural
values without the free and prior informed consent of the
community concerned; and
b. Deface, remove or otherwise destroy artifacts which are of
great importance to the ICCs/IPs for the preservation of their
cultural heritage.
Section 34. Right to Indigenous Knowledge Systems and
Practices and to Develop own Sciences and Technologies. —
ICCs/IPs are entitled to the recognition of the full ownership and
control and protection of their cultural and intellectual rights.
They shall have the right to special measures to control, develop
and protect their sciences, technologies and cultural
manifestations, including human and other genetic resources,
seeds, including derivatives of these resources, traditional
medicines and health practices, vital medicinal plants, animals and
minerals, indigenous knowledge systems and practices,
knowledge of the properties of fauna and flora, oral traditions,
literature, designs, and visual and performing arts.
Section 35. Access to Biological and Genetic Resources. —
Access to biological and genetic resources and to indigenous
knowledge related to the conservation, utilization and
enhancement of these resources, shall be allowed within ancestral
lands and domains of the ICCs/IPs only with a free and prior
informed consent of such communities, obtained in accordance
with customary laws of the concerned community.
Section 36. Sustainable Agro-Technical Development. — The
State shall recognize the right of ICCs/IPs to a sustainable agro-
technological development and shall formulate and implement
programs of action for its effective implementation. The State
shall likewise promote the bio-genetic and resource management
systems among the ICCs/IPs and shall encourage cooperation
among government agencies to ensure the successful sustainable
development of ICCs/IPs.
Section 37. Funds for Archeological and Historical Sites. —
The ICCs/IPs shall have the right to receive from the national
government all funds especially earmarked or allocated for the
management and preservation of their archeological and
historical sites and artifacts with the financial and technical
support of the national government agencies.
SOME NOTES
• Memorize the definition of the terms ancestral domains and
ancestral lands.
• Memorize how native title is defined.
• Take note of what the rights are.
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NCIP statement on APP taping IP soldiers to fight against NPA

NCIP statement on the use of “Bagani” in the ABS-CBN Drama

Fantasy Series

• Listing of rights categorized into 4 are not empty rights;

• It is not a ceremonial listing of rights;
• Issues on cultural sensitivity cannot be downplayed;
• We should not overly romanticize issue.

END NOTE: Relate it to concepts of ownership under CA 141 and

also the general concept of Regalian Doctrine.

End of first examination coverage.

Good luck!

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