Who Owns Our Land?

A Disquisition on the Case

of Cruz vs Secretary of
Environment and Natural
Resources

Submitted By: Mark Vincent Fusilero

 Who Owns Our Land?
A Disquisition on the Case of Cruz vs Secretary of
Environment and Natural Resources
“You ask if we own the land. . . How can you own that which will outlive
you? Only the race own the land because only the race lives forever. To
claim a piece of land is a birthright of every man. The lowly animals claim
their place; how much more man? Man is born to live. Apu Kabunian, lord
of us all, gave us life and placed us in the world to live human lives. And
where shall we obtain life? From the land. To work (the land) is an
obligation, not merely a right. In tilling the land, you possess it. And so land
is a grace that must be nurtured. To enrich it and make it fructify is the
eternal exhortation of Apu Kabunian to all his children. Land is sacred. Land
is beloved. From its womb springs …life.” These were the words of Macli-
ing Dulag, Chieftain of the Kalinga Tribe who opposed the construction a
dam in the Cordilleras which would greatly affect the indigenous cultural
communities who have lived in that area since time immemorial.

His words also resonate in the provisions of the Indigenous People’s Rights
Act (IPRA) which recognizes Indigenous concept of ownership. Through
these it 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 belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise
covers sustainable traditional resource rights."

However, not everyone agrees on this concept of ownership. Thus, the said
constitutionality of the said law was challenged by some. They believe that
giving public lands to the indigenous people is a violation of the Regalian
Doctrine which has been incorporated even in the Constitution which states
that all land of public domain belongs to the state and that the State is the
source of all asserted rights of ownership and charged with the conservation
of its patrimony. This means, that recognizing the indigenous concept of
ownership would turn the tables of state ownership which has been the basis
of the government in claiming lands of public domain. The petition was filed
by the renowned Constitutional Law author Isagani Cruz. On December 6,
2000 the Supreme Court promulgated its decision to dismiss the petition.
However the reason was because it was not able to come up with the
required number of votes to rule on the constitutionality of the law. Different
justices have expressed their opinions as to whether to grant the petition or
not which made them to examine further the previous laws and
jurisprudences which was the basis of the creation of the IPRA Law.

The main question that must be answered is who basically owns our land? Is
it the government or is it the people? To answer these we have to examine
our history first. Philippines were not yet known to the world however these
islands were known existing from our Asian neighborhood nations. We had
been trading with China way back centuries past. We were also called
“Maniolas Ophir” or the island of Gold by Greeks. There was already a
system of government called barangays ruled by datus. A system of laws
was also implemented evidenced by the Code of Kalantiaw. There is a
system of writing being used by the natives called baybayin. However the
natives were not united. Each has its own traditions and laws they follow.
After the Spaniards came, some natives got were baptized and began to be
Christians while the rest preserved their cultures while fighting for their
place in the islands. In fact many of the revolutions against Spaniards were
started by native. The resisted the colonial invasion and won making their
own communities not influenced by the foreign conquerors.

Since the Spaniards came, the whole Archipelago was under the Spanish
Empire and everyone is a subject of the king. Philippines was named from
the Spanish King Phillip II. In effect, the island was owned by the King
which is the basis of the Regalian Doctrine. Since the King is the state, the
King by effect owns the land. To own a land it must be through a grant of
the king. Then the Spanish Mortgage Law came into effect to govern
transfer of ownership of real properties. When the Spaniards were defeated
we became a colony of the United States. Through the Commonwealth a
new law was enacted which incorporated the Torrens system which is the
Public Land Act. Now it is the State who owns the land. However the
doctrine was challenged when Don Carino who was an Ibaloi claimed that a
several parcels of land were actually owned by his ancestors and that they
were in possession and occupation of such land since time immemorial.
Thus, Justice Holmes acknowledged the exception to the regalian doctrine
which is through native title. The Carino decision was also based on the
strong mandate extended to the Islands via the Philippine Bill of 1902 that
"No law shall be enacted in said islands which shall deprive any person of
life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws." Thus the said several parcel of lads
were never public domain but rather private land which Don Carino is
entitled.

From this monumental decision, several laws were passed that recognizes
the concept of indigenous ownership. In fact in 1974, President Marcos
promulgated P.D. No. 410, otherwise known as the Ancestral Lands Decree.
The decree provided for the issuance of land occupancy certificates to
members of the national cultural communities who were given up to 1984 to
register their claims. In 1979, the Commission on the Settlement of Land
Problems was created under E.O. No. 561 which provided a mechanism for
the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.

Unfortunately despite the promulgation of these laws, from 1974 to the early
1980's, some 100,000 Kalingas and Bontoks of the Cordillera region were
displaced by the Chico River dam project of the National Power Corporation
(NPC) which was opposed by Macli-ing Dulag. Even the Manobos of
Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries
Company (BUSCO). In Agusan del Sur, the National Development
Company was authorized by law in 1979 to take approximately 40,550
hectares of land that later became the NDC-Guthrie plantation in Agusan del
Sur. Most of the land was possessed by the Agusan natives. Timber
concessions, water projects, plantations, mining, and cattle ranching and
other projects of the national government led not only to the eviction of the
indigenous peoples from their land but also to the reduction and destruction
of their natural environment.

Thus, in order to protect the right of indigenous peoples and in our

commitment to formally recognize the existence of ICCs/IPs and declares as
a State policy the promotion of their rights within the framework of national
unity and development. The IPRA amalgamates the Philippine category of
ICCs with the international category of IPs, and is heavily influenced by
both the International Labor Organization (ILO) Convention and the United
Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.

Can we say that the IPRA is indeed unconstitutional? If indeed the basis of
State ownership is anchored in the Regalian Doctrine then indigenous
concept of ownership is the exception. But should these indigenous cultural
communities also being a citizen of this country follow the same
Constitution also? Well, what the IPRA did was basically gave a first gave
substantial distinction thus equal protection clause is not violated. Second
there is valid classification which separates indigenous from non-indigenous
people. Third, it is germane to the purpose of the law which gives them the
opportunity to own the land their forefathers have been tilling since pre-
colonial times. And lastly the law is not applicable only existing conditions
but to future as well. Given these factors, the IPRA is indeed not
unconstitutional but in fact upholds the fact that the State does not really
own Philippines because it is the Filipino people who own it and that
indigenous people are also Filipinos.